Judge sets schedule in Trump election-fraud case, lets prosecution file briefs first

A federal judge set a new briefing schedule Thursday in former President Donald Trump’s election fraud case in Washington, virtually precluding a trial before November’s election.

Judge Tanya Chutkan granted special counsel Jack Smith’s attorneys’ request to introduce evidence of Mr. Trump’s alleged criminal actions related to the 2020 election on an expedited schedule.

Allowing Mr. Smith’s team to file before the defense submitted a motion to dismiss was seen as a victory for federal prosecutors, who were able to bolster their case against the former president before the election.

Mr. Trump’s attorneys appeared in a federal courtroom in Washington on Thursday to enter a new “not guilty” plea on his behalf.

They were responding to Mr. Smith’s updated indictment accusing Mr. Trump of conspiring to overthrow the 2020 election results. The indictment has been rewritten in light of a Supreme Court ruling this summer that seemed to undercut some of Mr. Smith’s core accusations against the former president.

Judge Chutkan, an Obama appointee, said during the roughly 80-minute hearing that it was too early to settle on a trial date. Indeed, the attorneys arguing before her Thursday were sparring over who could file the next big brief in the case, with the specter of the election looming.

The defendant usually gets a chance to respond to the indictment with a motion to dismiss it.

“We may be dealing with an illegitimate indictment from the get-go,” said John Lauro, the lawyer representing Mr. Trump. “We get the opportunity to move to dismiss first under Rule 12. Why should the government get a special rule in this case that has never been adopted?”

Mr. Smith’s team, led by Thomas Windom, asked to make the next filing to address the Supreme Court’s ruling that Mr. Trump has at least some immunity for acts he took while in office. “We are in an atypical situation,” he said.

The 6-3 decision found that a president has immunity for core official acts and presumed immunity for some other official conduct but no immunity for unofficial acts. It was seen as a win for Mr. Trump because it delayed criminal proceedings against him while lower courts grappled with which charges could stand.

Mr. Smith had to adjust his indictment against Mr. Trump by removing some official actions from the allegations, such as communications with Justice Department officials. He kept all four original charges: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct an official proceeding, and conspiracy against rights.

Allowing Mr. Smith to make the subsequent filing in the case could have implications for the upcoming election, Mr. Lauro said.

“It is incredibly unfair that they are able to put in the public record — at a time in our nation’s history — they can’t ignore,” Mr. Lauro said. “Most of this information is under seal.”

Judge Chutkan slammed any suggestions that the court should act based on the Nov. 5 election.

“This court is not concerned with the electoral schedule. Yes, there is an election coming,” the judge said. “That is nothing I am going to consider.”

At one point, she chastised Mr. Lauro for what she said was election-heavy rhetoric from the Trump team.

“It strikes me that what you are trying to do is affect the presentation of evidence in this case so as not to impinge on the election,” the judge said.

Mr. Lauro said, “It’s not rhetoric; it’s called legal argument.”

After the hearing, the judge ordered the special counsel’s team to file a brief by Sept. 26 addressing the Supreme Court’s presidential immunity decision and told the defense team to respond, likely with a motion to dismiss, by Oct. 17.

Mr. Trump’s defense team plans to argue that the charges against Mr. Trump cannot survive the Supreme Court’s ruling and a separate case tossing out some obstruction of justice charges against those who stormed the Capitol on Jan. 6, 2021.

In that ruling, Fischer v. United States, the court’s majority said prosecutors overstretched a 2002 law, enacted in the wake of the Enron document-shredding scandal, to try to apply it to the Capitol riot.

Mr. Trump has been charged under that same provision.

Separately, Mr. Trump’s team said it would challenge Mr. Smith’s standing to bring the case.

A federal judge in a Florida prosecution against Mr. Trump concerning the handling of classified information after Mr. Trump left office ruled that Mr. Smith was wrongly appointed as special counsel because he was never confirmed by the Senate.

Mr. Smith’s team has appealed that ruling.

Judge Chutkan said she didn’t find that ruling “very persuasive,” and the U.S. Circuit Court of Appeals for the District of Columbia, which oversees her, has ruled the other way.

Still, the judge said she would allow the Trump team to argue why it should be allowed to raise the issue.

Despite testy exchanges between Mr. Lauro and Judge Chutkan, the two enjoyed friendly banter at the beginning of the hearing when the judge noted that it had been nearly a year since their last hearing. She told Mr. Trump’s attorney, “You look rested.”

Mr. Lauro told the judge that “life was almost meaningless without seeing you.”

“Enjoy it while it lasts,” Judge Chutkan quipped.

• Stephen Dinan contributed to this report.