The Weekend Wrap: October 20, 2024

Jack Smith's evidence is unsealed - sort of

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

Trump Prosecutions

D.C. Federal Case - January 6 Allegations

There were some significant developments in the D.C. case last week.

Jack Smith’s Appendix Unsealed: You’ll recall from last week that Judge Chutkan granted Jack Smith’s motion to file on the public docket a redacted version of the appendix of evidence he submitted in support of his motion on immunity. At Trump’s request, she agreed to stay her order for seven days to give his counsel time to evaluate “litigation options.”

Somewhat surprisingly, Trump’s counsel did not ask a higher court to intervene. Instead, on the day the stay was set to expire, they filed another motion with Judge Chutkan asking her to extend the stay until November 14, the day Trump will file his own brief and appendix. His lawyers argued that releasing Smith’s evidence before the defense evidence would be unfair and might improperly taint the jury pool, and that both sides should file their evidence at the same time. They also repeated their now-familiar arguments that the prosecution amounts to election interference and that additional evidence should not be released during this sensitive time, when early voting has already begun.

Later the same day, Judge Chutkan rejected those arguments. She noted there is a presumption in favor of pleadings in a criminal case being public and that Trump had failed to address the legal standards that could justify keeping everything under seal. She wrote that his arguments about possible juror influence were too speculative and that any such potential issues were best dealt with during jury selection. She rejected his claim that both sides should file everything simultaneously, noting that in the ordinary course one side files and then the other responds and that’s “simply how litigation works.” She also noted that if Trump’s counsel are really worried about that, they are free to file their own papers at any time and need not wait until November 14.

Finally, Judge Chutkan once again rejected the idea that the election or political calendar should play any role in her decisions. In fact, she noted, it was Trump’s requested delay that could appear to be election interference:

There is undoubtedly a public interest in courts not inserting themselves into elections, or appearing to do so. . . . But litigation’s incidental effects on politics are not the same as a court’s intentional interference with them. As a result, it is in fact Defendant’s requested relief that risks undermining that public interest: If the court withheld information that the public otherwise had a right to access solely because of the potential political consequences of releasing it, that withholding could itself constitute—or appear to be— election interference. The court will therefore continue to keep political considerations out of its decision-making, rather than incorporating them as Defendant requests.

She ordered the clerk to release the redacted appendix on the public docket on Friday. That gave Trump’s lawyers the evening to seek an emergency stay. They chose not to do that, and on Friday morning the redacted appendix was released.

And after all that fuss, it was pretty anticlimactic. The appendix is in four volumes and totals 1889 pages. More than half of it is redacted and remains under seal. The remainder is mostly material that was already public containing information that we already knew. There were no big new bombshells revealed; to the extent there are any, they are contained in the grand jury transcripts, witness interviews, and other materials that will remain under seal until the trial.

Here’s how the appendix breaks down:

• Volume I - 723 pages, most of it redacted. The portions that are not redacted are transcripts of witness interviews with the House January 6 Committee. I’m guessing that the rest of this volume is transcripts of grand jury testimony or FBI witness interviews, which would explain why it remains under seal.

• Volume II - 246 pages. This appears to be the “social media” volume. Much of it is redacted, but the non-redacted portions are images of social media posts by Trump and others.

• Volume III - 536 pages. This is also heavily redacted, but what remains is kind of a grab bag of information that was already public, such as press releases, statements from state officials, and other information about the state elections (and the lack of fraud); excerpts from Mike Pence’s book; transcripts of Trump speeches on the Ellipse and in Georgia; and materials related to the fake electors scheme, including the memos describing the scheme by attorney Ken Chesebro.

• Volume IV - 384 pages, almost entirely redacted. The limited amount that is public includes some budget and planning documents related to the rally on the Ellipse on January 6.

Overall, the fight over the appendix seems to have been much ado about relatively little. It’s hard to know why Trump’s attorneys fought so hard to keep this from being filed — unless it was just to have the fight itself and another opportunity to argue that the entire prosecution amounts to election interference.

Smith Opposes Dismissal Based on Fischer: Jack Smith filed his opposition to Trump’s supplemental motion to dismiss the indictment last week. The primary argument focuses on counts two and three, which charge obstruction of justice and conspiracy to obstruct justice. Trump claims that the Supreme Court’s recent decision in Fischer v. United States compels dismissal of those counts.