The federal election interference prosecution against Donald Trump is finally back in the trial court. U.S. District Judge Tanya Chutkan can now apply the Supreme Court’s ruling bestowing broad criminal immunity on former presidents to Trump’s case, to see what’s left of it after the high court imposed a new and murky immunity test.
It’s unclear what precise form that complex project will take — whether with written briefs, hearings or a combination of the two. What’s clear is that a trial won’t happen before November’s presidential election and that if Trump wins that election then his federal cases are good as gone (special counsel Jack Smith is appealing Trump-appointed Judge Aileen Cannon’s dismissal of the other federal case, regarding classified documents and obstruction).
In the July 1 ruling in Trump v. United States, Chief Justice John Roberts’ opinion said the court is sending the case back to Chutkan to decide “in the first instance” how the immunity test applies to Trump’s case. Recall that the ruling said former presidents are entitled to at least presumptive immunity for all “official acts.” It’s now on the lower court to figure out whether some of his alleged conduct in trying to subvert the 2020 election was official or unofficial, and whether prosecutors can rebut the presumption of immunity for certain official acts.
As an example of what Chutkan must decide, Roberts noted that she needs to examine, “with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.”
Whatever Chutkan decides may be appealed again to the justices before any trial can happen, further making any pre-election trial impracticable. The bigger question now is, if Trump loses in November, what will remain of the indictment after it’s fully litigated through the courts, which could take months at least. The case, which was previously set for a March trial, had been on hold while Trump pressed his immunity appeal.
Adding another variable, the immunity opinion also noted the Supreme Court’s ruling this past term in Fischer v. United States that narrowed obstruction charges against Jan. 6 defendants. As Trump is charged with obstruction-related counts, among others, Roberts’ ruling said in a footnote, referencing the obstruction statute: “If necessary, the District Court should determine in the first instance whether the Section 1512(c)(2) charges may proceed in light of our decision in Fischer.” We’ll likely know the next steps in the case through Chutkan’s docket, where she may issue an order telling the parties how she’ll proceed. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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