Former President Donald Trump has good defenses available to him but that doesn’t mean he will be treated fairly by the federal judge in Washington conducting his election interference trial, legal experts told The Epoch Times.
Judge Tanya Chutkan, who was appointed to the U.S. District Court for the District of Columbia in 2014 by President Barack Obama, has scheduled the trial on election obstruction charges to begin on March 4, 2024.
Critics say Judge Chutkan has been unfair to those charged in the security breach and rioting at the U.S. Capitol on Jan. 6, 2021, that delayed congressional certification of the 2020 presidential election by a few hours. She has often imposed prison sentences on those defendants that are harsher than what U.S. Department of Justice (DOJ) prosecutors have sought.
Trial Date
President Trump’s attorneys had asked for a trial date in April 2026, which is long after the November 2024 election, although the judge said the defense didn’t need that long to put its case together.“Mr. Trump will have to make the trial date work, regardless of his schedule,” Judge Chutkan said.
The trial date is a political problem for President Trump, who is campaigning for the presidency for the third time, because it falls the day before the Republican Party’s “Super Tuesday” primary contests in 15 states, including the convention delegate-rich states of Texas, California, and North Carolina.
President Trump and his supporters say that the scheduling of the trial by the Democrat-appointed judge constitutes interference in the 2024 election. While his legal team may yet succeed in delaying the trial date if it files appeals in the U.S. Court of Appeals for the District of Columbia Circuit or in the Supreme Court, the outcome of any such appeals is uncertain.
‘Outcome-Determinative Fraud’
The indictment (pdf) approved by the grand jury on Aug. 1 states that after losing the 2020 presidential election, President Trump “spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false.“But the Defendant repeated and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”
President Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures.
“Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.”
But after Election Day, he “also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies:
“a. A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government, in violation of 18 U.S.C. [Section] 371;
“b. A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified (‘the certification proceeding’), in violation of 18 U.S.C. [Section] 1512(k); and
“c. A conspiracy against the right to vote and to have one’s vote counted, in violation of 18 U.S.C. [Section] 241.”
Section 241 of Title 18 of the U.S. Code, is a law that dates back to the Reconstruction era. The provision was part of the Enforcement Act of 1870, one of the laws known as the Ku Klux Klan Acts that were enacted to protect the rights of blacks that were newly recognized by the 13th, 14th, and 15th Amendments to the U.S. Constitution, from infringement by once-powerful organizations such as the Klan.
‘Difficult Case’
Criminal defense attorney and former deputy district attorney David Gelman of Gelman Law in Cherry Hill, New Jersey, said the prosecution is going to have a hard time.“I think it’s going to be a very difficult case for them to prove,” Mr. Gelman told The Epoch Times in an interview.
“Just conspiracy alone—I don’t know how they’re going to possibly prove that the president ... conspired or agreed to commit an act or an overt act in furtherance of a crime. ... I don’t know how they’re going to do that,” he said.
“I think the federal government has a pretty high burden to prove here, where I don’t think they’re going to be successful in doing so.”
Trying President Trump as early as March 2024 is “impossible,” he said. “I would bet everything I got that that will not occur.”
The prosecution disclosed almost 11 million documents to the defense and “there is just no way that his legal team is going to be able to ... look through all the discovery,” prepare the president, and have a trial in that time frame.
“It would violate his due process rights,” he said.
Immunity
Mr. Levey said Judge Chutkan is “hostile to Trump.”She is likely to reject any argument that President Trump is immune from prosecution based on his activities being related to his job as president, Mr. Levey said.
If any unfavorable rulings the judge may make are appealed, the U.S. Court of Appeals for the District of Columbia Circuit, which is “politicized” and “leans left,” will probably rule against President Trump, so “it’s ultimately going to be up to the Supreme Court.”
Mr. Levey said the Supreme Court has been “all over the place with presidential immunity, and that’s because it’s not in the Constitution,” although it’s implied that the president “has to have a reasonable amount of immunity in order to do his job.”
“The court has tried to strike a balance between justice and the fact that the president has to function,” he said.
“You don’t want to chill free speech, you don’t want to chill the decision-making ability of a president, so you have to steer very clear of anything that can be within the president’s legitimate functions. Otherwise, you’re going to chill the decision-making ability of this and future presidents,” he added.
Although the Supreme Court has ruled on issues related to presidents and executive branch employees being sued or criminally investigated, this is the first time that a former president has ever been indicted before.
Complicating matters further is the fact that President Trump is running to get his old job back and might be president again in January 2025. If the prosecutions are still in progress at the outset of a second Trump administration, it’s unclear what will happen to them.
In 1982, the Supreme Court ruled in Nixon v. Fitzgerald that a president enjoys absolute immunity from liability for civil damages related to official actions taken while in office.
But in 1997, the court found that President Bill Clinton couldn’t avoid a civil lawsuit over events that took place before he became president.
Criminal Intent
The prosecution in D.C. federal court is going to have trouble proving criminal intent, according to Mr. Levey.“Anyone you talk to who knows Trump says he still to this day believes that the election was stolen,” so proving intent “is going to be difficult,” he said.
The fact that he received advice from counsel “goes towards intent” and that “he reasonably thought this was a legitimate way to proceed,” he continued.
This doesn’t necessarily mean he will win, “but a good lawyer doesn’t just press the obvious arguments—they press arguments that stretch the law to its outer boundaries.”
And the fact that the indictment drawn by DOJ special counsel Jack Smith discusses President Trump’s First Amendment rights and details things such as what he wrote on Twitter, which has since been renamed X, suggests that the “allegations are weak,” Mr. Levey said.
“It’s a difficult process,” he said. “In a non-politicized situation, it never would have even been brought.”
Prosecutors, unlike defense attorneys, shouldn’t be bringing cases “involving incredibly novel legal theories,” Mr. Levey said.
The goal of the Biden administration here “is not to ultimately prevail on appeal. They want, at very least, to cast a cloud over Trump during the election ... to have the trials going on during the election.”
Supreme Court
The Supreme Court may take a pass on many issues raised but “the immunity issue is probably one that they need to address,” Mr. Levey said.Chief Justice John Roberts and Justice Brett Kavanaugh are cautious and don’t want to be viewed as political and may “decide to sidestep it,” but “this is such a basic and important constitutional issue—presidential immunity—that I’d certainly like to think that the court will, as much as it might pain them to do, address it before final judgment,” instead of choosing to “kick the can down the road a few years,” he added.
Mr. Gelman said the presidential immunity defense needs to be pursued.
“Because you’re the president [and] your No. 1 job is to make sure that the country is safe, but at the same time, you are a political figure—so as long as he can distinguish that what he did, if he did anything, he was acting in his presidential capacity, not in a political capacity,” he said.
He said he assumes the defense counsel will attack the multiple conspiracy charges by arguing President Trump was acting within his authority as president.
“There’s nothing illegal” about asking individuals to check out voting machines, the lawyer said.
“You’re allowed to challenge and you’re allowed to question elections. That is what he’s arguing. And that would be his defense, not just for the conspiracy aspect, but just in general, because as long as you generally believed that” there were election-related improprieties going on, “you have the right to challenge it,” he said.
Election Challenges
Many other elections have been challenged without the challengers being charged with crimes, Mr. Gelman said.In 2018, the Democrat gubernatorial candidate in Georgia, Stacey Abrams, challenged her narrow loss to Republican Brian Kemp and she wasn’t charged. “She still believes that the election was stolen from her,” he said.
Democrat Al Gore wasn’t charged after he challenged his loss in the 2000 presidential election to Republican George W. Bush.
“That was challenged up and down,” he said.
“This is just another example of a president, or just an individual in politics, who believes that there were some inaccuracies, and some things that were wrong in certain places, and [President Trump] is challenging them.”
Responding to allegations that the charges were brought against President Trump to hobble his campaign, Mr. Gelman said, “I think there could definitely be something there. Where there’s smoke, there’s fire.”
“All these charges have been filed within the last couple of months, when all these allegations occurred, over two years ago.”
“It’s very coincidental that the charges have been filed just around election time. And these trial dates are being proposed or scheduled around primary season,” he said.
“So he would definitely have a very strong argument regarding election interference, if—and this is a big if—his legal team can prove that the DOJ ... is, in fact, proposing these dates and charging him with these types of allegations and crimes due to the fact that he’s running for president.”
