Jack Smith, Trump attorneys to renew faceoff in court

Special counsel Jack Smith and former President Trump’s attorneys will be back in court Thursday, where Trump’s team will enter a not guilty plea in a revised election interference indictment, and both sides will haggle over how to proceed in the case.

It’s the first time both parties will be back in the courtroom of U.S. District Court Judge Tanya Chutkan since the Supreme Court remanded the case after determining former presidents retain broad immunity from prosecution.

It’s up to Chutkan to disentangle many of the open questions left by the high court’s ruling, which while gutting parts of Smith’s case largely left it to the lower court to determine what aspects of Trump’s bid to remain in power can still face charges.

Smith made his stance on the case clear last week, filing a superseding indictment that kept all the original charges in the Jan. 6 case as well as the bulk of the supporting details included in the original indictment.

Trump gave his attorneys permission to enter a new not guilty plea on his behalf during the Thursday hearing.

The Supreme Court over the summer determined that former executives are immune from prosecution for core presidential actions and presumptively immune for all other official acts. 

It’s a ruling that directed Smith to cut from the case all actions related to Trump’s plans to replace Justice Department leaders with allies willing to investigate his baseless claims of election fraud. The Supreme Court ruled a president’s conversations with those officials to be protected.

It also called into question the extent to which Trump’s conversations with former Vice President Mike Pence are protected.

In response, Smith has made key shifts in the case, focusing the superseding indictment on actions Trump took as a private citizen or a candidate for office.

The filing accuses Trump of “us[ing] his campaign” to spread lies about the election and notes that all court challenges to the election were filed in his capacity as a candidate.

Trump’s speech near the White House on Jan. 6, 2021, was characterized as him “giv[ing] a Campaign speech at a privately-funded, privately organized political rally.” 

In several spots, the indictment references Pence’s role as president of the Senate, an attempt to distinguish his ceremonial duty to certify the election results from his day-to-day duties as vice president.

Smith brought the charges after presenting the case to a second grand jury. It’s a move that shows a second group of citizen jurors heard the evidence against Trump and determined charges were warranted, following the first indictment. It also helps insulate the case from complaints the new jury failed to consider the immunity ruling.

Chutkan must now determine how to proceed with the case given the Supreme Court ruling.

Those eager to see Trump face consequences related to Jan. 6 have called for a so-called mini-trial ahead of the election, an evidentiary hearing that could include live witness testimony and provide an overview of the case prosecutors have assembled against Trump.

Smith did not ask for such a hearing in a Friday night joint filing ahead of the hearing, nor did Trump. Smith suggested a high-level review of evidence done through legal briefs. It’s possible, however, that Chutkan might determine an evidentiary hearing would boost her understanding of the case as she weighs what conduct can remain.

On Trump’s end, he nodded to plans to launch new challenges in the case, including one centered on the legality of Smith’s appointment.

Trump moved to dismiss the case on those grounds after a similar motion was successful in Trump’s Florida-based case concerning his use of classified documents. Smith has appealed that decision from U.S. District Court Judge Aileen Cannon.

Trump’s legal team otherwise pushed for extended deadlines in the case and appeared confident they would ultimately succeed in getting the charges dropped, writing that hearings could continue in the spring or fall of 2025 “if necessary.”

If Trump wins in November, his Justice Department is expected to drop all federal charges against him.