What to watch for at the first post-SCOTUS hearing in the Trump federal election subversion case
Washington (CNN) — Lawyers for Donald Trump and special counsel Jack Smith will be before Judge Tanya Chutkan on Thursday for the first hearing in the federal election subversion case since prosecutors revised their indictment to try to bring their case in line with a Supreme Court ruling extending to Trump some presidential immunity in the prosecution.
Chutkan will consider where the case goes from here, as a pre-election trial is now firmly out of reach. Smith’s and Trump’s teams have differing visions for what should come next, and they laid out their dueling approaches in court filings late Friday night.
Now the trial judge will have the opportunity to press them on those proposals. Thursday’s hearing could give a view into how Chutkan – an Obama appointee who was eager to get the prosecution to trial before the Supreme Court intervened – sees the case now that it is back in her court. She will ultimately decide what happens in the case before Americans cast their ballots, with Trump again topping the GOP presidential ticket, and how far the case moves along before Inauguration Day, when Trump, if elected, could bring about the end of the case.
Trump has claimed the Justice Department engaged in election interference by filing the newly revised indictment, an allegation Attorney General Merrick Garland rejected Wednesday, telling reporters that he was “confident” that Smith abided by DOJ policies regarding the sensitivities around major public activity near elections.
“I stand by the actions of the special counsel,” Garland said. “The superseding indictment is an effort to respond to the direct instructions of the Supreme Court as to how to effectuate a new indictment in an ongoing case.”
The hearing starts at 10 a.m. ET in Washington, DC’s federal courthouse. Cameras are not allowed into Chutkan’s courtroom, but CNN will be providing live updates as it unfolds. Here’s what to watch for:
How quickly will Chutkan want to move forward?
Smith and Trump both offered their perspectives of the case’s schedule on Friday: Smith did not offer firm dates for the next phase of the case, while Trump recommended a schedule for certain pre-trial disputes that would carry through until at least the beginning of 2025.
Their staunch disagreements set up what could be a fierce debate Thursday in front of the judge, who will ultimately decide how the case will move forward.
Chutkan hasn’t yet tipped her hand as to whether she sees any detailed legal fights playing out before November’s presidential election. When she scheduled Thursday’s hearing last month, Chutkan only instructed the parties to get together to see whether they could agree on scheduling matters, and to highlight where they disagree.
In the past, the judge has shown a desire to push the case forward as quickly as possible. Chutkan has ruled on issues several times without holding in-person hearings, and before the case was upended by a lengthy appeals process, repeatedly refused to push back deadlines or the now-defunct March trial date.
In those disputes, however, prosecutors fiercely argued to keep the case on a tight schedule, whereas now they appear to be leaving all scheduling matters up to the judge. That switch could be because prosecutors don’t want to be perceived as explicitly pushing for dramatic public flare-ups in the case during the weeks before the election. Leaving those deadline decisions entirely up to Chutkan would take the onus off of the Justice Department.
What preparations has Smith done to move quickly?
With the filing last week of a so-called “superseding indictment,” Smith signaled that, though he spent several months without publicly indicating how they would handle the election interference prosecution going forward, his team has been quietly re-assembling their case.
Those preparations would allow prosecutors to propel the case forward – and quickly – should the judge decide to do so.
In the few weeks since the case returned to the district court’s jurisdiction, prosecutors rewrote the indictment against Trump entirely so that it would, in their eyes, conform with the high court’s mandate on presidential immunity.
The Supreme Court said in July that Trump had absolute immunity when it came to the executive branch’s “core” functions and said that his election-related dealings with the Justice Department fit in that category, so Smith removed the DOJ-related allegations entirely for that case. For other official presidential acts, such as Trump’s interactions with his vice president, Mike Pence, the immunity is “presumed” but could be overcome if prosecutors could prove that criminalizing that conduct wouldn’t interfere with a president performing his “constitutional functions,” the Supreme Court said. So, Smith has made significant edits to other parts of his indictment to distinguish Trump’s post-election actions – including his pressure campaign on Pence – from the duties of a president, while removing some interactions Trump had with his official advisers.
And in their scheduling proposal to Chutkan on Friday, the special counsel prosecutors indicated that they have been prepping other filings too, particularly over issues likely to arise in the continued and arduous fight over what evidence can still be presented in the case. “The Government is prepared to file its opening immunity brief promptly at any time the Court deems appropriate,” prosecutors wrote of those briefings.
How does Chutkan want to resolve the immunity issue?
Trump and Smith have different procedural ideas for how the battle over immunity that the Supreme Court ruling teed up should be tackled. On Thursday, Chutkan could indicate that she is choosing one of those approaches over the other, or she might press to find some middle ground way that melds their opposing proposals.
Smith, in Friday’s court filings, suggested that the issue could be decided just with legal briefings and said that his office was ready to file an opening briefing explaining how the superseding indictment comports with the Supreme Court’s decision.
Trump disagreed with that process in Friday’s filings. Instead, his lawyers think Trump is entitled to another round of immunity-related discovery from the government before the judge considers whether the revised case comports with the Supreme Court’s ruling. Trump argued the court should reserve time on its schedule to hash out any disputes that would arise if prosecutors refused to turn over records Trump is seeking. And Trump thinks he should be able to file the first brief on the merits of the immunity issues instead of the special counsel, with a motion to dismiss that would seek to toss the entire superseding indictment.
But before all that, Trump says that the court should decide a challenge he is planning to file alleging that Smith was unconstitutionally appointed and that his office was unlawfully funded – a similar motion to that which led to the dismissal of his federal case in Florida.
Another process-related question Chutkan may weigh in on is whether she will deal with non-immunity issues while she’s considering the immunity question, or if each dispute will need to be dealt with separately.
Will Chutkan weigh in on Trump’s new plans to attack the case?
In addition to the immunity issue, Trump previewed in Friday’s filing what will be several other possible efforts he launches to attack Smith’s case. At Thursday’s hearing, Chutkan could lay out a process for dealing with those potential requests for the case’s dismissal, while signaling how seriously she views them.
Trump will try to replicate the successful challenge he brought to Smith’s appointment in the Florida case, which led to the judge there dismissing the classified documents prosecution (that ruling is up on appeal). Trump also plans a separate attack on the election subversion case that will allege that the grand jury that handed up the new indictment was exposed to evidence covered by the Supreme Court’s immunity ruling, requiring the case’s dismissal.
Trump’s lawyers are additionally considering a challenge zeroing in on the central role Trump’s conduct toward Pence continues to play in Smith’s case.
Another challenge they might bring would argue Smith’s case is flawed because it brings an obstruction charge that was undermined by a separate Supreme Court ruling this term, in which the court limited the use of the obstruction charge in Capitol rioter cases.
“Fully considering, researching, briefing, and resolving each of these potential motions will take considerable time and resources,” Trump’s attorneys said in the Friday filing.
CNN’s Holmes Lybrand contributed to this report.
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