Trump Opposes Further Release of Evidence

Now that we have the first 165 pages of the immunity brief - known as the "motion" - we now have a clearer picture of the rest of the massive filing: the "Appendix."

Greetings! As my vacation winds down, and you’re finishing bingeing the audio version of the immunity brief “motion”, we have a few new filings regarding the rest of the immunity brief: the “appendix.” Let’s go over them!

So as I have discussed in earlier posts about the immunity brief, it comes it two chunks: the “motion” and the “appendix.” The “motion” is the 165 page explainer of the alleged crimes, the legal framework, and the explanation of why none of the evidence is subject to immunity. The “appendix” is all the actual evidence. If you’ve been following along, you’ll recall that last year, Donald Trump wanted everything made public because of his “first amendment rights” and the “first amendment rights of all Americans.”

Judge Chutkan actually sided with Donald more on this argument, and in the protective order governing evidence, ruled that only names of witnesses and other sensitive materials (grand jury materials, inter-agency documents, president’s daily diary, etc.) would be kept under seal.

But now that Jack Smith has re-written his indictment in the wake of two Supreme Court rulings (Fischer re: 1512(c)(2) and Trump re: presidential immunity), Donald has changes his position and wants it all kept under seal - complaining that the DoJ is violating its 60-day election policy, and that the government is trying to interfere in the election with their biased and vindictive evidence.

That’s ridiculous considering Trump is the one who asked the Supreme Court for immunity, the Supreme Court set the ground rules, and then ordered the lower court to determine what acts are official and which are private in a “factbound” exercise to understand the “content, form, and context” of the alleged crimes, and for Judge Chutkan to determine whether any acts that could be deemed official - if prosecuted - wouldn’t interfere in the functions and roles of the executive. TRUMP asked for this exercise, the Supreme Court has ORDERED it, and the COURT is not subject to Department of Justice policy.

Besides, how do we know that Jack Smith didn’t intend to ADD charges, but chose not to because of the DoJ policy? That’s actually possible because - as Marcy Wheeler has pointed out - the fundraising element of the big lie is missing, and so are the Proud Boys. We’ll have the answer after the election - regardless of who wins.

Trump’s objections to Jack Smith’s proposed redactions for the “motion” were due October 1st. He wanted more of it kept under seal, but provided no specifics or any legal cognizable reason for the request. As we know, Judge Chutkan granted the government’s proposed redactions for the “motion”, and released it on the public docket last week. I have released an audio version of the immunity motion - filling in the redacted names for you - in the Jack podcast feed. It’s free wherever you get your podcasts, and might be easier to listen to than read. It’s five parts, about an hour each. And last Sunday’s main episode of the Jack podcast is Andy and me breaking down the entire immunity motion.

Trump’s response to the government’s proposed redactions for the “appendix” was due today, October 10th. Donald failed - yet again - to provide any specific objections, and instead, made a blanket request to seal it all. He also cited an opinion piece written by CNN’s Elie Honig that incorrectly posited that the DoJ violated it’s 60-day election policy by submitting it’s immunity brief. (Problems with that take: 1. The brief was submitted prior to the 60 day cut off. 2. The DoJ is complying with a Supreme Court order - not taking overt investigative steps. 3. DoJ charges have not changed from over a year ago in the superseding indictment, which was also filed before the 60 day cut off. 4. The Court is not governed by DoJ policy.)

Trump also gave the court a “warning”:

If the Court decides to release additional information relating to the Office’s filing, in the Appendix or otherwise, President Trump respectfully requests that the Court stay that determination for a reasonable period of time so that President Trump can evaluate litigation options relating to the decision.

I take that to mean “If the court decides to agree with the DoJ redactions, we want to file for a writ mandamus prohibiting the release of the appendix, so give us time to do that before you order the clerk to publish the appendix.”

Minutes later, the Judge issued a ruling on Trump’s redaction opposition:

Defendant has now filed an opposition objecting to unsealing any part of the Appendix. As in his previous filing, he identifies no specific substantive objections to particular proposed redactions. Instead, Defendant “maintains his objections” to any “further disclosures at this time” for the same reasons he opposed unsealing the Motion, and he requests that “[i]f the Court decides to release additional information relating to the Office’s filing, in the Appendix or otherwise, . . . that the Court stay that determination for a reasonable period of time so that [he] can evaluate litigation options relating to the decision.”

For the same reasons set forth in its decision with respect to the Motion, the court determines that the Government’s proposed redactions to the Appendix are appropriate, and that Defendant’s blanket objections to further unsealing are without merit. As the court has stated previously, “Defendant’s concern with the political consequences of these proceedings” is not a cognizable legal prejudice.

Accordingly, the Government’s Motion for Leave to File to Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket, is GRANTED with respect to the Government’s proposed redacted version of the Appendix to the Government’s Motion for Immunity Determinations. The court will grant Defendant’s request for a stay so that he can “evaluate litigation options,” and hereby STAYS this decision for seven days.

So the Judge agrees with Jack Smith’s proposed redactions, she denies Donald his motion to keep it all under seal, but she is giving Donald 7 days to file his “litigation” (likely a writ of mandamus).

What does this mean? It seems to mean that there IS additional evidence Jack Smith intends to release in the appendix, but that we won’t see it for at least another week.

Tune into the Jack podcast this Sunday for our analysis, plus Donald’s renewed motion to dismiss this case in it’s entirety - which is pretty hilarious.

~AG