After nearly eight months in limbo, former President Donald J. Trump’s federal election interference case sprang back to life on Saturday as the judge overseeing it scheduled a hearing in Washington for Aug. 16 to discuss next steps.
At the hearing, the judge, Tanya S. Chutkan, will discuss with Mr. Trump’s lawyers and prosecutors in the office of the special counsel, Jack Smith, how each side would like to proceed with a complicated fact-finding mission the Supreme Court ordered last month. The order was part of its landmark ruling granting Mr. Trump broad immunity against criminal prosecution for acts arising from his presidency.
A key element of that decision requires Judge Chutkan to sort through the 45-page indictment accusing Mr. Trump of plotting to overturn the results of the 2020 election, and decide which of its many allegations can move forward to trial and which arise from official acts of his presidency and will have to be tossed out.
The upcoming hearing, in Federal District Court in Washington, will be held to hash out the details of that fact-finding process. It remains unclear at this point whether Judge Chutkan will rely solely on written briefs from the two sides or whether she will schedule a more substantial hearing to consider evidence, perhaps from witnesses involved in the case, in what could resemble a mini-trial.
While her order on Saturday scheduling the hearing for mid-August was merely a procedural step, it was the first activity of any kind in the election case since December, when the prosecution was effectively frozen in its tracks as Mr. Trump’s immunity claims worked their way first through a federal appeals court, then up to the Supreme Court.
The Supreme Court handed down its ruling on immunity on July 1, but the justices held off issuing what is known as their mandate — or the formal execution of their decision — in the case until Friday. At that point, the case returned through the appeals court to Judge Chutkan, who issued her own order less than 24 hours later, setting the hearing in a couple of weeks.
As part of her order, Judge Chutkan told the defense and prosecution to submit to her by next Friday their written proposals for a schedule for pretrial proceedings.
“If necessary,” she wrote, “the parties may explain any disagreements in separate sections of the report.”
Mr. Trump’s lawyers are likely to request that any evidentiary hearing concerning which acts in the indictment are official and which are not be delayed until after the election in November. They will also likely try to narrow the scope of any evidence — including witness testimony — that Mr. Smith’s team may seek to introduce.
Prosecutors also face a complicated series of decisions about how to proceed.
It is all but impossible at this point that Mr. Smith and his deputies could bring Mr. Trump to trial on the election subversion charges before Election Day, given that the former president and his lawyers can appeal the interim decisions about which acts in the indictment are official. And if Mr. Trump regains the White House, he could order his Justice Department to kill the case.
But if Judge Chutkan moves quickly, as she has often been willing to do, a mini-trial in Washington before the election is, in theory, possible. Such a proceeding would allow Mr. Smith to air some of the evidence that he and his team have collected about how Mr. Trump tried to remain in power by plotting to overturn the results of the last election before voters go to the polls in the next one.
Still, prosecutors are generally loath to tip their hand to the defense before a trial takes place by letting witnesses testify in public. And lawyers for Mr. Trump will most likely complain that an expansive public hearing in the weeks before the election will be unfair to his campaign.
Making all of this more complicated for Judge Chutkan is that the Supreme Court provided a muddled series of guidelines for how to approach the questions that its ruling on immunity created.
The court has held that former presidents are completely protected against any accusations arising from their core constitutional duties, but that they can face prosecution for purely unofficial acts they took while in the White House.
But in their ruling, the justices created a third, more complicated category, which will most likely be the focus of Judge Chutkan’s work.
The court said that Mr. Trump is presumptively immune from prosecution for all official acts outside of core duties, but that prosecutors can overcome that presumption if they can get over a relatively high and somewhat vague hurdle: showing that any charges related to official acts would not result in intrusions on “the authority and functions of the executive branch.”
Moreover, the court has held that any evidence related to a president’s official acts cannot be used to bolster even charges that stem from personal acts. Mr. Trump’s lawyers are sure to seize on that finding to prevent as much evidence as possible from being considered in the fact-finding process.
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