Moving briskly to re-open the criminal prosecution of Donald Trump for his attempt to overturn his defeat in the 2020 election, a federal trial judge in Washington took steps on Saturday to move the case forward after a months-long delay.
U.S. District Judge Tanya S. Chutkan ordered federal prosecutors and Trump’s defense lawyers to meet with her in two weeks to work out a new schedule for the case. The most significant issue at that courtroom conference will be how to sort out whether a trial can even be held, in the wake of the Supreme Court’s ruling last month creating a broad new form of legal immunity for Presidents accused of crime.
Since a federal grand jury one year ago charged Trump with four crimes for the events surrounding the January 6, 2021, violent incident at the Capitol, Trump has been attempting to end the case by claiming absolute immunity. He has been making the same claim in the three other criminal prosecutions he is facing. (The other three are temporarily on hold, for various legal reasons.)
While Judge Chutkan rejected the immunity plea in the January 6 case in December, and while a federal appeals court also rejected it in February, the Supreme Court stepped in and revived Trump’s claim – at least temporarily – as part of a sweeping constitutional ruling favoring presidential immunity.
The Supreme Court put its decision into effect formally on Friday, setting off a quick sequence of activity in lower courts. The case returned first to the appeals court, which took only 20 minutes to return the case to Judge Chutkan. Then, overnight, Chutkan quickly re-started the case with a new order, only one-page long but covering several issues.
Here is what the judge ordered:
- She set up the planning conference for the morning of August 16. She specified that Trump did not have to appear personally for that session. She told the lawyers on both sides to try to agree on next steps, but did not compel them to do so. She will have the final word on procedure.
- She rejected a plea by Trump’s lawyers to dismiss the case (a motion pending since last October) on the claim that Special Prosecutor Jack Smith had abused the legal system by the way he spelled out the criminal charges in the indictment. She said that the same motion could be renewed later, after immunity issues have been settled.
- She said she would set new deadlines, after the August 16 conference, for several items, including a broad request by prosecutors to bar Trump’s lawyers during an actual trial from turning it into a political show to try to influence the jury against prosecutors.
The task before the judge and the two sides on August 16 will be to devise a procedure for sorting out which parts of the evidence of crime would be barred from trial, because it involved “official” actions while he was President for which he has immunity, and which parts of the evidence will be allowed to be used as trial because not covered by immunity within the meaning of the Supreme Court’s new ruling.
That will not be an easy task, however it is planned: the 45 pages of evidence that prosecutors included in the indictment are filled with events and actions that may be difficult to sort out as official, or not. Many of these accused actions occurred while he was still serving as President – a term that ended two weeks after the uprising at the Capitol.
Under the Supreme Court decision, the immunity dispute must be decided before any trial could begin. When Trump earlier pursued an appeal when his immunity claim had been rejected by Judge Chutkan, everything in her court shut down, and the case remained inactive until Friday.
If the sorting process on immunity leaves any of the evidence available for trial, Trump almost certainly would appeal anew; his team has claimed that everything he did that is being used against him in the charges was within the scope of presidential duties.
As of now, the prospect is that this pre-trial maneuvering in Judge Chutkan’s court would prevent the case from going to trial at any point before the November 5 presidential election. Once the immunity issue is settled, there would still be several weeks of trial preparations before a jury could be assembled for an actual trial. It has been estimated that a trial would take about four months.
If Trump were to be elected in November, the fate of this criminal case would become uncertain. As President, he would be in position to shape how the Justice Department would deal with continuing or ending the January 6 case altogether.
In one part of the Supreme Court decision that did settle, in a final way, Trump’s claim of immunity: it ruled that any dealings he had with Justice Department officials about investigating election fraud in 2020 were official actions that were absolutely protected from questioning by prosecutors, courts or Congress. That evidence might be beyond salvaging at this point.
In the course of the decision, the Court also indicated that the presidential power to issue pardons was beyond questioning by Congress and by the courts, so Trump presumably could pardon himself if he were to be convicted in any case, including the January 6 prosecution.
