Trump not immune from crimes in election case, US argues

WASHINGTON — The U.S. Supreme Court’s ruling on presidential immunity should not prevent Donald Trump from standing trial for his “private crimes” in trying to overturn the 2020 election, according to a newly unsealed filing by U.S. prosecutors.

The government’s 165-page brief, released Wednesday with some redactions, starts the next round of legal fighting over whether the latest version of the indictment can proceed after the high court held that presidents in many instances cannot face charges for official acts while in office.

“Although the defendant was the incumbent president during the charged conspiracies, his scheme was fundamentally a private one,” U.S. Special Counsel Jack Smith’s office argued.

The brief offers fresh insights into the government’s argument that Trump’s interactions with Vice President Mike Pence should stay in the case. The government says Trump was acting as a private citizen and candidate when he allegedly pressured Pence to intervene to stop or delay Congress from certifying Biden’s win.

Trump’s lawyers have focused on the Pence communications as a vulnerability in the revised indictment. The justices had suggested Trump might have immunity from that allegation.

The filing likely marks the last time the prosecutors will air potential evidence against the former president before the Nov. 5 election, in which Trump is running against Vice President Kamala Harris.

Trump is due to file his response by Oct. 17, and then the government will get a final chance to respond on Oct. 29. US District Judge Tanya Chutkan has not announced if she plans to hold a hearing. No trial date has been set.

Trump spokesperson Steven Cheung said in a statement that the “falsehood-ridden” brief was an attempt by the Biden administration to interfere with the upcoming presidential contest.

The brief offers a preview of what a trial against Trump would look like. Prosecutors said they would call swing-state election officials to testify about the falsity of Trump’s fraud claims. They also would introduce the contents of Trump’s iPhone and tweets that the government contends “were unofficial” from Trump’s account.

In addition, prosecutors plan to call a White House official to testify that Trump indicated to his family members in private that he would fight to remain in office regardless of whether he had won the election, according to the filing.

Trump told his wife, daughter and son-in-law that “it doesn’t matter if you won or lost the election. You still have to fight like hell.”

A spokesperson for Trump did not immediately return a request for comment.

The special counsel said prosecuting Trump for his “corrupt efforts” regarding Pence should not be off limits under the Supreme Court test.

At trial, prosecutors would introduce evidence of private phone calls or in-person meetings that Trump had with Pence in their unofficial capacities as running mates after the election, according to the filing.

The filing indicates that Trump was so eager to remain in office that he even told campaign and White House staff members and Pence’s chief of staff ahead of the election that “he would simply declare victory before all the ballots were counted and any winner was projected.”

The special counsel said the government will present evidence that Trump, in his capacity as a candidate, contacted state election officials in some swing states to press his false claims about election fraud. He hosted Michigan lawmakers at the White House while placing calls to Arizona officials and Georgia’s attorney general — all fellow Republicans, according to the filing.

Trump made the outreach even though “he had no official role in the process by which states appointed and ascertained their presidential electors,” the special counsel said.

Pence was one of the people who told Trump his claims of having won the election were false, according to the U.S.

“The evidence demonstrates that the defendant knew his fraud claims were false because he continued to make those claims even after his close advisors — acting not in an official capacity but in a private or campaign-related capacity — told him they were not true,” prosecutors said.

The special counsel argues that presidents have no official role in helping states organize their presidential electors. The filing noted that Supreme Court Justice Amy Coney Barrett wrote in her concurring opinion that Trump’s organizing of alternate presidential electors is conduct that “is private and therefore not entitled to protection.”

Smith’s office had a forensic examiner from the FBI’s computer analysis response team examine Trump’s phone. The FBI official will testify and describe the activity on the phone during the Capitol riot on Jan. 6, 2021, to show that Trump sat in the White House dining room watching TV and using Twitter, according to the filing.

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(With assistance from Patricia Hurtado and Erik Larson.)