Inset left: Special Counsel Jack Smith (AP Photo/J. Scott Applewhite, File). Inset right: U.S. District Judge Tanya Chutkan (Administrative Office of the U.S. Courts via AP, File). Background: Former President Donald Trump motions as he returns to the courtroom after a break in his civil business fraud trial at New York Supreme Court, Wednesday, Oct. 25, 2023, in New York (AP Photo/Seth Wenig).
Special counsel Jack Smith, with a bit of help from a federal judge, on Friday managed to preview the contents of his opening brief on presidential immunity in the Jan. 6 case against Donald Trump.
As Law&Crime previously reported, the massive opening brief — which likely clocks in at around 180 pages inclusive of footnotes — was filed under seal due to the presence of sensitive materials. Along with the full brief, the prosecution also filed a slightly-redacted version.
The redacted version of the brief is intended for public consumption. Some form of the brief will eventually be placed on the public docket. A scheduling order issued by Obama-appointed U.S. District Judge Tanya Chutkan on Friday suggested the censored version would likely be made available to the public around mid to late October.
Also on Friday, Chutkan directed her clerk to unseal one of Smith’s filings that offers detailed summaries of what the opening brief contains — and what is blacked out with redaction boxes.
“In the proposed redacted Motion, the Government has redacted the names of individuals (aside from those whose names appear publicly in the superseding indictment, such as the defendant and Vice President Michael R. Pence),” the prosecution’s motion for leave to file reads. “In the Motion’s text, the Government has not redacted quotations or summaries of information from Sensitive Materials, but in the footnotes has redacted citations that reveal the non-public sources of such information, including grand jury transcripts, interview reports, or material obtained through sealed search warrants.”
The government highlights even more details about what is contained in several exhibits that make up the appendix to the motion,
“In the proposed redacted Appendix, the Government has redacted non-public Sensitive Materials in their entirety,” the motion goes on. “And the Government also has proposed limited redactions to some publicly-available materials, such as the defendant’s Tweets, when such material identifies or targets an individual who — because of their status as a potential witness or involvement in underlying events — may be susceptible to threats or harassment, or may otherwise suffer a chilling effect on their trial testimony.”
While the posture of the document made available by Chutkan necessarily argues in favor of the extant redactions, the major thrust of Smith’s argument is that the limits already in place are sufficient.
“[T]he Government’s proposed, limited sealing of its Motion and Appendix is warranted,” the motion for leave argues.
In other words, the government is in the unusual position of arguing for fewer redactions. Meanwhile, Trump’s attorneys will likely be the ones to suggest and request additional redactions.
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.
“The Supreme Court’s remand in Trump requires the Court to evaluate the content, form, and context of the defendant’s conduct and statements in order to make factbound immunity determinations,” Smith argues. “[H]ere the content of statements made by others (both the defendant and other parties) is central to the Court’s factbound analysis of the immunity issues on remand.”
This, Smith notes, is almost a complete inversion of the situation in the Mar-a-Lago documents case he prosecuted against the 45th president in the Southern District of Florida.
A footnote explains, at length:
The procedural posture and legal standard here are different than in United States v. Trump, (S.D. Fla.), in which the issue of sealing and redactions arose in connection with the defendant’s motion to compel discovery. Under binding circuit precedent in that case, documents filed in connection with discovery claims were appropriately sealed upon a showing of good cause a standard that readily encompassed witnesses’ identifying information and the content of their statements. Here, by contrast, in light of the importance of content of statements to the immunity analysis, “specific reasons” do not support maintaining the content of statements under seal. Despite the different posture and legal standard in the Southern District of Florida case, the Court there ultimately decided to redact names and identifying information but not the substance of witness statements.
In other words, Smith aims to make public the “content of statements” made by witnesses relevant to the Jan. 6 case.
Such witness statements, oppositely, will almost certainly be a point of contention in the sealed reply filed by the defense.
Under the terms of the scheduling order, Trump has until Oct. 1 to file “under seal any objections to the proposed redactions in the Government’s Motion for Immunity Determinations.” Trump will then have until Oct. 10 to file “under seal any objections to the proposed redactions in the Appendix to that Motion.”
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