Jack Smith and Donald Trump argue over case length (and more)

September 24, 2024, 4:07 PM UTC/Updated September 24, 2024, 7:03 PM UTC

By Jordan Rubin

UPDATE (September 24, 2024, 3:03 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.

In one way or another, special counsel Jack Smith and Donald Trump are at odds over how long a lawsuit should be filed in court. But a closer look at Trump’s opposition to Smith’s attempt to file an oversized immunity motion suggests that the defense’s apparent strategy is to minimize the airing of damaging allegations against the Republican presidential nominee as he runs for reelection.

At issue is the federal election interference trial, where Trump’s pretrial appeal led the Supreme Court to grant him broad criminal immunity in July. Now that the case is back before U.S. District Judge Tanya Chutkan, she must apply the high court’s new immunity test to see how far the indictment against Trump can proceed. Of course, if he wins the election in November, Trump will have the power to dismiss the federal case accusing him of criminally attempting to subvert the 2020 election (he has pleaded not guilty).

Citing what Chief Justice John Roberts called an immunity decision, a necessarily fact-based inquiry into what is barred from prosecution, Smith asked Chutkan for permission to file an oversized brief, due Thursday, laying out the government's position.

But on Monday, Trump’s lawyers formally objected to the request, which could be characterized as administrative, calling Smith’s upcoming filing a 180-page bogus document. Calling the prosecution’s request for more pages “egregious,” they argue that the filing would violate (among other things) the doctrine of presidential immunity, tarnish the integrity of these proceedings, amount to a premature and improper report by the special counsel, and even risk influencing the 2024 election.

The filing by the former president’s lawyers underscores their general disagreement with how Chutkan intends the trial to proceed. They want a more piecemeal approach instead of going directly to Smith to lay out his arguments about why the charges should survive the immunity gauntlet and go to trial. Such a defense strategy, which would effectively slow down the case, would allow Trump to release as little damaging information as possible about his alleged efforts to overturn the 2020 election before the 2024 election, an election that, if he wins, would likely render any airing of allegations in court moot.

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