It’s not fair, legal counsel for Donald Trump told a federal judge on Thursday. The former president’s election interference case — which could have gone to trial this spring had it not been for litigation over the Republican candidate’s claim he was completely immune from prosecution — is starting back up again just as early voting is about to begin. While ballots are being cast, prosecutors could air new, potentially damning evidence about the defendant's efforts to remain in power.
So what, U.S. District Judge Tanya S. Chutkan responded. Her only concern, she said, is the crimes that special counsel Jack Smith, armed with a fresh grand jury indictment, has accused the 78-year-old defendant of committing: defrauding the United States and seeking to throw out the votes of millions of Americans after decisively losing to President Joe Biden in 2020.
“This court is not concerned with the electoral schedule,” she told defense lawyer John Lauro, MSNBC legal analyst Katie Phang reported from the courtroom in Washington, DC. “I am definitely not getting drawn into an election dispute.”
As former prosecutor Andrew Weissmann observed, Chutkan here is treating Trump “like any other defendant,” upholding the principle of equality before the law. However, the schedule that she has set guarantees that she will be drawn into the world of politics, even as she insists that the only considerations in her courtroom will be the law and the facts of this case.
Although there will not be a trial until at least 2025 — the defense is guaranteed to appeal any decision that allows the case to move forward in light of the Supreme Court’s newly invented presidential immunity doctrine — Chutkan issued an order following Thursday’s hearing that sets the stage for potentially damning evidence to be publicly shared just as the election heats up. That order sets Sept. 26 as the deadline for prosecutors to file an “opening brief” on Trump’s immunity claims, which Politico reported could be “jammed with new and explosive evidence related to Trump’s effort to subvert the 2020 election” (prosecutors said they would include “substantial exhibits” in their filing). A defense response is due by Oct. 17 and prosecutors’ response to that is due Oct. 29.
The election is Nov. 5.
Such a scenario — damning evidence being presented on the eve of an election — was predicted in the wake of the Supreme Court’s July 2024 immunity decision, which held that presidents enjoy presumed immunity for “official acts.” At the time, legal experts suggested that while the case was certainly hampered by the high court’s decision, Smith and his team could still try to share the evidence they had gathered in a sort of “mini trial,” laying out why they believed it should still move forward.
In light of Thursday’s hearing, legal experts have a new term for what could happen in the coming weeks: “a mini, mini trial,” as NYU law professor Ryan Goodman put it. In court, prosecutors said that after filing their brief they would be open to discussing it at an actual hearing, even raising the prospect of “witness testimony” being presented. According to Goodman, that witness could well be former Vice President Mike Pence, who Trump pressured to use his ceremonial role on Jan. 6 to reject electoral votes from states that the former president had lost.
That could, of course, not happen; Chutkan could also choose to redact any new evidence that the Department of Justice shares in a filing. But Elie Honig, a former federal prosecutor turned legal analyst for CNN who has expressed sympathy for Trump’s defense team, said the case is not turning out as the former president and his attorneys had hoped.
“This is exactly the scenario that Donald Trump’s lawyers were arguing against and trying to avoid,” Honig said. If they had their way, the case would simply be dismissed or, at worst, picked up again only after the election. But Judge Chutkan, he said, “clearly does not care.”
