Trump lawyers seek delay after Election Day as court fights fallout from interference immunity ruling

WASHINGTON — Former President Donald Trump’s legal team proposed a trial schedule Friday in his federal election interference case that would delay a court hearing on whether his allegations are covered by immunity until after the election — and push back the start of a potential trial until well after the next inauguration.

Special Counsel Jack Smith argued for a very different approach to scheduling the trial, saying the court should immediately begin considering arguments about whether Trump’s actions are covered by presidential immunity. His office said such a trial would involve the discovery of new evidence.

“The government is prepared to promptly file a motion for immunity at any time the Court deems appropriate,” Senior Assistant Special Counsel Molly Gaston wrote on behalf of the government.

But Trump’s legal team wants to discuss other issues before addressing whether a Supreme Court decision earlier this year renders moot some of the charges against him.

District Judge Tanya Chutkan scheduled a hearing for Thursday to discuss the future schedule for the case, which was originally scheduled to begin in March 2024.

While Trump’s lawyers never explicitly cited the upcoming election, the timeline outlined in the new motion precludes any new substantive arguments from the special counsel until after the vote is over. Trump is accused of attempting to defraud the American public and disenfranchise voters in several states, in charges related to his multi-pronged effort to overturn the results of the 2020 election by falsely claiming they were stolen, culminating in the attack on the U.S. Capitol on Jan. 6. Trump has pleaded not guilty and denied any wrongdoing. He continues to falsely claim the election was stolen and has begun to suggest that the upcoming election could also be subject to fraud that would strip him of the presidency.

If Trump wins the election in November, he could likely end the case against him before trial begins once his nominees take over the Justice Department in January.

Trump’s lawyers have indicated they are “considering several challenges” to the superseding indictment returned by a federal grand jury earlier this week, arguing that their challenges “should be resolved in his favor as a matter of law and would eliminate the need for further proceedings.” One of their challenges will be to challenge the legality of Smith’s appointment, repeating an argument that helped them successfully dismiss separate charges in federal court in Florida — but his lawyers previously chose not to raise in the election interference case.

Attorney General Merrick Garland told NBC News last month that he disagreed with a decision made in July by Trump-appointed U.S. District Judge Aileen Cannon in Florida, who found that Smith’s appointment was unlawful.

“Do I look like someone who would make that basic mistake on a matter of law?” asked Garland, whom former President Barack Obama nominated to the Supreme Court late in Obama’s second term. “I don’t think so.”

Trump’s team also said it firmly maintains that the Supreme Court’s decision means the new indictment should be dismissed entirely because some of the activities it describes, “including, but not limited to, tweets and public statements about the 2020 federal presidential election, communications with state officials about the federal election, and allegations regarding alternate slates of electors,” should be protected from prosecution. Trump’s lawyers said they may also file a motion to dismiss the indictment because former Vice President Mike Pence has been named before a grand jury.

Trump’s team has proposed a trial schedule that would put the first hearing on their motions the week of Jan. 27, the week after the next president is sworn in. Spring and fall 2025 would be a time for “additional proceedings, if necessary,” Trump’s lawyers suggested.

The positions of the Trump administration and defenders were outlined in a joint motion filed late Friday evening.

Trump was first indicted on the charges in August 2023 and was originally scheduled to go on trial in March 2024, meaning a verdict in the case likely would have come before Election Day, and if convicted, Trump would have already been sentenced or had a sentencing date set. But the strategy his legal team adopted paid off, and their appeal significantly delayed the case.

The Supreme Court’s immunity decision, which granted a former president broad rights to prevent him from being prosecuted for official actions he took as president, has weakened the special counsel’s case. In a move that simplifies the issues raised by the Supreme Court ruling, the new indictment — returned by a completely different federal grand jury earlier this week — does not include any charges related to Trump’s attempts to weaponize the Justice Department by installing Jeffrey Clark — an environmental lawyer with no criminal prosecution experience who believed the election could have been stolen via a smart thermostat — as acting attorney general of the United States just hours before the January 6 attack.

While many of the defendants in the Jan. 6 case have acknowledged they were fooled by Trump’s lies about the 2020 election and told judges they regretted being naive enough to have fallen for them in the first place, Trump’s team has attempted to intellectually whitewash his election conspiracy theories. In court, they argued that those election conspiracy theories — from the same man who rose to political fame by falsely claiming that America’s first black president had a fake birth certificate and was born in Kenya — “were credible and held in good faith.”

Jack Smith’s team made it clear that Trump did not actually believe the lies he spread about the election and that he actually knew they were false.

“These claims were baseless, objectively unfounded and constantly changing, and the defendant and his accomplices repeated them even after they were publicly refuted,” the new indictment states.