U.S. District Judge Tanya Chutkan’s new decision to unseal the appendix of Department of Justice (DOJ) special counsel Jack Smith’s 165-page filing in his case against former President Donald Trump “comes with a catch,” legal analyst Glenn Kirschner said on Friday.
Trump, the Republican presidential nominee, faces four felony counts in the DOJ’s case against him in Washington, D.C., after he allegedly tried to overturn President Joe Biden’s 2020 election victory in the aftermath of his loss, which culminated in the U.S. Capitol riot on January 6, 2021. Trump has pleaded not guilty to all charges and claimed the case is politically motivated against him.
On Thursday, Chutkan agreed to publicly release redacted source documents from Smith’s brief which supported his argument that Trump’s alleged offenses in his federal election subversion case are private, rather than official acts of office, and can therefore remain in his indictment following the U.S. Supreme Court’s July 1 immunity ruling.
Kirschner, a former assistant U.S. attorney and frequent Trump critic, said on the latest episode of his YouTube show Justice Matters on Friday that “Judge Chutkan’s release order comes with a catch”—Trump’s legal team has seven days to try to block the appendix from being publicly released.
Trump had objected to any further unsealing of Smith’s filing to “evaluate litigation options,” according to court documents.
“Donald Trump again made baseless, frivolous objections, claiming election interference and the like, and Judge Chutkan said, ‘Um, yeah, I reject those and I am ordering the appendix, all of the evidence, unsealed. But because you asked for a reasonable amount of time to consider litigated options. I’ll give you seven days,'” Kirschner said.
The order was signed and filed on Thursday, October 10, meaning that Trump’s team has until next Thursday, October 17, to challenge the unsealing of the appendix.
Some parts of Smith’s brief and appendix will remain redacted as requested by the special counsel’s office to protect potential witnesses and other sensitive material.
Newsweek reached out to Trump’s communications director, Steven Cheung, via email for comment Saturday morning.
Kirschner said Trump’s options to block the unsealing of the appendix “are slim to none and slim is fading fast.”
“I was a prosecutor for 30 years and I was steeped in these legal issues, including what issues are appealable and what issues are not appealable. This order ain’t appealable,” the legal analyst said.
He added that Trump could file a petition for a writ of mandamus.
“If a trial court judge just goes completely off the rails and do [sic] something that the law does not support” a litigant can petition for a writ of mandamus “asking that the appeals court direct…the trial court judge to get back on track and stop doing what the law does not allow,” Kirschner said.
He told Newsweek via text message mid-Saturday morning, “Delay is always Trump’s game. And he may try the Hail Mary approach of filing a petition for a writ of mandamus, believing that it will burn some time off the clock for the DC Circuit Court of Appeals to consider (and reject) the petition, at which point he’ll then try to get the U.S. Supreme court to intervene. And given that the Supreme Court is no longer an honest broker of the law or the Constitution,” in Kirschner’s opinion, “who the hell knows what they may do to assist Donald Trump.”
Chutkan gave Trump’s lawyers until November 7, two days after this year’s presidential election, to submit their retort to Smith’s filing.
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