Opinion Jack Smith’s case got stronger over the past month
The first hint came in early December when special counsel Jack Smith filed a document laying out some of his evidence. “Smith alleges that a Trump ‘Campaign Employee’ — also identified as Trump’s ‘agent’ — sought to cause a riot to disrupt the centralized vote counting in Detroit on Nov. 4, 2020,” Tom Joscelyn, Norman L. Eisen and Fred Wertheimer observed in Just Security. “That goes beyond allegations of merely exploiting violence by third-parties to raise a new level of alleged wrongdoing.” Smith also cited some of Trump’s post-indictment statements sympathetic to the convicted rioters as evidence of Trump’s corrupt intent. Even Trump’s statement on Tuesday promising “bedlam” if he loses smacks of the same threats of violence that brought us Jan. 6, 2021.
Joscelyn, Eisen and Wertheimer laid out some of the stunning evidence:
The Justice Department alleges that a “Campaign Employee” — a person who is also described both as an “unindicted conspirator” and Trump’s “agent” — attempted to cause violence to “obstruct the vote count” at the TCF Center in Detroit, Michigan. In the weeks following the presidential election, Trump repeatedly and falsely claimed that there had been election fraud at the TCF Center — the central location where Detroit’s votes were tallied. But the special counsel turns Trump’s lies back against him, writing that “in truth [Trump’s] agent was seeking to cause a riot to disrupt the count.” It is worth repeating: Smith alleges that a Trump Campaign Employee sought to cause a riot — not just use violence by third-parties.
As the Just Security authors pointed out, Trump continued to lie about the Detroit vote counting even after his own attorney general, William P. Barr, told him the allegations were nonsense. “Evidence of the defendant’s post-conspiracy embrace of particularly violent and notorious rioters is admissible to establish the defendant’s motive and intent on January 6 — that he sent supporters, including groups like the Proud Boys, whom he knew were angry, and whom he now calls ‘patriots,’ to the Capitol to achieve the criminal objective of obstructing the congressional certification,” Smith wrote.
Smith also revealed in the December filing key evidence regarding Trump’s phone. As CBS News reported, an expert “specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.” First, this evidence might suggest Trump purposely used his own phone to make calls, perhaps to avoid detection. (That indicates awareness he was engaged in wrongful conduct.) Second, such evidence might help corroborate what we learned just a few days ago from ABC News.
The newest revelation, perhaps the most significant, also related to Trump’s actions on Jan. 6, 2021. “Many of the exclusive details come from the questioning of Trump’s former deputy chief of staff, Dan Scavino, who first started working for Trump as a teenager three decades ago and is now a paid senior adviser to Trump’s reelection campaign,” ABC News reported. “Scavino wouldn’t speak with the House select committee that conducted its own probe related to Jan. 6, but — after a judge overruled claims of executive privilege last year — he did speak with Smith’s team.”
During the assault on the Capitol, both Scavino and then-Trump aide Nick Luna allegedly heard Trump dismiss concerns about then-Vice President Mike Pence’s safety (“So what?”). If true, that’s more evidence Trump was content to allow the violence to play out. Scavino reportedly can testify that Trump was very angry on Jan. 6: “not angry at what his supporters were doing to a pillar of American democracy, but steaming that the election was allegedly stolen from him and his supporters, who were ‘angry on his behalf.’” This can be seen as still more proof of his intent to allow his supporters to shut down the electoral vote counting.
These events preceded Trump’s furious tweet at 2:24 p.m., essentially egging on the crowd to go after Pence. The new evidence bolsters other testimony that family members, lawmakers and aides failed to get him to call off the mob. The obvious conclusion: Trump intended to stop the vote count and was not about to halt the violence.
Moreover, Luna allegedly will provide evidence about a draft tweet Trump showed him that read: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots. … Remember this day for forever!” Even a nonlawyer like Luna knew this could be an admission he was “culpable” or even directing the violent mob.
Not too long ago, skeptical commentators opined that Smith would have a hard time tying Trump to the violence or proving the element of intent needed for the four counts: conspiracy to defraud, conspiracy to obstruct an official proceeding, obstruction of an official proceeding and conspiracy to deprive people of the right to vote and to have one’s vote counted. Not only have we learned Trump was repeatedly told there had been no fraud, but now we have potent eyewitnesses and forensic evidence of Trump’s alleged willingness to stop the electoral vote count at any cost.
Just Security’s model prosecution memo explained the required element of intent. “Regardless of their beliefs about the election outcome, [Trump and his associates] also knew that the means by which they pursued their objective were deceptive and inconsistent with established law. And there is no end-justifies-the-means safe harbor under § 371 for conspirators who deceitfully obstruct a lawful government function, even if they subjectively believe that their cause is justified.” That he not once but twice (in Michigan and D.C.) was eager to reap the benefits of violence certainly should constitute proof of his “deceitful” obstruction of the proceedings.
These revelations remind us why Trump’s lawyers are throwing up every legal excuse (including the preposterous and unsustainable position that the president has absolute immunity from prosecution) and using every stalling technique they can dream up to avoid going to trial. Smith has clear statutory grounds for the indictment. And he has evidence — more than we previously knew — from witnesses close to Trump that will help him prove the most difficult element in any crime: intent. If Smith gets to trial, he should have more than enough evidence to clear the bar of beyond a reasonable doubt.
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