The federal judge overseeing the election interference case against Donald Trump isn’t letting him know the names of undercover federal agents who were at the Jan. 6, 2021 insurrection. Nor is she allowing his lawyers to go on a fishing expedition through the filing bins at the CIA, Secret Service, or much of the Department of Justice in preparation for an eventual criminal trial.
However, U.S. District Judge Tanya Chutkan ruled Wednesday that Trump is entitled to any documents that might show whether former Vice President Mike Pence received any special treatment from prosecutors when Pence decided to testify against his former running mate. Pence was found in possession of classified materials after leaving office but not criminally charged.
Chutkan delivered a 50-page order on Wednesday denying much of what Trump’s lawyers had requested. She also tore into Trump for grasping at straws for evidence that, she says, wouldn’t help him anyway.
Trump’s lawyers had claimed that DOJ special counsel Jack Smith had held back exculpatory evidence supposedly hidden away in nearly a dozen government agencies. But the judge chucked aside most of that theory and criticized the defense for fundamentally misunderstanding this historic criminal case.
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The documents Trump wants don’t address his intent at the time he tried to cling to power, and he can’t back into reasons ex post facto, Chutkan wrote.
“What mattered was the defendant’s state of mind at the time of his alleged crimes,” Chutkan wrote. “Put simply, his motives could not be based on information he did not know. Yet his request expressly seeks information of which he was not aware.”
Trump can’t demand access to the evidence behind the Election Intelligence Community Assessments for 2016 and 2020, nor the complete and classified version of the DOJ and DHS 2020 Election Report. He can’t dig for supposed Biden administration memos, the kind so often alluded to by conspiracy-spewing far-right radio hosts. And he can’t get access to documents at the Department of Defense’s or the attorney general’s office either.
By denying Trump this kind of deep dive into government vaults, Chutkan has put the case on a more streamlined track — that is, if Trump loses the election in three weeks and still faces a federal criminal trial for trying to remain in power after losing the last one.
Following Chutkan’s order, Smith now has 10 days to turn over any documents he hasn’t already concerning his team’s work with the U.S. attorney for the District of Columbia, the FBI’s Washington field office and DOJ’s inspector general. Smith also has to share whatever information his prosecutors have on Pence’s separate investigation, which he did not handle, and any materials a former director of national intelligence, likely John Ratcliffe, reviewed to prepare for “an interview by the special counsel’s office and related grand jury testimony.”
On Pence, Chutkan wrote: “Defendant is correct that information suggesting a potential witness’s motives for implicating him may be material.”
But throughout her order, Chutkan repeatedly stressed that Trump appeared to be searching for documents that could rationalize his relentless campaign to undermine the 2020 election results.
She determined that Trump’s theories “do not withstand scrutiny,” denying much of what he’d requested.
The judge also rejected Trump’s attempts to cite foreign nations’ attempts to influence the 2020 election as a justification for his own refusal to accept his loss that year. At one point, Chutkan had to correct the Trump legal team conflating two different ideas: a foreign state’s mission to affect the American election versus an actual campaign to change election results — like the one Trump is accused of launching.
“Foreign influence in an election is not the same as foreign interference,” she wrote, adding that “‘interference’ refers to efforts ‘targeted at the technical aspects of the election, including voter registration, casting and counting ballots, or reporting results.’”
Chutkan tossed aside the notion that “generic foreign cyberattacks unrelated to election results … somehow gave him a good-faith basis to claim that domestic actors had perpetrated outcome-determinative election fraud in non-cyberattack forms.”
“That logic is too strained,” she wrote.
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Jose Pagliery is a reporter at NOTUS.
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