Jack Smith's Request GRANTED

Jack Smith asked the court for permission to exceed the page limit for his immunity brief, and Judge Chutkan granted it while denying Trump's request to toss out the case entirely.

Hello! Thanks for reading The Breakdown!

Three days ago, Jack Smith filed a motion seeking permission to exceed the 45 page limit with his immunity brief due 2 days from now - informing the court he anticipates that he’ll need about 180 pages to fully brief on immunity because the vast amount of evidence he needs to submit for consideration.

In that motion to exceed the page limit, Jack Smith informed us that Trump opposes letting him file 180 pages, and that he wanted to file that opposition, which the Judge granted. Three days ago, I predicted his motion opposing exceeding the page limit would look 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!

Well, here’s what Trump’s opposition actually looks like:

The Office wants desperately to bar President Trump from the opportunity to make that showing so that they can improperly air their biased list of grievances.

These defects in the prosecution arise from, among other things, the absolute nature of immunity, the immunity attaching to the Office’s allegations relating to Vice President Pence.

The Court may not “adjudicate” superfluous Presidential immunity issues, including by allowing the Office to file this monstrosity, if President Trump can establish at the outset that immunity requires dismissal of the entire case

For all of these reasons, the Court should deny the Motion and reconsider the September 5, 2024 scheduling order by rejecting the Special Counsel’s lawless request to file a 180-page public defense of their defective Superseding Indictment before they are in compliance with their discovery obligations.

So I was pretty close. lol

Today, Judge Chutkan GRANTED Jack Smith’s request to exceed the page limit, and had a few other words for Trump, denying his request that she reconsider her September 5th scheduling order:

For the second time in a week, Defendant urges reconsideration of the current pretrial schedule in a brief intended to respond to a separate issue, and without actually filing a motion to that effect.

Defendant’s argument against the requested page limit expansion comprises a single statement that the Government’s request “would quadruple the standard page limits in this District.” The rest of the nine-page opposition rehashes Defendant’s position that immunity briefing should not begin until he files a motion to dismiss several months from now.

For completeness, however, the court will address more broadly Defendant’s new and sundry arguments about the pretrial schedule, none of which articulate a cognizable prejudice. First, he protests that the Government “aims to proffer their untested and biased views to the Court and the public as if they are conclusive.” But allowing a brief from the Government is not “contrary to law procedure, and custom,” as Defendant claims; it is simply how litigation works: Each side presents arguments and proffers evidence on disputed issues—here, whether Defendant’s charged conduct involved official acts and receives immunity.

Second, Defendant asserts “that there are dispositive threshold legal questions . . . that can and should be resolved first,” including “the absolute nature of immunity, the immunity attaching to the Office’s allegations relating to Vice President Pence,” and the lawfulness of the Special Counsel Office’s structure.

[The threshold questions] both necessarily require the very briefing that the court has ordered. In ascertaining whether any charged conduct qualifies for immunity— absolute or otherwise—the court must first determine that it “qualifies as official.”

Third, Defendant argues that immunity briefing “is particularly improper” before the resolution of pending discovery disputes. …recognizing Defendant’s interest in obtaining lawful discovery that could bear on his own arguments and factual proffers related to immunity, the court has frontloaded discovery briefing in its schedule.

And this is the part about how much of the 180 pages will be filed under seal:

And the court did not accept the Government position that Defendant decries—“that even materials marked ‘nonsensitive’ under the Protective Order” should be kept under seal—instead extending that protection only to sensitive materials. The court likewise rejects Defendant’s unsupported assertion that publicly docketing nonsensitive materials during the immunity briefing would impermissibly “impact potential witnesses and taint the jury pool.” Moreover, and once again, Defendant offers no reason why the same predicted harms would not result from his own proposal, which would include immunity briefing with presumably the same materials.

She’s saying that both Jack Smith and Donald Trump wanted even nonsensitive stuff filed under seal, she rejected that and will only allow sensitive stuff to be filed under seal. We’ll know more when Jack Smith files his motion to file certain materials under seal.

And finally, I love this part:

Fifth and finally, Defendant claims that the Government’s forthcoming brief violates Department of Justice policy. He asserts that the brief “would be tantamount to a premature and improper Special Counsel report.”

This is especially hilarious given Trump tried to pressure Bill Barr to have John Durham release an “interim report” ahead of the 2020 election - causing Durham’s number two to resign in protest. The interim report was never filed. Judge Chutkan goes on to say:

And he argues that the brief would run afoul of the Justice Manual, which prohibits federal prosecutors from “select[ing] the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election. The court need not address the substance of those claims. Defendant does not explain how those putative violations cause him legal prejudice in this case, nor how this court is bound by or has jurisdiction to enforce Department of Justice policy.

Perfect! The court is NOT BOUND by Justice Department policy! lol

She concludes: For these reasons, the Government’s Motion for Leave to File Oversized Motion is hereby GRANTED, and Defendant’s requests for reconsideration of the pretrial briefing schedule are DENIED.

Next steps? Jack Smith will file his motion for permission to file certain sensitive materials under seal in his 180 page brief - and that massive brief is due September 26th. I wonder if he’ll ask for more time, or if he’s ready to go. You can find trump’s unhinged opposition to the oversized brief here, and Judge Chutkan’s ruling today here.

Thanks for reading! Andy McCabe and I will go over all of this on the next episode of the Jack podcast. See you then!

~AG