The Supreme Court gave hope to the Smith SCO fans when it issued an order Monday directing Trump’s legal team to respond to the suggestion to have the case proceed under the Petition for Certiorari Before Judgment process. They were given until December 20 to file a response. If granted, the Smith SCO would have certainly asked for an expedited schedule in order to have the Supreme Court decide the immunity issue as quickly as possible – with a pipe dream that it might be quick enough to still have the trial begin on March 4.
But placing the immunity issue under consideration – while the appeal filed by Trump in the D.C. Circuit remains pending – triggered a jurisdictional dilemma for the trial court judge. There is Supreme Court case law that says once an issue is appealed out of the district court and to an appellate court the district court loses jurisdiction over that issue and cannot order the defendant to undergo any prejudicial action – including a trial or any pretrial matters such as discovery or motions. The Trump legal team notified Chutkan when it filed the Notice of Appeal that it was invoking that doctrine and that it would not comply with further filing deadlines under the Court’s Scheduling Order.
Chutkan ordered immediate briefing by both sides on the issue.
R&I – TP
DGM