Washington — Lawyers for former President Donald Trump and special counsel Jack Smith are returning to U.S. District Judge Tanya Chutkan’s courtroom Thursday for the first time since she regained control of the 2020 election-related case following the Supreme Court’s landmark ruling on presidential immunity.
The attorneys are poised to lay out their proposed paths for how pretrial proceedings should move forward in the wake of the July decision, which offered Trump and all former presidents protection from federal prosecution for “official acts.”
Trump is not expected to attend Thursday’s hearing and has waived his right to appear.
Ahead of the scheduled status conference, the judge asked both sides to present their arguments for how the case should proceed. In a court filing last week, Smith left the exact timeline up to Chutkan and indicated the court should promptly apply the high court’s immunity ruling and make decisions accordingly.
The former president’s legal team, meanwhile, urged Chutkan to give the parties more time to go over the potential legal questions and proposed a schedule that would extend pretrial proceedings in the case into the spring or fall of 2025, about two years after the charges were first filed and well after the November presidential election.
Trump’s lawyers said they plan to argue the indictment should be tossed out on the grounds that Smith’s appointment as special counsel and funding are unconstitutional.
They further believe that the case should be dismissed based on presidential immunity. In addition, they may seek to have two charges dismissed based on the Supreme Court’s decision in June limiting the scope of a federal obstruction charge, the former president’s legal team said in their filing.
The Supreme Court’s conservative majority ruled in July that presidents and former presidents are immune from criminal prosecution for “official acts” they take during their presidency. Some of the conduct alleged in Smith’s original indictment fell squarely under that umbrella, Chief Justice John Roberts wrote in the majority’s opinion. For other allegations, the court left it up to Chutkan to decide whether Trump was acting in his capacity as the president or as a private candidate for office.
Last week, in advance of Thursday’s hearing, Smith unsealed a superseding indictment against Trump removing the conduct that Roberts said was covered by presidential immunity. The former president still faces the same four federal counts — including conspiracy to defraud the U.S. — in a charging document that describes an alleged plot to subvert the results of the 2020 presidential election. Prosecutors said they made changes to adhere to the Supreme Court’s decision.
Trump pleaded not guilty to the original 2023 indictment and authorized his attorneys to enter a not-guilty plea on his behalf to the new charging document. He has denied all wrongdoing.
Next steps in the Trump case
The way forward in the case remains uncertain as Trump and Smith’s teams laid out opposing views for the pretrial schedule. Trump’s team revealed in a court filing last week that they intend to file additional motions to dismiss the new indictment based on claims that the former president remains immune from prosecution on portions of the conduct included in Smith’s latest indictment, including social media posts, public statements, communications with state officials and interactions with former Vice President Mike Pence.
Prosecutors are likely to argue they tailored the superseding indictment to comply with the Supreme Court’s ruling. They wrote last week that they will seek to “distinguish [Trump’s] private electioneering activity from official action, and rebut the presumption of immunity as to any conduct that the court may deem official.”
Trump has already prevailed in efforts to have a second set of federal charges in South Florida tossed out. He faced 40 counts related to his alleged mishandling of sensitive government records after leaving office and attempts to obstruct the Justice Department’s investigation.
But the judge overseeing the case granted Trump’s request to dismiss the indictment on the grounds that Smith was unconstitutionally appointed and his office unlawfully funded. The special counsel has appealed that decision to the U.S. Circuit Court of Appeals for the 11th Circuit.
Trump’s legal team said he will challenge the legality of Smith’s appointment in D.C. and cited a concurring opinion from Justice Clarence Thomas in the immunity case, in which he questioned where the special counsel was properly appointed.
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas wrote in his nonbinding opinion, which was not joined by any of the other justices.
