Jack Smith's new filing on Donald Trump.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Reader essay.

Every week, we publish an essay from a reader in our Sunday newsletter, a weekly edition filled with bonus features that goes out to our paid subscribers. This past Sunday, we published a challenging piece from an Evangelical reader that managed to make a potentially explosive comparison in a measured and even-handed way. In case you missed it, we highly recommend Joshua Majeski’s “Power and Piety,” which you can read in full here (paywall).

Quick hits.

1. The Georgia Supreme Court reinstated the state’s six-week abortion ban, overruling a decision from a trial court judge last week that found the law to be unconstitutional. (The ruling)
2. The Supreme Court will hear a challenge to the Biden administration's 2022 regulation on untraceable firearms, or “ghost guns.” (The case)
3. New York City Deputy Mayor Philip Banks (D) and two other aides to Mayor Eric Adams (D) resigned on Monday. Banks is the sixth senior official to leave the Adams administration in the past month as the mayor faces a five-count federal corruption indictment. (The resignations)
4. The Biden administration imposed sanctions on members of an international fundraising network that it says is playing a key role in funding Hamas. (The sanctions)
5. Ukraine’s military says it struck a large oil terminal used to support the Russian army. (The strikes)

Today's topic.

The recent Jack Smith filing. On Wednesday, U.S. District Judge Tanya Chutkan unsealed special counsel Jack Smith’s latest filing in United States v. Donald Trump, concerning alleged criminal actions committed by the former president following his defeat in the 2020 presidential election. In the filing, Smith argues that Trump "resorted to crimes" to remain in power and was acting outside the scope of his official duties as president when he pressured state officials and then-Vice President Mike Pence to overturn his 2020 election loss.

Pretrial hearings for the case have been scheduled up until October 29, pushing off a trial until after Election Day and likely making the 165-page filing the Justice Department’s last chance to detail their case against Trump to the public before November 5. The filing itself was controversial, as prosecutors typically withhold their evidence before trial. However, Judge Chutkan allowed Smith to submit a lengthy filing laying out his case, even after calling it "procedurally irregular." 

Earlier this year, the Supreme Court ruled that presidents have broad immunity for official acts as one of their core constitutional powers.

You can read our coverage of the case’s progression here.

In the new filing, Smith's team argues that Trump’s “scheme was fundamentally a private one,” making it eligible for prosecution. The brief was primarily composed of previously reported conduct made public through news articles and a Congressional investigation into January 6. However, the special counsel’s filing contained some new details.

In one passage, prosecutors allege that Trump responded to a White House aide telling him that Vice President Mike Pence had been taken to a secure location during the Capitol riots with, "So what?" Additionally, the brief details a White House staffer hearing Trump tell family members on Air Force One that it "doesn't matter if you won or lost the election, you still have to fight like hell."

Prosecutors also alleged that a private political advisor, whose name is redacted in the filings, told a gathering of supporters before the election that Trump was planning to declare victory before the night was over. Separately, Trump personally hounded Pence to reject the certification of the election, allegedly telling him “when there’s fraud the rules get changed” and encouraging Pence to “be bold.” 

Finally, Smith and his team said they unearthed emails showing campaign staffers acknowledging the team was spreading falsehoods about the election. “When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0-32 on our cases,” one campaign adviser said in an email, according to Smith. “I’ll obviously hustle to help on all fronts, but it’s tough to own any of this when it’s all just conspiracy shit beamed down from the mothership.”

Steven Cheung, Trump's spokesperson, called the "entire case a partisan, Unconstitutional Witch Hunt that should be dismissed entirely, together with ALL of the remaining Democrat hoaxes," adding that the latest filing was riddled with falsehoods.

Today, we’re going to break down some views from the right and left about the new filing, then my take.

What the right is saying.

• The right suggests the filing is legally flawed and politically motivated.
• Some criticize the media’s approach to covering the case. 
• Others say Smith’s revised indictment is appropriate in light of the Supreme Court’s immunity ruling.

In National Review, Andrew C. McCarthy wrote about “Jack Smith’s damning, political, and legally flawed J6 filing against Trump.”

“The submission is thorough and damning. No surprise there: Smith’s indictment of Trump in the so-called January 6 case was thorough and damning… A prosecutor’s case, like a football team’s game plan, never looks better than it does on paper, before it experiences first contact with the opposing team,” McCarthy said. “If Smith’s proffer were a real legal exercise, Judge Tanya Chutkan might well have kept the evidence sealed… Chutkan has not appended Smith’s submission with any of those fundamental due-process protections. She has just released it to the press — the opposite of what a judge concerned about the jury pool and the defendant’s fair-trial rights would do. 

“But again, this is not a legal exercise, it’s a political one,” McCarthy wrote. “The point of Smith’s tome, and the publication of it by the Obama-appointed Chutkan, is to get the J6 evidence, chapter and verse, into the hands of the media–Democrat complex and the Harris campaign. Waiting was not an option. Smith’s original plan, with Chutkan’s cooperation on timing, was to gift Democrats with a trial and conviction in the campaign stretch-run. That became impossible, so the proffer is the best he can do.”

In The Federalist, M.D. Kittle argued the filing is solely “designed to generate headlines before [the] election.”

“As October surprises go, Wednesday’s redacted release wasn’t much of a surprise. Smith’s ‘brief’ asserting that Trump as president was not entitled to immunity and basic constitutional rights was ‘highly anticipated’ by the vultures in corporate media and is, as expected, loaded with dubious legal claims,” Kittle said. “But making it public on Oct. 2, as absentee ballots go out across the country, was designed for maximum political damage to a Republican presidential candidate who has survived everything — including a bullet — that the left has fired at him.”

“As expected, the accomplice media gobbled up Smith’s motion for immunity determinations, dutifully pushing the Democratic National Committee’s talking points that Trump is a threat to democracy,” Kittle wrote. “By releasing the political prosecution docs now, Democrats and their friends in corporate media will have the next few weeks to further paint their anti-democracy narrative that the Republican Party’s presidential candidate should be in prison, not on the ballot.”

In The Hill, Alan Charles Raul said “Jack Smith is prosecuting candidate Trump, not President Trump.”

“In the case of the president, it can be challenging to draw the distinction because most of his or her activity will be mixed — there will be a combination of official and political motives,” Raul wrote. “The ‘political’ category applies precisely to Trump’s Jan. 6 efforts to overturn the election. The facts alleged in the special counsel’s superseding indictment concern the former president’s campaign to have himself deemed the country’s reelected president — by hook or by crook… It was all quintessentially political because the goal of the activity was to be declared the winner of an election.”

“Judge Chutkan now, like the Supreme Court in the census case, need not be naïve. While the court’s near blanket immunity for presidents was improvidently granted, Jack Smith’s indictment concerns ‘entirely political’ conduct. It should easily pass muster under the narrow legal accountability the court preserved for presidents,” Raul said. “When a Chutkan decision against Trump is ultimately appealed to the court, one hopes the justices may avail themselves of the opportunity to rein in immunity and assure a sterner dose of constitutional checks and balances to the most powerful person in the world, the U.S. president.”

What the left is saying.

• The left mostly views the new filing as further proof of Trump’s election interference. 
• Some push back on the right’s claim that the indictment is a political maneuver.
• Others say the timing of the filing’s release is inappropriate.

The Washington Post editorial board said “Jack Smith has dubious timing — but a good case.”

“This curious timing is yet another reminder that little about this case has been typical — the charges, the defendant, the stakes for the country. Mr. Trump is unique among defendants in that he could soon have the power to end his own prosecution, by winning the White House and ordering the Justice Department to terminate it,” the board wrote. “True, Judge Chutkan had asked both Mr. Smith and Mr. Trump to submit arguments about the case’s future, in light of the Supreme Court’s ruling. Yet Mr. Smith’s actions also ensured Americans have more case materials available to them shortly before they vote — a questionable call for a prosecutor to make, even considering the case’s unusual character.”

“The record is more appalling than ever. But, because of the Supreme Court’s ruling, Mr. Smith must argue that Mr. Trump took his actions on and around Jan. 6 in his personal capacity, as a citizen and candidate, not in his public capacity as president. The new brief suggests Mr. Smith can do so,” the board said. “Voters will have to confront the unpleasant yet undeniable truths about Mr. Trump’s record and character, revealed once again in black and white.”

In MSNBC, Hayes Brown suggested “Jack Smith's immunity filing is no 'Comey letter.’”

“In October 2016, FBI Director James Comey threw a bombshell into the presidential election… When confronted with his own wrongdoing, [Trump] instinctively attempts to claim that he is the victim of an identical transgression. But it’s still worth unpacking the ways Smith’s 167-page filing differs from Comey’s one-page missive and the wildly different circumstances surrounding the two,” Brown wrote. “Comey’s letter was, at best, meant to protect him from scrutiny. He’d previously testified that an investigation into Democratic nominee Hillary Clinton’s use of a private email server while she was secretary of state had been closed.”

“Smith, whose filing is part of an ongoing criminal case that is making its way to trial, had no control over the timing of the decision to make his document public — that was Chutkan’s choice. And the judge has made it clear that the election is of little concern to her as she attempts to get the case back on track after months of delay,” Brown said. “Finally, we must all keep in mind that the timing of this is as we’re only this close to Election Day because of Trump’s motions that delayed things. If Smith had his druthers, he’d have presented his case to a jury more than six months ago.”

In New York Magazine, Elie Honig called the filing an “October cheap shot.”

“Judge Tanya Chutkan — who suddenly claims not to care about the impending election despite her earlier efforts to expedite the case to get it in before the very same election, which got her reversed and chastised by the Supreme Court — duly complied with Smith’s wishes,” Honig wrote. “There are two headlines here. The immediate takeaway lies in the revelations contained in Smith’s oversize brief… The larger, if less obvious, headline is that Smith has essentially abandoned any pretense; he’ll bend any rule, switch up on any practice — so long as he gets to chip away at Trump’s electoral prospects.”

“The way motions work — under the federal rules, and consistent with common sense — is that the prosecutor files an indictment; the defense makes motions… Not here. Not when there’s an election right around the corner and dwindling opportunity to make a dent. So Smith turned the well-established, thoroughly uncontroversial rules of criminal procedure on their head and asked Judge Chutkan for permission to file first,” Honig said. “It’s ironic. Smith has complained throughout the case that Trump’s words might taint the jury pool… Smith now uses grand-jury testimony (which ordinarily remains secret at this stage) and drafts up a tidy 165-page document that contains all manner of damaging statements about a criminal defendant.”

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

• You’re not going to hear me defend Trump for his actions before or after January 6.
• However, what Jack Smith is doing here is plainly political, and dishonorable.
• Smith and Chutkan have now made the story about their own behavior.

The last thing you’ll find me doing is defending Donald Trump for his attempts to overturn the 2020 election and his actions on January 6.

In my eyes, despite all the good and bad from his presidency, those actions will always mark Trump with a scarlet letter in the history books. Even worse, Trump has convinced two-thirds of Republicans that the election was stolen, too; some of those people are our readers (whom I’m constantly trying to convince are being misled). The election was not stolen, was not rigged, was not fundamentally unfair, and all the claims of election fraud I’ve investigated have turned out to be total bunk (and yes, that includes Dinesh D’Souza’s cash grab “2,000 Mules”). 

Worse still, Trump is once again preemptively claiming this year’s election is being stolen or is otherwise fraudulent. I think we can and should expect him to refuse to concede if he loses again, which is a mind-boggling and infuriating prospect that will only further divide the country. I’ve also made it clear I think the Supreme Court erred in ruling that presidents have criminal immunity for official acts, and I — along with a majority of Americans — would have liked to see this case go to trial so we could have gotten more information about what Trump did and didn’t do, as well as a definitive ruling on the legality of his actions.

All that said, it's imperative to call out what Jack Smith is doing here. 

In 2016, many political and legal pundits rightly called out FBI Director James Comey for inserting himself into the election with an unusual announcement that an investigation into Hillary Clinton had been reopened, only to attempt to clear her of criminal wrongdoing days later. Some forecasters still believe Comey's actions cost Clinton the election, and the story exemplified every political party's dreaded "October surprise." 

Now, Smith is trying to foist his own October surprise onto the country. I'm going to quote heavily from Elie Honig here (cited under "What the left is saying"), a former federal prosecutor who made a name for himself as a pundit by regularly excoriating Trump's former Attorney General Bill Barr (he wrote a whole book arguing that Barr abused his power). Although we quoted Honig above, I want to give him more space here because it is important for people with liberal biases to hear this from a well credentialed pundit on the left:

"The larger, if less obvious, headline is that Smith has essentially abandoned any pretense; he’ll bend any rule, switch up on any practice — so long as he gets to chip away at Trump’s electoral prospects. At this point, there’s simply no defending Smith’s conduct on any sort of principled or institutional basis. ‘But we need to know this stuff before we vote!’ is a nice bumper sticker, but it’s neither a response to nor an excuse for Smith’s unprincipled, norm-breaking practice. (It also overlooks the fact that the Justice Department bears responsibility for taking over two and a half years to indict in the first place.)"

This is a damning passage, and Honig’s entire piece (where he lays out how unusual and unethical Smith’s process has been) is worth reading. And I think it's all exactly right. Smith is now walking proof of the worst suspicions conservative voters have about Biden’s Justice Department — and Judge Chutkan, who allowed Smith to file a 180-page public brief (almost four times longer than the normal maximum), has damaged her own reputation by allowing Smith to land a few punches weeks before an election. She appears to be the liberal version of Judge Aileen Cannon, the Trump-appointed judge overseeing his classified documents case in Florida. 

The entire affair is a troubling portrait of Smith and Chutkan, two people with immense power who appear to be playing political games.

Of course, Smith’s and Chutkan's actions are distracting from what should be the story: Trump's behavior in the wake of the 2020 election. His disregard for the safety of his vice president, his plans to claim he won on the night of the election before the race had been called, his understanding that legal advisors like Sidney Powell were pushing "crazy" conspiracies, the fact his advisers knew he was spreading nonsense but tried to publicly defend it anyway — this is all worth re-hashing even four years later.

A former president attempted to use his power in office to pressure state and federal politicians to keep him in office after he lost an election.

Plenty of people on the left will note that we’re only getting these details through this unusual brief instead of through trial proceedings because the Supreme Court threw this case back to Chutkan by granting Trump partial immunity. However, whether you like it or not, that’s how the court ruled; and if Smith wanted to mitigate that risk, he could have brought these charges three years ago. 

With this filing, Smith has reminded us that Trump is not the only one whose character is in question here. Smith and the DOJ have made enough mistakes that they are now stooping to the very thing they have promised over and over to avoid: old-fashioned politicking. The special counsel wants his filing to be the final thing we remember about Trump before election day; but it could also be the final thing we remember about how he handled one of the most sensitive cases in U.S. history — and it does not reflect well on his record.

Take the survey: What do you think of Jack Smith’s recent filing? Let us know!

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Your questions, answered.

Q: Your editorial about misinformation being spread during the Helene disaster proves that you are NO neutral party or moderate that you always claim to be. You insult conservatives & conservative publications while praising the current "administration" & incompetent FEMA for doing a good job, which is untrue of course. Plus you also allow a RIDICULOUS claim about climate change being involved in this mess to be perpetuated? How do you respond to this, & are you honest enough to admit you're NO moderate or neutral party?

— Andrew from Fort Lauderdale, FL

Tangle: Thanks for the question — since our edition on the Hurricane Helene disaster relief, I’ve been getting some version of this a lot, either through social media replies, direct emails, or our question form. So I do appreciate the direct challenge for giving me the opportunity to talk about my perspective a little more.

First of all, I don’t play for any team in politics, and my whole role in the media ecosystem is to thoroughly read up on one topic a day, present all the best arguments that I can find, and then let you know what I think as just one more voice. Sometimes, that means I see merits in both sides (like today). Sometimes, I think they’re both getting it wrong (like on the “No Tax on Tips” policy). And other times, I’m strongly opinionated about an issue (like the Hurricane Helene response). I don’t promise to be neutral or opinionated; I promise to be transparent and honest about my opinions as a political moderate. I get accused of being “left” or “right” literally every single day, almost always by people accusing me of being the opposite of whatever they are.

Second, I don’t think it’s accurate to say I was “insulting conservatives” and “praising the current administration” here. I pointed out that there were conservative pundits who were spreading misinformation and lies, and I thought I made that case pretty well. I told you exactly what they were saying, then I told you exactly how I knew they were wrong. If any of my criticisms were unfair or inaccurate, I’m still waiting for one person to tell me that; but if you want to jump to defend those pundits just because they're conservative, maybe that doesn’t say a whole lot about me. 

Interestingly — and I really can’t emphasize this enough — the overwhelming response I got from readers in North Carolina was “thank you.” Do their voices matter less than online pundits? And what about local North Carolina Republicans, who are pleading with people to stop spreading lies — how does my writing insult those conservatives?

Third, I actually didn’t mention anything about climate change in “My take,” so this is just wrong. We included that position from left-leaning authors, which is part of what we do every day. That being said, it’s certainly not a ridiculous thing to say — warming oceans and coastal erosion can create more destructive storms. This really isn’t up for dispute, and if you want to read more about climate change, we wrote a big piece explaining the theory here.

Finally, and as I wrote, I am not passing judgment on FEMA yet. My point was that FEMA was getting criticized before they even had a chance to respond, especially considering local and state agencies are always first on the scene in disasters. I’m sure FEMA could have done better, and we’ll learn details about the federal response over time. But it’s worth noting Southern governors (including yours) are saying they’ve gotten everything they’ve asked for.

There are a lot of people in North Carolina still without food and water or help, and I’ve heard from friends in Asheville who are very upset with the relief response. I’m not denying that. My frustration was with preemptive claims that the federal government “wasn’t doing anything” or didn’t care if Republicans died.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

Viktor Bout, the convicted Russian arms dealer who was returned to Russia in a 2022 prisoner swap for American basketball player Brittany Griner, is back in the weapons trade, according to a report from The Wall Street Journal. Since returning to Russia, Bout has joined a pro-Kremlin far-right party and won a seat in a local assembly. Then in August, he reportedly met with members of Yemen’s Iran-backed Houthi militant group to broker the sale of $10 million worth of automatic weapons. Bout denies that he helped facilitate the deal, but a European security official and other knowledgeable sources told The Journal that Bout met with two Houthi emissaries in Moscow and arranged at least two shipments of AK-74 rifles to the U.S.-designated terrorist group. The Wall Street Journal has the story. 

Numbers.

• 434. The number of days since Special Counsel Jack Smith’s original indictment of former President Donald Trump in the 2020 election interference case.
• 27. The number of days until Election Day.
• 18. The number of times the word “private” appears in Smith’s revised indictment. 
• 59. The number of times the word “official” appears in Smith’s revised indictment. 
• 57%. The percentage of Americans who say they are confident that the votes for president will be accurately cast and counted in this year’s election, according to a September 2024 Gallup poll.
• 66%. The percentage of Americans who said they were confident that the votes for president would be accurately cast and counted ahead of the 2016 election.
• 84%. The percentage of Democrats who say they are confident that the votes for president will be accurately cast and counted in the 2024 election.
• 28%. The percentage of Republicans who say they are confident that the votes for president will be accurately cast and counted in the 2024 election.

The extras.

• One year ago today we had just written a short Friday story about an encounter between Isaac and retired journalist Lew Irwin.
• The most clicked link in yesterday’s newsletter was the path and strength of Hurricane Milton.
• Nothing to do with politics: The time the U.S. failed to sink its own aircraft carrier.
• Yesterday’s survey: 1,270 readers responded to our survey asking who is most responsible for the ongoing violence in the Middle East with readers blaming Hamas the most. “How can there ever be peace if Iranian proxies continue to lob missiles and rockets indiscriminately into Israel? Sadly, the only solution I can see is that they stop or be destroyed,” one respondent said.

Have a nice day.

Levi, a student at Engelhard Elementary School in Kentucky, usually has a big smile on his face when he gets on the school bus each morning. But one morning, as he sat on the ground with a jacket on his head, his bright demeanor was dimmed. Larry Farrish Jr., Levi’s bus driver, learned that it was pajama day at school, but Levi didn’t have pajamas to wear. After finishing his route, Farrish Jr. purchased pajamas for Levi and brought them to the school. “When he got me the pajamas, I did a happy cry,” Levi said. Today has the story.

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