Trump’s 2020 election case: What Jack Smith’s new filing argues

Federal US prosecutors on Wednesday unveiled their most comprehensive case against former President Donald Trump, focusing on his attempts to overturn the 2020 election results.

The extensive legal brief, which details the government’s allegations, was made public by US District Judge Tanya Chutkan, who is overseeing the high-profile criminal charges against Trump.

“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office,” Jack Smith, special counsel, wrote in the 165-page brief.

“Although the defendant was the incumbent president during the charged conspiracies, his scheme was a fundamentally private one,” he added.

That Trump acted in a private capacity in attempting to overturn the election result is at the heart of the argument Smith’s filing tries to establish. In July, the Supreme Court ruled that presidents had immunity for all official acts carried out while in office.

Smith’s new filing argues that Trump remains subject to trial for his efforts to overturn President Joe Biden’s election victory, because his actions were not performed in his presidential capacity, but rather to advance his campaign’s interests.

Here are some key takeaways from the filing.

‘So what?’: Trump on Pence’s safety under threat

On January 6, 2021, when a riotous mob of Trump supporters attacked Capitol Hill in Washington, DC, seeking to overturn the confirmation of Biden’s win by Congress, some of them chanted slogans suggesting that they wanted to hang Vice President Mike Pence.

Pence had refused to follow Trump’s demand that the vice president, as the chair of the US Senate, send the list of electors back to different states for their legislatures to verify. Trump was alleging widespread fraud in the election — a charge that has since been repeatedly rejected in multiple courts.

According to the Smith filing, after one Trump aide told the president that Pence’s safety was at risk, Trump replied, “So what?”

The Secret Service had to evacuate Pence and several members of Congress amid fears that they could be physically attacked by the mob.

Meanwhile, Trump posted on what was then known as Twitter — and is now X: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

Trump spoke as candidate, not president

A central argument that Smith tries to make in the filing is that when Trump addressed the large crowd that he had called to Washington, DC on January 6, he spoke not as president of the US but in his capacity as a Republican Party candidate in the 2020 election.

“He claimed his ‘election victory’ was ‘stolen’, that he would not ‘concede’, and that ‘with only three of the seven states in question, we win the presidency of the United States’,” the filing notes.

The brief alleges that Trump used pronouns like “we” to speak directly to his voter base rather than to all Americans, including those who didn’t vote for him.

“Finally, the defendant repeatedly aimed accusations at Biden, his principal opponent in the election contest, as would a candidate.”

The ‘digital breadcrumb’

Prosecutors, in the filing, have outlined a “digital breadcrumb” of Trump’s tweets and social media posts that they say unequivocally showcase his support for the US Capitol attacks on January 6 — and ever since.

His tweets that day, Smith argues in the filing, were “not a message sent to address a matter of public concern and ease unrest; it was the message of an angry candidate upon the realization that he would lose power”.

Prosecutors also alleged that Trump actively observed the Capitol riots via Fox News and Twitter.

The brief states that Trump “sat in the dining room by the Oval Office, where he used his phone to review Twitter and watched television”.

“In the years after January 6th,” the brief continues, “the defendant has reiterated his support for and allegiance to rioters who broke in the Capitol, calling them patriots and hostages, providing them with financial assistance.”

Hatch Act and staff officials

The Hatch Act, a law dating back to 1939, prohibits civil servants, while at the federal workplace, from expressing support or opposition for a political party or candidate.

The filing alleges that Trump broke that law on January 6, while plotting how to overturn the election with some aides, and in subsequent exchanges, too.

“Federal law confirms that the defendant’s campaign-related conversations with these White House staffers were unofficial,” stated Smith. “The Hatch Act permits certain White House staffers to engage in political activity while on duty, but prohibits them from using their official authority or influence for the purpose of interfering with or affecting the result of an election.”

Trump’s response

In characteristic style, the former president hit out at the filing made public on Wednesday on his social media platform, Truth Social.

“Democrats are Weaponizing the Justice Department against me because they know I am WINNING, and they are desperate to prop up their failing Candidate, Kamala Harris. The DOJ pushed out this latest ‘hit job’ today because JD Vance humiliated Tim Walz last night in the Debate,” Trump posted defiantly, referring to the October 1 debate between his running mate Vance and Walz, the Democratic Party’s vice-presidential candidate.