Left: Special counsel Jack Smith turns from the podium after speaking about an indictment of former President Donald Trump (AP Photo/Jacquelyn Martin). Right: Trump stands on stage at the Libertarian National Convention in May 2024 (AP Photo/Jose Luis Magana).
Special counsel Jack Smith spent more than a dozen pages on Tuesday slamming Donald Trump’s defense for “improper efforts to seek dismissal” of his Jan. 6 prosecution, claiming that a “deficient” filing loaded with discovery requests “irrelevant” to the immunity question before the court could set the stage for a “frivolous interlocutory appeal.”
Two weeks ago, the former president’s lawyers sought discovery on anything from the SolarWinds hack of 2020, to “FISA abuses,” to “security requests and the timing of the National Guard’s deployment on January 6,” and whether government “operatives” were present that day. At the same time, the defense asserted that U.S. District Judge Tanya Chutkan should “promptly” throw out the prosecution as a consequence of the Supreme Court immunity decision in Trump v. United States and Smith’s “stubborn reliance” on details about Trump’s communications with then Vice President Mike Pence in the superseding indictment.
While the defense has strenuously opposed the the schedule for filing an immunity brief and appendix spanning some 180 pages and containing “sensitive witness statements” ahead of the 2024 election, Smith has responded by defending his office against “false” allegations that he is “motivated by improper political considerations” and by doubling down on his insistence that “public access” makes it appropriate to identify certain witnesses by their “titles and positions,” just like in the indictment:
The Government’s proposed redaction of the names only, however, is consistent with the approach taken in the superseding indictment and, in the Government’s view after assessing the Hubbard factors, is sufficient to protect witnesses from harassment while permitting an appropriate degree of public access. See, e.g., ECF No. 226 ¶¶ 9, 18-19, 24-26, 29, 32, 36 (not naming but providing information about co-conspirators and witnesses, including titles such as “Campaign Manager,” “Arizona’s Governor,” “Arizona House Speaker,” “Senior Campaign Advisor,” “executive assistant,” “the Defendant’s Chief of Staff,” “Georgia Attorney General,” “Georgia Governor and Secretary of State,” “Chairwoman of the Republican National Committee,” “Michigan House Speaker and Michigan Senate Majority Leader,’ and “Senior Advisor”).
That aside, Smith separately wrote that many of Trump’s discovery demands are “non-immunity-based” and, therefore, are “irrelevant” to the task at hand. The government said it has otherwise “long ago produced” other documents “even though much of it was arguably not discoverable.”
“Similarly, the defendant makes a generalized request for national security information like the 2016 and 2020 Election Intelligence Community Assessments, and new arguments regarding SolarWinds, (both of which the Government addresses further in its classified supplement), and he again demands information related to requests for security at the Capitol on January 6,” the special counsel said. “Here too the Government already provided to the defendant all discoverable materials in its possession on these issues. But in addition, as is clear from the superseding indictment and the Government’s factual proffer, none of these materials is relevant to any defense to the evidence of the defendant’s private conduct that the Government will present at trial, or to the Court’s consideration of context as it makes its immunity determinations.”
Smith, teasing a “voluminous Appendix” filled with “interview transcripts and reports, PDDs, emails and text messages, and other relevant records that the defendant has long possessed,” went on to describe the defense’s “immunity-related” discovery requests to date as both “deficient” and a potential precursor to a “frivolous” appeal. To avoid that, he asked Chutkan to “direct” the defense to “perfect” their demands before the judge rules.
“Given the history of this litigation, the defendant’s repeated efforts to resist the Court’s schedule for addressing immunity issues, and his implied preference for successive, inefficient rounds of appellate review, see ECF No. 242 at 4 (claiming that a schedule that leads to only one additional interlocutory appeal is ‘extralegal’), the defendant may attempt to use any interim denial of his deficient immunity-related discovery demands as the basis for a frivolous interlocutory appeal (an appeal that the Government would contest),” the special counsel concluded. “The Court should thus refrain from entering an order denying the defendant’s frivolous immunity-related discovery demands at this time and should instead direct him to perfect them, as part of the Court’s ongoing process of addressing all immunity-related issues.”
Read the latest filings here and here.
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