Donald Trump’s Jan. 6 Legal Nightmare Is Far From Over

Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno

With one 165-page filing, Special Counsel Jack Smith may have put the “surprise” back into the over-used political term “October Surprise.” The modern political use of the term—the first 20^th century use was about Fall sales in department stores—arose with former President Reagan’s campaign staff fearing that President Jimmy Carter might arrange a Iranian hostage release deal that might have turned the 1980 election into a Carter victory.

The Reagan team began to talk about such a potential October Surprise to undermine such a success by suggesting it would be merely a political trick to help Carter’s re-election. That surprise never happened and we never got a second Carter term. In today’s frenzied political climate, the term pops up multiple times a day referring to events as varied as hurricanes, assassination attempts, the Middle East conflict, potential leaked audio or videos and even the Longshoreman’s strike.

But even with over-played records, the right combination of events—a sudden bit of nostalgia spurred by a bit of Fall weather—can renew the power of what we have come to take for granted. Special Prosecutor Jack Smith’s dense fact-filled filing combined with Judge Tanya Chutkan’s decision to release it nearly un-redacted coming on the heels of the Vice-Presidential debate between Governor Tim Walz and Senator JD Vance may be just the autumnal combination needed.

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The filing was necessitated by the United States Supreme Court’s decision granting former President Trump—and all future Presidents—nearly unfettered immunity.

Chief Justice Roberts wielded his power as assignor of opinions to pen the convoluted majority opinion himself, basing his reasoning upon non-existent Constitutional authority resulting in a simulacrum of a Constitutional decision. The opinion successfully made the trial of Trump’s Jan 6 election interference case before the election an impossibility as it created a maze of legal and factual hurdles for prosecutors to wind through.

Roberts constructed a world in which Presidents were completely immune for “core” official acts such as conferring with their Attorney Generals. To put that in context, the Roberts-created reality would allow a President to order their Attorney General to baselessly prosecute political enemies or perhaps rob a bank—all the while safe in the knowledge that their criminal acts were immune from prosecution. For other actions, Roberts created a presumption of immunity that the prosecution might rebut while a third category of actions where the President acted entirely in a private capacity would be subject to prosecution.

The immediate effect of the Roberts simulacrum caused Smith to revise his indictment to eliminate any reliance upon conversations Trump had with then Attorney General Barr.

But what was left was what the high court termed a “fact-bound decision” requiring the prosecution and trial judge to figure out what allegations might be presumed immunized but capable of being rebutted by facts. Lastly, it also left intact a universe of allegations that could proceed to trial so long as the prosecutors could establish that the actions were all undertaken by Trump in his private capacity, not his official Presidential capacity. These last two categories make up the bulk of Smith’s filing and the facts Smith presents are compelling.

They are compelling because they paint a picture of Trump planning even before the election to deny the results if he lost and repeatedly ignoring the lack of evidence that any irregularities had affected the vote. Thus, he responded to a lawyer telling him that false claims about the election would not fly by saying “The details don’t matter” and told his family after the election “It doesn’t matter if you won or lost the election. You still have to fight like hell.”

Trump’s indifference to the safety of his own Vice-President during the attack on the Capitol is well known but it is still shocking to read that Trump’s reaction to hearing that Vice-President Mike Pence was in danger was “So what?”

Indeed, the real reveal of Smith’s filing are the facts about Pence’s interactions with Trump, some of which came from Pence’s book and some of which may have come in part from interviews and likely grand jury testimony that has not previously been made public. Thus we learn the evolution of the pressure Trump put on Pence starting with Pence agreeing to study voter fraud cases and evolving into Pence encouraging Trump to accept defeat gracefully.

In one call, Pence apparently told Trump that he had given a “dying political party” “new life” and then in a later conversation telling Trump that he could run again in 2024. Such facts gathered from a former Vice-President are historic for their source as well as what they tell us about the depth and breadth of Trump’s commitment to winning at all costs.

Regarding arguments about Trump actions that were undertaken purely as a candidate and therefore in a private—non-immunized capacity—Smith’s team points out that the Ellipsis gathering at which Trump encouraged his supporters to march on the Capitol was entirely privately funded.

The prosecutors point out that the U.S. Secret Service categorized the event as a campaign event, not an official event as did the White House photographer.

In what must have been a true rarity in the Trump administration, White House staff even complied with the Hatch Act prohibition on engaging in partisan work using their official office by working on the event with their personal cell phones and personal messaging accounts. In conjunction with evidence making plain how Trump relied upon campaign staff and private attorneys to work on the fake elector scheme and to try to pressure state officials into changing election results, Smith puts forth reams of evidence showing the non-official nature of Trump’s actions.

Plenty of political pundits will argue that none of this is a true October Surprise because it is unlikely to change any minds for die-hard supporters of Trump. But that’s not the important audience for these new facts.

Really there are two important audiences. The first group is the several thousand voters in seven swing states that will be the deciding margin in who becomes the next President. The other audience—assuming Trump loses—will be 12 men and women who will someday be impaneled as a criminal jury in the District of Columbia to hold Donald J. Trump accountable.