Jack Smith's bombshell immunity brief
In a sane world it would be Watergate-level news.
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In a previous era, Special Prosecutor Jack Smith’s newly unsealed 165-page brief about whether Donald Trump is immune from prosecution would generate Watergate-level coverage. These days, though, the document detailing the former president’s frantic efforts to steal the 2020 election had already rolled off the top of the New York Times and Washington Post’s homepages by Thursday morning.
Two things make Smith’s brief feel explosive despite much of it being revealed previously. First, Smith’s narrative is easy to follow because it’s presented chronologically, beginning before the 2020 election with Trump telling his advisors that if he took an early lead on election night, he’d simply declare victory before all ballots were counted.
Smith’s brief ends with him describing Trump’s still-ongoing praise of the actions of his supporters who breached the Capitol. Trump, of course, has promised to pardon insurrectionists convicted of crimes, including those who assaulted police officers.
The other thing that makes Smith brief so gripping is its rich detail. Going through all the evidence was necessary for the special prosecutor to get around the US Supreme Court decision where the conservative majority that normally pretends to be very into the actual text of the Constitution invented an entirely new form of immunity just for Trump. Smith needed to show that Trump was engaging in unofficial, private acts rather than acting as the president when he tried to overturn the election.
Despite the brief being a cracking read, at least as far as legal writing goes, one thing feels depressingly familiar as we live through our third Trump election cycle: his perpetual assertion that the only way he could possibly lose is because of election fraud.
Big lies are a feature, not a bug
It has been somewhat forgotten now, but Trump was pushing big lies back in 2016 to preemptively discredit his widely expected loss to Hillary Clinton.
At the first general election presidential debate that September, Trump said he would “absolutely” accept the results of the election, but he walked that back a few days later. By mid-October, he was tweeting things like, “Of course there is large-scale voter fraud happening on and before election day.”
After the Access Hollywood tape dropped, Trump complained that Hillary Clinton was in cahoots with the media to make things up: "Election is being rigged by the media, in a coordinated effort with the Clinton campaign, by putting stories that never happened into news!" But in the real world, the media was more than happy to drag Clinton all across the front pages while ignoring or downplaying Trump’s scandals, with the New York Times running as many cover stories about her emails in six days as they did about all policy issues combined in 69 days.
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Even after winning in 2016 thanks to the Electoral College, Trump insisted that he would have won the popular vote if three to five million undocumented people had not voted (didn’t happen) and if ineligible voters hadn’t been sent in busloads from Massachusetts to New Hampshire (also nope). Professional racist Stephen Miller even did a swing through the Sunday shows to push these lie. The Brennan Center, rather than just engaging in nativist rhetoric, actually contacted 42 jurisdictions in 12 states and found that of 23.5 million votes cast in those jurisdictions in the 2016 election, officials referred only roughly 30 possible noncitizen voters — 0.0001 percent of the vote.
Given 2016, it was inevitable that Trump would cry fraud in 2020, particularly given that many states passed voting measures to ensure people could vote safely during the pandemic. Smith’s brief details that as early as July of that summer, Trump was waffling about whether he would accept the election results. Then, after voting by mail himself, Smith notes, Trump started hammering the lie that mail-in voting led to “massive cheating.” Even in his RNC acceptance speech, Trump declared, “[t]he only way they can take this election from us is if this is a rigged election.”
Around the same time, Trump started insisting that the only non-rigged election would be one decided on election night, saying, "[i]t would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don't believe that that's by our laws.”
Only someone utterly disinterested in and divorced from the American voting process would fail to understand there are no final vote totals on election night. That’s not because of the terrible scourge of mail-in votes. It’s because official results don’t happen until the canvass occurs, and each state sets its own canvass deadline, ranging from three days after the election to mid-December.
By election night 2020, notes Smith, Trump wasn’t speculating. He was outright declaring the election was “a fraud on the American public” and that “frankly, we did win this election.” Smith then details how Trump’s fellow travelers stepped in, disrupting the count in Detroit when it looked unfavorable for Trump, harassing election workers in Georgia, and leaning on elected officials in Arizona. Trump took to calling state elected officials in the states he hoped to overturn — but only, Smith points out, Republican ones.
When state officials disagreed with his fantastical allegations of fraud, Trump did what he always does: attacked them in public, knowing full well his followers would start harassment campaigns. When a Republican Philadelphia city commissioner went on television to explain there was no evidence of fraud, Trump tweeted that he was a RINO who was “being used big time by the Fake News Media.” The commissioner received detailed threats, including some that had the name and address of his family members.
When Wisconsin Supreme Court Justice Brian Hagedorn, a hard-right conservative, wrote the opinion rejecting Trump’s election lawsuit in that state, Trump falsely claimed he had endorsed Hagedorn and demanded that “Great Republicans in Wisconsin” take the minority court opinion to the legislature “and overturn this ridiculous State Election.” Hagedorn received additional police protection because of the threats he received.
The courts will not save us
Of course, the 2020 push to overturn the election ended in the deadly insurrection of January 6. While many people have suffered consequences for that, Trump has not. Even if Smith were to prevail on the immunity issue, Trump can simply appeal it all the way up to the Supreme Court, arguing that the lower court decided incorrectly. No trial would happen until that was fully resolved, and given that the conservatives on the Court seem very determined to safeguard Trump from the laws that apply to everyone else, it’s difficult to say with certainty what would happen.
Precisely because there’s been no real downside to his repeated lies about election fraud in the past, Trump has made it a theme for 2024 as well. And this time, the whole GOP is on board.
The party has already filed over 100 lawsuits challenging how votes are cast in various states. Trump has attacked the practice of sending ballots to overseas voters, claiming it will “dilute the TRUE vote of our beautiful military and their families.” In Arizona, Trump told rallygoers, “The only way they can do anything is if they cheat like hell, and we’ve been victims of that.” He said similar things in North Carolina and Michigan. He’s also pushing the myth that non-citizens vote in droves, a thing that simply is not true. Trump recently even floated the idea that he would win California if there were an “honest” vote count. (Watch below.)
All of these things are nonsense, but Trump has primed the pump for his supporters to believe, yet again, that the election was stolen. Case in point was how he responded to the unsealing of the brief on Wednesday — by lying about election fraud.
Smith wasn’t the one who got to decide to unseal the brief. That was up to the Judge Tanya Chutkan, and Chutkan already ruled that Trump’s “concern with the political consequences of these proceedings does not bear on the pretrial schedule.” It’s remarkably refreshing to see that attitude from a judge, particularly when contrasted with Judge Aileen Cannon, who bought the absurd argument that Jack Smith was not properly appointed as special counsel and threw out the classified documents case after dragging her feet for months.
Chutkan was distinctly uninterested in Trump’s argument that no briefing on the immunity issue should happen for several months, but Trump’s attorneys continue to push for a delay, insisting that they should get an additional five weeks to respond to Smith’s brief. The current deadline is October 17, so the five-week delay would — you guessed it — kick this out past the election. Besides yelling about imaginary voter fraud, this is the only strategy Trump’s got.
That’s it for this week
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Thanks for reading, and have a great weekend.
A super, well written article again. 🙏. It never ceases to amaze me that Trump can get away with all this BS, and that the majority of the Americana are not up in arms about it all. How come that so many Americans are swallowing all the Trump poison without questioning anything? Will US really have to go through a Trump dictatorship in order to see the truth?
Thank you Lisa. I started reading this unsealed doc but am also reading the various takes b/c it's 150+/- pages and my "beautiful mind" is so sick and tired of this scoundrel that so many have been roped in ( amazingly) to support despite what a crook and criminal and how unfit he is to ever hold office again. First up after Trump is the Supreme Court's ruling on immunity protecting him. And of course all the others without which he would be in a straight jacket or prison. That our country has not been able YET to cage this fraud conman is a great disappointment about us. Trump gets all the benefits of our system and trashes it. But this time Jack Smith is the David against this Goliath. The SOS brought on by SCOTUS has forced Smith to make a much better, more detailed case, a CLEARER case, while USING the immunity constraints. And this in October.. it's here NOW before the election for all who would know. It really is up to the American people. The law cannot save us. Thank you.
I would like to know, maybe from Aaron, how this gets reported on Fox and the Trump media.