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Special counsel Jack Smith argued Monday that Donald Trump’s bid to subvert the 2020 election was far from a case of misplaced “advocacy” or constitutionally protected speech, and he urged the federal judge presiding over Trump’s Washington, D.C., trial to sweep aside Trump’s bid to “sanitize” his conduct.
“The defendant attempts to rewrite the indictment, claiming that it charges him with wholly innocuous, perhaps even admirable conduct — sharing his opinions about election fraud and seeking election integrity,” wrote assistant special counsel James Pearce, “when in fact it clearly describes the defendant’s fraudulent use of knowingly false statements as weapons in furtherance of his criminal plans.”
In a 79-page filing, Smith’s team articulated its clearest case yet for Trump’s prosecution, repeatedly characterizing Trump’s false claims of election fraud as knowing lies aimed at defrauding election officials — from secretaries of state and governors to his own vice president, Mike Pence. Smith also indicated he intends to introduce evidence in Trump’s March trial that Trump stoked the Jan. 6, 2021, riot at the Capitol and then used it to further his effort to derail Congress’ proceedings that day. Prosecutors say they will rely on Trump’s promise to pardon many of the rioters, his description of Jan. 6 as a “beautiful day” and his decision to record a song with some of the violent offenders imprisoned in the Washington, D.C., jail.
The filings were a rebuttal to Trump’s own efforts to dismiss the indictment, which charges him with mounting a sweeping campaign to pressure state and local election officials to throw out Joe Biden’s victory in closely fought swing states. That campaign of “deceit,” they say, continued with Trump’s effort to assemble false slates of presidential electors, which Pearce contended were meant merely to provoke the pretext of a controversy when Congress met to count the votes on Jan. 6.
“[T]he defendant stands alone in American history for his alleged crimes,” Pearce wrote. “No other president has engaged in conspiracy and obstruction to overturn valid election results and illegitimately retain power.”
Trump had argued that his exhortations to state officials were merely “advocacy” based on his fervent belief that the election was stolen from him. Prosecutors said this contention is belied by Trump’s repeated, specific claims of fraud that were repeatedly discredited by his own advisers. And he used those lies, they said, to obstruct the government’s effort to certify the election.
“Knowing lies are neither opinions nor ‘pure advocacy,’ and in any event, the defendant could not use so-called advocacy as a cover for his scheme to obstruct a governmental function through deceit,” Pearce wrote. “Were it otherwise, defendants captured en route to a bank robbery could not be charged with conspiracy because their crime did not succeed.”
Even if Trump could present evidence that he genuinely believed the election was stolen, the prosecutor added, his use of specific, debunked claims of fraud to achieve his goals would still make him guilty of an effort to defraud the government. His similar false statements to convince Pence to single-handedly overturn the election were built around his false claims of a “bona fide dispute about which slate of electors should be counted.”
Prosecutors spent much of their brief confronting Trump’s claim that the election-related charges he’s facing are an attempt to criminalize his free speech.
“The First Amendment does not protect fraudulent speech or speech otherwise integral to criminal conduct, particularly crimes that attack the integrity and proper function of government processes,” Pearce wrote. “The defendant’s comments about the virtues of the First Amendment, over which there is no dispute, do nothing to unsettle this line of unbroken precedent.”
In addition to the First Amendment defense, Trump is also seeking to have the case dismissed by asserting that he is “absolutely immune” from the charges. Prosecutors rebutted that argument last month.
On Monday, Pearce recounted a long list of elections — cited by Trump in his motions to dismiss the case — in which there were disputes or controversies related to which presidential electors to count. They include the elections of 1800, when Thomas Jefferson counted a slate of electors from Georgia that had been the subject of controversy; the election of 1960, when Richard Nixon counted a late-arriving slate of electors from Hawaii for his rival John F. Kennedy; and more recent elections when congressional Democrats mounted challenges to the results.
“Notably absent from any of these historical episodes, however, is any attempt by any person to use fraud and deceit to obstruct or defeat the governmental function that would result in the certification of the lawful winner of a presidential election,” Pearce concluded. “The existence throughout history of legitimate electoral disputes does not validate the defendant’s corrupt and dishonest actions any more than the existence of legitimate investment offers validates the creation of a criminal Ponzi scheme.”
In another filing, prosecutors also pushed back on Trump’s claim that he has been “selectively” or “vindictively” prosecuted by Smith as part of a political vendetta by the Biden administration.
“The incumbent president has no role in this case, and the career prosecutors handling this matter would not participate in this prosecution if it were otherwise,” contended senior assistant special counsel Thomas Windom in the 14-page filing.
Trump argued that he is the only person prosecuted for similar crimes in American history — a distinction Smith’s team noted was not a mistake.
“If the defendant is correct in his claim that the indictment is unprecedented, it is only because the defendant’s conduct is unprecedented,” Windom wrote.
However, Windom also argued that Trump’s charges can be readily compared to those facing the thousands who stormed the Capitol in his name. Citing the prosecutions of Oath Keepers leader Stewart Rhodes, Trump fan Daniel Rodriguez — who tased a police officer in the neck — and others, prosecutors noted that judges in each of those cases emphasized that they were not prosecuted for their political beliefs.