Left: Donald Trump (AP Photo/Seth Wenig, POOL). Right: U.S. District Judge Tanya S. Chutkan (U.S. District Court for the District of Columbia).
After blowing past a 5 p.m. deadline on Thursday, the defense for Donald Trump late filed, without the objection of special counsel Jack Smith, documents supporting pending motions on the “scope of the prosecution team” and discovery requests on issues as wide-ranging as the SolarWinds hack of 2020, “FISA abuses,” and whether government “operatives” were present on Jan. 6. The lawyers maintain that the Jan. 6 case should be “promptly” thrown out as a consequence of the Supreme Court immunity decision in Trump v. United States and the special counsel’s “stubborn reliance” on details about Trump’s communications with then Vice President Mike Pence in the superseding indictment.
Trump lawyers and prosecutors recently wrangled in U.S. District Judge Tanya Chutkan’s courtroom on how best to proceed with the case that Smith tailored to emphasize the defendant’s alleged private conduct as a candidate to overturn his 2020 election loss. While the judge was clear that she was not at all “concerned” about scheduling deadlines in the lead-up to the “not relevant” 2024 election, Trump attorney John Lauro immediately asserted that protecting the “integrity” of the “upcoming election” was one of several reasons the case should be thrown out.
Among the others? That the “false and exaggerated allegations relating to” Pence render the revised indictment “void ab initio,” a fancy way of saying “doomed from the get-go.”
“This case should be dismissed. Promptly. That is the only just course of action consistent with (1) the Supreme Court’s decision in Trump v. United States; (2) the critically important institutional interests that support the Presidential immunity doctrine; and (3) the stubborn reliance by the Special Counsel’s Office on allegations relating to Vice President Pence that are, at least, presumptively immune,” Lauro said. “Dismissal is required to protect the integrity of the Presidency and the upcoming election, as well as the Constitutional rights of President Trump and the American people. There are also ongoing discovery violations in this case that implicate Presidential immunity and other strong defenses, including the Office’s failure to produce exculpatory evidence concerning the flaws with this prosecution and the Office’s false allegations.”
When the Supreme Court ruled in Trump v. United States and walled off his conversations with DOJ officials, the justices did note that it would be up to prosecutors to file documents rebutting the “presumption of immunity” and up to Chutkan to rule whether allowing Trump’s conversations ahead of Jan. 6 with Pence into evidence will “pose any dangers of intrusion on the authority and functions of the Executive Branch.”
The defense said that Smith clearly “cannot meet its burden of rebutting the presumption” of immunity, but before the special counsel even attempts to make that case, the judge must put immunity briefing on the back-burner and rule first on their myriad discovery requests. At least one of those requests relates to Pence, but not for the reason you might expect.
Trump’s team argued that they are entitled to documents about the “classified-information mishandling” investigation into Pence for witness impeachment purposes.
“If Vice President Pence committed crimes that DOJ elected not to prosecute for discretionary reasons, that benefit must be disclosed,” the reply said. “This is one of the ‘certain situations’ where ‘external facts’ support a ‘specific bias, or motive to testify in a particular way’ that is ‘admissible to impeach a witness.””
Another stated area of interest for the defense is getting an answer from prosecutors on whether there were “government agents present at the U.S. Capitol on January 6[.]”
One straightforward reply to President Trump’s demand for disclosures relating to government agents present at the U.S. Capitol on January 6 would be to explain, if true, that there are no responsive materials. The Special Counsel’s Office did not do so,” the filing said, claiming that if there were “operatives” that would “mitigate the charged offense(s)” and “cast doubt on the credibility [and] accuracy” of Jack Smith’s evidence.
The defense further claimed that discovery on the SolarWinds hack was relevant and “necessary” to buttress Trump’s “good-faith doubts” about election security.
Read the filing here.
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