Much remained uncertain after Thursday's hearing on how to proceed with the January 6 federal case against Donald Trump following the Supreme Court ruling on immunityBut one thing seemed clear: there would be no trial anytime soon.
The parties and U.S. District Judge Tanya Chutkan agreed that, as the judge put it, “the question of immunity will once again hold up these proceedings.”
The judge's dire prediction is safe given the Supreme Court's Delphic opinion and the Justice Department's subsequent decision. alternative accusation in the case.
The new indictment, filed by special counsel Jack Smith last week, removes much of the evidence that the Supreme Court barred from being introduced because it relates to conduct that enjoys absolute immunity. In particular, it removes an entire chapter involving Trump’s effort to get the Justice Department to falsely tell Georgia officials that it had detected fraud in the state’s vote, which Joe Biden narrowly won. The superseding indictment also omits evidence related to Trump’s conversations with staff in the White House counsel’s office.
Smith’s team recast the indictment as a narrative about Trump as a candidate, a private citizen not cloaked in any official authority. But the government chose to preserve some crucial evidence of Trump’s interactions with his subordinates — namely, his brutal intimidation of Vice President Mike Pence in an effort to get him to block electoral votes for Biden on January 6, 2021. The special counsel must have concluded that the evidence was so important that he was willing to accept the risk and delay that would come with further Supreme Court review.
The justices’ opinion clearly deems the conversations between the president and vice president “presumptively immune.” Smith can overcome that presumption by showing that such evidence would not infringe, in the court’s words, “the authority and functions of the executive branch.”
What that means in practical terms is anyone’s guess. So too is the critical question of burden of proof: whether Smith must show the case will not interfere with executive authority by a preponderance of the evidence, for example, or beyond a reasonable doubt. The court doesn’t say, leaving those questions for Chutkan to answer, at high risk of reversal if he gets it wrong. Trump lawyer John Lauro’s sarcastic comment that the court’s instruction was “clear” drew laughter in the room.
The Justice Department is presumably relying on a hint dropped in Chief Justice John G. Roberts Jr.’s immunity opinion about whether interactions between Trump and Pence impinge on the “authority and functions of the executive branch.” Roberts highlighted Pence’s dual constitutional role as executive officer and president of the Senate. Pence presided over a joint session of Congress to certify the election on Jan. 6, 2021, acting in a legislative rather than executive capacity.
But the court’s insinuation fell short of a guarantee. The most damning conversations between Trump and Pence took place in the Oval Office before the congressional hearing. Smith will have to argue that examining those unpleasant encounters would not violate executive authority.
Even if Chutkan agrees, the issue will likely require a return trip to the U.S. Court of Appeals for the D.C. Circuit as well as the Supreme Court. Lauro, for his part, made clear that the Trump team will argue that the presentation of evidence of Pence-Trump conversations before the latest grand jury requires dismissal of the charges under the Supreme Court opinion.
Since Pence’s evidence is just the first of many headaches the justices bequeathed to Chutkan, the government argued that the district judge should decide all immunity questions first. That would mean just one more interruption in the appeals process rather than a series of trips to federal courts to decide immunity questions separately.
Lauro argued that Chutkan should first resolve basic objections to the superseding indictment, including a new defense argument that rehashes U.S. District Judge Aileen Cannon’s dismissal of the classified documents case. Chutkan responded that he did not find Cannon’s decision that the special counsel had been improperly appointed “particularly persuasive,” an understatement of the consensus that it was wildly off base.
Chutkan seemed unlikely to accept Trump’s invitation to try other arguments first, saying “immunity is the linchpin here.” He also rejected Lauro’s argument that the new indictment amounts to an entirely new case, saying “it’s not about more things, it’s about less.”
Lauro eventually acknowledged Trump's political motivations, arguing that the issue of immunity should not be considered at this “delicate moment,” i.e. before the election. “We are talking about the presidency of the United States,” Trump's lawyer protested.
Chutkan had a ready answer: “I’m not talking about the presidency. I’m talking about a four-count indictment.”
In an order issued later Thursday, the judge set deadlines for arguments on immunity and other issues until the end of October, largely rejecting defense efforts to further delay the case. That will push pretrial proceedings into the eve of the election.
Chutkan's frustration was evident when he ended the hearing by saying that “it would be an exercise in futility” to set a new trial date that would then be interrupted by further appeals.
The outcome of what was once the most important and likely attempt to bring Trump to justice is disheartening. Thanks to the nation’s highest court, a trial that many observers expected to unfold before the election is unlikely to take place until 2026 or later, if it takes place at all.
Harry Litman is the host of the show Podcast “Talking to the Feds” and the “Speaking of San Diego” Speaker series. @harrylitman
