Jack Smith’s new filing shows why January 6 should hurt Trump. But don’t expect a major public reaction.
What was the first October surprise of this election? Was it a strike by East Coast stevedores? Was it the threat of a hot war between Israel and Iran? Or was it the release of Special Counsel Jack Smith’s 165-page motion, unsealed yesterday, in the federal case against Donald Trump for subverting the 2020 presidential election?
The answer is almost certainly option D: none of the above. (And by the way, it’s only October 3.)
Smith’s filing seeks to convince Judge Tanya Chutkan that despite a Supreme Court decision this summer that grants presidents criminal immunity for actions taken in their official capacity, charges against Trump are still valid. It offers the most detailed portrait yet of Trump’s paperwork coup and his apparent malicious indifference to the sacking of the Capitol on January 6, 2021.
The filing doesn’t change anything about the existing understanding of what happened in the weeks between Election Day 2020 and the riot, but it adds new information. Perhaps the most appalling detail concerns Trump’s reaction to news that Vice President Mike Pence had been evacuated from the Capitol because of a threat to his life. According to Smith, the president simply looked at the aide who delivered the news and said, “So what?” Overall, the filing underscores how serious a threat to rule of law and American democracy Trump was and is.
Still, don’t expect a major public reaction. The idea of an “October surprise,” a late-breaking story that shifts the race, dates to the Ronald Reagan era and has been a durable one. The 2016 presidential race saw two contenders: the Access Hollywood tape of Trump boasting about sexual assaults, and the reopening of the investigation into Hillary Clinton’s emails, which may have actually swung the race. But like many vestiges of Reaganism, the October surprise looks like a thing of the past.
The signature characteristic of the 2024 presidential election is stasis. The only thing that has seriously shifted polling was Joe Biden’s withdrawal from the race and Kamala Harris’s replacement of him on the Democratic ticket. Nothing else—not Biden’s disastrous debate, not the first assassination attempt on Trump, not the second—has resulted in a major change in polls. In 538’s average of polls, Harris has fluctuated between 44.2 and 48.6 percent of the vote, mostly tracking gradually upward. That’s a narrow band compared with the polling averages of past candidates, but Trump has stayed between 43.3 and 45.8 percent—a range of just 2.5 percentage points.
This stability reflects the calcified state of American politics today: Americans are evenly divided politically and deeply polarized in their opinions. Voters have had extensive exposure to Trump and have generally made up their mind about him.
Horse-race realities aside, Smith’s filing shows why January 6 should hurt Trump. Smith is merely making accusations as a prosecutor, and the evidence has not been tried in court, but the document reinforces how egregious Trump’s alleged behavior was.
In Smith’s account, Trump knew he was lying about having won the 2020 election. He instigated the riot at the Capitol. And of course these actions had nothing to do with his official role as president. Smith also asserts that he has forensic and other evidence proving that Trump spent the afternoon of the riot doing exactly what many people assumed: sitting at the White House, watching Fox News and scrolling through Twitter, refusing for hours to do anything to pacify the rioters or defend the Capitol.
Trump’s flippant “So what?” response to the news that Pence had been evacuated wasn’t just coldhearted. It reveals that all he cared about was winning, no matter the facts or the cost. He didn’t care that Pence had eagerly debased himself to defend Trump throughout the administration, nor that Pence earnestly did not believe he had the power to throw the election to Trump. “You’re too honest,” Trump scoffed, according to Pence.
Trump had long made clear that his top priority is loyalty. He told FBI Director James Comey so in January 2017, and when Comey was insufficiently deferential, Trump fired him a few months later. During this week’s vice-presidential debate, the Democrat Tim Walz offered the Republican J. D. Vance a warning about how his running mate might treat him, given past experience. “When Mike Pence made that decision to certify that election, that’s why Mike Pence isn’t on this stage,” Walz said.
Pence failed the loyalty test, and he wasn’t just dead to Trump; Trump seemingly didn’t care whether he was dead. If this is how Trump treats a close ally, he leaves little doubt about how he’d treat anyone else. But to anyone who’s been paying attention these past several years, none of this information is at all surprising, and it won’t be remembered as an October surprise.
