Left: U.S. District Judge Tanya S. Chutkan (U.S. District Court for the District of Columbia). Center: Donald Trump (AP Photo/Seth Wenig, POOL). Right: U.S. District Judge Aileen Cannon (U.S. District Court for the Southern District of Florida).
After months of inactivity at the trial court level in Donald Trump’s Jan. 6 federal prosecution in Washington, D.C., a Thursday hearing began with jokes and pivoted to a superseding indictment not guilty plea with the former president absent. Then, during immunity-related scheduling disputes between the defense and the special counsel’s team, the judge clarified that she is not “concerned with” the 2024 election schedule and even made a comment about Judge Aileen Cannon’s dismissal of the Mar-a-Lago classified documents case, according to a number of reporters on hand to watch the proceedings unfold.
Judge Tanya Chutkan and Trump attorney John Lauro kicked the hearing off with jokes, as the judge said remarked he looked “rested” and the attorney answered that “life was almost meaningless” while the case was on hold for months.
Some light repartee right off the bat.
CHUTKAN to Lauro: You look rested.
LAURO: Life was almost meaningless.
CHUTKAN: Enjoy it while it lasts.— Kyle Cheney (@kyledcheney) September 5, 2024
At the start of August 2023, Trump was indicted for conspiracies to defraud the U.S., to obstruct Congress on Jan. 6, and “against the right to vote and have one’s vote counted.” By December, Trump’s immunity-focused appeal largely shut down the proceedings in Chutkan’s court, to the special counsel Jack Smith’s dismay, as no progress was made in the trial court from February to August. It was then that Chutkan, a Barack Obama appointee, was able to resume the case in light of Supreme Court immunity decision in Trump v. United States.
Smith most recently responded to the decision by pursuing a superseding indictment before a new grand jury, charging Trump with the same offenses but purging the documents of “official” acts. And for that reason, Trump, though not present in court, was arraigned on Thursday and his lawyer entered a not guilty plea on his behalf.
From there, the judge, regarding discussions of a trial date as an “exercise in futility” — knowing that the defense will eventually appeal on immunity grounds again — spoke with the government and the defense about the path forward in the coming weeks.
we should structure a schedule that leads to only one interlocutory appeal. Def proposes several interlocutory appeals. we know there will be an interlocutory appeal. trhying to limit it to one.
we’d file a comprehensive description of both pled & unpled facts. …
/18— Roger Parloff (@rparloff) September 5, 2024
As prosecutors asked for around three weeks to file an immunity brief on a key question that the Supreme Court ordered up a ruling on: whether Trump’s conversations with then Vice President Mike Pence are subject to immunity. Recall, from the syllabus of the SCOTUS decision (emphasis ours):
Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.
The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.
Lauro, after months of delay, took issue with the government moving forward so quickly and filling the “public record at this very sensitive time in our nation’s history” with details that “basically load up on what they think this case is about” ever closer to the election.
Chutkan to Trump lawyer, John Lauro: If I give the special counsel the time they’re asking for, the three weeks, why can’t you discuss discovery that you haven’t been given that relates to immunity?
“We can all walk and chew gum at the same time.”
Lauro: We need everything…
— Katie Phang (@KatiePhang) September 5, 2024
That prompted the judge to say that she “is not concerned with the electoral schedule” and that it “is not relevant here.”
Lauro repeatedly refers to this being a “sensitive time” in arguing it’s unfair for govt to go first and put information/evidence on the record. Chutkan stops him to address the elephant in the room, saying she understands there’s an election coming:
“The electoral process and…— Zoe Tillman (@ZoeTillman) September 5, 2024
But Lauro did make Chutkan chuckle when he said the Trump immunity ruling was “crystal clear.”
LAURO says the Supreme Court’s ruling is “crystal clear.”
CHUTKAN audibly chuckles
— Kyle Cheney (@kyledcheney) September 5, 2024
“The subtext of your argument here about these sensitive times and the desire not to have [] evidentiary briefing before this year, it strikes me that what you’re trying to do is affect the presentation of this case so as not to impinge on an election,” the judge reportedly remarked, according to Politico’s Kyle Cheney.
Chutkan to Lauro: It strikes me that what you’re trying to do is affect the presentation of evidence in this case so as not to impinge on an election. Not a factor I’ll consider…
Lauro disputes that characterization, that he’s referring to fact that SCOTUS called for careful…
— Zoe Tillman (@ZoeTillman) September 5, 2024
Eventually, before the hearing ended without much fanfare, Lauro mentioned that the defense wants to move forward with a challenge of the constitutionality of Jack Smith’s appointment as special counsel, whom he called an “illegitimate prosecutor,” given Cannon’s dismissal of the Mar-a-Lago case on Appointments Clause grounds in July.
Chutkan: The deadline for filing a motion like this has already passed.
Chutkan: You want to file this because there’s dicta in a concurrence. There’s binding DC Circuit precedent in this issue and you have a concurrence and an opinion written by another district judge which…
— Katie Phang (@KatiePhang) September 5, 2024
Chutkan had her doubts, reportedly saying she “frankly” doesn’t “find” Cannon’s opinion “particularly persuasive” as an authority (since the opinion was out of step with D.C. Circuit precedent) and, in any event, Trump lawyers seemed to have long passed by a deadline to file.
doesn’t find persuasive.
Lauro: court should consider this issue. justice thomas in effect directed us to do this.
Judge: he directed you?
Lauro: well if you read that opinion it’s something we need to do to preserve that issue.
Judge: Mr. Windom?
/54— Roger Parloff (@rparloff) September 5, 2024
Chutkan notes there’s binding DC Circuit precedent on the special counsel appointment issue that sides with the govt and that she didn’t find Cannon’s opinion “particularly persuasive” (it’s in a different circuit) but will let Trump’s lawyers file a motion arguing why they think…
— Zoe Tillman (@ZoeTillman) September 5, 2024
But the judge reportedly allowed the defense a shot at convincing her.
CHUTKAN says she will let Trump raise the issues with Jack Smith’s appointment but says he must persuade her that binding DC Circuit precedent does not foreclose this argument.
— Kyle Cheney (@kyledcheney) September 5, 2024
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