Judge Tanya Chutkan ruled on Thursday that prosecutors can file the first brief on presidential immunity in former President Donald Trump’s election case, enabling the government to make previously unseen evidence public ahead of the November election.
While there’s no chance of a trial before November, Chutkan’s schedule does give special counsel Jack Smith the first crack at addressing the Supreme Court’s decision on presidential immunity in a brief due on Sept. 26, which prosecutors indicated would include a “substantial” number of exhibits. During a hearing Thursday, Trump’s defense attorney objected that it was unfair to let prosecutors file first, arguing it would allow the government to shape the narrative before the defense has a chance to make its argument and to introduce new evidence into the public record during a “sensitive time.”
“This court is not concerned with the electoral schedule,” Chutkan said Thursday. (RELATED: Judge Chutkan Acknowledges She Is ‘Risking Reversal’ No Matter How She Rules In Trump Case)
The government’s brief, which will focus on why the new superseding indictment is not covered by presidential immunity, is expected to include evidence that has not yet been made public, including grand jury transcripts and other documents.
Mike Davis, president of the Article III project, noted that “the Biden-Kamala DOJ political appointees waited nearly 3 years to bring their unprecedented indictments against their bosses’ political enemy.”
“Then they and DC Obama Judge Tanya Chutkan just got smacked down by the Supreme Court in June for ignoring the Constitution and rushing Trump’s prosecution,” Davis told the Daily Caller News Foundation. “Unburdened by what has been, they’re doing it again. Judge Chutkan is a partisan Democrat cheerleader in a robe, who is interfering in the election in a widely inappropriate manner.”
🧵 Judge Chutkan’s handling of the remaining Jack Smith case (don’t call it “the January 6 case” because Jack Smith did not and could not charge President Trump in connection with the J6 riot) is an abuse of the separation of powers at the heart of the constitutional order.
— Jesse Franklin-Murdock (@MurdockJDF) September 6, 2024
Dhillon Law Group attorney Jesse Franklin-Murdock wrote on X that Chutkan’s scheduling order “upends the way American courts operate.”
“Defendants–criminal or civil–file motions to dismiss,” he said. “The government (or the plaintiff in a civil case) opposes that motion. No motion to dismiss, no opposition.”
“Instead, the government is given the opportunity–immediately before the election–to lay out its entire supposed case against Trump without the rules of evidence, cross-examination, or the opportunity to provide rebuttal evidence, i.e., the basic touchstones of due process,” Franklin-Murdock continued.
CNN senior legal analyst Elie Honig called out Chutkan for “hypocrisy” over her statement that she would not consider the election in setting a pre-trial schedule, noting Chutkan was “very much aligned with Jack Smith in a mad rush to get this case tried before the election” early on.
“But now that the tables have turned because of the Supreme Court’s decision, all of a sudden from Judge Chutkan it’s, ‘Oh we don’t think about such things,’” Honig said. “I take that with some grain of salt.”
Smith filed a superseding indictment on Aug.27 intended to address the Supreme Court’s ruling, updating the language to emphasize Trump was acting outside his official duties and removing allegations the Supreme Court explicitly found was covered by immunity. The four charges remained the same.
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