Washington, DC – As the legal fights surrounding former President Donald Trump get more heated, his longtime lawyer Rudy Giuliani will soon be criminally charged for his role helping Trump’s campaign retain power after the 2020 election; and Special Counsel Jack Smith will file a 180-page dossier of evidence that he claims shows Trump conspired to overturn the election results. That evidence is going to have to be filed under seal with the U.S. District Judge Tanya Chutkan because it contains some of the most crucial evidence of Smith’s two-year investigation into Trump’s efforts to overturn the 2020 election, from planning the fake ‘stop the steal’ rallies to inciting his mob on 6 January. If Americans who are electing in the 2024 election ever see any of this evidence will be up to Judge Chutkan.
Expected on Thursday, the filing is likely to include testimony from key witnesses, including former vice president Mike Pence and Trump’s former chief of staff Mark Meadows, revealing new and damning details about what Trump did and said before the 6 January Capitol attack – including trying to pressure state officials and members of Congress to overturn the election results. Prosecutors will include the brief itself, with the necessary exhibits, under seal, and then judge Chutkan will decide whether to reveal any of this prior to the 2024 election.
A Last Chance to Present the Case
Smith’s dossier is the endpoint of an investigation that’s been held up by court delays, even before Trump attempted to use claims of executive immunity to delay Smith’s efforts to bring the case to trial. A Supreme Court ruling in July that gave the former president broad immunity for official acts ensnared Smith’s work, too; he has had to retool portions of his case, severing allegations and paring back actions Trump took as a candidate to those he took as president.
The memo will therefore have to spell out how Trump pursued a campaign to deny the franchise to voters, how he pressed state officials to submit fraudulent slates of electors, and how he tried to persuade Congress to torpedo the election certification process. Smith’s team will argue that these activities fell outside the zone of presidential immunity and should be tried.
For all its heft, the calendar adds urgency. Election Day for the White House is 5 November 2024. If Trump wins, the case against him will almost certainly be halted, because Justice Department policies bar the prosecution of a sitting president.
Judge Chutkan’s Role and Trump’s Legal Strategy
Obama appointee Judge Chutkan remains firmly in the driver’s seat as to when the evidence can be released or how much of it (a procedural order earlier this week reminded both sides that the calendar dictated by politics wouldn’t control her pace to resolution, even as the Trump legal team continues to claim that the case amounts to election meddling). Trump’s attorneys are already saying that any public release of evidence would amount to inappropriate election interference heading into the 2024 election.
The stakes for Trump could not be higher. His legal team has litigated that the entire case should be dismissed in light of the Supreme Court’s broad reaffirmation of presidential immunity – based on the Department of Justice memo, Trump’s post-5 November conduct was protected official government act. Smith, on the other hand, will likely counter that Trump was acting as a political candidate, not a president or presidential campaign, and that the First Amendment would not immunize those acts.
What’s in the Dossier?
Much of the wide-ranging case against Trump has been reported so far in the context of congressional investigations, civil lawsuits and the news. However, some of Smith’s new information might include previously unseen evidence, such as testimony from key figures who refused to cooperate with other probes and spoke only to Smith’s team under subpoena.
One of them is the former vice president Mike Pence, at the heart of Trump’s final effort to block certification of the votes on 6 January. Dan Scavino, Trump’s social media adviser who was with the ex-president in the office where he watched the riot unfold, declared that he would not talk to Congress but did talk to Smith’s team. Smith reportedly has taken data from Trump’s Twitter account (now X) that could reveal his communications and state of mind on the day of the Capitol attack.
Respected legal observers suggest that this dossier might contain documents obtained from the National Archives and logbooks of what Trump was doing throughout the violence on 6 January, possibly showing how deeply involved he was in attempts to stop the certification of the election.
A Complex Legal and Political Battlefield
The stakes of this case are constitutional (if the case makes it to trial and Trump is convicted, it would be the first time a US president – former or otherwise – is convicted of attempting to overthrow the country’s democratic process) and the existence of presidential immunity, executive privilege and the proximity to the 202
From the legal battle to obtain testimony to a larger question about the role of the Justice Department in prosecuting a president – and specifically a former president running for office – Smith’s investigation has not been easy, and the battle between Trump and the justice system is far from over. Thursday’s sealed filing will be the latest salvo. The public, of course, has yet to see what, if anything, it reveals.
As Judge Chutkan’s decision nears, what will indeed become public – and when – will provide a clearer sense for the nation of the ramifications of Trump’s actions not just for his political fortunes, but for the constitutional prerogatives of the prosecutorial branch.
Sources:
- Politico, ‘Jack Smith Poised to Present Key Evidence to Judge Chutkan Ahead of Trump Case’ (September 2023).
- The New York Times, ‘Trump Lawyers Argue for Immunity as Jack Smith Readies Filing’, September 2023.
- CNN, ‘Trump’s Legal Team Takes Hit in Special Counsel’s Case Over Election Subversion’, September 2023.
- NBC News, Inside Jack Smith’s Dossier: New Evidence That Could Define Trump’s 2024 Bid (September 2023).
- Reuters, “Special Counsel Smith’s Latest Evidence Push: What’s at Stake,” September 2023.
- The Guardian, “Trump’s Lawyers Battle Evidence Disclosure as Election Nears,” September 2023.
- AP News, ‘What to Expect From the Next Court Filing in Jack Smith’s Investigation’, September 2023.
- NPR, “Smith’s Evidence Filing Looms as Election Interference Accusations Fly,” September 2023.
- Washington Post, ‘Could Smith’s 180-Page Brief Clarify Trump’s Chances of Re-Election in 2024?’, September 2023.
- MSNBC, “The Anticipated Fallout From Jack Smith’s Submission in Trump Investigation,” September 2023.
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