Trump, special counsel lay out opposing plans for way forward in federal 2020 election case

Washington — Federal prosecutors and attorneys for former President Donald Trump presented opposing arguments for how special counsel Jack Smith’s 2020 election-related case against Trump will move forward, according to court documents filed late Friday. 

“The parties recognize the types of motions and briefing anticipated in pre-trial proceedings but have differing views on how the Court should schedule these matters and the manner in which they are to be conducted,” the joint filing said. 

Smith argued the court should “first and foremost” make rulings tied to issues of presidential immunity as outlined by the Supreme Court, indicating the court should promptly move forward with the case. 

“The Government proposes that it file an opening brief in which it will explain why the immunity set forth in Trump does not apply to the categories of allegations in the superseding indictment or additional unpled categories of evidence that the Government intends to introduce at trial and will proffer in its brief,” prosecutors wrote. 

Meanwhile, the former president’s legal team urged the court to give the parties more time to go over the potential legal questions and proposed a schedule that would bring the case into the spring or fall of 2025, about two years after the charges were first filed. 

“President Trump holds the right to challenge the new indictment, and the underlying grand jury process, as a matter of law,” his team wrote, adding later, “We believe, and expect to demonstrate, that this case must end as a matter of law.” 

The filing responds to U.S. District Court Judge Tanya Chutkan’s request for proposals from each side about how to proceed in the wake of July’s Supreme Court decision that granted Trump some presidential immunity from criminal prosecution. 

The high court’s conservative majority ruled presidents and former presidents are immune from criminal prosecution for “official acts” they take during their presidency. 

Some of the conduct alleged in Smith’s original indictment, such as Trump’s discussions with the Justice Department in the aftermath of the 2020 presidential election, was explicitly disqualified from the charges, according to the July opinion written by Chief Justice John Roberts. But other conduct, including interactions with campaign officials and private attorneys, could be examined. 

It is now up to Chutkan to decide how to apply the Supreme Court’s ruling to the charges against Trump. But before she could weigh in, Smith secured a superseding indictment against the former president on Tuesday, in which prosecutors removed the alleged conduct deemed by Roberts to be covered by presidential immunity. 

Trump still faces the same four federal counts — including conspiracy to defraud the U.S. — in a charging document that describes an alleged plot to subvert the results of the 2020 presidential election. Trump pleaded not guilty to the original 2023 indictment and has continued to deny any wrongdoing. 

The new 36-page charging document is based on a more refined set of allegedly criminal acts, and prosecutors wrote it “reflects the government’s efforts to respect and implement the Supreme Court’s holdings.” Much of the conduct alleged in that first indictment remains in the new one, with notable exceptions, including the former president’s work with Justice Department officials and consultation with White House officials leading up to the Jan. 6, 2021, Capitol attack. 

Friday’s filing revealed Trump’s team intends to file additional motions to dismiss the new indictment based on claims that the former president remains immune from prosecution on portions of the conduct included in Smith’s latest indictment, including social media posts, public statements, communications with state officials and interactions with former Vice President Mike Pence. Chutkan has already denied a few of Trump’s requests to dismiss the case. 

“The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot,” Trump’s team wrote, seizing on Jack Smith’s decision to include the conduct related to the then-vice president in the new charging documents after the Supreme Court ruled those actions were “presumptively immune” from prosecution, but open to rebuttal. 

Prosecutors are likely to argue they tailored the superseding indictment to comply with the Supreme Court’s ruling, so no further immunity should be conferred. They said they will seek to, “distinguish [Trump’s] private electioneering activity from official action, and rebut the presumption of immunity as to any conduct that the Court may deem official,” according to the new court filing.

Chutkan will now have to decide how to move the case forward in light of the Supreme Court’s decision and the new superseding indictment against Trump. A hearing is currently set for Sept. 5 in Washington, D.C., but Trump is not required to attend.

Notably, the former president’s legal team also wrote they intend to file motions to challenge the legality of Smith’s appointment and funding, a legal strategy that is likely to mirror that which they employed in the special counsel’s second federal case against Trump. U.S. District Judge Aileen Cannon of Florida — who oversaw the classified documents case — decided in Trump’s favor last month when she ruled the special counsel’s appointment was invalid. 

Smith has defended his appointment, and this week urged an appeals court to resurrect the case, writing Cannon’s ruling “took inadequate account” of history and arguing decades of legal precedent supported his appointment. 

In an attempt to keep the proceedings moving forward, prosecutors proposed a schedule that would allow Chutkan to consider various legal issues on “parallel” tracks.