Special Counsel Jack Smith’s Jan. 6 case will not go to trial until the November election, but an empty jury trial could still hurt President Trump at the ballot box.

In the fall, so-called mini-trials will take place before Judge Tanya Chutkan in the District of Columbia. Smith and Trump’s team will argue about which actions in the special counsel’s indictment are considered official and which are considered unofficial. The Supreme Court has ruled in Trump against the United Statesruled that official acts were presumptively immune; unofficial acts were unprotected.

The Supreme Court has referred the case to Judge Chutkan, who will apply her new doctrine of presidential immunity to the facts of the indictment against Mr. Smith. It will be up to her to decide what, if anything, of it can withstand the ruling of presidential immunity.

Judge Chutkan was the first to rule that former presidents were not entitled to any immunity because they lacked the “divine right of kings.” At a hearing for one defendant on January 6, she specifically referred to Trump, declaring, “Presidents are not kings.” Now Judge Chutkan, who imposed harsh sentences on January 6 protesters, is being accused of holding hearings that she deemed unnecessary.

The date to keep an eye on is September 5, when the judge ordered both sides to appear in court to discuss how she and the parties will comply with the Supreme Court’s order. That’s later than originally planned because Mr. Smith had requested a three-week delay for “consultations with elements of the Justice Department,” which could include Attorney General Garland. Trump did not object, and Judge Chutkan granted his request. It was the first time the administration has requested more time.

The postponement means that hearings to determine immunity will now begin even closer to the election. Sessions to hear evidence on the scope of presidential immunity have never taken place in an American courtroom, so there is no precedent for how they might play out. Judge Chutkan could choose to avoid hearings altogether and order both Trump and the administration to submit offers or briefings on what evidence they consider admissible after the hearing. Trump.

For Mr Smith, an exchange of offers could be a double-edged sword. It would be more efficient to take the case to court, as judges have ruled that immunity issues need to be resolved before a jury is sworn in. The special counsel has long insisted there is a “compelling” public interest in reaching a verdict as quickly as possible. Any of Judge Chutkan’s decisions are likely to be appealed, meaning the immunity litigation could drag on for months.

But with no chance of a jury reaching a verdict before the election, Mr. Smith may assume that hearings with witnesses on the ground will better serve the government’s goals. However Judge Chutkan conducts her hearings, she will do so under the glare of Supreme Court scrutiny. Chief Justice Roberts’ majority opinion castigated her “expediting of this case, lack of factual analysis … and failure to provide pertinent briefing to the parties.”

Although the hearings will not be televised or recorded – federal courts oppose such technology – they are still likely to generate significant press coverage in the weeks leading up to the election. This is especially true if high-profile witnesses take the stand. One of the candidates is Chief of Staff Mark Meadows, who was not charged by Mr Smith because, as ABC News reported, he cooperated with the special counsel’s office. Such cooperation could include testifying about what he saw firsthand on January 6, 2021.

Another potential witness to keep an eye on is Vice President Pence. The Supreme Court spent a long time considering Smith’s description of conversations between Trump and Pence, fearing that their appearance in the indictment would raise “difficult questions.” Chief Justice Roberts ultimately concluded that “whenever the President and Vice President discuss their official duties, they are engaging in official conduct.” This means that these interactions presumptively cannot be used as evidence.

Mr. Smith can rebut that presumption, although the hurdle is high. By calling Mr. Pence to the stand, he could convince Judge Chutkan that the pressure Trump put on his vice president was somehow unofficial and therefore unprotected. At the court’s order, Mr. Pence testified before the grand jury that eventually indicted Trump.

If Trump loses the election – polls show a neck-and-neck race after President Biden’s resignation – a President Harris would likely give the prosecutor the opportunity to take the case to a verdict, perhaps in a slimmed-down form if the former district attorney does not issue a pardon. A mini-trial this fall might not result in a guilty verdict, but it could make such an outcome more likely.