Files evidence under seal

Special counsel files evidence under seal against Trump in election subversion case

By Tierney Sneed and Katelyn Polantz

Filings from special counsel Jack Smith laying out never-before-seen evidence in the election subversion case against Donald Trump – including interview transcripts and notes from an investigation that counted among its witnesses former Vice President Mike Pence, Ivanka Trump and former White House chief of staff Mark Meadows – are now in the hands of a federal court.

It will now be up to District Judge Tanya Chutkan to determine how much of that evidence the public gets to see and when they will be able to see it.

Prosecutors filed the documents under seal as of 4:40 p.m. ET, according to Peter Carr, the special counsel office’s spokesman.

The court submissions could eventually provide Americans with the most comprehensive view they’ll ever get of Smith’s case alleging that Trump conspired to defraud the United States in his efforts to overturn his 2020 electoral loss.

The filings are expected to include grand jury transcripts, the FBI’s formal notes from witness interviews and documentary evidence, as part of an effort by prosecutors to argue that their reworked indictment can survive under the Supreme Court’s recent presidential immunity ruling.

The Supreme Court ruling has required the prosecutors to convince Chutkan – and likely, higher courts – that Trump was not acting in his official capacity when he and his supporters took various actions, culminating in the January 6, 2021, attack on the US Capitol, to stave off his 2020 defeat.

It is likely the filings will dig into Trump’s pressure campaign on Pence – conduct that the Supreme Court indicated might be covered under immunity. The brief is also likely to lay out what investigators have learned about the circumstances of the January 6, 2021, Ellipse rally, while potentially providing more detail about endeavors by Trump and his allies to convince state officials to block certification of the 2020 results.

They have also indicated plans to file a version with proposed redactions – also under seal – that could ultimately be posted to the court’s public docket.

Smith previously secured permission to file a brief as long as 180 pages – four times the normal page length. That brief does not include the “substantial” numbered exhibits prosecutors plan to attach to their arguments that will offer up key evidence. The footnotes alone citing their various exhibits would account for more than 30 pages of the main brief, prosecutors have said.

The former president vehemently opposed the plan to file the Smith immunity brief now, as his lawyers equated the brief to the types of special counsel reports that aren’t released until after the work of a special counsel is done.

Chutkan, in a Tuesday opinion explaining why she would greenlight the prosecutors’ filing plan, leaned on the Supreme Court’s own language in its July immunity ruling, which said Trump had absolute immunity for conduct related to his “core” executive branch duties. For other official acts as president, a “presumptive” immunity can be overcome if prosecutors can show that criminalizing such conduct would not interfere with the functions of the executive branch, according to the high court’s 6-3 ruling.

Chutkan said Tuesday that the Supreme Court had directed her to “conduct a ‘close’ and ‘fact specific’” analysis “of the indictment’s extensive and interrelated allegations.’”

“It anticipated that the analysis would require briefing on how to characterize ‘numerous alleged interactions with a wide variety of state officials and private persons,’ … and supplementing other allegations with ‘content, form, and context’ not contained in the indictment itself,” Chutkan wrote of the Supreme Court’s ruling.

Trump will have the opportunity to respond to the prosecutors’ brief with a filing due October 17.