WASHINGTON – On Thursday, U.S. District Judge Tanya Chutkan will start to address which federal charges against former president Donald Trump related to attempting to alter the outcome of the 2020 election should proceed. This comes after the Supreme Court indicated that he is protected from facing charges for actions taken while serving as president. The judge will hold a session with both legal teams in a Washington, D.C. courtroom.

One significant issue for Chutkan is that the prosecution and defense are not aligned on how to proceed with the case. In a “joint” filing submitted on Friday, both sides acknowledged they “have differing views” on which matters to address first and the timeline for doing so.

In a July ruling, the Supreme Court determined that former presidents cannot face criminal charges stemming from actions exclusive to their official role, such as issuing pardons and vetoes. The court also tentatively established that there is some level of immunity for actions taken in their capacity as president, like directing investigations into unfounded claims of election fraud but without granting complete immunity.

However, the Court clarified that Trump can be prosecuted for actions deemed private or unofficial. Special counsel Jack Smith has since brought a new indictment against Trump, arguing that the charges relate to private campaign activities, such as urging officials to overturn the election results and organizing false slates of electors.

“This judge is setting a historical precedent by applying the Supreme Court’s ruling regarding presidential immunity in a criminal case for the first time,” remarked Wayne Unger, an assistant law professor at Quinnipiac University. “This will capture the attention of historians and legal experts alike. The spotlight is on her decisions.”

Regardless of her determination, Chutkan’s ruling will have significant implications and either party may potentially appeal her decision to the Supreme Court later on.

Here’s an overview of what we expect during the meeting:

Prosecutors and Trump’s lawyers disagree on immunity discussions

During a joint filing on Friday, the sides expressed no consensus about the order of arguments in the case. Judge Chutkan will need to decide which issues to consider first and establish deadlines for the arguments.

Prosecutors believe the issue of immunity should be addressed prior to any other discussions, noting that the Supreme Court has consistently ruled that immunity matters should be settled “as early as possible.”

According to Smith, the Supreme Court’s immunity ruling does not pertain to the updated indictment since Trump’s election campaign activities do not convene as official conduct. They indicated readiness to submit their immunity arguments “whenever the Court finds suitable.”

Conversely, Trump’s legal representatives prefer to first clarify whether Smith’s appointment and funding were appropriate—a concern previously raised by U.S. District Judge Aileen Cannon that led to the dismissal of Trump’s charges concerning classified documents—planning a hearing for early December.

By December 13, Trump’s lawyers aim to file immunity arguments and reference a Supreme Court ruling concerning obstruction. Following that, the prosecution would respond by January 3, with a potential hearing set for January 27.

Mini-trial before election appears unlikely

Experts believe Chutkan is not expected to make any conclusions on immunity for several months. The Thursday meeting aims to outline the debate process, including deadlines for written submissions and possibly a hearing for her to pose questions.

It’s a fresh start; both Chutkan and the D.C. Circuit Court of Appeals previously dismissed Trump’s immunity claims. Neither court examined which charges might qualify as official actions.

However, the Supreme Court found that Trump has extensive immunity and remanded the case back to Chutkan for her to assess which actions can be classified under official duties and which could face legal charges as private actions.

“This ruling not only grants presidents sweeping immunity but also significantly empowers the judiciary,” stated Robert McWhirter, an attorney and expert in constitutional law. “The courts, and ultimately the Supreme Court, will now determine what constitutes an official act and what does not.”

Despite the ongoing speculation, there is no indication that Smith will seek a hearing to present evidence like According to legal analysts, Chutkan has the option to arrive at her conclusion based on written submissions, possibly accompanied by a hearing for legal representatives to discuss the matters at hand.

“I believe an evidentiary hearing is not necessary,” stated Jonathan Entin, a law professor emeritus at Case Western Reserve University. “The Supreme Court implied that the question of immunity is more of a legal issue rather than a factual one.”

Trump’s Legal Team Claims Immunity Shields Presidents from ‘Blackmail and Extortion’

Trump referred to the latest indictment as “ridiculous” on Truth Social, asserting that it “carries all the issues of the previous indictment and should be dismissed IMMEDIATELY.”

U.S. District Judge Aileen Cannon overturned charges in Florida in July regarding the retention of classified documents after Trump left the White House; however, she indicated that Smith’s appointment was illegitimate, rather than affirming Trump’s immunity. Smith is now seeking to have those charges reinstated by the appeals court.

Trump’s legal representatives contend that he is protected from criminal charges regarding nearly all actions undertaken during his presidency.

“If a president is subject to charges, trials, and potential imprisonment for their most contentious decisions once they leave office, this imminent risk will skew the president’s decision-making right when decisive and fearless action is most crucial,” lawyer John Sauer declared to the Supreme Court. “Every sitting president will inevitably face a form of coercion from political adversaries while still in office.”

This stance, however, leads to several troubling considerations. During the D.C. Circuit Court of Appeals hearing, Sauer posited that a president could evade prosecution even for commanding military actions against a political opponent, unless they were first impeached by the House and convicted by the Senate.

Justice Sonia Sotomayor expressed her worries during her dissent on the immunity ruling, cautions that actions like military assassinations, orchestrating a coup for self-preservation, or accepting bribes for pardons could all escape charges. “In every exercise of presidential authority, the President appears to be a monarch free from the law,” she remarked.

This particular case revolves around a combination of official and unofficial actions. Chief Justice John Roberts, who authored the majority opinion, stated that Sotomayor might have exaggerated the extent of immunity that former presidents enjoy. Roberts asserted that lower courts would decide “whether and how much of Trump’s alleged conduct qualifies for immunity.”

Smith Argues Trump’s Efforts to Alter the Election Went ‘Well Beyond’ Official Duties

Smith presented to the Supreme Court that even if the justices rule Trump immune for official acts, the indictment centers around his personal ambition to remain in office.

Smith articulated the private actions attributed to Trump:

• Involved private attorney Rudy Giuliani, who “was willing to propagate knowingly false claims” of election fraud, to lead challenges against the election results.
• Collaborated with another private lawyer, John Eastman, to submit a “verification” signed by Trump containing untrue claims to support a lawsuit contesting the election results.
• Directed private lawyers and a political consultant – Eastman, Kenneth Chesebro, and Boris Epshteyn – to present fraudulent slates of presidential electors.

“Such conduct falls well outside any understanding of presidential official acts,” Smith stated in a court submission.

“That’s Not Official”: Trump Attorney Sauer Responds to Supreme Court

One significant aspect for Chutkan to evaluate emerged during the Supreme Court’s April session when Trump’s attorney, John Sauer, conceded that various allegations in the indictment pertained to private actions.

Sauer informed the court that “many of the acts” were “clearly official” and “should be removed from the indictment for the case to advance.”

Justice Amy Coney Barrett reviewed a series of allegations listed in the indictment and questioned whether they pertained to public or private issues.

Sauer commented that the accusation against Giuliani seemed “private.”

He also described the Eastman allegation as “private.”

Similarly, Sauer deemed the accusations regarding fraudulent electors as “private.”

However, law professor emeritus Entin expressed doubt that Judge Chutkan would simply accept these concessions without further debate during the oral arguments at the Supreme Court.

“I don’t believe he’s revealed all his cards here,” Entin stated.

Who is Chutkan?

Chutkan became a District Court judge ten years ago, having been appointed by President Barack Obama. She has faced death threats due to her role in the Trump case.

Unlike U.S. District Judge Aileen Cannon of Florida, who was appointed by Trump and dismissed charges against him regarding classified documents, Chutkan has turned down Trump’s motions to dismiss the case.

Long-time observers of the federal court system describe Chutkan, born in Kingston, Jamaica and a former public defender, as a dedicated professional who aims to safeguard the rights of the former president as a defendant in a criminal case.

She has previously ruled against Trump by rejecting his claim in 2021 of executive privilege to prevent the release of government documents to Congress regarding the January 6 attack.

“Presidents are not kings and Plaintiff is not president,” she stated in that particular ruling.

What about the allegations related to the Justice Department?

The revised indictment removed mentions of Trump’s attempts to persuade Jeffrey Clark, a former assistant attorney general, to prompt the Justice Department to investigate unsubstantiated claims of extensive election fraud.

The Supreme Court stated that Trump was protected from charges concerning his communication with the Justice Department because it is part of the executive branch, even if he attempted to pursue unfounded investigations.

Chief Justice Roberts noted in the ruling, “The allegations in the indictment about the requested investigations being fictitious or driven by improper reasons do not strip the President of his exclusive power over the investigative and prosecutorial roles of the Justice Department and its officials.”

Prosecutors agreed that directing staff to follow false claims was an official misuse of presidential power, which they believed constituted a criminal act.

“We concur that the allegations involving the Department of Justice represent an application of the president’s official authority,” Michael Dreeben, a counselor to Smith, conveyed to the justices. “In many respects, we argue that this intensifies the severity of this offense.”