The federal judge overseeing the election interference case against Donald Trump directed prosecutors Wednesday to search for and provide to the former president's lawyers any Justice Department information related to a separate investigation into Mike Pence's handling of classified documents.
Trump's lawyers had argued that that information could be relevant to their defense to the extent it shows that Pence, Trump's vice president, had “an incentive to curry favor with authorities” and implicate Trump while facing his own investigation into the retention of classified documents in his Indiana home.
Special counsel Jack Smith's team has said it had no involvement in the Pence investigation and has “no discoverable information” on the case "beyond what has been publicly reported.” But U.S. District Judge Tanya Chutkan ordered Smith's team to look for and produce any additional records on the investigation, noting that defense lawyers are entitled to cite evidence of a witness's uncharged conduct as a way to undermine that witness's credibility.
“Defendant is correct that information suggesting a potential witness’s motives for implicating him may be material,” Chutkan wrote.
The judge's order, though, mostly rejected the categories of evidence that Trump had sought from prosecutors, saying his lawyers failed to make the case that the information was relevant to his defense against charges that he illegally schemed to overturn the results of the 2020 presidential election.
That includes a wide swath of documents related to that election and the Jan. 6, 2021, riot including information related to security at the Capitol and any details about undercover government agents who may have been there.
Trump also unsuccessfully sought a complete version of the U.S. intelligence community's assessment that Russia had interfered in the 2016 presidential election, as well as information regarding foreign actors’ efforts to influence the 2020 election to support the defense’s argument that “Trump and others acted in good faith even if certain reports were ultimately determined to be inaccurate.”
But the judge said details about foreign entities working to influence the American public in 2020 had no bearing on the current case.
“Whether Defendant 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,” the judge wrote.
Pence appeared before a grand jury investigating Trump in April 2023 after a federal appeals court rejected an effort by Trump's lawyers to block his testimony on executive privilege grounds. That June, Justice Department officials informed his lawyers that he would not face any criminal charges following the discovery months earlier of about a dozen documents with classified markings at his home.
No evidence has ever emerged to suggest that Pence intentionally hid documents from the government or even knew they were in his home, so there was never an expectation that he would face charges.
The two other buckets of information that Chutkan directed prosecutors to produce relate to any details Pence was given during a meeting with military officials about security measures that would be in place at the U.S. Capitol on Jan. 6, 2021, and information that Trump's director of national intelligence reviewed before he was interviewed by prosecutors.
It's unclear when or even if the election interference case will reach trial in light of a Supreme Court opinion from July that conferred broad immunity on former presidents and narrowed the scope of allegations against Trump.
Chutkan is now tasked with determining which of the prosecution's claims against Trump can remain part of the case and which must be discarded, a process that will almost certainly result in further appeals.
If Trump is elected, his new attorney general will presumably seek the dismissal of the case.
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