A federal judge on Tuesday rejected an effort by former President Donald Trump’s lawyers to push off until after November an assessment of whether the indictment accusing Trump of plotting to overturn the 2020 election can survive the Supreme Court’s ruling granting him broad immunity from prosecution.
In a brief order, the judge, Tanya S. Chutkan, said that by Thursday evening, special counsel Jack Smith should file his written presentation about why the Supreme Court’s immunity decision should not lead to the dismissal of the charges he brought against Trump in a revised indictment last month.
Moreover, the judge granted Smith’s request to have that presentation, which will be filed under seal and therefore not publicly accessible, run as long as 180 pages.
Nearly half of those pages, Smith’s deputies have said in court papers, would contain detailed evidence — from things like grand jury testimony and FBI interviews — about how Trump’s attempts to overturn the election are fair game despite the Supreme Court ruling, which granted him significant protections for official acts he took as president. Smith’s team is arguing that Trump’s efforts were undertaken in his private role as a candidate seeking office, not in his protected role as a president performing official duties.
The election interference case — one of four prosecutions Trump has faced in the past two years — has been bogged down in the debate about presidential immunity for nearly a year. But the current ordeal of sorting out which parts of the indictment can survive and which will have to be tossed out began only after the Supreme Court issued its opinion in July granting Trump significant protections for official acts he undertook as president.
Trump’s lawyers had initially tried to delay the process of applying the immunity ruling to his case at a hearing in U.S. District Court in Washington this month. At the hearing, they suggested that surfacing evidence behind the charges would be unfair to the former president with the election looming.
Even though Chutkan rejected those concerns in the courtroom, the lawyers tried to raise them again in an unusual filing late last week — and then for a third time on Monday in yet another filing, ostensibly meant to complain about the length of Smith’s own submission.
But in her order on Tuesday, Chutkan swatted the argument away once more, reiterating her position that she was not going to let a presidential campaign affect her handling of Trump’s criminal case.
“Defendant’s concern with the political consequences of these proceedings does not bear on the pretrial schedule,” she wrote.
In seeking to delay the immunity assessment, Trump’s lawyers had essentially accused Smith of using his upcoming filing as a way to sneak potentially damaging new information about Trump into the public record in the homestretch of the election.
The lawyers said that Smith’s lengthy immunity brief was “tantamount to a premature and improper special counsel report” — the sort of document that all special counsels are required to submit at the conclusion of their work.
But Chutkan rejected these arguments too, dismissively noting that she “need not address the substance of those claims.”
In the short run, Trump will not have to worry about Smith’s filing causing him any political problems because the special counsel has already said he intends to file his brief — and its numerous factual exhibits — under seal.
Parts of the filing could eventually become public — perhaps even before voters go to the polls. But it will be up to Chutkan, in consultation with the defense and prosecution, to determine how much, if any, new information about Trump will be revealed in the papers and when those revelations will be made.
This article originally appeared in The New York Times.
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