Left: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).
Special counsel Jack Smith on Thursday filed a massive opening brief addressing presidential immunity issues in the Jan. 6 case against former President Donald Trump.
But substantial portions of that brief may never see the light of day — at least so far as the general public is concerned.
Earlier this week, the prosecutor was given permission to file an “oversized brief” by Obama-appointed U.S. District Judge Tanya Chutkan — frustrating a request by the defense to keep the special counsel confined to the typical 45-page limit under local court rules.
In an order, the court gave the government up to 180 pages to make their case — exactly quadruple the typical limits.
Late Thursday, a spokesperson for the special counsel’s office confirmed that their brief had been filed — but the public docket in the case showed no evidence of that filing. In fact, it’s unlikely to.
“We have complied with the court’s order,” the spokesperson told Politico.
While the legal and political press waited with something not entirely unlike bated breath for the lengthy filing pre-berated by Trump’s attorneys as an “unnecessary tome,” the special counsel’s original request spelled out the request in slightly-decipherable legalese.
From the government’s Monday filing, at length:
For the Court’s awareness, the opening brief and its exhibits contain a substantial amount of Sensitive Material, as defined by the Protective Order. Consistent with the Protective Order, the Government intends to file a motion for leave to file under seal that attaches an unredacted copy of the motion and appendix and proposed redacted versions to be filed later on the public docket at the Court’s direction. Because of the extensive and time-consuming logistics involved in finalizing the brief, appendix, and proposed redacted public versions of the same, the Government respectfully requests the Court’s decision on this motion as soon as practicable.
In other words, Smith’s filing anticipated at least three (and as many as five) different documents — all of which would be filed under seal.
Those documents include: (1) the unredacted brief; (2) the redacted brief; and (3) a motion for leave to file under seal. The inclusion of appendices — unredacted and redacted versions both being anticipated — could bring the total number of documents up to five depending on whether the special counsel files them separately.
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An October 2023 minute order by Chutkan explains why everything is — as of the 5 p.m. Thursday deadline at least — under wraps.
“Going forward, if any party seeks to make a filing under seal, the party shall file a sealed motion for leave to file under seal that attaches (1) an unredacted copy of the filing to be docketed under seal, and (2) a redacted copy of the filing that may be publicly docketed.”
This order means that even Smith’s motion to file the unredacted version on the public docket is currently sealed. As the special counsel’s office previously explained, a protective order controls the release of so-called “Sensitive Materials” used in the case.
Here’s what the court’s protective order says:
The parties may include designated Sensitive Materials in any public filing or use designated Sensitive Materials during any hearing or the trial of this matter without leave of court if all sensitive information is redacted, and the parties have previously conferred and agreed to the redactions. No party shall disclose unredacted Sensitive Materials in open court or public filings without prior authorization by the court (except if the defendant chooses to include in a public document Sensitive Materials relating solely and directly to the defendant’s personally identifying information). If a party includes unredacted Sensitive Materials in any filing with the court, they shall be submitted under seal.
All this secrecy is relevant because the gargantuan filing is likely the special counsel’s last chance to make a case against the 45th president before the November election.
For years, Smith has been frustrated by court after court — high, low, and in between — as he sought to bring Trump to trial for alleged crimes in both the District of Columbia and Florida.
A trial, of course, is nowhere in the offing anytime soon, and certainly not before November. So, now, the special counsel has to make do with the next best thing: convincing Chutkan to keep his superseding indictment more or less intact with an “oversized” argument.
A fringe benefit for the government — and a decided drawback for the defense — is that some of these arguments will likely make their way before the court of public opinion. When they are released, and how many are released, however, is entirely up to Chutkan.
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