Smith’s Newest Filing
More on Trump's attempt to subvert the 2020 election.
![](https://otb.cachefly.net/wp-content/uploads/2023/12/trump-court-smith.jpg)
First, election law expert Rich Hasen writing in Slate: Jack Smith’s Big New Jan. 6 Brief Is a Major Indictment of the Supreme Court.
Smith’s brief spells out in much greater detail than we have seen elsewhere—including in the report of the special House of Representatives committee investigating the events of Jan. 6—evidence of Trump’s attempts to subvert the election, and especially of Trump’s mental state. It tells us that Trump was warned by his campaign officials that there likely would not be enough ballots counted on election night to know who won, but that he decided beforehand that he would declare victory either way. Trump repeatedly claimed there was fraud in the election and directed the campaign and his lawyers to look for it. They all told him after investigation, as did his Vice President Mike Pence, that there was no evidence of significant fraud and that he lost the election. Pence told Trump to “take a bow” and think about running in 2024, which Trump thought was too long to wait.
On the one hand, none of this is new in terms of the basic narrative. However, the ongoing fine-tuning of details really is striking. The man plotted to overturn a legitimate election. That this is not disqualifying is stunning. Many in positions of power and responsibility seem ambivalent about it (if not on his side) and far too many voters just see that he wears the right uniform.
Trump’s detailed plot to overturn the results of the election was brazen and a major threat to American democracy. Because of it, even today, millions of Trump supporters believe the last election was stolen, and that primes the public for new attempts at subversion. Trump’s new running mate, Sen. J.D. Vance, had to go along with the lie at Tuesday’s vice presidential debate, refusing to admit the incontrovertible truth that Trump lost the 2020 election.
And now perhaps the most important case in American history may never get to a jury and the American public will never get a chance to learn about this evidence and a jury’s judgment of this evidence before they consider returning Donald Trump to office.
The damage that has been done to American governance is immense.
And I totally agree with Hasen on the following:
There’s a ton of blame to go around for this situation, beginning with then–Senate Majority Leader Mitch McConnell’s refusal to support Donald Trump’s conviction in the Senate after the House impeached him for these activities. Although 57 senators, including seven Republicans, voted for conviction, McConnell did not bring more Republicans along. Had he done so, the Senate could have disqualified Trump from running for office again.
Then there is Joe Biden’s Attorney General Merrick Garland, who dragged his feet for well over a year before taking decisive action against the biggest threat to American democracy since the Civil War of the 1860s. His timidity is inexplicable and disappointing.
But worst of all is the United States Supreme Court. Smith’s Wednesday filing was not a trial brief laying out the case. It is instead a document meant to determine which of Trump’s acts in attempting to subvert the 2020 election were “official acts” that are immune from prosecution and which are unofficial acts, or official acts that may be subject to prosecution (under a set of rules very protective of the former president).
I remain aghast that the conservative Justices on SCOTUS could not find a way to provide legitimate spaces for presidential immunity while not saying, essentially, that if a president uses “official acts” to steal an election they might, in fact, be immune from prosecution. It is grotesque.
And yes, Garland should have moved more quickly and McConnell made a monumental, cowardly decision not to take the opportunity to rid his party of Trump.
And, hence I agree with Hasen’s conclusion:
The fact that no jury may pass on the deadly serious allegations in Smith’s complaint will do more than simply let Trump and others off the hooks for their potential crimes. It will make future criminal activity related to American elections much more likely. And it all could have been avoided if McConnell, Garland, and especially the Supreme Court had done the right thing.
Politico reports: Jack Smith lays out his case against Trump in vivid detail.
As his bid to hold on to power in 2020 grew increasingly desperate, Donald Trump pressed Republican Party Chair Ronna McDaniel to help promote a false claim that voting machines in Michigan had been manipulated.
McDaniel balked. She had spoken to the state’s House speaker, Lee Chatfield, a Republican, who told her the claim was “fucking nuts.”
[…]
Smith’s new filing is squarely aimed at showing Trump’s conduct in 2020 was taken in his capacity as a candidate for office — not in his official capacity as president. As a result, the special counsel argues, Trump’s conduct should not be protected by immunity.
[…]
The filing contains details of private conversations Trump engaged in with Republican legislators and operatives throughout the post-election period in 2020, describing how they nearly all warned him that his allegations of election fraud were flimsy and false.
“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office,” the filing said. “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.”
BTW, this sounds like a lot of Trump’s defenders, both writ large, but especially in the OTB comment sections:
“Defendant’s opposition brief repeatedly accuses the Government of bad-faith partisan bias,” the judge wrote. “These accusations, for which Defendant provides no support, continue a pattern of defense filings focusing on political rhetoric rather than addressing the legal issues at hand.”
“Not only is that focus unresponsive and unhelpful to the court, but it is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in this case,” Judge Chutkan wrote. “Future filings should be directed to the issues before the court.”
Directly addressing substance instead of hurling empty invective? What a concept!
Additionally, Politico details 11 damning details in Jack Smith’s new brief in the Trump election case.
Let me note two– neither is especially new but are worth underscoring.
Alone with his phone
At 2:24 p.m. on Jan. 6, as Trump supporters were attacking the Capitol, Trump took to Twitter to condemn Vice President Mike Pence, saying Pence lacked “courage” because Pence had resisted Trump’s pressure to intervene in the Electoral College certification.
According to Smith’s prosecutors, Trump was alone in the White House dining room when he sent that tweet. Trump’s aides had left him there after failing to persuade him to call on his supporters to leave the Capitol.
“The defendant personally posted the tweet … at a point when he already understood the Capitol had been breached,” prosecutors wrote.
Trump asked: ‘So what?’
The tweet criticizing Pence coincided with one of the most perilous moments of the riot: the precise minute Pence was being evacuated from his Senate office to a loading dock below the Capitol. Rioters had come within 40 feet of where he was sheltering just before this moment.
When Trump was told by an aide of Pence’s evacuation, prosecutors say Trump responded: “So what?”
Trump’s first call for calm — which advisers viewed as insufficient — came 14 minutes later: “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”
Whether any of this will ever be given to a jury remains to be seen, but there is ample evidence because we all saw most of this stuff happen right in front of us, for voters to say no. And yet, the race is within the margin of error in certain states, and so here we are again.
Wrt/ this filing I see a lot of commentary on conservatives sites to the effect of “what’s the charge?” This filing is not an indictment, it’s a required review of the evidence against the SCOTUS ruling, not of any charges. But in a strictly legal sense, there’s some validity to the concern about what exactly are the crimes. The problem is that the law does not deal well with novel problems. No past president has ever tried to overturn an election outside normal legal challenges. We don’t have settled law applicable to the situation. Under a theory that the Constitution is not a suicide pact, prosecutors, and judges, might apply common sense and be a little flexible in applying existing law. Under “originalism” they’re likely to lean more toward strict construction and IOKIYAR.
@gVOR10:
Wasn’t there a superseding indictment filed as well, after the evidence was presented to a brand new grand jury? That would contain the charges.
BTW, I award the Noble Prize in Malicious and Disingenuous Chutzpah with Extreme Prejudice to El Weirdo, his campaign, hie enablers, and his followers, for delaying and delaying legal proceedings so long that they take place close to the election, and the squealing like scalded pigs because having the legal proceedings this close to the election is interfering with the election.
They can collect the prize, a commemorative 100 peso note of the centennial of the Mexican Revolution (not in mint condition), at their convenience in my apartment, on Sundays between the end of the afternoon NFL game and before the start of the evening game, after paying the nominal $1,000 fee in cash.
Jack Smith has brass balls, I’ll say that. Tasked with parsing Trump’s crimes as presidential vs private conduct, Smith just shrugged and said, “Fine, almost all of Trump’s criming was done in his private capacity, as a candidate for office. How’s that?” Smith is daring the conservative (lol) traitors on the Supreme Court to double-down on their absurd and treasonous immunity ruling and nullify all this damning evidence, now made public. Kudos to Judge Chutkan for making it public, I hope she’s beefing up her security.
And as to Trump’s whining about “bad-faith partisan bias,” this attempted-coup case case is built on testimonies from 85+ witnesses: Republicans and Trump appointees.
Minor quibble with Hasen’s cogent Slate piece:
No, he did not have to. Vladimir Futon is an adult who freely chose to lie about the 2020 election, because he’s a crook and a coward. Another bootlicking beta male lacking the strength of character needed to stand up for our republic. Unfit to be, as BugManDan put it yesterday, a cheeseburger away from being commander-in-chief.
@gVOR10: IANAL and do not know Smith’s planned charges, but Lock Them All Up:
18 U.S. Code CHAPTER 115—TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES
Jack Smith quotes one of Trump’s co-conspirators plotting “Make them riot! Do it!!!” to disrupt vote counting in Michigan.
Lock them up, throw away the key.
@gVOR10:
This text is in the filing:
With this so clearly enumerated in the legal document they’re complaining about, conservative commentary to the effect of “what’s the charge?” would indicate that the commenters don’t give a flying fig about the law’s capacity to handle a novel problem like Trump. It’s simply Us vs Them.
A lot of his voters see him as a fighter — a man who will try to take everything he can (ostensibly for America, and for them) — and this entire treasonous kerfluffle reinforces that.
The truth doesn’t matter, it’s just one more tool to be used to gain advantage. None of this is disqualifying, it’s all a good thing.
There was an angry Trumper at my last job who explained this to me, along with his belief that everyone cheats and you’re a sucker if you don’t. And it all clicked into place.
How can someone knowingly support this? By being a terrible human being. Seems obvious in retrospect, but it was something I just couldn’t bring myself to consider.
(Some of his other voters believe the lies, because they are very dumb)
In their article “Autocracy: Rules for Survival,” author Masha Gessen laid out six rules. Rule three is: “Institutions will not save you.” And there’s no more depressing validation of that rule than the fact every institution involved with holding Trump to account for his many criminal actions has failed to do what is necessary. Congress failed, Garland’s DoJ failed, SCOTUS failed.
And they failed despite the noble work of many of their members–Congressional Democrats and the few principled Republicans who remain, Judge Jack Smith, and the liberal SCOTUS justices have all tried, but even their efforts have failed to overcome the destruction of norms and the cravenness of those who hold more power in the institutions.
We can only put our faith in the institution of the upcoming elections, and hope Trump and his acolytes do not command sufficient power to cause a failure in that as well.
Fro Politico:
Trump enjoys humiliating his acolytes.
@DK:
Indeed! It’s not about Trump’s character. It’s about the character of his enablers.
To my mind, this is the key rhetorical angle of attack in the remaining weeks. Cassidy Hutchinson, insider witness of the J6 hearings, was on Morning Joe today calling out Mitt Romney by name and establishment GOP pols (men especially) for their cowardice in not doing what she’s doing – putting country over party. Liz Cheney is going to campaign in person with Kamala Harris today in Ripon, WI, the “birthplace of the Republican Party.”
As Steven notes:
Go right at these ambivalent people and team first people. I’m a die-hard Cubs fan, but I sold my Sammy Sosa jersey over his steroid use. If you really love the team, you don’t want someone unworthy to wear it.
There’s nothing to be done about the people actually on Trump’s side – the deplorables and those who would use the deplorables for their preferred minority rule. But, the Ambivalents can still be convinced to vote for Harris or stay home. Make them look in the mirror every day until November 5th.
What I keep wondering, ever since Smith first brought the case last year, is where are all the other charges? The indictments and this filing all bring up a large number of co-conspirators. Why are they not being charged?
@Kathy:
IANAL, but my understanding is that co-conspirators tend to remain unnamed and uncharged until there is no longer value in getting them to flip on the primary target of the case.
Lay all this crap at the feet of Mitch McConnell. He single-handedly installed a hyper-partisan judiciary, across all Federal levels, that made all this possible.
@Scott F.:
IANAL either, but it seems to me they’d be more likely to flip after they are indicted on the same charges. We saw just that with a few of them in the Georgia case.
You know, when I was in grade school I first learned about the US Government and the Constitution and how we voted for our public officials and how we could be proud of the United States for being one of the oldest, if not the oldest, existing democracies (we did not trouble ourselves in those days with “republic v. democracy”).
I have a bias in this: It is a patriotic bias. It is a love for the system of government which was taught to me as a young child, which I have held to when elections didn’t go the way I wanted.
What Trump did makes him a traitor to all the principles of the Constitution and the founding ideals of these United States. Those who continue to support Trump in the face of this evidence are *also* traitors to the Constitution and these United States.
I can’t stand Dick Chaney, but at least he’s not a traitor. I’ll take him any day of the week over those who whine about “partisan bias” to describe those defending the ideals I have held all my life. Maybe they should learn to love their country more.
@Argon:
I lay it all on Sandra Day O’Connor’s desire to retire with a Republican President in office to appoint her successor.
No Bush 2 administration, no Justice Samuel Alito etc. etc. etc.
@gVOR10: I would recommend ignoring the question “what’s the charge?” I would address myself (as I did upthread) to what Trump did. Debating “what’s the charge?” is a diversion and a distraction. Trump tried to overthrow the government. He lost an election, but attempted, via fraudulent, illegal and violent means, to stay in office anyway.
If it’s your style, you might ask if the questioner has been living under a rock, to not know the charges against Trump. It’s not my usual style, I might simply tell them that the question lands on me as bad faith, since this proceeding has been broadly publicized over the last two years.
@Mikey: Garland’s DoJ has not failed – however contrary to naïve magic wand thinking, complex litigations are always (if one wishes to win) slow and grinding.
You want rapid political speed action? – well then in fact you want your Lefty version of MAGA justice, political trials not actual real rule of law.
Actual complex litigation success is neither fast nor internet commentator sugar-high friendly.
Your point of failure at present is your weak party system and the atrocious faux democracy of your primary system.
@gVOR10:
@Jay L Gischer:
Here’s the superseding indictment filed in late August. Those are the charges.
There’s no need to repeat the charges in every subsequent filing, motion, or questions asked to witnesses on the stand for any reason.
As I understand, after the Leo & Crow court placed El Weirdo above the law in official but not in private acts, Smith has to show the charges he indicted him for were not committed as oficial acts. The current filing shows this. Judge Chutkan next needs to determine whether this is so and the trial can proceed, or whether it isn’t and the trial cannot take place. One assumes this will require hearings where the defense of the indefensible can argue their side, and perhaps witnesses will be called and documents will be introduced.
But the charges are clear.
“Jay Kuo”
Above is a very brief excerpt.
@Lounsbury:
That fallback dodge is plausible re: Trump 2016. For Trump 2024? Nah. This time, it’s weak and craven personalities who have failed.
The decision by McConnell and Republicans to stack the courts with facist-sympathizers has more to do with twisted ideology than with primaries or systems. Ditto McConnell’s decision to protect Trump post-Jan 6, blocking his Senate conviction — no primary election necessary. Ditto, the Supreme Court’s corruptocrats trying to shield Trump from prosecution. Judges with lifetime appointments don’t face primary voters.
Republican voters and endorsers could have picked Nikki Haley instead of renominating Trump — and almost did. But they got cold feet and punted. Because in this case, the systemic problems are downstream of the people problem. And the people in question are lacking character, not lacking agency.
Republicans have an ethics, values. and courage problem. What’s stopping George W. Bush and Mitt Romney from endorsing Trump’s opponent? They’re retired and retiring, never to face another primary voter anywhere. This cowardice, indifference, and lack of patriotism is the fault of weak parties and faulty systems? I think not.
@Kathy: Thanks. It turns out I knew that. Anybody versed in the subject should know that.
In fact, people saying, “what are the charges?” should know that. They probably know it. This is why I call it bad faith.
And, the solution to this mess is political, not legal. I do not recommend getting caught up in legalities when discussing this. We know what he did. We saw it. It went against fundamental principles on which this country was founded. Anyone who supports what he did cannot claim to love the Constitution in good faith.
Which is why I suggest that the question is likely posed in bad faith, and should be ignored.
@charontwo: ” making a reference to Star Trek”
I’m assuming this would be a play on “Beam me up, Scotty,” but if it’s not I have no idea…
@DK:
I don’t think he lacks the character to stand up for our republic, I think he just hates us and our republic. It’s not a lack of character or cowardly to not stand up for something when you don’t value it.
So, he gives Donald Trump and Peter Thiel tongue baths. He may just enjoy that.
There are people who choose to do sex work because it is more rewarding emotionally and monetarily than a job at McDonalds. Or an office job. Or whatever. Dry wall installers sell their bodies too, just different parts.
JD Vance has repeatedly chosen to tell wealthy people what they want to hear for his entire adult life.
Is it beta behavior to do something you have no objection to doing, when someone will give you money if you do it?
What’s truly terrible about him isn’t that he is so weak that he knuckles under and does terrible things, but that he’s perfectly fine doing terrible things.
He got up on stage and lied his ass off, creating an entire fictitious history of events, and it didn’t bother him in the slightest. But is it really lying if you have nothing but contempt for those you are lying to?
People are always told “be yourself” and “don’t care what other people think”. JD Vance is the answer to what happens if a horrible person decides to be himself and not care what other people think.
And the people who bring him along deserve what they get. I have no doubt that JD Vance will stab Trump in the back if it helps him. Or the face. I don’t think he’s above stabbing someone in the face.
ETA: Apparently I needed to rant about what a terrible person JD Vance is. I recommend it.
The dearly departed Teve was more succinct with his assessment of “Shitty people with shitty values.”
@DK: I don’t think you are wrong.
AND, I think weak parties and the very weakly democratic primary system also have a lot to do with this situation.
@wr: I saw reference that someone refered to Cantina aliens, but that is a Star Wars ref–which seem more likely.
@Gustopher: one more thought about Mr. Vance — a quote from Elvis Costello:
Sometimes people are just what they appear to be, with no redemption at all.
@wr: Well, given that there’s no intelligent life in Trump’s universe, that reference would certainly work.
The first question on the Sunday new shows to every Republican should be “after seeing this evidence, do you still support electing Donald Trump as president of the United States?”
@Gustopher:
Once again, Gus scores on a blistering slap shot from deep in his own defensive zone.![😀](https://s.w.org/images/core/emoji/15.0.3/svg/1f600.svg)
@DK:
What’s stopping Bush and Romney may be that they’re old, tired, and sick of having to spend thousands of dollars for extra protection against crazed homicidal MAGAs.
@Gustopher:
At my 50th high school reunion, from that little tiny town I’ve mentioned before, the evidence for this was in abundance. Busted backs, shoulders, guys who went on disability, a man who died in a helicopter crash while logging, and two welders who got brain tumors because of the gas they were working with – gas which caused their work to be tented so nobody else was exposed.
They kind of all think of it as just part of the life they had…
@DK: Fall back dodge? What on earth are you on about?
Your bloody system has a bloody systematic failure. This is not a “dodge” for fuck’s sake my dear blind partisan knee jerker – it is a fucking baseline fact of failure.
Blithering on about courage is like generals in war going on about “élan” – it is empty posturing that in fact avoids grappling with the hard realities of logistics and structure failure.
Soviet New Man dreams never arive. Humans are what they are.
@Gustopher:
Odd to suggest JD Vance doesn’t lack character and then seconds later say he’s “a terrible person.” It’s the same thing, dearest.
So what? Sex work doesn’t harm anyone. Fascism does.
Because he is weak. I’ve worked around and with the rich, famous, and powerful. I was quite young when I had a polite confrontation with one notoriously drug-addicted turned famously-rehabilitated actor, and a co-worker said me, “Wow, your mouth is not afraid of hot water. Aren’t you scared you’ll get in trouble?”
My response, “I am not. Why would I get in trouble for being right?”
Growing up in exurban Georgia with my identity, I didn’t have the luxury of weakness. Perhaps that’s why I recognize it when I see it.
Yes it really is. The young men lapping up behind a 78-year old Epstein-bestie felon who screams “I HATE TAYLOR SWIFT” on social media are beta af. Daddy issues and weak.
It’s both. Because sure as grits is groceries, JD Vance is a weak, amoral, bootlicking coward who lacks strength of character.
Yes, it is really lying when JD Vance tells lies.
@Lounsbury:
Yes, and what Trump-enabling Republicans are, are amoral cowards. Blathering on about systems and flinging profanities isn’t going to improve their flawed personalities, my angry reflexively contrarion fence-straddler.
You don’t need to be a ‘Soviet New Man” to vote Yes on conviction in the Senate, after the defendant has tried to stage a coup and incited a terror attack to kill his vice-president. The pretense that Republicans need to meet some fantastically-perfect philosophical standard to have rid themselves of Trump in that moment is a dodge. They voted to save Trump because they’re selfish, dishonest, and unpatriotic.
Logistics, structural failures, systems, and primaries are not why Supreme Court Justices and retiring politicians who will not ever face a primary voter or engage with our electoral system again in their lives are enabling Trumpism. Are Dick Cheney and Jeff Flake now Soviet New Men whose partisan preferences magically disappeared? Why didn’t the primary system affect Adam Kinzinger and Liz Cheney? The litany of former Trump, Reagan, and Bush White House officials endorsing Harris? All Soviet New Men? Yeah right.
It’s called character. Some people have it, and some just don’t. I blame their parents.
A man who rests his position on Jack Smith is an unserious man.
Next issue…..
@Jack:
STFU you fraud. You know you’re supporting a criminal. You know he’s a rapist. You know he’s a piece of shit. You know he’s a pathological liar. Your only motivation is spite and self pity and the rage of a fading old man. Every single thing you say is a lie. You make noise and mean nothing.
ETA: You know, back in the old days we used to debate as equals. I had at least some respect for you. Now I wouldn’t let you shine my shoes. It’s like when you see a homeless meth head and realize, OMG, I used to know that guy.
@Lounsbury:
That’s too cynical and too defeatist. We don’t need Soviet Man, we need basic civic virtue. Without virtue no civilization survives. One of the forgotten realities of the Roman Republic is that, while corrupt, they still had ingrained notions of virtue and responsibility. Civilizations need mores, they require virtue.
There are people all over the world, in every country, caring for their fellow humans, sacrificing and taking risks to be virtuous. In a democracy, civic virtue is vital. We can’t all be criminals and self-serving swine. My dude, I was a thief by age five. I’ve embezzled and burglarized and flouted the law. That’s no way to live, and it’s no way to keep a civilization alive. We cannot have a world of people like the guy I used to be.
When I was in my early twenties I used to argue very persuasively that the idea of love was nonsense as there could be no evolutionary rationale for it. The notion that a human could risk, even give, their own life for someone else made no sense to me. Yet there are those people, aren’t there? Fortunately life explained patiently to me that I was full of shit, and that my adolescent cynicism, my sociopathy, was no way to live.
@Michael Reynolds:
That part. The whole Soviet New Man crap is just as lame a red herring as “Trump isn’t perfect but–” And? Nobody asked for perfection from Trump, we asked him not to be a raging prick. We don’t need to aspire to sainthood when a light sprinkling of integrity will do. Basic decency is not a high bar to cross, but Trump’s enablers love pretending otherwise.
Observing the racist backlash against Obama, I stopped voting Republican…and the world did not end. I’m not a Soviet New Man — so maybe all the systems, logistics, structures and primaries that were supposed to render me incapable had that day off?
@CSK: I would be working from the assumption that the mouths of MAGAs write checks that their asses can’t cash. But I’m tired of the circus now.
And overlooking the hypocrisy.
The new “evidence” becomes public despite prior warnings from both Chutkan and Jack Smith that pre-trial publicity would jeopardize the “fair administration of justice” in the case.