In the early 17th century, the English jurist Edward Coke laid out a fundamental principle of any constitutional order: No man can be the judge in his own case. Donald Trump thinks he has found a work-around.

The Republican presidential candidate yesterday confirmed what many observers have long expected: If he is elected president in two weeks, he will fire Jack Smith, the Justice Department special counsel investigating him, right away. No man can be his own judge—but if he can dismiss the prosecutors, he doesn’t need to be.

“So you’re going to have a very tough choice the day after you take the oath of office, or maybe even the day that you take the oath of office,” the conservative radio host Hugh Hewitt, a Trump critic turned toady, asked him. “You’re either going to have to pardon yourself, or you’re going to have to fire Jack Smith. Which one will you do?”

“It’s so easy. I would fire him within two seconds,” Trump said. “He’ll be one of the first things addressed.”

[David A. Graham: The cases against Trump: a guide]

Smith has charged Trump with felonies in two cases: one related to attempts to subvert the 2020 election, and the other related to his hoarding of classified documents at Mar-a-Lago.

Although Trump claims to have many substantive policy goals for his second term, his comments about firing Smith reveal where his true priorities lie. Trump frequently dissembles, but this is a case of him speaking quite plainly about what he will do if he is elected. One major theme of his campaign has been the need to rescue himself from criminal accountability (or, in his view, persecution). Another has been the promise to exact retribution against his adversaries. Sacking Smith would serve both objectives. In another interview yesterday, Trump said that Smith “should be thrown out of the country.”

The scholarly consensus is that Trump has the legal right to fire Smith, and also that such a firing would be a deeply disturbing violation of the traditional semi-independence of the Justice Department. It would also be a scandalous affront to the idea that no citizen, including the president, is above the law. Even if it could be proved that Trump fired Smith with the express purpose of covering up his own crimes, Trump would almost certainly face no immediate repercussions. The Supreme Court this summer ruled that a president has criminal immunity for any official act, and firing Smith would surely qualify.

[Quinta Jurecic: The Supreme Court’s effort to save Trump is already working]

During the radio interview, Hewitt warned that removing Smith could get Trump impeached. It’s possible. Control of the House is up for grabs in November, and the Democrats might be slight favorites to prevail. But Trump’s first two impeachments made perfectly clear that Senate Republicans, whose votes would be required to convict, have no interest in constraining him. Some of them have already taken the public stance that the prosecutions against Trump are improper—even though no one questions that Trump took classified documents to Mar-a-Lago after he left office, no one has made a coherent defense that he had a right to possess them, and the details of Trump’s election subversion are well known and unchallenged.

These facts will be irrelevant if Trump can simply fire Smith. That’s the power he’s asking voters to grant him.

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The way Donald Trump talks about January 6 has evolved over time. Directly after the insurrection, he condemned the rioters, although he added that they were “very special.” For the next few years, he played around with different themes, implying that the protests were peaceful or that the people jailed for their actions that day were “political prisoners.”

But these descriptions are mild compared with the outrageous ways he’s been talking about January 6 in these weeks leading up to the election. Recently, he described the day as “love and peace” and upped the metaphor from political prisoners to Japanese Americans in internment camps during World War II. Why is he leaning so hard into the political revisionism? And what exactly should we be afraid of?

In this episode of Radio Atlantic, we talk with Representative Jamie Raskin of Maryland, who has a unique view of that day. Raskin explains what January 6, 2025, might look like and what is historically unique about Trump’s claims. And I ask Raskin the question I’ve been pondering: When might it be appropriate to let January 6 go?

The following is a transcript of the episode:

Hanna Rosin: Over the last many months, I’ve been thinking a lot about January 6 and about how memory can become a weapon in an election. Just the other day at an economic forum in Chicago, candidate Donald Trump described that day as “love and peace.” Love and peace! Can you imagine? You wanna hear some sounds of “love and peace” from that day?

[Noises from January 6]

Rioter: Start making a list. Put all those names down. And we start hunting them down one by one.

Person on bullhorn inside Congress: We had a disbursement of tear gas in the Rotunda. Please be advised there are masks under your seats. Please grab a mask.

Rosin: In the last couple of weeks of the campaign, Trump has been really digging into this bizarre sentiment. He compared the jailed rioters to Japanese Americans who were held in internment camps during World War II. He reposted a meme, saying January 6 would go down in history as the day the government staged a riot to cover up a fraudulent election. He said, “There were no guns down there. We didn’t have guns.”

Now, if you follow the work of Atlantic staff writer Anne Applebaum, who was on this show just last week, you know what it means when a leader starts to rewrite history in such a shameless way. It’s a thing that wannabe dictators do and have always done.

But January 6 has also been on my mind because, for the past year, I’ve been spending a lot of time with people who are hard at work doing what Trump has been doing—distorting our memories of that day.

It started like this: Last fall, my partner and I were walking our dogs, and we passed a car in our neighborhood that had a bunch of militia stickers in the back window and a huge j4j6, which means “Justice for January 6ers.” And at first, we had a nasty altercation with the person in the car. And then we decided to get to know her and her friends.

I’m Hanna Rosin. This is Radio Atlantic. If you want to know how that attempt to get to know our neighbors worked out, you’ll have to listen to the podcast series we made about it. It’s called We Live Here Now.

This episode is about the bigger picture. We, in the U.S., have not had a lot of experience with this kind of real-time memory distortion. And there’s only one person I want to talk to about how that might play out in this upcoming election: Maryland Congressman Jamie Raskin, who was a member of Congress’s January 6 committee, and his memories of that day are more potent than most people’s. Raskin’s son, Tommy, had died by suicide about a week before, and in the months of sleepless nights that followed Raskin wrote a book called Unthinkable: Trauma, Truth, and the Trials of American Democracy, which interweaves his son’s suffering with the nation’s suffering, which he believes drove thousands of people to the Capitol that day.

I started by asking Raskin what was foremost on my mind, which is what we should expect this coming January 6, 2025, which is when Congress will certify the next election. Here’s our conversation.

Jamie Raskin: I mean, I’ve been to Arizona, Texas, Nevada, New Mexico, California, Colorado—and everybody is asking about January 6 and whether we will see a repeat.

But we will not see an exact repeat of January 6, 2021. For one thing, Donald Trump’s not president. Joe Biden’s president, which means, if you had a similar scenario unfolding, the National Guard would be there. Joe Biden would not be eating hamburgers and french fries and watching it on TV like an all-pro-wrestling match.

Rosin: And saying, So what?

Raskin: And saying, So what? And in general, we are physically fortified in a way we weren’t. We will have nonscalable fencing, and we’ll be ready for violence like that. But fundamentally, what was January 6, 2021? It was a certification crisis. It was an attempt to block the receipt of Electoral College votes in the so-called certificates of ascertainment sent in by the governors.

And we will see multiple certification challenges by Donald Trump, because they’ve already begun, in essence. They’re already suing. But it won’t happen at the end of the process, which is what January 6 is. They will happen at the beginning. They will be at the precinct level, at the county level, at the state level. They will try to dispute the authenticity and the veracity of the vote, and there will be challenges to, you know, any popular-vote majorities. And I’m assuming and hoping there will be many of them across the country for the Harris-Walz ticket.

Rosin: Okay. You started by saying people ask you, so clearly people are worried. And then you answered by saying it’s not going to be the same. So is your general answer to them, No need to worry? Like, Don’t worry. There won’t be violence? Is that how, like—do you feel secure? It will be okay?

Raskin: It will not be an instant replay of what happened on January 6, 2021. It will look very different. In some sense, the new crisis has already begun, with lies that are being told by Donald Trump about the hurricanes and about FEMA. This is equivalent to the lies he was telling about COVID-19 last time to try to condition his followers to accept his Big Lie about the election. And he’s already trying to undermine people’s faith and confidence in the electoral process in the electoral system.

So that part of it has already begun. When I’m out campaigning around the country, I say we have two urgent tasks: One is to win the election, and two is to defend the election. Because as we saw from the last time around, Donald Trump doesn’t remotely consider it over once the ballots have been tallied if he loses the election. And that, of course, is a hallmark characteristic of an authoritarian, and an authoritarian mindset. Authoritarian political parties don’t accept the results of democratic elections that don’t go their way.

Donald Trump, as far as I can tell, is not running what I would recognize as a real election campaign, which is about canvassing, door knocking, organizing people. I don’t see that happening. I see it happening on the Democratic side everywhere I go. I don’t see it on the Republican side almost anywhere I go. They’re running a campaign of raising a lot of money. A lot of it disappears into different mystery boxes, but basically, they’re running a campaign on TV and then getting ready to attack the election process.

Rosin: Yes. He says, Cheat like hell, in almost every state. If we lose these states, if we lose this state—Wisconsin, Michigan, whatever state—it’s because they cheat like hell.

So I’m trying to give listeners an accurate picture. There’s one picture: Oh, we’re just going to have violence the way we had before. There’s another picture, which is: It’s going to be fine. So I’m just trying to prepare readers, listeners for what is realistically the thing that you should be vigilant and watch out for and what might actually happen.

Raskin: Well, I think it’s going to be a fight to certify the actual election vote. And remember, this is something that, for most of our lifetimes, we’ve taken for granted: simply that people will vote and that the votes will be counted fairly—they will be tallied fairly—and then the majority will be translated through an electoral system that has integrity to it.

You know, the Trump methodology here is to attack the electoral system, to disrupt the electoral system, and then try to blame everything on his opponents. I mean, this is an absolute historical anomaly. And so we need to have clarity about what’s going on.

And we have to, as citizens in a completely nonpartisan way—we have to be defending the integrity of the electoral process against this kind of attack.

Rosin: He has said many times that he would pardon the J6ers. He could pardon the J6ers, right? There’s nothing, if he wins, that would prevent him from doing that.

Raskin: Certainly not under the Supreme Court’s decision. I mean, the pardon power would be a paradigm example of a core function of the presidency that the president could exercise without any fear of criminal prosecution. I mean, when Trump figures that out, he’ll probably end up selling pardons.

They came close to doing it last time, but there’s no reason he wouldn’t go on eBay and just start selling them under that rancid opinion issued by his justices.

Rosin: I didn’t realize you could do that. You probably just gave him an idea.

Raskin: Yeah. (Laughs.) But look—let me say something about that. They call the January 6 insurrectionists convicted of assaulting federal officers or destroying federal property or seditious conspiracy, which means conspiracy to overthrow the government, “political prisoners.” So they liken them to, you know, [Alexei] Navalny. They liken them to [Aleksandr] Solzhenitsyn or to Nelson Mandela. These were people who were fighting for freedom and democracy against authoritarian regimes. These people were fighting for an authoritarian coup against a constitutional democracy, and they’ve had every aspect of due process, and they’ve been convicted for their crimes against us.

A lot of the Trumpian revisionist assault on January 6 is internally contradictory. It’s just illogical. Half of the time, they’re saying that the people who attacked the police and who attacked the Capitol were not MAGA—they were antifa dressed as MAGA. Then the other half of the time, they’re down in the D.C. jail demanding the release of these alleged antifa fighters. Why are they demanding the release of the antifa fighters? It makes no sense. So there’s just incoherence replete throughout the propaganda assault on January 6. The point for them is to confuse people and to destroy the moral clarity of what happened, but it was perfectly clear what happened on that day.

There were people of both political parties and all political persuasions standing by the rule of law and acting under the Constitution, and then people trying to destroy the Constitution in order to overthrow an election and put Donald Trump back in power unlawfully.

Rosin: I mean, yeah. If you’re a student of autocracy, like The Atlantic is, the point is to say something, in some ways, as an autocratic leader that’s patently untrue and dare you to believe it as a loyalty test. I mean, that’s one, as Anne Applebaum—she’s been doing a series about that. It has really enlightened me on what the lies are about. They’re a test, you know? And so the more absurd they are—like, they’re about Haitians eating pets or whatever—like, the more ridiculous they are and the more you are willing to believe them, the more that seals the lock between the leader and the follower.

So that’s why I sometimes get a little despairing around, like, Well, we’re just going to keep telling the truth, because that’s not the game they’re playing, you know? So what does fact-checking and journalism and, like, recording things really help? Sometimes, you know, I feel that way about it.

Raskin: I mean, Trump’s lies are not about illumination or even contests over the facts. Trump’s lies are about coercion and obedience and submission of his followers.

Rosin: But that’s difficult. That’s difficult to counter. Like, how do you get in between it? The truth doesn’t really get in between it. The truth makes you an enemy.

Raskin: Well, when you look at the way that cult leaders operate, they tell lies all the time. Nobody really feels like it’s necessary to contradict their lies, because they’re so self-evidently ridiculous. And we can see the way that their lives are just meant to regulate and control their followers. And so it’s just a question of naming what’s actually happening.

Rosin: And continuing to do that, with some faith that the majority of people will eventually sort of drift over to the side of truth.

Raskin: Yeah, and also to make sure that a majority of the people are going to stand up for the facts, the truth, and for democratic institutions.

Rosin: Jack Smith’s case. Any thoughts about that?

Raskin: Well, Jack Smith is now paddling upstream because of the Supreme Court’s outrageous ruling that the president has immunity from prosecution for crimes he commits under the rubric of his office.

You would think those would be the worst kinds of crimes, but no. Those are presumptively immune from prosecution, and if they’re within his core functions of office, then they’re absolutely immune.

Donald Trump was never acting in his official capacity as president when he tried to overturn an election, simply because that’s not part of the president’s job. It’s not part of the president’s job to have anything to do with the presidential election. When he’s trying to set up counterfeit elector slates, he’s not involved with the Electoral College. That’s done at the state level, and the state legislatures do it. And then the results are sent in to the House and the Senate and the archivist. They’re not sent to the president.

When he called Brad Raffensperger, the secretary of state of Georgia, and said, Just find me 11,780 votes, or called other election officials to harangue them—that’s not part of the president’s job. He was calling as a candidate, not as a president. And as a candidate, he was acting as an outlaw candidate and really as a tyrant, somebody trying to topple the whole constitutional order.

You know, a tyrant, in the Greek sense of the word, is someone who rises up from outside of the constitutional order to try to attack the constitutional order. And that’s a pretty accurate description and definition of what Donald Trump has done.

[Music]

Rosin: There’s a last thing I want to talk to Raskin about, and it pushed against everything he had just told me: When is it time to start moving on from January 6? That’s after the break.

[Break]

Rosin: In the year I spent reporting my podcast about January 6, I came across a very interesting idea for how to approach the memory of that day differently. It was in an essay by journalist Linda Kinstler called “Jan. 6, America’s Rupture and the Strange, Forgotten Power of Oblivion.” Kinstler’s argument—or at least one part of it—is that we are a culture saturated in memories.

We have videos and body cams and security cameras. Almost every inch of January 6 is recorded, which is a good thing for, say, a trial. But also, it makes it harder for us to forgive and forget. Back in the day, American political leaders called it “oblivion.” It was used in certain moments in American history, like after the Civil War, when obsessively remembering might just bring on more and more cycles of recrimination and vengeance.

So I ran this question by Raskin. He’s a constitutional lawyer and also a philosophical thinker. Might there ever be a time when oblivion might be the appropriate strategy for January 6?

[Break]

Rosin: All right—last thing: Whether he wins or loses, we have a culture to deal with, a culture of Americans, 30 percent of whom still think that the election wasn’t fair, was stolen in some way. So that’s with us. That’s the state of our nation right now, whoever wins and loses.

I’ve been reading about a—it’s a philosophical, legal, political theory of oblivion. Like, is there a time when cycles of recrimination or justice have to yield to something else? Is there ever a moment when you’re remembering too much? Does that make any sense to you?

Raskin: Mm-hmm. Well, it will be important for us always to remember these events and the facts of what took place. But I suppose, you know, human beings are made up of a mixture of thoughts and passions and emotions. And just like the passions and emotions have diminished somewhat from the Civil War, perhaps the passions and emotions around January 6 will begin to subside.

But at this point, with the republic still so much under attack, and with so many lies and so much propaganda and disinformation and revisionism out there, I believe that the passions and the emotion surrounding January 6 are still very much there, and they should be there until we can actually dispel this threat of authoritarianism in our country.

Rosin: So a potentially useful idea for healing, but just not yet. Is that where we land? Because I’m very taken—I find this theory interesting, that there’s a history post-Civil War of oblivion. You know, that it’s talked about by politicians: It’s time for oblivion. And right now, you know, we have video memories. Everything’s taped, recorded. So it’s very hard, actually, to do something like that.

Raskin: Well, thank God it’s all taped, and thank God there are videos, because you can see the way they’re lying about it, even in the face of the videos and the absolute factual documentation.

Look—I would say that historical memory is essential to establishing our values and principles for the future. One hopes that in the case of a society or a nation, that we’re not disabled by a memory the way that individuals can be disabled by a memory through post-traumatic stress syndrome or something like that. I’m hoping we’re able to integrate this into the true American story.

But as long as people are out there lying about January 6 and claiming it was really antifa or it was really the FBI or something, it’s going to be important for us to insist upon the facts and bring passion to the project of making people see the truth and remember.

[Break]

Rosin: That was my interview with Congressman Jamie Raskin. My thanks to him for taking the time to chat with me. Now, before we end, I want to share a bit from the other podcast I made recently, We Live Here Now.

I can’t say that we managed to convince our neighbors of our version of the truth. I hope you’ll listen to the entire series to hear what happened. It starts with the ridiculous way we met them, and it moves through a lot of characters in their alternate universe, including some J6ers who’d been just released from prison.

But here, I’m going to share with you something from the final episode of the series because it’s kind of in the spirit of oblivion. Even though we didn’t change their minds, something softened.

The two people you are about to hear are Lauren Ober—she’s my partner, who co-hosted the series—and Micki Witthoeft—she’s the mother of Ashli Babbitt, the only person shot and killed on that day. Micki is our neighbor. This is from Lauren’s final interview with Micki.

Lauren Ober: Is there anything that I don’t get? Is there anything that you need to clarify? Is there any critique or anything that you need to say before, you know, we’re done with our interviews?

Micki Witthoeft: I think the only thing I can say that I haven’t said to death, because this has been an ongoing—it’s been quite something. I don’t know—you might know more about me than—

But no. I think that people like you and people like me that admittedly come from completely different places in our upbringing, geography, experience, and way of looking at things—I think that if we can sit down and have a civil conversation and just see that you can meet in the middle, at least somewhere, you know, people don’t have to stand on opposite sides of the fence and throw stones. I didn’t mean to cry when I said that. Let’s do—(Claps.) take two!

Ober: I mean, why are you trying to pretend like you’re a hard-ass? (Laughs.)

Witthoeft: No, but it’s just—people don’t want to hear that shit all the time. Eww. (Mock cries.) Nobody likes that.

Ober: Well, I beg to differ. (Laughs.)

Witthoeft: It is what it is.

Ober: I beg to differ. I know I agree with you.

Rosin: You can listen to We Live Here Now anywhere you get your podcasts.

[Music]

Rosin: This episode was produced by Kevin Townsend and edited by Claudine Ebeid. It was engineered by Rob Smierciak and fact-checked by Michelle Ciarrocca. Claudine Ebeid is the executive producer of Atlantic audio, and Andrea Valdez is our managing editor. I’m Hanna Rosin. Thank you for listening.

You can’t blame Mike Pence for wanting to keep his head down in this presidential election, given that he nearly had his head in a noose after the last one.

“I’m staying out of this race,” Pence said plaintively—more plaintively even than usual—in a rare interview with Lyndsay Keith on something called Merit Street Media (founded, apparently, by Dr. Phil). Pence sat stiffly, and his voice was hushed and dramatic, as it typically is. He was repeating what he has said before: that he could not support Donald Trump after everything the former president had done, and that he could never back Kamala Harris, either, because of what he holds sacred—namely “the sanctity of life,” which is the “calling of our time.”

“I’ve made it clear I won’t be endorsing,” he reiterated. “How I vote, I will keep to myself.”

But it’s not so simple for Pence. He can try to opt out, but his ordeal inevitably makes him an inescapable figure in this cliff-hanger for American democracy.

At so many turns, his absence has spoken louder than his presence ever could. He is a reminder of Trump’s abject indecency, the former president’s pitiless trampling of norms and the consequence-free zone afforded him by the Republican Party and the Supreme Court.

[Read: How Jack Smith outsmarted the Supreme Court]

“Well, it’s a shame,” Trump said in a recent interview, in an answer to a question about Pence. He conveyed not a speck of regret about Pence, only grievance, as he does. Trump started talking about January 6, 2021, that most fateful day of choosing for his most slavishly devoted of deputies. No one did complete submission to Trump like Pence did—right up until he chose fealty to the Constitution over the wishes of “my president,” as Pence used to refer to Trump (also: “this extraordinary man,” paragon of “broad-shouldered leadership”). “He couldn’t cross the line of doing what was right,” Trump lamented. He also allowed that Pence was a “good man.” They’d had a “very good relationship.” In the end, though, Pence lacked the “courage” and “stamina” to do Trump’s ultimate bidding—for which many thought he should pay the ultimate price.

“So what?” Trump was saying in the Oval Office while rioters chanted “hang Mike Pence” at the Capitol. This latest detail was dropped into the delirium bowl by Special Counsel Jack Smith’s recent court filing in the January 6 case. In a rational world, this would be a bombshell—another example of Trump’s callous dereliction, his willingness to leave his deputy to a hanging mob of his own supporters.

But “so what?” pretty much summed up Americans’ response to this latest October non-surprise.

“So what” about Mike Pence? He can’t help but remain—the specter of him, if not the man himself. “When Mike Pence made that decision to certify that election, that’s why Mike Pence isn’t on this stage,” Tim Walz said, taunting his counterpart, J. D. Vance, in their debate.

Democrats like to point out that even Trump’s own vice president won’t support him. Remarkable, right? It should be, yes—it should speak volumes about Trump. Except: So what? Republican voters keep speaking their own volumes about Trump and keep nominating him. They keep proving, if more proof was needed, that Trump is a special case.

From the start, it was a bit of a mystery with Pence: how this most ostentatiously virtuous of Christians could affix himself to one of the most vulgar creatures ever to soil our public stage. Sure, ambition, opportunism, a mansion and a big plane—great. But how did Pence even get past, say, the Access Hollywood tape in 2016? His approach was essentially to swallow everything—all of the cruelty, crassness, and chaos from Trump—in the belief that this presidency would be a boon to the far-right policies that Pence had spent decades yearning for. He went along to get what he needed and to keep the peace with the boss, until he no longer could.

“Pence is always going to occupy this complex, almost unfathomable place,” the presidential historian Ted Widmer of the City University of New York told me. A speechwriter in the Clinton White House, Widmer has written several books on American democracy, leaders, and campaigns. He says that by standing firm against Trump on January 6, Pence ensured himself a kind of historical purgatory. “Nobody was as true blue of a Republican or loyal vice president as Pence was,” Widmer said. “Everything could have turned out so perfectly for him.” His refusal to help Trump thwart the will of American voters “might buy Pence whatever the historian’s version of a mulligan is,” Widmer told me. “But it is also the same thing that was unforgivable in Trump’s moral universe.”

Pence rarely talks about the day that will always define him. If it comes up, he prefers to frame January 6 as “a disagreement” that he had with Trump over what authority a vice president had (or clearly did not have) to challenge the certification of Electoral College votes. In the end, he declared his allegiance to an even higher authority than Trump. “I’ve always said that the safest place in the world is to be at the center of God’s will,” Pence said.

He likes to remind people that he and Trump spoke several times in the final, post-insurrection days of their administration. “We parted amicably,” he said in the Merit Street Media interview, adding that Trump “told me in the Oval Office with many present that he thought I’d done a great job.” Also, Pence said, Trump thanked him on the tarmac of Andrews Air Force Base. And they’d spoken often by phone in the days after he left office.

“But there was something in the early days of the spring of 2021 where he seemed to shift back,” Pence told Keith. Pence said he then concluded that, “like the Bible says, at some point, you’ve just got to wipe the dust off your feet and go your own separate ways.”

In so much as Pence is willing to discuss his breakup with Trump, he tends to focus on how the former president has abandoned the conservative positions that they championed in office. This particularly relates to abortion, but extends to a broader betrayal: “I’ve literally seen him walking away from strong American leadership on the world stage. I’ve seen him marginalize the right to life, and even parrot Democrats when it comes to the crisis facing our children and grandchildren in the National Debt,” Pence told Keith.

“When you now see Trump separating from Pence, it’s not just [Trump] going back to being pro-abortion,” Marc Short, Pence’s former vice-presidential chief of staff, who remains one of Pence’s closest advisers and confidants, told me. “It’s Trump moving away from the free-trader Mike Pence, who is also anti-tax and anti-tariff, and who would not abandon Ukraine.”

[Read: The Christian radicals are coming]

As for January 6, it has become something of a gateway drug. If Trump can be forgiven for that, what would his supporters not tolerate? Whether or not he ever gets convicted for it, Trump’s ability to overcome that day politically has come to represent its own get-out-of-jail-free card. What’s a little wobbliness on abortion?

“Once Republicans decide to condone Trump going the wrong way on the rule of law,” Short said, it becomes possible to rationalize all manner of ideological trespass. “I do think for a lot of people, once you’ve crossed that bridge, set aside your oath to the Constitution,” Short told me—“when you have violated what you know to be true—you figure that you might as well go all in.”

Friends of Pence say that many Republicans, including Trump supporters, will often express support for him. They tell him he is a good man, and they respect what he did, and that it’s unfair how he’s been treated. But these conversations almost always happen in private. They would never say as much in public—for fear, of course, of crossing Trump.

Where does that leave Pence, a Christian conservative in a GOP now governed by one man’s impulses? In powerful circles of the party, Pence remains a pariah. “Judas Pence is a dead man walking with MAGA,” Steve Bannon told The New York Times in June. If Trump wins, maybe he softens and absolves his former vice president, who did nearly everything he asked. If nothing else, Pence will endure as the cautionary scoundrel of the Trump age: one who was loyal to the bitter end, and barely lived to tell about it.

Special Counsel Jack Smith’s recent filing to the D.C. District Court in the Trump v. United States presidential-immunity case both fleshes out and sharpens the evidence of Donald Trump’s sprawling criminal conspiracy to overturn the 2020 election. To understand the filing’s larger significance as well as its limitations, we must first review a bit of recent history.

In its shocking decision on July 1 to grant the presidency at least presumed immunity from criminal prosecution for all official acts, the Supreme Court’s conservative majority showed once again that it was intent on immunizing one president in particular: Donald Trump. The Court majority’s decision, delivered by Chief Justice John Roberts, was explicit. It held, for example, that Trump’s alleged efforts to pressure then–Vice President Mike Pence into voiding the 2020 election results on January 6 constituted “official conduct” from which Trump “is at least presumptively immune from prosecution.” That presumed immunity, the Court contended, would disappear only if the prosecution could convince the courts that bringing the case to trial would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”  

The Court thus remanded the case back to the D.C. District Court to decide the matter, along with the question of whether Trump is actually immune to the rest of the charges against him. How, though, could the prosecution of a president or former president over an “official act” fail to intrude on presidential authority? Seemingly, anything pertaining to Trump’s contacts with the vice president as he presided in his constitutional role as president of the Senate—as well as Trump’s contacts with the Department of Justice, which the Court also singled out and which the prosecution, significantly, felt compelled to omit from its revised indictment—deserves, as the Court sees it, virtually ironclad protection, a powerful blow against the entire January 6 indictment.    

Although the sweeping outcome of Trump v. United States took most legal commentators by surprise, its protection of Trump was completely predictable given the Court’s previous conduct regarding the January 6 insurrection. The refusal of Justices Clarence Thomas and Samuel Alito to recuse themselves from any matter related to the insurrection, despite their own conflicted positions—Thomas due to the direct involvement of his wife, Ginni Thomas, in the subversion; Alito because of his flag-waving support of Trump’s election denials—has received the most public attention concerning the Court majority’s partisan partiality. But another set of telltale signs becomes apparent after a closer tracking of the Court’s decision making.

Almost as soon as the case against Trump came before D.C. District Court Judge Tanya Chutkan, the Supreme Court played along with the Trump lawyers’ efforts to delay the trial until after the November 2024 election. First, after Chutkan ruled against Trump’s absolute-immunity claims in December 2023, Special Counsel Smith asked the Supreme Court to expedite matters by hearing the case immediately, not waiting for the U.S. Court of Appeals to rule on Trump’s appeal of Chutkan’s decision. The Supreme Court refused. Two months later, though, when the appeals court ruled against Trump and set a new trial date, the Supreme Court dragged its feet for as long as possible before announcing that it would take up the case after all. It then set the date for oral arguments as late as possible, at the end of April. This meant that even before hearing the case, the Court made it highly unlikely that Trump’s trial would proceed in a timely manner, effectively immunizing Trump until after the election.

Although radical in its long-term reconstruction of the American presidency, the ruling more immediately affirmed and extended the Court’s protection of Trump from prosecution. By remanding the case to the D.C. Circuit Court to decide what in the indictment constitutes official (and, therefore, presumably immune) conduct, the justices guaranteed that no trial would occur until after Election Day. After that, meanwhile, should Trump win the election, no trial would occur at all, because he would certainly fire Smith and shut down the proceedings.

Smith’s filing tries to slice through the Court’s security shield regarding the insurrection. Skillfully quoting from or alluding to language in the Court majority’s own opinion, the filing demolishes the notion that Trump’s activities, culminating on January 6, deserve immunity. Outwardly, Smith’s filing respects the Court’s dubious ruling about the immunity of official presidential acts. Legally, Smith had no choice but to operate within that ruling, a fact that sharply limited how far his filing could go. But even though it never challenges the conservative majority directly, the filing makes a case, incontrovertible in its logic and factual detail, that the core of Trump’s subversion involved no official actions whatsoever. It persuasively argues, with fact after fact, that Trump was the head of an entirely private criminal plot as a candidate to overthrow the election, hatched months before the election itself.     

In remounting his case, Smith has taken the opportunity to release previously unknown details, some of which he says he doesn’t even plan to present at trial, that underscore the depravity as well as the extent of Trump’s criminal actions. Consider, for example, Smith’s telling of Trump’s reaction to the news from one of his staff, at the height of the violence on January 6, that his tweets attacking Pence had placed Pence’s life in extreme danger. “So what?” Trump reportedly replied. He had clearly intended for his tweets to reach the mob at the Capitol. His nonchalance about the vice president’s life epitomizes the lengths to which he would go to complete his coup d’état.

But the real force of Smith’s filing is in its tight presentation of the evidence of a criminal conspiracy in minute detail, dating back to the summer before the 2020 election, when Trump began publicly casting doubts on its legitimacy should he not be declared the winner. “The only way they can take this election away from us is if this is a rigged election,” he told the Republican National Convention in his nomination-acceptance speech in August 2020.      

From that point forward, Trump was at the center of every effort to keep him in power, even once he was fully aware that he had no grounds to contest Joe Biden’s victory. There were his private operatives sowing chaos at polling places and vote-counting centers, the scheming to declare victory on Election Night before the results were in, the bogus legal challenges, the fake-elector fraud, the plot to deny official certification by Congress on January 6, and finally the insurrection itself. “It doesn’t matter if you won or lost the election,” one witness reports Trump saying. “You still have to fight like hell.”

The crucial point to which the filing unfailingly returns is that none of Trump’s actions listed in the revised indictment, even those that the Court cited as “official,” deserves immunity. As Smith makes clear, the Framers of the Constitution deliberately precluded the executive branch from having official involvement in the conduct of presidential elections. The reason was obvious: Any involvement by a president would be an open invitation to corruption. To make the case that any such involvement falls within a president’s official duties would seem, at best, extremely difficult.       

It is here that Smith turns the Court’s Trump v. United States ruling to his own advantage. Concerning specific charges that Trump’s speechmaking contributed to the insurrection, the Court allowed that “there may be contexts in which the President speaks in an unofficial capacity—perhaps as a candidate for office or party leader.” Quoting from an earlier Court decision, the ruling then states that determining these matters would require that the district court undertake “objective analysis of [the] ‘content, form, and context’” of the speeches in question, a “necessarily fact-bound analysis.” Likewise, regarding the allegations apart from Trump’s supposedly official communications and public speeches, the justices enjoined the district court, on remand, to “carefully analyze” those charges “to determine whether they too involve conduct for which the President may be immune from prosecution.”     

Citing those exact phrases as the Court’s standard of inquiry and proof, Smith then offers evidence that every count in the revised indictment concerns either technically official conduct undeserving of immunity or unofficial conduct involving Trump’s private actions as a candidate and not his official duties as president. These actions include his efforts to pressure state officials, preposterously presented by Trump’s defense attorneys as official inquiries into election integrity. They include his conversations about elector slates, about which the president has no official duties. They also encompass all of his speechmaking about the allegedly crooked election, up to and including his incitement at the January 6 rally at the Ellipse, which was not an official function.

Above all, Smith nails down a matter that the Court’s opinion went out of its way to declare “official” and presumably immune: Trump’s efforts to pressure Pence into declining to certify Biden’s win. Although the filing acknowledges that the Court had held that these conversations between Trump and Pence about “their official responsibilities” qualified as “official,” it rebuts the presumption that those discussions therefore qualify as immune. The filing observes that the discussions did not concern Pence’s duties as president of the Senate “writ large,” but only his distinct duties overseeing the certification of a presidential election—a process in which a president, whether or not he is a candidate for reelection, has, by the Framers’ considered design, no official role.   

Here the logic of Smith’s argument cuts to the quick. By the Court majority’s own standard, as stated in its Trump v. United States decision, the presumption of immunity for official actions would disappear only if a prosecutor could demonstrate that bringing criminal charges against a president or former president would not present “dangers of intrusion on the authority and functions of the Executive Branch.” Because certification of a presidential election, the subject of Trump’s “official” pressuring, involves neither the authority nor the functions of the executive branch, the immunity claims concerning that pressuring are therefore groundless—according to the Court majority’s own logic.           

The rest of Trump and Pence’s interactions do not even qualify as official, Smith shows. In all of their other postelection, in-person conversations and private phone calls, Trump and Pence were acting not in their capacities as president and vice president but as running mates pondering their electoral prospects, even after Biden had been declared the winner. If, as the Court itself has stated, context is important with regard to speechmaking, so it is important with regard to communications between the top officials of the executive branch. To be sure, Smith allows, Trump and Pence “naturally may have touched upon arguably official responsibilities,” but “the overall context and content of the conversations demonstrate that they were primarily frank exchanges between two candidates on a shared ticket”—strictly unofficial conduct.

In all, by recasting the case against Trump in view of the Court’s immunity decision, Smith has drawn upon that very ruling to establish that none of Trump’s actions in connection with January 6 cited in the revised indictment is immune from prosecution. And in doing that, he has further discredited an already discredited Supreme Court.

Unfortunately, important as it is with respect to Smith’s specific case, the filing cannot come close to undoing the damage that Trump v. United States has wrought, with its authorization of an authoritarian American regime. The very fact that Smith had to omit from both his revised indictment and his filing Trump’s nefarious but official dealings with the Justice Department, including his brazen hiring and firing of top law-enforcement officials on the basis of who would do his personal bidding, shows how fearsomely the Court’s immunity decision has constrained the special counsel. There was a great deal more criminal behavior by Trump and his co-conspirators, as laid out in detail in the House January 6 committee report, that Smith could not touch because the Court has effectively immunized it as “official” activity under the executive branch’s authority.

These limitations show all over again how the Court has given the president absolute license to rule like a tyrant, against which even the ablest special counsel is virtually powerless. Nothing in Smith’s filing alleviates Justice Sonia Sotomayor’s judgment in her forthright dissent in Trump v. United States that the decision empowers the president, acting in his official capacity, to order the assassination of political rivals, to take a bribe in exchange for a pardon, to organize a military coup with impunity: “Immune, immune, immune.” That Smith managed to outsmart the Court as much as he did is a remarkable feat that could have important results—but only if Kamala Harris succeeds in winning the presidency.

On the basis of their past decisions, it is reasonable to expect that both the D.C. district court under Judge Chutkan and the U.S. Court of Appeals will rule in favor of Smith. Trump v. United States would then go once again before the Supreme Court. This will happen if Harris wins the election, because a Justice Department under her administration would almost certainly allow Smith to remain to continue prosecution of Trump. What, then, would the Court do? Would it uphold those decisions and throw Trump upon the mercy of a D.C. federal jury? Or would it strike those decisions down, thereby redoubling the disgrace it earned the first time around?  

The only way the Court can avoid that dilemma is if Trump wins the election, an outcome that its conservative majority would now have all the more reason to desire. But what happens if, as seems highly possible, the election leads to litigation, much as the 2020 election did, only this time the Court is left to make the final decision? Will the Court then intervene as Trump’s enabler once again, installing him as a constitutionally tainted president, allowing him to kill the indictment against him, and to pardon those convicted of violent crimes in the attack on the Capitol whom he calls “hostages”? The Court, in Trump v. United States, claimed that it was protecting the sanctity of the presidency, but if it aids Trump in his attempt to escape justice for his January 6 insurrection, it will further seal its illegitimacy while also sealing MAGA’s triumph—and, with that, the majority of Americans, not to mention the rest of the world, will pay a crushing price.

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.

[David A. Graham: The paperwork coup]

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.

[Read: The journalist who cried treason]

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.

[David A. Graham: The cases against Trump: a guide]

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.

[Read: Jack Smith isn’t backing down]

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.

The prosecutor has argued that Donald Trump acted in a private capacity in trying to overturn the US election.

Special Counsel Jack Smith says Mike Pence was among those who told former president to accept the 2020 election result.