We turned to some legal experts and strategists.
Former President Trump’s federal election interference case is showing some signs of life thanks to a newly unsealed legal filing by special counsel Jack Smith. According to court papers released on Wednesday, Smith’s team details new evidence of Trump’s “increasingly desperate” efforts to cling to power after losing to President Biden in 2020.
This is the latest move in the legal drama, which was put on hold due to the Supreme Court’s decision on presidential immunity, which was largely seen as a victory for the Republican presidential nominee. Now, the justices have left it up to Judge Tanya Chutkan, who’s overseeing the case, to decide which parts of the case can go to trial.
Here’s why that could prove challenging and what the latest evidence means for Trump — but first, here’s what the motion entails.
What’s in Jack Smith’s unsealed Jan. 6 motion?
Against Donald Trump’s wishes, Chutkan publicly released a redacted version of the filing last week. The 165-page filing offers the most detailed look to date at Smith’s case charging Trump in his failed plot to overturn the 2020 election.
Smith writes that Trump “pursued multiple criminal means” to disrupt the certification of the presidential election results, including pushing false claims of electoral fraud, pressuring then-Vice President Mike Pence to block the election’s certification, and provoking a mob of his supporters to march on the U.S. Capitol on Jan. 6, 2021.
The brief also includes private conversations between Trump and his allies. For instance, the former president reportedly “mocked and laughed” at former attorney Sidney Powell while she was on speakerphone, calling her election fraud conspiracies “crazy” and comparing them to something out of Star Trek. But he still pushed her off-the-wall theories on social media anyway.
What does this new material mean for Trump?
Smith’s new filing aims to convince U.S. District Judge Tanya Chutkan that the allegations against Trump can proceed to trial despite the Supreme Court’s July ruling that former presidents have broad immunity from prosecution.
While the justices said that former presidents have presumptive immunity for some actions taken in their official role as president, they also concluded they aren’t protected from being prosecuted for those they do in a private capacity. In response, Smith filed a new indictment in August to comply with this ruling, and his latest brief details how Trump’s attempt to overturn the 2020 election “was a private criminal effort” and should, therefore, not be immune to charges.
“Smith has emphasized that the former President’s conduct was private, not official, because it was done using private attorneys and advisors; he was acting in his capacity as a candidate or office seeker, rather than as President or office holder; and he was engaged in activities for which presidents have no legal authority,” Mary McCord, a visiting professor of Law at Georgetown University Law Center, tells Katie Couric Media.
For instance, McCord says a prime example of this is when Trump tried to pressure state officials to change the 2020 election results. According to Smith’s latest motion, Trump promised to provide Arizona governor Doug Ducey with evidence of election fraud, saying his team is “packaging it up.” But he ultimately never shared anything with the governor.
“He reached out solely to Republicans, never Democrats, and pressured them based on party,” she says. “If he had been concerned generally about election fraud, he presumably would have been reaching out to the Democratic state officials in swing states like Michigan and Pennsylvania, but he did not.”
The filing also details how Trump tried to pressure Pence to reject Electoral College votes on Jan. 6, 2021 by using his ceremonial role in the certification process to halt election proceedings. In one passage of Smith’s brief, prosecutors said Trump replied, “So what?” when he was told that his running mate could be in danger at the Capitol.
“Communications were as running mates — again, not part of their official Executive Branch responsibilities, but as candidates for office,” McCord emphasizes. “These facts respond to the Supreme Court’s ruling that the lower court must examine the ‘content, form, and context’ of the charged conduct to determine if it is official or unofficial.”
However, McCord says that what’s most striking about the brief is how Smith uses Justice Amy Coney Barrett’s own words to prove that Trump should be prosecuted for election fraud. The Trump-appointed judge unexpectedly went out of her way to argue that the former president’s fake electors scheme wasn’t protected from prosecution.
In his filing, Smith quoted Barrett’s opinion: “The defendant’s conduct with respect to the elector scheme is inherently private, and not subject to immunity.”
“Sorting private from official conduct sometimes will be difficult — but not always,” Barrett’s opinion continues. “Take the President’s alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection.”
Wait, how’d we get here, and what’s next?
While the Supreme Court weigh Trump’s claims of presidential immunity, his 2020 election case was put on hold last December.
Though SCOTUS rejected the former president’s request to dismiss the entire case, the justices’ decision effectively stripped some of Smith’s allegations. Namely, Smith was forced to remove allegations related to Trump’s attempts to use the Justice Department to undo the election results, which are now protected under presidential immunity.
The case was then sent back to Chutkan to determine which of the remaining claims in the indictment involve official actions for which Trump may be immune from prosecution and which, if any, can move forward.
“Judge Chutkan will have a difficult challenge,” says Chris Edelson, an assistant professor of government at American University. “She has to apply the Supreme Court’s ambiguous decision in Trump v. United States to determine which acts are official and which are not. If they are official, are they core presidential responsibilities, which means they’re absolutely immune? Or are they more peripheral responsibilities, which means they have presumptive immunity? It’s going to be complicated to sort through.”
So where does the case go from here? Well, Trump’s team will now get a chance to respond to Smith’s arguments, even as the defense continues to work to get it dismissed altogether. During a hearing last month, Trump attorney John Lauro pointed to the “sensitive time” before the election, which the judge shot down immediately. “This court is not concerned with the electoral schedule,” she said at the time.
Even if Chutkan decided to change her mind, the case wouldn’t be heading to trial anytime soon. Her rulings are expected to be appealed — all the way to the Supreme Court.
However, the case could become moot if the Republican nominee beats Vice President Kamala Harris in November. In that case, Paul Schiff Berman, a law professor at George Washington University, says Trump could easily delay the prosecution until he’s no longer in office or scuttle it altogether by removing Smith as special counsel for the DOJ. The former president could also order a pardon for himself, though Berman says “the legality of that has never been litigated.”
Either way, Berman believes the case needs to play out because it could have broad implications for our Democracy as we know it. “The case might well go away if Trump becomes president, but until that time, it’s important that the legal process move forward to vindicate the idea that no one is above the law, particularly if a president is involved in trying to block the democratic transition of power, which is the core of a constitutional democracy,” says Berman.
Will Jack Smith’s new evidence impact the election?
Democrats have already seized on the latest report. In a new digital ad targeting voters in battleground states, Harris directly invokes Smith’s investigation to attack Trump.
“He knew what he was doing,” the ad says, referring to Trump. Then, switching from a photo of Pence to a picture of Trump’s current running mate, J.D. Vance, the ad states, “And next time, there will be no one to stop him.”
Democratic strategist Adrian Boafo, who’s also a Maryland state delegate, says the latest revelations will serve as a powerful reminder of what happened on Jan. 6, 2021, as voters head to the polls. “In order for this great American experiment to function, democracy needs to be at the center of everything,” Boafo says.
Meanwhile, Trump and other Republicans have dismissed Smith’s filing as yet another effort by his rivals to try to hobble his campaign.
“The last thing on most people’s minds right now is what Jack Smith went back and reformatted to bring something that’s been in courts for three and a half years back to the table with a new lens a month before the election,” GOP strategist Aaron Evans tells us. “The reality is people want the problems facing their daily lives fixed, and there’s a stark contrast on those issues between President Trump and Vice President Harris.”
It’s true that concerns about protecting Democracy have typically lagged behind worries about issues like the economy and inflation. According to a CNN poll in September, 4 in 10 likely voters said the economy was their most important issue when deciding how to vote, versus about 2 in 10 who said it was protecting Democracy.
“The reminder I give to my constituents is, would you rather have a president of the United States who’s going to be trying to figure out every single day how to avoid being in court or doing the work for the people of the country?” says Boafo.
