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.
