Four takeaways from Jack Smith’s brief in the Trump election case

The special counsel who has charged former President Donald Trump with a criminal conspiracy over his attempt to overturn his loss of the 2020 election has filed a lengthy brief laying out his key evidence along with an argument for why the case should be able to go forward despite the Supreme Court’s ruling in July on presidential immunity.

Here are some key takeaways from the 165-page brief, which a judge largely unsealed Wednesday:

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 Trump sent on the afternoon of the attack on the Capitol, telling supporters that Vice President Mike Pence had let them all down.

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 Pence was not blocking the certification and then reported that a police officer may have been injured and the protesters had breached the Capitol.

Trump posted to Twitter that 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 Trump rushed in to alert him to the peril Pence was in, but Trump looked at the aide and said only, “So what?” according to the brief.

The prosecutor argued that many acts were not immune.

The brief put forward a series of arguments for why large swaths of evidence should be seen as the unofficial actions of a candidate for office and therefore not subject to the Supreme Court’s ruling that presidents are largely immune from prosecution based on their official actions.

The special counsel, Jack Smith, emphasized that large amounts of the evidence centered on meetings and conversations about the campaign that Trump undertook in his capacity as a candidate seeking office rather than in carrying out his duties as president.

And Smith argued that he should be permitted to call White House aides as witnesses to campaign-related developments, like an Oval Office assistant who said he heard Trump tell his daughter and son-in-law, after the election: “It doesn’t matter if you won or lost the election. You still have to fight like hell.”

The brief called that statement “plainly private” because it was about the election and delivered to family members who had campaigned on Trump’s behalf, Smith argued. “The fact that it was overheard by a White House staffer, does not convert it to an official communication,” the brief said.

The filing came at a politically critical moment.

The trial court proceedings have been largely dormant for nearly a year as the prosecution and the defense fought out the immunity question. But the decision by the judge overseeing the case in U.S. District Court in Washington, Tanya Chutkan, to agree to the prosecution’s request to unseal a redacted version of the brief drew new attention to the allegations against Trump in the closing weeks of a presidential campaign that polls suggest could go either way.

Trump has continued to make baseless accusations about election fraud in 2020. At the vice presidential debate Tuesday night, his running mate, Sen. JD Vance of Ohio, was asked directly if Trump had lost four years ago. Vance dodged. “I’m focused on the future,” he said.

The judge has big decisions ahead.

In much the same way that Smith and his deputies introduced reams of what they believe is incriminating evidence against Trump as they argue that the case can go forward, the former president’s lawyers will soon get to rebut the prosecution’s claims. They will send Chutkan what they view as exculpatory evidence — as well as arguments that various acts should be deemed off limits as immune.

At this point, the defense is facing a deadline of Oct. 17 to file its response to Smith’s brief, but that date could end up being delayed if Trump’s lawyers request more time.

After both sides have filed court papers laying out their opposing views, Chutkan will decide which parts of Trump’s election interference indictment should survive the Supreme Court’s immunity ruling and which parts will have to be thrown out.

Her ultimate decision is likely to be appealed and end up back in front of the Supreme Court, which could have the final say on how much of the indictment can eventually go to trial.