Jack - Jack Smith’s Final Report Volume 1 | Part 3

Episode Date: January 17, 2025

Allison and Andy read the first volume of Jack Smith’s final report. Final Report on the Special Counsel's Investigations and Prosecutions Volume OneThe co-conspirators:1 - Rudy Giuliani 2 - John Eastman 3 - Sidney Powell4 - Jeffrey Clark5 - Kenneth Chesebro6 - Boris Epshteyn Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to knowRule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

Welcome to Jack, the podcast about all things special counsel. We are on part three of our series of the audio version of Jack Smith's final report, volume one. That's the January 6th case against Donald Trump. And I'm joined I'm I'm Alison Gill, you know me, I'm joined by hi, Andy, Andy McCabe. Hello, Allison, here we are for another creative reading of the report. Yes, late night creative reading. We should do like we should I wish we could get like John Lithgow in here and yeah, maybe like a dramatic reading like fake Cockney accents or something. I don't know.

Do it like Brack from Cartoon Planet. No, so we're going to start today. We left off in the middle of page 61. So we're going to start on page 61. And we're going to start with the section E subsection E, other charges, which really should just be other charge because it only talks about one. And it is, this is basically the section and we're starting to get into the good stuff here. I mean, this is all, you know, juicy, but we're starting to get into some of the other parts of this report as opposed to just laying out Trump's, you know, multiple crimes and conspiracies. we are now going to start talking about why certain charges weren't brought or specifically why this charge we're about to talk about

wasn't brought. And Andy, you and I, there was a lot of speculation over the last couple years about this charge and whether or not it would be brought up. I included it on my crimes and crimes and crimes shirt because I thought that they would charge a 2383, but there's a lot of good reasons in here why they didn't bring that into the litigation. And so that's where we're going to begin. And then we actually start talking a little bit more about the law and some other things. And you know, what's really interesting, Andy, is this report, at least this volume, at least a quarter of it, at least 25% of this report is dedicated to Jack Smith talking about all of the delays caused by Trump and his allies, Rikelsa Trump, witnesses, privilege battles, protracted privilege

battles that took place in the court. And of course, the Supreme Court's super ultimate delay. That's right. The Super Bowl of all delays. Yeah. And so, and you know, plus all the kinds of things that happened, he talks about, he'll, you know, coming up soon here, he addresses how much of the January 6 committee he relied on, which is pretty much nothing, which is kind of goes against what a lot of media

was saying. I hear a lot, oh, they relied on the January 6 committee or they were ashamed into doing things by the January 6 committee. That's also rebutted coming up soon. Again, starting at the page 61, right in the middle, other charges. The office considered but ultimately opted against bringing other charges. One potential charge was Title 18 U.S. Code Section 2383, sometimes referred to as the Insurrection Act, which provides that, quote, whoever incites, sets on foot, assists, or

engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than 10 years or both, and shall be incapable of holding any office under the United States. Title 18 U.S. Code Section 2383 originated during the Civil War as part of the Second Confiscation Act of 1862. Cases interpreting Section 2383 are scarce and arose in contexts that provide little guidance regarding its potential application in this case. And that's a site from US v. Great House which says, construing the original version of the act to encompass treason, consisting of arming a vessel to commit hostilities against the United States vessels in the

context of the rebellion by the Confederate states. And also cites Cathcart rejecting legal argument that treason against the United States was legally impossible in the context of the rebellion by the Confederate states. And there are several other case citations here. So a lot of times that this charge was not brought because treason wasn't involved or arming vessels against the United States isn't considered the part falling underneath this section. And if they are, then it's way out of the bounds of what happened here with Donald Trump, or at least according to the

special counsel. To establish a violation of Section 2383, the office would first have had to prove that the violence at the Capitol on January 6th constituted an insurrection against the authority of the United States or laws thereof and then prove that Mr. Trump incited or assisted the insurrection or gave aid or comfort thereto. Courts have found or described the attack on the Capitol as an insurrection. In Anderson v. Griswold, the Colorado Supreme Court found that Mr. Trump engaged in an insurrection as that term is used in section 3 of the 14th Amendment. Federal courts in the District of Columbia have also used the term insurrection to describe the attack

on the Capitol, but did so in cases where there was no criminal charge under section 2383. And they cite to Chwezik, which said, as this court and other courts in the United States District Court for the District of Columbia have stated previously what occurred on January 6, 2021 was in fact an insurrection and involved insurrectionists. Therefore, the terms to which the defendants object are accurate descriptors. They also cite to Carpenter, which held, what occurred on January 6th was in fact a riot and an insurrection, and it did in fact involve a mob. These cases, however, did not require the courts to resolve the issue of how to define insurrection

for purposes of Section 2383 or apply that definition to the conduct of a criminal defendant in the context of January 6. The office recognized why courts described the attack on the Capitol as an insurrection, but it was also aware of the litigation risk that would be presented by employing this long dormant statute. As to the first element under Section 2383, required to establish an insurrection or to distinguish an insurrection from a riot. Generally speaking, quote, an insurrection is a rising against civil or political authority,

the open and active opposition of a number of persons to the execution of law in a city or state. Some sources distinguish an insurrection from a route, riot, or offense connected with mob violence by the fact that in insurrection, there is an organized and armed uprising against authority or operations of government, while crimes growing out of mob violence,

however serious they may be, and however numerous the participants, are simply unlawful acts in disturbance of the peace Which do not threaten the stability of government or the existence of a political Society is a site here to blacks law dictionary noting that mr. Trump's argument that an insurrection is more than a riot but less than a rebellion and Agreeing that an insurrection falls along a spectrum of related conduct.

It goes on to say here that in case law interpreting insurrection in another context, one court has observed that an insurrection typically involves overthrowing a sitting government rather than maintaining power, which could pose another challenge to proving beyond a reasonable doubt that Mr. Trump's conduct on January 6 qualified as an insurrection, given that he was the sitting president at the time. And then they cite Starstone, in every case, over the course of over 60 years, to find the existence of an insurrection within the meaning of an insurance policy, the insurrection has occurred against not by the established effective and de facto government. And there's several other citations

here that indicate the same. And I think that that's really important, Andy, if we could take a sidebar here, because to prove that there was an insurrection. Now, you know, for the means of an impeachment or the Section 3 of the 14th Amendment argument that went on the Colorado courts to use the term insurrection is different than having to prove it in a legal sense, right? Beyond a reasonable doubt. And how would you prove it? Jack Smith says there's even though several courts have said this was an insurrection on January 6th, like when they're prosecuting some of the people who were the boots on the ground, saying it's an insurrection is much different

than proving it in a court of law. Yeah. And for me, the message that comes out here is that despite these very different cases they cite, there is no clear accepted kind of universal standard or test, as we like to say in the case law, that indicates exactly what proof would be required to support a conviction under 2383. And with that kind of instability in the law, lack of clear direction seems like the special counsel team decided it was not worth the effort. Yeah, or the risk. So it continues here.

The office did not find any case in which a criminal defendant was charged with insurrection for acting within the government to maintain power as opposed to overthrowing it or thwarting it from the outside. Applying Section 2383 in this way would have been a first, which further weighed against charging it given the other available charges, even if there were reasonable arguments that it might apply. As to the second element under Section 2383, there does not appear to ever have been a prosecution under the statute for inciting, assisting, or giving aid or comfort to rebellion or insurrection. The few relevant cases that exist appear to be based on a defendant directly engaging in rebellion or insurrection, but the office's proof did not include evidence

that Mr. Trump directly engaged in insurrection himself. Thus, however strong the proof that he incited or gave aid and comfort to those who attacked the Capitol, application of those theories of liability would have also been a first. The office determined that there were reasonable arguments to be made that Mr. Trump's ellipse speech incited the violence at the Capitol on January 6th and could satisfy the Supreme Court's standard

for incitement under Brandenburg versus Ohio, which held that the First Amendment does not protect advocacy, quote, directed to inciting or producing imminent lawless action and likely to incite or produce such action, particularly when the speech is viewed in the context of Mr. Trump's lengthy and deceitful voter fraud narrative that came before it. For example, the evidence established

that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay. But the office did not develop direct evidence, such as explicit admissions or communications with co-conspirators, of Mr. Trump's subjective intent to cause the full scope of the violence that occurred on January 6th. Therefore, in light of the other powerful charges available, and because the office

recognized that the Brandenburg standard is a rigorous one, it concluded that pursuing an incitement to insurrection charge was unnecessary. By comparison, the statutes that the office did charge had been interpreted and analyzed in various contexts over many years. The office had a solid basis for using sections 371, 1512, and 241 to address the conduct

presented in this case. And it concluded that introducing relatively untested legal theories surrounding section 2383 would create unwarranted litigation risk. Importantly, the charges the office brought fully addressed Mr. Trump's criminal conduct and pursuing a charge under 2383 would not have added to or otherwise strengthened the office's evidentiary presentation at trial. For all of these reasons, the office elected not to pursue charges

under 2383. All right. Well, that is why there weren't other charges brought. The other charge that was considered was 2383. All right. Well, that is why there weren't other charges brought. The other charge that was considered was 2383. And I think Andy, I assume you would agree, it would have been too much of a litigation risk considering they don't know how to prove it. And it would be novel in both elements of proving 2383. I think that's right. I have to go with them here. Although I think it's reasonable to say you could have, you know, you could have well-thought

and reasonable disagreements with their choice. That seems to always be the case in legal matters. But I think that at the end of the day, they made the conservative choice in trying to keep, as we've said this many times, that indictment was clearly designed from the beginning and then again with the superseder to be tight and confined to a small range of charges, one defendant, eliminating risk, eliminating, I know this seems crazy, but needless delay and trying to keep the unknown.

Imagine the delay. Otherwise, yeah. Right. Try and eliminate the delay we could imagine. Of course, not the ones that we didn't foresee, but trying to keep the unknowns to a minimum. And I think that's what they did here and that was probably not a bad choice. Yeah. And in that this case was built for speed, that is what is addressed in the next section

called co-conspirator liability. And we're going to start that as soon as we get to this quick break. Stick around. We'll be right back. Hey, everybody. Welcome back to Jack. The audio version of volume one of Jack Smith's final report on page 67, subsection F, co-conspirator liability. As described in the factual recitation above, Mr. Trump was charged with participating in crimes with at least six co-conspirators and the office's investigation uncovered evidence that some individuals did share criminal culpability

with Mr. Trump. Following the original indictment on August 1, 2023, the office continued to investigate whether any other participant in the conspiracies should be charged with crimes. In addition, the office referred to a United States Attorney's Office for further investigation evidence that an investigative subject may have committed unrelated crimes. What a da da. That's new. That's brand new. So at some point, So at some point, Jack Smith referred to the attorney's office an investigative subject that may have committed unrelated crimes. So we don't know who that is, what that is, if they were charged, if they weren't. We don't know.

And also it solves the mystery that we've had, which is like when the first indictment came out, we're like, does that mean he's walking away from the other co-conspirators? Is anything else happening? Are they continuing to investigate? Well, very clearly they did continue to investigate, which was kind of our thought at that time. But it's fascinating to see some of these many mysteries resolved. Yeah. And some new ones created. Who was referred to the US Attorney's Office. What was that other crime? Unrelated crimes, my goodness. Before the department concluded that this case must be dismissed, the office had made a preliminary determination that the admissible evidence could justify seeking

charges against certain co-conspirators. The office had also begun to evaluate how to proceed, including whether any potential charged case should be joined with Mr. Trump's or brought separately. Because the office reached no final conclusions and did not seek indictments against anyone other than Mr. Trump, the head of the criminal conspiracies and their intended beneficiary, this report does not elaborate further on the investigation and preliminary assessment of uncharged individuals.

This report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person. So for a very long time, we were like, why are they only charging Trump? And the answer that most experts and I agreed and you agreed was that if you charged everybody like they did in Arizona or like they did in Fulton County, Georgia, you're going to have a zillion pretrial motions. You're going to charge them separately, they'll ask to consolidate, you're going to create a ton of litigation for yourself that is ripe for delay by not just Donald Trump but now at least you know a handful of other defendants. So he doesn't come out and say it. He said we thought about charging them and then we weighed about the process involved and whether we should charge them separately or jointly. And then we, it

was just too late. And then he won the election. So this kind of says to me at least coming at it from a side angle that our assumption that he didn't want to bog this case down with multiple co-defendants and your assertion and examples of you know mafia stuff with mop-up cases that come later seems to be correct. Yeah I think so and it's such a shame because you wonder I mean what if what if what if there's a long list of what ifs, but one of them has certainly had the timing worked out differently and they got through, or at least to trial on Trump, that's a decision they may have made, you know, they could have

changed or decided at that point, okay, now let's continue. Let's bring these other cases. Well, and the other- We'll never know. And the other consideration too is once that immunity ruling came out or once it even started to be considered way back in December of 2023, he's got to be thinking, well, why would we add any charges to co-conspirators when we're arguing immunity here? Let's wait and see what the immunity says.

Right. First, because without the head of the conspiracy, kind of like in the Nauta de Oliveira case, it's really hard to bring co-conspirator charges. Yeah, you lose the, you kind of lose the point of the whole thing. So yeah, I, you know, look, we are where we are for the reasons we all know.

And the core of that, of course, is the guy got reelected. But yeah, so I think things is certainly things could have gone in very different direction with a different roll of the dice and a more favorable calendar. But this was clearly an effort to keep this thing focused on what they thought was the most important business to get done. And I can't really fault them for that. No. Okay, so now most important business to get done. And I can't really fault them for that. No. Okay, so now we move on to section three of the report,

which is entitled, The Principles of Federal Prosecution. As set forth above, the office concluded that Mr. Trump's conduct violated several federal criminal statutes, and that the admissible evidence would be sufficient to obtain and sustain a conviction. Therefore, under the longstanding principles of federal prosecution, the office considered whether, one, the prosecution would serve

a substantial federal interest, two, Mr. Trump was subject to effective prosecution in another jurisdiction, or three, there existed adequate non-criminal alternatives to prosecution. U.S. Department of Justice Justice Manual, Section 9-27.220. As described below, multiple substantial federal interests were served by Mr. Trump's prosecution. He was not subject to effective prosecution in another jurisdiction, and there was no adequate non-criminal alternative to prosecution. The Supreme Court's decision on presidential immunity, handed down after the initial decision

to prosecute and analyzed below in Section 5D.22 did not alter the office's view that the principles of federal prosecution compelled prosecuting Mr. Trump. Although that decision prevented the use of certain evidence uncovered regarding Mr. Trump's misuse of presidential power, he also engaged in non-immune criminal conduct that is set forth in the superseding indictment. Accordingly, this section discusses only evidence that was not immunized, either because it

involved Mr. Trump's private conduct or because the office would have rebutted any presumption of immunity. Subsection A, prosecuting Mr. Trump served multiple substantial federal interests. I agree. Okay. Mr. Trump's prosecution served multiple federal interests, including the federal interest in the integrity of the United States process for collecting, counting, and certifying presidential elections.

And in a peaceful and orderly transition of presidential power, the federal interest in ensuring that every citizen's vote is counted, the federal interest in protecting public officials and government workers from violence, and the federal interest in the fair and even-handed enforcement of the law. All of these federal interests,

which are rooted in the law, the constitution, and our basic democratic values are substantial and command protection for Mr. Trump's criminal design to subvert them. Wow, that's a heavy paragraph. Yeah, and I wanna put that on the wall somewhere. I mean. Yeah. That's. Yeah.

Yeah, and like a nice font in a frame with a thing. Exactly All right. We're on page 69. We're on subsection a sub sub section 1 The substantial federal interest in protecting the integrity of the electoral process and the peaceful transfer of power Was served by mr. Trump's prosecution. So all of those federal interests you just listed They're gonna go through these one by each one of them Yeah So all of those federal interests you just listed, they're gonna go through these one by one. Each one of them, yep. As set forth above, the investigation revealed that Mr. Trump and others conspired to use false claims

of election fraud to attempt to disrupt the United States electoral process and obstruct the congressional certification of the 2020 presidential election results. Prosecution for that conduct, thus vindicated abiding federal interests in protecting the electoral process and the previously unbroken tradition before Mr. Trump's charged conduct of a peaceful transition of

presidential power from one administration to the next. These federal interests are fundamental to our system of government, favoring no particular administration or political party. Indeed, electoral processes like selecting the president are quote, necessarily structured to maintain the integrity of the democratic system. And citing Burdick, preserving the integrity of the electoral process and preventing corruption are interests of the highest importance. The office was cognizant of Mr. Trump's free speech rights during the investigation and

would not have brought a prosecution if the evidence indicated he had engaged in mere political exaggeration or rough-and-tumble politics. C. Supra Section D. First Amendment Defense Discussion from the federal prosecutor Robert Jackson addressed delivered at the Second Annual Conference of the United States Attorneys in 1940, quoting, �In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion or activities such as the holding of meetings, petitioning of Congress, or dissemination

of news or opinions.� As set forth in the original superseding indictment, Mr. Trump had, quote, a right like every American to speak publicly about the election and to even claim falsely that there had been outcome determinative fraud in the election that he had won. He also had lawful recourse to challenge the election results,

including through lawsuits, recounts, and audits. In fact, Mr. Trump and his allies vigorously pursued these methods of contesting the election results, but they were unsuccessful. After election day, Mr. Trump or his campaign were plaintiffs or intervenors in at least 16 lawsuits seeking to change the outcome of the election. And Mr. Trump supporters filed dozens of other such lawsuits, but all

of these failed to change the outcome in any state. Mr. Trump pursued recounts in only two states, statewide machine recount in Georgia and a recount in Wisconsin's Milwaukee and Dane counties. And both served only to confirm the previously reported result. In Wisconsin, the recount increased Mr. Trump's margin of loss. Whoops. Following public requests, secretaries of state in Georgia and Michigan ordered additional audits and recounts. In Georgia, a statewide hand recount

and an audit in Cobb County, and in Michigan, a statewide audit and a hand recount in Antrim County, where Mr. Trump seized on claims of a clerk's temporary clerical error, but all merely confirmed previously reported results. The conduct of Mr. Trump and his co-conspirators, however, went well beyond speaking their minds or contesting the election results through our legal system. Instead, Mr. Trump targeted a key federal government function, the process by which the United States collects, counts, and certifies the results of a presidential election, and sought to obstruct or defeat it through fraud and deceit. He did so using knowingly false claims of election fraud to attempt to induce state officials to reject citizens votes and instead appoint Mr. Trump's electors. When he deceived his electors and caused them to falsify

electoral certificates and submit them to Congress, when he attempted to enlist Mr. Pence with false claims of election fraud and pressure, and when he used and attempted to leverage an angry crowd of his supporters fueled by Mr. Trump's lies to stop certification proceedings. SONIA DARA-MURRAY Yeah. All right. That brings us to page 72. We need to take another quick break, but we will continue with this particular subsection right after the break. Stick around. We'll be right back. Hey, everybody. Welcome back. We are on page 72. It continues. Mr. Trump did this in

contravention of the framers intent to prevent a sitting president from perpetuating himself in power. In free governments, Benjamin Franklin explained, quote, the rulers are the servants and the people their superiors and sovereigns. Although the framers recognized, quote, the necessity of an energetic executive, unquote, they justified and checked his power by ensuring that he always retained a due dependence on the people. That's from the Federalist, Hamilton.

As the Supreme Court noted in Trump, that's the immunity thing, the president plays no direct role in the process of appointing electors, nor does he have authority to control the state officials who do. And the framers, wary of quote, cabal intrigue and corruption unquote, specifically excluded from service as electors, all those who from situation might be suspected of too great devotion to the president in office.

We don't really follow that anymore, but that's what it says. That was a different time. That's also the Federalist number 68, Hamilton. Accordingly, Article 2 of the U.S. Constitution provides that, quote, no senator or representative or person holding an office of trust or profit under the United States shall be appointed as an elector. The considerable federal interest in protecting the integrity of the United States electoral process weighed in favor of proceeding with Mr. Trump's prosecution.

So too did the federal interest in defending from future harm the United States exceptional tradition of peaceful transitions of presidential power. That tradition was initiated by George Washington when he announced in his September 1796 farewell address that he would decline to seek a third term, followed by John Adams when he relinquished the power of the presidency to his political rival, Thomas Jefferson, after the election of 1800, and continued by every sitting president until 2020, even through the turbulent Civil War and Reconstruction eras. And Congress and the courts have also recognized the federal interest in orderly presidential transitions. You can see the Presidential Transition Act of 1963 that says, Legislation to promote the orderly transfer of the executive power because any disruption

occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people." And a sidebar here, Trump actually used that quote to try to get SCOTUS to block his sentencing in the Manhattan Court because he's transitioning into power. Suddenly the advocate of a peaceful transition. Wow. Amazing. He also cites Trump v Thompson saying recognizing Congress's unique legislative need for documents directly relevant to the inquiry into an attack on the legislative branch and its constitutional role in the peaceful transfer of power.

And Tario, US v Tario from 2022. This is Enrique Tario saying when assessing very serious nature and circumstances of a January 6th related offense, court observed that quote, they involve among other things, an alleged conspiracy to obstruct the certification of the electoral college vote and thus to interfere with the peaceful transfer of power. That's one of our nation's crown jewels. In his first inaugural address, President Ronald Reagan remarked on the country's tradition of a peaceful transition of presidential power,

To a few of us here today, this is a solemn and most momentous occasion, and yet in the history of our nation it is a commonplace occurrence. The orderly transfer of authority, as called for in the Constitution routinely takes place as it has for almost two centuries, and few of us stop to think how unique we really are. In the eyes of many in the world, this every four-year ceremony we accept as normal is nothing less than a miracle. In connection with preserving that tradition, vice presidents have presided over the certification of their own election losses.

In 1961, then Vice President Richard M. Nixon fulfilled his role as President of the Senate at the January 6 certification proceeding, announcing that John F. Kennedy had won the presidency. In so announcing his own defeat, Nixon stated, this is the first time in a hundred years that a candidate for the presidency announced the result of an election in which he was defeated and announced the victory of his opponent.

I do not think we could have a more striking and eloquent example of the stability of our constitutional system and of the proud tradition of the American people of developing respecting and honoring institutions of self government Yeah, that's Nixon. That's Nixon. That's Nixon and in 2001 after a hard-fought legal dispute over the 2000 presidential election Vice President Albert Gore jr. Similarly presided over the 2000 presidential election, Vice President Albert Gore Jr. similarly presided

over the certification of his opponent, George W. Bush, as president-elect. Protecting the well-established American tradition of a peaceful transfer of power weighed in favor of prosecution. Yeah. All right. So that was subsection one. Subsection two, the substantial federal interest in counting every citizen's vote was served by Mr. Trump's prosecution. Few federal interests are stronger in our representative democracy than that of protecting every eligible citizen's right to vote and to have their vote counted. The evidence establishes that in contravention of that right, Mr. Trump urged state officials to disregard the legitimate majority of votes for Mr. Biden and instead appoint Mr. Trump's electors, pressured and threatened Georgia's Secretary of State to find more than 11,000 votes to dilute the

legitimate vote count and allow Mr. Trump to be declared the winner of the state, and urged Mr. Pence to discard the legitimate electoral certificates that reflected millions of citizens' votes in targeted states. An additional factor meriting Mr. Trump's prosecution, therefore, was the need to vindicate and protect the voting rights of these and all future voters. The strength of the federal interest in protecting the right to vote is plain from the history of suffrage in America, as chronicled in the Constitution, which has been amended not fewer than five times to extend and protect the franchise for all adult citizens, regardless

of race, sex, age, and education, providing that if a state is failed to ensure all eligible citizens the right to vote, the state's proportional representation would be reduced. And also, he's citing all the amendments here. Amendment 15, section 1, the right to vote shall not be denied or abridged on account of race, color, or previous condition of servitude. Amendment 19, same on account of sex. Amendment 24, Section 1. Same by reason of failure to pay any poll tax. And Amendment 26, same as for citizens who are 18 years of age or older, on account of age. And consistent line of court decisions maintaining that suffrage can neither be denied or outright destroyed by alteration of ballots.

That's citing Sims. The strength of the federal interest is further reflected by the history of the section 241 offense with which Mr. Trump was charged and as set forth in section two C above by courts, universal and longstanding recognition of the right protected by the statute in attempting to disenfranchise voters who did not choose to reelect him, Trump targeted a bedrock fundamental right that the government has a strong interest in protecting. All right, before we get to subsection three, we're going to take one last quick break. So everybody

stick around. We'll be right back. Welcome back, everyone. Okay, we're going to resume with subsection three, and that's at the bottom of page 75. Subsection three is entitled, the substantial federal interest in protecting election officials and other government officials from violence was served by Mr. Trump's prosecution. Another federal interest that merited Mr. Trump's prosecution was addressing his resort throughout the charged criminal conspiracies to threats and the encouragement of violence against his perceived opponents.

Consistently, when elected officials refused to take improper actions that Mr. Trump urged, like discarding legitimate votes or appointing fraudulent electors, Mr. Trump attacked them publicly on Twitter, a social media application on which he had more than 80 million followers. Inevitably, threats and intimidation to these officials followed. For instance, after Mr. Trump targeted a Philadelphia city commissioner in a tweet criticizing the commissioner for stating that there was no evidence of widespread election fraud in Philadelphia, threats against the commissioner grew more targeted, more detailed, and more graphic. These threats extended to include highly personal information like the names and ages of the

Commissioner's family members, as well as photos or the address of his home. Fulton County, Georgia election officials similarly reported receiving threats, including death threats, following Mr. Trump's false public accusations against Fulton County election workers. Mr. Trump also targeted private citizens who served as election workers. He took particular aim at a mother and daughter who worked at Atlanta's State Farm Arena counting ballots on election day. He and his co-conspirators spread pernicious false claims that these election workers had

committed misconduct. Although the lies were promptly and publicly debunked, Mr. Trump continued to repeat them, and the election workers were subjected to vile threats. As one of the women explained, quote, when someone as powerful as the President of the United States eggs on a mob, that mob will come. They came for us with their cruelty, their threats, their racism and their hats. They haven't stopped even today. Mr. Trump persisted in publicly spreading false

and harmful social media posts about the same election workers into 2023. In 2024, co-conspirator one conceded in a defamation lawsuit filed by the election workers that his statements about them were quote, defamatory per se, and quote, false. And a jury awarded them damages of more than $145 million. Mr. Trump took aim at Mr. Pence when Mr. Pence repeatedly informed Mr. Trump that he could

not in good conscience do as Mr. Trump asked. On January 6th, this included Mr. Trump's retributive targeting of Mr. Pence during his ellipse speech and the 2.24 p.m. tweet attacking Mr. Pence that Mr. Trump issued, even though he knew that riot was ongoing at the Capitol. Taken together, these actions resulted in rioters at the Capitol on January 6th singling out Mr. Pence for their ire and chanting, Where is Pence? Bring him out and hang Mike Pence.

In addition to prompting these threats against the targets of Mr. Trump's criticisms, Mr. Trump's words inspired his supporters to commit acts of physical violence. On January 6th, Mr. Trump used his ellipse speech to direct his supporters to, quote, go to the Capitol and, quote, fight like hell. He explicitly licensed them not long after co-conspirator one had exhorted the crowd

to engage in trial by combat to operate under very different rules because fraud was allegedly involved. And he told them they were, quote, not going to let it happen, urging them to stop the election certification proceeding that was about to begin. The people who took Mr. Trump at his word formed a massive crowd that broke onto restricted capital grounds and into the building, violently attacking law enforcement officers protecting the Capitol and those inside.

Officers have described being assaulted by rioters wielding bear spray, metal bats and flagpoles, and other improvised weapons. A Metropolitan Police Department commander recounted that the scene was a quote non-stop barrage of just strikes with weapons and things being thrown and pepper spray and you name it everything being hurled at these officers you could hear them yelling you could hear them screams and moans and everything else multiple officers stated that they feel it feared for their lives when among the rioters that day one MPD officer put that fear at quote, 100% from the moment he entered the crowd

and he explained that he thought that he might die. Quote, you know, you're getting pushed, kicked, you know, people are throwing metal bats at you and all that stuff. I was like, yeah, this is fucking it. A US Capitol police officer similarly recalled thinking, quote, I think I might die today. And in one instance, an MPD officer recounted that rioters dragged him into the crowd where they beat and tased him while yelling things like, I got one and kill him with his gun.

The January 6 rioters assaulted at least 140 law enforcement officers that day, and at least 123 defendants have been charged with using a deadly or dangerous weapon or causing serious bodily injury to law enforcement. This violence took a lasting toll. In addition to the significant physical injuries inflicted that day, officers suffered unseen injuries, including depression and other forms of psychological trauma. Man, sidebar, that's just, it's chilling to

hear. Yeah, it really is hard to read. And I mean, I've heard it before, you know, those guys are my friends, that was Mike Fanon, was one of them. Officers at the Capitol understood that if the rioters reached the lawmakers and other staff inside the building, violence would have been done to them as well. Only through the heroism of the law enforcement officers who defended the Capitol were lawmakers and their staff protected from harm. Many members of Congress feared for their lives. Once the rioters breached the Capitol building, quote, elected representatives, congressional

staff and members of the press hid in terror from the mob in barricaded offices or unmarked rooms as rioters roamed the halls. That's from US v. Crestman. For instance, in detailing his efforts to evacuate a US senator and her staff from an unmarked hiding spot, one US Capitol police officer described the senator as afraid for her life and shaking and very, very, she was very scared. That's a quote. He added that the senator later relayed to him that what the rioters did on January 6th

had scared and frightened everybody and had, quote, put a lot of people's lives in danger. The violence of January 6th was foreseeable to Mr. Trump, who had remarked just the evening before that his supporters were angry and who to cheers of invade the Capitol building and take the Capitol had told those supporters during his ellipse speech to show strength and to be strong. When he told them, we're not going to let it happen, the crowd chanted, fight for Trump. And when he warned his gathered supporters that, quote, if you don't fight like hell, you're not going to have a country

anymore. The crowd marched to the Capitol in response. Indeed, officials and advisors close to Mr. Trump recognized and voiced their concerns over this high potential for election-related violence. On January 4th, a senior advisor explicitly warned co-conspirator 2 that if Mike Pence unilaterally rejected legitimate electoral votes, it would, quote, cause riots in the streets. Co-conspirator 2 replied that there had previously been points in the nation's history where violence was necessary to protect the Republic. On January 5th, after Mr. Trump told Mr. Pence that he would have to publicly criticize him,

Mr. Pence's chief of staff was sufficiently concerned for Mr. Pence's safety that he alerted the head of the vice president's protective detail. And a counsel to the vice president issued a prescient warning to co-conspirator to that same day when he warned that the conspirators plan would result in quote a disastrous situation where the election quote might have to be decided in the streets. Indeed as the riot at the Capitol unfolded on January 6th the vice president's council shied it co-conspirator to that quote whipping large numbers of people into a frenzy over something with no chance of ever attaining

legal force through actual process of law has led us to where we are. There is unquestionably a public interest in ensuring that elected officials and election workers can carry out their duties without fear of threats and retaliation. See memorandum from Lisa Monaco, Deputy Attorney General, in quoting, The right to vote is the cornerstone of our democracy, the right from which all other rights ultimately flow. For this vital right to be effective, election officials must be permitted to do their jobs free from improper partisan influence, physical threats, or any other conduct designed to

intimidate. Accordingly, the need to promote this federal interest weighed in favor of prosecuting Mr. Trump. And finally, number four in this subsection, the substantial federal interest in the even-handed administration of the law was served by Mr. Trump's prosecution. There is a substantial federal interest in ensuring the even-handed administration of the law with respect to accountability for the events of January 6, 2021, and the office determined that interest would not be satisfied absent Mr. Trump's prosecution for his role. Multiple district court judges have recognized Mr. Trump's role in the events of January 6.

In U.S. v. Lolo's, from a transcript, court stating that January 6th defendant was called to Washington, D.C. by an election official. He was prompted to walk to the Capitol by an elected official and telling defendant, I think you were a pawn, you were a pawn in a game that was played and directed by the people who should have known better.

And then in US v. Peterson, court stating that incendiary statements at the ellipse rally absolutely quite clearly and deliberately stoked the flames of fear and discontent and explicitly encouraged those at the rally to go to the Capitol and fight for one reason and one reason only to make sure the certification didn't happen. Then US v Bernard, the events of January 6th involved a rather unprecedented confluence of events spurred by then President Trump and a number of his prominent allies who bear much responsibility for what occurred on that date.

To date, more than 1,500 people have been criminally charged for their roles in the January 6th attack on the United States Capitol. With that in mind, Mr. Trump's relative culpability weighed heavily in favor of charging him as the individual most responsible for what occurred at the Capitol on January 6th. And then they quote the justice manual requiring prosecutors to assess the degree of the person's culpability in connection with the offense, both in the abstract and in comparison with any others involved in the offense. Rioters have cited Mr. Trump as the reason they traveled to D.C. and went to the Capitol

that day. In the weeks before January 6, Mr. Trump issued several tweets calling his supporters to Washington, D.C. for his rally at the ellipse, and they answered the call. In the days after Mr. Trump's December 19 tweet promising that the rally would be wild, for instance, Kelly Meggs, a member of the Oath Keepers group, who was later convicted of seditious conspiracy among other charges, messaged associates that, quote, it's going to be wild. Trump wants us to make it wild.

That's what he's saying in US v Rhodes. Meggs added he called us all to the Capitol and he wanted us to make it wild. Riot David Kuntz a member of the three percenters militia group who would later plead guilty to charges Related to breaching the Capitol building planned to travel to DC on January 6th in direct response to the December 19th tweet That's usv Wilson superseding indictment Kuntz later shared Trump's December 27th tweet, which told supporters, See you in Washington, DC on January 6th. Don't miss it. Information to follow. Kuntz commented, He's asking us to be there. And good, he does need us. I'm going armed. Period. In his ellipse speech, Mr. Trump explicitly directed his supporters to march on the Capitol.

speech, Mr. Trump explicitly directed his supporters to march on the Capitol. At one point, in reply to a line in his speech that, quote, we will not let them silence your voices. We're not going to let it happen. A portion of the rally crowd chanted, quote, fight for Trump, fight for Trump. When he repeatedly exhorted his supporters to, quote, walk down to the US Capitol to help prevent Congress's plan certification, they listened. The law enforcement witnesses at and near the Capitol

on January 6th described large crowds descending upon the Capitol grounds from the direction of the ellipse rally. And video and photographic evidence shows that hundreds of individuals in attendance at the ellipse rally were later participants in the Capitol siege, and in some cases were among the most violent of the rioters. During the siege, Mr. Trump's supporters continued to heed his words.

Video evidence from that afternoon shows rioters in real time, crediting Mr. Trump for their presence and their conduct at the Capitol. For example, as the crowd sought to push past officers protecting a Capitol's east front, one rioter shouted, we were invited here. We were invited by the president of the United States. Inside, another rioter yelled at officers to, quote, stand down. You're outnumbered. There's a fucking million of us out there and we are listening to Trump, your boss.

That's from United States versus Harris. That writer was later convicted of obstruction and assaulting an officer among other violations. As the day wore on, rioters continued to obey Mr. Trump's commands at 4.25 PM, just eight minutes after Mr. Trump's video tweet telling supporters that they were very special but should go home now, rioter Edward Vallejo, a member of the Oath Keepers, posted to a group signal chat that, quote, our commander in chief has just ordered us to go home.

Another rioter, Jacob Chansley, played that video tweet to a crowd at the Capitol and announced that quote, Donald Trump has asked everybody to go home. Chansley left the Capitol at that point, having earlier breached the Senate chamber, taken a seat at the dais and declared vice president Pence to be quote, a fucking traitor. Jacob Chansley, you remember was the guy with the headdress and the horns. After January 6th, when rioters began to face accountability for their unlawful acts at the Capitol, many pointed to Mr. Trump in an attempt to excuse or mitigate their conduct.

For example, following his arrest on charges stemming from the Capitol siege, rioter Alex Harkrider sought release from pretrial detention by arguing, quote, like thousands of others at the Capitol, Mr. Harkrider was responding to the entreaties of the then commander in chief, former President Donald Trump. And then that's again from US hard riker, as we know. And then Hale Kusilini, defendant's motion from modification of bond, requested a pretrial release, in part because the defendant, quote, was responding to the entreaties of the then commander

in chief, President Trump, Chansley. And then from that case, it argued that Chansley was incited by Mr. Trump and noting his unsuccessful request for a presidential pardon. In closing argument at trial on seditious conspiracy and other charges related to January 6th, defense counsel unsuccessfully asked the jury to acquit Proud Boys leader Enrique Tarrio because in part it was Mr. Trump's anger that caused what occurred on January 6th and it was not Enrique Tarrio. And at sentencing in January 6 cases,

many rioter defendants, whether expressing remorse or not, have sought leniency by blaming Mr. Trump both for their presence at the Capitol and their underlying belief that the 2020 presidential election was fraudulent and that they must take action to stop the transition of the presidency. And then one another defendant, David Mahaffey, in his sentencing statement said, I trusted the president and that was a big mistake. All right. So thank you for listening to part three of the audio version of volume one of the Jack Smith Report. We're going to start again in part four on the bottom of page 87 in subsection B,

Mr. Trump was not subject to effective prosecution in another jurisdiction. That's another reason in the federal rules of criminal procedure that bringing charges against a defendant, a criminal defendant, is something that you should do. Because, you know, like if you're getting effective prosecution for the same stuff in

a different jurisdiction, no need to bring charges. And so this is- Yeah, it's judicial economy. Right. Right. This is like remarkable, you know, going through this. Some of these things we've heard before, some of these details I don't remember hearing before that just could be my filling memory, but there's you have to take away the impression that the power that this evidence would have had at

trial. You imagine the witnesses that would have come in to enter this sort of testimony, these sort of accounts about you know getting beaten by the crowd and the threats to poll workers. I just can't help but thinking that this would have been a very, very powerful prosecution presentation, I think. I think so too. And you know, I do want to reiterate that a lot of this information laid out in a lot, a lot of the same ways was before the public in the immunity brief from Jack Smith before the election, and that this trial wouldn't have been televised. And so I often wonder what would have made a difference. I mean, he was already convicted on 34 felony counts.

Would 38 felony counts made a difference in voters minds if this trial had gone before the election, you know? Yeah, I don't know. That's a tough one to figure. But I do think it would have made a big difference in the minds of 12 jurors. It definitely would have. This is not a weak case. There's a lot of evidence here. It's a challenging case. He's a very challenging defendant. It's inherently political. So you have all kinds of other motivations and feelings that you have to deal with there. But in terms of just the evidence and the facts, it's really

remarkable. Yeah, I agree. I wish it would have gone to trial. Yeah. I really do. Yeah. All right. We'll be back in your ears probably tomorrow, if not the next day, depending on when we can find a fight it out or sit down every night to record these.

But we really appreciate you listening to the audio version of this. I love that the Jack podcast went from like number 75 on the charts to number 12, because people are listening to this. And that just makes me happy. I know it's after the election. I know a lot of people are just exhausted and tired.

And a lot of people are like, oh, it's too late. But the truth matters. And especially that excerpt about this mattering in Jack Smith's cover letter on this volume. I really appreciate that people are listening to this. So thank you. Yeah, their listening confirms that it does matter. So thank you. Thank you as well. All right. We'll see you next time. I've been Alison Gill. And I'm Andy McCabe.