On Oct. 17, she issued an order and opinion arguing that delaying its release would be a form of election interference.

“If the court withheld information that the public otherwise had a right to access solely because of the potential political consequences of releasing it, that withholding could itself constitute—or appear to be—election interference,” she said in her five-page order.

“The court will therefore continue to keep political considerations out of its decision-making, rather than incorporating them as Defendant requests.”

On Oct. 10, Chutkan had authorized the release of the evidence—the appendix to Smith’s immunity motion—in an order on Oct. 10 but delayed its effects for seven days to give Trump an opportunity to evaluate his next steps. In her recent order, she added that the court would issue an order on the following day directing the release of the redacted appendix.

Trump’s attorneys had requested an extension on the delay Judge Chutkan imposed, suggesting instead in an Oct. 17 motion that she should concurrently release both Smith’s appendix and one from Trump’s team.

Trump’s attorneys said that “if the appendices are released simultaneously, at least some press outlets will attempt to report both sides of this case, reducing (although, again, not eliminating) the potential for irreversible prejudice.”

“Similarly, the risk to witnesses will be somewhat reduced, as the public will have a more balanced picture of their testimony and how it connects to this case,” the filing to the judge read.

Chutkan’s motion also said Trump’s team’s justification for delaying the release to help the public gain a better understanding of the issue is “oxymoronic.”

“Setting aside the oxymoronic proposition that the public’s understanding of this case will be enhanced by withholding information about it, any public debate about the issues in this case has no bearing on the court’s resolution of those issues,” she said.

The judge also pushed back on his attorneys’ concerns about tainting the jury pool, saying instead that concerns like that could be addressed in the jury selection process.

Discovery Requests

The filings represented an ongoing back and forth between Judge Chutkan and Trump over the release of evidence—both to Trump and the public.

Chutkan issued an order on Oct. 16 rejecting most of Trump’s requests to compel discovery from Smith’s team. Out of the 14 categories of evidence he requested, Judge Chutkan only granted him three particular sets of information.

To compel discovery means to submit a request to gain access to relevant evidence, including documents or information, held by the other party before a trial begins.

Her 50-page order accused Trump’s legal team of using speculative reasoning to justify the discovery of various items. It also repeatedly argued that Trump had failed to show their relevance to his state of mind during the acts alleged in Smith’s indictment.

“Defendant has only carried his burden with respect to a small portion of the information he seeks. For most of it, he has proffered only speculation that a search will yield material, noncumulative information,” Chutkan said.

The judge added that while Trump “purports to seek much of this information to show his state of mind at the time of his indicted conduct … he does not indicate that he was aware of the requested information such that it could have affected his state of mind.”

Among the requests she denied were those for information that undercut a statement in which the Cybersecurity and Infrastructure Security Agency described the 2020 election as the most secure in American history. Another included four types of records related to the Intelligence Community’s (IC) assessment of the 2020 election, which outlined its conclusions about foreign actors’ attempts to influence the election.

The discovery she granted included information the director of national intelligence (DNI) said he reviewed prior to his interview with the special counsel’s office. Chutkan noted how Smith’s original indictment alleged that the DNI “disabused [Trump] of the notion that the Intelligence Community’s findings regarding foreign interference would change the outcome of the election.”

She also acquiesced to Trump’s demand for discovery of “evidence relating to the unauthorized retention of classified documents by Vice President Mike Pence,” which she said could be material for impeaching the former vice president as a witness.

Other evidence included information about Trump’s meeting with Gen. Mark Milley and Acting Defense Secretary Christopher Miller just days before Jan. 6, 2021. More specifically, Trump sought records of information about security measures that were conveyed to him.

Trump’s motion to compel was filed in November of last year and argued for releasing various forms of evidence in order to, among other things, impeach prosecution witnesses and reveal purported political bias among officials in law enforcement and the intelligence community.

“The [Special Counsel’s] Office cannot rely on selected guidance and judgments by officials it favors from the Intelligence Community and law enforcement while ignoring evidence of political bias in those officials’ decision-making as well as cyberattacks and other interference, both actual and attempted, that targeted critical infrastructure and election facilities before, during, and after the 2020 election,” his attorneys said.

Trump has been given until Oct. 30 to file any additional motions to compel discovery related to the presidential immunity issue. Judge Chutkan also granted discovery requests related to the prosecution team and gave Smith until Oct. 26 to provide those materials to Trump.