Here’s What Was in the Big Jack Smith Evidence Document Unsealed Last Week
BY SHIRIN ALI
OCT 22, 2024
It includes some communications between Trump’s campaign and attorneys in the lead-up to Jan. 6.
slate.com
Special counsel Jack Smith has had a busy few weeks, from making a trove of evidence in his Jan. 6 case public to defending the charges he’s pursuing against Donald Trump in a court filing submitted last week. Meanwhile, down in Georgia, Fulton County District Attorney Fani Willis is also fighting to reinstate charges that a judge struck down in her massive election interference case.
Jack Smith Is Unsealing Even More Evidence
Last week, U.S. District Court Judge Tanya Chutkan released part two of special counsel Jack Smith’s opening brief, a massive document that laid out all of the evidence federal prosecutors intend to use to prosecute Trump. Now the appendix for that brief is available, and all told it’s nearly 1,900 pages long, broken into four sections. Though it is heavily redacted, it includes some communications between Trump’s campaign and attorneys in the lead-up to Jan. 6, alongside information that’s already publicly available, like Trump’s old tweets and excerpts from former Vice President Mike Pence’s book.
Trump’s defense attorneys tried to stop this appendix from becoming public, arguing that releasing it would amount to election interference. In the end, Chutkan sided with Smith, declaring that the public had a right to see this information. Here are the highlights of the special counsel’s latest court filing.
Volume I
The first part of Smith’s appendix, which clocks in at 723 pages, mostly covers testimony given to the House Jan. 6 committee, the investigative body established in the aftermath of the Jan. 6 insurrection. Almost all of the names of the individuals who spoke to lawmakers were redacted and plenty of pages were left completely blank, minus a big, capitalized heading that read “SEALED,” likely to respect Chutkan’s protective order that bans prosecutors and the defense from revealing names of potential witnesses.
Prosecutors did reveal that one interview the House Jan. 6 committee conducted was with a “White House employee” who was responding to photographs of himself and Trump taken shortly after the former president delivered his infamous speech at the Ellipse. The employee said he prepared a TV for Trump so that he could watch coverage of his speech, but had to tell the former president that “they cut it off because they’re rioting down at the Capitol.” The employee added that he handed Trump a TV remote and brought him a Diet Coke as he settled in to watch the footage of the riot.
Volume II
This section of Smith’s appendix consisted almost entirely of Trump’s old tweets, most of which were publicly available. The tweets demonstrate a consistent pattern of Trump falsely claiming the 2020 election was rigged and that he was the rightful winner, like when he posted ”I WON THE ELECTION!” on Nov. 16, 2020.
Smith also referenced Trump’s tweet about firing Christopher Krebs, former director of the Cybersecurity and Infrastructure Security Agency, after Krebs publicly called out Trump’s claims of voter fraud as “unsubstantiated or … technically incoherent.” About seven hours later, Trump tweeted that Krebs’ statement was “highly inaccurate” and that he was firing the director, effective immediately.
Volume III
The majority of this section is dedicated to the former vice president’s memoir, which was released in 2022. Prosecutors highlighted passages where Pence revealed how he tried and failed to get Trump to accept that he had lost the election to Joe Biden. “I tried to encourage him as a friend. I told him he had reinvented the Republican Party to be more courageous and more diverse, with more Latino, African American, and working-class voters than ever before,” Pence wrote.
Pence also concluded that “the words were true but seemed to be little consolation” to Trump. Prosecutors also emphasized passages where Pence described a meeting held about a week after Election Day with former Trump attorneys Rudy Giuliani and Sidney Powell that “quickly turned into a contentious back-and-forth,” Pence wrote. Referring to Justin Clark, a former Trump lawyer, Pence noted: “I will never forget the look on Justin’s face when Giuliani told the president over the speakerphone, ‘Your lawyers are not telling you the truth, Mr. President.’ ”
Another striking passage that prosecutors highlighted was when Pence referenced Trump’s tweet telling his followers about “Operation Pence Card,” which included an article that falsely claimed Pence had the power as president of the Senate to overrule states’ electoral vote certificates. “I showed it to Karen [Pence] and rolled my eyes, thinking, ‘Here we go.’ ”
Volume IV
The final section of Smith’s appendix includes a slew of internal communications between former Trump campaign officials and attorneys, including memos that detailed potential scenarios that could play out during the Senate’s electoral vote certification on Jan. 6. These are also heavily redacted, with the authors’ names and recipients of the memos hidden.
However, the memos still offer insight into how the Trump campaign was operating in the days and weeks following the 2020 election. One memo explained that Pence could announce that Arizona “has multiple slates of electors, and so is going to defer decision on that until finishing the other States. This would be the first break with the procedure set out in the [Electoral Count Act].”
Prosecutors included some images of notes taken by former Trump campaign officials and text message exchanges. There’s also an official letter written by Pence with the seal of the office of the vice president that was addressed to a “colleague” where he explained that he did not have the power to challenge the Jan. 6 electoral vote certification. “It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not,” Pence wrote.
A transcript of a Nov. 20, 2020, White House press briefing is also included, where Kayleigh McEnany, then White House press secretary, answered reporters’ questions and defended the Trump campaign’s various lawsuits against states that certified Biden’s victory. “There are very real claims out there that the campaign is pursuing—234 pages of affidavits publicly available in one county alone; that’s Wayne County,” McEnany said. She goes on to say that “This was a system that had never been tried in American history: mass mail-out voting. It’s one that we have identified as being particularly prone to fraud. So those claims deserve to be pursued.”
Smith Also Fights to Keep Trump’s Charges
When the special counsel filed a superseding indictment about two months ago, he did something controversial: Smith chose to keep the charge of obstruction of an official proceeding, despite the Supreme Court issuing a decision this year that narrowed the scope of Sarbanes-Oxley, the very law Smith is relying on for that charge. And last week, Smith defended his decision in a new court filing.
In Fischer v. United States, the Supreme Court ruled that a section of Sarbanes–Oxley, which makes it a crime to tamper with a record or otherwise impede an official proceeding, could not be used to charge scores of rioters who stormed the Capitol on Jan. 6 because, the justices concluded, Sarbanes–Oxley only applies to interference with official documents. Trump’s defense attorneys argued this decision prevents Smith from charging Trump with obstruction, and that Fischer’s “logic fatally undermines” Smith’s remaining charges, and therefore his entire indictment should be dismissed.
Smith offered a different read on the situation by arguing that in its Fischer decision, the Supreme Court did not “strike down the statute or rewrite it,” but it did clarify that Sarbanes–Oxley “includes ‘creating false evidence.’ ” Smith insists that squarely applies to Trump and his efforts to create fraudulent electoral certificates across the swing states he lost to Biden, which were then intended to be introduced to Congress on Jan. 6, 2021.
The special counsel also hit back on Trump’s claims that he bears no responsibility for the insurrection, arguing that the former president “willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates.”
Fani Willis Wants Trump’s Charges Reinstated
Fulton County District Attorney Fani Willis has asked a Georgia appeals court to reinstate six charges that were previously dismissed in her election interference case that indicted Trump and 18 others.
Back in March, Judge Scott McAfee ruled that Willis did not include “sufficient detail” in six charges that were related to Trump’s infamous phone call to Georgia Secretary of State Brad Raffensperger where he demanded 11,780 more votes be found to overturn the state’s election results. Then, in September, McAfee threw out three more charges in Willis’ indictment related to filing false documents in federal court, concluding that the state did not have the authority to bring such charges. In total, Willis’ original indictment came down from 41 charges to 35—and Trump went from facing 13 felony counts to eight.
Last week, in a new court filing, Willis insisted that her original indictment did include “an abundance of context and factual allegations about the solicitations at issue, including when the requests were made, to whom the requests were made, and the manner in which the requests were made.” Willis is asking that six of the charges related to Trump and Raffensperger’s phone call be reinstated.
The district attorney has had quite a year. In January, misconduct allegations surfaced and led to a contentious hearing where Willis admitted to dating special prosecutor Nathan Wade after she hired him. Willis was able to stay on the case, but Wade ended up resigning. The entire saga sparked an onslaught of litigation by Trump’s defense attorney and other defendants charged in Willis’ indictment who want the district attorney dismissed from prosecuting the case.
While all of this plays out in court, a Georgia appeals court has paused Willis’ investigation.