With just a month until Election Day, an unsealed filing in the Jan. 6 case against former President Donald Trump has presented new details about his efforts to overturn the 2020 vote – and has drawn Republican accusations of election interference.
After the U.S. Supreme Court ruled in July that a number of the charges in the case may be subject to presidential immunity, special counsel Jack Smith recast his approach in a 165-page brief.
Why We Wrote This
Almost any controversial action – or inaction – by government officials in the final weeks of an election campaign can appear politically motivated. We look at the latest filing in the Jan. 6 case against Donald Trump, and what it means.
The filing, unsealed Wednesday, laid out new details supporting the charges against Mr. Trump and argued that he carried out offenses as a candidate, without any immunity related to his official capacity as president. The case is still far from going to trial, but Mr. Smith’s efforts to hurry the proceedings along are raising questions.
Mr. Trump’s lawyer has said Mr. Smith “may be the Jim Comey of 2024,” referring to the former FBI director and his 11th-hour revival of an investigation against Hillary Clinton in 2016, which some Democrats blamed for her loss.
Still, both men would have likely also faced criticism if they had not revealed such details until after the election. Federal Judge Tanya Chutkan has rejected arguments that the election is influencing proceedings in the case.
With just a month until Election Day, an unsealed filing in the Jan. 6 case against former President Donald Trump has presented new details about his efforts to overturn the 2020 vote – and has drawn Republican accusations of election interference.
After the U.S. Supreme Court ruled in July that a number of the charges in the case may be subject to presidential immunity, special counsel Jack Smith recast his approach in a 165-page brief.
The filing, which was unsealed at his request Wednesday by federal Judge Tanya Chutkan in Washington, laid out new details supporting the charges against Mr. Trump and argued that he carried out offenses as a candidate, without any immunity related to his official capacity as president.
Why We Wrote This
Almost any controversial action – or inaction – by government officials in the final weeks of an election campaign can appear politically motivated. We look at the latest filing in the Jan. 6 case against Donald Trump, and what it means.
The case is still far from going to trial, if it goes to trial at all, but Mr. Smith’s efforts to keep the proceedings moving along are raising questions.
What new evidence does this brief provide?
The main storyline of Mr. Trump’s actions leading up to the Jan. 6, 2021, attack on the U.S. Capitol remains the same. Prosecutors allege that he fraudulently claimed the election had been stolen, and continued to make those claims even as top aides repeatedly informed him that they were unfounded.
At a rally on Jan. 6, they say, Mr. Trump deliberately riled up his supporters to storm the U.S. Capitol while Congress was tallying the Electoral College votes, in a last-ditch effort to cling to power.
Mr. Trump says he was not looking to overthrow the election but to investigate contested claims in a highly unusual election year, during which many states rapidly scaled up the use of mail-in voting amid the pandemic. In more than 60 cases after the election, judges ruled against the president. And his attorney general said there was no evidence of significant fraud that would have affected the outcome. For his part, Mr. Trump contends that the legal cases against him have been politically motivated.
Among the new details in the brief:
- A few days before the 2020 election, a Trump adviser told supporters that although the president had been informed that an election night lead could slip away once all the mail-in votes were counted, Mr. Trump still planned to claim he had won. “He’s going to declare victory. That doesn’t mean he’s the winner; he’s just going to say he’s the winner,” the adviser said, according to the filing.
- Even as the Trump campaign was publicly making unverified claims of ineligible votes, privately it was a different story. For example, while an individual who has been identified by The New York Times as now-disbarred Trump lawyer Rudy Giuliani was telling the Georgia state legislature that 10,000 “dead voters” had cast ballots, another official – which the Times named as White House Chief of Staff Mark Meadows – was texting with another Trump lawyer confirming that that number “was false and the actual number was around 12.” The names are redacted in the filing.
- After the election, as Mr. Trump was engaged in a legal battle to challenge the results, a White House staffer traveling with the president overheard him tell family members, “It doesn’t matter if you won or lost the election. You still have to fight like hell.”
- On Jan. 6, Vice President Mike Pence – who had refused to bend to pressure from President Trump to contest the Electoral College results, saying it was unconstitutional – was presiding over a Senate debate about the Arizona results when rioters broke into the Capitol. His security detail whisked him into hiding. When an aide told Mr. Trump that his vice president was in peril, he responded, “So what?”
Why did this come out now?
Mr. Smith’s prosecution of Mr. Trump is still far from reaching a trial date – if it reaches one at all. As in the other criminal cases against him, the former president’s lawyers have sought to slow proceedings as much as possible. Mr. Smith has been arguing to move more quickly.
The most substantial delay in the case involved Mr. Trump’s appeal to the Supreme Court that the case should be dismissed due to presidential immunity. The court ruled in July that former presidents are entitled to immunity from criminal prosecution for official acts, instructing Judge Chutkan to determine how that affects Mr. Smith’s case.
In early September Judge Chutkan outlined a schedule for the parties to file briefs on the immunity question and other issues over the coming months.
The 165-page brief unsealed on Wednesday represents Mr. Smith’s response to that question. His arguments are sweeping.
“Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one,” he wrote in the brief. “None of the defendant’s charged conduct is immunized.”
Mr. Smith asked for special permission to (1) file the first brief on the immunity issue; (2) file an “oversized” brief on the issue; and (3) release a partially redacted copy of the brief to the public. Judge Chutkan granted all three requests, even though she acknowledged it would be “irregular” to allow the government to brief first. While Mr. Trump has two weeks to file his reply brief, Mr. Smith will be able to file a response, giving him the final word.
While this represents an acceleration in proceedings, Judge Chutkan noted that there have already been substantial delays in the case. And while the U.S. Constitution guarantees due process rights for criminal defendants, including the right to a vigorous and thorough defense, courts have also held that there is a public interest – particularly for federal prosecutions funded by taxpayers – in not letting criminal cases drag on.
A 1972 Supreme Court ruling held that “There is a societal interest in providing a speedy trial.” In a 1979 case, the court wrote that the public “has a definite and concrete interest in seeing that justice is swiftly and fairly administered.”
But Mr. Smith’s actions also appear to go against what is known as the Justice Department’s “60-day rule” – an informal policy that department officials should avoid taking any actions within 60 days of an election that could influence how people vote.
Timing has formed the basis for criticisms of this week’s legal events. Trump ally Mike Davis, president of the Article III Project, a conservative legal advocacy group, criticized Judge Chutkan in a statement for “unnecessarily and shamefully releasing a one-sided political story … during the height of 2024 presidential election season.”
Julio Cortez/AP/File
Is this election interference?
Mr. Trump took to his social media platform, Truth Social, Wednesday night to decry Mr. Smith’s unsealed brief as “ELECTION INTERFERENCE,” and accuse Democrats of trying deflect attention from the performance of Democratic vice presidential candidate Tim Walz in the debate the night before.
He framed it as the latest in a series of politically motivated investigations and lawsuits meant to undermine his political fortunes.
“THIS … WILL END JUST LIKE ALL OF THE OTHERS – WITH COMPLETE VICTORY FOR ‘PRESIDENT DONALD J. TRUMP,’” he posted.
The timing elicited comparisons from Republicans to then-FBI Director James Comey’s bombshell in the final days of the 2016 campaign. On Oct. 28, he announced that the agency had found new emails related to its investigation of Democratic candidate Hillary Clinton’s use of a personal email server.
As the story consumed the news cycle, Mrs. Clinton’s lead in the polls fell from 5.9 to 2.9 percentage points, with an even narrower lead in key swing states. Though Mr. Comey said two days before the election that the emails did not turn up any new evidence, she ended up losing Wisconsin, Michigan, and Pennsylvania by less than 1 percentage point – tipping the election to Mr. Trump. Democrats and some analysts – including statistician Nate Silver – argued that Mr. Comey likely cost her the election.
Trump lawyer John Lauro, who is representing him in the case brought by Mr. Smith, said he “may be the Jim Comey of 2024.” In an interview with Fox News, he alleged that there was a “coordinated” effort to target the GOP nominee with multiple lawsuits in the middle of a campaign.
“For the first time in our history, a sitting president is using the Department of Justice to go after a political opponent criminally,” said Mr. Lauro.
Legal experts point out that the case had originally been scheduled to go to trial in March, long before the election, but Mr. Smith supported expedited appeals to clarify the immunity issue. Supporters of the Justice Department also say that the 60-day rule may not apply here. The policy is an informal, unwritten one, and legal observers believe it applies only to new law enforcement actions, not to ongoing cases like this one.
What happens next?
Over the next two weeks, Mr. Trump’s lawyers will file their response brief, in which they are expected to argue that many of the activities described by Mr. Smith were in fact official acts and should be subject to presidential immunity. Mr. Smith’s reply brief is due a week before Election Day.
Throughout this month, the parties will also be briefing on other legal issues in the case, including whether Mr. Smith was unlawfully appointed. A federal judge in Florida, who was appointed by President Trump, dismissed another case against the former president on those grounds in July. All told, it’s unlikely that Judge Chutkan will issue a ruling on the immunity issue – or any other legal issue – until after the election.
If Mr. Trump wins the election in November, he will almost certainly instruct the Justice Department to end the case. If Kamala Harris wins, the case will probably go to trial. It’s unclear when exactly that might happen, but as Judge Chutkan acknowledged in September, the verdict will almost certainly be appealed.