Will Americans hear Trump Jan. 6 criminal evidence before Election Day? We'll find out soon
The timing and substance of the Supreme Court's presidential immunity ruling guaranteed former President Donald Trump won't face trial in his federal election interference case before Election Day, but there's still a chance the voting public could learn about the witness testimony and evidence before then.
It all comes down to how the ruling gets implemented, and Trump and special counsel Jack Smith must both propose their preferred paths forward by Friday. After reading those proposals, U.S. District Judge Tanya Chutkan could decide to hold a kind of "mini trial" of public hearings in the coming months to take in testimony and evidence, as she decides what can survive the Supreme Court's ruling. She could also choose to scrutinize the immunity question based solely on written arguments from both sides.
Trump may want to avoid a "mini trial" of testimony that risks revealing damaging evidence to the public ahead of the election, but Smith could see some advantages to that option now that the real trial – which was once scheduled for March of this year – won't take place anytime soon, and may not happen at all.
"If Trump is successful in the election, it's likely that he'll kill the January 6 prosecution, either by ordering DOJ to drop it or by pardoning himself, or both," Norman Eisen, a Brookings Institution senior fellow and former House Judiciary Committee special counsel, told USA TODAY.
It's not clear if presidents have the power to pardon themselves – no court has ever ruled on the question. But regardless, a second Trump presidential term would at least enable him to kick the can of a trial down the road.
Justice delayed, justice denied?
There was once a chance Trump would face a federal trial over whether he illegally attempted to steal the 2020 presidential election before voters decide in November whether to return him to the presidency. But the timetable the Supreme Court decided on foreclosed that option.
First, the high court denied Smith's December request to leapfrog an intermediate appeals court to resolve the immunity question sooner. Once the case arrived at its door again in February, it scheduled arguments for the last day of arguments in the term in late April. Then it didn't issue a ruling until the very last day of the entire term, on July 1.
The decision itself also meant further delay. The court's Republican-appointed justices, who were the only ones to side with Trump immunity in the case, said Chutkan would need to determine which parts of the indictment will survive "at the outset of a proceeding." That teed up further proceedings over the immunity question, and potentially another round of appeals.
Lingering questions after immunity ruling
It's yet to be seen what Smith will want to do at this point. Prosecutors can be loathe to give defense teams an early bite at the testimony ahead of trial.
However, Smith may want to put on at least some of his case soon because it could help him argue those portions should survive the immunity ruling, which said presidents can never be prosecuted for actions that clearly fall within their sole authority, and also that judges must presume presidents are immune for any other official acts.
Still, Smith can rebut the presumption in Trump's favor when it comes to his official acts by showing that criminalizing the conduct doesn't pose any risk of intruding on the Executive Branch's power and functions, the Supreme Court's conservative majority ruled.
That gives Smith a motive to preview at least some of his case, according to Eisen.
"If you're going to lose pieces of the case, it's better to put on the evidence and save them," he said.
Smith may also want to put on some of his case soon because public trials provide public information, and he may believe voters deserve that information before they go to the ballot box in November.
What goes from the indictment and what could stay
The conservative justices made clear Trump can't be prosecuted for one portion of the indictment: he is accused of trying to use the Justice Department to open sham election crime investigations in order to influence state legislatures with claims he knew were false. Writing for the majority, Roberts said even if the investigations Trump allegedly wanted were shams proposed for an improper purpose, Trump is absolutely immune because he had sole authority over the Justice Department's investigative and prosecutorial functions.
But other parts of the indictment don't fall as neatly into immune or non-immune conduct.
Separate from his alleged attempts to improperly influence the Justice Department, Trump is accused of using election fraud claims he knew were false to pressure authorities to switch electoral votes in his favor.
Smith also says Trump organized fake slates of electors and got them to send false certificates to Vice President Mike Pence to be counted in the January 6th election certification process. Likewise, Trump is accused of trying to strong-arm Pence to subvert that process.
Furthermore, according to Smith, Trump exploited his supporters' attack on the capitol to redouble efforts to delay the certification.
When it comes to the Pence-related claims, Roberts wrote that they involve official conduct and Chutkan must therefore decide whether they survive the presumption of immunity.
For the remaining allegations, Roberts said Chutkan needs to determine which acts were official and which weren't, before figuring out whether any that were official can survive the immunity presumption.
That leaves a lot of work for Chutkan – at least as long as the case survives. Top of the agenda will be deciding if and when to hear testimony for herself, as the presidential election calendar ticks on.
This article originally appeared on USA TODAY: Will voters hear Trump Jan. 6 criminal evidence before Election Day?