Special counsel proposes making public more evidence from Trump election case

Special counsel Jack Smith has asked a federal judge to make public a substantial amount of the evidence that he and his deputies have collected during nearly two years of investigating former President Donald Trump’s efforts to overturn the 2020 election, according to a court filing unsealed Friday.

In the filing, Smith described the sorts of information about Trump that he would like to reveal in a public version of a lengthy secret brief that he submitted under seal Thursday evening to Judge Tanya Chutkan, who is overseeing the election interference case in U.S. District Court in Washington.

The sealed brief, which may have been as long as 180 pages with a lengthy additional attachment of exhibits, was Smith’s attempt to defend his indictment of Trump against the Supreme Court’s recent ruling granting him a broad form of immunity against criminal prosecution for official acts.

Smith told Chutkan that the public version of his brief should include quotations and summaries of grand jury testimony from – and interviews with – several chief witnesses in the case, including top White House officials such as former Vice President Mike Pence. But to protect lesser-known witnesses from harassment, Smith said the names of people not already identified in the indictment should be redacted.

“The public’s interest is fully vindicated by accessing the substantive material in the government’s filing,” Smith wrote. “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.”

Smith’s filing and the subsequent discussions of how much of its evidence should be released are a direct result of the Supreme Court’s ruling on immunity. That ruling granted Trump – and all other future former presidents – wide protections against prosecution from charges arising from most of their official actions. As part of the decision, the court ordered Chutkan to sort through the indictment against Trump and decide which of its many allegations should be tossed out because of the new immunity rules and which could survive and go trial.

Smith’s lengthy brief was the first round of that sorting process and was filed under seal because much of the evidence he used to make his case that the charges should survive came from sensitive sources, such as grand jury testimony. Those types of evidence are typically shielded by rules of criminal procedure and, in this particular case, by a protective order.

Chutkan has power to decide how much of Smith’s evidence can be unsealed. That could perhaps add to the wealth of information about Trump’s attempts to stay in power. A House select committee, which investigated the events leading to the Jan. 6, 2021, riot at the Capitol, unearthed significant evidence against Trump during its own inquiry two years ago.

In a brief order issued Friday, the judge gave Trump’s legal team until noon Tuesday to file any objections to Smith’s proposals for releasing the material. She also imposed a deadline of Oct. 10 for any objections to Smith’s request to keep all of the nonpublic, sensitive materials in the exhibits attached to his brief entirely under seal.

A fight is likely.

Even before Smith filed his lengthy brief, Trump’s legal team had objected that it would amount to a “selective and biased account,” and complained that it would be “tantamount to a premature and improper special counsel report.”

If it were made public, Trump’s lawyers said, it “will undoubtedly enter the dialogue around the election.”

At a hearing this month, a lawyer for Trump, John F. Lauro, said they would also want to make public their own selections of evidence that is now under seal – contending, without offering details, that portions are exculpatory.

He also said that “we would have a right to do that during this sensitive time,” referring to the election.

Chutkan has repeatedly said she will not treat the timing of the coming election as “relevant” when making decisions about the legal case before her.

This article originally appeared in The New York Times.