Trump team, special counsel back in court for first time since Supreme Court immunity ruling

Washington — Lawyers for former President Donald Trump and special counsel Jack Smith are back in U.S. District Judge Tanya Chutkan's courtroom Thursday for the first time since she regained control of the 2020 election-related case following the Supreme Court's landmark ruling on presidential immunity. 

The attorneys were poised to lay out their proposed paths for how pretrial proceedings should move forward in the wake of the July decision, which offered Trump and all former presidents protection from federal prosecution for "official acts."

Trump is not attending Thursday's hearing and has waived his right to appear. The former president was charged in a superseding indictment with the same four charges he initially faced.

He waived his presence at his arraignment, which was also held Thursday, and his lawyer John Lauro reaffirmed Trump would be pleading not guilty.

Chutkan said at the start of the hearing that she would not finalize a schedule at the hearing but planned to issue one later in the day.

The fight over the timeline

Ahead of the scheduled status conference, the judge asked both sides to present their arguments for how the case should proceed. In a court filing last week, Smith left the exact timeline up to Chutkan and indicated the court should promptly apply the high court's immunity ruling and make decisions accordingly. 

The special counsel has also proposed briefing on the immunity issue take place alongside other motions and issues raised by Trump.

Thomas Windom, a prosecutor on Smith's team, told Chutkan that moving forward as 

they proposed would "set the stage so that all parties and the court know the issues that the court needs to consider."

He also revealed that prosecutors intend to file a description of "pled and un-pled facts" tied to the new indictment returned by a federal grand jury late last month.

Should Chutkan agree with their schedule, Smith's team intends to lay out the facts both "inside and outside the indictment" and would include exhibits in the form of grand jury transcripts and interview transcripts, Windom said. 

The former president's legal team, meanwhile, urged Chutkan to give the parties more time to go over the potential legal questions and proposed a schedule that would extend pretrial proceedings in the case into the spring or fall of 2025, about two years after the charges were first filed and well after the November presidential election.

Trump's lawyers have argued the indictment should be tossed out on the grounds that Smith's appointment as special counsel and funding are unconstitutional.

They further argue that the case should be dismissed based on presidential immunity. In addition, they may seek to have two charges dismissed based on the Supreme Court's decision in June limiting the scope of a federal obstruction charge, the former president's legal team said in their filing.

John Lauro, a lawyer for Trump, pushed back on the special counsel's proposed way forward, saying that he "can't imagine a more unfair protocol for proceeding on these weighty issues."

"There are no special rules for the special counsel," he said.

Lawyers for Trump and the special counsel last appeared before Chutkan for a hearing in October, and proceedings in the case had been paused since December as the former president appealed her decision denying his request to dismiss the charges on immunity grounds.

The U.S. Court of Appeals for the District of Columbia Circuit also rejected Trump's claims that presidential immunity shielded him from criminal prosecution, though the Supreme Court eventually tossed out that decision and ordered additional proceedings consistent with its opinion.

The high court's conservative majority ruled in July that presidents and former presidents are immune from criminal prosecution for "official acts" they take during their presidency. Some of the conduct alleged in Smith's original indictment fell squarely under that umbrella, Chief Justice John Roberts wrote in the majority's opinion. For other allegations, the court left it up to Chutkan to decide whether Trump was acting in his capacity as the president or as a private candidate for office.

Last week, in advance of Thursday's hearing, Smith unsealed a superseding indictment against Trump removing the conduct that Roberts said was covered by presidential immunity. The former president still faces the same four federal counts — including conspiracy to defraud the U.S. — in a charging document that describes an alleged plot to subvert the results of the 2020 presidential election. Prosecutors said they made changes to adhere to the Supreme Court's decision.

Trump pleaded not guilty to the original 2023 indictment and authorized his attorneys to enter a not-guilty plea on his behalf to the new charging document. He has denied all wrongdoing.

Next steps in the Trump case

The way forward in the case remains uncertain as Trump and Smith's teams laid out opposing views for the pretrial schedule. Trump's team revealed in a court filing last week that they intend to file additional motions to dismiss the new indictment based on claims that the former president remains immune from prosecution on portions of the conduct included in Smith's latest indictment, including social media posts, public statements, communications with state officials and interactions with former Vice President Mike Pence. 

Prosecutors are likely to argue they tailored the superseding indictment to comply with the Supreme Court's ruling. They wrote last week that they will seek to "distinguish [Trump's] private electioneering activity from official action, and rebut the presumption of immunity as to any conduct that the court may deem official." 

Trump has already prevailed in efforts to have a second set of federal charges in South Florida tossed out. He faced 40 counts related to his alleged mishandling of sensitive government records after leaving office and attempts to obstruct the Justice Department's investigation.

But the judge overseeing the case granted Trump's request to dismiss the indictment on the grounds that Smith was unconstitutionally appointed and his office unlawfully funded. The special counsel has appealed that decision to the U.S. Circuit Court of Appeals for the 11th Circuit.

Trump's legal team said he will challenge the legality of Smith's appointment in D.C. and cited a concurring opinion from Justice Clarence Thomas in the immunity case, in which he questioned where the special counsel was properly appointed.

"If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people," Thomas wrote in his nonbinding opinion, which was not joined by any of the other justices.