Released filing gives fullest picture yet of 2020 election case against Trump
(CNN) — A federal judge in Washington, D.C., has released the most comprehensive narrative to date of the 2020 election conspiracy case against Donald Trump, outlining what special counsel Jack Smith describes as the former president’s “private criminal conduct.”
The 165-page document comes from Smith’s office and is the fullest accounting yet of evidence in the election subversion case against Trump.
Throughout the document, Smith argues that the actions Trump took to overturn the election were in his private capacity – as a candidate – rather than in his official capacity, as a president. That argument flows from the Supreme Court’s decision in July, which granted the former president sweeping immunity for official actions but left the door open for prosecutors to pursue Trump for unofficial steps he took.
”At its core, the defendant’s scheme was a private one,” prosecutors wrote in the motion. “He extensively used private actors and his campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office.”
The filing weaves together what prominent witnesses told a federal grand jury and the FBI about Trump, along with other never-before-disclosed evidence investigators gathered about the former president’s actions leading up to and on January 6, 2021.
Releasing the motion, which was previously filed under seal, is the latest major development in Smith’s longstanding effort to prosecute Trump for actions he took to overturn the 2020 election, even as the former president is seeking a second term in a tight race with Vice President Kamala Harris. The case, which has already reached the Supreme Court once, has repeatedly been delayed as Trump has attempted to push off the prosecution until after the next month’s election.
The document is broken into four sections. The first section lays out the case prosecutors said they would attempt to prove at trial, including a summary of evidence; the second section gives US District Judge Tanya Chutkan a roadmap for how to assess which actions are official – and therefore potentially covered by immunity – and which are not; the third section walks through how the principles should apply in Trump’s case; the fourth is a brief conclusion that asks Chutkan to rule that the actions described are not protected by immunity and that Trump “is subject to trial on the superseding indictment.”
Campaign operative told Trump: ‘Make them riot’
Prosecutors describe an effort by Trump operatives to “create chaos” in the immediate aftermath of the 2020 election when the voting looked to be going for Joe Biden.
In Philadelphia, prosecutors allege campaign operatives sought to create confrontations at polling places and then “falsely claim that his election observers were being denied proper access” as a predicate to claim fraud.
Prosecutors also raised the fracas at the Detroit Counting Center, pointing to evidence that a campaign staffer, upon learning a heavy incoming batch of votes leaned Biden, asked for “options to file litigation” even if (it) was “itbis[sic}.”
The same campaign operative said “make them riot” when told that protests at the counting center were heading in the direction of the so-called Brooks Brothers Riot that disrupted the 2000 Florida count between Al Gore and George W. Bush.
Trump told advisers he would declare victory
Prosecutors say that Trump was told by advisers that the 2020 vote likely would not be finalized on Election Day and that he could misleadingly look ahead in the ballot count on election night only to fall behind once all of the ballots were counted. Nonetheless, Trump told his advisers that he would claim victory before the ballots were fully counted, prosecutors say.
One private political adviser, three days before Election Day 2020, described Trump’s plan as: “He’s going to declare victory. That doesn’t mean he’s the winner, he’s just going to say he’s the winner,” according to the filing.
That adviser, not identified by name by prosecutors, also described the Democratic lean of the mail ballot vote “a natural disadvantage” and said “Trump’s going to take advantage of it. That’s our strategy.”
Trump sought to ‘perpetuate himself in power’
Smith’s office stressed the private and political nature of Trump’s actions around the 2020 election.
“The executive branch,” prosecutors wrote, “has no authority or function to choose the next president.”
That argument appeared designed for federal appeals courts, including the Supreme Court, that have placed a heavy emphasis in recent years on the historical understanding of the separation of powers.
In other words, Smith is arguing that Trump’s effort to overturn the election was necessarily private because the Constitution gives a president no official authority for choosing his successor.
“The defendant’s charged conduct directly contravenes these foundational principles,” the motion reads. “He sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people.”
White House staffer ‘P9’ details planning meetings
Prosecutors focus in particular in the filing on what Trump learned from a White House staffer referred to in the filings as
“P9,” as they try to show that Trump was well aware he had lost the election as he pressed on with the reversal schemes.
The person, identified only as “P9,” appears to have personally had discussions over the phone about the fake electors strategy with Trump, and had repeated text conversations with other people in the campaign about how the strategy was “crazy” or “illegal,” according to the filing.
When Trump told the staffer he would not pay the private lawyer spearheading his legal challenges unless the challenges were successful, the staffer told Trump that the private attorney would never be paid. That prompted a laugh and a “we’ll see” from Trump, the filings said. (The private attorney is identified by prosecutors as co-conspirator 1, who CNN has previously identified as Rudy Giuliani.)
In a follow up conversation, the White House official told Trump that Giuliani would not be able to prove his false claims in a court and Trump told the staffer, “The details don’t matter.”
The brief lays out several other interactions between the White House staffer and Trump in which Trump was told that the election fraud claims wouldn’t hold up in court.
Prosecutors say they would call election officials in battleground states at Trump trial
In the filing released Wednesday, prosecutors identify witnesses they hope to call at a trial to testify against Trump – including election officials in battleground states and his White House deputy chief of staff.
The prosecutors say they also want to show a jury at trial Trump’s campaign speech on January 4, 2021, in Georgia, and his campaign speech on the Ellipse on January 6, 2021, just before the riot at the U.S. Capitol.
And, they’d like to show the jury tweets that they say can prove Trump was driving the public campaign of fraud in the election, as he knew there was none that was widespread enough to overturn his loss. They argue those tweets weren’t part of Trump’s official work as president.
At trial, prosecutors say they would like to call the only other adviser to Trump who had access to his Twitter account to testify that Trump was sending tweets on January 6, 2021, that would put pressure on then-Vice President Mike Pence to stop the counting of the electoral votes at the Capitol. The person is described as White House deputy chief of staff.
“The Government will elicit from Person 45 at trial that he was the only person other than the defendant with the ability to post to the defendant’s Twitter account, that he sent tweets only at the defendant’s express direction, and that person 45 did not send certain specific Tweets” – specifically a tweet Trump sent that said Pence didn’t have the courage to block the certification of the vote.
That type of testimony would allow prosecutors to assert in court they have evidence of a moment like this:
“At 2:24 p.m., Trump was alone in his dining room,” prosecutors write in the filing, “when he issued a Tweet attacking Pence and fueling the ongoing riot: ‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!’”
Prosecutors lean on Hatch Act to bolster Trump charges
Smith is again using the Hatch Act – which limits the political activities of federal employees – to bolster their 2020 election subversion charges against former President Donald Trump.
Prosecutors said in a new filing that the Hatch Act allows White House staffers to “wear two hats,” separating out their official conduct to serve the public from their political conduct to help a candidate.
Therefore, even if some of Trump’s alleged wrongdoing occurred on White House grounds and in front of White House staff, he doesn’t have immunity because that fell under the “political” umbrella, Smith’s team wrote.
“When the defendant’s White House staff participated in political activity on his behalf as a candidate, they were not exercising their official authority or carrying out official responsibilities,” prosecutors wrote. “And when the President, acting as a candidate, engaged in Campaign-related activities with these officials or in their presence, he too was not engaging in official presidential conduct.”