Will Donald Trump election subversion charges survive? Judge review starts Thursday

WASHINGTON – U.S. District Judge Tanya Chutkan begins grappling Thursday with which federal charges of trying to steal the 2020 election former president Donald Trump must still face after the Supreme Court ruled he is shielded from charges for official acts as president, when she will meet with lawyers from both sides in a Washington courtroom.

Part of the challenge for Chutkan is the two sides don't agree on how to argue the case. In a "joint" filing Friday, prosecutors and defense lawyers reported they "have differing views" on which issues to debate first and under what schedule.

The Supreme Court ruled in July that former presidents are immune from criminal charges for the powers that only presidents have, such as pardons and vetoes. The high court also presumptively shielded ? but without absolute immunity ? from charges for official acts such as directing the Justice Department to investigate sham claims of voter fraud.

But the court said Trump could be tried for unofficial or private acts. Justice Department special counsel Jack Smith secured a new indictment against Trump on Aug. 27 in light of the Supreme Court's ruling. Smith contends the indictment covers private rather than official activities because they were campaign-related, which he says includes urging the vice president and state officials to help overturn the election and organizing fraudulent slates of presidential electors.

"She now is the first judge in the history of this country to apply the Supreme Court’s decision on presidential immunity in criminal allegations," said Wayne Unger, assistant law professor at Quinnipiac University. “It’s going to be studied by historians and legal scholars. All eyes are on this."

No matter which way she rules, Chutkan's decision will be historic and either side could potentially appeal Chutkan's forthcoming ruling eventually to the Supreme Court.

Here’s what we know about the meeting:

Prosecutors, Trump lawyers disagree about how to debate immunity

In a joint filing Friday, prosecutors and defense lawyers revealed no agreement about the schedule for arguments in the case. Chutkan will have to resolve which arguments to hear first and set deadlines for them.

Prosecutors argued the immunity debate should come first because the Supreme Court has ruled repeatedly that immunity issues should be resolved “at the earliest stage.”

Smith’s team contends the Supreme Court’s immunity ruling “does not apply” to the revised indictment against Trump because his electioneering activity doesn’t qualify as official conduct. Prosecutors said they could file their immunity arguments “at any time the Court deems appropriate.”

Trump’s team took a different tack. They sought to debate first whether Smith was appointed and funded appropriately – issues that prompted U.S. District Judge Aileen Cannon to dismiss Trump’s charges of mishandling classified documents – with a hearing the first week of December.

By Dec. 13, Trump’s lawyers proposed to file arguments to dismiss the case based on immunity and a Supreme Court decision about obstruction. Under that scenario, the prosecution would reply by Jan. 3 and Chutkan could hold a hearing Jan. 27.

Preelection minitrial unlikely

Chutkan isn’t likely to make any decisions on immunity for a couple of months, according to legal experts. The meeting with lawyers for both sides Thursday aims to map out how the debate will be conducted, with deadlines for written arguments and the possibility of a hearing for her to ask questions.

The slate starts clean. Chutkan and the U.S. Circuit Court of Appeals in Washington each rejected Trump’s claim of immunity. Neither court studied which accusations might have been deemed official.

But the Supreme Court ruled Trump had broad immunity and sent the case back to Chutkan to decide which of his actions were shielded from charges as official responsibilities and which are vulnerable to charges as private acts.

“Not only did they give a sweeping grant of immunity to presidents, it also gave a tremendous amount of power in the courts' hands," said Robert McWhirter, a lawyer and constitutional law expert. "Now the courts – ultimately the Supreme Court – will decide the question of what is and isn’t an official act."

Despite speculation that Smith could seek a hearing to provide evidence like a minitrial, legal experts said Chutkan could make her decision from written arguments and perhaps a hearing where lawyers debate the issues.

“I don’t think that it’s necessary to have an evidentiary hearing," said Jonathan Entin, law professor emeritus at Case Western Reserve University. "The Supreme Court suggested that the question of immunity is a legal question, not a factual one."

Trump lawyers contend immunity protects presidents from 'blackmail and extortion'

Trump called the new indictment "ridiculous" in a post on Truth Social and argued it “has all the problems of the old indictment, and should be dismissed IMMEDIATELY.”

Cannon dismissed charges in Florida in July about hoarding classified documents after leaving the White House, but she ruled Smith was appointed illegitimately rather than that Trump was immune. Smith has asked the appeals court to reinstate those charges.

Trump’s lawyers argue he is immune to criminal charges for almost anything he did as president.

"If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed," Trump lawyer John Sauer told the Supreme Court. "Every current president will face de facto blackmail and extortion by his political rivals while he is still in office."

But that position led to some uncomfortable implications. At the U.S. Circuit Court of Appeals in Washington, Sauer said the president would be shielded from charges even if he ordered the military to kill a political rival – unless he was first impeached in the House and convicted in the Senate.

Justice Sonia Sotomayor voiced concern in her dissent to the immunity decision that the military assassination, organizing a military coup to remain in power or taking a bribe in exchange for a pardon would all be shielded from charges. “In every use of official power, the President is now a king above the law,” she wrote.

This case, however, hinges on a mix of official and unofficial acts. Chief Justice John Roberts, who wrote the majority opinion, said Sotomayor was overstating how much immunity shielded former presidents. Robert wrote that lower courts will determine “whether and to what extent Trump’s remaining alleged conduct is entitled to immunity.”

Smith contends Trump actions to overturn election fell 'well beyond' official duties

Smith argued to the Supreme Court that even if justices found Trump immune for official acts, the indictment focuses on his private goal of remaining in office.

Smith summarized private actions alleging Trump:

• Had private attorney Rudy Giuliani, who “was willing to spread knowingly false claims” of election fraud, spearhead challenges to election results.

• Conspired with another private attorney, John Eastman, to file a “verification” signed by Trump that contained false allegations to support a lawsuit challenging election results.

• Directed an effort by two private lawyers and a political consultant – Eastman, Kenneth Chesebro and Boris Epshteyn – to submit fraudulent slates of presidential electors.

“That alleged conduct falls well outside of any conception of presidential official acts,” Smith wrote in a court filing.

'That's private': Trump lawyer Sauer tells Supreme Court

A key point for Chutkan to review came during the Supreme Court hearing in April, when Trump lawyer Sauer acknowledged several allegations in the indictment reflected private conduct.

Sauer told the court “a bunch of the acts” were “clearly official” and “has to be expunged from the indictment before the case can go forward.”

But Justice Amy Coney Barrett ran through a list of specific allegations in the indictment and asked if they were public or private.

“That sounds private to me,” Sauer said of the Giuliani accusation.

“That also sounds private,” Sauer said of the Eastman accusation.

“That’s private,” Sauer said of the fraudulent electors.

But Entin, the law professor emeritus, said he didn't expect Chutkan to accept the concession during the oral argument at the high court without more discussion.

“I don’t think he’s given away the store here," Entin said.

Who is Chutkan?

Chutkan joined the District Court a decade ago, after she was appointed by President Barack Obama. She has received death threats for presiding over the Trump case.

Chutkan has rejected requests from Trump to dismiss the case, in contrast to Cannon in Florida, who was appointed by Trump and who threw out charges that Trump mishandled classified documents after leaving the White House.

Veteran federal court watchers describe Chutkan, a former public defender who was born in Kingston, Jamaica, as a consummate professional who is likely to do what is within her power to protect the former president's rights as a criminal defendant.

Chutkan has ruled against Trump in a previous case, denying his 2021 invocation of executive privilege to block the release of government documents to the House committee investigating the Capitol attack on Jan. 6, 2021.

"Presidents are not kings and Plaintiff is not president," she wrote in that case.

What happened to allegations involving the Justice Department?

The updated indictment dropped references to Trump’s pressure campaign with Jeffrey Clark, who was then an assistant attorney general, to force Justice Department officials to investigate false claims of widespread election fraud.

The Supreme Court ruling specifically said Trump was immune to charges of communicating with the department because it was part of the executive branch, even if he wanted to pursue baseless investigations.

"The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials," Roberts wrote for the high court.

Prosecutors agreed the conduct directing staffers to chase bogus claims was official, which they argued made it criminal.

“We do agree that the Department of Justice allegations were a use of the president’s official power,” Michael Dreeben, a counselor to Smith, told the justices. “In many ways, we think that aggravates the nature of this offense.”

This article originally appeared on USA TODAY: Trump election charges in limbo after Supreme Court immunity ruling