Filing details election subversion case
Smith argues Trump not immune from charges
By: Bart Jansen
USA today
WASHINGTON - A 165-page filing from Justice Department special counsel Jack Smith released Wednesday [10/02/2024] lays out election subversion allegations against Donald Trump in new detail to argue the former president doesn't deserve immunity form criminal charges because his conduct was for private gain, not part of his public duties.
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"Although the defendant was the incumbent President during the charged conspiratorial, his scheme was fundamentally a private one," Smith wrote, "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."
..... The filing added, "When the defendant lost the 2002 presidential election, he resorted to crimes to try to stay in office."
..... It is the opening salvo as U.S. District Judge Tanya Chutkan decides whether Trump is immune to charges for conduct while he was president. While there won't be a trial or probably even a hearing on the evidence until after the November 5 [2024] election, the filing provided the most detailed explanation so far of the case against Trump.
..... Trump's lawyers opposed having prosecutors file such a lengthy set of unanswered allegations - quadruple the length of typical filings - as a "monstrosity: and a "false hit piece."
..... But prosecutors argued the Supreme Court directed Chutkan to make a fact-based decision about whether Trump can be charged, and she agreed to consider it. Chutkan ruled the debate over evidence "is simply how litigations works."
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Trump faces four charges of conspiring to overturn the election and obstructing Congress in counting Electoral College votes on January 6, 2021. he has pleaded not guilty.
..... The Supreme Court ruled July 1 [2024] that former presidents are shield from charges for conduct at the core of their office, such as pardons, and presumptively immune to charges for other official duties. But former presidents are not immune for private conduct, which prosecutors contend Trump was doing when electioneering to stay in office.
..... Names of co-conspirators and private agents Trump allegedly relied upon were blacked out in the filing.
..... Smith alleged that Trump's "increasing desperate" criminal conduct included lying to state officials in seven states to induce them to ignore true vote counts, manufacturing fraudulent electoral votes in targeted states, trying to enlist Vice President Mike Pence to obstruct the certification of the election on January 6, 2021, and directing an angry mob to the Capitol that day.
..... One example featured Trump's claims of noncritical voters in Arizona. That began with the allegation that 36,000 concertizes voted. Five days later, the claim rose to 50,000 and eventually to about 250,000. All were false figures that Trump and his team "never verified or corroborated," Smith wrote.
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"The through-line of these efforts was deceit: the defendant's and co-conspirators' knowingly false claims of election fraud, Smith wrote.
..... As votes were counted, Trump alleges scrambled to"sow confusion," but they were aware Biden had won contested states, according to Smith. At a Detroit convention center, one Trump ally told a colleague a batch of votes for Biden was "right." The colleague told the ally to "find a reason it isn't."
..... A key part of the case deals with Pence and his dual role as vice president in the executive branch and Senate president in the legislative branch. Trump pressured Pence to recognize Republican presidential electors from states Biden won while presiding over the counting of Electoral College votes.
..... The high court rule that allegations about Trump's interactions with Pence"resent more difficult questions." The 6-3 majority ruled that vice presidents presiding over the Senate are not functioning as part of the execute branch. But the majority refused to conclude that Trump lacked immunity for attempts to enlist Pence to use his ceremonial role "to fraudulently alter the election results."
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Trump has argued his communications with Pence were part of their official jobs and thus shielded from criminal charges. If the Pence material is dropped form the indictment, Trump's lawyers contend all the charges should be thrown out.
..... But prosecutors contend the communicaitons were about Pence's legislative role and about the election, so they were not official. The filing quotes Trump's social media posts and public statements pressuring and criticizing Pence not to certify the election results.
..... Smith's filing also cites meetings between Trump and Pence in November and December 2020. After lawyers gave pessimistic report about election lawsuits. Pence was quoted as telling Trump November 12, [2020] "don't conceded but recognize process is over." At a private lunch December 21, [2020] Pence told Trump "not to look at the election 'as a loss - just an intermission.'"
..... Pence opposed a lawsuit by then-Representative Louis Gohmert, R-Texas, which argued that Pence had the authority to choose electoral voters. On January 1, 2021, Trump called Pence to berate him and say "Hundreds of thousands" of people "Are gonna hate your guts" and "people are gonna think you're stupid,: according to Smith's filing.
..... "Other than the specific official conduct related to Pence that the supreme Court held to be official, none of the defendant;s other actions were official," Smith wrote.
..... Trump blasted the filing as a politically motivated :hit job" before the election. "Democrats are Weaponizing the Justice Department against me because they know I am WINNING, and they are desperate to prop up their failing Candidate, Kamala Harris," Trump said in a spot on Truth Social.
..... Trump lawyers John Lauro and Todd Blanche urged Chutkan not to allow the lengthy filing, argued the filing could taint the jury pool and bias potential witnesses. The lawyers also argued the filing could influence the election. but Chutkan ruled Trump's team hadn't explained how the filing would prejudice his case. Trump has until October 17 [2024] to formally reply.