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On Wednesday, U.S. District Judge Tanya Chutkan unsealed a key filing from special counsel Jack Smith’s election inference case against Donald Trump. The 165-page brief provides extraordinary new details about the former president’s scheme to cling to power in the days after the 2020 election.
Smith’s filing makes the case for why the government thinks Trump can still face trial, despite the Supreme Court ruling in July that he is immune from prosecution for official acts.
While you might have not been able to make your way through the massive filing yet, MSNBC legal analysts have broken down the most damning allegations during on-air appearances this week.
‘Lawyering at its best’
Andrew Weissmann, who served as a lead prosecutor in special counsel Robert Mueller’s Russia investigation, described Smith’s brief as delivering “bombshell after bombshell,” and compared the revelations to Watergate.
Neal Katyal, the former acting solicitor general of the United States, called the filing “an exquisitely written document.”
“It’s really lawyering at its best, and it tries to tell the story of what Donald Trump did on Jan. 6 and in the days before,” he said Wednesday evening.
That includes new details about how Trump reportedly tried to pressure then-Vice President Mike Pence. Pence wasn’t the central character in the House Jan. 6 committee’s report, because, as Weissmann explained, the panel had far fewer tools to collect evidence than prosecutors. But in Smith’s unsealed brief, Pence is the “principal player,” Weissmann said.
“In many ways, the Jan. 6 committee report — because they had this gap — was a little bit like ‘Hamlet’ without Hamlet,” he told MSNBC’s Lawrence O’Donnell. “And here … he [Pence] is very active. He is sitting there watching what he thinks is the last gasp of his administration.”
According to prosecutors, on Jan. 1, 2021, Trump verbally attacked Pence during a phone call, after the then-vice president filed a brief opposing a lawsuit brought by Trump and his allies seeking to force Pence to help overturn the election.
On the call, Trump told Pence that “hundreds of thousands” of people “are gonna hate your guts” and “people are gonna think you’re stupid,” according to Smith’s brief. Trump called Pence “too honest,” prosecutors said.
“What [Smith] is saying is that when Trump did all this stuff, like pressuring Pence, that wasn’t part of any presidential power in Article 2 of the Constitution. That was a guy who just wanted to keep his job,” Katyal told “11th Hour” host Stephanie Ruhle.
‘Corroborating evidence’
What stood out most to Barbara McQuade, a former U.S. attorney, was “the strength of the corroborating evidence” in the brief.
In the filing, prosecutors alleged that a Trump White House aide overheard the former president tell his daughter Ivanka Trump and her husband, Jared Kushner, “It doesn’t matter if you won or lost the election. You still have to fight like hell.”
“One of the elements here will be [to prove] that Donald Trump engaged in fraud,” McQuade said on “Morning Joe” on Thursday. “I think those kinds of details will help this case withstand cross-examination at trial and, perhaps, the skepticism of 12 jurors who have to be convinced beyond a reasonable doubt that this defendant is guilty.”
But before Smith can make it to a trial, Chutkan has to decide whether the case can move forward.
As former U.S. Attorney Chuck Rosenberg explained, “All of this is intended to convince her [Chutkan] that these are all prosecutable acts, that they’re not immune,” Rosenberg said Thursday on “Morning Joe.”
“All it [the Supreme Court] had to do was pronounce a rule. Judge Chutkan has the really hard job implementing the rule, and he [Smith] is trying to give her a path, a roadmap, to implement the rule in a way that they believe means that Mr. Trump still may be prosecuted for all of these unofficial acts as a candidate.”
