Unlock the US Election Countdown newsletter for free
The stories that matter on money and politics in the race for the White House
Donald Trump engaged in a “private criminal effort” to overturn the 2020 US election result, the prosecutor appointed to lead federal cases against the former president has alleged, in a bid to advance one of the most serious cases against the Republican presidential candidate.
Trump and his allies “pursued multiple criminal means to disrupt” the 2020 vote, Jack Smith, the special counsel overseeing the US Department of Justice’s cases against Trump, said in the 165-page court document unsealed on Wednesday.
The filing, which was peppered with redactions, is one of Smith’s boldest attempts at pushing ahead a case that has been heavily delayed since the DoJ first charged Trump more than a year ago in connection with an alleged attempt to block the certification of President Joe Biden’s 2020 win.
Smith’s filing contained some new revelations about Trump’s conduct in the aftermath of the 2020 election and on January 6 of the following year, when a group of his supporters stormed the US Capitol. Trump and his allies spread false claims about the vote for weeks to stir up those supporters, Smith alleged, and in particular pushed the notion that vice-president Mike Pence had the legal authority to stop Congress’s certification of the results — which Pence himself strenuously denied.
At one point on January 6, according to the filing, an aide informed Trump that Pence had been rushed to a secure location because of the threat he faced from the rioters. “So what?” Trump replied.
Trump has claimed broad presidential immunity for acts taken while in the White House. His appeal made its way to the Supreme Court, which in July said he was shielded from criminal prosecution for public acts as president. Lower courts would have to draw the boundaries between a president’s personal and official acts to determine what can proceed, the high court held.
Smith has now asked the judge overseeing the case, Tanya Chutkan, to determine what actions are protected from prosecution. In the filing he wrote that Trump’s alleged misconduct generally involved only private acts, which according to the Supreme Court are not subject to presidential immunity.
The district court should “determine that the defendant must stand trial for his private crimes as would any other citizen”, Smith said. Trump was “acting in his capacity as a candidate for re-election, not in his capacity as President”.
Smith’s latest motion comes a month before the 2024 general election. Trump is facing off against vice-president Kamala Harris in a tight race in which the pair remains in a virtual tie in all seven swing states that will decide the election, according to the Financial Times poll tracker. Harris has a 3.6 percentage point lead over Trump in national polls.
Lawyers representing Trump did not immediately respond to a request for comment.
In a post on his Truth Social platform, Trump called the filing a “hit job” by Democrats. “This is egregious PROSECUTORIAL MISCONDUCT, and should not have been released right before the Election,” he wrote.
The filing included a detailed description of “increasingly desperate plans” deployed by Trump and co-conspirators in a bid to overturn results in seven states: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin.
As president, Trump “had no official role” in government processes linked to collecting and counting votes, Smith said.
The special counsel alleged that Trump’s schemes began “well before” the 2020 election. Three days before the November vote, a co-conspirator cited in the filing told supporters: “And what Trump’s going to do is just declare victory . . . That doesn’t mean he’s the winner, he’s just going to say he’s the winner.”
By December, one of Trump’s attorneys sought to pressure Michigan’s then-Speaker of the house, claiming that Georgia’s legislature was poised to change the state electoral outcome. Georgia’s officials “don’t just have the right to do it but the obligation”, the attorney wrote in a message cited in the filing. “Help me get this done in Michigan.”
On a call with Republican legislators in Pennsylvania following the 2020 vote, Trump ordered that the state election “has to be turned around”, according to the filing.
Trump’s lawyers said the US government had “restyled” the motion “in an unsuccessful effort to mask the fact that there is no basis in federal criminal procedure or the Constitution for a filing that attempts to usurp control and presentation of a defendant’s defence in a criminal case”, according to legal documents.
Since leaving the White House, Trump has been charged in four separate criminal cases, but none will be fully resolved ahead of the 2024 election. He was convicted in a “hush money” case in Manhattan, but sentencing has been delayed until after the November polls.
Smith obtained a separate indictment accusing Trump of mishandling classified documents, but a Florida judge has dismissed the case. Georgia state prosecutors had also charged Trump with seeking to overturn the 2020 vote, but proceedings are at a standstill amid misconduct accusations against the district attorney who brought the case.