Trump team, special counsel return to court as 2020 election case resumes

Washington — Lawyers for former President Donald Trump and special counsel Jack Smith returned to federal court in Washington on Thursday for the first time since U.S. District Judge Tanya Chutkan regained control of the 2020 election-related case following the Supreme Court’s landmark ruling on presidential immunity. 
The attorneys sparred over their proposed paths for how pretrial proceedings should move forward in the wake of the July decision, which offered Trump and all former presidents protection from federal prosecution for “official acts.”
Trump did not attend Thursday’s hearing and waived his right to appear. The former president was charged in a superseding indictment with the same four charges he initially faced. His lawyer John Lauro reaffirmed Trump’s not guilty plea in a brief arraignment on the new indictment.
Chutkan did not finalize a schedule in court but said she would issue one later in the day. She said discussing a date for an eventual trial would be an “exercise in futility” at this point.
Before the hearing, the judge asked both sides to present their arguments for how the case should proceed. In a court filing last week, Smith left the exact timeline up to Chutkan and indicated the court should promptly apply the high court’s immunity ruling and make decisions accordingly. The special counsel has also proposed briefing on the immunity issue take place alongside other motions and issues raised by Trump.
Thomas Windom, a prosecutor on Smith’s team, told Chutkan in court that moving forward as they proposed would “set the stage so that all parties and the court know the issues that the court needs to consider.”
He also revealed that prosecutors intend to file a description of “pled and un-pled facts” tied to the new indictment. Should Chutkan agree with their schedule, Smith’s team intends to lay out the facts both “inside and outside the indictment” and would include exhibits in the form of grand jury transcripts and interview transcripts, Windom said. 
The former president’s legal team, meanwhile, urged Chutkan to give the parties more time and proposed a schedule that would extend pretrial proceedings in the case into the spring or fall of 2025, about two years after the charges were first filed and well after the November presidential election.
Trump’s lawyers have argued the indictment should be tossed out on the grounds that Smith’s appointment as special counsel and funding are unconstitutional. A federal district judge in South Florida overseeing a second federal prosecution involving Trump tossed out the case brought against him there on the grounds that Smith was unconstitutionally appointed. The special counsel has appealed that decision.
But the federal appeals court in Washington, D.C., upheld a special counsel appointment in 2019, which Chutkan said is binding precedent. The judge also said she does not find the South Florida judge’s opinion regarding Smith to be “particularly persuasive.”
Trump’s legal team continues to argue that the case should be dismissed based on presidential immunity. In addition, they may seek to have two charges dismissed based on the Supreme Court’s decision in June limiting the scope of a federal obstruction charge, the former president’s legal team said in their filing.
John Lauro, a lawyer for Trump, told Chutkan that there is an “illegitimate prosecutor” and an “illegitimate indictment.” He pushed back on the special counsel’s proposed way forward, saying in court that he “can’t imagine a more unfair protocol for proceeding on these weighty issues.”
“There are no special rules for the special counsel,” he said.
Lawyers for Trump and the special counsel last appeared before Chutkan for a hearing in October, and proceedings in the case had been paused since December as the former president appealed her decision denying his request to dismiss the charges on immunity grounds.
The U.S. Court of Appeals for the District of Columbia Circuit also rejected Trump’s claims that presidential immunity shielded him from criminal prosecution, though the Supreme Court eventually tossed out that decision and ordered additional proceedings consistent with its opinion.
The high court’s conservative majority ruled in July that presidents and former presidents are immune from criminal prosecution for “official acts” they take during their presidency. Some of the conduct alleged in Smith’s original indictment fell squarely under that umbrella, Chief Justice John Roberts wrote in the majority’s opinion. For other allegations, the court left it up to Chutkan to decide whether Trump was acting in his capacity as the president or as a private candidate for office.
Last week, Smith unsealed a superseding indictment against Trump removing the conduct that Roberts said was covered by presidential immunity. The former president still faces the same four federal counts — including conspiracy to defraud the U.S. — in a charging document that describes an alleged plot to subvert the results of the 2020 presidential election.
Trump pleaded not guilty to the original 2023 indictment and has denied all wrongdoing.
The way forward in the case remains uncertain. Trump’s team revealed in a court filing last week that they intend to file additional motions to dismiss the new indictment based on claims that the former president remains immune from prosecution on portions of the conduct included in Smith’s latest indictment, including social media posts, public statements, communications with state officials and interactions with former Vice President Mike Pence. 
Lauro and Chutkan sparred over whether Trump’s discussions with Pence — which centered around a legal strategy under which the vice president would unilaterally toss out state electoral votes during a joint session of Congress on Jan. 6, 2021 — were considered official acts.
Trump’s attorney argued that those communications should be covered by immunity, but Chutkan said that was up to her to decide.
“They have not decided that,” she said of the Supreme Court. “They’ve sent it back to me to figure that one out.”
The judge reiterated that those conversations may be subject to presumptive immunity, a lesser form of protection that can be rebutted by federal prosecutors. She said she would decide whether they are outside of Trump’s official duties.
But Lauro said if the conduct involving Trump and Pence is shielded, then the new indictment is “improper and illegitimate.”
Notably, Chutkan bristled at Lauro’s reference to the upcoming presidential election. 
“The electoral process … is not relevant here,” she said after pushing back in her chair. “This court is not concerned with the electoral schedule.” 
Chutkan continued: “I am definitely not getting drawn into an election dispute.”
While Lauro repeatedly warned that the court is dealing with “weighty” and “grave and important issues,” Chutkan chastised him for subtly invoking the election. Trump is the Republican presidential nominee and seeking a second term in the White House.
“The subtext of your argument here … it strikes me that what you’re trying to do is affect the presentation of evidence in this case so as not to impinge on an election. I am not considering it,” she said of the upcoming presidential contest.
Lauro also accused the special counsel of a “rush to judgment” in the case involving Trump, calling it “unseemly.”
Chutkan, though, noted it has been more than a year since Trump was initially charged and acknowledged that though proceedings in the case have resumed, the prospect of additional appeals is looming, which would lead to another pause.
“No one here is under any illusion that we’re springing toward any particular trial date,” the judge said, noting that any decision she makes regarding immunity will be appealed.
Prosecutors argue they tailored the superseding indictment to comply with the Supreme Court’s ruling. They wrote last week that they will seek to “distinguish [Trump’s] private electioneering activity from official action, and rebut the presumption of immunity as to any conduct that the court may deem official.”