Jack Smith reportedly does not want to seek a “mini-trial” in the January 6 Trump case

Special Counsel Jack Smith reportedly does not plan to seek a so-called mini-trial in Donald Trump's election interference case before the November election. I'll explain what that means and why it's not the crucial issue in the broader context of the indictment and Trump's criminal case in general.

The backdrop that sparked speculation about such a hearing is the Supreme Court's July 1 ruling in Trump v. United States, which established a vague test for presidential immunity that U.S. District Judge Tanya Chutkan must now apply to determine how much of Trump's impeachment survives the Supreme Court's ruling (a question that may go back to the justices before a trial). The question is how Chutkan plans to tackle this complex task: With mere written briefs? With briefs followed by a detailed hearing with witness testimony?

That is not yet clear. The parties must provide Chutkan with a joint status report on their next steps on Friday, after Smith specifically asked for more time to finalize the administration's position and Trump's team unsurprisingly agreed to the further delay.

Before the release of that status report, Bloomberg News reported on Friday that Smith “decided against calling for a major hearing to present evidence in the election-rigging case against Donald Trump before voters go to the polls,” and The New York Times similarly reported that federal prosecutors “are not likely to seek a wide public airing of their evidence in a courtroom before Election Day.” The reports, which cited people familiar with the matter, were not independently confirmed by NBC News or MSNBC.

But if this news is true, it is not too surprising. After the immunity ruling, it became even clearer that there would be no trial on January 6 before the election. As shown most recently by Smith's request for more time to finalise his position on how to proceed, the government seems to have understood that there is no point in rushing now.

So what is the public missing out on if there is no such hearing before the election? One answer seems to be that voters could learn even more about Trump's actions after the 2020 presidential election that led to the indictment. (He has pleaded not guilty.)

But January 6 is not a crime thriller. Whatever happens in this criminal case, Trump's conduct that day is well documented and was televised for everyone to understand. A hearing in federal court (which, by the way, would not be televised) could provide more details, but anyone listening carefully has long had ample information available that should settle the matter one way or another for election purposes. Perhaps it would be worse politically for Trump if there were additional daily reports of his undemocratic conduct in this regard in the days leading up to the November election. But that political issue is not the issue in court.

The bigger legal issue is that if Trump wins the election, his federal cases are as good as lost. (Smith has separately appealed the dismissal of the former president's federal case over classified documents, in which Trump also pleaded not guilty. Smith's appeal brief is scheduled to be filed Tuesday.) Voters can freely assume that Trump's reelection would mean he would never again have to face a federal trial over Jan. 6 or his alleged unlawful retention of classified documents and obstruction of justice. (In state-level cases, presidents cannot dismiss them or issue pardons; Trump's lawyers argue that the immunity ruling should cause his guilty verdicts in New York to be overturned, while his case in the state of Georgia, in which he pleaded not guilty, is tied to a pretrial appeal that has nothing to do with immunity.)

And the immunity decision isn't the only recent Supreme Court decision that has implications for how Trump's case plays out in Washington. Another case Trump's lawyers will continue to pursue is Fischer v. United States, in which the court limited the obstruction of justice charges for the Jan. 6 defendants. Two of the four counts in Trump's Jan. 6 indictment relate to obstruction of justice. So even if the Fischer case doesn't upend Trump's prosecution to the extent that the immunity decision did, it's another issue that could potentially complicate the case. Again, the case becomes more straightforward if Trump wins the election because he would then have the power to drop the case.

In the meantime, of course, how the case proceeds is not entirely in Smith's or Trump's hands. It is up to the judge. We should learn more about where the case is headed when we see the report on Friday, because there is a status conference scheduled for next week, on September 5, that could shed more light on how to proceed.

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