Donald Trump is immersed in the electoral campaign for the presidential elections on November 5, but the judicial machinery continues to move — slowly — in the criminal cases against the former president. While the candidate was preparing to give a speech on his economic measures in New York, in the federal court building in Washington his lawyer, John Lauro, presented on his behalf a plea of innocence in the face of the new accusation of the president for trying to alter the result of the 2020 elections, which he lost against Joe Biden. The case is practically back to square one and there is no trial date on the horizon, as there is again a dispute over how to apply the Supreme Court ruling on presidential immunity, among other preliminary issues.
After the hearing, Judge Tanya Chutkan ruled a two-page order with the calendar of the next steps that makes two things clear. One, there will be no trial before the election, since the deadlines for arguments on the preliminary questions raised already extend beyond the date of the election. Two, the prosecutor will be able to present new evidence and documents in support of his thesis as early as September, including transcripts of statements before the grand jury that decided to indict Trump. This evidence, some of it never seen before, will therefore be available before the election. The deadline to present it expires on September 10, the same day of the debate between Donald Trump and Kamala Harris, although it may not be available yet on that day.
Judge Chutkan once again showed off her sense of humor on Thursday — which she accompanies with firmness and authority in her decisions — in which she often finds a certain complicity with Trump’s lawyer. She began by recalling that the case has been on hold for many months while various appeals were being processed. “Good morning, it’s been almost a year,” she began by greeting. ““Life was almost meaningless without seeing her,” Lauro joked. “Enjoy it while it lasts,” she replied.
The judge then asked Lauro if Trump had reviewed the new indictment and understood the charges against him, to which the lawyer replied affirmatively and indicated that he pleaded “not guilty.”
The bulk of Thursday’s session, the first hearing in the case since October of last year, focused on the scope of the Supreme Court’s ruling and how to proceed with the next procedural steps. Prosecutors believe that the new indictment complies with the high court’s doctrine that protects presidents’ actions in the exercise of their functions from prosecution, while the defense believes that Trump’s immunity continues to be violated. As for the calendar, Trump’s lawyers tried to delay the process as much as possible with new pretrial questions and appeals, while prosecutors tried to step on the accelerator. The judge’s decision has leaned more in favor of the prosecution, and even so the process is dragging on.
“No one here is under any illusion that we are racing toward a trial date,” Chutkan said, but when defense counsel asked her to resolve each dispute sequentially, which would drag out the trial, the judge replied, “We can all walk and chew gum at the same time.” Chutkan, who was appointed by President Barack Obama, has also rejected making the trial timetable contingent on the election: “There has to be some progress in this case, regardless of when the election is held,” she added, saying it was “not relevant” to the timetable. “I’m definitely not going to get into an election dispute,” she said.
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In it Stormy Daniels case, Trump is also trying to delay the sentence in a case in which he was found guilty of 34 crimes in New York by a jury. His last attempt to delay the case failed, but Judge Juan Merchan, who is in charge of the case, can still postpone the sentence, provisionally scheduled for September 18. Before issuing it, he must decide whether his case is affected by the Supreme Court’s immunity ruling.
A calendar
The judge said she would decide on a timetable for next steps as soon as possible, and did so Thursday. A key issue to decide on is the scope of immunity. She initially rejected Trump’s immunity and her decision was upheld by an appeals court, but then the conservative-majority Supreme Court granted him broad immunity for acts committed in office. The ruling rendered part of the initial indictment useless, but left it up to lower courts to continue the case and draw the line.
The prosecutor obtained a new indictment voted on by another grand jury. He considers that it fits with the new doctrine and that it maintains the accusation for the four crimes of the previous one. In it, he left out those acts that, in his opinion, are protected by the Supreme Court’s ruling, mainly his interactions with the Department of Justice, and presented as private acts of a candidate the pressures on authorities to alter the result.
Trump and his lawyers believe that the new accusation continues to violate his immunity, especially by maintaining as one of its elements the president’s pressure on his vice president, Mike Pence, not to certify Biden’s victory. According to Lauro, the Supreme Court has already decided that the communication between Trump and Pence is related to an official act and protected by immunity, but Chutkan replied: “No, I do not agree with you, Mr. Lauro, they have not decided that. They have sent it back to me to resolve it.”
Trump’s lawyers also want to challenge the appointment of the special prosecutor in the case, Jack Smith. Judge Aileen Cannon in Florida dismissed the classified papers case against Trump on the grounds that it was illegal, although the prosecutor, who is the same in both cases, has appealed the decision. Judge Chutkan has been unimpressed by that precedent.
The judge admitted that several of these preliminary questions will be resolved in parallel. At the same time, she was aware that, whatever she decides, one of the parties will appeal. It is even possible that before the trial begins, the case could return to the Supreme Court, delaying the investigation even further. And, perhaps, returning once again to square one.
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