You may feel like you’ve been hearing as much about Special Counsel Jack Smith as Former President Donald Trump. Smith has been busy in Georgia trial court in the federal case related to the January 6th. Specifically, Smith has had his hands full wading through mountains of evidence and trying to get it them submitted in court.
Catching Up on the Evidence
In case you missed it, there was a lot of legal wrangling this summer about what evidence could and could not be used in the case against Trump. After the Supreme Court handed down a ruling on presidential immunity, Smith filed his opening brief to support the stance that the evidence his team wanted to use in their case against Trump did not violate the new rules.
Then, earlier this month, Trump accused Smith and his legal team of election interference after a filing was unsealed about the former president’s attempts to overturn the 2020 election. Judge Tanya Chutkan asked both parties to submit arguments on Trump's actions. Smith submitted a 165-page filing arguing that Trump's efforts were private and not protected by presidential immunity. It also included evidence of alleged misconduct by the former president.
Initially sealed due to sensitive content, the filing was made public after Judge Chutkan approved redactions. Trump claimed that this release breached the DOJ's informal "quiet period" policy because it was released relatively close to Election Day.
Legal experts have pointed out that this guideline is not legally binding and doesn't apply to court-ordered actions – the judge in the trial, after all, had ordered both parties to submit filings to support their arguments. Supporters of Smith’s filing assert that his team was simply obeying orders.
Smith’s Sequel
Last week, Smith unsealed a substantial appendix to his opening brief from a month ago – basically, a Part 2 of evidence that was even more unwieldy than the first. Combined with the unsealed part, the document is nearly 1,900 pages.
Judge Chutkan had previously issued a gag order on the release of materials the DOJ designates as sensitive, including witness interviews, to prevent intimidation and jury bias. While Trump's lawyers argued for broader access, Chutkan rejected this, emphasizing Trump's First Amendment rights aren't absolute. This protective order from last year is likely why so many of the released documents are heavily redacted or sealed.
Although we can only read the declassified pieces, the documents reveal key evidence prosecutors plan to use. Among them are records of communications between the presidential campaign staff and attorneys in the lead-up to January 6. It also contains a lot of information that was already available to the public, such as excerpts from former Vice President Mike Pence’s 2022 autobiography, So Help Me God. And, of course, no brief on Trump would be complete without his old Tweets — lots and lots of them.
In case you don’t have dozens of hours to read it yourself, we’ll summarize some of the key pieces.
Summary of Appendix
The appendix was broken into four sections. Though the first one is a whopping 723 pages, we needn’t spend very long on it at all, because it’s mostly blank. Hundreds of pages were released only under a large capitalized “SEALED.” For the sporadic pages where you could read the original text, plenty of it was redacted, including nearly all the names of the people who spoke to lawmakers.
One tidbit from the first volume that we can read is about an interview by the select committee of the House that was established to investigate the Capitol attack. They interviewed a “White House employee,” who brought Trump a TV (and a Diet Coke) so that he could watch the footage of the riot shortly after his infamous speech that day.
Volume II
The second part is largely comprised of Trump’s old tweets, which were publicly available anyway. The pattern throughout them is Trump claiming that the 2020 election was rigged and that he was the rightful winner. Notable examples include:
- "I WON THE ELECTION!”
- “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
- "My first acts as your next President will be to Close the Border, DRILL, BABY, DRILL, and Free the January 6 Hostages being wrongfully imprisoned!"
- “…votes from Trump to Biden, late voting, and many more. Therefore, effective immediately, Chris Krebs has been terminated as Director of the Cybersecurity and Infrastructure Security Agency.” (this came after Krebs publicly called out Trump’s claims of voter fraud as unsubstantiated).
Volume III
This section mainly focuses on the 2022 memoir of the former vice president. Prosecutors drew attention to parts where Pence described his unsuccessful attempts to convince Trump that he had lost the election to Biden.
Pence wrote, "As a friend, I tried to encourage him. I reminded him how he had transformed the Republican Party, making it bolder and more diverse, attracting more Latino, African American, and working-class voters than ever before." Pence noted that while his words were true, they seemed to offer little comfort to Trump.
The prosecutors also highlighted Pence's account of a meeting held shortly after Election Day. This meeting, which included former Trump lawyers Rudy Giuliani and Sidney Powell, quickly became heated. Pence recalled a memorable moment when Giuliani told Trump over the phone, "Mr. President, your lawyers aren't being honest with you." Pence noted the shocked expression on Justin Clark's face, another Trump lawyer present at the time.
Another notable excerpt highlighted by prosecutors was Pence's reaction to Trump's tweet about "Operation Pence Card." This tweet referenced an article falsely claiming that Pence, as Senate president, could reject states' electoral vote certificates. Pence wrote, "I showed it to Karen [Pence] and rolled my eyes, thinking, 'Here we go again.'"
Volume IV
The final section of Smith's appendix contains a collection of internal communications between former Trump campaign officials and lawyers. These documents, including memos and notes, provide a glimpse into the campaign's operations in the days and weeks following the 2020 presidential election.
The appendix also includes images of handwritten notes from former Trump campaign officials, text message exchanges, and an official letter from Pence to a colleague. In the letter, Pence explains that he did not have the authority to challenge the electoral vote certification on January 6, citing his oath to support and defend the Constitution.
Additionally, the appendix features a transcript of a White House press briefing from November 20, 2020, in which then-Press Secretary Kayleigh McEnany defended the Trump campaign's lawsuits against states that had certified Joe Biden's victory. McEnany argued that the campaign was pursuing legitimate claims, citing 234 pages of affidavits from one county alone, and that the mass mail-out voting system was prone to fraud.
Although heavily redacted, with authors' names and recipients hidden, the memos still offer valuable insights. One memo, for instance, suggests that Vice President Pence could have announced that Arizona had multiple slates of electors, thereby delaying a decision until the other states had been counted. This would have been a departure from the standard procedure outlined in the Electoral Count Act.
The Legal Wrangling Goes On
Just as they did when Smith submitted his initial brief at the beginning of the month, Trump’s lawyers tried to stop the appendix from going public. They similarly argued that releasing it would be election interference – but again, Judge Chutkan didn’t buy that.
She rejected their request to delay releasing documents until after the election, emphasizing again the legal system's presumption of public access to court proceedings. Trump's lawyers also argued that releasing the materials could bias the jury pool, but Chutkan noted that both sides' filings would be available to jurors.
A trial date has still not been set, and this is not even the end of the immunity pre-trial litigation yet. We can expect more back and forth in the same vein through the end of the calendar year.
Related Resources:
- A Wrench in the January 6 Trials: The Case of Fischer v U.S. (FindLaw's Federal Courts)
- Trump Claims DOJ Filing is Election Interference: Legal Experts Disagree (FindLaw's Federal Courts)
- The January 6 Committee Referrals, Explained (FindLaw's Law and Daily Life)
