Special counsel Jack Smith laid out the pathway for his election interference case against former President Trump in the wake of the Supreme Court’s immunity decision, describing the former president’s bid to thwart the transfer of power as a “private criminal effort.”
The massive, 165-page filing, unsealed Wednesday, comes after the Supreme Court determined that former presidents retain immunity when exercising core constitutional powers and are presumptively immune for all other official acts.
While the court determined Trump’s pressure campaign at the Department of Justice was immune, it remanded the case back to U.S. District Judge Tanya Chutkan to determine whether the rest of Trump’s actions are protected from prosecution.
“The answer to that question is no,” Smith wrote.
“At its core, the defendant’s scheme 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.”
The monster filing offers a window into the case Smith has assembled against Trump, providing more details about the bulk of evidence assembled by prosecutors than was revealed in their 45-page indictment last year. Chutkan did not, however, unseal several exhibits containing evidence such as grand jury transcripts.
In particular, the filing reveals new evidence of the former president’s efforts to sway election officials in key swing states to overturn their states’ election results in his favor.
“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office. With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost.”
Trump spokesperson Steven Cheung called the brief “falsehood-ridden” and “unconstitutional,” suggesting it was released after Tuesday’s vice presidential debate to cover up Minnesota Gov. Tim Walz’s “disastrous” vice presidential debate performance against Sen. JD Vance (R-Ohio).
“Deranged Jack Smith and Washington DC Radical Democrats are hell-bent on weaponizing the Justice Department in an attempt to cling to power,” Cheung said. “President Trump is dominating, and the Radical Democrats throughout the Deep State are freaking out. This entire case is a partisan, Unconstitutional Witch Hunt that should be dismissed entirely, together with ALL of the remaining Democrat hoaxes.”
Prosecutors outlined numerous instances where Trump was allegedly informed that his claims he won the election and that widespread fraud plagued the contest were false.
They write that Trump was given “the unvarnished truth” about losing the election but continued to make false claims despite being told they were untrue by close campaign advisers.
By Nov. 7, Trump’s advisers notified him that he would likely lose unless litigation in several states was successful, according to the filing. Later that month, it became apparent the former president’s legal efforts would fail.
Then, in what prosecutors called an “implicit acknowledgment that he had no lawful way to prevail,” Trump sidelined his campaign staff that had been handling the legal challenges and elevated Rudy Giuliani to lead the effort — a private lawyer who was “willing to falsely claim victory” for Trump.
With Giuliani leading Trump’s legal efforts, prosecutors again stressed the falsity of the statements offered in court and to the public, writing that they “repeatedly changed the numbers in their baseless fraud allegations from day to day” and “made up figures from whole cloth.”
The filing also offers new details about Trump’s interactions with Pence and evidence prosecutors gained from the former vice president.
Though the Supreme Court’s decision said Trump’s conservations with Pence were likely immune, Smith pushed back on that, characterizing those conversations as speaking “in their private capacity as running mates” and noting the executive branch has no power to choose the next president.
The filing notes that during a call to Trump to wish him merry Christmas on Dec. 25, Trump had sought to pressure Pence to reject his obligation to certify the votes, with the vice president saying, “You know I don’t think I have the authority to change the outcome.”
It also references Pence’s five pages of contemporaneous notes taken during a Jan. 4, 2021 meeting with Trump, in which the former president apparently said, “when there’s fraud the rules get changed,” telling Pence to “be bold” and that “this whole thing is up to MP.”
“The meeting concluded with Pence — firm and clear — telling the defendant, ‘I’m not seeing this argument working,” the filing states.
Just two days later, on Jan. 6, the Capitol was under siege by a mob of the former president’s supporters. Prosecutors allege that, when an aide alerted Trump that the vice president had been taken to a secure location, he said only, “So what?”
The filing also notes that Trump was personally involved in reaching out to state leaders he was pressuring to intervene in the election.
As president, the defendant had no official responsibilities related to the states’ administration of “the election or the appointment of their electors, and instead contacted state officials in his capacity as a candidate,” the filing states.
“Tellingly, the defendant contacted only state officials who were in his political party and were his political supporters, and only in states he had lost.”
Like his conversation with Pence, prosecutors again wrote that Trump’s efforts to pressure state leaders is also not an official presidential role, writing that presidents have “no official role in the process by which states appointed and ascertained their presidential electors.”
The filing reveals that in Georgia, an unnamed U.S. senator connected Trump with state Attorney General Chris Carr.
It also shows the extent prosecutors plan to rely on Trump’s conversation with Secretary of State Brad Raffensperger (R) where he asked him to “find 11,780 votes” is also private and not presidential conduct, writing that the “content, form and context” of the call make clear Trump was pushing the matter both as a candidate and litigant in Georgia.
And in a meeting with Michigan GOP leaders, Trump dialed Republican National Committee Chair Ronna McDaniel into the call — despite her request not to participate on the advice of legal counsel warning it could be viewed as lobbying. She also resisted passing along a private report about voting machines there, relaying she had heard the product was “f—ing nuts.”
Prosecutors also said that, in the weeks after the election, Trump’s team “sought to create chaos” at polling places where votes were still being tabulated.
An unnamed member of his campaign — deemed a co-conspirator by prosecutors — allegedly attempted to sow “confusion” at a Detroit polling center on Nov. 4 when the vote count began reflecting poorly on Trump.
After a colleague at the center suggested a batch of votes would go to now-President Biden, the campaign employee told them to “find a reason it isn’t” and give him “options to file litigation,” “even if itbis (sic),” according to the filing. When the colleague suggested unrest would follow, the campaign employee said to “make them riot.”
Ultimately, a mob of Trump’s supporters did riot, attacking the Capitol in an apparent attempt to stop the peaceful transfer of power from Trump to Biden.
Prosecutors said Trump was directly responsible for “the tinderbox that he purposely ignited on January 6.”
At every turn, prosecutors write that Trump’s behavior extended beyond his official role as president.
That included tweets he sent encouraging his supporters to march to the Capitol as well as conversations with White House staff discussing their election subversion efforts.
“These staffers can wear two hats. They can work in their private capacity to advance the interests of a political candidate, including while on official duty, or they can work in their official capacity to carry out executive branch responsibilities – but they may not wear both hats at the same time.”
Updated at 6:46 p.m.