New details on Trump and January 6th

Plus: Liz Cheney x Kamala Harris.

Good morning! It’s Thursday, October 3, 2024. Election Day is 33 days away.

Today is the one-year anniversary of Kevin McCarthy being ousted as speaker of the House. Not much has changed in the House since then, NOTUS reports.

In an alternate timeline — one with a different Supreme Court — Donald Trump might be on trial in Washington, D.C., right now, spending the final days of the 2024 election defending himself against charges that he acted illegally in trying to overturn his 2020 loss.

Instead, with Trump and Special Counsel Jack Smith stuck in a protracted dispute over presidential immunity, any new revelations in the January 6th case ahead of Election Day are likely to come from court filings, not witness testimony.

After the Supreme Court’s July ruling, it has been left to Judge Tanya Chutkan to take the first stab at deciding which parts of Smith’s indictment detail private actions (for which the court said no presidential immunity exists) and which parts detail official actions (for which the court said presidents have absolute immunity if the actions address “core” aspects of the job and a presumption of immunity otherwise).

No matter what Chutkan ultimately decides, her ruling is all but certain to be appealed to the Supreme Court, giving the nine justices the final say.

Still, it has to go through Chutkan first — which is why Smith’s team filed a 165-page motion last week, laying out how he believes the Obama-appointed district judge should handle the immunity ruling. Over Trump’s objections, Chutkan unsealed a redacted version of the filing on Wednesday.

In the motion, the prosecutors argue that what is left of the indictment — Smith filed a revised version in August to strip out obviously official actions, such as Trump’s interactions with Justice Department officials — addresses only unofficial acts “Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one,” they wrote.

The filing also contains several new details about Trump’s actions before and on January 6th, giving a preview of the sort of evidence Smith might use in trial (if one is ever held):

• As Trump watched the events of January 6th unfold on television in his private dining room, an aide rushed in to reassure him that actions were being taken to protect then-Vice President Mike Pence. “The defendant looked at him and said only, ‘So what?’” the filing said.

• The filing also lays out Pence’s repeated efforts leading up to January 6th to “gradually and gently” persuade Trump to accept the results of the election. Pence encouraged Trump to view the outcome not as a loss, but as an “intermission” ahead of a possible 2024 comeback. “I don’t know, 2024 is so far off,” Trump responded, according to Smith’s team.

• Smith makes clear that he has insight into Trump’s phone usage throughout January 6th, which an FBI forensic examiner would be able to testify about at trial. “The phone’s activity logs show that the defendant was using his phone, and in particular, using the Twitter application, consistently throughout the day after he returned from the Ellipse speech,” the prosecutors wrote.

• At several points, the filing suggests that Trump was told he did not win the election — and even that he, at least, acknowledged that as a possibility. Smith wrote that a White House official was prepared to testify at trial that they overheard Trump telling Ivanka Trump and Jared Kushner, “It doesn’t matter if you won or lost the election. You still have to fight like hell.”

• In one striking scene, two unnamed Trump campaign employees are discussing challenging the election results on November 4, 2020. One employee warns that doing so could lead to a repeat of the “Brooks Brothers riot,” the demonstration held by Republican staffers during the 2000 Florida recount. (Accounts differ as to whether the incident included violence.) “Make them riot,” the other Trump campaign aide responded, two months before the Capitol breach.

Trump has until October 17 to respond to the filing in court.

“The release of this falsehood-ridden, Unconstitutional, J6 brief immediately following Tim Walz’s disastrous Debate performance, and 33 days before the Most Important Election in the History of our Country, is another obvious attempt by the Harris-Biden regime to undermine and Weaponize American Democracy, and INTERFERE IN THE 2024 PRESIDENTIAL ELECTION,” a Trump campaign spokesperson said on Wednesday, in a message the ex-president re-posted on Truth Social.

There is no evidence that either President Biden or Vice President Harris have had any involvement in Smith’s prosecution.

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More news to know

• AP: Israel extends evacuation warnings in Lebanon, signaling a wider offensive

• NPR: Hurricane Helene upends election planning in some parts of North Carolina

• The Guardian: Melania Trump passionately defends abortion rights in upcoming memoir

• Politico: Trump says he will remove TPS and deport Haitian migrants in Springfield

• WaPo: Rep. Jim Jordan angles to lead a possible House Republican minority

• NYT: Trump Promised to Release His Medical Records. He Still Won’t Do It.

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The day ahead

All times Eastern.

• President Biden will travel to Florida and Georgia, where he will tour areas impacted by Hurricane Helene and receive a briefing on the response.

• VP Harris will hold a campaign event in Ripon, Wisconsin — the birthplace of the Republican Party — with former Wyoming congressman Liz Cheney, their first joint event since the prominent Republican endorsed Harris’ campaign. Watch at 6 p.m.

• Former President Trump will hold a campaign rally in Saginaw, Michigan. Watch at 3 p.m.

• Gov. Tim Walz and Sen. JD Vance have no events scheduled.

• The House and Senate are on recess.