Donald Trump‘s attorneys said on Monday that they oppose Jack Smith’s request to submit a massive filing to the court that would contain evidence supporting the special counsel’s election interference charges against the former president.
Trump’s attorneys asked Judge Tanya Chutkan to deny the request after Smith asked the court over the weekend if he could file a 180-page document justifying Trump’s charges in the wake of the Supreme Court‘s presidential immunity ruling.
“Allowing the Special Counsel’s Office to litter the docket sheet with an unnecessary tome would be inconsistent with the fact that there are dispositive threshold legal questions identified in Trump v. United States that can and should be resolved first,” Trump’s attorneys wrote.
The Supreme Court found in July that presidents enjoy some immunity from criminal prosecution. The high court also ordered Chutkan to decide what conduct in Smith’s indictment was immunized and therefore unable to be used against Trump in light of the justices’ newly established definition of presidential immunity.
Prosecutors for Smith told Chutkan they wanted to submit the mammoth filing, which would be roughly four times the size of a typical court motion, to create a “robust record” of why their indictment should pass the Supreme Court’s immunity test.
Trump’s defense attorneys reiterated their position that Chutkan should first address preliminary questions before allowing prosecutors to proceed with such a filing.
One question, Trump’s attorneys said, was whether former Vice President Mike Pence’s communication with Trump should be included in the indictment because that activity constitutes official presidential duties and is immunized. Trump’s attorneys have said they believe the entire indictment is reliant on Pence and that if Chutkan agreed to scrap evidence involving Pence from it, that would destroy Smith’s case.
“Courts frequently develop factual records to resolve legal questions in criminal cases by focusing on defendants’ actual motions and narrowly addressing disputed issues,” Trump’s attorneys wrote. “There is no basis for abandoning those procedures in this case.”
In a recent court hearing, prosecutors suggested that their opening court filing on presidential immunity would be packed with damning information about Trump that supported their underlying charges against him. They said such a filing would include material such as grand jury testimonies, FBI interview transcripts, and other evidence, all of which could thrust unflattering details about Trump into the spotlight in the final weeks of the presidential election.
It is unclear how much of the document would be visible to the public. Prosecutors said in their request to Chutkan that if the judge allowed them to file their lengthy document, a “substantial” portion of it would be deemed sensitive and so the filing would contain significant redactions.
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Trump’s team, meanwhile, also argued that government prosecutors are still withholding exculpatory evidence that could help Trump, in violation of their legal obligations. Prosecutors have disputed this and said they have nothing more to hand over to the defense team.
If Chutkan grants Smith’s request, the due date for prosecutors to submit their sweeping filing would be Thursday.