A former federal prosecutor says the federal judge in Washington, D.C. who was just re-handed former President Donald Trump’s 2020 election fraud case is now tasked with picking “through the wreckage” left by the Supreme Court — and deciding what is evidence, and what is not.
Elie Honig, former assistant U.S. Attorney for the Southern District of New York, joined CNN’s “The Source” with host Kaitlan Collins on Friday night to discuss the case, which returned to the hands of Judge Tanya Chutkan.
The federal case was brought by special counsel Jack Smith over the Jan. 6 attack at the Capitol. The High Court sent the case back to Chutkan about a month ago after ruling presidential immunity exists and that presidents are immune for “official acts.” The case returns to the trial judge, Chutkan, who is tasked with determining what is an official act — “and therefore out of the case,” Honig said — and what’s an unofficial or private act that can remain in the case.
“So she’s gotta figure out which falls into which column,” he said.
Honig noted that prosecutors can’t charge or even mention certain pieces of evidence now following the ruling, such as alleged conversations between Trump and his then-attorney general Bill Barr or his vice president, Mike Pence. Honig questioned whether Smith can tell a “coherent narrative” after the pieces of evidence subject to immunity are “pulled out.”
“It’s like if I told you, ‘You have to tell the story of the ‘Wizard of Oz,’ but you can’t even mention the Lion or The Tin Man,'” he said.
Honig also laid out a timeline of what people should expect moving forward — including the days leading up to the election.
“This will not be tried before the election,” he said.
If Chutkan tried to get the parties in court hearings in the upcoming weeks and attempted to go to trial, Honig said, Trump can take his case back to the Supreme Court to challenge whatever the trial judge found.
What could happen, however, is Chutkan could have a hearing — no trial, no jury, no verdict — and hear the prosecution’s evidence. Chutkan could, he said, decide what qualifies for immunity and what does not.
“And in that hearing, the prosecution may try to call explosive witnesses, including potentially Mark Meadows, maybe Mike Pence — and this could be happening in the next few weeks as we get close to the election,” he said.
In such a scenario, Honig said Trump would likely have the option to appear at the hearing.
“He probably will be allowed to skip it if he’s out on the trail, but the timing here, Kaitlan, I mean, we’re what, 95 days now? Imagine Mike Pence taking the stand in the middle of September. The impact that would have,” he said.
