Left: Special counsel Jack Smith turns from the podium after speaking about an indictment of former President Donald Trump (AP Photo/Jacquelyn Martin). Center: FILE — This undated photo provided by the Administrative Office of the U.S. Courts shows U.S. District Judge Tanya Chutkan (Administrative Office of the U.S. Courts via AP, File). Right: Trump stands on stage at the Libertarian National Convention in May 2024 (AP Photo/Jose Luis Magana).
The judge overseeing the Jan. 6 case against Donald Trump on Friday rejected efforts by the media to shed light on key details from special counsel Jack Smith’s recent filings on presidential immunity.
On Oct. 1, a press coalition of 21 media organizations filed a new case in federal court asking U.S. District Judge Tanya Chutkan to “immediately unseal” the redacted version of the government’s opening brief and an accompanying appendix. Additionally, the press coalition asked the judge to “as promptly as possible further unseal those filings with only those redactions that are both essential to preserve higher values and narrowly tailored to serve that interest.”
On Oct. 2, the court unsealed the redacted version of Smith’s immunity motion. The appendix is likely to be released sometime around mid-October, based on a late September court order.
In her Friday order, Chutkan said the press coalition’s demand was “largely moot” because the redacted immunity motion has since been released, and the appendix is in the process of being released. The Obama-appointed judge denied the rest of the requested relief.
To hear the media plaintiffs tell it, their efforts are intended “to pursue maximum transparency into one of the most consequential judicial records in one of the most closely watched criminal cases in our nation’s history,” namely, the ongoing criminal case against the 45th president on “charges of subverting the electoral process.”
In their original filing, attorneys for the press coalition said they spoke with both government and defense attorneys beforehand to gauge their respective support, opposition, or neutrality to further transparency in the matter. The government directed the media plaintiffs back to their prior public filings in the case, they said. Meanwhile, Trump’s attorneys said their client “takes no position.”
In the actual criminal case, however, Trump has strongly pushed back against publicizing the contents of Smith’s latest immunity-related submissions — particularly what they term “sensitive witness statements.” The former president’s attorneys have repeatedly accused the special counsel of trying to exact political damage with such court filings; Chutkan has repeatedly rejected those qualms and concerns as not legally important one way or another.
While Trump’s political complaints about the immunity brief did not much inure to his benefit, the court is still considering arguments over redactions in the appendix. To be clear: Smith wants redactions minimized, while Trump wants less information to come out.
More Law&Crime coverage: ‘Enormous undertaking’: Trump demands ‘equal opportunity’ to fire back at Jack Smith’s massive immunity brief but not before the election has come and gone
In the recent vintage press coalition lawsuit, the media plaintiffs want both of the government’s original filings released as-is and then released again, in short order, with even fewer redactions.
One problem the press coalition has with the government’s filing is that Smith redacted “the names of individuals” other than those who are listed “publicly in the superseding indictment.”
“Many of those individuals may already be identified in public reporting and official records, including the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol and the Indictment in State of Georgia v. Trump,” the press coalition argues.
For what it’s worth, this argument more or less rings true.
For example, the motion references pro-Trump attorney Sidney Powell and right-wing media figure Tucker Carlson — as well as one of Carlson’s broadcasts about Powell — but none of that information is explicitly stated in the redacted immunity motion.
This, the press coalition says, not only is nonsensical but does not comport with the “powerful First Amendment right of access.”
“Thus, although the government may be able to justify withholding some names, when disclosing a name would only ‘confirm to the public what was already validated by an official source,’ the First Amendment compels its disclosure,” the media plaintiffs argued. “[T]he government’s proposed redactions do not provide even the bare minimum of disclosure required under the common law, let alone the greater degree of access required under the First Amendment.”
Ultimately, the press coalition sought to obtain more revealing copies of the government’s filings “with only those redactions that pass the First Amendment right of access test,” according to their motion.
Chutkan was not moved by this argument. In fact, she said her unsealing order already was in line with the First Amendment.
“In ruling on the Government’s proposed redactions to its Motion, the court explained that they were consistent with both the common-law and First Amendment rights of public access to judicial proceedings,” the Friday order reads. “The court incorporated that explanation in approving the corresponding redactions in the Motion’s Appendix. Applicants’ reliance here on the First Amendment is therefore unavailing; it does not compel unsealing any of the redactions that the court has approved.”
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