Fast and furious: Game (back) on in Chutkan's court

Special counsel Jack Smith laid out the pathway for his election interference case against former President Trump in the wake of the Supreme Court’s immunity decision [in a 165-page filing], describing the former president’s bid to thwart the transfer of power as a “private criminal effort.”

[...]

“At its core, the defendant’s scheme was a private one; he extensively used private actors and his Campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office.”

[...]

In particular, the filing reveals new evidence of the former president’s efforts to sway election officials in key swing states to overturn their states’ election results in his favor.

“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office. With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost.”

[...]

They write that Trump was given “the unvarnished truth” about losing the election but continued to make false claims despite being told they were untrue by close campaign advisers.

By Nov. 7, Trump’s advisers notified him that he would likely lose unless litigation in several states was successful, according to the filing. Later that month, it became apparent the former president’s legal efforts would fail.

Then, in what prosecutors called an “implicit acknowledgment that he had no lawful way to prevail,” Trump sidelined his campaign staff that had been handling the legal challenges and elevated Rudy Giuliani to lead the effort — a private lawyer who was “willing to falsely claim victory” for Trump.

[...]

Trump spokesperson Steven Cheung called the brief “falsehood-ridden” and “unconstitutional,” suggesting it was released after Tuesday’s vice presidential debate to cover up Minnesota Gov. Tim Walz’s “disastrous” vice presidential debate performance against Sen. JD Vance (R-Ohio).

“Deranged Jack Smith and Washington DC Radical Democrats are hell-bent on weaponizing the Justice Department in an attempt to cling to power,” Cheung said. “President Trump is dominating, and the Radical Democrats throughout the Deep State are freaking out. This entire case is a partisan, Unconstitutional Witch Hunt that should be dismissed entirely, together with ALL of the remaining Democrat hoaxes.”

[...]

At every turn, prosecutors write that Trump’s behavior extended beyond his official role as president.

  The Hill

Continue reading for more details on Smith's filing.

...but hey, do what you want...you will anyway.

UPDATE 10/03/2024:

Perhaps the most evocative and alarming revelation involves how Trump reacted to the threats on Vice President Pence’s life. From the New York Times report:

After Mr. Trump’s Twitter post focused the enraged mob’s attention on harming Mr. Pence and the Secret Service took the vice president to a secure location, an aide rushed into the dining room off the Oval Office where Mr. Trump was watching television. The aide alerted him to the developing situation, in the hope that Mr. Trump would then take action to ensure Mr. Pence’s safety.

Instead, Mr. Trump looked at the aide and said only, “So what?”

Other revelations include Trump telling Jared Kushner and Ivanka, "It doesn't matter if you won or lost the election. You still have to fight like hell." The whole filing tells a story. Trump and his allies are willing to break any law and stomp any norm to hold on to power. The Big Lie was a fabricated justification to steal an election.

  Dan Pfeiffer on Substack

In his first response to the documents, the former president wrote: “The release of this falsehood-ridden, Unconstitutional, J6 brief immediately following Tim Walz’s disastrous Debate performance, and 33 days before the Most Important Election in the History of our Country, is another obvious attempt by the Harris-Biden regime to undermine and Weaponize American Democracy, and INTERFERE IN THE 2024 PRESIDENTIAL ELECTION.”

“Deranged Jack Smith, the hand picked Prosecutor of the Harris-Biden DOJ, and Washington, D.C. based Radical Left Democrats, are HELL BENT on continuing to Weaponize the Justice Department in an attempt to cling to power.”

Trump claimed his name is “dominating the Election cycle” and “leading in the Polls,” claiming the “Radical Democrats throughout the Deep State are totally ‘freaking out,’” without saying who he was quoting. “This entire case is a Partisan, Unconstitutional, Witch Hunt, that should be dismissed, entirely, just like the Florida case was dismissed!”

Trump then accused the Democratic party of being “guilty of the Worst Election Interference in American History” and of “Weaponizing the Justice Department against me because they know I am WINNING, and they are desperate to prop up their failing Candidate, Kamala Harris.”

He then raged against the Department of Justice.

[...]

Trump then spoke to NewsNation Wednesday night in Houston, Texas, to rage again over the allegations.

“He’s a deranged person,” Trump said of Special Counsel Jack Smith. “He just lost the big documents case, that was the biggest of them all.” In August, Smith formally filed to appeal a district court judge’s dismissal of the case in July.

“This was a weaponization of government and this is why it was released 30 days before the election,” Trump said. “And it’s nothing new in there, by the way, nothing new. They rigged the election. I didn’t rig the election. They rigged the election.” He repeated those claims numerous times throughout.

The former president criticized Smith for releasing the documents despite the fact he claimed he was nonplussed over the information. “They should have never allowed the information to come before the public,” he said, adding, “My poll numbers have gone up instead of down. It is pure election interference.”

  Daily Beast

Yeah, well if your poll numbers have gone up because of it, you should welcome this "election interference."

In her order allowing the redacted filing to become public, U.S. District Judge Tanya Chutkan, who has been overseeing the case, addressed the defense's accusations of partisan bias.

"Defendant's opposition brief repeatedly accuses the Government of bad-faith partisan bias," the judge wrote. "These accusations, for which Defendant provides no support, continue a pattern of defense filings focusing on political rhetoric rather than addressing the legal issues at hand."

"Not only is that focus unresponsive and unhelpful to the court, but it is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in this case," Judge Chutkan wrote. "Future filings should be directed to the issues before the court."

  ABC News

"Don't fuck with me."  Is that a decent translation?

Smith alleges that Trump engaged in three conspiracies: (1) to interfere with the federal government’s function of collecting and counting the election results, (2) to obstruct Congress’s certification of the election results, and (3) to obstruct the rights of millions of Americans to vote and have their votes counted.

[...]

One of Trump’s aides who spoke with him “on a daily basis and had informed him on multiple occasions that various fraud claims were false” wrote in an email: “When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0-32 on our cases. I’ll obviously hustle to help on all fronts, but it’s tough to own any of this when it’s all just conspiracy shit beamed down from the mothership.”

In mid-December 2020, Trump spoke with Ronna McDaniel (whose name is redacted, but she’s identified as the “RNC Chairwoman”) and asked her to publicize and promote a private report that purported to identify flaws in voting machines used in Antrim County, Michigan. She refused, saying she had talked about the report with the speaker of the Michigan House of Representatives, Lee Chatfield (whose name is also redacted), and conveyed to Trump “this exact assessment: the report was ‘fucking nuts.’”

  Bulwark

Which is no doubt why Lara Trump now holds McDaniel's position.

However Chutkan rules, her decision on what evidence counts as private versus official conduct will be appealed to the D.C. Circuit, and ultimately to the Supreme Court, which holds the ultimate power to decide whether there’s going to be any accountability for criminal presidents under our Constitution.

Definitely getting us beyond the election. And if Trump wins, there won't be any need to appeal. He'll have the DOJ fire Smith and drop the case.

UPDATE 10/05/2024:

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.

  Joyce Vance Substack

I don't think there was any rationale the last time they waved off the government's motion.

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.

[...]

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.”

[...]

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.

[...]

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.

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.