Judge in 2020 election case mostly denies Trump’s demand for more evidence from prosecutors

Washington — The federal judge overseeing the 2020 election case against former President Donald Trump largely rejected Wednesday his demand for prosecutors to search for and turn over more information that the former president believed would support his defense and show his state of mind as he contested the results of the last presidential contest.

The 50-page order from U.S. District Judge Tanya Chutkan came in response to Trump’s request to force special counsel Jack Smith and his team to search nine government entities for 14 categories of information and hand the evidence over to his legal team. 

But after reviewing the tranches of material sought by Trump, Chutkan found that prosecutors should conduct such a search for just three types of information and produce to the defense what they find. Those batches include: 

• Material the director of National Intelligence reviewed before an interview with the special counsel’s team;
• Records regarding security measures that were discussed with Trump during a meeting with former Acting Defense Secretary Chris Miller and Chairman of the Joint Chiefs of Staff Gen. Mark Milley days before the Capitol attack on Jan. 6, 2021;
• Evidence related to the federal investigation into Vice President Mike Pence’s handling of classified records after leaving office.

A small number of documents marked classified were found at Pence’s Indiana home in January 2023 and turned over to the FBI. The Justice Department investigated his potential mishandling of sensitive information and the FBI conducted a consensual search of the home. Prosecutors ultimately declined to pursue charges.

Chutkan noted prosecutors may have already searched for the information that Trump is seeking, or may not have it within their control. Smith and his team have until Oct. 26 to give the former president’s legal team any material it finds during its searches. 

What Trump wanted

The judge said the former president failed to meet his burden regarding most of the material he sought and “proffered only speculation that a search will yield material, noncumulative information.” 

Among the evidence Trump unsuccessfully demanded was information about alleged undercover agents at the Capitol on Jan. 6. Chutkan said the former president “does not provide anything more than speculation that there even were any such undercover actors” at the Capitol when Trump’s supporters breached the building.

The former president also demanded information relating to foreign interference in the 2020 election, which the judge did not require prosecutors to search for or produce.

“Whether [Trump] sought to undermine public confidence in the election to legitimize or otherwise further his criminal conspiracies does not depend on whether other nations also tried to achieve similar results for their own purposes,” Chutkan wrote. “Accordingly, additional information about foreign actors’ efforts to mislead or inflame the public would not rebut [Trump’s] allegedly criminal conduct.”

Trump initially asked Chutkan to force prosecutors to look for and turn over more categories of evidence in November 2023, which he claimed they failed to search for and produce. But proceedings in the case were paused in December while he appealed a decision finding he was not shielded from criminal charges by presidential immunity.

The case picked back up in August after the Supreme Court ruled Trump has some immunity from prosecution for official acts taken while in the White House, and ordered the district court to examine whether the former president’s other alleged conduct could give rise to charges.

A federal grand jury returned a superseding indictment in late August that charged Trump with the same four counts he initially faced, and he pleaded not guilty. The new indictment, though, narrowed the accusations against the former president as prosecutors sought to ensure it complied with the Supreme Court’s immunity decision.

The two sides are now debating in court filings whether the conduct alleged in the indictment is protected by presidential immunity, which will ultimately be decided by Chutkan. Trump’s lawyers have said they will seek to have the whole case dismissed based on presidential immunity and other grounds.

Last month, Chutkan allowed the public to see a key legal brief from Smith that defends the slimmed-down indictment and provides the most comprehensive look at prosecutors’ case against Trump. The special counsel argued in the filing, which Trump’s team sought to keep sealed, that his actions were taken as an office-seeker and not the office-holder, and therefore aren’t covered by immunity.

Trump has until Nov. 7, two days after the election, to respond to prosecutors’ arguments.