Special Counsel Jack Smith and former President Donald Trump.
CNN —
Former President Donald Trump and special counsel Jack Smith are at odds over how the election subversion case in Washington, DC, should move forward, according to a status report filed late Friday.
However, neither side is rushing to get to trial before the November presidential election – or even before the end of the year.
Smith is not offering firm dates for the next phase of the case, while Trump is recommending a schedule for certain pre-trial disputes that would carry through until at least the beginning of 2025.
Trump’s proposed schedule, however, says that it could take until fall 2025 to work through “additional proceedings, if necessary.”
The Friday filing sets the stage forapotentially contentious hearingnextweekin DC’s federal courthousewhere Judge Tanya Chutkanwilldeterminehow the case willproceed. Itwillbe the firsthearingin the case after the landmark Supreme Court ruling that said Trump hassome immunity in theelectionsubversionprosecution.
The filing also comes just days after the special counsel refashioned his indictment to bring it in line with the ruling from the Supreme Court’s conservative majority this summer.
Trump wants to challenge Smith’s appointment before dealing with immunity
The parties disagree in the Friday filing on the order of operations and whether certain issues in the case can be resolved concurrently.
Smith would like Chutkan to first tackle the questionsraised by the Supreme Court’s recent ruling on presidential immunity,but he says shecan do that while also handling certain other pre-trial issues that Trump plans to bring up in the case.
Trump, meanwhile, said that he plans to challenge the legality of Smith’s appointment and arguedthe judge should deal with that issue before moving on to the immunity dispute.
Trump also indicatedheplans to seek the case’s dismissal because he claimsthegrand jury that approved the new superseding indictment“considered immunized evidence” in the case – namely, presidential conductthat was immunized by the Supreme Court’s ruling.
His lawyers previewed other potential challenges to the charges, arguing each issue deserves to be treated separately and in a particular order, which would extendthe timeline of the case.
One potential challenge Trump’s lawyers are considering, according to the Friday filing, is one that would focus on “the Special Counsel’s improper use of allegations related to Vice President Pence.”
Trump also raised the possibility his lawyers would challenge the case based on the Supreme Court’s ruling in a US Capitol riot case thatlimited how prosecutors used obstruction charges against January 6, 2021, defendants.
“Fully considering, researching, briefing, and resolving each of these potential motions will take considerable time and resources,” Trump’s attorneys write. “Our proposed calendar accounts for this, yet still moves the case forward expeditiously.”
Trumppushes forlengthy process for resolving immunity in case
A major area of disagreement between Smith and Trump is how the court should go about resolving whether presidential immunity covers any aspects of the superseding indictment.
Prosecutors want to kick off that fight with an opening brief that would lay out their arguments for why the new indictment comports with the Supreme Court’s immunity ruling. Trump would file a response and then prosecutors would reply to that, under Smith’s plan.
“The Government is prepared to file its opening immunity brief promptly at any time the Court deems appropriate,” the prosecutors wrote, putting the ball in Chutkan’s court for how quickly shewants to move on the issue.
Trump objects to that idea, and is instead recommending a much lengthier process for resolving the immunity question.
The former president wants to file the first briefthat would challengethe indictment on immunity grounds. He also argues that he’s entitled to seek more discovery from the government to inform that fight. His proposed schedule contemplates an additional round of briefings over any immunity-related records that the government refuses to hand over.
Under his proposed schedule, any immunity-related discovery disputes would not be resolved until late January at the earliest.
Prosecutors slimmed down allegations after immunity ruling
Before the supersedingindictmentwas handed up on Wednesday, prosecutors spent eight weeks assessing what evidence and allegationsthey could stillincludein light ofthe immunity ruling– signaling that Smith’s team intended to move methodically through this phase of the case.
The retooled indictment carved out allegations that Trump had tried to use the Justice Department to further his 2020 election reversal schemes, and it removed evidence apparently derived from conversations that Trump had with his presidential advisers.
But Smith’s team did not drop any of the four charges, including conspiracy and obstruction, that they had originally brought against Trump, to which the former president previously pleaded not guilty.
Before Trump successfully sought the intervention of the Supreme Court, the federal election interference case was moving at a speedy clip, with a trial at one point set for last March.
As has been the case in all the criminal prosecutions he’s faced, Trump’s strategy has been focused on delay. He’s also accused prosecutors of interfering with the 2024 election. In a Tuesday post on Truth Social, Trump called the superseding indictment a “direct assault on Democracy!”
Justice Department policy discouragesmajor, public investigative stepswithin 60 days of an election that could harm or help a candidate. Thatquiet period would start next week.
However, the policy is not viewed as a hard-and-fast rule. In the classified documents case filed in Florida against Trump, the other case Smith brought against the 2024 Republican nominee for president, a prosecutor told the judge in March that the policy does not apply to a case that’s already been charged.
This story has been updated with additional reporting.
