Jack Smith files notice of supposed evidence of Trump's intent to dispute and disrupt 2020 election

December 6, 2023

Special Counsel Jack Smith, in his 2020 election-related prosecution of former President Donald Trump, is seeking to introduce as evidence prior statements from the defendant about potential fraud in earlier election cycles, according to Politico.

Prosecutors will also seek to use Trump's statements in support of detained and imprisoned participants of the January 6 Capitol riot of 2021 against him, along with other alleged evidence that they claim will "establish his motive, intent, preparation, knowledge, absence of mistake, and common plan" to refuse to accept the 2020 election results or step down from power peacefully.

The former president's defense team will likely counter that the special counsel's so-called "evidence" in the form of Trump's statements issued either years ahead of or months and years after the 2020 election is irrelevant and undermines the purported credibility of the prosecution's case.

Past comments questioning election integrity

On Monday, Senior Assistant Special Counsel Molly Gaston filed a nine-page notice with District Judge Tanya Chutkan that sought her permission to introduce what is known as Rule 404(b) evidence that includes various acts and statements that weren't criminally charged in the indictment but are ostensibly related to the charged crimes.

That includes comments former President Trump made about the possibility of election fraud before, during, or after the 2012 and 2016 election cycles, which prosecutors argued "re admissible because they demonstrate the defendant’s common plan of falsely blaming fraud for election results he does not like, as well as his motive, intent, and plan to obstruct the certification of the 2020 election results and illegitimately retain power."

The filing also includes Trump's supposed refusal ahead of the 2016 and 2020 elections to "commit to a peaceful transition of presidential power if he lost the election," which in reality was nothing more than a standard refusal to preemptively concede the races and waive his right to challenge disputed results.

Prosecutors intend to argue that Trump's legitimate refusal to prematurely concede a potentially challengeable outcome is "admissible evidence of his plan to undermine the integrity of the presidential transition process when faced with the possibility of an election result that he would not like, as well as his motive, intent, and plan to interfere with the implementation of an election result with which he was not satisfied."

Linking Trump to Jan. 6 defendants

Special Counsel Smith's team was not done there, though, as the filing of alleged 404(b) evidence also included partially redacted acts or statements by alleged co-conspirators that supposedly show that former President Trump knew the 2020 election was legitimately lost as well as that his public commentary about specific individuals would knowingly result in targeted harassment and threats of those people.

Prosecutors also highlighted Trump's purported pre-election command for the Proud Boys group to "stand back and stand by" as evidence of his intent for them and other "extremist" groups to disrupt the congressional certification of the election results on January 6, 2021.

Likewise, the filing also pointed out the former president's expressed support for Jan. 6 detainees, including his denouncement of the harsh sentences and treatment some have received, his reference to some of them as "hostages," and his use on the campaign trail of a recorded rendition of the National Anthem and Pledge of Allegiance by a "choir" of Jan. 6 detainees -- all of which prosecutors argue signal Trump's support for their criminal actions and intent to disrupt and overturn the 2020 election results.

Defense team will likely counter that Smith's added evidence is contradictory and irrelevant

Meanwhile, perhaps in anticipation of this particular tactic by the special counsel, former President Trump's defense team in the 2020 election case has already attempted to distance Trump from anything having to do with the Jan. 6 "independent actors," according to a late November Associated Press report.

Trump's attorneys have sought to bar potential evidence related to the Jan. 6 Capitol riot from being introduced as "prejudicial" to the jury and "irrelevant" to the claims that Trump supposedly interfered in the outcome of the 2020 election or the peaceful transfer of power -- which did indeed ultimately occur as scheduled on Jan. 20, 2021.

The former president's lawyers are also expected to highlight how, contrary to Special Counsel Smith's assertions that Trump is responsible for inciting the Jan. 6 Capitol riot -- even though that hasn't been specifically charged -- other federal prosecutors have argued the opposite concerning Jan. 6 defendants who sought to shift blame for their alleged criminal actions to the former president.

In the end, the defense attorneys for Trump will attempt to undermine the credibility of Special Counsel Smith and his team by pointing out various contradictions and irrelevancies brought up by prosecutors, and Smith's recent filing plays right into that strategy.

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