Unsealed court docs say Trump not immune; ‘resorted to crimes’ after losing 2020 election

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FILE - Republican presidential nominee, former U.S. President Donald Trump, looks one during a campaign rally at The Expo at World Market Center Las Vegas on September 13, 2024 in Las Vegas, Nevada. With 53 days before election day, Former President

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A legal brief has been released outlining unseen information in the case charging former President Donald Trump with plotting to overturn the 2020 election he lost.

While the brief was not previously accessible to the public, prosecutors filed a redacted version Wednesday.

The court filing alleges that Trump "resorted to crimes" in private acts that do not entitle him to immunity from prosecution as a former president.

The brief was submitted by special counsel Jack Smith’s team following a Supreme Court opinion that conferred broad immunity on former presidents and narrowed the scope of the prosecution.

The purpose of the brief is to convince U.S. District Judge Tanya Chutkan that the offenses charged in the indictment are private acts, rather than official, and can therefore remain part of the indictment as the case moves forward.

Brief details

Conversations with Mike Pence

The filing includes details of conversations between Trump and then Vice President Mike Pence, including a private lunch the two had on Nov. 12, 2020, in which Pence "reiterated a face-saving option" for Trump, telling him, "don’t concede but recognize the process is over," according to prosecutors.

In another private lunch days later, Pence urged Trump to accept the results of the election and run again in 2024.

"I don’t know, 2024 is so far off," Trump told him, according to the filing.

Later, on Jan. 1, 2021, the brief alleges Pence repeated to Trump that he did not believe he had the power under the Constitution to decide which votes to accept, to which Trump allegedly told him that "hundreds of thousands" of people "are gonna hate your guts" and "people are gonna think you’re stupid," and berated him pointedly, "You’re too honest."

Jan. 6 Ellipse rally

The brief continued to argue that Trump’s "steady stream of disinformation" in the weeks after the election culminated in his speech at the Ellipse on the morning of Jan. 6, 2021.

"When the defendant took the stage at the Ellipse rally to speak to the supporters who had gathered there at his urging, he knew that Pence had refused, once and for all, to use the defendant’s fraudulent electors’ certificates. The defendant also knew that he had only one last hope to prevent Biden’s certification as President: the large and angry crowd standing in front of him. So for more than an hour, the defendant delivered a speech designed to inflame his supporters and motivate them to march to the Capitol," the brief continued.

Jack Smith's legal brief

On Sept. 26, special counsel Jack Smith filed, under seal, the legal brief that prosecutors previously said would contain sensitive and previously unseen evidence.

The brief, submitted over objections from Trump’s team, was aimed at defending a revised and stripped-down indictment that prosecutors filed in August to comply with a Supreme Court ruling that said former presidents are presumptively immune for official acts they take in office but are not immune for their private acts.

Prosecutors said in early September that they intended to present a "detailed factual proffer," including multiple exhibits and excerpts of grand jury testimony, to U.S. District Judge Tanya Chutkan in hopes of persuading her that the remaining allegations in the new indictment should not be dismissed and should continue to be part of the case.

In their new indictment, Smith's team ditched certain allegations related to Trump's interactions with the Justice Department but left the bulk of the case intact, arguing that the remaining acts — including Trump's hectoring of his vice president, Mike Pence, to refuse to certify the counting of electoral votes — do not deserve immunity protections.

"Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one," Smith’s team said, adding, "When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office."

Trump’s team objects to filing

The Trump team has vigorously objected to the filing, calling it unnecessary and saying it could lead to the airing of unflattering details in the "sensitive" pre-election time period.

"The Court does not need 180 pages of ‘great assistance’ from the Special Counsel’s Office to develop the record necessary to address President Trump’s Presidential immunity defense," Trump's lawyers wrote, calling it "tantamount to a premature and improper Special Counsel report."

Trump Georgia election interference case

In August 2023, a Georgia grand jury returned a 41-count indictment against Trump and 18 co-defendants, accusing them of conspiring to overturn Trump’s narrow 2020 election loss in the state. This case is one of four criminal prosecutions Trump faces. So far, four individuals have pleaded guilty after reaching deals with prosecutors.

Trump and several defendants sought to have Fulton County District Attorney Fani Willis and her office removed from the case, alleging a conflict of interest due to a romantic relationship between Willis and Nathan Wade, the special prosecutor leading the case. Fulton County Superior Court Judge Scott McAfee ruled that while no conflict merited disqualification, Wade must step down from the case. The decision has been appealed, with arguments scheduled before the Georgia Court of Appeals in December.