Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno
Contrary to the wishful thinking of former President Trump, Special Counsel Jack Smith’s Jan. 6 case against Donald Trump for election interference is not completely dead. In fact, the case is now finally back in the hands of a judge who actually knows how to try a criminal case.
Judge Tanya Chutkan, a former public defender, will decide whether the next stage of the case will be an evidentiary hearing that could amount to a mini-trial of the case against the former president. That mini-trial could and should occur before the election.
ADVERTISEMENT
Following the U.S. Supreme Court’s slow roll of its immunity decision, the case was sent back to the D.C. Circuit Court of Appeals which immediately issued its mandate sending the case back to the trial judge, Judge Chutkan, the very same day. The high court had the opportunity to decide the matter in December, but did not issue its decision until this summer.
Not only did the timing of the Supreme Court’s decision make it impossible to try defendant Trump before the election, but the conservative majority shielded Trump and future presidents in near absolute immunity, and made the evidentiary process for bringing cases against a president into a legal labyrinth.
The conservative justices—none of whom appear to have ever tried a criminal case—did what Justice Neil Gorsuch promised to do at oral argument, which was to “write for the ages.”
Their majority opinion constructed a process by which prosecutors would need to show that they could present evidence that would not amount to core presidential “official acts” because such acts—even if they involved such hypotheticals as a president ordering Seal Team Six to assassinate political rivals—would be immune from any criminal prosecution. Acts that are purely private actions or “official acts under narrow exceptions to be hammered out by lower courts” can still be tried. For Jack Smith, that “hammering out” must now be done to figure out what parts of his indictment survive.
Judge Chutkan has ordered Jack Smith and Trump’s legal team to confer with each other prior to Aug. 9 to prepare for a status conference on Aug. 16 which will determine the next steps in the case.
While we can expect Trump’s lawyers to continue to make as many delaying arguments as possible (Trump is not required to attend), they have already won the delay they sought, which is to make trial before the election impossible. But as the first jurist to act as divinator of the Supreme Court’s immunity decision, Judge Chutkan faces the choice of whether to have the lawyers fight it out on paper, or to combine the paper fight with live witness testimony. She should choose live witness testimony.
As law professor Andrew Weissman has noted, “[t]his type of hearing is routinely done in connection with federal criminal cases on a wide range of issues, most commonly motions to suppress evidence,” and that Jack Smith “could call to the stand many of the same witnesses he presumably would at the trial itself: the White House counsels who may have refused to participate in such actions and advised against its legality; the Trump campaign officials who refused to go along with the fake elector scheme; and a vice president who rejected the idea that he had the authority to refuse or even delay the counting of electoral votes.”
The analogy to a motion to suppress is exactly right. In motions to suppress evidence, the prosecution and defense often agree to such a mini-trial over whether critical evidence was obtained in violation of the Fourth Amendment’s protection against unreasonable search and seizure.
Special Counsel Jack Smith at his offices in Washington, U.S. June 9, 2023.
Leah Millis/File Photo/ReutersThe remedy for such a violation is suppression of the evidence and the motion to suppress therefore takes on a surrogate role for the trial itself. If the evidence is suppressed, then the prosecution will not proceed. If the evidence is not suppressed, then the case proceeds. Like the current case against Trump, resolution of such evidentiary issues are so critical to cases that appeal of the motion to suppress is often allowed before the trial takes place.
A public hearing with witnesses would of course be a great service to the American public because it would allow a fuller display of just what actions Trump is alleged to have done to interfere with the peaceful transfer of power. Voters deserve to know this before the election, and but for the actions of the Supreme Court, voters might also have learned whether they would be voting for a twice-convicted felon to be president of the United States.
But wholly aside from the public interest, such a process is likely the only way Judge Chutkan can decide what evidence against Trump is admissible, and the only way she can create a strong record for appellate review. Decisions based on live witness testimony will give appeals courts and the Supreme Court a far sounder basis upon which to make their eventual decisions.
The criticism of some commentators, like Professor Randall Eliason, is that Chutkan should make any decisions or conduct proceedings before elections, characterizing such action as perhaps being made “in haste.” But the criticism over “haste” seems wildly misplaced in a case where so much time has already been wasted. Moreover, use of the word “haste” seems like a veiled criticism that the public interest in hearing evidence against Trump before the election is an improper political motivation.
But it’s not. Jack Smith is simply trying to get his damn case tried—a case that should have been tried long ago. Any prosecutor wants and should press to get his case done as quickly as possible—evidence can be lost, witnesses can be lost and their memories fade. It serves justice to be speedy. But the blame for this loss of speed is squarely with the conservative majority of the U.S. Supreme Court.
The analogy of their presidential immunity decision to a legal labyrinth is particularly apt considering the origin of the word. The word originates from the maze constructed by the mythical Greek sculptor, Daedalus, to house the monstrous Minotaur. While the Minotaur’s labyrinth was built to imprison, it also served to shield the monster.
