WASHINGTON ― When Donald Trump was told by a White House aide that his own vice president, Mike Pence, had to be evacuated from the Senate on Jan. 6, 2021, for his own safety following an inflammatory tweet from Trump, the former president had but a two-word response: “So what?”
The anecdote was among hundreds of pieces of evidence gathered by federal prosecutors into a 165-page court filing, unsealed Wednesday, in their four-count felony prosecution against Trump for his actions leading up to and during his coup attempt.
“This motion provides a comprehensive account of the defendant’s private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none of the defendant’s charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted; and requests the relief the government seeks, which is, at bottom, this: that the court determine that the defendant must stand trial for his private crimes as would any other citizen,” special counsel Jack Smith wrote.
The question of immunity became critical thanks to a July Supreme Court ruling stating that all official acts done by a president are immune from prosecution, but left it to the trial court to determine whether Trump’s attempt to remain in power were “official.”
“The answer to that question is no,” Smith argued.
The filing was unsealed by U.S. District Judge Tanya Chutkan, the judge in the case. It can be read here .
Trump’s lawyers had argued that everything their client did leading up to Jan. 6 was covered by the Supreme Court ruling, and requested that Chutkan not allow the public to see any of the evidence Smith has collected against Trump.
Chutkan rejected that and, in a order also filed Wednesday, ruled that Smith would be permitted to file a version of his brief with some names and details redacted. Wednesday’s brief by Smith is riddled with blacked-out words and phrases in the section providing the narrative of the indictment.
Much of the information in the filing was known previously, thanks largely to the work of the House Jan. 6 Committee, albeit in broader strokes. But key players in Trump’s attempt to overturn his 2020 election loss and remain in office did not cooperate with that committee. They did, however, honor prosecutors subpoenas.
Pence — a crucial witness, as Smith’s brief makes clear almost from the start — had repeatedly told Trump he had lost and to look ahead to 2024 instead.
On Nov. 12, during a private lunch with Trump, Pence “reiterated a face-saving option for the defendant: ‘don’t concede but recognize the process is over.’”
In another private lunch on Dec. 21, Pence ”‘encouraged’ the defendant ‘not to look at the election “as a loss ― just as an intermission.”’”
The brief then offers a detailed chronology of Trump’s attempts to coerce Pence into rejecting the electors from states Biden had won and simply declaring that Trump had won instead.
Trump made his last effort to persuade Pence just minutes before he took the stage at his rally on the Ellipse, just south of the White House. Trump again demanded that Pence declare him the election winner, but Pence, again, refused.
“The defendant was incensed. He decided to re-insert into his campaign speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the certification. And the defendant set into motion the last plan in furtherance of his conspiracies,” Smith wrote.
“If Pence would not do as he asked, the defendant needed to find another way to prevent the certification of Biden as president. So on January 6, the defendant sent to the Capitol a crowd of angry supporters, whom the defendant had called to the city, and inundated with false claims of outcome determinative election fraud, to induce Pence not to certify the legitimate electoral votes and to obstruct the certification.”
Trump sent out a tweet telling his followers that Pence had lacked “the courage” to do as he was told at 2:24 p.m., which was followed by a surge of his supporters into the Capitol. A minute later, Pence had to be moved by his Secret Service detail to a secure location. As Pence came within yards of Trump’s angry mob, the president demonstrated his unconcern for his running mate’s life.
As Smith’s brief details, Trump was just as unbothered by safety concerns in the run-up to Jan. 6.
When a campaign aide warned a Trump operative ― both of whose names have been blacked out ― that attempts to block vote counting in Detroit could lead to unrest, the operative responded “Make them riot” and “Do it!!!”
“The defendant’s campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania, and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access,” Smith wrote.
When one of his private lawyers, apparently a childhood friend of Jared Kushner, repeatedly told Trump that he had lost and that the legal cases were not going to succeed, Trump replied that “the details don’t matter,” Smith wrote.
Smith said Trump and his co-conspirators ― who have not been indicted ― simply “made up figures out of whole cloth,” and then provided Arizona as an example.
“The conspirators started with the allegation that 36,000 non-citizens voted in Arizona; five days later, it was ‘beyond credulity that a few hundred thousand didn’t vote,’” he wrote. “Three weeks later, ‘the bare minimum [was] 40 or 50,000. The reality is about 250,000’; days after that, the assertion was 32,000, and ultimately, the conspirators landed back where they started, at 36,000, a false figure that they never verified or corroborated.”
Trump, as is his fashion, responded to the new filing with a series of angry social media posts attacking Smith and others.
“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 wrote .
His lawyers have until Oct. 17 to file a response to Smith’s brief, and Smith will have until Oct. 29 to respond to that.
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