UPDATE (Sept. 24, 2024, 3:07 p.m. ET): On Tuesday, U.S. District Judge Tanya Chutkan granted special counsel Jack Smith’s motion to file an “oversized” brief on presidential immunity.
Special counsel Jack Smith wants to file an “oversized” motion in Donald Trump’s federal election interference prosecution. It’s the sort of request that might be unremarkable in a typical case, but Trump’s opposition to it underscores its significance.
Smith’s request came in a court filing Saturday to U.S. District Judge Tanya Chutkan, who’s presiding over Trump’s Washington, D.C., criminal case and now faces the complex task of figuring out what the Supreme Court meant in its July ruling granting broad criminal immunity to the Republican presidential nominee. The Republican-appointed high court majority told Chutkan she must determine “in the first instance” which of Trump’s alleged actions are immune from prosecution under the new immunity test.
Whatever Chutkan decides, the justices will have the chance to review her work before any trial can go forward.
The July 1 decision grants absolute immunity for “core” presidential acts, presumptive immunity for all other official acts, and no immunity for unofficial acts. The vague nature of the ruling makes it difficult to apply. And whatever Chutkan decides, the justices will have the chance to review her work before any trial can go forward. If Trump wins the coming presidential election, he will be empowered to dismiss the federal case, which would legally moot the issue of whether the government overstepped in charging him for his alleged criminal efforts to subvert the last presidential election.
After the justices sent the case back to her following the immunity ruling, Chutkan set a scheduling order for how they’ll proceed. Among the dates on her order is one telling Smith to “file an Opening Brief on Presidential Immunity by September 26, 2024” — that’s this coming Thursday.
Explaining his reasoning for wanting 180 pages instead of the typical 45, Smith pointed to the Supreme Court ruling itself. In that ruling, Chief Justice John Roberts’ majority opinion explained that the analysis is “necessarily factbound.” The special counsel’s team wrote to Chutkan that, because whatever she decides faces “exacting appellate review” — that is, another round of scrutiny by the justices — “it is essential that the Court [Chutkan] ensure that the record in support of its determinations is complete.” Smith’s filing notes that Trump opposes the request. Chutkan gave the former president’s team until Monday at 5 p.m. ET to explain his opposition. We’ll see what it says. But Smith’s filing suggests that, whatever issue Trump has with a longer-than-usual motion arguing why his alleged actions aren’t immune from prosecution, he should take it up with the Supreme Court ruling that said a detailed analysis is required. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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