Lawyers for the Justice Department and former President Donald Trump are set to appear in federal court in Washington on Thursday for what could be the final hearing in his election interference case before the November election.
This year, voters will decide the race for the presidency — and, by extension, whether Trump will ever face justice on charges that he led overlapping conspiracies to try to cling to power.
A D.C. grand jury indictment accused Trump of actions that culminated in the violent siege at the U.S. Capitol in early 2021. If he regains the White House, Trump is expected to direct new Justice Department leaders to drop the landmark case.
Trump will not appear in person at the courthouse, steps away from the Capitol crime scene. Instead, he's scheduled to give a midday campaign speech at the Economic Club of New York. He has authorized his lawyers to plead not guilty to "each and every count" in a new superseding indictment from special counsel Jack Smith.
Trump said in a court filing this week that he has reviewed the four felony charges with his attorneys, Todd Blanche and John Lauro.
The task ahead for U.S. District Judge Tanya Chutkan is not an easy one. The conservative Supreme Court supermajority gave Trump and future presidents blanket immunity for actions at the core of presidential powers.
Retooled allegations from Justice Department
Last week, prosecutors retooled the allegations against Trump, scrapping language that mentioned his bid to use the Justice Department to advance phony claims of election fraud. They also removed references to what top Justice Department and White House officials told Trump about the 2020 presidential election, to steer the case toward Trump's role as a political candidate and not as a political officeholder.
"It's still not an enviable task to try to sort through the court's decision and decide how that applies to each little item of evidence that might come in at the trial," said George Washington University law professor Randall Eliason.
The judge has directed Trump and the special counsel team to identify areas where they agree about how to proceed. But there's virtually no common ground, a point underscored by their late-night court filing the Friday before Labor Day weekend.
Prosecutors said they want to start with the core issue of presidential immunity. They've signaled they believe the immunity described by the Supreme Court majority "does not apply" to the new indictment or to "additional unplead categories of evidence the Government intends to introduce at trial and will proffer in its brief."
If Chutkan agrees, "there could be a lot of allegations coming out in the next couple of months about what's the proof at trial," said Eliason, the GWU law professor.
Fight over Pence's role
Trump, on the other hand, has asked the judge to smash the brakes on the immunity issue until after the polls close in November. His lawyers said they want to file court papers arguing that the special counsel was appointed in an unconstitutional manner, which could lead to the dismissal of the entire case.
"The superseding indictment is an effort to respond to the direct instructions of the Supreme Court as to how to effectuate a new indictment in an ongoing case," Attorney General Merrick Garland said. "The special counsel is required by the regulations to follow the policies of the Justice Department, including the election sensitivities policies, and I'm quite confident he did so."
Perhaps the biggest legal fight ahead will be the role of then-Vice President Mike Pence in any future trial. Trump is charged with leaning on Pence to delay the electoral count on Jan. 6, 2021, as rioters screamed “Hang Mike Pence” outside the Capitol.
Pence has declined to endorse Trump for reelection, and he did not appear at the Republican National Convention this summer.
The Supreme Court found that Trump may be "at least presumptively immune from prosecution" for the pressure campaign against Pence. And Trump's attorneys said those allegations are "foundational" to the new superseding indictment, requiring that it be dismissed.
Prosecutors took pains in the new indictment to point out that Pence had been acting in his role as president of the Senate on Jan. 6, 2021 — and that “the Defendant had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election."
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