Judge sets deadlines to consider challenges in Donald Trump election case over next 2 months
WASHINGTON – U.S. District Judge Tanya Chutkan set a timeline Thursday for debating whether former President Donald Trump is immune from election conspiracy charges that will not allow a trial before the November election.
Justice Department special counsel Jack Smith’s team argued that Chutkan should decide whether Trump is immune from prosecution before making any other decisions in the case. The timeline she subsequently timeline laid out agreed with their request to handle the immunity question, while also considering Trump's other challenges to the charges.
The Supreme Court ruled in July that Trump is presumed immune from charges for his official acts in office. But prosecutors contend he is vulnerable to charges for unofficial acts that allegedly violated the law in his effort to overturn his 2020 defeat. Trump's lawyers contend the indictment covers official acts and should be dismissed.
Trump lawyer John Lauro argued it would be unfair to consider immunity before other disputes are resolved, such as about how much evidence is shared in the case. Chutkan set up deadlines for Trump's team to dispute whether they have received all the evidence before the the immunity arguments are due.
Lauro said former Vice President Mike Pence’s communications with Trump were immune and their inclusion in the indictment would lead to dismissal of the entire case.
“We may be dealing with an illegitimate indictment from the get-go,” Lauro said.
Lauro mentioned the sensitive timing of the case and encouraged Chutkan to move deliberately in the year-old charges, so as not to damage Trump's electoral prospects by presenting more detailed evidence against him in public before the election. But Chutkan said she would not be taking the election into consideration in setting deadlines.
“This court is not concerned with the electoral schedule,” Chutkan said. “That’s nothing I’m going to consider.”
Even so, the legal debate over immunity could take months. Chutkan anticipates her ruling on whether the charges should be dismissed will be appealed to the Supreme Court, so she said she could not yet set a trial date.
“We’re hardly sprinting for the finish line here,” Chutkan said.
Here's what we know about the hearing:
Chutkan sets deadlines for written arguments on immunity, Smith appointment
Chutkan set dates for prosecutors and defense lawyers to submit written arguments about immunity, Smith's appointment and the statutes cited in the indictment despite the opposition from Trump's lawyers.
“We can all walk and chew gum at the same time," Chutkan said.
The deadlines included:
Sept. 10 for prosecutors to share all required evidence in the case with the defense team. Windom said during the hearing prosecutors have already done that.
Sept. 19 for Trump’s team to formally request any additional evidence they think might be missing.
Sept. 26 for prosecutors to file a written argument about Trump’s immunity.
Oct. 3 for Trump’s team to file their motion to dismiss the case by arguing the statutes are too vague.
Oct. 17 for Trump’s team to respond to the government’s immunity filing. Prosecutors must also respond to Trump’s statutory filing.
Oct. 24 for Trump’s team to file their motion to dismiss by arguing Smith was appointed illegitimately.
Oct. 29 for prosecutors to reply to Trump’s arguments on immunity.
Oct. 31 for prosecutors to oppose Trump’s argument about the legitimacy of Smith’s appointment.
Smith offers to submit first argument on immunity, which Trump opposes
The customary path for written arguments before a trial is for the defense team to propose to dismiss the case, with the prosecution then responding. But Smith's team offered to file their argument against immunity first, to restart the case after it was halted since December during the appeal.
One prosecutor, Thomas Windom, said the government could file its argument within three weeks, with exhibits featuring transcripts from the grand jury and FBI interviews.
Windom acknowledged it would be unusual for the prosecution to file their argument first. But he said it would benefit the defense because Trump would see all the evidence laid out during the argument.
“I don’t think we’re in a typical situation," Windom said. “The defense would know what the landscape looks like."
But Lauro had strongly opposed the proposal, saying it would allow the government to promote its case before the defense has a chance to pick it apart.
“It’s enormously prejudicial to President Trump," Lauro said. “There are no special rules for the special counsel."
Trump lawyers contend Pence material voids the indictment
Part of the indictment deals with communications between Trump and Pence. The vice president served as president of the Senate as Congress counted Electoral College votes in the 2020 election, which Trump allegedly enlisted him to overturn. The Supreme Court ruled that arguments about Pence "present more difficult questions."
Lauro argued that the Supreme Court ruled that communications between Trump and Pence were presumptively part of official duties, which would shield Trump from any associated charges.
"The entire indictment is unlawful," Lauro said. "They’re going to lose that bet, one way or another," he said of prosecutors.
But Windom disgreed, saying the high court allowed prosecutors to rebut the presumed immunity.
“It’s not an automatic dismissal of the indictment," Windom said.
Hearing features humor amid serious debate
Despite the serious subject, participants in the hearing occasionally shared humorous asides about the contentious debate.
The case was on hold because of Trump's appeal from December until the Supreme Court returned the case to Chutkan earlier this month. Chutkan welcomed Lauro at the start of the hearing by saying he looked well rested, but said he "should enjoy it while it lasts."
Prosecutors and defense lawyers disagreed about how quickly written arguments could be filed in the case. After Windom said defense lawyers filed a 52-page brief nine days after Trump's conviction in his New York hush money case, Chutkan commended Trump lawyer Todd Blanche.
"Congratulations, Mr. Blanche," Chutkan said.
This article originally appeared on USA TODAY: How far can Trump stretch his immunity? We're about to find out