Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno.
Scheduling hearings in criminal trials is usually about calendars. The court calendar, the prosecutor’s calendar, the defense counsel’s calendar, and sometimes the calendar for witnesses or defendants are all subject to many material discussions of other trials, holidays, and vacation schedules.
Presidential election dates are never discussed because election days are not federal holidays. But in the east a scheduled hearing was held before Judge Tonya Chutkan President TrumpThe January 6 election interference case was an exception. The 2024 election — just 60 days away when Judge Chutkan held her hearing — loomed over the courtroom like an evil spirit.
Trump’s legal team repeatedly tried to use that sentiment as a reason for delay, even as special counsel Jack Smith’s team and Judge Chutkan tried hard to get him out of the courtroom. In the end, he could not be deported.
Trump’s standard operating procedure of delay is evident throughout this case and all of his legal cases. The motivation is clear. Delay always helps the defendant. Memories fade, evidence can be damaged and lost, and even prosecutors and investigators can give up. But an added factor for Trump is that if he can delay any trial until after the election, he avoids a lack of negative publicity and also wins the power to get rid of any federal charges against him if he wins the election.
A ticking clock has put Special Counsel Jack Smith and the Justice Department in a uniquely difficult position. Prosecutors are rarely pressed by the clock because there are time limits on how old cases can be—while an investigation is active or if a case has already been charged—while defendants rarely object to delays. But here the watch is completely different. When it ends, it gives Trump a potential power that no other defendant could dream of wielding: the power to dismiss the charges against him.
Against this backdrop, Justice Chutkan and the team of special counsel worked hard to push the case forward. Prosecutors scoffed at Trump’s requests for a delay, pointing out to the court that following the US Supreme Court’s presidential immunity ruling, Trump’s lawyers managed to file a 52-page brief within days as they sought to use the high court’s favorable ruling. To dismiss Manhattan District Attorney Alvin Bragg’s fraud conviction in front of Trump.
For her part, Judge Chutak was as clear as possible in an exchange with a Trump attorney in which she said: “This court is not concerned with the election schedule.” When the Trump attorney responded, “We’re talking about the presidency of the United States,” Chutkan Answered: “I am not talking about the presidency. I’m talking about the four-count indictment.
With that statement, Justice Chutkan also cut to the heart of what the hearing was about how the court and lawyers should implement the Supreme Court’s presidential immunity ruling. That ruling found for the first time that the president is largely immune from criminal charges for official acts — a term the high court has defined so broadly that it would allow the president to enter into criminal conspiracy with his own attorney general or order his military to commit political assassinations. Rivals
In response to the opinion, Smith’s office had already downplayed the indictment and removed evidence related to any conversations Trump had with Justice Department officials. What remains to be navigated is evidence related to then-Vice President Mike Pence.
Specifically, the court must determine whether Pence’s evidence would be in his official capacity as vice president or in his non-executive branch role as Senate president pro tempore—the latter role being the one in which Pence certified the results of the Electoral College count. . The distinction is crucial because allegations that Trump tried to deny Pence the certification of Electoral College results are a key part of the proceedings.
Anticipating appeals to Pence’s issue—and others—Smith’s team proposed a comprehensive motion in which they would ask Chutkan to address all of the immunity issues. Trump’s team objected both to the timing—they wanted to advance the resolution in December—as well as to the process, essentially suggesting that these issues need to be broken down into pieces. Such an approach, as Smith’s team points out, would likely result in an endless series of appeals to the Court of Appeals and the US Supreme Court.
In the end, Chutkan favored action over time and substance. She set a briefing schedule in which Smith’s team would file a brief by Sept. 26 outlining their arguments about immunity issues. Smith’s team is expected to present in that brief a rare pre-trial preview of the evidence they plan to present at trial.
While most of it will be filed under seal—in large part to protect the secrecy of the grand jury—unless parts are unsealed or made public, the effect is that the voting public could be informed of many more details of Trump’s alleged wrongdoing just weeks before. . Trump’s team will have until Oct. 16 to respond to Smith’s filing.
But whatever the win for Smith’s team in the briefing schedule that will at least begin before the election, the biggest one is for the Trump team.
“A win is a win, and one can feel the smugness and confidence in the Trump team’s banter with Judge Chutkan.”
This is a victory for the Trump team because their goal of ensuring that federal trials do not take place before the election has been accomplished. Of course, they were helped to accomplish that. A late start by the Justice Department, Judge Cannon’s surprisingly incompetent decisions, and of course, the US Supreme Court case granting Trump immunity in a decision that not only protects Trump but also guarantees further delays as they order the trial court to was given First crack at interpreting his immunity theory.
But a win is a win, and the smugness and confidence can be felt in the Trump team’s banter with Judge Chutkan. Trump’s lawyer, John Lauro, said the words to Chutak in an initial communication with the court effect “Life hasn’t been the same without seeing you.”
Later, he gave an opinion that “I am an originalist” as he referred to the Supreme Court decision. The latter is a remarkably narcissistic statement for a lawyer to make in a federal trial court. No one cares what views criminal defense lawyers hold on constitutional interpretation. Supreme Court judges also refrain from boasting about their principles inside the courtroom.
But Supreme Court justices, like other judges, don’t win cases. They judge them. Lawyers win cases and make no mistake about it: Trump’s team has scored a historic victory by ensuring they can’t be tried before the election. However, the damage has been suffered not only by federal prosecutors but by our entire democratic process which is now forced to vote in darkness without the sunlight that would properly provide a public trial at this most critical historical moment.
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