The DC Circuit has effectively signaled that they’re not likely to grant en banc review. The panel opinion is per curiam, which typically means that the full court took a look at the opinion and it’s either unanimous or enough of them agreed with it that it can’t get the votes for an en banc review.
They could have made it more explicit (sometimes they’ll include a footnote that explicitly says they already took a look and determined it doesn’t have the votes), but that would make it explicit to everyone, whereas this version is more targeted to competent appellate counsel.
ETA: Reading through the decision, and this section discussing the merits of Trump’s separation of powers argument (e.g. the courts can’t judge the President since they are a separate branch of government) is maybe the best part of the whole thing:
And during President Trump’s 2021 impeachment proceedings for incitement of insurrection, his counsel argued that instead of post-Presidency impeachment, the appropriate vehicle for “investigation, prosecution, and punishment” is “the article III courts,” as “[w]e have a judicial process” and “an investigative process . . . to which no former officeholder is immune.”
Not sure how one would do the valuation but the money spent on the lawyers and public spectacle have some if not a large amount of value for re-election propaganda aimed at the faithful.
They said a petition for en banc review would not hold up the case. The current order would still go back to the lower court on February 13 even if there is a petition for review.
The only thing that doesn’t send this back to the lower court on February 13 is a petition to the Supreme Court.
I assume that petition is going to be filed on February 12. Then, it’ll be in the Supreme Court’s hands to decide if they’re going to accept the Circuit court’s write up, or if they’re going to hear it.
I thought it took longer than it should have for the Circuit court to release a ruling. But, it seems that the extra time was in creating something robust enough the Supreme Court could simply agree with it.
Oooh, good catch, thanks for bringing it up! I really have to conclude that there’s no way they’ll grant an en banc review and they just didn’t want to say it in plain language that Trump can understand. Given that they spend a lot of time discussing that it’s appropriate for this review to happen pre-trial because if immunity applied in this case, it would be immunity from being tried at all, it’s hard to see why they wouldn’t carve out time for an en banc review if there was any chance that they’d agree to one.
Really, it is difficult to imagine many cases where skipping the appeals court was more justified from a public policy point of view, than this one. So their failure to hear it before struck me as them trying to stay above the political fray by not taking it. So I think that it is reasonably likely that they will try to do the same thing again and decline to hear the case. Of course the attempt to be perceived as apolitical will fail. As the old song says, “If you choose not to decide, you still have made a choice.”
That is certainly how Trump thinks that is works. Or at least SHOULD work. And if he gets a second term, he will try to appoint justices that WILL obey him.
