On the docket: Trump’s Washington DC criminal case
Donald Trump might have landed a handful of legal victories lately, but his Washington DC federal election subversion case is back on track, meaning he might finally have to answer for alleged election interference in a court of law.
Special counsel Jack Smith’s case against Trump resumed on 2 August after a months-long delay, with proceedings formally transferred from supreme court jurisdiction back to US district judge Tanya Chutkan. One day later, Chuktan rebuffed Trump’s latest effort to toss the case.
The development came about one month after the supreme court ruled that Trump has broad immunity over official acts – things he did in his capacity as president – gutting an allegation that Trump’s efforts to enlist justice department officials in an election subversion scheme were illegal. The return to Chutkan’s court took place just last week because of a 25-day waiting period for any rehearing requests, as well as one other week for the supreme court judgement to be formally sent down, the Guardian’s Hugo Lowell explains.
While this supreme court decision was definitely a blow to Smith’s case, the 6-3 ruling – which, no surprise, fell along ideological lines – outlined categories for criminal liabilities for presidents. Yes, there are the core presidential acts that hold absolute immunity, but there are also official acts that hold presumptive immunity, as well as unofficial acts without any immunity.
Trump is going to have an easier time given the supreme court decision, but prosecutors still have something to work with and Chutkan can now decide how things proceed within this new legal landscape.
On 3 August, Chutkan issued her first ruling since the immunity decision, refusing Trump’s efforts to dismiss this case based on his accusations that Joe Biden pushed prosecutors to target him – purported “elective and vindictive prosecutorial grounds” – and called the legal arguments an “improper reframing”.
Trump’s legal team insisted that Smith’s indictment was based on prosecutors’ theory that it is illegal to dispute the results of an election and work with people to pitch an alternative outcome. Trump also claimed he was prosecuted for speaking out while others were not. But, Chutkan said in her ruling, “that description mischaracterizes his alleged conduct.”
Trump is charged with knowingly making bogus statements in order to promote criminal conspiracies and with obstruction of the election certification processes. Smith’s indictment does not charge Trump for simply disputing the election outcome in public, her ruling noted.
Chutkan pointed to the indictment, which stated that Trump has a right, just like every other American, to say what he wants publicly about the election, and even falsely claim that the election was rigged. Trump, as Chutkan noted, also had the right to formally challenge the results of the election but “through lawful and appropriate means”.
With Trump’s case kicked back to district court and his failed dismissal bid, Chutkan set several deadlines that once again got the ball rolling in this case. She gave both sides until 9 August to confer and file a status report that proposes a schedule for pre-trial proceedings moving forward and suggested they agree to terms as much as possible. If there are disagreements (which, given Trump’s legal track record, are all but certain) both sides can make their arguments in paperwork. She also scheduled a 16 August status conference in the case.
Sidebar: Legal sideshows ending in prosecutors’ favour
We all know that Trump likes to talk – so much so he repeatedly violated a gag order during his Manhattan hush-money trial. And Trump repeatedly fought judge Juan Merchan’s order that barred him from talking about prosecutors, court staffers and their family members, as well as witnesses and jurors in the case.
After the trial, Merchan decided that Trump could talk about witnesses and jurors but kept the provision of this order that prohibited him from discussing prosecutors and court staff, deciding they “must continue to perform their lawful duties free from threats, intimidation, harassment and harm” until sentencing, per court documents.
Trump also fought this decision, claiming that the end of his trial meant circumstances had changed, but a state appeals court ruled against him on 1 August, saying that because the criminal proceeding is still going on, Merchan “did not act in excess of jurisdiction by maintaining the narrowly tailored protections in paragraph of the restraining order”.
Manhattan district attorney Alvin Bragg’s staff continued to receive threats after the verdict came down, the appeals panel said.
Meanwhile, the US supreme court rebuffed Missouri’s effort to stop Trump’s sentencing and lift the gag order. The state’s Republican attorney general, Andrew Bailey, tried to file a Hail Mary lawsuit in July contending that Merchan’s gag order violated Missouri voters’ first amendment right to hear the GOP presidential candidate speak. New York state attorney general Letitia James had fought Bailey’s effort, writing: “Allowing Missouri to file this suit for such relief against New York would permit an extraordinary and dangerous end-run around former President Trump’s ongoing state court proceedings.”
The supreme court didn’t elaborate on its decision, simply saying: “Missouri’s motion for leave to file a bill of complaint is denied, and its motion for preliminary relief or a stay is dismissed as moot.” Conservative justices Clarence Thomas and Samuel Alito said they would have let the lawsuit proceed.
What’s next?
Trump is making another long-shot argument: pushing for Merchan’s recusal from his criminal case. Merchan has already said no to two of Trump’s requests to remove himself from the case, per AP. Trump’s lawyers are now making another bid, claiming that Merchan’s daughter did work for Kamala Harris’s 2020 presidential bid, Reuters reports.
On Monday, Merchan said that he would issue a decision on Trump’s latest recusal request the week of 11 August. Merchan also said that he would issue his immunity decision on 16 September “if still necessary”.
It’s very important to keep in mind: we shouldn’t treat language like “if still necessary” as tea leaves indicative of Merchan’s legal leanings. Obviously, if Merchan does recuse himself, then an immunity decision wouldn’t be necessary because he wouldn’t be in a position to make a ruling. But we don’t know how the cards will fall until they do.
As far as Trump’s sentencing on 18 September at 10am goes, nothing has changed yet. “We will proceed on that date and time to the imposition of sentence or other proceedings as appropriate,” Merchan said.
