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On Wednesday, Judge Tanya Chutkan unsealed a redacted version of Jack Smith’s immunity motion. Now we have a clear view of what Smith believes is still on the table after the Supreme Court’s decision. The short version: just about everything. Smith acknowledges that the Court took Trump’s interactions with DOJ officials out of the case, but he argues that everything else is either private conduct that is fair game or official conduct that he can overcome the presumption of immunity for by demonstrating prosecution won’t harm the presidency—as if it’s not Trump who’s harming the presidency. Smith is going to make the courts tell him no, if they are of a mind to. His position until then is that he is prosecuting Trump on all of the charges in the superseding indictment.
Judge Chutkan issued a written decision denying Trump's request to keep the filing under seal. Trump did not seek a timely stay, so we now have access to the redacted version of the brief the government submitted for the public record.
Donald Trump might be able to make the federal prosecutions against him go away if he is reelected. But the taint, the stench (to appropriate Justice Sotomayor’s choice of words during oral argument in Dobbs), is something democracy wouldn’t survive. Jack Smith’s layout of the evidence against Donald Trump in Section One of the brief underlines that. Smith is focused on law, not politics, but past is prologue, and his brief, although he certainly didn’t intend it, is a warning and a call to action for American voters.
Smith goes straight to it in his opening paragraph. He’s not intimidated by Donald Trump or by the Supreme Court’s decision, which some people suggested might end his prosecution: “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.” Smith says that although the Supreme Court has ruled Trump’s efforts to corrupt the Justice Department in his quest to overthrow the 2020 election are covered by immunity, the rest of the allegations against Trump are fair game. He uses the 165 pages in his brief to establish that point.
We now know to a moral certainty why Donald Trump didn’t want the public to see this brief. It’s because he’s guilty. Not just in the court of public opinion. Smith has the goods on him. Unlike the January 6 committee, Smith had subpoena power and the ability to execute search warrants and use other investigative techniques, and he put them to good purpose. He also appears to have witness testimony that is new, for instance, details about Trump’s conversations with Mike Pence.
There are four sections in the brief:
Section One (P.3): An overview of the factual evidence the government expects to present at trial. This is the core of the motion, for those who want to read through Smith’s evidence against Trump.
Section Two (P.85): An explanation of the legal principles that govern determining what immunity covers. Also, a layout of the two-step process the court should use to determine whether each category of conduct the government expects to prove gets immunity. First, the court should determine if conduct was “was official or unofficial by analyzing the relevant ‘content, form, and context,’” to decide if Trump was acting as candidate or president. Actions of candidate Trump, Smith writes (echoing how we discussed this at Civil Discourse many months ago) don’t get immunity. Where Trump was acting in his official capacity as president, there is a presumption of immunity that can be overcome if the prosecution shows that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
Section Three (P.88): Smith applies the legal principles from Section Two to Trump’s conduct and “establishes that nothing the Government intends to present to the jury is protected by presidential immunity.” Smith says that while the conversations between Trump and Pence qualify as official, he overcomes the presumption of immunity, and none of the other conduct Trump is charged with is official.
Section Four (P.164): The government asks the court to enter an order that specifies that (1) Trump isn’t entitled to immunity for the conduct set forth in Section One, (2) that Trump can be forced to stand trial on the charges, and (3) that the prosecution can put on evidence of the conduct described in Section One.
This is the road map for the decisions Judge Chutkan will have to make before this case moves forward. And of course, it won’t go straight to trial. Trump will be able to appeal her decisions about what isn’t protected by immunity, and the government can appeal any decisions she makes about what is. Ultimately, the Supreme Court may weigh in, either by hearing the case or by refusing to hear it and affirming the Court of Appeals decision reviewing Judge Chutkan’s rulings, before the case can be set for trial. That could mean the Supreme Court adding the case to its docket for this term—if the Court of Appeals gets it to them that quickly—ordering briefing and oral argument, and not rendering a decision until as late as June or July. Look for the government to ask the Supreme Court to hear the case directly without waiting on the Court of Appeals. The government made that motion last time and the Supreme Court waved it off, but at this point, there is really no rationale to let the Court of Appeals try to speculate about what the Supreme Court meant in its immunity decision in Trump.
For so many years, people have hesitated to call out Trump in plain language. Smith does not. He starts the layout of his evidence like this, saying Trump “resorted to crimes to stay in office.”
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Smith also identifies, by number rather than by name, a number of co-conspirators (CC) and persons (P) involved in Trump’s crimes.
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Although their identities are redacted, there are a number of lists circulating on the internet where people try to identify them based on the content they are involved in. For instance, CC1 is widely believed to be Rudy Giuliani.
Smith previews the buckets of conduct discussed in the next 82 pages of the brief, signaling to the court that he will establish later in his brief that none of this conduct is covered by presidential immunity:
Trump’s formation of the three conspiracies charged in the indictment leading up to and immediately following the 2020 presidential election
Trump’s knowledge that his loss was not due to fraud, despite his persistent claims it was, and
Trump’s “increasingly desperate efforts” to disrupt the electoral process with claims of election fraud that he knew were lies
The first section of the brief is Smith’s layout of his evidence. That portion has received a lot of public attention. It’s a recitation of Trump’s crimes, and it’s worth reading; it’s written in a way that’s accessible for non-lawyers. But the legal issue that is the reason this pleading was filed is to determine what parts of Trump’s conduct Chutkan, and ultimately higher courts, will let Smith use. So we’ll focus on the portions of the brief where Smith lays out the standard for determining immunity and go back and revisit the facts when we have the opportunity. Smith’s position here is that Trump doesn’t get immunity for any of the conduct charged in the superseding indictment.
The Supreme Court’s decision in the Trump immunity appeal is one that, as we discussed at the time, doesn’t make sense. It purports to give a president the ability to do acts we clearly don’t want a president to be able to do in a democracy—the whole hypo about directing SEAL Team Six to assassinate a political rival with impunity. That’s where the Supreme Court landed, and of course, by the same token, they landed there only for Trump. He’s the only one in the current political landscape who would contemplate doing something like that (although the Court may well embolden future wrongdoer-presidents); the Court could only render a decision like this because it had confidence in Joe Biden’s integrity and good faith.
It was a supremely bad decision. Now, Jack Smith is giving them the opportunity to flesh out their decision in a way that undoes some of the damage. He offers them the chance to draw the clean and obvious line between acts of a candidate—acts that are not the official business of the presidency, and so not within the scope of immunity—and official acts of a president. He is also giving them the chance to clarify what they meant when they wrote that the presumption of immunity for “non-core” official acts could be overcome “by demonstrating that ‘applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.’” Smith says that while the conduct charged involving Trump’s pressure campaign to get Pence to refuse to certify Biden’s Electoral College win is official, it falls within this category, and prosecuting Trump for it will not damage the executive branch, so Trump is not entitled to immunity.
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In other words, when this case returns to them, the Supreme Court can either let the case proceed to trial, or they can rule that a president can solicit his vice president to join his criminal scheme to overturn an election and that somehow, prosecuting him for doing that would damage democracy. It would be an “Alice in Wonderland” look at the law, the notion that somehow, it’s prosecuting Trump, not letting him get away with it, that harms the presidency. Jack Smith is betting that even this Supreme Court, and especially now with the public’s eye firmly on it, won’t go there.
Smith just wants a chance to try his case. The American public deserves that, too. We cannot go back to a time when a president, rather than give up power after losing an election, would be on the side of chaos and violence at the expense of democracy.
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In the debate Tuesday night, JD Vance tried to wish the insurrection away. His charm offensive was a thinly disguised effort to wipe the slate clean and pretend January 6, 2021, never happened. Jack Smith is getting the last word in that debate, though. He says it did happen, it did matter, and that Donald Trump, presidential immunity or no, can be prosecuted for it. JD Vance’s non-answer in the debate was a concession that he’s all in on Donald Trump’s past and present ambition to be president again, whether the American voters want him to be or not. Vance, who has said he would not have certified the vote count for President Biden in 2020, is on board for a redux.
Tuesday night, a reporter in Milwaukee, Wisconsin, asked Trump if he trusted the electoral process this time around, Trump answered: “I’ll let you know in about 33 days.” In other words, the process only works if he wins.
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Let’s get on with the election so Trump can face justice in a courtroom.