'They are not backing down': Expert reveals core of Jack Smith’s now-unsealed Trump filing

02 October 2024

On Wednesday, U.S. District Judge Tanya Chutkan officially unsealed Department of Justice special counsel Jack Smith's massive filing justifying his superseding indictment of former President Donald Trump. Experts are currently digging deep into the 165-page document to glean the most damning portions.

During a segment with MSNBC host Katy Tur on Wednesday evening, Lisa Rubin – a legal analyst for the network — opined that Smith's filing had a unique focus on tweets the former president sent on January 6, 2021 and during his lame-duck period after losing the 2020 election. Rubin pointed out that Smith is appearing to make his case to Chutkan that the actions he's prosecuting the former president for are not protected by the absolute broad immunity for official presidential acts the Supreme Court put in place this summer.

"I want to bring you back to the Supreme Court's ruling for a second because they say that the president has broad authority to communicate with the American public as the president, but there may be instances where, for example, using his tweets he really is functioning as a candidate and not as president," she said. "They are not backing down from ... those tweets."

Trump's four-count felony indictment in the Washington, D.C. election interference case was suddenly thrown a curveball by the July 2024 Trump v. United States case, in which the Supreme Court's six-member conservative majority agreed that Trump was immune from prosecution for all "official acts." However, the Court left it up to lower court judges like Chutkan to decide how to define "official acts."

Trump's attorneys are arguing that all actions Trump took during his lame-duck period are protected by the decision, including his participation in the January 6, 2021 rally that preceded the deadly insurrection. But as Rubin pointed out, Smith went into great detail in his dossier to explain why Trump was not immune from prosecution in this particular instance.

"One of the reasons that the government is fixated on that is because they want to show not only what Donald Trump knew and what he was ingesting at that time, which may account for the minute-by-minute recitation of what Fox News was airing, but that in his communications he wasn't doing anything official," Rubin said. "Again, we are talking about January 6th, a date on which the current president of the United States has absolutely no official role when it comes to elections."

Smith's latest (heavily redacted) filing is a summary of witness testimony against Trump, with names of most witnesses — with the exception of former Vice President Mike Pence — blacked out. And as former federal prosecutor Glenn Kirschner predicted in August, the dossier that Chutkan just unsealed includes a lot of previously undisclosed evidence the DOJ gathered relating to the former president's efforts to overturn the 2020 election.

Politico legal correspondent Kyle Cheney highlighted one example of a supposed unofficial act Trump took as a candidate instead of as president that Smith described in his document. Roughly a week after the 2020 election, the former president put his personal attorney, Rudy Giuliani, in charge of his campaign's legal team "because he was willing to lie about the election results." Giuliani was ultimately disbarred in both New York and Washington, D.C. for his repeated election denialism.

Other legal reporters combing through the document were able to discern the identities of some of the redacted names due to the context of the document. On the social media platform Bluesky, Law Dork newsletter publisher Chris Geidner found that "Person 1" was likely former White House chief strategist Steve Bannon. He identified Giuliani as "CC1" as the person Trump put in charge of his campaign's legal arm.

Watch Rubin's segment below, or by clicking this link.

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