U.S. District Judge Tanya Chutkan has two paths forward in the federal election subversion case against former President Donald Trump, according to CNN‘s senior legal analyst Elie Honig.
After months of delay awaiting the Supreme Court‘s decision on presidential immunity, federal prosecutors, led by Special Counsel Jack Smith, filed a fresh indictment against Trump on Wednesday in connection to his alleged efforts to remain in the White House despite losing in 2020 to President Joe Biden. The indictment included the same four felony counts listed in the original charges filed against Trump in August 2023, but tailored the accusations around the Supreme Court’s ruling that the former president is protected from facing charges for any actions related to his official duties in office.
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The new indictment comes as a deadline looms for both sides to file a joint status report to Chutkan before the end of the day Friday, which will lay out how the parties want to proceed in the case. Honing explained during an appearance on CNN’s Anderson Cooper 360 a few hours before the deadline that Chutkan has also been tasked with combing through prosecutors’ revised indictment to determine if the charges are related to Trump’s official acts or not, and that the judge will have to choose how she would like to proceed with the case after receiving the joint status update.
“Broadly speaking…there are two options here,” Honing told CNN’s Jim Sciutto.
“One, the judge could say, ‘We’ll do it on the paper,’ meaning both parties, you give me detailed briefs, you tell me what you think the evidence is and why you think it should be in or out, and I’ll decide based on the paper submissions,” Honing said.
Administrative Office of the U.S. District Court
“The other, more dynamic option…is the judge could say, ‘we need to have a hearing,'” he continued. “I need to hear from some live witnesses, bring them in here, and all assess the testimony that way. So I think that’s the big turning point we’re looking at now.”
CNN reported earlier in the day that Trump’s lawyers were still haggling with Smith’s office over their joint status report as of Thursday afternoon, according to a source familiar with the matter. Chutkan has scheduled a hearing for Thursday, September 5, to discuss the report and the next steps in the case.
Trump has pleaded not guilty to the charges against him in the case, and his defense team has repeatedly attempted to dismiss the indictment on the grounds of presidential immunity. Chutkan denied Trump’s latest dismissal request in early August.
Legal experts told Newsweek earlier this week that Smith may have taken a gamble by filing the new indictment, given that Trump will now have a fresh chance to challenge the charges through the court.
“It is likely this indictment will lead to lengthy litigation and another trip to the Supreme Court, without any resolution before the presidential election,” said Paul DerOhannesian, an attorney based in Albany, New York.
“Other than removing allegations that were clearly deemed out of bounds by the Supreme Court, the new indictment against President Trump contains essentially the same allegations,” he added. “This will require further hearings and review to determine if the remaining acts and communications are protected by Presidential immunity.”
Syracuse University law professor Greg Germain also told Newsweek that he believes the election subversion case is “dead” amid Smith’s new indictment.
“While the lower courts may try to interpret their way around the [Supreme] Court’s decision, ultimately I think the election interference case is dead before the Supreme Court,” said Germain. “And if Trump wins the election, the Court’s opinion leaves little doubt that he could pardon himself or appoint people to the justice department who will dismiss the case.”
Trump is facing four charges in total in the case, including conspiracy to defraud the U.S., the obstruction of an official proceeding to certify the 2020 election results and conspiracy against the rights of American voters to have their votes counted.
Newsweek reached out to Smith’s office via email for additional comment late Friday.