A Strange Aspect of Judge Acker’s Order
There was honest disagreement among lawyers I spoke to about Vitter’s decision. I thought it moderately persuasive. Lawyers I respected thought it wrong. I think everyone expected an appeal.
Not thinking too much about it, I checked sometime in early April (over thirty days after Judge Vitter’s ruling), saw no notice of appeal, and thought: “Oh, they dropped it.”
As one could say about almost everything in these cases, “nope, it’s weirder than that.”
It turns out that at least one of the three special prosecutors was confused about the proper timing for filing a notice of appeal. There are two rules– one says that an appeal by the United States from a criminal case must be within 30 days, and another says that appeals by the United States are to be filed within 60 days. The first rule controls, but the special prosecutor thought the second controlled. Thus, on April 15th, a little over two weeks after thirty days, the special prosecutors filed a motion for more time to file a notice of appeal, saying they had inadvertently misunderstood the rules. The motion is Exhibit B to Judge Acker’s order (found here).
Scruggs’s lawyers (Keker’s firm) fired back with a forceful and blunt response that this wasn’t allowed, and Judge Vitter almost immediately agreed, ruling that there was no basis to extend the time for a notice of appeal.