What Jack Smith Says

The Special Counsel files his 404(b) notice

Jack Smith has filed his 404(b) notice, advising the Court and Trump of other crimes and bad acts committed by Trump that he intends to offer as evidence when the D.C. election interference case goes to trial. The notice is nine pages long, you can read the whole thing here. It contains a tremendous amount of new information about the case Smith intends to make against Trump. This is the best window we’ve had in on his strategy since the four count indictment was unsealed in August.

Smith starts about by advising the court that he intends to provide it with “extensive advance notice” of the evidence he’s going to introduce at trial in pleadings, including exhibit and witness lists, pre-trial motions, and his trial brief (a detailed layout prosecutors file in advance of trial discussing their evidence and issues they believe might come up during the trial). This is good news for all of us—it means we’ll have access to much if not all of this information as well.

You’ll recall that in “The Week Ahead” we took a look at Federal Rule of Evidence 404(b), which required Smith to file this notice. This rule tells prosecutors they can’t offer evidence that a defendant committed bad acts or crimes beyond what’s charged in the indictment to try and show that the defendant has a propensity to commit crimes, that he’s a bad guy. But the rule permits prosecutors to use the evidence for other purposes. Jack Smith tells the court that all of the evidence he’s going to introduce at trial is “intrinsic to the charged crimes”—in other words, admissible without the need to resort to Rule 404(b) because it’s part of the conduct Trump is charged with in the indictment. But, hedging his bets, Smith advises the court that in the alternative, any evidence the court might deem “extrinsic” is still admissible under 404(b) to prove “motive, intent, preparation, knowledge, absence of mistake, and common plan.”

This is important. As much as getting the case to trial and getting a conviction matters in the first instance, making sure that conviction gets affirmed on appeal is paramount in the larger scheme of things. So prosecutors like to have multiple independent arguments to justify a ruling by the appellate court that what happened at trial was proper.

Smith sets that up here, and the judge, who has broad discretion to determine what evidence is admissible at trial, will put on the record whether she is admitting evidence as intrinsic, extrinsic under 404(b), or as Smith suggests, admissible as both. Good judges make a clear record for the court of appeals to consider, and Chutkan has shown she is very good at doing this, most recently as she ruled against Trump on his presidential immunity motion.

But it’s the substance of Smith’s notice that’s so intriguing. He reveals six areas where he’s going to introduce evidence. Let’s dip into the specifics of his plan:

• Historical Evidence of Trump’s Consistent Plan of Baselessly Claiming Election Fraud: The criminal conspiracy charges against Trump require the government to prove Trump knew his claims of election fraud were false. Smith wants to offer public statements Trump made before the election took place claiming that there would be fraud in the 2020 presidential election, and his claims as early as the 2012 and 2016 elections about fraud, to prove it. Smith says he’s entitled to offer this evidence under Rule 404(b) because it shows Trump’s “plan of falsely blaming fraud for election results he does not like, as well as his motive, intent, and plan to obstruct the certification of the 2020 election results and illegitimately retain power.”

• Historical Evidence of Trump’s Plan to Refuse to Commit to a Peaceful Transition of Power: Smith says “The Government will offer proof of this refusal as intrinsic evidence of the defendant’s criminal conspiracies because it shows his plan to remain in power at any cost—even in the face of potential violence.” Smith points to this exchange with a reporter as evidence of Trump’s intent to hold power:

This category of evidence is very valuable for Smith’s case. It forces jurors to confront the inherent contradiction in Trump’s public statements about election results, which amount to, “If I win, it’s a fair election, but if I lose it’s fraud.” This is the type of argument that makes it difficult to maintain that Trump was acting in good faith, and it’s a strong point in the government’s case. Smith points to a question during the 2020 debate where the moderator reminded Trump of the American tradition of a peaceful transfer of power and asked Trump whether he was willing to commit to that principle. Trump responded, “What I’m saying is that I will tell you at the time. I’ll keep you in suspense. OK?”

• Evidence of Trump and his unindicted Co-Conspirators’ Knowledge of the Unfavorable Election Results and Motive and Intent to Subvert Them: Things get interesting here. Smith references an “agent” of Trump’s (the agent language is important because it means Trump is responsible for this person’s conduct) who was a campaign employee and sent texts to a campaign lawyer in Detroit encouraging rioting and other obstruction at the TCF Center where the vote count was taking place as it trended against Trump. Then we get this very interesting section in the pleading:

It’s so frustratingly reminiscent of the Mueller Report!

Something about this witness, perhaps their identity or status as a cooperating witness, or something in the substance of their testimony, is being protected from public disclosure for the moment. The redaction follows this sentence, “the Campaign Employee encouraged rioting and other methods of obstruction when he learned that the vote count was trending in favor of the defendant’s opponent.” Prosecutors pick back up to say they will offer evidence that as the vote began to go Biden’s direction, “a large number of untrained individuals flooded the TCF Center and began making illegitimate and aggressive challenges to the vote count.”

Even without knowing what comes in between those two bookend sentences, we know enough now to see that Smith has a compelling example that connects Trump’s knowledge he was losing to a willingness to unleash violence to interfere with finalizing the count.

The government concludes this section by noting that as his agent was seeking to disrupt the count with riots, Trump began to make knowingly false statements about the count at the TCF Center. They write, “this evidence is admissible to demonstrate that the defendant, his co-conspirators, and agents had knowledge that the defendant had lost the election, as well as their intent and motive to obstruct and overturn the legitimate results.” This is an example of how Smith will use evidence of specific incidents to substantiate the overall charges against Trump. 404(b) evidence is important in part because it gives jurors confidence that what happened when a crime was committed wasn’t a mistake because the defendant manifested a similar intent on another occasion when something similar took place.

• Pre- and Post-Conspiracy Evidence Trump and his Co-Conspirators Suppressed Proof Their Fraud Claims Were False and Retaliated Against Officials Who Undermined Their Criminal Plans: Smith makes it explicit in this pleading. He has evidence Trump “repeatedly sidelined advisors and officials who told him or the public the truth about the election results” as part of a deliberate plan and that Trump and his co-conspirators “continued their efforts to stifle any dissent to their false claims of election fraud” even after the conspiracies charged by the government ended. That has always been a fair assumption based on what we observed, but Smith confirms he’s got the goods that lets him prove it beyond a reasonable doubt.

The example he offers involves the Republican National Committee’s (RNC) Chief Counsel at the time, whom Smith alleges Trump and one of his co-conspirators retaliated against for publicly refuting their lies about election fraud. He’s not named in the pleading, but the description matches Justin Riemer, who it was reported as far back as July 2021 had laughed off Trump’s fraud claims following the election.

There are a couple of large redacted blocks in this part of Smith’s pleading. But enough is made public for us to understand prosecutors have evidence that the retaliation continued after Trump left office and the conspiracy Smith has charged Trump with ended. Riemer appears to have his own law firm these days and bills himself as an election law lawyer who has “been advising clients and high-ranking Republican officials on election and political law matters for nearly 15 years.” It’s all very interesting. Even though we don’t know what all of Smith’s evidence here looks like because of the redactions, we get his full assessment of what it’s available to prove: “The defendant and his co-conspirators’ and agents’ aggression in stifling dissent against election fraud claims before, during, and after the charged conspiracies is admissible to demonstrate the defendant and his co-conspirators’ knowledge that their fraud claims were false, to establish their plan for depicting their election lies as true, and to show their intent to silence anyone who refuted their false claims.” If knowledge is the key to the case against Trump, Smith seems to have been amassing a good bit of it.

• Pre- and Post-Conspiracy Evidence of Trump’s Public Attacks on Individuals, Encouragement of Violence, and Knowledge of the Foreseeable Consequences: Smith is going to ram Trump’s attacks on people involved in the cases against him, and especially witnesses, right back down his throat at trial. He writes, “the defendant has an established pattern of using public statements and social media posts to subject his perceived adversaries to threats and harassment.” What conclusion does Smith draw from this undeniable fact? The government says it will introduce pre-conspiracy evidence that shows Trump encouraged violence including his “stand back and stand by” shout out to the Proud Boys during a 2016 presidential debate. And they’ll show this thread of promoting violence continued beyond the end of the conspiracy Trump is charged with, when Trump “continued to falsely attack two Georgia election workers despite being on notice that his claims about them in 2020 were false and had subjected them to vile, racist, and violent threats and harassment.”

• Post-Conspiracy Evidence of Trump’s Steadfast Support and Endorsement of Rioters: Finally, we get to the matter of Trump’s continued support of rioters who overran the Capitol, violently attacked Capitol police, and defiled the Capitol. It still seems odd to write that. Faced with their conduct, Trump didn’t condemn it. He condoned it and, even more than that, he celebrated it. Jack Smith isn’t going to give him a pass for it.

Smith says he will introduce evidence that “in the years since the January 6 attack on the Capitol, the defendant has openly and proudly supported individuals who criminally participated in obstructing the congressional certification that day, including by suggesting that he will pardon them if re-elected, even as he has conceded that he had the ability to influence their actions during the attack.”

As we’ve hoped all along, someone on Smith’s team has been keeping tabs on Trump’s public appearances. The Special Counsel writes that Trump’s support for some of the most violent participants in January 6 will be part of his evidence, including a September 17, 2023, appearance on Meet the Press, where Trump, referring to Proud Boys leader Enrique Tarrio, now convicted of seditious conspiracy, said, “I want to tell you, he and other people have been treated horribly.” Smith says he’ll also delve into Trump’s criticism of lengthy sentences set for other seditious conspiracy defendants.

Then there’s Trump’s support for the “January 6 Choir,” inmates in the District of Columbia jail, “many of whose criminal history and/or crimes on January 6 were so violent that their pretrial release would pose a danger to the public” and who Trump has staunchly supported. He played their rendition of the Star Spangled Banner at the first rally of his 2024 campaign. Watch here. He has supported the financially according to Smith who also says he refers to them as “hostages.”

Smith feels strongly about this last category of evidence, and he offers a lot of reasons it’s admissible. He says it proves Trump’s motive and intent, that on January 6 he sent his angry group of supporters “to the Capitol to achieve the criminal objective of obstructing the congressional certification.” Smith says it proves the Trump intended to obstruct the certification because he “held, and still holds, enormous influence over his supporters’ actions” and chose not to end the violence on January 6. But Smith says the most important proof the evidence provides is that Trump’s “embrace of January 6 rioters is evidence of his intent during the charged conspiracies, because it shows that these individuals acted as he directed them to act; indeed, this evidence shows that the rioters’ disruption of the certification proceeding is exactly what the defendant intended on January 6. And finally, evidence of the defendant’s statements regarding possible pardons for January 6 offenders is admissible to help the jury assess the credibility and motives of trial witnesses, because through such comments, the defendant is publicly signaling that the law does not apply to those who act at his urging regardless of the legality of their actions.”

Smith gives us a lot of insight into what some of his evidence is and how he intends to use it. There is a lot here that we didn’t know and that suggests Smith’s evidence is deeper, richer, and more compelling, even than what we’ve seen already. Combine that with news today that people like Mike Pence and Bill Barr will testify against Trump in Georgia, which almost certainly signals they are on board in the D.C. prosecution as well, and it’s easy to understand why Trump’s best strategy is delaying the trial—and the increasingly inevitable moment where he’s finally held accountable by a jury.

Also today, six Nevada Republicans were indicted for submitting fake documents in connection with the fake electors scheme in that state. The speculation is that this is, at least in part, the result of Kenneth Chesebro’s cooperation with prosecutors there. He is charged in Georgia with conduct documented in his own emails: he personally drafted the fake electoral documents and sent them, along with directions on filing them, to would-be fake electors. And Chesebro did this not only in Georgia, but also in seven states where the scheme was put into play, including Nevada. That’s why the news he was meeting with prosecutors there garnered so much interest last week.

Something else that’s interesting in this mix. In his proffer to Fulton County prosecutors ahead of his plea there, Chesebro told them he met with Donald Trump, in person, in the White House on December 16, 2020. We know that because parts, but not all, of that proffer statement were leaked. But there were reports he said he met with Trump as well as with Mark Meadows and Dan Scavino. Chesebro, if—and I think it’s still a big if—he’s committed to testifying truthfully, may be able to offer direct evidence of Trump’s involvement.

Yesterday, Trump acolyte Kash Patel, who served on the National Security Council during the Trump administration, said that if Trump is elected again, his administration will retaliate against people in the media “criminally or civilly.” This happened on Steve Bannon’s podcast. And Patel’s words were really chilling. He said, “We will go out and find the conspirators not just in government, but in the media.”

So, not to be a drama queen, but that’s the end of democracy right there.

Trump’s campaign said Patel’s comments had “nothing to do with them.” But Trump has also promised “retribution” would be a feature of his second term in office. And in a recent Iowa town hall interview with Sean Hannity, Trump missed the easy and obvious answer when Hannity asked if “Under no circumstances, you are promising America tonight, you would never abuse power as retribution against anybody?” “Except for day one,” Trump replied.

What?

This exchange carries echoes of Trump’s response in the presidential debate, the one Jack Smith referenced, where Chris Wallace asked Trump if he would condemn white supremacist and militia groups, only for Trump to respond, “Proud Boys, stand back and stand by.” We all know how that ended.

Trump’s intentions are out in the open for anyone who is paying attention. His statement to Hannity, that about “day one” and that “after that, I’m not a dictator,” is a bizarre response for a would-be American president. NYU Professor Ruth Ben-Ghiat, scholar in authoritarianism and author of the book Strongmen, had this to say:

We are all on notice of what Trump intends to do. Now more than ever, and I know I say this almost any time I write to you, it’s critical that we stay engaged and that we try to give those who aren’t information that will wake them up as well. We are in a dangerous moment, and too many people are numb to the implications of a second Trump presidency. Here at Civil Discourse, we aren’t. Please help to spread the word, encourage your friends to subscribe or forward your edition of the newsletter to them. There is lots of work ahead of us.

We’re in this together,

Joyce