The hearing Thursday in the case accusing former President Donald J. Trump of seeking to overturn the 2020 election is largely being held to answer a single question: How should the presiding judge, Tanya S. Chutkan, move the matter forward in light of the Supreme Court’s recent ruling granting Mr. Trump broad immunity from criminal prosecution?
That is, the hearing will focus on the legal steps that will be used in the later and more substantive undertaking of sorting out which parts of Mr. Trump’s indictment need to be tossed out under the court’s immunity decision and which can survive and go to trial.
To that end, Judge Chutkan will consider proposals from Mr. Trump’s lawyers and from prosecutors in the office of the special counsel, Jack Smith. By the end of the proceeding, in Federal District Court in Washington, she will most likely at least signal how she intends to move forward and how much time it may take to complete the task.
When justices handed down their immunity ruling in July, they granted Mr. Trump — and all other future former presidents — wide-ranging protections against charges arising from actions they took in their official capacity. And as part of the ruling, they sent the case back to Judge Chutkan and ordered her to do the complex work of determining which of the indictment’s many allegations stemmed from Mr. Trump’s official acts as president and which arose from unofficial acts — say, from his private role as a candidate running for office.
There are different ways that Judge Chutkan could conduct that sorting process.
She could order the two sides to submit filings to her laying out their separate positions, perhaps supported by facts drawn from interviews with — or sworn statements from — some of the many witnesses who gave information to Mr. Smith’s team during their investigation.
In theory, Judge Chutkan could also schedule another hearing and make some of those witnesses testify in public, though that seems unlikely in the near term given that neither Mr. Trump’s lawyers nor Mr. Smith’s deputies have requested such a proceeding.
Instead, Mr. Smith’s team said last week that it would prefer to begin the process by filing written submissions alone and suggested that the papers could be ready as soon as Judge Chutkan wanted to read them. The prosecutors also told the judge that they planned to include some new evidence against Mr. Trump that was not in their recently revised indictment but could ultimately be used to prove their case. Still, it remains unclear whether that evidence will be filed publicly or submitted under seal.
Mr. Trump’s lawyers laid out a much broader vision of how they would like to proceed, saying that they want to push back any discussion of immunity until after the election in November. That move, if successful, could avoid any potentially damaging new evidence about Mr. Trump coming out before voters go to the polls.
The lawyers have told Judge Chutkan that they would like to challenge the new indictment on entirely separate legal grounds before considering the question of immunity.
They intend, for instance, to file a motion claiming that the election interference charges need to be tossed altogether because Mr. Smith was improperly appointed to his job as special counsel. In July, a federal judge in Florida used that same rationale to dismiss the other case Mr. Smith brought against Mr. Trump — the one accusing him of illegally holding onto dozens of classified documents after he left office.
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