As rioters stormed Capitol with Pence inside, Trump said ‘So what?’ filing alleges
In a filing that argues Trump is not immune from prosecution, Jack Smith offered new details of the former president’s alleged efforts to overturn the election.
The much-anticipated 165-page filing from special counsel Jack Smith offers a searing portrayal of Trump just a month before the 2024 election. It describes in more extensive detail than before how many people — including Vice President Mike Pence, party and state leaders, his own campaign officials, his own campaign lawyers, and others — told Trump there was no proof the election was stolen, and how Trump nonetheless waged a campaign to overturn the result.
Prosecutors reconstructed behind-the-scenes interactions, including one in which an aide rushed to the dining room to share with Trump, who had been watching the events on TV and tweeting, that action was being taken to ensure the safety of Pence, who was in the Capitol building.
“The defendant looked at him and said only, ‘So what?’” the filing alleges.
Much of the evidence against Trump in the case had already become public, either through previous filings, news reports or an extensive congressional investigation into the events of Jan. 6. The 36-page indictment in the case alleges he conspired to overturn the legitimate results of the 2020 election by using knowingly false claims about election fraud to obstruct the government’s processes for collecting, counting and certifying the vote.
It was unclear what — if any — electoral impact the filing might have. In a post on Truth Social shortly after it was filed, Trump wrote, “ELECTION INTERFERENCE!”
The filing was intended to show that Trump can still face trial for attempting to overturn Joe Biden’s electoral victory after the Supreme Court ruled Trump was immune from prosecution for official acts. Prosecutors argued that his actions were not taken in his capacity as president, but rather to benefit his campaign. The filing’s unsealing was ordered by a federal judge after legal fighting in recent days over what within it should become public.
In a written statement that Trump reposted to Truth Social, his campaign spokesman Steven Cheung said, “The release of the falsehood-ridden, Unconstitutional J6 brief immediately following Tim Walz’s disastrous debate performance is another obvious attempt by the Harris-Biden regime to undermine American Democracy and interfere in this election.”
Cheung continued, “Deranged Jack Smith and Washington DC Radical Democrats are hellbent on weaponizing the Justice Department in an attempt to cling to power. … This entire case is a partisan, Unconstitutional Witch Hunt that should be dismissed entirely, together with ALL of the remaining Democrat hoaxes.”
In making the case that Trump’s acts were not done in his capacity as president, and therefore he was not immune, prosecutors argued that the speech Trump delivered at the Ellipse on Jan. 6 was a campaign rally. They noted that it was funded and organized by private individuals, and that Trump promoted it as a rally on his campaign account. Prosecutors also said Trump entered and exited the event to songs such as “Y.M.C.A.” by the Village People instead of the music typically played at a presidential speech, such as “Hail to the Chief.”
Prosecutors said the conversations between Trump and Pence were “in their private capacities as running mates,” and they noted the president has “no official role in the process by which states appointed and ascertained their presidential electors.” The filing is Smith’s most detailed explanation of how the conversations between Trump and his vice president are unofficial acts that can be prosecuted; legal experts have said the riskiest part of the superseding indictment was to include those conversations — because a president’s duties include talking to his vice president.
The filing offers the most exhaustive account yet of Pence’s interactions with Trump, alleging that the vice president repeatedly tried to encourage Trump to back off his claims of a stolen election. It alleges that one of Trump’s lawyers repeatedly told Trump they could not substantiate any of his claims, nor could outside consultants they hired.
The lawyer told Trump that the claims were “bulls---” and that he would lose in court, the document alleges.
The document alleges that Trump and some of those around him were unwilling to listen to anyone who contradicted their view that the election was stolen, sometimes lashing out at those who disagreed. It notes Trump’s public campaign to pressure governors and state officials, pointing to his posts on Twitter, now X.
But it also highlights internal efforts to stifle dissent. According to the document, when Trump attorney Rudy Giuliani found out that Justin Riemer, then chief counsel of the Republican National Committee, had sent an email urging colleagues not to back claims of a stolen election, he left Riemer a threatening voicemail.
“I really do need an explanation for what you said today because if there isn’t a good one, you should resign. Got it? So call me or I’ll call the boss and get you to resign. Call me. It’d be better for you if you do,” Giuliani said, according to the document.
Riemer was then put on a leave of absence, but later returned after the election, the document alleges. He declined to comment for this article. Giuliani could not immediately be reached.
The document does not explicitly allege that Trump knew he lost the election. But it offers a striking moment indicating he was ambivalent toward the truth, alleging that a White House staffer overheard him telling family members, “It doesn’t matter if you won or lost the election. You still have to fight like hell.”
The document lays out in striking detail Trump’s interactions with officials in key states, including Georgia, Michigan and Arizona, and how he attempted to strong-arm them into overturning the election. At one point, according to the document, Trump asked then-RNC Chairwoman Ronna McDaniel to promote a report about fraud in the state, and she declined, saying that top state officials described the report as “f---ing nuts.” McDaniel declined to comment.
The document alleges that Trump also pressed then-Arizona Gov. Doug Ducey (R) over the election results in a phone call, but never provided the evidence he promised to send about fraud in the state. The Washington Post reported last year that Ducey was pressured by Trump to help overturn the election results, an effort that the former governor has publicly sought to downplay. During a call in mid-December 2020, after Ducey certified the state’s election result, he spoke to Trump and Pence, the document says. Trump “brought up fraud claims,” and the governor — “eager to see the evidence — again asked the defendant to provide it, but the defendant never did.”
And when Trump met at the White House with Michigan’s top legislators, the leader of the state Senate told Trump he’d lost two typically Republican counties not because of fraud but because he underperformed with educated female voters, according to the filing. If he had performed as well as those running for sheriff, he probably would have won, said the leader, Mike Shirkey.
Prosecutors painted a stark portrait of how Trump refused to issue a public statement to calm supporters as they breached the Capitol, until all his aides eventually left him alone in the White House dining room, where a television was tuned to Fox News. Prosecutors alleged the FBI can prove Trump was using Twitter throughout the afternoon as the Capitol was under attack.
“It was at that point — alone, watching news in real time, and with knowledge that rioters had breached the Capitol building — that the defendant issued the 2:24 p.m. Tweet attacking Pence for refusing the defendant’s entreaties to join the conspiracy and help overturn the results of the election,” prosecutors wrote. “One minute later, the Secret Service was forced to evacuate Pence to a secure location in the Capitol.”
Prosecutors wrote that they based the Oval Office dining room account on an FBI analysis of the activity on Trump’s iPhone and eyewitness accounts of three aides who are expected to testify about Trump’s “unofficial acts.” They referenced documents to support other aspects of their case, quoting an email from longtime campaign spokesman Jason Miller, who the prosecutors say spoke with Trump daily, to show how widely the claims were doubted in his orbit.
“When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0-32 on our cases. I’ll obviously hustle to help on all fronts, but it’s tough to own any of this when it’s all just conspiracy s--- beamed down from the mothership,” Miller wrote. He did not immediately respond to a request for comment.
In a vivid scene from the main vote-counting facility in Detroit on Nov. 4, the memo describes one Trump campaign operative, whose description matches Election Day operations chief Mike Roman, trying to sow confusion and unrest even as he was being told that Biden’s lead was accurate.
When another operative told Roman that a new batch of freshly counted votes that heavily favored Biden were accurate, Roman responded, “find a reason it isnt.” He went on to say, “give me options to file litigation,” even if the count was accurate, prosecutors wrote.
“When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot, a violent effort to stop the vote count in Florida after the 2000 presidential election, [Roman] responded, ‘Make them riot’ and ‘Do it!!!’” the filing alleges.
Roman’s Twitter post from the facility that night tracks with Smith’s description: “TRUMP Challengers being ejected from ballot canvassing in Detroit! The Steal is on!!” he wrote, starting his post with two siren emojis.
Roman did not immediately respond to a text message seeking comment.
Trump’s lawyers had opposed the government even making such a filing, asserting that it amounted to an inappropriate special counsel report on the eve of the election. They are continuing to challenge the indictment against him, and no trial date has been set yet as the case is likely to make its way back to the Supreme Court. If Trump wins the election, he is widely expected to order the Justice Department to end the case.
Holly Bailey, Aaron Blake, Patrick Marley, Aaron Schaffer, Perry Stein and Yvonne Wingett Sanchez contributed to this report.
