Donald Trump’s lawyers made a last-ditch effort on Tuesday to limit the amount of evidence that could become public that special counsel prosecutors collected during their criminal investigation into the former US president’s efforts to overturn the results of the 2020 election.
The prosecutors last week filed under seal a brief, which may be as long as 180 pages, to presiding US district judge Tanya Chutkan that defends the viability of the charges against Trump even after the US supreme court’s presidential immunity ruling.
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Simultaneously, the prosecutors asked the judge to allow them to file a public version of the secret brief with quotations and references to grand jury testimony from some of Trump’s closest aides, such as his former chief of staff, and his former vice-president, Mike Pence.
To protect the integrity of proceedings and to protect lesser-known witnesses, the prosecutors said they intended in their public filing to redact specific names and use job titles to give context to the information being referenced.
The kinds of identifiers being proposed by prosecutors include, according to their filing: “Campaign Manager”, “Arizona’s Governor”, “Senior Campaign Advisor”, “executive assistant”, “the Defendant’s Chief of Staff”, “Georgia Attorney General” and “Chairwoman of the Republican National Committee”.
On Tuesday, Trump’s lawyers bitterly complained that the redactions were so specific that it would make public identification of the witnesses easy, accusing prosecutors of trying to damage Trump’s presidential campaign with fewer than five weeks until election day.
“In numerous instances, the redactions and pseudonyms proposed by the Special Counsel’s Office fail to meaningfully mitigate the privacy and safety issues the Office references in the Motion and has previously discussed at length,” the Trump lawyers wrote.
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Trump’s lawyers also claimed that prosecutors were adopting a double standard over redactions: in the case they brought against Trump in Florida over his retention of classified documents, which has since been dismissed, prosecutors pushed for no identifying information whatsoever.
“Use of functionally impotent redactions is flatly inconsistent with the Office’s approach to other filings here and in the Southern District of Florida, where they sought to anonymize even ‘Ancillary Names’ based on privacy concerns,” the Trump lawyers wrote.
The situation reflects a role reversal for Trump and the special counsel. When it was more expedient for Trump to have witnesses identified in the documents case, so they could complain about the case in public, Trump pushed for looser redactions.
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But now that it is against Trump’s interests to have the identities of former officials who testified against him become public, Trump has sought for more restrictive redactions that would make public scrutiny of his plot to overturn the 2020 election harder.
The special counsel’s filing and Trump’s objections come in the aftermath of the supreme court conferring broad immunity from criminal prosecutions to former presidents for actions that related to their official duties in office.
As part of the decision, the court’s conservative supermajority ordered Chutkan to sort through the indictment and decide which of the allegations against Trump should be tossed because of the immunity rules and which could remain and proceed to trial.
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The special counsel’s opening brief was the first round of that process that could take months to resolve and involve hearings to decide what allegations should be kept. Much of the evidence Smith uses to make his case come from sensitive sources, such as grand jury testimony, which are secret.
Chutkan has the power to decide how much of the indictment should be kept as well as how much of the special counsel’s evidence can be unsealed to make her determination, although much of the evidence became public knowledge during the House January 6 committee’s hearings two years ago.
