WASHINGTON — With exactly two months to go before the presidential election, U.S. District Judge Tanya Chutkan plans to continue to prosecute the case accusing former President Donald Trump of overturning the results of the 2020 presidential election, telling Trump’s lawyers she is “not concerned about the election timeline.”
Trump, the Republican presidential candidate, did not appear at Thursday’s hearing in federal court in Washington, but his lawyers did not enter a plea on his behalf to four counts that remained unchanged in a fresh indictment filed last week by special counsel Jack Smith.
The case has been on hold for eight months as Trump appeals his claim of presidential immunity all the way to the U.S. Supreme Court. Chutkan’s expected fresh schedule for the case — which she could announce as early as Thursday — is still designed to ensure Trump doesn’t face trial before Election Day in November.
U.S. prosecutors say they are prepared to reopen the case in the coming weeks, while Trump’s team is seeking more time to review the evidence and dismiss the superseding indictment.
The Supreme Court returned Trump’s case to the trial court after ruling that former presidents are immune from criminal charges for official “core constitutional acts” while in office and have at least presumptive immunity for “outside” activities, but not for personal activities.
That left Chutkan, an Obama administration appointee, with the primary task of reviewing Smith’s indictment and deciding which charges against Trump fall within the scope of official acts and which relate to actions taken in a private capacity.
Chutkan the skeptical
Chutkan did not issue any rulings on the immunity case at Thursday’s hearing, but he spent significant time questioning Trump lawyer John Lauro about why he thought it was “inappropriate” for Smith’s office to present its case in an opening statement this month. Thomas Windom, a federal prosecutor in Smith’s office, said the government would be ready to file a statement by the end of September.
Lauro argued that Smith’s “freak-out” filing was (*6*)
“I understand that elections are coming up,” Chutkan retorted, reminding him that “that’s not the point here.”
“Three weeks is not a crazy amount of time,” Chutkan added.
Lauro argues that Chutkan should examine portions of the indictment that accuse Trump of pressuring then-Vice President Mike Pence to accept fraudulent slates of electors, which occurred before Pence’s ceremonial role in certifying the election results on January 6, 2021.
“The problem with this issue is that if communications are in fact untouchable, then the entire indictment falls apart,” Lauro argued.
“I’m not sure I interpret the matter that way,” Chutkan replied.
The government maintains that all of Trump’s actions and communications described in the fresh indictment were “private in nature,” Windom argued.
Chutkan also spent time during the roughly 75-minute hearing grilling Lauro about Trump’s legal team’s numerous plans to seek dismissal of the case. One of the anticipated plans is to attempt a successful trial in Florida, where a federal judge appointed by Trump thrown his secret documents were released after Trump claimed Smith was illegally appointed special prosecutor.
Chutkan said she would allow the defense to file such a motion but warned that attorneys must make a compelling case for why “binding precedent does not apply” to the time-tested position of the special counsel.
New indictment, same charges
Trump is accused with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstructing and attempting to obstruct an official proceeding; and conspiracy to violate rights for his alleged role in a conspiracy to create false electors from seven states and knowingly spreading false information that prompted his supporters to violently attack the United States Capitol on January 6, 2021.
A federal jury has handed down the verdict amended indictment August 27 to adjust the charges to the Supreme Court’s immunity of July 1 rulingThe fresh indictment omitted any reference to Trump’s alleged pressure campaign on Justice Department officials to interfere with state election results.
But the document emphasized Trump’s personal exploit of social media outside of his duties as president and said he and several co-conspirators conspired outside of their official duties. The fresh indictment also highlighted Trump’s pressure on Pence to accept bogus electors in his role outside of the executive branch as president of the Senate.
If Trump wins the Oval Office in November, he will have the ability to obstruct or dismiss the Justice Department’s election interference case against him.
If he loses to Democratic nominee Vice President Kamala Harris, the case is sure to be delayed further as Trump’s team plans multiple challenges and will almost certainly appeal — likely again to the Supreme Court — Chutkan’s ruling on which charges against Trump are and are not immune.
According to Friday joint submission of documents in which each side outlined plans to move forward in the case, Trump’s team also warned that it would dispute the claim that Trump’s tweets and communications about the 2020 presidential election results should be treated as official actions.
In addition, Trump plans to file a motion to dismiss the case based on the Supreme Court’s June ruling ruling that a January 6 rioter cannot be charged with obstructing an official proceeding – a charge that also applies to Trump.
