Judge Tanya Chutkan grilled former President Donald Trump’s defense attorneys on Thursday at a hearing about their proposal to move forward with the election interference case after two Supreme Court rulings installed a fresh set of hurdles in it.
Chutkan, an Obama appointee, was at times incredulous as she pressed Trump attorney John Lauro on why the case could not move forward in a streamlined fashion that involved addressing the high court’s presidential immunity decision and the former president’s other concerns about the case simultaneously.
“We can all walk and chew gum at the same time,” Chutkan said.
The judge said she would wait until after the hearing to make any decisions about the new schedule for the case, but she appeared skeptical of Trump’s proposal. Still, she acknowledged by the end of the hearing that with so many new outstanding questions, setting a trial start date was an “exercise in futility.”
The hearing marked the first meeting in the case in nearly a year after the Supreme Court’s pending decision on presidential immunity brought it to a monthslong halt.
It also followed special counsel Jack Smith bringing a superseding indictment against Trump last month. Smith accused Trump of the same four crimes but fewer allegations in an attempt to align his indictment more closely with the Supreme Court’s decision that presidents enjoy some immunity from criminal prosecution. The former president was excused from appearing at the hearing, but his attorneys entered a not guilty plea to the charges on his behalf.
Lauro stressed that the Supreme Court’s ruling on presidential immunity presented “grave” new questions about the validity of Smith’s indictment.
“We want an orderly process that does honor to the Supreme Court’s ruling,” Lauro said, as he proposed a schedule that would include deadlines throughout the remainder of the year and possibly into next year.
Lauro warned that they “may be dealing with an illegitimate indictment from the get-go,” and he repeatedly zeroed in on the communications Smith left in the indictment between Trump and former Vice President Mike Pence.
The defense attorney argued that all of Smith’s charges hinged on Pence’s communications and that if Chutkan were to rule that those are immune from being used in the case, “the whole indictment craters.”
The question of whether content about Pence can be included in the indictment is a “gateway issue” that needs to be addressed before anything else, Lauro said.
Lauro also requested that Trump’s defense team be allowed to seek dismissal of his charges on statutory grounds in light of the Supreme Court’s decision in Fischer v. United States. The high court ruled in that case that the Justice Department may have been too liberal at times in charging defendants with “obstruction of an official proceeding” in cases related to the Jan. 6, 2021, Capitol riot. The former president is one of hundreds of defendants who have been hit with that charge.
Additionally, Lauro said he planned to submit an argument to the court that the case should be dismissed on the grounds that Smith was an illegitimate special counsel, citing Justice Clarence Thomas recently raising questions about Smith’s appointment in a concurring opinion and U.S. District Judge Aileen Cannon tossing out Trump’s classified documents charges over it.
Chutkan said she would allow Trump’s defense attorneys to submit their arguments about Fischer and Smith’s appointment, but she seemed reluctant to allow the latter. She said that “frankly,” she did not find Cannon’s ruling “persuasive.”
Throughout the hearing, Chutkan was largely unsympathetic to Trump’s legal team. She made clear that she had no interest in factoring the 2024 election into her decisions about his pretrial schedule and appeared weary as his attorneys attempted once again to impress upon her the implications of the Supreme Court’s presidential immunity ruling.
“I don’t need any more rhetoric on how serious and grave this is,” Chutkan said.
“It’s not rhetoric,” Lauro shot back. “It’s called legal argument.”
The Supreme Court had instructed Chutkan to examine Smith’s indictment and decide whether the actions in it were official presidential acts that were immune from prosecution or private acts that Smith could hold against Trump.
Prosecutors for Smith proposed that the parties begin arguing over that question by the end of September. They said any motions Trump wanted to bring to challenge the charges outside of that could be done at the same time as the immunity arguments.
While the prosecutors were hesitant to provide any timeline and emphasized that they would defer to Chutkan on dates, they said that jumpstarting the case with immunity arguments beginning in three weeks was workable for them.
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Prosecutors also said their goal was to craft a schedule that would allow Trump’s attorneys to bring only one new appeal before a trial. Typically some appeals can occur before a trial, while others must be held until after one.
Trump will be able to appeal Chutkan’s decisions on what conduct in the indictment is immunized before trial. The judge appeared to have already decided that her rulings on immunity would be unfavorable to Trump, saying she expected the former president to appeal her ruling “regardless” of what it was.
