The Case Against Citizen Trump— Even Darker Than We Thought It Was

For America Top Be Safe, Trump Must Be Severely Punished For His Crimes

"Lock Him Up!" by Nancy Ohanian

First of all, here’s the 165 page criminal filing that Judge Chutkan allowed unsealed Wednesday. It begins with a rebuttal of Trump’s immunity assertions: “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. Not so. Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one. 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. In Trump v. United States, 144 S. Ct. 2312 (2024), the Supreme Court held that presidents are immune from prosecution for certain official conduct—  including the defendant’s use of the Justice Department in furtherance of his scheme, as was alleged in the original indictment— and remanded to this Court to determine whether the remaining allegations against the defendant are immunized. The answer to that question is no. This motion provides a comprehensive account of the defendant’s private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none of the defendant’s charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted; and requests the relief the Government seeks, which is, at bottom, this: that the Court determine that the defendant must stand trial for his private crimes as would any other citizen.”

CNN had a team of 7 reporters and analysts on the case; the filing is a long read that is better not skimmed, at least not if you want all the details of Jack Smith’s investigation into Trump’s efforts to lean on state officials and paint a narrative of widespread fraud that prosecutors say Trump knew was untrue. To get around the shocking, partisan Supreme Court immunity ruling, Smith proves beyond any doubt that Trump “took the steps he did as a political candidate— not as a president— and that, therefore, he is not entitled to protection from prosecution the justices identified in July.”

The document is broken into four sections. The first section lays out the case prosecutors said they would attempt to prove at trial, including a summary of evidence; the second section gives Chutkan a roadmap for how to assess which actions are official— and therefore potentially covered by immunity— and which are not; the third section walks through how the principles should apply in Trump’s case; the fourth is a brief conclusion that asks Chutkan to rule that the actions described are not protected by immunity and that Trump “is subject to trial on the superseding indictment.”

This morning, Politico led with 11 damning details from the brief, noting in way of introduction that much of it “focused on Trump’s state of mind in the weeks leading up to the Capitol riot on Jan. 6, 2021. Smith described a slew of conversations suggesting that the then-president knew his claims of election fraud were spurious. And Smith laid out evidence that Trump’s sole objective was to stay in power— not, as he and his lawyers have claimed, to exercise legitimate authority over election integrity.”

The compendium put together by Kyle Cheney and Josh Gerstein is incredibly damning, although hardly shocking to anyone who has paid any attention to Trump at all. If you’re a regular DWT reader, you likely already know that we think Trump should be tried and executed as a clear warning to other would-be authoritarians. The Supreme Court has been working to prevent a trial. Something has to be done about that institution, though, I am certain that the way the Democrats pick and support candidates mostly precludes political leaders with the integrity and courage it would take to cut through the Gordian knot that prevents any kind of reform that displeases the American oligarchy. That’s why we have emphasized the importance of electing independent-minded candidates not tied to the DCCC and DSCC, both engines of the status quo. The most important race this cycle— in terms of consequences for the country— is in Nebraska, where replacing GOP hack backbencher Deb Fischer, with Dan Osborn, an independent candidate free from ties to either Schumer or McConnell and the corrupting special interests that they represent, would give him the deciding power in the Senate. There’s not a single congressional race with the potential to change the country’s dismal political trajectory. Please consider helping Osborn here.

Sorry (not really) for the tangent. Here are Politico’s 11 Jack Smith show-stoppers:

1- Alone with his phone

At 2:24 p.m. on Jan. 6, as Trump supporters were attacking the Capitol, Trump took to Twitter to condemn Vice President Mike Pence, saying Pence lacked “courage” because Pence had resisted Trump’s pressure to intervene in the Electoral College certification.

According to Smith’s prosecutors, Trump was alone in the White House dining room when he sent that tweet. Trump’s aides had left him there after failing to persuade him to call on his supporters to leave the Capitol.

“The defendant personally posted the tweet … at a point when he already understood the Capitol had been breached,” prosecutors wrote.

2- Trump asked: ‘So what?’

The tweet criticizing Pence coincided with one of the most perilous moments of the riot: the precise minute Pence was being evacuated from his Senate office to a loading dock below the Capitol. Rioters had come within 40 feet of where he was sheltering just before this moment.

When Trump was told by an aide of Pence’s evacuation, prosecutors say Trump responded: “So what?”

Trump’s first call for calm— which advisers viewed as insufficient— came 14 minutes later: “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”

3- Disregarding the results

According to prosecutors, at one point during Trump’s bid to overturn the results, a Trump White House aide overheard Trump tell his daughter Ivanka and son-in-law Jared Kushner: “It doesn’t matter if you won or lost the election. You still have to fight like hell.” The comment was allegedly made on Marine One.

4- Inventing statistics

Prosecutors said they would prove at trial that Trump and his allies often made up statistics about voter fraud “from whole cloth.” For example, Trump and allies alleged that 36,000 noncitizens had cast ballots in Arizona, changing the figure to “a few hundred thousand” five days later, eventually revising it back to “bare minimum… 40 or 50,000,” then to 32,000 and back up to the original number of 36,000.

5- Broken promises of evidence

One week after Election Day in 2020, Trump told then-Gov. Doug Ducey (R-AZ) that he was “packaging up” fraud evidence to share with him, prosecutors wrote. But Trump never provided it. Ducey told Trump that Arizona was all but lost, comparing it to being in “the ninth inning, two outs, and [the defendant] was several runs down,” Smith’s brief recounted.

6- Mocking Sidney Powell

After a Fox News host called out Trump-aligned lawyer Sidney Powell for making bizarre claims about Dominion Voting machines, Trump called her on speakerphone. On the Nov. 20, 2020 call, Trump muted his line and mocked her to two aides, calling her claims about the election “crazy” and making a reference to Star Trek, prosecutors contend. On another occasion, he called Powell “unhinged.”

Though it’s not referenced in Smith’s new filing or his indictment, Trump later considered naming Powell as a special counsel to investigate election fraud, and he considered a proposal she crafted to seize voting machines from swing states for a forensic inspection.

7- Trump’s Jan. 5 call to Steve Bannon

Prosecutors, who had more access to telephone records and emails than the congressional committee that investigated Jan. 6, allege that Trump spoke to ally Steve Bannon by phone on Jan. 5 less than two hours before Bannon issued a prescient and provocative prediction on his War Room podcast that “all hell is going to break loose” on Jan. 6.

8- A preview of forensic evidence

Prosecutors plan to have an FBI computer forensic examiner testify about Trump’s phone use on Jan. 6. They say it will show which news and social media apps he had on his phone and will reveal that Trump was on Twitter for much of the day. Prosecutors also plan to show at trial what Fox News was broadcasting at specific times during the day, since Trump had it on in the dining room and was watching coverage of the riot.

9- ‘Make them riot’

Well before Jan. 6, an unidentified Trump campaign employee enthusiastically spoke of the potential for a riot in Michigan. The employee, whom prosecutors described as a co-conspirator, allegedly sought to “create chaos” at a polling center in Detroit when it became clear a batch of election returns favorable to Biden was legitimate. “Find a reason it isn’t,” the alleged co-conspirator said to a colleague, prosecutors wrote. When the colleague said an outbreak of violence appeared imminent, the campaign employee replied: “Make them riot” and “Do it!!!”

10- Rudy’s rise

Trump sidelined his campaign lawyers on Nov. 13, 2020, with Bannon informing another Trump campaign adviser— and alleged co-conspirator— that Trump had replaced them in the pecking order with Rudy Giuliani. Bannon said he told Trump that without Giuliani in charge, “this thing is over.” “Trump is in to the end,” Bannon added, according to prosecutors.

11- Rudy’s follies

Counting on Giuliani didn’t turn out so well. Smith’s brief includes yet another instance of Giuliani’s prolific record of butt-dialing and clumsy cell phone use. Prosecutors say he attempted to send a proposed resolution to Michigan lawmakers declaring the election to be in dispute— but sent it to the wrong number.

This morning, Dan Pfeiffer noted that voters reading and talking about Trump’s attempt’s to steal the 2020 election are bad for his November prospects. First of all he recommends— and I concur— that everyone watch this powerful new documentary, Fight Like Hell, that damns Trump to hell.

“The polling,” wrote Pfeiffer, “is straightforward. Most Republicans don’t support what happened on January 6th. People aren’t buying the BS that Trump, Vance and the Right are trying to sell about the tragedy. A Data for Progress poll shows that less than a third of Republicans describe January 6th as a peaceful protest. That poll also found that 53% of voters and 57% of Independents are less likely to support a candidate who supports attempts to overturn the 2020 election.”

He closed by urging his readers to remember that Señor T “has yet to say that he will accept the election results, he is planning to pardon the folks who stormed the Capitol, he threatened violence if he loses, and he pledges to jail his political opponents if he wins. The economy and abortion are key to this election, but the more people are thinking about January 6th, the Big Lie, and potential political violence, the less likely they are to vote for Trump.”

Predictably, Trump’s reaction to the release of all that evidence against him was explosive and unhinged. He began here last night, using all the regular tools in his arsenal for deflection and projection:

And was still fuming and carrying on this morning, whining about rules he ignores and reiterating every excuse in the book to keep from being held accountable: