Judge Sets Schedule in Trump Federal Election Case, Allows DOJ to File Evidence Before Election

Republican presidential nominee, former U.S. President Donald Trump participates in a Fox News Town Hall with Sean Hannity at the New Holland Arena in Harrisburg, Pa., on Sept. 04, 2024 Kevin Dietsch/Getty Images

WASHINGTON—U.S. District Judge Tanya Chutkan issued an order on Sept. 5 outlining a series of deadlines for former President Donald Trump’s federal election interference case.

Her order allows special counsel Jack Smith to release evidence in the case before the November election and seemed to favor Smith’s approach of concurrently addressing various issues rather than a more incremental approach advanced by Trump’s attorneys.

More specifically, Chutkan required a brief from the Department of Justice on presidential immunity by the end of the day on Sept. 26. Trump, meanwhile, is expected to file a renewed motion to dismiss based on presidential immunity by Oct. 17.

The order requires the DOJ to complete all mandatory evidentiary disclosures by Sept. 10.

The current schedule runs through Nov. 7 with briefing surrounding an expected motion to dismiss that challenges the legitimacy of Smith’s appointment. Chutkan also reopened a motion to dismiss based on statutory grounds and set up deadlines for briefing on that issue from Oct. 3 through Oct. 17.

Timing

The schedule was issued after Chutkan and Trump attorney John Lauro discussed the timing of pretrial proceedings and the 2024 presidential election.

Chutkan told Lauro that the court has said the timing of the election was not relevant and that she wouldn’t consider that factor in scheduling pretrial proceedings.

“This case has been pending for over a year,” Chutkan said. The judge said that the court was “hardly sprinting” toward the finish line.

“We can’t even really contemplate a trial date because of the looming appellate issues,” she said before adding there needs to be some “forward motion” in this case.

Trump is expected to withdraw the prosecution if he wins takes office in 2025. As the special counsel noted, at least one immunity-related appeal is anticipated. The issue could then return to the Supreme Court before any potential trial.

It’s unclear when pretrial litigation over immunity will end but Chutkan set the last briefing deadline on that issue for Oct. 29. “After briefing, the court will determine whether further proceedings are necessary,” her order read.

Chutkan’s schedule did not yet include an evidentiary hearing, which was something attorneys had speculated the special counsel might use to showcase potentially embarrassing details about Trump before the election.

Immunity

Chutkan’s schedule was a major step for Trump’s case, which started in 2023 and has been stalled due to an appeal related to presidential immunity.

Much of the discussion during the Sept. 5 status conference centered on how the court would apply the Supreme Court’s opinion in Trump v. United States, which established multiple levels of legal immunity for presidents.

Thomas Windom, an attorney with the special counsel’s office, asked Chutkan to allow the DOJ to file a comprehensive brief on presidential immunity. He aimed to ensure that the case would see only one appeal on immunity before the start of the trial.

Lauro saw the special counsel’s approach as unfair and favored a more incremental approach that would require Chutkan to first determine whether the superseding indictment, filed by Smith on Aug. 30, was legal based on Trump v. United States.

Chutkan worried that doing so would risk reversal from a higher court but also said that she risked reversal no matter what she did.

Lauro and Chutkan clashed during the status conference while discussing how the Supreme Court had handled the special counsel’s allegations about Trump’s interactions with former Vice President Mike Pence.

Lauro thought that issue could prompt Chutkan to dismiss the indictment on legal grounds while she indicated an interest in reviewing some of the evidence surrounding those interactions concurrently with questions of law.