Why Jack Smith wants to file an ‘oversized’ motion in Trump’s federal election case

Special Counsel Jack Smith wants to file an “outsized” motion in the federal election interference case against Donald Trump. It’s the kind of motion that might not be unusual in a normal case, but Trump’s resistance to it underscores its significance.

Smith’s request was made in a court filing Saturday to U.S. District Judge Tanya Chutkan, who is presiding over Trump’s criminal trial in Washington, D.C., and now faces the complex task of figuring out what the Supreme Court meant by its July ruling granting the Republican presidential nominee broad criminal immunity. The Supreme Court’s Republican-appointed majority told Chutkan it must determine “in the first instance” which of the acts Trump is accused of are immune from criminal prosecution under the new immunity test.

The July 1 ruling grants absolute immunity for “central” presidential official acts, presumptive immunity for all other official acts, and no immunity for unofficial acts. The vague nature of the ruling makes it difficult to apply. And whatever Chutkan decides, the justices will have a chance to review their work before a trial can occur. If Trump wins the upcoming presidential election, he will have the power to dismiss the federal lawsuit, which would legally moot the question of whether the government went too far in charging him with his alleged criminal attempts to rig the last presidential election.

After the justices sent the case back to her following the immunity ruling, Chutkan set a timeline for moving forward. Among the dates in her order is one that requires Smith to “file an opening brief on presidential immunity by September 26, 2024” – next Thursday.

Smith justified his decision to request 180 pages instead of the usual 45 pages by referring to the Supreme Court’s own ruling. In that ruling, Chief Justice John Roberts stated in his majority opinion that the analysis was “necessarily fact-based.” The special counsel’s team wrote to Chutkan that because their decision would be subject to “strict appellate review” – that is, another round of review by the justices – “it is imperative that the Court [Chutkan] ensure that the documentation supporting its findings is complete.”

Smith’s motion states that Trump opposes the motion. Chutkan gave the former president’s team until 5 p.m. ET Monday to explain his opposition. We’ll see what it says. But Smith’s motion suggests that whatever problem Trump has with a longer-than-usual motion arguing why his alleged actions cannot be prosecuted, he should grapple with the Supreme Court’s ruling that says a detailed analysis is needed.

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