The return of former President Trump’s Jan. 6 prosecution to District Court Judge Tanya Chutkan has ignited a flurry of activity in the once-dormant case, reviving a high-stakes court battle after a series of legal wins for the former president.
The case is back in Chutkan’s hands after the Supreme Court formally sent it back to the lower courts after providing Trump a victory in determining that as a former president, he maintains broad immunity from criminal prosecution.
That ended a roughly eight-month pause in the case, and Chutkan has made clear the hiatus is over.
Just hours after the case was handed back over on Friday, she scheduled an Aug. 16 conference to chart the course for handling numerous unresolved issues in the case — likely teeing off a discussion over whether to hold what some have deemed a minitrial.
And Saturday, she ruled against Trump on a pending bid to toss the case, determining he failed to demonstrate any prosecutorial bias on the part of special counsel Jack Smith in bringing the case.
“She certainly has signaled with her rapid disposition of the selected prosecution motion, with setting a quick briefing schedule and a speedy hearing on the 16th that she wants to keep things moving, and that is how the justice system should work,” said Norm Eisen, who served as counsel for Democrats in Trump’s first impeachment, told The Hill.
In her order, Chutkan wrote Trump had again offered an “improper reframing” of the allegations against him and determined the former president offered “no meaningful evidence” that he was unfairly targeted.
Chutkan has consistently offered a contrast with Judge Aileen Cannon, who oversees Trump’s Florida-based documents case.
She’s more speedily resolved a number of pending matters in the Jan. 6 case, while Cannon’s Mar-a-Lago case has plodded along with lengthy hearings on long-shot motions from Trump.
And while Cannon agreed to toss Trump’s documents case, Chutkan rejected his effort to do so with immunity claims, teeing up the battle that has now boomeranged back to her courtroom.
In the wake of the high court’s decision, Chutkan is now tasked with determining what conduct from Trump’s effort to unwind the 2020 election is not immune from prosecution.
The public will get their first look at Smith’s thinking on the matter by Aug. 9, when Chutkan has ordered both sides to jointly lay out their vision for how they think the case should proceed.
It’s possible Smith could ask for an evidentiary hearing — something some Trump critics see as a “minitrial” that would allow the public to learn more about the evidence prosecutors plan to offer.
“There’s no reason for further delay here. It’s already outrageous that the case has been delayed as long as it has. It was supposed to go to trial in March. We should have had a verdict long ago, so the least the judicial system can do is give us a minitrial to — to some extent — air the allegations and offer a determination of whether they’re immune or not,” Eisen said.
“I think Judge Chutkan will ultimately rule that the majority, indeed the vast majority, of the indictment consists of allegations where immunity does not apply.”
The Supreme Court’s ruling last month determined former presidents are immune from prosecution for actions they take in office that are part of their core executive functions, and that they are presumptively immune for all other official acts.
In doing so, the justices called out one specific element of the indictment, barring use of Trump’s pressure campaign at the Justice Department as the basis for any charges.
But it’s now up to Chutkan to parse out the rest of the indictment and determine where else Trump might be protected from prosecution — and which elements of his plot to stay in power can still land him prison time.
That process could take two routes: arguments on paper, or a hearing featuring live witness testimony.
To Trump critics, evidentiary hearings with witnesses would be the closest the country can get to a trial of the former president ahead of the election for his conduct related to Jan. 6.
It’s an idea Trump’s legal team has expressed opposition to.
Sitting with conservative radio show host Hugh Hewitt, Trump attorney Todd Blanche agreed when the host asked if Chutkan should “postpone all of this until after the election,” a question that came in the wake of Trump’s assassination attempt.
“[There are] a lot of others out there that want, still want, nothing more than to see President Trump go down before the election. And that’s not who we are as a country. That’s not the way the justice system is supposed to work. That’s not the way it’s ever worked before. And we can still right this ship,” Blanche said.
“If you want to beat President Trump, then take your message to the voters and tell them to vote. You should not use the court system, and that’s what they’ve done.”
Shan Wu, a former federal prosecutor and general counsel to former Attorney General Janet Reno, said there’s plenty of “legal necessity” for holding an evidentiary hearing that has little to do with calls to hold Trump accountable ahead of the election.
“In such an untested area of law. It’s the first time that trial court is going to have to try to apply this extremely confusing, ambiguous Supreme Court standard. It’s really important have a full factual record — evidentiary-wise, with live witnesses who’ve been cross examined — to establish a really good record for what will surely be used in the future for how you’re supposed to apply this immunity ruling,” Wu said.
“So for the first time, having a trial court having to apply this brand new ruling, I think legally it’s really important to have a hearing.”
Doing so, he said, also strengthens any ruling from Chutkan, whose work will undoubtedly be reviewed by higher courts as Trump appeals her determination.
If Chutkan made the decision based only on legal briefs, she’s “entitled to less deference on appeal, because the appeals judges deal with the law and they can second guess the trial court,” Wu said.
“Since the appeals courts don’t hear from live witnesses — judge their demeanor, they don’t watch how they react to the cross examination … the appellate courts, including the Supreme Court, will be much more deferential to that type of testimony, where the judge has had a chance to eyeball the witness and make their own credibility terminations. That kind of evidence doesn’t really get overturned on appeal.”
Timing, however, could factor in as a concern.
Such a hearing could be done over a few days, but it could also last longer, with Wu suggesting perhaps even a couple of weeks.
Those are details that could give Chutkan or even prosecutors some pause, as the Justice Department typically avoids bringing charges in the two months ahead of the election, and something considered even in seeking a hearing.
But in some respects, Chutkan has suggested she cannot consider the election in weighing how to proceed in Trump’s case, noting she must treat him like any other citizen.
“She’s made clear already that Trump is not going to be treated any differently, nor should he be treated any differently, than any other defendant in her courtroom. Other defendants have jobs, but they have to come to court,” Eisen said.
“We don’t have two systems of law in the United States, one for presidential candidates, one for everybody else.”