Donald Trump’s criminal prosecution over his efforts to overturn the 2020 election is expected to be delayed by another month after special counsel prosecutors said they had not finished assessing how the US supreme court’s immunity decision would narrow their case.
On Thursday, the prosecutors on special counsel Jack Smith’s team told Tanya Chutkan, the US district judge presiding over the case, that they needed her to delay until 30 August a deadline to submit a possible schedule for how to proceed with a complicated fact-finding mission ordered by the court.
“The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v United States, including through consultation with other Department of Justice components,” prosecutors wrote in a two-page court filing.
“The Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision. The Government therefore respectfully requests additional time to provide the Court with an informed proposal.”
The supreme court ruled last month that former presidents are entitled to some degree of immunity from criminal prosecution, marking a victory for Trump.
Precisely what prosecutors are now stuck on remains unclear, although the ruling struck some of the charges against Trump and is expected to see Chutkan needing to pare back the indictment further.
Trump is accused of overseeing a sprawling effort to subvert the results of the 2020 presidential election, including two counts of conspiring to obstruct the certification of the election results, conspiring to defraud the government, and conspiring to disenfranchise voters.
The alleged illegal conduct includes Trump pressing justice department officials to open sham investigations, Trump obstructing Congress from certifying the election, including by trying to co-opt his vice-president, Trump helping prompt the Capitol attack, and Trump’s plot to recruit fake electors.
The supreme court decided that criminal accountability for presidents has three categories: core presidential functions that carry absolute immunity, official acts of the presidency that carry presumptive immunity, and unofficial acts that carry no immunity.
The ruling meant that the charges related to core executive functions will be thrown out, and for Chutkan to determine through a fact-finding exercise if any other charges that might come under official acts must be expunged.
Whether Chutkan will do the fact-finding on legal arguments or legal briefs, or will consider evidence perhaps given by witnesses, was supposed to become clearer after Trump and the special counsel jointly submitted the now-delayed scheduling brief.
Trump’s lawyers are expected to ask for few or no witnesses, the Guardian has previously reported. And in a statement on Truth Social, Trump called anew for the case to be tossed: “It is clear that the supreme court’s historic decision on immunity demands and requires a complete and total dismissal.”
The deadline for the scheduling brief was the first activity in the case since December, when it was frozen after Trump asked the US court of appeals for the DC circuit and then the supreme court to consider his argument that he had absolute immunity from criminal prosecution.
The supreme court issued its immunity ruling on 1 July, but the case only returned to Chutkan’s jurisdiction last week because of the court’s 25-day waiting period for any rehearing requests, and an additional week for the judgment to be formally sent down to the trial judge.
Trump has already been enormously successful in delaying his criminal cases, a strategy he adopted in the hope that winning the 2024 election would enable him to appoint a loyalist as attorney general who he could direct to drop the charges.
It is all but impossible now for the special counsel to bring the case to trial before election day, given Trump can make interim appeals for any decisions that Chutkan makes about the impact of the immunity decision.
