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| Judge Tanya Chutkan (AP) |
Special Counsel Jack Smith earned a victory yesterday in his election-interference case against former President and 2024 Republican nominee Donald Trump, according to a report at The Guardian. An important point to keep in mind: The unusual nature of the filing, and the secrecy surrounding it, could mean the document includes revelations about Vladimir Putin, Russia, and Donald Trump. We already know the filing includes classified documents. (See link in the 12th paragraph below, which begins "What issues could be at stake . . . ?)
Under the headline "Special counsel can file oversized motion in Trump election-interference case; Judge Tanya Chutkan grants Jack Smith’s request to file 180-page motion on presidential immunity in federal case," The Guardian's Victoria Bekiempis writes:
Special counsel Jack Smith can file an oversized, 180-page motion on presidential immunity in Donald Trump’s Washington DC federal court election interference case, a judge ruled Tuesday.
Judge Tanya S Chutkan’s decision stems from prosecutors’ 21 September request to exceed the typical 45-page limit for opening motions and oppositions. Smith’s motion must be filed by Thursday and will include both legal arguments and evidence and could provide additional insight into Trump’s efforts to throw out election results, though it is unclear when the public might be able to see the material given that it will initially be filed under seal.
Trump faces four felony counts over his effort to subvert the 2020 election, though a July US Supreme Court ruling on presidential immunity threw the case into near disarray.
Why do prosecutors need the extra space? It appears that is because they intend to include a detailed discussion of immunity issues, along with a section on pled and unpled facts. Biekiempis writes:
The Supreme Ccourt held that Trump and other presidents enjoy immunity for official acts, but not unofficial ones, undermining charges related to his alleged pressure campaign on U.S. Justice Department officials.
The Supreme Court remanded the case back to Chutkan, who must decide which claims in Smith’s case are official acts, and which are not official. Smith filed a new indictment against Trump in August, which does not dramatically change this criminal case, but revamps some parts to stress that Trump was not acting in an official capacity in his attempt to overturn election results.
Prosecutors proposed in a 5 September hearing that they should file a brief on the immunity issue with “a comprehensive discussion and description of both pled and unpled facts … so that all parties and the court know the issues that the court needs to consider in order to make its fact-bound determinations that the Supreme Court has required”.
In green-lighting prosecutors’ request to file an unusually sizeable motion, Chutkan noted the Supreme Court’s direction that she needs to engage in a “close” and “fact-specific” examination of this indictment and related accusations.
“The length and breadth of the Government’s proposed brief reflects the uniquely ‘challenging’ and fact-bound nature of these determinations,” the judge said in her ruling. “The briefs’ atypical sequence and size thus both serve the efficient resolution of immunity issues in this case ‘at the earliest possible stage.’”
What issues could be at stake in the prosecution's document? In a 9/9/24 post here at Legal Schnauzer, under the headline "Jan. 6 case in D.C. takes a twist as Jack Smith files a super-secret document that might hold answers to questions about ties between Putin, Russia, and Trump,"we addressed a number of issues that could be raised:
Special Counsel Jack Smith has filed a mysterious, sealed document in the Washington, D.C.-based election-interference case against Donald Trump . What could it mean? That's impossible to say at the moment, but let's consider these factors:
(1) The Smith filing came the same day that the Biden Administration announced it has developed a plan to thwart alleged efforts by Russia and President Vladimir Putin to meddle in the U.S. 2024 presidential election;
(2) Smith filed his documents in the same court, before the same judge (Tanya Chutkin), who is overseeing the case involving Trump's actions on Jan. 6, 2021;
(3) Putin tried to laugh off the meddling allegations by claiming he was "endorsing" Democrat Kamala Harris over Trump. But U.S.-based news organizations did not seem to be falling for that -- as they described his Harris endorsement as made "teasingly" (AP), "grinning" (CBS), and "smirking" (Newsweek)
How did such a peculiar set of circumstances come to pass? Newsweek provides details about Putin's unconvincing reaction under the headline "Smirking Putin Says He Supports Kamala Harris and Her 'Infectious Laugh'." Newsweek examines more serious aspects of the story, under the headline "Jack Smith Files Mystery Sealed Document in Donald Trump Case, as Flynn Nicholls writes:
In a new twist for the federal election-interference case against former President Donald Trump, special counsel Jack Smith has submitted a mystery document, hidden from the public and Trump's lawyers.
The filing was made in the U.S. District Court for the District of Columbia, where Judge Tanya Chutkan is overseeing the case.
A Wednesday court notice shows that Smith filed a document titled "Government's Classified, Ex Parte, In Camera, and Under Seal Notice Regarding Classified Discovery,"That is a formal way of saying the Department of Justice (DOJ) has submitted a confidential document that contains classified information in the case.
What is known at the moment about the Smith filing is certainly baffling. But Nicholls provides a handy breakdown that does provide some clarity:
- Classified: The document includes sensitive or secret information that is restricted from public access for security reasons.
- Ex Parte: This means the document was submitted by the government without notifying the defense. Only Chutkan is informed, and the defense does not get to see it.
- In Camera: Chutkan will review this document privately, without the presence of either party's lawyers.
- Under Seal: The document is kept completely confidential—it cannot be accessed by the public or other parties involved in the case.
Smith's team is prosecuting Trump on charges related to his alleged efforts to interfere with the results of the 2020 presidential election.
This latest development comes just days after Chutkan granted Trump's request to waive his presence at an upcoming arraignment following a new indictment in the case.
The indictment comes after the July ruling by the Supreme Court that refined the boundaries of presidential immunity, leading to Smith revising the original indictment against Trump.
The revised indictment narrows its focus to Trump's actions as a private citizen, rather than official acts performed during his presidency. Trump, who has repeatedly denied wrongdoing and described the prosecutions against him as politically motivated, faces four counts of criminal charges for allegedly attempting to undermine the legitimate results of the 2020 election, including in his alleged involvement in the January 6, 2021, Capitol riot.
On Thursday, Trump, who was not in court, entered a not guilty plea to the revised charges through his team of lawyers. Chutkan will be setting a court timetable for the new charges to progress to trial.
MSNBC contributor Adam Klasfeld, who is in the court room, reported that Chutkan shut down Trump lawyer John F. Lauro, who was arguing that a too-hasty timetable would interfere with November's presidential election.
"We're talking about the presidency of the United States," Lauro said.
"I'm not talking about the presidency of the United States," Chutkan replied. "I'm talking about a four-count criminal indictment.
Trump's defense team was not happy with the favorable ruling for prosecutors. From The Independent report:
Trump’s legal team had fought prosecutors’ request to file a lengthier brief, complaining that it would “quadruple the standard page limits” in the district. They also unsuccessfully opposed Smith’s filing of this brief now, and argued that immunity arguments shouldn’t take place until Trump files a motion to dismiss the case.
Prosecutors said in court filings that they are poised to file their briefing under seal, given the “substantial amount of sensitive material” and later file a public version that has redactions.
Most legal experts do not expect a full trial to take place before the Nov. 5 election. But Chutkan still could hold a "mini trial," which might reveal damaging information regarding the former president. From a 9/5/24 report at Politico:
Special counsel Jack Smith and Donald Trump will be trading high-stakes legal filings — some potentially jammed with new and explosive evidence related to Trump’s effort to subvert the 2020 election — in the weeks leading up to Election Day.
A federal judge has given the special counsel’s team until Sept. 26 to detail what his team says will be a “comprehensive” slate of evidence detailing Trump’s alleged conspiracies to subvert the 2020 election.
Now that the Supreme Court has returned the case to the trial court, U.S. District Judge Tanya Chutkan released a schedule Thursday for next steps. She largely agreed with a proposal a lawyer from Smith’s office laid out earlier in the day to have prosecutors kick off the next round of proceedings by making a detailed submission about what proof they want to present of Trump’s guilt if the case goes to trial.
Chutkan described Smith’s submission as an “opening brief” intended to support his argument that Trump is not immune from the criminal charges, despite the Supreme Court’s recent ruling on the matter. Trump’s response to that brief will be due Oct. 17, and his lawyers similarly promised to pack it full of new information drawn from secret grand jury transcripts and other unreleased documents.
Smith will have the opportunity for a final reply on the presidential immunity issue Oct. 29 — one week before Election Day.
The prospect of damaging new information related to Trump’s effort to subvert the previous presidential election emerging in the closing days of the 2024 race adds a new, unpredictable element to the campaign’s final stretch — the definition of an October surprise. But it’s not yet clear how much of the filings the public will see: Chutkan could order redactions to some of the sensitive information that Smith or Trump seek to include in their briefs. But any revelations are likely to draw significant attention just as millions of voters are casting early ballots.
One silver lining for Trump in the schedule is that it seems exceedingly unlikely to result in any other public hearings in the case before Election Day. In Chutkan’s order Thursday, the Obama appointee did not indicate whether she plans to have such a hearing or will rule based solely on the legal briefs and exhibits. But the deadlines for the briefs suggest that any potential hearing would occur after Election Day.
The revised schedule also underscores the impossibility of a trial taking place until well into 2025. Chutkan and lawyers for both sides agreed that her ruling on immunity issues would result in an appeal that would again likely freeze the case for months. Chutkan said at a hearing earlier Thursday that trying to set a trial date under those circumstances would be “an exercise in futility.”
During the hearing, Trump attorney John Lauro called the prospect of such filings amid the final weeks of the election deeply unfair. And Trump’s team warned that if the judge allows the prosecution to air previously unseen evidence, they will demand the opportunity to do the same with revelations that they claim would help exonerate the former president.
Chutkan rejected Lauro’s complaints, insisting that she would not tether her efforts to advance the case to the political calendar.
Indeed, her new schedule includes several other deadlines that will brush up against Election Day and beyond. For example, Chutkan is also setting an Oct. 24 deadline for Trump to challenge the validity of Smith’s appointment, with a response from Smith by Oct. 31 and a reply from Trump’s team by Nov. 7.
The timing of events and deadlines in the case is being closely watched not only for its potential impact on the current presidential contest but also because if Trump wins the race he will likely be able to shut down the case — or the Justice Department will drop it under longstanding policy barring federal prosecution of sitting presidents.
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