Erik Larson | Bloomberg News (TNS)
The U.S. Supreme Court’s ruling that presidents have some immunity from criminal charges over official conduct sets up a high-stakes “mini trial” later this summer over Donald Trump’s attempt to overturn the 2020 election.
The timing of such a hearing will be consequential, with Trump’s campaign to return to the White House reaching a fever pitch and his rematch against President Joe Biden in the background. It will likely be the only chance for voters to see the government’s best evidence before they go to the polls.
The Supreme Court will soon return the case to U.S. District Judge Tanya Chutkan, who previously ruled Trump had no immunity. Now she’ll have to reassess each claim in the indictment based on the Supreme Court’s findings, and determine whether Trump’s actions were official or private.
To do that, Chutkan will likely hold a hearing later this summer that would span several days. Lawyers for Trump and Special Counsel Jack Smith will present new evidence, arguments and testimony about the events leading up to the Jan. 6 riot at the U.S. Capitol, essentially a public preview of a final jury trial.
“The hearing could devolve into something that is also going to be political in nature,” said David Weinstein, a former federal prosecutor. “This will be the one and only opportunity the prosecution is going to have to present to the judge and the public what evidence they have that the former president was not immune.”
Chutkan would certainly get extensive briefing from both sides before the hearing, as they argue about what evidence can be presented under the Supreme Court’s guidance that Trump’s official acts can’t be used against him.
Prosecutors may seek to bolster their case by presenting testimony for the first time from Trump’s alleged co-conspirators who haven’t previously been named, said Weinstein. Those individuals previously took the witness stand in secret before a federal grand jury, and their testimony may be needed, now more than ever, to illustrate that Trump’s actions were private rather than official, he said.
The Supreme Court criticized the lower court for issuing a decision against Trump without every aspect of the case being fully briefed. That means the expected mini-trial will need to revisit every element of the indictment in greater detail. But unlike a jury trial, the government won’t need to prove beyond a reasonable doubt that Trump’s actions were private conduct.
“What this judge is going to consider is whether the government presented enough evidence that the acts rebut the presumption of immunity” created by the Supreme Court, according to Weinstein. “The way they’ll do that is to show that the actions were beyond the outer fringes of his official duties, and were private.”
Smith could also seek to streamline the process by preemptively amending the indictment to remove any problematic details and narrow the fight.
Once the high-stakes hearing is over, Chutkan will issue a ruling on which aspects of the indictment survived the Supreme Court’s guidance. Any ruling would almost certainly be appealed, setting up another path to the Supreme Court and further delaying a jury trial.
“Unless the judge completely dismisses the case, which seems unlikely, I imagine Trump will appeal,” said former federal prosecutor Barbara McQuade. “Working through the appellate courts will delay a trial in this case until well into 2025 or beyond.”
By that time the issue could be moot, because Trump has said he would instruct the Justice Department to drop the case if he wins the election.
Trump is accused of conspiring to defraud the U.S. by promoting false claims of voter fraud, pressuring the Justice Department to conduct sham investigations, pushing then-Vice President Mike Pence to prevent certification of Biden’s victory and, finally, inciting a crowd to storm the Capitol on Jan. 6, 2021.
Chief Justice John Roberts, who wrote the majority opinion, said Trump is entitled to immunity for claims related to efforts to pressure the DOJ. Trump’s talks with Pence may qualify too, the majority held. Everything else, Roberts said, will require a “close analysis of the indictment’s extensive and interrelated allegations.”
Chutkan will have to determine whether the remaining alleged conduct was official, including Trump’s outreach to politicians in swing states to send fake presidential electors to Pence and the U.S. Senate. The majority opinion signaled the remaining arguments may be complex and time consuming.
The Washington-based judge, an appointee of former President Barack Obama, will also need to review in greater detail Trump’s tweets and speeches that feature throughout the indictment, for better context, Roberts said, adding that the analysis “must be fact specific and may prove to be challenging.”
“Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular presidential function,” Roberts wrote.
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