Trump lawyers and special prosecutor clash in court over election interference case

Lawyers for former President Donald Trump and special counsel Jack Smith clashed in a Washington courtroom Thursday over which part of the 2020 election interference case against him should survive and how quickly they should act as millions of Americans prepare to cast their ballots this fall.

The case had already been on hold for more than eight months while the Supreme Court considered whether Trump and future presidents enjoy immunity from prosecution for their official actions in the White House.

“We need to move forward in this case,” said U.S. District Judge Tanya Chutkan.

In July, the Supreme Court’s conservative supermajority granted Trump full immunity for his interactions with the Justice Department and concluded that he had “presumptive” immunity for other types of official acts. However, actions a president takes to obtain personal benefits do not merit legal protection, the court said.

How those boundaries are drawn will be up to Chutkan, a former public defender who has tried to overcome numerous legal and logistical hurdles. Anything she does will be appealed back to the Supreme Court, so there is no chance of a trial before November, and perhaps not even in 2025.

Political chronology

Flashes of heat and humor erupted in the DC courtroom, in a hearing that lasted about an hour.

This year’s election calendar is on the horizon. Trump did not appear at the Washington courthouse, just steps from the site of the riot at the US Capitol three years ago. Instead, he gave a campaign speech at the Economic Club of New York.

His lawyers spoke on his behalf, expressing concern about the type of evidence prosecutors might release in the coming weeks, “at a very sensitive time in our nation’s history.”

“This is a case about the presidency,” said Trump’s lawyer John Lauro.

But Chutkan flatly rejected the idea that the political calendar or Trump’s position on the ticket as the Republican presidential nominee should play any role in his decisions.

“I am not talking about the presidency of the United States,” the judge said. “I am talking about a four-count criminal indictment.”

Boosting speed

Thomas Windom, a prosecutor working for the Justice Department’s special counsel team, said only the judge would control whether any new evidence should be made public this year. He stressed the need for Chutkan to first consider Trump’s immunity from prosecution, so there would be only one more appeal that could go back to the Supreme Court.

Windom said prosecutors are prepared to file a lengthy motion within three weeks to lay out their arguments and any new evidence supporting their claim that Trump was acting as a political candidate, for personal gain, and not as a president as he tried to cling to power in 2020 and early 2021.

He cast doubt on the idea that Trump’s legal team needed months to respond, noting that some of the same lawyers managed to file a 52-page brief several days after the Supreme Court’s decision, in a separate hush-money case against Trump in New York.

“The defense can move quickly, comprehensively and well,” Windom said.

“Congratulations,” the judge said to one of the defense attorneys, with a smile on her face.

Questions about Pence

Perhaps the biggest legal battle looming over the role of former Vice President Mike Pence. Trump is accused of pressuring Pence to delay the electoral count on January 6, 2021, as a mob chanted “hang Mike Pence” outside the Capitol.

Trump lawyer Lauro said the allegations involving Pence and whether they merit immunity are a “gateway question that must be decided immediately.” He said if grand juries heard evidence about Pence and those allegations are protected by immunity, the entire indictment should be dismissed as tainted.

“If the communications are immune, then the entire prosecution fails,” Lauro said.

The judge was not so sure about it.

It will be up to her whether she decides to release interviews with FBI witnesses, grand jury testimony or even convene an in-person proceeding to hear from witnesses directly as she deliberates the thorny immunity issues.

Randall Eliason, a law professor at George Washington University, said he does not envy the work that awaits the judge.

“The allegations against Mike Pence are probably going to be the most contentious because that was one area where the Supreme Court expressly said that the president’s communications with his vice president are presumptively immune,” Eliason said. “But the government could rebut that in certain cases by showing that those particular acts were not actually based on his executive duties and that prosecuting someone based on them would not interfere with the functions of the executive branch.”