3 Things In Jack Smith’s Brief That Are Bad For Trump

Now that special counsel Jack Smith has laid out some of the evidence he intends to use at trial to convince jurors that Donald Trump conspired to subvert the 2020 election, it soon goes next to a federal judge to decide which of Trump’s acts were “official” — and therefore not prosecutable under the Supreme Court’s recent decision regarding when presidents can be granted immunity.

Smith’s 165-page partially redacted document argues that Trump carried out some behavior as a presidential candidate, not only as a former president.

Until late Thursday, U.S. District Judge Tanya Chutkan was on track to give Trump’s lawyers until Oct. 17 to respond. They requested that she extend the deadline until Nov. 21 — weeks after Election Day will have come and gone, and at a point where voters will have already decided how they feel about a presidential candidate who stands criminally accused of trying to subvert the last election he lost. But on Thursday afternoon, Chutkan agreed to meet him halfway and granted Trump’s request to delay his response until after Election Day. He now has until Nov. 7 to file. Trump has also asked that two of the four criminal charges he faces be dismissed.

After Trump’s lawyers submit their response, Chutkan will need to determine what was and was not “official” conduct. Below are three key pieces of information from Smith’s brief that she may consider when making that call.

Smith underlined in the brief that Trump used “deceit” regularly as a candidate.

Despite casting a mail-in ballot for himself in 2020, Trump consistently told rallygoers that such voting was flawed and that Democrats could only win if they used mail-in ballots to engage in “massive cheating.”

A slew of campaign employees looked for reasons “to sow confusion” about vote totals, as well as to create chaos at tabulation centers early on, Smith wrote. Trump, he noted, was aware of all of these efforts thanks to private campaign meetings or information fed to him by “campaign conduits.”

For example, Smith alleged that campaign staff told Trump nearly a week after the 2020 election that there was only a “slim chance of prevailing” against now-President Joe Biden. When Trump knew he had no lawful path forward to victory, Smith said the candidate sidelined those staff and turned to friendlier private attorneys like Rudy Giuliani to carry out his directions.

A lawyer who represented Trump in his first impeachment trial in 2019 and 2020 and later took a job at the White House as an assistant to the president also turned into a “conduit of information from the campaign to the defendant,” Smith wrote. Identifying details in the brief suggest this lawyer was Eric Herschmann, and Smith wrote that the lawyer regularly gave Trump the “unvarnished truth” about his campaign legal team and the claims of fraud they made.

But the special counsel emphasized that Trump was not deterred. When this White House “conduit” to the campaign allegedly gave Trump an “honest assessment” that Giuliani would never be able to mount a winning legal challenge over election results because he didn’t have the proof to back up the campaign’s claims of fraud, Trump replied, “The details don’t matter.”

A pattern ensued, Smith argued, and that began to echo what another aide allegedly overheard Trump say when flying on Marine One.

“It doesn’t matter if you won or lost the election. You still have to fight like hell,” Trump allegedly told family members aboard the plane, Smith wrote.

It wasn’t just campaign lawyers. Smith pointed out that it was Trump’s running mate for 2020, Mike Pence, who told Trump during discussions about their “shared electoral interests” that he had not seen any proof of voter fraud and that Trump should consider conceding.

Smith’s brief includes dozens of pages of tweets Trump wrote over several weeks in late 2020 and early 2021, and it argues that these posts should be considered “unofficial.”

Using a platform to cast aspersions on election results while simultaneously attacking anyone who refused to come along with the campaign’s claims was not the official work of a president, according to Smith.

It was not an “official” duty to pressure Georgia Gov. Brian Kemp (R), Smith wrote, noting that Trump used social media to publicly interrogate why Kemp wouldn’t use his “emergency powers… to overrule his obstinate Secretary of State” in late November 2020.

It also wasn’t part of Trump’s “official” duties to target Georgia Secretary of State Brad Raffensperger on Jan. 3, 2021, with Trump claiming Raffensperger was “unwilling or unable to answer questions such as the ‘ballots under the table scam,’ ballot destruction, out of state ‘voters,’ dead voters, and more,” Smith said.

After Trump was allegedly told “directly” by a campaign manager that the campaign’s attempt at lobbing fraud claims about noncitizens voting in Arizona wasn’t working, Smith provided Chutkan with emails, testimony, tweets and text messages that he said show Trump pushing back anyway and tasking campaign lawyers to improperly influence officials. This occurred even as Trump’s lawyers conceded defeat in election lawsuits filed in Arizona.

And it wasn’t an “official act” for Trump to go on Twitter, now called X, and target Al Schmidt, a Philadelphia city commissioner, after he declared on television that no evidence of fraud had been found in Pennsylvania.

Schmidt was already receiving death threats and being harassed. Smith noted that a Nov. 11, 2020, Twitter post from Trump claiming Schmidt “refuses to look at a mountain of corruption & dishonesty” triggered a new wave of harassment and doxxing.

That tweet came after one of Trump’s “campaign conduits” claimed to have directly informed the Republican candidate that fraud claims he and his campaign lawyers were spreading in Pennsylvania were “bullshit.”

Smith’s briefing also offers the judge an opportunity to consider how the Hatch Act, a law that narrows how federal employees conduct political activities, may prove that Trump understood the difference between acting politically versus acting officially.

When White House staff engaged in political activity on Trump’s behalf as a candidate, they were not exercising any official authority or carrying out “official responsibilities,” Smith wrote.

And he suggested they knew that.

To wit, Smith’s brief presents evidence from a Republican National Committee-paid event in Georgia on Jan. 4. Trump was invited to attend by two Republican U.S. senators competing in a run-off election the next day. During the trip, the Trump campaign carried a binder containing a Hatch Act disclaimer, plus other records that clearly described the Jan. 4 event as a “Remarks at Victory Rally.” Trump’s diary also described it this way, indicating the event was one he was attending as a candidate for office and not as the president.

Smith argued that these descriptors made it clear the campaign understood this was clearly a political event and the disclaimer they carried only confirmed it. Smith told Chutkan that Trump’s campaign sent out fundraising emails too, and when Trump finally spoke at the event, he spent much of the time complaining about voter fraud and irregularities he had been told were disproven.

The speech at the Ellipse on Jan. 6 was similar. It was “planned and executed by private political supporters, including Women for America First, a 501(c)(4) organization that advocated for the defendant’s reelection in advance of election day in 2020 and throughout the post-election time period,” the briefing states.

The U.S. Secret Service did not consider the Ellipse speech official either; they deemed it a “campaign event.” The event, Smith reminded Chutkan, was funded by a $2.1 million private donation by a grocery chain heiress. The House select committee that investigated the Jan. 6 attack on the Capitol revealed this heiress was Julie Fancelli.

Smith acknowledged this private funding may not be enough to prove the Jan. 6 rally at the Ellipse was unofficial business — but just like the campaign trip to Georgia two days before, Trump’s trip binder for the Jan. 6 speech reinforced it was a private event.

There was also an email from a White House photographer sent the morning Trump took the stage on Jan. 6 that explicitly offered the reminder that “today is a political event,” according to the briefing. Though his name is redacted, the filing notes this email was sent and copied to Dan Scavino, who was Trump’s deputy chief of staff at the time. Smith alleged Scavino was also the only other person who had access to Trump’s Twitter or would tweet for Trump at his direction.

Speechwriting staff also knew the event at the Ellipse was unofficial, according to the special counsel. Smith told Chutkan that the White House counsel’s office, which would review Trump’s official remarks before he made them, “pointedly did not review the Ellipse speech because it was an official campaign speech.”

The White House official website also made no mention of it. Instead, prosecutors noted that Trump’s speech was only heavily advertised on his campaign Twitter account.