|
 |
The Eleventh Circuit moved up the date for oral argument in a case where two news organizations are asking the court to let them argue for the release of Volume II of Jack Smith’s special counsel's report. We discussed the situation and the need to have intervening parties in the case last week in this post: Volume II. Finally. Volume II is the report for the Mar-a-Lago classified documents prosecution.
The new date, November 2, is one day before the midterm elections. The case is set for argument in the Elbert P. Tuttle Courthouse in Atlanta. The coffee in the lawyers’ ready room is always good, the bench is hot (the judges are well prepared and full of questions), and Donald Trump now says he can’t be there.
 |
We discussed this case, where the current issue on appeal is whether the news organizations should be permitted to intervene in the matter to argue for release of the report, since the government, no surprise, is on Trump’s side now. If the Court of Appeals permits intervention—Judge Aileen Cannon ruled against the intervenors’ efforts to participate in the case—the next step will be for them to proceed with the substantive argument that the report should be released, with appropriate redactions to protect national security. That’s an unremarkable proposition. Special Counsel reports are frequently released at the end of an investigation, like Robert Hur’s investigation into Joe Biden’s possession of classified documents after leaving office (Biden identified them and turned them in, as did Trump’s Vice President, Mike Pence.) Judge Cannon made an Inauguration Day decision to withhold the report in this case.
Trump’s move here fits the litigation strategy he’s best known for: delay. His lawyers filed an 11-page motion asking for a continuance. They write:
“Good cause exists for the requested continuance, as counsel for Mr. Nauta and Mr. De Oliveira have independent, pre-existing conflicts with the newly scheduled date. Moreover, a continuance is necessary to afford counsel for President Trump sufficient time to confer adequately with President Trump, and complete the preparations for oral argument that counsel reasonably planned in reliance on the Court’s prior argument dates. The requested continuance is reasonable, is sought in good faith, and will neither prejudice Appellants’ rights nor materially delay the resolution of the consolidated appeals.”
Let’s be real. If it’s a vacation we’re talking about, forget it. A business trip? Ditto. If it’s another court appearance, especially a lower court, it’s likely the judges will work that out so oral argument can proceed. Eleventh Circuit panels sit on specific dates, and rescheduling isn’t easy. As for needing time to confer with the client? This isn’t a criminal trial. The briefs are all in; all that’s left is for the lawyers to discuss them with the panel judges. A continuance is hardly essential. If the court treats this case like any other, the answer to the motion is no.
“Given President Trump’s extensive commitments, including travel and other obligations in advance of the November 3, 2026, federal midterm elections, counsel will not have sufficient opportunity to meaningfully confer with her client while preparing for oral argument on the currently scheduled November 2, 2026, argument date,” the lawyers wrote. That’s just a big “So, what?” here.
It’s important to know the local rules, especially in the Eleventh Circuit, which takes them very seriously. Rule 34-4(g) and Internal Operating Procedure (I.O.P.) 3(e) provide that motions for continuance of oral argument are “generally disfavored.” Trump’s lawyers acknowledge this in their motion, as well as the fact that a date with another judge isn’t sufficient. But they never come out and say what conflicts Trump’s former co-defendants’ lawyers have. Instead, they travel heavily on Trump’s schedule.
Given the president’s prolific social media usage, his time spent on the golf course, and his focus on vanity projects like building a ballroom and mucking up the Reflection Pool, one could forgive the Eleventh Circuit panel if they don’t take the claim he doesn’t have time for whatever sort of consultation with his lawyer he needs seriously. And it’s not like Trump and his lawyer are going to come up with new arguments at this date; local rules require parties to make them in their briefs or waive them, and in any event, the president is not a lawyer.
Oral argument in this case was originally set for November 2. Then it was rescheduled to November 16. Then it was rescheduled for the week of January 11, 2027, in Birmingham, Alabama, where, perhaps coincidentally, the Chief Judge’s chambers are. Then, argument was set for January 18, 2027. Now we’re back to the original date. Changes like this can happen for all sorts of reasons, anything from a judge with a recusal issue sitting on a panel for a certain date and a ready replacement being unavailable to cases that require a fast hearing. The court doesn’t share its reasoning for these kinds of moves. And while the court can reshuffle the calendar, litigants can’t.
But Trump’s lawyers use the shifting dates to argue, “No party will be prejudiced by the requested continuance, as evidenced by the Court’s prior decision to set oral argument for the week of January 11, 2027, and later for the week of January 18, 2027, and a continuance will not affect any other time-sensitive proceeding or relief at issue in this appeal.” That argument feels specious, as this case has dragged out and, as it does, Americans are denied the possible release of essential information about a former president. The key fact here is that there won’t be a decision in time to influence the outcome of the midterms, which could have been—that’s just speculation—in the initial decision to move the date. But Donald Trump isn’t on the ballot, and the court has obviously found time on its calendar.
PACER, the courts’ online filing system, doesn’t reflect a decision on the motion as of the time I’m sending this to you. And we don’t know who the panel judges are—that information will become available two weeks before the argument occurs. Trump appointed six of the twelve active judges on the court.
Continuances are only available for unavoidable conflicts. This isn’t one. Trump and his lawyer can surely muster the minimal time needed for any consultation, and there’s no need for Trump, himself, to attend. Clients rarely attend appellate argument, and Trump’s presence in the courthouse in Atlanta would be enormously disruptive. He doesn’t make an argument about being unable to attend, but it wouldn’t be surprising if the judges saw his likely absence on the day before the midterm elections as an additional benefit of the November date.
To give you some sense of how rare seeking a continuance of argument is, I was so reluctant that I once argued two cases back-to-back with a concussion. The clerk would have almost certainly given me a continuance, but making the scheduled date was so deeply ingrained that I didn’t want to make the call. My doctor had told me I couldn’t drive, so my husband ferried me over to Atlanta and back. On another memorable occasion, I argued a case in Atlanta with a baby so new that I couldn’t leave her behind in Birmingham. (I won all three times in case you’re wondering.)
Trump’s delay game is well-known. The court accommodates legitimate requests. But here, one hopes he gets treated like any other litigant, and frankly, a few experienced Eleventh Circuit lawyers I spoke with said they’d be embarrassed to make a request like this.
There is some precedent here. As a young lawyer in Washington, D.C., I worked on a lawsuit where Pat Robertson, the televangelist, who was running for president at the time, sued one current and one former Congressman for libel over his Korean War record. The trial was set for Super Tuesday.
Robertson sought a continuance. He couldn’t be in both places at once, and he argued that his presence at trial, unlike oral argument, was essential. He would have to testify. Trials are about the facts, and the parties are almost always involved. Oral argument is about legal arguments, and the client’s participation isn’t necessary; in fact, they have no speaking—or interrupting—role in the courtroom.
But in Robertson’s case, the court told him to pick: election or trial. Robertson chose Super Tuesday and dismissed his lawsuit. I wrote a bit about it here if you’re interested in the details. Perhaps that analysis could suit here, as well: make time to consult if you must, or else concede the motion to let the news organizations participate in the case. That seems entirely reasonable.
Enough is enough.
If Civil Discourse helps you understand what’s happening and why it matters, I hope you’ll subscribe. And if you’re able to become a paid subscriber, your support will help keep reliable information and analysis available to people who couldn’t afford it if it was behind a paywall. You don’t have to pay to read Civil Discourse. That’s the point. Paid subscribers help make this available for everyone.
We’re in this together,
Joyce