Left: Jack Smith: (AP Photo/Jacquelyn Martin). Right: Donald Trump (AP Photo/Craig Ruttle, Pool)
The special counsel is now scheduled to file a presidential immunity brief in Donald Trump’s Jan. 6 prosecution in late September, kicking off a series of back-and-forths on track to drag out until weeks before the 2024 election and which threaten to expose juicy details, whether in the form of exhibits or grand jury transcripts. Also into late October, Trump will have a chance to convince the judge that Jack Smith was unlawfully appointed as special counsel and that the judge in the Mar-a-Lago case was right to dismiss the classified documents case on that ground.
U.S. District Judge Tanya Chutkan heard from Smith’s team and Trump’s defense on Thursday as the Washington, D.C., as she considered how best to proceed now that the Supreme Court has issued its immunity decision and now that the special counsel has obtained a superseding indictment on the same conspiracy charges while at the same tailoring it to comply with Trump v. United States, placing specific emphasis on the defendant’s alleged private conduct as a candidate to overturn his 2020 election loss, culminating in Jan. 6 — not his status as a president using the DOJ to legitimize “sham” claims of a stolen election to try and stay in power.
During the hearing, Chutkan, a Barack Obama appointee, made clear that was not at all “concerned” about scheduling deadlines in the lead-up to the “not relevant” 2024 election, which Trump attorney John Lauro objected to on the basis that the government’s immunity brief laying out their case against his client will fill the “public record at this very sensitive time in our nation’s history” — that is, election season — with details that “basically load up on what they think this case is about.”
When the Supreme Court ruled in Trump v. United States and walled off his conversations with DOJ officials, the justices did note that it would be up to prosecutors to file documents rebutting the “presumption of immunity” and up to Chutkan to rule whether allowing Trump’s conversations ahead of Jan. 6 with then Vice President Mike Pence into evidence will “pose any dangers of intrusion on the authority and functions of the Executive Branch.”
Politico reported that prosecutor Thomas Windom, for example, forecast that a “substantial number of exhibits” and grand jury transcripts may be filed to buttress the government’s immunity-focused brief, but he left open the possibility that Chutkan might decide to seal some of the details. Trump’s defense, for its part, suggested it might also reveal new details.
While it’s unclear at this point what will be sealed, if anything, it is clear that there will be public filings and some of them will be dropping mere weeks before the election. The same can be said for additional arguments about whether Smith was unlawfully appointed by U.S. Attorney General Merrick Garland as special counsel.
In an order following the hearing, the judge told prosecutors to file their immunity brief by Sept. 26 and Trump to respond on Oct. 17. Then, on Oct. 29, six days before the election, Smith can file his reply.
During the hearing, Lauro also said the defense wants to renew its challenge of “illegitimate prosecutor” Smith’s authority and his funding, alluding to U.S. District Judge Aileen Cannon’s Justice Clarence Thomas-inspired dismissal of Trump’s Mar-a-Lago case in July.
Chutkan remarked that she “frankly” didn’t “find” the Trump-appointed judge’s opinion “particularly persuasive” as an authority (since the dismissal being appealed in the 11th Circuit was an outlier out of step with D.C. Circuit precedent), but she nonetheless gave the defense a chance to convince her — and now we have a better idea of when.
In addition, Trump can seek Chutkan’s leave to toss the case on Appointments Clause and Appropriations Clause grounds on Oct. 24, Smith will have to respond on Halloween, and then Trump is set to reply on Nov. 7, two days after Election Day.
Have a tip we should know? [email protected]
