WASHINGTON – Special counsel Jack Smith has provided a road map for how prosecutors hope to prove their case charging former President Donald Trump with an illegal scheme to overturn his 2020 election loss — if it ever gets to trial.
In court papers unsealed Wednesday, Smith's team details new evidence of Trump's “increasingly desperate” efforts to cling to power even as those close to him sought to convince him that he had lost the presidency.
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It comes just over a month before the presidential election that could determine the future of the case.
The Republican presidential nominee, who has railed against the case as politically motivated, slammed the filing in a NewsNation interview, calling it “pure election interference” and “weaponization of the government.”
Here's a look at what the filing means and what's next:
Trump committed ‘private crimes,' prosecutors say
The purpose of the filing is to convince U.S. District Judge Tanya Chutkan in Washington that allegations against Trump can move forward to trial even after the Supreme Court in July ruled that former presidents have broad immunity from prosecution.
While the Supreme Court said former presidents have at least presumptive immunity for actions taken in their official role as president, the justices said they are not shielded from prosecution for things they do in their private capacity.
Smith's team is trying to make the case that Trump's prosecution is not off limits because he was acting as a private candidate for office — not a commander in chief — when he schemed to overturn the will of voters. Prosecutors say Trump “must stand trial for his private crimes as would any other citizen.”
“Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one,” prosecutors wrote.
“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."
How did we get here? The case's long and winding road
The case was supposed to go to trial in March in Washington's federal court but was put on hold last December so Trump could appeal his sweeping claims of presidential immunity. Trump had asked the Supreme Court to dismiss the case entirely, saying it the "Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office.”
While the Supreme Court didn't dismiss the case, it effectively stripped from the indictment allegations involving Trump’s dealings with the Justice Department. And it sent the case back to Chutkan to determine which of the remaining allegations in the indictment involve official actions for which Trump may be immune from prosecution and which allegations, if any, can move forward to trial.
In August, Smith's team filed a new indictment that kept the same criminal charges but narrowed the allegations in an attempt to comply with the Supreme Court’s ruling.
So what happens now?
Trump's lawyers had objected to the filing, accusing prosecutors of wanting to publicize their “politically motivated manifesto” to hurt Trump's campaign in the final weeks before the election.
The defense will now get a chance to respond to the arguments from Smith's team. Trump's response was due later this month, but Chutkan agreed to give the defense until Nov. 7 after they asked for an extension.
Meanwhile, Trump's lawyers are continuing their efforts to have the case dismissed. The defense on Thursday filed court papers challenging the case on legal grounds, saying prosecutors stretched the laws "beyond their breaking point based on false claims that President Trump is somehow responsible for events at the Capitol.”
Trump's lawyers have argued that the allegations in the indictment — including conversations with his vice president and pressing state officials on the administration of elections — cut to the core of Trump’s responsibilities as commander in chief. Trump attorney John Lauro told the judge during a hearing last month that the Supreme Court’s opinion required the outright dismissal of the case — a position the judge made clear she did not accept.
Even if the judge agrees with prosecutors, the case isn't heading to trial anytime soon. Her rulings are expected to be appealed — likely all the way to the Supreme Court.
And if Trump defeats Vice President Kamala Harris, he could appoint an attorney general who would seek the dismissal of this case and the other federal prosecutions he faces. Or Trump could potentially order a pardon for himself.
New material for Democrats, but the political impact is uncertain
The filing gives Democrats new material to use as they campaign against Trump and offers voters a reminder of the allegations just a month out from Election Day, even as voting has already begun in some states.
Trump, too, has seized on the report, casting it as yet another effort by his rivals to try to hobble his campaign — complaints that have proven a powerful motivator for his base and a boon for his fundraising.
It’s unclear, though, what impact it will have on voters, given the wealth of detail about the 2020 campaign that has already been released as well as Trump’s multiple indictments. In polling, concerns about protecting democracy have typically lagged behind concerns about issues like the economy and inflation.
That includes a recent CNN poll that found 4 in 10 likely voters said the economy was their most important issue when deciding how to vote, versus about 2 in 10 who said it was protecting democracy.
The issue of protecting democracy appears to be more important for Democrats and voters already backing Harris. Roughly 4 in 10 voters who support Harris say it is their top issue. For Republicans and Trump supporters, about 6 in 10 name the economy as their top voting issue, followed by immigration. Just 5% of Trump supporters said protecting democracy was their top issue.
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Associated Press reporters Jill Colvin in New York and Linley Sanders contributed to this report.