The Supreme Court’s decision Monday about executive immunity makes it all but certain that former President Donald Trump will not stand trial on charges of seeking to overturn the last election before voters decide whether to send him back to the White House in the next one.
But the ruling also opened the door for prosecutors to detail much of their evidence against Trump in front of a federal judge — and the public — at an expansive fact-finding hearing, perhaps before Election Day.
It remains unclear when the hearing, which was ordered as part of the court’s decision, might take place or how long it would last.
But it will address the big question that the justices kicked back to the trial court, which is how much of Trump’s indictment can survive the ruling that former presidents enjoy immunity for official actions they take in office. And it will be held in U.S. District Court in Washington in front of the judge, Tanya Chutkan, who was handling the case before it was frozen more than six months ago as a series of courts considered his immunity claims.
Almost from the moment that Chutkan was assigned the case, she moved it forward expeditiously, showing little patience for Trump’s efforts to delay it — or his complaints that it was getting in the way of his campaign.
At one point, she told the former president that his “day job” as a candidate would not affect her administration of the case, later declaring, “This trial will not yield to the election cycle.”
Trump’s lawyers will no doubt seek to narrow the scope of the proceeding and push it off for as long as possible. And if he wins the presidency again, he could avoid the proceeding altogether by ordering his Justice Department to drop the entire case.
But if Chutkan sticks to her practice of dealing quickly with procedural matters and is able to schedule the hearing for September or October, it could lead to something extraordinary: a mini-trial of sorts unfolding in the nation’s capital in what could be the homestretch of the presidential campaign.
Whenever the hearing is ultimately held and however it ends up being structured, it will focus on the question at the center of the Supreme Court’s decision: whether the myriad allegations in Trump’s 45-page indictment were 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 face no restrictions in pursuing charges that emerge from unofficial acts. But the justices have ruled that they have to use evidence and argument to overcome the presumption that Trump is immune from prosecution on official acts.
When the special counsel, Jack Smith, filed the election charges against Trump last summer, the indictment accused the former president of using five primary methods to subvert the results of the 2020 race.
In its ruling, the Supreme Court decided there was no question that Trump enjoyed immunity from being prosecuted for one of those methods: his efforts to strong-arm the Justice Department into validating his false claims that the election had been marred by widespread fraud. That was because the justices determined that Trump’s interactions with top officials in the department were clearly part of his official duties as president.
But the justices left Chutkan, who was appointed by President Barack Obama, with the substantial task of performing the official-unofficial test for the other four methods described in the indictment.
Those include Trump’s attempts to use lies about election fraud to persuade state officials to change the results of the race as well as his plan to create false slates of electors declaring that he won in several swing states he actually lost.
They also include Trump’s campaign to pressure his vice president, Mike Pence, into throwing the election his way during a certification proceeding in the Capitol on Jan. 6, 2021 — and, once that effort failed, his attempts to exploit the violence and chaos that erupted at the Capitol to further delay the election certification.
A hearing encompassing all of that could easily take several days — or even weeks — to complete. And it could result in testimony not only from Pence and his advisers, but also from a cast of characters including lawyers and campaign aides who were part of the fake elector scheme, and state officials who were subject to arm-twisting by Trump.
If Chutkan allows the most expansive version of the hearing to be held, it could look a lot like a full-on trial of Trump, lacking only a jury to render a verdict.
Trump’s lawyers have had enormous success in postponing proceedings in three of the four criminal cases he is facing. And they will no doubt try their best to put off the fact-finding hearing in front of Chutkan.
Only his case in New York City has so far gone to trial, resulting in his conviction in May on 34 charges of falsifying business records to cover up a sex scandal that threatened to derail his 2016 bid for office.
Chutkan forcefully rejected Trump’s initial claims of immunity last winter, saying that they had no basis in American law or history. But even though she accused him of trying to “usurp the reins of government,” she had no choice but to put the case on hold when he started his lengthy process of appealing her decision.
Once those challenges began, starting in front of a federal appeals court in Washington, Chutkan suggested to both the defense and prosecution that when she regained control of the case, she intended to give Trump an extra day of preparation for each day he had lost to the stay of the proceedings before the start of the trial.
If she sticks to that decision, she will ultimately owe Mr. Trump an additional 82 days of preparation time before any trial could begin — equivalent to the period between Dec. 13, when the case was first frozen, and the originally scheduled trial date of March 4.
But there is no trial date at the moment, and Chutkan would likely start counting those 2 1/2 months only after she conducted her fact-finding hearing.
Before the hearing is held, both sides will have to file motions to the judge setting forth their competing visions on which of the allegations are based on official acts and which are based on unofficial ones.
And even before those substantive motions are filed, there could easily be time-eating preliminary arguments about setting the terms of the hearing and debating whether prosecutors will have to provide the defense with any additional discovery information before the hearing is held.
In the end, even though the justices put Chutkan in charge of conducting a hearing, any rulings she makes will be subject to appeal — meaning that if Trump is not elected again and the case continues, the final word on how much of the indictment will survive will come from the Supreme Court.
