The Weekend Wrap: October 13, 2024

We soon may see Jack Smith's evidence

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

D.C. Federal Case - January 6 Allegations

You may recall that when Jack Smith filed his 165-page brief on immunity, he also filed an appendix containing the evidence in support of his allegations. It appears to be four volumes and about 2,000 pages, although we haven’t seen it yet. It contains witness interviews, grand jury testimony, Trump Tweets, transcripts of videos, and other documents and records that Smith intends to use at trial to make his case.

Smith proposed to make a redacted version of the appendix available to the public, as he did with the brief. The redactions will include transcripts of grand jury testimony and other sensitive, non-public information, but much of the information in the appendix would be released. Due to the amount of material, the judge gave Trump’s attorneys additional time to respond to Smith’s proposal to make the redacted appendix public.

On Thursday the defense filed a brief submission objecting to the disclosure of the appendix. Despite recent admonitions from the judge, rather than deal with the merits the defense continues to claim that Smith is seeking to interfere with the election and that disclosure of any of these materials therefore would be improper:

There should be no further disclosures at this time of the so-called ‘evidence’ that the special counsel’s Office has unlawfully cherry-picked and mischaracterized — during early voting in the 2024 Presidential election — in connection with an improper Presidential immunity filing that has no basis in criminal procedure or judicial precedent.

The defense also requested that if the judge decides to grant Smith’s motion and release the materials, she delay the order to give Trump time to “evaluate litigation options” regarding her decision - in other words, so the defense can consider asking the D.C. Circuit, and potentially the U.S. Supreme Court, to intervene.

Judge Chutkan quickly rejected Trump’s objections and granted Smith’s motion to make the redacted appendix public. She noted that Trump’s opposition “identifies no specific substantive objections to particular proposed redactions” and was simply a wholesale objection to releasing anything at all. She also repeated her earlier holding that, “Defendant’s concern with the political consequences of these proceedings” is not a “cognizable legal prejudice” – in other words, the election isn’t the court’s problem. 

Judge Chutkan did agree to stay her ruling for seven days to allow Trump’s counsel to evaluate their legal options. Absent a successful appeal for a stay from a higher court, the appendix should become public on the 17th.

I think this is the right approach by Chutkan and her ruling is unlikely to be overturned. The political calendar is irrelevant to the court’s management of a criminal prosecution. The judge is simply seeking to comply with the requirements handed down by the Supreme Court to evaluate presidential immunity – an immunity that the defendant sought.

Some commentators have criticized Smith for these filings, arguing that the timing contradicts DOJ policy against taking actions that might interfere with an election. I think those criticisms are misplaced. That policy refers primarily to DOJ taking steps that will reveal new information, but in this case the public is already well aware of the nature of the allegations against Trump. The policy also is not aimed at cases that are already filed, where the court is controlling the calendar, not the prosecution. Once a case is publicly filed it proceeds, regardless of political events. Judge Chutkan is in charge of the scheduling now, not the prosecutors, and she is determined to treat this like any other criminal case.

In addition, let’s not forget that the reason these pleadings are being filed now is that Trump tried to delay things as long as possible, including by requesting absolute immunity. He was assisted by the Supreme Court, which dragged its heels and then issued the misguided immunity decision that Judge Chutkan is now trying to implement. It would be bizarre to say Trump is now entitled to even more delays based on the political calendar, when it was his own actions that got us here.  

If the brief is any guide, we can expect the appendix to reveal additional details about the case and the evidence but probably not any big new bombshell revelations.

In a separate ruling, Judge Chutkan has also granted a request from Trump’s attorneys for additional time to respond to Jack Smith’s brief on immunity. The defense brief is now due on November 7, two days after the election. The government’s reply is due November 21, and the defense may file a sur-reply by December 5. She also ordered that Trump’s opposition may be up to 180 pages, the same page limit she gave to Smith.

On the one hand, the defense request for more time is consistent with the Trump defense's usual tactics of delaying as much as possible. But in this case it’s interesting that they weren’t anxious to get their version of events filed and public prior to November. That means Jack Smith’s allegations will be out in the public, unrebutted, until after the election. 

Georgia State Case - January 6 Allegations

Attorneys for Georgia filed their brief in the Supreme Court opposing former Trump Chief of Staff Mark Meadows’s petition for certiorari. Meadows is asking the Justices to review the 11th Circuit’s rejection of his petition to remove the Georgia state prosecution to federal court.