Is Jack Smith's J6 Case Against Donald Trump Collapsing Already?
Smith's Latest Maneuvers Could Be Signs Of Desperation
The proper apprehension of Jack Smith’s indictments against Donald Trump for allegedly attempting to “illegally” overturn the 2020 election turn on one key proposition advanced repeatedly by the corporate media: That Donald Trump was the clear and unequivocal loser of that election, and that all claims to the contrary have already been proven to be false and therefore fraudulent.
Thus Donald Trump’s claims in the runup to the Capitol Hill “J6” riots on January 6th, 2021, are clearly criminal and warrant the most extreme sanctions—according to the corporate media narratives.
If Trump can make even a partial showing of fact which rebuts this proposition, however, Smith’s case immediately collapses into a morass of reasonable doubt about what Donald Trump did or did not believe to be “true” about the election.
Unsurprisingly, Smith and his prosecution team want to prevent Trump from making any such showing at all costs—Smith’s case depends on it.
We must wonder, therefore, why Smith is now informing the court of his intent to introduce statements made by Trump regarding earlier elections in a bid to prove Trump’s guilty mindset—a proof that Smith must accomplish or lose the case altogether.
Special counsel Jack Smith wants a Washington, D.C. jury to hear about Donald Trump’s efforts to sow false doubts about the two presidential elections that preceded his failed 2020 campaign.
The special counsel’s team says Trump’s previous attempts to convince Americans that the elections of 2012 and 2016 were being stolen laid the foundation for what would become a criminal effort to overturn the 2020 election after his loss to Joe Biden.
“They demonstrate the defendant’s common plan of falsely blaming fraud for election results he does not like,” senior assistant special counsel Molly Gaston wrote in a nine-page court filing.
The key—and therefore the most problematic—word here is “false”. The presumption is that Trump’s claims in the 2020 election as well as in the previous elections are demonstrably untrue, and that Trump knew them to be untrue. This is not a mere fact to be introduced at trial, but an assertion that must be adjudicated with evidence at trial, and if that assertion fails so does Smith’s case.
Smith is now making Trump’s state of mind not just the essential element of his case, but practically the only element of his case. One has to wonder how he intends to prove exactly what Trump was thinking more than ten years ago, and how well he can connect that to the present case. One also has to wonder what becomes of his case if Smith cannot make that connection sufficiently.
Is Smith’s case already showing fatal flaws and gaps which he must now plug at all costs? Is this a legal “Hail Mary”, a sign of pure desperation? The world wonders….
As I discussed when Smith first unveiled his J6 indictments against Donald Trump, the key to his case is what Trump did or did not know in the wake of the 2020 election:
Smith’s basis for fraud rests entirely upon whether or not Trump knew that there had been no outcome-determinative fraud during the election. However, the proof of what Trump did or did not know about the election proffered in the indictment is nothing more than a laundry list of government officials telling Trump that there was no outcome-determinative fraud during the election. That the disputes remain in the minds of a not-insignificant portion of the electorate means that more people besides Trump have chosen not to believe the statements of these officials. It hardly can be held to be unreasonable, therefore, for Trump himself to not believe these officials.
This point remains the essential point of contention for Smith. If he can show beyond a reasonable doubt that Trump knew he was promoting a false claim, that Trump knew absolutely that he had lost the 2020 election, then Trump’s challenges of various electoral returns become problematic, opening the door for a fraud charge.
However, if Donald Trump believed even incorrectly that he won the 2020 election, his actions in the wake of that election are not only reasonable, but are even supported by the historical precedents surrounding the contested election of 18761. Accusations of fraud evaporate if Trump believed even incorrectly that he won the 2020 election.
If Trump is correct in his belief that he won the 2020 election, then he is not the perpetrator of election fraud but rather the victim of it.
In both scenarios where Trump genuinely believed he won the election he is not guilty of election fraud.
The possibility that Trump was the victim of election fraud is further raised at least somewhat by the fact that at least one Virginia county registrar from 2020, Prince William County’s Michele White, has been indicted for allegedly “altering election results”.
In September 2022, former Prince William County general registrar Michele White was indicted by a grand jury on two felony counts alleging corrupt conduct as an election official and making a false statement, and one misdemeanor indictment of willful neglect of duty by an election officer. White’s jury trial is set to begin on Jan. 16, 2024, and go until Jan. 26.
Whether or not the allegations against Michele White amount to major election fraud, if election results were altered at all, the case against her means there was in fact election fraud, and the question for Jack Smith and his prosecution team becomes how much fraud was there, and how much of it was known to Donald Trump?
Given this apparently demonstrated instance of election fraud, and the documented irregularities and problematic handling of ballots during the 2020 election in several states, as a simple matter of empirical fact it cannot be asserted that there is “no evidence” of fraud against Donald Trump. There is evidence of fraud against Donald Trump during the 2020 election, and that evidence has from the outset been a potential Achilles’ Heel for Smith’s case.
If Jack Smith’s theory of the case against Donald Trump relies on there being provably no fraud in the 2020 presidential election, the reality of the numerous election integrity reports which found significant deficiencies in multiple states arguably means Smith’s case has imploded before it even got close to trial. While the integrity reports have not been found to prove by any measure the existence of voter and election fraud in the 2020 election, reports of multiple problems in multiple states make it impossible to assert that such fraud has been disproven. That assertion, both in the Trump indictment and in the corporate media, is more hope than fact.
Remember, the presumption that Trump’s claims are “false” is just that—a presumption. It absolutely is not a fact nor can it be presented in a courtroom as a given. If Smith attempts to present that presumption as a fact he almost certainly opens the door to rebuttal by Trump’s lawyers, which would quickly metastasize into a litigation of all the 2020 electoral fraud evidence on both sides. How Smith avoids reasonable doubt and a “not guilty” verdict in that scenario is not at all clear.
This point is repeatedly ignored by the corporate media as well as Jack Smith’s prosecutors. According to the media, any challenge of the 2020 election is by definition “false”, and is to be punished as fraudulent. Thus we have the recent civil settlements in Wisconsin, in which several former Trump supporters settled their litigation by acknowledging that Trump really did lose the election, and which the media incorrectly portrayed as admitting Trump’s claims were demonstrably false.
Ten Republican "fake electors" in Wisconsin who falsely claimed Donald Trump had won the 2020 presidential election in the state settled on Wednesday a civil lawsuit for which they admitted that President Joe Biden's victory was legitimate and agreed to cooperate with the Department of Justice (DOJ) regarding other cases.
It is important to note the subtle and yet extreme bias in the corporate media here: The GOP electors who were a party to the litigation are automatically deemed “fake electors”, and their claims automatically deemed to be “false claims”—even though there is no presentation of evidence to substantiate that view.
It’s also important to note something else about the corporate media reporting: it is unsurprisingly playing fast and loose with the word “admitted”. A perusal of the settlement document released by the Washington Post indicates the GOP electors didn’t “admit” to anything.
9. No Admission of Liability. The Plaintiffs acknowledge and agree that, by entering into this settlement, the Elector Defendants are not admitting any liability or culpability.
Where the media is getting the “admission” from is the coerced public statement issued by the Elector Defendants:
On December 14, 2020, in compliance with requests received from the Trump campaign and the Republican Party of Wisconsin, we met at the Wisconsin State Capitol and executed a document titled “Certificate of the Votes of the 2020 Electors from Wisconsin.” That document stated, in part, that we were “the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Wisconsin.” The Elector Defendants took the foregoing action because they were told that it was necessary to preserve their electoral votes in the event a court challenge may later change the outcome of the election in Wisconsin. That document was then used as part of an attempt to improperly overturn the 2020 presidential election results.
The duly elected presidential electors for the State of Wisconsin for the 2020 presidential election were: Meg Andrietsch, Shelia Stubbs, Ronald Martin, Mandela Barnes, Khary Penebaker, Mary Arnold, Patty Schachtner, Shannon Holsey, Tony Evers, and Benjamin Wikler.
We hereby reaffirm that Joseph R. Biden, Jr. won the 2020 presidential election and that we were not the duly elected presidential electors for the State of Wisconsin for the 2020 presidential election.
We oppose any attempt to undermine the public’s faith in the ultimate results of the 2020 presidential election.
We hereby withdraw the documents we executed on December 14, 2020, and request that they be disregarded by the public and all entities to which they were submitted.
Even in the public statement, the Elector Defendants acknowledge the documents they submitted were done to preserve their electoral votes pursuant to potential challenges. This, incidentally, is fundamentally what happened in the contested election of 1876, one in which no one was sued or indicted for attempting to “overturn” the election.
The Wisconsin settlement in fact leaves very much unresolved the cliched question “what did Donald Trump know about the 2020 election and when did he know it?” The more that question remains unresolved, the more Donald Trump has reasonable doubt on his side.
Unsurprisingly, corporate media’s legal experts claim the Wisconsin settlement provides Smith with considerable additional ammunition.
Again, the legal eagles are ignoring what is actually being said and acknowledged by the Wisconsin Elector Defendants. With no admission of culpability or liability by the Elector Defendants, the prepared statement is just that: words extracted as part of the settlement, not a statement of actual belief. The Elector Defendants are not admitting they were snookered by Trump’s lawyers, because the Elector Defendants are not admitting anything.
Also, the statement says the Elector Defendants documents were used “improperly”—not “illegally”. What does “improperly” mean? Does it mean the challenge to the election results was submitted incorrectly? Was a wrong venue chosen for the legal challenge? Was there simply an honest mistake and misunderstanding? All of these potential defects in how the Elector Defendant documents were used leads to the conclusion they were used “improperly”, without that use being illegal. Using the Elector Defendants’ documents to commit a crime is not an “improper” use but an “illegal” use—and that is not what the public statement says or even implies.
Does the Wisconsin settlement prove Trump’s claims of election fraud were “false”? Not at all. The settlement does not even establish that Trump’s claims of election fraud were “false” in Wisconsin. The Elector Defendants did not make anything close to that admission. The Elector Defendants did not make any admissions, period.
Without an admission of culpability or liability—i.e., without an explicit admission that the entire process in Wisconsin rested on a demonstrably “false” claim—there is no basis for presuming the settlement bolsters Jack Smith’s case.
Which brings us back to Smith’s plan to introduce Trump tweets from the 2012 and 2016 elections.
The government’s contention is that Mr. Trump “sowed mistrust in the results of the presidential election and laid the foundation” for his alleged crimes. Mr. Smith, though, in an effort to paint a portrait of Mr. Trump as an inveterate election denier, offers what he terms a “historical record” that stretches far beyond the last election.
Mr. Smith writes that, as early as November 2012, Mr. Trump “issued a public tweet making baseless claims that voting machines had switched votes from then-candidate Romney to then-candidate Obama.”
There are a more than a few potential pitfalls Smith has to navigate here.
Rule 4042 of the Federal Rules of Evidence specifically excludes so-called “character” evidence.
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
Even if Donald Trump is an “inveterate election denier”, that character trait arguably is inadmissible under Rule 404.
Additionally, Smith has to establish relevance for such historical evidence, according to Rule 4023.
Relevant evidence is admissible unless any of the following provides otherwise:
the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.
The one aspect of this that is even somewhat in Smith’s favor is the relatively low threshold for relevance, per Rule 4014.
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
If Trump’s prior statements surrounding the 2012 and 2016 election plausibly establish that he has a history of denying actual electoral outcomes even when he reasonably “knows” the truth, that could be considered relevant to the theory of the case.
However, there are still two particular factual hurdles Smith has with Trump’s prior election cycle statements and tweets in order to establish relevance:
Donald Trump was not a candidate in 2012.
Donald Trump won in 2016.
Donald Trump certainly could not be said to have denied an election which he won (2016). Connecting Trump’s choices to support claims of electoral fraud against Mitt Ronmney in 2012 to his claims regarding his own attempted reelection in 2020 seems a bit of a stretch.
Mr. Smith argues that Mr. Trump “repeatedly refused to commit to a peaceful transition of presidential power if he lost the election,” telegraphing a “plan to remain in power at any cost—even in the face of potential violence.”
The prosecutor tracks Mr. Trump’s “consistent refusal to commit to a peaceful transition of power” as a harbinger 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.”
Moreover, even if the evidence meets the test for relevance, Smith’s prosecution team still has to show that the evidence is not inadmissible “character” evidence. Being an “inveterate election denier” does not prove Trump’s 2020 claims were knowingly false in and of themselves, and as an exploration of Trump’s character Rule 404 excludes such evidence.
Yet Smith appears to be attempting to introduce this exact sort of character evidence in his filings to the court.
That is why Mr. Smith writes to Judge Chutkan that Mr. Trump’s “false claims about the 2012 and 2016 elections are admissible because they demonstrate the defendant’s common plan of falsely blaming fraud for election results he does not like.”
The special counsel aims to use these past statements not to prove the charged crimes, but rather that those crimes were part of a modus operandi honed over years, approaching something akin to character.
Again, the assertion that Trump’s claims were “false” is not itself a “fact” but a claim which must be adjudicated according to the evidence. Smith is inviting Trump’s legal team to weigh in on potential instances of election fraud not just for 2020, but for 2012 and 2016 as well, with each such instance creating additional opportunities for Trump’s legal team to establish reasonable doubt in the minds of the jury. Questions of admissibility aside, that risk alone makes Smith’s latest maneuver a curious tactic.
The outsized risks present in Smith’s strategy beg the question: Why? Why take the risk of attempting to introduce arguably inadmissible evidence? If Smith already has a “slam dunk” case against Donald Trump, such risks are of no benefit whatsoever. Worse, even if the evidence is admitted at trial, if the appellate courts rule the evidence should not have been admitted, the end result could be the loss of a conviction against Donald Trump.
Only if Smith’s case is wobbly and uncertain do such risks make any tactical sense. If Smith’s case is falling apart then taking risks with potentially inadmissible evidence becomes a more plausible scenario. If Smith’s prosecutors are going to lose anyway, then the downside of the risks associated with seeking to introduce inadmissible character or irrelevant evidence are effectively mooted.
Whether Smith is attempting to paper over an extreme prosecutorial overreach or is merely piling yet more evidence on an already-strong case will not be known until (and unless) the courts see fit to allow the evidence to be admitted. However, Smith’s decision at this late date to seek to use controversial and potentially inadmissible evidence at the very least raises significant doubts about the strength of the other evidences Smith has already assembled.
Is Smith scrambling to salvage his case against Donald Trump? Is this a legal “Hail Mary”, a sign of pure desperation? The world wonders….
Levy, M. “United States Presidential Election of 1876: The Disputed Election.” Encyclopaedia Britannica, Online Edition, 2011, https://www.britannica.com/event/United-States-presidential-election-of-1876/The-disputed-election.
What Trump knew or did not know is only known to Trump himself. Jack Smith attempting to read anyone's minds by any means is not only an exercise of pure folly, it is an exercise of things that are not within his position description nor his credentialed experiences. If the mens rea is being argued, then the actual mens rea of Trump is subject to debate and to being discredited by the usurpers.
FRE 404(b) permits the introduction of a party’s prior acts for purposes other than character, including to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” If evidence is relevant to these things, however, FRE 403 still allows the court to exclude it “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” The problem here is that these evidentiary rulings are all subject to the trial judge’s discretion. This trial judge appears to be decidedly pro-government (in this particular case at least). If I were a betting person, I would bet that a lot of the prosecution’s evidence gets in. I think the real question is how much of Trump’s 2020 election fraud evidence the judge lets in. Even if a lot of it doesn’t get in, the court still has to allow Trump’s lawyers to proffer it. That means it should be public. Whether the MSM covers it or not is a different matter.