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Special counsel Jack Smith is requesting that a Washington, D.C. jury be briefed on former President Donald Trump's efforts to cast false doubts on the elections of 2012 and 2016 — a strategy the special counsel's team contends laid the groundwork for a criminal effort to overturn the 2020 election after Trump's defeat to Joe Biden.
Prosecutors in Tuesday's filing said that they want to focus on highlighting Trump's “historical record” of “false claims of election fraud.” Some of these claims were made as early as November 2012, when the former president issued a public tweet falsely suggesting that voting machines had switched votes from then-candidate Mitt Romney to former President Barack Obama, according to the filing.
Smith is requesting approval from U.S. District Judge Tanya Chutkan to present evidence not explicitly listed in the criminal indictment, but that may be pertinent to the jury's deliberation on the alleged crimes.
Smith is “laser-focused” on presenting a narrative of Trump as an individual who did not act in “good faith” when he made his claims about election fraud in 2020, Temidayo Aganga-Williams, white-collar partner at Selendy Gay Elsberg and former senior investigative counsel for the House Jan. 6 committee, told Salon.
“Smith intends to prove that Trump is someone who implemented a long-term, intentional strategy of falsely blaming fraud for election results he does not like, giving aid and comfort to those who do his unlawful bidding even if through violence, and attacking those who dare to speak truth to his lies,” Aganga-Williams said.
It is not unusual at all for prosecutors to seek to introduce evidence of other acts that go to show the defendant's plan, intent, motive, modus operandi, and preparation, Laurie Levenson, a law professor at Loyola Marymount University, told Salon.
“The prosecutors are just anticipating Trump's defense that he either didn't know, or didn't intend, for the acts of Jan. 6 to occur,” Levenson said. “This additional evidence can show the contrary.”
The introduction of this evidence will “tell the whole story of Jan. 6” and answer questions like why it happened, how the groundwork was laid, and the context for Trump's decisions and statements that day, Levenson said. “It could be very powerful evidence for the prosecution.”
This is a fairly common practice in criminal trials and the Supreme Court has upheld it, Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. The Federal Rules of Evidence explicitly authorize the practice, he added, referring to the Harvey Weinstein and Bill Cosby sexual assault trials, where uncharged crimes were introduced when relevant.
“Smith must demonstrate that the proof is relevant for a specific purpose here to prove Trump’s knowledge that he is engaging in criminal behavior and has the requisite intent to commit the crime,” Gershman said. “The fact that he has engaged in similar criminal or wrongful conduct in the past is relevant because it shows that Trump has done it before and would likely do it again.”
Prosecutors also made clear that they intend to introduce other evidence, including how Trump established a “pattern” of using public statements and social media posts to subject his perceived adversaries to threats and harassment, including instances where he targeted then-Vice President Mike Pence.
“At trial, the Government will introduce evidence of this conduct—including the defendant’s public endorsement and encouragement of violence—and further will elicit testimony from witnesses about the threats and harassment they received after the defendant targeted them in relation to the 2020 election,” the filing said.
Prosecutors plan to include evidence of the former president’s vocal support for violent Jan. 6 rioters as well. For example, in response to a question during the September 29, 2020, presidential debate asking Trump to denounce the extremist group the Proud Boys, he instead spoke publicly to them and told them to “stand back and stand by,” according to the filing.
Members of the group “embraced” his words as an endorsement and printed merchandise with them as a “rallying cry,” the filing says. When the Proud Boys and other extremist groups took part in obstructing the congressional certification on January 6, Trump “made clear that they were acting consistent with his intent and direction in doing so.”
Prosecutors often seek to introduce evidence of a defendant’s past crimes or wrongful acts not charged in the indictment when the evidence is relevant for a specific purpose in the trial, such as proving a defendant’s knowledge and intent, Gershman said. In this case, the prosecutor has to demonstrate that the proof is relevant and necessary.
“The problem for the prosecutor is that such proof is always massively prejudicial, and may also confuse the jury,” he added. “The judge would have to find that the probative value of this proof (and clearly there is probative value) is not substantially outweighed by unfair prejudice, or that it might unduly confuse the jury rather than help the jury analyze and weigh the facts in the case.”
The judge will want to make sure that the evidence is being used for something other than just “Trump's propensity to violate the law and that its probative value outweighs any undue prejudice,” Levenson said, calling it a "balancing" act that judges do regularly.
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“She will look at all the factors in the case, as well as how the evidence will be presented,” Levenson continued. “She has the option of allowing some of the evidence in the prosecution's case-in-chief and waiting for cross-examination or rebuttal to allow more.”
However, introducing such evidence by the special counsel's team might lead to “downsides,” including the defense arguing that the prosecution is "grasping at straws" due to a perceived lack of support in the actual evidence of the events on Jan. 6, Levenson pointed out.
The defense is likely to argue that the evidence is “terribly prejudicial” and “highly inflammatory,” Gershman said. They may argue that it will allow the jury to convict not on the basis of the charges in the indictment, but on evidence “outside the parameters” of the indictment that is "unfair, irrelevant, and confusing.”
But, this evidence could also assist the jury in determining that Trump possessed the "necessary mental culpability," which includes an awareness of wrongdoing and the intent to commit the charged crimes," he added. “The evidence would help the prosecution paint a more dramatic and colorful picture of Trump’s longstanding history and practice of trying to undermine the integrity of elections.”