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Jack Smith’s Appendix
Sorry it has taken me so long to post the appendix to Jack Smith’s immunity briefing. The four sections are here:
There’s virtually nothing new here. Trump’s temper tantrum was little more than a public wail that if people saw already-public documents about his plotting to run fake electors, it would swing the election.
That said, there are a few things we can confirm from the structure of all this, which I’ll write up over the weekend.
Jack Smith Takes Up the Aid and Abet Theory Endorsed by Judge Amit Mehta in 2022
Back in February 2022, 32 months ago, think I was the only one who made much of Judge Amit Mehta’s ruling that Trump might plausibly be on the hook for abetting the assaults of cops at the Capitol on January 6.
Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.
Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.
I noted at the time that Judge Mehta — whose ruling on Trump’s susceptibility to lawsuit for actions taken as a candidate would largely be adopted in the DC Circuit’s opinion on the topic — was presiding over a number of the key assault cases where the since-convicted defendants described being called to DC or ordered to march to the Capitol by Trump before they started beating the shit out of some cops.
He also presided over the Oath Keeper cases.
That’s interesting background to Jack Smith’s response to Trump’s supplement to his motion to dismiss his indictment.
As I expected, Smith noted that Trump’s frivolous supplement didn’t even mention the language in the superseding indictment alleging that Trump willfully created false evidence.
Beyond that critical flaw, the defendant’s supplement ignores entirely that the superseding indictment includes allegations that involve the creation of false evidence. As construed by Fischer, Section 1512(c)(1) covers impairment of records, documents, or objects by altering, destroying, mutilating, or concealing them, and Section 1512(c)(2) covers the impairment (or attempted impairment) of records, documents, and objects by other means—such as by “creating false evidence.” 144 S. Ct. at 2185-86 (citing United States v. Reich, 479 F.3d 179 (2d Cir. 2007) (Sotomayor, J.)). In Reich, for example, the defendant was convicted under Section 1512(c)(2) after he forged a court order and sent it to an opposing party intending to cause (and in fact causing) that party to withdraw a mandamus petition then pending before an appellate court. 479 F.3d at 183, 185-87. Just as the defendant in Reich violated Section 1512(c)(2) by “inject[ing] a false order into ongoing litigation to which he was a party,” id. at 186, the superseding indictment alleges that the defendant and his co-conspirators created fraudulent electoral certificates that they intended to introduce into the congressional proceeding on January 6 to certify the results of the 2020 presidential election. See ECF No. 226 at ¶¶ 50-66.
That’s the primary reason I didn’t even treat Trump’s filing with much attention: it ignored how differently situated Trump is than the Fischer defendants.
But I’m most interested in the way Smith rebuts Trump’s argument that he bears no responsibility for the riots at the Capitol. He adopts that same aid and abet theory that Judge Mehta endorsed back in 2022.
Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001). [my emphasis]
Smith then repeats that language of “willfully caus[ing]” people to storm the Capitol.
As described above, the superseding indictment alleges that the defendant willfully caused others to violate Section 1512(c)(2) when he “repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification,” ECF No. 226 at ¶ 86, by pressuring the Vice President and legislators to accept the fraudulent certificates for certain states in lieu of those states’ legitimate certificates. Those allegations link the defendant’s actions on January 6 directly to his efforts to corruptly obstruct the certification proceeding and establish the elements of a violation of Section 1512(c)(2), which suffices to resolve the defendant’s motion to dismiss on statutory grounds. [my emphasis]
Note that this reliance on an abetting theory of liability for the riot explains DOJ’s effort to sustain some select 1512(c)(2) charges against crime scene defendants. Smith will want to closely tie Trump to the actions of key crime scene defendants.
But that depends on sustaining at least some of those key cases. But they’ve already taken at least some steps to do that. In at least one case, cooperating Oath Keeper Jon Schaffer, they’ve done an addendum to the statement of facts to sustain the plea under Fischer.
Perhaps relatedly, the nature of Schaffer’s cooperation remains redacted in the government sentencing memo asking for probation for Schaffer.
For over a year, Trump’s team has been trying to disavow his mob, and for almost a year, prosecutors have promised to show how Trump obstructed the vote certification through the actions of specific rioters.
At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.
The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]
As I’ve said, I think Jack Smith may believe he has the evidence to prove Trump more actively incited violence, but was prevented from indicting that before the election. But for now, Smith is making it explicit that he is adopting the theory of liability that Judge Mehta ruled was at least plausible, years ago.
Machine for Fascism: The Two Stephens
When I saw the news that Trump is planning a rally at Madison Square Garden — as the Nazis did in 1939 — I checked the date to see whether that was before or after Steve Bannon gets out of prison.
Bannon is due to get out on October 29; the rally is two days earlier, on October 27. On the current schedule, Bannon will be released nine days before the election, but not soon enough to attend what will undoubtedly be a larger version of the Nazi rant that Trump put on in Aurora the other day. Unless something disrupts it, Bannon will start trial for defrauding Trump supporters on December 9, days before the states certify the electoral vote.
This is the kind of timing I can’t get out of my head. According to FiveThirtyEight, Kamala Harris currently has a 53% chance of winning the electoral college. That’s bleak enough. But based on everything I know about January 6, I’d say that if Trump loses, there’s at least a 10% chance Trump’s fuckery in response will have a major impact on the transfer of power.
Experts on right wing extremism are suggesting the same thing. Here’s an interview Rick Perlstein did with David Neiwert back in August on the political violence he expects. Here’s a report from someone who infiltrated the 3 Percenters, predicting they would engage in vigilanteism.
Will Jack Smith unveil charges about inciting violence amid election violence?
As I wrote in this post, I suspect that Jack Smith considered, but did not, add charges when he decided to supersede Trump’s January 6 indictment. As I wrote, there is negative space in Smith’s immunity filing where charges on Trump’s funding for January 6 (and subsequent suspected misuse of those funds) might otherwise be.
More tellingly, there are four things that indicate Jack Smith envisioned — but did not yet include — charges relating to ginning up violence. As Smith did in a 404(b) filing submitted in December, he treated Mike Roman as a co-conspirator when he exhorted a colleague, “Make them riot” and “Do it!!!” Newly in the immunity filing, he treated Bannon as a co-conspirator, providing a way to introduce Steve Bannon’s prediction, “All Hell is going to break loose tomorrow!” shortly after speaking with Trump on January 5. But Smith didn’t revise the indictment to describe Roman and Bannon as CC7 and CC8; that is, he did not formally include these efforts to gin up violence in this indictment. What appears to be the same source for the Mike Roman detail (which could be Roman’s phone, which was seized in September 2022; in several cases it has taken a year to exploit phones seized in the January 6 investigation) also described that Trump adopted the same tactic in Philadelphia.
The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.22
Even more notably, after saying (in that same December 404(b) filing) that he wanted to include Trump’s endorsement and later ratification of the Proud Boys’ attack on the country to “demonstrate[] the defendant’s encouragement of violence,” Smith didn’t include them in the immunity filing whatsoever — not even in the section where the immunity filing described Trump’s endorsement of men who assaulted cops. If I’m right that Smith held stuff back because SCOTUS delayed his work so long it butted into the election season, it would mean he believes he has the ability to prove that Trump deliberately stoked violence targeting efforts to count the vote at both the state and federal level, but could not lay that out until after November 5, after which Trump may be in a position to dismiss the case entirely.
And the two Stephens — Bannon, whose War Room podcast would serve to show that Trump intended to loose all Hell on January 6, and Miller, who added the finishing touches to Trump’s speech making Mike Pence a target for that violence — appear to have a plan to do just that, working in concert with Elon Musk.
The two Stephens say Trump must be able to stoke violence with false claims as part of his campaign
As I laid out in June, just as Bannon was reporting to prison, both Stephens were arguing that they had a right to make false claims that had the effect of fostering violence.
Bannon filed an emergency appeal aiming to stay out of prison arguing he had to remain out so he could “speak[] on important issues.”
There is also a strong public interest in Mr. Bannon remaining free during the run-up to the 2024 presidential election. The government seeks to imprison him for the four-month period immediately preceding the November election—giving an appearance that the government is trying to prevent Mr. Bannon from fully assisting with the campaign and speaking out on important issues, and also ensuring the government exacts its pound of flesh before the possible end of the Biden Administration.
No one can dispute that Mr. Bannon remains a significant figure. He is a top advisor to the President Trump campaign, and millions of Americans look to him for information on matters important to the ongoing presidential campaign. Yet from prison, Mr. Bannon’s ability to participate in the campaign and comment on important matters of policy would be drastically curtailed, if not eliminated. There is no reason to force that outcome in a case that presents substantial legal issues.
That claim came just after he had given a “Victory or Death” speech at a Turning Point conference.
In the same period, Stephen Miller attempted to intervene in Jack Smith’s efforts to prevent Trump from making false claims that the FBI tried to assassinate him when they did a search of his home governed by a standard use-of-force policy, knowing full well he was gone. (Aileen Cannon rejected Miller’s effort before she dismissed the case entirely.)
Miller argued that the type of speech that Smith wanted to limit — false claims that have already inspired a violent attack on the FBI — as speech central to Trump’s campaign for President.
The Supreme Court has accordingly treated political speech—discussion on the topics of government and civil life—as a foundational area of protection. This principle, above all else, is the “fixed star in our constitutional constellation[:] that no official, high or petty, can prescribe what shall be orthodox in politics[ or] nationalism . . . or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). Therefore, “[d]iscussion of public issues and debate on the qualifications of candidates” are considered “integral” to the functioning of our way of government and are afforded the “broadest protection.” Buckley, 424 U.S. at 14.
Because “uninhibited, robust, and wide-open” debate enables “the citizenry to make informed choices among candidates for office,” “the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Id. at 14-15 (citations omitted). Within this core protection for political discourse, the candidates’ own speech—undoubtedly the purest source of information for the voter about that candidate—must take even further primacy. Cf. Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222-24 (1989) (explaining that political speech by political parties is especially favored). This must be especially true when, as here, the candidate engages in a “pure form of expression involving free speech alone rather than expression mixed with particular conduct.” Buckley, 424 U.S. at 17 (cleaned up) (contrasting picketing and parading with newspaper comments or telegrams). These principles layer together to strongly shield candidates for national office from restrictions on their speech.
Miller called Trump’s false attack on the FBI peaceful political discourse.
Importantly, Miller dodged an argument Smith made — that Trump intended that his false claims would go viral. He intended for people like Bannon to repeat his false claims. In disclaiming any intent to incite imminent action, Miller ignored the exhibit showing Bannon parroting Trump’s false claim on his War Room podcast.
It cannot be said that by merely criticizing—or, even as some may argue, mischaracterizing—the government’s actions and intentions in executing a search warrant at his residence, President Trump is advocating for violence or lawlessness, let alone inciting imminent action. The government’s own exhibits prove the point. See generally ECF Nos. 592-1, 592-2. 592-3, 592-5.
Note, Bannon did this with Mike Davis, a leading candidate for a senior DOJ position under Trump, possibly even Attorney General, who has vowed to instill a reign of terror in that position.
But that was the point — Jack Smith argued — of including an exhibit showing Bannon doing just that.
Predictably and as he certainly intended, others have amplified Trump’s misleading statements, falsely characterizing the inclusion of the entirely standard use-of-force policy as an effort to “assassinate” Trump. See Exhibit 4.
Back in June, Bannon said he had to remain out of prison because he played a key role in Trump’s campaign. And Miller said that even if Bannon deliberately parroted Trump’s false incendiary claims, that was protected political speech as part of Trump’s campaign.
Miller helps eliminate checks on disinformation and Nazis on Xitter
But this effort has been going on for years.
A report that American Sunlight released this week describing how systematically the right wing turned to dismantling the moderation processes set up in the wake of the 2016 election points to Miller’s America First Legal’s role in spinning moderation by private actors as censorship. Miller started fundraising for his effort in 2021.
[F]ormer Trump Senior Advisor Stephen Miller[] founded America First Legal (AFL). 6 An unflinchingly partisan organization, the home page of AFL’s website claims its mission is to “[fight] back against lawless executive actions and the Radical Left,” 7 which it accomplishes through litigation. AFL has, to date, engaged in dozens of efforts to silence disinformation research through frivolous lawsuits and collaboration with Jordan and the House Judiciary Committee’s harassment of researchers. In a digital age where social media is more prevalent than ever and social media platforms have more power than ever, AFL’s efforts to politicize legitimate efforts to combat disinformation – by social media platforms and independent private-citizen researchers – have significantly damaged the information environment. To fully realize these efforts and their impacts, we explore the founding and operations of AFL.
[snip]
After its launch in early 2022, AFL began its line of litigation with a series of FOIA requests relating to the State Department’s Global Engagement Center (GEC) and the Cybersecurity and Infrastructure Security Agency (CISA). These requests marked a noticeable uptick in conservative claims about censorship. AFL’s FOIA requests alleged these government agencies improperly partnered with social media platforms and asked for content around Hunter Biden’s laptop to be removed. 22 In its FOIA request to CISA, AFL writes 23 :
On March 17, 2022, the New York Times revealed that “[Hunter] Biden’s laptop was indeed authentic, more than a year after … much of the media dismissed the New York Post’s reporting as Russian disinformation.” When the story was first accused of being disinformation, X/Twitter suspended the New York Post’s account for seven days, and Facebook “’reduc[ed]’ the story’s distribution on its platform while waiting for third-party fact checkers to verify it.” This was just one of many instances where social media companies censored politically controversial information under the pretext of combatting MDM even when the information later became verified.
Then, as now, AFL offered no evidence to support its claim that any federal agency coerced, pressured, or mandated that social media platforms remove any such laptop-related content. As this report will cover in depth, social media platforms have their own, robust content moderation policies in regards to false and misleading content; as private companies, they implement these policies as they see fit.
The American Sunlight report describes how some of the key donations to AFL were laundered so as to hide the original donors (and other of its donations came from entities that had received the funds Trump raised in advance of January 6).
But as WSJ recently reported, Musk started dumping tens of millions into Miller’s racist and transphobic ads no later than June 2022.
In the fall of 2022, more than $50 million of Musk’s money funded a series of advertising campaigns by a group called Citizens for Sanity, according to people familiar with his involvement and tax filings for the group. The bulk of the ads ran in battleground states days before the midterm elections and attacked Democrats on controversial issues such as medical care for transgender children and illegal immigration.
Citizens for Sanity was incorporated in Delaware in June 2022, with salaried employees from Miller’s nonprofit legal group listed as its directors and officers.
There are questions of whether Miller grew close to Musk even before that.
In the lead-up to Musk’s purchase of Xitter, someone — there’s reason to believe it might be Stephen Miller — texted Musk personally to raise the sensitivities of restoring Trump, whom the person called, “the boss,” to Xitter.
And one of Musk’s phone contacts appears to bring Trump up. However, unlike others in the filings, this individual’s information is redacted.
“It will be a delicate game of letting right wingers back on Twitter and how to navigate that (especially the boss himself, if you’re up for that),” the sender texted to Musk, referencing conservative personalities who have been banned for violating Twitter’s rules.
Whoever this was — and people were guessing it was Miller in real time — someone close enough to Elon to influence his purchase of Xitter was thinking of the purchase in terms of bringing back “right wingers,” including Trump.
Yesterday, the NYT reported on how the far right accounts that Musk brought back from bannings have enjoyed expanded reach since being reinstated. Some of the most popular accounts have laid the groundwork for attacking the election.
As the election nears, some of the high-profile reinstated accounts have begun to pre-emptively cast doubt on the results. Much of the commentary is reminiscent of the conspiracy theories that swirled after the 2020 election and in the lead-up to the Jan. 6 riot.
Since being welcomed back to the platform, roughly 80 percent of the accounts have discussed the idea of stolen elections, with most making some variation of the claim that Democrats were engaged in questionable voting schemes. Across at least 1,800 posts on the subject, the users drew more than 13 million likes, shares and other reactions.
Some prominent accounts shared a misleading video linked to the Heritage Foundation, a conservative think tank, that used shaky evidence to claim widespread voter registration of noncitizens. One of the posts received more than 750,000 views; Mr. Musk later circulated the video himself.
But it’s more than just disinformation. Xitter has played a key role in stoking anti-migrant violence across the world. In Ireland, for example, Alex Jones’ magnification of Tommy Robinson’s tweets helped stoke an attack on a shelter for migrants.
As with mentions of Newtownmountkennedy, users outside of Ireland authored the most posts on X mentioning this hashtag, according to the data obtained by Sky News. 57% were posted by accounts based in the United States, 24.7% by Irish users. A further 8.8% were attributed to users based in the United Kingdom.
While four of the top five accounts attracting the most engagement on posts mentioning this hashtag were based in Ireland, the fifth belongs to Alex Jones, an American media personality and conspiracy theorist. Jones’s posts using this hashtag were engaged with 10,700 times.
Jones continued to platform Robinson as he stoked riots in the UK.
Several high-profile characters known for their far-right views have provided vocal commentary on social media in recent days and have been condemned by the government for aggravating tensions via their posts.
Stephen Yaxley-Lennon, who operates under the alias Tommy Robinson, has long been one of Britain’s most foremost far-right and anti-Muslim activists and founded the now-defunct English Defence League (EDL) in 2009.
According to the Daily Mail, Robinson is currently in a hotel in Cyprus, from where he has been posting a flurry of videos to social media. Each post has been viewed hundreds of thousands of times, and shared by right-wing figures across the world including United States InfoWars founder Alex Jones.
And Elon Musk himself famously helped stoke the violence, not just declaring civil war to be “inevitable,” but also adopting Nigel Farage’s attacks on Keir Starmer.
On Monday, a spokesperson for UK Prime Minister Keir Starmer addressed Musk’s comment, telling reporters “there’s no justification for that.”
But Musk is digging his heels in. On Tuesday, he labeled Starmer #TwoTierKier in an apparent reference to a debunked claim spread by conspiracy theorists and populist politicians such as Nigel Farage that “two-tier policing” means right-wing protests are dealt with more forcefully than those organized by the left. He also likened Britain to the Soviet Union for attempting to restrict offensive speech on social media.
In the UK, such incitement is illegal. But it is virtually impossible to prosecute in the United States. So if Elon ever deliberately stoked political violence in the US, it would be extremely difficult to stop him, even ignoring the years of propaganda about censorship and the critical role some of Musk’s companies play in US national security.
Bannon’s international fascist network
The ties to Nigel Farage go further than Xitter networks.
In a pre-prison interview with David Brooks (in which Brooks didn’t mention how Bannon stands accused of defrauding Trump’s supporters in his New York case), Bannon bragged about turning international fascists into rocks stars.
STEVE BANNON: Well, I think it’s very simple: that the ruling elites of the West lost confidence in themselves. The elites have lost their faith in their countries. They’ve lost faith in the Westphalian system, the nation-state. They are more and more detached from the lived experience of their people.
On our show “War Room,” I probably spend at least 20 percent of our time talking about international elements in our movement. So we’ve made Nigel a rock star, Giorgia Meloni a rock star. Marine Le Pen is a rock star. Geert is a rock star. We talk about these people all the time.
And in August, Bannon’s top aide, Alexandra Preate, registered as a foreign agent for Nigel Farage. She cited arranging his participation in:
- A March 2023 CPAC speech
- Discussions, as early as August 2023, about a Farage speech at RNC
- A January 2024 pitch for Farage to speak at a Liberty University CEO Summit that was held last month
- Talks at “Sovereignty Summits” in April through July
- April arrangements for a May 1 talk at Stovall House in Tampa, Florida
- Discussions in May about addressing CPAC in September
- May 2024 media appearances on the Charlie Kirk Show, Fox Business Larry Kudlow show, Bannon’s War Room, Seb Gorka Show, Newsmax, WABC radio
- More discussions about Farage’s attendance at the RNC
- Early August discussions about an upcoming trip to the US
That is, Preate retroactively registered as Farage’s agent after a period (July to August) when he was spreading false claims that stoked riots in his own country.
Preate also updated her registration for the authoritarian Salvadoran President, Nayib Bukele (which makes you wonder whether she had a role in this fawning profile of Bukele).
Miller serves as opening act for Trump’s Operation Aurora
Before Trump’s speech in Aurora, CO the other day — at which he spoke of using the Alien and Sedition Act against what he deemed to be migrants — Stephen Miller served as his opening act, using the mug shots of three undocumented immigrants who have committed violent crimes against American women to rile up the crowd, part of a years-long campaign to falsely suggest that migrants are even as corrupt as violent as white supremacists.
Stephen Miller started laying the infrastructure to improve on January 6 from shortly after the failed coup attempt (and he did so, according to the American Sunlight report, with funds that Trump may have raised with his Big Lie). In recent weeks, Trump — with Miller’s help — has undermined the success of towns in Ohio and Colorado with racial division and has led his own supporters hard hit by hurricanes to forgo aid to which they’re entitled with false claims that Democrats are withholding that aid.
By targeting people like North Carolina Governor Roy Cooper and Kamala Harris, Trump is targeting not just Democrats, but also people who play a key role in certifying the election.
If Cooper and Harris were incapacitated before they played their role in certifying the election, they would be replaced by Mark Robinson and whatever president pro tempore a Senate that is expected to have a GOP majority after January 4 chooses, if such a choice could be negotiated in a close Senate in a few days.
And all the while, the richest man in the world, who claims that he, like Steve Bannon and Donald Trump, might face prison if Vice President Harris wins the election, keeps joking about assassination attempts targeting Harris.
We have just over three weeks to try to affect the outcome on November 5 — to try to make it clear that Trump will do for America what he has done in Springfield, Aurora, and Western North Carolina, deliberately made things worse for his own personal benefit. But at the same time, we need to be aware of how those efforts to make things worse are about creating a problem that Trump can demand emergency powers to solve.
Trump Demands Emergency Appendix Surgery
Today was the deadline Judge Chutkan set for Trump to object to any of the specific redactions Jack Smith had proposed in the appendix to his motion on immunity.
MINUTE ORDER as to DONALD J. TRUMP: The Clerk of the Court is directed to file on the public docket the Government’s “Motion for Leave to File Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket,” ECF No. 245. It is hereby ORDERED that Defendant shall file under seal any objections to the proposed redactions in the Government’s Motion for Immunity Determinations by 12:00 PM on October 1, 2024, and shall file under seal any objections to the proposed redactions in the Appendix to that Motion by 5:00 PM on October 10, 2024. Signed by Judge Tanya S. Chutkan on 9/27/2024. (zcll)
Rather than object, Trump filed another whining complaint about the election. Predictably, he cited the ill-informed rants of Elie Honig and Jack Goldsmith.
There should be no further disclosures at this time of the so-called “evidence” that the Special Counsel’s Office has unlawfully cherry-picked and mischaracterized—during early voting in the 2024 Presidential election—in connection with an improper Presidential immunity filing that has no basis in criminal procedure or judicial precedent. President Trump maintains his objections, see ECF No. 248, based on overt and inappropriate election interference, violations of longstanding DOJ policy, the Office’s previous safety-related representations in this District and the Southern District of Florida, grand jury secrecy, and the influence on potential witnesses and jurors of prejudicial pretrial publicity—which predictably followed from the filing of the redacted “Motion for Immunity Determinations.”2
2 See, e.g., Ellie Honig, Jack Smith’s October Cheap Shot, N.Y. Magazine (Oct. 3, 2024), https://nymag.com/intelligencer/article/jack-smith-october-surprise-donald-trump.html; see also Jack Goldsmith, Jack Smith Owes Us an Explanation, N.Y. Times (Oct. 9, 2024), https://www.nytimes.com/2024/10/09/opinion/jack-smith-trump-biden.html.
Given that she again got no specific objections to the redactions Jack Smith opposed, Judge Chutkan approved the posting of the appendix (which must be about 1500 pages).
Defendant has now filed an opposition objecting to unsealing any part of the Appendix. ECF No. 259. As in his previous filing, he identifies no specific substantive objections to particular proposed redactions. Instead, Defendant “maintains his objections” to any “further disclosures at this time” for the same reasons he opposed unsealing the Motion, and he requests that “[i]f the Court decides to release additional information relating to the Office’s filing, in the Appendix or otherwise, . . . that the Court stay that determination for a reasonable period of time so that [he] can evaluate litigation options relating to the decision.” Id. at 1–2. For the same reasons set forth in its decision with respect to the Motion, ECF No. 251, the court determines that the Government’s proposed redactions to the Appendix are appropriate, and that Defendant’s blanket objections to further unsealing are without merit. As the court has stated previously, “Defendant’s concern with the political consequences of these proceedings” is not a cognizable legal prejudice. Id. at 4–5.
Accordingly, the Government’s Motion for Leave to File to Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket, ECF No. 246, is GRANTED with respect to the Government’s proposed redacted version of the Appendix to the Government’s Motion for Immunity Determinations.
But she gave Trump a week to — as he described — “evaluate litigation options.”
The court will grant Defendant’s request for a stay so that he can “evaluate litigation options,” ECF No. 259 at 2, and hereby STAYS this decision for seven days.
I await the opinion of smart lawyers. But Judge Chutkan seems to be engaged in a bit of judicial rope-a-dope. The most obvious legal option Trump has is an Emergency Temporary Restraining Order against posting the appendix, but he has just foregone two opportunities to make specific objections. He would face an even bigger problem if he tried to get a writ of mandamus against Judge Chutkan, partly because he did have alternative recourse (specific objections) and partly because she’s literally doing what SCOTUS told her to do.
We shall see. For the moment, though, Trump seems poised to draw more attention to what was largely a restatement of what we already knew.
More on Jack Smith’s Immunity Filing
Harry Litman was kind enough to invite me onto Talking Feds yesterday to go over Jack Smith’s immunity document.
Bombshell “New[s]:” Jack Smith DID Consult about Timing before Adopting Post-SCOTUS Path
After I wrote this post laying out that Elie Honig was not only wrong about Jack Smith’s immunity briefing, but that it was very likely DOJ had decided not to take certain steps in August because of the election, I thought about sending the post to Jack Goldsmith, because he tends to make claims about Jack Smith violating DOJ guidelines with little understanding of the facts.
Whereas Honig dedicated just one paragraph to asserting that the problem here lay in “new” disclosures,
The immediate takeaway lies in the revelations contained in Smith’s oversize brief. (He asked the judge for, and received, permission to file a brief that was 180 pages long, four times the normal maximum.) We now have damning new details on Trump’s effort to pressure Vice-President Mike Pence to throw the election his way, Trump’s phone use and use of Twitter as the riot unfolded, and his conversations with family members about efforts to contest his electoral loss. The story’s structure is the same as we’ve long known, but the new details lend depth and dimension.
Goldsmith repeated his claim that there were “new” disclosures in Jack Smith’s immunity filing four times, starting in the lead paragraph.
Last week a judge unsealed a 165-page legal brief with damaging new revelations about President Donald Trump’s efforts to overturn the 2020 presidential election.
[snip]
The brief he filed last week sought to show that the election prosecution can continue despite the Supreme Court’s immunity ruling. It laid out the government’s case against Mr. Trump with what many media reports described as “bombshell” new details about his wrongdoing. The filing is in clear tension with the Justice Department’s 60-day rule, which the department inspector general has described as a “longstanding department practice of delaying overt investigative steps or disclosures that could impact an election” within 60 days of an election. However, the “rule” is unwritten and, as the inspector general made clear, has an uncertain scope.
[snip]
Perhaps the department thinks the new disclosures are marginal and won’t affect the election, or that the rule does not apply to litigation steps in previously indicted cases, even if they would affect the election.
[snip]
Because it didn’t need to disclose the new details now, and because it was foreseeable that the disclosures would cause approximately half the country to suspect the department’s motives, it is hard to understand any reason to go forward this close to the election other than to influence it — a motive that would clearly violate department policy.
New new new new.
Bombshell!
I’ll note, I was not among the allegedly “many media reports” that declared I had found “‘bombshell’ new details.” Nor was Brandi Buchman, in her new gig at HuffPo. Nor were Politico’s Kyle Cheney and Josh Gerstein. While a subhed of the WaPo story on the brief promised “new” details, the story itself describes that we knew most of this before.
Much of the evidence against Trump in the case had already become public, either through previous filings, news reports or an extensive congressional investigation into the events of Jan. 6.
Tellingly, while NYT devoted a section of their four takeaways piece to “new” evidence, they specifically said none of this was “game-changing.”
The prosecutor revealed new evidence.
The brief contained far more detail than the indictment and included many specific allegations that were not previously part of the public record of the events leading up to the attack on the Capitol by a mob of Trump supporters on Jan. 6, 2021.
None of the new details were game-changing revelations, but they add further texture to the available history. For example, part of the brief focuses on a social media post that Mr. Trump sent on the afternoon of the attack on the Capitol, telling supporters that Vice President Mike Pence had let them all down.
Mr. Trump was sitting alone in the dining room off the Oval Office at the time. According to the brief, forensic data shows he was using the Twitter app on his phone and watching Fox News. Fox had just interviewed a man who was frustrated that Mr. Pence was not blocking the certification and then reported that a police officer may have been injured and the protesters had breached the Capitol.
Mr. Trump posted to Twitter that Mr. Pence had lacked the “courage” to do what was right. The mob became enraged at the vice president, and the Secret Service took him to a secure location. An aide to Mr. Trump rushed in to alert him to the peril Mr. Pence was in, but Mr. Trump looked at the aide and said only, “So what?” according to the brief. [my emphasis]
And much of this isn’t new.
We learned prosecutors were going to rely on forensic data from an expert notice submitted in December. The original indictment revealed that Trump was alone in his dining room when he sent the Tweet targeting Mike Pence. The superseding indictment added to the existing description in the original indictment that Trump was “watch[ing] events unfold” that his TV was showing “live coverage.” If you couldn’t already guess that meant he was watching Fox News, the January 6 Committee told us that in hearings and their final report. The actual content shown on Fox News at that moment is new to court filings, but it is publicly available. The Tweet itself, of course, has been discussed in detail starting from Trump’s impeachment. The Nick Luna comment, “So what?”, is new, but simply a better sourced version of Cassidy Hutchinson’s far more damning hearsay testimony of Mark Meadows telling Pat Cipollone that Trump thought Pence “deserves it” even as his supporters chanted “hang Mike Pence.”
The CNN piece that Honig linked to substantiate his claim this was new described that the filing provided “fullest picture yet of [Jack Smith’s] 2020 election case,” not that these were bombshells. It described “new” details to include:
Trump’s frayed relationship with former Vice President Mike Pence; FBI evidence of Trump’s phone usage on January 6, 2021, when rioters overtook the US Capitol; and conversations with family members and others where the then-president was fighting his loss to Joe Biden.
Those details of Trump’s phone usage — as I noted above — were actually covered in earlier filings and even the indictments. The one new attribution to a conversation with Trump’s family members — the “fight like hell” claim — is important mostly because it echoed the very public exhortation in the January 6 speech we all saw four years ago. And virtually all the references in the brief about Trump’s frayed relationship with Pence are parallel sourced to Mike Pence’s book, published years ago.
What Goldsmith cites instead of the NYT, where his op-ed was published (which, many people complained, didn’t play up the brief enough), was this ABC story. It promises stuff that is new, but then lists a bunch of stuff we knew already.
Special counsel Jack Smith has outlined new details of former President Donald Trump and his allies’ sweeping and “increasingly desperate” efforts to overturn his 2020 election loss, in a blockbuster court filing Wednesday aimed at defending Smith’s prosecution of Trump following the Supreme Court’s July immunity ruling.
Trump intentionally lied to the public, state election officials, and his own vice president in an effort to cling to power after losing the election, while privately describing some of the claims of election fraud as “crazy,” prosecutors alleged in the 165-page filing.
And it doesn’t substantiate its claims that this stuff is new.
For example, the immunity filing explains how prosecutors know that Trump called Sidney Powell “crazy:” after Tucker Carlson ripped her to shreds, Trump let Dan Scavino and P7 — who may be Hope Hicks — listen to a conversation with Powell on speakerphone while he mocked her. That he called her crazy was included in the original indictment’s description of Powell.
One other thing some blow-ins to this story claimed was new — Mike Roman’s instruction to “Make them riot” — was also something already revealed in a December filing.
What Honig and Goldsmith are all worked up about is not new news, but editors who, trying to hype stories about this filing, felt the need to oversell the amount of new news in it.
Their concern arises out of click-bait, not the substance of the immunity filing itself.
And from that, Goldsmith scolds that Smith should have justified filing this brief in response to an order from Judge Chutkan.
[T]he department has not publicly justified its actions in the election prosecution, and its failure to do so in this highest-of-stakes context is a mistake.
Only, even Goldsmith’s claim that the department didn’t justify its actions is not entirely accurate.
Jack Smith hasn’t told us what internal DOJ deliberations were. But he did publicly reveal that before he did anything in the wake of the SCOTUS remand, he spent most of a month “consult[ing] with other Department of Justice components” regarding DOJ “rules, regulations … and policies” about “the most appropriate schedule” moving forward.
The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.
DOJ is never going to reveal these deliberations (and Jack Goldsmith knows that better than most, given the number of far more important internal deliberations involving Goldsmith himself, dating to two decades ago, that we’ve never been allowed to and won’t ever be allowed to see).
But they did tell us they engaged in them. Jack Smith literally told us that he was spending weeks consulting about how to comply with DOJ policies regarding timing even before he superseded the indictment.
Only that detail — the one that they keep harping about — appears to be news to Honig and Goldsmith.
So chalk this up to yet another instance where the people complaining about what Jack Smith did, instead, only reveal they don’t know what Jack Smith did.
Update: Trump submitted, under seal, another request not to have any evidence released before the election. It cites both Honig and Goldsmith. Neither, of course, address the point Trump claims to be making.
President Trump maintains his objections, see ECF No. 248, based on overt and inappropriate election interference, violations of longstanding DOJ policy, the Office’s previous safety-related representations in this District and the Southern District of Florida, grand jury secrecy, and the influence on potential witnesses and jurors of prejudicial pretrial publicity—which predictably followed from the filing of the redacted “Motion for Immunity Determinations.”2
2 See, e.g., Ellie Honig, Jack Smith’s October Cheap Shot, N.Y. Magazine (Oct. 3, 2024), https://nymag.com/intelligencer/article/jack-smith-october-surprise-donald-trump.html; see also Jack Goldsmith, Jack Smith Owes Us an Explanation, N.Y. Times (Oct. 9, 2024), https://www.nytimes.com/2024/10/09/opinion/jack-smith-trump-biden.html.
Trump’s deadline to submit objections to Jack Smith’s proposed redactions is today at 5PM ET. Last time, when Trump made no substantive suggestions, Judge Chutkan released the file.
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How Jack Smith Wants to Prove Trump’s Crimes
It goes too far to say, as some commentators have, that Jack Smith’s immunity filing is his trial brief.
If this thing were ever to go to trial, such a document would focus more on the elements of the offense that Judge Chutkan would have jurors assess, which I laid out here. While there’s extensive discussion of the Electoral Count Act, particularly regarding the intentional exclusion of the President from it, there’s less discussion of how Trump’s lies impaired its function, the crime charged under 18 USC 371. While there’s a discussion of the intent behind the fake electors plot, there’s less discussion of how those fake certificates served to impair the function of counting the real certificates (a point Trump made in his post-Fischer supplement to his motion to dismiss the indictment on statutory grounds), something that would be key to proving the two 18 USC 1512 charges. There’s little discussion of the victims — 81 million Joe Biden voters — whose rights Donald Trump allegedly attempted to violate in the 18 USC 241 charge.
Jack Smith is not exactly telling us how he’d prove his case. Rather, he’s asking for permission to use certain kinds of evidence to do so.
There’s no telling how SCOTUS will respond to this (I’m particularly interested in the tactical decision to call the Brooks Brothers Riot, “a violent effort to stop the vote count in Florida after the 2000 presidential election,” in a filing that aims to persuade John Roberts, Brett Kavanaugh, and Amy Coney Barrett.) Prosecutors have raised the cost for Roberts et al, by laying out that their immunity argument basically argues that it is the job of the President of the United States to send mean Tweets eliciting violent threats against members of his own party.
Now that Trump got permission to submit a sur-reply, his team is likely to frame this entire argument anew, as they wanted to do from the start. Given what they’ve said, I would assume their 180-page brief will focus extensively on the chilling effect it would have to hold a former President accountable for almost getting his Vice President killed. Once they prove that, Trump’s lawyers have argued, the entire indictment must be scrapped, because grand jurors were exposed to immunized behavior.
On that point: It seems that the brief relies on immunized conduct that was not shared with the grand jury. This appears most obvious in the footnote where the government says that part of a conversation Mike Pence had with Trump on December 19 is official conduct, but they don’t plan to share it with jurors. A more interesting instance, however, is the reliance on Pat Cipollone’s testimony that, after he showed up to the January 4 meeting at which John Eastman attempted to persuade Pence to throw out legal votes, Trump “explicitly excluded him from” the meeting. Under SCOTUS’ guidelines, that conversation presumably shouldn’t have been presented to grand jurors, but it is powerful evidence that the January 4 meeting was not official business.
The most notable new evidence in the filing is another example. Minutes after Trump sent the Tweet targeting Pence during the riot, the brief describes, Person 15 (Nick Luna), rushed into Trump’s dining room to tell him that Pence had been taken to safety, only for Trump to respond, “So what?” Prosecutors are only using that evidence, they explain, to contextualize the Tweet Trump had just sent, to make it clear it was a private Tweet. “The defendant further revealed the private nature of his desperate conduct as a candidate, rather than a President, in an exchange (that the Government does not plan to use at trial) he had with aide P15 shortly after the 2:24 p.m. Tweet.” Luna probably alerted Trump imagining he might take official action to protect his Vice President, so this would be an official act. Jurors will never hear that testimony, but we get to, as do John Roberts and his colleagues.
Mike Pence
Caveating that I expect Trump to throw the kitchen sink at the Pence issue, I think Smith does fairly well rebutting the presumption of immunity in Trump’s communications with Pence. That analysis relies heavily on the deliberate exclusion of the President from tallying the vote, supporting a conclusion that “it is difficult to imagine an occasion when a President would have any valid reason to try to influence” the certification of the vote (meaning relying on Trump’s discussions with Pence wouldn’t chill valid Presidential communications). It also relies heavily on Blassingame’s holding — one not explicitly adopted in SCOTUS’ immunity ruling — that a candidate for re-election is not entitled to presidential immunity. So, the filing argues, any discussions that Trump and Pence had about their re-election bid (the filing lists nine here) are not official.
[T]he Government intends to introduce evidence of private phone calls or in-person meetings (which occasionally included Campaign staff) that the defendant had with Pence in their unofficial capacities, as running mates in the post-election period.
[snip]
Pence “tried to encourage” the defendant “as a friend,” when news networks projected Biden as the winner of the election; on other occasions, softly suggested the defendant “recognize [the] process is over” even if he was unwilling to concede; and encouraged the defendant to consider running for election again in 2024. Although the defendant and Pence naturally may have touched upon arguably official responsibilities that were tangential to their election prospects—for instance, whether the federal government should begin its logistical transition to prepare for a different Administration°°’—the overall context and content of the conversations demonstrate that they were primarily frank exchanges between two candidates on a shared ticket, and the Government does not intend to elicit testimony about any peripheral discussion of arguably official responsibilities.
Another thing prosecutors did is engage in a system of parallel citation, often citing what must be interview or grand jury transcripts along with passages from Pence’s book.
The brief doesn’t ever mention footnote 3, in which Chief Justice John Roberts, in an attempt to dismiss Justice Barrett’s concerns that excluding officially immune evidence would make it impossible to prosecute the bribery specifically mentioned in the Constitution, said that of course prosecutors could rely on “the public record.” (See Anna Bowers’ good piece on the footnote here.)
3 JUSTICE BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at 6 (opinion concurring in part); cf. post, at 25–27 (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U. S. C. §201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U. S., at 745, 756 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896)); see supra, at 18. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U. S. 786, 805 (2020)
For much of the Pence testimony on which prosecutors want to rely, that parallel system of citation makes clear, there is a public record, and was — even excerpted in the WSJ — months before prosecutors interviewed Pence. Again, prosecutors aren’t making the argument that that should change the calculus. But ultimately, this is an instance where one key victim of Trump’s alleged crimes went public even before prosecutors asked for his testimony.
I actually think where Jack Smith’s bid may fail is with three others: Eric Herschmann (Person 9), Dan Scavino (Person 45), and Stephen Miller (who — best as I can tell — is not mentioned).
Eric Herschmann
If possible, Smith’s prosecutors rely even more heavily on Eric Herschmann’s testimony than the January 6 Committee did. The immunity brief uses his testimony to prove that Trump knew his claims of election fraud were false. It uses Herschmann’s prediction that Trump would never have to pay Rudy for his election interference because Rudy would never be able to prove his claims. It relies on Herschmann’s testimony (and that of another White House staffer) to describe how Trump mocked Sidney Powell even while relying on her false claims. It relies on Herschmann’s testimony about Trump possibly signing a false declaration in a Georgia lawsuit. And it relies on Herschmann to introduce the evidence presented by paid vendors that there was no evidence of substantive election fraud.
The filing includes two long sections (one, two) explaining why Herschmann’s testimony shouldn’t be considered official actions. Herschmann’s relationship with Trump was familial, arising from his childhood friendship with Jared. His portfolio at the White House was undefined. Prosecutors get around the possibility that Herschmann’s testimony might be official by describing his role as a “conduit for information from the Campaign,” providing “near-daily” updates on the campaign. If this argument fails, then a great deal of prosecutors’ best evidence would disappear.
Dan Scavino
Dan Scavino’s testimony is just as critical. Prosecutors want to use Scavino to introduce Trump’s Twitter addiction and to validate that some Tweets — including the one targeting Pence — were sent by Trump.
P45 served as Assistant to the President and White House Deputy Chief of Staff.694 He also volunteered his time for Campaign work, including traveling to political rallies with the defendant and posting pictures and videos.695 The Government will elicit from P45 at trial that he was the only person other than the defendant with the ability to post to the defendant’s Twitter account, that he sent tweets only at the defendant’s express direction, and that P45 did not send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021.696 He also will generally describe the defendant’s Twitter knowledge and habits, including that the defendant was “very active on his Twitter account,” “paid attention to how his tweets played with his followers,” “was very engaged in watching the news,” and “knew how to read the replies and see all the replies of what people were saying and doing which . . . led to where he would retweet things,” and that any Tweet sent “between 5 or 6 a.m. until 9 or 10 a.m.” and after “9 or 10 p.m.” generally was the defendant personally sending out the Tweet, as opposed to P45 having do it. None of this proposed testimony on P45’s part constitutes evidence of an official act. General information about access to the defendant’s Twitter account, as well as P45’s testimony that P45 did or did not issue a particular Tweet, is unrelated to any particular official act by the defendant.
They also want to use Scavino, along with Herschmann and Nick Luna, to testify that Trump was sitting alone in his dining room obsessing about Fox News coverage on January 6.
The filing treats actions by the White House Deputy Chief of Staff as unofficial, in part, by noting that Scavino “volunteered” for the campaign while working as Deputy Chief of Staff and that “he did not differentiate between his official and his Campaign duties and when he would send Tweets on the account for Campaign purposes.” Like Herschmann, Scavino got White House Counsel advice about how to play both a White House and a campaign role. The filing tries to finagle this by distinguishing between Trump’s @POTUS and his @RealDonaldTrump Twitter accounts.
But ultimately, Scavino would be one of the most hostile witnesses at trial, or in any kind of evidentiary hearing (along with Jason Miller). Prosecutors are resting a whole bunch on what even they admit is a vague border between campaign and official Tweeting.
Stephen Miller
Then there’s Stephen Miller, Trump’s Discount Goebbels.
As far as I know, Miller is not mentioned in this brief at all.
That poses a bit of a potential weak point in prosecutors’ effort to rely on Trump’s January 6 speech treated as a campaign speech (which they otherwise do by matching it to a clear campaign speech given in Georgia two days earlier, focusing on who paid for the rally, noting that Secret Service did not consider it an official event, and observing that Trump walked in and out to Lee Greenwood and YMCA rather than Hail to the Chief).
That’s because — as the January 6 Committee Report describes — Miller was intimately involved in adding attacks on Pence back into the speech after the Vice President refused Trump’s demands a final time.
Instead, between 9:52 a.m. and 10:18 a.m., the President spoke with hisspeechwriter, Stephen Miller, about the words he would deliver at the SaveAmerica Rally just hours later.30 The former President’s speech had come together over the course of 36 hours, going from a screed aimed at encouraging congressional objections to one that would ultimately incite mob violence.31
Only four minutes after the call concluded, at 10:22 a.m., Miller emailedrevisions to the speechwriters, instructing them to “[s]tart inputting thesechanges asap” that included “red highlights marking POTUS edits.”32 ThePresident had made some cosmetic additions, like peppering in the word“corrupt” throughout,33 but there was one substantive edit—a new target—that would focus the crowd’s anger on one man.
None of the preceding drafts mentioned Vice President Pence whatsoever. But now, at the very last minute, President Trump slipped in the following sentences calling the Vice President out by name:
Today, we will see whether Republicans stand strong for the integrity of our elections. And we will see whether Mike Pence enters history as a truly great and courageous leader. All he has to do is refer the illegally-submitted electoral votes back to the states that were given false and fraudulent information where they want to recertify. With only 3 of the 7 states in question we win and become President and have the power of the veto.34
[snip]
As recounted in Chapter 5, President Trump called Vice President Penceat 11:17 a.m.39 The call between the two men—during which the President soon grew “frustrat[ed] or heated,”40 visibly upset,41 and “angry”42—lasted nearly 20 minutes.43 And President Trump insulted Vice President Pence when he refused to obstruct or delay the joint session.
After that call, General Keith Kellogg said that the people in the roomimmediately went back to editing the Ellipse speech.44 At 11:30 a.m., Miller emailed his assistant, Robert Gabriel, with no text in the body but the subject line: “insert—stand by for phone call.”45 At 11:33 a.m., Gabriel emailed the speechwriting team: “REINSERT THE MIKE PENCE LINES. Confirmreceipt.”46 One minute later, speechwriter Ross Worthington confirmed that he had reached Vincent Haley by phone.47 Haley corroborated that he added one “tough sentence about the Vice President” while he was at the teleprompter.48
The final written draft had the following Pence reference: “And we will see whether Mike Pence enters history as a truly great and courageous leader.”49 Haley wasn’t confident that line was what he reinserted, but email traffic and teleprompter drafts produced by the National Archives andRecords Administration (NARA) indicate that he was mistaken.50
Here’s how that process appears in the immunity brief:
At 11:15 am., shortly before traveling to the Ellipse to speak to his supporters, the defendant called Pence and made one last attempt to induce him to act unlawfully in the upcoming session.410 When Pence again refused, and told the defendant that he intended to make a statement to Congress before the certification proceeding confirming that he lacked the authority to do what the defendant wanted, the defendant was incensed.411 He decided to re-insert into his Campaign speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the certification.412
Admittedly, in the section that specifically argues for the speech’s treatment as a campaign speech, the filing describes that most staffers were using their personal emails to edit the speech (the brief uses this distinction elsewhere, including to admit communications from Mark Meadows). But not the final revisions.
Likewise, the defendant’s White House speechwriting staff understood that the speech was a political, unofficial one and used their personal devices and personal email accounts to do most of the drafting and fact-checking for the defendant’s Ellipse speech, though some last revisions to the speech on the morning of January 6 occurred over White House email.585 And officials in the White House Counsel’s Office who customarily reviewed the defendant’s official remarks pointedly did not review the Ellipse speech because it was an unofficial Campaign speech.586
This may not doom prosecutors’ efforts to admit the speech. There are so many other reasons why it is clearly a campaign speech (though of course, SCOTUS has not adopted Blassingame, so they may not even find that dispositive).
But Stephen Miller is right there in the middle of the speech revisions, ready to claim he did so as an official White House employee.
Mind you, if Trump tried to make that argument, prosecutors might revert to the same thing they did to rely on the Tweet Peter Navarro sent, lying about vote fraud, which Trump then used to pitch January 6. Navarro was a Hatch Act recidivist — Trump’s entire White House was — so you can’t use the fact that Navarro had a White House job to rule that his Tweet was an official act.
In tum, that Tweet linked to a document drafted by P69. P69 that had nothing to do with P69’s official duties as a White House trade advisor, but rather constituted unofficial political activity by a Campaign volunteer who the Office of Special Counsel already had determined to have violated the Hatch Act on numerous occasions by attacking the defendant’s opponent during the lead up to the 2020 presidential election.633 For the reasons described supra pp. 118-126 that make clear that the Ellipse rally was a private event, and the defendant’s remarks there unofficial, his Tweets as a candidate promoting the event were unofficial.
Now’s a good time to reveal that Navarro got a second extension on his deadline to file for cert at SCOTUS, partly because Magistrate Michael Harvey has not yet finished reviewing the emails he sent via ProtonMail for Presidential Records is not yet done. Or, to put it differently, Jack Smith likely still doesn’t have all the emails via which Navarro participated in this coup attempt.
If SCOTUS had any shame, this nitty gritty — the notion that Trump’s mean Tweets against fellow Republicans might be protected under a claim of presidential immunity — would soon become embarrassing.
But then I remember that the three Justices who would be most amenable to such an argument might well grow defensive after being reminded that they were present at the start of all this, the effort to shut down vote counts via lawfare accompanied by the threat of violence.
Update: Lawfare has posted their version of this post. They also point to footnote 3 in the context of Mike Pence’s book.
Update: Note that the December 14 podcast cited in the immunity brief laid out in this post was an interview about the fake elector plot with Stephen Miller. It’s another area where Miller is in the thick of things.
John Roberts’ Sordid Legacy: 14 Pages of Mean Tweets
“One of the ways Trump” disseminated false claims of election fraud, Jack Smith’s immunity briefing describes, “was by Tweet, day in and day out.”
I’m still wading through Jack Smith’s immunity briefing. Later today, I plan to explain how we got here and how Trump’s lawyers will try to bury it. Then I’ll show the substance of their argument, how prosecutors plan to convict Donald Trump for attempting to steal an election without using any evidence that Chief Justice John Roberts has deemed official and therefore immune.
But first I want to talk about an utterly remarkable passage in the filing: 14 pages examining Trump’s mean tweets.
As I’ll explain in more detail later, the filing first lays out, in Part I, what evidence prosecutors plan to rely on, then sets up a legal framework to conduct this analysis, and then explains, in Part III, why the evidence laid out in the first part is not immune.
In Part III, prosecutors go both by type of evidence (for example, conversations with Republican state officials and politicians) to explain why such conduct is not immune. The section looks like this:
- Trump’s interactions with Pence
- Trump’s interactions with Pence were official, but presumption of immunity is overcome
- Trump’s interactions with Pence as a running mate were unofficial
- Trump’s interactions with officials from swing states
- The interactions were unofficial (followed by five instances)
- Even if they were official, the government can rebut the presumption of immunity
- Trump’s efforts to organize fake electors
- The effort was unofficial
- Even if it was official, the government can rebut the presumption of immunity
- Trump’s public speeches and tweets as a candidate
- The statements were unofficial
- Speeches (with analysis of the two prosecutors want to use, one in Georgia and the January 6 one)
- Tweets
- Other public statements
- Parts of Trump’s statements that are official can be excised
- The statements were unofficial
- Trump’s interactions with White House staff (including Eric Herschmann, Dan Scavino, Molly Michaels, and two others)
- The interactions were unofficial
- The government could rebut any presumption of immunity
- Other evidence of knowledge and intent
- The evidence was unofficial
- Federal officials (including Bill Barr and Chris Krebs)
- Evidence about Trump’s use of Twitter
- Trump’s post-Administration statements
- Even if it were official, the government could rebut any presumption of immunity
- The evidence was unofficial
This section takes up 75 pages of the brief.
Of that, 18 pages are dedicated to analysis about Trump’s Tweets (not including the additional pages describing how they plan to explain Trump’s Twitter habits). Fourteen of those pages go through Trump’s manic Tweets from the period, each time explaining why such Tweets should not be viewed as the official acts of the President of the United States.
The section describes six ways Trump’s Twitter habit served his coup attempt:
- Casting doubt on election integrity
- Making false claims of election fraud
- Attacking Republicans who speak the truth about the election
- Al Schmidt
- Chris Krebs
- Rusty Bowers and four Pennsylvania State GOP legislators
- Wisconsin Supreme Court Justice Brian Hagedorn
- Chris Carr
- Governor Doug Ducey, Governor Brian Kemp, and Secretary of State Brad Raffensperger
- Exhorting people to come to January 6
- Pressuring Mike Pence
- Almost getting Mike Pence killed
Prosecutors don’t include all the attacks Trump made on Twitter — for example, while Section I describes his attacks on Shaye Moss and Ruby Freeman, prosecutors don’t include them in the immunity analysis. The immunity analysis instead focuses only on the people with whom, Trump might argue, he was engaged in official business by ginning up death threats against them.
John Roberts not only rewrote the Constitution to protect Donald Trump. He forced prosecutors to spend 14 pages arguing that it is not among the job duties of the President of the United States to attack Republicans who’ve crossed him on Twitter.
This is what the Chief Justice wants to protect. This is the all-powerful President John Roberts wants to have. Someone who can sit in his dining room siccing mobs on fellow Republicans.
Who knows whether it will work? Who knows whether these right wing Justices will go that far — to argue that even the President’s mean Tweets targeting members of his own party must be protected from any accountability?
But prosecutors personalized it.
As noted above, the 14 pages analyzing mean Tweets follows the analysis of two rally speeches, in which prosecutors first show the January 4 Georgia speech was a campaign event, and then (among other things) lay out the similarity between that speech and Trump’s January 6 one.
Among the things Trump included in both speeches was an attack on the Supreme Court:
The defendant, who in his capacity as a candidate had suffered personal legal defeats in his private, election-related litigation at the Supreme Court, attacked it (Dalton at GA 1095; “I’m not happy with the Supreme Court. They are not stepping up to the plate. They’re not stepping up.” Ellipse at GA 1125: “I’m not happy with the Supreme Court. They love to rule against me.”).
Of course, the Justices can’t view that as an official act. It would be anathema to the very principles of separation of powers the Justices claim to be guarding. Plus (as noted here and elsewhere), Trump had specifically labeled his intervention in Ken Paxton’s lawsuit as done in his personal capacity. But building off how obviously unofficial this attack on John Roberts and his buddies is, it makes it all the more obvious that Donald Trump’s mean Tweets aren’t official acts either.
Though the inclusion of Trump’s attacks on them also might get these partisan hacks to think more seriously about the nearly identical exhortations Trump made on Truth Social before they decided to rewrite the Constitution in his favor.
Update: Fixed where I said that Trump intervened in Ken Paxton’s lawsuit in his official capacity–he specifically said he did so in his personal capacity as a candidate.