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Judge Tanya Chutkan instructed Special Counsel Jack Smith to submit a brief explaining why Donald Trump's actions on Jan. 6, 2021, were private actions, not part of his job and thus subject to prosecution even after the Supreme Court ruled that official actions by the president, even illegal ones, could not be prosecuted. Smith complied. Yesterday, Chutkan released the 165-page brief detailing Trump's actions on that day and explaining in detail why they were actions taken by Trump the candidate, not Trump the president. Will this be the fabled October surprise? Well, it's October and this was a surprise.
The brief is a complete accounting of what Trump did that day. It is basically Smith's entire case laid out in detail. Smith argues that Trump used private actors and his campaign infrastructure to try to overturn an election he lost, none of which is even vaguely related to his duties as president.
The document has four sections. The first one lays out the case Smith will make at the trial, including a summary of the evidence. The second one gives Chutkan a roadmap of how to determine which presidential actions are official and which are not. The third one shows how the roadmap applies in Trump's case. The fourth one asks the judge to rule that Trump's actions that day were not official and the trial can commence.
The brief contains evidence not already public. For example, Trump told Republican operatives to create chaos in polling places in Philadelphia so that they could later claim that observers were denied proper access. The same operatives also tried to instigate riots at counting centers.
Smith also framed conversations between Trump and Mike Pence as conversations between running mates, not between a president and his vice president. For example, on Nov. 12, 2020, Pence told Trump that he didn't have to concede but he could recognize that the process was over. Pence also counseled Trump that even though he lost, he could run again in 2024.
Smith also has a witness who will testify that he was there when Trump told Melania, Ivanka, and Jared that it doesn't matter if he won or lost, he was going to fight like hell anyway. Smith will argue that telling his family that it didn't matter whether he won or lost, he was going to fight anyway, is not an official duty of the president, but is evidence that Trump knew he lost. Trump could have told his family that he won and so he was going to fight, but that is not what he said.
One of Smith's key arguments is that the Executive Branch plays no role in selecting the next president, so nothing Trump did concerning the election could possibly relate to the president's duties. The only Executive Branch person involved in the election is the vice president, in their constitutional role as President of the Senate.
The brief also said that Trump told a staffer that he would not pay his lead lawyer (possibly Rudy Giuliani) unless he was successful and the staffer said that in that case, the lawyer wasn't going to get paid. Trump said the details don't matter. The brief also lays out examples where many lawyers and other people told Trump he had lost and he didn't care. He just forged ahead.
The document also describes what Trump did, especially his trying to strongarm RNC and state election officials. For example, Trump ordered then-RNC-Chair Ronna Romney McDaniel to issue a report about election fraud, and she refused. It also discusses how he called governors and other officials to try to get them to cooperate.
Will the brief cause a political storm and affect the election? It will probably be big news for a couple of news cycles and then die down for a bit. Then Trump's attorneys will get to respond. Then Chutkan will make a ruling. If she decides that the trial can go forward, Trump will certainly appeal that to the Supreme Court. The trial certainly won't start before the election, but all the news about what Trump did on Jan. 6 and before to try to overturn the election could influence some of the Nikki Haley Republicans that enough is enough and get them to vote for Kamala Harris, just to be rid of Trump. (V)