Despite the best efforts of the judge and the prosecutor, there is no practical possibility of a Trump election-interference trial prior to Election Day.
Despite the best efforts of the judge and the prosecutor, there is no practical possibility of a Trump election-interference trial prior to Election Day.
F or seven months, Judge Tanya Chutkan has lacked jurisdiction to act on the Biden–Harris administration’s 2020 election-interference prosecution of former president Donald Trump. But she has clearly kept working hard on the matter, which she originally, if unrealistically, hoped to get to trial back in March. She intended to hit the ground running once the Supreme Court transferred the case back to her — and so she has.
Jurisdiction was returned to Judge Chutkan on Friday, August 2, with the issuance of the formal mandate from the Court’s July 1 immunity ruling in Trump v. United States. Wasting no time, the judge issued two decisions the following day, a Saturday.
Notwithstanding this transparent effort to get it back on track, there are now too many obstacles for the anti-Trump lawfare crusade to exact the damage Democrats hoped to inflict on Trump’s 2024 presidential campaign. The former president’s counter-strategy — delay, delay, delay — has succeeded.
The Two Saturday Rulings
In a 16-page ruling, Chutkan denied Trump’s motion to dismiss the indictment based on claims that a selective and vindictive prosecution has been waged by the Biden–Harris administration’s special counsel, Jack Smith. In an additional one-page order, Chutkan envisioned a resumption of the proceedings during the closing weeks of the presidential campaign, in which Trump, the Republican nominee, is now opposed by Vice President Kamala Harris rather than President Joe Biden.
The latter order directed the parties to file, by this coming Friday (August 9), a joint status report. This is in anticipation of a pretrial hearing that Chutkan plans to convene the following Friday (August 16) — right before the Democratic National Convention, which opens in Chicago on August 19.
Applying the High Court’s Immunity and Obstruction Decisions
The parties’ status report will focus on the immediate task at hand: sorting out immunity.
In Trump, the Court (a) held that Trump has at least presumptive immunity from prosecution for all his official acts as president, and absolute immunity for official acts at the core of the executive’s constitutional duties; and (b) remanded the case to Chutkan, of the Washington, D.C., federal district court, for further proceedings, beginning with an exacting determination of which allegations in the indictment implicate official acts. That determination is to be guided by principles generally laid out in the Trump majority opinion.
Judge Chutkan’s task is complicated by the sweeping nature of the Court’s delineation of immunity. Not only are presidents immune from prosecution for acts that could themselves be charged as crimes — e.g., hypothetically, ordering an assassination of an enemy combatant on U.S. soil. Under Trump, prosecutors are further prohibited from using immunized conduct as evidence of crimes for which a president is not immune.
Ergo, in one of the few instances in which it undertook to concretely apply the general immunity principles it outlined in Trump, the Court held that Smith is barred from proving the election-interference charges by introducing evidence that Trump directed Justice Department officials to hype allegations of voting fraud. Smith is probably also barred from using evidence of Trump’s communications with then–vice president Mike Pence, in which he pressured Pence to negate the electoral votes several states had cast for Biden. The evidence of these Trump interactions with the DOJ and the VP is central to Smith’s indictment; but it implicates core presidential functions, so it must be excluded.
Further inhibiting the prosecution is another recent Supreme Court decision. In Fischer v. United States, the Court held that Capitol rioters could not be charged with obstruction of Congress based on violent actions that impeded and delayed the January 6 election-certification proceeding. (The statute only applies to acts that corrupt evidence to be offered in an official proceeding — e.g., witness tampering or falsification of documents — not acts that may prevent such a proceeding from taking place.)
Obviously, Chutkan is turning expeditiously to (a) the task of determining which of the indictment’s allegations (and any other evidence Smith hopes to offer even if it is not spelled out in the indictment) implicate official acts, and (b) the question of whether the obstruction charges — two of the indictment’s four counts — must be dismissed.
While she ordered the parties to submit a “joint” status report this week, Chutkan qualified that it be joint only “to the extent possible.” This is a bow to reality. The parties have very different views on how the case should proceed: Smith is eager to keep the proceedings thrumming along, even if his hope for a pre-election trial has been dashed; Trump is trying to keep delaying things, in the hope that he will win the election and, upon taking office, have Smith removed and the indictment withdrawn.
It follows, then, that the prosecution and defense are at loggerheads over the Supreme Court’s Trump decision: Smith will push for the narrowest possible construction of immunity (relying on Justice Amy Coney Barrett’s concurrence, which no other justice joined); Trump will stress Chief Justice John Roberts’s majority opinion, which suggests that immunity from prosecution for presidential acts may be even broader than Trump’s own counsel contended in the appeal.
The Appointments-Clause Complication
Chutkan’s fast-tracking of the immunity questions is consistent with the Supreme Court’s admonition that, because an immunity claim casts doubt on the fundamental validity of the prosecution, it should be resolved as early as practicable.
Hence, it is worth noting that, in his Trump concurrence, Justice Clarence Thomas observed that any questions about whether the prosecutor is constitutionally qualified to bring a criminal indictment also go to the validity of the prosecution and should be resolved at an early stage — i.e., before more mundane pretrial motions to dismiss charges or suppress evidence.
About three weeks ago, as I detailed here and here, Judge Aileen Cannon ruled that the federal indictment against Trump in Florida — alleging illegal retention of intelligence documents and obstruction of the investigation — had to be dismissed because Smith’s designation as special counsel violated the Constitution’s appointments clause (and because the Justice Department did not propose any curative measures that would address this constitutional infirmity short of outright dismissal). In part of her scholarly 93-page opinion, Judge Cannon relied on Justice Thomas’s Trump concurrence.
Back in April, at oral argument of the immunity issue in the election-interference case, Trump lawyer John Sauer represented to the Court (upon questioning by Justice Thomas) that the defense intended to file a motion to dismiss the case based on the same appointments-clause theory. Although Trump had by then challenged Smith’s appointment in the Florida case, Sauer claimed that Team Trump had not yet submitted such a motion in the Washington case because Judge Chutkan’s lower court lacked jurisdiction to entertain pretrial motions while the immunity issue was pending on appeal.
Sauer did not volunteer an explanation of why the defense had not filed an appointments-clause claim at some point between the filing of the indictment (August 1, 2023) and the initial appeal of Chutkan’s denial of Trump’s immunity claim in December — a four-month period during which Trump filed many other pretrial motions (including the aforementioned selective/vindictive prosecution claim that Chutkan rejected on Saturday). I suspect Team Trump delayed because defense lawyers did not appreciate the strength of the appointments-clause claim until several prominent legal scholars — including former attorneys general Ed Meese and Michael Mukasey — signaled that they would file amicus briefs on the issue. In any event, expect Chutkan to ask some pointed questions about the tardiness of Trump’s appointments-clause motion in the election-interference case.
To be clear, Chutkan is not bound to follow the decision by Cannon, a peer lower-court judge from another district. To the contrary, she is bound by D.C. Circuit precedent. Back in 2019, the D.C. Circuit rejected a similar challenge to the appointment of former special counsel Robert Mueller in the Trump–Russia “collusion” caper (unconvincingly in my view).
Timing Trumps Substance
In the short term, then, the timing is more significant than the substance of the appointments-clause litigation — which, as I’ve pointed out before, the Justice Department could easily circumvent by reassigning Smith to work under the supervision of Biden-appointed, Senate-confirmed district U.S. attorneys. (In his mulish unwillingness to concede that Thomas and Cannon might be right, Biden’s attorney general, Merrick Garland, has refused to do this.)
When Chutkan inevitably — and no doubt swiftly — denies Trump’s anticipated appointments-clause motion, Trump will seek to appeal pretrial. I believe he will be permitted to do that because, like immunity, Smith’s appointment is a constitutional issue relevant to the validity of the prosecution. Meantime, the Justice Department is appealing Cannon’s ruling to the Eleventh Circuit. I’m betting that the D.C. Circuit will uphold Smith’s appointment while the Eleventh Circuit will affirm Cannon’s ruling that Smith’s appointment is unconstitutional. That would set up another Supreme Court showdown, probably next year — assuming the federal prosecutions against Trump survive the 2024 election.
In the interim, let’s assume Chutkan construes the Court’s Trump ruling as narrowly as she can (no mean feat, since the ruling was anything but narrow). Her resolution will still leave us with a live controversy over immunity. As a result, Trump will be able to appeal Chutkan’s decision pretrial, and the matter could end up back at the Supreme Court after the D.C. Circuit does its review of Chutkan’s work.
That is to say: Even if Harris wins the election and her Justice Department proceeds with the Trump prosecutions, we could be well over a year away from any trial in the 2020 election-interference case.
Lawfare: A Spent Force
Of course, the Biden–Harris administration intended that case to stoke public interest in the here and now of the 2024 presidential campaign.
As we head into the campaign’s stretch-run, with just three months to go before Election Day, we are about to have a flurry of court proceedings in the election-interference case. Smith will use these proceedings to try to remind voters of what they found repulsive about the Capitol riot and Trump’s role in instigating it. Patently, that was his objective in pushing for a pre–Election Day trial — despite Justice Department rules against such election-influencing tactics. But pretrial proceedings lack the drama of a trial. Most of the “action” happens on paper, and tends to focus on technical legal points, not riveting testimony from key witnesses. Indeed, Chutkan has stipulated that Trump need not even attend the August 16 status conference.
Despite the best efforts of the judge and the prosecutor, there is no practical possibility of a trial of Trump prior to the inauguration of the next president on January 20, 2025, much less prior to the 2024 election. They can try to revive lawfare, but as a Democratic campaign strategy, it is a spent force.