New Jack Smith Claims: Trump Hired Giuliani Because He Would Lie About Election Fraud Claims

Topline

Former President Donald Trump fired his attorneys after the 2020 election and replaced them with Rudy Giuliani because he would be willing to “spread knowingly false claims of election fraud,” Special Counsel Jack Smith alleged in a wide-ranging filing on Trump’s efforts to overturn the election, which claims Trump knew full well his election claims were false.

Key Facts

Smith filed a new brief in the federal criminal case against Trump for trying to overturn the election, which was made public Wednesday and lays out the government’s case against Trump and why it complies with the Supreme Court’s ruling giving the ex-president some immunity from criminal charges.

Prosecutors allege Trump fired his previous attorney after the 2020 election on Nov. 13, 2020, after the lawyer and Trump’s staff told him he had only a “slim chance” of winning the election—prompting Trump to fire his attorney and hire an unnamed co-conspirator believed to be Giuliani to head his legal team, with Smith alleging Trump hired Giuliani because he “was willing to falsely claim victory and spread knowingly false claims of election fraud.”

The filing alleges Trump knew his claims of election fraud were false, with a different Trump attorney telling the then-president that they would get “slaughtered” if they tried to litigate the claims in court because the allegations were “bullshit”—with Smith also claiming that when the lawyer told Trump they couldn’t prove his claims in court, Trump responded, “The details don’t matter.”

Trump and his allies invented their fraud claims “out of whole cloth,” Smith alleges, noting prosecutors would show at trial how they “repeatedly changed the numbers in their baseless fraud allegations from day to day” and made up “false figure[s] that they never verified or corroborated”—and claiming Trump’s then-Chief of Staff Mark Meadows sent text messages saying claims about dead voters were false while Trump allies were pushing the allegations at a hearing in Georgia.

An unnamed assistant overheard Trump telling his family after the election, “It doesn’t matter if you won or lost the election. You have to fight like hell,” the filing alleges, saying that staffer would testify if the case goes to trial.

Trump also told advisers before the election that if a winner weren’t declared right away, “he would simply declare victory before all the ballots were counted and any winner was projected”—as he then went on to do.

Trump, Mike Pence And Jan. 6

Smith’s case against Trump does not hold the ex-president liable for the violence on Jan. 6, 2021, but does allege he helped foment the chaos and took advantage of it to try and block Congress from certifying the results. The filing claims Trump exerted a pressure campaign on then-Vice President Mike Pence to get him to refuse to certify the election results, and made false claims publicly that Pence had the authority to do so. When Pence refused, Smith alleges, Trump “sent to the Capitol a crowd of angry supporters, whom the defendant had called to the city and inundated with false claims of outcome-determinative election fraud, to induce Pence not to certify the legitimate electoral votes.” Pence told Trump right before the Jan. 6 rally that preceded the Capitol attack that he would not block the certification, and Smith alleges Trump “knew that he had only one last hope to prevent Biden’s certification as President: the large and angry crowd standing in front of him.” As the attack on the Capitol was happening, Smith alleges a White House aide told Trump that Pence had been moved to a secure location in hopes Trump “would take action to ensure Pence’s safety.” Instead, Smith writes, Trump looked at the staffer and said, “So what?” Prosecutors also allege Trump spoke with adviser Steve Bannon two hours before Bannon predicted on his podcast that “all hell is going to break loose” at the Jan. 6 rally.

Trump Allies And The Fake Electors Plot

In addition to the allegations about Trump not believing fraud claims, the filing also claims his allies did not have confidence in the “fake electors” scheme the Trump campaign spearheaded, in which GOP officials in battleground states submitted false slates of electors to Congress claiming Trump won. Smith alleges that after Trump directed his team to release a statement on the false elector plot, the allies involved with it convened on a conference call. During that call, they all agreed to release the statement without a name, because “they ‘can’t stand by it.’” The unnamed witness who gave that information to prosecutors also noted that the call was made up of people whose “professional competence” the witness “doubted,” and who the witness “personally would not choose to hire.”

Surprising Fact

The filing also suggests Trump did not believe claims pushed by right-wing attorney Sidney Powell after the election that alleged voting machines were hacked to aid in election fraud—even as his allies continued to spread them. Smith alleged that when Powell called Trump to discuss her claims, the then-president put the call on mute and “mocked and laughed” at Powell, “called her claims ‘crazy,’ and made a reference to the science fiction series ‘Star Trek’ when describing her allegations.” (Trump’s legal team later distanced itself publicly from Powell, though Giuliani also pushed the false voting machine claims.)

Chief Critic

Trump campaign spokesman Steven Cheung denounced Smith’s filing as “falsehood-ridden” and “unconstitutional” in a statement, claiming it was released after the vice presidential debate in an attempt to undermine Trump’s candidacy. “Deranged Jack Smith and Washington DC Radical Democrats are hell-bent on weaponizing the Justice Department in an attempt to cling to power,” Cheung claimed, describing the case as a “witch hunt” and saying it “should be dismissed entirely.” The filing was made public Wednesday after Trump’s lawyers urged the court not to let Smith file it at all, claiming it would be a “180-page false hit piece” that would unfairly taint the jury against Trump.

Tangent

Smith alleges that Trump told his lawyer he would only pay Giuliani if he won Trump’s post-election cases in court—to which the attorney said Trump “would never have to pay anything,” and Trump “laughed and said, ‘We’ll see.’” Giuliani said in February Trump still owed him $2 million for representing him after the election.

Does Trump Have Immunity?

The Supreme Court’s ruling states Trump has immunity from criminal charges that are based on his official acts in office, but can still be prosecuted based on “unofficial” acts that weren’t part of his presidential duties. While it’s ultimately up to U.S. District Judge Tanya Chutkan to determine what Trump can be charged with, Smith argues Trump’s post-election conduct outlined in the filing and indictment doesn’t constitute official acts. Rather, Trump was acting in his private capacity as a citizen and political candidate when he worked to overturn the results, Smith argued. The prosecutor said that if there are some meetings or statements Trump made in which he mixed his post-election efforts with official business, the court should simply not consider the official aspects of the evidence and only consider the relevant parts.

What To Watch For

While the main part of Smith’s filing was made public Wednesday, there’s still an accompanying appendix that has to be released, which would have full transcripts and other documents that are excerpted in the filing. The court still has to rule on what should be redacted in the appendix, which Chutkan will do at some point after Trump’s lawyers submit their filing by Oct. 10 on what should be redacted. It’s unclear when Chutkan will issue her final ruling on whether the charges against Trump comply with the Supreme Court’s immunity ruling, but it won’t come until at least Oct. 29, when the final briefs on the issue have to be submitted. It’s likely the debate will keep dragging out from there, however, as Trump is likely to appeal whatever ruling Chutkan issues and ask higher courts to throw out the case against him. That means the litigation could go to the Supreme Court for a second time, and it’s unclear how long it will take before the case goes to trial. If Trump wins the election, he’s also all but certain to appoint DOJ officials who would drop the charges against him entirely.

Key Background

Trump faces four felony charges in the federal election case, as prosecutors accuse Trump of committing conspiracy to defraud, obstruction and conspiracy against rights when he challenged the election results. The case started moving forward again in August after being on pause for months while the Supreme Court considered the immunity issue, indefinitely delaying the trial, which was originally scheduled for March. Smith’s filing has been hotly anticipated since the case started moving forward again, as the special counsel promised evidence that had not been part of the indictment and opted for the filing over a “mini-trial” in which prosecutors would have laid out their evidence against Trump in a hearing. With the case certain not to go to trial by Election Day, the filing has been considered the key way for voters to see prosecutors’ case against Trump, beyond what’s in the indictment, before going to the polls. Smith submitted the filing to the court last week but it had been under seal until Wednesday, as Chutkan had to determine what would be redacted before the document was publicly released. The filing was released with minimal redactions beyond names of witnesses and co-conspirators after Trump’s lawyers had called for it to be more heavily redacted Tuesday, claiming Smith’s proposed redactions unfairly released sensitive information that could be used to identify witnesses.

Further Reading