"He has zero, nothing": Legal experts say Trump has "no factual defense" against Jack Smith filing

The evidence in special counsel Jack Smith’s mammoth filing in Donald Trump’s election interference case as “utterly damning,” legal experts told Salon, but the Supreme Court could intervene yet again to aid the former president.

Smith’s much-anticipated filing on Wednesday provided the most complete picture of the case against Trump. The special counsel described Trump’s campaign to overturn the election results as “private” after the Supreme Court shielded him from charges related to the core functions of the presidency.

“He extensively used private actors and his campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office,” Smith wrote, adding that Trump’s actions were part of a quest to “advance his own self-interest and perpetuate himself in power, contrary to the will of the people.”

Although much of the filing covered ground that had already been publicly known, the filing did include new details. For instance, Smith lays out former Trump advisor Steve Bannon’s involvement, including that Trump allegedly spoke to Bannon on Jan. 5, just hours before Bannon predicted that “all hell is going to break loose” the next day.

The filing also describes a push by campaign staffers to “create chaos” at election facilities in places like Philadelphia and Detroit. The filing describes a staffer saying “make them riot” in reference to protesters at a Detroit vote counting center and upon learning that an incoming batch of ballots leaned towards supporting President Joe Biden.

Prosecutors further disclosed that Trump planned to “fight like hell” in the election regardless of the results, with a staffer telling prosecutors that he overheard Trump telling his daughter, Ivanka, and his son-in-law Jared Kuhner that “It doesn’t matter if you won or lost the election. You still have to fight like hell.”

Hofstra University law professor James Sample told Salon that the filing was “thorough, detailed, and — in a world where objective facts mattered — would be utterly damning.” Sample noted, however, that Trump might still find refuge at the Supreme Court, depending on how the court decides to interpret it own ruling on presidential immunity.

“But Trump’s delay tactics, ably assisted by the Supreme Court have thwarted legal justice,” Sample said. “Now only the voters can prevent a scenario in which Smith’s filing is but the prologue to a national Shakespearean tragedy.”

Ty Cobb, a former White House attorney under Trump, agreed that he wasn’t surprised by the strength of the evidence presented and added that the filing confirmed “how powerful the evidentiary record will be of Trump’s crimes and the fact that he has zero, nothing, there is no factual defense.”

“I think the most interesting thing to me is the confirmation of Bannon’s extensive involvement pre-January 6 and over the course of the intense part of Trump’s resistance to the result,” Cobb said. “This is a pleading that is just fact after fact after fact. These are actual emails, actual texts, actual statements, from multiple witnesses, none of whom had incentive to turn on Trump.”

Cobb said that despite Trump being unable to mount a defense based on the evidence, he was sure the case would end up back at the Supreme Court. “I’m not sure that the Supreme Court will agree with Smith that these are all unofficial acts,” he said, noting that, in his opinion, “they could easily torch all the Pence stuff.”

“That makes the case more difficult but I don’t think it kills it,” Cobb said. “They created this mess and it’s up to them to clear it up.”

Bennett Gershamn, a professor of law at Pace University, characterized the behavior described in the filing as “evil, immoral, and criminal” but questioning whether the Supreme Court might rule consider much of Trump’s efforts an official act.

“The upshot of Smith’s extensive report is that Trump clearly knew that he lost the because everybody around him told him he lost, but he nonetheless used every means he could think of to remain in power,” Gershman said. “Applying the Supreme Court ruling, the biggest question is whether Trump was acting as president when he sought to undo the election or was he acting as a candidate for the presidency.”

In terms of new information presented in the filing, Gershman pointed toward details describing the team Trump assembled to overturn the election results.

“I suppose the most relevant new facts in the filing are the multitude of non-governmental private individuals whom Trump by fraud and coercion tried to steam-roll to undo the results of the election,” Gershman said. “Note proof that Trump excluded White House counsel from critical meetings.”

Barbara McQuade, a former attorney for the Eastern District of Michigan, told Salon that, in her mind, there is “no doubt, this case will land in the Supreme Court in its upcoming term.”

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McQuade said that she sees the alleged activity of Trump as “clearly outside the scope of a president’s official duty,” adding that the legal “gray area” likely arises in Trump’s communications with former Vice President Mike Pence.

McQuade noted that “the Supreme Court said that communications between the president and vice president are presumptively official conduct, subject to a rebuttable presumption by the prosecution.”

“Here, the prosecution argues that the two were communicating in their roles as running mates, and not as members of the executive branch,” McQuade said. “That argument makes sense to me, but the Supreme Court may disagree.”

Looming over the entire case is the fact that the prosecution of Trump for his attempt to overturn election results will almost certainly be nixed if he wins the presidential election this year, though it’s not clear whether the revelations from Wednesday’s filing will have any impact on the presidential race.

“The filing is a reminder of why judges and juries so consistently find Mr. Trump guilty and/or liable in case after case: because jurors, unlike the public, can’t choose willful blindness over voluminous evidence,” Sample said. “Tragically, when it comes to Trump, a huge swath of the electorate makes the opposite choice. Which is to say that politically, many of the people who most need to read this document, never will. And legally, if Trump wins the election, he will ensure that no jury ever confronts Smith’s mountain of evidence.”