Judge in Donald Trump's January 6 trial issues major warning about the election and feuds with ex-president's lawyers over Mike Pence

Lawyers for Donald Trump argued in court Thursday that a ruling that Trump's communications with former Vice President Mike Pence around January 6 should be found to be immune and would 'crater' the new indictment against him.

They told a federal judge the Trump-Pence talks about the vice president's role could unravel the government's entire case against the former president  – with the November election once again looming over timing decisions in the blockbuster case.

'If in fact the communications with Vice President Pence – which are all over this indictment … if in fact these are immune, then that entire indictment is improper,' Trump lawyer John Lauro told Judge Tanya Chutkan at a hearing Thursday.

'If your honor decides that that is immune, then the whole indictment craters,' he said.

In a case that once looked to put Trump on trial over January 6 even amid his run for the White House, Trump's team wants the opportunity to go first and issue a briefing calling to dismiss the new indictment against him.

Special Counsel Jack Smith obtained a new superseding indictment from a grand jury last week following a Supreme Court ruling on the immunity issue that threw a wrench into the case.

Prosecutors want to keep things moving – filing their own brief in about three weeks and getting the chance to share more of the evidence they have obtained. As they did when the case first came up a year ago, government prosecutors want a schedule that keeps the case moving down the tracks.

Judge Chutkan bristled when Lauro brought up the information being put into the public record 'at a very sensitive time in our nation’s history.'

She took that as Lauro invoking the election, and asking her to stall procedures because of it, and returned to her earlier statements about not being guided by the political calendar.

'I understand there is an election pending. I’ve said before and I say again that the electoral process and the timing of the election … is not relevant here,' she admonished him. 

She said setting a trial date at this point would be an 'exercise in futility' – effectively ending the prospect of a trial before American head to the polls.

Lauro calls the Mike Pence communications – where Trump told his VP he had the authority not to accept votes for Joe Biden certified by states – constitute a 'gateway issue.' He wants Chutkan to make a decision on that before getting into other evidence that prosecutors have gathered. 

'If you decide this issue, then all of that briefing never takes place,' he said.

Prosecutor Thomas Windom argued for the judge to choose the 'most efficient and practical way forward,' while arguing that even if the Pence material falls away it would not blow up the case. 'It is not an automatic dismissal of the indictment,' he said.

Chutkan also decided she will let Lauro file a motion arguing that Smiths's appointment was unconstitutional.

But she expressed skepticism – noting it was a based on a concurring opinion by Supreme Court Justice Clarence Thomas and a ruling by 'another judge' in Florida on the same issue in the classified documents case.

She asked why that would warrant 'me going against binding D.C. Circuit precedent,' and said she didn't find the argument particularly 'persuasive.' 

Chutkan has been presiding over the January 6 case and was keeping it on a fast track until the Trump team upended the timeline by going to the Supreme Court with their claims of presidential immunity from prosecution.

The high court's July opinion set it to lower courts to weigh which actions fall within the 'official' acts that enjoy absolute immunity protections.

At one point the judge said the Trump team's proposed timeline could drag the case out through next year, and noted that it has already been on her docket for a year. She showed an interest in handling various challenges that the Trump lawyers want to bring simultaneously.

'We can all walk and chew gum at the same time,' Chutkan said.

Smith refashioned a superseding indictment that jettisoned a key part of the narrative – Trump's alleged use of top Justice Department officials to interfere in the state vote count. But he kept the four main charges that Trump interfered in the 2020 elections in an attempt to stay in office. 

The lawyers still must argue whether the new version complies with the Supreme Court's direction. 

Defense lawyers are readying still more motions to dismiss the case outright, including that Trump is subject to a 'selective vindictive prosecution.'

Among the challenges Trump's team signalled they would file is one claiming that Smith's appointment was unconstitutional. That argument held sway with Trump-appointed Judge Aileen Cannon, who is overseeing the classified documents case in Florida. She dismissed the case, although Smith's team is appealing and an outside watchdog group is seeking to remove her from the case.

Trump, who did not appear in court, is charged with conspiracy to defraud the U.S., conspiracy to obstruct an official proceeding when Congress met to count the electoral votes for president, and a conspiracy against people's rights to have their votes counted.

His lawyer issued his not guilty plea in court. 

The new indictment says the 'Despite having lost, the Defendant – who was also the incumbent president – was determined to remain in power.'

It cast the conduct as personal, and says he 'sought to enlist the Vice President to assist in the plan to use his role as President of the Senate to fraudulently alter the election results. The Defendant had no official responsibilities related to the certification proceeding, but he did have a personal interest as a canddiate in being named the winner of the election.'