Special counsel Jack Smith can file an oversized, 180-page motion on presidential immunity in Donald Trump’s Washington DC federal court election interference case, a judge ruled Tuesday.
Judge Tanya S Chutkan’s decision stems from prosecutors’ 21 September request to exceed the typical 45-page limit for opening motions and oppositions. Smith’s motion must be filed by Thursday and will include both legal arguments and evidence and could provide additional insight into Trump’s efforts to throw out election results, though it is unclear when the public might be able to see the material given that it will initially be filed under seal.
Trump faces four felony counts over his effort to subvert the 2020 election, though a July US supreme court ruling on presidential immunity threw the case into near disarray.
The supreme court held that Trump and other presidents enjoy immunity for official acts, but not unofficial ones, undermining charges related to his alleged pressure campaign on justice department officials.
The supreme court remanded the case back to Chutkan, who must decide which claims in Smith’s case are official acts, and which are not official. Smith filed a new indictment against Trump in August, which does not dramatically change this criminal case, but revamps some parts to stress that Trump was not acting in an official capacity in his attempt to overturn election results.
Prosecutors proposed in a 5 September hearing that they should file a brief on the immunity issue with “a comprehensive discussion and description of both pled and unpled facts … so that all parties and the Court know the issues that the Court needs to consider in order to make its fact-bound determinations that the Supreme Court has required”.
In green-lighting prosecutors’ request to file an unusually sizeable motion, Chutkan noted the supreme court’s direction that she needs to engage in a “close” and “fact-specific” examination of this indictment and related accusations.
“The length and breadth of the Government’s proposed brief reflects the uniquely ‘challenging’ and factbound nature of those determinations,” the judge said in her ruling. “The briefs’ atypical sequence and size thus both serve the efficient resolution of immunity issues in this case ‘at the earliest possible stage.’”
Trump’s legal team had fought prosecutors’ request to file a lengthier brief, complaining that it would “quadruple the standard page limits” in the district. They also unsuccessfully opposed Smith’s filing of this brief now, and argued that immunity arguments shouldn’t take place until Trump files a motion to dismiss the case.
Prosecutors said in court filings that they are poised to file their briefing under seal, given the “substantial amount of sensitive material” and later file a public version that has redactions.
