After months of standstill, there is rapid movement in Trump’s DC election interference/insurrection case. On Thursday, Special Counsel Jack Smith delivered a 180-page brief, with attachments, to US District Judge Tanya Chutkan under seal. On Friday, she gave Trump’s lawyers a narrow window to argue why it should not be unsealed.
In his brief, Smith argues why his superseding indictment, charging Trump with four felonies relating to his attempt to overthrow the 2020 election, meets the Supreme Court’s directive that an ex-president cannot be charged with crimes for official duties while in office. It further explains how the evidence prosecutors will present in Trump’s trial will not contravene SCOTUS’s decision that evidence arising from official acts is inadmissible.
Smith filed the paperwork under seal — but with redactions he argues will allow Chutkan to release the brief and its supporting documents to the public.
As ABC News reported:
In their filing Friday, prosecutors argued that releasing a version of the brief that removes the names of witnesses other than Vice President Mike Pence -- and also redacts nonpublic information sources -- would respect the court's orders and serve the public's interest in the case.
”Rather, the public's interest is fully vindicated by accessing the substantive material in the Government's filing," the filing said. "For example, the unredacted substance of what a witness said is more important, for purposes of public access, than the redacted identity of the specific person who said it."
On Friday, Chutkan gave Trump’s lawyers until October 1 (next Tuesday) to file their objections to unsealing Smith’s 180-page main brief. And she gave them until October 16, to present their arguments why the supporting documents should not also be unsealed.
No one can know what Chutkan will decide — full release, partial release, no release. Nor can they say how long she will take to decide. However, Chutkan is no Aileen Cannon. She is not in the tank for Trump. She does not waste time. And I suspect (admittedly based on no evidence) that she loves the law enough to want to rebalance the scales of justice. Scales that are tarnished by the greasy fingerprints of the six SCOTUS justices who have thumbed them to run interference for the serial felon.
Theoretically, we could see Smith’s evidence of Trump’s electoral perfidy as soon as October 2 — a scant five days from now. And the supporting documents could be in the public record as soon as October 17th. However, whatever is released will contain at least Smith’s redactions of his own material. And Chutkan may allow Trump’s team some further censoring — if she allows the release at all.
The big question is if Trump can appeal a Chutkan decision to allow the unsealing — or if Smith could if she chose to keep the matter secret. Smith will not. He has already said he will leave it up to the judge’s discretion. And Trump cannot (with one huge caveat). Scheduling decisions are not technically appealable.
But this Supreme Court has already ignored precedent and created law out of whole cloth. So God only knows what they will do. Thomas and Alito are guaranteed to try and interfere. But they will have to convince two of the other four conservatives to join them to hear an appeal.
If they did, it would put SCOTUS on thin ice. If Harris wins the election — and the Democrats hold the Senate and take back the House — the likelihood they would expand the Court would increase exponentially.
I cannot say that Roberts, Kavanaugh, Gorsuch, and Barrett have a conscience or are capable of self-reflection. But I imagine they are sensitive to their image. And their approval rating is already so low, they must ask themselves if they want to spend the rest of their tenures in infamy. If they do choose to continue taking the low road, the Taney Court will be dethroned as the worst Supreme Court in the nation’s history.
