Former President Donald Trump’s legal team has requested a deadline extension until after November’s election to respond to special counsel Jack Smith’s immunity brief.
Smith’s 165-page filing was partly unsealed by U.S. District Judge Tanya Chutkan on Wednesday. The document argues why the federal 2020 election interference case should continue in the wake of the Supreme Court’s ruling granting Trump at least presumptive immunity from prosecution for officials acts carried in office.
The former president’s lawyers have asked the U.S. District Court for the District of Columbia for a five-week extension to November 21 to submit their retort to the recent filings submitted by federal prosecutors.
Smith’s filings alleged Trump’s actions in the run-up to the January 6 attack in 2021 were that of a candidate, and not official acts of the president. Prosecutors say Trump was well aware that he had lost the 2020 election because of conversations he had with his inner circle, but still “resorted to crimes” to stay in office in a personal capacity.
The Supreme Court’s immunity ruling threatened to upend Smith’s federal election obstruction investigation. Smith’s office filed a superseding indictment in August which carried the same four charges Trump pleaded not guilty to, but removed some allegations to fall in line with the Supreme Court’s decision.
Newsweek has contacted Trump’s campaign team and Smith’s office for comment via email.
Trump’s legal team argued it should be allowed to submit a 180-page response to Smith’s filings as the former president must have an “equal opportunity to submit and address facts bearing on immunity, and to rebut the Special Counsel’s misleading submissions.”
The deadline extension request noted that the courts have previously granted Smith’s office extensions to deadlines to file their responses and legal briefs in the case.
Trump’s lawyers also submitted a request for Smith’s team to file a reply to their proposed November 21 filing by December 5.
Smith’s immunity brief says that multiple conversations Trump had with his inner circle indicate the former president was well aware he had lost the 2020 election, but still attempted to overturn the results in his favor.
“The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so,” prosecutors wrote.
“Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted, a function in which the defendant, as President, had no official role.”
Trump described Smith’s brief on Truth Social as a “falsehood-ridden, unconstitutional” filing submitted in response to Minnesota Governor Tim Walz’s “disastrous” vice presidential debate performance.
Syracuse University law professor David Driesen said if the presidential immunity argument ends up back at the Supreme Court, the conservative justices are going to “protect” Trump again.
“The Supreme Court is very comfortable now making up legal rationales to arrive at predetermined outcomes. The immunity decision itself is a perfect example of that. I think a majority of the justices is going to find a way to altogether get rid of the indictment in the January 6 case,” Driesen told Newsweek.
“Doctrine and precedent used to be the metric that worked best to predict how the Supreme Court would rule on any given issue. But that’s no longer a good guide to say what this court is going to do. Instead, it’s necessary to look at the political beliefs of the justices because that’s what tells you how they’re going to rule.”
If Trump wins the race against Vice President Kamala Harris, he could order the Department of Justice to drop the federal investigation into him once he enters office in January 2025.
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