Trump’s D.C. Criminal Case Lurches Back to Life

It’s a cool September morning in Washington, D.C., where the prosecution of U.S. v. Donald J. Trump is set to lurch back to life after nearly nine months of being frozen in amber. On Dec. 7, 2023, the case was abruptly suspended, while the parties litigated all the way up to the U.S. Supreme Court a historic question of first impression: Can a president be criminally prosecuted for his official acts? 

On July 1, a divided Court delivered its shocking and enigmatic conclusion: In most cases, the president cannot be, but in some instances, perhaps, he can. 

And so it comes to pass that on this day, Sept. 5, 2024, the parties and the judge are reassembling in courtroom 9 of the E. Barrett Prettyman Courthouse—for the first time since a hearing in October 2023—to pick up the pieces and figure out where, if anywhere, to go from here. More prosaically, they are trying to simply reconstruct which tasks had been completed and which hadn’t before the Great Disruption. One feels like an archeologist coming across Pompeii—a city and all its inhabitants arrested 2,000 years ago in the midst of their mundane, daily activities by an unforeseen, cataclysmic event. How to brush off the dust and move on? 

At approximately 10:00 a.m., the woman who will decide the answer to that question arrives in courtroom 9 as a court officer commands “All rise!” It’s the presiding judge, Tanya Chutkan, whose face does not appear caught in a paroxysm of death-by-molten lava, but who now seats herself behind the bench and instructs the parties to introduce themselves.

For the special counsel’s office, it’s Assistant U.S. Attorneys Thomas Windom and Molly Gaston, two prosecutors who have long served as lead counsel on the case. Their boss, Special Counsel Jack Smith, is seated in the gallery behind them, sporting an even-longer-than-usual beard. It appears that when the Great Disruption fell like a lava plume upon the city, he stopped shaving.

For the defense, it’s John Lauro, Todd Blanche, and Emil Bove. The trio are joined today by Lauro’s law partner, Gregory Singer.

“Good morning,” Judge Chutkan says. She notes that it’s been almost a year since the parties in this case were last in her courtroom. 

“Life was almost meaningless without seeing you,” Lauro replies. 

“Enjoy it while it lasts,” quips the judge, a line which elicits chuckles from both Lauro and some spectators in the gallery.

Getting down to business, Judge Chutkan begins by explaining the purpose of today’s hearing: to arraign Trump on the charges alleged in the superseding indictment, and to discuss scheduling matters for pre-trial proceedings following the Supreme Court’s immunity opinion. As to the latter, Judge Chutkan says she doesn’t intend to announce the schedule during today’s hearing. She does, however, hope to issue a written scheduling order sometime later today. In other words, we’re not deciding anything today. We’re not even deciding at this hearing when we are deciding anything. We’re discussing when and how we are going to go about deciding things.

Turning to the arraignment, Judge Chutkan briefly describes the charges in the superseding indictment. As in the original indictment, Trump is charged with four felony counts for conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstructing an official proceeding; and conspiracy against rights. Noting that the former president opted to waive his appearance at today’s arraignment, the judge asks his defense counsel to confirm the details of the waiver on the record. Trump received the indictment and reviewed it? He waived the reading of the indictment? He pleads not guilty to the charges? Yes, yes, and yes, Lauro confirms.

And with that, Trump’s fourth arraignment on federal criminal charges–his sixth overall–is complete.

Now Judge Chutkan is ready to discuss scheduling matters. She begins by summarizing the outstanding deadlines that were in place prior to Trump’s interlocutory appeal, which was the amber that froze trial court proceedings for the last nine months. She ticks off how much time was remaining on various deadlines prior to the stay: Five days were left before an expert witness notice was due. Three weeks before the motions in limine deadline. And so on.

She then turns to the parties’ proposals for how to move forward with the case. The proposals differ in many respects, she observes, but “there’s also some common ground.” For example, Judge Chutkan explains, both sides contemplate that at least some issues can be resolved concurrently. Beyond those similarities, she continues, the parties offer differing proposals for how to move forward. The prosecution proposes that it should submit the first immunity-related filing, the content of which would describe why it believes the superseding indictment comports with the Supreme Court’s July 1 immunity decision. The defense, on the other hand, proposes that it go first; it’s a defense motion to dismiss, after all. The defense also wants to bifurcate its motion, focusing attention first on just the allegations relating to defendant Trump’s communications with then Vice President Mike Pence.

Judge Chutkan says that there are two main questions to resolve during today’s hearing: How to proceed on the immunity issue, and how to proceed with other outstanding pre-trial matters. She wants to “nail down” the immunity issue first. To that end, she says she has some questions for the prosecution regarding their proposed path forward.

Prosecutor Windom addresses the judge’s questions on behalf of the special counsel’s office. Judge Chutkan begins by observing that the government wants to file an opening brief on the immunity issue. Ordinarily, she explains, the defense would file a motion to dismiss, to which the government would then have an opportunity to respond. Why, then, should the court depart from the ordinary course of pre-trial motions practice? 

“I don’t think we’re in a typical situation,” Windom replies. He says that the Supreme Court has “created new law” and the court must now determine how to proceed. In making that determination, he continues, the schedule should be structured such that it would lead to “only one” interlocutory appeal. That should be the court’s “guiding principle” in deciding the path forward, he says. 

Windom then describes the form of the brief the government intends to file. It would include “comprehensive” descriptions of both “pled” and “unpled” facts, he says. In other words: The government’s brief would set out the key categories of evidence implicating immunity issues that the government plans to use at trial—and it wouldn’t be limited just to evidence set forth in the indictment. For instance, Windom explains, the filing may include documentary exhibits, grand jury transcripts, and witness interview transcripts. The brief would also set forth the government’s arguments as to why the conduct is private in nature and not subject to immunity. As to any material concerning Trump’s communications with then Vice President Pence, Windom says the brief would argue why the presumption of immunity is rebutted. 

According to Windom, the court would benefit from allowing the government to file such an opening brief because the court would have “everything in one place.” That would make for a “cleaner” docket both for Judge Chutkan and for a reviewing appellate court, he says. 

Judge Chutkan interjects: So you don’t intend to proffer any live witness testimony? It would just be written descriptions of evidence?

That’s right, Windom replies. But he acknowledges that the judge  could decide after reviewing the briefs that she needs more information. The court could order live witness testimony at some point down the road, he says. 

Judge Chutkan wants to know more about timing. You said you’re prepared to file promptly, she notes. What does that mean? Days? Weeks?

Well, we do have to write this thing, Windom replies. He estimates that it would take the special counsel’s office between two to three weeks to write its opening brief. 

So that would be the end of September? Judge Chutkan asks. Yes, Windom confirms; three weeks from now would be September 26. But to be clear, he says, we leave timing up to the court’s discretion.

Now Judge Chutkan says she’s ready to speak with defense counsel. Lauro hurries to the lectern. When he arrives, the judge again notes that the government’s proposal is procedurally irregular in that it would involve the prosecution filing first. Is there anything about that that would prejudice the defendant?

It would be “enormously prejudicial” to Trump, Lauro responds. The government proposes an approach that turns the normal rules of criminal practice on their head, he says. Further, he continues, the defense needs access to all discovery materials in order to address what the government submits in its brief. But, as Lauro tells it, there are still unresolved discovery issues. 

What’s more, Lauro continues, the Supreme Court already decided that the allegations in the indictment related to Trump’s communications with Pence are presumptively immune. So, as an initial matter, the question before the court is whether the government can overcome that presumption.

Lauro insists that the government won’t be able to, because it faces an impossible burden. It has to show that there’s no possible way that a lack of immunity wouldn’t result in intrusion on an important government function. And if the government can't show that, he adds, the entire indictment is improper and illegitimate. The Pence matter is a gateway issue, he insists. 

Lauro thus explains that he wants the court to address the Pence issue first, in isolation. He even claims that the Supreme Court effectively ordered Judge Chutkan to do this, when it wrote that it was remanding to the district court “to assess in the first instance, 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.” He doesn’t mention that the Court used the same phrase, “in the first instance,” twice elsewhere in its ruling to describe the district court’s task in deciding the other immunity issues left open by its decision.  

“I'm not sure that's my reading of the Supreme Court’s ruling,” Judge Chutkan says. “But it's subject to a lot of different readings,” she adds, wryly.

Lauro appears to be arguing that Judge Chutkan can decide the issues regarding the Pence communications as a matter of law, without hearing evidence. In any case, he now stresses that, under Federal Rule of Criminal Procedure 12, that the defense gets the opportunity to file first. 

But Judge Chutkan suggests that there’s a different way of looking at it. The defense motion to dismiss is still pending following the Supreme Court’s remand to the trial court. As such, the briefing process need not begin anew. On that view, this is more like a situation in which the government seeks supplemental briefing, she contends.

They're asking for an asymmetric protocol, Lauro protests. 

 Courts rule all the time based on evidentiary proffers, the judge parries. She’s the one to decide whether she ultimately needs an evidentiary hearing. Is Lauro saying she doesn’t have the power to order an evidentiary proceeding?

You should scrupulously follow the Supreme Court’s ruling, he responds. 

I don’t think they addressed the details of how I should do it, Judge Chutkan says. Do you want witnesses that are subject to cross examination? 

Ultimately, we do want that, he responds—a remark that confuses some in the audience, including the authors of this dispatch, who thought he was opposing an evidentiary hearing. But first, he says, the defense wants a process that involves “full” and “fair” discovery. And we want to advance our arguments first. This is our motion, he stresses.

Judge Chutkan suggests that his real objective is to make sure the issue isn’t decided until next year. As I read the ruling, she says, the Supreme Court expects me to decide the immunity issue forthwith. As early as possible. Under your schedule, she observes, we wouldn't begin briefing immunity until December. Why?

Because, he responds, we'd be filing our briefing based on discovery information we receive from the government. These important issues should not be decided based on an asymmetrical proffer. That’s unfair, he suggests. 

It’s not unfair, the judge protests. The government files its opening brief, you get a chance to address it. There’s nothing unfair; it’s just a matter of who goes first.

It’s incredibly unfair, protests Lauro, that they get to put their evidence into the record at this terribly sensitive time in our nation's history. And if we go that route, he continues, we want a chance to make public certain “exculpatory material” that he claims is currently under seal due to the terms of the protective order entered earlier in the case.

Lauro’s reference to a “sensitive time” in our nation’s history is the first reference to the upcoming election during the hearing. And the judge isn’t happy about it. 

Let’s discuss this “sensitive time” you mentioned, she tells him now. I understand there is an election coming up, but it’s not relevant here, she says bluntly. Judge Chutkan says she simply won't take the election into account in terms of timing. 

Lauro continues to protest, though trying a slightly different tack. Letting the prosecution go first, he says, will limit the defense’s ability to structure its arguments. “We've had 14 million pages of documents we've had to look through—” 

The judge parries that Lauro’s own proposed schedule calls for resolving discovery issues simultaneously with litigating the immunity issues. 

Lauro now turns to still a new tack. There's something unseemly about a rush to judgment only in this case, he says. 

The judge isn’t buying this approach either. It’s hardly a rush to judgment, she responds. The case has been pending more than a year. “We can't even contemplate a trial date,” she notes, because another interlocutory appeal is certain. 

She emphasizes that Lauro will have the time he needs to respond to the prosecution’s filing. Letting the prosecution go first will not be prejudicial to the defense at all, she asserts. 

“It's a quagmire,” Lauro protests. “It’s completely prejudicial.” Now he begins talking again about seeking to unseal grand jury material that he claims is “very exonerative of President Trump because it needs to be on the record and public immediately. We will do that, if that’s how the government wants to proceed.” But for the prosecution to selectively portray how it wants to proceed with its case shows fundamental unfairness.  

Now Lauro shifts back to his attempt to decide the immunity issues in a piecemeal fashion, beginning solely with the Pence communications. Judge Chutkan may decide that the communications with the vice president were immune and, if so, that the indictment needs to be dismissed, he says. “Let's deal with the gateway issues first,” he urges.

But Judge Chutkan isn’t moved. The Supreme Court had the indictment before it, including the communications with Pence, she notes. It could have ruled then if it thought the matter was obvious. It didn't. It sent it back to her, she notes.

Lauro takes one last stab at persuading her. He argues that if the Pence communications are immune, arguing about whether all the other acts are official or unofficial—a process that might takes months—is a waste of time. 

“Alright, you've made your argument,” says the judge, who wants to move on. 

But Lauro wants to return to what he characterizes as outstanding discovery disputes. He insists on the need to proceed deliberately in light of the Supreme Court’s opinion.“We're talking about the presidency of the United States,” he stresses.

“I'm not talking about the presidency of the United States,” Judge Chutkan responds. “I’m talking about a four-count criminal indictment.”

Lauro, visibly frustrated, tells the judge that she misunderstood what he sought to convey by mentioning the presidency. What I mean, he says, is that the immunity matter raises “weighty” and “grave” issues concerning the office of the presidency, as the Supreme Court recognized in its opinion.  

Next, Judge Chutkan wants to hear from Windom. Windom, having replaced Lauro at the lectern, says he just wants to make several “quick points.”

The first is about Lauro’s discovery complaints. “Big reveal,” Windom says, sarcastically: there’s no additional discovery that the government anticipates providing. Two days ago, he says, the government provided grand jury transcripts and exhibits for the superseding indictment. 

As for focusing on the Pence communications, and the notion that these could be decided as a matter of law, he argues that the Supreme Court ruling was “all about fact-bound analysis” and “factual determinations.” It will be impossible for the court to do those without the information the government plans to provide it. 

He notes that if the defense wants to unseal any information currently under protective order, there are provisions in that order itself that explain the adversarial procedure Lauro should follow. 

Next, Windom notes that the defense shouldn’t need an enormous amount of time to respond to the government’s filing. He says that the new grand jury struck nine full pages from the original indictment. He adds that Trump’s defense team managed to file a 52-page brief in the New York case, raising immunity-related issues, just nine days after the Supreme Court ruling, demonstrating “how quickly they can move” when motivated to move quickly. 

“Congratulations, Mr. Blanche,” Judge Chutkan says, jokingly, looking at Todd Blanche, Trump’s lead lawyer in the New York case, who is seated at the defense table. Blanche makes an awkward smile.

As soon as Windom finishes, Lauro wants to speak again. The judge warns him, though: She doesn’t need any more rhetoric on how grave and important this all is.

It's not rhetoric, he protests. It's legal argument. The very first thing Your Honor needs to do, he protests yet again, is decide whether that presumption of immunity for the communications with Pence can be overcome.

Why can’t she address that in a single brief?, she asks. Why does it have to be piecemeal—other than to extend the schedule? 

Because if you decide this issue in the defense’s favor, all that other briefing never has to take place, Lauro responds. Why should we engage in months and months of briefing if Your Honor can decide this issue and it will end the case? 

Judge Chutkan wants to make sure she’s understanding correctly. “You want your opening brief to deal solely with the issues about the vice president’s communications?” 

“Exactly,” Lauro responds. “I'm an originalist,” he says, claiming that the Supreme Court ruling directly commands this approach. 

“You may be an originalist, but I'm a trial judge,” the judge responds.

Next, Judge Chutkan turns to the defense request to belatedly challenge the propriety of the appointment of Special Counsel Jack Smith. Why wasn’t that motion filed when dispositive motions were due? 

Lauro acknowledges that there was binding District of Columbia Circuit precedent against that argument at the time. But now, he protests, there’s a concurring opinion on the matter from Justice Clarence Thomas. He’s talking about Justice Thomas’s concurrence in the immunity case, in which the justice argued that the appointment of Smith may not be “legally proper.” What’s more, Lauro continues, there’s a very persuasive district court ruling from a “respected” judge in Florida—referring to U.S. District Judge Aileen Cannon’s July 15 dismissal of Trump’s indictment in the Southern District of Florida. There's certainly no waiver here, Lauro adds. 

The time to file that motion expired well before the immunity appeal was taken in this case, Judge Chutkan protests. And there's still binding District of Columbia precedent on this. You have an opinion by a district judge in another circuit, “which frankly this court doesn't find particularly persuasive,” she adds.

The court should consider this issue, Lauro insists. Justice Thomas, in effect, “directed” us to do this. 

He “directed” you?, the judge asks, incredulously.

Well, he didn’t direct us, Lauro responds. But if you read that opinion, it's something we need to do to preserve that issue. 

The judge wants to hear from Windom on this question. He returns to the lectern.

Despite binding circuit precedent, Windom says, defendants in this court file motions all the time to preserve issues. Trump’s counsel didn’t do that here. Nevertheless, Windom admits that he doesn’t think the government will be prejudiced by allowing Trump to file that motion now, so long as it does not delay the briefing schedule for the immunity issue. But Windom reasserts that he also sees no reason why Trump should not be found to have waived the issue.

Judge Chutkan says she’s going to allow the defense to file that motion. But he wants the defense team to explain why she isn’t precluded by binding District of Columbia precedent from granting such a motion. 

Finally, Judge Chutkan wants to talk about some remaining odds and ends. She turns to a motion to dismiss based on statutory grounds that Trump filed before the case was stayed for the immunity appeal. She’s going to permit the defense to file supplemental briefs that will take into account legal changes since it was filed—principally, the Supreme Court’s June 28 ruling in Fischer v. United States, which narrowed the definition of “corrupt obstruction of an official proceeding” under 18 U.S.C. 1512(c)(2). (Count three of the Trump indictment charges that offense, while count two charges conspiracy to commit it, under 18 U.S.C. 1512(k).)  

As we continue through odds-and-ends, Lauro alludes to a pending issue under the Classified Information Procedures Act, which he can’t describe on the record, and the judge confirms that she’s aware of it. 

As for discovery motions, Windom explains that the defense actually has two pending motions: a motion to compel and a motion to define the “scope of the prosecution team.” While the defense wanted to take up the latter motion first, Windom argues that the two can’t be disentangled and should be decided together. 

“I agree,” says Judge Chutkan.

Before closing, the judge adds that setting a new trial date “doesn't make sense” because of the pending immunity issues which everyone agrees will be subject to interlocutory appeal. No one disagrees.

“That’s all I have for today,” the judge says. “Anything else, Mr. Windom? Mr. Lauro?” 

No and no, and the hearing concludes.