A DC federal judge made public a withering 165-page filing by special counsel Jack Smith in the 2020 election subversion case against former president Donald Trump Wednesday, just 34 days before most Americans go to the polls to decide whether he should be returned to the White House.
Most of Smith’s motion, a response to the Supreme Court’s ruling earlier this year that presidents enjoy “absolute” immunity from prosecution for “official acts” while in office, rehashed publicly known facts about Trump and his allies’ machinations after the 45th president’s defeat by Joe Biden, with a few jarring anecdotes sprinkled in.
“The defendant [Trump] asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct,” the filing began. “Not so. Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one.
“Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted—a function in which the defendant, as President, had no official role.”
In its July ruling, the Supreme Court remanded the question of whether immunity extends to the election subversion case down to the lower courts.
Smith filed his revamped superseding indictment against Trump, 78, in August in a bid to revive proceedings.
In the filing unsealed Wednesday, prosecutors argued at length that Trump’s alleged actions pressuring Vice President Mike Pence not to certify the election was conducted in a private, unofficial manner and is therefore exempt from presidential immunity.
In one example, Smith argued that a Jan. 4, 2021, Trump meeting with Pence and one of his personal attorneys was considered private because the then-president dismissed his official White House counsel from the meeting.
“It is hard to imagine stronger evidence that conduct is private than when the president excludes his White House Counsel and only wishes to have his private counsel present,” the filing said.
Prosecutors also went through Trump’s and his allies’ efforts in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin to overturn his election loss, listing well-known incidents such as Trump’s infamous Jan. 2, 2021, call with Georgia Secretary of State Brad Raffensperger underscoring the need to “find” 11,780 votes and efforts to produce a fake slate of electors.
Throughout that post-election period, Pence had privately sought to nudge Trump away from his machinations, urging him “not to look at the election ‘as a loss — just an intermission,’” according to prosecutors.
Smith also argued that Trump’s phone calls with governors and other elected officials in Georgia and Arizona were conducted as Trump the candidate, not Trump the president.
The prosecutors drew this conclusion in part because Trump only called officials in swing states with GOP governors, having “made no efforts to contact equivalent individuals holding the same offices in Nevada, New Mexico, Pennsylvania or Wisconsin, all of whom were Democrats.”
But what really sealed the deal, according to Smith, is that as president, Trump “had no official role in the process by which states appointed and ascertained their presidential electors,” therefore he could not be acting in his official capacity during the calls.
“The content, form and context of the defendant’s interactions with these state officials firmly establish that his conduct was unofficial,” he wrote.
Throughout the filing, prosecutors stressed that Trump was knowingly peddling false claims about election fraud.
“The throughline of these efforts was deceit: the defendant’s and co-conspirators’ knowingly false claims of election fraud,” Smith’s team insisted.
“He raised fraud claims in this context—about whether he could still win Arizona—not in the larger context of election integrity,” he wrote. “This call … was solely focused on the vote count in the presidential race and the defendant’s fraud claims.”
One unidentified Trump campaign employee did push hard for litigation in Democrat-run Michigan, responding to a colleague who “suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot,’ a violent effort to stop the vote count in Florida after the 2000 presidential election, P5 [the unnamed employee] responded, ‘Make them riot’ and ‘Do it!!!’”
Trump’s lawyers had fought tooth and nail in court to delay or block parts of the monster court filing from being made public, citing fears it could damage their boss in the election, but US District Judge Tanya Chutkan brushed that aside.
Chuktan previously determined that Trump’s “concern with the political consequences of these proceedings does not bear on the pretrial schedule.” She received Smith’s evidence dossier against Trump last week and opted to redact portions of it — largely names of witnesses and co-conspirators.
The unsealing of Smith’s evidence dossier against Trump also comes just one day after the vice presidential debate between Sen. JD Vance (R-Ohio) and Minnesota Democratic Gov. Tim Walz.
The Harris-Walz campaign cut an ad based on that debate knocking Vance for sidestepping a question about whether Trump lost the 2020 election.
Trump responding to the unsealing of the filing by raging on Truth Social: “FOR 60 DAYS PRIOR TO AN ELECTION, THE DEPARTMENT OF INJUSTICE IS SUPPOSED TO DO ABSOLUTELY NOTHING THAT WOULD TAINT OR INTERFERE WITH A CASE. THEY DISOBEYED THEIR OWN RULE IN FAVOR OF COMPLETE AND TOTAL ELECTION INTERFERENCE. I DID NOTHING WRONG, THEY DID! THE CASE IS A SCAM, JUST LIKE ALL OF THE OTHERS, INCLUDING THE DOCUMENTS CASE, WHICH WAS DISMISSED!”
Chutkan will ultimately have to determine whether or not the case against Trump can move forward in light of the high court’s decision on presidential immunity.
Trump is also facing a 10-count Georgia election tampering indictment that is effectively on pause due to a challenge against Fulton County District Attorney Fani Willis.
A 40-count indictment over allegations that Trump illegally hoarded classified documents was thrown out over the summer, but Smith has been fighting to revive it.
The 45th president has denied wrongdoing and pleaded not guilty to all charges pending against him.