Special counsel to use Trump’s continued embrace of January 6 rioters against him at trial

(CNN) — Special counsel Jack Smith plans to present evidence at Donald Trump’s federal election subversion trial next year that his continued support for US Capitol rioters helps to show he intended to inspire violence on January 6, 2021, as part of a conspiracy he led to overturn the 2020 election.

In a court filing made public Tuesday, prosecutors point to Trump endorsing the Proud Boys during a 2020 presidential debate, saying he would pardon January 6 rioters and playing a recording of the National Anthem from imprisoned January 6 defendants at a campaign rally.

The filing goes further than the indictment against Trump by tying him directly to the rioters. Trump has been charged with conspiracy and obstruction. He has pleaded not guilty. The trial is scheduled for March in Washington, DC.

Prosecutors say the fact that Trump has financially supported – and celebrated – January 6 rioters establishes his motive and intent to commit federal crimes.

“The Government plans to introduce evidence at trial showing that in the years since the January 6 attack on the Capitol, the defendant has openly and proudly supported individuals who criminally participated in obstructing the congressional certification that day, including by suggesting that he will pardon them if re-elected, even as he has conceded that he had the ability to influence their actions during the attack,” prosecutors wrote.

“The defendant nonetheless has financially supported and celebrated these offenders – many of whom assaulted law enforcement on January 6 – by promoting and playing their recording of the National Anthem at political rallies and calling them ‘hostages,’” prosecutors added.

The evidentiary plans from the special counsel’s office, which must be approved by Judge Tanya Chutkan before the case goes to a jury, underscore how Trump’s public statements sympathizing with Capitol rioters – even in recent months – may be used against him in court.

Prosecutors also said they wanted to show the jury how Trump told the Proud Boys to “stand back and stand by” during the 2020 presidential debate after being asked to denounce them, and that later he said the group’s leader Enrique Tarrio was “treated horribly.” Tarrio has been convicted by a jury of seditious conspiracy.

“Evidence of the defendant’s post-conspiracy embrace of particularly violent and notorious rioters is admissible to establish the defendant’s motive and intent on January 6 – that he sent supporters, including groups like the Proud Boys, whom he knew were angry, and whom he now calls ‘patriots,’ to the Capitol to achieve the criminal objective of obstructing the congressional certification,” the prosecutors wrote.

CNN senior legal analyst Elie Honig told CNN’s Jake Tapper on “The Lead” that he anticipates that Chutkan will admit Trump’s comments supporting the January 6 rioters at trial, and suggested that it would be “powerful evidence.”

“Here we have hundreds of rioters, people who’ve been charged and convicted, and in many instances by their own guilty plea, who were on videotape committing crimes,” Honig said. “If Donald Trump’s publicly stated position is, and it has been: ‘I support them, I approve of what they did,’ then that is the prosecution’s intent argument here.”

Trump spokesman Steven Cheung said Smith is “deranged” and making up claims.

“Crooked Joe Biden, Deranged Jack Smith, and the rest of the Hacks and Thugs attempting to interfere in the 2024 election are getting so desperate to attack President Trump that they are perverting justice by trying to include claims that weren’t anywhere to be found in their dreamt up, fake indictment,” Cheung said in a statement.

Allegedly encouraged efforts to obstruct vote counting

Smith’s office laid out more details Tuesday about the alleged actions of Trump’s co-conspirators, including efforts to encourage rioting even before January 6 and to obstruct vote counts as Joe Biden pulled ahead in the 2020 vote tally.

Prosecutors laid out how they plan to present allegations about the unindicted co-conspirators at trial, including how they acted at Trump’s behest or on his behalf.

In one instance from November 4, 2020 – the day after Election Day – an unindicted co-conspirator identified only as a campaign employee “exchanged a series of text messages” with a campaign attorney stationed at the TCF Center in Detroit as votes were being counted.

“In the messages, the 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,” prosecutors wrote.

It is not clear who the campaign employee is, or whether they were one of the unindicted co-conspirators originally named in the indictment. Parts of the filing where prosecutors mention the Detroit episode are redacted.

Around the same time that the campaign employee sent those messages, prosecutors say in the filing, “an election official at the TCF Center observed that as Biden began to take the lead, a large number of untrained individuals flooded the TCF Center and began making illegitimate and aggressive challenges to the vote count.”

They continued: “Thereafter, Trump made repeated false claims regarding election activities at the TCF Center, when in truth his agent was seeking to cause a riot to disrupt the count.”

Smith’s team also said they would introduce evidence showing how Trump and his co-conspirators aggressively stifled “dissent against election fraud claims.”

In one such instance, prosecutors say Trump and an individual referred to as “Co-Conspirator 1” worked to “retaliate against the former Chief Counsel to the Republican National Committee (RNC) for publicly refuting the defendant and Co-Conspirator 1’s lies about election fraud.”

CNN has identified co-conspirator 1 as former Trump lawyer Rudy Giuliani.

Prosecutors also plan to present “evidence of continued retaliation against the Chief Counsel for publicly speaking the truth about the falsity of the defendant’s claims,” including by Trump himself. Part of that section describing the alleged retaliation also was redacted.

This story has been updated with additional details.

CNN’s Piper Hudspeth Blackburn contributed to this report.

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