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january 6 insurrection
New Motion Presents Most Detailed Case Yet Against Trump for Insurrection Crimes
"The desperate plan that Trump embarked on to try and overturn the results of a legitimate election was reprehensible, irresponsible, and—the document shows—criminal," said one consumer advocate.
Oct 02, 2024
Jack Smith, the special counsel probing former U.S. President Donald Trump's attempt to subvert the 2020 presidential contest, on Wednesday presented a massive trove of fresh evidence supporting his election interference case against the 2024 Republican nominee.
Smith's sprawling and highly anticipated 165-page motion—which was partly unsealed Wednesday by presiding U.S. District Judge Tanya Chutkan—states that Trump "asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so."
Trump—who in August 2023 was charged with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights—contends that his actions were taken in his official capacity as president and not as a private individual.
In July, the U.S. Supreme Court's right-wing justices—including three Trump appointees—ruled that the ex-president is entitled to "absolute immunity" for "official acts" taken while he was in office, raising questions about the future of this case. According to Smith's motion:
Although the defendant was the incumbent president during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted—a function in which the defendant, as president, had no official role.
In Trump v. United States... the Supreme Court held that presidents are immune from prosecution for certain official conduct—including the defendant's use of the Justice Department in furtherance of his scheme, as was alleged in the original indictment—and remanded to this court to determine whether the remaining allegations against the defendant are immunized.
The answer to that question is no. This motion provides a comprehensive account of the defendant's private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none of the defendant's charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted; and requests the relief the government seeks, which is, at bottom, this: that the court determine that the defendant must stand trial for his private crimes as would any other citizen.
Smith's filing details what Trump told various people in his inner circle, including then-Vice President Mike Pence, his now-disgraced and twice-disbarred lawyer Rudy Giuliani, and leading White House and Republican Party figures—some of whose names remain undisclosed.
The motion also highlights Trump's actions on January 6, 2021, when his supporters stormed the U.S. Capitol in an attempt to stop Congress from certifying President Joe Biden's Electoral College victory. Trump is still pushing his "Big Lie" that Democrats stole the 2020 election; his running mate, U.S. Sen. J D Vance (R-Ohio), on Tuesday
refused to acknowledge that Trump lost to Biden when he was asked about the election during a vice presidential debate against Democratic Minnesota Gov. Tim Walz.
"Upon receiving a phone call alerting him that Pence had been taken to a secure location, [PERSON 15] rushed to the dining room to inform [Trump] in hopes that the defendant would take action to ensure Pence's safety," the filing states. "Instead, after [P15] delivered the news, the defendant looked at him and said only, 'So what?'"
Smith argued that deceit was central to Trump's efforts, specifically, "the defendant's and co-conspirators' knowingly false claims of election fraud," which they used to purvey the Big Lie.
The motion states:
When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office. With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the "targeted states"). His efforts included lying to state officials in order to induce them to ignore true vote counts; manufacturing fraudulent electoral votes in the targeted states; attempting to enlist Pence, in his role as president of the Senate, to obstruct Congress' certification of the election by using the defendant's fraudulent electoral votes; and when all else had failed, on January 6, 2021, directing an angry crowd of supporters to the United States Capitol to obstruct the congressional certification.
For a historic second time, Trump was
impeached by the House of Representatives following his effort to subvert the election, although he was subsequently acquitted by the Senate.
Trump spokesperson Steven Cheung
blasted Smith's motion as "unconstitutional" and "falsehood-ridden."
"Deranged Jack Smith and Washington D.C. Radical Democrats are hell-bent on weaponizing the Justice Department in an attempt to cling to power," Cheung said in a statement aping Trump's habit of overcapitalizing words. "President Trump is dominating, and the Radical Democrats throughout the Deep State are freaking out. This entire case is a partisan, Unconstitutional Witch Hunt that should be dismissed entirely, together with ALL of the remaining Democrat hoaxes."
Democracy defenders, however, welcomed Smith's ruling.
"Jack Smith has shown us yet again the merits of his case against former President Trump," said Lisa Gilbert, co-president of the consumer advocacy group Public Citizen and co-chair of the Not Above the Law Coalition.
"In his filing, Smith clarifies that the alleged criminal actions occurred while Trump was acting as a private citizen," Gilbert added. "The desperate plan that Trump embarked on to try and overturn the results of a legitimate election was reprehensible, irresponsible, and—the document shows—criminal. Accountability to the American people and our democracy is our only path forward."
Judge Chutkan unsealed the motion five weeks before Trump will face off against Democratic Vice President Kamala Harris in a tight presidential election. If he wins, Trump will have the power to order the Department of Justice to drop the criminal charges against him.
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How Trump Is Already Trying to Rig the 2024 Election
Relying solely on the courts is a prescription for interregnum confusion, chaos, and violence. Trump is desperate and afraid. If he loses the election, he could spend the rest of his life in prison.
Sep 28, 2024
In Donald Trump’s unsuccessful effort to reverse his 2020 election defeat, he exploited the vulnerabilities of the Electoral College process. For the election of 2024, he found new ones.
An Anti-Democratic Process
A presidential candidate’s political party names a slate of “electors” to represent that candidate in the Electoral College. When voters cast their ballots, they’re actually voting for a candidate’s electors. Only the slate of a state’s popular vote winner counts toward the 270-electoral votes required to win the presidency.
Although the courts withstood Trump’s specious attacks on the 2020 election, the past is not prologue.
The process requires several steps:
- To determine the popular vote winner, each county board assembles the results from its precincts and certifies the totals.
- The county boards report their results to the state’s election board (and/or the secretary of state). The statewide totals go to the governor.
- The governor signs a final “Certificate of Ascertainment” listing the names on the electoral slates for each candidate, the number of votes each received, and which individuals have been appointed as the state's electors.
- The Certificate goes to the National Archives where, along with all other states’ certifications, it waits to be counted at Congress’ special session the following January.
“For Want of a Nail, the Shoe Was Lost…”
Every step in the Electoral College process is fraught with danger to democracy. And Trump knows it.
- In an effort to reverse his swing state losses in 2020, he twisted the arms of election officials in Arizona, Michigan, and Pennsylvania, urging them not to certify the results. They rebuffed him.
- In Georgia, Joe Biden won the popular vote, but Trump pressured Secretary of State Brad Raffensperger—a Trump supporter—to “find” enough votes to make Trump the winner. Raffensperger resisted, and Trump now faces 32 felony criminal charges in the state.
- Trump pressed Georgia Governor Brian Kemp and Arizona Governor Doug Ducey not to certify their respective states’ results. They refused.
- Meanwhile, Trump’s allies created slates of his “alternate electors” in key swing states. Those Trump supporters swore under oath that they were their states’ proper representatives in the Electoral College. But Trump had lost the popular vote in those states, and more than 60 court cases confirmed his defeat. Many of his “alternate electors” are now facing criminal charges for their false statements.
- At a special session of Congress on January 6, Vice President Mike Pence became Trump’s last hope to retain power. If no candidate received a majority of electoral votes, the election would move to the U.S. House of Representatives where each state’s congressional delegation would get a single vote. Republicans would have the advantage, and Trump would win the presidency after losing the election.
- Because Pence would preside over Congress’ special session, Trump urged him not to count Biden’s electoral votes from key swing states. That gambit failed too.
With local election officials, governors, and Trump’s vice president resisting his unlawful attempts to subvert the election, Trump played his final card: Inciting the violent insurrection to block the transition of power.
Unsettling Precedent
Having learned from their mistakes in 2020, Trump and his MAGA allies have now corrupted the system from within. More than 100 “election deniers” who have refused to accept Trump’s 2020 defeat now serve as local election officials in the eight swing states that will decide the 2024 contest: Arizona, Georgia, Michigan, Nevada, New Mexico, North Carolina, Pennsylvania, and Wisconsin. Some have already demonstrated their willingness to wreak post-election havoc.
- In 2022, the Republican-led commission of Otero County, New Mexico, refused to certify primary election results. One commission member was co-founder of “Cowboys for Trump.” The Democratic secretary of state sued to force board certification of the vote totals.
- In 2024, two Republican members of a Michigan county board refused to certify the results of an election that led to the recall of three commission members.
- In Arizona, GOP lawmakers sued to reverse the state’s top Democratic officials’ requirement that local boards automatically validate their election results.
- In Georgia, Trump’s allies have suppressed the vote—and found new ways not to count the ones they don’t like. At his August 3 rally in Atlanta, Trump announced the state’s three GOP election board members by name, calling them his “pit bulls” fighting for victory. Three days later, those members formed a 3-2 majority adopting a new rule empowering local boards to pursue a “reasonable inquiry” (undefined) into election results before certifying an election. Ten days later, the board asserted the authority to “examine all election related documentation created during the conduct of elections prior to certification of results.”
- And Trump’s running mate, J.D. Vance, said that if he had been vice president on January 6, 2021, he would have insisted that “Pennsylvania, Georgia, and many others” have “multiple slates of electors.” He would not have certified Biden’s 2020 victory.
Don’t Worry, Be Happy!
A prominent election law scholar assures us that the weaknesses in the Electoral College process are not a problem. Notre Dame Law Professor Derek Muller argues that local election officials perform only “ministerial” acts—“little more than making sure all precincts have reported and the arithmetic is correct.”
“[T]here are ample safeguards to ensure ballots are tabulated accurately and election results are certified in a timely manner,” Prof. Muller urges.
Muller is talking about judges. He believes that they remain the critical guardrails protecting voters from MAGA loyalists in key election positions because “[a] court can quickly and easily ensure election results are certified in a timely fashion.”
But “can” doesn’t mean “will.” And some “won’t.”
Although the courts withstood Trump’s specious attacks on the 2020 election, the past is not prologue. For more than three years, Trump and his allies have pushed his Big Lie, poisoned the body politic with false claims about non-existent “voter fraud,” and infiltrated the election system with MAGA loyalists determined to assure Trump’s 2024 victory.
And for more than three years, Americans have witnessed the courts’ epic failure to hold Trump accountable for his treasonous misconduct.
A Better Plan
Relying solely on the courts is a prescription for interregnum confusion, chaos, and violence. Trump is desperate and afraid. If he loses the election, he could spend the rest of his life in prison.
Despite the dismal judicial record of the past three years, perhaps the legal system will begin to deal with Trump and his MAGA allies effectively. Meanwhile, here’s another idea:
Ignore Trump’s outrageous rhetorical distractions and shine a bright light on his dark mission – winning at all costs. To prevail, he’s willing to dismantle democracy.
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A Coup or Authoritarian State Capture? On Conceptualizing Trump's Project 2025 Program
We don't need to call it a coup, but a sinister advance of authoritarianism in the United States it certainly would be.
Sep 26, 2024
There seems to be quite a bit of confusion as to what a Trump victory in the November election portends. There has been talk of a Trump coup since the 2020 election, with January 6th serving as one of the main events in that narrative. In their efforts to understand and explain, observers have called that event an attempted coup. Recently, Donald Trump referred to the effort to get Biden to step aside as a coup. Such confusion.
In a recent Portside article, Jonathan Winer, a former U.S. deputy assistant secretary of state for international law enforcement, details three phases of mischief-making on the part of Trump and his minions. Winer characterizes the MAGA effort to implement Project 2025, should Trump win, as a "coup." However, most activities that Winer discusses in his article take place before the winner is certified. All that pre-certification activity involves legislative, electoral, and judicial maneuvering and mischief—but precedes actual office holding. It seeks to influence who wins electorally and that is not the process that one follows in a coup.
A coup is a militarized assault on the institutions of power. It seeks to overthrow through violent means what is recognized as a legitimate government. It involves organized force, capture of key institutions, including the military, security establishment, Information institutions, media outlets, executive); and removing incumbent officials (legislators, judges, administrative personnel, military, and security leaders). These are summary dismissals; they do not come about through an orderly process. Some come with additional burdens that might include imprisonment, exile, or execution. It also involves suspension and/or rejection of the existing constitution and governing structure. It usually results in a military-led administration and governance by decree. That is not what we are considering here.
The mob on January 6th did not seem to have meaningful plans to take over the government, or much of an idea of what they would do on day two. Nothing they did extended beyond Congress. What little coordination there was did not include mobilizing an armed force to overthrow the government, nor did they have any plan for governing. They clearly did not have the support of the military leadership and, bluster and bravado aside, they did not have the wherewithal to withstand a frontal military assault. Their main goal seems to have been to disrupt the legislative process which was to confirm the winner of the election. It was disruptive of congressional business. It was, no doubt, an insurrection, which is a violent uprising against the government. That concept suffices to characterize the January 6th events.
Once the authoritarians have taken power, they use their democratic legitimacy to justify a series of restrictions on democratic forms of governance, such as voter and polling restrictions.
With the coming election we are hearing commentators refer to the Project 2025 document as a prescription for a coup. I find this conceptualization to be problematic. We are witnessing political developments that may have never occurred before in this country. We have no ready ways of conceptualizing those events, so, like Procrustes, we fit them into preexisting conceptual categories. This is what I see happening with the effort to understand what a second Trump administration might portend.
If Trump wins the election and proceeds to implement Project 2025 it will be via the existing political process, even if they massage, manipulate, misinterpret, and cajole to get the results they seek. And they will. Observers cannot accept that the political system can produce outcomes such as those that Project 2025 promises because that would require condemning a flawed process—one that is open to manipulation. This would be a process that can produce an elected administration, however controversial, with a different (and dangerous) policy agenda. Understanding this process requires seeing that such a power grab can happen in the system through its normal workings.
So long as they stay within the operational framework that requires Congress to codify and fund their initiatives, and a Supreme Court to sanction what they do, they will be a legitimate, if not popular, government. We might not like what they do but it will fall within the framework of the American constitutional order.
It is important to be clear about what we are confronting—which is an attempt to consolidate Authoritarianism through the mechanism of State Capture.
We are witnessing an attempt to capture the instruments of the government to institute policy and personnel changes that will resonate for decades.
Contemporary Authoritarian regimes concentrate power in a leader or an elite to undermine democratic institutions to the extent that those institutions become more performative than substantive. Once the authoritarians have taken power, they use their democratic legitimacy to justify a series of restrictions on democratic forms of governance, such as voter and polling restrictions. They neuter the political order while allowing a level of social and economic freedom. These regimes will tolerate social and economic institutions not directly under governmental control so long as they stay in line. The practice of authoritarian regimes is to rely on resignation in the face of lawful, though repulsive measures, and passive mass acceptance rather than active popular support. So long as Trump is in play, authoritarianism will have a populist cast. Thereafter, right-wing Authoritarian forces expect to have their dominance institutionalized through State Capture.
A simple definition of State Capture assumes that elections occur, and officials hold office. It is a matter of how and who. State Capture is a systematic process to advance narrow group interests by taking control of the institutions and processes that produce and implement public policy. Once in control they proceed to direct policy away from the public interest and instead begin to shape policy to serve their own interests more effectively.
We are dealing with a process that has antecedents in Hungary, Türkiye, India, and elsewhere where an authoritarian regime captures the government through formal channels and then begins to populate the administrative structure with partisans, preferably in secure civil service positions. They then implement policies that further consolidate their power. We are witnessing an attempt to capture the instruments of the government to institute policy and personnel changes that will resonate for decades.
The make-up and character of these “narrow interest groups” can differ from case to case. So, in India it can be Hindu nationalists, capitalists, and the landed gentry. In Türkiye, Islamists, and capitalists. In South Africa party cadre, domestic and international capitalists and landed interests. The one thing they all have in common is that capitalists always factor. The narrow interests served by a Trump presidency includes the monopoly sector, neoconservatives, white nationalists, Christian evangelicals, and isolationists. Regimes on the right exist, as in this case, to advance the interests of Capital.
The make-up and character of these “narrow interest groups” can differ from case to case... The one thing they all have in common is that capitalists always factor.
We see the phenomenon of winning elections to legitimize authoritarian regimes on both the right and the left. The difference being that the regimes on the left are doing so under extreme duress from covert destabilizing forces, in the face of punishing international sanctions, and as acts of survival. It does not excuse them, but it does place them in a different context. Among them are regimes that came to power through other means such as coups and revolutions. In those cases, they already have control of the state. The goal is to continue in power.
The main similarity is that State Capture regimes deploy the electoral process to maintain their positions and power. The process of gaining and staying in power involves winning elections. Much can be said about the veracity of those elections. No matter how flawed they may be, though, the regime still gets to check the Democracy box. That is what will happen with Trump if he wins- they will modify the instruments of the state to remain in power and serve capital...forever, if possible. That plan can be delayed but not derailed by the outcome of the November election.
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