Thread by @NormEisen

SCOTUS will issue judgment in Trump’s DC 1/6 case in the next day or so, sending it back to the DC Cir after the immunity decision

When the Cir in turn sends it to Chutkan she shld quickly schedule a mini trial to apply SCOTUS’ test b4 Nov

A thread...

lawfaremedia.org/article/prepar…

SCOTUS established a 3-part immunity test Chutkan will now have to apply as I wrote @CNN

“(1) absolute immunity when the president is exercising ‘his core constitutional powers...’"  2/x

cnn.com/2024/07/01/opi…

@CNN “...(2) ‘presumptive immunity from prosecution for his official acts’ that are not core to presidential duties (such as exercising powers given to him by Congress) and (3) ‘no immunity for his unofficial acts.’”  3/x

cnn.com/2024/07/01/opi…

@CNN SCOTUS’ delay was unconscionable–it took the Court 7 mths to decide the case after denying Jack Smith’s initial cert request in Dec

If they had ruled in a timely manner, the case could’ve had a chance of going to trial pre-election as it should’ve 4/x

msnbc.com/opinion/msnbc-…

@CNN But there is still hope for voters to get some info they deserve when the case goes back to Chutkan’s capable hands

On Friday, SCOTUS will formally send the case back down per Rule 45... 5/x

@CNN ... “the mandate issues 32 days after entry of the judgment, unless the Court or a Justice shortens or extends the time, or unless the parties stipulate that it issue sooner.” 6/x

@CNN It will go first to the DC Cir and unless they schedule briefing (which is unlikely), they will pretty quickly send it back to Chutkan

When Chutkan receives the case, she should issue an immediate scheduling order  7/x

justsecurity.org/92965/when-spe…

@CNN Even tho there r other pre-trial motions pending re discovery & such, Chutkan shld address pres. immunity FIRST per SCOTUS’ own ruling that... 8/x

@CNN “questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding.” 9/x

@CNN Regardless of whether Chutkan deals w discovery or immunity first, when she gets to immunity she has 2 options to apply SCOTUS’ test:

A lengthy discovery schedule or an evidentiary hearing (mini trial) 10/x

@CNN A mini trial is by far the best option here

It would allow Chutkan to receive witness testimony & other evidence from both parties to quickly determine the nature & scope of Trump’s immunity 11/x

lawfaremedia.org/article/prepar…

@CNN The Govt could call VP Pence or AG Barr, for ex., to provide testimony about Trump’s acts

The defense could likewise call witnesses, including Trump

Doing so would enable the court to determine whether Trump acted w/in the outer perimeter of his presidential duties 12/x

@CNN The Govt cld introduce documentary & other evidence 2 support that Trump engaged in unofficial conduct; the defense cld introduce evidence 2 the contrary

Both sides cld then use the record 2 argue whether Trump is/is not immune frm the allegations 13/x

lawfaremedia.org/article/prepar…

@CNN A mini trial like this isn't unprecedented–it happened in the prosecutions of Meadows & Clark in GA

When they sought to remove their cases to fed court, the judge held evidentiary hearings to decide if they acted in scope of their official duties 14/x

justsecurity.org/87859/the-hatc…

@CNN In Meadows’ case, both sides presented key evidence & Meadows himself testified

After he lost & appealed the case, the extremely conservative 11th Circuit affirmed “the district court was entitled to evaluate the demeanor and presentation of witnesses...” 15/x

@CNN “...assess the credibility of testimony including Meadows’s, and weigh the competing evidence.”

Given the similar allegations & facts btwn Trump’s DC case & Meadows’s GA case, Chutkan should look to the GA hearings as a model for a mini trial in this case 16/x

@CNN A mini trial is the way to go, but regardless, Jack Smith should "slim to win"

Meaning dropping certain charges or paring down allegations that arguably implicate official presidential functions 17/x

lawfaremedia.org/article/prepar…

As I wrote in @CNN, Smith shld consider "not only excising the portions that the court has tossed for him (such as the allegations concerning the DOJ) but also considering where else he can “slim to win.'" 18/x
cnn.com/2024/07/01/opi…

Esp if he slims, Smith still has a viable case despite the Court's delay & disastrous immunity decision

He can keep charges related to Trump’s alleged fraudulent acts w private attorneys & campaign advisors, which Trump’s attorney conceded were private acts during oral args 19/x

Slimming the case immediately would make Chutkan’s task of determining Trump’s immunity as easy as possible

& would also help uphold Chutkan’s decision upon Trump’s inevitable appeal on immunity grounds 20/x
cnn.com/2024/07/01/opi…

A mini-trial will give the American ppl the chance 2 see the facts of Trump's alleged criminal conduct & that the case remains legally sound b4 they go 2 the polls this Nov

Now we’ll have see if Chutkan schedules 1 when she gets back the case 21/x
lawfaremedia.org/article/prepar…