Special Counsel Jack Smith’s productive day in court before Judge Chutkan underscores that the worm could be turning in respect to the election subversion case against President Trump. 

The hearing, which Mr. Smith attended but the 45th president did not, was convened to set a course for the January 6 prosecution after the Supreme Court’s ruling in Trump v. United States that official presidential acts are presumptively immune. Unofficial ones are bereft of protection from prosecution. 

That decision sent Mr. Smith back to the drawing board, and he emerged just weeks later with a slimmed down indictment that kept the original four charges but excised nine pages and homed in on actions that the special counsel deems unofficial. Gone are swaths of text alleging that Trump coerced the Department of Justice into a scheme to reverse President Biden’s victory. The justices warned against entering those colloquies into evidence.

Attorney General Garland, in a statement, explains that the “superseding indictment is an effort to respond to the direct instructions of the Supreme Court as to how to effectuate a new indictment in an ongoing case.” Trump’s attorneys on Thursday entered their client’s plea of “not guilty” to each charge.   

The high court returned the case to Judge Chutkan to determine what elements of the prosecution survive its holdings on immunity. Thursday’s hearing inaugurated this new phase of the case, though litigation over what evidence is immune will likely work their way up and down the appellate ladder before jury selection begins. If Trump wins the election, the case could die on the vine upon his return to the White House.

Judge Chutkan, though, told the two sides that she is  “definitely not getting drawn into an election dispute” and that the timing of November’s vote is “not relevant” to the case. She did, though,  grant Mr. Smith’s request for an accelerated briefing schedule, ordering the prosecutor to docket his arguments by September 26, with Trump’s response due soon after. The former president had proffered a schedule that stretched into next year.

It is possible that, for Judge Chutkan’s purposes, the immunity question could be cleared up prior to Election Day — the final brief is due on October 29. That would be a stunning reversal for Trump. He contended that such a rapid exchange of briefs would deny him “time to review the new charging instrument as he determines what steps and procedures to undertake regarding, among other motions, his Presidential immunity defense.”

Likely troubling to Trump’s team is the possibility that this exchange of arguments could disclose new — and possibly damaging  —details in the weeks before the election. Mr. Smith this week filed a document described on the docket only as “Classified, Ex Parte, In Camera, and Under Seal Notice Regarding Classified Discovery.” As the case evolves, its classified dimensions could surface, with unpredictable effects.  

Judge Chutkan, who has handed down harsh prison sentences to many January 6 rioters and initially denied Trump immunity before she was later reversed, also signaled that she is unlikely to follow Judge Eileen Cannon’s decision that Mr. Smith was unconstitutionally appointed by General Garland and that the Mar-a-Lago charges against Trump were void. She disclosed in court that she did not find that ruling “particularly persuasive,” even though it appears to be endorsed by the Supreme Court’s senior justice, Clarence Thomas. 

Trump’s attorney, John Lauro, told Judge Chutkan that such an endorsement, which came soon before Judge Cannon’s ruling, “directed” Trump to similarly challenge Mr. Smith here. Judge Chutkan asked “He directed you to do that?” Trump will have until October 24 to submit a formal request to challenge Mr. Smith’s appointment in the District of Columbia. The 45th president contends that “this case must end as a matter of law.”

Trump could face another hurdle, one that has nothing to do with Judge Chutkan’s skepticism toward Judge Cannon’s jurisprudence, in disqualifying Mr. Smith. Judge Chutkan observed that there is precedent from the the District of Columbia Appeals Circuit to suggest that the circuit’s riders endorse the position that the attorney general can appoint subordinate prosecutors like Mr. Smith.