Immunity Doesn’t Apply to Trump for January 6
A new filing by special counsel Jack Smith argues that even in light of the Supreme Court ruling granting immunity to presidents, a seeker of office is liable for criminal activity.
Special counsel Jack Smith in Washington, DC, on August 1, 2023, and former president Donald Trump in Palm Beach, Florida, on November 8, 2022.
(Saul Loeb and Eva Marie Uzcategui / AFP)
Despite the heroic exertions of Donald Trump to dismiss, downplay, and otherwise memory-hole his shameful role in fomenting the MAGA coup attempt on January 6, 2021, that deranged moment in Republican political history keeps resurfacing, like the madwoman in the attic in a Victorian novel. In this week’s vice -presidential debate, the standout exchange occurred near the end, when JD Vance brazenly lied about the transfer of power to the Biden White House as a smooth and peaceful affair. Then, when confronted by his opponent, Tim Walz, on the key question of whether he believed Trump lost the 2020 election, Vance refused to answer, saying he was only “speaking about the future.”
Well, January 6 is the future should Trump reassume the presidency, and federal prosecutor Jack Smith, who is leading the long-delayed prosecution of Trump for his central role in promoting the coup attempt, drove that point home in unmistakable terms with a newly released filing in support of his indictment. Smith had been forced to revamp his case with a superseding indictment this August, in the wake of the Supreme Court’s ludicrous, Trump-osculating decision granting unfathomably broad executive immunity protections to the presidency. The new 165-page filing from Smith supplies a detailed factual foundation for his argument that Trump doesn’t come under these expansive new immunity protections when it comes to the election he was acting to overturn, since “where the defendant is acting as an office-seeker, not an office-holder, no immunity attaches.”
The chronology in the filing’s finding of fact makes it clear just how manic and deranged Trump was in seeking to cling to the presidency—to the point of deliberately dismissing the actual outcome of the election. During Trump’s months-long crusade to discredit the balloting, without a shred of evidence, one White House staffer overheard him telling his nepo-adjutants Ivanka Trump and Jared Kushner, “It doesn’t matter if you won or lost the election. You still have to fight like hell.”
That was the de facto motto of the whole unfounded assault on a free and fair election. As election officials in downtown Detroit continued to count ballots the day after the election, a group of GOP protesters, high on bogus “stop the steal” rhetoric, tried to break into the building and disrupt the count. An operative at the scene texted a Trump campaign official—whose identity is redacted in the filing, but who appears to be the campaign’s elections operations director, Mike Roman. That campaign official had initially parried an earlier text indicating that the counting was legitimate with the directive, “Find a reason it isn’t.” Now told that the confrontation could explode into another “Brooks Brothers riot”—the Roger Stone–orchestrated campaign op that stymied a critical recount effort in Florida after the 2000 election—the official replied, “Make them riot. Do it!!!”
That was the Trump team’s ethos on January 6 as well, as Smith’s filing makes painfully clear. As frantic White House officials sought to get Trump to issue a statement telling the January 6 rioters to stand down, Trump instead churlishly repaired to the White House dining room to watch TV and tweet. This was when he issued the fateful tweet excoriating his vice president, Mike Pence, for lacking the “courage” to throw out the election results and anoint Congress with nonexistent powers to overturn the ballots of 81 million Americans. In no time flat, Pence’s Secret Service detail was forced to evacuate him from the Capitol, since, per Smith’s filing, “the defendant personally posted the tweet…at a point when he already understood the Capitol had been breached.” When another White House aide informed Trump of Pence’s evacuation as rioters came within 40 feet of his location, Trump’s reply was “So what?”
Whatever else this is, it’s clearly not the conduct of a US president honoring his constitutional oath or carrying out the duties of his office. As Smith’s filing points out, the president has no designated role in overseeing or certifying election results—for the obvious reason that doing so represents a howling conflict of interest.
Many of the other revelations in Smith’s report rehearse the well-known chronology of lies, evasions, threats, and incitements to violence and chaos cataloged in the second Trump impeachment and in the report by United States House Select Committee on the January 6 Attack. There’s the pathetic promotion of phony claims of election fraud in the fraught post-election voting counts in Arizona and Georgia—and the utter absence of any supporting evidence behind them. There are the outlandish claims of rigged voting machine algorithms, administered by sinister actors in foreign lands. There are the musterings of “fake elector” slates to swoop in and overturn the results in the MAGA-fomented crisis Trump dreamed of touching off. The rank cynicism of this maneuver was conveyed in communications from another lickspittle Trump campaign lawyer, evidently Mike Cheseboro, that unironically designated the fake electors as just that.
Even at this late date in the sorry history of MAGA demagogy and delusion, the details of the whole deeply cynical, authoritarian counter-empirical putsch are appalling. Among other things, Smith’s filing dramatizes just how the drift into the modern imperial presidency—a trend that the Roberts immunity ruling has put on steroids—threatens the core operations of democratic governance, from the protections of ballot access to (pace JD Vance) the peaceful transfer of power. In his January 6 speech at the Capitol Ellipsis, Trump reprised his counsel to Ivanka and Jared, telling the crowd of incipient rioters that they needed “to fight like hell” against the sinister power grab of the Biden organization or they “won’t have a country.” Yet this sobering documentary review of the Trump-led election scam and path to violent incitement makes it clear that the real forces jeopardizing our country are the MAGAfied GOP power elite.
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