Jack Smith Makes His Case

When the Supreme Court handed down its ruling on presidential immunity on July 1, it was immediately clear that Donald Trump would not face a criminal trial for his role in Jan. 6 before the November election. The Court’s decision, which held that Trump was immune to some extent but raised many more questions than it answered, left the path forward for Special Counsel Jack Smith strewn with obstacles—and erased any possibility that Smith might be able to air the evidence against Trump in full before the defendant potentially secured another term in office. 

But with a newly unsealed filing, Smith has unveiled a tranche of striking evidence fleshing out the case against Trump. It’s the closest the public will likely come to understanding the details of the Jan. 6 prosecution before voters head to the polls. And it provides insight into how Smith is hoping to navigate the obstacle course of the immunity decision as he moves forward with the case. 

The filing in question—a hefty 165 pages—is Smith’s opening motion hoping to persuade Judge Tanya Chutkan that the Supreme Court’s ruling still allows Trump’s prosecution for his efforts to overturn the 2020 election. Though the filing first appeared on the docket in late September, along with a lengthy appendix containing the raw emails, grand jury minutes, and investigative interview transcripts supporting the filing, Judge Chutkan only just unsealed a lightly redacted version of the motion on immunity. (Chutkan has yet to rule on the unsealing of the appendix.) 

Smith’s brief has two main components. First, there’s a factual summary of the case against Trump, setting out the evidence in more detail than the special counsel has done before. And second, there’s Smith’s legal argument for why all that factual material is fair game both as the basis for a prosecution and as evidence against the former president even after the immunity ruling. Already, the Court’s ruling forced Smith to excise a portion of the original indictment concerning conduct that the justices found immune, regarding Trump’s efforts to enlist the Justice Department in his scheme to hold onto power. With this filing, Smith is doing his best to salvage the prosecution against Trump’s arguments that the immunity decision requires the rest of the case to be tossed out as well. 

Here, we examine the filing in reverse—starting with a close study of Smith’s legal arguments before moving on to a review of the factual material in the filing. Examining the brief in this order helps establish the complexities of the puzzling legal regime that Smith is struggling to navigate with limited guidance, and the stakes for how those legal arguments are resolved in terms of what aspects of the case can and can’t move forward. 

His job is not only to convince Judge Chutkan but also to begin a potentially lengthy process that could involve persuading the U.S. Court of Appeals for the D.C. Circuit and a likely skeptical Supreme Court. In the end, though, Smith’s request to Chutkan is deceptively simple: He asks “that the Court determine that the defendant must stand trial for his private crimes as would any other citizen.”

The Law

Reading Smith’s brief is a little bit like watching a steeplechase, with the special counsel’s office doing its best to leap over and slog through various obstacles established by the Supreme Court’s immunity opinion. By filing a superseding indictment that removed some allegations and reformulated others, Smith made his own job responding to the Supreme Court substantially easier. The work that remains for him here is to argue that the evidence he plans to use against Trump is in fact admissible under the new rules of the immunity opinion. In significant part, that involves arguing that the relevant material doesn’t touch on official presidential duties and is not shielded by immunity—with one major instance, related to Trump’s pressure campaign against Vice President Mike Pence, in which Smith must contend with the Supreme Court’s ruling that Trump’s conduct was official and, therefore, presumptively immune.

The Supreme Court’s ruling divided presidential conduct into three ambiguously defined categories: conduct at the core of the president’s constitutional responsibilities, for which he is absolutely immune from criminal prosecution; a broader, fuzzy category of conduct within the “outer perimeter” of presidential duties, for which the president enjoys a rebuttable presumption of immunity that may be overcome if prosecutors can show that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch’”; and a final category of unofficial conduct for which the president is not immune at all. In a particularly puzzling flourish, the Court also held that prosecutors cannot introduce evidence of immune conduct even to prosecute conduct that is not immune—creating additional hoops for Smith to jump through in prosecuting the case.

Smith’s job in this brief, therefore, is to argue that the relevant conduct is either unofficial or, if it isn’t, that the presumption of immunity should be rebutted. The problem for him is that the Supreme Court provided very little guidance on how to distinguish between these three categories and how, exactly, to rebut that presumption.

The superseding indictment provided some hints as to how Smith plans to navigate this thicket. Here, Smith makes his reasoning even clearer. In this filing, he draws heavily from the U.S. Court of Appeals for the D.C. Circuit’s December 2023 ruling in Blassingame v. Trump, which held that Trump could potentially be civilly liable for his actions on Jan. 6. Blassingame located a distinction between protected official conduct and unprotected unofficial conduct along the line of whether Trump was acting as a president—and thus was shielded from civil suit under Nixon v. Fitzgerald—or as a political candidate, whose actions fell outside Fitzgerald’s “outer perimeter” of protected presidential conduct. In the appeals court’s view, Trump’s activity on Jan. 6 fell into the latter category. 

In the immunity case, the Supreme Court gestured toward the Blassingame framework without outright adopting it in the criminal context. Smith, though, is all-in on Blassingame, drawing directly from that ruling to argue that the relevant distinction between official and unofficial conduct under Trump is, as it was in Blassingame, whether Trump was acting “as office-seeker, not office-holder.” Under that framework, Smith argues, all the conduct described in the superseding indictment and in this filing is not protected—except for “the specific official conduct related to Pence that the Supreme Court held to be official” regarding conversations between Trump and Pence over the latter’s role presiding over the electoral count as president of the Senate, the presumptive immunity of which Smith sets out to rebut. 

He does so, as he hinted in the superseding indictment, by establishing that the official counting of the electoral vote is “a process in which the Executive Branch … plays no direct role,” and which Trump therefore cannot have been acting officially in seeking to influence. “[A]pplying a criminal prohibition to the defendant’s conduct would not pose any danger of intrusion on the authority and functions of the Executive Branch,” Smith explains, but instead “would advance the Constitution’s structural design to prevent one Branch from usurping or impairing the performance of the constitutional responsibilities of another Branch.” Smith also points to Trump’s pattern of excluding his official White House advisers and relying instead on private or campaign lawyers when seeking to pressure Pence to upend the electoral count, writing at one point: “It is hard to imagine stronger evidence that conduct is private than when the President excludes his White House Counsel and only wishes to have his private counsel present.”

Smith relies on this same pair of arguments—the president has no official role in the process of ascertaining and counting electors, and Trump repeatedly turned to private rather than official lawyers and staffers to help him meddle with the count—in arguing that Trump’s pressuring of state officials and involvement in the fake electors scheme were unofficial. (Here, he also draws on Justice Amy Coney Barrett’s concurring opinion in the immunity case, in which Barrett took the view that the president “has no legal authority—and thus no official capacity—to influence how the States appoint their electors.”) He notes that, of the state officials Trump contacted, “all … were the defendant's fellow Republicans; he made no efforts to contact the equivalent individuals holding the same offices in Nevada, New Mexico, Pennsylvania, or Wisconsin, all of whom were Democrats.” That strongly suggests this was a matter of Republican Party interests, not official responsibilities. Smith also points to Mark Meadows’s two failed efforts to remove state criminal cases against him in Georgia and Arizona to federal court, noting that federal judges determined Meadow’s conduct in facilitating these efforts to be in service of Trump’s private interests rather than those of the office of the presidency.

When Smith refers to the specific conduct that the Supreme Court found official, he really means it. His approach—not only for the material regarding Pence, but throughout this section of the filing—is to examine Trump’s conduct with painstaking granularity to sort the potentially immune from the unofficial, sentence by sentence and tweet by tweet. When it comes to Pence, for example, the Supreme Court addressed Pence’s conversations with Trump over the vice president’s role presiding over the electoral count but did not speak to other aspects of Pence’s interactions with Trump—and so Smith adds a new category of evidence concerning “private phone calls or in-person meetings … that the defendant had with Pence in their unofficial capacities, as running mates in the post-election period.” 

A footnote suggests just how carefully Smith plans to divide unofficial from potentially official conduct at trial: He proposes to slice up a single conversation on Dec. 19 where Trump allegedly “told Pence that it would be good to have lots of their supporters in town on January 6.” That comment of Trump’s is unofficial and can be introduced at trial, Smith argues. But Smith will not be introducing Pence’s response to that comment—“which included a reference to the certification proceedings” and thus may be official. Elsewhere, Smith suggests that, should certain material in Trump’s public statements be found to be official, the government could simply edit it out and present evidence of the remaining unofficial portions of the tweets or speeches instead.

This careful parsing of the distinction between official and unofficial appears throughout the brief. In arguing that Trump’s Jan. 6 speech on the Ellipse was in his capacity as a candidate, for example, Smith points not only to Trump’s rhetoric—which he says was “that of a candidate focused on his re-election”—but also to previously unrevealed testimony from a Secret Service agent that Trump’s security detail "wasn't getting information [about the rally] from their counterparts at the White House staff because this was not a staff-driven event. This was a campaign driven event." 

Smith identifies legal grounding for carving out categories of unofficial activity from areas that might otherwise seem official. Identifying many of Trump’s tweets as primarily campaign focused in nature and therefore not immune, the special counsel points to the Supreme Court’s 2024 ruling in Lindke v. Freed to argue that “a public official’s personal social-media account can be used for both personal and public business.” Elsewhere, he draws on the restrictions imposed by the Hatch Act. That law allows some White House staffers to engage in political activity while on the job but forbids them from using their “official authority” to do so. Accordingly, Smith argues that aides involved with Trump’s schemes to hold on to power were doing so in an unofficial capacity, notwithstanding their status as White House staffers. Smith likewise points to the D.C. Circuit’s 1998 ruling in In re Lindsey—a case that arose out of the Starr investigation—to argue that “senior White House personnel may serve as the President’s agents in a personal capacity to act as a conduit for unofficial information from a private party.” This argument is crucial for Smith’s ability to incorporate evidence from a White House lawyer who ferried information back and forth between Trump and the campaign. 

Again and again, Smith encounters all kinds of bizarre questions raised by the immunity ruling. How should the special counsel’s office handle the case of a White House staffer who overheard a personal remark made by Trump to his family? (Smith argues that Trump’s comment is unofficial and may be introduced as evidence.) What about statements made by federal officials without Trump’s knowledge, and to which he would likely not have consented had he known in advance—like Attorney General William Barr’s statements to a reporter that the election was not tainted by fraud or Cybersecurity and Infrastructure Security Agency chief Christopher Krebs’s public assurance that the election had been secure, which eventually led Trump to fire Krebs? (In Smith’s view, Barr’s and Krebs’s comments are not shielded by immunity—though Krebs’s firing would be.) What about the particular news items that Trump was watching in the White House dining room on Jan. 6 while rioters stormed the Capitol? (Any private citizen can watch the news, says Smith, and so it’s appropriate to introduce as evidence here.) In one section, Smith uses evidence of Trump’s official conduct in order to show that other conduct was not official, promising that he won’t draw on the first category of evidence at trial. And at each turn, Smith offers up an alternative argument: Even if Trump’s actions are deemed official, the government could rebut the presumption of immunity by showing that use of such evidence would not intrude on executive Branch functions.

For all that, there is one conspicuous omission among Smith’s legal arguments. It relates to what is arguably the most controversial aspect of the Supreme Court’s opinion in Trump—the idea that not only is the president immune from prosecution for official acts in the sense that he cannot be indicted for them, but that prosecutors also can’t point to such acts for some limited evidentiary purpose at trial, even if the indictment alleges only unofficial conduct. As Anna Bower and Benjamin Wittes have examined, a cryptic footnote in the majority’s opinion in Trump could open up a loophole to that evidentiary rule. In the footnote, Chief Justice John Roberts suggests that “the prosecutor may point to the public record to show the fact that the President performed the official act.” While it’s not exactly clear what that means, one interpretation of the footnote is that it would permit official conduct deemed immune to be admitted at trial in the form of “public record” evidence. In Trump’s New York case, for example, prosecutors argued that some of Trump’s Twitter posts would have been admissible at trial under the footnote—even assuming the tweets are official and otherwise immune. 

Here, however, Smith makes no such argument. He entirely avoids any reference to the relevant footnote—even as a backup argument. The reason why is unclear. It could reflect a view on the part of the special counsel that Roberts’s footnote is cabined to the context of a bribery prosecution. 

Still, the footnote could yet play a role later on. Notably, the special counsel repeatedly cites portions of Pence’s book, “So Help Me God,” which describes conversations between Pence and Trump that were deemed official acts by the Supreme Court. If Judge Chutkan or an appellate court determines that the prosecution cannot overcome the presumption of immunity for those communications, that would leave the question of whether passages from Pence’s book—arguably a “public record”—are admissible at trial for some specific evidentiary purpose under footnote 3. 

The Facts

The portion of the brief focused on the factual record is essentially a lengthy compendium of the evidence that prosecutors believe is admissible at trial. In that respect, it’s more limited in some ways than the record provided by the House Jan. 6 committee, which was able to tell its story without worrying about questions of admissibility and could include material that, in court, would be thrown out as hearsay. Yet what Smith provides here is also far more extensive than prosecutors would usually provide in the public record. Typically, the public would encounter evidence like this over the course of a trial, with material found to be inadmissible stripped out. Here, though, Smith sets out everything he has in one place along with his best arguments for why he should be able to use this evidence. Prosecutors don’t typically take such a step, but it’s mandated by the Supreme Court’s immunity ruling, which requires Smith to set out his entire case before heading to trial.

The evidence presented by Smith falls into a few broad categories: evidence that Trump knew his claims of election fraud were false; Trump’s pressure campaign on state officials; falsehoods told by Trump and his allies about the security of the election; Trump’s pressure on Pence; and the events of Jan. 6 itself. It’s hard to say how much is entirely new, though Smith provides new details that augment the story with which the public is now familiar. In some instances, Smith fleshes out anecdotes told in part by the House committee. In others, he includes for the first time in an official filing material that had already become public—at least in part—due to press reports on the special counsel’s investigation. And in others still, he provides fuller information about instances that he himself had hinted at previously, but only in the broadest strokes. 

Throughout the filing, proper names are redacted, with individuals referred to only as P1 (that is, “person 1”), P2, and so on. Still, it is possible to identify some of these characters because of unredacted information describing them or their job titles. The identities of others have been confirmed in press reports.

Trump Knew His Claims Were False

The brief details a number of interactions between Trump, staffers, advisers, and state officials to illustrate the then-president’s awareness of the falsity of his publicly disseminated claims in the postelection period. These exchanges show what was already relatively clear: that against advice and evidence from those around him, Trump pursued allegations of election fraud to support his claim to the presidency. Indeed, one conversation between Trump, his wife, his daughter, and his son-in-law cites Trump as stating, “It doesn’t matter if you won or lost the election. You still have to fight like hell.” To this end, Trump placed Rudolph Giuliani in charge of spearheading his election fraud campaign, replacing “P[erson] 3,” a lawyer for the campaign. (Giuliani is referred to as “CC1,” or co-conspirator 1, in the filing, as he was in the original indictment; after the indictment, his lawyers confirmed his identity to the press.) Internally, campaign advisers were told to report to Giuliani, with “P[erson] 1” (Steve Bannon, according to the New York Times) backing the selection.

The brief outlines numerous conversations between Trump and “P[erson] 9”—identified by the Times as Senior Adviser to the President Eric Herschmann—in which Herschmann told the former president that Giuliani did not have legal grounds to deliver a Trump victory. Hershmann reportedly updated Trump “on a daily basis” about the “campaign’s unsuccessful efforts to support any fraud claims.” Republican National Committee (RNC) officials echoed Herschmann; on Dec. 13, then-RNC chairwoman Ronna McDaniel (referred to only as P39 but clearly identifiable by her job description) refused to disseminate a report alleging voter fraud in Michigan, telling Trump that it was inaccurate. Vice President Pence himself even told Trump, “Don’t concede but recognize the process is over.” 

Trump was also repeatedly told by various state officials that there was no evidence of election fraud. For example, in a conversation between Trump and P46, identified as the chairman of the Pennsylvania Republican Party, Trump inquired about his trailing numbers in the state. According to the brief, “consistent with what Campaign staff had already told the defendant, P46 confirmed it was not fraud.” Despite evidence confirming the legitimacy of vote counts in Pennsylvania, “over the next two months” Trump continued to push the election fraud narrative. In Arizona, P16—clearly, from his title, Gov. Doug Ducey—reportedly told Trump during a phone call that “it was the ninth inning, two outs, and the defendant was several runs down,” highlighting the near-impossibility of a Trump victory in the state. 

Pressure on State Officials

The details of the brief provide new insight into Trump’s efforts to coerce state officials into advancing claims of voter fraud. Trump engaged in numerous conversations with state officials in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, pressuring them to promulgate his narrative and, at times, explicitly requesting that they refuse to certify results. 

In Arizona, as previously mentioned, after Trump was told by Gov. Ducey on Nov. 9 that he did not have the votes to win the state, he responded that he would present him with evidence to the contrary. He never did. When Ducey formally certified the election results—after numerous phone conversations initiated by Trump—the president publicly attacked him. 

The brief also details Trump’s attempt “to use false fraud claims to convince political allies in the Arizona state legislature to convince political allies in the Arizona state legislature to ignore the popular vote and appoint illegitimate electors.” In a Nov. 22 phone call with the speaker of the Arizona House of Representatives, Rusty Bowers (P18), Giuliani used false fraud claims to ask that Bowers “call the state legislature into session to replace Arizona’s legitimate electors with illegitimate ones for the defendant.” At an unofficial meeting with Arizona Republican legislators, Giuliani made similar claims. When Bowers rejected these allegations, he was subject to private and public pressure by Trump and co-conspirators, leading to harassment and threats.

In Georgia, Trump disseminated claims of dead people voting, despite a campaign adviser (P4) telling him there was no evidence to support this. On Dec. 3, Giuliani arranged a presentation in front of the Judiciary Subcommittee of the Georgia State Senate to advance the dead voter narrative. It was during this hearing that “an agent of the defendant” (P24) proposed that election workers at State Farm Arena had engaged in misconduct (a claim that was repeatedly disproved in the weeks to follow), and an individual identified as co-conspirator 2—whose description closely matches John Eastman—“encouraged the Georgia legislators to decertify the state’s legitimate electors.”

The brief provides the most comprehensive account yet of the Dec. 8 call between Georgia Attorney General Chris Carr (P26) and Trump—suggesting that Smith may have access to a recording of the conversation. In it, Trump raised the lawsuit brought by Texas against Georgia and other states, Texas v. Pennsylvania, which sought to prevent the certification of election results, reportedly telling Carr, “I hope you’re not talking to your AG’s and encouraging them not to get on the lawsuit.” When Carr told him there was no evidence of fraud—including at the State Farm Arena—the president asked him to look at the results again “because we’re running out of time.” 

Trump and his co-conspirators continued to press the State Farm Arena claim, and he turned to Twitter to attack the Georgia governor “with particular aggression.” Trump brought his claims to the court in Trump v. Kemp, despite his awareness that “some of the allegations had been inaccurate.” When Georgia Secretary of State Brad Raffensperger (P33)—named a defendant in the case—told Trump during a phone call that there was no evidence to support the State Farm allegations or any election fraud claims in the state, the president responded by publicly criticizing him on Twitter.

In Michigan—as well as other states—Smith says that Trump’s “private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes.” The brief highlights one specific example at the TCF Center in Detroit: When the vote count seemed to favor Biden, raising concerns of potential unrest analogous to the Brooks Brothers Riot in response, “a Campaign employee, agent, and co-conspirator of the defendant” (identified as P5) stated “Make them riot” and “Do it!!!”

The brief also delves into the Nov. 20 Oval Office meeting between Michigan Senate Majority Leader Mike Shirkey (P37), Michigan Speaker of the House Lee Chatfield (P38), Giuliani, McDaniel (who was dialed in “despite her request not to participate”), and Trump—with White House Chief of Staff Mark Meadows (P21) intermittently present. During the meeting, Trump raised fraud claims in Wayne County, which Shirkey disputed. In response, Giuliani reportedly “launched into a fraud monologue”; when asked by Shirkey when he would be filing a lawsuit in Michigan, Giuliani declined to respond.

On Dec. 4, Giuliani explicitly asked Chatfield to overturn the Michigan election results: “Looks like Georgia may well hold some factual hearings and change the certification under ArtII sec 1 cl 2 of the Constitution. As [CC2] explained they don’t just have the right to do it but the obligation …. Help me get this done in Michigan.” He similarly attempted to pressure Shirkey, sending a text message—albeit to the wrong phone number—asking for a joint resolution from the Michigan legislature that disputed the election results, followed by an email with the same request. When, despite Trump and Giuliani’s appeals, the electors’ votes were cast on Dec. 14 and Shirkey and Chatfield confirmed Trump’s loss, Trump tweeted Shirkey’s phone number and attempted to post Chatfield’s as well.

While the brief doesn’t include new details about Trump’s efforts in Nevada, it summarizes the events following his lawsuit, Law v. Whitmer. The brief points to the RNC chief counsel’s emails—forwarded to Trump staffers—that there was no evidence to substantiate voter fraud claims in Nevada. Trump publicly disseminated the claims regardless, pursuing the lawsuit until it was discounted by the courts.

In addition to the previously mentioned phone call between the Pennsylvania Republican Party chair and Trump—in which the president questioned the chair about voter fraud claims—the brief presents new details behind the dismissal of RNC chief counsel (P43). When the chief counsel privately and publicly denied claims of election fraud in Pennsylvania, made by Trump in “an unofficial hearing in a Gettysburg hotel conference room,” Giuliani left him a “threatening voicemail” stating, “I really do need an explanation for what you said today because if there isn’t a good one, you should resign.” 

When, on Dec. 3, Republican leaders of the Pennsylvania legislature confirmed they lacked the authority to overturn the popular vote, Trump attacked them on Twitter, accusing them of aiding Democrats.

While Smith doesn’t present any new information on Trump’s interactions with Wisconsin officials, the brief does document his tweets in response to Wisconsin’s governor confirming Biden’s electors as the valid electors of the state—thereby rejecting the president’s lawsuit attempting to overturn the election results. 

Falsehoods About Voting Machines

The brief also details various false claims made by Trump and his co-conspirators about the “security and accuracy of voting machines across multiple states, despite the fact that they were on notice that the claims were false.” Giuliani, Sidney Powell, and Joseph DiGenova led the legal team dedicated to these efforts. (Powell is named only as co-conspirator 3, while DeGenova appears as P10; the two are identifiable by cross-referencing a redacted tweet of Trump’s included in the filing with the unredacted version, in which he named both individuals.) Shortly after the election, on Nov. 16, a Trump aide (P42)—on Trump’s behalf—sent Powell an email containing “bullet points critical of … a company that manufactured voting machines used in certain states.” To which Powell responded that the list “MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE[.]” 

Soon after, Powell, Guiliani, and DiGenova began making public false claims about the voting machine company—identified in the filing as C3, but seemingly, from context, Dominion Voting Systems—and “the integrity of the country’s election infrastructure.” Smith explains that a Fox News host (identified as P51, but from context clearly Tucker Carlson)—after watching Powell at a press conference—stated on air that he had invited her on his television program on Fox News, but that she had provided “not a page of evidence” to support her claims about Dominion, and that when he “kept pressing, she got angry and told us to stop contacting her.” Trump, according to the brief, saw Carlson’s segment and told an aide (P4) that Powell looked “unhinged” in the press conference and told others that Carlson had “eviscerated” and “destroyed” Powell. According to Smith, Trump—during this period—acknowledged that he had “not seen anything to substantiate Powell’s allegations.”

The brief goes on to detail various instances in which Trump and others continued to “support and publicize” Powell’s knowingly false claims through tweets, radio programs, lawsuits, and more. Smith also describes Trump’s interactions with state officials to question the legitimacy of their election results because of their use of Dominion voting machines. For example, on Jan. 2, 2021, during a call between Trump and Georgia Secretary of State Brad Raffensperger, Raffensperger told Trump that he didn’t believe that Trump was questioning Dominion’s machines, because Georgia had completed a hand re-tally of all ballots, and then a recount, and “got virtually the same result” that was produced by the Dominion voting machines. Trump, in response, insisted there were issues with Dominion’s machines, claiming that “in other states, we think we found tremendous corruption with the [Dominion] machines, but we’ll have to see.”

Smith also points out that during their speeches at the Ellipse on Jan. 6, Trump, Giuliani, and Eastman repeated these “unsubstantiated and false claims” about the Dominion machines. 

The Pressure Campaign Against Pence

As previously detailed in the Jan. 6 committee’s report and Smith’s initial and superseding indictments, Trump—in cooperation with various allies—engaged in a private and public pressure campaign to convince Pence to overturn the results of the 2020 election. Since Trump and his co-conspirators’ attempts to target various state officials failed, they turned to Pence—in his capacity as the president of the Senate—to, as Smith describes, “fraudulently alter the election results” by obstructing the Jan. 6 election certification proceeding in Congress. More specifically, Eastman and co-conspirator 5, identified by the press as Kenneth Chesebro, contributed to a plan—also known as the “President of the Senate Strategy”—for Pence to “gavel” Trump in as the winner of the election based on “ongoing disputes” in various states that “transmitted dual slates of electors” to Congress. 

Interestingly, Smith notes that Chesebro spoke directly with Trump at least once at a photo-op in Michigan. While Eastman and Chesebro allegedly contributed to different components of the scheme—Eastman focusing on the pressuring of Pence, and Chesebro focusing on engineering the “fake” electors on the state level—Smith provides some information suggesting that the two were in contact, noting that a sixth co-conspirator warned Chesebro not to “text things about electors to anyone but [Eastman] and me.” (The identity of co-conspirator 6 has been somewhat of a mystery since Smith first unveiled his indictment, but this filing provides new information about the individual that is consistent with a media appearance by Trump campaign advisor Boris Epshteyn.) Chesebro also appears to have been immediately aware of the significance of Jan. 6 when Trump first tweeted about the date on Dec. 19, encouraging his followers to attend a “big protest” on that date: “Be there, will be wild!” “Wow,” Chesebro texted other individuals involved in the fake electors effort, according to the brief. “Based on 3 days ago, I think we have a unique understanding of this.”

Smith’s brief also describes Eastman’s initial concessions about the legitimacy of the President of the Senate Strategy. In fact, approximately a month before the 2020 presidential election, Eastman—according to Smith—wrote to a colleague that it is not within the vice president’s constitutional authority, nor is it permitted under the Electoral Count Act, for the vice president to “make the determination [about whether to certify slates of electors] on his own.” Smith also describes communications between Eastman and private attorneys, in which Eastman said of a draft complaint raising the issue of Pence’s authority on Jan. 6, “the risk of getting a court ruling that Pence has no authority to reject the Biden-certified ballots [is] very high.” 

Still, on Dec. 25, Eastman, Chesebro, Giuliani, Bannon, and Trump moved forward with a plan to “manipulate” Pence and began their public and private pressure campaign. Just a few days later, for example, after Pence filed a brief opposing relief sought in a separate lawsuit that asserted the vice president had the discretion to choose electoral votes during the certification process, Trump called Pence to “berate him.” According to Smith, Trump told Pence that “hundreds of thousands” of people “are gonna hate your guts” and warned that “people are gonna think you’re stupid.” After the call, Trump sent out a tweet reminding his supporters to show up to the Jan. 6 Stop the Steal rally.

On Jan. 3, Eastman circulated a second memo detailing a new plan for Pence to obstruct the certification process. According to Smith, the new plan, “in violation of the Electoral Count Act,” directed the vice president to “send the elector slates to state legislatures to determine which slate to count.” The next day, Trump, Pence, Eastman, and Pence staffers Marc Short and Greg Jacob met at the White House for a meeting, during which Eastman explained the new plan and Trump “repeated his knowingly false claims as a purported basis for Pence to act illegally.” Smith’s brief then details five pages of Pence’s notes from the meeting, which credit Trump with telling the vice president, “when there’s fraud the rules get changed”; “this whole thing is up to [Mike Pence]”; and “you can be bold.” Still, Pence rejected Trump’s ploys. After the meeting, while Trump continued to pressure Pence publicly online and at rallies, Trump’s allies devised a plan to normalize the President of the Senate Strategy by discussing it on Bannon’s podcast. 

On Jan. 5, according to the brief, Trump tweeted that it was the vice president who has “the power to reject fraudulently chosen electors” and designate him as the winner of the electoral college vote.” In a private meeting with Pence and his staffers, Trump threatened to criticize Pence publicly if he did not follow through with the plan. (“Fuck his lawyer,” Bannon allegedly commented when he learned that Pence and his chief counsel refused to yield.) Later that night, Trump called Pence and told him, “you gotta be tough tomorrow,” and then issued a public statement, claiming that “the Vice President and I are in total agreement that the Vice President has the power to act.” This was a lie.

The Events of Jan. 6

According to the brief, Trump’s pressure campaign against Pence continued into the early morning of Jan. 6, when he tweeted that it was up to the vice president to “come[] through for us” to win the presidency. “Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!” he wrote. Later that morning, Trump supporters began gathering near the White House for the Stop the Steal rally and protest. Trump tweeted directly at Pence again: “Do it, Mike, this is a time for extreme courage!” Then, shortly before speaking to his supporters at the Stop the Steal rally at the Ellipse, Trump called Pence once more, to make “one last attempt to induce him to act unlawfully in the upcoming session.” Pence, again, refused to do so, which left Trump “incensed” and inspired him to target Pence publicly once again during his speech at the Ellipse. 

Smith notes Pence’s final refusal to do act unlawfully as a turning point in Trump’s attempt to hold on to the presidency:

And the defendant set into motion the last plan in furtherance of his conspiracies: if Pence would not do as he asked, the defendant needed to find another way to prevent the certification of Biden as president. So on January 6, the defendant sent to the Capitol a crowd of angry supporters, whom the defendant had called to the city and inundated with false claims of outcome-determinative election fraud, to induce Pence not to certify the legitimate electoral votes and to obstruct the certification.

According to the brief, Trump—upon taking the stage at the Stop the Steal rally with the knowledge that Pence would not act unlawfully in his favor—”knew that he had only one last hope to prevent Biden’s certification as President: the large and angry crowd standing in front of him.” For more than an hour, Smith notes, Trump delivered an inflammatory speech, peddling the same lies about election fraud he had now been spreading for months, to motivate his supporters to march to the Capitol. Trump also gave his supporters false hope that Pence could “still do the right thing” and obstruct the certification process. 

Here, Smith focuses on Trump’s use of instigative language to “fuel the crowd’s anger”: telling his supporters that “history was going to be made” and calling on them to “walk down to the Capitol” to “take back our country.” In fact, at times, Smith uses language that sounds very much like a de facto allegation that Trump incited a riot or insurrection. For instance, earlier in the motion, Smith wrote, “With these lies, the defendant created the tinderbox that he purposefully ignited on Jan. 6.” Such lines re-raise the unanswered question some critics have raised: Why did Smith not formally charge the defendant with either offense, under 18 U.S.C. Section 2101 or Section 2383?

Smith then details Trump’s supporters’ attack on the Capitol building, which is well documented in the Jan. 6 committee’s final report, other reporting, and on Lawfare. Meanwhile, according to Smith, Trump sat in the dining room near the Oval Office, watching coverage of the angry mob on Fox News and Twitter. Shortly after 2:00 p.m., rioters broke into the building, and the Senate was forced into recess. Fox News began covering the events at the Capitol building, including footage of the crowd donned in Trump merchandise, claiming that they had come to Washington because Trump had told them that they “had something big to look forward to” regarding the certification of the election. While watching the news, Trump—alone in his dining room—sent out another tweet about Pence, criticizing him for his lack of courage. A minute after Trump issued that tweet—while rioters were chanting threats such as “Hang Mike Pence”—the Secret Service evacuated the vice president to a secure location. When Trump was informed of this, Smith writes, he took no action but simply said: “So what?”

Smith goes on to detail the sheer damage caused by Trump’s supporters at the Capitol building. In the Senate, rioters stood on the dais where Pence “had been presiding just minutes earlier” and rifled through papers on desks. In the House, rioters smashed glass windows. On the building’s Lower West Terrace, rioters—wearing tactical gear and Trump paraphernalia—used flag poles, bear spray, and other improvised weapons to attack law enforcement officers. 

While the assault on the Capitol ensued, according to Smith, Giuliani, at Trump’s direction, “attempted to exploit the violence and chaos” by calling five U.S. senators and one representative in an attempt to convince them to further delay the certification process. They were unsuccessful.

After six hours, at 11:35 p.m., rioters were cleared from the building, and the House and Senate resumed the certification process. But Smith says, the conspirators “were not done.” At 11:44 p.m., Eastman emailed Pence’s chief counsel once to inform him that “[t]he ‘siege’ is because YOU and your boss did not do what was necessary” and then again asked Pence to violate the law. Congress, with Pence presiding, certified the results of the 2020 presidential election for Biden on Jan. 7 at 3:41 a.m.

The special counsel points out that in the years since the Jan. 6 attack on the Capitol, Trump has “reiterated his support for and allegiance to” the rioters, citing Trump’s references to members of the mob as “patriots” and “hostages” and his recollection of Jan. 6 as “a beautiful day.” Trump has also said that if he were reelected, he would pardon those convicted of crimes in connection with the Jan. 6 attack. Interestingly, Smith also notes Trump’s praise of the January 6 Choir—a group of charged and in many cases convicted rioters—and their song “Justice for All,” their rendition of the U.S. national anthem.

What Now?

This brief is only the opening salvo. Next, Trump will file a combined response and motion to dismiss. Originally, due Oct. 17, Judge Chutkan has now granted Trump an extension until Nov. 7, two days after Election Day. Smith will file a reply on Nov. 21, and Trump will be permitted a sur-reply, due on Dec. 5.

Once Chutkan rules, the Supreme Court’s immunity ruling entitles the parties to an interlocutory appeal, with potential further review in the Supreme Court. Suffice it to say that we are a long way from trial, assuming a trial ever takes place. And if Trump wins in November, it is widely anticipated that he would use the powers of the office to attempt to make the case go away.

Still, Smith is doing his best to move things along. He requests that Judge Chutkan issue a single ruling resolving all immunity issues. He specifically asks that wherever she finds conduct to be unofficial, she also find, as an alternative ruling, that even if the conduct were official, the government has shown that its presumptive immunity has been rebutted. In this manner, Smith at least hopes to avoid multiple rounds of interlocutory review before he can proceed to trial. 

Trump, for his part, has already made it clear what he thinks of Smith’s arguments. Shortly after Judge Chutkan unsealed Smith’s filing, the defendant posted his personal response on Truth Social: “ELECTION INTERFERENCE!”