New Jack Smith Filing on Immunity Brief

A week ago, I said to brace for motions to file sensitive exhibits under seal in the immunity matter. Today, we got notice.

Happy Saturday!

Last week, I wrote:

I’m seeing pundits positing that we’re about to get a huge trove of never-before seen information and evidence including grand jury testimony and FBI 302s.

I think that’s unlikely, and I’ll tell you why.

During a hearing before Judge Chutkan on immunity that took place September 5th, a prosecutor on Jack Smith’s team named Windom told the Judge that he expects their immunity brief to be “comprehensive”, and it will include facts both inside and outside the indictment, a “substantial number of exhibits” including Grand Jury transcripts, interview transcripts, and FBI 302s. So I can see where some might get the idea we’re about to hit the motherlode.

However, when Judge Chutkan asked “How much of that information do you anticipate is going to be under seal?” Windom - answering for the government, said “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.” He added “We anticipate, consistent with the protective order, that any filing of sensitive material would occur first with a motion for leave to file under seal. The parties and the Court can determine thereafter what gets released into the public record in redacted form.”

I concluded:

I anticipate that all supporting evidence will be filed in exhibits under seal pursuant to the protective order Windom mentioned. We may soon see motions from the government for leave to file them under seal.

Today, we got a filing from Jack Smith that seems to state just that. First, he asked to exceed the page limit - and that he anticipates his opening brief will be about 180 pages.

The Government has substantially drafted its opening motion and estimates that the filed version will not exceed 180 pages. The Government estimates that roughly half of its motion will consist of a detailed factual proffer, and that extensive footnote citations to an exhibit appendix increase the motion’s size by more than 30 pages.

That’s one hell of a briefing. Next, he mentions that Trump absolutely opposes this motion to exceed the page limit and want’s to file about it:

The Government conferred with the defense. Defense counsel opposes the Government’s motion at this time, and requests that the Court set a deadline of September 24, 2024, 5:00 PM ET for the defense’s response.

And finally, Special Counsel addresses what I wrote about last week, and have been saying on the Jack Podcast for months now:

For the Court’s awareness, the opening brief and its exhibits contain a substantial amount of Sensitive Material, as defined by the Protective Order. Consistent with the Protective Order, the Government intends to file a motion for leave to file under seal that attaches an unredacted copy of the motion and appendix and proposed redacted versions to be filed later on the public docket at the Court’s direction.

I anticipate the motions for permission to file a substantial amount of the evidence under seal will come soon, and I’ll cover it when I cover Trump’s September 24th motion opposing Jack Smith’s request to exceed the page limit. I anticipate that Trump motion opposing will contain a LOT more than just not wanting Jack Smith to exceed the page limit. I assume it will go something like this:

How DARE the lawless Special Counsel attempt to exceed the page limit to file an already lawless brief that he shouldn’t even be allowed to file because the court should reconsider the September 5th scheduling order and dismiss the case outright because the Mike Pence stuff is totally immune. Not to mention, everything in the Office’s false indictment is official acts, and we contend that the immunity is not just presumed, but absolute! So even though zero pages should be allowed to be filed, the court should deny the page limit exception and dismiss the whole shebang immediately, and if you don’t, you should delay the immunity brief until 2032 and force the Special Counsel to answer for his discovery violations! WE DEMAND STUFF THAT DOESN’T EXIST, YOU’RE BIASED AND VINDICTIVE, AND WE THINK YOU’RE STUPID!

That’s just a guess, of course. But watch. He’ll repeat his de facto motions to dismiss and reconsider the September 5th order, and infuse the filing with a bunch of incendiary political nonsense. We’ll get to read it in three days.

You can read Jack Smith’s latest motion here. It’s only two pages.

~AG