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By Jon Jackson, Rachel Dobkin, and Jesus Mesa
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U.S. District Judge Tanya Chutkan on Wednesday made public a lengthy filing from special counsel Jack Smith in his investigation into former President Donald Trump's alleged efforts to interfere with the transfer of power following the 2020 election.
Trump, the Republican presidential nominee, faces four felony counts in the DOJ's case against him in Washington, D.C., after he allegedly tried to overturn President Joe Biden's 2020 election victory in the aftermath of his loss, which culminated in the U.S. Capitol riot on January 6, 2021.
On that day, Trump supporters stormed the Capitol building in a failed attempt to stop Congress from certifying Biden's election win. The riot erupted following repeated claims from Trump that the election was stolen via widespread voter fraud, despite there being no evidence of this. Trump has pleaded not guilty to all charges and claimed the case is politically motivated against him.
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In the wake of the U.S. Supreme Court's July 1 decision that former presidents have immunity for official acts conducted while in office, but not for unofficial acts, Smith updated Trump's original indictment, and a grand jury reindicted the former president last month.
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The superseding indictment removes some specific allegations against Trump, but the former president is still charged with the same four counts from the original indictment filed in August 2023: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction and attempting to obstruct an official proceeding; and conspiracy against rights.
The purpose of Smith's brief, which was filed last week but made public on Wednesday, is to convince Chutkan, who is overseeing the federal election subversion case, why Trump's alleged offenses are private, rather than official acts, and can therefore remain in the indictment.
"Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one," Smith's brief read. "When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office."
Who Is Special Counsel Jack Smith?
Smith was appointed by Attorney General Merrick Garland to oversee investigations into Trump's handling of classified documents and efforts to overturn the 2020 election. Smith, a seasoned prosecutor with experience in domestic and international legal arenas, has taken on high-profile cases, including war crimes prosecutions at the International Criminal Court in The Hague.
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His appointment in November 2022 came at a critical moment as federal probes into Trump intensified, especially following the FBI's raid on Trump's Mar-a-Lago estate in Palm Beach, Florida. Known for his methodical approach, Smith has maintained a low profile, while his office has quietly issued subpoenas and gathered evidence.
How Did Trump React to the Capitol Riot?
The document states that Trump called then-Vice President Mike Pence on the morning of January 6, 2021, pleading with him not to certify the election for Joe Biden later that day. Pence refused and Trump was "incensed," the filing states.
When rioters later broke into the Capitol building chanting threats about Pence, Trump wrote on Twitter that his vice president "didn't have the courage" to refuse to certify the election. He attacked "Pence for refusing the defendant's entreaties to join the conspiracy and help overturn the results of the election," prosecutors allege in the document.
The prosecution's filing states that Trump's tweet informed his "angry supporters that Pence had let him—and them—down."
According to the filing, one rioter even used a bullhorn to read Trump's message aloud to the crowd.
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Just a minute after Trump posted the tweet, the Secret Service and Capitol police moved the vice president to a secure location inside the Capitol.
A White House aide rushed to tell Trump that Pence had been taken to safety, hoping the news would prompt Trump to act in defense of the vice president.
Trump, however, responded with indifference, reportedly saying, "So what?" and showed no concern for Pence's safety as rioters continued searching for him inside the Capitol.
Smith's brief said that Pence told him "he had seen no evidence of outcome-determinative fraud in the election" and tried to convince Trump to accept his 2020 election loss.
Trump, however, "disregarded" Pence "in the same way he disregarded dozens of court decisions that unanimously rejected his and his allies' legal claims, and that he disregarded officials in the targeted states—including those in his own party—who stated publicly that he had lost and that his specific fraud allegations were false," the brief read.
What Did Trump Say About the Documents?
Trump has pleaded not guilty to all charges and claimed the case is politically motivated. He continued those claims Wednesday afternoon when he responded to the new filing on Truth Social.
"The release of this falsehood-ridden, Unconstitutional, J6 brief immediately following Tim Walz's disastrous Debate performance, and 33 days before the Most Important Election in the History of our Country, is another obvious attempt by the Harris-Biden regime to undermine and Weaponize American Democracy, and INTERFERE IN THE 2024 PRESIDENTIAL ELECTION," Trump posted.
He also seemed to allege that the release coincided with Tuesday night's vice presidential debate between his running mate, Ohio Senator JD Vance, and Democratic Minnesota Governor Tim Walz.
"Deranged Jack Smith, the hand picked Prosecutor of the Harris-Biden DOJ, and Washington, D.C. based Radical Left Democrats, are HELL BENT on continuing to Weaponize the Justice Department in an attempt to cling to power. 'TRUMP' is dominating the Election cycle, leading in the Polls, and the Radical Democrats throughout the Deep State are totally 'freaking out.' This entire case is a Partisan, Unconstitutional, Witch Hunt, that should be dismissed, entirely, just like the Florida case was dismissed!"
How Does the Immunity Ruling Apply to Trump?
The Supreme Court's ruling on presidential immunity will play a pivotal role in Trump's defense as he faces four criminal charges related to his alleged efforts to overturn the 2020 election. Chutkan will need to assess each allegation, determining whether Trump's actions were official presidential duties or personal, unofficial actions as a candidate.
If an action is deemed to fall within the "outer perimeter" of his presidential duties, it may be entitled to immunity. However, actions taken solely in his capacity as a candidate would not receive this protection and could be used against him in court.
Chutkan will also need to evaluate whether certain actions, even if part of Trump's official duties, fall within the Supreme Court's exception for "peripheral" actions that are not core to the exercise of executive power. For example, Trump's interactions with state officials or his attempts to pressure Pence to block the certification of the Electoral College vote may be considered official, but if they overstep constitutional boundaries, they could lose their immunity.
Read the full 165-page filing, with redactions, below.
473991-jack-smith-filing.pdf.PDF
This article includes reporting from The Associated Press.
Update 10/3/24, 10:24 a.m. ET: This article has been updated with additional information.
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