Trump tried to block Jack Smith's immunity request. It backfired.

U.S. District Judge Tanya Chutkan is about to venture into uncharted legal territory and decide which of Donald Trump's alleged election subversion crimes are official acts of an American president and are therefore at least presumably immune from prosecution. The Supreme Court directed Chutkan to wage this unprecedented legal battle by unveiling a doctrine of criminal immunity for a president's “official acts.” On Tuesday, Trump's lawyers made a final attempt to prevent the start of this legal maiden voyage. On Wednesday, that attempt failed when a brief from special counsel Jack Smith's team containing new evidence was released.

To comply with the Supreme Court's order, Chutkan must see all evidence of Trump's conduct on and around January 6, 2021. Last week, Smith filed the lengthy motion outlining Trump's conduct as the basis for the four counts in his criminal complaint. There is also an even longer appendix that contains the evidence (e.g., grand jury transcripts, FBI witness interview records, and the like) that supports the narrative presented in the motion.

Smith has redacted any information from his court filings that would jeopardize ongoing investigations or reveal sensitive or classified information. Chutkan then set two deadlines for Trump's lawyers: October 1 to object to redactions in the application and October 10 to object to redactions in the appendix materials.

The first motion opposing the redaction of the application was received on Tuesday and was extremely absurd. The tone of the document was less of a sober legal argument and more of an unhinged 2 a.m. social media post (which, for example, said Smith's filing was a “politically motivated manifesto to the public”). It made three main arguments as to why Smith had completely misunderstood the editors and asked Chutkan not to publish anything before the November election.

Trump's first argument was that Smith's positions had been inconsistent over time. Smith previously argued in this case that the evidence should not be made public any sooner than necessary. Now, Trump's lawyers claimed, Smith is now determined to release evidence against the former president to the public. They insist Smith is doing this to interfere in the upcoming election.

But the reality is that Smith “changed” his position because circumstances changed. The Supreme Court ordered the disclosure of the evidence and the trial. In our criminal justice system, the Sixth Amendment right to a “public trial” means that virtually all litigation is public. According to Trump, Smith should have said, “I don’t care about the Supreme Court” – a ridiculous stance.

Trump's second complaint was that Smith wanted to disclose the evidence in this case, but in Trump's prosecution in Florida of unlawfully retaining classified documents, obstruction of justice, and violating our nation's espionage laws, the special counsel insisted on keeping the evidence secret. Again: phew! These alleged crimes were committed after Trump has left the presidency. So in the Florida case, there is no issue of presidential immunity to be litigated, meaning there is no need to publicly disclose evidence.

The first two Trump arguments were empty accusations of hypocrisy. The third was just ridiculous. Trump argued that releasing evidence to the public would pose “risks to potential witnesses.” This perceived fear comes from a defendant who has been gagged in both civil and criminal cases to keep him from saying things that could endanger potential witnesses. This complaint stands under the weight of its own frivolity.

On the positive side, Trump's new court filing has made Chutkan's job much easier. It was so unconvincing that Chutkan simply set it aside, concluded that Smith's proposed redactions represented the right balance, and ordered that his motion be placed in the public record so that she could proceed with the litigation that the Supreme Court has assigned it to her.

We can now understand why Trump was so desperate to keep Smith's file secret from the American people. The motion is essentially a 165-page opening statement containing evidence that sharply and directly incriminates Trump and his co-conspirators. At the start of the briefing, Smith offers this eloquent summary:

The former president's frivolous statement of claim disregarded the legal process. But for the rest of us, it was good news: Trump may have inadvertently hastened the day when he finally stands trial for his democracy-destroying crimes of January 6th.