Judge Chutkan is BACK

The District Court Judge in Donald's DC case is working on a Saturday and has issued an order denying a Trump motion, setting a deadline for a joint brief, and scheduling a status conference.

That was fast! During the recording of the Jack podcast yesterday, we got the breaking news that the Supreme Court had (finally) remanded the immunity case back down to the DC Circuit Court of Appeals. Within minutes, the Circuit court remanded it back down to Judge Tanya Chutkan. Here’s what I said about it yesterday, which you’ll hear on the episode when it airs tomorrow:

Before the break, I promised that we had some breaking news, and we do. The Supreme Court’s immunity mandate has arrived at the DC Circuit Court of Appeals. And within minutes, Andy, the appeals court remanded it back to judge Tanya Chutkan. We knew we were waiting for the first week of August for this to happen. It has happened. This is the first step toward restarting the federal election interference case in DC, Jack Smith's case.

And of course, we'll keep you posted of any follow on filings because orders could come from Judge Chutkan at any time now, as well as, I mean, she could, she could issue rulings on some of the pretrial motions that were on hold forever. She could issue orders for both parties to submit whether they want to have a hearing, what they want to see for a hearing schedule for determining what acts in this indictment by Jack Smith are immune. So, she's got it. The case is hers again. And now we're going to keep an eye on it for you from here on out.

And almost as if I had willed it into existence, Judge Chutkan has issued an order denying Donald’s motion to dismiss on statutory grounds without prejudice, called for briefs, and set a status conference.

The court has regained jurisdiction over this case. The court accordingly ORDERS the following:

A status conference in this matter is hereby scheduled for August 16, 2024 at 10:00 A.M. in Courtroom 9. The requirement of Defendant’s appearance is waived for the conference. By August 9, 2024, the parties shall confer and file a status report that proposes, jointly to the extent possible, a schedule for pretrial proceedings moving forward. If necessary, the parties may explain any disagreements in separate sections of the report.

Defendant’s Motion to Dismiss the Indictment Based on Statutory Grounds, is hereby DENIED without prejudice. Defendant may file a renewed motion once all issues of immunity have been resolved. Briefing deadlines with respect to the Government’s Motion in Limine, ECF No. 191, and Motion for CIPA Section 6(a) Hearing, are hereby stayed. The court will set additional deadlines following the August 16, 2024 status conference.

So as I predicted, her order could come any time to propose a hearing, ask for briefs, and address outstanding pre-trial motions. She did it all in a single-page order. So let’s talk about what this means.

The status conference is self-explanatory. The parties will meet Friday, August 16th to make their case for the proposed schedules they’ll submit by Friday, August 9th. In those filings, as we’ve discussed on the podcast, we’ll learn each side’s proposals for how and when to move forward. My prediction?

The parties will meet and confer. Donald will want these proceedings to happen after the election - possibly even next year - while Jack Smith will want them to happen quickly. He’ll argue that the election is of no consequence, and they may even quote Judge Chutkan when she said during the trial date hearing (I was there!) that the court doesn’t care what your job is. She even used an example of a hypothetical criminal defendant that was a female athlete, and how her training and competition schedule would not be taken into consideration for court scheduling purposes. Jack Smith may also argue that the public has an interest in swift justice as he has many times in the past, and that Donald’s proposals are nothing more than an effort to delay the proceedings. He may even provide multiple examples, citing the court’s prior decisions to keep the case moving along by denying Donald’s previous motions to delay the proceedings.

The briefs she’s called for by August 9th require a meet and confer and a joint filing, with disagreements to come in separate sections. So I imagine we’ll see little agreement with lots of disagreement. What might they agree on?

They may actually agree on keeping these immunity proceedings under seal or argued on paper without hearings. I know we would all love a mini trial with extensive hearings and witness testimony ahead of the election, but Jack Smith and the DoJ writ large don’t strike me as the type to want to reveal their witnesses, evidence, testimony, or case-in-chief to Donald. That would give him a leg up in preparing his defense.

Additionally, Jack Smith and the government have argued on several occasions that these proceedings should not be tried in the court of public opinion. For Donald, his goal in limiting the immunity proceedings to sealed or otherwise low-key legal briefs is to keep the evidence against him out of the public eye ahead of the election. For Jack smith, he may want to keep the proceedings less noisy to preserve his evidence, protect his witnesses, and avoid tainting a jury pool ahead of trial. We’ll know in six days which way he wants to go.

Regarding the dismissal of Donald’s motion to dismiss the DC case on statutory grounds:

Trump filed that motion on October 23rd of last year alongside three other motions: Motion to dismiss on constitutional grounds that Jack Smith violated his first amendment rights, motion to strike language from the indictment about the insurrection, and a motion to dismiss for selective and vindictive prosecution.

Jack Smith asked the court to allow him to file a 68 page omnibus response in opposition to two of those motions: constitutional grounds and statutory grounds. Of course, Donald asked for an extension to reply to that omnibus motion because it was “so big” lol. That was denied, but here’s the crux of Donald’s argument to dismiss the motion on statutory grounds from last October:

Targeting an audience other than this Court, the prosecution’s indictment in this matter rants endlessly about President Trump’s politics and—in a shockingly un-American display of authoritarianism—accuses him of crimes for having and expressing the “wrong” opinions. Buried at the end of this diatribe are conclusory statements that President Trump’s alleged actions somehow violated 18 U.S.C §§ 241, 371, 1512(k), 1512(c)(2).

The prosecution does not explain how President Trump violated these statutes, beyond simply saying he has while regurgitating the statutory language. As explained herein, the reason the prosecution employed this tactic is plain—President Trump did not violate the charged statutes, even accepting the prosecution’s false allegations as true. Accordingly, the Court should dismiss the indictment for failure to state an offense.

That’s obviously stupid, but because the court must now determine which acts are immune and which are not, Judge Chutkan is dismissing this motion and allowing Donald to file it again once the parties are done with determining immunity.

Once the immunity proceedings are done, Jack Smith will have to re-assess the indictment to figure out whether his new set of evidence and facts are enough to obtain a conviction and maintain it on appeal. If what remains of the facts is enough to bring a case, he will proceed, and then Donald can re-file his pre-trial motion to dismiss based on statutory grounds.

The final part of her order stays the government’s motion in limine and CIPA 6(a) hearing motion deadlines pending the outcome of the immunity proceedings. Basically, those are on hold until the court determines which acts in the indictment are immune from prosecution.

You can read Judge Chutkan’s order here.

We'll see you for tomorrow’s episode of the Jack podcast.

~AG