In a filing late Thursday night, lawyers for former President Donald Trump breathed new life into the election subversion case linked to the Jan. 6, 2021, insurrection, arguing that Trump’s alleged pressure campaign on former Vice President Mike Pence would qualify as official conduct and is protected by “absolute” immunity. They also alleged that special counsel Jack Smith has improperly withheld exculpatory evidence ahead of trial.
U.S. District Judge Tanya Chutkan had ordered Trump’s lawyers — Todd Blanche, John Lauro and Emil Bove — to follow up by Sept. 19 with more arguments for two motions that the defense initially filed in November 2023. Chutkan had set a deadline of 5 p.m. for the filings, but the former president’s lawyers claimed they “did not realize” that and filed it just before midnight. One was a motion to compel discovery from Smith, arguing prosecutors were engaged in “efforts to suppress and withhold” potentially exculpatory evidence from Trump that would support the thrust of his defense at trial — namely, the Republican’s claim that he genuinely believed the 2020 election, which he lost to Democrat Joe Biden, was “stolen.”
The other motion, which was partially redacted, sought an order setting the scope of the prosecution and urged that the defense team’s vast discovery requests should be honored not just by Smith’s office but by any component or division of the Justice Department that helped investigate the 2020 election or Jan. 6 riot at the Capitol. Trump’s lawyers said agencies such as the FBI, the Secret Service, the CIA, the Defense Department and others should be compelled to turn over discovery records.
Both of the November motions were entered before the U.S. Supreme Court issued its ruling on presidential immunity. Trump’s lawyers zeroed in on that in their new filing, calling for the dismissal of the case because the initial discovery review period lacked the “important parameters” the high court set on immunity for presidents.
“That is the only just course of action consistent with (1) the Supreme Court’s decision in Trump v. United States; (2) the critically important institutional interests that support the Presidential immunity doctrine; and (3) the stubborn reliance by the Special Counsel’s Office on allegations relating to Vice President Pence that are, at least, presumptively immune,” Trump’s lawyers wrote.
The superseding indictment in the Jan. 6 case was filed in August and retained all of the charges initially brought against Trump a year ago, including conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights, a charge related to any joint attempt to “injure, oppress, threaten, or intimidate” a person in the exercising of their rights.
But after the Supreme Court’s ruling on prosecutorial immunity in July, certain allegations and references to Trump’s discussions with senior leaders at the Justice Department were omitted because the high court had found that while Smith alleged Trump’s requests for probes into supposed voter fraud were a “sham” or “for an improper purpose,” it still did not divest Trump of his executive authority over the Justice Department or its officials.
“And the President cannot be prosecuted for conduct within his exclusive constitutional authority,” Chief Justice John Roberts wrote. “Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
Importantly, Roberts found too that Trump has “at least presumptive immunity” for the alleged pressure campaign on Pence to stop the certification of the 2020 election results. This left a small window open for Smith to capitalize on.
Trump, Smith argued anew in August, acted beyond the scope of “presumptive immunity” when attempting to enlist Pence in a scheme based on knowingly false claims to supporters.
Smith alleged Trump — in his capacity as a candidate for office, rather than as president — made those claims “with deliberate disregard for the truth” and used his Twitter account for personal purposes to “exhort his supporters to travel to Washington, D.C. on January 6, pressure the Vice President to misuse his ceremonial role in the certification proceeding, and leverage the events at the Capitol on January 6 to unlawfully retain power.”
The repeated dissemination of those statements about the election and its results individually or through his campaign were “unsupported, objectively unreasonable, and ever-changing, and the Defendant and co-conspirators repeated them even after they were publicly disproven,” Smith alleges.
The special counsel argues that Trump was informed by his own administration officials, as well as state officials, election directors, secretaries of state, the National Association of State Election Directors and others that the fraud claims he espoused were false and that this should remove any hope he has of “presumptive” immunity over that conduct.
“While President Trump’s knowledge of certain facts may be pertinent to future admissibility determinations, it is improper to saddle the defense with an evidentiary burden at this phase of the case,” Trump’s lawyers wrote Thursday after suggesting that allegations involving Pence were “false and exaggerated.”
Smith is relying on “selected guidance and judgments by officials it [the special counsel’s office] favors from the Intelligence Community and law enforcement,” as well, they claimed.
The core of Trump’s defense holds fast to this claim and others, including that he only ever asked supporters to “peacefully and patriotically make ... [their] voices heard” when he delivered a speech at the Ellipse in Washington ahead of the Capitol riot and that whatever claims of voter fraud he raised were permitted because they arose from legitimate concern and duty.
“It was not unreasonable at the time, and certainly not criminal, for President Trump to disagree with officials now favored by the prosecution and to rely instead on the independent judgment that the American people elected him to use while leading the country,” Trump’s lawyers wrote in November.
Smith, they continued, “cannot contend that President Trump is ‘responsible’ for January 6 while suppressing public and private statements to the contrary by other prosecutors and officials during prior cases,” as well as “information relating to security measures that informed President Trump’s remarks and assessment of the situation.”
It is a “virtual certainty,” Trump’s lawyers suggested without proof in November, that there are private communications and nonpublic documents from officials that are subject to pretrial discovery rules requiring prosecutors to give defendants any evidence that could exonerate them.
But because there are so many, they say, the onus should be on Smith to point them out.
Trump’s legal team also argued that the Biden administration launched a “politically motivated” Jan. 6 prosecution, and that Trump should therefore receive access to any communications regarding probes of the 2020 election and Jan. 6, which he claims were shared among “members, relatives, or associates of the Biden Administration.”
Alleging collusion among prosecutors and virtually every government agency or entity that has investigated Jan. 6, Trump also notably appeared willing to drag Pence into the fray once again.
A small number of classified materials were found at Pence’s Indiana home in January 2023 after the former vice president asked for a search of records following news of classified documents being found at President Joe Biden’s home in Delaware. In June 2023, the Justice Department opted not to charge Pence.
“If Vice President Pence committed crimes that the DOJ elected not to prosecute for discretionary reasons, that benefit must be disclosed. This is one of the ‘certain situations’ where ‘external facts’ support a ‘specific bias, or motive to testify in a particular way’ that is ‘admissible to impeach a witness,’” Trump’s lawyers wrote.
There may be a quick response from Chutkan, as she has historically been nimble with orders in the case. But there may be a slight delay given that she received Trump’s filing so late on Thursday.
Trump’s lawyers did not immediately respond to HuffPost’s request for comment.