Politics
Opinion: This surprise argument could derail Trump's effort to delay the Jan. 6 trial
As all eyes watched every word filed by Donald Trump and federal prosecutors ahead of next week’s crucial arguments on immunity, a third party slipped in the side door with a brief that may dramatically foil the former president’s efforts to leverage the issue for maximum delay.
The watchdog organization American Oversight, which is not a party to the case, successfully petitioned the U.S. Court of Appeals for the D.C. Circuit to accept its friend-of-the-court brief on the ground that it provides a “unique perspective.”
Indeed it does. The brief makes the apparently compelling argument that the court shouldn’t be hearing this appeal at all because it lacks jurisdiction — that is, the power to consider it in the first place. If the court agrees, it would mean dismissing the appeal and returning the case to U.S. District Judge Tanya Chutkan, abruptly aborting Trump’s best opportunity to delay the federal Jan. 6 trial.
Trump’s argument is that he is entitled to avoid trial because the Constitution prohibits indicting him for conduct he undertook as president, at least if it was within the “outer perimeter” of his official duties. Most observers, including me, think Trump will lose the claim on the merits, but it’s likely that the U.S. Supreme Court will have to make that pivotal determination. The question is when — before trial, putting the case on ice, or afterward.
Chutkan has decided that she can’t go forward with the trial until that’s settled, reasoning that immunity is a right not to go to trial in the first place. That suggests that even if Trump is bound to lose his claim, he will be able to string out the process for at least a couple of months, bumping back the start of probably the most important of the four criminal trials he faces. Originally scheduled for March, the trial is thereby being delayed deeper into Trump’s campaign to return to the White House.
Enter the American Oversight brief, written by lawyers with the Washington-based firm Arnold & Porter. The brief relies on a unanimous 1989 Supreme Court opinion, Midland Asphalt Corp. vs. United States, written by the late Justice Antonin Scalia. The defendant in the criminal case, Midland Asphalt, had moved unsuccessfully for a dismissal of the charges based on the prosecution’s alleged violation of grand jury rules.
The Supreme Court held that neither it nor the circuit court had the power to hear the case on “interlocutory appeal,” or before trial. As with the vast majority of issues that may arise at trial, the court ruled, this one could be considered only after a conviction.
The court emphasized that in criminal cases, the compelling interest in prompt trials demands that courts apply the interlocutory appeal doctrine “with utmost strictness.” Federal courts have jurisdiction over such appeals, the justices found, only if they are brought under a constitutional or statutory provision that expressly gives the defendant a right not to go to trial.
Since the Midland Asphalt opinion, the court has identified only three categories of motions that may be considered before trial in criminal cases: motions to reduce bail and those concerning the double jeopardy clause in the Constitution’s 5th Amendment, and the speech or debate clause, which protects legislators from being “questioned” — that is, tried — at all.
Trump’s immunity argument therefore doesn’t seem to fit within Midland Asphalt’s exceptions. It doesn’t rest on any explicit constitutional guarantee. And the D.C. Circuit Court previously held that a right based on constitutional principles such as the separation of powers doesn’t cut it.
The Justice Department and Trump had been assuming the D.C. Circuit Court has jurisdiction based on Nixon vs. Fitzgerald, which established broad but not endless immunity from lawsuits over a president’s conduct while in office. But that civil case was not subject to the “utmost strictness” standard the Supreme Court has applied to criminal trials. It also predated the Midland Asphalt opinion, which the Justice Department somewhat bafflingly failed to mention.
There may be a reason the Midland Asphalt doctrine doesn’t apply here, but I can’t think of one.
Jurisdiction is an issue that courts take extremely seriously, and I think the D.C. Circuit Court should and probably will consider the argument that it lacks jurisdiction very carefully. It’s already ordered the parties to address American Oversight’s position at oral argument Tuesday, when it’s likely to be a subject of intense questioning.
If the argument succeeds, it will be an appellate version of the sort of Perry Mason moment that rarely happens in a real courtroom. With a wave of a jurisdictional wand, Trump would be back in the district court preparing for an only slightly delayed trial.
Harry Litman is the host of the “Talking Feds” podcast. @harrylitman
Politics
Republicans light cigars, cigarettes on burning photos of Khamenei to show support for Iranian protesters
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Republican lawmakers are jumping on a social media trend to show their support for the anti-regime protesters in Iran.
Sen. Tim Sheehy, R-Mont., and Rep. Claudia Tenney, R-N.Y., posted photos of themselves using burning photos of Ayatollah Ali Khamenei to light up a cigarette and a cigar respectively. Both lawmakers used the caption “Smoke ’em if you got ’em.”
The lawmaker’s images mirror a social media trend in which people are using burning photos of Khamenei to light cigarettes and cigars. The trend emerged as the people of Iran hold increasingly intense protests against the Islamic regime. The movement against the regime has seen increasing support from abroad as world leaders back the people of Iran.
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People gather during a protest on Jan. 8, 2026, in Tehran, Iran. (Anonymous/Getty Images)
Khamenei’s regime has started to crack down on protests and even instituted a sweeping internet blackout to try to quell the unrest. Some have posited that the internet blackout was also meant to impede the spreading of information about and visuals of abuses committed against protesters by regime-backed forces.
Recently, exiled Iranian crown prince Reza Pahlavi has publicly urged President Donald Trump and the U.S. to back protesters in Iran as they fight the decades-old regime.
Sheehy told Fox News Digital that he takes the issue personally, saying that Iran has participated in the torturing, kidnapping and killing of Americans across the globe, “including friends of mine.”
“The Iranian regime are a bunch of murderous b——- who have been chanting ‘death to America’ for the past 46 years. They have backed up this chant by kidnapping, torturing, and killing thousands of Americans all over the world, including friends of mine. For me, it’s personal; it’s time to take out the trash,” Sheehy said in a statement provided to Fox News Digital via email.
Sen. Tim Sheehy, R-Mont., showed his solidarity with the people of Iran by hopping on a social media trend in which she used a burning photo of Ayatollah Ali Khamenei to light a cigarette. (Courtesy of Sen. Tim Sheehy’s Office)
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The senator also expressed his solidarity with the people of Iran and encouraged them to keep fighting the regime.
“To the Iranian people — we applaud your courage, keep fighting, and know we fully support your brave efforts to topple this evil regime,” he added.
Tenney’s office also spoke with Fox News Digital about the congresswoman’s post, praising the bravery of the people of Iran for standing up to the regime. Additionally, Tenney’s office expressed the congresswoman’s solidarity with the Iranian people.
“The bravery of the Iranian people in the face of decades of oppression by a brutal, extremist regime is extraordinary. Men and women across Iran are risking their lives to stand up to authoritarian mullahs who have denied them basic freedoms for generations,” Tenney’s office said in a statement to Fox News Digital.
Rep. Claudia Tenney, R-N.Y., showed her solidarity with the people of Iran by hopping on a social media trend in which she used a burning photo of Ayatollah Ali Khamenei to light a cigar. (Courtesy of Rep. Claudia Tenney’s Office)
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“The congresswoman stands firmly with the Iranian people and their demand for dignity and self-determination, and believes their courage must be recognized and amplified. Today, the Iranian people finally have an ally in the White House, President Trump, who has made clear that the United States stands with those fighting for freedom against tyranny,” Tenney’s office added.
Trump has been vocal about his support for the people of Iran and has warned that the U.S. would be ready to step in if the regime used violence against protesters.
“Iran is looking at FREEDOM, perhaps like never before,” the president wrote in a Truth Social post on Jan. 10. “The USA stands ready to help!!!”
SACRAMENTO — California announced an investigation into Elon Musk’s artificial intelligence company xAI on Wednesday, with Gov. Gavin Newsom saying that the social media site owned by the billionaire is a “breeding ground for predators to spread nonconsenual sexually explicit AI deepfakes.”
Grok, the xAI chatbot, includes image-generation features that allow users to morph existing photos into new images. The newly created images are then posted publicly on X.
In some cases, users have created sexually explicit or nonconsensual images based on real people, including altered depictions that appear to show individuals partially or fully undressed. Others have generated images that appear to show minors, prompting criticism that there are not sufficient guardrails to prohibit the creation of child pornography.
The social media site has previously said “we take action against illegal content on X, including Child Sexual Abuse Material (CSAM), by removing it, permanently suspending accounts, and working with local governments and law enforcement as necessary. Anyone using or prompting Grok to make illegal content will suffer the same consequences as if they upload illegal content.”
Newsom called the sexualized images being created on the platform “vile.” Atty. Gen. Rob Bonta said his office will use “all tools at our disposal to keep Californians safe.”
“The avalanche of reports detailing the non-consensual, sexually explicit material that xAI has produced and posted online in recent weeks is shocking,” Bonta said in a statement Wednesday. “This material, which depicts women and children in nude and sexually explicit situations, has been used to harass people across the internet. I urge xAI to take immediate action to ensure this goes no further. We have zero tolerance for the AI-based creation and dissemination of nonconsensual intimate images or of child sexual abuse material.”
Newsom signed a pair of bills in 2024 that made it illegal to create, possess or distribute sexually charged images of minors even when they’re created with computers, not cameras. The measures took effect last year.
Assembly Bill 1831, authored by Assemblymember Marc Berman (D-Menlo Park), expanded the state’s child-porn prohibition to material that “contains a digitally altered or artificial-intelligence-generated depiction [of] what appears to be a person under 18 years of age” engaging in or simulating sexual conduct. Senate Bill 1381, authored by Sen. Aisha Wahab (D-Hayward), amended state law to more clearly prohibit using AI to create images of real children engaged in sexual conduct, or using children as models for digitally altered or AI-generated child pornography.
new video loaded: Supreme Court May Allow States to Bar Transgender Athletes
transcript
transcript
Supreme Court May Allow States to Bar Transgender Athletes
The Supreme Court heard two cases from West Virginia and Idaho on Tuesday. Both concerned barring the participation of transgender athletes in girls’ and women’s sports teams.
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“It is undisputed that states may separate their sports teams based on sex in light of the real biological differences between males and females. States may equally apply that valid sex-based rule to biological males who self-identify as female. Denying a special accommodation to trans-identifying individuals does not discriminate on the basis of sex or gender identity or deny equal protection.” “West Virginia argues that to protect these opportunities for cisgender girls, it has to deny them to B.P.J. But Title IX and the Equal Protection Clause protect everyone. And if the evidence shows there are no relevant physiological differences between B.P.J. and other girls, then there’s no basis to exclude her.” “Given that half the states are allowing it, allowing transgender girls and women to participate, about half are not, why would we at this point, just the role of this court, jump in and try to constitutionalize a rule for the whole country while there’s still, as you say, uncertainty and debate, while there’s still strong interest in other side?” “This court has held in cases like V.M.I. that in general, classification based on sex is impermissible because in general, men and women are simply situated. Where that’s not true is for the sorts of real, enduring, obvious differences that this court talked about in cases like V.M.I., the differences in reproductive biology. I don’t think the pseudoscience you’re suggesting has been baked.” “Well, it’s not pseudo. It’s good science.” “It’s not pseudoscience to say boys’ brain development happens at a different stage than girls does.” “Well, with all respect, I don’t think there’s any science anywhere that is suggested that these intellectual differences are traceable to biological differences.” “Can we avoid your whole similarly situated argument that you run because I don’t really like it that much either? And I’m not trying to prejudice anyone making that argument later. But I mean, I think it opens a huge can of worms that maybe we don’t need to get into here.”
By Meg Felling
January 13, 2026
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