Special counsel Jack Smith on Tuesday gave notice of some of the evidence he wants to use against Donald Trump at the upcoming election interference trial. It includes the former president’s “consistent plan of baselessly claiming election fraud,” the Justice Department wrote in a filing in Washington.
That history goes at least as far back as 2012, Smith’s team observed, citing a Trump tweet that made “baseless claims that voting machines had switched votes from then-candidate Romney to then-candidate Obama.”
Of course, the federal indictment, to which Trump has pleaded not guilty, doesn’t charge him with crimes going back that far. But Smith argued in his notice that Trump’s false claims about the 2012 and 2016 elections are admissible “because they demonstrate the defendant’s common plan of falsely blaming fraud for election results he does not like, as well as his motive, intent, and plan to obstruct the certification of the 2020 election results and illegitimately retain power.”
The government frames its argument that way due to the federal rules of evidence. Specifically, rule 404(b) says that evidence of “any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” However, the rule also says that such evidence can be used to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
That permitted-use language is found throughout Smith’s notice, which references a wide range of evidence the DOJ seeks to present at trial — set for March — including, among other things, historical evidence of Trump refusing to commit to a peaceful transfer of power and his support of Jan. 6 defendants whom he has suggested he’d pardon.
To be sure, just because the prosecution wants to present certain evidence doesn’t mean that U.S. District Judge Tanya Chutkan will allow it. The defense will likely raise objections including arguments that evidence is irrelevant or unduly prejudicial. The decision whether to admit evidence is up to the trial judge. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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