Federal Judge Unseals Special Counsel’s Immunity Filing in Trump Election Case

(Left) Special Counsel Jack Smith in Washington on Aug. 1, 2023. (Right) Former President Donald Trump in New York City on May 31, 2024. Michael M. Santiago/Getty Images, Alex Wong/Getty Images

District of Columbia Judge Tanya Chutkan on Oct. 2 unsealed an extensive filing that special counsel Jack Smith submitted to dispute the idea that former President Donald Trump is immune from prosecution for his allegedly criminal actions following the 2020 presidential election.

The filing is one of the first steps for the court in determining what remains of the superseding indictment Smith filed after the Supreme Court’s decision in Trump v. United States, which held that presidents enjoy some criminal immunity for official acts.

“Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one,” the 165-page brief from Smith’s team reads.

“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.”

Trump has repeatedly denied any wrongdoing. In a post on Truth Social, Trump described the brief as “falsehood-ridden” and unconstitutional.

Legal Implications

Smith, in his superseding indictment, removed portions of the original indictment related to Trump’s interactions with the Justice Department. Trump’s attorney, John Lauro, suggested during a status conference on the case with Chutkan on Sept. 5 that she could throw out the superseding indictment for not adhering to the Supreme Court’s ruling.

Smith’s motion purports to offer a “comprehensive account of the defendant’s criminal conduct” and requests that the court “determine that the defendant must stand trial for his private crimes as would any other citizen.” It states that under D.C. circuit precedent, Trump didn’t enjoy immunity in his capacity as someone seeking office.

Chutkan ruled against Lauro’s opposition to Smith filing his revised brief after the status conference. In the weeks leading up to the release of the brief, which Trump’s legal team described as “oversized,” meaning it was larger than usual, Lauro also accused Smith of pursuing a “fundamentally unfair” approach.

Trump’s legal team said “the Court should reject them until threshold legal questions identified by the Supreme Court are addressed and discovery is complete.”

In a Sept. 24 opinion, Chutkan disagreed and said she would grant the motion to file an oversized brief, saying that its “atypical sequence and size thus both serve the efficient resolution of immunity issues in this case.”

Smith’s brief maintained that none of the allegations in the indictment were protected by presidential immunity and that “at its core, the defendant’s scheme was a private one.”

The Supreme Court’s immunity ruling set up multiple levels of criminal immunity, with some ambiguity over how the lower court should handle allegations related to former Vice President Mike Pence. More specifically, it held that Trump was presumptively immune for interactions in which the president and vice president discuss their “official responsibilities.”

However, it noted that the government could attempt to “rebut” that presumption and left Chutkan with the task of “[assessing] in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.”

Smith’s brief argued that “because the Executive Branch has no role in the certification proceeding ... prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the Executive Branch’s authority or functioning.”

Smith said he intends to present evidence of conversations between Trump and Pence “in which they did not discuss Pence’s official responsibilities as President of the Senate and instead acted in their private capacities as running mates.”

He said that while some interactions fell within the scope of Pence’s official role, “the rebuttable presumption of immunity is overcome.”

Pence and Jan. 6

Much of the brief outlines an alleged scheme to organize slates of “fraudulent electors,” which Republicans call “alternate electors,” and pressure Pence to not certify the election in his role as president of the U.S. Senate.

It alleges that Trump’s team deceived many individuals, including elector nominees.

“Other electors who participated on the conspirators’ false assurances that their votes were only a contingency were later surprised to learn that they were used on January 6—and would not have agreed to participate if the conspirators had been truthful about their plan,” the briefing reads.

It states that Trump and his co-conspirators “lied to Pence, telling him that there was substantial election fraud and concealing their orchestration of the plan to manufacture fraudulent elector slates, as well as their intention to use the fake slates to attempt to obstruct the congressional certification.”

Trump, the brief alleges, “created the tinderbox that he purposely ignited on January 6.”

While Trump hasn’t been charged with inciting an insurrection, Smith’s brief accuses him of causing allegedly unlawful conduct on Jan. 6, 2021, and attempting to take advantage of the riot that ensued.

Pence repeatedly denied having the power to go along with Trump’s alleged scheme. Trump, at one point, told Pence that people would hate his “guts,” think he’s “stupid,” and that the former vice president was “too honest,” according to the brief.

Allegations of Deceit

The filing comes roughly a month before the 2024 presidential election and offers details about communications between Trump, Pence, and his campaign staff.

Smith’s filing alleges that Trump repeatedly said things he knew were lies, including allegedly fabricating information about noncitizens voting.

“At trial, the Government will introduce several instances of this pattern, in which the defendant and conspirators’ lies were proved by the fact that they made up figures from whole cloth,” Smith’s brief reads.

It states that one of Trump’s campaign advisers told him his claim of a large number of dead people voting in Georgia was false, as well as that a campaign attorney verified that the number was “around 12 and could not be outcome-determinative.”

One campaign employee, identified as “P5” in the brief, was allegedly contacted by a colleague at the TCF Center in Detroit who said that they thought a batch of votes was in former Vice President Joe Biden’s favor. According to the brief, the employee responded, “Find a reason it isn’t.”

“When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot, a violent effort to stop the vote count in Florida after the 2000 presidential election, P5 responded, ‘Make them riot’ and ‘Do it!!!’” Smith’s brief reads.

Trump also mocked his former attorney Sidney Powell in November, according to Smith’s filing. At one point, he placed her on mute, mocked her to others, “called her claims ‘crazy,’ and made a reference to a science fiction series Star Trek when describing her allegations.”

It states that Trump had agreed with someone identified as “P9” that Powell’s claims were “unreliable and should not be included in lawsuits.” Trump’s attorney Rudy Giuliani issued a statement on Nov. 22 distancing the campaign from Powell.

“She is not a member of the Trump Legal Team. She is not a lawyer for the President in his personal capacity,” Giuliani said.

Smith’s filing notes that in the following days, Trump promoted lawsuits filed by Powell.

“Nonetheless, the defendant continued to support and publicize [Powell’s] knowingly false claims,” the filing reads.