Prosecutors and defense lawyers are at odds over the next steps in the case after the Supreme Court narrowed the scope of the prosecution by ruling that former presidents are entitled to broad immunity from criminal charges. The dueling proposals and testy courtroom exchanges Thursday reflected the extent to which the justices’ July opinion had upended the path of the case that charges Trump with plotting to overturn the results of the 2020 election in the run-up to the Capitol riot on Jan. 6, 2021.
By day’s end, she permitted prosecutors to file by Sept. 26 a legal brief that could include fresh details about Trump’s failed efforts to cling to power four years ago. The brief is meant to defend a revised, and stripped-down, Trump indictment that special counsel Jack Smith’s team filed last week to comply with the Supreme Court’s immunity opinion. The filing is expected to include detailed allegations from the investigation, said Thomas Windom, a member of Smith’s team.
Trump lawyer John Lauro objected to the filing of the brief before the defense team has had a chance to seek the indictment’s dismissal — and during the “sensitive time” before the election.
“This process is inherently inherently unfair, particularly during this sensitive time that we’re in,” Lauro said.
That comment drew a rebuke from Chutkan, who said that the timing of the election was “not relevant” to how the case should proceed.
“This court is not concerned with the electoral schedule,” the judge said. At another point, she suggested that the defense was trying to delay the case because of the forthcoming election, cautioning, “That’s not going to be a factor I consider at all.”
The new indictment filed by Smith’s team last week removed allegations related to Trump’s attempts to use the Justice Department’s law enforcement powers to undo the election results, conduct for which the Supreme Court said he enjoyed immunity. But the Trump team believes the new indictment did not go far enough to comply with the 6-3 ruling, in part because it left intact allegations that Trump badgered his vice president, Mike Pence, to refuse to certify the counting of the electoral votes, Lauro said.
“We may be dealing with an illegitimate indictment from the get-go,” Lauro said.
He told Chutkan that the Supreme Court’s opinion required the outright dismissal of the case, a position the judge made clear she did not accept. She bristled again when he suggested that prosecutors were guilty of a “rush to judgment.”
“This case has been pending for over a year,” Chutkan said, referencing the fact that the matter has been frozen since last December while Trump pursued his immunity appeal. “We’re hardly sprinting to the finish here.”
She added: “We all know — we all know — that whatever my ruling on immunity is, it’s going to be appealed. And the taking of that appeal will again stay this case. So, no one here is under any illusion that we’re sprinting towards any particular trial date.”
The Supreme Court held that former presidents are immune from prosecution for the exercise of their core constitutional functions and are presumptively immune for all other official duties. It now falls to Chutkan to determine which of the acts in the four-count indictment are official or not and which can remain part of the case in light of the opinion.
Neither side envisions a trial happening before Election Day, especially given the amount of work ahead.
Pushing back on the defense’s claims that the special counsel wants to move too quickly, Windom noted that Trump’s lawyers filed a lengthy brief seeking to overturn his New York hush money conviction and dismiss the case less than two weeks after the Supreme Court’s ruling in July.
“The defense can move comprehensively, quickly and well. So can we,” Thomas Windom said.
Lauro told Chutkan that the case concerned momentous issues. “We are talking about the presidency of the United States,” he said. Chutkan shot back: “I’m not talking about the presidency of the United States. I’m talking about a four count indictment.”
The hearing ended without the judge issuing an order about future dates in the case.
Trump was not in the courtroom and gave an economic speech in New York, though Smith was present. A not guilty plea was entered on his behalf for the revised indictment.
Defense lawyers said they intend to file multiple motions to dismiss the case, including one that piggybacks off a Florida judge’s ruling that said Smith’s appointment was unconstitutional.
The case is one of two federal prosecutions against Trump. The other, charging him with illegally hoarding classified documents at his Mar-a-Lago estate in Palm Beach, Florida, was dismissed in July by U.S. District Judge Aileen Cannon, who said Smith’s appointment as special counsel was unlawful.
Smith’s team has appealed that ruling. Trump’s lawyers say they intend to ask Chutkan to dismiss the election case on the same grounds, though Chutkan noted in court Thursday that she did not find Cannon’s opinion “particularly persuasive.”
