Election-subversion prosecution

Trump’s stalled election-subversion prosecution revs back to life

The former president’s opponents seek a “mini-trial” to call attention to his role in Jan. 6 unrest.

By Kyle Cheney, Josh Gerstein and Erica Orden

The stalled criminal case against Donald Trump for seeking to subvert the 2020 election is starting to move.

The Supreme Court’s landmark ruling on presidential immunity — a breathtaking legal victory for Trump’s bid to sideline his criminal prosecutions — had kept the election-subversion case on ice for months. Even after the July 1 ruling, the high court’s rules required a one-month delay to give prosecutors the chance to ask the justices to reconsider the outcome.

On Friday, that window closed. The case was returned to the D.C. Circuit Court of Appeals, which took just minutes to send the matter back to the courtroom of U.S. District Judge Tanya Chutkan, who has been in a holding pattern since December awaiting the outcome of the immunity fight.

On Saturday, Chutkan took her first steps in the case in months, setting an August 16 hearing to consider setting a new schedule. She has asked for prosecutors and Trump to offer their own thinking on the matter in writing by August 9. The court session won’t force Trump off the campaign trail, since Chutkan said she won’t require him to be present.

Still, the flurry of actions signals new life for the gravest of the four criminal cases against Trump — and it comes at a time when other Trump cases have stalled. Special counsel Jack Smith charged the former president in August 2023 with four counts, alleging a sweeping conspiracy to disenfranchise millions of voters and pressure government officials to overturn the legitimate 2020 election results.

There appears to be no real prospect of a trial in the case before the November election, but some Trump critics have been eagerly awaiting the Supreme Court’s ministerial action of returning the case to the trial court, hoping that it results in a series of swift decisions from Chutkan that could again put Trump on the defensive.

The Supreme Court ruled that former presidents have immunity from prosecution for many of their “officials acts,” and it said that some of Smith’s allegations in the election case must be tossed out. But it’s not yet clear how, or whether, the special counsel can proceed with other portions of his indictment.

Some Trump critics have urged Chutkan to hold a hearing to assess the effect of the immunity ruling on the evidence Smith intends to present. That proceeding could feature witness testimony from key figures in the case.

Trump opponents hope this “mini-trial” would showcase Trump’s ties to the violence that unfolded on Jan. 6, 2021, and remind voters of the most chaotic day of Trump’s presidency, even if it doesn’t carry the same stakes as a jury trial.

In her one-page order, filed around 9:30 a.m. Saturday morning, Chutkan did not directly address the possibility of a “mini-trial” — often referred to by lawyers as an evidentiary hearing. However, she did signal that she’s aware the Supreme Court ruling leaves her with decisions to make about what part of the charges against Trump can proceed and what sort of evidence prosecutors will be permitted to introduce.

Chutkan said in the order that she was denying for now a key motion Trump’s lawyers filed trying to have the case thrown out in its entirety, but that they were free to renew it “once all issues of immunity have been resolved.”

Trump is also set to face sentencing next month in a separate case in New York, where a jury found him guilty in May of 34 felony counts of falsifying business records to cover up hush money to a porn star. But even that case may be affected by the immunity ruling.

Trump has urged the judge who oversaw the hush money trial to toss the verdict in the wake of the Supreme Court ruling, arguing that it was “deeply prejudicial” for prosecutors to introduce evidence from Trump’s time in the White House as part of the case. In a filing dated July 31, Trump’s lawyers faulted prosecutors for proceeding to trial without waiting for the Supreme Court to rule on immunity.

“They are not entitled to a post-trial rebuttal opportunity,” the former president’s lawyers wrote. “The bell cannot be unrung.”

Though Manhattan prosecutors have argued that the ruling has no bearing on the case, which concerned Trump’s falsification of business records in an effort to conceal an October 2016 payment to a porn star, Trump’s lawyers have said prosecutors improperly used evidence of Trump’s “official acts,” including testimony from White House staffers such as Hope Hicks.

“President Trump was subjected to fundamentally unfair proceedings that invited jurors to examine official-acts evidence based on ‘their views of the President’s policies and performance while in office,’” Trump lawyers Todd Blanche and Emil Bove wrote. “This fundamental unfairness also harms the public because of the adverse impact of these violations on the work of future Presidents to serve the American people.”

Two other criminal cases that once looked ominous for the former president now don’t seem like particularly urgent threats.

Trump scored a huge legal victory last month when U.S. District Court Judge Aileen Cannon threw out the criminal case in which Smith accused the former president of hoarding classified information at his Florida residence and obstructing the federal investigation to track down the records. Cannon, a Trump appointee, ruled that Smith’s appointment was legally defective, although all the other courts to consider the issue have disagreed.

Smith is appealing that decision, but the appeal looks unlikely to be resolved before the election.

Another prosecution of Trump, in a Georgia court on charges of tampering with the results of the presidential contest there four years ago, has been waylaid by accusations of impropriety related to Fulton County District Attorney Fani Willis’ relationship with a prosecutor formerly assigned to the case, Nathan Wade.

Judge Scott McAfee rebuffed efforts by Trump and other defendants to dismiss the case, but said the situation required either Willis or Wade to quit the case. Wade stepped down a short time later.

Trump appealed, seeking an outright dismissal. A state appeals court agreed in June to take up the appeal, effectively halting the case until the issue is resolved.