Trump Calls Jack Smith’s Immunity Opus a ‘Monstrosity,’ but Could It Contain Secrets About the Pressure He Put on Pence?

Special Counsel Jack Smith’s book-length immunity opus — President Trump calls it a “false hit piece” and a “monstrosity” — is set to be filed on Thursday, but it could persist as a mystery to the public for far longer. Trump’s efforts to stop the 200-page behemoth faltered on Wednesday when Judge Tanya Chutkan sided with the special counsel and reckoned that the brief would advance “the efficient resolution of immunity issues in this case.” She castigated the “incoherence” of Trump’s bid for a delay, which centered on accusations of election interference. By allowing Mr. Smith to file a brief that is four times longer than the usual limit, Judge Chutkan is offering him the opportunity to deliver his theory of the case in a more fulsome manner than prosecutors are usually afforded in advance of trial. The Supreme Court, after ruling that official presidential acts are presumptively immune, returned the case to Judge Chutkan. Now Judge Chutkan reasons that allowing the brief — which could contain new evidence about, say, Trump’s interactions with Vice President Pence — “reflects the court’s best judgment about how to comply efficiently with the Supreme Court’s instructions on remand.” A factual proffer like this, she reassures Trump, “does not conclusively establish anything.”It could be, though, that Mr. Smith’s brief, or swaths of it, will be seen only by Judge Chutkan and the parties. Mr. Smith has indicated that he plans to include “a substantial amount of Sensitive Material,” which would likely require redaction before it could be publicly docketed. In a filing last month, the special counsel attested to a “Classified, Ex Parte, In Camera, and Under Seal” document. There could be more. Special Counsel Jack Smith on August 1, 2023, at Washington, D.C. Drew Angerer/Getty ImagesThe possibility that the brief could be redacted might be why Judge Chutkan was unpersuaded by Trump’s argument that what he called the “superfluous filing” would “impact potential witnesses and taint the jury pool.” Judge Chutkan retorts that “publicly docketing nonsensitive materials” would not injure Trump’s constitutional right to an “an impartial jury.”Mr. Smith has signaled that his brief will include “a comprehensive discussion and description of both pled and unpled facts … so that all parties and the Court know the issues.” It will also comprise “a substantial number of exhibits” and a “detailed factual proffer.” The special counsel has announced that he “intends to file a motion for leave to file under seal that attaches an unredacted copy of the motion.” A redacted version could appear on the public docket at a later date — possibly even closer to November’s election. Trump’s reply to Mr. Smith is due on October 17, just 19 days before the vote. Judge Chutkan’s decision on what becomes public and what remains secret will be governed by a protective order she issued last year.The judge ruled that the publication of some sensitive material could create “too great a risk that witnesses may be intimidated.” She reckoned that Trump, “like everyone else, has a First Amendment right to free speech. But that right is not absolute.”In that order, Judge Chutkan asserted that the “existence of a political campaign is not going to have any bearing on my decision. I’m going to keep politics out of this.” The litigation battles, though, over both immunity and redaction could be fiercest with respect to Mr. Pence. Trump’s former running mate, a witness in the case, testified before Mr. Smith’s grand jury after his invocation of the Speech or Debate Clause was only partially granted. Mr. Smith chose to keep the portions of his case that involve Mr. Pence even when he filed a second, slimmed down indictment that dropped all reference to Trump’s engagements with the Department of Justice. The Supreme Court ruled that the “indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts … thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.” The special counsel’s second indictment takes care to refer to Mr. Pence as the president of the Senate and as Trump’s running mate, as if to de-emphasize the immunity issues at play. Challenging this evidence will likely be central to Trump’s strategy to prevent the case from going to trial, and if Judge Chutkan — or a higher court — rules against the special counsel on this issue, the case as a whole could face insurmountable odds.

Trump Calls Jack Smith’s Immunity Opus a ‘Monstrosity,’ but Could It Contain Secrets About the Pressure He Put on Pence?

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