John Jefferson
Special counsel prosecutors intend to make Donald Trump’s vice-president Mike Pence and his efforts to recruit fake electors the centerpiece of his criminal prosecution against the former president, according to a sprawling legal brief that was partly unsealed on Wednesday.
The redacted brief, made public by the presiding US district judge Tanya Chutkan, shows prosecutors are relying extensively on Trump’s pressure campaign against Pence to support the charge that Trump conspired to obstruct the January 6 certification of the election results.
And prosecutors used an equally voluminous portion of the 165-page brief to express their intent to use evidence of Trump trying to get officials in seven key swing states to reverse his defeat to support the charges that he conspired to disenfranchise American voters.
The brief’s principal mission was to convince Chutkan to allow the allegations and evidence buttressing the superseding indictment against Trump to proceed to trial, arguing that it complied with the US supreme court’s recent ruling that gave former presidents immunity for official acts.
As part of the ruling, the court ordered Chutkan to sort through the indictment and decide which of the allegations against Trump should be tossed because of the immunity rules and which could proceed to trial.
The brief was the first round of that process that could take months to resolve and involve hearings to decide what allegations should be kept. Chutkan has the power to decide how much of the indictment can be kept and what evidence can be presented by prosecutors as she makes her decision.
According to the redacted brief, prosecutors want to use Trump’s conversations with Pence in the lead-up to the January 6 Capitol attack, interactions between Trump and Pence and other private actors, as well as interactions between White House aides and private actors.
The bottom line from prosecutors was that each of the episodes reflected Trump acting not as president but as a candidate for office, which meant the default presumption that conversations between Trump and Pence were official could be rebutted.
For instance, prosecutors argued that evidence of Trump using personal lawyers Rudy Giuliani or John Eastman to pressure Pence should be permitted, since using private actors to commit a crime would not be an official act of the presidency or infringe on the functioning of the executive branch.
At the White House on 4 January 2021, prosecutors wrote, Trump deliberately excluded his White House counsel from attending a meeting with Pence – meaning the only attorney in the room was Eastman.
“It is hard to imagine stronger evidence that the conduct is private than when the president excludes his White House counsel and only wishes to have his private counsel present,” the brief said.
And on a 5 January 2021 phone call, prosecutors wrote, Trump and Eastman were the only ones on the line to make a final effort to pressure Pence to drop his objections and agree not to count slates of electors for Joe Biden when he presided over the congressional certification the next day.
“For the defendant’s decision to include private actors in the conversation with Pence about his role at the certification makes even more clear that there is no danger to the executive branch’s functions and authority, because it had no bearing on any executive branch authority,” it said.
Prosecutors added that the conversations between Trump and Pence that they wanted to present at trial should be allowed because there was nothing official about them discussing electoral prospects as candidates for office.
Referencing previously undisclosed evidence, prosecutors showed that Pence at various points suggested that “the process was over” and that Trump consider running again in 2024 – key evidence that Trump was on notice from his own running mate that he had lost the election.
And prosecutors reiterated that charging the most damning evidence that Trump’s lawyers knew they were violating the law – emails where Eastman asked Pence’s counsel Greg Jacob to consider one more “minor violation” of the Electoral Count Act – did not impact the functioning of the executive branch.
The expansive brief also included prosecutors asking to take to trial evidence of Trump’s effort to pressure state officials to reverse the results and his effort to then rely on fake slates of electors.
The response from Trump’s lawyers is almost certain to be that Trump was calling state officials because he was executing the clause in the US constitution that the president has a duty to ensure the general election was run without interference or fraud.
But prosecutors included a pre-emptive rebuttal: “Although countless federal, state, and local races also were on the same ballots … the defendant focused only on his own race, the election for president, and only on allegations favoring him as a candidate in targeted states he had lost.”
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