Late on Friday night, Special Counsel Jack Smith and former President Donald Trump submitted a joint status report detailing their clashing proposals for how the prosecution of the former president for his attempt to reverse the results of the 2020 election should proceed. The report comes just days after the government filed a superseding indictment. These actions provide new insights about how both parties view the state of the case in the wake of the Supreme Court’s decision providing broad, but not limitless, immunity for former presidents for conduct while in office. The status report presents Judge Tanya Chutkan with a stark choice about the meaning of Trump v. United States — and when and how to apply the tests the Supreme Court ordered her to administer.
Trump also indicated in the joint status report that he will move to dismiss the superseding indictment in light of the Court’s decision in Fischer v. United States, which interpreted Section 1512(c)(2) more narrowly than the lower courts had previously — the obstruction of an official proceeding statute with which Trump is charged. The meaning and application of Fischer also has important implications for the work before the judge. And as we note below, the special counsel also drafted the superseding indictment, including the addition of new factual allegations, in light of Fischer.
In this article we unpack the parties’ positions in the status report, showing that they turn on very different views of how the immunity and obstruction cases apply to the superseding indictment. We then turn to the new indictment itself, offering a detailed analysis of its contents. We conclude that the superseding indictment tightly conforms to the requirements the high court established (and is fully consistent with our Just Security analysis earlier this month of what should stay and what must go). We include a redline comparison of the original and superseding indictments to help illustrate our analysis.
We conclude with some thoughts about the implications of all that for Chutkan’s decisions when the parties appear before her to discuss the status report on Thursday, Sept. 5. In our view, it is appropriate to proceed to immediate briefing on whether the superseding indictment meets the tests set out in Trump. That briefing should encompass Smith’s proposal to put forward “additional unpled categories of evidence that the Government intends to introduce at trial.” Finally, we offer a pre-election briefing schedule that also allows for a reasonably prompt evidentiary hearing — or “mini-trial” — on immunity, which may focus on the specific allegations that most deserve such an inquiry (e.g., the allegations involving former Vice President Mike Pence).
I. Unpacking the Status Report
In the status report, both sides recognized that there will be significant motion practice related to presidential immunity, but sharply differed over the nature and schedule of the proceedings.
The special counsel argued that Chutkan must as a threshold matter conduct a “fact- and context-specific analysis of whether the superseding indictment contains immunized conduct.” Smith argued that this is not only consistent with the Supreme Court’s direction on remand in this case, but also with the principle that questions related to immunity should be resolved “at the earliest possible stage in litigation” — quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991).
“The fact the defendant is engaged in a political campaign is not going to allow him any greater or lesser latitude than any defendant in a criminal case.” – Judge Tanya Chutkan
Therefore, Smith proposed filing an opening brief explaining why the government believes the immunity established in Trump v. United States does not apply to any of the allegations contained in the superseding indictment or in the evidence they intend to introduce at trial, which Trump would have the opportunity to oppose. Indeed, the government says it is ready to file this brief “promptly at any time the Court deems appropriate.” Notably, Smith also indicated that this immunity brief would include “additional unpled categories of evidence that the Government intends to introduce at trial” to demonstrate why that conduct is not protected by immunity.
Accordingly, that filing could offer the public the first glimpse of the government’s evidence beyond the four corners of the indictment — an explosive prospect.
After that round of briefing concludes (with a response by the defense and a reply by the government), Smith writes, “the Court can assess the parties’ arguments on that record and conduct any further proceedings it deems necessary to resolve immunity issues.” That leaves open the possibility of an evidentiary hearing, or “mini-trial,” to hear witness testimony and receive other relevant evidence from both parties, either before or after the election.
Trump, on the other hand, opposes the government’s proposal, arguing that Smith “has no right to preemptively challenge submissions President Trump may make.” Moreover, while Trump acknowledges that it makes sense “in principle” for the special counsel to inform Trump of his position on immunity “in advance of any evidentiary motion practice,” “such information may be provided by letter, and should not take the form of affirmative briefs or other filings.” In the chart provided, Trump proposes, after all briefs on this issue are filed, a “non-evidentiary hearing.”
In terms of sequencing, Trump argues that the immunity issues should not be addressed first. Instead, seeking to utilize the pre-election period to litigate on grounds unrelated to his alleged conduct, Trump argues that an immunity briefing should be scheduled after Trump’s anticipated motion to dismiss the case on the basis of the “Special Counsel’s improper appointment and use of non-appropriate funds” is fully briefed. In other words, Trump wants to foreground the claims that succeeded in Judge Aileen Cannon dismissing Smith’s classified documents prosecution. (As an aside: that ruling has been subject to withering criticism, and the D.C. Circuit has already decided the legal matter in the 2019 opinion, In re Grand Jury Investigation; and as a disclaimer, one of the authors (Seligman) argued the motion before Judge Cannon as an amicus.) Trump proposes filing his motion to dismiss based on presidential immunity only after that motion practice and a subsequent hearing conclude, offering the post-election date of Dec. 13, 2024. That would then be followed by over a month of briefing — meaning a decision by Chutkan would come no sooner than the end of January 2025, when Trump may be back in power and in a position to end the case altogether.
Smith and Trump will have the opportunity to further explain their respective positions to Chutkan later this week during the status conference. The primary issue she will have to confront is the implications of the Supreme Court’s decision on immunity. At the core of that discussion is the government’s superseding indictment. It represents the special counsel’s attempt to satisfy two aims simultaneously: excising the allegations that are shielded by the Supreme Court’s decisions in Trump and in Fischer, while retaining sufficient allegations to support a conviction.
We now turn to a discussion of the indictment and whether it has satisfied those criteria.
II. Applying the Immunity Decision
The Supreme Court’s new immunity rule creates three categories of conduct:
1. Core executive functions, such as pardons and recognizing ambassadors, are absolutely immune from criminal prosecution.
2. Official actions that are not core executive functions are “presumptively immune,” shielded from criminal liability unless prosecution of those actions would not “pose any dangers of intrusion on the authority and functions of the Executive Branch.”
3. Unofficial actions, which are not immune.
Earlier this month, we published an analysis of the original indictment charting the path forward for the Jan. 6 case after the Supreme Court’s immunity decision. That analysis, and the accompanying annotated and color-coded version of the original indictment, divided seven categories of allegations that fell on a spectrum from clearly not immune (dark green) to less certain to clearly immune (red):
Clearly Not Immune
1. Conduct Trump Does Not Dispute Was Unofficial and Publicly Available Information (Green)
Not Immune
2. Alternate Electors Scheme (Light Green)
3. Trump’s Public Statements (Light Yellow)
4. Pressure on State Officials (Yellow)Likely Not Immune
5. Vice President Mike Pence Plan (Light Orange)
6. Jan. 6 and Congressional Action (Orange)Clearly Immune
7. Pressuring the Department of Justice (Red)
The superseding indictment tracks our analysis closely. The document at this link compares the superseding indictment with the original indictment, tracking the additions, deletions, and alterations in redline. For the sake of simplicity and ease of use, we do not carry over our color-coding, and instead simply show the changes that the Department of Justice made with the new grand jury.
The revision to the first paragraph captures the thesis of the revisions involving the immunity question throughout:
Similarly, the superseding indictment notes that all of the remaining unindicted co-conspirators were private citizens, not government officials:
The special counsel thus revised the indictment to focus on actions Trump took as a candidate, rather than as president. That required the deletion of some allegations and required clarification of others:
- The superseding indictment retains the allegations related to conduct that was conceded to be unofficial (Green/Category 1).
- The superseding indictment retains the allegations related to the alternate electors scheme (Light Green/Category 2).
- The superseding indictment retains the allegations related to Trump’s public statements spreading false claims of voter fraud (Light Yellow/Category 3).
- The superseding indictment retains the allegations related to Trump and his co-conspirators’ pressure on state officials (Yellow/Category 4).
- The superseding indictment retains and clarifies the allegations related to Trump’s pressure on Pence (Light Orange/Category 5).
- The superseding indictment retains but revises and removes some of the allegations related to Trump’s conduct on Jan. 6 during the violent assault on the Capitol (Orange/Category 6).
- The superseding indictment eliminates all allegations related to the Department of Justice and White House aides (Red/Category 7) as well as with the Department of Homeland Security and CISA (which we had considered not immune).
Alternate Electors Scheme
In retaining these allegations, the special counsel added subtle yet important emphasis on the private character of Trump’s actions by noting that the scheme was carried out with private collaborators, such as Republican National Committee Chairwoman Ronna McDaniel.
False Public Claims
The special counsel added important context to emphasize the private character of Trump’s public statements, in which he made false claims of voter fraud and election improprieties. In particular, the superseding indictment emphasizes that its allegations are limited to Trump’s statements as a candidate, in which he “used his Campaign to repeat and widely disseminate” false claims of election fraud, while excluding communications that he made in his capacity as president. The superseding indictment also added allegations that Trump’s campaign — and not the federal government — organized and paid for the Ellipse speech on the morning of Jan. 6. This addition responds to the Supreme Court’s decision requesting that precise factual detail. That is, the Court noted the district court should look into “who was involved in transmitting the electronic communications.”
Trump, in the joint status report, argues that his “Tweets and public statements” about the 2020 election are immune, signaling the position he will continue to take in future proceedings.
Pressure on State Officials
These factual allegations remain in the narrative paragraphs of the indictment (as part of what criminal attorneys call a “speaking indictment”), scattered throughout paragraphs 17 to 49, and in the section on the Manner and Means of the conspiracy (paragraph 11).
Pressure on Pence
The Supreme Court held that communications between the President and Vice President are official conduct, and so to avoid immunity the special counsel must presumably show that basing a conviction on those actions will not “pose any dangers of intrusion on the authority and functions of the Executive Branch.” In the original indictment, these allegations were phrased as targeting the “Vice President.” In the superseding indictment, they are phrased as targeting the “Vice President, in his capacity as President of the Senate” who presided over the electoral count. By clarifying that Trump’s conduct toward Pence involved the latter’s legislative role (Article I), rather than executive role (Article II), the special counsel is attempting to make the case that the conduct was not internal to the executive branch and thus the charges will not interfere with its functioning. We note that the special counsel also added several references to Pence as Trump’s running mate, which suggests that the government might attempt to argue that at least some of their communications are not official after all. Those include Pence informing Trump that they had lost the election, and the allegations of voter fraud were false.
In the joint status report, Trump highlights this category of allegations in particular. He maintains that the special counsel will still not be able to rebut the presumption of immunity, and argues that the Pence allegations are “dispositive to this case.”
Trump’s Continued Pressure During the Capitol Riot
These allegations — whose ultimate role in the special counsel’s theory of the case is not entirely clear — are framed as Trump’s “exploitation of the violence and chaos at the Capitol.” The allegations remain focused on Trump’s continued pressure on Pence and Congress to manipulate the electoral count, even as rioters stormed the Capitol. The superseding indictment makes several important deletions and alterations. The original indictment included references to Trump’s conversations with White House staff members as the violence unfolded; those references have been deleted. There is a strong argument that those communications involve official conduct, and it appears the government does not believe it could rebut the presumption of immunity, or at least that the litigation risks are too high. Basing a criminal conviction on the president’s communications with his closest advisors during a national security crisis may be seen to intrude on the functioning of the executive branch. Seemingly for the same reason, the superseding indictment deletes references to some of Trump’s tweets from the White House during the riot, and his refusal to issue statements calling for calm and for the rioters to leave the Capitol. That said, the indictment does retain one of the most important and incendiary tweets targeting Pence, which the superseding indictment now notes Trump wrote “personally, without assistance” (paragraph 94).
Pressure on the Department of Justice
As the Supreme Court directed, the superseding indictment deletes all references to Trump’s pressure campaign on the Department of Justice. For example, it excises the allegation that Trump pressured the department to release a letter falsely claiming that the election was marred by outcome-determinative fraud. It also eliminates Jeffrey Clark, the DOJ official who worked closely with Trump, as a co-conspirator. We note that the superseding indictment also deletes reference to Trump’s communications with the Cybersecurity and Infrastructure Security Agency, the Department of Homeland Security and White House staffers including the White House Counsel. This might be because the prosecution believes such interactions, like those with the DOJ, would be found to be core executive functions for which the president is absolutely immune. Or it could be because the special counsel believes they are only presumptively immune but that the government could not rebut that presumption because basing criminal charges on interactions with those agencies would interfere with the functioning of the executive branch. Or simply that maintaining these elements incurs too many litigation risks for this case or broader institutional interests of the executive branch.
III. Applying Fischer
In addition to adjusting the allegations in an attempt to conform with the Supreme Court’s immunity decision in United States v. Trump, the special counsel also made several subtle revisions that we believe are intended to respond to the Court’s decision just days earlier in Fischer v. United States. That case concerned Jan. 6 defendants who allegedly participated in the violent assault on the Capitol and were subsequently charged with obstruction of an official proceeding under 18 U.S.C. § 1512(c)(2). Section 1512(c)(1), the preceding provision, makes it a crime to “alter[], destroy[], mutilate[], or conceal[] a record, document, or other object … with the intent to impair the object’s integrity or availability for use in an official proceeding.” Section 1512(c)(2) then makes it a crime to “corruptly obstruct[], influence[], or impede[] any official proceeding.” Defendant Joseph W. Fischer argued that Section 1512(c)(2) is limited to conduct that impairs evidence. The government argued that Section 1512(c)(2) applies to any conduct that corruptly obstructs, influences, or impedes an official proceeding.
In Fischer, the Supreme Court adopted an intermediate position between Fischer’s extremely narrow interpretation and the government’s extremely broad construction. The Court held:
To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of rec- ords, documents, objects, or … other things used in the proceeding.
As in the immunity decision, the Court did not apply its new interpretation of Section 1512(c)(2) to the conduct alleged in Fischer’s case. In her concurring opinion, Justice Ketanji Brown Jackson suggested that Fischer’s conduct was covered, because the “official proceeding” of the electoral count “plainly used certain records, documents, or objects — including, among others, those relating to the electoral votes themselves” and “it might well be that Fischer’s conduct … involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6.” Justice Amy Coney Barrett asked questions at oral argument that suggested she agreed. But because the Court itself did not reach the application of its immunity test, the lower courts must attempt to do so in the first instance both for allegedly violent Jan. 6 defendants like Fischer and for non-violent defendants such as Trump and his unindicted co-conspirators.
Because Trump was also charged with the same statutory offense, the Court’s decision in Fischer could theoretically implicate the viability of that charge in his case. Indeed, Trump telegraphed in the joint status report that he will likely bring a motion to dismiss the prosecution on that basis.
We believe that Section 1512(c)(2), as interpreted by the court in Fischer, applies both to the conduct alleged against violent Jan. 6 defendants and to the conduct alleged against Trump. The case for the latter is clearly stronger. That said, the violent rioters who stormed the Capitol forced congressional staffers to flee with the legitimate electoral certificates, which thus “impaired the availability” of those “documents” “for use in [the] official proceeding” of the electoral count. For his part, Trump is alleged to have organized the fraudulent alternate electoral certificates, which thus both “impaired the integrity” of those fraudulent documents and the “availability” of the legitimate certificates.
The special counsel inserted several additions to the superseding indictment that appear intended to satisfy the Court’s interpretation in Fischer. In paragraph 90 of the superseding indictment, the special counsel added factual details about the role of the certificates in the electoral count:
Then in paragraph 86 of the superseding indictment, the special counsel added an allegation that Trump’s speech on the Ellipse on the morning of Jan. 6 advocated the use of the fraudulent certificates in the electoral count:
And in paragraph 93 of the superseding indictment, the special counsel added an allegation that congressional staffers evacuated the Senate with the legitimate certificates:
IV. The Road Ahead for Judge Chutkan
In our view, it is appropriate to proceed first with briefing on whether the superseding indictment and other evidence to be presented at trial meet the tests of Trump, as suggested by the special counsel in the joint status report. Immunity issues are typically treated as a threshold matter, Hunter, 502 U.S. at 227 (1991) (the Supreme Court has “repeatedly … stressed the importance of resolving immunity questions at the earliest possible stage in litigation”), and doing so is consistent with the Court’s opinion in Trump, including the rationale for interlocutory appeal to protect the interests of the presidency.
As we have explained, Smith has neatly teed up the critical questions for the trial court judge with his streamlined pleading, stripping out material that clearly implicates immunity and adding modifying language to clarify allegations that the government believes relate to unofficial conduct. All of that has made the complex task of applying the Trump test easier for the judge and the parties, and we believe the D.C. Circuit and the Supreme Court will ultimately uphold the superseding indictment.
The most hotly contested issue is likely to be whether the allegations about the vice president concern his official executive branch role, his legislative role as the president of the Senate, or his private one as running mate and whether they are or are not immune. A full analysis of this point is beyond the scope of this article and will be the subject of a future one, but we believe the special counsel has the better of the argument here. See Trump, 144 S. Ct. at 2337 (“Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of ‘presiding over the Senate’ is ‘not an “executive branch” function.’ With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U.S.C. § 15, and the President plays no direct constitutional or statutory role in that process”) (quoting Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974)).
Depending on whether and how Trump challenges these and other allegations in the indictment, briefs alone may not be sufficient to resolve the dispute or to rebut any presumption of official conduct, and an evidentiary hearing or “mini-trial” may be required, such as with respect to the question of the capacities in which Pence was acting at particular crucial moments. It may well be that the dispositive evidence as to such questions is his own testimony. See Trump, 144 S. Ct. at 2318 (certain categories and characterizations of conduct in the indictment “requires a fact-specific analysis of the indictment’s extensive and interrelated allegations”); see also Norman L. Eisen, Matthew A. Seligman, and Joshua Kolb, After Immunity: The Path Forward for the January 6th Case, Just Security, Aug. 6, 2024; Norman L. Eisen and Joshua Kolb, Prepare for a 2024 ‘Mini Trial’ in Trump’s D.C. Prosecution, Lawfare, June 24, 2024. Smith subtly acknowledges on page 2 of the status report that a mini-trial may be necessary, stating that “[a]fter the Government’s reply, the Court can assess the parties’ arguments on that record and conduct any further proceedings it deems necessary to resolve immunity issues.” And he offers to proffer new evidence that would be the subject of briefing and any such future proceedings. It is conspicuous that the special counsel does not appear to be opposing such a mini-trial, which may be important to Judge Chutkan as prosecutors would likely see tradeoffs with such public hearings. The court should take up the idea of a mini-trial, at least for the unique allegations involving the vice president, for the sake of the complete and speedy resolution of these immunity questions.
Notably, Smith does not say when all of this should transpire, leaving the schedule for the briefing and a mini-trial, if any, to the judge. By contrast, Trump’s proposed schedule is an obvious ploy to push consideration of the immunity question until after the election and indeed until after a new president is inaugurated in January 2025. Id. at 3-4. But that risks the perverse result of Trump unduly evading the immunity analysis altogether if he were to win the presidency by ordering the DOJ to dismiss the case, pardoning himself, or simply having the DOJ position that an incumbent president is immune from criminal prosecution kick in. Moreover, the case has already been beset with excessive delays, with the Supreme Court postponing resolution of the immunity question for seven months after Smith first presented it to them. That significantly diverges from the timetable for other comparable cases of national import.
Chutkan need not add further undue delay or treat Trump any differently than any other criminal defendant whose professional activities must be accommodated to court proceedings. Indeed, she has said as much: “Mr. Trump will be treated exactly, with no more or less deference, than any other defendant would be treated.” (She has similarly said, “Setting a trial date does not depend and should not depend on the defendant’s personal and professional obligations;” “Mr. Trump, like any defendant, will have to make the trial date work regardless of his schedule.”) Surely the same is true of the obligations that the Supreme Court has imposed upon Chutkan to assess immunity, to have an evidentiary hearing if necessary, and the pre-election schedule dates that flow from that. Indeed, there’s even a stronger case for those processes to move ahead since they do not, like a trial, require the day-in, day-out presence of the defendant. Indeed, most pointedly, Chutkan has said:
“The fact the defendant is engaged in a political campaign is not going to allow him any greater or lesser latitude than any defendant in a criminal case.”
Another point of contention between the parties is the sequencing of briefing. The special counsel proposes that the government file an opening brief, which Trump would subsequently oppose. Trump agrees the special counsel should submit something first, in which the government could “inform” of its “position on certain immunity issues in advance of any evidentiary motion practice” but proposes that information should be relayed by letter rather than by brief. According to Trump, the proper procedure is for him thereafter to file a new motion to dismiss the indictment based on immunity in 2025, which the special counsel could then oppose.
Given the novel nature of these pretrial proceedings, we are aware of no precedent on point to guide Chutkan on this question. In its absence, we believe that the more sensible approach is for the special counsel to file an opening brief, which Trump may oppose. In part, that approach is merited because the district court must apply the Supreme Court’s immunity decision not only in light of the allegations in the indictment but also taking account of evidence Smith may wish to put forward in support of his position beyond the allegations of the indictment. A traditional defense opening motion to dismiss the indictment is ill-suited to that task. An opening brief by the special counsel, addressing matters both within the four corners of the indictment and outside it, makes more sense. It also allows Smith to front any evidence that he plans to introduce at trial that may implicate immunity questions, so that as many of these questions as possible can be resolved upfront and the parties can understand the evidentiary parameters of the case going forward. Indeed, a defendant should cherish such an opportunity.
Chutkan should moreover set a schedule for immediate briefing. The parties have already had the Trump opinion in hand for two months, since July 1. And the parties were both prepared to discuss which alleged conduct was official or unofficial in the briefing and oral arguments in that prior litigation. The special counsel says in the status report that it is ready to file “promptly at any time the Court deems appropriate.” (We anticipate the special counsel’s opening brief will track our analysis above and in our earlier Just Security essay.) The judge should take Smith up on it, instructing him to file his brief by Monday, Sept. 9, with Trump’s opposition due two weeks later on Sept. 23, and Smith’s reply due one week after that on Sept. 30. Indeed, even Trump’s proposed schedule for briefing would be only twice as long – but it includes a host of other matters as well, from the Fischer framework to motions involving discovery and more.
The sequencing and schedule we propose would be consistent with Chutkan’s briefing schedule for Trump’s original motion to dismiss based on immunity last year, which was as follows:
- Motion to dismiss the indictment based on presidential Immunity — Oct. 5, 2023
- Response in opposition to motion to dismiss the indictment based on presidential Immunity — Oct. 19, 2023
- Reply in support of motion to dismiss the indictment based on presidential Immunity — Oct. 26, 2023
A significant variation from that kind of schedule might be understood as treating Trump “more … deference than any other defendant would be treated.”
Here too we propose allowing two weeks for an opposition brief to be filed, and one subsequent week for the reply (although here the government would go first whereas in the more typical motion to dismiss setting that characterized the onset of the case Trump went first). Our analysis of the superseding indictment shows that it presents the issues in a sufficiently clean and clear fashion that the parties can engage with them on that timetable. But should the court for any reason desire a more leisurely commencement of briefing, Chutkan could set 14 days for the filing of the opening brief (Sept. 19), with the opposition due two weeks after that (Oct. 3) and the reply due one week later (Oct. 10). Indeed, it may depend on how much additional evidence the special counsel plans to present under the rubric of “additional unpled categories of evidence that the Government intends to introduce at trial.”
Before or after the briefing is complete, the court could determine whether a mini-trial will be necessary and, depending upon its parameters, schedule it for October or perhaps more likely after the election in November. If the mini-trial is set for October, Trump’s presence could be excused. The Department of Justice’s unwritten policy against initiating investigative moves that could potentially impact an election within the 60 days before voting day does not apply here because the foregoing represents proceedings mandated by the district court in an existing case. As Attorney General Garland explained in the context of Trump’s case, even when it comes to a full-blown trial starting before an election, “The matter is now in the hands of the trial judge to determine when the trials will take place … the cases were brought last year. [The] prosecutor has urged speedy trials, with which I agree. And it’s now in the hands of the judicial system, not in our hands.”
The Supreme Court has already significantly procrastinated, delaying the trial of this case that had been scheduled for March of this year. Surely the justice system and the American public are at least entitled to an adjudication of whether or not Trump’s 2020 election interference was immune before they determine whether to empower him to take such actions again from the Oval Office. At a minimum, it would be improper to delay that process because of the electoral calendar. We will be watching on Thursday to see if Judge Chutkan agrees.