Donald Trump launched a “private criminal effort” to subvert the 2020 US election and should not be shielded by presidential immunity, Special Counsel Jack Smith said in a court filing unsealed last night.
Mr Smith, in a 165-page motion arguing for the historic case against Mr Trump to move forward, also provided new evidence of the former president’s efforts to overturn the results of the election won by Democrat Joe Biden.
Mr Trump, 78, the Republican candidate in November’s White House election, had been scheduled to go on trial in March but the case was frozen while his lawyers argued that a former president should be immune from criminal prosecution.
The Supreme Court ruled in July that an ex-president has broad immunity from prosecution for official acts conducted while in office, but can be pursued for unofficial acts.
Mr Smith, in the filing unsealed by District Court Judge Tanya Chutkan, who is hearing the case, said Mr Trump should not escape prosecution because “at its core, the defendant’s scheme was a private criminal effort.”
“The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct,” Mr Smith said. “Not so.”
“Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one.”
Mr Trump, acting as a candidate and not in his official capacity, “resorted to crimes to try to stay in office,” the special counsel said.
“With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost,” he said.
Mr Trump’s efforts allegedly included lying to state officials, manufacturing fraudulent electoral votes and seeking to get Vice President Mike Pence to obstruct congressional certification of Mr Biden’s victory.
“When all else had failed,” the special counsel said, Trump directed an “angry crowd” of supporters to the US Capitol on 6 January 2021, to disrupt the certification.
According to Smith’s filing, a White House staffer told Trump during the January 6 rioting at the Capitol that Pence had been taken to a secure location, to which the president replied “So what?”
Mr Smith said there was abundant evidence that Mr Trump knew his claims of electoral fraud were false because close advisers had told him so.
The former president even dismissed some of the most far-fetched fraud claims advanced by his supporters as “crazy,” he said.
The special counsel said a former White House staffer would testify at trial that he heard Mr Trump tell family members after the vote that “it doesn’t matter if you won or lost the election. You still have to fight like hell.”
Mr Trump, in a post on Truth Social after the filing was unsealed, said “Democrats are Weaponizing the Justice Department against me because they know I am WINNING.”
“This is egregious PROSECUTORIAL MISCONDUCT, and should not have been released right before the Election,” he said.
Judge Chutkan has not set a date for a trial but it will not be held before the 5 November election between Mr Trump and Vice President Kamala Harris.
Mr Trump is accused of conspiracy to defraud the United States and conspiracy to obstruct an official proceeding – the session of Congress that was violently attacked by Mr Trump supporters.
The former president is also accused of seeking to disenfranchise US voters with his false claims that he won the 2020 election.
Mr Trump was convicted in New York in May of 34 counts of falsifying business records to cover up hush money payments made to adult film actress Stormy Daniels.
He also faces charges in Georgia related to efforts to overturn the 2020 election.