It's been almost three years and ten months since several hundred Donald Trump supporters breached the U.S. Capitol. There have been two congressional hearings, multiple law enforcement investigations, and more than 800 trials of defendants arrested over the course of those three years and ten months.
According to Jack Smith, the special counsel appointed by Attorney General Merrick Garland to convict Donald Trump, the facts are still being uncovered.
Smith's office sent a new brief to the judge overseeing Trump's election subversion case. The filing purports to be a 180-page compilation of all the evidence against Trump alleging that he committed criminal acts trying to overturn the 2020 election. The brief was filed "under seal," meaning it's supposed to be kept from the public. We'll see how long that lasts.
U.S. District Court Judge Tanya Chutkan ordered the new filing after the Supreme Court threw a monkey wrench into Smith's plans to prosecute Trump for trying to commit "fraud" against the U.S. government. The high court broadened the definition of presidential immunity, which covered some of Trump's actions prior to and on January 6.
"The Supreme Court ruling has required the prosecutors to convince Chutkan – and likely, higher courts – that Trump was not acting in his official capacity when he and his supporters took various actions, culminating in the January 6, 2021, attack on the US Capitol," reports CNN. Because of that ruling, Smith was forced to rework his indictment and present his evidence by 5:00 p.m. on Thursday.
With fewer than 50 days before the election, this is the most aggressive effort yet to damage Trump's chances of prevailing.
It is likely the filings will dig into Trump’s pressure campaign on Pence – conduct that the Supreme Court indicated might be covered under immunity. The brief is also likely to lay out what investigators have learned about the circumstances of the January 6, 2021, Ellipse rally, while potentially providing more detail about endeavors by Trump and his allies to convince state officials to block certification of the 2020 results.
They have also indicated plans to file a version with proposed redactions – also under seal – that could ultimately be posted to the court’s public docket.
Smith previously secured permission to file a brief as long as 180 pages – four times the normal page length. That brief does not include the “substantial” numbered exhibits prosecutors plan to attach to their arguments that will offer up key evidence. The footnotes alone citing their various exhibits would account for more than 30 pages of the main brief, prosecutors have said.
The big issue is Trump's immunity from prosecution and what acts are covered and not covered by that immunity.
The Supreme Court said Trump had absolute immunity for conduct related to his “core” executive branch duties. Smith's contention is that certain actions taken by Trump's aides to convince state authorities to hold off on certifying the election, as well as the rally on the Ellipse and all subsequent events flowing from that rally, including the Capitol riot, were not part of Donald Trump's "core" executive branch duties. Hence, his presidential immunity was not valid.
"For other official acts as president, a 'presumptive' immunity can be overcome if prosecutors can show that criminalizing such conduct would not interfere with the functions of the executive branch, according to the high court’s ruling," says CNN.
It’s now up to Chutkan to determine whether and when to release the filing — or a redacted version — to the public. Trump is sure to protest any release of the information at all. His attorneys have argued that putting the detailed compilation in the public domain is a form of political interference just 40 days before Election Day.
Trump’s lawyers have also said the filing inverts the normal practice for handling motions in criminal cases, contending that Trump should have had the chance to offer his challenges to the case before prosecutors offered a response.
Trump has until October 17 to respond to the filing. However, I expect the contents of the "sealed" brief will be publicized long before then.
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