WASHINGTON (CN) — Since U.S. District Judge Tanya Chutkan paused proceedings in Donald Trump’s federal election subversion case in December, special counsel Jack Smith has continued filing motions in preparation for trial, still scheduled for March 4, something Trump argued Thursday warrants a contempt charge.
In Trump’s view, Smith has violated the terms of Chutkan’s order to stay and should be held in contempt of court, with his lawyers arguing as much in a motion demanding an explanation from Chutkan filed Thursday.
Chutkan, a Barack Obama appointee, issued the stay Dec. 13, 2023, after Trump appealed her decision to reject his claims of presidential immunity from criminal liability and his motions to dismiss the case entirely.
In Thursday’s motion, John Lauro, Trump’s lead lawyer in Washington, argued that Smith wants to “weaponize the stay to spread political propaganda” while Trump cannot respond.
“Worse, the prosecutors have announced their intention to continue this partisan-driven misconduct indefinitely, effectively converting this court’s docket into an arm of the Biden campaign,” Lauro wrote in the opposed motion to show cause.
After the case was stayed, Smith made two public filings, first a notice on Dec. 18 that prosecutors had provided Trump with his draft exhibit list, and second a 20-page motion in limine on Dec. 27 urging Chutkan to block Trump from introducing “irrelevant disinformation” during trial and prevent him from injecting politics into the proceeding.
Lauro adds that Smith provided thousands of pages in discovery along with the draft exhibit list.
In the second motion, Smith acknowledges that the deadlines in the case had been paused, but justifies his filings as an effort to get the case back on schedule for a March 4 trial date if and when the case can resume.
Lauro requested Chutkan issue an order explaining why she has yet to hold the prosecutors in contempt; order the immediate withdrawal of the filings and discovery productions; forbid any further filings or production without her express permission; and require that Smith reimburse Trump’s attorney fees incurred from responding to their motions.
Trump’s theory of presidential immunity — an expansion of a previous Supreme Court decision, Nixon v. Fitzgerald, which held that former presidents were immune from civil liability for acts within the “outer perimeter” of the president’s official responsibility — is now before the D.C. Circuit Court of Appeals.
Oral arguments before a three-judge panel are scheduled for Jan. 9, with Trump planning on attending, according to the New York Times.
The issue will likely reach the Supreme Court, which will be tasked with deciding whether Trump’s case can move to trial at all before the presidential election later this year. Smith tried to leapfrog the D.C. Circuit and bring the issue before the Supreme Court in December, but the justices rejected his request.
Trump has also appealed a newly tailored gag order in his Washington case on Dec. 18, requesting an en banc hearing before the full D.C. Circuit. The Circuit has yet to grant or deny his request.
Steven Cheung, Trump’s campaign spokesman, lauded the “powerhouse motion” as an effort to hold “Crooked Joe Biden’s henchman, Deranged Jack Smith” in contempt for violating the stay order in an emailed statement.
“Rather than respect the rule of law, Jack Smith unilaterally decided to disobey the stay order and continue with his harassing litigation, all done in order to keep parroting the pathetic Biden campaign’s corrupt talking points in the name of election interference,” Cheung wrote Thursday. “No prosecutor is above the law.”
Cheung’s statement echoes a common refrain of Trump’s, accusing Smith of being politically biased against him and an arm of President Biden’s reelection effort.
However, as special counsel, Smith operates independently of the Biden administration and the Justice Department, following his appointment by Attorney General Merrick Garland in November 2022.
Trump faces four criminal charges in his election subversion case: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, conspiracy against rights; and obstruction of an official proceeding.
In addition to the presidential immunity question, the Supreme Court is also set to consider a Capitol rioter’s appeal of his conviction under obstruction of an official proceeding, a staple charge in the Justice Department’s prosecution of the riot.
The appeal could affect two of Trump’s four charges — conspiracy to obstruct an official proceeding and outright obstruction — with a decision expected before the end of June.
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