Henry Bodkin
2024-10-04 01:44:32 UTC
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Legal
11 Damning Details In Jack Smiths New Brief In The Trump Election Case
From Trumps fictitious stats about voter fraud to the FBIs forensic
analysis of Trumps phone, prosecutors previewed how they would make their
case at trial.
By Kyle Cheney and Josh Gerstein
10/02/2024 09:45 PM EDT
Special counsel Jack Smith wont get a chance to bring his best criminal
case against Donald Trump to trial before the 2024 election and if Trump
wins, Smith probably will never get that chance. But on Wednesday, the
public got its most complete look at the evidence Smith has amassed to try
to prove that the former president orchestrated criminal conspiracies as he
sought to overturn his loss four years ago.
In a 165-page legal brief unsealed by a federal judge (albeit with some
redactions), the special counsel fleshed out detailed evidence he would use
against Trump at trial, if the case ever makes it that far. Smith also
presented his arguments for why Trump is not immune from the charges,
despite the Supreme Courts ruling over the summer that granted presidents
broad immunity for official acts.
Much of Smiths brief focused on Trumps state of mind in the weeks leading
up to the Capitol riot on Jan. 6, 2021. Smith described a slew of
conversations suggesting that the then-president knew his claims of
election fraud were spurious. And Smith laid out evidence that Trumps sole
objective was to stay in power not, as he and his lawyers have claimed,
to exercise legitimate authority over election integrity.
Heres POLITICOs look at the most significant and striking details in
Smiths brief.
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 Trumps pressure to intervene
in the Electoral College certification.
According to Smiths prosecutors, Trump was alone in the White House dining
room when he sent that tweet. Trumps 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 Pences evacuation, prosecutors say Trump
responded: So what?
Trumps 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!
Disregarding the results
According to prosecutors, at one point during Trumps bid to overturn the
results, a Trump White House aide overheard Trump tell his daughter Ivanka
and son-in-law Jared Kushner: It doesnt matter if you won or lost the
election. You still have to fight like hell. The comment was allegedly
made on Marine One.
Inventing statistics
Prosecutors said they would prove at trial that Trump and his allies often
made up statistics about voter fraud from whole cloth. For example, Trump
and allies alleged that 36,000 noncitizens had cast ballots in Arizona,
changing the figure to a few hundred thousand five days later, eventually
revising it back to bare minimum 40 or 50,000, then to 32,000 and back
up to the original number of 36,000.
Broken promises of evidence
One week after Election Day in 2020, Trump told then-Gov. Doug Ducey (R-
Ariz.) that he was packaging up fraud evidence to share with him,
prosecutors wrote. But Trump never provided it. Ducey told Trump that
Arizona was all but lost, comparing it to being in the ninth inning, two
outs, and [the defendant] was several runs down, Smiths brief recounted.
Mocking Sidney Powell
After a Fox News host called out Trump-aligned lawyer Sidney Powell for
making bizarre claims about Dominion Voting machines, Trump called her on
speakerphone. On the Nov. 20, 2020 call, Trump muted his line and mocked
her to two aides, calling her claims about the election crazy and making
a reference to Star Trek, prosecutors contend. On another occasion, he
called Powell unhinged.
Though its not referenced in Smiths new filing or his indictment, Trump
later considered naming Powell as a special counsel to investigate election
fraud, and he considered a proposal she crafted to seize voting machines
from swing states for a forensic inspection.
Trumps Jan. 5 call to Steve Bannon
Prosecutors, who had more access to telephone records and emails than the
congressional committee that investigated Jan. 6, allege that Trump spoke
to ally Steve Bannon by phone on Jan. 5 less than two hours before Bannon
issued a prescient and provocative prediction on his War Room podcast that
all hell is going to break loose on Jan. 6.
A preview of forensic evidence
Prosecutors plan to have an FBI computer forensic examiner testify about
Trumps phone use on Jan. 6. They say it will show which news and social
media apps he had on his phone and will reveal that Trump was on Twitter
for much of the day. Prosecutors also plan to show at trial what Fox News
was broadcasting at specific times during the day, since Trump had it on in
the dining room and was watching coverage of the riot.
Make them riot
Well before Jan. 6, an unidentified Trump campaign employee
enthusiastically spoke of the potential for a riot in Michigan. The
employee, whom prosecutors described as a co-conspirator, allegedly sought
to create chaos at a polling center in Detroit when it became clear a
batch of election returns favorable to Biden was legitimate. Find a reason
it isnt, the alleged co-conspirator said to a colleague, prosecutors
wrote. When the colleague said an outbreak of violence appeared imminent,
the campaign employee replied: Make them riot and Do it!!!
Rudys rise
Trump sidelined his campaign lawyers on Nov. 13, 2020, with Bannon
informing another Trump campaign adviser and alleged co-conspirator
that Trump had replaced them in the pecking order with Rudy Giuliani.
Bannon said he told Trump that without Giuliani in charge, this thing is
over. Trump is in to the end, Bannon added, according to prosecutors.
Rudys follies
Counting on Giuliani didnt turn out so well. Smiths brief includes yet
another instance of Giulianis prolific record of butt-dialing and clumsy
cell phone use. Prosecutors say he attempted to send a proposed resolution
to Michigan lawmakers declaring the election to be in dispute but sent it
to the wrong number.