Special counsel Jack Smith provides fullest picture yet of his 2020 election case against Trump in new filing
By Katelyn Polantz, Tierney Sneed, John Fritze, Hannah Rabinowitz, Devan Cole, Holmes Lybrand and Marshall Cohen, CNN
(CNN) — Federal prosecutors laid out their most extensive case to date against former President Donald Trump for his effort to overturn the 2020 election in a sweeping legal brief that was unsealed Wednesday by a federal judge who is weighing the explosive criminal charges against him.
The 165-page document, which lands weeks before an election in which Trump is taking another shot at the White House, offers new detail about special counsel Jack Smith’s investigation into the former president’s efforts to lean on state officials and paint a narrative of widespread fraud that prosecutors say Trump knew was untrue.
It includes new details of Trump’s frayed relationship with former Vice President Mike Pence; FBI evidence of Trump’s phone usage on January 6, 2021, when rioters overtook the US Capitol; and conversations with family members and others where the then-president was fighting his loss to Joe Biden.
Broadly, and in response to the Supreme Court’s ruling this summer that granted Trump sweeping immunity for official actions, Smith’s motion claims the former president took the steps he did as a political candidate – not as a president – and that, therefore, he is not entitled to protection from prosecution the justices identified in July.
“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office,” Smith wrote in the brief, which US District Judge Tanya Chutkan released in partially redacted form.
”At its core, the defendant’s scheme was a private one,” prosecutors wrote. “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.
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 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 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.”
More evidence could come out in coming days. A hefty appendix accompanying Wednesday’s filing remains under seal, and the judge has asked both sides to weigh in on how much of it should be made public. Among the documents in the appendix are grand jury transcripts and notes from FBI interviews conducted during the yearslong investigation.
Trump’s team had fought the release of the document and the former president on Wednesday called it a “hit job” and claimed without evidence it was released in response to the vice presidential debate Tuesday night.
“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. The DOJ pushed out this latest ‘hit job’ today because JD Vance humiliated Tim Walz last night in the Debate,” Trump posted on Truth Social.
The former president on Wednesday asked Chutkan for extra time and additional pages to file his response to Smith’s sweeping brief, where he will argue that the whole case should be thrown out under the Supreme Court’s ruling that he at least some immunity in the prosecution.
Trump argued that the deadline for his response should be extended five weeks, until November 21, given earlier extensions given to Smith, and he said that he should get the same four-fold increase on the usual page limit that Smith secured for his brief. Trump also said that he should be allowed to file an extra brief in the back-and-forth over the immunity issues in the case, which would give him the final word in the written arguments submitted to Chutkan on the matter.
“President Trump must have an equal opportunity to submit and address facts bearing on immunity, and to rebut the Special Counsel’s misleading submissions,” the new request said. “Accordingly, the Court should grant President Trump leave to file a 180-page Response.”
Here’s what to know from Smith’s court filing:
FBI knows how Trump used his phone on January 6
FBI experts have mapped out what Trump was doing on his phone while the US Capitol riot unfolded.
An FBI Computer Analysis Response Team forensic examiner can testify about “the news and social media applications” on Trump’s phone, Smith wrote in the filing, “and can describe the activity occurring on the phone throughout the afternoon of January 6.”
Those logs show that Trump “was using his phone, and in particular, was using the Twitter application, consistently throughout the day after he returned from the Ellipse speech.”
Smith said that three unidentified witnesses are also prepared to testify that on the afternoon of January 6, the television in the White House dining room where Trump spent much of the day was “on and tuned into news programs that were covering in real time the ongoing events in the Capitol.”
That testimony would allow prosecutors to show a future jury what Trump saw unfolding on TV while he made comments and posted online that afternoon.
Prosecutors frame Trump conversations with Pence as between ‘running mates’
Even as they face a high bar for introducing evidence from Pence, Smith’s team sought to do so by framing a series of interactions between the two as conversations between “running mates,” where Pence tried to convince Trump he needed to accept his electoral defeat.
They include a November 7, 2020, conversation where Pence allegedly told Trump that he should focus on how he revived the Republican Party, as well as Pence’s recollection of a Trump meeting with campaign staff, during which Trump was told the prospects of his election challenges looked bleak.
At a November 12 lunch, Pence told Trump that he didn’t have to concede but he could “recognize process is over,” prosecutors said, and during a November 23 phone call, Trump allegedly told Pence that one of his private attorneys were skeptical about the election challenges.
As part of those private conversations, prosecutors say, Pence “tried to encourage” Trump “as a friend” after news networks called the election for Biden. In other interactions, Pence encouraged Trump to consider running for reelection in 2024. Those interactions, prosecutors argued, were not at all related to Trump’s official duties as president.
“The content of the conversations at issue – the defendant and Pence’s joint electoral fate and how to accept the election results – have no bearing on any function of the Executive Branch,” they wrote in the filing.
Trump personally tweeted Pence ‘didn’t have the courage’ to overturn election
Trump personally posted the tweet that Pence “didn’t have the courage” to overturn the election results, prosecutors say.
The revelation comes as part of Smith’s argument as to why the tweet, posted after the riot began, should be considered a private act and therefore not protected under presidential immunity.
The post targeting Pence was “a matter of intense personal concern to the defendant as a candidate for office,” Smith wrote. At the time he posted the tweet, prosecutors say Trump knew his request for Pence to block the Electoral College votes was illegal; knew that his supporters gathered in Washington, DC, believed his lies during his speech at the Ellipse that the election had been stolen; and knew that those supporters had now breached the Capitol building.
“It was at that point — alone, watching news in real time, and with knowledge that rioters had breached the Capitol building — that the defendant issued the 2:24 p.m. Tweet attacking Pence for refusing the defendant’s entreaties to join the conspiracy and help overturn the results of the election,” Smith wrote.
The tweet communicated “to his angry supporters that Pence had let him — and them — down,” Smith wrote, adding that it was “not a message sent to address a matter of public concern and ease unrest; it was the message of an angry candidate upon the realization that he would lose power.”
One minute after the tweet was posted, Smith wrote, the Secret Service was forced to evacuate Pence to a secure location in the Capitol.
Trump told family: ‘It doesn’t matter if you won or lost the election’
Prosecutors allege they have a witness who will testify that Trump told family members, “It doesn’t matter if you won or lost the election. You still have to fight like hell.”
The witness, Smith’s team said in the filing, will testify that he was aboard Marine One when then-President Trump made the statement to his wife, Melania Trump, his daughter Ivanka Trump, and his son-in-law Jared Kushner.
Prosecutors did not name the official in the filing, but they said he was the director of Oval Office operations. “He witnessed an unprompted comment that the defendant made to his family members in which the defendant suggested that he would fight to remain in power regardless of whether he had won the election,” prosecutors wrote.
At the time, Ivanka Trump and Kushner were White House employees, serving as advisers to the president, and Melania Trump was first lady.
However, prosecutors claim that the conversation aboard Marine One was “plainly private” and had nothing to do with the Trump family’s official government responsibilities.
“The defendant made the comment to his family members, who campaigned on his behalf and served as private advisors (in addition to any official role they may have played),” prosecutors wrote.
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 as “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. Ted Goodman, a spokesman for Giuliani, told CNN Wednesday night that the brief was “blatant election interference by Jack Smith, a person with a long track record of weaponizing the law for political gain.”)
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 US 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 that would put pressure on 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!’”
Secret Service was warned about Pence’s safety, prosecutors say
According to prosecutors, the Secret Service was warned about Trump threatening to criticize Pence if he failed to overthrow the election results.
On January 5, 2021, Trump once again met with Pence to allegedly try to pressure him not to certify the Electoral College votes. In that meeting, the special counsel wrote that Trump threatened to criticize him publicly.
Smith says that Pence told someone identified only as “P8” about that comment, and that P8 was so concerned by the prospect that he alerted Pence’s Secret Service detail.
Trump tried again to pressure Pence on the morning of January 6, shortly before driving to deliver his speech at the Ellipse, prosecutors say.
Pence, however, again refused and Trump “was incensed,” the filing says.
It was then that Trump “set into motion the last plan in furtherance of his conspiracies: if Pence would not do as he asked, (Trump) needed to find another way to prevent the certification of Biden as president,” the filing says.
“So on January 6, (Trump) sent to the Capitol a crowd of angry supporters, whom the defendant had called to the city and inundate with false claims of outcome-determinative election fraud, to induce Pence not to certify the legitimate electoral votes and to obstruct the certification,” the filing says.
According to prosecutors, Trump also showed his “desperate conduct as a candidate rather than a President” when rioters stormed the Capitol, forcing Pence to be moved to a secure location.
An unnamed White House aide, according to the filing, ran to Trump when he received a phone call that Pence had been taken to a secure location “in hopes that (Trump) would take action to ensure Pence’s safety.”
Trump, according to prosecutors, looked at the aide and simply replied, “So what?”
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 the 2020 election subversion charges against Trump.
Prosecutors said in the 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.”
‘Make them riot’ and ‘create chaos’
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 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.
Bill Barr decided to speak out against Trump’s election lies after seeing him on Fox News
Then-Attorney General Bill Barr decided in 2020 to publicly rebut Trump’s false claims that the election was rigged after watching Trump spread these lies on Fox News, prosecutors say.
“On November 29, [Barr] saw the defendant appear on the Maria Bartiromo Show and claim, among other false things, that the Justice Department was ‘missing in action’ and had ignored evidence of fraud,” prosecutors wrote.
They continued, “[Barr] decided it was time to speak publicly in contravention of the defendant’s false claims, set up a lunch with a reporter for the Associated Press, and made his statement.”
This was the December 1, 2020, statement in which Barr infamously said the Justice Department had looked into potential election irregularities but didn’t find any widespread fraud that could’ve tipped the results. This was a major move by Barr, a lifelong Republican who at the time was a staunch Trump ally.
Barr’s name is redacted in the filing, and he is referred to as “P52.” But P52 is described as the “attorney general,” and Barr was the attorney general at that time.
Barr resigned just before Christmas 2020.
CNN’s Kate Sullivan contributed to this report.
This story has been updated with additional developments.
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