US prosecutors and lawyers for Donald Trump are set to appear in court on Thursday to determine how quickly to resume the 2020 election subversion case against the Republican presidential candidate following the US Supreme Court’s ruling that former presidents have broad immunity from prosecution.
US District Judge Tanya Chutkan in Washington is expected to consider duelling proposals from special counsel Jack Smith, who is seeking to press the case forward, and Trump, who is pushing to delay action until after the November 5 presidential election. The Supreme Court directed Chutkan to decide whether portions of the case must be tossed out.
Trump, who is not expected to attend the hearing, faces four criminal charges that accuse him of using false claims of voter fraud to undermine the election results and thwart certification of his defeat to Democratic President Joe Biden.
The case had been delayed for months while Trump pursued his immunity claim and is virtually certain not to go to trial before Trump faces Democratic Vice-President Kamala Harris in the election.
Trump has argued that the prosecution, and other legal cases against him, are politically motivated attempts to undermine his presidential campaign.
Trump’s lawyers are expected to enter a not guilty plea to a revised indictment Smith obtained last month, after the Supreme Court ruled in a 6-3 decision that former presidents are presumed to be immune from criminal prosecution for actions taken as part of their official responsibilities as president.
The new indictment includes the same four charges as the one Smith obtained last year, but drops an accusation that Trump pressured the US Justice Department to aid his attempt to remain in power. The Supreme Court found Trump could not be prosecuted for those actions.
Smith has argued that all the remaining allegations are not covered by the immunity ruling and can proceed to trial. Prosecutors have said they are prepared to file court papers laying out their argument “at any time the court deems appropriate.”
Trump’s lawyers, meanwhile, have suggested that Chutkan should not begin weighing the impact of the immunity ruling until December, after the election.
If Trump wins the election, he is expected to direct the Justice Department to drop the charges.
Trump has proposed his lawyers should first move to dismiss the case based on an argument that Smith was unlawfully appointed as special counsel under the US Constitution.
Trump used the same argument to convince a federal judge in Florida who was appointed by Trump to throw out a second criminal case, also brought by Smith, accusing him of illegally holding onto classified documents after leaving office.
Smith’s office is appealing that decision. The federal appeals court in Washington has previously upheld the authority of special counsels to handle certain sensitive investigations.