Former U.S. Attorney outlines how Trump will seek a 'pass' in upcoming hearing amid superseding indictment

Former President Donald Trump is entering a not guilty plea following a superseding indictment last week related to his efforts to overturn the 2020 presidential election. The plea may be the start of a process in which the former president will seek a pass for his upcoming hearings, a former attorney is arguing.

The new indictment comes from special counsel Jack Smith, who rewrote the federal document after the U.S. Supreme Court ruled this summer that presidents can't be prosecuted for "official acts" taken while president. Smith not only narrowed the allegations against Trump but also removed references to communications between Trump and federal government officials.

The former President is being charged for his efforts to overturn the 2020 presidential elections results. He previously pleaded not guilty to these same charges, which include: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights.

The new indictment puts Smith in a better position to take Trump to trial. But whether the new allegations meet the Supreme Court's recently created test is a question that remains to be seen.

The next major step in this unprecedented legal saga is for the U.S. District Judge Tanya Chutkan applied the vague immunity test to the new indictment. It's unclear what precise form that analysis will take— including whether there will be a hearing in addition to written arguments, or what such a hearing would entail.

Glenn Kirschner, a former U.S. Attorney and NBC News legal analyst, recently explained in "No Holding Back" podcast, hosted by lawyer and author Susan Estrich, how Trump's lawyers are resorting to the recent U.S. Supreme Court ruling to get him a "pass" on his potential trials. He outlined how the controversial new test will prove decisive in the upcoming hearings.

"What Judge Chutkan is still going to have to do is look at this 36-page superseding indictment, and they're going to have to argue over every single act included in it, and every single piece of evidence over and above what's included in the indictment regarding anything Donald Trump did, because they're going to have to decide whether each piece of evidence is official or unofficial, enjoys immunity or doesn't enjoy immunity," Kirschner said.

Kirschner has previously been highly critical of the immunity ruling by the Supreme Court, arguing in an August interview it established that the "Constitution is unconstitutional" and that "presidents can commit all the crimes they want against the American people with complete impunity if they are 'officials acts of the presidency'."

The timeline of this case is another thing that remains unclear and at high-stakes, particularly during an election year. If Vice President Kamala Harris wins her bid for the White House, Trump will likely "spend the rest of his life" in court, Kirschner argued. But if Trump is elected, he could try a legally untested self-pardon or just order his newly installed attorney general to dismantle the case. The Justice Department also has a policy against prosecuting sitting presidents. Presidents can't pardon or dismiss state cases.

If Chutkan rules on the immunity test's application to Trump's new indictment before November, a highly unlikely task, the Supreme Court can still have the last word on whether it thinks the trial judge correctly applies its vague rest, which could further delay the case as the Justices have not shown any rush at ruling on the Trump cases as the election nears.