Trump likens DOJ’s Jan. 6 filing to pre-election special counsel report

Lawyers for Donald Trump on Monday opposed prosecutors’ request to file an up-to-180-page legal brief this week explaining why the former president’s efforts to overturn the results of the 2020 election should not be immune from criminal prosecution, claiming that such a filing would be tantamount to releasing a special counsel report six weeks before the 2024 election.

Prosecutors asked U.S. District Judge Tanya S. Chutkan on Saturday for permission to file the unusually long legal motion, arguing that the Supreme Court in a July ruling on presidential immunity required her as Trump’s trial judge to decide what allegations and evidence against him could be admissible. The filing is a key part of the criminal case alleging Trump illegally attempted to overturn Joe Biden’s electoral victory, and it was expected to reveal new details of the evidence investigators had gathered.

But prosecutors spelled out a plan where the filing could be kept from public view, at least initially, undercutting the Trump legal team’s contention that it would be akin to an election upending special counsel report. They proposed that the filing — which would include up to 90 pages of previously disclosed evidence and newly alleged facts, as well as another 30 pages of footnotes — could be made under seal, and a public version with redactions could be released only later with Chutkan’s approval.

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

Trump’s defense urged Chutkan to reject prosecutors’ request, claiming that special counsel Jack Smith’s plan was “fundamentally unfair” and made in service of a “politically motivated agenda.” Trump’s lawyers have argued that as the defendant, the former president should have the right to choose what immunity claims to press — beginning with a bid to toss out a new, trimmed-down indictment prosecutors brought after the Supreme Court’s July 1 decision. They said he should be able to do so in his preferred order, although prosecutors complained that could bog down his case for years in successive appeals.

Trump lawyers John Lauro and Todd Blanche wrote in a nine-page filing that prosecutors’ proposed opening immunity brief “would be tantamount to a premature and improper Special Counsel report,” presenting “legal conclusions contrary to the presumption of innocence [and] privacy concerns for potential witnesses and uncharged parties.”

They said allowing the government to file under seal would create an unfair “closed record,” even as they argued against a public filing. Making parts of the motion public, they asserted, would intrude on the power and authority of the presidency that the Supreme Court ruled must not be violated, aggravate the purported unfairness of a court gag order on Trump’ First Amendment rights to speak about case-related allegations, and breach Justice Department guidelines that generally counsel prosecutors from timing actions that could impact the outcome of an election. Justice Department officials have interpreted these guidelines as asking them not to take overt steps with possible political implications in criminal cases within 60 or 90 days of an election.

“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,” Blanche and Lauro wrote. Prosecutors cannot be permitted to issue “a 180-page false hit piece” that does not respond to a defense motion and risks tainting the proceedings, they said.

Chutkan now must consider whether to stick to a court schedule she set earlier this month requiring the filing by 5 p.m. Thursday, to allow prosecutors to file the longer brief, and whether and when to make some portions public.