WASHINGTON — Former President Donald Trump was "fundamentally" acting as a private candidate for office and not as president of the United States when he sought to overturn his 2020 election loss, special counsel Jack Smith's team argued in a filing on Wednesday that revealed new details of the scheme at the heart of Trump's federal election interference case.
The filing asserts that Trump knew that the claims he was spreading about the 2020 election were lies, with Smith's team arguing that Trump didn't believe his own falsehoods but instead spread them as part of his broader scheme to stay in power.
As officers were being brutally assaulted at the Capitol on Jan. 6, Smith's team says, Trump was scrolling Twitter, according to an analysis by an FBI expert that is among the revelations in the new filing. Smith's team says a future trial would feature testimony from the FBI forensic expert.
"The phone’s activity logs show that the defendant was using his phone, and in particular, using the Twitter application, consistently throughout the day after he returned from the Ellipse speech," Smith's team wrote.
The special counsel's office also argues for the inclusion of testimony from former Vice President Mike Pence, saying some of Trump and Pence's discussions were not in their official roles but rather were discussions "in their private capacities as running mates."
Smith's team said Pence "gradually and gently tried to convince the defendant to accept the lawful results of the election, even if it meant they lost."
In one discussion at lunch on Nov. 12 recounted in the filing, Pence presented a "face-saving option" for Trump, telling him "don't concede but recognize process is over."
Another piece of evidence Smith's team plans to introduce is testimony from an unnamed assistant to the president who overheard a remark Trump made to family members aboard Marine One after the 2020 election.
“It doesn’t matter if you won or lost the election," Trump allegedly said. "You still have to fight like hell.”
The filing also elaborates on the Smith team's prior claim that a member of Trump's campaign encouraged rioting at the TCF Center in Detroit, where a pro-Trump mob tried to stop the counting of votes in what was America's largest majority-Black city on Nov. 4, 2021, the day after the election. "Make them riot," an unnamed campaign employee texted a colleague, according to the filing. "Do it!!!"
The filing is a response to the Supreme Court ruling that Trump had immunity for some actions he took as president and that prosecutors could not use his official acts in their case. Smith's team argued the 2024 Republican presidential nominee "must stand trial for his private crimes as would any other citizen" and a federal grand jury returned a superseding indictment against him in August adjusting Smith's case to comply with the Supreme Court's order.
Trump "resorted to crimes to try to stay in office" after his loss, Smith's team wrote in Wednesday's filing, arguing that he 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."
Smith's team once again argued that Trump knew his falsehoods about the 2020 election were, in fact, lies and said he relied upon his own campaign employees and volunteers, including his campaign manager, deputy campaign manager, senior campaign advisor and a campaign operative to carry out the alleged scheme.
"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," they wrote.
Trump, Smith's team said, was informed that election night results might be misleading because it would take a while to count mail-in ballots, which were expected to be favorable to Joe Biden. Trump, Smith's team said, declared to his advisors that he "would simply declare victory before all the ballots were counted and a winner was projected" and publicly began laying the groundwork by telling his supporters he'd only lose if there was fraud.
Trump and his co-conspirators had a "deliberate disregard for the truth" and Smith's team said it intends to prove at trial that they engaged in a pattern of deception and "made up figures from whole cloth," including the ever-changing number of non-citizen voters Trump's team falsely claimed voted in Arizona.
Trump campaign spokesman Steven Cheung called the Smith team's filing “falsehood-ridden" and tied its release to the vice presidential debate, even though it was known to be coming soon. "Deranged Jack Smith and Washington DC Radical Democrats are hell-bent on weaponizing the Justice Department in an attempt to cling to power," Cheung said. "President Trump is dominating, and the Radical Democrats throughout the Deep State are freaking out. This entire case is a partisan, Unconstitutional Witch Hunt that should be dismissed entirely, together with ALL of the remaining Democrat hoaxes.”
