Jack Smith Readies ‘Oversized’ Filing in Trump Election Case

(L) Special Counsel Jack Smith in Washington on Aug. 1, 2023. (R) Former President Donald Trump in New York City on May 31, 2024. Michael M. Santiago/Getty Images, Alex Wong/Getty Images

Former President Donald Trump’s lawyers and special counsel Jack Smith are wrangling over whether federal prosecutors can file a lengthy brief in the Washington-based Jan. 6 case against the former president.

According to the special counsel’s office, the filing in the case seeks to address a July ruling issued by the U.S. Supreme Court that established that official presidential acts and duties should be considered generally immune from prosecution. Smith’s team will file the motion to make reference to evidence they can use against Trump and build a case as to why he should still face charges in light of the high court’s decision.

“The Court has been directed to conduct a detailed, factbound, and thorough analysis of the Government’s case to make appropriate immunity determinations,” federal prosecutors Thomas Windom and Molly Gaston wrote in their request on Saturday. “The Government believes that a comprehensive brief by the Government will be of great assistance to the Court in creating that robust record.”

While prosecutors noted that while there is a 45-page limit, the government is seeking to file an “oversized motion” that “will not exceed 180 pages.”

The election case was placed on hold by U.S. District Judge Tanya Chutkan earlier this year as Trump’s attorneys appealed the case. The case was restarted last month, weeks after the Supreme Court decision.

In a response brief, Trump’s lawyers signaled in court documents that they opposed Smith’s plan to file the massive brief, arguing that the special counsel’s proposal is “politically motivated” and “unfair.”

“The Special Counsel’s Office is seeking to release voluminous conclusions to the public, without allowing President Trump to confront their witnesses and present his own, to ensure the document’s public release prior to the 2024 Presidential election,” Trump attorneys Todd Blanche and John Lauro wrote to the court this week.

They said Smith’s team should not be able to release what they described as a “180-page false hit piece” against their client, which they said risks muddying the case.

“Their requests are also inconsistent with the Federal Rules of Criminal Procedure, and the Court should reject them until threshold legal questions identified by the Supreme Court are addressed and discovery is complete,” Trump’s lawyers said.

Beyond those claims, the defense attorneys said that the Department of Justice (DOJ) had followed an “unwritten, 60-day rule” that stipulates federal prosecutors and officials not take any major action 60 days before an election.

They cited former FBI Director James Comey’s comments that “we avoid taking any action in the run up to an election, if we can avoid it” and former Attorney General Loretta Lynch’s statement that “the practice (at the DOJ) has been not to take actions that might have an impact on an election, even if it’s not an election case or something like that.”

About a month before Smith’s filing, the special counsel filed a revised indictment in the case against Trump, again charging the former president with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights.

“The defendant had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election,” reads the latest version of indictment, in part.

In early September, Trump’s lawyers entered a not guilty plea on behalf of the former president in a Washington federal court.

During that court hearing, Chutkan, the judge, said that she was not concerned with the case’s timing in relation to the 2024 election. Trump’s attorneys expressed worry about whether the case could interfere with the Nov. 5 election, noting that Trump is the Republican nominee for president.

“This court is not concerned with the electoral schedule,“ Chutkan said. ”There needs to be some forward movement in this case, regardless of when the election is held.'’