New Motion Presents Most Detailed Case Yet Against Trump for Insurrection Crimes
Brett Wilkins for Common Dreams
Smith's sprawling and highly anticipated 165-page motion—which was partly unsealed
Wednesday by presiding U.S. District Judge Tanya Chutkan—states that Trump
"asserts that he is immune from prosecution for his criminal scheme to
overturn the 2020 presidential election because, he claims, it entailed official
conduct. Not so."
Trump—who in August 2023 was charged with
conspiracy to defraud the United States, conspiracy to obstruct an official
proceeding, obstruction of and attempt to obstruct an official proceeding, and
conspiracy against rights—contends that his actions were taken in his official
capacity as president and not as a private individual.
In July, the U.S. Supreme Court's right-wing
justices—including three Trump appointees—ruled that the
ex-president is entitled to "absolute immunity" for "official
acts" taken while he was in office, raising questions about the future of
this case. According to Smith's motion:
Although the defendant was the incumbent president during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted—a function in which the defendant, as president, had no official role.
In Trump v. United States... the Supreme Court held that presidents are immune from prosecution for certain official conduct—including the defendant's use of the Justice Department in furtherance of his scheme, as was alleged in the original indictment—and remanded to this court to determine whether the remaining allegations against the defendant are immunized.
The answer to that question is no. This motion provides a comprehensive account of the defendant's private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none of the defendant's charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted; and requests the relief the government seeks, which is, at bottom, this: that the court determine that the defendant must stand trial for his private crimes as would any other citizen.
Smith's filing details what Trump told various people in his
inner circle, including then-Vice President Mike Pence, his now-disgraced
and twice-disbarred lawyer
Rudy Giuliani, and leading White House and Republican Party figures—some of
whose names remain undisclosed.
The motion also highlights Trump's actions on January 6,
2021, when his supporters stormed the U.S. Capitol in an attempt to stop
Congress from certifying President Joe Biden's Electoral College victory. Trump
is still pushing his "Big Lie" that Democrats stole the 2020
election; his running mate, U.S. Sen. J D Vance (R-Ohio), on Tuesday refused to acknowledge that
Trump lost to Biden when he was asked about the election during a vice
presidential debate against Democratic Minnesota Gov. Tim
Walz.
"Upon receiving a phone call alerting him that Pence
had been taken to a secure location, [PERSON 15] rushed to the dining room to
inform [Trump] in hopes that the defendant would take action to ensure Pence's
safety," the filing states. "Instead, after [P15] delivered the news,
the defendant looked at him and said only, 'So what?'"
Smith argued that deceit was central to Trump's efforts,
specifically, "the defendant's and co-conspirators' knowingly false claims
of election fraud," which they used to purvey the Big Lie.
The motion states:
When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office. With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the "targeted states"). His efforts included lying to state officials in order to induce them to ignore true vote counts; manufacturing fraudulent electoral votes in the targeted states; attempting to enlist Pence, in his role as president of the Senate, to obstruct Congress' certification of the election by using the defendant's fraudulent electoral votes; and when all else had failed, on January 6, 2021, directing an angry crowd of supporters to the United States Capitol to obstruct the congressional certification.
For a historic second time, Trump was impeached by the House of Representatives following his effort to subvert the election, although he was subsequently acquitted by the Senate.
Trump spokesperson Steven Cheung blasted Smith's
motion as "unconstitutional" and "falsehood-ridden."
"Deranged Jack Smith and Washington D.C. Radical
Democrats are hell-bent on weaponizing the Justice Department in an attempt to
cling to power," Cheung said in a statement aping Trump's habit of
overcapitalizing words. "President Trump is dominating, and the Radical
Democrats throughout the Deep State are freaking out. This entire case is a
partisan, Unconstitutional Witch Hunt that should be dismissed entirely,
together with ALL of the remaining Democrat hoaxes."
Democracy defenders, however, welcomed Smith's ruling.
"Jack Smith has shown us yet again the merits of his
case against former President Trump," said Lisa
Gilbert, co-president of the consumer advocacy group Public
Citizen and co-chair of the Not Above the Law Coalition.
"In his filing, Smith clarifies that the alleged
criminal actions occurred while Trump was acting as a private citizen,"
Gilbert added. "The desperate plan that Trump embarked on to try and
overturn the results of a legitimate election was reprehensible, irresponsible,
and—the document shows—criminal. Accountability to the American people and our
democracy is our only path forward."
Judge Chutkan unsealed the motion five weeks before Trump
will face off against Democratic Vice President Kamala
Harris in a tight presidential election. If he wins, Trump will
have the power to order the Department of Justice to drop the criminal charges
against him.
