Judge releases prosecutors' evidence against Donald Trump in Jan. 6 case

[Thiệu Ngô]

A judge released a motion detailing prosecutors' new evidence in the January 6 case against Donald Trump.
The motion by special counsel Jack Smith follows a revised indictment against the former president.
Smith argues in the motion that Trump is not immune from criminal charges.

By Natalie Musumeci, Laura Italiano, Haven Orecchio-Egresitz, and Brent D. Griffiths

The federal judge overseeing the election interference case against Donald Trump has released prosecutors' 165-page motion detailing a trove of evidence against the former president.

United States District Court Judge Tanya Chutkan released the motion by special counsel Jack Smith after Smith and his team hit Trump with a revised indictment in August that kept the same four counts against him.

The revamped indictment was a response to the US Supreme Court's recent landmark opinion, which provides presidents with broad protection from being prosecuted for official acts.

Here are the major takeaways, evidence, and arguments from prosecutors' filing:

The Pence pressure campaign

The court documents include a breakdown of Trump's alleged pressure campaign against his vice president, Mike Pence.

Pence was a "key part of their plan to obstruct the certification proceeding," the filing alleges.

It repeatedly quotes Pence's memoir "So Help Me God" and internal memos in which Trump's co-conspirators "outlined a plan for Pence to 'gavel' in the defendant as the winner of the election."

Under the failed plan, Pence would assert the false claim that "7 states have transmitted dual slates of electors," the filing says, quoting from one memo.

Prosecutors allege the plan was to then have Pence use the invented dispute as an excuse to essentially unilaterally anoint Trump as the winner.

Trump and his co-conspirators knew Pence had no authority to do so, prosecutors wrote. And at least two co-conspirators knew they needed to hide their plotting, they alleged.

According to the filing, when one asked in a text message, "Is Pence really likely to be on board with this?" another responded, "Let's keep this off text for now."

Pence continued to push back against the plan throughout the end of December 2020, even as "the defendant began to directly and repeatedly pressure Pence at the same time that he continued summoning his supporters to amass in Washington, DC, on the day of the congressional certification," the filing reads.

"You know I don't think I have the authority to change the outcome," Pence told Trump, a quotation the prosecutors lift from and credit to Pence's memoir.

On December 28, Trump told Pence "hundreds of thousands" of people "are gone hate your guts," the filing says, again quoting from the memoir.

"You're too honest," Trump complained, according to Pence.

"I'm gonna have to say you did a great disservice," the filing — again quoting from the memoir — says as evidence that Trump threatened his vice president in a phone call on January 5, a day before certification.

"You gotta be tough tomorrow," Trump also allegedly warned, in another call that night.

Thirty minutes later, at 10 p.m., Trump issued a false public statement reading: "The Vice President and I are in total agreement that the Vice President has the power to act."

Trump knew from Pence's repeated refusals that this was a lie, but said it to exert further pressure, prosecutors allege. At 1 a.m. on January 6, Trump exerted still more pressure, falsely tweeting "If Vice President @mike_Pence comes through for us, we will win the Presidency."

After his final attempt to pressure Pence directly failed later that morning, Trump "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," the filing alleges.

Smith argues Trump's communications with Pence weren't official

Prosecutors detail in their motion why they believe the then-vice president's discussions with Trump should not be classified as official presidential conduct.

"The only conduct alleged in the original indictment that the Supreme Court held was official, and subject to at least a rebuttable presumption of immunity, was the defendant's attempts to lie to and pressure Vice President Pence to misuse his role as President of the Senate at the congressional certification," Smith wrote.

"The Supreme Court stated that "[w]henever the President and Vice President discuss their official responsibilities, they engage in official conduct."

Smith's team disagrees. The executive branch, they wrote, has no official role in the election certification process.

"Because the Executive Branch has no role in the certification proceeding—and indeed, the President was purposely excluded from it by design—prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the executive branch's authority of functioning," they continued.

There's evidence that Trump personally sent the 'Mike Pence didn't have courage' tweet

Smith said that his team is prepared to call a key Trump official at trial who would testify that only Trump could have sent out his mid-Capitol riot tweet that "Mike Pence didn't have the courage" to overturn the election.

"The Government will elicit from [redacted] 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 [redacted] did not send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021," the filing states.

It's unclear who the exact staffer in question, as his name was redacted.

Smith's larger point is that, by proving Trump himself sent out the tweets, it becomes clear that some of the then-president's actions were outside the scope of his official duties.

Smith says evidence shows Trump knew claims of election fraud were false

Smith says that Trump continued to lie about election fraud, even after Pence and a White House staffer and campaign conduit told him they were.

"Evidence demonstrates that the defendant knew his fraud claims were false because he continued to make those claims even after his close advisors —acting not in an official capacity but in a private or Campaign-related capacity—told him they were not true," prosecutors wrote.

Trump appeared to mock his infamous 'Release the Kraken' lawyer behind her back

Trump lawyer Sidney Powell helped lead the efforts to overturn the 2020 election, repeatedly promising a trove of evidence akin to the mythical sea monster the Kraken. Her claims never stood up. In the aftermath of January 6, Powell and other Trump attorneys have faced formal sanctions for their actions.

According to Smith's latest filing, Trump was also apparently privately mocking Powell — though the names in the filing are redacted.

"While [redacted] responded, the defendant placed the call on mute to [redacted] and [redacted] mocked and laughed at [redacted] called her claims 'crazy' and made reference to the science fiction series Star Trek when describing her allegations," the filing reads.

Based on the details given about the redacted name, it appears the person Trump mocked was Powell.

Smith: Trump's plan to overturn the election wasn't an official duty

Smith's team responded to the Supreme Court's immunity ruling in the filing.

"Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one," Smith alleges at the top of the lengthy court filing.

While working with a group of "private co-conspirators," Smith alleges that Trump "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."

Trump has argued that anything he did around the election was part of his official duties as president and so he's immune from prosecution.