THE OTHER SIDE: It doesn’t matter if you won or lost

The Declaration of Independence makes crystal clear that the Founders fought for the proposition “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed …” Having lost the 2020 election, Donald Trump became the first president in our history to oppose the peaceful transfer of power and to try, in a mind-boggling variety of ways, to supplant the consent of the government. Donald Trump preferred tyranny over democracy. And for the first time since the Civil War, we watched the waging of an insurrection against the United States.

On November 18, 2022, Jack Smith was appointed by U.S. Attorney General Merrick Garland “to serve as Special Counsel to oversee two ongoing criminal investigations. The first is the investigation, as described in court filings in the District of Columbia, into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021. The second is the ongoing investigation involving classified documents and other presidential records, as well as the possible obstruction of that investigation, referenced and described in court filings submitted in a pending matter in the Southern District of Florida.”

Charisma is an amazing thing to behold. The process by which charisma is bestowed often defies reason. An overweight Indian sexual predator can almost magically convince once-sophisticated Americans to hand over their wealth and free will because, as their Guru, he knows the way to enlightenment. A mediocre German house painter can harness the humiliation of millions and mobilize them to countenance the burning of Jews and Gypsies and homosexuals in ovens. And more recently, there is the specter of a silver-spooned, draft-dodging son of a Queens slumlord who had to pay somebody to take his SAT tests to get into college. While gifted hundreds of millions, he manages to bankrupt business after business, including money-making machines like casinos. And while he can’t help but brag that he would never pay overtime and convinced non-union supporters to wear “United Auto Workers For Trump” T-shirts, he nevertheless has convinced 70 million Make America Great Again voters that he cares about and truly understands working people.

So, Jack Smith’s incredibly difficult job was/is to convince a variety of Trump enablers, former officials, and co-conspirators to testify about what they and Donald Trump really did while they publicly lied about the 2020 election they lost as they repeatedly threatened local and state officials and even volunteer poll workers who resisted their big lie. They went so far as to intimidate Mike Pence, the vice president of the United States, who managed to thwart their plan to steal the election because he had some semblance of a moral conscience. Then, luckily, Pence escaped being hung by Trump’s MAGA mob by mere seconds.

Following in the footsteps of the January 6 House Select Committee, Jack Smith methodically presented voluminous evidence to a grand jury documenting the attempts to undue the 2020 election. So convincing was that testimony that on August 1, 2023, Smith filed a four-count indictment, United States v. Donald J. Trump, charging him and others with Conspiracy to Defraud the United States, Conspiracy to Obstruct an Official Proceeding, Obstruction of and Attempt to Obstruct an Official Proceeding, and Conspiracy Against Rights.

Smith detailed a wide-ranging conspiracy that included:

1. Using “knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant”;
2. Organizing “fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws”;
3. Attempting “to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome …”;
4. Attempting “to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results”;
5. Repeating “knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused”; and
6. Then, “As violence ensued, the Defendant and co-conspirators exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims.”

Notwithstanding this damning case, the increasingly right-wing United States Supreme Court has chosen to bend over backwards to help Trump win the 2024 election. First, with their prolonged delayed ruling on his appeal, and then with a difficult-to-deny determination to keep him out of jail, they completely ignored the very heart of Smith’s case. Somehow, they failed to acknowledge what we had all watched with our own eyes, when Donald Trump unleashed the mob when all else failed. Had the MAGA members of the Court really missed the criminality that had led to the brutal beating of our Capitol and D.C. police? Had the Court not seen the Trump-provoked invasion of the Capitol, a riot that was clearly intended to prevent the counting of the votes that would have certified that Joe Biden was our new president?

The Supreme Court then issued their ruling in Trump v. United States ruling, which for the first time in American history asserted that the potentially illegal actions of a president—and the Special Counsel’s alleged illegal actions of a now ex-President—could be somehow normalized and sanitized to be considered an “exercise of his core constitutional powers” which, therefore, deserved absolute immunity from prosecution:

Despite their oft-stated fidelity to the original intent of the Constitution, the Court instead made a mockery of the historic efforts of our Founders to establish a republic in every way more democratic than the British Monarchy they took up arms to defeat.

The Court notes:

This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. Determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of Presidential power under the Constitution. The nature of that power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity …

When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions … Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority …

Not all of the President’s official acts fall within his ‘conclusive and preclusive’ authority. The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress. To determine the President’s immunity in this context, the Court looks primarily to the Framers’ design of the Presidency within the separation of powers, precedent on Presidential immunity in the civil context, and criminal cases where a President resisted prosecutorial demands for documents … the Court concludes that the separation of powers principles explicated in the Court’s precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’ Fitzgerald, 457 U. S., at 754. Pp. 12–15.

(3) As for a President’s unofficial acts, there is no immunity. (Emphasis added.)

In the guise of offering guidance to the lower courts, the Supreme Court eliminated from prosecution any of the attempts Trump made to pressure the attorney general and the staff of the Department of Justice to intervene in his attempts to disqualify legitimate votes. The Court writes:

The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

It is hard to imagine a more cynical proposition: imagining “shams or actions proposed for an improper purpose” as a legitimate exercise of the effective functioning of the Executive. And, all the while interceding to prevent anyone else—Congress or other courts—from attempting to secure the accountability and justice this Court is actively abdicating.

The Supreme Court then suggests there is a likely case for Trump to argue that his conversations and interactions with Vice President Mike Pence fell within the outer perimeter of his official responsibility. They write:

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

What a remarkable proposition considering that Donald Trump was pressuring the vice president to betray his obligation under the Constitution to merely record the legitimate votes sent to him by the states and instead pretend the falsely submitted votes merited a suspension of his duties.

The Court then declares:

The indictment’s remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public … After Trump failed to convince those officials to alter their state processes, he and his coconspirators allegedly developed and effectuated a plan to submit fraudulent slates of Presidential electors to obstruct the certification proceeding. On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. As the Government sees it, however, Trump can point to no plausible source of authority enabling the President to take such actions. Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations. The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial. (Emphasis added.)

At which point, the Supreme Court places the burden on Judge Chutkan to determine exactly which actions alleged in the indictment are to be considered:

1. Legitimate activities that fell under the rubric of “his exclusive sphere of constitutional authority”;
2. Activities which might be questionable and therefore deserved “at least a presumptive immunity from criminal prosecution” subject to the government’s successful showing that prosecution “would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch”; and
3. Which acts were unofficial and for which there was no immunity.

Jack Smith and his staff immediately went back to reframe their original indictment. They convened a new grand jury and eliminated the kinds of previous testimony that might not survive the Court’s new demands. And on August 27, 2024, the jury voted out a superseding indictment for United States of America v. Donald J. Trump.

Judge Chutkan then asked both the government and Trump to provide guidance on the crucial issues of immunity. According to The New York Times, Mr. Smith used his 165-page brief “to paint the indictment’s many individual allegations as fair game for prosecution. Still, despite its narrow legal purpose, the expansive filing also served as something like a trial brief, setting forth Mr. Smith’s fullest exposition yet of what he has learned in his nearly two-year-long investigation of Mr. Trump. Judge Chutkan unsealed the redacted version at the request of Mr. Smith and his team.”

Jack Smith has packed a remarkable amount of fact-finding into these 165 pages, and I am going to have to break all this down over the course of several columns. I will take it in the order he offered it to the court. I have kept the blacked-out names the way they appear in the brief. Just Security has speculated which numbers refer to which people and/or companies. So here is their best guesses as to Smith’s code: (CC1) Rudy Giuliani; (CC2) John Eastman; (CC3) Sidney Powell; (CC5) Kenneth Chesebro; (CC6) Boris Epshteyn; (C1) Simpatico Software Systems; 
(C2) Berkeley Research Group; (C3) Dominion Voting Systems; (P1) Steve Bannon; (P2) Bill Stepien; (P3) Justin Clark; (P4) Jason Miller; (P5) Michael Roman; (P6) a private Trump campaign advisor; (P7) a White House staffer and campaign volunteer; (P8) Mark Short; (P9) Eric Herschmann; (P10) Joseph diGenova; (P11) Victoria Toensing; (P12) Jenna Ellis; (P13) Jared Kushner; (P14) Ivanka Trump; (P15) Nick Luna; (P16) Former Gov. Doug Ducey (R); (P17) Gov. Brian Kemp (R): (P18) Former Rep. Rusty Bowers (R); (P19) Christina Bobb; (P20) Rep. Rusty Bowers’s legal counsel; 
(P21) Mark Meadows; (P23) Ray Smith III; (P24) Jackie Pick; 
(P25) Gabriel Sterling; (P26) Chris Carr; (P27) Sen. David Perdue (R – Ga.); (P28) Sen. Kelly Loeffler (R – Ga.); (P29) Shaye Moss; (P30) Ruby Freeman; (P31) Cleta Mitchell; (P32) Kurt Hilbert; 
(P33) Sec. Brad Raffensperger (R); (P34) Former Lt. Gov. Geoffrey Duncan (R); (P35) Ryan Germany; (P36) Alex Kaufman; 
(P37) Former Sen. Mike Shirkey (R); 
(P38) Former Rep. Lee Chatfield (R); (P39) Ronna McDaniel; (P41) a Michigan campaign associate; 
(P42) Molly Michael; (P43) Justin Riemer; (P44) an RNC spokesperson; (P45) Dan Scavino; (P46) Lawrence Tabas; 
(P47) Al Schmidt; 
(P48) Bernie Kerik; (P49) Brian Hagedorn; (P50) Chris Krebs; 
(P51) Tucker Carlson; 
(P52) Bill Barr; 
(P53) Jack Wilenchik; (P54) Trump campaign staffer; (P56) another member of the “Star Wars bar”;
 (P57) Former Rep. Tom Marino (R – Penn); 
(P58) Greg Jacob; (P59) Pat Cipollone; (P60) Kayleigh McEnany; (P61) Former Sen. Karen Fann (R – Ariz.); (P62) Ken Paxton; (P63) Eric Schmitt; 
(P64) Caroline Wren; (P65) Julie Fancelli; 
(P67) Shealah Craighead; 
(P68) Michael Flynn; (P69) Peter Navarro; 
(P70) Ivan Raiklin; (P71) Patrick Philbin; (P72) Matt Morgan; (P73) this individual assured Herschmann that he could trust P22; (P74) this person testified at a hearing in Georgia on December 10, 2020; (P75) this private attorney for Trump was ‘not optimistic’ about the election challenges.

Jack Smith succinctly sums up the issue at hand:

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. Not so. Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted — a function in which the defendant, as President, had no official role.

In Trump v. United States, 144 S. Ct. 2312 (2024), the Supreme Court held that presidents are immune from prosecution for certain official conduct — including the defendant’s use of the Justice Department in furtherance of his scheme, as was alleged in the original indictment — and remanded to this Court to determine whether the remaining allegations against the defendant are immunized. The answer to that question is no. This motion provides a comprehensive account of the defendant’s private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none of the defendant’s charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted; and requests the relief the Government seeks, which is, at bottom, this: that the Court determine that the defendant must stand trial for his private crimes as would any other citizen. (Emphasis added.)

Smith begins by noting the Supreme Court’s desire for “an evidentiary component, id., which should be ‘addressed at the outset of a proceeding,’ id. at 2334.” The task then, according to Smith, is that “for each category of conduct that the Supreme Court has not yet addressed,” Judge Chutkan “should first determine whether it was official or unofficial by analyzing the relevant ‘content, form, and context’ … to determine whether the defendant was acting in his official capacity or instead ‘in his capacity as a candidate for re-election.’ … Where the defendant was acting ‘as office-seeker, not office-holder,’ no immunity attaches … For any conduct deemed official, the Court should next determine whether the presumption of immunity is rebutted, which requires the Government to show that ‘applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’ Trump, 144 S. Ct. at 2331-32 (quoting Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982)).”

Smith proposes that by applying these “legal principles to the defendant’s conduct,” he has established “that nothing the Government intends to present to the jury is protected by presidential immunity.” He also proposes, “Although the defendant’s discussions with the Vice President about ‘their official responsibilities’ qualify as official, see Trump, 144 S. Ct. at 2336, the Government rebuts the presumption of immunity.” Smith concludes, “And all of the defendant’s remaining conduct was unofficial: as content, form, and context show, the defendant was acting in his capacity as a candidate for reelection, not in his capacity as President. In the alternative, if any of this conduct were deemed official, the Government could rebut the presumption of immunity.”

In this superseding indictment, Smith reframes the charges of the first indictment as a conspiracy of private parties, employing deceit and “knowingly false claims of election fraud,” and, Smith states, “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 — Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin …” He concludes:

They used these lies in furtherance of three conspiracies: 1) a conspiracy to interfere with the federal government function by which the nation collects and counts election results, which is set forth in the Constitution and the Electoral Count Act (ECA); 2) a conspiracy to obstruct the official proceeding in which Congress certifies the legitimate results of the presidential election; and 3) a conspiracy against the rights of millions of Americans to vote and have their votes counted. 

Using very specific language, Smith repeatedly distinguishes between legitimate executive action and Trump’s activities as a candidate: “a private criminal effort.” “In his capacity as a candidate, the defendant used deceit to target every stage of the electoral process.” Smith writes:

[Trump was] working with private attorneys [CC1blacked out], [CC2 blacked out], [CC3 blacked out], and [CC5 blacked out] … and private political operatives [CC6 blacked out] and [P1 blacked out]. The defendant also relied heavily on private agents, such as his Campaign employees and volunteers, like Campaign Manager [P3 blacked out], Senior Campaign Advisor [P4 blacked out] and Campaign operative [P5 blacked out].

Smith notes that Trump “laid the groundwork for his crimes” way before the 2020 election and “Privately, the defendant told advisors … he would simply declare victory before all the ballots were counted and any winner was projected.” According to Smith, Trump “[p]ublicly, the defendant began to plant the seeds for that false declaration. In the months leading up to the election, he refused to say whether he would accept the election results, insisted that he could lose the election only because of fraud …”

Smith adds these examples:

• “In an interview on July 19, 2020, when asked repeatedly if he would accept the results of the election, the defendant said he would ‘have to see’ and ‘it depends.’”
• “At a campaign event in Wisconsin on August 17, the defendant told his supporters, ‘the only way we’re going to lose this election is if the election is rigged, remember that. It’s the only way we’re going to lose this election, so we have to be very careful.’”
• “By October 2020, [P-1 blacked out], a private political advisor who had worked for the defendant’s 2016 presidential campaign, began to assist with the defendant’s re-election effort. Three days before election day. [P-1 blacked out] described the defendant’s plan to a private gathering of supporters: ‘And what Trump’s going to do is just declare victory. Right? He’s going to declare victory. That doesn’t mean he’s the winner, he’s just going to say he’s the winner.’ After explaining that Biden’s supporters favored voting by mail. [P-1 blacked out] stated further. ‘And so they’re going to have a natural disadvantage and Trump’s going to take advantage of it — that’s our strategy. He’s going to declare himself a winner … Immediately following election day on November 3, the defendant did exactly that.”

Smith notes:

At approximately 11:20 p.m. Fox News projected that Biden would prevail in the state of Arizona, and according to Campaign advisor [P4 blacked out] he and the defendant were shocked and angry at this development. As election day turned to November 4, the contest was too close to project a winner, and in discussions about what the defendant should say publicly regarding the election, senior advisors suggested that the defendant should show restraint while counting continued. Two private advisors, however, advocated a different course: [CC1 blacked out] and [CC6 blacked out] suggested that the defendant just declare victory. And at about 2:20 a.m. the defendant gave televised remarks to a crowd of his campaign supporters in which he falsely claimed, without evidence or specificity, that there had been fraud in the election and that he had won: “This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election. We did win this election. (Emphasis added.)

It is hard to imagine how the Supreme Court could find a way to dispute that these are clearly the actions of a candidate desperate to win power, not the acts of a president who has sworn an oath to defend the Constitution. It is difficult to countenance that creating chaos and employing violence—“Make them riot,” for example—can in any way fall under the protective rubric of official acts. And, as Smith alleges, these tactics played an integral part in the conspiracy:

Smith makes a persuasive case that Trump knew defeat was more than likely and that he was informed during a campaign meeting on November 7 by members of his campaign staff “that he had only a slim chance of prevailing in the election, and that any potential success was contingent on the defendant winning all ongoing vote counts or litigation in Arizona, Georgia and Wisconsin.” Smith notes:

Within a week of that assessment, on November 13, the defendant’s Campaign conceded its litigation in Arizona — meaning that based on his Campaign advisors’ previous assessment, the defendant had lost the election.

That same day, in an implicit acknowledgment that he had no lawful way to prevail, the defendant sidelined the existing Campaign staff responsible for mounting his legal election challenges. From [P2 blacked out], [P3 blacked out] and others who were telling the defendant the truth that he did not want to hear — that he had lost — the defendant turned to [CC1 blacked out] a private attorney who was willing to falsely claim victory and spread knowingly false claims of election fraud.

Is there any way the Court could imagine these activities as “official duties” and not partisan campaign politics?

Following election day and throughout the charged conspiracies, the defendant, his co-conspirators, and their agents spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These lies included dozens of specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes for the defendant to votes for Biden. And the defendant and co-conspirators continued to make these unsupported, objectively unreasonable, and ever-changing claims even after they had been publicly disproven or after advisors had directly informed the defendant that they were untrue.

Smith continues:

These advisors included [P9 blacked out], the White House staffer and Campaign conduit and Pence, the candidate’s running mate. [P9 blacked out]’s relationship with the defendant began before [P9 blacked out] worked for him in the White House. [P9 blacked out] had known [P13 blacked out], the defendant’s son-in-law since [P13 blacked out] was a child and through [P13 blacked out] met [P14 blacked out] and then the defendant. [P9 blacked out] was one of several attorneys who represented the defendant in his first impeachment trial in the Senate in 2019 and 2020, including presenting argument on the Senate floor on January 27, 2020. [P9 blacked out] began working in the White House as an Assistant to the President in August 2020. In October 2020. [P9 blacked out] became interested in learning more about the defendant’s Campaign, and in early November 2020, after he began interfacing with Campaign staff. [P9 blacked out] consulted with the White House Counsel’s Office to ensure he complied with any applicable laws regarding Campaign activity. Thereafter, and throughout the post-election period [P9 blacked out] became a conduit of information from the Campaign to the defendant, and over the course of the conspiracies. told the defendant the unvarnished truth about his Campaign legal team and the claims of fraud that they and the defendant were making. Examples of these instances include:

• • • [P9 blacked out] repeatedly gave the defendant his honest assessment that [CC1 blacked out] could not mount successful legal challenges to the election. For instance, when the defendant told [P9 blacked out] that he was going to put [CC1 blacked out] in charge of the Campaign’s legal efforts but pay him only if he succeeded, [P9 blacked out] told the defendant he would never have to pay [CC1 blacked out] anything; in response, the defendant laughed and said ‘we’ll see.’ Thereafter, in Oval Office meetings with the defendant, [CC1 blacked out] and others, in which [CC1 blacked out] made speculative claims, [P9 blacked out] told [CC1 blacked out] in front of the defendant – that [CC1 blacked out] would be unable to prove his allegations in a courtroom. In a separate private conversation, when [P9 blacked out] reiterated to the defendant that [CC1 blacked out] would be unable to prove his false allegations in court, the defendant responded, ‘The details don’t matter.’
    • In the post-election period [P9 blacked out] also took on the role of updating the defendant on a near-daily basis on the Campaign’s unsuccessful efforts to support any fraud claims. [P9 blacked out] told the defendant that the Campaign was looking into his fraud claims, and had even hired external experts to do so, but could find no support for them. He told the defendant that if the Campaign took these claims to court, they would get slaughtered, because the claims are all ‘bullshit.’ [P9 blacked out] was privy in real time to the findings of the two expert consulting firms the Campaign retained to investigate fraud claims — [C1 blacked out] and [C2 blacked out] and discussed with the defendant their debunking on all major claims. For example, [P9 blacked out] told the defendant that Georgia’s audit disproved claims that [C3 blacked out] had altered votes.

In the post-election time period. Pence — the defendant’s own running mate, who he had directed to assess fraud allegations — told the defendant that he had seen no evidence of outcome-determinative fraud in the election. This was in one of the many conversations the defendant and Pence had as running mates, in which they discussed their shared electoral interests. Pence gradually and gently tried to convince the defendant to accept the lawful results of the election, even if it meant they lost. These conversations included:

• • • A conversation on November 4 in which the defendant asked Pence to ‘study up’ claims of voter fraud in states that they had won together in 2016 to determine whether they could bring legal challenges as candidates in those states. Pence described the conversation as follows: ‘Well, I think, I think it was broadly. It was just look at all of it. Let me know what you think. But he told me that the Campaign was going to fight, was going to go to court and make challenges …. And then he just said we’re going to fight this and take a look at it. Let me know what you think.’
    • A call between the defendant and Pence on November 7, the day that media organizations began to project Biden as the winner of the election. Pence ‘tried to encourage’ the defendant ‘as a friend,’ reminding him, ‘you took a dying political party and gave it a new lease on life.’
    • A November 11 meeting among the defendant, Pence, Campaign staff, and some White House staff dining which Pence asked when most of the lawsuits would be resolved (‘when does this come to a head?’) and the Campaign staff responded, the ‘week after Thanksgiving.’
    • A November 12 meeting among the defendant, Pence, Campaign staff, and some White House staff dining which. Pence recalls, the ‘Campaign lawyers gave a sober and somewhat pessimistic report on the state of election challenges.’
    • A private lunch on November 12 in which Pence reiterated a face-saving option for the defendant: ‘don’t concede but recognize process is over.’
    • A private lunch on November 16 in which Pence tried to encourage the defendant to accept the results of the election and run again in 2024, to which the defendant responded, ‘I don’t know, 2024 is so far off.’
    • A November 23 phone call in which the defendant told Pence that the defendant’s private attorney, [P76 blacked out] was not optimistic about the election challenges.
    • A December 21 private lunch in which Pence ‘encouraged’ the defendant ‘not to look at the election “as a loss – just an intermission.”‘ This was followed later in the day by a private discussion in the Oval Office in which the defendant asked Pence, ‘what do you think we should do?’ Pence said, ‘after we have exhausted every legal process in the courts and Congress, if we still came up short, [the defendant] should “take a bow.”‘
    • Discussions in which Pence apprised the defendant of conversations he had had with governors in Arizona and Georgia in the context of ‘election challenges,’ in which Pence had called the governors ‘simply to gather information and share it with the president,’ and in which the governors did not report evidence of fraud in the elections in their states and explained that they could not take actions to convene their states’ legislatures.

But the defendant disregarded [P9 blacked out] and Pence in the same way that he disregarded dozens of court decisions that unanimously rejected his and his allies’ legal claims, and that he disregarded officials in the targeted states — including those in his own party — who stated publicly that he had lost and that his specific fraud allegations were false. Election officials, for instance, issued press releases and other public statements to combat the disinformation that the defendant and allies were spreading. At one point long after the defendant had begun spreading false fraud claims. a White House staffer traveling with the defendant, overheard him tell family members that ‘it doesn’t matter if you won or lost the election. You still have to fight like hell.’

The defendant and his co-conspirators also demonstrated their deliberate disregard for the truth — and thus then knowledge of falsity — when they repeatedly changed the numbers in their baseless fraud allegations from day to day. At trial, the Government will introduce several instances of this pattern, in which the defendant and conspirators’ lies were proved by the fact that they made up figures from whole cloth. One example concerns the defendant and conspirators’ claims about non-citizen voters in Arizona. The conspirators started with the allegation that 36,000 non-citizens voted in Arizona; five days later, it was ‘beyond credulity that a few hundred thousand didn’t vote’; three weeks later, ‘the bare minimum [was] 40 or 50,000. The reality is about 250,000’; days after that, the assertion was 32,000; and ultimately, the conspirators landed back where they started, at 36,000 — a false figure that they never verified or corroborated.

Ultimately, the defendant’s steady stream of disinformation in the post-election period culminated in the speech he gave at a privately-funded, privately-organized rally at the Ellipse on the morning of January 6, 2021, in advance of the official proceeding in which Congress was to certify the election in favor of Biden. In his speech, the defendant repeated the same lies about election fraud in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin that had been publicly, or directly, debunked. The defendant used these lies to inflame and motivate the large and angry crowd of his supporters to march to the Capitol and disrupt the certification proceeding.

There is chutzpah, and then there is major-league chutzpah. Smith reminds us of this fundamental truth about Donald Trump. Because “privately, the defendant told advisors … he would simply declare victory before all the ballots were counted and any winner was projected.” And so it didn’t really matter to him if he won or lost the election.

And as Smith notes, as Election Day shifted to November 4:

at about 2:20 a.m. the defendant gave televised remarks to a crowd of his campaign supporters in which he falsely claimed, without evidence or specificity, that there had been fraud in the election and that he had won: ‘This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election. We did win this election.’

Except he didn’t.