Here's how Trump may try to challenge Jack Smith and delay his March 4 trial
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Here's how Trump may try to challenge Jack Smith and delay his March 4 trial

Sep 01, 2023

Attorneys for former President Donald Trump have previewed that they will be seeking to launch several legal maneuvers to gum up the federal election subversion case that has been brought against him by special counsel Jack Smith.

Whether the gambits push back the swift timeline US District Judge Tanya Chutkan has laid out for a March 2024 trial date may depend largely on her ability to keep the pre-trial proceedings on track; so far, she’s shown an extremely no-nonsense approach to scheduling and little patience for unnecessary delays.

Takeaways from a busy and significant day in the Donald Trump criminal cases

At a hearing in Washington DC’s federal court Monday, Trump attorney John Lauro went into some detail about the challenges to Smith’s case – which brought four charges stemming from Trump’s plots to overturn his 2020 electoral loss – the former president’s legal team is contemplating. He did so as he told the judge that the case’s “legal complexity” required a lengthy pre-trial period.

(Chutkan’s March 4 trial date was two months later than what Smith’s office was seeking, but is far head of the April 2026 trial Trump had sought).

Overlaying the individual claims Lauro previewed is the bigger question of whether Trump, if his claims are rejected in the pretrial proceedings before Chutkan, can convince higher courts that they need to weigh in before the case goes to trial.

Usually, legal questions over how a trial was carried out – including whether certain charges should have been thrown out or whether certain evidence should not have been put before the jury – are reviewed by appeals courts after a conviction has been delivered. But occasionally defendants can successfully seek what’s known as an interlocutory appeal – or an appeal before a trial has wrapped up.

The standards for an interlocutory appeal are “demanding,” said CNN legal analyst Elie Honig, a former federal prosecutor.

“It is very difficult to successfully file an interlocutory appeal – to appeal before a verdict has been rendered – and even if he does, that doesn’t necessarily put all the trial prep on pause,” Honig said.

Trump has pleaded not guilty.

In several of the legal proceedings he has faced, Trump has pushed arguments that he should be immune from court action because his actions fell within his duties as president. The January 6 federal criminal case looks like it will not be an exception to that pattern

Lauro at Monday’s hearing said that “executive immunity” will be an “initial” issue that Trump’s lawyers raise – perhaps as early as this week or next.

He also previewed an argument that the court doesn’t have “jurisdiction” over the case, in what could be a signal that they will argue that the prosecution amounts to a political question that should be addressed through Congress’ impeachment powers or at the ballot box.

“The indictment essentially indicts President Trump for being President Trump and faithfully executing the laws and executing on his take care obligations,” Lauro argued, referring to constitutional clause requiring the president to “take care that the Laws be faithfully executed.”

“So we’re going to have a very, very unique and extensive motion that deals with executive immunity,” Lauro said.

Trump and the courts are on a 2024 election collision course

Unlike the protections for lawmakers under the Constitution’s Speech or Debate clause, the concept of presidential immunity is a “squishy, discretionary question,” not laid out explicitly in the Constitution, according to Kim Wehle, a law professor at the University of Baltimore.

The question is, she said, “will this prosecution – if it goes forward – hamstring future presidents from being able to do their jobs.”

Chutkan, and judges who would consider the question if it’s appealed, will have to figure out what the line is between protecting presidential discretion while not giving presidents a pass to engage in criminal activity that is not protected by the Constitution.

In the civil lawsuits Trump is facing for the January 6, 2021, US Capitol assault, his sweeping theory of immunity has already been rejected by a district court, while an appeals court ruling on the claim could come any day now.

Soon after the indictment was unveiled, Trump’s lawyers and particularly Lauro were aggressive in pushing the claim in media appearances that prosecutors were seeking to criminalize Trump’s right to free speech.

Lauro has said that the conduct that Smith was targeting Trump’s protests of the 2020 election results “were core political speech” protected by the Constitution.

“When it comes to political speech, you cannot not only advocate for a position, but you can take action, you can petition, you can ask even your vice president to pause the vote for a period of time,” Lauro told CNN’s Dana Bash earlier this month.

At Monday’s hearing, Lauro told the judge that they have “core First Amendment issues” that they are going to litigate in the case.

The First Amendment argument against the case has attracted some support from some quarters of conservative punditry. But other free speech experts have said the alleged unlawful conduct may extend beyond the bounds of the Constitution’s protections.

Trump’s former Attorney General Bill Barr was skeptical of that defense, telling CNN’s Kaitlin Collins that “free speech doesn’t give you the right to engage in a fraudulent conspiracy.”

Lauro said Monday that an extended pre-trial period was needed for litigation over whether Trump has been selectively prosecuted.

“We also anticipate a selective prosecution motion, given the fact that this prosecution provides an advantage to these prosecutors’ boss, who is running a political campaign against President Trump, which everybody knows about,” Lauro told the court.

He said Trump’s motions would get at whether the prosecution was a “retaliatory action” against the former president’s criticisms of President Joe Biden and his son Hunter Biden. (No evidence for that conclusion has been made public.)

It is “extraordinarily rare” for a defendant to prevail on a selective prosecution claim, Honig said.

Often the defendant will have to show that someone similarly situated was not prosecuted.

“The difficulty here is nobody is really similarly situated” to Trump, Honig said.