Judge unseals new evidence in federal election case against Trump

In a sprawling legal brief partly unsealed Wednesday, special counsel Jack Smith laid out his case for why former President Donald Trump is not immune from prosecution on federal charges of plotting to overturn the 2020 election.

The redacted brief, made public by Judge Tanya Chutkan of U.S. District Court in Washington, adds new details to the already extensive public record of how Trump lost the race but attempted nonetheless to cling to power.

Part of the brief focuses, for example, on a social media post that Trump sent on the afternoon of the attack on the Capitol on Jan. 6, 2021, telling supporters that Vice President Mike Pence had let them all down. Smith laid out extensive arguments for why that post on Twitter should be considered an unofficial act of a desperate losing candidate, rather than the official act of a president that would be considered immune from prosecution under a landmark Supreme Court ruling this summer.

After Trump’s Twitter post focused the enraged mob’s attention on harming Pence and the Secret Service took the vice president to a secure location, an aide rushed into the dining room off the Oval Office where Trump was watching television. The aide alerted him to the developing situation, in the hope that Trump would then take action to ensure Pence’s safety.

Instead, Trump looked at the aide and said only, “So what?” according to grand jury testimony newly disclosed in the brief.

Much earlier, the brief says, one of Trump’s lawyers gave him an “honest assessment” that his false claims that the election had been marred by widespread fraud would not hold up in court. But Trump seemed not to care.

“The details don’t matter,” the brief quotes Trump as saying.

Around the same time, the brief says, Pence also sought to convince Trump that he had lost the election. During a private lunch in mid-November 2020, for example, Pence suggested to Trump that he accept defeat and run again in the next presidential race, but Trump did not want to hear about it.

“I don’t know,” the brief quotes him as saying, “2024 is so far-off.”

Smith’s 165-page brief was initially filed under seal last week. It was designed to help Chutkan, who is overseeing the case, to determine how much of the indictment can survive the Supreme Court’s landmark ruling in July granting Trump a broad form of immunity against prosecution for many official acts while in office.

Smith and his deputies used their brief to paint all of the indictment’s many individual allegations as fair game, depicting them as examples of Trump pursuing electioneering activity in his private role as a candidate for office, not as protected acts taken in his official capacity as president.

“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,” prosecutors wrote. “Not so. Although the defendant was the incumbent president during the charged conspiracies, his scheme was fundamentally a private one.”

Still, despite its narrow legal purpose, the expansive brief also served as something like a trial brief, setting forth Smith’s fullest exposition yet of what he has learned in his nearly two-year-long investigation of Trump.

The filing was accompanied by a lengthy sealed appendix of many of the fruits of that inquiry — FBI interviews, search warrant affidavits and grand jury testimony — some of which could also soon be revealed to the public.

In its broad strokes, the special counsel’s filing to Chutkan was not unlike the tomelike report issued nearly two years ago by the House select committee that investigated the events leading up to the attack on the Capitol on Jan. 6.

Smith’s submission described a familiar web of intersecting plots by Trump and his allies, including efforts to strong-arm state officials to overturn the election results, create false slates of electors claiming that Trump had won key states he actually lost, and pressure Pence to throw the election his way during a proceeding to certify its final outcome at the Capitol on Jan. 6.

This article originally appeared in The New York Times.

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