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      Why Judges in the Trump Jan. 6 Trial Need a Rocket Docket

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      If Donald Trump is the Republican nominee for president in 2024, it’s now clear he will likely still have criminal indictments hanging over his head on Election Day. It’s possible that his criminal liability for the events leading up to the Jan. 6 riot at the Capitol will remain unresolved.If that happens, voters will go to the polls without knowing whether one of the candidates in the current election is criminally responsible for trying to overturn the last one and subvert the will of the voters.Having an election under such circumstances is unthinkable. As Richard Nixon might have put it, voters have a right to know whether their candidate is a crook. It can be avoided, but it’s going to require the judiciary to take some extraordinary steps. And whether it happens will be decided by a relative handful of federal jurists — including a number appointed by Mr. Trump himself.Of the four criminal cases pending against Mr. Trump, the federal election interference prosecution in Washington currently has the best chance of going to trial before the 2024 presidential vote. The trial date is set for March 4. The Federal District Court judge overseeing the case, Tanya Chutkan, has been doing an admirable job of keeping it on track. But legal developments that are out of her hands now threaten to derail that schedule: Expected pretrial appeals could push the trial date past the November election.Mr. Trump has moved to dismiss the case on various grounds, including claims of presidential immunity and violation of the double jeopardy clause. For most pretrial motions, if the motion is denied, the defendant must wait to raise the issue again on appeal following conviction, if there is one.But these two motions fall into a narrow category of claims that usually entitle a defendant to an interlocutory appeal — in this case, an appeal before trial. Because these are claims of a constitutional right not to be tried at all, a post-conviction appeal is not an adequate remedy. By that time, the right has already been lost. A defendant is allowed to appeal such claims before the government may put him on trial.If, as expected, Judge Chutkan denies these motions, Mr. Trump will have a right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. (I expect the appeals will focus primarily on the immunity claim; the double jeopardy argument seems frivolous.) If he loses before a three-judge panel there, he can ask the full court to review that decision. If that fails, he can ask the Supreme Court to review the case. While all that goes on, the trial cannot proceed.In a typical case, an appeals process like this could easily take a year or more. In the first prosecution of Senator Bob Menendez of New Jersey, appeals over his claims of constitutional immunity under the speech or debate clause delayed the trial for about 18 months, even with the Supreme Court declining to take the case.In the Trump case, delays like that would push the trial well past November. If Mr. Trump wins the election, he would be able to shut down the two federal prosecutions and could probably have the state prosecutions at least postponed while he is in office.This appears to be the primary defense strategy in Mr. Trump’s criminal cases: delay as much as possible to put off any trials until after next November, when Mr. Trump hopes to be in a position to put an end to his legal problems.Having an election with Mr. Trump on the ballot and his criminal liability for Jan. 6 unresolved could spell disaster for the rule of law. It’s also completely avoidable if the courts — and in particularly, the judges who control the schedule — are willing to do what’s necessary: put the resolution of these motions on a fast track to ensure the case can go to trial as scheduled.Typically, the judicial and political calendars do not intersect. We expect judges to ignore political considerations and campaign schedules when making their decisions. But in times of political crisis, the federal judiciary cannot simply turn a blind eye. It must respond in a way that will enable the political system to address that crisis in a timely manner. This is one of those times.This is not a proposal for the courts to act in a partisan fashion. We don’t know whether Mr. Trump’s claim of immunity will be upheld. If it is rejected, we don’t know what the result of the trial will be. The outcome of the legal process is not the point. The point is that the country deserves to know that outcome before it chooses the next leader of the free world.There is precedent for this kind of judicial rapid response. During Watergate, the appeal of the order for President Nixon to turn over the subpoenaed White House tapes was resolved in only about two months — and that included arguments before and an opinion by the Supreme Court. During the 2000 presidential election, that court heard arguments in Bush v. Gore on Dec. 11 and the very next day issued its opinion shutting down the vote recount in Florida. The usually sedate appellate courts can move with dispatch when they want to.This case requires similar urgency. The initial appeals here could be easily heard and decided within a few weeks. Whether to grant a rehearing before the full Court of Appeals is discretionary, but if it does grant such a hearing, it needs to be equally speedy.After the District of Columbia Circuit rules, the losing party will seek Supreme Court review. If Mr. Trump loses the motions, my own hunch is that the Supreme Court may not take the case. In past disputes the justices have not shown much willingness to go out of their way to help Mr. Trump, and the last thing this embattled court needs right now is to wade into another controversy. But if the court does feel the need to weigh in on these novel constitutional issues, it also needs to move very swiftly.There’s no reason the entire process, including Supreme Court review, could not be completed by January. That would allow the trial date to stay on track if the motions are denied.There’s no concern about Mr. Trump being prejudiced by this relatively breakneck pace. He has vast financial and legal resources. The issues are already fully briefed before Judge Chutkan. The issues are novel — because nothing like Jan. 6 has happened before — but the questions are not extraordinarily complex; we need a rocket docket, but this is not rocket science.Some might argue that voters already have enough information about Mr. Trump’s actions and Jan. 6. But a criminal trial is different. In the aftermath of the 2020 election, Mr. Trump and his allies made repeated claims of voter fraud and a “rigged” election. Those claims uniformly failed when tested in court by the adversary system, where actual evidence is required and witnesses testify under oath. In an age of disinformation and fake news, courts remain the arena where facts still matter.Some voters will not accept the verdict of a criminal trial, no matter what the outcome. But for many it could be a critical data point when casting their ballot.It’s already not possible to have the trial completed before most of the presidential primaries; Super Tuesday, with over a dozen primaries in states and territories across the country, is March 5. Mr. Trump could have the nomination sewn up by the time the trial is over. But the trial could easily be concluded before the Republican convention in July, so the delegates could decide whether they really want to nominate a felon (if that is the outcome) to lead the country.A functioning democracy requires an informed electorate. It’s hard to imagine a more important piece of information for voters to have next November than whether a candidate is criminally culpable for trying to overturn the last presidential election.Our legal system can resolve this case expeditiously while still protecting the defendant’s rights, but the judiciary will have to step up and do its part to protect democracy.Randall. D. Eliason is the former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School. He blogs at Sidebarsblog.com.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Appeals Court Hears Arguments on Trump Election Case Gag Order

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      A three-judge panel is considering how to balance the former president’s free-speech rights against the need to insulate prosecutors, court personnel and potential witnesses from intimidation.Prosecutors and lawyers for former President Donald J. Trump squared off on Monday in a federal appeals court in Washington to debate the validity of the gag order placed on Mr. Trump in the criminal case accusing him of plotting to overturn the 2020 election.The hearing in front of the U.S. Court of Appeals for the District of Columbia Circuit followed more than a month of back-and-forth arguments about the order. It was put in place by the trial judge in October to stop Mr. Trump from maligning or threatening prosecutors, potential witnesses or court employees involved in the case.From the start, the gag order has led to a momentous clash over how to protect people taking part in the election interference case from Mr. Trump’s barrage while preserving his rights as he campaigns for president and claims that the prosecution is political persecution.When Judge Tanya S. Chutkan, an appointee of President Barack Obama, first imposed the order, she tried to thread that needle by barring Mr. Trump from lashing out at any people connected to the case — herself excepted — while still allowing him to say what he wants about what he asserts is the partisan and retaliatory nature of the case.Mr. Trump’s lawyers appealed the order almost as soon as it was imposed, deriding it as “the essence of censorship.”Each of the three judges on the appellate panel assigned to the case was nominated by a Democratic president: Judges Patricia Millett and Cornelia Pillard were both Obama appointees, and Judge Brad Garcia was appointed by President Biden.In court papers, Mr. Trump’s lawyers have told the appeals court that the order should be repealed since it violates the First Amendment. They also said it represented an effort by Judge Chutkan to “micromanage” Mr. Trump’s “core political speech” before and during a trial that is scheduled to begin in March in the midst of the Republican primary season.Prosecutors working for Jack Smith, the special counsel overseeing the federal prosecutions of Mr. Trump, have fired back that courts have wide discretion to limit the statements made by criminal defendants. They say that this gag order in particular was needed because of Mr. Trump’s “near daily” attacks against Mr. Smith, Judge Chutkan and potential witnesses in the case, including former Vice President Mike Pence and Gen. Mark A. Milley, the former chairman of the Joint Chiefs of Staff.The prosecutors have tried to position themselves as protectors of both the integrity of the judicial process and the people who take part in it, telling the appeals court that Mr. Trump’s threats on social media have sometimes had damaging effects in the real world.It is not clear how quickly the three-judge panel of the appeals court will decide on whether to rescind the gag order or keep it in place as the case moves toward its trial date. The gag order has been in abeyance for about two weeks as the court has gotten filings from the defense and the prosecution.If the order is upheld and goes back into effect, Judge Chutkan may confront an even tougher issue: how to enforce the decree if Mr. Trump violates it. A violation of a gag order is treated as a matter of contempt of court, which could result in a reprimand, a fine or imprisonment. But how that would play out is complicated.There are two types of contempt: civil, which is typically used to coerce future compliance with an order like making a recalcitrant witness testify; and criminal, which is focused on punishing past defiance of an order. Typically — though not always — judges have treated violations of gag orders as the latter type.In federal court, judges cannot unilaterally impose a fine or order someone imprisoned for criminal contempt. Rather, such an accusation is treated as a new offense that requires the appointment of a prosecutor and another trial — including a right to a decision by a jury.The battle over the federal gag order comes as a state appeals court in New York is considering the merits of two related gag orders imposed on Mr. Trump by Justice Arthur F. Engoron, who is overseeing his civil fraud trial in Manhattan.Those orders — which are also currently paused — would bar Mr. Trump or any of his lawyers from targeting Justice Engoron’s law clerk. The clerk has suffered repeated attacks by the former president and his allies, who have accused her of being a Democratic partisan. More

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      Judge Rejects Trump Motion to Strike Jan. 6 Mentions From Federal Election Case

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      The ruling was a step toward allowing prosecutors to introduce evidence at trial that members of the mob that stormed the Capitol believed they were acting at Donald Trump’s instruction.The federal judge overseeing former President Donald J. Trump’s trial on charges of plotting to overturn the 2020 election rejected on Friday a request by Mr. Trump’s lawyers to remove language from his indictment describing the role he played in the violence that erupted at the Capitol on Jan. 6, 2021.The ruling by the judge, Tanya S. Chutkan, was an initial step toward allowing prosecutors in the case to introduce evidence at trial that members of the mob that stormed the Capitol that day believed they were acting at Mr. Trump’s instruction.Last month, Mr. Trump’s lawyers asked Judge Chutkan to strike any mention of the riot at the Capitol from the 45-page indictment filed against him this summer in Federal District Court in Washington. The lawyers argued that since none of the four charges in the case explicitly accused Mr. Trump of inciting the violence that day, any reference to the mob attack would be prejudicial and irrelevant.Prosecutors in the office of the special counsel, Jack Smith, shot back that even if they had not filed formal incitement charges, the riot would be instrumental in their efforts to prove one of their central allegations: that Mr. Trump had plotted to obstruct the certification of the election that was taking place at a proceeding at the Capitol on Jan. 6.In court papers to Judge Chutkan, prosecutors called the Jan. 6 attack “the culmination” of Mr. Trump’s “criminal conspiracies” to overturn the election. They also suggested that they were poised to introduce video evidence of the riot and call witnesses at trial who could testify that they attacked police and stormed the Capitol after hearing Mr. Trump exhort them to “fight” in a speech he gave before the violence broke out.Mr. Trump’s lawyers have suggested that they will try in a future motion to keep Mr. Smith’s team from introducing evidence like that at the trial. If the lawyers end up taking that route, Judge Chutkan will have to make another ruling about whether the evidence is relevant and not prejudicial.Her decision to keep the references to the riot in the indictment came on the same day that a group of news organizations reiterated a request to televise the trial.Lawyers for the news organizations said Mr. Trump had sought to challenge the “very legitimacy” of the case, and they argued that a live broadcast was needed so people could view the trial firsthand.“Of all trials conducted throughout American history, this one needs the public trust that only a televised proceeding can foster,” lawyers for the organizations wrote.The nine-page brief by the media outlets — The New York Times, among them — was the last round of court papers expected to be filed to Judge Chutkan before she rules on whether to allow cameras at the trial, which is scheduled to begin in March.Lawyers for Mr. Trump, in a combative and misleading filing last week, compared the election interference case to “a trial in an authoritarian regime.” They told Judge Chutkan that it should be televised so that the public did not have to “rely on biased, secondhand accounts coming from the Biden administration and its media allies.”Within days, prosecutors in the office of the special counsel fired back that broadcasting the proceeding would not only violate longstanding federal rules of criminal procedure, but would also allow Mr. Trump, a former reality television star, to turn the trial into “a media event” with a “carnival atmosphere.”Lawyers for the media coalition said in their filing on Friday that it was “naïve to think that Trump’s trial will be anything other than a ‘media event.’”But the lawyers said that if the proceeding were broadcast live — in a “dignified, carefully managed” manner — it would permit the public to “see this trial firsthand” after Mr. Trump has relentlessly attacked the government’s case as an act of pure political persecution.“The media coalition believes that the more people who see the trial in real time, the stronger the case for public acceptance of the result,” the lawyers wrote.The judge who is overseeing Mr. Trump’s trial in Fulton County, Ga., on local charges of tampering with that state’s election has already televised several key hearings and has vowed to broadcast the trial itself, which could take place as early as next summer. (Prosecutors in Georgia filed a motion seeking an Aug. 5 start date on Friday, though the presiding judge will ultimately set the trial date.)But the federal courts have stricter rules about cameras in the courtroom, and Judge Chutkan would have to set them aside to allow her trial to be broadcast live. More

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      Trump Asks Judge Chutkan to Air His Federal Election Trial on TV

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      The request to Judge Tanya Chutkan was short on legal arguments and long on bluster, and it faces an uphill battle as federal courts generally prohibit cameras.Lawyers for former President Donald J. Trump have told a judge that she should permit his trial on federal charges of plotting to overturn the 2020 election to be televised live from the courtroom.It was the first time that Mr. Trump has formally weighed in on the issue of whether to broadcast any of the four criminal trials he is facing. His motion to Judge Tanya S. Chutkan, who is overseeing the federal election trial in Washington, came after similar requests made by several media organizations and was filed late on Friday.A judge in Georgia who is handling Mr. Trump’s state election subversion case has said that proceeding will be televised. But the request to Judge Chutkan is likely to face an uphill battle given that federal rules of criminal procedure — and the Supreme Court — generally prohibit cameras in federal courtrooms.Mr. Trump’s motion for a televised trial came in a filing adopting his bombastic and combative style.In the motion, his lawyers argued that a televised trial was needed because the office of the special counsel, Jack Smith, had “sought to proceed in secret” with the election case, even though the prosecution has attracted enormous attention from the news media, had several public hearings and had countless rounds of court papers filed on a public docket.The lawyers also used the motion to complain, as they have at almost every opportunity, that Mr. Trump has been treated “unfairly” by the Biden administration even though the election case — and another federal case in which Mr. Trump stands accused of mishandling classified documents — have been overseen by Mr. Smith, an independent prosecutor.It is little surprise that Mr. Trump, a former reality television star, would want to have the trial broadcast live from Federal District Court in Washington.As his testimony this past week in his civil fraud trial in New York has shown, he has opted to pursue a strategy of creating noisy conflict to obscure the legal issues underpinning his cases and to use the proceedings to amplify the message of victimhood and grievance that sits at the heart of his re-election campaign.Mr. Trump’s Friday night filing to Judge Chutkan was a sharp turn from his stance on the issue last week when prosecutors told Judge Chutkan, at his request, in their filing that his lawyers were taking “no position” on televising the trial.In that filing, prosecutors working for Mr. Smith also told Judge Chutkan that televising the trial was “clearly foreclosed” by federal rules.The prosecutors acknowledged that the public and the media had “a constitutional right of access” to the trial. But that, they claimed, was “the right to attend a criminal trial — not the right to broadcast it.”Mr. Trump’s filing ignored these arguments and instead relied on his usual mix of bluster and belligerence.“In sum,” his lawyers wrote, “President Trump absolutely agrees, and in fact demands, that these proceedings should be fully televised so that the American public can see firsthand that this case, just like others, is nothing more than a dreamt-up unconstitutional charade that should never be allowed to happen again.” More

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      Trump Asks Appeals Court to Throw Out Election Case Gag Order

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      The former president’s lawyers claimed he was being muzzled in the midst of a campaign, but their filing exaggerated the constraints put on him by the order.Lawyers for former President Donald J. Trump asked an appeals court in Washington on Wednesday to throw out the gag order imposed on him in the federal case in which he stands accused of plotting to overturn the 2020 election, calling it an effort to “muzzle” a presidential candidate “at the height of his re-election campaign.”“No court has ever imposed a gag order on the political speech of a candidate for public office, let alone the leading candidate for president of the United States — until now,” D. John Sauer, a lawyer who is handling the appeal for Mr. Trump, wrote.Mr. Sauer’s entreaty to the U.S. Court of Appeals for the District of Columbia was merely the latest in a dizzying round of back-and-forth moves involving the gag order, which was put in place last month to keep Mr. Trump from targeting members of the court’s staff, prosecutors or witnesses involved in his election interference case in Federal District Court in Washington.Judge Tanya S. Chutkan, who initially imposed the order, paused it briefly three weeks ago to consider some issues involving the appeal, but then reinstated it at the request of prosecutors in the office of the special counsel, Jack Smith, after Mr. Trump continued to violate its provisions.Not long after, the appeals court itself temporarily suspended the order as it mulled Mr. Trump’s request for a more sustained pause. The gag order, at least for the moment, remains in abeyance as the appeals court works over the next two weeks to determine if it should have been issued in the first place.Many of the arguments raised in Mr. Sauer’s 67-page filing to the appeals court have appeared in other guises during the protracted battle over the order. Gagging Mr. Trump, he wrote, was an unconstitutional “prior restraint” not only on the former president’s First Amendment rights, but also on those of “over 100 million Americans” who deserve to hear what he has to say.Moreover, the order improperly limited Mr. Trump’s remarks in the middle of his presidential campaign — a moment, Mr. Sauer argued, when he enjoyed “heightened First Amendment interests as a political candidate.”Like other lawyers who have sought to have Mr. Trump freed from the gag order, Mr. Sauer at times exaggerated the strictures it imposed on the former president.He claimed, for instance, that the order barred Mr. Trump from making statements “about key aspects of his prosecution at the hands of the administration he is seeking to replace” — issues, he added, that were “inextricably entwined” with Mr. Trump’s run for office.In fact, when Judge Chutkan put the order in place, she explicitly permitted Mr. Trump to criticize President Biden, his administration or what Mr. Trump characterizes as the political nature of the prosecution. But Mr. Trump was not allowed to go after any members of her court staff, Mr. Smith or members of his staff, or anyone who might reasonably be expected to testify at the trial.Mr. Smith’s team had asked for the gag order to be put in place amid what they called Mr. Trump’s “near daily” social media messages attacking Mr. Smith, other prosecutors on the case and even Judge Chutkan herself.But Mr. Sauer scoffed at the prosecutors’ claims that Mr. Trump’s remarks, however threatening, had led to actual harassment or threats against anyone covered by the order.Mr. Sauer’s filing said that he intended to seek emergency relief from the U.S. Supreme Court if the appeals court upheld any portion of the gag order. More

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      Trump Is Temporarily Free From Gag Order in Election Case

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      A three-judge panel of the federal appeals court in Washington lifted the order for at least two weeks, freeing the former president to say what he wants about prosecutors and witnesses.An appeals court in Washington on Friday paused the gag order imposed on former President Donald J. Trump in the federal case accusing him of seeking to overturn the 2020 election, temporarily freeing him to go back to attacking the prosecutors and witnesses involved in the proceeding.In a brief order, a three-judge panel of the U.S. Court of Appeals for the District of Columbia said the pause of about two weeks was needed to give it “sufficient opportunity” to decide whether to enact a longer freeze as the court considered the separate — and more important — issue of whether the gag order had been correctly imposed in the first place.The panel’s ruling came in response to an emergency request to lift the order pending appeal that Mr. Trump’s lawyers filed on Thursday night. While the judges — all three of whom were appointed by Democrats — paused the gag order until at least Nov. 20 to permit additional papers to be filed, they wrote in their decision on Friday that the brief stay “should not be construed in any way as a ruling on the merits” of Mr. Trump’s broader motion for a more sustained pause.The gag order, which was put in place last month by Judge Tanya S. Chutkan in Federal District Court in Washington, has now been frozen, reinstated and frozen again. The protracted battle, with its back-and-forth filings and multiple reversals, has pitted two visions of Mr. Trump against each other.Prosecutors working for the special counsel, Jack Smith, have repeatedly tried to portray the former president as a serial abuser of social media whose often belligerent posts about people involved in the election subversion case have had dangerous effects in the real world.Mr. Trump’s lawyers, by contrast, have sought, without evidence, to paint Judge Chutkan’s order as an attempt by President Biden to “silence” his chief opponent in the 2024 election as the race heats up. The former president’s lawyers have argued that the order undermines Mr. Trump’s First Amendment rights to express one of the central messages of his campaign: that the four criminal prosecutions brought against him in the past several months are a form of political persecution.Mr. Trump appears to have paid close attention to the various iterations of the order, and the most recent pause opened the possibility that he could return to making threatening posts that violated the initial restrictions that Judge Chutkan put in place.Her written order barred Mr. Trump from targeting members of her court staff, Mr. Smith or members of his staff, or any people who might reasonably be called to appear as witnesses at trial.The previous time the gag order was lifted — a move Judge Chutkan herself undertook — Mr. Trump almost immediately assailed Mr. Smith as “deranged.”He also made at least two public comments that appeared to target his former White House chief of staff, Mark Meadows, who could be called as a witness in the case. More

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      Prosecutors Ask if Trump Will Blame His Lawyers as Defense in Election Case

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      The special counsel asked a judge to require the former president to disclose whether he would blame poor legal advice for his attempts to overturn his 2020 election loss.Federal prosecutors asked a judge on Tuesday to force former President Donald J. Trump to tell them months before he goes to trial on charges of seeking to overturn the 2020 election whether he intends to defend himself by blaming the stable of lawyers around him at the time for giving him poor legal advice.In a motion filed to the judge, Tanya S. Chutkan, the prosecutors sought an order that would compel Mr. Trump to tell them by Dec. 18 if he plans to pursue the blame-the-lawyers strategy — known as an advice of counsel defense — at his federal election interference trial, which is now set to begin in March in Federal District Court in Washington.Both Mr. Trump and his current team of lawyers have “repeatedly and publicly announced” that they were going to use such arguments as “a central component of his defense,” prosecutors told Judge Chutkan in their filing. They said they wanted a formal order forcing Mr. Trump to tell them his plans by mid-December “to prevent disruption of the pretrial schedule and delay of the trial.”The early notification could also give prosecutors a tactical edge in the case. Defendants who pursue advice of counsel arguments waive the shield of attorney-client privilege that would normally protect their dealings with their lawyers. And, as prosecutors reminded Judge Chutkan, if Mr. Trump heads in this direction, he would have to give them not only all of the “communications or evidence” concerning the lawyers he plans to use as part of his defense, but also any “otherwise-privileged communications” that might be used to undermine his claims.Lawyers have been at the heart of the election interference case almost from the moment prosecutors first began issuing grand jury subpoenas to witnesses in the spring of 2022. Many of the subpoenas sought information about lawyers like John Eastman and Kenneth Chesebro, who entered Mr. Trump’s orbit around the time of the election and were instrumental in advising him about a scheme to create false slates of electors that declared him the winner of key swing states that had actually been won by his opponent, Joseph R. Biden Jr.The subpoenas also sought information about other lawyers, like Jenna Ellis and Rudolph W. Giuliani, who had not only advised Mr. Trump on the false elector plan, but had helped him advance claims that the election had been marred by widespread fraud.Moreover, lawyers from both Mr. Trump’s administration and his presidential campaign proved to be key witnesses in the investigation that began under the Justice Department and then was handed off to prosecutors working for the special counsel, Jack Smith.And when charges were finally filed against Mr. Trump, accusing him of three overlapping conspiracies to remain in power despite the will of the voters, the indictment identified six unnamed co-conspirators — most, if not all, of whom were lawyers as well.In their motion to Judge Chutkan, prosecutors noted that at least 25 witnesses in their sprawling investigation had withheld information based on assertions of attorney-client privilege. Those people, the prosecutors said, included Mr. Trump’s co-conspirators, some of his former campaign employees, some “outside attorneys” and “even a family member of the defendant,” who was not further identified.While prosecutors acknowledged that they were not entirely sure if Mr. Trump intended to raise an advice of counsel defense — or whether he was even legally entitled to do so — they did take note of the public statements that he and his current legal team have made suggesting that such arguments might be used at trial.The prosecutors pointed out that three days after Mr. Trump was arraigned in the case, one of his lawyers, John F. Lauro, made the rounds of the Sunday TV news shows, describing how Mr. Trump had been charged for “following legal advice” from Mr. Eastman, whom he described as “an esteemed scholar.”Weeks later, in an online interview with the former Fox News host Tucker Carlson, prosecutors said, Mr. Trump himself made similar claims. In their filing, they wrote that Mr. Trump claimed he had “some lawyers” who had advised him “that a particular course of action described in the indictment was appropriate.”In a separate filing on Tuesday, prosecutors sought to get a jump on what is certain to be the difficult process of picking a jury for the trial.Citing Mr. Trump’s “continued use of social media as a weapon of intimidation” — an issue that has come up in the government’s request for a gag order to be placed on the former president — the prosecutors asked Judge Chutkan to impose restrictions on information about potential jurors and those who are ultimately picked to serve.The prosecutors asked that no one involved in the case be allowed to publicly disclose information about the jurors gleaned during the selection process, in order to protect them “from intimidation and fear.”They also asked Judge Chutkan to consider arranging “for jurors to gain discreet entry into and out of the courthouse” once the trial begins. 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      Trump Seeks Dismissal of Federal Election Case, Claiming Immunity

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      Donald Trump’s lawyers asked a judge to throw out charges that he conspired to overturn the 2020 election, arguing that a president could not be criminally prosecuted for official acts.Lawyers for former President Donald J. Trump asked a judge on Thursday to throw out a federal indictment accusing him of conspiring to overturn the 2020 election and claimed that because the charges relate to actions he took as president, he should be “absolutely immune from prosecution.”The request to dismiss the election interference indictment, which came in a 52-page briefing filed in Federal District Court in Washington, was breathtaking in its scope. It argued that Mr. Trump could not be held accountable in court for any actions he took as president, even after a grand jury had returned criminal charges against him.While the Justice Department has long maintained a policy that sitting presidents cannot be indicted, Mr. Trump’s bid to claim total immunity from prosecution was a remarkable attempt to extend the protections afforded to the presidency in his favor.His motion to dismiss was certain to result in a pitched legal battle with prosecutors in the office of the special counsel, Jack Smith, if only because the idea that a president cannot be prosecuted for actions undertaken in his official capacity as commander in chief has never before been tested.The motion, which will be considered by Judge Tanya S. Chutkan, was also the first — but likely not the last — attempt by Mr. Trump’s lawyers to attack the charges in the election interference case directly.Until now, the lawyers have largely waged a series of unsuccessful procedural battles, seeking, and failing, to push back the trial until 2026 and to disqualify Judge Chutkan.In his filing, John F. Lauro, a lawyer for Mr. Trump, immediately sought to reframe the core of Mr. Smith’s case. He argued that the former president’s repeated lies that widespread fraud had marred the vote count and other steps he took to subvert the normal course of the democratic process were, in fact, “efforts to ensure election integrity.”Those efforts, Mr. Lauro argued, were “at the heart of” Mr. Trump’s “official responsibilities as president” and so should not be subject to criminal charges.“Here, 234 years of unbroken historical practice — from 1789 until 2023 — provide compelling evidence that the power to indict a former president for his official acts does not exist,” Mr. Lauro wrote. “No prosecutor, whether state, local or federal, has this authority; and none has sought to exercise it until now.”Over and over in his motion, Mr. Lauro sought to flip the story told by the indictment and portray the various steps that Mr. Trump took to subvert the election as official acts designed to protect its integrity.John F. Lauro, a lawyer for Mr. Trump, argued that the charges in a federal indictment were related to Mr. Trump’s actions while president, which should be “absolutely immune from prosecution.”Jim Lo Scalzo/EPA, via ShutterstockThe indictment detailed, for example, how Mr. Trump tried to enlist the Justice Department in validating his claims of fraud. It set out evidence of his pressuring state lawmakers to draft false slates of electors saying he had won states he actually lost. And it documented how he waged a campaign to persuade his own vice president, Mike Pence, to unilaterally declare him the victor in the race during a certification at the Capitol on Jan. 6, 2021.But all of these actions, Mr. Lauro wrote, fell within the scope of Mr. Trump’s “official duties” as president and so were “immune from criminal prosecution.”Only a handful of precedents exist that could help guide Judge Chutkan in making a decision about such broad claims of immunity, and none are perfectly on point.In 1982, the Supreme Court ruled by a 5-to-4 margin that former President Richard M. Nixon was absolutely immune from a civil suit arising from his official actions. But while Mr. Lauro cited that case, Nixon v. Fitzgerald, extensively in his filing, the reasoning in its majority opinion did not address whether presidential actions could be prosecuted as crimes.Before he was appointed as Mr. Trump’s final attorney general, William P. Barr wrote an apparently unsolicited memo claiming that presidents could not be charged with crimes for abusing their official powers.The memo was ultimately given to the lawyers defending Mr. Trump in the investigation into Russian election interference led by the special counsel, Robert S. Mueller III. In it, Mr. Barr concluded that Mr. Mueller should not be permitted to investigate Mr. Trump for obstruction of justice.This summer, the Justice Department announced it would no longer argue that Mr. Trump’s derogatory statements about the writer E. Jean Carroll were made as part of his official duties as president. A few months earlier, Ms. Carroll had won $5 million in damages in a trial accusing Mr. Trump of sexual abuse and defamation over comments he made after he left the White House. She is now trying to push forward a separate lawsuit over comments that he made while president.Last month, a judge in Atlanta rejected an attempt by Mark Meadows, Mr. Trump’s former White House chief of staff, to move a case accusing him and others, including Mr. Trump, of tampering with the election in Georgia from state court to federal court.Mr. Meadows had also sought to claim immunity against the charges. But the judge overseeing the case ruled that the steps he took in helping Mr. Trump overturn the election were not part of his official White House duties, but were instead political efforts to help Mr. Trump get re-elected.Alan Rozenshtein, a former Justice Department official who teaches at the University of Minnesota Law School, said the key question facing Judge Chutkan would be whether to accept Mr. Trump’s attempt to reframe the accusations as presidential acts that were beyond the scope of prosecution.It was a shrewd legal gambit, Mr. Rozenshtein said, because it played off a legitimate presidential duty under the Constitution: to faithfully execute federal law.“He will lose,” Mr. Rozenshtein said. “But he is making the correct conceptual argument.” More