Trump's latest battle to cover up the January 6 affair until Election Day

Through a combination of luck, counsel and, above all, leniency from the United States Supreme Court, Donald Trump managed to keep voters from knowing the mountain of evidence that special prosecutor Jack Smith gathered to support the criminal charges linked to his efforts to overthrow his mandate. 2020 loss to Joe Biden. But Trump will need an additional break to prevent more evidence against him from being disclosed before the election, and that will require an expansion of the Supreme Court's already extremely broad view of presidential immunity.

The justices sent the case back to U.S. District Judge Tanya Chutkan, who has the unenviable task of trying to apply the court's Delphic opinion to the multiple allegations in Smith's indictment. Chutkan last week granted the government's request to file an oversized brief stretching up to 180 pages, four times longer than the usual maximum of 45. The government argued it needed space to provide the trial court with a detailed analysis of the reasons for the charges against him. immunity does not stand in the way of this matter.

The government's basic argument is that the entire indictment complies with the Supreme Court's guidelines. Prosecutors say nothing they propose to present is based on evidence that the new principles of court immunity prohibit.

Pursuant to a long-standing protective order in the case, the government last week filed the 180-page brief under seal, along with a much longer appendix of source documents. We have therefore not seen any of the evidence which constitutes the prosecution's case.

Here's where it gets interesting: Chutkan's immediate task is to decide how much of the sealed brief should be made public. In the D.C. Circuit, as in most countries, court records are presumed to be publicly available. This presumption can be overcome and court documents can remain sealed if a party satisfies a six-factor test.

The government argues that only the names and other identifying information of potential witnesses who were not identified in the indictment and who could be subject to harassment should remain under seal. From the government's point of view, most of its mandate should be made public. That would mean opening up a trove of incriminating information about Trump, starting with the entire contents of statements made by others, including summaries of grand jury transcripts, interview reports and documents obtained through warrants search warrants sealed.

Is former Vice President Mike Pences reporting to the grand jury about Trump who criticized him for refusing to break the law? Check. Former White House Chief of Staff Mark Meadows' Statements to Special Advisor? Check. Are there any Trump remarks reported by witnesses such as Cassidy Hutchinson? Check.

This is not the full trial that those who seek accountability for the former president were hoping to see. It's not even an evidentiary hearing or mini-trial that some considered possible when the case came back to Chutkan. But it is an extremely powerful body of evidence that could damage Trump's prospects if made public before the election. Talk about an October surprise.

This is exactly why Trump will stop at nothing to try to contain this situation. He has until Tuesday to respond to the government's motion, arguing that most of the brief should be made public (and until October 10 to table a motion on the longer annex, which the government allows to be largely redacted). His lawyers will likely argue that making the information public would cause him serious harm, in violation of Supreme Court guidelines.

But the court's opinion on immunity is not about whether the evidence can be made public, but only whether it can serve as the basis for criminal charges. Additionally, courts routinely exclude evidence from jury review in criminal cases if it was discovered as a result of an improper search, for example while allowing its disclosure to the general public. And of course, some of the damning evidence against Trump was already made public by the House committee on January 6.

Trump will nonetheless likely attempt to exploit the courts' opinion to argue for a much broader privilege to prevent the public disclosure of any evidence that cannot be used to indict him.

For example, in explaining the need for broad presidential immunity, the court reasoned that a president might be deterred from bold action by the particular public opprobrium that attaches to criminal proceedings. Trump's lawyers have recycled this phrase more than once in their filings and will likely try to present it as leverage against any release of the evidence. They could also highlight the courts' emphasis on the need to protect the president's confidential communications with senior officials.

Chutkan is unlikely to accept such arguments to recognize a new legal principle weighing against disclosure of the file. But Trump's real goal will be to prevent the judge from unsealing the brief while he appeals the case to the Washington Circuit Court and potentially to the Supreme Court, whose optimism over presidential immunity s 's revealed virtually limitless so far.

The crucial question will not be whether Trump ultimately prevails in his claims, but rather whether he can manipulate the legal process enough to waste time, thereby preventing Smith's damaging evidence from emerging before the day of ballot. If Trump manages to delay the law once again, it will be a win for him and a loss for voters.

Harry Litman is the host of the Talking Feds podcast and the Talking San Diego speaker series. @harrylitman

Sources 1/ https://Google.com/ 2/ https://www.latimes.com/opinion/story/2024-09-30/donald-trump-jan-6-jack-smith-election-2024-redaction-harry-litman The mention sources can contact us to remove/changing this article

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