A federal judge is set to weigh Thursday whether former President Donald Trump, in the critical weeks leading up to the November election, will face court fights over the Washington-based criminal case about his efforts to overturn his 2020 election loss.
Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia will hold a status conference and plans to set the next phase of special counsel John L. “Jack” Smith’s effort to prosecute Trump for crimes connected to the effort to disrupt the transfer of power in 2021.
Chutkan set the hearing following the Supreme Court decision in July that gave presidents “absolute immunity” around the core of their presidential powers and possible immunity outside of that. The justices sent the case back to the district court for further proceedings.
Smith has since filed a slimmed-down indictment of Trump that excluded a portion of the allegations that the Supreme Court ruled could not be charged. Trump’s legal team has argued those changes were not enough and the remaining allegations should be considered immune as well.
In a joint filing with Trump’s team late Friday, Smith’s team said it wanted to litigate Trump’s immunity claims “first and foremost” but left the trial schedule, and whether to address Trump’s other efforts to jettison the case at the same time, up to Chutkan.
“The Court’s decisions on how to manage its docket are firmly within its discretion,” Smith’s team wrote.
In that same filing, Trump’s attorneys proposed a schedule that would see much of the court fight delayed until after the November election. Trump’s team also said it intended to build on the Supreme Court ruling and try to dismiss the case outright.
“If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence,” Friday’s filing said.
Trump’s team also hinted at a future argument that Smith’s appointment was illegal — a maneuver that led a Florida federal judge to dismiss Smith’s case alleging Trump illegally kept classified documents after his presidency. Smith has appealed that ruling to the U.S. Court of Appeals for the 11th Circuit.
Trump’s attorneys said he would not appear at Thursday’s hearing to confront the new indictment, which excludes allegations from the first indictment such as Trump’s effort to enlist Justice Department officials to issue false statements about the election.
The new indictment keeps the same original charges, including conspiracy to defraud the United States and obstruction of an official proceeding, but focuses more on Trump’s public statements, effort to engineer false slates of electors, and pressure on former Vice President Mike Pence to discard the votes of states Trump lost when presiding over the Electoral College on Jan. 6, 2021.
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