A federal judge said Thursday she will not let former President Donald Trump’s campaign for the White House affect the timing of the criminal case in which he is accused of conspiring to overturn the 2020 election.
In an hour-long hearing, Judge Tanya Chutkan said the November election was simply “irrelevant” to the timing of the Trump case.
“I’m certainly not getting drawn into an election dispute,” she told Trump’s lawyer.
The hearing, held in U.S. District Court in Washington, was held to discuss next steps in the case, which has been pending for months as Trump pursues all the way to the Supreme Court a claim that he is immune from prosecution on charges brought against him by special counsel Jack Smith.
The Supreme Court ultimately ruled in Trump’s favor in July, granting him some immunity from charges stemming from certain official acts as president. The justices also ordered Chutkan to undertake the complex task of sorting through a newly revised indictment and deciding which of the many allegations it contains should be dismissed under the immunity ruling and which can survive and stand trial.
Chutkan did not say how she plans to carry out the task or a timeline for doing so, but said she would issue a written order outlining her plans as soon as possible.
The hearing, the first in the case since October, showed once again how far the defense and prosecution are at odds over the scheduling issue.
Speaking for the special counsel’s office, a prosecutor, Thomas P. Windom, told Chutkan that the government could send him a detailed brief in about three weeks, laying out its views on why the entire new indictment should be able to withstand the Supreme Court’s immunity ruling.
Windom noted that the dossier would likely contain new information, such as FBI interviews with witnesses, that would bolster the government’s claim that Trump was not acting in an official capacity when he sought to overturn his loss to Joe Biden, but rather was acting in his private role as a candidate for public office.
Trump’s attorney John Lauro took a very different position on how to proceed, saying any debate over immunity should be pushed back until at least December, after the election, while the defense seeks to attack the case on separate grounds.
Lauro said, for example, that he intends to file a motion asking that the case be dismissed because Smith was wrongly appointed as special prosecutor.
When Chutkan asked Lauro why he wanted to delay immunity discussions until winter, he acknowledged that he was concerned that the new information about Trump that the administration wanted to make public would come to light at a “sensitive time,” that is, before the election.
This led Chutkan to say that she considered the timing of the election irrelevant.
“It seems to me that what you’re trying to do is influence the presentation of evidence in this case so as not to interfere with an election,” she told Lauro.
Lauro also argued that Chutkan should forgo a factual debate over immunity and consider some issues related to the topic on a purely legal basis. In particular, he pointed to issues surrounding Trump’s pressure on former Vice President Mike Pence to use his ceremonial role in the Jan. 6, 2021, Electoral College vote counting process in Congress to disrupt the certification of Biden’s victory.
Lauro argued that the information about Pence should be considered immunized — and, if so, the indictment should be dismissed because the grand jury brought the charges after being improperly exposed to information that was prohibited.
Windom argued, however, that even in such a case, the indictment could stand if Chutkan decided there was enough evidence for the grand jury to approve the charges. He also argued that all immunity issues should be addressed at the same time so that there would be only one additional appeals battle on that issue.
Both sides and Chutkan seemed to agree that whatever decision he made would be appealed again to the Supreme Court, causing further delay.
The hearing began with a brief rehearing of Trump, who was not in the courtroom because he was in New York campaigning. Through Lauro, Trump pleaded not guilty to a revised indictment that Smith obtained after the Supreme Court ruling. The charges were the same as in the original version, but some portions — particularly evidence about Trump’s interactions with Justice Department officials as he sought to overturn his election defeat — were withdrawn as being deemed immune from liability.
Separately, Trump’s legal team intends to pursue the argument that the case should be dismissed, based on the theory that Smith’s appointment by Attorney General Merrick Garland was illegitimate. Lauro noted that Justice Clarence Thomas, in a concurring opinion in the immunity case, questioned how Smith got his job.
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Although no other justices have joined that opinion and higher courts have upheld the authority of attorneys general to appoint special prosecutors in several cases dating back to the Watergate scandal, a Trump-appointed federal judge in Florida, Aileen Cannon — citing Thomas — dismissed the Trump classified documents case in July on the grounds that Smith was improperly appointed.
Chutkan, appointed by former President Barack Obama, at one point argued with Lauro over whether he should be able to challenge Smith’s appointment in her court. She noted that she didn’t find the argument “particularly compelling” and pointed out that there is binding precedent that special prosecutors are in fact legal, set by the federal appeals court that oversees her.
Defending that there was nevertheless a genuine legal problem, Lauro said Thomas had “ordered” us to raise the issue. Chutkan interrupted him, asking sarcastically: “He ordered you to do this?”
Sitting silently in the courtroom, watching the proceedings, Smith seemed to share the judge’s skepticism and nodded emphatically.
This article originally appeared in The New York Times.
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