Special counsel Jack Smith should not be allowed to make an important public filing in his election interference case against former president Donald Trump while there are lingering evidence disputes, Trump’s attorneys told the judge Thursday.
His attorneys urged Judge Tanya Chutkan, who set a schedule allowing prosecutors to file the first brief on presidential immunity Sept. 26, to reconsider her decision. Without addressing ongoing evidence issues, Smith’s filing would “amount to an improper motion for summary judgment in the court of public opinion” ahead of the election, they argued.
Trump’s attorneys noted there are “ongoing discovery violations in this case that implicate Presidential immunity and other strong defenses, including the Office’s failure to produce exculpatory evidence concerning the flaws with this prosecution and the Office’s false allegations.” They said prosecutors conducted their evidence review at a time when they “wholly denied the existence of Presidential immunity,” before the Supreme Court’s July 1 decision finding former presidents immune from prosecution for official acts taken in office.
“The Supreme Court’s recent decision established important parameters for the procedural and substantive consideration of this defense that the Office could not possibly have accounted for when the bulk of discovery was collected and produced,” Trump’s attorneys wrote.
Trump’s attorneys said they are entitled to argue that all allegations in the superseding indictment, including those related to Trump’s interactions with Vice President Mike Pence, are covered by immunity.
In late August, Smith filed a new indictment, which included the same four charges but eliminated allegations the Supreme Court explicitly found were covered by immunity. It also updated the language to emphasize Trump was acting outside of his official duties.
“The Office’s planned filing in defense of the defective Superseding Indictment, before President Trump has had an opportunity to obtain and review all required discovery, will add to ‘the peculiar public opprobrium that attaches to [these] criminal proceedings’ as the election rapidly approaches,” his attorneys argued.
Outstanding discovery issues include Trump’s request for disclosures about “government agents present at the U.S. Capitol on January 6,” security requests made on Jan. 6 and any “evidence of bias and misconduct” by prosecutors, according to the filing.
Ultimately, his attorneys argued, the case should be “promptly” dismissed.
“Dismissal is required to protect the integrity of the Presidency and the upcoming election, as well as the Constitutional rights of President Trump and the American people,” his attorneys wrote.
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