Posted by 
The Supreme Court’s long-awaited decision on Donald Trump’s presidential immunity claims threw huge hurdles in the way of special counsel Jack Smith’s drive to prosecute the former president for trying to overturn the 2020 presidential election.
But the decision also leaves a lot for Trump, the prosecutor and the judge to decide as another presidential election looms and as the defendant mounts a campaign to return to the Oval Office.
Here’s POLITICO’s look at what the three key players in the election subversion case might do next.
Tanya Chutkan’s time crunch
If a trial before Election Day seemed difficult before the immunity ruling, it’s all but impossible now.
The high court punted to U.S. District Court Judge Tanya Chutkan many of the most critical decisions about what charges and evidence Smith can use against Trump, while leaving open the possibility of future appeals.
“The ball is really in her court,” said former federal prosecutor Jessica Roth, a professor at Cardozo Law School.
The high court did declare flatly off-limits one slice of Smith’s case: his claim that Trump’s acts to “leverage” the Justice Department broke the law. The indictment returned last August said part of Trump’s scheme involved pressure on Justice Department officials to investigate baseless allegations of election fraud. Prosecutors even cited his ultimately unfulfilled threat to replace the acting attorney general with a lower-ranking official prepared to do Trump’s bidding. Trump cannot be prosecuted for those actions, the court said, because supervising the Justice Department is a core duty of the president.
However, Chief Justice John Roberts’ majority opinion leaves most of Smith’s case against Trump open to judgment calls, offering Chutkan only guideposts about some aspects of the charges.
“Certain parts of the case are now gone … while others will now be subject to further examination in an evidentiary procedure below,” said former House counsel Stanley Brand, whose law firm represents some Trump allies. “And the government will not be able to use the acts as evidence of motive since that would eviscerate the immunity.”
It’s unclear how quickly Chutkan will act once she again gets control of the case. She did not comment on the ruling during a Monday hearing in one of her numerous Jan. 6 cases and gave no hints about her upcoming schedule.
The Supreme Court’s majority made clear she must take input from both the prosecution and defense before ruling on which of Trump’s acts remain subject to criminal consequences. And since the high court also ruled out the use of evidence of some kinds of acts, she may have little choice but to dig into that evidence before she decides what prosecutors can mention in front of a jury and what can be part of the official charges.
Open court sessions detailing that evidence may be the most Trump critics can hope for before the election, one lawyer closely tracking the case said.
“Judge Chutkan will now need to hold hearings to separate immune official acts from unofficial acts,” said former federal prosecutor Randall Eliason. “I think that means there almost certainly won’t be a trial before the election. There could, however, be extensive hearings to make the immunity determinations. In the absence of a trial, those will at least serve to remind the public about the events of Jan. 6 and Trump’s efforts to overturn the election.”
In a concurring opinion Monday, Justice Amy Coney Barrett repeatedly noted that Chutkan’s future rulings on the immunity issues should be subject to appeal — which would mean even more delay.
Jack Smith’s options
Smith has a few options at this point, including slimming down his indictment. Rather than leaving it to Chutkan to dice up the existing 45-page indictment with input from Trump’s lawyers, the prosecutor could send a new version to a grand jury in the coming weeks, excising some of the material the Supreme Court deemed problematic, or at least allegations the high court said were off-limits, like Trump’s dealings with Justice Department officials about the election.
But some of the areas the high court punted on — like the alleged scheme to convene fake electors to vote for Trump — seem essential to Smith’s case.
“Smith needs to decide whether to streamline his case to include only those acts most likely to be deemed unofficial, in the hopes of getting the case to trial before the end of the year,” Roth said.
“I think it will be important to see if Smith can narrow the indictment by eliminating those facts that the Court has ranked as ‘official,’” University of Chicago law professor Aziz Huq said. “Of course, Trump will try and litigate anything that remains, and the question will be whether the narrowed evidence can support the charges, but the key is whether and how he narrows.”
A spokesperson for Smith declined to comment, but a showdown with Trump’s lawyers seems guaranteed, triggering a full-blown evidentiary hearing before Chutkan where witnesses would be called and evidence — likely videos of Trump and Jan. 6 rioters — would be displayed.
Prosecutors rarely favor giving defendants that sort of preview of trial evidence or testimony, but some Trump critics have embraced that idea as a “Plan B” if a jury trial before the election appears impossible.
Holding evidentiary hearings to air details of the case “will provide an opportunity for the public, through open court proceedings, to gain insight into this more fulsome narrative which so far has only been presented on paper in the indictment,” Roth said.
While Smith has pressed for faster action by the courts, he has never publicly acknowledged the election as a factor in the timing of any aspect of the two prosecutions he is pursuing against Trump: the case in Washington over efforts to overturn the 2020 election and another in Florida, where Trump is charged with hoarding classified documents at Mar-a-Lago and obstructing the investigation.
Normally, Supreme Court decisions don’t kick in for about 25 days after they are issued, but if Smith wants to get cracking before Chutkan immediately, he could ask the high court to release the case early. Then-Manhattan District Attorney Cy Vance Jr. successfully did that with a 2020 ruling from the justices that cleared the way for his office to get a slew of Trump’s financial records.
Trump’s next play
Legal experts said they expect Trump to use Monday’s Supreme Court ruling to continue to try to drag out the election subversion case, especially since the court said it isn’t sufficient for judges simply to make sure the charged acts don’t intrude on presidential prerogatives. In addition, the majority said, every piece of evidence that could lead to a similar intrusion must be scrutinized.
“All of these issues need to be litigated on the law and the facts, so lots of avenues for delay,” Roth said.
In fact, delay has been a primary weapon for Trump in all four of his criminal cases. Only one of those cases has made it to trial: the New York hush money in which Trump was convicted in May on 34 felony counts related to a scheme to cover up a payment to a porn star. The other three cases have no trial dates scheduled.
Trump’s lawyers celebrated the Supreme Court decision Monday, saying those three cases will almost certainly be kept at bay through the election.
“I think it’s highly unlikely, if not impossible, for any of the other remaining cases against President Trump to make it to trial before Election Day, which means that President Trump is going to have the ability to carry his message to the American people as he deserves,” Trump attorney Will Scharf said.
Scharf suggested the lower courts and prosecutors are to blame for the delays by giving short shrift to Trump’s immunity arguments, which the Supreme Court upheld in part on Friday.
“The D.C. District and D.C. Circuit courts were so dismissive of our very serious constitutional arguments,” the Trump lawyer said. “So, really, what this remand does now is it forces the D.C. District, probably ultimately the D.C. Circuit, as well, to consider these … constitutional issues that they should have been considering from the start.”
Kyle Cheney contributed to this report.
