The Republican presidential nominee, former President Donald Trump, holds a campaign rally at Gastonia Municipal Airport on Nov. 2, 2024 in Gastonia, North Carolina. Trump won the election on Nov. 5 and now federal prosecutors are winding down an election interference case against him related to the 2020 election. (Photo by Chip Somodevilla/Getty Images)
Special counsel Jack Smith, the prosecutor in the federal criminal cases against President-elect Donald Trump, asked a D.C. federal judge on Friday to suspend deadlines in the election interference case that centered on Trump’s supporters’ Jan. 6, 2021, attack on the U.S. Capitol.
To allow the government time to mull the “unprecedented circumstance” of a former president under indictment returning to the White House after Tuesday’s election, Smith’s team, writing in an unopposed motion to U.S. District Judge Tanya Chutkan, called for upcoming deadlines in the case to be cleared.
Under U.S. Justice Department precedent that dates to the Watergate era, the department may not prosecute a sitting president.
“As a result of the election held on November 5, 2024, the defendant is expected to be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025,” the prosecutors wrote.
“The Government respectfully requests that the Court vacate the remaining deadlines in this pretrial schedule to afford the Government time to assess this unprecedented circumstance and determine the best appropriate course going forward consistent with Department of Justice policy.”
A 1973 Justice Department memo concluded that criminally prosecuting a sitting president would diminish the president’s capacity to perform the office’s functions. That conclusion was affirmed in a 2000 memo dealing with the question.
The four-sentence brief filed Friday said prosecutors would let the court know by Dec. 2 what route they planned to take.
Chutkan granted the motion shortly after Smith filed it.
Reversal of Trump’s fortunes
The legal development marks another milestone in Trump’s remarkable comeback.
The former president ended his first term, shortly after the Jan. 6 attack and amid a worldwide pandemic, with fewer than 39% of voters holding a favorable opinion of him and nearly 58% disapproving.
Over the next few years, the U.S. Justice Department and state prosecutors in New York and Georgia launched investigations into allegations that resulted in four felony indictments.
But in part thanks to his electoral victory in which he won or led in as of Friday afternoon every battleground state and could win the popular vote for this first time in his three White House runs, Trump appears likely to escape culpability in any of the cases.
Smith, whom Trump railed against and promised to fire — and possibly deport — appears ready to drop the election interference case.
U.S. District Judge Aileen Cannon, a Trump appointee in South Florida, already dismissed charges related to Trump’s alleged mishandling of classified documents that prosecutors said he illegally took from the White House and brought to his Mar-a-Lago estate after his 2020 election loss. Prosecutors have appealed that decision.
The Georgia election interference case that charged Trump as part of a conspiracy to overturn the 2020 election results in the state has sputtered amid revelations Fulton County District Attorney Fani Willis, who is prosecuting the case, had an inappropriate relationship with a subordinate in her office.
A New York jury did find Trump guilty earlier this year of 34 felony counts of falsifying business records related to hush money payment promised to adult film star Stormy Daniels during the 2016 presidential campaign.
But sentencing for that case was postponed following the U.S. Supreme Court’s ruling granting presidents the presumption of criminal immunity for any acts conducted in their official capacity.
The Nov. 26 sentencing could be further delayed as Trump prepares to return to the White House.
Special counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump at the Justice Department on Aug. 1, 2023, in Washington, DC. (Alex Wong | Getty Images)
WASHINGTON — U.S. District Judge Tanya Chutkan unsealed a lengthy and partly redacted motion Wednesday that charts special counsel Jack Smith’s final argument before November that former President Donald Trump acted in a private capacity when he co-conspired to overturn the 2020 election.
Much of the motion concerns Trump’s interactions with individuals in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin, as he sought to disrupt election results, Smith alleged.
The document, due on Chutkan’s desk late last month, is central to reanimating the case after months of delay as Trump argued for complete criminal immunity from the government’s fraud and obstruction charges related to his actions after the 2020 presidential contest, which Joe Biden won.
The U.S. Supreme Court returned Trump’s case to Chutkan after ruling that former presidents enjoy criminal immunity for core constitutional acts, presumed immunity for acts on the perimeter of official duties, and no immunity for personal ones. At that point it became clear that the case against the Republican presidential nominee would not be tried prior to Election Day.
Smith’s superseding indictment shortly thereafter retained all four felony counts against Trump, and Chutkan is tasked with parsing which allegations can stand in light of the Supreme Court decision.
In his unsealed 165-page motion, Smith outlines Trump’s alleged plots with private lawyers and political allies — names redacted — to ultimately deliver false slates of electors to Congress so that he appeared the winner over Biden in the seven states.
“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,” Smith wrote.
Trump slammed the court filing on social media in numerous posts, writing in a mix of upper and lowercase letters that “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.”
“The DOJ pushed out this latest ‘hit job’ today because JD Vance humiliated Tim Walz last night in the Debate. The DOJ has become nothing more than an extension of Joe’s, and now Kamala’s, Campaign. This is egregious PROSECUTORIAL MISCONDUCT, and should not have been released right before the Election,” he continued in just one of his many reactions on his platform, Truth Social.
Trump’s running mate, Ohio GOP Sen. J.D. Vance, faced Harris’ running mate, Tim Walz, in a vice presidential debate on Tuesday night.
Here are key arguments from Smith’s filing, which alleges efforts by Trump and allies to subvert voters’ will during the last presidential election:
Arizona
Smith detailed calls to and communications with various Arizona officials, including the governor and speaker of the Arizona state House, arguing the interactions were made in Trump’s “capacity as a candidate.”
“The defendant and his co-conspirators also demonstrated their deliberate disregard for the truth — and thus their knowledge of falsity — when they repeatedly changed the numbers in their baseless fraud allegations from day to day. 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. One example concerns the defendant and conspirators’ claims about non-citizen voters in Arizona. The conspirators started with the allegation that 36,000 non-citizens voted in Arizona; five days later, it was ‘beyond credulity that a few hundred thousand didn’t vote’: three weeks later, ‘the bare minimum [was] 40 or 50,000. The reality is about 250,000’; days after that, the assertion was 32,000; and ultimately the conspirators landed back where they started at 36,000 — a false figure that they never verified or corroborated.”
Georgia
Smith plans to introduce into evidence Trump’s communications, in his personal capacity, with Georgia’s attorney general, including a call on Dec. 8, 2020, and to the secretary of state.
Trump “had early notice that his claims of election fraud in Georgia were false. Around mid-November, Campaign advisor [redacted] told the defendant that his claim that a large number of dead people had voted in Georgia was false. The defendant continued to press the claim anyway, including in a press appearance on November 29, when he suggested that a large enough number of dead voters had cast ballots to change the outcome of the election in Georgia.”
“In the post-election period, [redacted] also took on the role of updating the defendant on a near-daily basis on the Campaign’s unsuccessful efforts to support any fraud claims…. He told the defendant that if the Campaign took these claims to court, they would get slaughtered, because the claims are all ‘bullshit.’ [Redacted] was privy in real time to the findings of the two expert consulting firms the Campaign retained to investigate fraud claims — [redacted] and [redacted] — and discussed with the defendant their debunkings on all major claims. For example, [redacted] told the defendant that Georgia’s audit disproved claims that [redacted] had altered votes.”
Michigan
The document details an Oval Office meeting Trump held with Michigan’s Senate majority leader and speaker of the House on Nov. 20, 2020, during which Trump tried to acquire evidence of voter fraud in Detroit.
“Despite failing to establish any valid fraud claims, [redacted] followed up with [redacted] and [redacted] and attempted to pressure them to use the Michigan legislature to overturn the valid election result.”
Michigan and Pennsylvania
The filing said that directly following the 2020 election, Trump and his “private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes.”
“For example, on November 4, [redacted]—a Campaign employee, agent, and co-conspirator of the defendant—tried to sow confusion when the ongoing vote count at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant.”
“When a 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, [redacted] responded ‘Make them riot’ and ‘Do it!!!’ The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania, and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence.”
Michigan voting machines
Smith will argue that Trump, outside his official presidential duties, tried to persuade political allies in Michigan to sway the election in his favor.
Among the evidence he will introduce: The former president held a meeting, “private in nature,” with Michigan legislators at the White House.
Smith also wrote that “In mid-December, the defendant spoke with RNC Chairwoman [redacted] and asked her to publicize and promote a private report that had been related on December 13 that purported to identify flaws in the use of [redacted] machines in Antrim County, Michigan. [Redacted] refused, telling the defendant that she already had discussed this report with [redacted] Michigan’s Speaker of the House, who had told her that the report was inaccurate. [Redacted] conveyed to the defendant [redacted] exact assessment: the report was ‘f—— nuts.’”
Nevada
In Nevada, Trump allegedly ignored warnings about spreading lies about the state’s election results. Smith wrote: “Notwithstanding the RNC Chief Counsel’s warning, the defendant re-tweeted and amplified news of the lawsuit on November 24, calling it ‘Big News!’ that a Nevada Court had agreed to hear it. But the defendant did not similarly promote the fact that within two weeks, on December 4, the Nevada District Court dismissed Law v. Whitmer, finding in a detailed opinion that ‘there is no credible or reliable evidence that the 2020 General Election in Nevada was affected by fraud,’ including through the signature-match machines, and that Biden won the election in the state.”
Trump continued to repeat false claims in tweets and speeches “as a candidate, not as an office holder,” Smith wrote.
Pennsylvania
In the Keystone State, officials warned Trump there was no smoke and no fire related to election fraud in the commonwealth, Smith wrote.
“Two days after the election, on November 6, the defendant called [redacted], the Chairman of the Pennsylvania Republican Party—the entity responsible for supporting Republican candidates in the commonwealth at the federal, state and local level. [Redacted] had a prior relationship with the defendant, including having represented him in litigation in Pennsylvania after the 2016 presidential election. The defendant asked [redacted] how, without fraud, he had gone from winning Pennsylvania on election day to trailing in the day afterward. Consistent with what Campaign staff already had told the defendant, [redacted] confirmed that it was not fraud; it was that there were roughly 1,750,000 mail-in ballots still being counted in Pennsylvania, which were expected to be eighty percent for Biden. Over the following two months, the defendant spread false claims of fraud in Pennsylvania anyway.”
“In early November, in a Campaign meeting, when the defendant suggested that more people in Pennsylvania voted than had checked in to vote, Deputy Campaign Manager [redacted] corrected him.”
Wisconsin
Smith wrote Trump ignored reality in Wisconsin as well.
“On November 29, a recount that the defendant’s campaign had petitioned and paid for confirmed that Biden had won in Wisconsin — and increased the defendant’s margin of defeat. On December 14, the Wisconsin Supreme Court rejected the Campaign’s election lawsuit there. As a result, on December 21, Wisconsin’s Governor signed a certificate of final determination confirming the prior certificate of ascertainment that established Biden’s electors as the valid electors for the state.”
Trump responded by rebuking the Wisconsin Supreme Court justice who had signed the majority opinion that rejected the lawsuit, forcing the state marshals responsible for the judge’s security to enhance protection due to a rise in “threatening communications.”
Fake electors
Smith alleged that as Trump and co-conspirators faltered at overturning states’ official election results, they turned their attention to fake slates of electors.
As early as December 2020, Trump and his allies “developed a new plan regarding targeted states that the defendant had lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin): to organize the people who would have served as the defendant’s electors had he won the popular vote, and cause them to sign and send to Pence, as President of the Senate, certificates in which they falsely represent themselves as legitimate electors who had cast electoral votes for the defendant,” Smith wrote.
Trump and his allies lied to Vice President Mike Pence heading toward Jan. 6, “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’s alleged lies to Pence and the public “created a tinderbox that he purposely ignited on January 6.”
The filing details numerous people, including Trump, pressuring Pence for weeks to use his role overseeing Congress’ certification of the Electoral College vote to overturn the election results.
On the morning of Jan. 6, Pence, once again, told Trump he would not go along with the plan.
“So on January 6, the defendant sent to the Capitol a crowd of angry supporters, whom the defendant had called to the city and inundated with false claims of outcome-determinative election fraud, to induce Pence not to certify the legitimate electoral vote and to obstruct the certification.”
“Although the attack on the Capitol successfully delayed the certification for approximately six hours, the House and Senate resumed the Joint Session at 11:35 p.m. But the conspirators were not done.”
The filing alleges a co-conspirator once again urged Pence to “violate the law” by delaying the certification for 10 days. He refused.
Pressure on Pence
Smith must prove that Trump’s pressure on Pence was outside of their official duties together, and therefore can not be considered immune from prosecution.
Smith plans to introduce evidence of private phone calls and conversations between Trump and his VP, including some with campaign staff, essentially tying their interactions to their interests as those seeking office again, “as running mates in the post-election period.” Smith also plans to highlight that Pence’s role in certifying the election was largely ceremonial and within the realm of the Senate, and strictly outside the bounds of the Oval Office. Among Smith’s points made in his motion:
“Because the Vice President’s role is and has always been ministerial, rather than substantive or discretionary, it is difficult to imagine an occasion in which a President would have any valid reason to try to influence it. As such, criminalizing a President’s efforts to affect the Vice President’s role as the President of the Senate overseeing the certification of Electoral College results would not jeopardize an Executive Branch function or authority.”
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