District Court Judge Tanya Chutkan will face challenges getting a Trump case that’s unlikely to proceed to trial before the election — or possibly ever — back on track.
After former President Donald Trump’s presidential immunity appeal brought on a months-long delay in the election interference case prosecuted by special counsel Jack Smith, the case finally returned to Chutkan on Friday. Though she wasted no time scheduling a hearing for August 16 and asking both parties to submit a schedule for pretrial proceedings by August 9, legal experts told the Daily Caller News Foundation that efforts to advance the case will meet continued challenges.
The Supreme Court ruled on July 1 that presidents have immunity from prosecution for official acts taken in office, directing the lower courts to weigh what portions of Trump’s indictment fall into that category. (RELATED: Dems Are Escalating Supreme Court War With Unconstitutional Bill Targeting Presidential Immunity Ruling, Experts Say)
“Judge Chutkan is going to have to take the first crack (appeals will likely follow regardless of how she rules) about which of the allegations in the indictment involve ‘unofficial conduct’ and which involve ‘official conduct,’” John Malcolm, vice president of the Heritage Foundation’s Institute for Constitutional Government, told the DCNF. “And with respect to the ‘official conduct,’ she will also have to determine whether Trump is entitled to absolute immunity or only presumptive immunity; for the latter category, she will also have to determine whether Jack Smith’s office has presented enough evidence to overcome the presumption by demonstrating that prosecuting Trump for those actions will not have a chilling effect on future presidents.”
NEW YORK, NEW YORK – APRIL 23: Former U.S. President Donald Trump appears in court for his trial for allegedly covering up hush money payments at Manhattan Criminal Court on April 23, 2024 in New York City. (Photo by Curtis Means-Pool/Getty Images)
While there may be a “mini trial” — an evidentiary hearing designed to determine what meets the standard set for prosecution by the Supreme Court — its ultimate impact may be muted.
“It is still highly doubtful whether this case will ever go to trial,” Malcolm told the DCNF. “And in terms of its impact on the election, I suspect that voters have already factored in the events surrounding the 2020 election and its aftermath in deciding whether to re-elect Donald Trump or to elect Kamala Harris.”
Chutkan has moved at a quick pace from the case’s start, ruling against Trump’s original motion to dismiss the case based on presidential immunity just two months after it was filed.
As soon as the case returned to her court over the weekend, she also rejected Trump’s efforts to dismiss the case based on selective and vindictive prosecution.
“Finding no evidence of discriminatory purpose in the sources Defendant cites, the court is left only with his unsupported assertions that this prosecution must be politically motivated because it coexists with his campaign for the Presidency,” Chutkan wrote in the Saturday ruling.
Trump’s attorneys sought early on to have Chutkan recuse due to statements she made in other cases involving Jan. 6 defendants, such as one claiming people who entered the Capitol did so out of “a blind loyalty to one person who, by the way, remains free to this day.” Trump’s attorneys argued these statements suggested Chutkan believed Trump should be imprisoned, but she rejected their motion in September, writing that the record did not support “reasonable” questions about her impartiality.
Former federal prosecutor Joseph Moreno told the DCNF efforts to restart the case are “likely to be frustrated.”
“Every allegation against Trump will need to be litigated under this immunity standard, and since they are subject to ‘interlocutory’ appeals — meaning they may be brought before a trial commences — either side can appeal and hold up proceedings, potentially all the way back to the Supreme Court,” he said. “All of this will take time.”
Hanging over the proceedings is also the issue of Judge Aileen Cannon’s opinion finding Smith’s appointment unconstitutional, which prompted her to dismiss Trump’s classified documents case in Florida.
“[Cannon’s] ruling applies within the Eleventh Circuit, which means it is not binding on Judge Chutkan in the DC Circuit,” Moreno said. “However, Trump’s team will no doubt file a motion to dismiss before Judge Chutkan and likely create a circuit split which, again, could potentially make its way to the Supreme Court.” (RELATED: Jack Smith’s Other Big Trump Case Could Go Down In Flames After Judge Finds His Appointment ‘Unconstitutional’)
Former federal prosecutor Katie Cherkasky told the DCNF she expects the hearing on August 16th to be an “extensive analysis of virtually all of the evidence and expected testimony to assess whether it does/not fall within the immunity decision.”
“I do not expect that even with adverse rulings to President Trump the case will be able to proceed to trial ahead of the election,” Cherkasky said. “In addition, Chutkan needs to confront the decision in Fischer, which impacts half of the charges in the DC case and could result in a dismissal of those as well, irrespective of the immunity ruling.”
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