5 key takeaways from special counsel's bombshell filing on Trump's alleged bid to overturn 2020 election
Special counsel Jack Smith's bombshell court filing unsealed Wednesday lays out the bulk of the evidence in the government's case against Donald Trump for his alleged attempt to overturn the result of the 2020 election, as the federal judge overseeing the case works to determine if the former president's criminal indictment can survive the Supreme Court's test for presidential immunity.
A year after Trump pleaded not guilty to federal charges of undertaking a "criminal scheme" to overturn the election results in order to remain in power, Smith in August filed a pared-down indictment that removed allegations likely to have been considered official acts, after the Supreme Court ruled that Trump is entitled to immunity from criminal prosecution for official acts undertaken while in office.
Last week, Smith filed a sealed brief seeking to justify the superseding indictment, then on Wednesday U.S. District Judge Tanya Chutkan, who is overseeing the case, allowed Smith to file a redacted version for public release.
In response to the filing, Trump campaign spokesperson Steven Cheung said in a statement, "This entire case is a partisan, Unconstitutional Witch Hunt that should be dismissed entirely."
Here are five key takeaways from the 165-page filing.
Trump allegedly planned to declare victory from the start
Despite learning that the results of the 2020 election were unlikely to be finalized on election night, Trump planned to declare victory regardless and "create confusion," prosecutors allege.
"Although his multiple conspiracies began after Election Day in 2020, the defendant laid the groundwork for his crimes well before then," the filing says.
According to prosecutors, Trump and his allies sought to take advantage of the confusion, which the former president could later use as a basis to claim that voter fraud occurred.
In one alleged instance cited in the filing, a campaign employee deliberately "sought to create chaos" at a polling site where votes were still being tabulated.
"When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot, a violent effort to stop the vote count in Florida after the 2000 presidential election, [the campaign employee] responded, "Make them riot" and "Do it!!" the filing says.
Trump allegedly described claims of voter fraud as 'crazy'
According to prosecutors, Trump privately remarked that claims of voter fraud made by a co-conspirator -- identified by ABC News as Sidney Powell -- were "crazy," despite adopting and amplifying the same allegations as he pushed to overturn the election results.
Trump's remark followed a November 2020 press conference when Powell and Rudy Giuliani -- lawyers leading Trump's election lawsuits -- spread baseless conspiracy theories to prove Trump won the election "by a landslide," including by alleging that election software was created at the direction of deceased Venezuelan president Hugo Chávez.
According to prosecutors, a witness is prepared to testify that Trump mocked Powell for the remarks and described them as "crazy," even though "he adopted and amplified" the same allegations.
Mike Pence remains at the center of the case
Smith indicates in the filing that he's prepared to use former Vice President Mike Pence's handwritten notes of his meetings with Trump, as well as Pence's sworn testimony and his account of events later memorialized in his book, to highlight how Trump pressured his second-in-command to subvert the election over the advice of Trump's closest advisers.
"When there's fraud, the rules get changed," Trump allegedly said during a Jan. 4 meeting where he encouraged Pence to reject the results, according to Pence's five pages of handwritten notes from the meeting.
As Trump pursued legal challenges of the election results in states he had lost, Pence reportedly said he attempted to encourage the former president to accept the defeat and move on to the next election.
"You took a dying political party and gave it a new lease on life," Pence told Trump on the day Joe Biden was projected to win the election, the filing says. On another occasion, Pence told Trump, "Don't concede but recognize [the] process is over," per the filing.
According to the filing, Trump remained skeptical of the idea of conceding and instead embraced lawsuits to challenge the election results.
"I don't know, 2024 is so far off," Trump said in mid-November after Pence encouraged him to accept the results and begin thinking about the 2024 election, the filing says.
Smith details Trump's alleged involvement in Jan. 6 attack
Prosecutors disclosed evidence that when Pence ultimately denied Trump's request to reject the votes during the certification proceedings on Jan. 6, the former president alleged decided -- over the pleas of his advisers -- to modify the speech he would deliver at Eclipse to target Pence and falsely claim that Pence had the authority to send back the results to individual states.
"For more than an hour, the defendant delivered a speech designed to inflame his supporters and motivate them to march to the Capitol," the filing says. "The defendant gave his supporters false hope that Pence would take action to change the results of the election and claimed that Pence had the authority to do so."
The filing offers a striking description of the violence that descended on the U.S. Capitol, which prosecutors described as the "the tinderbox that [Trump] purposely ignited on January 6" -- saying that rioters took direct cues from Trump such as reading his social media posts over a bullhorn in order to disrupt the certification proceedings.
As the violent mob stormed the building and Pence was evacuated to a secure location, prosecutors allege that Trump idly watched the scene play out on television and scrolled Twitter. Evidence obtained from Trump's phone demonstrated that the social media application was open and active on his phone for most of the afternoon, the filing says.
"He spent the afternoon there reviewing Twitter on his phone, while the dining room television played Fox News' contemporaneous coverage of events at the Capitol," the filing says.
One of Trump's aides -- identified by ABC News as Nick Luna -- at one point rushed into the room where Trump was seated to inform him that Pence was safely rushed to a secure location during the riot.
"So what?" Trump responded, prosecutors allege.
The filing notes that in the years following Jan. 6, "the defendant has reiterated his support for and allegiance to rioters who broke into the Capitol, calling them 'patriots' and 'hostages,' providing them financial assistance, and reminiscing about January 6 as 'a beautiful day.'"
Prosecutors seek to toe the line on presidential immunity
While the case still relies, in part, on testimony from Trump's White House advisers -- which could possibly be protected by presidential immunity -- prosecutors argue in the filing that the allegations outlined in the indictment relate to the advisers' work as private campaign employees and volunteers, rather than government officials.
"In sum, just as the President can at times act 'in an unofficial capacity' --including as 'a candidate for office or party leader' -- so too can the Executive Branch staff around him. Simply because a staffer holds a title in the Executive Branch and interacts with the President does not mean that the interaction is necessarily official," the filing says.
According to prosecutors, Trump's communications with Pence should not be protected by immunity because the topic of the conversations were the certification proceedings, which are not a function of the executive branch.
"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 or functioning," the filing says.
Prosecutors also urged Judge Chutkan to allow Trump's Tweets as evidence because the social media posts provide "necessary context" for his conduct, and not all of this posts relate to official actions.
"Simply because a Tweet relates to a matter of public concern does not automatically transform it into an official communication," the filing argues.
