Donald Trump “resorted to crimes” after losing the 2020 election, prosecutors said in a court filing unsealed on Wednesday that argues the former president is not entitled to immunity from prosecution over his failed bid to remain in power.
The filing was submitted by special counsel Jack Smith’s team following a Supreme Court opinion that conferred broad immunity on former presidents for official acts they take in office.
The decision narrowed the scope of the prosecution in charging Trump with conspiring to overturn the results of the election he lost to Democrat Joe Biden.
The purpose of the brief is to convince US District Judge Tanya Chutkan that the offences charged in the indictment are private, rather than official, acts and can therefore remain part of the indictment as the case moves forward.
Those include efforts to persuade former vice president Mike Pence to refuse to certify the counting of the electoral votes on the afternoon of January 6 2021.
“Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one,” Mr Smith’s team said.
“Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted — a function in which the defendant, as President, had no official role.”
“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office,” the filing said.
The filing includes details of conversations between Trump and Mr Pence, including a private lunch the two had on November 12 2020, in which Mr Pence “reiterated a face-saving option” for Trump, telling him “don’t concede but recognise the process is over”, according to prosecutors.
In another private lunch days later, Mr Pence urged Trump to accept the results of the election and run again in 2024.
“I don’t know, 2024 is so far off,” Trump told him, according to the filing.
But Trump “disregarded” Mr Pence “in the same way he disregarded dozens of court decisions that unanimously rejected his and his allies’ legal claims, and that he disregarded officials in the targeted states — including those in his own party — who stated publicly that he had lost and that his specific fraud allegations were false,” prosecutors wrote.
Trump’s “steady stream of disinformation” in the weeks after the election culminated in his speech at the Ellipse on the morning of January 6 2021, in which Trump “used these lies to inflame and motivate the large and angry crowd of his supporters to march to the Capitol and disrupt the certification proceeding,” prosecutors wrote.
