Following Thursday’s hearing on how the federal impeachment trial against Donald Trump will unfold on January 6, much remains unknown. Supreme Court decision on immunityBut one thing seemed clear: he was not going to go to trial anytime soon.
The parties and U.S. District Judge Tanya Chutkan agreed that, as the judge said, “the question of immunity will once again hold up this trial.”
The judge’s pessimistic prediction is a safe bet given the Delphi opinion of the Supreme Court and the future Justice Department. replace the load in the case.
The new indictment, filed by special counsel Jack Smith last week, removes much of the evidence that the Supreme Court has barred from being introduced because it involves conduct subject to absolute immunity. In particular, it removes an entire chapter detailing Trump’s attempt to get the Justice Department to lie to Georgia officials about fraud in the state’s vote, which Joe Biden narrowly won. The superseding indictment also excludes evidence related to Trump’s conversations with staff in the White House counsel’s office.
Smith’s team rewrote the impeachment as a narrative about candidate Trump, a private citizen not covered by any official body. But the government chose to withhold some important evidence of Trump’s dealings with his subordinates, most notably his brutal beating of Vice President Mike Pence to block Biden’s electoral vote on January 6, 2021. The special counsel had to conclude that the evidence was so important that he was prepared to accept the risk and delay that further Supreme Court review would entail.
The judge’s ruling expressly treats discussions between the president and vice president as “presumptively immune.” Smith can overcome this presumption by showing that such evidence does not violate, in the court’s words, “the powers and duties of the executive branch.”
What this means in practical terms is anyone’s guess. So is the important question of burden of proof: whether Smith must show that the case does not interfere with executive authority by a preponderance of the evidence, for example, or beyond a reasonable doubt. The court does not say it leaves those questions to Chutkan, who risks plenty of backlash if he guesses wrong. Trump lawyer John Law drew laughter in the courtroom at the “clarity” of the court order.
The Justice Department is likely to rely on a reference in Chief Justice John Roberts Jr.’s immunity opinion to whether the relationship between Trump and Pence involves the “powers and functions of the executive branch.” Roberts highlighted Pence’s dual constitutional role as executive officer and president of the Senate. Pence presided over a joint session of Congress to confirm the election on January 6, 2021, acting in neither a legislative nor executive capacity.
But the court’s hint of assurance was very small. The most chilling conversation between Trump and Pence took place in the Oval Office before a congressional hearing. Smith must argue that investigating this bad news does not interfere with executive authority.
Even if Chutkan agrees, the issue will likely require a trip to the U.S. Court of Appeals for the D.C. Circuit and the Supreme Court. Lowrow, for her part, made clear that the Trump team would argue that presenting evidence of the Pence-Trump feud to a grand jury would require the Supreme Court to dismiss the charges.
Since Pence’s evidence was just the first headache prosecutors bequeathed to Chutkan, the government argued that the district judge should decide all immunity issues. That means just one more appeal in the case rather than a series of trips to federal courts to address separate immunity questions.
Lauro argued that Chutkan should first address the main objections to the superseded indictment, including a new defense argument to be taken up by U.S. District Judge Eileen Cannon in the classified documents case. Chutkan responded that he did not find Cannon’s decision that the special counsel was improperly appointed “particularly persuasive,” a failure to agree that it was wildly implausible.
Chutkan appeared to accept Trump’s invitation to discuss other issues, saying, “Immunity is the pillar here.” He also dismissed Loro’s argument that the superseded indictment was an entirely new case, saying, “It’s not more, it’s less.”
Lauro eventually acknowledged Trump’s political motivations and said the issue of immunity should not be discussed at this “sensitive moment” – that is, before the election. Trump’s representative protested: “We’re talking about the president of the United States.”
Chutkan had a ready answer: “I am not referring to the Presidium. I am referring to the four-article indictment.”
In an order issued later Thursday, the judge set deadlines for filing immunity and other issues until the end of October, largely rejecting defense efforts to further slow down the case. This brings the pre-election process to the threshold of the election.
Chutkan’s frustration was evident as the proceedings concluded, saying that setting a new trial date “would be futile” and would only be hampered by further appeals.
The outcome of what was once the most consequential and potentially impeachable effort to remove Trump is disappointing. Thanks to the nation’s highest court, the trial that many observers expected to take place before the election likely won’t happen until 2026 or later, if it happens at all.
Harry Litman is the host of the show. The Feds Talk Podcast and “Speaking of San Diego” Speaker series. @harrylitman
