The federal judge overseeing Donald Trump’s election interference case unsealed special counsel Jack Smith’s 165-page behemoth of a motion about Trump’s immunity claims on Wednesday. What Smith makes clear is that even though the conservative justices on the United States Supreme Court invented a brand new doctrine of presidential immunity just for Trump, it isn’t enough to save him from needing to stand trial for his criminal actions.
Before digging into Smith’s motion, it’s worth remembering how out-of-pocket the Supreme Court’s immunity decision was. The court’s six conservatives—three of whom were appointed by the person they decided to swaddle in immunity—decided that Trump was absolutely immune from criminal prosecution for actions within his “conclusive and preclusive” authority, presumptively immune from prosecution for all official acts, and not immune for unofficial acts.
It was a wildly ahistorical decision with no basis in the Constitution and one that, as Justice Sonia Sotomayor wrote in her dissent, made the president “a king above the law.” Now, if a president can somehow pair his criminal act with one of his official duties, he can’t be prosecuted.
“Orders the Navy's Seal Team 6 to assassinate a political rival? Immune,” Sotomayor wrote. “Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune.”
Smith’s challenge was to explain how Trump’s actions to overturn the election were unofficial acts, not a function of his office. To anyone not wholly poisoned by conservative rhetoric, this is a no-brainer, as there’s no way to genuinely assert Trump’s increasingly frantic attempts to undo the 2020 election were related to his role as president. But given that the Supreme Court is currently dominated by people wholly poisoned by conservative rhetoric, Smith had to spend 165 pages carefully detailing each step Trump took to undermine the election, arguing that those steps were taken as a private citizen and candidate, and showing that the people conspiring with Trump were private attorneys and campaign personnel, not members of the government.
For anyone familiar with Trump’s shambolic post-election efforts and the myriad criminal cases he’s faced, much of what is in the motion isn’t new. The biggest bombshells are about then-Vice President Mike Pence, who Trump treats with such disdain that you’d almost feel sorry for him if he wasn’t, well, Mike Pence. Trump spent weeks pressuring Pence, and apparently Pence spent weeks trying to gently cajole Trump, much like one would coax a toddler, into understanding the election was over.
After it became clear that Joe Biden won the election, Pence told Trump, “Don’t concede, but recognize the process is over.” Pence also encouraged Trump to look at the election not as a loss but “just an intermission.” In return, on Jan. 6, Trump told rallygoers Pence had the power to overturn the election and then attacked Pence via tweet for his refusal to do so. After Pence was rushed to a secure location as Trump supporters stormed the Capitol, a staffer told Trump, hoping he’d take action to protect Pence.
Instead, Trump responded, “So what?”
Smith also uses the motion to preemptively undercut any Trump assertion that he was acting in his official capacity to protect election integrity. First, in reaching out to various officials in swing states Biden won, Trump only contacted Republicans. A genuine inquiry into the election would have required him to talk to, for example, the secretary of state in Michigan, who oversees elections. However, that person is a Democrat, so Trump instead talked to Republican members of the state legislature. Next, despite his sweeping assertions of fraud, Trump only focused on his own race rather than raising any general concerns about voting issues.
Trump has repeatedly claimed that he was not allowed to present evidence of this vast voter fraud conspiracy in the dozens of post-election cases he brought. But Smith’s motion shows that Trump and his assorted hangers-on didn’t even attempt to provide that evidence to other Republicans who would have, presumably, been more than happy to find a way forward for Trump.
When Trump raised claims of election fraud with then-Arizona Gov. Doug Ducey, Ducey asked Trump to send him evidence. Trump declared, "We’re packaging it up,” but never sent anything. Trump tweeted that he would show “massive and unprecedented fraud” in Michigan, only to have the campaign decline to pursue a state-wide recount. As late as Nov. 30, Trump attorney Rudy Giuliani was still shopping voter fraud in Arizona, admitting that “[w]e don’t have the evidence, but we have lots of theories.”
Smith also highlights that Trump and his co-conspirators knew they were lying because they kept changing the numbers of allegedly fraudulent votes. In Arizona, Trump and friends first alleged that 36,000 noncitizens voted in the state. Five days later, it was suddenly a few hundred thousand, then back down to a “bare minimum” of 40 or 50,000, then back up to 250,000, plummeting to 32,000, only to return to the original, never verified, 36,000.
Trump attorney John Eastman sounded even more unhinged when trying to explain how the ostensible fraud worked: “They put those ballots in a secret folder in the machines sitting there waiting, until they know how many they need. And then the machine after the close of polls, we now know who's voted. And we know who hasn't. And I can now in that machine match those unvoted ballots with an unvoted voter and put them together in the machine.”
Finally, Smith describes multiple Republican allies telling Trump that he would likely lose the election, that he had indeed lost the election, and that his fraud claims were false. Trump simply didn’t care.
“It doesn’t matter if you won or lost the election. You still have to fight like hell,” Trump declared. Though not strictly related to the immunity issue, including this tidbit allows Smith to push back on the inevitable defense claim that Trump sincerely believed he won.
Trump’s legal team has now proposed that he get an additional five weeks to file his response, pushing it out comfortably past the election to Nov. 21 instead of the required deadline of Oct. 17, along with a request to file an additional reply brief by Dec. 19.
His only real plan is to drag this out past Election Day and hope he wins. That’s just another reason why Trump needs to lose.
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