WASHINGTON – Special counsel Jack Smith on Thursday filed, under seal, a legal brief that prosecutors have said would contain sensitive and new evidence in the case charging former President Donald Trump with plotting to overturn the 2020 election he lost.
The brief, submitted over the Trump team’s objections, is aimed at defending a revised and stripped-down indictment that prosecutors filed last month to comply with a Supreme Court ruling that conferred broad immunity on former presidents.
Prosecutors said earlier this month that they intended to present a “detailed factual proffer,” including grand jury transcripts and multiple exhibits, to U.S. District Judge Tanya Chutkan in hopes of persuading her that the allegations in the indictment should not be dismissed and should remain part of the case.
A spokesman for the Smith team, Peter Carr, confirmed that prosecutors had met their 5 p.m. deadline for filing a brief.
Though the brief is not currently accessible to the public, prosecutors have said they intend to file a redacted version that could be made available later, raising the prospect that previously unseen allegations from the case could be made public in the final weeks before the November election.
The Trump team has vigorously objected to the filing, calling it unnecessary and saying it could lead to the airing of unflattering details in the “sensitive” pre-election time period.
“The Court does not need 180 pages of ‘great assistance’ from the Special Counsel’s Office to develop the record necessary to address President Trump’s Presidential immunity defense,” Trump’s lawyers wrote, calling it “tantamount to a premature and improper Special Counsel report.”
The brief is the opening salvo in a restructured criminal case following the Supreme Court’s opinion in July that said former presidents are presumptively immune for official acts they take in office but are not immune for their private acts.
In their new indictment, Smith’s team ditched certain allegations related to Trump’s interactions with the Justice Department but left the bulk of the case intact, arguing that the remaining acts — including Trump’s hectoring of his vice president, Mike Pence, to refuse to certify the counting of electoral votes — do not deserve immunity protections.
Chutkan is now responsible for deciding which acts left in the indictment, including allegations that Trump participated in a scheme to enlist fake electors in battleground states he lost, are official acts and therefore immune from prosecution or private acts.
She has acknowledged that her decisions are likely to be subject to additional appeals to the Supreme Court.
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