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COMMENTARY 
Jack Smith shows his cards just in time: January 6 case looks like the winning hand against Trump
Smith’s filing comes at a crucial time, weeks before Election Day





By 
Austin Sarat






 Published October 3, 2024 6:10AM (EDT) 








							Jack Smith and Donald Trump															(Photo illustration by Salon/Getty Images)







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Jack Smith’s latest filing in the election interference case against Donald Trump contains explosive reminders and bombshell revelations about the former president’s conduct following his 2020 election loss that would have made even Niccolo Machiavelli blush. In his famous 16th-century book "The Prince," Machiavelli lays out an ultra-pragmatic, no-holds-barred account of how to succeed in politics. Reading it, like Smith’s 165-page response to Trump’s claim of presidential immunity, is not for the faint at heart. Smith, like Machiavelli, pulled no punches. 
Smith has exposed the truth of what Trump did and, in so doing, punches holes in Trump’s deceptions and delusions.
“A man who wishes to make a profession of goodness in everything must necessarily come to grief among so many who are not good,” Machiavelli cautioned his readers. “Hence it is necessary for a prince wishing to maintain his position to know how to do wrong, and to make use of it or not according to necessity.”

Whatever else it is, Smith’s filing is not short on details.

Smith’s filing suggests that Trump surely knew “how to do wrong” in his quest to “maintain his power” despite a democratic decision to oust him from the Oval Office. As Smith puts it in simple straightforward prose, Trump “resorted to crimes to cling to power.” 
Coming one day after the vice presidential debate, the filing is a devastating rebuttal of Republican Sen. JD Vance’s Orwellian effort to turn the horrible and violent events of January 6 into just another step in the peaceful transfer of power. “On January the 20th, what happened?” Vance said during the debate in an effort to push past the violent Capitol riot on Jan. 6, 2021. “Joe Biden became the president. Donald Trump left the White House.”
This accounting was, as the New York Times observes, “short a few details — the violence, the deaths and injuries, the alleged criminal scheming, the ‘Hang Mike Pence’ of it all.”


Related
"The evidence will be powerful": Legal experts say Jack Smith about to drop a bomb in Trump case


Whatever else it is, Smith’s filing is not short on details. As a result, it makes an important contribution to our collective understanding of how close we came to losing our democracy and of Trump’s central role in the coordinated efforts carried out by the sycophants, courtiers, and corrupt lawyers who did his bidding. Reading it is like returning to the scene of a disaster. We are invited to relive the trauma. Sometimes that is what being a citizen in a democracy demands —especially so in the age of Trump.
It turns out that being such a citizen also is not for the faint at heart.
Smith’s filing follows on the monumental report of the January 6 Committee, Smith’s August 2023 indictment of Trump for his role in January 6 and the superseding indictment handed down one year later. His latest filing is the work of a wizard of legal craftsmanship. Smith carefully weaves his way through the intricacies of the Supreme Court’s infamous decision about presidential immunity. 
That decision seemed at the time it was handed down like a get-out-of-jail-free card for Donald Trump. But despair not. What the Supreme Court giveth, Jack Smith could take away. 
To those who thought that the immunity decision would leave Smith nothing to prosecute, his new filing asks in essence “What can be retained?” The answer: Just about everything.
As the filing states, “The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct.”
“Not so,” Smith insists.
“Although the defendant was the incumbent President during the charged conspiracies,” Smith explains, “his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted — a function in which the defendant, as President, had no official role.”
Donald Trump, don’t rest easy.


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Smith makes clear that the charges, which could very well land Trump in jail, are not going away. He reveals powerful evidence to show “the defendant’s and co-conspirators’ knowingly false claims of election fraud.” He claims that “They used these lies in furtherance of… a conspiracy against the rights of millions of Americans to vote and have their votes counted.”
And then delivering a body blow to Trump’s immunity claim, Smith asserts, “At its core, the defendant’s scheme was a private criminal effort. In his capacity as a candidate, the defendant used deceit to target every stage of the electoral process… ”
As Smith details that scheme, he offers gems on almost every page. Let me note a few highlights, starting with what we learn about former Vice President Mike Pence’s grand jury testimony. Pence seems to have mounted a campaign to flatter and cajole Trump into giving up on his lies about the 2020 election and accepting defeat. On page 13 of the filing, Smith recounts the steps that Pence took. 
At a “private lunch on November 12….Pence reiterated a face-saving option for the defendant: “don’t concede but recognize the process is over.” Four days later, Smith notes, “Pence tried to encourage the defendant to accept the results of the election and run again in 2024, to which the defendant responded, ‘I don’t know, 2024 is so far off.”’ Not to be deterred, Pence tried again on   December 21, when he “‘encouraged’ the defendant ‘not to look at the election ‘as a loss — just an intermission.’”
But Trump turned the Machiavellian tables on Pence. As Machiavelli warned, the ruler must not be taken in by flatterers. And this time, Trump was not taken in. 
“The defendant disregarded,” Smith says, “Pence in the same way that he disregarded dozens of court decisions that unanimously rejected his and his allies’ legal claims, and that he disregarded officials in the targeted states—including those in his own party—who stated publicly that he had lost and that his specific fraud allegations were false.”
On January 6, when Trump learned from an aide that Pence had to be hustled to a secure location in the Capitol as the mob he dispatched chanted “Hang Mike Pence,” the former president showed his callous ruthlessness when he responded, “So what?”
Shocking, but not surprising. Machiavelli would be smiling. 
Smith arrays these facts in a narrative driven by the need to convince Federal District Court Judge Tanya Chutkin that what Trump did was not done in his capacity as president, but rather as a candidate for office. Smith contends, after scrupulously parsing the Supreme Court’s immunity decision, that Trump’s conduct  “was not official, and, in the alternative, that the Government has rebutted any presumptive immunity for any of the remaining conduct that the Court finds to be official.”
Whatever Chutkin ultimately decides, Smith’s filing comes at a crucial time, with little more than a month before Election Day. It should help Americans decide whether to trust their fate to Machiavelli’s disciple, this time seemingly unleashed by the Supreme Court.


Read more
about this topic


Judge sets stage for "mini, mini trial" in Trump's January 6 case right before the November election
A candidate, not a president: Jack Smith crafts a simple solution to Supreme Court Jan. 6 roadblock
Rudy Giuliani disbarred in DC over his efforts to throw out millions of votes in 2020










By Austin Sarat





Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His most recent book is "Lethal Injection and the False Promise of Humane Execution." His opinion articles have appeared in USA Today, Slate, the Guardian, the Washington Post and elsewhere. 
MORE FROM Austin Sarat









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And the best part is this was not his plan - this was all due to Trump’s legal team delaying and delaying. 