DOJ Seeks to Exclude Trump Evidence in Jan. 6 Case After Pause Ordered

(Left) Special Counsel Jack Smith delivers remarks in Washington on Aug. 1, 2023. (Right) Former President Donald Trump attends his trial in the New York Supreme Court in New York City on Dec. 7, 2023. (Drew Angerer, David Dee Delgado/Getty Images)

Special counsel Jack Smith’s office has filed a motion to exclude arguments and evidence based on former President Donald Trump’s “partisan political attacks” and “irrelevant and prejudicial issues” raised.

The Dec. 27 court filing comes two weeks after U.S. District Judge Tanya Chutkan stayed all pretrial proceedings and deadlines in an order on Dec. 13, and after the defense filed a response on Dec. 18 arguing the special counsel had improperly continued to serve discovery productions despite the pause. The judge hadn’t issued an order after President Trump’s claims that the prosecutors were continuing to litigate “unlawfully” and in violation of the stay order.

The Dec. 27 motion alleges President Trump has tried to “inject” and propagate “irrelevant disinformation” in the case, including by trying the case in the court of public opinion. Prosecutors argue that even if they instruct the jury to ignore these statements, they may not be able to do so.

“The Court must exclude any evidence that is irrelevant,” the motion reads.

Prosecutors suggest the defense may be seeking to null the jury to later throw out a decision.

“Significantly here—where the defendant repeatedly has levied baseless political claims—evidence or argument that serves only to support a jury nullification argument has no relevance to guilt or innocence and must be excluded,” the motion reads.

Prosecutors are requesting that much of President Trump’s defense strategies be prohibited and are again pushing back against evidence that the defense has requested via discovery. This includes excluding First Amendment defenses and limiting cross-examination of government witnesses.

Allegations of Bias

Earlier, President Trump had filed a motion to dismiss the case based on “selective and vindictive prosecution,” pointing to remarks that his political rival President Joe Biden made while campaigning and in office about stopping President Trump’s presidential campaign. The defense is arguing that the case is politically motivated and part of an attempt to interfere with President Trump’s campaign.

Prosecutors argue that these statements themselves are partisan and that arguments that the prosecution is “selective and vindictive” should be excluded from the case.

They argue that President Trump shouldn’t be able to make arguments such as “that he is immune from prosecution and that his fraudulent statements are protected by the First Amendment.” This was an argument that Judge Chutkan had already rejected, and prosecutors say it injects bias into the jury and shouldn’t be allowed during trial arguments either.

“Any attempt to suggest or argue to the jury that it should acquit based on principles of immunity or the First Amendment would usurp the Court’s role to decide legal issues and invite impermissible jury nullification,” they stated.

The prosecutors also argued that the defense attorneys have targeted the prosecution’s timing with statements such as that they’re bringing the case “in the middle of the [presidential] campaign” and asked the court to prohibit such arguments.

The prosecutors argued that allegations of coordination with the Biden administration are “empty” and “wholly false.” They claim that a portion of the evidence that the defense is requesting is tied to the defense strategy of proving this alleged bias and that these are “groundless” demands.

Discovery had been a sticking point in this case, with the defense arguing that the pretrial schedule had been rushed while the prosecutors hadn’t turned over much of the material they had asked for. The prosecutors argued that the requested materials weren’t in the possession of the special counsel’s office. Meanwhile, the prosecutors had turned over 13 million pages, which the defense argued they needed more time to review.

The prosecutors also noted, citing case law, that “evidence which has the effect of inspiring sympathy for the defendant or for the victim ... is prejudicial and inadmissible when otherwise irrelevant,” asking that statements about the effect of the prosecution on President Trump’s “professional pursuits or his family, resources, or livelihood” be excluded.

Jan. 6 Evidence

Prosecutors are arguing that President Trump shouldn’t be able to use evidence regarding “agency preparation and responses” during the Jan. 6, 2021, events.

The defense had sought materials including how many FBI informants were in the rally crowd that day, and President Trump had made statements about making the National Guard available for the day’s events and being refused. Attorneys for President Trump have argued in other cases that a quashed attempt to prevent violence that day on the former president’s part isn’t the same as being responsible for any violence that occurred that day.

Prosecutors argue that this line of defense is both false and precluded by the rules, suggesting it’s an attempt to “shift the blame to law enforcement” and is an argument that has been rejected in many other Jan. 6 prosecutions.

Allowing a “minitrial” as to “whether certain agencies or the District’s Mayor could have better responded” only has a “weak logical connection” to central issues, they argued. They ask that evidence and arguments regarding undercover agents at the rally be excluded, arguing it would only “confuse” the issues.

Foreign Interference

Prosecutors also want to exclude evidence about alleged foreign interference, arguing that unless the defense can show that President Trump relied on specific foreign disinformation in good faith that led to his actions, the evidence would be irrelevant.

Materials related to foreign interference in the election were sought by the defense, unsuccessfully, to establish that President Trump had a history of taking allegations of voting fraud seriously, authorizing investigations in past election cycles. Prosecutors didn’t supply the materials, responding that they weren’t in their possession.

State of Mind

The crimes that President Trump was charged with require his knowing and corrupt participation in the crimes and conspiracies. Defense attorneys are expected to object to witness speculation as to the former president’s state of mind, and prosecutors say defense witnesses doing the same should equally be excluded.

“The defendant’s state of mind during the charged conspiracies will be a key issue at trial,” prosecutors acknowledged in the latest filing. “Both parties will introduce circumstantial evidence of the defendant’s state of mind, and the defendant may choose to testify himself.”

“But the defendant should be precluded from eliciting speculative testimony from any witnesses other than himself about the defendant’s state of mind or beliefs about the election or his claims of election fraud.”

Legal experts have opined that crimes requiring proving out the defendant’s state of mind are hard to try and are often overturned on appeal, noting that several of the criminal cases against President Trump include such charges. President Trump maintains that he has done nothing wrong, pleading not guilty to 91 charges across four criminal cases in separate jurisdictions.

Limiting Cross-Examination

The prosecutors are also requesting a number of their witnesses be protected from certain questions during cross-examination.

“The Government anticipates calling witnesses with knowledge of information protected by certain privileges, including the attorney-client privilege and the Speech or Debate privilege,” the motion reads, suggesting the defense must receive pre-clearance from the court to ask these questions.

“Allowing the defendant to question witnesses about information for which a witness either must or would be likely to assert a privilege—in open court, in front of the jury—runs the risk of unfairly and improperly suggesting to the jury that the witness lacks candor and presenting to the jury otherwise inadmissible evidence.”

Case Paused

The district court proceedings have been paused pending an appeal lodged by President Trump, who filed an opening brief on Dec. 23. He’s arguing to dismiss the case entirely based on presidential immunity.

Prosecutors argued that they’re prosecuting a former president for crimes unrelated to official duties, while President Trump says his actions were lawfully taken as duties of his office.

An earlier petition to the U.S. Supreme Court appeared to put the appeals process on hold as well, but the petition was soon denied.

The prosecutors have a Dec. 30 deadline to respond. Opening arguments have been scheduled for Jan. 9, 2024.