A federal judge on Thursday said she would not consider the upcoming election as she sets a schedule for the criminal prosecution in Washington against Donald Trump, an approach that will allow prosecutors to make public more evidence related to his efforts to overturn the 2020 election.
Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia, at a status conference on the case, pushed back on arguments from Trump’s attorneys that much of the briefing in the case should be delayed until after the Nov. 5 election.
“The electoral process, and the timing of the election, and what needs to happen before or after an election, are not relevant here,” Chutkan said. “This court is not concerned with an election schedule.”
Chutkan set Thursday’s hearing following the Supreme Court decision in July that gave presidents “absolute immunity” around the core of their presidential powers and possible immunity outside of that. The justices sent the case back to the district court for further proceedings.
Special counsel John L. “Jack” Smith has since filed a slimmed-down indictment of Trump that excluded a portion of the allegations that the Supreme Court ruled could not be charged. Trump’s legal team has argued those changes were not enough and the remaining allegations should be considered immune as well.
Chutkan now must iron out which allegations prosecutors can pursue, which might be off limits, and how to handle other outstanding issues in the case.
In an order filed after the hearing Thursday, Chutkan said the government must file its brief on presidential immunity, which prosecutors said could include evidence outside the indictment, on Sept. 26. Trump’s team is set to respond in October and make its own arguments to dismiss the indictment, including challenging the legality of Smith’s appointment.
The order did not set a new trial date, and during Thursday’s hearing Chutkan said it would be an “exercise in futility” to set a trial date because of likely appeals of her rulings.
At several points during Thursday’s hearing, Trump attorney John Lauro told the judge that the case comes at a “sensitive time” in the country’s history, which prompted a response from Chutkan.
“It strikes me that what you are trying to do is affect the presentation of evidence in this case so as not to impact an election,” Chutkan told him. “That is not something I’m going to consider.”
A hearing on the immunity issues ahead of the November election could allow Smith’s team to present more of its evidence against Trump.
Prosecutor Thomas Windom urged Chutkan to use the new indictment to handle all questions around immunity, including whether that covered Trump’s communications with then-Vice President Mike Pence or the former president’s outreach to private citizens.
The new indictment focused more on Trump’s public statements, efforts to coordinate false slates of electors from states he lost and pressure on Pence to discard votes of states while presiding over the counting of Electoral College votes on Jan. 6, 2021.
Smith originally charged Trump in 2023 in a four-count indictment, which included charges like conspiracy to defraud the United States and obstruction of an official proceeding. Trump on Thursday waived his right to appear and entered a not guilty plea to the new indictment through his attorneys.
Windom also argued Chutkan to consider Trump’s other arguments against the indictment at the same time.
Lauro urged Chutkan to decide about Trump’s communications with Pence before anything else. Lauro argued that the Supreme Court made clear that the grand jury should not hear evidence that Trump is immune from and that had “infected” the entire indictment.
“They relied so heavily on the vice-presidential conversations that it tanks the entire indictment,” Lauro said.
Lauro also argued that Trump should be able to seek to dismiss the case on the argument that Smith’s appointment was unconstitutional, even though he chose not to do so more than a year ago.
Lauro pointed to Justice Clarence Thomas’ concurrence in the Trump case, which criticized the legality of Smith’s appointment, as well as a ruling on the issue that dismissed Smith’s case against Trump in Florida over possession of classified documents.
Chutkan said she may allow that argument but pointed out that there is already a court ruling in Washington in favor of the special counsel’s legality.
“There is binding D.C Circuit precedent on this issue and you have dicta in a Supreme Court concurrence written by Justice Thomas and an opinion written by a judge in another circuit that this court doesn’t find particularly persuasive,” Chutkan said.
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