One day after receiving the case back from the United States Supreme Court, federal District Court Judge Tanya Chutkan issued an order on Saturday scheduling a status conference for August 16 to determine procedural matters in the election subversion case against former US President Donald Trump, Reuters reported. The order comes after the Supreme Court’s recent ruling in Trump v. United States, that the former president has immunity from prosecution for official acts.
In her one-page order, Judge Chutkan asked all parties to submit a joint statement to the extent possible by August 9 and propose a schedule for pretrial proceedings. She also stated that if there are disagreements, the parties should address them during the conference. She will establish additional deadlines after the August 16 conference. She waived the requirement that defendant Trump appear in court for the status conference.
Judge Chutkan also denied two of Trump’s motions to dismiss the charges against him, one on the basis of statutory grounds and one on the basis of vindictive and selective prosecution. Trump may file a renewed motion after all issues of immunity have been resolved, she wrote.
In February, Judge Chutkan, known for imposing strict sentences on January 6 rioters, in accordance with 100 years of judicial precedent, ruled that former presidents do not have immunity due to the lack of a “divine right of kings.” The U.S. Court of Appeals for the District of Columbia Circuit upheld her decision.
However, on July 1 the Supreme Court reversed Judge Chutkan’s ruling in a 6-3 decision authored by Chief Justice Roberts that shocked the legal community. The court determined for the first time in US history that presidents have general immunity against prosecution for official acts, have absolute immunity for acts within their “core” presidential responsibilities, but do not have immunity from prosecution for unofficial acts.
The court remanded the case to Judge Chutkan to determine whether and to what extent Trump was acting in his official capacity in seeking to overturn the 2020 election.
Judge Chutkan now faces the challenging task of interpreting presidential behavior—a task no other judge has had to undertake. The Supreme Court noted that no court has yet made such distinctions in general or regarding specific conduct. Chief Justice Roberts wrote in the opinion that the distinction should be made in the first instance (as with all fact-finding) at the district court level, given that the Supreme Court is a court of final judicial review.
Judge Chutkan’s findings on remand may, however, be reviewed on appeal.
Judge Chutkan will oversee a “mini-trial” to determine which of Trump’s unlawful actions while if office may be prosecuted and which should be excluded from Special Counsel Smith’s charges. In addition to applying this new legal standard, she must also adhere to the Supreme Court’s extraordinary dicta that actions that are found to be entitled to immunity cannot be used as evidence in the case, even to show criminal knowledge or intent as to prosecutable actions.
Scheduling will likely be a key issue. Special Prosecutor Jack Smith has advocated for trial to commence before the November 5 elections in which Trump is running as the Republican presidential nominee. Trump’s team will want to delay the trial. Nonetheless, the trial could take place in the fall.
Judge Chutkan also addressed motions that had been pending while the Supreme Court addressed Trump’s immunity claim. In her order, she rejected Trump’s motion to dismiss the case on grounds of “selective and vindictive prosecution.” She found no evidence of vindictiveness that would justify dismissal.
The outcome of the case may well depend on whether Trump is re-elected to the White House. If so, he could potentially dismiss the special prosecutor, as well as use his powers under the US Constitution to grant himself a pardon, both acts that could be construed as “official” acts for which he would subsequently be immune from prosecution.