WASHINGTON — Lawyers for Donald Trump intend to urge a judge to dismiss the federal election subversion case against the former president after a Supreme Court opinion that narrowed the scope of the landmark prosecution, according to a court filing.
The defense team, in a joint filing late Friday with prosecutors that lays out dueling proposals for the next steps, foreshadowed a series of anticipated challenges that would draw out until deep into next year the criminal case charging Trump with plotting to overturn the results of the 2020 presidential election.
Those include arguments that a new and more limited indictment issued by prosecutors this past week still contains allegations for which Trump, as a former president, is entitled to immunity, such as his conversations with his then-vice president, Mike Pence.
Defense lawyers also intend “as a threshold matter” to seek the dismissal of the case on the same grounds that a federal judge in Florida cited last month in tossing out a separate prosecution charging Trump with illegally hoarding classified documents at his Mar-a-Lago estate. The judge in that case, Aileen Cannon, held that special counsel Jack Smith, whose team brought the case, was unlawfully appointed and that his office was improperly funded.
The federal court filing in Washington offers competing visions for how the case should proceed and comes before a status conference set for the coming week — the first court appearance in the case in months.
The Supreme Court opinion made it all but certain that no trial can be held before the election, and it now falls to U.S. District Judge Tanya Chutkan to determine which of the acts in the indictment can be included in the case and which must be stripped out.
The timetable proposed by the Trump team envisions the case remaining snarled in pretrial arguments up until potentially fall 2025, or well after this November’s presidential election. Smith’s team did not propose specific dates but said it would be prepared to file an opening legal brief on the central issue of Trump’s immunity “promptly at any time the Court deems appropriate.”
The filing is an acknowledgment of the radically altered legal landscape since Smith filed the indictment in June 2023 and the challenges prosecutors have encountered in trying to hold Trump accountable this year.
Though prosecutors initially accused Trump of wide-ranging schemes to cling to power and to block the peaceful transfer of power, they must now contend with the aftermath of a Supreme Court opinion that said former presidents enjoy absolute immunity for exercising core constitutional powers and are presumptively immune for other official acts they take as president.
Smith’s team responded to the ruling with a new indictment this past week that removed allegations related to Trump’s dealings with the Justice Department, an area of conduct for which the court said Trump was immune from prosecution, and made other changes.
But Trump’s lawyers, according to Friday’s filing, don’t think prosecutors went far enough and say they “strongly maintain that many classes of conduct alleged in the Superseding Indictment are immune — including, but not limited to, Tweets and public statements about the federal 2020 Presidential election, communications with state officials about the federal election, and allegations relating to alternate slates of electors.”
They said they particularly objected to the continued inclusion of allegations about Trump’s badgering of Pence to get him to refuse to certify the counting of electoral votes. The Supreme Court said Trump was “at least presumptively immune” from prosecution for that conduct, Trump’s lawyers note.
“If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence,” Trump’s lawyers wrote Friday.