Michael Macagnone | (TNS) CQ-Roll Call
Donald Trump urged a Washington federal judge Thursday not to release some evidence about his attempt to overturn his loss in the 2020 election until after Election Day in the 2024 contest, arguing it would taint his trial and the presidential campaign.
Trump’s attorneys made the argument in a bid to keep from the public evidence that special counsel John L. “Jack” Smith filed under seal in the criminal case against the former president.
Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia had ruled last week that she would release the evidence but gave Trump until Thursday to make new arguments or potentially appeal.
In a filing Thursday morning, Trump’s attorneys argued for Chutkan to delay the release of the evidence until after the election, so that it could be released alongside his own filing.
Trump previously had asked for and got a five-week delay for him to file the evidence he wants to use in the case.
The filing Thursday from the Republican nominee for president said that releasing a narrative of “cherry-picked materials” would hurt Trump’s defense and his electoral chances, noting “the Presidential election that is less than 3 weeks away.”
Trump’s attorneys argued that some of Smith’s filings have already been used by Vice President Kamala Harris in the campaign.
Chutkan already released the legal arguments Smith filed earlier this month, which is part of a flurry of new action in the criminal case against Trump since the Supreme Court ruled earlier this year that gave presidents “absolute immunity” around the core of their presidential powers and possible immunity outside of that.
Smith’s argument that Trump’s election effort was primarily a private one rather than his official duties also offered the most complete picture yet of the special counsel’s case against the former president.
While it contained much of what had been previously publicly reported, including the report of the House select committee on the Jan. 6, 2021, attack on the Capitol, it also contained hints at a trove of evidence including text messages, interviews with major witnesses and more.
Trump is also set to make his own argument over presidential immunity Thursday, with a deadline to renew his effort to dismiss the case in light of that Supreme Court ruling.
The filing is set to be based on a new indictment Smith filed last month, which kept the same charges as the original 2023 indictment, including conspiracy to defraud the United States and obstruction of an official proceeding.
The new indictment removed many allegations that the Supreme Court said were off limits in the case, including Trump’s effort to enlist Justice Department and White House officials in the scheme to overturn his loss.
Since the Supreme Court ruling in July, Chutkan has taken over the case again and ruled against Trump in multiple instances, including this week.
In an order Wednesday, Chutkan largely denied Trump’s requests to receive more discovery from the federal government, including evidence of foreign interference in the 2020 election and files detailing the investigation into Russian interference in the 2016 election.
Chutkan separately wrote that Trump could still be held responsible for the Jan. 6, 2021, attack on the Capitol even if he did not order the attack directly. Trump’s attorneys had argued to include prosecutors’ statements from the hundreds of prosecutions from people who attacked on Jan. 6, where they said the defendants bore responsibility for their actions.
“It is entirely conceivable, for instance, that Defendant could share responsibility for the events of January 6 without such express authorization of rioters’ criminal actions that they could claim entrapment-by-estoppel or public authority defenses,” Chutkan wrote.
Trump also sought information about the DOJ investigation into former Vice President Mike Pence’s handling of classified documents after he left office.
Chutkan wrote that the information about the interactions that Pence — regarded as a key witness in the case — had with investigators could be important to Trump’s defense.
Smith has also fought a renewed Trump effort to dismiss the indictment relying on a second, separate case at the Supreme Court this past term. In that case, Fischer v. U.S., the Supreme Court restricted prosecutors’ ability to use a document-based obstruction statute against the rioters at the Capitol.
In a filing Wednesday, Smith sought to differentiate Trump’s case from rioters who stormed the Capitol by pointing to evidence that Trump masterminded an effort to “create and use false evidence — fraudulent electoral certificates — as a means of obstructing the certification proceeding,” which the Supreme Court held would fall under the law.
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