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Special counsel Jack Smith

Special counsel Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington. (Jacquelyn Martin/AP)

The special counsel’s office and Donald Trump outlined dueling visions Friday for how the former president’s 2020 election obstruction case should proceed in D.C. federal court, with Trump’s attorneys proposing a schedule that would extend pretrial arguments into next year and neither side pushing for resolution before the November election.

In a joint filing Friday night, both sides previewed legal wrangling that is likely to drag the case out deep into 2025 or beyond. The filing came after U.S. District Judge Tanya S. Chutkan requested a proposed plan for how to resolve legal issues in the case after the Supreme Court ruled 6-3 along ideological lines that presidents are absolutely immune from prosecution when carrying out their core constitutional powers.

The ruling prompted special counsel Jack Smith this week to seek a superseding indictment in the case, removing elements of the original indictment that might run afoul of the Supreme Court’s guidance.

It will be up to Chutkan to determine what acts laid out in the indictment can still be prosecuted. Although the Supreme Court determined presidents had broad immunity, it said they could still be prosecuted for private conduct or for official acts under certain exceptions. Whatever Chutkan decides could face higher-level court review.

In Smith’s revised indictment, prosecutors kept the same four counts of plotting to subvert the results of the election that Trump was charged with in August 2023. But the special counsel dropped some allegations that the high court said intruded on core executive-branch powers and sharpened others that the justices said might be prosecutable as the actions of a candidate for president, rather than an officeholder.

Prosecutors with Smith’s office did not outline a specific timetable on which they thought the case should proceed. But they said Chutkan should tackle “first and foremost” whether Trump might be immune from allegations in the new indictment and whether evidence that prosecutors plan to use at trial may be off-limits to the government.

Prosecutors said they are ready to submit an opening brief “promptly” that would detail why Trump’s private conduct as a candidate is prosecutable, and make a case for why even some of his official conduct as president should not be shielded.

Smith’s office said Chutkan should resolve immunity questions all at once before or at the same time as Trump’s other challenges. That is because the outcome of her decisions about what allegations and evidence the government may use could affect her rulings on Trump’s other claims, and because rendering immunity decisions one at a time could give the defense repeated opportunities to appeal, paralyzing the case, prosecutors argued.

Trump’s attorneys, meanwhile, said they would move to dismiss his revised indictment, arguing that even the new grand jury that recently returned it was exposed to immunized conduct.

They proposed only one action before Election Day on Nov. 5, filing a challenge to Smith’s appointment as special counsel. U.S. District Judge Aileen M. Cannon in Florida had thrown out a separate case over Trump’s alleged mishandling of classified materials, ruling that Smith was unlawfully appointed — a decision criticized by outside experts as breaking with precedent. Smith has appealed.

Trump’s attorneys proposed a Dec. 2 hearing on that claim in the D.C. case. Separately, his defense proposed by Dec. 13 to file its challenge to the indictment and to two obstruction counts in it. Their schedule extended into January 2025, noting the possibility of spring and fall hearings that year “if necessary.”

Chutkan has set a hearing Thursday to discuss the way forward in the case — the first before the trial judge in the case in Washington since October 2023. Trump is not expected to attend in person but may participate by video teleconference, said a court official, speaking on the condition of anonymity because they were not authorized to discuss the matter publicly.

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