Major decision for judge in Trump’s election case: How much evidence to reveal

Special counsel investigations that culminate in lengthy factual reports have become common in American political life. Special counsel reports have provided public documentation about the 2016 Trump campaign’s ties to Russia, the FBI’s bumbling in the early stages of that investigation and President Joe Biden’s handling of classified documents.

When Jack Smith, the special counsel scrutinizing former President Donald Trump’s attempt to subvert the 2020 election, found sufficient evidence to indict him last summer, it looked as if that inquiry would come to a head differently — with a full airing of evidence against his main investigative target in front of a jury.

That path, however, was significantly diverted this summer when the Supreme Court ruled that Trump enjoyed a broad form of immunity from criminal prosecution over official acts, raising doubts about whether the election case would ever go to trial. Should Trump be elected again, he would also most likely have the Justice Department shut down the prosecution.

Still, in an odd legal twist, the Supreme Court ruling has opened the possibility that a significant amount of the previously undisclosed evidence Smith has gathered could be revealed in public court filings — maybe even before Election Day.

On Thursday, Smith is scheduled to submit under seal a massive brief outlining his case against Trump, including what the special counsel’s office has described as about 90 pages of facts and more than 30 pages of footnotes to an exhibit appendix.

The brief is intended to persuade the trial judge in U.S. District Court in Washington, Tanya S. Chutkan, that enough of the specific accusations supporting Trump’s indictment for illegally plotting to overturn his electoral defeat are not immune under the new standard, permitting the case to go forward.

The Supreme Court has directed Chutkan to conduct a “close” and “fact-specific” analysis, and sort through what evidence is now off-limits as immune and what prosecutors could still use — either because Trump’s alleged actions were unofficial ones that he took in his role as a candidate rather than as the president, or because they met an exception the court left open for certain peripheral official conduct.

Since it will be under seal, the special counsel’s lengthy filing would only be seen at this point by Chutkan and Trump’s defense team. But Smith was also expected to submit a separate version with proposed redactions that Chutkan may decide at some point to place on the public docket. A consortium of news organizations, including the New York Times, is expected to ask her to unseal the material.

Trump’s own legal team has decried the prospect of a public version eventually being filed as “tantamount to a premature and improper special counsel report” that “will undoubtedly enter the dialogue around the election.”

Chutkan has given no indication of her intentions, and she could well decide to keep most of the evidence being submitted by Smith under wraps. At a hearing before her earlier this month, Thomas P. Windom, a prosecutor working for Smith, noted, “It is the court that will decide what is unsealed from the sensitive discovery. It is not the defense or the government that will do that.”

Much is already known about Trump’s multiple overlapping efforts to stay in power. A House select committee spent months investigating the events that culminated in the Jan. 6, 2021, attack on the Capitol by a pro-Trump mob and publicized its findings in televised hearings and a lengthy written report.

Smith added further details to the record in his indictment, and media accounts have also surfaced many facts.

Still, Smith is believed to have gathered additional facts that were not recounted in the House report or in the indictment.

For example, several key witnesses in the case — including Mike Pence, Trump’s vice president, and his White House chief of staff, Mark Meadows — either refused to speak with the House committee or did not fully cooperate. But after an extended legal battle, they did testify before Smith’s grand jury or speak with his investigators.

A grand jury rule normally requires the government to keep secret information gathered by such investigative bodies — like testimony by witnesses whom prosecutors call to testify before them, or documents investigators gather with their subpoenas. But that rule contains exceptions. Among them, Chutkan can authorize the disclosure of grand jury information “preliminarily to or in connection with a judicial proceeding.”

Regardless of how Chutkan handles the release of Smith’s new evidence, her ruling is widely expected to be appealed — meaning the Supreme Court will get an opportunity to have the final say in deciding which parts of the case will have to be tossed before any trial.

On one level, Smith and Chutkan are simply complying with what the Supreme Court said should happen next.

In the Supreme Court ruling, Chief Justice John G. Roberts Jr. created a system in which prosecutors seeking to hold an ex-president accountable for crimes committed in office are forced to air their entire cases before any trial so that every piece of evidence can be subjected to judicial scrutiny — and appeal — to see whether it meets the new standard.

But the analogy that Trump’s lawyers have put forward — that Smith’s filing would amount to a special counsel report “masked” as a court brief — is striking.

As a matter of substance if not form, a brief detailing investigators’ findings — alleged actions by those ex-presidents, and related facts that provide context for understanding them — does not sound very different from a report that recounts the findings of any special counsel investigation into a politically sensitive matter.

Technically, a special counsel report is a confidential document written for the attorney general at the end of their work. But in practice, attorneys general make those reports public, just as Chutkan is empowered to do with Smith’s brief.

If Trump were to win the election, it is widely assumed that he would order the Justice Department to fire Smith and terminate the case, ensuring there would never be a trial and either short-circuiting any opportunity for Smith to write a report or suppressing it if Smith has already been developing one.

Under those circumstances, the facts Smith has included in the brief could be the most thorough accounting of his investigation — and they might become public only if Chutkan authorizes disclosure.

For another, as Trump’s lawyers are loudly complaining, any disclosure that comes in the closing weeks of the campaign could become an election issue.

“The Special Counsel’s Office is seeking to release voluminous conclusions to the public, without allowing President Trump to confront their witnesses and present his own, to ensure the document’s public release prior to the 2024 presidential election,” they complained in a court filing this week objecting to prosecutors’ request to file an unusually long brief.

Whether or how that argument might sway Chutkan remains to be seen. But in an order this week granting prosecutors’ request to exceed the usual page limits for the brief, she pointedly quoted herself at an earlier hearing in which she had declared that the timing of the election “is not relevant” in her courtroom.