WASHINGTON (CN) — The circumstances in Donald Trump’s election subversion case in Washington have drastically changed since the parties last met before a federal judge just blocks away from the U.S. Capitol, as made clear by the case’s first hearing of the year on Thursday.
The hearing before U.S. District Judge Tanya Chutkan revealed the monumental task she faces after the Supreme Court’s recent decision that the former president is at least presumptively immune from prosecution for official acts.
In its 6-3 ruling, the high court ordered Chutkan to conduct a test to define Trump’s accused conduct in as either official acts, official acts within the outer perimeter of presidential authority or unofficial acts.
The case has been on pause since December 2023, when the D.C Circuit Court of Appeals took up Trump’s immunity argument. It cannot go to trial before the November election and any decision by Chutkan, a Barack Obama appointee, will almost certainly be appealed to the high court.
While Thursday's proceedings opened cordially — Chutkan commented that John Lauro, Trump’s lead lawyer in Washington, looked well-rested; he responding that his life was “meaningless” without her — the parties’ disagreements on the cases next steps arose quickly.
Lauro, of the firm Lauro Singer, argued that special counsel Jack Smith’s near-identical superseding indictment should be dismissed outright on the grounds that the charges rely on Trump's communications with former Vice President Mike Pence. That's clearly official conduct, in his view.
The defense attorney cited the majority opinion by Chief Justice John Roberts, who suggested those communications strike at the core of a president’s duties, and basing charges on such evidence could interfere with and chill a future president’s actions.
And without Trump's communications with Pence, Lauro argued, “the entire indictment craters.”
As argued by Thomas Windom of the special counsel’s office, the Supreme Court’s ruling only required that, if Chutkan were to find those communications immune, prosecutors could remove any connected evidence or charges from their case and move forward to clear the bar of presumptive immunity.
Beyond the initial immunity question, Lauro also raised an argument that the indictment should be dismissed based on the assertion that Smith was wrongfully appointed — a strategy that led Trump-appointed U.S. District Judge Aileen Cannon to dismiss Trump’s classified documents case in South Florida.
Lauro pointed to Justice Clarence Thomas’ concurrence in the immunity case that suggested the special counsel violated the Constitution's appointments clause and thus his prosecutions against the former president are likely inappropriate.
Chutkan initially pushed back against allowing Lauro to file such a motion, noting that the deadline to file passed before the case was paused and that D.C. Circuit precedent has affirmed the special counsel’s constitutionality. (She did not find Cannon’s ruling "particularly persuasive.”) However, she ultimately greenlit the filing.
Lauro also made brief reference to the Supreme Court’s decision in Fischer v. United States, to narrow the Justice Department's staple charge in the Jan. 6 prosecutions, obstruction of an official proceeding, to only apply to explicit document destruction in relations to the Capitol riot.
Trump faces two charges, obstruction of an official proceeding and conspiracy to obstruct, that could be affected by the high court’s decision. His remaining two charges are conspiracy to defraud the United States and conspiracy against American’s rights to vote and have their vote be counted.
In his recently filed superseding indictment, Smith maintained the same four charges he brought against Trump in August 2023, but narrowed Trump’s accused conduct in light of the Supreme Court’s ruling. The most notable change was eliminating references to Trump’s Justice Department communications and an uncharged co-conspirator, who was publicly identified as former Justice Department official Jeffrey Clark.
Roberts determined that certain conduct in Smith’s original indictment, such as Trump’s communications with the Justice Department, was official conduct and therefore immune.
In between the November 2020 election and Jan. 6, 2021, Trump pitched Clark as a potential acting attorney general who would go along with his false election claims.
Smith also put a greater emphasis on actions Trump took as a political candidate rather than as president, such as his speech at the Ellipse on the morning of Jan. 6 — conduct that would fall in unofficial acts category.
The revised indictment suggests Smith believes he can convince Chutkan to find a large swath of Trump’s efforts to subvert the 2020 election and its certification as private, and therefore unofficial, to overcome the presumption of immunity.
In an order Thursday Chutkan outlined a fast-paced schedule for the parties to file their arguments on the immunity question and Trump's dismissal efforts. She ordered Smith file his opening immunity brief by Sept. 26; Trump to respond by Oct. 17; Smith to file a final reply by Oct. 26.
Chutkan set deadlines throughout October for Trump's arguments that the indictment should be narrowed under Fischer and that Smith was wrongfully appointed. The Fischer motion is due Oct. 3 and appointments clause motion is due Oct. 24.
During Thursday's proceedings, the judge acknowledged the looming election but shot back that the electoral process has no gravity on her courtroom, echoing her previous comments that Trump was a criminal defendant and nothing more in her courtroom.
While the election may not be in her explicit calculus, the deadlines almost all briefs and replies fall before the election on Nov. 5, with just Trump's final reply on his appointments motion due Nov. 7.
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