At long last, the insurrection case returned to the courtroom of Judge Tanya Chutkan on Thursday. By all accounts, the former president*’s lawyers were feeling pretty chuffed, what with the ridiculous Supreme Court presidential-immunity decision in their briefcases, and with Judge Aileen Cannon’s dismissal of the documents case in their back pockets. But also by all accounts, Judge Chutkan was in quite the mellow-harshing mood.
Trump lawyer: We’re talking about the presidency of the United States.
Judge Chutkan: I’m not talking about the presidency; I’m talking about a four-count indictment.
The defense’s transparent attempts to stall the proceedings have reached Chutkan’s last nerve. From The Washington Post:
In the first hearing in the case since the Supreme Court ruled that presidents are absolutely immune from prosecution when carrying out their core constitutional powers, Trump’s lawyers blasted U.S. prosecutors’ proposal to resume the proceedings by first letting the government make a presentation on what Trump conduct could still be considered criminal. Such a move, the defense argued, would be “fundamentally unfair” and at odds with the Supreme Court’s ruling on presidential immunity. But U.S. District Judge Tanya S. Chutkan fired back that the defense seemed more focused on preventing meaningful developments in the case before the Nov. 5 election between Republican nominee Trump and the Democratic nominee, Vice President Kamala Harris.
“It strikes me that what you’re trying to do is affect the presentation of evidence in this case in a way so as not to impinge on the election of the president,” Chutkan said. “This court is not concerned with the electoral schedule.”
Most significantly, Chutkan seemed more than open to allowing the prosecution to present a brief to the court detailing the evidence it has gathered against the former president*, and to do it fairly soon, and certainly before the election.
Windom said the government was prepared to set out a “comprehensive brief” spanning all the evidence prosecutors would rely on for trial—a rare public airing of facts required by the immunity litigation that prosecutors normally would seek to keep under wraps. That brief could include previously disclosed and undisclosed information, such as transcripts of witness statements to a grand jury, prosecutors and the FBI, and other exhibits.
Some material would be expected to be sealed, but any revelations in public or unsealed portions could draw renewed attention to the case in coming weeks, even as Trump lodges his own challenges and seeks to unearth evidence favorable to the defense. “We can all walk and chew gum at the same time,” the judge said. “You may be an originalist, but I’m a trial judge. I don’t believe that is what I was instructed to do by the Supreme Court.”
Chutkan also dismissed Cannon’s ruling that special counsel Jack Smith’s appointment was unconstitutional, and in doing so, Chutkan threw a passing elbow at Justice Clarence Thomas, who broached that issue in his concurrence in the immunity case.
She also appeared skeptical of the one issue Trump’s side wanted to raise one week before the election, challenging whether special counsel Smith was legally appointed. Supreme Court Justice Clarence Thomas suggested such a challenge in an aside in the high court’s immunity ruling. U.S. District Judge Aileen M. Cannon in Florida threw out a separate case over Trump’s alleged mishandling of classified materials, ruling that Smith was unlawfully appointed—a decision criticized by outside experts as breaking with precedent. Smith has appealed to the federal circuit court overseeing Florida.
Chutkan said that Trump failed to file that particular challenge last year in a timely way, and noted that the U.S. Circuit Court of Appeals for the District of Columbia Circuit has previously sided with the government. She also said that she didn’t find Cannon’s opinion “particularly persuasive.”
As Blackstone put it long ago, ouch.
