(WASHINGTON) — After months of delays, a federal judge in Washington, D.C., is scheduled to hold a hearing Thursday that could determine the trajectory of former President Donald Trump’s election interference case.
U.S. District Judge Tanya Chutkan is expected to consider competing proposals for how the case should proceed following the Supreme Court’s recent ruling granting broad immunity for official acts taken by presidents.
Thursday’s hearing will mark the first time lawyers for Trump and special counsel Jack Smith set foot in Chutkan’s courtroom since last fall. Trump’s lawyers successfully delayed the case — which was originally set to go to trial in March — by appealing their claim of presidential immunity to the Supreme Court, whose ruling dramatically altered the legal landscape for the former president.
In a superseding indictment handed up last week, Smith attempted to revise his case against the former president by trimming out any allegations related to Trump’s official duties — which would be exempt from prosecution following the Supreme Court’s ruling — while keeping the same four criminal charges that Trump faced in his original indictment.
“The Defendant had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election,” the new indictment said.
Trump, who is not expected to appear at Thursday’s hearing in person, has directed his attorneys to plead not guilty on his behalf.
In addition to making minor changes to clarify Trump’s actions were undertaken in a private capacity, prosecutors removed the once-central allegation that Trump attempted to use the Department of Justice to support his false claims about election fraud. The indictment also removed details about Trump’s conduct while rioters stormed the Capitol on Jan. 6 — including refusing to call off the rioters — and some examples of advisers directly correcting Trump about his false claims of election fraud.
In a joint filing last week, prosecutors told Judge Chutkan that the revisions to the indictment ensured the Supreme Court’s protections for official acts would not apply to the new case, which distinguishes Trump’s “private electioneering activity” from “official action.”
Defense attorneys disagreed, arguing in the same filing that prosecutors wrongly included allegations that are subject to presidential immunity and that they misused a federal obstruction statute.
“We believe, and expect to demonstrate, that this case must end as a matter of law,” defense attorneys wrote.
While the Supreme Court’s decision broadly expanded the scope of presidential immunity — conferring absolute immunity for core presidential powers and a presumption of immunity for all other official acts — the court declined to fully apply its decision to the facts alleged in Trump’s indictment, and instead tasked Chutkan with conducting a “fact-specific analysis” to determine whether the former president’s conduct was official or unofficial.
Prosecutors and defense attorneys disagreed about the best way for Chutkan to proceed following the Supreme Court’s decision, with Smith urging Chutkan to address the immunity question “first and foremost” through a series of paper briefings, according to Friday’s joint filing.
Defense attorneys, in contrast, urged Chutkan to first consider whether the case should be thrown out on the grounds that Smith was illegally appointed — the same argument used by a federal judge in Florida to dismiss the former president’s classified documents case — before taking up the question of presidential immunity in a schedule that could stretch the proceedings into the new year.
Thursday’s hearing is likely to offer the first indication of how Chutkan plans to address the long-delayed case ahead of the November election and apply the Supreme Court’s landmark ruling.
Addressing reporters Wednesday on the topic of election interference, Attorney General Merrick Garland defended Smith’s decision to bring a superseding indictment two months ahead of the November election, saying that he is “quite confident” that Smith observed DOJ policies related to 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.”
Trump, meanwhile, has continued to defend his efforts to overturn the election results.
“Whoever heard you get indicted for interfering with a presidential election where you have every right to do it?” Trump said in a Fox News interview that aired this past Sunday.
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