The Supreme Court’s decision Monday on executive immunity makes it all but certain that the former president Donald Trump will not stand trial on charges of trying to overturn the last election until voters decide whether to return him to the White House in the next election.
But the ruling also opened the door for prosecutors to lay out much of their evidence against Trump before a federal judge — and the public — in a wide-ranging hearing, possibly before Election Day.
It is not yet clear when the hearing, which was ordered as part of the court’s decision, will take place and how long it will last.
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But it will address the big question the justices sent back to the court, namely how much of Trump’s lawsuit can survive the ruling that former presidents enjoy immunity for official actions taken in office. And it will be held in U.S. District Court in Washington before the judge, Tanya Chutkan, who heard the case before it was frozen more than six months ago as a series of courts considered his immunity claims.
Almost from the moment Chutkan was assigned the case, she moved quickly, showing little patience for Trump’s attempts to delay it or his complaints that it was hampering his campaign.
At one point, she told the former president that his “day job” as a candidate would not affect her management of the case, later declaring, “This process will not yield to the election cycle.”
Trump’s lawyers will undoubtedly try to limit the scope of the proceedings and delay them as long as possible. And if he wins the presidency again, he could avoid them altogether by ordering his Justice Department to drop the case altogether.
But if Chutkan sticks to her practice of handling procedural matters quickly and can schedule the hearing for September or October, it could lead to something special: a kind of mini-trial in the nation’s capital, perhaps the final leg of the presidential campaign.
Whenever the hearing is held and however it is formatted, it will focus on the question at the heart of the Supreme Court’s decision: Were the numerous allegations in Trump’s 45-page complaint based on official acts he took in his role as president or on unofficial acts in his private role as a candidate for office.
Prosecutors are not restricted from pursuing charges stemming from unofficial acts. But the judges have ruled that they must use evidence and arguments to rebut the presumption that Trump is immune from prosecution for official acts.
When special counsel Jack Smith filed charges against Trump last summer, the former president was accused of using five primary election tactics to influence the outcome of the 2020 race.
In its ruling, the Supreme Court found no doubt that Trump enjoyed immunity from prosecution for one of those methods: his efforts to pressure the Justice Department to validate his false claims that the election was marred by widespread fraud. That was because the justices found that Trump’s interactions with top Justice Department officials were clearly part of his official duties as president.
However, the judges left Chutkan, who was appointed by President Barack Obama, with the daunting task of conducting the official/unofficial test for the other four methods described in the complaint.
Examples include Trump’s attempts to use lies about election fraud to convince state officials to change the outcome of the race, and his plan to create false electoral votes lists claiming he won in several swing states when he actually lost.
This also includes Trump’s campaign to pressure Vice President Mike Pence to override the election during a certification process at the Capitol on January 6, 2021, and, when that effort failed, his efforts to exploit the violence and chaos that erupted at the Capitol to further delay the certification of the election.
A hearing that covers all of this could easily take several days — or even weeks. And it could result in testimony not just from Pence and his advisers but also from a cast of characters, including lawyers and campaign workers who were part of the phony voter scheme and state officials who were the victims of Trump’s arm-twisting.
If Chutkan were to allow the most expansive version of the hearing, it could resemble a full-blown Trump trial, lacking only a jury to render a verdict.
Trump’s lawyers have had tremendous success in delaying proceedings in three of the four criminal cases he faces, and they will undoubtedly do their best to delay Chutkan’s fact-finding hearing.
Only his case in New York City has gone to trial so far. In May, he was convicted on 34 counts of falsifying corporate records to cover up a sex scandal that threatened to derail his bid for office in 2016.
Chutkan strongly rejected Trump’s initial claims of immunity last winter, saying they had no basis in U.S. law or history. But while she accused him of trying to “usurp the reins of government,” she had no choice but to throw the case out the window when he began his lengthy appeals process.
When the problems began, starting in a federal appeals court in Washington, Chutkan suggested to both the defense and the prosecution that once she regained control of the case, she would give Trump an extra day of preparation for every day he would lose by suspending proceedings before the start of the trial.
If she sticks to that decision, she will ultimately owe Trump an additional 82 days of pretrial preparation before a trial can begin — equivalent to the period between Dec. 13, when the case was first frozen, and the originally scheduled trial date of March 4.
But no trial date has been set at this time, and Chutkan will likely not start counting those 2.5 months until after she has her hearing.
Before the hearing takes place, both sides must file a motion with the judge, explaining their conflicting views on which of the allegations are based on official acts and which are based on unofficial acts.
And even before those substantive motions are filed, time-consuming preliminary discussions can take place over setting the terms of the hearing and whether prosecutors should provide the defense with additional information before the hearing takes place.
Ultimately, even if the justices did put Chutkan in charge of conducting a hearing, any rulings she makes will be subject to appeal. This means that if Trump is not re-elected and the case goes forward, the final say on how much of the charges survive will rest with the Supreme Court.
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