Left: Jack Smith: (AP Photo/Jacquelyn Martin). Right: Donald Trump (AP Photo/Craig Ruttle, Pool).
After special counsel Jack Smith sought the go-ahead of Donald Trump’s Jan. 6 judge to file a massive immunity brief up to 180 pages in length, Trump’s defense has slammed the proposed “monstrosity” as an “unnecessary tome” and “false hit piece” that would impact the 2024 election if it is allowed.
The Jan. 6 case was on hold for several months, not really restarting until August, just over a month after the Supreme Court’s immunity ruling in Trump v. United States.
In that ruling, the high court said prosecutors would have to rebut the “presumption of immunity” in U.S. District Judge Tanya Chutkan’s court surrounding Trump’s conversations ahead of Jan. 6 with then Vice President Mike Pence.
“We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch,” the opinion said.
While the special counsel has forecast a lengthy filing including a “substantial number of exhibits,” and while the judge has expressed no concerns about the nearness of the 2024 election, Trump’s defense attorneys have slammed the approach as “unprecedented and irregular” in nature, “fundamentally unfair” in light of still unresolved wide-ranging discovery disputes, and much too close to the election.
Mocking Smith’s characterization of the document as “great assistance” to Chutkan, Trump’s team asserted that the “monstrosity,” “180-page false hit piece,” and “unnecessary tome” should take a back seat to their overarching claim — that immunity “requires dismissal of the entire case.”
“The Court may not ‘adjudicate’ superfluous Presidential immunity issues, including by allowing the Office to file this monstrosity, if President Trump can establish at the outset that immunity requires dismissal of the entire case,” the filing said. “The Office wants desperately to bar President Trump from the opportunity to make that showing so that they can improperly air their biased list of grievances.”
Beyond that, the defense repeated its DOJ “60-day rule” complaint and claimed that prosecutors are trying to taint the “dialogue around the election” even as Trump is gagged.
“Circumstances have changed drastically: President Trump is the leading candidate in the Presidential election, which is just weeks away,” the defense continued. “The Office cannot be permitted to issue a massive and misleading public statement that is not responsive to a defense motion, and risks adverse impacts to the integrity of these proceedings, while simultaneously insisting on an unconstitutional prior restraint on President Trump’s ability to respond to their inaccurate assertions while he is campaigning.”
To that end, the defense turned to none other than former FBI Director James Comey on the “60-day rule”:
Former FBI Director Jim Comey: “[W]e avoid taking any action in the run up to an election, if we can avoid it.” DOJ-OIG Report at 17.
The DOJ inspector general report and Comey quote the defense referred to notes that the “60-day rule” is unwritten and relates to revelations of “investigative steps” or indictments (the Jan. 6 case was first indicted in August 2023 and the revised superseding indictment, containing less information than the original indictment to comply with SCOTUS, was filed more than 60 days out from the election).
Read the filing here.
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