Lawyers for former President Donald Trump and special counsel Jack Smith clashed in a Washington courtroom Thursday over how much of the 2020 election interference case against him should survive — and how quickly they should move as millions of Americans prepare to cast ballots this fall.
The case already had been on pause for more than eight months while the Supreme Court weighed whether Trump and future presidents enjoy immunity from prosecution for their official acts in the White House.
“There needs to be some forward motion in this case,” said U.S. District Judge Tanya Chutkan.
In July, the high court’s conservative supermajority afforded Trump blanket immunity for his interactions with the Justice Department and concluded he had “presumptive” immunity for other kinds of official acts. Steps a president takes for personal gain, however, deserve no legal shield, the court said.
How to draw those lines will be up to Chutkan, a former public defender who’s sought to move the case past numerous legal and logistical pitfalls. Anything she does will be appealed all the way up to the Supreme Court again, so there’s no chance for a trial before November — and maybe not even in 2025.
Political timeline
Flashes of heat and humor erupted in the D.C. courtroom, in a hearing that lasted about an hour.
Looming over the case is this year’s election calendar. Trump did not appear in at the courthouse in D.C., only steps away from the site of the riot at the U.S. Capitol three years ago. Instead, he delivered a campaign speech to the Economic Club of New York.
His lawyers did the talking for him—and they worried aloud about what kind of evidence prosecutors might make public in the coming weeks, “at a very sensitive time in our nation’s history.”
“This is a case about the presidency,” said John Lauro, an attorney for Trump.
But Chutkan flatly rejected the idea that the political calendar, or Trump’s position on the ballot as the Republican nominee for president, should play any role in her decisions.
“I’m not talking about the presidency of the United States,” the judge said. “I’m talking about a four-count criminal indictment.”
Push for speed
Thomas Windom, a prosecutor working for the Justice Department special counsel team, said only the judge would control whether any new evidence should become public this year. He stressed the need for Chutkan to consider Trump’s immunity from prosecution first—so there would be only one more appeal that could return to the Supreme Court.
Windom said prosecutors are prepared to file a lengthy motion within three weeks to lay out their arguments and any new evidence to support their contention that Trump was acting as a political candidate, for personal gain, and not as president as he tried to cling to power in 2020 and early 2021.
He cast doubt on the idea the Trump legal team needed months to respond, pointing out some of the same attorneys managed to file a 52-page brief within several days of the Supreme Court’s decision, in a separate hush money prosecution against Trump in New York.
“The defense can move quickly, comprehensively, and well,” Windom said.
“Congratulations,” the judge told one of the defense lawyers, with a smile on her face.
Questions about Pence
Perhaps the biggest legal battle to come will focus on the role of former Vice President Mike Pence. Trump is accused of pressuring Pence to delay the electoral count on Jan. 6, 2021, as a mob yelled, “hang Mike Pence” outside the Capitol building.
Trump attorney Lauro said the allegations involving Pence, and whether they deserved immunity, amount to a “gateway issue that needs to be decided right away.” He said if grand jurors heard evidence about Pence, and those allegations are protected by immunity, the entire indictment should be dismissed as tainted.
“If the communications are immune, then the entire indictment fails,” Lauro said.
The judge wasn’t so sure about that.
It will be up to her whether she chooses to unseal FBI witness interviews, grand jury testimony, or even call for an in-person proceeding to hear from witnesses directly as she deliberates the thorny immunity issues.
George Washington University law professor Randall Eliason said he doesn’t envy the work ahead for the judge.
“The allegations about Mike Pence are probably going to be the biggest fights because that was one area where the Supreme Court expressly said the president’s communications with his vice president are presumptively immune,” Eliason said. “But the government might be able to rebut that in certain cases by showing that these particular acts were not really based on his executive duties and that prosecuting based on those wouldn’t interfere with executive branch functions.”
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