Trump’s lawyers urge judge not to disclose any more ‘evidence’ ahead of election

Former President Donald Trump’s lawyers told a federal judge Thursday to halt special counsel Jack Smith from filing any more “evidence” against the GOP nominee ahead of the Nov. 5 election, saying it interferes with the election and conflicts with Justice Department policy.

In a two-page filing, Mr. Trump’s attorneys told Judge Tanya Chutkan, an Obama appointee overseeing his federal election fraud prosecution in Washington, that no more information should be disclosed publicly following the government’s massive disclosure earlier this month.

Mr. Smith filed a 165-page motion on Oct. 2, giving more detail into his case against Mr. Trump over the former president’s challenge of the 2020 election and the Jan. 6, 2021 riot at the U.S. Capitol. 

“There should be no further disclosures at this time of the so-called ‘evidence’ that the special counsel’s office has unlawfully cherry-picked and mischaracterized—during early voting in the 2024 Presidential election—in connection with an improper presidential immunity filing that has no basis in criminal procedure or judicial precedent,” Mr. Trump’s filing read.

“President Trump maintains his objections…based on overt and inappropriate election interference, violations of longstanding DOJ policy, the office’s previous safety-related representations in this District and the Southern District of Florida, grand jury secrecy, and the influence on potential witnesses and jurors of prejudicial pretrial publicity,” the document stated.

They requested the judge allow them to appeal any further orders for disclosure. 

Shortly after the filing, Judge Chutkan said Mr. Smith could file an appendix with some exhibits both under seal and redacted for the public record. She gave the defense seven days to appeal her order.

A spokesperson from Mr. Smith’s office declined to comment on the allegations that he is ignoring Justice Department policy. In past filings, Mr. Smith’s team has said it is false to suggest the special counsel has a political motive. 

“The special counsel’s mandate is to uphold the law. It has no role or interest in partisan politics and has faithfully executed its prosecutorial duties in this case,” read one of the government’s court documents.

Justice Department policy says prosecutors cannot take actions that may impact an election. 

Elie Honig, a former federal prosecutor, wrote in New York magazine’s Intelligencer that Mr. Smith’s massive filing last week was an “October cheap shot.” 

He said typically a defendant gets to respond to an indictment in the form of a motion to dismiss, but that Mr. Smith convinced Judge Chutkan to allow him to file his massive brief detailing evidence to support his revised indictment, following the Supreme Court’s presidential immunity decision in July.

According to Mr. Honig, the Justice Department’s internal handbook has a section that reads: “Federal prosecutors … may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”

“Mr. Smith’s conduct here violates core DOJ principle and policy,” Mr. Honig wrote. 

Other legal scholars clash over whether Mr. Smith is circumventing the department’s policy.

John Yoo, a law professor at the University of California, Berkeley and a former Justice Department lawyer during the Bush administration, said that Mr. Smith could always argue he is just following the court’s deadlines, but in reality there is no reason to rush these filings. 

“The filing’s timeline is too political,” he said of Mr. Smith’s lengthy brief. “There is no prejudice to the prosecution if Smith and Chutkan had decided to delay the filing of this document until after the election.”

Mary Graw Leary, a professor at Columbus School of Law and a former federal prosecutor, said Mr. Smith has been trying to keep his case on track.

The trial — originally scheduled for March — was postponed while the Supreme Court weighed the immunity issue. No new trial date has been set. 

“Facts matter and this is a case in which the defense has been primarily delay, delay, delay,” Ms. Leary said.

Mr. Smith charges that Mr. Trump was warned by campaign personnel that the 2020 election would be close and that mail-in ballots would likely be tabulated after Election Day — and that those would mostly favor his opponent, Joe Biden.

It’s Mr. Smith’s latest attempt to persuade a court that his charges against the former president over contesting the 2020 election will meet the Supreme Court’s threshold giving presidents some immunity from criminal prosecution.

In July, the justices ruled in a 6-3 decision that presidents are immune from official conduct, and have presumed immunity for other actions but no immunity for unofficial acts.

Mr. Smith said in the court records that Mr. Trump spread lies that illegitimate votes were cast in the 2020 election after his closest advisers told him he had lost. He also says the former president knew he lost and reportedly told family members, “it doesn’t matter if you won or lost the election. You still have to fight like hell.”

Other allegations include that Mr. Trump and his co-conspirators had pressure campaigns going in several swing states, urging state leaders to identify fraud and delay certifying the results. The new filing also says Mr. Trump and his allies intentionally spread lies about erroneous voting machines.

When the state pressure campaigns failed, the former president then tried to use fraudulent electors and Vice President Mike Pence to upend Congress’ certification of the results on Jan. 6, 2021, Mr. Smith stated.

The government contends that Mr. Trump’s conversations with Mr. Pence were not related to executive functions and therefore are not subject to immunity under the Supreme Court precedent.

The prosecutors said they’ll introduce evidence that the former president and Mr. Pence often spoke about their positions as running mates.