Trump Will Seek Jack Smith’s Dismissal in January 6 Case, Argues That Prosecution ‘Must End as a Matter of Law’

The joint status report presented to Judge Tanya Chutkan and co-authored by the teams behind President Trump and Special Counsel Jack Smith discloses that the two sides are anything but synced on how the 45th President should be tried for January 6. The filing is a preview of Trump’s plan to stymie the prosecution.Judge Chutkan requested the summary in advance of a hearing she has scheduled for Wednesday on how the election subversion case against Trump ought to proceed. The prosecution has been upended — but not entirely derailed — by the Supreme Court’s ruling in Trump v. United States that official presidential acts are presumptively immune. Mr. Smith digested that ruling by convening a fresh grand jury to hand up the same four charges from his original indictment, though he pared down his recitation of evidence to omit those interactions between Trump and the Department of Justice that the justices held were entitled to “absolute” immunity. His new charge sheet is nine pages shorter, but otherwise much the same. Now, though, the two sides in the case tell Judge Chutkan that they have “differing views” on what should come next. Mr. Smith, who has for more than a year sought to push the prosecutorial pace, seeks to immediately brief the judge on “why the immunity set forth in Trump does not apply to the categories of allegations in the superseding indictment or additional unpled categories of evidence that the Government intends to introduce at trial.”Trump maintains that such an immediate more is unduly hasty. Instead, Trump calls Mr. Smith’s alterations “substantial” and seeks “time to review the new charging instrument as he determines what steps and procedures to undertake regarding, among other motions, his Presidential immunity defense.” He reserves the right “to challenge the new indictment, and the underlying grand jury process, as a matter of law.”The former president observes that such challenges to an indictment — or a revised one — ought to be adjudicated “before substantive proceedings, as doing so will promote judicial economy and avoid needless litigation on matters that should be rendered moot by dismissal.” That means even before the immunity question is decided. The Supreme Court mandated that a trial cannot begin before the scope of immunity owed to Trump is settled.Trump, citing Judge Aileen Cannon’s dismissal of charges in the Mar-a-Lago case, tells Judge Chutkan that he will “move to dismiss the Special Counsel’s improper appointment” in the District of Columbia case as well. He cites Justice Clarence Thomas’s concurrence in Trump that Mr. Smith’s status “must be answered before this prosecution can proceed.” Attorney General Garland defends his appointment of Mr. Smith and accuses Judge Cannon of making a “basic mistake about the law.”The status report also discloses that Trump’s colloquies with Vice President Pence could prompt a fierce contest before Judge Chutkan. The Supreme Court held that those interactions were presumptively immune, but Mr. Smith elected to keep them in his new indictment. The special counsel did take care to sign post his position that they lack presidential immunity by calling Mr. Pence Trump’s “running mate” and the “President of the Senate.”Now comes Trump to tell Judge Chutkan that he “may file a motion to dismiss focused specifically on the Special Counsel’s improper use of allegations related to Vice President Pence” because the “Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot.” Trump avers that “this case must end as a matter of law.”Trump also signals his intention to marshal another Supreme Court decision against Mr. Smith’s prosecution. In Fischer v. United States, the justices narrowed the scope of an obstruction charge used against hundreds of January 6 rioters — and Trump. The court held that the law, originally drafted as part of the Sarbanes-Oxley Act to regulate financial crimes, was inapt for what transpired at the Capitol. Mr. Smith contends that its application to Trump survives the ruling. The 45th president argues that the Supreme Court’s immunity ruling sounds in the doctrine of discovery. The case of Brady v. Maryland decreed that the government is required to hand over to the defendant any relevant evidence that could bear on guilt or innocence. This obligation is one that demands proactive compliance with prosecutors — the defendant is not required to ask for evidence he might not know exists. Its violation, an injury to due process, could warrant dismissal.Trump wants Judge Chutkan to order Mr. Smith to turn over the “full universe of potentially relevant documents” and afford the former president the “opportunity to serve new, immunity-focused discovery requests, and seek relief from the Court if the Special Counsel denies access to such document.” The Supreme Court ruled that materials deemed immune are off-limits as evidence.If Trump is not allowed to interrogate the evidence already collected, his lawyers write, a rush to a ruling “would violate fundamental Sixth Amendment principles, including the right to present defense witnesses, and to cross-examine the government’s witnesses.” Mr. Smith, though, tells Judge Chutkan that he is ready, right now, to distinguish Trump’s “private electioneering activity from official action.”

Trump Will Seek Jack Smith’s Dismissal in January 6 Case, Argues That Prosecution ‘Must End as a Matter of Law’

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