The newly unsealed court filling argues that the former president is not entitled to immunity from prosecution.
Donald Trump laid the groundwork to try to overturn the 2020 election even before he lost, knowingly pushed false claims of voter fraud and “resorted to crimes” in his failed bid to cling to power, according to a newly unsealed court filing from prosecutors that offers new evidence from the landmark criminal case against the former president.
The filing from special counsel Jack Smith's team offers the most comprehensive view to date of what prosecutors intend to prove if the case charging Trump with conspiring to overturn the election reaches trial. Though a months-long congressional investigation and the indictment itself have chronicled in stark detail Trump's efforts to undo the election, the filing cites previously unknown accounts offered by Trump's closest aides to paint a portrait of an “increasingly desperate” president who while losing his grip on the White House “used deceit to target every stage of the electoral process.”
“So what?” the filing quotes Trump as telling an aide after being advised that his vice president, Mike Pence, had been rushed to a secure location after a crowd of violent Trump supporters stormed the U.S. Capitol on Jan. 6, 2021 to try to prevent the counting of electoral votes.
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“The details don't matter,” Trump said, when told by an adviser that a lawyer who was mounting his legal challenges wouldn’t be able to prove the false allegations in court, the filing states.
The brief was made public over the Trump legal team’s objections in the final month of a closely contested presidential race in which Democrats have sought to make Trump’s refusal to accept the election results four years ago central to their claims that he is unfit for office.
The brief was made public over the Trump legal team’s objections in the final month of a closely contested presidential race in which Democrats have sought to make Trump’s refusal to accept the election results four years ago central to their claims that he is unfit for office. The issue flared as recently as Tuesday night’s vice presidential debate when Minnesota Gov. Tim Walz, a Democrat, lamented the violence at the Capitol while a Republican opponent, Ohio Sen. JD Vance, refused to directly answer when asked whether Trump had lost the 2020 race.
The filing was submitted, initially under seal, following a Supreme Court opinion that conferred broad immunity on former presidents for official acts they take in office, a decision that narrowed the scope of the prosecution and eliminated the possibility of a trial before next month's election.
The purpose of the brief is to persuade U.S. District Judge Tanya Chutkan that the offenses charged in the indictment were undertaken in Trump's private, rather than presidential capacity, and can therefore remain part of the case as it moves forward. Chutkan permitted a redacted version to be made public even though Trump's lawyers argued that it was unfair to unseal it so close to the election.
Though the prospects of a trial are uncertain, particularly in the event that Trump wins the presidency and a new attorney general seeks the dismissal of the case, the brief nonetheless functions as a roadmap for the testimony and evidence prosecutors would elicit before a jury.
“Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one,” Smith’s team wrote, adding, “When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office."
Trump campaign spokesman Steven Cheung called the brief “falsehood-ridden” and “unconstitutional” and repeated oft-stated allegations that Smith and Democrats were “hell-bent on weaponizing the Justice Department in an attempt to cling to power." Trump, in a separate post on his Truth Social platform, said the case would end with his “complete victory.”
The filing alleges that Trump “laid the groundwork” for rejecting the election results before the contest was over, telling advisers that in the event he held an early lead he would “declare victory before the ballots were counted and any winner was projected.”
Immediately after the election, prosecutors say, his advisers sought to sow chaos in the counting of votes. In one instance, a campaign employee, who is also described as a Trump co-conspirator, was told that results favoring Democrat Joe Biden at a Michigan polling center appeared accurate. The person is alleged to have replied: “find a reason it isnt” and “give me options to file litigation.”
Prosecutors also alleged that Trump advanced claims of fraud despite knowing they were false, describing how he told others that allegations of election irregularities made by attorney Sidney Powell were “crazy” and referenced the science fiction series “Star Trek.” Even so, days later, he promoted on the platform then known as Twitter a lawsuit she was about to file.
In demonstrating his apparent indifference to the accuracy of the election fraud claims, prosecutors also cite an account of a White House staffer who after the election overheard Trump telling his wife, daughter and son-in-law on Marine One: “It doesn’t matter if you won or lost the election. You still have to fight like hell.”
The filing also includes details of conversations between Trump and Pence, including a private lunch the two had on Nov. 12, 2020, in which Pence “reiterated a face-saving option” for Trump, telling him, “Don’t concede but recognize the process is over."
In another private lunch days later, Pence urged Trump to accept the results of the election and run again in 2024.
“I don’t know, 2024 is so far off,” Trump told him, the filing states.
Prosecutors say that by Dec. 5, the defendant was starting to think about Congress’ role in the process.
“For the first time, he mentioned to Pence the possibility of challenging the election results in the House of Representatives,” it says, citing a phone call.
But Trump “disregarded” Pence “in the same way he disregarded dozens of court decisions that unanimously rejected his and his allies’ legal claims, and that he disregarded officials in the targeted states — including those in his own party — who stated publicly that he had lost and that his specific fraud allegations were false,” prosecutors wrote.
Pence chronicled some of his interactions with Trump, and his eventual split with him, in a 2022 book he wrote called “So Help Me God.” He also was ordered to appear before the grand jury investigating Trump after courts rejected claims of executive privilege.
Prosecutors also argue Trump used his Twitter account to further his illegal scheme by spreading false claims of election fraud, attacking “those speaking the truth” about his election loss and exhorting his supporters to travel to Washington for the Jan. 6, 2021, certification.
They intend to use “forensic evidence” from Trump’s iPhone to provide insight into Trump’s actions after the attack at the Capitol.
Of the more than 1,200 Tweets Trump sent during the weeks detailed in the indictment, prosecutors say, the vast majority were about the 2020 election, including those falsely claiming Pence could reject electors even though the vice president had told Trump that he had no such power.
That “steady stream of disinformation” in the weeks after the election culminated in his speech at the Ellipse on the morning of Jan. 6, 2021, in which Trump “used these lies to inflame and motivate the large and angry crowd of his supporters to march to the Capitol and disrupt the certification proceeding,” prosecutors wrote.
His “personal desperation was at its zenith” that morning as he was “only hours from the certification proceeding that spelled the end,” prosecutors wrote.
