COATES: Now you’ve all heard, of course, of the October surprise, right? But could we be in store for a September stunner? Well, earlier today, Judge Tanya Chutkan set a schedule in the federal election subversion case against Donald Trump that could allow prosecutors to release never-before-seen evidence such as grand jury transcripts, maybe, all before the November election.
Chutkan set a September 26 deadline for an initial filing from prosecutors and an October 29th deadline for the final round of briefs on the matter. She has not — has not scheduled additional hearings or even a trial date at this time.
That updated schedule largely sided to what Special Counsel Jack Smith proposed at a D.C. hearing today. Now, Trump’s defense team has sought to delay the public release of evidence in this matter until after the November election. Now, Chutkan, she seemed unamused, saying, “This court is not concerned with the electoral schedule.”
With us now, Tiffany R. Wright, former law clerk for Justice Sonia Sotomayor, and CNN legal commentator and former Trump attorney, Tim Parlatore. Good to see you both. Here we are, the first hearing in this case before her in 11 months. Time has really flown. But what evidence do you anticipate that we would actually see? Because to provide grand jury testimony really runs counter to the secrecy of it and, of course, it’s not a trial. TIFFANY R. WRIGHT, FORMER LAW CLERK FOR JUSTICE SONIA SOTOMAYOR: Obviously, I don’t think we’re going to see grand jury testimony. I think that Jack Smith, though, will understand that this is probably his last chance to speak to the public. Not that that’s something that prosecutors are typically concerned with, but I’ve always thought that the most important thing is not that we have a verdict before the election, but that the public have some idea of what the actual evidence is outside of the four corners of the indictment.
So, I don’t think we’ll get grand jury testimony. I think that we will get some insight, though, into what exactly is behind the four counts in the indictment.
COATES: It’s really important to think about, Tim, that the reason we’re even here is because they’re trying to essentially give the parameters on what is immunized and what would not be. The Supreme Court earlier talking about an official act, a constitutional duty or an act cannot be prosecuted for the president of the United States or former president. So, trying to figure out if his actions were outside of that constitutional duty, which were not. That’s why we’re here.
Does the order of how it will be presented matter to you as a defense attorney if the prosecution would go first, essentially, to say, your honor, here’s what we got, decide this first?
TIM PARLATORE, CNN LEGAL COMMENTATOR, FORMER TRUMP ATTORNEY: It is kind of flipping the script because ordinarily, you know, the defense makes the motion, prosecution responds, defense gets the last word. And that was really the argument during the hearing, who is going to go first but who also gets to go last? And so, the judge ultimately sided with Jack Smith as letting them go first. And, you know, really, what they’re proposing is that they want to try to defend their indictment by trying to put out — you know, before the defense tries to tear it apart, they could put out their filing to try and say why everything is okay.
COATES: Uh-hmm.
PARLATORE: It’s very different from how things would normally be done. Obviously, I do understand why they ask for things that way. It gives them more of an advantage. They get two briefs instead of one. And ultimately, all of the briefs, you know, get put out before the election given this particular schedule.
COATES: There is an irony. You know, on the one hand, the Trump defense team has been saying, this is a weaponized system, you should never take in to account the politics of this, this is all about political, you know, manipulation, et cetera. And then they’re saying, Your Honor, consider the politics here and, of course, the election.
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So, she’s obviously hip to that particular aspect. But there’s the issue of Mike Pence’s testimony potentially. Before, in the first indictment, it was all about him as the vice president. Now, it’s about him as the president of the Senate. Why is that so important? WRIGHT: It’s important because the Supreme Court said that they believe that the communications between the president and the vice president are immune or at least presumptively immune, right? So what Jack Smith did is he went back. He took a scalpel to the original indictment and got very particular.
So now it’s about the vice president not in his capacity as the vice president because that would be an executive communication that could be presumptively immune. It’s about his actions as a legislator, the president of the Senate, which would take it outside of that realm of presumptively immune things for which the president might have some immunity.
COATES: Really important to make that distinction. Thank you, Tiffany. And on the idea of what they’re arguing in the defense, Tim, is that, look, if any of the grand jurors heard testimony that would have been in line with what Tiffany just described, executive communications as a vice president, that means the whole thing has to be thrown out. Is that going to be convincing enough for this judge?
PARLATORE: Well, so what they’re going to say is that the grand jury proceedings were tainted by that type of material. And so, yes, I do think that that’s the kind of thing where a judge would say to Jack Smith, go back and do it again. You know, it’s not going to cause the case to go away, but it is something that he can represent and just bring a second superseding indictment.
It is interesting, this whole idea of shifting him from being the vice president to the president of the Senate, because during the grand jury phase of this, they were taking the exact opposite position when Mike Pence was trying to invoke, you know, privileges and immunities based on him being president of the Senate. And so there, Jack Smith was arguing, oh, no, no, no, he’s there as the vice president. And so, I do think that this kind of shift — you know, will then raise all sorts of other litigations. So, you know, ultimately, it’s a mess.
COATES: She did say this is going to get appealed no matter what. They’re very aware it’s going back. And, of course, there was a part of an opinion written by Justice Clarence Thomas that entered the equation about even making arguments about whether Jack Smith should even be where he is. She again did not seem amused by this.
But then there’s the other case in Manhattan. Tomorrow is Friday, and we’re told that Judge Merchan is saying that he will decide tomorrow whether to delay sentencing in that hush money conviction, 34 accounts. What is the likely outcome of his decision on that schedule?
WRIGHT: I think it’s likely that he does delay it until after the election. I’m not sure how that works out for President Trump, whether that’s better for him or worse for him, because I think at least right now, he can say there’s that threat that I will be the president of the United States. And so, he might get some leniency for that whereas after the election, if he loses, it goes away. I just think this is another instance of a lot is writing on this election for president.
COATES: And it is a state — it is a state case. It is not one that’s federal. That makes the difference.
PARLATORE: It does because the president has no control over it. He has no, you know, pardon authority. He has no control over the D.A.’s office. And I do think that that’s absolutely accurate with what Tiffany just said. If he sends before the election — and I know Judge Merchan, I’ve tried a case in front of him, I don’t think he’s going to want to put him in because he’s not going to want to be seen as interfering in the election by putting him into Rikers Island before the election.
By delaying it, you know, then I think that increases the likelihood of jail time if he is, you know, not the winner of the election. And I do think the likelihood of him delaying it is very high because the district attorney is not opposing the application.
COATES: It is an important point, whether it’s the election or if he were to be successful in inauguration. It’s going to factor in until the question of, will he really go to jail, is still looming very large. Thank you both for being here so much, Tiffany and Tim.