Special counsel Jack Smith reportedly has no plans to initiate a so-called mini-trial in Donald Trump’s federal election interference case before the November election. I’ll explain what that means and why it’s not the crucial issue in the broader context of the prosecution and Trump’s criminal cases in general.
The context that has fueled speculation about such a hearing is the Supreme Court’s July 1 ruling in Trump v. United States , which established a vague test for presidential immunity that U.S. District Judge Tanya Chutkan must now apply to see how much of Trump’s charges survive the high court’s ruling (a question that could return to the justices to review her decision before a trial can take place). The question is how Chutkan will attempt to accomplish that complex task: with written memos alone? With memos followed by an extended hearing with depositions?
It’s not yet clear. The parties are due to send a joint status report to Chutkan on Friday on how they plan to proceed, after Smith in particular asked for more time to finalize the administration’s position, with Trump’s team, unsurprisingly, agreeing to the further delay.
Ahead of that status report’s release, Bloomberg News reported Friday that Smith “has decided not to request a major hearing to present evidence in the election interference case against Donald Trump before voters go to the polls,” and The New York Times similarly reported that federal prosecutors “are now unlikely to ask for a broad public showing of their evidence in a courtroom before Election Day.” The reports, which cited people familiar with the matter, have not been independently confirmed by NBC News or MSNBC.
But if true, this news is not all that surprising. After the immunity decision, it became even clearer that there would be no trial on January 6 before the election. As Smith’s recent request for more time to determine his position on how to proceed showed, the administration seems to understand that there is no point in rushing to do so now.
So what does the public miss if there’s no hearing before the election? One answer seems to be that voters could learn even more about Trump’s actions after the 2020 presidential election that led to the indictment. (He has pleaded not guilty.)
But January 6 is no whodunit. Whatever happens in this criminal case, Trump’s behavior that day is well-documented and has been broadcast for all to understand. A federal court hearing (which would not be televised, by the way) could provide more details, but anyone inclined to pay attention already has access to a wealth of information that should clarify the issue for electoral purposes, one way or another. Perhaps it would be worse for Trump politically if there were additional daily reports of his anti-democratic behavior on this issue in the days leading up to the November election. But that political issue is not the issue in court.
The larger legal problem is that if Trump wins the election, his federal lawsuits are all but gone. (Smith has separately appealed U.S. District Judge Aileen Cannon’s dismissal of the former president’s federal classified documents case, in which Trump has also pleaded not guilty. Smith’s appeal is expected Tuesday.) Voters can safely assume that re-election means Trump will never have to face the Jan. 6 federal criminal trial, or his alleged unlawful suppression of classified documents and obstruction. (Presidents cannot dismiss or grant pardons in state lawsuits. Trump’s lawyers argue that the immunity ruling should result in his guilty pleas in New York being overturned, while his Georgia case, in which he has pleaded not guilty, is stuck in a pretrial proceeding unrelated to immunity.)
And the immunity ruling isn’t the only recent Supreme Court decision that has implications for how Trump’s case will proceed in Washington. Another that Trump’s lawyers will be pushing is Fischer v. United States, in which the court limited the obstruction charges against the Jan. 6 defendants. Two of Trump’s four counts in his Jan. 6 indictment are obstruction-related, so even if the Fischer case doesn’t upend Trump’s prosecution to the extent that the immunity ruling has and will, it’s still an issue that potentially complicates the case. Again, the case would be uncomplicated if Trump wins the election, since he would then have the authority to dismiss the case.
In the meantime, of course, it’s not entirely up to Smith or Trump how the case proceeds. It’s up to the judge. We should learn more about where the case goes when we see the report on Friday, with a status conference scheduled for next week, on September 5, which could shed more light on what happens next.
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This article was originally published on MSNBC.com
