Jack Smith asks judge in Jan. 6 case to address immunity as Trump seeks dismissal

(NEW YORK) — Lawyers for Donald Trump and special counsel Jack Smith disagree on how to proceed with the former president’s election interference case, both sides said in a joint filing late Friday.

On the heels of this week’s superseding indictment in which Smith adjusted the case’s original charges to respect the Supreme Court’s recent ruling on presidential immunity, Smith, in Friday’s filing, declined to propose a timeline for the case — telling the court that “decisions on how to manage its docket are firmly within its discretion” — while Trump’s lawyers proposed delaying any in-person proceedings until after the November election.

Trump last August pleaded not guilty to federal charges of undertaking a “criminal scheme” to overturn the results of the 2020 election to remain in power. Last month, in a blockbuster decision, the Supreme Court ruled that Trump is entitled to immunity from criminal prosecution for official acts undertaken while in office.

Smith, in Friday’s joint filing, urged U.S. District Judge Tanya Chutkan to address the Supreme Court’s immunity decision “first and foremost,” while Trump’s lawyers asked the court to immediately consider dismissing the case based on the legality of Smith’s appointment before turning to the immunity issue.

“The parties recognize the types of motions and briefing anticipated in pre-trial proceedings but have differing views on how the Court should schedule these matters and the manner in which they are to be conducted,” the filing said.

Rather than propose in-person evidentiary hearings — which could have resulted in a so-called “mini-trial” ahead of the election — Smith urged the court to accept written briefs about presidential immunity to “distinguish [Trump’s] private electioneering activity from official action.” If Trump’s team filed motions on other issues, Smith asked the court to consider those issues simultaneously with the immunity issue.

Such a schedule could quickly address the question of presidential immunity and position the case to proceed to trial, though Trump is likely to appeal his immunity claim if Chutkan rules against him.

“The Government is prepared to file its opening immunity brief promptly at any time the Court deems appropriate,” the filing said.

Trump’s lawyers asked Chutkan to first consider whether Smith’s appointment as special counsel and funding are constitutional — the issue that led a Florida judge to dismiss the former president’s classified documents case last month — before considering whether to dismiss the indictment based on presidential immunity. Defense lawyers proposed holding a hearing about Smith’s appointment in December followed by a non-evidentiary hearing about immunity in late January.

“We believe, and expect to demonstrate, that this case must end as a matter of law,” Trump’s attorneys said in the filing.

Defense lawyers also signaled that they plan to argue the indictment should be dismissed because the grand jury heard evidence related to then-Vice President Mike Pence’s role in the 2020 vote certification process, which they believe is subject to presidential immunity.

“If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence,” the filing said.

Chutkan had earlier scheduled a Sept. 5 status conference to chart a path forward for the long-delayed case, which has not seen an in-person proceeding since last year.

The Jan. 6 developments are just part of the flurry of legal activity Trump faces in the final months before the election.

On Monday, prosecutors in the special counsel’s office appealed U.S. District Judge Aileen Cannon decision to dismiss the charges in Trump’s classified documents case.

Trump is also scheduled to be sentenced in New York on Sept. 18 after he was found guilty on 34 counts of falsifying business records. The former president has mounted multiple efforts to delay the sentencing, including a last-minute attempt to remove the case to federal court.

“At that potential sentencing, President Trump faces the prospect of immediate and unlawful incarceration under New York law, which could prevent him from continuing to pursue his leading campaign for the Presidency,” Trump’s lawyers wrote in a filing Thursday.