Trump's lawyers seek post-Election Day delay for court fight over immunity decision fallout in interference case

WASHINGTON — Former President Donald Trump’s legal team on Friday proposed a court schedule in his federal election interference case that would delay a court fight over whether his charges are covered by immunity until after the election — and push the start of a potential trial until well after the next inauguration.

Special counsel Jack Smith argued for a vastly different approach to the trial’s scheduling, saying the court should begin considering arguments immediately as to whether Trump’s actions are covered by presidential immunity, a process his office said will include revealing new evidence.

“The Government is prepared to file its opening immunity brief promptly at any time the Court deems appropriate,” senior assistant special counsel Molly Gaston writes for the government.

But Trump’s legal team wants to hash out other points before getting into the question of whether the Supreme Court’s decision earlier this year makes moot some of the charges that have been brought against him.

U.S. District Judge Tanya Chutkan has set a hearing for Thursday to discuss the future schedule of the case, which was originally supposed to go to trial in March 2024.

While Trump’s lawyers never explicitly invoked the pending election, the schedule outlined in the new filing would allow for no new substantive arguments from the special counsel until after voting is complete. Trump is accused of trying to defraud the American public and disenfranchise voters across several states, in charges that are related to his multi-pronged effort to overturn the results of the 2020 election by falsely claiming it had been stolen, which culminated in the attack on the U.S. Capitol on Jan. 6. Trump has pleaded not guilty and denied all wrongdoing. He has continued to falsely insist the election was stolen and begun to suggest that the coming election could also be subject to fraud that would deny him the presidency.

If Trump wins the November election, he would likely be able to end the case against him before a trial could be held once his appointees took over the Justice Department in January.

Trump’s lawyers indicated they were “considering several challenges” to the superseding indictment returned by a federal grand jury earlier this week, arguing that their challenges “should be resolved in his favor as a matter of law and would obviate the need for further proceedings.” One of their challenges will be questioning the legality of the appointment of Smith, repeating an argument that helped them successfully get separate charges in a Florida federal court tossed out — but a point his lawyers opted not to previously make in the election interference case.

Attorney General Merrick Garland told NBC News last month that he disagreed with a decision made by Trump-appointed U.S. District Judge Aileen Cannon in Florida in July that Smith’s appointment was unlawful.

“Do I look like somebody who would make that basic mistake about the law?” asked Garland, who former president Barack Obama had nominated to the Supreme Court towards the end of Obama’s second term. “I don’t think so.”

Trump’s team also said they strongly maintained that the Supreme Court’s decision means the new indictment should be dismissed entirely because some of the actions described in it, “including, but not limited to, Tweets and public statements about the federal 2020 Presidential election, communications with state officials about the federal election, and allegations relating to alternate slates of electors,” should be shielded from prosecution. Trump’s lawyers said they may also file a motion seeking to have the indictment dismissed because former Vice President Mike Pence was mentioned to the grand jury.

Trump’s team proposed a trial schedule that would have the first hearing on their motions held the week of Jan. 27, which would be one week after the next president is sworn into office. The spring and fall of 2025 would be time for “Additional proceedings, if necessary,” Trump’s lawyers proposed.

The positions of both the government and Trump’s defense team are laid out in a joint motion filed late Friday evening.

Trump was first indicted on the charges in August 2023 and was originally scheduled to go to trial in March 2024, meaning that there likely would have been a verdict in the case before Election Day and, if convicted, Trump would have already been sentenced or had a sentencing date on the books. But the strategy adopted by his legal team paid off, with their appeal significantly delaying the case.

The Supreme Court’s immunity decision, which gave wide protection to the former president to prevent him from being prosecuted for official actions he took as president, weakened the special counsel’s case. In an effort to simplify the issues raised by the Supreme Court’s ruling, the new indictment — returned by an entirely different federal grand jury earlier this week — does not include any of the allegations about Trump’s attempts to weaponize the Justice Department by installing Jeffrey Clark — an environmental lawyer with no criminal prosecutorial experience who believed the election may have been stolen via smart thermostat — as the acting attorney general of the United States just hours before the Jan. 6 attack.

While many Jan. 6 defendants have now conceded that they were tricked by Trump’s 2020 election lies and told judges they regret that they were gullible enough to fall for them in the first place, Trump’s team has attempted to give an intellectual spit-shine to his election conspiracy theories. In court, they’ve claimed that those election conspiracy theories — aired by the same man who rose to political prominence by falsely claiming that America’s first Black president had a fake birth certificate and was actually born in Kenya — “were plausible and maintained in good faith.”

Jack Smith’s team has said explicitly that they believe that Trump didn’t actually believe the lies he was spreading about the election, and that in fact he knew they were false.

“These claims were unsupported, objectively unreasonable, and ever-changing, and the Defendant and his co-conspirators repeated them even after they were publicly disproven,” the new indictment stated.