Jack Smith just submitted a new dossier to the court, laying out the evidence that he and his prosecutors have of Trump’s criminality.
We should remind people that the trial won’t take place until after the election, but you reported in your piece today that this dossier is expected to contain a lot of new information. Before we get to those details about what might be in there, what’s the basic purpose of this move right now by Jack Smith?
Cheney: You’re going to hear a lot of complaining that this is Jack Smith trying to influence the election. This was really made necessary, in a sense, by the Supreme Court putting this case on hold for eight months. The ruling that they issued on presidential immunity, which forced Jack Smith to go back to the drawing board for how he was going to craft and frame his case against Trump, created this process.
What happened is the Supreme Court said, The judge in your trial, Tanya Chutkan, has to decide whether any of the conduct, any evidence Jack Smith wants to use against you is protected by presidential immunity. Smith said, Let me file all my evidence and show it to you, Judge Chutkan, and you can decide whether it’s subject to presidential immunity or not. And Trump’s attorney said, Well, hold on, if you’re going to start dumping your evidence on the public docket, that’s a month before the election, this is election interference. The judge said, From the beginning, I’ve said I’m not thinking about the election calendar. She also hasn’t said she’s going to make it public, which is the biggest question at the moment. But she has said she will receive Jack Smith’s brief and review it and decide eventually what, if any of it, will become public.
Sargent: Let me ask you, though. It’s reasonable to assume that at least some of it will become public, right? Judge Chutkan is someone who seems willing to push the envelope and doesn’t really get pushed around too easily. I’ve got to think there’s a strong public interest here in Americans learning at least some of this stuff, right?
Cheney: Yes. Judge Chutkan, maybe above any other judge involved in this process, has cited the public interest in these proceedings to justify scheduling the trial for what she initially did back in March and keeping things moving along. Even her ruling on presidential immunity, which was overturned by the Supreme Court, cited the immense public interest in accountability for these alleged crimes. Some of the information Jack Smith submitted presumably would not be covered by some of the confidentiality rules governing the case, the grand jury secrecy rules, and could be made public. But he has signaled himself that a lot of it would be in those sensitive categories that Chutkan may have a decision to make about.
Sargent: I think a lot of people believe that we know everything there is to know about Trump and January 6. But that’s really not true. To remind people, some of his advisors, the less heroic ones, like Chief of Staff Mark Meadows and social media guru Dan Scavino, defied January 6 Committee subpoenas. As a result, we have an incomplete picture of his conduct on that day.
This could be extremely damning, couldn’t it? Because while we know that he sat around and watched the violence on television and seemed to enjoy it, and refused desperate and frantic entreaties including from Republicans to call off the rioters, he very well might have said things that we don’t know about. Jack Smith probably has some of the stuff, right? What do you anticipate?
Cheney: That’s my view of this. There were moments in the January 6 committee interviews with important people like White House lawyer Pat Cipollone, or, like you said, people they never got to like Dan Scavino who, I don’t know what they actually said to Jack Smith, but they cited privileges or refused to come in at all. Jack Smith, we know, overcame those privileges in secretive court battles with some of these same witnesses and he won those. So they had to testify about their conversations with Donald Trump, their interactions with him that would otherwise have been shielded.
Pat Cipollone’s interview with the January 6 committee was very explosive, but he stopped at certain points that I can’t get into because that’s privilege, and they agreed with him to not push that envelope as a condition of his willingness to come in. Jack Smith certainly got past the committee and into areas that are probably the most sensitive and potentially explosive.
Sargent: I will say that I have interviewed Tom Joscelyn, who was one of the January 6 committee’s top investigators. He dug extraordinarily deeply into it. He wrote a lot of the January 6 committee report, apparently, and he has said, straight up, there were things we could not learn that we wanted to know.
Cheney: Just to throw a couple examples out: when Donald Trump tweeted at Mike Pence during the riot. Pence is in the process of being evacuated from the mob and came within about 100 feet of the rioters, Trump is tweeting an attack on him. It’s very famous now, obviously. He said, Pence didn’t have the courage to do what I wanted him to do and overturn the election. The details behind that tweet: who was with him when he crafted it? Did he craft it by himself? Was he the one who hit the send button? And were people around him telling him not to do that?
Those details may come out in this kind of filing. Not to mention, Jack Smith got a search warrant to get all of Trump’s Twitter data about where he was when he sent things during the riot. Those details could be in a filing like this too.
Sargent: I think you could see something where, in a discussion about this tweet about Pence, which again pointed the mob at Pence… People don’t remember this but that tweet was sent after the mob started rampaging at two something in the afternoon, I forget the exact time. He knew that this would be read by lots of people in the mob, and it actually was. There’s a famous bit of footage of a MAGA-type with a bullhorn reading from Trump’s tweet. The January 6 committee report documented that there was a real rushing action that took place after this.
What we could find out very potentially is that he said something like, You know what? Pence has this coming to him. Maybe this will talk some sense into him. Maybe if the mob rushes him, he’ll do the right thing and subvert the election. Something like that, not exactly those words.
Cheney: Cassidy Hutchinson, when she testified, she recalled, learned either I forget if it was from Meadows or Cipollone, when they left a meeting with Trump saying he agreed with the mob that was chanting “Hang Mike Pence.” There was some discussion of that being chanted, and Trump somehow agreed with the sentiment. We don’t know that firsthand. That was from Cassidy Hutchinson who said she heard it from someone else who heard it from Trump. You may cut out her as the middle person there and get maybe Mark Meadows talked about that interaction and can shed some light on that.
That could be really explosive if Trump expressed some solidarity with the mob while it was going on to someone who directly spoke to Jack Smith. That’s a much greater degree of urgency than hearing it thirdhand.
Sargent: We should probably remind people here that ABC News’s John Karl has reported that Trump’s top advisors did provide Smith with a “extraordinarily detailed description” of what Trump was doing while the rioters rampaged. So you’re onto something there.
Cheney: Yeah. That’s why I think there’s a lot of people who are tempted to say, Well, what are we really going to learn? We know so much. We have the January 6 committee, we have hundreds of interviews, we have the indictments themselves and the filings that shed a lot of light. I really think when you get into it… We haven’t even talked about Mike Pence and what he may have said. He says, Look, I put everything in my book. Maybe that’s true, but what the prosecutors asked him might be different than the stuff he was eagerly volunteering for his book. I’d be very eager to see how he corroborated what was in his book or what he went beyond in his private discussions with Trump, which he very rarely talked even to his top aides about.
Sargent: Do you think there’s the possibility of direct threats by Trump?
Cheney: Maybe, or maybe just examples of Pence telling him, I think this is illegal. I think what you’re doing is against the law. We know Pence believed that and he still says it to this day. But how directly did he tell Donald Trump that I think what you’re doing would be criminal? I don’t know, and I assume Pence spoke to that in his interview.
Sargent: By the way, there’s other things that could be established here that, or I should say, Jack Smith has almost certainly established about the run-up to this. One of the things that still isn’t as nailed down as I would like is the degree to which Trump understood the mob as an explicit weapon to force Congress to stop counting the electors. This is something that is still shrouded in vagueness and he’s done a very good job of, with the help of virtually the entire Republican establishment, spreading a lot of propaganda and fog around this. He essentially saw the mob as a weapon to subvert our Constitution is what happened. The degree to which that could actually be confirmed by Jack Smith, I imagine he’s got more showing that in the run-up to this day, he saw it that way.
Cheney: Right. I would be curious, too, how that evolved even throughout the day on January 6, because there’s a point where they realize—at least some of the people around Trump realize—the longer the mob keeps them out of session, the better we could, the more chance we have to persuade members of the Senate or get a state legislature to take an action on an emergency basis that we couldn’t get them to do for all of December. You have Rudy Giuliani still calling around at 7 p.m. that night while they’re still clearing the Capitol to members of the Senate. There was still this active frenetic activity from these close Trump advisors. How closely Trump was coordinating that with them is actually still a bit of a mystery.
Sargent: By the way, just at a more abstract level, a bunch of new headlines right about now about what Jack Smith has been able to establish in terms of Trump’s criminality would remind people what Trump actually did and actually fill in the blanks for them. This idea that everybody knows everything there is to know, I don’t even think that’s true, right? People have a vague sense that maybe Trump was just acting like a sore loser. This mob got out of control. He didn’t really intend for that to happen, but maybe he enjoyed it on TV. That’s not at all the same as what actually happened, which is him weaponizing the mob to subvert our election outcome and to subvert the Constitution.
Cheney: That’s the case Jack Smith has laid out in his filings, that he’s proffered without necessarily showing his whole hand. Usually prosecutors don’t want to show their whole hand, but the Supreme Court forced this dynamic. The fact that it’s happening a month before the election, I understand why Trump’s side is sounding the alarm about that. If Jack Smith had his way, this all would have come out nine months ago or eight months ago or so when they were ready to go to trial, and we wouldn’t be talking about on the eve of the election. But I think you’re right. Even stuff that is marginally new had carried greater significance in this intense scrutinized period before the election. Understandably, Trump is agitated by that.
Sargent: I think he really is. By the way, you got a real perversity here, which is that Trump’s lawyers are now arguing that the public shouldn’t learn anything new that Jack Smith has amassed because this would be election interference. They’re the ones who delayed it to this point because his strategy is to delay until after the election so that if he wins he can simply cancel the ongoing prosecution of himself. If that happens, he’ll never face any accountability for what he did. It’s really perverse and just deeply insulting for his lawyers to be arguing that voters should be kept in the dark about what happened because it’s somehow unfair to Trump for them to be informed before they choose whether to elect him president again.
https://newrepublic.com/article/186437/ ... eeper-fear
