In a nine-page court filing made public on Tuesday, special counsel Jack Smith shed some light on what facts will be entered into evidence at Donald Trump’s upcoming federal trial for election fraud. The document makes clear that Smith will not restrict the prosecution to statements made and actions taken by Trump between the 2020 election and events on Jan. 6, 2021. Instead, the prosecution will reach back years to show that Trump was preparing claims of election fraud since before he faced off with Hillary Clinton in 2016.
Trump’s statements show that what happened following his loss in 2020 wasn’t a spontaneous response to events in that election, or even a delusional response to his loss. False claims about election fraud had been part of Trump’s patter for years, establishing a record of refusing to accept the results of votes. This helps to prove that Trump didn’t actually believe that he had won the election, undercutting his fraud claims and making his post-election actions more clearly designed to overturn the genuine results.
Additionally, the document indicates that Smith’s team might introduce an unindicted co-conspirator and member of Trump’s 2020 campaign as a witness at the trial.
In a section titled “Historical Evidence of the Defendant’s Consistent Plan of Baselessly Claiming Election Fraud,” Smith writes that the government will introduce several public statements by Trump that predate the conspiracy described in the indictment. Smith writes that the purpose of these statements was sowing “mistrust in the results of the presidential election.” These statements include tweets Trump made before Election Day in 2016.
According to Smith (and senior assistant special counsels Molly Gaston and Thomas Windom, who co-signed the document), Trump’s purpose in making the statements was always to lay the foundation for a criminal plan to overturn the election results. Trump reinforced this effort in advance of the 2020 election with additional statements predicting the election fraud he claimed after the vote. All of these statements are going to end up in court—and that’s on top of the statements and actions Trump made leading directly to the Jan. 6 insurrection.
As the next section of the document notes, Trump not only repeatedly made false claims about election fraud well before there had been an election, he “refused to commit to a peaceful transition of power.” Instead, Trump insisted to a reporter that there would not be a transfer, there would be “a continuation.” This is also connected to events in a 2016 debate where Trump refused to say he would accept the results of the election or acknowledge the need for a peaceful transfer of power.
In addition to events before the election, the document also notes that Trump’s efforts didn’t end on Jan. 6. Trump has continued to embrace these past statements in the wake of the insurrection and his indictments. Smith’s team will introduce evidence of Trump’s support for the insurrectionists, including Proud Boys leader Enrique Tarrio, who was sentenced to 22 years in prison for his role in orchestrating the events of Jan. 6. It will also detail Trump’s continuing attacks on officials and politicians who refused to go along with his scheme.
Evidence of the defendant’s post-conspiracy embrace of particularly violent and notorious rioters is admissible to establish the defendant’s motive and intent on January 6—that he sent supporters, including groups like the Proud Boys, whom he knew were angry, and whom he now calls “patriots,” to the Capitol to achieve the criminal objective of obstructing the congressional certification.
In addition to showing that Trump’s efforts to overturn the election were part of a plan he had been brewing since 2016, there is an extremely intriguing note that the government will introduce evidence of “an effort undertaken by an agent (and unindicted co-conspirator) of the defendant who worked for his campaign” to obstruct the vote count immediately after the election. According to the filing, that employee also “encouraged rioting and other methods of obstruction.”
In particular, the employee is connected to events at TCF Center in Detroit. Trump made repeated false claims about vote handling and counting at this location, while at the same time the unnamed employee “was seeking to cause a riot to disrupt the count.”
It’s not certain that this unindicted co-conspirator will be brought in as a witness for Trump’s prosecution, as the document only notes that the government will introduce evidence connected with his activities. However, the evidence detailed in connection with his actions and coordination with Trump provides some of the most damning details to date.
Trial in this case is currently set to begin March 4, 2024, in the Washington, D.C., courtroom of federal District Judge Tanya Chutkan. On Friday, Chutkan rejected Trump’s claim of broad immunity from prosecution. A gag order from Chutkan was temporarily stayed by an appeals court on Sunday.
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