'Make them riot' — Trump election case judge unseals special counsel motion on immunity

A federal judge on Wednesday unsealed a redacted motion by special counsel Jack Smith detailing evidence against former President Donald Trump in his criminal election interference case in Washington, D.C.

Smith's 165-page filing argued that the Republican presidential nominee can still be prosecuted for his efforts to overturn his 2020 election loss, despite a Supreme Court ruling in July that Trump has presumptive immunity for his official presidential acts.

"When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office," Smith wrote.

"With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost," he wrote.

Judge Tanya Chutkan unsealed the filing less than five weeks before Trump will face Vice President Kamala Harris, the Democratic nominee, in the 2024 presidential election.

If Trump wins the election, he will have the power to order the Department of Justice to dismiss the criminal case against him.

Trump has argued that his attempts to undo President Joe Biden's electoral victory amounted to official presidential conduct, which was shielded from prosecution by the high court's immunity ruling.

"Not so," Smith wrote in Wednesday's filing. "Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one."

Trump "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," Smith wrote. He noted that the president has "no official role" in that function.

Smith urged Chutkan to rule that Trump "must stand trial for his private crimes as would any other citizen."

In response to the filing, Trump campaign spokesman Steven Cheung suggested, without evidence, that the timing of the release amounted to a deliberate effort to distract from Democratic vice presidential nominee Tim Walz's debate performance Tuesday night.

"Deranged Jack Smith and Washington DC Radical Democrats are hell-bent on weaponizing the Justice Department in an attempt to cling to power," Cheung said, adding that the election case against Trump "should be dismissed entirely."

Wednesday's expansive filing laid out in detail the arguments and evidence that federal prosecutors will present if the case ever goes to trial.

Some of that evidence does not appear to have been previously reported.

For example, the filing said that on Nov. 4, 2020, a campaign employee and Trump "co-conspirator" tried to sow confusion about the vote count that was underway at the TCF Center in Detroit, which "looked unfavorable to" Trump.

The filing said that when the co-conspirator was told that a batch of votes appeared to be heavily in favor of Biden, he replied, "find a reason it isn't," so as to "give me options to file litigation," adding, "even if it [is]."

When a colleague suggested to the co-conspirator that this could risk creating a scene reminiscent of the so-called "Brooks Brothers Riot" — an infamous bid to interfere with Florida's vote-counting effort in the 2000 presidential election — the co-conspirator "responded, 'Make them riot' and 'Do it!!!,'" according to the filing.

The special counsel also wrote that then-Vice President Mike Pence tried to "gradually and gently" convince Trump to accept his election loss, providing numerous examples.

On Nov. 7, 2020, as major news outlets called the race for Biden, Pence "tried to encourage" Trump to accept that the race was over, telling the president, "You took a dying political party and gave it a new lease on life," according to the filing.

And in a private lunch on Nov. 12, Pence offered Trump a potential way to save face politically and also wind down his challenges to the election results: "Don't concede but recognize [the] process is over," Pence told his boss, according to the filing.

Four days later at another private lunch, Pence tried to urge Trump to accept the election results and to run again in 2024, the filing said.

Trump replied, "I don't know, 2024 is so far off," according to the filing.

On Dec. 21, Pence "encouraged" Trump "not to look at the election 'as a loss -- just an intermission,'" the filing said.

Later that day, Trump asked Pence in the Oval Office, "What do you think we should do?"

Pence replied that if all options were exhausted and "we still came up short," then Trump "should 'take a bow,'" according to the filing.

Former New York Mayor Rudy Giuliani, a leading promoter of false voter fraud claims after the 2020 election, features prominently in the special counsel's filing.

As Trump pursued long-shot lawsuits seeking to overturn his losses in key states, he "sidelined" campaign staff who told him the truth about his defeat. Instead, he increasingly turned to Giuliani, "a private attorney who was willing to falsely claim victory," the special counsel alleged.

Giuliani, who is referred to in the redacted filing as "CC1," short for co-conspirator #1, occasionally made claims so patently false that they were openly rebuked by his fellow Republicans.

For instance, after Giuliani falsely claimed that Pennsylvania had collected far more completed absentee ballots than it had mailed out, Justin Riemer, then-chief counsel of the Republican National Committee, tweeted about Giuliani's claim, writing, "This is not true."

In a private email, Riemer expressed concern that what Giuliani and others "are doing is a joke and they are getting laughed out of court," according to the filing.

The special counsel alleged that after Giuliani learned of Riemer's tweet and email, the former New York City mayor called Riemer and left him a threatening voicemail.

"I really do need an explanation for what you said today because if there isn't a good one, you should resign. Got it? So call me or Ill call the boss and get you to resign. Call me. It'd be better for you if you do," Giuliani allegedly said.

Giuliani also urged then-RNC chairwoman Ronna McDaniel to fire Riemer, the filing alleged.

Riemer was subsequently "relieved of his duties," the special counsel wrote.

Giuliani spokesman Ted Goodman called Wednesday's filing "blatant election interference by Jack Smith, a person with a long track record of weaponizing the law for political gain."

"This is the same prosecutor who wrongfully went after Virginia Gov. Bob McDonnell, in a case that was unanimously reversed by the U.S. Supreme Court. In that case, the Supreme Court rebuked Jack Smith, warning about 'the uncontrolled power of criminal prosecutors," Goodman said in a statement to CNBC.