Attorneys argued over issues of presidential immunity after former President Donald Trump, through his lawyer, entered a plea of not guilty to charges in the superseding indictment in his election interference case on Thursday.
Thursday's hearing, following months of delays in the case, came a week after special counsel Jack Smith filed the new indictment that revised the original Jan. 6 charges to reflect the U.S. Supreme Court's landmark ruling that Trump is entitled to immunity from criminal prosecution for official acts undertaken while in office.
Latest Developments
Sep 5, 6:05 PM Judge to allow prosecutors to file brief on immunity In a scheduling order issued following Thursday's hearing, Judge Chutkan said she would allow special counsel Jack Smith to file a comprehensive brief on presidential immunity by Sept. 26.
Chutkan's order allows Smith and his prosecutors to essentially defend their superseding indictment by presenting grand jury testimony and evidence that they believe bolsters their argument -- something that Trump's lawyers adamantly opposed during Thursday's hearing, because it departs from normal federal court procedure regarding which side gets to file papers first.
Trump's lawyers also suggested that such a filing would allow the special counsel to cherry-pick evidence.
As expected, the order contains no trial date for the case, as Chutkan acknowledged in court Thursday that setting such a date -- given the approaching November election -- would be "an exercise in futility."
Sep 5, 11:27 AM Court adjourned, judge to issue scheduling order After arguments concluded, Judge Chutkan adjourned the hearing.
She said she would issue a scheduling order as soon as possible regarding the next steps in the case.
Special counsel Jack Smith, who was present during the hearing, departed with multiple members of his team.
Sep 5, 11:20 AM Judge says both sides can file more motions Judge Chutkan says she is inclined to let both sides file more motions or briefs related to the Trump's teams challenges to the case on statutory grounds -- but she also made clear that she believes those statutory issues can be handled at the same time that the parties also try to resolve immunity-related issues.
“Immunity is the lynchpin here,” and both sets of issues can be handled concurrently, she said.
Sep 5, 1:10 PM Prosecution says it can move 'quickly' Prosecutor Tom Windom made some final points supporting the prosecution's views. Among them, he noted that in the New York hush money case against Trump, Trump's legal team filed a 52-page motion to vacate the case only nine days after the SCOTUS ruling related to immunity.
"The defense can move comprehensively, quickly and well, and so can we," and the judge should consider that in setting the schedule in this case, Windom said.
Defense attorney John Lauro then said he wanted to speak briefly. Chutkan said it had to be brief, saying, "I don't need any more rhetoric on how serious and grave this is."
"It's not rhetoric, it's called legal argument," Lauro shot back.
Lauro again insisted that special counsel Jack Smith's appointment was unlawful. "We have an illegitimate prosecutor. We have an illegitimate indictment," he said.
Sep 5, 1:02 PM Judge won't immediately rule on VP conversations Judge Chutkan is roundly rejecting defense attorney John Lauro's assertions that having the special counsel file an opening defense of their indictment in the wake of the Supreme Court's immunity ruling would be unfair to Trump.
Lauro says it would create a scenario where the special counsel gets to determine what previously secret evidence they want to make public without giving Trump's team an ability to immediately respond in his defense. Lauro said there's a wealth of evidence still under seal that they would in turn seek to make public that they argue is clearly exculpatory for Trump.
"For them to selectively decide how they want to portray their case before we move to dismiss" would be a "fundamental unfairness never before seen in a district court," Lauro says.
Chutkan also rejects the idea that she must immediately decide that Trump's conversations with then-VP Mike Pence were immune in order to throw out the indictment.
She notes that the Supreme Court had the indictment in front of them and could have taken the step of deciding Trump's conversations with Pence were fully immune -- but they did not.
"Immunity is the linchpin here," she says.
Sep 5, 10:45 AM Judge says she wants to see 'forward movement' Defense attorney John Lauro tells Judge Chutkan that special counsel Jack Smith's team is advocating for a "rush to judgment."
Chutkan takes issue with that characterization, noting that the case has already been pending for a year and saying that everyone knows that whatever she rules in this case, it's going to be appealed, which will delay the case again.
"No one here is under any illusion that we are sprinting toward any trial date," Chutkan said.
"There needs to be some forward movement in this case, regardless of when the election is held," she added.
Sep 5, 10:40 AM Judge, defense spar over SCOTUS ruling interpretation Judge Chutkan has now been pressing defense attorney John Lauro on the Trump team's desire to have Chutkan address a number of pretrial and indictment-related questions -- especially related to Trump's communications with then-VP Mike Pence -- before letting prosecutors file a brief defending the indictment.
Chutkan acknowledged that letting Smith's team file its brief first would be "procedurally irregular," but she said that judges "routinely depart" from court rules.
"It's enormously prejudicial to President Trump. I can't imagine a more unfair protocol," Lauro shot back. "The special counsel proposed a device that turns the criminal rules on its head. There are no special rules for the special counsel."
Lauro said that to let Smith's team files its brief first denies Trump's team the opportunity to address important evidentiary issues.
Chutkan suggested that those issues could be addressed at the same time that they are handling a brief from Smith's team.
"We can all walk and chew gum at the same time," she said.
Lauro then said there is a "major problem" here because, according to Lauro, the Supreme Court already decided that the information in indictment about communication between Trump and Pence is related to an official act.
Chutkan then insisted: "No, I would disagree with you Mr. Lauro, they have not decided that. They have sent that back to me for me to figure that out."
Sep 5, 10:29 AM Prosecution proposes filing extensive defense of its case Judge Chutkan asked prosecutor Tom Windom for the timeline that prosecutors would like to have in order to file the brief, which would include multiple exhibits like grand jury transcripts and other evidence central to their case.
Windom says they are currently in the process of writing the extensive defense of their case and would like to file in 2-3 weeks near the end of September -- essentially describing a major defense of their case as a response to the Supreme Court's immunity ruling that would set forth in great detail all the core evidence they would plan to introduce at trial.
While it wouldn't be a so-called "mini-trial" that some legal experts had raised as a possibility, it would put on full display the facts gathered by special counsel Jack Smith in his investigation of Trump that Smith believes are private acts and could still be put before a jury.
Sep 5, 10:24 AM We aren't in a 'typical situation,' prosecutor says Judge Chutkan is presses prosecutor Tom Windom over the prosecution's desire to immediately file a brief defending the superseding indictment "before it's even been challenged by a motion to dismiss. That's not in the ordinary course," Chutkan said.
"I don't think that we are in a typical situation," Windom says.
"We are in a place where the suspect has created new law … and the parties and the courts should be stringent to what find what is the most practical and efficient way forward," the prosecutor says.
Windom says that all of the immunity-related issues raised by the Supreme Court's ruling should be addressed at the same time, and that the schedule Chutkan sets should allow for only one more additional interlocutory appeal by Trump's team.
Sep 5, 10:13 AM Trump, through attorney, pleads not guilty Trump attorney John Lauro says Trump -- who is not attending the hearing -- is pleading not guilty against all charges in the superseding indictment.
The judge asks Lauro, "Trump has reviewed the superseding indictment, and understands the charges against him?"
Lauro responds, "Yes, that's correct."
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