It didn’t take long after Thursday’s hearing in the federal election subversion case against Donald Trump – the first proceeding before Judge Tanya Chutkan since the Supreme Court granted the former president some immunity in the prosecution – for the trial judge to decide a schedule for the next steps in the case that lets prosecutors make public new evidence before the 2024 election.
Chutkan made clear that a potential trial date is far off, but she issued a scheduling order Thursday afternoon to push the case forward and tackle the question of presidential immunity following the Supreme Court’s July ruling — allowing prosecutors to issue a filing later this month, with supporting evidence, to defend special counsel Jack Smith’s reworked indictment that was handed up last week.
During the hearing, Chutkan previewed her thinking on how the case should advance. She was skeptical of the Trump team’s request that she first decide whether the then-Vice President Mike Pence-related allegations in the indictment were immune, and Chutkan repeatedly stressed the discretion she believes she has for how she structures the proceedings in her courtroom.
Though Thursday’s one-hour-and-15-minute hearing was mainly about process, a sharp back-and-forth she had with a Trump attorney brought attention to how the 2024 election is looming over the case.
Here are takeaways from the hearing:
Chutkan lays out next steps to deal with immunity questions
The judge did not issue a ruling from the bench on the schedule, but she issued an order with her schedule to deal with several pretrial motions – including immunity – on Thursday afternoon.
During Thursday’s hearing, prosecutors explained why they want the chance to file an opening brief that would argue why they believe their new indictment complies with the Supreme Court’s immunity ruling. Trump’s attorneys argued against that and proposed a longer schedule.
Chutkan’s scheduling order called for the first brief to be filed by prosecutors on September 26, after Chutkan pushed prosecutor Thomas Windom for dates on how quickly the special counsel’s office could file the brief they proposed defending the new indictment.
Windom deferred to the judge – not putting on the record a date itself – while telling the judge they would need two to three weeks, meaning the end of this month.
“We do actually have to write this thing,” Windom said, prompting Chutkan to joke that maybe Windom had it in his binder.
“I would be surprised by that,” Windom responded.
At the same time, he emphasized that prosecutors would leave the exact timing “to the court’s discretion.”
Chutkan’s scheduling order included deadlines for a reply brief from Trump’s lawyers on October 17 and a reply from the special counsel on October 29 – meaning the filings will come in the final weeks of the campaign, and Chutkan could decide the issue more quickly than what Trump’s lawyers proposed. There is no hearing scheduled on the immunity question in her new order, but she could request oral arguments on the matter later on.
The evidence the special counsel’s office will reveal in its late September filing may not be immediately public, and Chutkan will be able to control its release. It is likely it would become available, though, potentially with redactions.
Election looms over hearing, but Chutkan says she’s not considering it
As the judge debated with Trump attorney John Lauro over how quickly she should move to allow the prosecution to file a brief defending their indictment on immunity, they eventually addressed the political elephant in the courtroom: the looming presidential election.
After a back and forth with the judge over what the process should be for deciding the immunity issues in the case, Lauro acknowledged that among his team’s concerns about the prosecutors’ proposed approach is what would be aired on the court’s public record at a “sensitive time.”
The crux of the process disagreement comes down to who gets to file their immunity brief first and when that brief gets filed.
“This court is not concerned with the electoral schedule,” Chutkan pushed back.
“We are talking about the presidency of the United States,” Lauro said.
“I am not talking about the presidency,” Chutkan said. “I am talking about a four-count indictment.”
“The subtext of your argument here about these sensitive times … it strikes me that what you’re trying to do is affect the presentation of this case so as not to impinge on an election,” she added.
Lauro denied that his arguments were connected to the presidential campaign.
“The decisions here will not just affect this case, it will affect the republic going forward,” Lauro said.
Trump has repeatedly complained that the new indictment filed last week was an attempt to interfere with the campaign – just as he complained about his New York trial in the spring – but Chutkan’s comments signaled she isn’t going to wait until after November 5 before moving forward on the issues that have to be dealt with in the case following the Supreme Court’s immunity decision.
‘Exercise in futility’ to set a trial date
At the end of Thursday’s hearing, Chutkan acknowledged the elephant in the room: There were still too many issues to resolve to set a trial date in the case.
“It’s sort of an exercise in futility at this point,” she said, noting that whatever decision she makes on immunity will be appealed, which means the trial will pause once again while the appellate process plays out.
Both Trump’s lawyers and prosecutors agreed that it was too soon to set a trial date.
While Chutkan’s schedule on the next steps in the case does get the immunity issue moving, all sides in the case – prosecutors, Trump’s attorneys and the judge – acknowledged Thursday that her ruling on immunity would almost certainly be appealed.
Of course, it’s not just the appeals process that makes a future trial so murky. If Trump wins the 2024 election, he is poised to toss out the special counsel and the case against him altogether once he returns to office.
A chilly reception for Trump’s claims about teeing up the Pence conduct first
Chutkan did not seem particularly convinced that, when deciding the immunity issues in the case, she should deal specifically with the Pence-related claims first.
Trump’s attorneys made the aggressive argument, first laid out in their filings late last week, that the whole case must fall if Trump’s interactions with his vice president are deemed immune from prosecution.
In Thursday’s hearing, Lauro was particularly focused on that argument and tried to persuade the judge that dealing with the Pence conduct as a standalone issue would be a more efficient way of doing things.
He contended that it would save the court from doing lengthy briefings on other the allegations in the indictment if she decides the whole case must be dismissed on the Pence issue alone. He also insisted that the Supreme Court viewed a finding that the Pence conduct was immune as fatal to the indictment, a claim Chutkan shot down.
“The ruling is clear, crystal clear,” Lauro said, prompting a chuckle from Chutkan.
Chutkan swipes at Florida judge’s ruling dismissing classified documents case
Chutkan hinted that she was dubious of Trump’s coming attempt to get the DC case dismissed on the grounds that Smith was supposedly illegally appointed, even as Chutkan has said she’d let the former president file that motion to dismiss.
She took a swipe at the ruling that Judge Aileen Cannon handed down this summer dismissing the classified documents case on that basis, calling that ruling not particularly “persuasive.”
She also emphasized that a concurrence by Justice Clarence Thomas – which Cannon’s ruling cited – that laid out those constitutional concerns was “dicta,” meaning non-binding language. And she noted that there is already DC Circuit precedent on the books upholding the constitutionality of special counsels, which would be binding on her as a trial judge in Washington, DC.
Nevertheless, she is letting the Trump team take a shot. However, when his lawyers file the motion that asks for permission to formally make those arguments, they must elaborate on why they should be allowed to do so, Chutkan said.
Chutkan requested in Thursday afternoon’s order that Trump file his challenge to the legality of Smith’s appointment and for the special counsel to respond in late October, with the final brief from Trump on that issue due on November 7, two days after the election.
This story has been updated with new developments.
CNN’s Hannah Rabinowitz, Holmes Lybrand and Katelyn Polantz contributed to this report.
