Judge Tanya Chutkan’s release of Special Counsel Jack Smith’s book-length immunity brief 35 days before the presidential election could put President Trump on the defensive just as America prepares to vote. It could, though, falter at the Supreme Court — a place where Mr. Smith has faced defeat before — if the justices take a skeptical view of the special counsel’s expansive assertions of private conduct.  

The document, called a “Motion for Immunity Determinations,” makes the case that Trump can be tried and convicted despite the Supreme Court’s grant of presidential immunity. It runs to 165 pages, quadruple the limit usually imposed on court filings. The brief is partially redacted, but delivers visibility as to the shape of the prosecution’s case.

The special counsel declares that Trump’s effort to overturn President Biden’s victory “was a private one. He extensively used private actors and his campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office.” Any decision Judge Chutkan makes on that head could find its way back to the Supreme Court. 

Mr. Smith contends that while Trump “was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one,” and that he “acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit” the collection and counting of votes. 

Trump, Mr. Smith writes, “sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people” because the “executive branch has no authority or function to choose the next president.” 

The special counsel writes that the 45th president “must stand trial for his private crimes as would any other citizen,” even though the Nine held that official presidential acts are presumptively immune. They discerned, though, that unofficial acts are entirely lacking in protection. Now, Mr. Smith aims for a “comprehensive account” of Trump’s “private criminal conduct.”

The president, Mr. Smith maintains, “had no official role” in the counting of votes or the certification of the election. That means the actions he took to pressure state officials — and Vice President Pence — would be private and bereft of protection. The special counsel goes further to argue that all of Trump’s “charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted.” 

Mr. Smith focuses on Trump’s Twitter account, which he characterizes as a private tool “used for partisan political advantage — and in furtherance of the charged conspiracies.” The prosecutor notes that Trump began tweeting before he became president, and shared private content like “a picture of himself golfing with Jack Nicklaus and Tiger Woods.” 

The special counsel notes that on January 6 Trump, “alone in his dining room,” tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” 

One minute later, the Secret Service rushed Mr. Pence to a secure location. Mr. Smith notes that in the “years since January 6, the defendant has refused to take responsibility for putting Pence in danger, instead blaming Pence.” Rioters chanted, “Hang Mike Pence” and “Traitor Pence.” The special counsel alleges that when Trump was told Mr. Pence was in danger, he responded, “So what?”

Mr. Smith describes an adviser to Trump — the name is redacted — boasting three days before the election that his boss was “going to declare victory. That doesn’t mean he’s the winner, he’s just going to say he’s the winner.” Another staffer is reported to have heard Trump say “the details don’t matter” with respect to the litigation strategy to reverse the results of the election.

Trump, who argued that the release of this document so close to the election amounts to election interference and violates the Department of Justice’s own guidelines, now has two weeks to write a rebuttal. Judge Chutkan redacted nearly all of Mr. Smith’s appendix of evidence, and that material could slide from under seal as time goes on. The 45th president’s task now is to persuade Judge Chutkan — and possibly higher jurists — that Mr. Smith’s efforts were mooted by the protections now owed to presidents.