JACK SMITH'S FILING UNSEALED BY JUDGE CHUTKAN

Judge Tanya Chutkan ruled TODAY that Special Counsel Jack Smith’s fioliong regarding the January 6 case be released in its full 165-page glory.

Here are the main arguments:

“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.”

That is important. None of Trump’s bullshit treason was any kind of “official conduct.” This is the heart of the case.

If a trial in this case ever happens - something in doubt for several reasons - Smith says that he intends to demonstrate that Trump made up “lies” about voter fraud “out of whole cloth.”

Trump and his co-conspirators showed that they knew they were lying “when they repeatedly changed the numbers in their baseless fraud allegations from day to day.”

It was a “pattern,” Smith said, that had no real consistency beyond what might benefit the effort to stay in power at any given moment.

“... nothing the Government intends to present to the jury is protected by presidential immunity.

Although the defendant’s discussions with the Vice President about “their official responsibilities”qualify as official, see Trump, 144 S. Ct. at 2336, the Government rebuts the presumption of immunity. And all of the defendant’s remaining conduct was unofficial: as content, form, and context show, the defendant was acting in his capacity as a candidate for reelection, not in his capacity as President. In the alternative, if any of this conduct were deemed official, the Government could rebut the presumption of immunity.”

I. Factual Proffer

“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay

in office. With private co-conspirators, the defendant launched a series of increasingly desperate

plans to overturn the legitimate election results in seven states that he had lost—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the “targeted states”). His efforts included lying to state officials in order to induce them to ignore true vote counts; manufacturing fraudulent electoral votes in the targeted states; attempting to enlist Vice President Michael R. Pence, in his role as President of the Senate, to obstruct Congress’s certification of the election by using the defendant’s fraudulent electoral votes; and when all else had failed, on January 6, 2021, directing an angry crowd of supporters to the United States Capitol to obstruct the congressional certification. The throughline of these efforts was deceit: the defendant’s and co-conspirators’ knowingly false claims of election fraud. They used these lies in furtherance of three conspiracies:

1) a conspiracy to interfere with the federal government function by which the nation collects and counts election results, which is set forth in the Constitution and the Electoral Count Act (ECA);

2) a conspiracy to obstruct the official proceeding in which Congress certifies the legitimate results of the presidential election; and

3) a conspiracy against the rights of millions of Americans to vote and have their votes counted.

“At its core, the defendant’s scheme was a private criminal effort. In his capacity as a candidate, the defendant used deceit to target every stage of the electoral process, which through the Constitution, ECA, and state laws includes the states’ notification to the federal government

of the selection of their representative electors based on the popular vote in the state; the meeting

of those electors to cast their votes consistent with the popular vote; and Congress’s counting of

the electors’ votes at a certification proceeding.

“Privately, the defendant told advisors—including | PO | Campaign personnel, P (a White House staffer and Campaign volunteer), and | PB (the Vice President’s Chief of Staff}—that in such a scenario, he would simply declare victory before all the ballots were counted and any winner was projected.* Publicly, the defendant began to plant the seeds for that false declaration. In the months leading up to the election, he refused to say whether he would accept the election results, insisted that he could lose the election only because of fraud, falsely claimed that mail-in ballots were inherently fraudulent, and asserted that only votes counted by election day were valid.”

The brief goes on to list and describe the many times Trump claimed the election was false.

“Shortly after election day, the defendant began to target the electoral process at the state level by attempting to deceive state officials and to prevent or overturn the legitimate ascertainment

and appointment of Biden’s electors. As President, the defendant had no official responsibilities

related to the states’ administration of the election or the appointment of their electors, and instead contacted state officials in his capacity as a candidate. Tellingly, the defendant contacted only state officials who were in his political party and were his political supporters, and only in states he had lost. The defendant’s attempts to use deceit to target the states’ electoral process played out in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, as well as across these and other states that used certain voting machines. In addition to the following evidence of the defendant’s conduct during the charged conspiracies, at trial the Government will elicit testimony from election officials from the targeted states to establish the objective falsity—and often, impossibility—of the defendant’s fraud claims. Notably, although these election officials would have been the best sources of information to determine whether there was any merit to specific allegations of election fraud in their states, the defendant never contacted any of them to ask.”

The filing then outlines in detail all the attempts made in each state from the 60 false lawsuits that were filed by Trump and the conspiracies in each state to create the fake electors. Each act is listed, followed by an explanation why it was false, and why committing the specific act was not part of the “official duties” of a president.

The filing then goes into detail about conspiracy around the January 6 insurrection, listing each act and why it was not part of a president’s “official duties.”

The filing then lists all the actions taken by Trump on January 6 to incite the insurrection, and explains why none of these actions or statements fell within presidential “official duties.”

“IL. Legal Framework

“In Trump, the Supreme Court held that former presidents are immune from prosecution for

core official acts, enjoy at least a rebuttable presumption of immunity for other official acts, and

have no immunity for unofficial acts, and remanded to this Court for further proceedings consistent with its holding. 144 S. Ct. at 2327, 2332, 2347. This section sets forth the applicable legal principles and then Section III applies them to the categories of conduct that the superseding indictment alleges and that the Government intends to prove at trial in order to demonstrate that none of the defendant’s conduct is immunized.

“In Trump, the Supreme Court announced the principles that govern a former President’s claim of constitutional immunity from federal criminal prosecution. The Supreme Court divided

presidential acts into three categories: (1) core presidential conduct that Congress has no power to regulate and for which a former President has absolute immunity; (2) other official presidential acts for which the President has at least presumptive immunity; and (3) unofficial conduct for which the President has no immunity. Id. at 2327, 2331-32. With respect to the first category of core official conduct, when the President’s authority to act is “‘conclusive and preclusive,’” Congress may not regulate his actions, and the President has absolute immunity from criminal prosecution. Id.at 2327 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring)).

“Applying those principles to the original indictment, the Supreme Court concluded that the defendant is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials” and his “threatened removal of the Acting Attorney General.” Id. at 2335. The superseding indictment omits those allegations, and the Supreme Court did not find that any other conduct alleged in the original indictment implicated “conclusive and preclusive” presidential authority. See id. at 2335-40.

“The threshold question here, then, is whether the defendant can carry his burden to establish

that his acts were official and thus subject to presumptive immunity. d. at 2332; see Dennis v.

Sparks, 449 U.S. 24, 29 (1980) (noting that for immunity doctrines, “the burden is on the official

claiming immunity to demonstrate his entitlement”). Official conduct includes acts taken within

the “‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they

are ‘not manifestly or palpably beyond [his] authority.’” Trump, 144 S. Ct. at 2333 (quoting

Blassingame, 87 F.4th at 13).

“But consistent with the D.C. Circuit’s opinion in Blassingame, the Supreme Court suggested that a President who speaks “as a candidate for office or party leader”—as the defendant did here—does not act in his official, presidential capacity. Id. at 2340. As the D.C. Circuit explained, a President acting as a “candidate for re-election” is, to that extent, not carrying out an official responsibility. Blassingame, 87 F.4th at 17; accord id. at 5 (“When a sitting President running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern. Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity.”) (emphasis in original).

“To assess whether a presidential action constitutes an “official” act, courts must apply

an “objective analysis” that focuses on the “‘content, form, and context’” of the conduct in

question. Trump, 144 S. Ct. at 2340 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). A

President’s motives for undertaking the conduct and the fact that the conduct is alleged to have

violated a generally applicable law are not relevant considerations. Id. at 2333-34.

“If a President’s actions constitute non-core official presidential conduct, he is at least

presumptively immune from criminal prosecution for that conduct. 144 S. Ct. at 2328, 2331; id.

at 2332 (reserving whether “this immunity is presumptive or absolute . . . [b]ecause we need not

decide that question today”). The Government can overcome that presumptive immunity by

demonstrating that “applying a criminal prohibition to that act would pose no ‘dangers of intrusionon the authority and functions of the Executive Branch.’” Id. at 2331-32 (quoting Fitzgerald, 457 U.S. at 754).

“Just as the inquiry into whether conduct is official or unofficial is “necessarily factbound,” Trump, 144 S. Ct. at 2340, with “[t]he necessary analysis [being] . . . fact specific,”id. at 2339, so too should be the inquiry into whether any “presumption of immunity is rebutted under the circumstances,” id. at 2337. The analysis should first identify the specific alleged act at issue, and then determine whether criminal liability for the act intrudes on a relevant Executive Branch authority or function, taking care not to “conceive[] of the inquiry at too high a level of generality.” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1141 (D.C. Cir. 2015) (reversing district court in civil immunity case).

“Such an approach recognizes that Executive authority has limits—boundaries imposed by constitutional text, the separation of powers, and precedent—and that application of criminal law to the President’s official conduct does not per se intrude impermissibly on Executive Branch authority and functions. Cf. Trump, 144 S. Ct. at 2327 (“If the President claims authority to act but in fact exercises mere ‘individual will’ and ‘authority without law,’ the courts may say so.”) (quoting Youngstown, 343 U.S. at 655 (Jackson, J., concurring)).

“These principles for assessing whether the conduct alleged in the superseding indictment

is immune apply equally to evidence. The Government may not introduce evidence of immunized official conduct against a former President at a trial, even to prove that the former President committed a crime predicated on unofficial conduct. Id. at 2340-41.

“III. None of the Allegations or Evidence Is Protected by Presidential Immunity

“At its core, the defendant’s scheme was a private one; he extensively used private actors

and his Campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office. To the limited extent that the superseding indictment and proffered evidence reflect official conduct, however, the Government can rebut the presumption of immunity because relying on that conduct in this prosecution will not pose a danger of intrusion on the authority or functions of the Executive Branch. Below, the Government categorizes the conduct outlined in Section I and provides “content, form, and context” for this Court to determine that the defendant’s conduct was private or that, in the alternative, any presumptive immunity is rebutted “under the circumstances.” Trump, 144 S. Ct. at 2337.

“This analysis is necessarily fact intensive, and all of the Government’s analysis below is based on the unique facts and circumstances of this case.

“This section first addresses the defendant’s interactions with Pence, because in Trump, the

Supreme Court held that when the defendant conversed with Pence about “their official

responsibilities,” the conduct was official. 144 S. Ct. at 2336. Accordingly, the Government

explains below why any presumptive immunity as to the defendant’s official conduct regarding Pence is rebutted. Other than the specific official conduct related to Pence that the Supreme Court held to be official, none of the defendant’s other actions were official. This section categorizes that conduct and provides the “content, form, and context” that establishes its unofficial nature.

“These categories are: a) the defendant’s interactions, as a candidate, with state officials; b) the

defendant’s efforts, as a candidate, to organize fraudulent electors; c) the defendant’s public

speeches, Tweets, and other public statements as a candidate; d) the defendant’s interactions, as a candidate, with White House staff; and e) other evidence of the defendant’s knowledge and intent. Lastly, even if these categories of conduct and evidence were to be deemed official, the

Government can rebut the attendant presumption of immunity as described below.

“A. The Defendant’s Interactions with Pence

“The only conduct alleged in the original indictment that the Supreme Court held was official, and subject to at least a rebuttable presumption of immunity, was the defendant’s attempts to lie to and pressure Vice President Pence to misuse his role as President of the Senate at the congressional certification. The Supreme Court stated that “[w]henever the President and Vice

President discuss their official responsibilities, they engage in official conduct,” and further

explained that because Pence’s role at the certification was “a constitutional and statutory duty of the Vice President,” the defendant was “at least presumptively immune from prosecution for such conduct.” 144 S. Ct. at 2336. Accordingly, unlike all of the other threshold determinations that the Court will have to make about whether the defendant’s conduct alleged in the superseding indictment was official, with respect to the defendant’s conversations with Pence about Pence’s official role at the certification proceeding, the Court can skip to the second step: whether the Government can rebut the presumption of immunity that the Supreme Court held applies to such conversations. Because the Executive Branch has no role in the certification proceeding—and indeed, the President was purposely excluded from it by design—prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the Executive Branch’s authority or functioning.”

“The Constitution’s structure further reflects the Framers’ considered choice to exclude the

incumbent President from playing a role in choosing the next President. The Constitution reflects

an abiding concern that governmental “power is of an encroaching nature, and that it ought to be

effectually restrained from passing the limits assigned to it,” not least to protect against “the dangerto liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.” TheFederalist No. 48 (J. Madison); see Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) (“The abuses by the monarch recounted in the

Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too

powerful executive.”).

“The Framers therefore designed a system of separated powers in part to ensure that “[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The Federalist No. 10 (J. Madison).”

“The defendant’s charged conduct directly contravenes these foundational principles. He

sought to encroach on powers specifically assigned by the Constitution to other branches, to

advance his own self-interest and perpetuate himself in power, contrary to the will of the people.

As such, applying a criminal prohibition to the defendant’s conduct would not pose any danger of intrusion on the authority and functions of the Executive Branch; rather, it would advance the

Constitution’s structural design to prevent one Branch from usurping or impairing the performance of the constitutional responsibilities of another Branch. See Clinton v. Jones, 520 U.S. 681, 699-702 (1997).

“History confirms that presidents have never understood their wide-ranging duties to encompass any direct role in the function of collecting, counting, and certifying the results of a presidential election. As President Lincoln explained in 1864, “[b]y the Constitution and laws the President is charged with no duty in the conduct of a presidential election in any State,” and “[i]f any election shall be held, and any votes shall be cast in the State of Tennessee for President and Vice President of the United States, it will belong, not to the military agents, nor yet to the Executive Department, but exclusively to another department of the Government, to determine whether they are entitled to be counted, in conformity with the Constitution and laws of the United

States.” 8 Collected Works of Abraham Lincoln, 71-72 (1953).

“When Congress later sent to Lincoln for his signature a “Joint resolution declaring certain States not entitled to representation in the electoral college,” Lincoln signed the resolution “in deference to the view of Congress implied in its passage and presentation to him,” but “disclaim[ed] all right of the Executive to interfere in any way in the matter of canvassing or counting electoral votes.” House Special Committee, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 229-230 (1877).

“The Government is aware of no contrary evidence, including of any President, other than the defendant, seeking to influence his Vice President in the discharge of his duties as President of the Senate in presiding over the joint session. The absence of any such historical tradition is reinforced by the fact that in 22 of the 59 certification proceedings the Vice President has not presided at all. See Joel K. Goldstein, The Ministerial Role of the President of the Senate in Counting Electoral Votes: A Post-January 6 Perspective, 21 U. N.H. L. REV. 369, 402 & App’x 1 (2023).

“When it comes to the certification proceeding specifically, not only has the President been

deliberately excluded from the process, but the Vice President’s role, as President of the Senate,

is highly circumscribed and ministerial in nature. The Twelfth Amendment gives the President of

the Senate no substantive role in determining how to count the votes of the electors appointed by

the states. Rather, it provides only that he “shall, in the presence of the Senate and House of

Representatives, open all the certificates,” and then shifts to the passive voice: “and the votes shall then be counted.” Nothing in the Constitution remotely suggests that the single individual serving as President of the Senate would have the momentous responsibility to decide which votes to count and how they should be counted. Indeed, as Pence himself explained on January 6, 2021, giving the President of the Senate such a role “would be entirely antithetical to the [Constitution’s] design.”

“Critically, applying a criminal prohibition to the discrete and distinctive category of official

interactions between the President and Vice President alleged in this case would have no effect—chilling or otherwise—on the President’s other interactions with the Vice President that implicate Executive Branch interests. The President would still be free to direct the Vice President in the discharge of his Executive Branch functions, such as “presid[ing] over . . . cabinet meetings,” engaging in “diplomacy and negotiation,” or performing any other presidential duties that the President chooses to delegate. See Trump, 144 S. Ct. at 2336 (internal quotation marks omitted).

“The President would likewise still be free to advise the Vice President on how to “advance the President’s agenda in Congress,” by casting tiebreaking votes on legislation or nominations. Id.

at 2337.

“None of these legitimate Executive Branch functions would be chilled or affected at all.”

“Lastly, the fact that the defendant regularly included other private actors, such as his private

attorney and co-conspirator in some conversations to attempt to pressure Pence

(Superseding Indictment, ECF No. 226 §§ 75-76; supra pp. 66-67, 71-72) strengthens the

conclusion that prosecuting the defendant for his actions using to help recruit Pence into

the conspiracies does not infringe on any Executive Branch authority or function.”

The filing then details all actions between Trump and Pence and demonstrates none are “official acts.”

“IV. Conclusion

“Based on a “factbound analysis,” for the reasons explained above, the Court should

determine that the conduct described in the factual proffer of Section I of this motion is not subject to presidential immunity. As part of this determination, the Court should specify four

determinations, and do so in a single order: (1) that the Government has rebutted the presumption of immunity attached to the defendant’s official communications with the Vice President; and (2) that the remaining conduct described in Section I (that is, conduct other than the official communications with the Vice President) was not official, and, in the alternative, that the Government has rebutted any presumptive immunity for any of the remaining conduct that the Court finds to be official.

“The Government requests alternative rulings regarding rebuttal for all conduct the Court finds to be unofficial, to buttress the Court’s record, ensure thorough and efficient appellate review, and minimize the risk of successive rounds of interlocutory appeal.

“Furthermore, based on the determination that all the conduct described in Section I is not immune from prosecution, and because Section I encompasses all the allegations in the superseding indictment, the Court should further specify: (3) that the defendant is subject to trial on the superseding indictment; and (4) that the Government is not prohibited at trial from using evidence of the conduct described in Section I, subject at a later date to non-immunity based objections and this Court’s admissibility rulings under the Federal Rules of Evidence.”

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