Prosecutors unlikely to seek ‘mini-trial’ in Trump Jan. 6 case

Prosecutors in the federal case accusing former President Donald Trump of trying to overturn the 2020 election now appear unlikely to seek a broad public airing of their evidence in a courtroom before Election Day, according to two people familiar with the matter.

The special counsel pursuing the case, Jack Smith, is leaning against requesting a hearing in the next few months in which he could set out in expansive form the evidence behind his indictment of Trump, the people said.

The prospect of a courtroom hearing this fall in which the prosecutors would present their evidence in something resembling a “mini-trial” was one possible result of the Supreme Court’s landmark ruling this summer that former presidents enjoy broad immunity for official actions they took in office.

The Supreme Court directed the trial judge in the case, Tanya S. Chutkan, to rule on which charges against Trump can survive the immunity decision and which must now be thrown out.

Chutkan, the prosecutors and Trump’s defense team are now working out a process for how Chutkan will make that determination.

While Chutkan could in theory still order such a hearing to be held, Smith’s prosecution team is leaning against asking her for an expansive proceeding during which witnesses would provide live testimony about the case, the people familiar with the matter said.

When the Supreme Court handed down its ruling on immunity in early July, it ordered Chutkan to undertake a fact-finding mission about which parts of Trump’s case would have to be thrown out.

Chutkan was told to sort through the 45-page indictment charging Trump with illegally plotting to remain in power and decide which of its many allegations arose from official acts of his presidency and which emerged from unofficial acts.

In the Supreme Court decision, the justices had ruled that Trump — and other former presidents — were immune from prosecution for any actions arising from core duties of their office, like those involving the veto or the power to grant pardons.

The ruling also gave Trump the presumption of immunity for all other acts undertaken in his official capacity as president. But it allowed prosecutors to bring an indictment related to those acts if they could convince a judge that the charges would not impinge on “the authority and functions of the executive branch.”

A major evidentiary hearing, with court appearances by witnesses like, say, former Vice President Mike Pence, was always viewed as the most expansive of the various ways in which Chutkan could perform the job the justices had given her.

It remains unclear even now what she will do and whether she will rely solely on written briefs from the two sides or schedule some sort of hearing — perhaps in public, perhaps behind closed doors — in her efforts to determine which parts of Trump’s indictment can go forward.

Smith’s team and lawyers for Trump have a deadline of next Friday to give Chutkan their written proposals for how they would like her to undertake that job. A hearing to discuss their proposals is set to take place Sept. 5 in U.S. District Court in Washington.

The ruling on immunity marked one of the most significant expansions of presidential power the Supreme Court had undertaken in decades. But it also had a more immediate and procedural effect, essentially foreclosing the chance that Trump would be tried on the election charges before voters go to the polls in November.

Still, the ruling left open the possibility that Smith’s prosecutors could use a public hearing to air some of the evidence they had collected against the former president before Election Day. Several legal experts and commentators seized on the idea, saying that a hearing like that would almost resemble the trial itself — albeit without the finality of a jury verdict.

And yet such a proceeding was always going to be fraught with complications — not least if it ended up being held in the homestretch of an election in which Trump is seeking to return to the White House.

Prosecutors are generally loath to tip their hand to the defense before a trial takes place by letting witnesses testify in public. And Trump’s lawyers would no doubt complain that a public hearing in the weeks before the election would be unfair to his campaign.

Even though Smith is now unlikely to request such a hearing — a position reported earlier by Bloomberg News — he and his team still have several options.

They could ask Chutkan to decide the question of which elements of Trump’s indictment should survive on the strength of legal filings alone. Or they could introduce grand jury testimony from key witnesses like Pence. That route would likely require a sealed proceeding because grand jury matters are largely cloaked in secrecy.

The prosecutors could also seek to bring a new, pared-down indictment against Trump focusing on charges they believed arose from acts undertaken in his private role as a candidate for office, not in his official role as president.

This article originally appeared in The New York Times.

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