When told by an aide that Vice President Mike Pence was in peril as the rioting on Capitol Hill escalated on Jan. 6, 2021, President Donald Trump replied, “So what?”
When one of his lawyers told him that his false claims that the election had been marred by widespread fraud would not hold up in court, Trump responded, “The details don’t matter.”
On a flight with Trump and his family after the election, an Oval Office assistant heard Trump say: “It doesn’t matter if you won or lost the election. You still have to fight like hell.”
Those accounts were among new evidence disclosed in a court filing made public Wednesday in which the special counsel investigating Trump made his case for why the former president is not immune from prosecution on federal charges of plotting to overturn the 2020 election.
Made public by Judge Tanya Chutkan of U.S. District Court in Washington, the 165-page brief was partly redacted but expansive, adding details to the already extensive record of how Trump lost the race but attempted nonetheless to cling to power.
The brief from the prosecution team led by special counsel Jack Smith asserts that there is ample evidence that Trump’s efforts to remain in office were those of a desperate losing candidate rather than official acts of a president that would be considered immune from prosecution under a landmark Supreme Court ruling this summer.
“The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct,” prosecutors wrote. “Not so. Although the defendant was the incumbent president during the charged conspiracies, his scheme was fundamentally a private one.”
The brief was unsealed three months after the Supreme Court’s immunity ruling, less than five weeks from Election Day and one day after Trump’s current running mate, Sen. JD Vance of Ohio, declined during the vice presidential debate to say that Trump had lost in 2020.
Smith’s brief was initially filed under seal last week. It was designed to help Chutkan, who is overseeing the case, determine how much of the indictment can survive the Supreme Court’s landmark ruling in July granting Trump a broad form of immunity against prosecution for many official acts while in office.
The prosecution has essentially been on hold since late last year, when Trump began making the legal argument that he should be immune. Chutkan is now determining how much, if any, of a revised indictment filed by Smith can go forward under the complex standards set by the Supreme Court.
Overall, Smith and his deputies used their brief to paint the indictment’s many individual allegations as fair game for prosecution.
Still, despite its narrow legal purpose, the expansive filing also served as something like a trial brief, setting forth Smith’s fullest exposition yet of what he has learned in his nearly two-year-long investigation of Trump. Chutkan unsealed the redacted version at the request of Smith and his team.
The special counsel’s filing to Chutkan was not unlike the tomelike report issued nearly two years ago by the House select committee that investigated the events leading up to the attack of the Capitol on Jan. 6.
Trump criticized the brief and its release, portraying it as a political act. “They should have never allowed the information to be — to come before the public,” he said in an interview on NewsNation on Wednesday.
The filing described a familiar web of intersecting plots by Trump and his allies. They included efforts to strong-arm state officials to overturn the election results, create false slates of electors claiming that Trump had won key states he actually lost and wage a pressure campaign against his own vice president to throw the election his way during a proceeding to certify its final outcome on Jan. 6.
But the special counsel’s filing also added new details to the portrait of Trump as he scrambled to remain in the White House after losing the election to Joe Biden, culminating in the mob attack on the Capitol.
Part of the brief focuses, for example, on a social media post that Trump sent on the afternoon of the Jan. 6 attack on the Capitol, telling supporters that Pence had let them all down. Smith laid out extensive arguments for why that post on Twitter should merit Trump’s prosecution.
After Trump’s Twitter post focused the enraged mob’s attention on harming Pence and the Secret Service took the vice president to a secure location, an aide rushed into the dining room off the Oval Office where Trump was watching television. The aide alerted him to the developing situation, in the hope that Trump would then take action to ensure Pence’s safety.
Instead, Trump looked at the aide and said only, “So what?” according to the brief.
In insisting that this post was an unofficial act, Smith noted that Trump’s advisers had been urging him to issue a message to quell the violence, but he had refused and instead tweeted about Pence.
“The content of the 2:24 p.m. tweet was not a message sent to address a matter of public concern and ease unrest; it was the message of an angry candidate upon the realization that he would lose power,” Smith wrote.
In the minutes before the tweet, Smith noted, Fox News had shown an interview with a protester marching toward the Capitol and expressing disappointment in Pence. It then reported that a police officer might have been injured and that protesters had broken into the Capitol.
That evidence “shows what social media and news the defendant privately reviewed in service of issuing a private tweet,” prosecutors wrote. “The government will not elicit testimony from the defendant’s staffers about his official deliberations, reactions to social media or television, or official actions taken in response.”
Several times, prosecutors drew a direct line between Trump and his supporters who stormed the Capitol on Jan. 6. The brief describes how one of the attackers went to Washington that day because Trump “told us we had something big to look forward to” and how others wore clothes and carried flags pledging allegiance to him as they broke into the Capitol.
Smith, for the first time, implicated a podcaster and former Trump aide — who is identified in the brief as Person 1 and who resembles Steve Bannon — in the alleged plot to keep Trump in power.
The brief says that Person 1, who has not been charged in the case, played an integral role in the pressure campaign that Trump waged against Pence.
Bannon is serving a four-month prison sentence for contempt of Congress for refusing to testify to the House select committee that investigated Trump’s attempts to retain power.
Smith’s brief also portrayed Trump and some of his allies — like his personal lawyer, Rudy Giuliani — as making wild claims about election fraud in public while other aides close to him doubted the same allegations in private.
In early December 2020, for example, Giuliani appeared at a hearing of state legislators in Georgia and proclaimed that as many 10,000 “dead voters” had cast their ballots in the race.
At that same moment, however, the brief contends, Trump’s chief of staff, Mark Meadows and one of the former president’s lawyers were exchanging text messages doubting the assertion and sharing with each other that only 12 votes in Georgia had been attributed to dead people.
Smith also took readers of his briefs behind closed doors to show how Trump sought to sway state lawmakers to throw the election his way.
His brief, for instance, described a meeting in the Oval Office on Nov. 20, 2020, where Trump tried to convince the two top state lawmakers from Michigan that he had won the election. Joining them at the meeting was Giuliani; Ronna McDaniel, the chair of the Republican National Committee; and, at least for a while, Meadows.
When the lawmakers told Trump that he had lost the election in Michigan because he had underperformed with “educated females,” the brief said, Trump was not pleased.
The lawmaker could tell by Trump’s “body language,” the brief recounts, “that he was not happy to hear” the assessment.
One of the themes that Smith hit upon repeatedly was that top officials close to Trump tried over and over to persuade him to simply concede.
During a private lunch in mid-November 2020, the brief says, Pence suggested to Trump that he should accept defeat and run again in the next presidential race.
But Trump did not want to hear about it.
“I don’t know,” the brief quotes him as saying, “2024 is so far-off.”
This article originally appeared in The New York Times.
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