The Immunity Brief

Let's go over all 165 pages, and see if what I expected to be included ended up in the motion!

Greetings! We have the long-awaited Special Counsel immunity brief from Jack Smith, and I have to tell you that the mountain of evidence and testimony Special Counsel intends to present in its case-in-chief is overwhelming. If even half of this is admitted as evidence at trial, Donald Trump is cooked.

If Jack Smith is good at one thing, it’s writing an indictment to withstand the shenanigans of Trump’s captured Supreme Court. For example, his original indictment was written to withstand even the Supreme Court’s inevitable narrow interpretation of the Obstruction of an Official Proceeding (1512(c)(2)) charge in the Fischer case. So is, too, his superseding indictment written to withstand some of his evidence being disqualified as immune official acts.

This brief comes in four parts: section one is the factual proffer - which turned out to be a lot more than I thought Jack Smith would be willing to share -but as he explains in his brief, it’s necessary in order for this court to weigh all the evidence and allegations to determine what are official acts for the purpose of deciding what is immune and what is not. In section one, Jack Smith puts all his cards on the table. On this weekend’s upcoming episode of the Jack podcast, I describe section one as the indictment on steroids. It’s not just what Jack knows, it’s how he knows it, and how he intends to prove it.

Section two is an explanation of why Jack’s cards are not official acts - and if the court determines they are - he explains why they are not immune. Jack Smith has the burden to explain why official acts are not immune, and the threshold is whether the prosecution of the official acts will interfere with the executive branch’s ability to do its job.

Section three applies the legal principles laid out in section two to the allegations and evidence against Trump. And section four is the ask: it’s what Jack Smith wants Judge Chutkan to conclude, and why.

Beginning with section one, there’s not much in here we haven’t heard from either public reporting or the January 6th hearings - and a lot of it is stuff that we kind of assumed, but is now spelled out for us with supporting evidence and summaries of testimony. There were a couple of stand out moments in the factual proffer for me. Jack Smith writes:

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. As set forth in detail below, the defendant worked with private co-conspirators, including private attorneys:

CC1 (Rudy) CC2 (Eastman) CC3 (Powell) and CC5 (Chesebro) and private political operatives СС6 (Epshteyn) and P1 (Bannon)

The defendant also relied heavily on private agents, such as his Campaign employees and volunteers, like Campaign Manager P2 (Bill Stepien) Deputy Campaign Manager P3 (Justin Clark) Senior Campaign Advisor P4 (Jason Miller) and Campaign operative P5 (Mike Roman).

In my Substack last week about what to expect in this brief, number one was:

The charged conduct is not subject to immunity because Donald Trump was acting in his capacity as a candidate for president.

Turns out, that’s basically his opening salvo. Moving on, a few of the things that caught my attention in section one include this passage:

Privately, the defendant told advisors-including P6 Campaign personnel, P7 (roger stone), and P8 (the Vice President's Chief of Staff Marc Short) that in such a scenario, he would simply declare victory before all the ballots were counted and any winner was projected.

Another important section is where Jack Smith gives more detail about the potential riot at the TCF Center in Detroit Michigan:

In the immediate post-election period, while the defendant claimed fraud without proof, his private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes. For example, on November 4, P5 (Mike roman —a Campaign employee, agent, and co-conspirator of the defendant-tried to sow confusion when the ongoing vote count at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a colleague at the TCF Center told P5 "We think [a batch of votes heavily in Biden's favor is] right," Mike Roman responded, "find a reason it isnt," "give me options to file litigation," and "even if it’s BS.” When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot, a violent effort to stop the vote count in Florida after the 2000 presidential election, Mike Roman responded, "Make them riot" and "Do it!!!"

That evidence is incredibly damning.

Additionally, there’s this testimony from Trump’s body man, Nick Luna:

At one point, long after trump had begun spreading false fraud claims, P15 (Nick Luna) overheard trump tell family members “it doesn’t matter if you won or lost the election, you still have to fight like hell.”

At this point in the conspiracy, Jack Smith turns to the fraudulent elector scheme, and he goes state by state explaining his evidence and why it’s not subject to immunity:

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.

That part about the president having no role in certifying electors was something else I had brought up in my post about what to expect. I wrote:

Providing election oversight is not the job of the president or anyone in the executive branch of the federal government. Elections are administered by states. The below comes from Jude Pryor’s ruling in the 11th Circuit when Mark Meadows wanted to have his case moved to federal court. We could see this language, but also the language cited from Sandlin and Roudebush:

I even wondered if Jack Smith would cite the Meadows case in Fulton County where he was trying to remove his case to federal court, but the 11th circuit said no because it’s the executive branch has no role in certifying electors - and Jack Smith did indeed cite that case.

Then in section two, Jack Smith makes simple work out of a muddy and convoluted Supreme Court ruling on immunity. He says - and I’m paraphrasing:

First, decide whether the trump conversations with Pence are official. If they are, then it’s on us to rebut presumptive immunity. We rebut it because Trump has no role in certifying electors.

Next, all other conversations we intend to bring in with Pence are between a candidate and his running mate, so no immunity attaches. Perfect! That’s what I said last week:

Discussions between Pence and Trump were not between a president and vice president, they were between a candidate for president and his running mate, or a candidate for president and the president of the senate. Therefore, these discussions aren’t even presumed immune.

Finally, nothing else in the indictment is immune because it was all undertaken by Donald as a candidate for office.

BUT, there’s the tweets. Jack Smith says:

As an initial matter, the defendant sent, or directed the sending of, all Tweets and re-Tweets from @realDonaldTrump, the personal Twitter account that the defendant started long before assuming the presidency.

During his presidential term, the defendant sometimes used the @realDonaldTrump account to tweet about official business, including regarding COVID relief and vaccines, legislation in Congress, and Executive Branch business. But he also regularly used the account to post on unambiguously private matters—for example, when he posted a picture of himself golfing with Jack Nicklaus and Tiger Woods at the Trump National Golf Club in Jupiter, Florida, and re-tweeted a Trump Organization post about the Trump New York hotel being “named the #1 ‘Best Hotel in the World!

Here’s what I wrote last week about the tweets:

Certain tweets sent out by the president are not subject to immunity because they were sent in his private capacity as a candidate for office 

Then Jack Smith addresses Trump’s speeches, including the one on January 6th on the Ellipse. He says in his brief:

The defendant made a number of speeches as a candidate, rather than as an office-holder. The superseding indictment cites, and the Government plans to use at trial, two: the defendant’s Campaign speech at a political rally in Dalton, Georgia, on January 4, 2021, and his Campaign speech at a political rally on the Ellipse on January 6, 2021. The rally was completely funded by a $2.1M private donation by a grocery chain heiress.

Here’s what I wrote last week:

The speech at the Ellipse on January 6th was a campaign speech delivered by a candidate, not a speech delivered by trump in his capacity as president. The rally was privately funded and privately organized. 

Some other odds and ends: Last week I wrote:

We COULD see mention of those two reports the trump campaign spent $1.5M on from research firms he hired to find voter fraud. Both reports showed there was no voter fraud. I suspect the reports themselves would be filed as an exhibit under seal. The reports aren’t mentioned in the superseding indictment.

Sure enough:

Greg Jacob was privy in real time to the findings of the two expert consulting firms the Campaign retained to investigate fraud claims - Rudy Giuliani and John Eastman - and discussed with the defendant their debunkings on all major claims.

I’m glad that evidence is part of his case in chief. Something else I wondered about last week:

The superseding indictment added a lot of information about the “RNC Chairwoman”. I could see Jack Smith using her presence to bolster the idea that Trump called state election officials to pressure them in his capacity as a candidate for office.

As it turns out, Jack Smith does intend to use the fact that private surrogates were on calls and in meetings with state officials as evidence the calls were private in nature. Here, he specifically raises the fact that the RNC chairwoman was in the meeting with the Michigan electors he tried to pressure:

The defendant originally initiated the meeting through RNC Chairwoman a private and partisan actor, and then followed up himself with [the Michigan state officials] -both fellow Republicans and strong political supporters of the defendant (suggesting the President acts in an unofficial capacity when acting as "party leader").

Jack Smith then concludes in section four as follows:

…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.

What he means here is that even if Judge Chutkan decides none of these are official acts, that she should add that even if they are, immunity is rebutted. That way, it doesn’t have to go up to the Supreme Court on appeal more than once.

I encourage you to read the entire brief.. It’s incredibly damning and the evidence is overwhelming.

I doubt Jack Smith will get everything he’s asking for, but as I mentioned before, he’s written this indictment in such a way that all four charges would survive on the fraudulent elector scheme alone - which is clearly not subject to immunity. Will the Supreme Court agree? That’s an entirely different question. I don’t trust them - even on basic applications of the law.

~AG