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UnJustified
Jack Smith’s Final Report Volume 1 | Part 2
01:08:06
Allison and Andy read the first volume of Jack Smith’s final report.
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- [00:01]
A
MSW Media. Welcome to Jack the Podcast about all things special counsel. This is the special audio bonus version where Andy and I now Andy has joined me since it's not midnight on this second episode, to read to you present to you the audio version of volume one of Jack Smith's final report. As we know, Volume two can't be released yet because the case against NA and de Oliveira is still ongoing. And so there's a hearing, supposed to be a hearing this Friday in Cannon's courtroom, although I still don't understand why she's under any illusion of having jurisdiction. But you know, Andy, you and I will talk about that on the regular episode of the Jack podcast, which will happen this Sunday. But here we go. We're going to start where I left off last night in the wee hours of the morning. And we're at the top of page 23, which is section 1, subsection E. It's called Mr. Trump's supporters attack the United States Capitol. It says Mr. Trump's efforts to remain in power converged and culminated on January 6, the day that Mr. Biden was to be certified president. That day, Mr. Trump was scheduled to speak at the Ellipse to a crowd of supporters he had summoned to Washington with false claims of election fraud. Around 1am on the morning of January 6, Mr. Trump tweeted, quote, if Vice President Mike Pence comes through for us, we will win the presidency. Many states want to decertify the mistake they made in certifying incorrect and even fraudulent numbers in a process not approved by their state legislatures, which it must be. Mike can send it back, unquote. Just just before he left the White House to give his speech at the Ellipse, Mr. Trump phoned Mr. Pence one last time. When Mr. Pence told Mr. Trump that he planned to issue a public statement making clear that he lacked the authority to do what Mr. Trump wanted, Mr. Trump expressed anger at him. He then directed staffers to reinsert into his planned Ellipse speech some language that he had drafted earlier targeting Mr. Pence. During his speech at the Ellipse, Mr. Trump made one more attempt to retain power. In his remarks, Mr. Trump repeated many of the same lies he had been telling for months regarding dead voters, non citizen voters and vote dumps. And he told newer ones lies that targeted states wanted to change their electors and that Mr. Pence had the authority and might be persuaded to change the election results. The lie regarding Mr. Pence was particularly deceptive because Mr. Trump knew what his supporters in the crowd did not. That Mr. Pence had just told him in no uncertain terms that he would not do what Mr. Trump was demanding.
- [02:59]
B
Mr. Trump told the crowd, a crowd of his supporters, that he had remarked to advisors the night before was angry that the election had been stolen and the country would no longer exist if this purported crime were not stopped, and that the discovery of fraud licensed them to go by very different rules. Although Mr. Trump at one point also told his supporters to, quote, peacefully and patriotically make their voices heard, he used the word fight more than 10 times in the speech before concluding by directing his supporters to march to the Capitol to give allied members of Congress, quote, the kind of pride and. And boldness they need to take back our country. He also told the angry crowd, quote, if you don't fight like hell, you're not going to have a country anymore. Throughout the speech, Mr. Trump gave his supporters false hope that through such action, they could cause Mr. Pence to overturn the election results, even improvising new lines directed at Mr. Pence. As the speech went on, at Mr. Trump's urging, thousands of his supporters marched from the Ellipse to the capitol building. There, Mr. Pence began the certification. Around 1pm Outside the building, the crowd swelled and broke through the barriers, cordoning off the grounds. The crowd that attacked the Capitol was filled with Mr. Trump's supporters, as made clear by their Trump shirts, signs and flags. As described in detail below, the crowd violently attacked the law enforcement officers attempting to secure the building.
- [04:39]
A
And here's where an audio version of the podcast doesn't quite do this report justice, because there are, let's see, 1, 2, 3, 4, 5, 6 photos of the attack on the Capitol. And, you know, all of the photos are credited to the photographers, so you really need to, you know, if you're able to. To download the report, just to see these photos, they are harrowing pictures of the attack on the Capitol that day.
- [05:11]
B
Yeah. And. And a. A righteous and necessary part of this historical record.
- [05:17]
A
I agree. All right, we are now headed to page 29. It says. After his speech, Mr. Trump returned to the White House and at around 1:30pm settled in the dining room off the Oval Office. There, he watched television news coverage of the events at the Capitol and reviewed Twitter on his phone. When the angry crowd advanced on the Capitol building and breached it around 2:13pm Forcing the Senate to recess, several of Mr. Trump's advisers rushed to the dining room and told him that a riot had started at the Capitol and that the rioters were in the building. Over the course of the Afternoon, they forcefully urged Mr. Trump to issue calming messages to his supporters. Mr. Mr. Trump resisted, repeatedly remarking that the people at the Capitol were angry because the election had been stolen. Just before 2:24pm, the news channel playing on the television in the dining room where Mr. Trump was sitting aired an interview with an individual marching from the ellipse to the Capitol who expressed his anger at Mr. Pence and stated, quote, but I still believe President Trump has something else left, unquote. Then, at 2:24, sitting alone, Mr. Trump issued a tweet attacking Mr. Pence and fueling the riot. Quote, mike Pence didn't have the courage to do what should have been done to protect our country and our Constitution, giving states a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth, unquote. One minute later, the United States Secret Service was forced to evacuate Mr. Pence to a secure location at the Capitol. When an advisor at the White House learned this, he rushed to the dining room and informed Mr. Trump, who replied, so what? And, Andy, that's a little bit of new information that, that detail that he saw one of his supporters say that the President still has something left, and then tweeted, attacking Mike Pence. That's not something that we knew before that particular order of events.
- [07:21]
B
Yeah, the order of the texts based compared to what's happening in the Capitol is really an interesting piece of this. It goes on to say the rioters at the Capitol had been motivated and directed by Mr. Trump, and he continued to resist advisors requests to direct them to leave. Throughout the afternoon, crowds at the capitol hunted for Mr. Pence and other lawmakers, with some chanting, hang Mike Pence. At 2:38pm and 3:30pm Mr. Trump issued two tweets falsely suggesting that the events at the Capitol were peaceful and asking individuals there whom he termed we to remain that way, quote, please support our Capitol police and law enforcement. They are truly on the side of our country. Stay peaceful. And quote, I am asking for everyone at the US Capitol to remain peaceful. No violence. Remember, we are the party of law and order, respect the law, and our great men and women in blue. Thank you. At 4:17pm he tweeted a video message in which he, for the first time, asked his supporters to leave the Capitol, while at the same time falsely claiming that, quote, we had an election that was stolen from us, a landslide election, and embracing the people who had attacked the Capitol, telling them, we love you, you are very special. And at 6:01pm he tweeted, quote, these are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots who have been badly and unfairly treated for so long. Go home with love and in peace. Remember this day forever. At around the same time as he issued the 6:01pm tweet, Mr. Trump tried to reach two United States Senators, and he also directed Co Conspirator 1 to call the members of Congress and attempt to enlist them in further delay of the certification. When Mr. Trump's White House counsel called him at around 7pm and asked him to withdraw any objection to the certific certification, Mr. Trump refused. Nonetheless, the certification resumed late in the evening of January 6th. And at 3:41am on January 7th, Mr. Pence announced the certified results of the 2020 presidential election in favor of Mr. Biden.
- [09:48]
A
Yeah. And co conspirator one, there is Rudy. Remember, he dialed the wrong senator.
- [09:52]
B
Yes.
- [09:53]
A
Yeah. This report goes on to say, and now we're at the top of page 32. As he did in his 4:17pm and 6:01pm tweets on January 6, Mr. Trump has provided additional evidence of his intent by continuing to support and ally himself with the people who attacked the Capitol. He's called them patriots and hostages, reminisced about January 6th is a beautiful day, and championed the January 6th choir, a group of January 6th defendants who, because of their dangerousness, are detained at the District of Columbia jail. So that ends section one. And now we're going to go on to page 33, which is section two. And this section is entitled the Law based on above facts. And after analyzing the relevant criminal statutes the office sought and a grand jury found probable cause for an indictment of Mr. Trump on four federal charges conspiring to obstruct the governmental function of selecting and certifying the President of the United States in violation of 18 U.S. code Section 371. Obstructing and attempting to obstruct the official proceeding on January 6, 2021, in violation of 18 U.S. code Section 1512 c. 2. Conspiring to obstruct the official proceeding in violation of 18 U.S. section 15, 12K and conspiring to violate the federal rights of citizens to vote and have their votes counted in violation of 18 U.S. code Section 241. Because of the unprecedented facts and the variety of legal issues that would be litigated in this case, the office was aware that the case would involve litigation risks, as would any case of this scope and complexity. However, after an exhaustive and detailed review of the law, the Office concluded that the charges were well supported and would survive any legal challenges absent a change in the law as it existed at the time of indictment.
- [11:53]
B
Little foreshadowing there. As set forth in section 5D below, after the original indictment was returned, the Supreme Court ruled in Trump vs United States that Mr. Trump had absolute immunity for core presidential conduct, enjoyed a rebuttable presumption of immunity for other official presidential acts, and had no immunity for unofficial conduct. The Supreme Court's decision required the office to reanalyze the evidence it had collected. The original indictment alleged that Mr. Trump, as the incumbent president, used all available tools and powers, both private and official, to overturn the legitimate results of the election, despite notice, including from official advisors, that his fraud claims were false and and he had lost the election. Given the Supreme Court's ruling, the office re evaluated the evidence and assessed whether Mr. Trump's non immune conduct, either his private conduct as a candidate or official conduct for which the Office could rebut the presumption of immunity, violated federal law. The Office concluded that it did. After doing so, the office sought and a new grand jury issued a superseding indictment with identical charges, but based only on conduct that was not immune because it was either unofficial or any presumptive immunity could be rebutted. This section reviews the federal laws violated by Mr. Trump's non immunized conduct.
- [13:26]
A
Yeah, and that's interesting there that the office concluded that he violated the law. That's a big difference between this report and the Mueller report for sure. Refused to say you violated the law. You and I talked about this, Andy. You know, we were both like, well, he's already accused him of violating the law. He indicted him twice and had two trials on the calendar ready to go. So that ship had sailed. So.
- [13:51]
B
Right. No reason to pull that punch here. There's no, there's no kind of courtesy of avoiding making the accusation because he'll never have the chance to defend it in court. He has defended it in court for the last year or more and, and would have continued defending it had the Supreme Court not weighed in.
- [14:11]
A
Yeah, agreed. All right. Section A, subsection A in part two, the law, this is called conspiracy to defraud the United States Title 18, U.S. code, Section 371. The defraud clause of the general conspiracy statute makes it a crime, quote, if two or more persons conspire to defraud the United States or any agency thereof, in any matter or for any purpose, and one or more of such persons do any act to affect the object of the conspiracy. The Defraud Clause applies not just to schemes to cheat the government out of money or property, but also to schemes, quote, to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest, unquote. Under long standing established precedent, that government must prove the following elements to establish a violation of the Defraud Clause. One, the defendant entered into an agreement two, to obstruct a lawful function of the government or an agency of the government three, by deceitful or dishonest means and four, at least one overt act was taken in furtherance of that conspiracy. The Office concluded that Mr. Trump's conduct satisfied each of these established elements of a Defraud Clause offense. The process of selecting and certifying the President, as described above and prescribed by the Constitution and federal law, is plainly a lawful function of the federal government. And then there's a, quote, a citation here from Ray v. Blair noting that the presidential electors exercise a federal function. And then there's a few other citations, too. This is wellestablished law. Indeed. Mr. Trump never challenged the indictment on that basis, though he filed more than 100 pages in support of dismissal dismissal motions, as the Court of Appeals found in the context of the immunity litigation in this case, quote, former President Trump's alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. Mr. Trump also sought to obstruct the certification. His sole objective was to ensure that no one other than himself was certified as the president. Nor is there any doubt that Mr. Trump conspired with others to achieve his goal and that at least one overt act was committed with three of the.
- [16:39]
B
Four elements of a Section 371 violation established. The office anticipated that a central dispute at trial would be whether Mr. Trump pursued his obstructive as obstructive purpose by, quote, deceit, craft or trickery, or at least by means that are dishonest. The office concluded that the evidence established beyond a reasonable doubt that he did. The core of Mr. Trump's obstructive scheme was a false narrative of outcome, determinative voter fraud, which he and his surrogates frequently repeated and widely disseminated over the course of two months. Crucially, not only was Mr. Trump's voter fraud narrative objectively false, he knew that it was false. Mr. Trump's false claims were repeatedly debunked, often directly to him, by the very people best positioned to ascertain their truth. Campaign personnel told Mr. Trump his his claims were unfounded. So did state officials, a White House official who engaged with Mr. Trump in his capacity as a candidate, and even his own running mate. For example, Mr. Trump's campaign manager informed him that a claim that had been circulating that a substantial number of non citizens had voted in Arizona was false. State officials issued public statements dispelling Mr. Trump's claims of widespread election fraud. Georgia's Secretary of State refuted multiple false claims of election fraud directly to Mr. Trump, including the false allegation that 5,000 dead people had voted in Georgia. When Mr. Trump raised various fraud allegations with Michigan's Senate Majority leader, he was told that he had lost because he had underperformed with educated females. Vice President Pence told Mr. Trump that he had seen no evidence of outcome determinative fraud in the election. And tellingly, a senior Advisor reiterated to Mr. Trump that Co Conspirator 1 would be unable to prove his false fraud allegations in court. To which Mr. Trump responded, quote, the details don't matter.
- [18:49]
A
Oof. The details don't matter, huh?
- [18:51]
B
Actually, they do.
- [18:52]
A
But anyway, they do. And we're going to talk about that was all of the different people in his sphere telling him that he lost the election. And this again goes toward that fourth standard, that fourth element that has to be met to prosecute under Title 18 of the U.S. code, Section 371. And we're going to continue with the stuff that he tried in court. But we have to take a quick break, so everybody stick around. We'll be right back. Hey everybody, welcome back. We left off, let's see at the bottom of page 36. We're going to get into the court stuff now that we've established that to everybody and their mother told Donald Trump he lost the election, it says, and this is again, it goes toward that deceit and dishonesty. The trickery right courts in which Mr. Trump brought numerous lawsuits, all rebuffed his claims, which in some instances prompted him to issue public rebukes acknowledging those decisions. Still, other federal and state officials, some appointed by Mr. Trump and others who publicly supported and voted for him, publicly debunked allegations of outcome determinative voter fraud. Mr. Trump did not reach out to any of those officials to ask relevant questions about the election because he was not seeking honest answers. This was a pattern revealed throughout the investigation. Mr. Trump unquestioningly accepted at face value and amplified election fraud claims that benefited his quest to retain power. Conversely, he avoided consulting informed sources such as state election officials, who possessed evidence that could debunk his claims. The office concluded that this consistent pattern would constitute powerful proof at trial that Mr. Trump knew the claims he was making were false. Mr. Trump's false claims were often divergent from one day to the next and otherwise internally inconsistent. For example, in Arizona, the conspirators started with the allegation that 36,000 non citizens voted in the state. Five days later it was beyond credulity that a few hundred thousand didn't vote, and three weeks later the bare minimum was 40 or 50,000. The reality is about 250,000. And then days after that, the assertion was 32,000. And ultimately the conspirators landed back where they started at 36,000, a false figure that they never verified or corroborated. And in Georgia, the conspirators initially suggested that a large enough number of dead voters had cast ballots to overcome Mr. Trump's losing margin of about 12,000 voters. A month later, the number was 10,315. Three days after that, the assertion was close to 5,000 people. Then two days later, the number bounced back to 10,315. Mr. Trump bears legal responsibility for each of these false claims because they were made by him and his co conspirators. In furtherance of the conspiracy that he led, the office developed further evidence in Mr. Trump's knowledge that his claims were untrue from witnesses who reported that he planned to use fraud claims before the election even happened. For instance, in advance of the election, advisors told Mr. Trump that the election would be close and that the initial returns might be misleading, showing an early lead for Mr. Trump that would diminish as mail in ballots were counted. In response, Mr. Trump suggested that if that prediction were true, which it ultimately was, he would simply declare victory before all ballots were counted and a winner was projected. He also made repeated public statements in the lead up to Election Day in which he sowed public doubt in the election results, setting the stage for his later fraud claims. And Mr. Trump made his first statement claiming fraud in the election only hours after the polls closed, when no investigations had begun, much less concluded.
- [22:56]
B
Mr. Trump's intent in spreading knowing falsehoods was further evidenced by statements he made to those around him in private. In contrast with his public false claims, Mr. Trump made admissions that reflected his understanding that he had lost. In a private moment, Mr. Trump confessed to his family members that, quote, it doesn't matter if you won or lost the election, you still have to fight like hell. When President elect Biden appeared on television in November, Mr. Trump said to a staffer, can you believe I lost to this effing guy? And when his own vice president declined to join the conspiracy, Mr. Trump berated him for being too honest. Because the evidence showed that Mr. Trump knew his claims were false, it amply satisfied the mens rea standard for Section 371 charge, which would be satisfied by evidence that Mr. Trump either knew his fraud claims were false or that he acted with deliberate disregard for their truth or falsity. The concept of deliberate disregard, sometimes referred to as reckless disregard or reckless or deliberate indifference, has deep roots in the law of fraud. They go on to cite a case that said whether the party thus misrepresenting a material fact, knew it to be false or made the assertion without knowing whether it were true or false is wholly immaterial. For the affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false. That concept is reflected in case law and jury instructions for the District of Columbia, as well as precedent from every other circuit. Here, the evidence showed that Mr. Trump decided even before the election that he would allege outcome determinative fraud whether it occurred or not, if he were not declared the winner. And he adhered to that plan, repeating false claims that he knew to be untrue.
- [24:57]
A
Yeah, and I remember you and I talking about that mens rea standard and how that willful blindness is meets that standard just as much as knowing. Knowing falsity, you know.
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B
Yeah, yeah, exactly. Like knowing it's true is one thing. Saying something, knowing that you don't know what you're saying is true, that's also false.
- [25:20]
A
Right, right. Putting your fingers in your ears and going, la, la, la, la, la. Reminds me of those two reports he paid $1.5 million for and then ignored on voter fraud. It goes on here, by the way. Now we're at just about the bottom of page 40. Although Mr. Trump's conduct fell comfortably within the established elements of a defraud clause offense, the office noted that the Supreme Court has, in several recent decisions, limited the reach of other federal fraud and obstruction obstruction statutes. There is a seminality v. United States that says reversing conviction of construction contractor for wire fraud, for scheming with public officials to tailor bid requirements for government contracts to favor himself because the government did not prove the defendant deprived the victim of of a traditional property interest. And then Kelly v. United States, reversing convictions for wire fraud and federal program fraud, where defendants aimed to inflict political retribution on the mayor by closing lanes of a bridge that served the mayor's city because the object of the scheme was not to obtain money or property. There's several other Supreme Court hits here talking about how it's restricted to money and property. Right. And it goes on to say, given these decisions restricting the reach of other fraud and corruption statutes, the office considered whether the Supreme Court might also adopt a new construction of the defraud clause in section 371, such as one that would, for the first time limit it to money or property fraud. And this is interesting because you and I talked about him anticipating the Fisher case on 1512.
- [27:06]
B
Yeah.
- [27:06]
A
But here we're learning for the first time that he was anticipating the Supreme Court to limit the scope of 371.
- [27:14]
B
Yeah, really interesting. And that, of course, didn't happen, which is, I think, a good thing, but just shows you how careful they were in every aspect of this.
- [27:22]
A
Yeah. And it goes on to say the office concluded, however, that the creation of such a new rule would not be supported in the law, given that the well established elements of a defraud clause offense are firmly grounded in the statute's text, history and long standing judicial precedent. I thought that about immunity, too. For more than 100 years, the Supreme Court has, quote, stated repeatedly that the fraud covered by the statute reaches any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government. And that this branch of liability is distinct from money or property limitations in other areas of fraud law. And then there's a ton more of these case citations. I mean, Glasser, Hammerschmidt, like, it's. There's a ton. Haas, Henkel. Right. And what I think is really fascinating here is like, he actually tailored his, his indictment in case because he felt that the supreme court could narrow 1512 C2. But when he thought about 371 and looked at some recent cases, he actually thought, nah, we're good, we're good. And he was right. Yeah, that is pretty baller.
- [28:37]
B
But you also have to wonder, what if Trump had challenged it on that grounds and that case gets in front of the Supreme Court now knowing, you know, knowing what we know now about the court's willingness to heave all this sort of precedent out the window, they might have gone that way. For Trump on that issue as well they might have.
- [28:57]
A
All right, we're going to pick up at the bottom of page 42 after this next quick break. So everybody stick around. We'll be right back.
- [29:13]
B
Welcome back. Okay, we're at the bottom of page 42. Against the backdrop of that Supreme Court precedent, Congress has reenacted and indeed expanded the scope of the Defraud clause, reflecting congressional ratification of the court's construction of it in 1948. For instance, when Congress codified the General Conspiracy Statute, 18 USC Section 371, where the defraud Clause currently resides, it was already settled that defrauding the United States by depriving it of its lawful government functions by dishonest means is a defrauding within the meaning of the Defraud Clause. And that's from Glasser. Congress added the words or any agency thereof in the Defraud Clause after the United States. The House report from the Judiciary Committee accompanying the pertinent bill specifically stated that the amendment was designed to reflect the construction placed upon the predecessor statute by the courts. And it has consistently been the department's position in litigation that the Defraud Clause prescribes conspiracies to obstruct a lawful function of the federal government through deceit. And there's several cases cited here. And it it continues with. Accordingly, the Office concluded that Mr. Trump's conduct fell within the scope of Section 371, given the statute's longstanding congressionally ratified construction and its historic use by the Justice Department.
- [30:48]
A
Well, he would have been ready to go to court if they tried to narrow that statute. All right, we're at the top of page 44. The office also recognized various limiting principles in the application of Section 371 that separate Mr. Trump's conduct from more hardscrabble politics. A Defraud Clause violation, as honed by years of judicial decisions, including repeated applications by the Supreme Court, requires not only an agreement among co conspirators, but identification of a specific function of the federal government to the intent to obstruct that function through deceit and an overt act. And then there's more case citations. And he explains, first, a defraud Clause conspiracy must be targeted at a lawful function of the United States or an agency thereof. And to quote Haldeman From 1976, the unlawful agreement to attempt to use the CIA to interfere with the investigation of the Watergate breakin was thus fairly charged in count one of the indictment as one of the means by which the defendants intended to accomplish one of the principal objects of their conspiracy, defrauding the United States of its rights to have its officials and agencies transact their business honestly, impartially, and free from corruption or undue influence or obstruction. In contrast, a conspiracy targeted at a private party or at a state or local government does not suffice, even if the entity receives federal funds or serves as an intermediary performing official functions on behalf of the federal government. Second, obstruction of the government function must be, quote, a purpose or object of the conspiracy and not merely a foreseeable consequence of the conspiratorial scheme, Right? So delaying Congress from certifying the vote had to be the goal, not a byproduct of some other crime.
- [32:47]
B
That's right.
- [32:48]
A
Which is really interesting. Thus, for example, financial crimes do not automatically become federal conspiracies to defraud the IRS simply because the crime may have foreseeable tax implications. And this requirement means that the conspiracy must be aimed at defeating and obstructing the government function rather than simply participating in it. And third, the defraud clause is limited only to wrongs done by deceit, craft, or trickery, or at least by means that are dishonest. Fourth, the overt act requirement provides another limitation, the function of which quote is to manifest that the conspiracy is at work and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence. And then case law, case law, case law. The office was prepared to prove the materiality of Mr. Trump's deceptive statements and to offer a materiality instruction as another limitation on the scope of 371 under that limitation, even conspirators who make knowingly false statements with an obstructive intent will not violate the defraud Clause unless their statements are material. So now he's getting into the materiality of what Trump said.
- [34:03]
B
All of these requirements for establishing a conspiracy to Defraud under section 371, taken collectively, ensure that common political conduct or political speech does not fall within the scope of the defraud clause. The evidence collected during the investigation met these requirements as to Mr. Trump's conduct.
- [34:25]
A
That's so fascinating, because I know later on in this report he gets into why he didn't charge insurrection. And a piece of that is because the delay of Congress would have been a consequence of inciting insurrection, and 371 wouldn't apply in that case. And then also they planned on proving the requirements for establishing this conspiracy under this law. Also protect against Trump saying, this is my political speech.
- [34:59]
B
Right.
- [35:01]
A
And that's all very important. And why they felt they couldn't win a prosecution on 2383, which is inciting an insurrection.
- [35:09]
B
Got it. Okay, so we move on now to subsection B, which is titled Obstruction and conspiracy to obstruct. 18 United States Code Sections 1512-K and C2. The federal statute prohibiting obstruction of an official proceeding makes it a crime to, quote, corruptly alter, destroy, mutilate or conceal a record, document or other object or attempt to do so with the intent to impair the object's integrity or availability for use in an official proceeding, or otherwise obstruct, influence or impede any official proceeding or attempt to do so. A separate provision defines the term official proceeding to include, quote, a proceeding before the Congress. In Fisher v. United States decided during the pendency of Mr. Trump's immunity appeal, the Supreme Court clarified the scope of an obstruction offense under section 1512, holding that the statute applies only when a defendant impairs or attempts to impair, quote, the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in the proceeding. In language that applies directly to the allegations in the superseding indictment, the Supreme Court explained that Section 1512's criminal prohibition includes, quote, creating false evidence.
- [36:42]
A
Oh. Oops.
- [36:43]
B
Oh. Before seeking the original indictment, which, like the superseding indictment, alleged that One component of Mr. Trump's and his co conspirators obstruction involved replacing valid elector certificates from the contested states with false ones they had manufactured. The office anticipated the possibility of such a result in Fisher and confirmed that the evidence would prove Mr. Trump's guilt beyond a reasonable doubt, even under a narrow interpretation of section 1512. I guess we got that prediction right.
- [37:19]
A
We did. He saw it coming. I mean, he saw stuff coming we didn't think about.
- [37:23]
B
That's for sure. That's for sure. Fair. Okay. In constructing section 1512 to reach impairing or attempting to impair the integrity or availability of records, documents or other objects through, quote, creating false evidence, the Supreme Court cited United States v. Reich, in which a defendant was convicted under 1512 after he forged a court order and sent it to an opposing party intending to cause that party to withdraw a mandamus petition then pending before an appellate court. Just as the defendant in Reich violated 1512 C2 by, quote, injecting a false order into an ongoing litigation to which he was a party. The evidence showed that co conspirators created fraudulent electoral certificates that they intended to introduce into the Congressional certification proceeding on January 6th to obstruct it.
- [38:23]
A
Yeah. I mean, that's to the letter of the law.
- [38:26]
B
Yeah.
- [38:27]
A
So again, not surprised he didn't foresee that. It goes on here. We're now at page 47. The office was also prepared to prove that Mr. Trump willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to D.C. and then directing them to march on the Capitol to cause the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. And then he cites some case law here that says making a defendant criminally liable for willfully causing an act to be done, which if directly performed by him or another, would be a federal offense. And that's hesa. And upholding a conviction for willfully causing a violation of 1001, which is, you know, making false statements.
- [39:14]
B
Yeah.
- [39:14]
A
The Supreme Court's opinion and Fisher therefore did not undermine the viability of the section 1512 counts. Much of the evidence that supports the section 371 conspiracy to defraud likewise proves that Mr. Trump and his co conspirators violated 1512K and 15C2. Or, excuse me, 1512C2. To demonstrate a violation of section 1512C2, following Fisher, the government must prove one, the defendant obstructed, influenced or impeded an official proceeding or attempted to do so. Two, in the course of doing so, the defendant committed or attempted to commit an act that impaired the integrity or rendered unavailable records, documents, objects, or other things for use in an official proceeding. Three, the defendant intended to impair the integrity of or render unavailable such records, documents, objects or other things for use in an official proceeding, and 4, 4, the defendant acted corruptly. Mr. Trump's conduct establishes each of these elements beyond a reasonable doubt. That is really straightforward. That is so much more straightforward than the Mueller report. The Congressional certification proceeding was an official proceeding for purposes of section 1512, as every district court judge in the District of Columbia to have considered this question has concluded. And then case law, case law, case law. Proving that point. The evidence described above Supporting the Section 371 charge also establishes Mr. Trump's knowingly obstructive conduct. And as described above, Mr. Trump willfully caused others to attempt to obstruct the certification proceeding on January 6th.
- [40:52]
B
Finally, the government was prepared to prove Mr. Trump's corrupt intent under any definition beyond a reasonable doubt. To act corruptly means 1. Acting dishonestly, 2 intending the use of unlawful means, 3 violating a legal duty or causing or seeking to cause someone else to violate a legal duty. Or four, seeking an unlawful or improper benefit or advantage. Acting corruptly also means acting with consciousness of wrongdoing. And then you have a bunch of sites here. Mr. Trump and co conspirators used deceptive and dishonest means. He intended the use of independently criminal means to obstruct the congressional certification proceeding. He and co conspirators plainly sought to cause state and federal officials to violate a legal duty. And Mr. Trump acted with an intent to procure an unlawful benefit either for oneself or for some other person. And that's from fisherman. Most basically, Mr. Trump sought unlawfully to secure a professional advantage, the presidency, to which he was not lawfully entitled.
- [42:06]
A
Yeah, that's a thing. The presidency is a thing.
- [42:10]
B
Yeah, that is a benefit.
- [42:12]
A
Yep, yep.
- [42:12]
B
It conveys the benefit of immunity, apparently.
- [42:15]
A
And that a lot of January 6th boots on the ground guys were like, I didn't get anything out of it, so I couldn't have acted. That was like their thing. It was like, well, there's no way Trump can argue that. Of course, they lost that argument too, but. All right, we'll come back and we'll talk about 18 U.S. code 241. But we're going to take one more quick break. Everybody stick around. We'll be right back. Hey, everybody, welcome back. We are now on page 49, subsection C, conspiracy against rights, 18 U.S. code 241. This is one of the more fascinating charges. I think it says section 241 makes it unlawful for two or more persons to conspire to injure, oppress, threaten or intimidate any person in any state, territory, commonwealth, possession or district in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or the laws of the United States. A violation of Section 241 requires proof of three elements. One, Mr. Trump entered into a conspiracy. Two, to willfully injure, oppress, threaten or intimidate a person in the United States. Three, in the exercise or enjoyment of a right secured by the Constitution or federal law. Basically repeating the law, just putting Mr. Trump's name in the beginning of it.
- [43:34]
B
Right. Very helpful.
- [43:35]
A
Yep. Mr. Trump's conduct meets each element. Again, I love this straightforward no BS here. The right to vote for president based on the determination by state legislatures to appoint electors based on their constituents votes is fundamental. And that's Bush v. Gore, Burdick v. Takushi, and United States v. Robinson. There's a lot of case citation here. It is a right rooted in the principles of accountability to and consent by the governed, which has distinguished this nation from its founding. As the Supreme Court has recognized, quote, the right to vote freely for the candidate of one's choice is of the essence of a democratic society. And any restrictions on that right strike at the heart of representative government. And that's Reynolds v. Sims. Another Wesbury v. Sanders says no right is more precious in a free country than that of having a voice in the election of those who make the laws under which as good citizens we must live. Other rights, even the most basic or illusory if the right to vote is undermined. And I think that's why we hear so often the, the, the, the like, voting is the right that unlocks all other rights.
- [44:50]
B
Yeah, absolutely. Absolutely. Mr. Trump acknowledged that voting in a presidential election is a fundamental right under the Constitution. Indeed, given that all states have made the popular vote an integral means of appointing electors, the right to vote in a presidential election is among the most precious federal rights protected by the Constitution. And then we have cites to United States v. Classic. When a state makes a primary election an integral part of the procedure for the popular choice of congressman, it becomes a right established and guaranteed by the Constitution. Also, Trump v. Anderson, noting the uniquely important national interest in a presidential election because the President represents all the voters in the nation. They go on to say this history of the Section 241 offense with which Mr. Trump was charged, along with the Court's universal and long standing recognition of the voting rights protected by that statute confirm that protecting the right to vote is critical to the existence of the right. Section 241's predecessor statute was passed as a part of the Enforcement act of 1870, a reconstruction era law to address the, quote, continued denial of rights to black citizens, quote, sometimes accompanied by violent assaults. That act sought to combat widespread anti Reconstruction violence, which included acts of terror aimed at disenfranchising black voters. The same year as the Act's passage, Congress established the US Department of Justice. And the Department zealously pursued its mission to enforce voting rights in the Reconstruction era through the application and interpretation of Section 241 and its predecessor statute. Courts have repeatedly underscored the importance of the right to vote. Courts have held that the right encompasses the ability to cast a vote. Ex parte Yarborough, they said protecting a right of an emancipated person to vote and to have that vote counted. In U.S. v. Moseley, they said, we regard it as equally unquestionable that the right to have one's vote counted is as open to protection by Congress as the right to put a ballot in a box. They have further confirmed that one's right to vote cannot lawfully be denied, destroyed or diluted. See classic holding that Section 241's predecessor statute applied to conspiracies to prevent the official counting of ballots in a primary election. And then there's several other sites here to other kind of fundamental voting rights cases.
- [47:34]
A
Yep. And it goes on to say, and by the way, we're now on page 52, Mr. Trump and co conspirators sought to deprive, that is injure or oppress citizens of their constitutional right to have their presidential election votes counted. The word injure or oppress in section 241 are not used in any technical sense, but cover a variety of conduct intended to prevent harm, inhibit, hinder, frustrate, obstruct, or interfere with the free exercise and enjoyment of a right. And there's a couple more case citations talking about the definition of those two words, injure and oppress. Although they were not in a back room altering vote tallies in the local election or stuffing falsified ballots into ballot boxes as alleged in prior cases charged under this statute, Mr. Trump and his co conspirators nonetheless sought the same result to effectively cast aside legitimate votes in a manner that would have deprived citizens of their right to vote and have their votes counted. As co conspirator 1, Rudy admitted their primary objective was to, quote, just flat out change the vote, deduct that number of votes from the, you know, declare those votes 300,000 votes in Philadelphia, illegal and unlawful, and reduce the number by 300,000, unquote.
- [48:50]
B
Pretty straightforward.
- [48:52]
A
Mr. Trump attempted to carry out this objective in multiple ways. He urged state officials to disregard the legitimate majority of votes for Mr. Biden and pressured and threatened Georgia Secretary of State to find more than 11,000 votes to dilute Mr. Biden's vote count in the state. And he urged Mr. Pence to discard the legitimate electoral certificates that reflected millions of citizens votes in the targeted states. The evidence collected shows that Mr. Trump targeted this voting right with precision. He centered his false claims of election fraud on select states or cities and in counties within those states with large numbers of voters who had not chosen to reelect him.
- [49:38]
B
And now we go to subsection D, which is titled Defenses.
- [49:42]
A
Hmm.
- [49:43]
B
Before presenting the original indictment to the grand jury, the office considered Mr. Trump's potential defenses to these charges, including a good faith defense, an advice of counsel, defense and constitutional defenses. The office concluded that each of these defenses was legally or factually flawed and thus would not prevail. First, it was expected that Mr. Trump would argue that he had acted in good faith when he sought to stop the transfer of presidential power because he genuinely believed that outcome determinative fraud had undermined the election's integrity and caused him to lose. As set forth above in section 2A, the office developed strong proof that Mr. Trump knew that his election fraud claims were false. For example, Mr. Trump made persistent claims of a large number of dead voters in Georgia, including in his speech at the Ellipse on January 6th. Even though his senior campaign advisor and Georgia's Secretary of State had told him that the claims were untrue, he spread lies, including in his speech at the Ellipse of sinister fraudulent vote dumps in Michigan. Even after Michigan's state I'm sorry, Senate Majority Leader told him that nothing suspicious had occurred and Mr. Trump repeatedly made provably false allegations about fraud in Pennsylvania, despite having been told by the chairman of the state Republican Party that the vote count was occurring as expected. Even if Mr. Trump maintained that he sincerely believed that he had won the election, a conclusion unsupported by the evidence collected in the investigation, it would not provide a defense to section 371 charge a defendant may not use deceit to obstruct a government function even if he believes the function itself to be unconstitutional. Because, quote, a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. And that is from Dennis, quote, one who elects such a course as a means of self help may not escape the consequences by urging that his conduct be excused because of the statute which he sought to evade is unconstitutional. There are appropriate and inappropriate ways to challenge perceived illegalities, just as the president of a company may be guilty of fraud for using knowingly false statements of fact to defraud investors. Even if he subjectively believes that his company will eventually succeed, Mr. Trump could be convicted of using the seat to obstruct the government function by which the results of the presidential election are collected, counted and certified. Even if he established that he subjectively believed that he had reason to do so because of his claims that the election was rigged.
- [52:43]
A
Interesting. It goes on to say it bears emphasis that Mr. Trump's knowing deceit was pervasive throughout the charged conspiracies. This was not a case in which Mr. Trump merely misstated a fact or two in a handful of isolated incidences on a repeated basis, he and his co conspirators used specific and knowingly false claims of election fraud in his calls and meetings with state officials in an effort to induce them to overturn the results of their elections in the states to his own vice president to induce Mr. Pence to violate his duty during the congressional certification proceeding and on January 6, as a call to action to the angry crowd he had gathered at the Ellipse and sent to the Capitol to disrupt the certification proceeding. Mr. Trump and co conspirators used other forms of deceit as well, including when they falsely represented that the fraudulent electoral votes would be used only if Mr. Trump prevailed in pending contests in their states and when they caused the fraudulent electors to falsely swear that they were duly certified and send those false certifications to Congress. Regardless of any claim that Mr. Trump subjectively believed the outcome of the election was unfair or rigged, the office concluded that these knowingly deceitful statements and acts would overcome any good faith defense. The office also expected that Mr. Trump might claim that his consultation with attorneys, several of whom were co conspirators, should negate the finding that he acted with a criminal state of mind. In pretrial litigation, the court granted the government's motion that Mr. Trump should be required to declare whether he intended to employ such a defense and if he did, to produce the discovery required by that attendant waiver of Mr. Trump's attorney client privilege. A defendant's claim that he relied in good faith on his attorney's advice is, quote, not an affirmative defense that defeats liability even if the jury accepts the government's allegations as true, but functions instead as, quote, evidence that if believed, can raise a reasonable doubt in the minds of the jurors about whether the government has proved the required element of the offense, that the defendant had an unlawful intent. Under D.C. circuit law, an advice of counsel defense consists of two elements. Number one, the defendant relied in good faith on the Council's advice that his course of conduct was legal, and two, made full disclosure of all material facts to his attorney before receiving the advice at issue. And there's where you have the problem, right?
- [55:20]
B
Yeah. Right. When your, your attorney is saying in the meetings with other people that this is illegal, what we're doing will not pass constitutional muster.
- [55:30]
A
And this is a really fascinating part of this too, because we kind of figured the I really truly believed it was rigged defense. Yeah, was built there. But the advice of counsel, one you and I talked about when it came up in those pre trial motions and Judge Chutan was like yeah, no, you're going to have to tell us ahead of time because if you remember, if you claim advice of counsel as a defense, then that waives all of your attorney client privilege with that particular co conspirator. I mean, lawyer. And so you then have to hand over all of your communications. And so Trump tried to do this thing where he was like, it's not a full advice of counsel defense. It's kind of a new one that I've made up where I get to use it, but I don't have to give you any of the communications. Do you remember that?
- [56:13]
B
Not. And not in Judge Judgment's courtroom. It's not.
- [56:16]
A
She was like, excuse me?
- [56:19]
B
And the government's like, hey, if you're going to do that, you got to tell us because we got some work to do. It's a lot of things we'll have to look into.
- [56:24]
A
It's a lot more discovery. We got it. Yeah, okay.
- [56:28]
B
They go on to say the office concluded that if Mr. Trump chose to raise such a defense, it would fail because an advice of counsel defense is not available. Available, quote, where counsel acts as an accomplice to the crime.
- [56:40]
A
Oops.
- [56:41]
B
That certainly makes sense. The evidence showed that the central attorneys on whom Mr. Trump may have relied for such a defense, such as co Conspirator one, Rudy, co conspirator to John Eastman, were, quote, partners in a venture with the result that any advice of counsel defense necessarily would fail. Then there are several sites here. They go on to say coconspirator one assisted Mr. Trump in using knowingly false claims of election fraud in furtherance of charged conspiracies. At press conferences, at hearings before legislatures in the targeted states, and directly with officials in the targeted states, Coconspirator 1 made a wide range of specific, though ever changing false claims of election fraud. Co conspirator 1 continued to do so after his lies were publicly or directly debunked. Coconspirator One's involvement spanned from his insistence that Mr. Trump declare victory on election night to the voicemails that Co Conspirator 1 left for senators on the night of January 6, using false claims of election fraud to ask that the legislators further delay the certification. Co Conspirator 2, John Eastman was instrumental in Mr. Trump's efforts to organize his electors to cast fraudulent votes and send them to the vice president, and then to pressure the vice president to use the fraudulent electoral certificates to overturn the election results. Throughout his involvement in Mr. Trump's conspiracies, co conspirator 2 conceded privately to other attorneys, both private attorneys and those responsible for advising Mr. Trump and the Vice president that his plans violated federal law and would not withstand scrutiny in court. I'm sorry, I can't read that without laughing. It's so absurd.
- [58:32]
A
Well, that was the best, right? Where he's like, well, you know. Yeah, it's probably 7 0. Yeah, yeah. We go on to say here on page 58. Furthermore, Mr. Trump could not have succeeded in showing that he relied in good faith on legal advice from these attorneys. The evidence showed that Mr. Trump was not looking to co conspirator one or co conspirator two for legal advice. Instead, Mr. Trump was the head of a conspiracy who sought legal cover from his co conspirators. As co Conspirator one acted repeatedly in furtherance of the conspiracies, multiple advisers to Mr. Trump warned him that Rudy would not successfully challenge the election results and was not acting in Mr. Trump's best interest. Mr. Trump ignored them all because he was not relying on Co Conspirator 1 as an attorney. Similarly, Co Conspirator 2 Eastman's willingness to advocate for actions that he knew and even privately conceded were unlawful demonstrates that Both he and Mr. Trump understood his role was not that of an attorney offering legal advice on which Mr. Trump was acting. For instance, in a lawsuit in Georgia, Co Conspirator to filed a case. A false c. A false certification by Mr. Trump having written to other attorneys in his email that Both he and Mr. Trump knew that some of the allegations incorporated in the filing were inaccurate. And Co Conspirator 2's decision to advocate to the Vice President's Council and Chief of staff on January 5 that the Vice President should unlawfully reject the legitimate electoral certificates, an act that Coconspirator 2 had previously recognized was not supported by the Constitution or federal law, was a sharp reversal from his position just one day earlier, and happened only because Mr. Trump had made clear that it was his preferred strategy, which was to just reject all the right electors, not replace them with the fraudulent ones. And I think that that's really fascinating because I remember when he filed that Georgia lawsuit, and in an email, remember, we spent forever trying to pry John Eastman emails away from Chapman. Very public attempt to do so by the January 6 committee. But Merrick Garland had well before that, and that email, he's like, yeah, yeah, yeah, those numbers aren't accurate.
- [60:55]
B
But then he, shall I say true, yeah.
- [60:58]
A
But then he filed that certification anyway, signed by Mr. Trump. The office was otherwise confident that it would be able to demonstrate that with respect to all attorneys, Mr. Trump could not meet the elements of that defense, such as the requirement that he make full disclosure to any attorney of all relevant facts and then rely faithfully on their advice.
- [61:18]
B
Finally, the Office anticipated that Mr. Trump would claim that his conduct was protected by the First Amendment, as the district court recognized. Quote, the First Amendment embodies our profound national commitment to the free exchange of ideas and it bars the government from restricting expression because of its message, its ideas, its subject matter or its content. And then there are some sites here. At the same time, it is well established that the First Amendment does not protect speech that is used as an instrument of a crime. Quote, many long established criminal laws permissibly criminalize speech that is intended to induce or commence illegal activities such as fraud, bribery, perjury, extortion, threats, incitement, solicitation and blackmail. Prosecutions for conspiring directly and aiding and abetting do not run afoul of the Constitution when those offenses are carried out through speech. And that's a cite to Williams consistent with that precedent. The original and superseding indictments recognized that Mr. Trump, quote, had a right to, like every American, to speak publicly about the 2020 presidential election and even to claim falsely that there had been outcome determinative fraud during the election and that he had won. They charged Mr. Trump, however, with using knowingly false statements to defeat a government function, injure the right to vote and obstruct an official proceeding. That is, he made, quote, dozens of specific claims that there had been substantial fraud in certain states, such as that large numbers of dead and non resident, non citizen or otherwise ineligible voters had cast ballots or that voting machines had changed votes for the defendant to votes for Biden. Those were factual claims that were verifiably false and Mr. Trump knew that they were false. Mr. Trump then used those lies as the instruments of his four criminal offenses because he used those knowingly false statements regarding specific facts to commit the crimes charged in the superseding indictment. They were not protected by the First Amendment. And then they cite to. I think it's Stevens that said including fraud in the list of well defined and narrowly limited classes of speech, the prevention and punishment of which we have never been thought to raise any constitutional problems. Several other sites here.
- [63:55]
A
Yeah, and it's interesting because I think you and I used the, the example like I can go outside and go on TV and point to my Mazda and say everyone look at my Bentley and that's totally legal. But if I Try to sell my Mazda as a Bentley to someone, then I am committing fraud.
- [64:15]
B
Yeah, exactly.
- [64:16]
A
That's a crime. So that's, that's not no longer free speech.
- [64:20]
B
Right. You can, you know, I can say, I don't like you, you're a bad person. But if I take that statement five steps further and allege that you're a pedophile, like, that's defamation.
- [64:33]
A
Yeah, exactly.
- [64:34]
B
Right. So, like, it's not. There's all kinds of speech that's limited. And those limitations don't run afoul of the First Amendment.
- [64:41]
A
Yeah. So the final paragraph here that we'll go over today, it says in pretrial motions, Mr. Trump moved to dismiss the original indictment based on the First Amendment. The office filed an opposition brief and the district court denied Trump's motion finding that the indictment, quote, properly alleges defendants statements were made in furtherance of a criminal scheme. As the court explained, Mr. Trump was not being prosecuted for his view on a political dispute. He was being prosecuted for acts constituting criminal conspiracy and obstruction of the electoral process. And the fact that his alleged criminal conduct involved speech does not render the indictment unconstitutional because he was, quote, not being prosecuted simply for making false statements, but rather for knowingly making false statements in furtherance of a criminal conspiracy and obstructing the electoral process. There was no danger of a slippery slope in which inadvertent false statements alone are alleged to be the basis of a criminal prosecution. So that is that subsection. The next one, which starts on page 61 is other charges. And I can't wait to get into this, but we're going to do it on the next episode, part three of the audio version of Jack Smith's final report, volume one, on the January 6th prosecution of Donald Trump. So thank you for listening. We're glad you're here. Andy, any thoughts so far on what we went over today? We touched on what we thought was new. We touched on the idea that he was prepared for 371 to be gutted or narrowed. I should say, when we talked about these three main defenses and how Jack Smith was prepared to rebut those. Just a really fascinating report all around. But again, the punches of this was a crime. He committed a crime. He met all of the elements of this crime Very, very different from what we got out of the Mueller report.
- [66:33]
B
Right. Super clear, super direct writing. And also it gives us a look inside the black box that has been Jack Smith from the beginning of this. You really get view, as you were saying, into like, what they were thinking how they, how they analyzed the law, how they applied the facts to it, and, and then how carefully they were trying to anticipate what Trump's moves would be, what his responses would be, what his defenses would be. So it's, it's, it's an important document and a worthy read.
- [67:03]
A
It is really good work product post election. But, yeah, here we are. And, you know, a little just to say something on that before we get out of here, a lot of folks, I know, it's frustrating. We feel defeated. We feel like there was no accountability. There wasn't any accountability here. There won't be any accountability here. And so a lot of folks are like, this report, who cares? Doesn't matter. It does. The truth matters. And this work product matters. And so I appreciate you listening so that you can hear what Jack Smith had to say about this investigation, specifically, so appreciate you taking the time. And we'll see you on the next episode. Again, where we'll start on, let's see, what page are we on here? 60, 61 with other charges, everybody. Thanks. We'll see you next time. I'm Allison Gill.
- [67:57]
B
And I'm Andy McCabe.