Mounting a broad new challenge to prosecution of Donald Trump for attempting to stay in power in 2021, the former President’s lawyers urged a federal judge on Thursday to stop that case before it goes any further.
At the center of the new filing, made public Friday, is a claim that Special Prosecutor Jack Smith is engaging in stubborn defiance of the new Supreme Court decision granting legal immunity to past and future Presidents.
Dismissal of the entire case “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,” the 30-page argument told U.S. District Judge Tanya S. Chutkan, who is handling the case of the four criminal charges against Trump arising out of the January 6, 2021, violent uprising at the U.S. Capitol.
Among other demands Trump’s legal team made was that the judge take away from prosecutors the opportunity she recently gave them to outline in a legal brief due next Thursday all of the evidence they plan to use against him at the trial.
If that new brief were to be made public (something that the judge has not yet decided), Trump’s lawyers fear the impact on voters as the November 5 election rapidly approaches, arguing that such a brief will only be “a prejudicial and unwarranted advocacy piece setting forth their biased views about the case.” The brief, the document added, would be an attempt to convict Trump “in the court of public opinion,” without a chance to defend himself at a trial.
Trump attorneys argued that Prosecutor Smith has failed to fully disclose, or even to search widely for, all of the evidence from across the federal government that might be helpful in defending the former President against the January 6 charges. Smith, the new documented noted, had responded to the Trump demands for such evidence before the Supreme Court issued its new presidential immunity ruling July 1. Smith previously had argued that Trump had no legal immunity.
The new immunity decision not only puts a broad umbrella of legal protection over a president facing criminal charges, Trump’s filing said, but also imposes on prosecutors an immense burden to find and share with presidential defense lawyers any government evidence that might have a negative impact on the work of the presidential office.
Before the case can go forward, including any disclosure before trial of the prosecutor’s evidence, Judge Chutkan must give Trump the full benefit of the Supreme Court’s decision, Trump’s team said.
Although prosecutors obtained a completely new indictment against Trump in response to the Supreme Court, deleting a wide array of evidence behind the charges, the charges still depend at least partly upon Trump’s demands that his Vice President, Mike Pence, take steps to overturn the defeat of Trump by voters in 2020 – steps that were refused by Pence. Trump, the new filing contended, is completely immune from any charges related to his dealings with Pence.
The Supreme Court declared that presidents have complete immunity to prosecution for official actions that are at the “core” but may have less sweeping prosecution when some other official actions are the basis of criminal charges.
The new Trump document, however, argued that his team will now show that he has complete immunity for all of the actions relied upon by the prosecution and that partial immunity is not sufficient to protect the functioning of the Presidency – a main goal of the Supreme Court ruling.
Although the chief aim of the new court filing appears to be its attempt to shut down the case almost immediately, it does spell out a huge task that it would require of Judge Chutkan in exploring – before any trial – how much evidence the prosecutors may be withholding from Trump and must now disclose in order to help his defense.
(A famous 1963 decision by the Supreme Court, Brady v. Maryland, declared that prosecutors have a constitutional duty to share with defense lawyers before trial all of the evidence that might show that the accused person did not commit the crime charged. Trump’s team is relying heavily upon that decision as well as on the immunity ruling this summer.)
Although there is no chance that any trial of Trump on the January 6 charges could even begin before next month’s elections, the demands made by his lawyers in the new court document – if accepted to any significant degree by Judge Chutkan – would prevent any trial’s start until well into next year.
The Supreme Court’s immunity ruling has been given the widest possible scope in court filings by the Trump team, in the January 6 case as well as in other criminal cases pending against him. His defense lawyers, for example, are using the immunity decision – as they read it – to nullify all of the 34 guilty verdicts against him in May by a state court jury in New York.