The 'Friend of the Court' Brief that Could Upend Everything

Gage Skidmore

On January 2, the merits panel of the D.C. Court of Appeals granted a motion for American Oversight to participate as amicus curiae in Donald Trump’s immunity case.

Amicus curiae - “friend of the court” in Latin - refers to a group or person who is not party to the case but has a strong interest in it and can offer insight and expertise that can assist with the court’s decision. In this case, American Oversight, a nonprofit organization that seeks to uphold and strengthen democracy, has submitted a brief arguing that the D.C. appellate court does not have jurisdiction to hear the appeal and that the case should be returned to Judge Tanya Chutkhan without delay to proceed in normal order.

There have been a number of bizarre, long-shot briefs filed in relation to this appeal – including several that claim that Jack Smith is not a legitimately appointed Special Counsel and one that refers to him as “a modern example of the naked emperor” – so it would be easy to dismiss American Oversight’s argument as yet another unfounded interjection.

Except it’s not. Their argument rests on Supreme Court precedent, from the Midland Asphalt case of 1989, that holds that a criminal defendant is barred from lodging an immediate appeal of an order denying them immunity unless that immunity is based on “an explicit statutory or constitutional guarantee that trial not will occur.”

As the brief notes, “the Supreme Court has identified only two constitutional guarantees against trial that satisfy this demanding standard: the Double Jeopardy Clause and the Speech and Debate Clause.” Of course, Trump has argued that he’s not only immune from prosecution because his actions to overturn the election fall within the “outer perimeter” of official presidential acts, but that he’s protected under principles of double jeopardy owing to the Constitution’s Impeachment Judgement Clause. The brief from American Oversight points out that Trump’s own argument “does not rest on any explicit constitutional guarantee against trial”, because the clause he cites “does not confer any explicit right not to be tried.” Therefore, even before going into the illogical assertion that acquittal by the Senate provides blanket immunity from criminal prosecution, Trump’s argument would fail under Midland Asphalt.

American Oversight states that because of this, the issues that Trump raised on appeal “do not qualify for an interlocutory appeal” – an appeal before judgement. The brief highlights that Trump’s team is instead appealing Judge Chutkhan’s order as a delay tactic and states that permitting such delays would upend the legal system: “Criminal trials would never come to verdict— permitting defendants to escape accountability—if susceptible to the constant “delays and disruptions attendant upon intermediate appeal” of every alleged legal error. The balance between the need for swift error correction and the need to permit criminal trials to proceed to a prompt and orderly conclusion has thus come out only one way for centuries: against allowing interlocutory review.”

So, will it work? The Court certainly seems interested – after granting American Oversight permission to participate in the case, an order was placed on the docket asking “that counsel be prepared to address” any inquiries by the Court relating to issues raised by amicus curiae during oral arguments on January 9. In its own brief, Trump’s team barely dedicated a paragraph to the issue, repeating instead dubious claims of immunity, calling American Oversight’s argument “incorrect” and claiming that “the President’s “unique position in the constitutional scheme,” set forth in the Executive Vesting Clause, guarantees him immunity from trial.”  

Trump’s argument here seems weak, and Judge Chutkhan has already detailed how and why invoking the separation of powers in relation to this assertion of immunity is erroneous and therefore isn’t enough to dismiss the indictment. 

It seems the most likely outcome is that the D.C. Court of Appeals will deny Trump’s claims of immunity on the merits, rather than a technicality, because of this weakness. But as former US Attorney Harry Litman recently noted, the amicus brief is certainly persuasive and “if [their] argument succeeds, it will be an appellate version of the sort of Perry Mason moment that rarely happens in a real courtroom.”

We’ll find out just what the Judges think of this argument at oral arguments on January 9.

Audio of the proceedings will be streamed live on YouTube and can be accessed here: https://www.youtube.com/watch?v=PEQ1aToavl8