Former U.S. Attorney Joyce Vance says the new 9-page filing by Special Counsel Jack Smith — the 401(b) notice submitted in DC District Court — reveals Smith “hedging his bets” on the evidence the prosecution can present.
In the 9-page filing, Smith tells the court that all evidence he plans to present is “intrinsic” to the crimes Trump is charged with in the indictment.
The hedge Vance references shows Smith claiming that, in the event there is ambiguity about the direct application of evidence to the specific crimes charged, “any evidence the court might deem ‘extrinsic’ is still admissible under 404(b) to prove ‘motive, intent, preparation, knowledge, absence of mistake, and common plan.’”
Smith’s hedge here stakes out an inclusive interpretation of what’s “intrinsic” evidence in the case and carves out room for admission of further “extrinsic” evidence. But it also, Vance says, takes care to help ensure another goal of the prosecution: “making sure that conviction gets affirmed on appeal.” That, she says, “is paramount in the larger scheme of things.”
In a heavily redacted section of the filing, the prosecution asserts that an unnamed Trump “Campaign Employee encouraged rioting and other methods of obstruction when he learned that the vote count was trending in favor of the defendant’s opponent.”
Vance points out that the “Campaign Employee” is referred to as an “agent” — indicating that in the prosecution’s view he was working at Trump’s behest.
Indicative of the broad scope of the prosecution’s “intrinsic” evidence approach are the six named categories under which Smith intends to present evidence, which it will do with “extensive advance notice.”
These are:
- Historical Evidence of Trump’s Consistent Plan of Baselessly Claiming Election Fraud
- Historical Evidence of Trump’s Plan to Refuse to Commit to a Peaceful Transition of Power
- Evidence of Trump and his unindicted Co-Conspirators’ Knowledge of the Unfavorable Election Results and Motive and Intent to Subvert Them
- Pre- and Post-Conspiracy Evidence Trump and his Co-Conspirators Suppressed Proof Their Fraud Claims Were False and Retaliated Against Officials Who Undermined Their Criminal Plans
- Pre- and Post-Conspiracy Evidence of Trump’s Public Attacks on Individuals, Encouragement of Violence, and Knowledge of the Foreseeable Consequences
- Post-Conspiracy Evidence of Trump’s Steadfast Support and Endorsement of Rioters
Smith’s inclusion of so much “Post-Conspiracy” evidence goes to comprehensively establishing Trump’s allegedly continuing attempts to subvert the election beyond January 6, 2021.
These sections lean heavily on Trump’s approbative public statements about the rioters, such as the Proud Boys, as recently as during campaign appearances in late 2023, as Trump seeks the GOP presidential nomination for a third time.
.jpg){kind=link}