Today, nonprofit watchdog American Oversight filed an amicus brief in the U.S. Court of Appeals for the District of Columbia Circuit in U.S. v. Donald Trump, the criminal case charging former President Donald Trump with attempting to subvert the 2020 presidential election.

U.S. District Court Judge Tanya Chutkan previously ruled that the former president is not entitled to immunity from criminal prosecution. Stressing the public interest in a prompt resolution of the case, Special Counsel Jack Smith sought immediate Supreme Court review, but the Court denied the request. Trump’s immunity claim is now before the Court of Appeals for the D.C. Circuit, and his trial on the election interference charges — originally set for March — is on hold while his appeal proceeds.

Represented by Arnold & Porter, American Oversight argues that the D.C. Circuit lacks jurisdiction to hear Trump’s appeal and should send the case back to the district court for trial without further delay. Neither the special counsel nor Trump, nor anyone previously, has raised this issue.

Statement from American Oversight Executive Director Heather Sawyer:
“Trump’s goal is to delay the trial until after the 2024 presidential election under the theory that if he wins the presidency, he may never be held accountable for his effort to overturn the 2020 election. This is a perfect example of the adage ‘justice delayed is justice denied.’ The American people should have the benefit of a jury verdict on Trump’s guilt before they choose the next president of the United States.”

As the American Oversight amicus brief argues, Supreme Court precedent prohibits a criminal defendant from immediately appealing an order denying immunity unless the claimed immunity is based on “an explicit statutory or constitutional guarantee that trial will not occur.” Trump’s claims of immunity rests on no such explicit guarantee. Therefore, given that Trump has not been convicted or sentenced, his appeal is premature. The D.C. Circuit lacks appellate jurisdiction and should dismiss the appeal and return the case to district court for trial promptly.

Arnold & Porter partner Stanton Jones stated: “The law is clear: Mr. Trump cannot appeal his immunity defenses until after he is tried and convicted. He should not be allowed to use an improper appeal to delay the scheduled March trial.”

On Dec. 23, Trump filed a brief in the appellate court asking that the charges against him be dismissed on the grounds that he is immune from prosecution. The Department of Justice’s opposition is due on Saturday, Dec. 30, and Trump’s reply is due on Jan. 2. Oral argument is scheduled for Jan. 9.