October Surprise: Jack Smith Drops The Hammer!

Jack Smith puts the cards on the table.

U.S. Special Prosecutor Jack Smith was given the greenlight from U.S. District Judge Tanya Chutken to release damning details against former president Donald J. Trump, the 2024 Republican nominee.

The 165-page document, which lands weeks before an election in which Trump is taking another shot at the White House, offers new detail about special counsel Jack Smith’s investigation into the former president’s efforts to lean on state officials and paint a narrative of widespread fraud that prosecutors say Trump knew was untrue.

It includes new details of Trump’s frayed relationship with former Vice President Mike Pence; FBI evidence of Trump’s phone usage on January 6, 2021, when rioters overtook the US Capitol; and conversations with family members and others where the then-president was fighting his loss to Joe Biden.

Broadly, and in response to the Supreme Court’s ruling this summer that granted Trump sweeping immunity for official actions, Smith’s motion claims the former president 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.

“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office,” Smith wrote in the brief, which Chutkan released in partially redacted form.

”At its core, the defendant’s scheme was a private one,” prosecutors wrote. “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.”

The filing weaves together what prominent witnesses told a federal grand jury and the FBI about Trump, along with other never-before-disclosed evidence investigators gathered about the former president’s actions leading up to and on January 6.

Trump and Vance as expected slammed the Smith report.

Releasing the motion, which was previously filed under seal, is the latest major development in Smith’s longstanding effort to prosecute Trump for actions he took to overturn the 2020 election, even as the former president is seeking a second term in a tight race with Vice President Kamala Harris. The case, which has already reached the Supreme Court once, has repeatedly been delayed as Trump has attempted to push off the prosecution until after next month’s election.

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.”

More evidence could come out in coming days. A hefty appendix accompanying Wednesday’s filing remains under seal, and the judge has asked both sides to weigh in on how much of it should be made public. Among the documents in the appendix are grand jury transcripts and notes from FBI interviews conducted during the yearslong investigation.

Trump’s team had fought the release of the document and the former president on Wednesday called it a “hit job” and claimed without evidence it was released in response to the vice presidential debate Tuesday night.

“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,” Trump posted on Truth Social.

On August 27, 2024, the special counsel issued a superseding indictment that maintained the same four charges but omitted some specific allegations.

Attorney General Merrick Garland has maintained that issuing the superseding indictment did not violate any election-related Justice Department rules. The Justice Department has a policy not to overtly investigate any candidate within 60 days before an election; the superseding indictment was issued 70 days before the November 5 election. Further, Garland said, the Justice Department issued the new indictment "to respond to the direct instructions of the Supreme Court". Though Trump's team argued that the superseding indictment should be invalid due to its timing so close to an election, Judge Chutkan said she would not consider this argument.

On September 3, Trump submitted a court filing in which he once again pleaded not guilty. He waived his right to appear at his second arraignment and did not attend. He was represented at the hearing by John Lauro, Todd Blanche, and Emil Bove. As of his second arraignment on September 5, 2024, he has not yet appeared in person before Judge Chutkan.

At the September 5 hearing, Trump's lawyers argued that they were dealing with a new indictment. Judge Chutkan disagreed, observing that the four charges remained the same and that the related allegations had been reduced: "It's not more stuff, it's less."