Topline
New information could come to light this week about former President Donald Trump’s efforts to overturn the 2020 election, as Special Counsel Jack Smith’s office is set to file a lengthy brief making its case for why Trump should be prosecuted, including using new evidence—and Trump’s lawyers are arguing the court shouldn’t allow it to be released.
Former President Donald Trump delivers remarks at the Israeli American Council National Summit on … [+]
Key Facts
Trump’s election case is moving forward again in federal district court after the Supreme Court gave the ex-president some immunity from criminal prosecution, ruling ex-presidents can’t be charged based on their “official acts” in office—with U.S. District Judge Tanya Chutkan now having to determine what charges against Trump, if any, can still be prosecuted.
Chutkan granted Smith’s request to file a brief in the case laying out the government’s full case against Trump and why it’s in line with the Supreme Court’s immunity ruling, so that the judge can have all the facts when she makes her decision—as can any appeals courts and the Supreme Court, since Trump is likely to appeal whatever ruling she issues.
That brief, which is due Thursday, will include “additional unpled categories of evidence that the Government intends to introduce at trial,” Smith has said, such as grand jury transcripts that have not previously been made public.
The filing is expected to be lengthy, with Smith telling the court it will be up to 180 pages long, including extensive footnotes and appendices with supporting evidence.
Trump’s lawyers pleaded with the court on Monday not to allow Smith to file the brief, claiming even before seeing it that it will be a “180-page false hit piece” that the attorneys claim will taint the jury pool, also arguing it’s “fundamentally unfair” because it will lay out the government’s allegations against Trump before the election without giving the ex-president an immediate chance to respond.
The defense argues the court should rule on immunity first before Smith can issue prosecutors’ “biased list of grievances,” and claims the brief is unfair because Trump can’t respond to it, given there’s a gag order against him in the case that bars him from speaking about witnesses and other parties involved with the case.
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What We Don’t Know
How much of the 180-page brief the public will get to see. Smith told the court his filing will contain “a substantial amount of Sensitive Material” that has to be redacted when it’s publicly released.
What To Watch For
Chutkan is expected to rule imminently on Trump’s request to block Smith from filing the 180-page brief. Legal experts believe she’ll rule against the ex-president, with former U.S. attorney Joyce Vance arguing it would be “judicial malpractice for the court to refuse to let Smith air his case … as Judge Chutkan prepares to rule on what, if any of it, escapes the broad grant of immunity ordered by the Supreme Court.” Assuming the judge rules in the government’s favor, Smith will have to file the brief by Thursday evening, and Trump’s response to the filing will be due by Oct. 17. Since the dispute over which charges survive the immunity test is expected to stretch on for a while—and likely go to the Supreme Court—it’s still unclear what the timeline looks like for Trump’s election case and when it could go to trial. The case’s fate is also dependent on the outcome of the presidential election, as Trump is likely to appoint Justice Department officials who will drop the criminal charges against him if he wins.
Chief Critic
Smith’s office “cannot be permitted to issue a massive and misleading public statement that is not responsive to a defense motion, and risks adverse impacts to the integrity of these proceedings, while simultaneously insisting on an unconstitutional prior restraint on President Trump’s ability to respond to their inaccurate assertions while he is campaigning,” Trump’s lawyers wrote in their filing arguing for Chutkan to block Smith’s brief, referencing the gag order against the ex-president in the case. Trump has pleaded not guilty to the charges against him in the federal election case and has decried the case as a “witch hunt” designed to harm his presidential campaign, arguing the case should be thrown out entirely following the Supreme Court’s immunity decision.
Can Trump Still Be Criminally Prosecuted?
The Supreme Court’s immunity ruling says while ex-presidents can’t be charged based on their “official acts” while in office, they can still face prosecution for “unofficial” acts that fall outside the scope of their official duties. Justices left it up to Chutkan to determine much of what that means in practice for this case against Trump, and the only allegations in the indictment that the Supreme Court said definitely weren’t allowed were ones claiming Trump acted unlawfully by pressuring DOJ officials to help challenge the 2020 election results. Prosecutors submitted an updated indictment against Trump in light of the Supreme Court’s ruling, which removes those allegations and broadly characterizes Trump’s post-election actions as him acting as a candidate and a private citizen, rather than as president. It will ultimately be up to Chutkan and future appeals courts to determine whether the indictment should be narrowed—or thrown out entirely—in light of the immunity decision.
Surprising Fact
Trump’s lawyers have claimed Smith shouldn’t be allowed to file his 180-page brief—and opposed the updated indictment—because they claim it violates the DOJ’s rules against taking major actions right before elections. A federal statute states prosecutors “may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election,” and the DOJ has a more informal “60-day rule” based off of that barring prosecutors from taking major investigative steps within 60 days of an election if it could affect the result. Legal experts have broadly pushed back on Trump and his lawyers pointing to that policy in the federal election case, however, saying it only applies to pending investigations and doesn’t matter anymore once a case has already been charged, because then the case is in the court’s hands, rather than up to investigators.
Key Background
Trump faces four federal felony charges in the election case, which broadly accuses him of acting unlawfully after the 2020 election through his efforts to overturn his loss. The updated indictment points to such efforts as Trump and his allies pressuring state legislators and officials to oppose the results; pressuring then-Vice President Mike Pence to refuse to certify the results; “exploiting” the Jan. 6 attack on the Capitol building to try and stop Congress from certifying the results and orchestrating the “fake elector” scheme, in which GOP officials submitted false slates of electors to Congress claiming Trump won. The case was on pause for months while the Supreme Court considered Trump’s immunity claims, indefinitely postponing a planned March trial date and ensuring the case would not go to trial before the election. The federal election case is one of four criminal cases that have been brought against the ex-president, only one of which has so far gone to trial and resulted in a guilty verdict. Trump’s lawyers have successfully stalled the two other cases against the ex-president, whose criminal charges in Georgia for trying to overturn the 2020 election are now on hold while an appeals court considers whether Fulton County District Attorney Fani Willis should be disqualified. A Trump-appointed judge also dismissed charges against the ex-president for allegedly mishandling White House documents, though Smith is now appealing that decision.
