A political catastrophe, and maybe a legal catastrophe, struck former President Donald Trump on Wednesday afternoon, and he has little time and perhaps little opportunity to overcome the impact.
With just 34 days to go before the presidential election on November 5, a federal judge in Washington, D.C., allowed the publication of a 165-page document that lays out – in alarming detail – how federal prosecutors claim that Trump tried illegally to stay in office by overturning his defeat by the voters four years ago.
With some voters already casting their votes across the nation, and with perhaps many others making up their minds how to vote next month, the public disclosure of that document came at a perilous point in Trump’s candidacy to return to the White House. It was, at a minimum, a vivid reminder for the nation of the violent attack on the U.S. Capitol by a Trump-inspired mob seeking to block Joe Biden from becoming President in January 2021.
It thus may have been the kind of “October surprise” that can scuttle a presidential candidacy or at least severely damage it with the voting public. That may be true even though the lengthy legal proof now before the public amounted only to accusations, not a guilty verdict; Trump is nowhere near actually going to trial on the charges.
Trump’s legal team had made strenuous efforts in the past several weeks to try to head off even the creation of that document and, if it were permitted, to keep it from being made public. They charged prosecutors with attempting to disrupt his candidacy.
They pursued that effort even though the judge supervising the case, U.S. District Judge Tanya S. Chutkan, had said weeks ago: “I intend for this case to proceed on the public record as much as possible…and I will carefully weigh the relevant factors to ensure that there’s sufficient reason for keeping any material off the public record.”
In authorizing release of the document Wednesday, she wrote that Trump’s “concern with the political consequences of these proceedings does not bear on the legal issues here.”
The prosecutors’ new brief is intended as Special Counsel Jack Smith’s legal maneuver to try to salvage the case against Trump in the wake of last summer’s ruling by the Supreme Court that former Presidents have a broad form of legal immunity even if they commit crimes while carrying out their official duties.
The Court sent the case back to Judge Chutkan to sort out what part of the prosecutors’ case would be barred by the new doctrine of constitutional immunity for Presidents. Smith pared down the evidence he plans to offer against Trump, but kept a great deal to be used when the trial on the four criminal charges gets under way – perhaps not for months. The remaining evidence is what was outlined in the brief released on Wednesday. It contained pages and pages of revelations of Trump’s alleged crimes, in details never before known publicly – including much new evidence from Trump’s Vice President, Mike Pence.
Whatever Trump plans to do politically to try to overcome those disclosures, his lawyers almost certainly are planning to take come legal action to protect him. The lawyers have made it clear all along that they want to get the case back to the Supreme Court, believing the Court will again rule favorably for him.
The Court officially opens a new term next Monday, but there is no guarantee that Trump’s team could get anything to the Court before election day occurs in just five weeks. There is a serious question, legally, of whether Judge Chutkan’s release of the document is open to challenge in higher courts; it is not a final order, as such. Moreover, trial judges like her have wide discretion on how they manage the processing of criminal cases, and higher courts usually are reluctant to interfere.
Judge Chutkan is still expecting more legal briefs to be filed on the immunity question before she rules on it. Trump’s lawyers are to file another brief on immunity on October 10, less than a month before election day.
Trump’s team has given some hints that, if the damaging evidence were made public by the judge, they would attempt to argue that this will have an adverse impact on his right to a fair trial and will influence a potential jury against him. But it is not clear, as the case now stands in Judge Chutkan’s court, that they have a legal maneuver available to pursue such claims.
His lawyers, however, have been quite inventive in defending him in this case in Washington and in three other criminal cases against him elsewhere, so it would be no surprise if they fashion some way to try to get the Supreme Court swiftly involved. For example, they might start by attempting a new request for Judge Chutkan to dismiss the charges, based on the legal threat they perceive, but that would take time to resolve.
It is far from clear that there is any option for them to rush to the Supreme Court before any further action could occur in Judge Chutkan’s court. The Supreme Court is, after all, a court that handles only appeals, not trials, in almost all cases.
Trump’s legal defense and his legal rights have benefitted significantly from what the Supreme Court did in his favor in three decisions during its last term: the July 1 decision creating the concept of presidential immunity, a June 28 decision narrowing the reach of one of the laws Trump is accused of violating, and a March 4 decision barring any state from keeping him off of their primary election ballot based on his role during the attack on the U.S. Capitol in 2021.
What Trump ultimately wants from the Supreme Court is a decision that puts a complete end to the Washington prosecution and to the other cases, based on a sweeping interpretation of the immunity ruling.
What the prosecution has done, in the new brief released Wednesday, is essentially a challenge to the Supreme Court – if the immunity issue reaches it again – to confront the huge array of evidence against Trump. It appears that the only way the Court could put an end to the Washington case would be to declare that everything that Trump did was an immune, official act – essentially empowering any President to commit any type of crime in an attempt to overturn a defeat in an election.
Although there clearly were five votes among the nine Justices in favor of broad legal immunity for Presidents, one of the Court’s conservative members – Justice Amy Coney Barrett – wrote a separate opinion for only herself, seriously questioning the sweep of the ruling. She refused, in fact, even to call the protection of Presidents “immunity,” describing it as something less sweeping.
She also described some of the evidence that showed up in the document released Wednesday as not qualifying as official action; she interpreted that evidence as either political in nature or as outside the realm of official presidential duties.
She would be in a position, in any future Trump case, to try to convince her conservative colleagues not to go too far in granting Trump a virtual pass from accountability for the crimes charged over the 2020 election. She would likely have the support for such an effort from the three liberal Justices who dissented from the July 1 immunity ruling.
Barrett would still need a fifth vote to keep the prosecution of Trump intact, and thus might focus her internal efforts on Chief Justice John Roberts or Justice Brett Kavanaugh as potential allies.
If Trump were to win the Presidency on November 5, however, there is very little chance that the prosecution of Trump would continue under a theory long advocated by the Justice Department that Presidents may not be prosecuted for crimes while in office.
