Trick-Or-Lame: Jack Smith’s 'October Surprise’ Is Just Recycled 'Fake Electors’

For weeks rumors have been swirling that Special Counsel Jack Smith was going to unveil an 'October surprise’ against Donald Trump that would upend the 2024 election.

On Wednesday, Smith filed a 165-page 'oversized’ brief (normally limited to 45 pages) that turns out to be nothing more than Smith’s regurgitated 'fake elector’ claims after the Supreme Court ruled in July that Trump has „absolute immunity” for „actions within his conclusive and preclusive constitutional authority,” and „at least presumptive immunity” for all „official acts.”

The filing is one of the first steps for activist Judge Tanya Chutkan to determine what remains of the superseding indictment Smith filed after the Supreme Court’s decision.

„Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one,” reads the new brief.

„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.”

Writing in his 165-page screed about Trump’s legal efforts challenging the results of the 2020 contest, Smith claimed that Trump engaged in criminal activity by, among other alleged actions, “manufacturing fraudulent electoral votes in the targeted states.” This “plan,” the Merrick Garland appointee contended, was designed to “cause” Trump electors in these states to “sign and send to [Vice President Mike Pence], as President of the Senate, certifications in which they falsely represented themselves as legitimate electors who had cast electoral votes for [Trump].”

“Ultimately, the defendant and his co-conspirators would use these fraudulent electoral votes—mere pieces of paper without the lawful imprimatur of a state executive—to falsely claim that in his ministerial role presiding over the January 6 certification, Pence had the authority to choose the fraudulent slates over the legitimate ones, or to send the purportedly ‘dueling’ slates to the state legislatures for consideration anew,” the brief reads. -The Federalist

Yet, as The Federalist further notes, there’s nothing illegal about naming contingent electors.

In fact, the process conducted in contested states like Georgia parallels a similar endeavor that occurred during the 1960 presidential contest between Democrat John F. Kennedy and Republican Richard Nixon.

As The Federalist’s Margot Cleveland previously reported, Kennedy and Nixon electors cast their votes for their respective candidates when a disagreement arose over who won Hawaii’s electoral votes. While the state’s acting governor certified the election for Nixon initially, a legal challenge followed by a court decision ultimately resulted in Kennedy receiving the electoral votes. -The Federalist

What’s more, Democrats did the same thing in 2016 – with corporate media running „[a]rticles demanding state electors ‘prevent an irresponsible demagogue from taking office’ and overrule Americans to install Hillary Clinton as president” as part of their efforts to prevent Trump from taking office.

Trump described the filing as „falsehood-ridden” on Truth Social.

For a deeper legal analysis, the Epoch Times opines;

Smith’s motion purports to offer a “comprehensive account of the defendant’s criminal conduct” and requests that the court “determine that the defendant must stand trial for his private crimes as would any other citizen.” It states that under D.C. circuit precedent, Trump didn’t enjoy immunity in his capacity as someone seeking office.

Chutkan ruled against Lauro’s opposition to Smith filing his revised brief after the status conference. In the weeks leading up to the release of the brief, which Trump’s legal team described as “oversized,” meaning it was larger than usual, Lauro also accused Smith of pursuing a “fundamentally unfair” approach.

Trump’s legal team said “the Court should reject them until threshold legal questions identified by the Supreme Court are addressed and discovery is complete.”

In a Sept. 24 opinion, Chutkan disagreed and said she would grant the motion to file an oversized brief, saying that its “atypical sequence and size thus both serve the efficient resolution of immunity issues in this case.”

Smith’s brief maintained that none of the allegations in the indictment were protected by presidential immunity and that “at its core, the defendant’s scheme was a private one.”

However, it noted that the government could attempt to “rebut” that presumption and left Chutkan with the task of “[assessing] in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.”

Smith’s brief argued that “because the Executive Branch has no role in the certification proceeding … prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the Executive Branch’s authority or functioning.”

Smith said he intends to present evidence of conversations between Trump and Pence “in which they did not discuss Pence’s official responsibilities as President of the Senate and instead acted in their private capacities as running mates.”

It alleges that Trump’s team deceived many individuals, including elector nominees.

“Other electors who participated on the conspirators’ false assurances that their votes were only a contingency were later surprised to learn that they were used on January 6—and would not have agreed to participate if the conspirators had been truthful about their plan,” the briefing reads.

It states that Trump and his co-conspirators “lied to Pence, telling him that there was substantial election fraud and concealing their orchestration of the plan to manufacture fraudulent elector slates, as well as their intention to use the fake slates to attempt to obstruct the congressional certification.”

Trump, the brief alleges, “created the tinderbox that he purposely ignited on January 6.”

While Trump hasn’t been charged with inciting an insurrection, Smith’s brief accuses him of causing allegedly unlawful conduct on Jan. 6, 2021, and attempting to take advantage of the riot that ensued.

Smith’s filing alleges that Trump repeatedly said things he knew were lies, including allegedly fabricating information about noncitizens voting.

“At trial, the Government will introduce several instances of this pattern, in which the defendant and conspirators’ lies were proved by the fact that they made up figures from whole cloth,” Smith’s brief reads.

It states that one of Trump’s campaign advisers told him his claim of a large number of dead people voting in Georgia was false, as well as that a campaign attorney verified that the number was “around 12 and could not be outcome-determinative.”

One campaign employee, identified as “P5” in the brief, was allegedly contacted by a colleague at the TCF Center in Detroit who said that they thought a batch of votes was in former Vice President Joe Biden’s favor. According to the brief, the employee responded, “Find a reason it isn’t.”

“When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot, a violent effort to stop the vote count in Florida after the 2000 presidential election, P5 responded, ‘Make them riot’ and ‘Do it!!!’” Smith’s brief reads.

Trump also mocked his former attorney Sidney Powell in November, according to Smith’s filing. At one point, he placed her on mute, mocked her to others, “called her claims ‘crazy,’ and made a reference to a science fiction series Star Trek when describing her allegations.”

It states that Trump had agreed with someone identified as “P9” that Powell’s claims were “unreliable and should not be included in lawsuits.” Trump’s attorney Rudy Giuliani issued a statement on Nov. 22 distancing the campaign from Powell.

“She is not a member of the Trump Legal Team. She is not a lawyer for the President in his personal capacity,” Giuliani said.

Smith’s filing notes that in the following days, Trump promoted lawsuits filed by Powell.

“Nonetheless, the defendant continued to support and publicize [Powell’s] knowingly false claims,” the filing reads.

*  *  *
Trump’s legal team, meanwhile, has asked to file a similarly excessive response:

A bit of tit for tat:

Last night, Trump’s lawyers filed a motion asking Chutkan to allow them to file a similarly excessive response to Jack Smith’s behemoth of an “immunity motion” and to extend deadline for filing.

Trump’s response to Smith’s 165-page dossier is due Oct 17. pic.twitter.com/x4QTHgOWkT

— Julie Kelly 🇺🇸 (@julie_kelly2) October 3, 2024