Left: Former President Donald Trump speaks during a break in his civil business fraud trial at New York Supreme Court, Wednesday, Oct. 25, 2023, in New York (AP Photo: Seth Wenig). Right: Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at an office of the Department of Justice in Washington (AP Photo: J. Scott Applewhite).
Special counsel Jack Smith secured a significant victory on Tuesday as the judge overseeing the Jan. 6 case against former President Donald Trump gave the government the go-ahead to file a so-called “oversized brief” on issues related to presidential immunity.
In a 6-page opinion and order, U.S. District Judge Tanya Chutkan allowed the prosecution to file an opening brief of up to 180 pages. This allowance gives Smith’s team exactly four times the typical amount of space allocated to opening briefs under local court rules in Washington, D.C. Typically, opening briefs are limited to 45 pages.
The court’s decision comes as a marked setback to the 45th president. On Monday, Trump’s lawyers castigated the idea of Smith filing such a large brief as a “monstrosity” and “unnecessary tome” as well as part of an “approach” that “is fundamentally unfair.”
Chutkan dismissed Trump’s concerns as off-base and, in any event, inappropriately pleaded by the ex-president’s defense.
“For the second time in a week, Defendant urges reconsideration of the current pretrial schedule in a brief intended to respond to a separate issue, and without actually filing a motion to that effect,” the order reads.
The court goes on to criticize the thoroughness of the complaint — using italics to say that Trump’s “argument against the requested page limit expansion comprises a single statement.”
“The rest of the nine-page opposition rehashes Defendant’s position that immunity briefing should not begin until he files a motion to dismiss several months from now,” the order goes on. “The court has already addressed the scheduling objections Defendant raised when he was given an opportunity to do.”
Trump’s motion does, in fact, contain several references to the government’s since-granted page number issue. The majority of the document, however, argues that the special counsel’s motion will cause irreparable harm to Trump by tainting the jury pool and potential witnesses — and by negatively influencing the general public in the days and weeks before the upcoming general election.
Trump’s failed motion, while premised on the page number concerns, was largely an effort to put a lid on Smith’s opening brief entirely.
Chutkan takes stock of those concerns by noting that everyone in the case — the court itself included — is operating in new territory after the Supreme Court created the concept of presidential immunity for criminal acts in the landmark case of Trump v. United States.
“In remanding this case, the Supreme Court directed this court to conduct a ‘close’ and ‘fact specific’ analysis ‘of the indictment’s extensive and interrelated allegations,”” the judge writes. “It anticipated that the analysis would require briefing on how to characterize ‘numerous alleged interactions with a wide variety of state officials and private persons,’ and supplementing other allegations with ‘content, form, and context’ not contained in the indictment itself.”
Still, since the outset of the remand to the lower court, the defense has complained about the way Smith’s team has played ball. The latest complaint re-litigates the “unprecedented and irregular nature” the special counsel’s office has taken in response to the high court’s remand on presidential immunity.
Chutkan appears to directly address this line of thought:
Having the Government file an opening immunity brief reflects the remand’s unusual procedural posture, where the court has been directed to accept party submissions on and make specific determinations about the nature of the allegations, which the Government modified in the Superseding Indictment. The length and breadth of the Government’s proposed brief reflects the uniquely “challenging” and factbound nature of those determinations. The briefs’ atypical sequence and size thus both serve the efficient resolution of immunity issues in this case “at the earliest possible stage.” That is reason enough to grant the present motion.
Trump also objected to Smith being allowed to “litter the docket sheet” before “dispositive threshold legal questions” in this summer’s presidential immunity ruling are identified and resolved.
Chutkan has no patience for this argument from the defense. She explains that the motions practice before the court — from Smith and Trump — is exactly how those questions are being dealt with.
Again, the court, at length:
As for the other two “threshold” questions, both necessarily require the very briefing that the court has ordered. In ascertaining whether any charged conduct qualifies for immunity — absolute or otherwise — the court must first determine that it “qualifies as official.” Similarly, the immunity determination for allegations regarding former Vice President Pence requires “appropriate input from the parties” about “the circumstances” of the conduct alleged, along with the potential consequences of prosecuting it “on the authority and functions of the Executive Branch.” Trying to resolve those issues before the scheduled immunity briefing would put the cart before the horse. The incoherence of Defendant’s demand to do so is revealed by his accusations that the current briefing schedule is somehow both “the type of ‘highly expedited’ proceedings . . . that the Supreme Court has already criticized” and “the type of improper ‘extended proceeding’ that the Supreme Court forb[ade].” In reality, the schedule reflects the court’s best judgment about how to comply efficiently with the Supreme Court’s instructions on remand.
Smith’s brief will likely be filed sometime on Tuesday. In his motion, the prosecutor asked for the court to set a same-day deadline of 5 p.m. EST for the defense to file their response. Chutkan did not address that timeline request in her opinion and order.
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