Jack Smith’s trial team is getting ready to use Trump’s own words and his cell phone data against him in the DC coup plot trial before Judge Chutkan that is still scheduled for March 4th. But there is a surprise move by the Supreme Court that could help Trump and free hundreds of jailed insurrectionists, forcing Jack Smith to play 3 dimensional chess. Read on to learn more.


The trial team plans to use what Trump said and tweeted to show his intent to subvert American democracy and stay in power. To get this evidence in, the rules require the prosecution to ask Judge Chutkan to rule in advance that this evidence is admissible. Normally prior bad acts are not allowed into evidence.

Why is that?

In a criminal case, a defendant is tried only for crimes he is indicted for, therefore prior bad behavior or criminal acts should not be allowed to taint or poison the trier of fact’s (jury or judge’s) view of the defendant. That rule is codified in Rule 404 (b) of the Federal Rules of Evidence.

For example, if a man is being tried for battery in a barroom brawl, the prosecutor should not be able to bring in testimony about how the defendant also struck his wife in a fight they had last month. That testimony would not be admissible evidence that he engaged in THIS barroom fight. The idea is that to get a fair trial, the defendant shouldn’t be smeared by evidence from his past that could taint the way the jurors think about his character.

When I worked as a prosecutor, I knew that if I elicited any testimony from a witness of prior bad behavior of the defendant unconnected to the incident being tried, I would get an objection from the defense attorney. If it was a jury trial, I would need to go sidebar for a talk with the judge and defense counsel to explain why the testimony should be allowed in under some exception to Rule 404(b).

And there are important exceptions to this rule that the prosecution team will be arguing should apply to Donald Trump’s trial.

Federal Rule of Evidence 404(b) provides that prior act evidence “is not admissible to prove the character of a person in order to show action in conformity therewith.” Evidence of prior bad acts usually cannot be admitted at trial to show the defendant’s propensity to commit crimes similar to the offense in question. In other words, Rule 404(b) generally bars character evidence. Juries are not likely to afford the presumption of innocence to a known criminal. Nonetheless, there are several exceptions to Rule 404(b).

Evidence of prior bad acts may be admissible to show:

  • Motive
  • Opportunity
  • Intent
  • Preparation
  • Plan
  • Knowledge
  • Identity
  • Absence of mistake or accident

The amendment to Rule 404(b) adds a pretrial notice requirement in criminal cases and is intended to reduce surprise and promote early resolution on the issue of admissibility. 

In Trump’s upcoming trial before Judge Chutkan, these exceptions would also open the door to having clips of Trump’s prior comments made at rallies or interviews or over social media shown on a screen in the courtroom as evidence.

Most of what Trump said is already public knowledge but putting it all together creates a compelling case that Trump didn’t just come up with the Big Lie after he lost to Biden– he consistently lied and expressed doubt about the outcome of elections as early as the election Romney lost to Barack Obama in 2012.  The clips that the prosecution wants to play of what Trump said expose a pattern and practice Trump has had over many years of routinely injecting doubt about election results without reliance on facts. Trump has created cynicism about our electoral system for many years.

Trump generally uses fiction and feelings to get his followers to side with him. He makes things up but reports them as if they are fully vetted truths. Trump has been breaking down faith in our electoral system and open the door to conspiracy theories and the Big Lie for quite some time. This approach he takes is part of the autocrat’s playbook, routinely used by wannabe dictators to come to power and stay in power.


  1. Trump has often baselessly claimed there was election fraud in the past.
  2. Trump has often expressed a lack of commitment to the peaceful transfer of power in the past.
  3. Trump definitely knew he didn’t win the election in 2020 but, knowing that, he pressured officials to push the Big Lie that he had won.
  4. Trump suppressed proof that claims of fraud he was making were false and he retaliated against officials who didn’t go along with those false claims he was making.
  5. Trump encouraged violence and understood what the foreseeable result of his encouragement would be.
  6. Trump’s support, celebration and endorsement of the rioters on January 6th who were prosecuted and jailed continued after the riot and is evidence of his intent in that he knew and still knows of his ability to influence their actions- he is signaling that the law does not apply to these people who did what he wanted them to do which included breaking the law at his urging.


The government will argue that Trump’s own words and acts in the past shed light on the most important element of the crimes he has been charged with committing- namely, the element of intent, or mens rea. It is very likely that the judge will allow most of this testimony to come in under the exceptions to Rule 404(b).


This Jan 6coup plot trial is still on course to be the only criminal trial in which Trump is a defendant that is likely to be completed before the upcoming presidential election. The Supreme Court was asked on Monday, December 11th, by the prosecution team to hear oral argument on Judge Chutkan’s ruling denying presidential immunity. The decision calls for the Supreme Court to rule on presidential immunity, skipping over the appellate court to save time. The Supreme Court has responded quickly and is requiring Trump’s response by December 20th. Given the stakes of this election, the justices have every reason to make sure the American people know who they are voting for. It looks like the Court will quickly settle this immunity question. Trump’s arguments are baseless but this is a case of first impression that the Supreme Court needs to weigh in on.



This creates a complication for Jack Smith’s trial team but might turn out to ultimately help Smith’s prosecution of Trump to be rock solid.

The Supreme Court in a surprise move has said it will hear argument about the underlying charges brought by the Justice Department against hundreds of Trump insurrectionist followers.

The US Supreme Court added a new complication to the prosecution of Donald Trump for trying to overturn the 2020 presidential election, as the justices agreed to hear an appeal from a Jan. 6 Capitol riot defendant facing a related charge.

The justices said Wednesday they will decide whether Joseph Fischer can be charged under a 2002 law that grew out of the Enron Corp. collapse for obstructing an official proceeding. Prosecutors have also invoked that law against Trump, as well as in 300 other Capitol riot cases.

Supreme Court involvement could give Trump new grounds for arguing to push back his March 4 federal court trial in Washington until after the 2024 presidential election. 

Ultimately, a ruling favoring Fischer could upend two of the four counts Trump is facing in the case, one of four criminal prosecutions against him. The Supreme Court will hear arguments next year and probably rule by the end of June. (Bloomberg)

In short, Trump is charged with two counts that the Supreme Court could wipe out or undermine if they rule that the charges do not fit the crime.

The four charges rely on three criminal statutes: a count of conspiring to defraud the government, another of conspiring to disenfranchise voters, and two counts related to corruptly obstructing a congressional proceeding. (NYT)

All-in-all Jack Smith’s team charged Trump with three criminal conspiracies. The first is a conspiracy to defraud the US by impairing, obstructing and defeating a lawful federal function 18 USC 371. The second is a conspiracy to “corruptly obstruct and impede” the January 6th certification process 18 USC 1512(k). The third is a conspiracy against the right to vote and have one’s vote count 18 USC 241.

It is the second conspiracy that is at risk thanks to the Supreme Court’s intervention in Fischer.

Let’s look at how this could play out.


There is no reason yet for a delay of the March 4th trial. The Supreme Court can hear the Fischer case appeal and the January 6th trial of Trump could both proceed without any change. The Court’s ruling might ultimately help Jack Smith if the Court refines what is acceptable when “corruptly obstructing” is charged. But if the trial of Trump starts as planned on March 4th, it should finish before the Supreme Court’s ruling in Fischer comes down. That would mean Trump could be found guilty of two charges that the Supreme Court’s coming decision could possibly wipe out.

What could Smith do to avoid that?

Smith could ask the Court for an expedited ruling in the Fischer case. Perhaps the Court would comply, knowing the stakes involved in these matters. If the Court redefines what is acceptable when it comes to “corrupt obstruction” it could give Jack Smith the opportunity to recharge Trump to fit that new definition using a superseding indictment to fit those new requirements. That way if Trump is convicted, and the conviction is appealed to the Supreme Court it will already be a done deal that the Supremes will uphold it.

But this is a little like playing three dimensional chess.

Jack Smith might have other strategies he could use to continue to trial without delaying the March 4th start date and get a verdict that would not be subject to attack. Smith might drop those two charges with “corruptly obstructing” language and use a superseding indictment to charge something that is less controversial and not about to be subject to review by the Supreme Court with timing that would throw off the March 4th trial. I am not sure what those charges would be but there might be other good options to charge that fit what Trump did when he urged the crowd to go to the the capitol and attack it to interfere with ceremonial counting of the votes by VP Pence. If there were a superseding indictment charging different violations by Trump, there would be no cause for delay of trial from the Supreme Court’s review in Fischer.

Jack Smith might opt to simply drop the two charges related to that one conspiracy to corruptly obstruct a congressional proceeding, leaving the other two conspiracies intact: conspiring to defraud the government and conspiring to disenfranchise voters.  But that choice would eliminate important evidence which I am sure has already been developed to make a strong case against Trump.

It will be interesting to see how Smith plays this game of three dimensional chess.


Special Counsel Jack Smith plans to use data from the cell phone former President Trump used in his final weeks in office—including data revealing when Trump’s phone was “unlocked and the Twitter application was open” on Jan. 6, 2021, according to a new court filing. 

Smith, in a filing Monday, notified the court that he plans to call “expert” witnesses to testify in the trial against Trump (Fox News)

To use an expert at trial, Smith’s legal team must alert Judge Chutkan. This is why we are learning about the intention to use this expert now.

Data is always important for juries. Data doesn’t lie or shade the truth. The use of Trump’s own cell phone data will be convincing information for the jury about what Trump was up to in the 7 hours when the White House went “dark” during the attack on the Capitol. The call logs were not filled out. Trump was not responding to cries for help from congressional lawmakers and family members as the mob attacked calling for Pence to be hung for doing what was required by our laws and constitution.

If 12 average American citizens find Trump guilty before the 2024 election, that could affect millions of voters who are still persuadable and not living on Earth Two where Donald Trump can do no wrong.