WASHINGTON ― A federal judge on Thursday is holding her first hearing in Donald Trump’s criminal case for his Jan. 6, 2021, coup attempt, following a Supreme Court ruling that gave the former president immunity for “official acts” — and just days after he claimed he had “every right” to do what he did.
U.S. District Judge Tanya Chutkan is expected to lay out a schedule for the revised indictment of Trump filed by special counsel Jack Smith last week.
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The superseding indictment, as it is known, retains the four felony charges from the original 2023 case: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstructing an official proceeding; and conspiracy to deprive millions of Americans of their right to have their votes counted.
It deletes references, though, to Trump’s attempts to coerce Department of Justice officials into falsely claiming that fraud had marred the 2020 election.
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If convicted, Trump could receive decades in federal prison.
The Supreme Court ruled in July that a president has complete immunity from prosecution for “official” actions, including hiring and firing employees within the executive branch and demanding that they carry out certain instructions.
In a court filing accompanying the revised indictment, Smith wrote that he sought the new one to comply with the high court’s precedent-setting new guidance.
The morning hearing, which Trump is not expected to attend, comes just four days after Trump told Fox News’ Mark Levin: “Whoever heard — you get indicted for interfering with a presidential election, where you have every right to do it, and your poll numbers go up?”
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After regaining control of the case last month, Chutkan immediately scheduled a status conference to hear how prosecutors and Trump’s lawyer envision going forward, in light of the Supreme Court immunity decision. The original Aug. 16 court date was postponed at Smith’s request.
The reason for the delay was unclear at the time, but now appears to have been because Smith was in the process of presenting the charges to a new federal grand jury ― presumably so that Trump cannot argue that the original, 2023 grand jury’s decision to indict him had been tainted by evidence that the Supreme Court subsequently said could not be used.
Trump will be officially arraigned on the revised indictment at Thursday’s hearing, although Chutkan granted his request to not attend it in person and to instead allow his lawyers to plead not guilty on his behalf.
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In a filing last week, Smith said he is prepared to move forward quickly to reveal to Trump and to the court “additional unpled categories of evidence.” Smith intends to use this evidence to back up his argument that the new indictment does not intrude on any of Trump’s “official” actions as president, for which the Supreme Court ruled he can’t be prosecuted.
“The government is prepared to file its opening immunity brief promptly at any time the court deems appropriate,” Smith wrote in his section of the joint filing.
Trump’s lawyers, in contrast, wrote in their portion of the filing that they want to be able to put off their motion asking Chutkan to dismiss the case, based on the high court’s presidential immunity decision, until December.
That plan suggests they will argue that everything Trump is accused of doing in the revised indictment is “official” conduct protected by the Supreme Court’s ruling. Their proposed schedule foresees additional motions and hearings straight through the autumn of 2025, with no trial date in sight.
What’s more, Trump’s lawyers said that the GOP presidential nominee should be spared the “opprobrium” that comes with criminal court proceedings, and that decisions regarding immunity and their other planned motions to dismiss should be rendered “as a matter of law,” without consideration of any evidence.
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A number of Trump’s former aides had testified last year, before the original grand jury, including former Vice President Mike Pence. If Chutkan holds an evidentiary hearing, they’d likely be called to testify again.
Trump’s lawyers made it clear they would oppose that. “The court should take every reasonable step possible to resolve the case on legal grounds, before permitting an invasive public inquiry regarding President Trump’s official conduct while in office,” John Lauro and Todd Blanche wrote.
Trump faces a second indictment based on his coup attempt in Georgia, as well. If convicted on the most serious felonies, he would face decades in state prison there.
A second, unrelated federal prosecution for his refusal to turn over secret documents he took with him to his South Florida country club upon leaving the White House was dismissed by the trial judge, but that ruling is currently under appeal with an appellate court in Atlanta.
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Finally, Trump is scheduled to be sentenced in New York City on Sept. 18, after he was convicted on 34 felony counts in May for falsifying business records to hide a $130,000 hush money payment to a porn actor in the days ahead of the 2016 election. He could receive as much as four years in prison on those charges.
If Trump wins the presidency in November, he would almost certainly order his attorney general to dismiss the federal cases against him and would likely seek to postpone the state-level cases until he is no longer in office.
