Jan. 6 hearing: New evidence could emerge after judge's ruling

Judge Chutkan is roundly rejecting defense attorney John Lauro's assertions that having the special counsel file an opening defense of their indictment in the wake of the Supreme Court's immunity ruling would be unfair to Trump.

Lauro says it would create a scenario where the special counsel gets to determine what previously secret evidence they want to make public without giving Trump's team an ability to immediately respond in his defense. Lauro said there's a wealth of evidence still under seal that they would in turn seek to make public that they argue is clearly exculpatory for Trump.

"For them to selectively decide how they want to portray their case before we move to dismiss" would be a "fundamental unfairness never before seen in a district court," Lauro says.

Chutkan also rejects the idea that she must immediately decide that Trump's conversations with then-VP Mike Pence were immune in order to throw out the indictment.

She notes that the Supreme Court had the indictment in front of them and could have taken the step of deciding Trump's conversations with Pence were fully immune -- but they did not.

"Immunity is the linchpin here," she says.

Defense attorney John Lauro tells Judge Chutkan that special counsel Jack Smith's team is advocating for a "rush to judgment."

Chutkan takes issue with that characterization, noting that the case has already been pending for a year and saying that everyone knows that whatever she rules in this case, it's going to be appealed, which will delay the case again.

"No one here is under any illusion that we are sprinting toward any trial date," Chutkan said.

"There needs to be some forward movement in this case, regardless of when the election is held," she added.

Judge Chutkan has now been pressing defense attorney John Lauro on the Trump team's desire to have Chutkan address a number of pretrial and indictment-related questions -- especially related to Trump's communications with then-VP Mike Pence -- before letting prosecutors file a brief defending the indictment.

Chutkan acknowledged that letting Smith's team file its brief first would be "procedurally irregular," but she said that judges "routinely depart" from court rules.

"It's enormously prejudicial to President Trump. I can't imagine a more unfair protocol," Lauro shot back. "The special counsel proposed a device that turns the criminal rules on its head. There are no special rules for the special counsel."

Lauro said that to let Smith's team files its brief first denies Trump's team the opportunity to address important evidentiary issues.

Chutkan suggested that those issues could be addressed at the same time that they are handling a brief from Smith's team.

"We can all walk and chew gum at the same time," she said.

Lauro then said there is a "major problem" here because, according to Lauro, the Supreme Court already decided that the information in indictment about communication between Trump and Pence is related to an official act.

Chutkan then insisted: "No, I would disagree with you Mr. Lauro, they have not decided that. They have sent that back to me for me to figure that out."

Judge Chutkan asked prosecutor Tom Windom for the timeline that prosecutors would like to have in order to file the brief, which would include multiple exhibits like grand jury transcripts and other evidence central to their case.

Windom says they are currently in the process of writing the extensive defense of their case and would like to file in 2-3 weeks near the end of September -- essentially describing a major defense of their case as a response to the Supreme Court's immunity ruling that would set forth in great detail all the core evidence they would plan to introduce at trial.

While it wouldn't be a so-called "mini-trial" that some legal experts had raised as a possibility, it would put on full display the facts gathered by special counsel Jack Smith in his investigation of Trump that Smith believes are private acts and could still be put before a jury.