I WAS RIGHT! JUDGE CHUTKAN PUBLICLY DISCLOSED SMITH’S REDACTED SUBSTANTIVE IMMUNITY SUBMISSION THE DAY AFTER TRUMP FILED HIS PAPERS ON THE DISCLOSURE ISSUE

And Smith’s Redacted Submission Is Chock Full of New Evidence, Much of It From the Mouth and Writings of Mike Pence

Gang,

Welcome to this 30th edition of my Contemplating Coup Convictions (CCC) newsletter. I just learned of the extraordinary news late yesterday afternoon, and have other things to attend to today. So I hurriedly wrote this edition last night. I’ll have more to say on the subject in subsequent editions.

First, Judge Chutkan demonstrated extraordinary fortitude in doing what I hoped she’d do but was afraid she wouldn’t do.

As I explained under Heading II in Monday’s 29th CCC newsletter edition, it seemed to me (although not to anyone else, as far as I know) to be highly curious that Judge Chutkan gave Trump until noon on Tuesday to file his opposition to Special Counsel’s Smith publicly-available filing on Thursday on the question of disclosure of his substantive immunity submission (SIS) to the public, in light of the facts: that she’s required all other filings to be made at 5 pm on their respective days; and that she set no deadline for Smith to file a reply and set no date for oral argument. So I asked,

Could this all mean that the judge is planning to make her ruling as to which portions of the oversized submission may be made public, and then to make them public, quite soon?

Actually, what I had in mind was that the noon deadline was set because she intended to decide the matter and make the disclosure yesterday, which was the day after Trump’s filing. But I had doubts about whether she’d do that. That’s why I wrote “quite soon” rather than “on Wednesday.”

But that’s exactly what she did: Yesterday, she both decided the legal issue and had the clerk make the redacted form of Smith’s SIS public! This way, Trump did not even have the opportunity to make the unsupportable argument that the actual making public of the redacted submission should be stayed so that the D.C. Circuit and, if necessary, the Supreme Court would have the opportunity to decide whether public disclosure would be appropriate. (See Heading III in Monday’s newsletter edition.) I had doubts that she had the extraordinary fortitude to do that.

And now that the genie is out of the bottle, there’s nothing Trump or the Supreme Court can do about it--although they can try to stop her from making public the appendix to Smith’s SIS, to which Trump has a right to respond on the disclosure issue by October 10. (See Heading I in Monday’s edition.)

Second, Smith’s redacted SIS is chock full of new, and very important, evidence.

Much of that evidence comes from Mike Pence, including numerous quotations from his grand jury testimony, his autobiography published two years ago, and his five-page set of notes he took of a meeting he had with Trump before January 6. And the redacted SIS has loads of evidence establishing that Trump has known all along that he lost the election and that his statements to the contrary over the past four years are bald-faced lies. Moreover, the redacted SIS goes into far more detail than either of the D.C. indictments on how Trump repeatedly used bald-faced lies and highly-inflammatory language before and on January 6 in order to “cause” the mob to go from the Ellipse to the Capitol in order to interfere with Congress’s making Biden’s victory official.

Third, Smith’s redacted SIS inexplicably indicates that the prosecution does not intend to use at trial one of the most explosive items of new evidence. The following appears on page 142 of the redacted SIS:

The defendant further revealed the private nature of his desperate conduct as a candidate, rather than a President, in an exchange (that the Government does not plan to use at trial) he had with aide P15 shortly after the 2:24 p.m. Tweet. Upon receiving a phone call alerting him that Pence had been taken to a secure location, P15 rushed to the dining room to inform the defendant in hopes that the defendant would take action to ensure Pence’s safety. Instead, after P15 delivered the news, the defendant looked at him and said only, “So what?”

According to this Mediaite article posted yesterday, P15 is “a Trump operative who was the Assistant to the President and Director of Oval Office Operations.” I presume that Smith does not intend to use P15’s evidence at trial because Smith doubts that he can convince the Supreme Court that the evidence is not immune because a president’s communications with his White House assistant regarding the protection of the vice president would constitute “official conduct” which, in the words of the Supreme Court’s July 1 immunity decision (at page 14), “would pose . . . ‘dangers of intrusion on the authority and functions of the Executive Branch’” if those communications were called into question.

Fourth, unless the Supreme Court ultimately manages to save Trump by construing the criminal statutes he is charged with having violated in ways that save him, the evidence against him is beyond overwhelming.

I’ve spent decades reading transcripts of criminal trials, watching criminal trials, and reading appellate court decisions concerning the strength of criminal trials--mostly criminal trials in federal courts. And I can honestly say that I don’t remember ever having seen a stronger federal prosecution case on the question of whether the criminal defendant acted “corruptly” or “intent[ionally]” (see, e.g., 18 U.S.C. section1512(c)), or, for that matter, “knowingly.”

In a Trump newsletter I sent to friends and relatives on July 15, 2022, I provided the following as an example of what a fine criminal defense lawyer would say about Trump’s chances of winning a criminal trial in federal court even before we knew of the additional evidence laid bare in Smith’s redacted SIS:

Some . . . [criminals] not only discuss their crimes in their private cell-phone calls and texts, but are such world-class losers that: (1) they actually tweet out their crimes to the whole world; (2) they actually personally engage in the solicitation of others--even perfect strangers--to join them in their crimes and in their attempts to pressure witnesses not to testify against them; (3) they actually engage in such personal solicitation and pressuring over the phone, where the other party can record them; (4) they and their co-conspirators actually cast their net of solicitation and pressuring extremely widely, even coast to coast, involving hundreds and thousands of people; and (5) they actually leave evidence of their attempts to destroy documents. If ever there were self-destructive losers who were so dumb as essentially to beg to be put into federal prison, such criminals are them [sic].

Fifth, Smith’s redacted SIS argues that only Pence’s potential evidence--although not all of it--constitutes “official conduct,” but that Smith can rebut the presumption that the portions that do constitute official conduct “would pose . . . ‘dangers of intrusion on the authority and functions of the Executive Branch,’” and therefore that those portions are not immune. Smith argues that the remainder of the evidence he seeks to use at trial—relating to Pence or otherwise—does not constitute official conduct, and thus automatically is not immune (aka auto-nonimmunity).

But even if the Supreme Court were to hold on an interlocutory appeal that all of the potential evidence from Pence is immune, it is clear to me that Smith would still have an overwhelming factual case against Trump.

Sixth, Smith’s redacted SIS makes clear that the states whose election results Trump tried to illegally overturn in 2020 and 2021 are seven of the eight closest races in the 2024 presidential election: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin.

Under Heading III in my 28th CCC edition (posted on Thursday), I wrote that

it is generally believed now that the upcoming presidential election will be decided by voters who have not yet made a firm decision as to whom they will vote for in November. While they are making that decision, don’t you think a significant percentage of them will be affected by the news media’s focusing on Trump’s attempted coup last presidential election, as well as on his repeated indications that he will use illegal, and even violent, methods once again if the election results show that he has lost the election—especially where a large percentage of Republican voters have indicated their willingness to support him in such efforts?

And wouldn’t the undecided voters in the swing states be particularly concerned that Trump is threatening to do the same thing in their own states in 2024 that he did in 2020 and 2021? Indeed, Smith’s redacted SIS goes into great detail about how, even before the 2020 election, Trump and his allies were already planning their coup.

Seventh, under Heading II in the 28th edition, I wrote:

One must bear in mind that the D.C. indictment was filed over a year ago and, in any event, merely contained allegations, not evidence. Moreover, while the House hearings provided plenty of riveting testimony, that was two years ago.

But Smith’s filing later today could result in the news media’s turning the public’s attention, not only to what is in that filing, but also to the indictment, and, more importantly, to what was testified to on television two years ago and can be reshown repeatedly up until Election Day. Further impetus for such attention presumably would be provided by Trump’s answering papers and Smith’s reply, both of which are due to be filed next month.

And even further impetus presumably would be provided by Judge Chutkan’s public release of the redacted appendix to Smith’s SIS.

Eighth, and finally, the prefix “CC” in Smith’s redacted SIS refers to “Co-conspirator”; “P” refers to a “person”; and “GA” refers to the “Government’s Appendix.”

When the original D.C. indictment was released last year, the news media easily identified the unnamed co-conspirators, and also identified some of the other unnamed people referred to in the indictment. I’m sure that today and in the coming days, the news media will be identifying many of the vast number of “persons” mentioned in Smith’s redacted SIS.

Be seeing you,

Brian