WASHINGTON, DC—Former President Donald Trump’s team, returning to D.C. district court Thursday many eventful months after the case was taken from Judge Tanya Chutkan’s court on appeal, came wielding the Supreme Court’s immunity decision as a supposedly automatic win in the Jan. 6 federal case.
“The whole indictment craters,” Trump lawyer John Lauro crowed, drawing a wry chuckle from Chutkan as he called the Supreme Court’s decision “crystal clear.”
When the Supreme Court decided the immunity decision in July — establishing the various categories of presidential conduct and what degree of immunity they get — it kicked the case back down to Chutkan to sift through the charges and assign them to those categories.
In the meantime, Special Counsel Jack Smith’s team obtained a superseding indictment from a new grand jury, a slimmed-down document aimed at staying within the parameters of the Supreme Court’s vague new guidelines for the type of presidential behavior that is still prosecutable. The indictment maintained the four central charges.
The Trump team now claims that even the new indictment is “infected” with conduct that the Supreme Court has said is protected. Primarily, Lauro argued Thursday that Smith’s evidence about Trump trying to convince then-Vice President Mike Pence not to certify the election is immune. Chief Justice John Roberts, in perhaps the most extreme part of his opinion, had ruled that prosecutors can’t use immunized conduct even to prove the existence of “unofficial acts” that are fair game to prosecute — which the Trump lawyers are stretching to mean that the inclusion of any immunized conduct in the indictment takes down the whole thing.
Chutkan sounded resistant to that reading Thursday and more inclined to agree with the government’s interpretation of the Supreme Court’s decision: that Chutkan now needs to go through the charges and determine which survive the new immunity test.
“I’m not sure that I agree with you, as a matter of law, that I can dismiss the superseding indictment based on the Supreme Court decision at all,” she told Lauro.
While they’d prefer to get an outright dismissal on the heels of the Supreme Court decision, Trump’s lawyers threw additional fistfuls of spaghetti at the wall to otherwise gum up the works and delay the trial as long as possible. Their proposed pretrial schedule filed before Thursday’s hearing stretches into next fall.
“I’m not talking about the presidency of the United States, I’m talking about a four-count indictment,” Chutkan broke in exasperatedly as Lauro spoke. “It strikes me that what you’re trying to do is affect the presentation of evidence in this case so as to not impinge on the election.”
Trump’s longing for delay took many forms Thursday: complaining about the “14 million pages” of documents to sift through, insisting that there’s much more discovery they’re owed (the government says it has no additional discovery to provide, as the indictment has remained largely the same), raising the new argument that all special prosecutors are improperly appointed, taking great umbrage at the government’s proposal to submit an opening brief defending its indictment under the new immunity regime.
Lauro sounded quite Trumpian as he protested the injustice of it all, calling the government’s proposed schedule a “fundamental unfairness never before seen in district court.”
Chutkan got fed up with Lauro’s performative flourishes, particularly as he waxed poetic on the weightiness of the case in American history.
“I don’t need any more rhetoric on how serious and grave this is,” she said.
“It’s not rhetoric, it’s called legal argument,” Lauro snapped back, prompting an audible reaction in the press room from which reporters watched the trial.
The lawyers on Jack Smith’s team — who had already watched their case stall for months, placing it decisively out of the window where it could be wrapped up before voters pick the next President — had similarly little patience for Lauro’s insistence that it’ll take his side a year to prepare for trial.
The Justice Department’s Thomas Windom countered that the Trump legal team can move very quickly when it wants to, pointing out that in Trump’s hush money case out of New York, it only took the lawyers nine days from the Supreme Court’s immunity ruling to file a 52-page brief arguing that the case should be tossed.
Chutkan leaned forward to her mic: “Congratulations, Mr. Blanche,” she said dryly, causing Trump lawyer Todd Blanche, who spearheaded that case, to burst into laughter at the defense’s table.
Chutkan said that she plans to establish a schedule quickly, and her order may come later Thursday. Windom had said at the start of the proceedings that the government is aiming to give the Trump team only one chance to appeal the interpretation of the immunity decision, rather than many bites at the delay apple throughout.
Smith’s team said it could have its opening brief ready in three weeks, where it would defend its indictment and argue that the charges still apply even to an ex-president with newfound and sweeping immunity. If Chutkan allows this route (and rejects Trump’s immediate dismissal request), which she sounded inclined to do Thursday, it would get the ball rolling on the next, arduous step in this case, where she decides which charges can stand.
“I’m risking reversal no matter what I do,” she sighed.
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