Jack Smith’s October Surprise for Donald Trump
Arguably the most telling moment of the JD Vance and Tim Walz Vice Presidential debate was when Walz asked Vance if he believed Donald Trump lost the 2020 election. Vance refused to answer the question and said he was “focused on the future.”
One man, however, is still bothered by the past. He thinks what Donald Trump did after the 2020 election was criminal. That man is Special Counsel Jack Smith.
You might think that Jack Smith would be deterred in the wake of Trump v. United States. After all, in that case, the Supreme Court granted Presidents broad immunity from criminal prosecution for “official” acts.
Instead of admitting legal defeat, Smith struck back with a motion that goes into excruciating detail (for 165 pages) about what evidence he should still be able to admit in a criminal trial against Donald Trump. The motion is a harrowing tale of elaborate frauds, conspiracies, and deceptions made by Donald Trump and his numerous enablers to overturn the 2020 election.
Jack Smith presents compelling arguments for why most of the activities and statements to execute this criminal plot were unofficial conduct (and therefore admissible against Trump). For the limited areas where official conduct was involved, including conversations between Trump and Vice President Mike Pence, Smith argues that presumptive immunity should not apply because they don’t endanger the functions of the Executive Branch.
While some of his arguments may not pass constitutional muster with the current Supreme Court (as described further below), Smith makes a persuasive case that Trump’s actions were fundamentally private. They were not executed by Donald Trump the President, but by Trump the candidate who was desperately attempting to cling to power.
The filing is a timely October reminder, especially following Vance’s apathy about Trump’s actions after the 2020 election, that the criminal allegations against Trump are serious. They strike at the core of American democracy and the peaceful transfer of power on which it’s dependent.
A private criminal effort, not an official act
Jack Smith’s new motion is tailormade for the legal framework that was recently constructed by the U.S. Supreme Court’s conservative majority. Smith was forced to argue that the federal criminal prosecution against Trump for his efforts to overturn the 2020 election was still valid; that the alleged criminal actions were still admissible given the broad criminal immunity the conservative majority granted Presidents for official acts.
Smith had a monumental task before him. The legal framework following the Court’s opinion in Trump v. United States mandated that each piece of evidence against Trump be categorized appropriately: (i) official and inadmissible; (ii) official, but with a rebuttable presumption of immunity, and therefore admissible; or (iii) unofficial and admissible.
No wonder it took 165 pages.
What we received, however, is more detailed than the original indictment itself. The new motion alleges that Donald Trump engaged in a private criminal effort to use deceit at every stage of the 2020 electoral process. From organizing fake electors in key battleground states to delaying and disrupting the election certification on January 6, 2021.
Trump primarily relied on private attorneys and campaign staff to execute his scheme. As the motion explains, his private political operatives “sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes.”
Trump’s private operatives blamed poll workers and voting machines when the results showed Trump had lost the 2020 election. They alleged outcome-determinative fraud due to large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters (strikingly similar arguments to those currently being made by Elon Musk and others about the 2024 election).
When pressed for evidence of election fraud by state officials who found few isolated instances themselves, Trump’s team never delivered any. When campaign staff told Trump he lost, Trump had them replaced. When told that his arguments of fraud would not hold up in court (which they didn’t some 60+ times), Trump allegedly said “the details don’t matter.”
This steady stream of disinformation culminated in the January 6th storming of the U.S. Capitol. Hundreds of police officers were injured, some dying in the days after January 6th.
The reason Jack Smith’s motion went into such excruciating detail is to prove that the vast majority of Trump’s statements and actions were unofficial as he was attempting to carry out his scheme.
The President has no official responsibilities related to a state’s administration of its elections or its appointment of electors. This is true even if the election is for a federal office.
Accordingly, when Trump and his staff pressured officials in key battleground states (and tellingly, he didn’t pressure officials in all states he lost), he was acting in his private capacity as a candidate, not as the then sitting President.
Trump was simultaneously a President and a candidate, significantly complicating this prosecution
While it may seem straightforward and persuasive when you read that Trump was acting primarily in an unofficial capacity as a candidate, the reality is much murkier. It’s made even more complicated by the fact the U.S. Supreme Court was not clear on this point. The majority refused to clarify where the official acts of a President start and stop. The one example they gave of an “official” act was Trump instructing the Attorney General to have the Justice Department investigate potential election fraud.
Jack Smith removed that evidence from the filing. But it’s yet to be determined whether the Court will have the same view of what constitutes “official” when Trump is speaking with state officials, White House staff, or even the general public. Is Trump speaking as a President who’s concerned about election fraud (genuinely or not), or is he speaking as a candidate desperately trying to cling to power?
The arguments in Smith’s motion are persuasive that it’s primarily Trump the candidate talking when he’s, for example, asking the Georgia Secretary of State to find 11,780 more votes (the exact number he needed to win the state of Georgia). Yet so much of the evidence gives Trump legal wiggle room to at least argue that it’s unclear; that even if the Constitution does not vest power with the President or the Executive Branch over elections, the President as the head of the Executive Branch still must ensure the laws of the United States are faithfully executed.
While faithfully is in serious question when it comes to Trump’s actions and statements after the 2020 election, the point is that Trump still has arguments in his defense. The limits of “official” acts have not been tested. And the conservative majority on the Court has demonstrated a willingness to entertain his legal theories.
It’s not hard to envision a world where Trump successfully persuades the Court that he was acting as President the entire time; that he was concerned there was outcome-determinative election fraud and that he was investigating to confirm. Therefore, anyone he spoke to was in an “official” capacity and cannot be admitted as evidence against him in a criminal trial.
This argument is probably a loser, but it’s not out of the question. Trump was wearing multiple hats while he was claiming — albeit without evidence — that the election had been stolen. You can be sure that he will try to argue he was acting more in his capacity as President instead of as a candidate and therefore he should receive immunity.
Some of Smith’s best arguments to rebut this include the following:
- Most of the people helping Trump organize and install fake electors and pressure Mike Pence not to certify the 2020 election were privately hired (e.g., Rudy Giuliani). They were not White House staff or government employees.
- The structure of the U.S. Constitution purposely gives the Executive Branch no role in the election certification process (the Founders were concerned that a sitting President may attempt to unduly influence the process).
- The content of Trump’s conversations with government officials, or even his own Vice President, were not about the official workings of his government, but on how he could win reelection as a Presidential candidate. His public speeches and Tweets were primarily about Trump the candidate, not Trump the sitting President.
The content, form, and context of Trump’s allegedly criminal actions primarily point to him as a candidate, not as a President. But while Smith will probably prevail on admitting most of it into evidence, I would not be surprised if he failed to admit all of it, particularly the conversations Trump had with his Vice President, Mike Pence.
That’s all well and good, but it’s crazy to think that none of it may even matter.
None of this will matter if Trump wins reelection
If Trump wins reelection for a second term in 2024, one of his first “official” actions will be to fire Jack Smith. He will likely describe Smith’s efforts as “lawfare” that weaponized the justice system against him; and how he was treated very unfairly, despite the compelling and substantiated story Smith told in this latest motion.
The existing Justice Department policy is not to indict or prosecute a sitting President, so Trump will be a free man. The Presidency will give him a get-out-of-jail-free card. The federal case against him will likely be torn up forever (still an open question about the state cases in Georgia and New York).
This is why I said and asked the following in a recent essay:
But while I will be the first to admit that Trump did some good while in office and that he’s treated unfairly at times, we must be serious about why he’s motivated to run for President for a third time. Is it truly for a love of country? Is it really out of concern that America will never be great again without him?
Or is it actually for immunity from prosecution? Is it to save himself from criminal convictions and likely prison sentences?
The detailed evidence that Jack Smith has been able to weave together across the filed indictment and motion creates a compelling story likely to persuade a jury of Trump’s guilt. That’s assuming the evidence is admissible under the U.S. Supreme Court’s “official” acts test.
While most of it probably will be admissible, the bigger question is whether it will ever be heard. This is why the issue of Trump’s efforts to overturn the 2020 election should not be the last question asked in a debate, as it was in the recent Vice Presidential debate.
It must be the first.
No other issue matters more. Not the economy. Not immigration. Not foreign policy.
If Americans — and the world for that matter — cannot trust the President to respect the rule of law and the peaceful transfer of power, that should be immediately disqualifying.
Trump must be subject to trial, not a second term.
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