The Supreme Court’s decision on executive immunity on Monday makes it all but certain that former President Donald J. Trump will not stand trial on charges of trying to overturn the previous election until voters decide whether to return him to the White House in the next election.
But the ruling also opened the door for prosecutors to lay out much of their evidence against Trump before a federal judge — and the public — in a wide-ranging hearing, possibly before Election Day.
It is not yet clear when the hearing, which was ordered as part of the court’s decision, will take place and how long it will last.
But it will address the big question the justices sent back to the court, namely how much of Mr. Trump’s lawsuit can survive the ruling that former presidents enjoy immunity for official actions taken in office. And it will be held in federal district court in Washington before the judge, Tanya S. Chutkan, who heard the case before it was frozen more than six months ago as a series of courts considered his immunity claims.
Almost from the moment Judge Chutkan was assigned to the case, she moved it along quickly, showing little patience for Trump’s attempts to delay the case or his complaints that it was hampering his campaign.
At one point, she told the former president that his “day job” as a candidate would not affect her management of the case, later declaring, “This process will not yield to the election cycle.”
Trump’s lawyers will undoubtedly try to limit the scope of the proceedings and delay them as long as possible. And if he wins the presidency again, he could avoid them altogether by ordering his Justice Department to drop the case altogether.
But if Judge Chutkan sticks to her practice of handling procedural matters quickly and can schedule the hearing for September or October, it could lead to something special: a kind of mini-trial in the nation’s capital, perhaps the final leg of the presidential campaign.
Whenever the hearing is held and however it is formatted, it will focus on the question at the heart of the Supreme Court’s decision: Were the numerous allegations in the 45-page indictment against Trump based on official acts he performed in his role as president or on unofficial acts in his private role as a candidate for office.
Prosecutors are not restricted from pursuing charges stemming from unofficial acts. But the judges have ruled that they must use evidence and arguments to rebut the presumption that Mr. Trump is immune from prosecution for official acts.
When special counsel Jack Smith filed charges against Trump last summer, the former president was accused of using five primary election tactics to influence the outcome of the 2020 race.
In its ruling, the Supreme Court found no doubt that Trump enjoyed immunity from prosecution for one of those methods: his efforts to pressure the Justice Department to validate his false claims that the election was marred by widespread fraud. That was because the justices found that Trump’s interactions with top Justice Department officials were clearly part of his official duties as president.
However, the justices left Judge Chutkan, appointed by President Barack Obama, with the daunting task of conducting the official/unofficial test for the other four methods described in the complaint.
Examples include Trump’s attempts to use lies about election fraud to convince state officials to change the outcome of the race, and his plan to create false electoral votes lists claiming he won in several swing states when he actually lost.
These included Trump’s campaign to pressure his Vice President, Mike Pence, to overturn the election during a certification process at the Capitol on January 6, 2021. And when that effort failed, his attempts to exploit the violence and chaos that erupted at the Capitol to further delay the certification of the election.
A hearing covering all of these matters could easily take several days — or even a matter of weeks — to wrap up. And it could result in testimony not just from Mr. Pence and his advisers but also from a cast of characters, including lawyers and campaign workers who were part of the phony voter scheme and state officials who were the victims of arm-twisting by Mr. Trump.
If Judge Chutkan allows the most extensive version of the hearing, it could resemble a full-blown Trump trial, with only a jury missing to render a verdict.
Trump’s lawyers have had tremendous success in delaying proceedings in three of the four criminal cases he faces. And they will undoubtedly do their best to delay the fact-finding hearing before Judge Chutkan.
Only his Manhattan case has gone to trial so far. In May, he was convicted on 34 counts of falsifying corporate records to cover up a sex scandal that threatened to derail his bid for office in 2016.
Judge Chutkan forcefully rejected Trump’s initial claims of immunity last winter, saying they had no basis in U.S. law or history. But while she accused him of trying to “usurp the reins of government,” she had no choice but to toss the case aside as he began his lengthy appeals of her decision.
When the problems began, starting in a federal appeals court in Washington, Judge Chutkan suggested to both the defense and the prosecution that once she regained control of the case, she would give Trump an extra day of preparation for every day he would lose by staying proceedings before the trial started.
If she sticks to that decision, she will ultimately owe Trump an additional 82 days of pretrial preparation before a trial can begin — equivalent to the period between Dec. 13, when the case was first frozen, and the originally scheduled trial date of March 4.
But no date has been set for the trial at this time, and Judge Chutkan will likely not start counting those two and a half months until after she holds her hearing.
Before the hearing takes place, both sides must file a motion with the judge, explaining their conflicting views on which of the allegations are based on official acts and which are based on unofficial acts.
And even before those substantive motions are filed, time-consuming preliminary discussions can take place over setting the terms of the hearing and whether prosecutors should provide the defense with additional information before the hearing takes place.
Ultimately, even if the justices put Judge Chutkan in charge of conducting a hearing, any rulings she makes will be subject to appeal. This means that if Mr. Trump is not re-elected and the case goes forward, the final say on how much of the charges survive will rest with the Supreme Court.
