The Weekend Wrap: October 6, 2024

Jack Smith makes his case

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

D.C. Federal Case - January 6 Allegations

On Wednesday Judge Chutkan, over Trump’s objection, granted Jack Smith’s motion to make public his redacted brief on immunity. Captioned “Government’s Motion for Immunity Determinations,” it weighs in at 165 pages. In the brief, Smith details the evidence he intends to present at trial and argues that none of that evidence is prohibited by the Supreme Court’s immunity decision.

Smith starts strong:

The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. 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.

Trump’s attorneys fought hard to prevent this brief from being filed before the election. It’s not hard to see why. Smith lays out a compelling and devastating case. The only question at this point is whether this case ever gets to a jury — because if it does, Trump is toast.

Special Counsel Jack Smith

As Smith acknowledges, the Supreme Court ruled that Trump’s dealings with the Justice Department in an effort to use DOJ officials to further his claims of election fraud were core presidential acts subject to absolute immunity. Those allegations are now gone from the case, thanks to the superseding indictment. But Smith believes everything else in the indictment, including Trump’s dealings with vice president Mike Pence, is fair game.

The brief has four sections. For roughly the first 80 pages, Smith sets out in detail the evidence he intends to offer at trial. In Section Two he explains the legal principles that govern immunity following the Supreme Court’s decision. In Section Three, also about 80 pages, he applies those principles to the evidence outlined in Section One and argues that none of it is barred by immunity. Finally, in Section Four, he asks the court for an order that Trump is not immune for the conduct described in Section One and must stand trial on the charges in the indictment.

Section One: Section One is definitely worth a read if you’d like a summary of Smith’s evidence. If you’ve closely followed the case and the hearings of the House January 6 Committee, none of the allegations will be a great surprise.

Smith describes how Trump began to lay the groundwork for false claims of election fraud months before the election took place, repeatedly claiming that the only way he could lose would be if the election was “rigged.” As the election results started to come in and to turn against him, Trump adopted a strategy of claiming victory regardless of the facts. He and his co-conspirators then began a series of increasingly desperate actions to overturn the election results.

Smith describes how Trump and his co-conspirators began making false claims of voter fraud in a number of key states won by Biden. Election officials in those states, many of them Republicans, investigated the claims and found no evidence of fraud or other problems with their elections. Trump and the co-conspirators unsuccessfully pressured state election officials and legislators to reject their election results based on these false claims of voter fraud, for which they provided no evidence. The dozens of lawsuits filed by Trump to challenge the election results uniformly failed.

As their lawsuits and efforts to pressure state officials to overturn their elections met with no success, Trump and the co-conspirators focused on the “fake electors” scheme. They arranged for Trump electors in seven key states to meet and falsely certify that they were the duly appointed electors from that state and that Trump had won. (As we’ve discussed before, a number of those fake electors are now facing state criminal charges.) Initially the plan was to have these slates of electors in place only as a backup, in the event that litigation challenging the election results in that state was successful. As those lawsuits repeatedly failed, the plan evolved into one to use the fake electors to sow chaos during the vote count and allow vice president Pence to either reject the votes from that state entirely, based on the supposedly “conflicting” slates of electors, or to send the issue back to the states without counting their votes.

The plan also included pressuring Pence to use his role as president of the Senate during the vote count on January 6 to determine which electors were valid or to reject the electors from certain states altogether. This pressure on Pence increased as January 6 approached and Pence repeatedly (and correctly) told Trump and the co-conspirators that he did not believe he had that power. This culminated, of course, in Trump telling the Capitol rioters on January 6 that they could win the election if Pence only had the courage to do the right thing, and to rioters chanting that they should hang Pence for his refusal to go along with the scheme.

Finally, the brief describes how on January 6 Trump used the mob that he had assembled at the Ellipse to march to the Capitol and “fight like hell” to stop the certification of an election that had been “stolen” from them. As the riot progressed, Trump resisted taking any steps to stop it while he and his co-conspirators continued to urge legislators to stop or delay the vote count. When a staffer told Trump that Pence had to be moved to a secure location in the Capitol because his safety was in danger from the mob, Trump reportedly replied, “So what?”

Section One focuses a great deal on evidence establishing that Trump knew the claims of voter fraud were false but pursued them anyway, and knew that the claims he was making about the stolen and rigged election were lies. This is important for establishing fraud and the corrupt intent to obstruct the vote certification.