Jack Smith's latest brief in the January 6th case

In 165 pages, Smith lays out how Trump remains prosecutable despite the Supreme Court's immunity ruling

Photo by Mari Helin on Unsplash

On Wednesday, October 2, U.S. District Judge Tanya Chutkan partially unsealed the latest brief from Jack Smith in the case against Trump regarding his attempts to overturn the 2020 election. The 165-page document lays out in great detail just how Smith plans to frame the evidence to prove that Trump was, in fact, engaged in “unofficial conduct” and, therefore, falls outside the Supreme Court’s new doctrine of criminal immunity for presidents. (As Smith explained, the Supreme Court’s immunity ruling meant “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.”)

A close reading of the brief is a stark reminder that Trump and his criminal gang were well aware that the Big Lie was a lie itself the entire time. They had plotted and schemed before the election results even came in.

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Still, as I wrote in my latest piece for The Bulwark, it is stunning to realize that the former president of the United States and his enablers managed to get as far as they did. Had it not been for Vice President Mike Pence adhering to his oath under the U.S. Constitution, who knows how far they could have gotten.

It does not bode well for November, frankly.

A quick timeline of the case and how we got here:

This case began on November 18, 2022, when Attorney General Merrick Garland appointed Jack Smith as the special counsel charged with heading the Department of Justice’s investigation into Donald J. Trump and his attempts to overturn the 2020 election.

Just four days later, Smith issued subpoenas to officials in numerous states. These officials were believed to have been contacted by Trump for help with changing the results of the 2020 election.

After months of subpoenas, testimonies, and investigation, Trump was indicted on August 1, 2023, on four charges arising from his criminal plan to overthrow the 2020 election results.

Then, almost another year later, on July 1, 2024, Trump’s Supreme Court majority held that Trump and all former presidents are protected from criminal prosecution if they commit crimes using presidential power. The majority’s immunity doctrine extends to all “core” presidential acts and provides a rebuttable presumption of immunity for other acts that are still considered official; only unofficial acts are unprotected.

The Court didn’t give much guidance on how to draw the line between official and unofficial. (This is unsurprising, as the majority made up the entire thing out of whole cloth.)

The case was sent back to the trial court to parse through the indictment and determine what evidence and charges could proceed now that the Supreme Court created presidential immunity from criminal prosecution for official acts.

Since that ruling over the summer, Jack Smith and the DOJ have worked tirelessly to redraft the indictment so that it might survive the ruling in Trump v. U.S.

At the end of August, Smith filed a superseding indictment. This indictment contained the four same counts that appeared in the original indictment (conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct an official proceeding, and conspiracy against rights). But, Smith removed all allegations that involved Trump acting in his “official responsibilities.” Instead, he emphasized that Trump was acting as a candidate for the presidency, not within his official capacity as president.

Then, on September 24, 2024, Judge Chutkan granted Smith’s request to file a brief well over the usual 45-page limit. Smith filed his brief two days later. ABC News reported that Smith then asked Judge Chutkan to allow him to file a “public version of the brief that includes ‘substantive’ summaries of what investigators learned from witnesses in the case.”

The filing was unsealed and made public on October 2, 2024.