According to the filing, Stephen K. Bannon appears to have played a much bigger role in President Donald J. Trump’s attempts to retain the White House in 2020.
Credit...Eze Amos for The New York Times

Filing in Trump Election Case Fleshes Out Roles of a Sprawling Cast

Donald Trump is the only defendant in the special counsel’s case that charges him with a plot to remain in power after his 2020 loss. But a newly unsealed brief provides fresh details about many other figures.

by · NY Times

When the special counsel, Jack Smith, charged former President Donald J. Trump last year with plotting to overturn the 2020 election, the federal indictment filed in Washington had only one defendant: Mr. Trump himself, who stood accused of working with a small team of conspirators.

But in a court filing unsealed on Wednesday, Mr. Smith drew on the actions of a much larger group to tell the tale of how Mr. Trump lost the race but sought to stay in the White House.

He populated his brief with a sprawling cast of characters — lawyers, longtime Trump aides, campaign operatives, even some of the rioters who stormed the Capitol on Jan. 6, 2021 — who all played a supporting role either for or against Mr. Trump’s attempts to cling to power.

Most of them were not named in the 165-page filing, and were referred to only by numeric monikers, though many of their identities could be divined from details in the brief. And the sheer scope of the crew was evidenced by the fact that the anonymized references started with Person 1 and went all the way to Person 71.

Many of them had surfaced in the investigation conducted by the House select committee on Jan. 6 or in criminal proceedings in Georgia and Arizona. But Mr. Smith’s investigation, which gathered evidence and grand jury testimony not available in the other inquiries, was able to weave their stories together with new detail.

Among those characters was Eric Herschmann, a lawyer who had met Mr. Trump through his childhood friend, Jared Kushner, the former president’s son-in-law.

Identified as Person 9 in the brief, Mr. Herschmann started working in the White House as an assistant to the president in August 2020. During the chaotic weeks after Mr. Trump had been defeated, Mr. Herschmann offered what Mr. Smith described as “the unvarnished truth” about the “claims of fraud” that Mr. Trump and his allies were advancing.

Among Mr. Herschmann’s duties, according to the brief, was updating the president “on a near-daily basis” about the campaign’s efforts to support these fraud allegations.

As the brief says, Mr. Herschmann — whose name appears unredacted but slightly misspelled at one point in the document — was aware that two outside consulting firms had looked at and debunked most of the claims. At one point, he warned Mr. Trump that if he brought them into court “they would get slaughtered” because they were “all bullshit.”

Another player whose actions were documented in new detail was Stephen K. Bannon. Mr. Bannon is a longtime Trump adviser who had worked on Mr. Trump’s first campaign in 2016 and, according to Mr. Smith, began to help with his re-election effort in October 2020.

Three days before Election Day, the brief contends, Mr. Bannon — who is identified as Person 1 — told a private gathering of supporters that despite the outcome of the race, Mr. Trump would simply declare victory.

“That doesn’t mean he’s the winner,” Mr. Bannon said. “He’s just going to say he’s the winner.”

Details in the brief about Person 1’s background, including that he hosts a podcast and worked with Mr. Trump’s 2016 campaign, match Mr. Bannon, who is serving a four-month prison sentence for contempt of Congress after refusing to testify to the House Jan. 6 committee.

Mr. Bannon, according to the brief, also seemed to play a role in bringing on the lawyer Rudolph W. Giuliani to spearhead Mr. Trump’s attempts to challenge the results of the election in court.

The brief recounts how in mid-November 2020, Mr. Bannon told one of Mr. Trump’s top aides — likely Boris Epshteyn — that the campaign staff would now report to Mr. Giuliani. He himself, he added, had “made a recommendation” that if Mr. Giuliani “was not in charge, this thing is over.”

Mr. Bannon appears to have played a larger role than was previously known in yet another of the former president’s schemes: the effort to pressure Vice President Mike Pence into blocking or delaying certification of Joseph R. Biden Jr.’s Electoral College victory at the Capitol on Jan. 6.

The brief asserts that Mr. Trump had a conversation with Mr. Bannon a little less than 15 minutes before he called Mr. Pence on Jan. 1.

During that call, Mr. Trump is said in the brief to have told Mr. Pence that if he did not go through with the plans, hundreds of thousands of people were “gonna hate your guts” and were “gonna think you’re stupid.”

The brief also notes that Mr. Bannon helped arrange for Mr. Pence to be briefed by the lawyer John Eastman on how he could swing the election Mr. Trump’s way during the certification proceeding. Moreover, it contends that Mr. Bannon “normalized the unlawful plan” centered on Mr. Pence by talking about it on his podcast, “War Room.”

The filing also provided the richest account yet of interactions between Mr. Trump and Mr. Pence. Mr. Pence refused to testify before the House Jan. 6 committee, but he ultimately was compelled to comply with Mr. Smith’s grand jury inquiry.

The attempts to strong-arm Mr. Pence have been publicly known — they were a focus of both the House investigation and of Mr. Smith’s own indictment. Still, the new filing describes phone calls and meetings between Mr. Trump and Mr. Pence not detailed in the charges during which the two men discussed the race and their joint fate.

The day after the election, for example, Mr. Trump told Mr. Pence that their campaign was going to fight the results in court and directed him to study allegations of voter fraud in states they had won in 2016 but lost in 2020.

Two days after that, Mr. Pence said he tried “as a friend” to buck up Mr. Trump in light of news organizations declaring that they had lost by telling him “you took a dying political party and gave it a new lease on life.”

As the post-election period dragged on, Mr. Pence attended meetings with Mr. Trump at which campaign lawyers gave pessimistic assessments of their legal challenges. Mr. Pence also had conversations with the Republican governors of Arizona and Georgia who said there was no evidence of voting fraud in their states, which the vice president relayed to Mr. Trump.

And in at least three private lunches — on Nov. 12, Nov. 16, and Dec. 21, 2020 — Mr. Pence gently tried to encourage Mr. Trump to accept the results, the brief contends. At one point, it says, Mr. Pence suggested that Mr. Trump should “take a bow” and look at the results not “as a loss — just an intermission” and then run again in the 2024 cycle. But Mr. Trump was not interested.

The former president disregarded “Pence in the same way that he disregarded dozens of court decisions that unanimously rejected his and his allies’ legal claims, and that he disregarded officials in the targeted states — including those in his own party — who stated publicly that he had lost and that his specific fraud allegations were false,” Mr. Smith wrote.

Many others in the former president’s orbit had walk-on roles in Mr. Smith’s brief, including Mr. Trump’s former chief of staff, Mark Meadows (Person 21); Mr. Meadows’ deputy, Dan Scavino (Person 45); Mr. Trump’s adviser Jason Miller (Person 4); and his former attorney general William P. Barr (Person 52).

If Mr. Smith’s filing was in many ways a trial brief, setting forth the most detailed picture yet of how Mr. Trump had sought to disrupt the lawful transfer of power, it also had a much more narrow legal purpose: It was sent to the judge in the case, Tanya S. Chutkan, to help her determine how much of the indictment can survive the Supreme Court’s landmark ruling granting Mr. Trump a broad form of immunity for many official acts he took in office.

It is likely that some or even many of these figures will appear again in Mr. Trump’s response to Mr. Smith, which his lawyers have to submit to Judge Chutkan by Nov. 7, just after Election Day. And for all of the damning revelations in the special counsel’s filing, there could be many intended to be exculpatory in Mr. Trump’s.

His lawyers have, after all, gotten permission to file their brief at the even more capacious length of 180 pages.

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The Events on Jan. 6