DOJ filing details why Trump is not immune from election subversion case

WASHINGTON – A 165-page filing from Justice Department special counsel Jack Smith released Wednesday lays out the election subversion allegations against Donald Trump in new detail to argue the former president doesn't deserve immunity from criminal charges because his conduct was for private gain rather than duty of public office.

"Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one," Smith wrote. "Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted ? a function in which the defendant, as President, had no official role."

"When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office," the filing added.

The filing is the opening salvo for U.S. District Judge Tanya Chutkan to decide whether Trump is immune to charges for conduct while he was president. While there won’t be a trial or probably even a hearing on the evidence until after the Nov. 5 election, the filing provided the most detailed explanation so far of the case against Trump.

Trump’s lawyers opposed having prosecutors file such a lengthy set of unanswered allegations – quadruple the length of typical filings – as a “monstrosity" and a “false hit piece.”

But prosecutors argued the Supreme Court directed Chutkan to make a fact-based decision about whether Trump can be charged and she agreed to consider it.

Chutkan ruled the debate over evidence “is simply how litigation works.”

What are the charges against Trump?

Trump faces four charges of conspiring to overturn the election and obstructing Congress in counting Electoral College votes on Jan. 6, 2021. He has pleaded not guilty.

The Supreme Court ruled July 1 that former presidents are shielded from charges for conduct at the core of their office, such as pardons and vetoes, and presumptively immune to charges for other official duties. But former presidents are not immune for private conduct, which prosecutors contend Trump was doing in electioneering to stay in office.

What does Jack Smith's outline of the case say?

Smith alleged Trump's "increasingly desperate" criminal conduct included lying to state officials in seven states, to induce them to ignore true vote counts; manufacturing fraudulent electoral votes in targeted states; trying to enlist Vice President Mike Pence to obstruct the certification of the election on Jan. 6, 2021; and directing an angry mob to the Capitol that day.

One example featured Trump’s claims of non-citizen voters in Arizona, which began with the allegation of 36,000, five days later rose to 50,000 and eventually about 250,000, all of which were false figures “that they never verified or corroborated,” Smith wrote.

“The throughline of these efforts was deceit: the defendant’s and co-conspirators’ knowingly false claims of election fraud,” Smith wrote.

Names of co-conspirators and private agents Trump allegedly relied upon to conduct the conspiracy were blacked out in the filing.

As votes were counted, Trump allies scrambled to “sow confusion,” but they were aware Biden had won contested states, according to Smith. At the TCF Center in Detroit, one Trump ally told a colleague a batch of votes for Biden was “right.” The colleague said to “find a reason it isn’t.”

Why is former Vice President Mike Pence key to the case?

A key part of the case deals with Pence and his dual role as vice president in the executive branch and Senate president in the legislative branch. Trump pressured Pence to recognize Republican presidential electors from states that Democratic President Joe Biden won, while presiding over the counting of Electoral College votes.

The court ruled that allegations about Trump’s interactions with Pence “present more difficult questions.” The 6-3 majority ruled that vice presidents presiding over the Senate are not functioning as part of the executive branch. But the majority refused to conclude that Trump lacked immunity for attempts to enlist Pence to use his ceremonial role “to fraudulently alter the election results.”

Trump has argued his communications with Pence were part of their official jobs and shielded from criminal charges. If the Pence material is dropped from the indictment, Trump’s lawyers contend all of the charges should be thrown out.

But prosecutors contend the communications with Pence were about his legislative role and about the election, so they were not official. The filing quotes Trump's posts on social media and in public statements pressuring and criticizing Pence not to certify the election results.

Smith's filing cites meetings between Trump and Pence in November and December 2020. After lawyers gave a pessimistic report about election lawsuits, Pence was quoted as telling Trump Nov. 12: “don’t concede but recognize process is over.” At a private lunch Dec. 21, Pence told Trump “not to look at the election ‘as a loss – just an intermission.’”

Pence opposed a lawsuit by then-Rep. Louis Gohmert, R-Texas, which argued that Pence had the authority to choose electoral votes. On Jan. 1, 2021, Trump called Pence to berate him and say “hundreds of thousands” of people “are gonna hate your guts” and “people are gonna think you’re stupid,” according to Smith’s filing.

"Other than the specific official conduct related to Pence that the Supreme Court held to be official, none of the defendant’s other actions were official," Smith wrote.

Trump lawyers blasted filing as 'monstrosity'

Trump blasted the filing as a politically motivated "hit job" before the election against Democratic presidential nominee Kamala Harris.

"Democrats are Weaponizing the Justice Department against me because they know I am WINNING, and they are desperate to prop up their failing Candidate, Kamala Harris," Trump said in a post on Truth Social. "This is egregious PROSECUTORIAL MISCONDUCT, and should not have been released right before the Election."

Trump lawyers John Lauro and Todd Blanche urged Chutkan not to allow the lengthy filing by arguing it could taint the jury pool and bias potential witnesses. The lawyers also argued the filing could influence the election.

“False, public allegations by the Special Counsel’s Office, presented through a document that has no basis in the traditional criminal justice process, will undoubtedly enter the dialogue around the election,” the lawyers wrote.

But Chutkan ruled that Trump’s team hadn’t explained how the filing would prejudice his case.

Trump has until Oct. 17 to formally reply.

This article originally appeared on USA TODAY: DOJ filing offers details in Donald's Trump election subversion case