On July 1 2024, the Supreme Court of the United States (SCOTUS) ruled 6-3 that Former President Donald Trump had absolute immunity for acts he committed in his official role as president in Trump v. The United States. Trump, therefore, would not be held criminally accountable for the spread of misinformation and his aggravating tweets in the lead-up to the events of the January 6 2021 Capitol attack, where his supporters stormed the Capitol building in a violent attempt to stop the certification of election results in Congress. Not only did Trump v The United States fuel the conspiracy that Trump’s claims of election fraud were correct, but it also deeply worried voters about the amount of power the next president would have if Trump could not be criminally charged for January 6.
However, Jack Smith, the Special Counsel for the Department of Justice, released a damning filing on SCOTUS’s decision on 3 October 2024. The legal brief unveiled new evidence of Trump’s alleged criminal activity, particularly in relation to his previous Vice President Mike Pence. Smith ultimately argues that whilst communications between the President and Vice-President can be viewed as an official act as president rather than a personal discussion between two US citizens as SCOTUS ruled, the nature of Trump’s communication with Pence from election day to January 6th was unofficial in nature as it was related to Trump’s beliefs about election fraud, meaning Trump should still face a criminal trial.
Smith’s evidence that Trump’s scheme was always “at its core, a private one” focuses on his private relationships with his advisors, supporters, and Pence. Pence allegedly said there was “no evidence of voter fraud” from November 2020. Throughout the next two months, Pence faced growing pressure from Trump and his advisors to reject the electoral certification on January 6, claiming he had the authority to do so in his role as President of the House. Trump also told his supporters through social media posts that Pence had the ability to overturn the results, adding further pressure on Pence in his decision-making on January 6 2021.
Smith continues that when Pence refused to act unlawfully and reject the certification, Trump realised he needed a new plan to stop the session where Pence would pass the bill. Smith references his speech on the Ellipse on January 6 and his tweets to evidence his plan to rally up the crowd to stop the session in the House with force. Whilst Trump has previously claimed to have tweeted to stop the violence immediately, new evidence from Smith’s report suggests that he watched the violence unfold in from his dining room. He tweeted from his personal Twitter account whilst watching coverage on Capitol Hill on Fox News.
Trump’s personal communications are the crux of Smith’s case, in that his involvement with the January 6 riots did not constitute an official act as president. Whilst the SCOTUS claimed that the pressure Trump put on Pence to reject the voting certification was an official act as it was communication between the president and vice president, Smith asserts that the role of the vice president in the House has always been ministerial, and there is rarely an occasion where the president would have a legitimate reason to try and influence the outcome of a session. Trump’s attempt to influence Pence’s decision to reject the certification would consequently not be an official act as president, as Pence was not there to fulfil a politically charged purpose for the good of the Republican presidential campaign. Furthermore, the Ellipse Rally (also known as the Save America Rally) was a privately funded event rather than an event funded by the US Government for presidential reasons. Smith further highlighted that Trump took the stage to ‘God Bless the USA’ rather than the official Presidential Anthem ‘Hail to the Chief’, which would have played if it was an official presidential event. A few hours after his speech, Trump took to his personal Twitter account and infamously tweeted:
“Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
@realdonaldtrump, 11:24 AM, January 6 2021
The Tweet was read out on a megaphone to already rioting Trump supporters at the Capitol, fuelling their anger more as Pence was evacuated by FBI agents’ moments before rioters stormed his office. As the tweets came from his @realdonaldtrump account rather than his official presidential account @POTUS45, Smith concludes that Trump’s pressure on Pence, either directly or indirectly through his supporters, was private in nature. Not only did Trump have no legitimate reason to try to influence Pence’s role in the house, but he also attended a private event to give his speech on the Ellipse and spent the afternoon tweeting from his personal Twitter account. Although he later retweeted instructions for his supporters to ‘stay peaceful’ on his presidential Twitter account, the tweets from his personal Twitter account incited anger, nonetheless.
Smith’s new evidence opens further uncertainty for the Republican presidential campaign, as Trump will likely stand trial with this new evidence if Harris wins the election next month. Whilst Trump’s hardcore supporters are not likely to be swayed by the report, voters in critical swing states may favour Harris due to the serious allegations in Smith’s report. As Trump based his claims of election fraud predominately on the outcomes of the elections in swing states, Smith’s evidence could jeopardise Trump’s relationship with swing voters in those states as he continues to rally support in them a month before the election.
However, the Republicans should not be alone in their worry about the potential implications of the court case, as the BBC highlights that Trump will likely order the Justice Department to throw the case out if elected in November, along with pardoning those charged with crimes on January 6 2021. At a rally in Butler, PA on October 5, Trump rallied alongside JD Vance and Elon Musk, using language similar to the tweets that were incited on January 6. Trump stated to the crowd of supporters that if he loses, “we won’t have a country anymore’ and that his supporters needed to prepare to “fight for this country”, like his call to take the country back during his Ellipse speech.
The SCOTUS ruling allowed Trump to see what he could legally say without facing prosecution, but Jack Smith’s evidence may start to change how he uses his words before and after the election. However, the new evidence reflects an ongoing debate in the US Government on how much power the president has and how much they should have.
Image by Tyler Merbler via Wikimedia Commons