He Won’t Be Tried Before the Election

Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno.

Scheduling hearings in criminal trials are normally all about the calendars. The court’s calendar, prosecutor’s calendars, defense counsel calendars and sometimes the calendar for witnesses or defendants all are the subject of a lot of rather mundane discussions of other trials, holidays and even vacation schedules.

Presidential election dates never enter into the discussion since election days are not federal holidays. But the scheduling hearing held before Judge Tonya Chutkan in former President Trump’s Jan 6 election interference case was an exception. The 2024 election—a mere 60 days away as Judge Chutkan held her hearing—loomed over the courtroom like a malevolent spirit.

The Trump legal team repeatedly tried to invoke that spirit as a reason for delay even as Special Counsel Jack Smith’s team and Judge Chutkan tried mightily to banish it from the courtroom. In the end, it could not be banished.

Trump’s standard operating procedure of delay has been obvious throughout this case and all of his legal cases. The motivation is obvious. Delay always aids the defendant. Memories grow stale, evidence can deteriorate and be lost, and prosecutors and investigators may even leave. But for Trump there is the added factor that if he can delay any trial until after the election, then he avoids the lack negative publicity and if he wins the election then he also wins the power to get rid of any federal charges against him.

The ticking clock has put Special Counsel Jack Smith and the Justice Department in a uniquely difficult position. Prosecutors rarely are pressured by the clock because while there are time limits on how old many case can be—when an investigation is active or if the case has already been charged—then defendants seldom object to delays. But here the clock is altogether different. When it runs out then it gives Trump a potential power no other defendant can dream of wielding: the power to dismiss the charges against himself.

Against this backdrop, Judge Chutkan and the Special Counsel team labored to push the case forward. Prosecutors poked fun at Trump’s requests for delay, pointing out to the court that following the U.S. Supreme Court’s Presidential immunity ruling, Trump’s lawyers had managed to produce a 52-page brief in a matter of days as they sought to use the high court’s favorable ruling to dismiss Manhattan District Attorney Alvin Bragg’s fraud convictions against Trump.

For her part, Judge Chutkan put it as plainly as possible in an exchange with a Trump attorney in where she said: “This court is not concerned with the electoral schedule.” When the Trump attorney responded, “We are talking about the Presidency of the United States,” Chutkan responded: “I am not talking about the presidency. I am talking about a four-count indictment.”

Leah Millis/File Photo/Reuters

With that statement, Judge Chutkan also cut through to the heart of what the hearing was all about which was how the court and lawyers were to implement the Supreme Court’s Presidential Immunity ruling. That ruling found for the first time that President’s are largely immune from criminal charges for official acts—a term the high court defined so broadly that it would allow the President to enter into criminal conspiracies with his own Attorney General or order his military to assassinate political rivals.

In reaction to the opinion, Smith’s office had already pared down the indictment and eliminated evidence pertaining to any conversations Trump had with Justice Department officials. What still remains to be navigated is evidence concerning then Vice-President Mike Pence.

Specifically, the court must decide whether evidence from Pence would be in his official capacity as Vice-President or in his non-Executive branch role as President Pro Tempore of the Senate—the latter being the role in which Pence certified the electoral college count results. The distinction is critical since allegations that Trump tried to strong-arm Pence into refusing to certify the electoral college results make up a central part of the prosecution.

Anticipating appeals of the Pence issue—and others—Smith’s team proposed an omnibus motion in which they would ask Chutkan to address all of the immunity issues. Trump’s team objected to this both on timing—they wanted to push the resolution into December—as well as on process, essentially suggesting that these issues needed to be broken up piecemeal. Such an approach, as Smith’s team pointed out, would likely result in an endless series of appeals to the Court of Appeals and the U.S. Supreme Court.

In the end, Chutkan sided with the prosecution on timing and substance. She set a briefing schedule in which Smith’s team will file by Sept. 26 a brief in which they lay out their arguments about immunity issues. Smith’s team is expected to set forth in that brief a rare pre-trial preview of evidence they plan to present at trial.

While much of that will likely be filed under seal—in large part to protect grand jury secrecy—to the extent parts are unsealed or public the effect could be to inform the voting public about a lot more detail of Trump’s alleged wrongdoing only weeks before the election. Trump’s team will have until October 16 to respond to the Smith filing.

But whatever victory there is for Smith’s team in a briefing schedule that will at least commence before the election, the greater victory has been for the Trump team.

It’s a victory for the Trump team because their goal of ensuring no federal trials before the election has been accomplished. True, they had help in accomplishing it. A late start by the Justice Department, Judge Cannon’s startlingly meritless decisions, and, of course, the U.S. Supreme Court’s case granting immunity to Trump in a decision that not only protects Trump but also ensured greater delay as they directed the trial court to take a first crack at interpreting their immunity doctrine.

But a win is a win, and one can feel the smugness and confidence in the Trump team’s bantering with Judge Chutkan. In opening dialogue with the court Trump lawyer John Lauro told Chutkan words to the effect of “life just hasn’t been the same without seeing you.”

Later, he opined that “I am an originalist” as he referenced 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 a criminal defense lawyers has on Constitutional interpretation. Even Supreme Court justices refrain from boasting inside the courtroom about their own theories.

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 won a historic victory by making sure he cannot be tried before the election. The loss, however, isn’t just suffered by the federal prosecutors but by our entire democratic process which is now forced to vote in darkness without the sunlight that a public trial would rightfully have provided at this most critical historical moment.