First hearing in Trump election interference case since immunity ruling

Trump attorney John Lauro speaks as Judge Tanya Chutkan held a status conference Thursday in the federal election subversion case against former President Donald Trump.

At Thursday’s hearing in the federal election subversion case against Donald Trump — the first proceeding before Judge Tanya Chutkan since the Supreme Court granted him some immunity in the prosecution — the trial judge did not finalize a schedule for the next steps in the case, but previewed her thinking on how the case should advance.

She was skeptical of the Trump team’s request that she first decide whether the then-Vice President Mike Pence-related allegations in the indictment were immune, and Chutkan repeatedly stressed the discretion she believes she has for how she structures the proceedings in her courtroom.

Though Thursday’s one-hour-and-15-minute hearing was mainly about process, a sharp back-and-forth she had with a Trump attorney brought attention to how the 2024 election is looming over the case.

Here are key takeaways from the hearing:

Chutkan will lay out next steps as soon as Thursday: The judge did not issue a ruling from the bench but said she planned to put forward a scheduling order as soon as possible, which she said could be later Thursday. That could lay out the steps in the case that will play out before the November election. During the hearing, prosecutors explained why they want the chance to file an opening brief that would argue why they believe their new indictment complies with the Supreme Court’s immunity ruling. Trump’s attorneys argued against that and proposed a longer schedule.

Jack Smith sits during the hearing.

Election looms over hearing, but Chutkan says she’s not considering it: As the judge debated with Trump attorney John Lauro over how quickly she should move to allow the prosecution to file a brief defending their indictment on immunity, they eventually addressed the political elephant in the courtroom: the looming presidential election. After a back and forth with the judge over what the process should be for deciding the immunity issues in the case, Lauro acknowledged that among his team’s concerns about the prosecutors’ proposed approach is what would be aired on the court’s public record at a “sensitive time.” The crux of the process disagreement comes down to who gets to file their immunity brief first and when that brief gets filed.

Special counsel prosecutor Tom Windom speaks during the hearing.

Trump has repeatedly complained that the new indictment filed last week was an attempt to interfere with the campaign — just as he complained about his New York trial in the spring — but Chutkan’s comments signaled she isn’t going to wait until after November 5 before moving forward on the issues that have to be dealt with in the case following the Supreme Court’s immunity decision.

Read more key takeaways from the hearing

CNN’s Hannah Rabinowitz and Holmes Lybrand contributed to this report.

Judge Tanya Chutkan fired off several zingers from the bench during the first hearing in Donald Trump’s election interference case in almost a year. They nearly all were in response to Trump defense attorney John Lauro:

Special counsel Jack Smith, with a beard even longer than the last time he attended a court hearing in a Trump case in Florida at the beginning of summer, watched with lively reaction, looking around, smiling occasionally.

Surrounded by several security agents in a full courtroom, he smirked when the courtroom conversation brought up the coming challenges to his Constitutional authority.

But the moment in which the tenor of the courtroom changed when Lauro mentioned to the judge that it’s a “very sensitive time in our nation’s history.”

Chutkan and Lauro had been quipping back and forth so quickly the court reporter said she had some trouble keeping up with the cross-talk. But with that line from Lauro, Chutkan leaned back in her chair, sighed, then interrupted him with a finger up.

She paused, halting down their pace.

Judge Tanya Chutkan hinted that she was dubious of Donald Trump’s coming attempt to get the Washington, DC, case dismissed on the grounds that special counsel Jack Smith was supposedly illegally appointed.

She took a swipe at the ruling that Judge Aileen Cannon handed down dismissing the classified documents case on that basis, calling that ruling not particularly “persuasive.”

Chutkan also emphasized that a concurrence by Justice Clarence Thomas — which Cannon’s ruling cited — that laid out those constitutional concerns was “dicta,” meaning non-binding language. And she brought up that there is already DC Circuit precedent in the books upholding the constitutionality of special counsels, which would be binding on her as a trial judge in Washington, DC.

Nevertheless, she is letting the Trump team take a shot.

However, when his lawyers file the motion that asks for permission to formally make those arguments, they must elaborate on why they should be allowed to do so, Chutkan said.

Judge Tanya Chutkan addressed setting a trial date in the federal election subversion case against former President Donald Trump as she concluded Thursday’s hearing, but she did not schedule a date.

Chutkan acknowledged the likelihood that the issue of presidential immunity in the case will continue to be litigated and appealed once she hands down her next round of rulings on the next matter.

Both parties agreed.

“That’s all I have,” Chutkan said. “Thank you all.”

The parties are now discussing discovery in the case. Defense attorney John Lauro says that there is likely new discovery because prosecutors never had to weigh the issue of immunity before.

“We’re still getting discovery in this case,” Lauro says.

Lauro says there are also unresolved discovery issues in the case.

The defense attorney says the motion to dismiss will be a legal argument and won’t require more discovery or evidence.

Judge Tanya Chutkan says it makes sense to resolve the pending discovery motions sooner rather than later. She asks Lauro if he has any objections to that, and he says he does not.

Tom Windom says prosecutors do not expect to make any immunity-based discovery disclosures. “We have nothing further to provide” in discovery, he says. He adds that the defense has not told them what other evidence they think the government should hand over on the issue of immunity.

Chutkan says that she is going to “assume” the parties will continue to work together to resolve discovery issues on their own.

Chutkan says she will consider other motions over discovery together.

Judge Tanya Chutkan is now moving to the Supreme Court’s decision limiting how prosecutors can use obstruction charges against January 6 defendants.

Defense attorney John Lauro says that “it will be a whole new brief” to address the issue of obstruction in the case.

Chutkan pushes Lauro over his repeated assertion that defense attorneys are now dealing with a new indictment. It’s not new, she says, its the same charges. And of the allegations: “It’s not more stuff, it’s less.”

Former Vice President Mike Pence speaks during the 2023 First in the Nation Leadership Summit on October 14, 2023 in Nashua, New Hampshire. 

Donald Trump’s team is trying to tee up a key early battle: Whether the entire indictment should fall if former Vice President Mike Pence-related conduct is immune. 

Trump’s lawyers previewed the arguments in Friday’s filing. In Thursday’s hearing, Trump attorney John Lauro is focused on trying to convince Judge Tanya Chutkan that if she decides Trump’s interactions with Pence are covered under the immunity ruling, the whole case must be thrown out.

Lauro contends that moving forward that way is actually the more economical approach, because it could save the court from doing lengthy briefings on other allegations in the indictment if she decides the whole case must be dismissed on the Pence issue alone.

The argument does not appear to be resonating with Chutkan, who told Lauro that that she does not believe that deciding the Pence matter first — and whether its fatal to the entire case — is what “I was instructed to do by the Supreme Court.”

Smith’s team pushed back as well, arguing that Trump lawyers were taking a line out of the Supreme Court opinion out of context.

If the Pence-related conduct is deemed immune, “It is not an automatic dismissal of the indictment,” prosecutor Thomas Windom said.

Prosecutor Tom Windom again says that it would be prudent for the judge to decide immunity issues first.

The judge could then decide whether to dismiss the case, he adds.

Defense attorney John Lauro says that immunity should be decided before statutory motions, which Judge Tanya Chutkan agreed with.

The judge says that “immunity is the linchpin here.” 

Judge Tanya Chutkan is now turning to another potential defense motion over whether the grand jury improperly heard evidence about former Vice President Mike Pence.

She says she wants to know whether this is a separate challenge to the indictment than the one they have already discussed.

Donald Trump attorney John Lauro says the motions are separate but the communication with Pence will be the main focus as they move to dismiss the superseding indictment.

Prosecutor Tom Windom responds, saying, “It seems that what Mr. Lauro is suggesting is a two-step process.”

Trump’s defense has returned to an argument over whether special counsel Jack Smith’s appointment to lead the election interference case was legitimate, alluding to a ruling by a federal judge in Florida to throw out the classified documents case — a separate investigation into the former president also led by Smith and his team.

During a protracted back-and-forth with Judge Tanya Chutkan, defense attorney John Lauro raises the “illegitimacy of Mr. Smith.”

“We have an illegitimate prosecutor, we have an illegitimate indictment, and we have illegitimate legal issues raised in that indictment,” Lauro says.

He points to the ruling by Florida Judge Aileen Cannon — who has faced intense scrutiny over her handling of the documents case — to suggest something similar could be done in this case regarding Smith’s appointment.

But Chutkan says there is DC circuit precedent that may lead her to deny a motion to dismiss Smith. And Chutkan sounds skeptical of the Cannon ruling.

Lauro is also arguing that the court should factor in criticism of Smith’s appointment from conservative Supreme Court Justice Clarence Thomas, who wrote in a concurrence on the court’s presidential immunity ruling that Attorney General Merrick Garland may have violated the Constitution when he appointed Smith.

Prosecutors respond: Prosecutor Tom Windom responds to the arguments from Lauro, saying Trump’s team could have filed on the issue of Smith’s appointment earlier.

“They knew about the issue, they had the opportunity to file before,” Windom says, arguing that Trump should have filed his challenge to Smith before the case was paused for appeals. “They are suggesting somehow that a lone justice’s concurrence” has “somehow reopened the issue” of Smith’s appointment, Windom says.

Bottom line: Chutkan says she will allow Lauro to file a motion on the issue of Smith’s appointment, but says she wants him to address the DC precedent she referenced.

Assistant US Attorney Thomas Windom leaves the US District Court in Greenbelt, Maryland in January 2020.

During Thursday’s hearing, prosecutor Thomas Windom repeatedly deferred to Judge Tanya Chutkan on the timing for when the special counsel’s office could file a brief defending the new indictment as complying with the Supreme Court’s immunity decision.

Chutkan pressed Windom to give a timeline for how quickly prosecutors could file the brief the special counsel proposed that would begin the process for Chutkan to sort out the immunity issues in the federal election subversion case. 

She continued to ask Windom for a date, and he said that prosecutors had “begun” writing estimated two to three weeks.

At the same time, he emphasized that prosecutors would leave the exact timing “to the court’s discretion.”

Left unsaid was how a briefing schedule would be inevitably intertwined with the election calendar, with Election Day — now two months away. 

In the brief, Windom said prosecutors “would set forth for the court” why the conduct is “private in nature and not subject to immunity.” 

The political elephant has made its appearance in Judge Tanya Chutkan’s courtroom.

After a back and forth with the judge over what the process should be for deciding the immunity issues in the case, Trump attorney John Lauro acknowledges that among his team’s concerns about the prosecutors’ proposed approach is what would be aired on the court’s public record at a “sensitive time.”

The crux of the process disagreement comes down who gets to file their immunity brief first and when that brief gets filed.

Lauro contends that if the special counsel Jack Smith’s team gets to file an opening brief on the immunity question first, it’s “unfair” and “prejudicial” to Trump. Instead, he argues, Trump should file the initial brief in the form of the motion to dismiss, after he has some time to obtain additional discovery from the government.

Lauro keeps claiming that going the prosecutors’ way would run afoul of the Supreme Court’s immunity ruling. Chutkan seems skeptical, and brings up the discretion she believes the high court has left to how to move forward.

Lauro denied that his arguments were connected to the presidential campaign.

Prosecutor Tom Windom is back to respond to arguments from Trump attorney John Lauro, who argued vigorously against the schedule set out by the special counsel’s team.

Windom says some of Lauro’s arguments are moot, because there is no additional evidence in the case to turn over. The prosecutor declines to say how much of their evidence should remain under seal.

Remember: Lauro has been arguing against a “rush to judgment” and suggesting a protracted schedule, including an evidentiary hearing and a chance to review evidence from the prosecution.

He has also suggested it’s unfair to let prosecutors enter evidence into the public record against Trump so close to the 2024 presidential election, though Judge Tanya Chutkan has said she won’t factor the electoral schedule into her decisions.

Judge Tanya Chutkan and defense attorney John Lauro are going back and forth in court now.

“We are talking about the presidency of the United States,” Lauro says.

“I am not talking about the presidency,” Chutkan says. “I am talking about a four count indictment.”

Chutkan continues:

“The decisions here will not just affect this case, it will affect the republic going forward” Lauro responds.

Defense attorney John Lauro again argues that Judge Tanya Chutkan may rule that the former Vice President Mike Pence evidence is immune and “as an initial matter the court can dismiss this case right away.”

Chutkan says that the Supreme Court could have decided the entire indictment was flawed, adding that she doesn’t agree that she can dismiss the superseding indictment out of hand.

“The ruling is clear, crystal clear,” Lauro argues of the Supreme Court, prompting a chuckle from Chutkan.

Lauro is arguing that evidence in the case needs to be made public before a long fight over presidential immunity begins. That is because he thinks that the indictment should be dismissed immediately over grand jury issues, and that arguing over immunity would no longer be necessary.

Lauro says that prosecutors want to “leap frog” over grand jury issues.

Judge Tanya Chutkan suggests that it is too early to set a trial date.

Defense attorney John Lauro continues to push back, saying the potential brief from prosecutors would be “a rush to judgement.”

Defense attorney John Lauro continues to fight for a protracted schedule.

Lauro says that he believes defense attorneys and the special counsel will be able to work out some of these evidentiary issues around immunity themselves.

“What is the rush to judgement that the special counsel is suggesting,” Lauro says.

“There is something unseemly” about how quickly this case is going, Lauro says.

Judge Tanya Chutkan pushes back, saying that “we are hardly sprinting to the finish line here.”

“We all know that whatever my decision on immunity is is going to be appealed,” Chutkan says, adding that “there needs to be some forward motion in this case.” 

The Trump team is being “pretty dramatic” in their arguments in court today, CNN’s chief legal correspondent Paula Reid said, when compared to what the defense has submitted in filings.

Reid added that the defense attorneys also argued “that the Supreme Court has already decided whether prosecutors can use evidence around Vice President Mike Pence and the judge cut him off and said, ‘I would disagree with that.’ And this is significant because this is really going to be the next area of dispute between prosecutors, defense attorneys and clearly, the judge. The judge noting here that it is up to her, the Supreme Court has given her discretion on this issue.”

Reid said that it’s looking like this may not go the way defense attorneys had hoped, but their number one goal here today is to delay anything here until after November.

Judge Tanya Chutkan and defense attorney John Lauro are sparring over which legal team would file briefings on the issue of presidential immunity first, and whether Trump’s attorneys can have access to prosecutors’ evidence before those filings are due.

Lauro says they’re not suggesting the case should go into the fall of next year, but rather that the issues at hand need to be dealt with carefully.

Chutkan says “immunity needs to be dealt with as early as possible.”

But Lauro is asking for an evidentiary hearing, saying, “We need a full and robust record.”

He adds that “it’s incredibly unfair that they (prosecutors) are able to put in the public record” evidence against Trump at this time, suggesting that it’s too close to the election.

“I am definitely not getting dragged into” the election, the judge adds

Defense attorney John Lauro wants Judge Tanya Chutkan to first make a decision on whether the superseding indictment against former President Donald Trump itself is legitimate.

Lauro explains that because evidence about former Vice President Mike Pence’s role in the certification of electoral college certification was presented to a grand jury, prosecutors have already breached presidential immunity protections.

Chutkan suggests handling the issue as part of their reply to the government’s first brief on immunity.