Dem
51
GOP
49
When the Supreme Court ruled that presidents are sort of like kings when they are acting in their official capacity, that put the court case in which Donald Trump is charged with trying to overthrow the 2020 elections on hold. The Court also froze everything for a month to allow each side to reconsider its position. In particular, the prosecutors were expected to drop charges for presidential actions that were clearly sanctioned by the Constitution. The one-month window closed on Friday. That sent the case back to the U.S. Court of Appeals for the District of Columbia, which sent it back to the trial judge, U.S. District Judge Tanya Chutkan, within minutes. Now the ball is in Chutkan's court (no pun intended, well maybe a little bit).
Chutkan's task now is to determine if inciting a mob to attack the Capitol is part of the job description of being president. On Saturday, Chutkan asked both sides for proposals to set a schedule for hearings. She wants the proposals by Aug. 9, and has set Aug. 16 to discuss them. She also said that she will not require Trump to be in the courtroom if he doesn't want to be there. This eliminates the possibility of his lawyers appealing that the case has to be put in the freezer until after the election because Trump has a constitutional right to run for president.
Chutkan is a no-nonsense judge who doesn't like delaying tactics. She could easily schedule hearings for September (without Trump present unless he wants to be). At those hearings, both sides would present evidence about why Trump's actions on Jan. 6 were/were not presidential (in a literal sense). That would allow Special Counsel Jack Smith to show videos and call witnesses to show how riling up a crowd to attack the Capitol was being done by Trump the candidate, not Trump the president. If she ruled that the speech was in Trump's capacity as a candidate, there could be a trial, although Trump could appeal the ruling. There is zero chance of a full trial before the election but a substantial chance of hearings at which Smith could bring up any evidence he wanted. That hearing would suck up almost all the oxygen in the air and remind everyone of the events of that day. It could be devastating, especially to voters who might have been 15 or 16 then and not paying much attention.
No doubt Trump's attorneys will ask for the hearings to begin sometime in 2026 so they can prepare properly. Smith will probably suggest Sept. 2024. It is the judge's call. Team Trump might try for an appeal, but that's not likely to fly, because not every decision in every case can be appealed. Otherwise people with enough money to pay their lawyers indefinitely would never go on trial.
Chutkan has handled a number of Jan. 6 cases already and has established a reputation for handing out tough (but legal) sentences. She clearly regards the coup attempt as a very serious matter. We suspect her ruling will be much closer to what Smith wants than what Trump's lawyers want.
In other legal news, Trump's lawyers in the hush money case in which he was convicted of 34 felonies are arguing that paying off porn stars and then cooking the books in violation of New York State commercial law is part of what presidents do. They want the verdicts thrown out. Among other things, they are arguing that using White House staff, like Hope Hicks, as witnesses, make the case about presidential duties. Judge Juan Merchan has scheduled sentencing in the case for Sept. 18. Now he has to decide what to do next. (V)