6 takeaways as Trump attorneys, Chutkan spar over Jan. 6 case’s future

Former President Trump’s attorneys on Thursday sparred with a federal judge about how his federal Jan. 6 criminal prosecution should move forward.

For months, Trump’s prosecution on the matter remained frozen as he appealed his presidential immunity defense to the Supreme Court. The high court’s landmark decision in July granting former presidents broad immunity left it to U.S. District Judge Tanya Chutkan to determine the extent Trump is protected from the charges brought by special counsel Jack Smith.

The hearing marked the first time in nearly a year that Trump’s team and Smith returned to Chutkan’s courtroom.

At the conclusion of the hearing, Chutkan said she expects to file an order later on Thursday laying out the schedule for how to proceed in the case but said that setting an ultimate trial date would be an “exercise in futility.”

Here are six takeaways from the hearing.

Who goes first?

After the proceeding began with Trump’s legal team formally entering a not guilty plea to a new version of his indictment, much of the hearing centered simply on who should kick off further arguments about how to apply the Supreme Court’s presidential immunity ruling.

The Supreme Court determined core presidential acts are immune, while other official acts are presumptively immune. Private conduct, it determined, would not be protected. Now, it’s up to Chutkan to determine which aspects of the case fall into each bucket.

Smith’s team on Thursday proposed the unusual practice of going first to defend the indictment.

“We would set forth for the court why we believe the conduct in the brief is private in nature and therefore not subject to immunity,” prosecutor Thomas Windom told Chutkan.

But Trump’s team believes it should be able to make the opening salvo with a motion to dismiss the new superseding incident — another bid that, if granted, would halt the case.

Trump attorney John Lauro told the judge that “it’s enormously prejudicial” to allow prosecutors to go first.

“We want an orderly process that does honor to the Supreme Court ruling,” Lauro said, noting that it was a “very sensitive time in our nation’s history.”

Chutkan let out a soft “oh” at the comment as she slightly swiveled her chair. She went on to suggest that Lauro had November’s presidential election in mind and was attempting to avoid prosecutors making public a trove of evidence in the lead-up to Election Day — an assertion Lauro denied.

“This court is not concerned with the electoral schedule,” Chutkan said.

“That’s nothing I’m going to consider,” she added.

The Pence problem

Trump’s attorneys immediately butted heads with the judge over a critical component of the former president’s indictment: the pressure campaign against then-Vice President Mike Pence. 

Lauro insisted that the Supreme Court’s ruling on presidential immunity protects Trump’s conversations with Pence from prosecution.

“I’m an originalist,” Lauro said, suggesting he takes the high court’s ruling “literally.”

“You may be an originalist, but I’m a trial judge,” Chutkan quipped back. 

The judge deftly corrected Trump’s attorney, saying that the justices ruled clearly that the former president enjoys only presumptive immunity from prosecution stemming from his communications with his vice president. 

“They sent it back to me to figure that one out,” Chutkan said. 

Lauro contended that the allegations against the former president involving Pence are a “gateway legal issue,” meaning if Trump’s efforts to pressure Pence to certify false slates of electors instead of the real electors for now-President Biden are deemed immune, it “craters” the whole indictment, he said. 

Windom countered that the defense appeared to have selectively read the Supreme Court’s ruling. The justices did not say the indictment “goes away” if Trump’s conversations with Pence are found to be covered by presidential immunity, the prosecutor said.

Evidence in building a case 

Prosecutors and Trump’s team also sparred over how evidence would be used in the case and previewed what items Chutkan would likely get to review.

Smith’s team eschewed calls for a so-called minitrial that could include live witness testimony in a series of hearings.

Windom said the government was prepared to lay out the factual basis for its case on paper, saying it would provide evidence both “inside and outside of the indictment.”

That could include transcripts or testimony presented to a second grand jury that was assembled to hear the case following the immunity ruling as well as documents and other exhibits.

It would be up to Chutkan to determine whether to allow that evidence to be shared publicly.

Lauro, however, said the team would need time to “look through this discovery with an eye towards immunity.”

Trump’s attorney also suggested that the government had not yet turned over all evidence they believe they are entitled to — something prosecutors flatly dismissed.

“You can set a deadline for today,” Windom told Chutkan of any order to turn over discovery, saying that prosecutors have met their obligations and “do not anticipate any further disclosures.” 

A challenge to Smith’s authority, and other motions

Chutkan also greenlighted plans from Trump’s team to file a new motion that would challenge the legality and funding of Smith’s appointment.

It’s a legal argument that proved successful in Trump’s Florida-based classified documents case — with Judge Aileen Cannon determining Smith was unlawfully appointed. Smith has appealed the ruling.

The move surprised legal observers as it bucks 50 years of precedence concerning special counsel appointments.

Lauro pointed to a concurring opinion by Supreme Court Justice Clarence Thomas that questioned the authority of special counsels, saying that Thomas “in effect directed us” to raise the issue.

Chutkan seemed to imply that she may not view the argument as favorably, regardless of Thomas’s wading into the issue, adding that she didn’t find Cannon’s opinion “particularly persuasive.”

“You want me to go against binding circuit precedence?” she said, calling Thomas’s comments “dicta in a concurrence,” essentially passing remarks.

Smith smiled and laughed at times during the discussion, also whispering with one of his prosecutors who was sitting next to him in the courtroom gallery.

Lauro also said the team plans to raise another Supreme Court decision, Fischer, that limited the use of the obstruction charge prosecutors brought against many Jan. 6 defendants. Trump faces charges under a different section of the same statute.

‘Exercise in futility’

At the end of the hearing, Chutkan declined to set a trial date in Trump’s election subversion case, anticipating future delays. 

The judge mentioned several times throughout the hearing that any decisions she makes will be appealed by Trump’s legal team, meaning another potentially lengthy pause in the case is all-but inevitable.

Not to mention, November’s presidential election could throw yet another wrench into the case’s pretrial schedule if Trump is reelected to the White House. It’s expected that his Justice Department would move to dismiss the four-count indictment against him.

Chutkan said the upcoming presidential election is “not relevant” as she determines how the case should proceed, asserting that the court is “not concerned” with the race and does not intend to consider it in any rulings. 

But setting a trial date now would be an “exercise in futility,” she said. Both parties agreed. 

Hearing marks a reunion

Thursday’s hearing marked the first time in nearly a year that Trump’s attorneys and prosecutors faced off in Chutkan’s courtroom, where the debates have often turned fiery with no cameras allowed inside.

Smith attended the hearing, sitting in the first row of the courtroom gallery and sometimes taking notes. Trump did not attend, as the judge accepted his waiver of his appearance.

Trump’s attorneys have repeatedly sparred with Chutkan, previously demanding her recusal and insisting many of her actions were unfair and threatened the institution of the presidency.

As Chutkan entered the courtroom on Thursday, she joked that “You look rested, Mr. Lauro.”

“Life was almost meaningless without seeing you,” Lauro quipped.

Chutkan appeared skeptical of many of Lauro’s arguments on Thursday, at one point telling him “I don’t need any more rhetoric on how serious and grave this is.”

“It’s not rhetoric, it’s called legal argument,” Lauro responded.

The judge’s sass came out again when prosecutors criticized Trump’s legal team for wanting to move more slowly on the immunity issue. Prosecutors noted that Trump attorney Todd Blanche was unhurried despite moving quickly in seeking to toss Trump’s hush money conviction after the Supreme Court’s decision.

“Congratulations, Mr. Blanche,” Chutkan interjected.