Special Counsel to Try to Tie Trump to Jan. 6 Breach

Special counsel Jack Smith's case will attempt to tie former President Donald Trump to the Jan. 6 plot to "go into the Capitol" – as pushed by Ray Epps on Jan. 5, 2021 – arguing it was a plot to stop the certification of Joe Biden's Electoral College victory.

The prosecution's case for the trial, which begins March 4, will allege that Trump's plan to remain president "culminated and converged" Jan. 6, senior assistant special counsel Molly Gaston wrote in a court filing this week, Politico reported.

"The defendant attempted to obstruct and prevent the congressional certification at the Capitol," Gaston's filing read. "One of the ways that the defendant did so, as alleged in the indictment, was to direct an angry crowd of his supporters to the Capitol and to continue to stoke their anger while they were rioting and obstructing the certification.

"At trial, the government will prove these allegations with evidence that the defendant's supporters took obstructive actions at the Capitol at the defendant's direction and on his behalf."

This week's filing contains no reference to Epps, who has denied working for the FBI, but admitted in a CBS "60 Minutes" interview the night before Tucker Carlson was fired this spring that it was a mistake to text on Jan. 6 that "I orchestrated it," as revealed by the anti-Trump House Jan. 6 select committee.

That Democrat-run committee ended before 2023, when Republican leadership was set to take over.

Trump has publicly the Epps "I orchestrated it" text, saying, "Gee, I wonder."

But Gaston's filing suggests there is evidence of the plot to enter the Capitol, without mentioning Epps, who is on video on the streets of Washington, D.C., on Jan. 5 urging demonstrators, "We have to go into the Capitol."

Some Trump supporters shouted back "No!" and repeatedly chanted "Fed! Fed! Fed!" suggesting Epps was working for the government in opposition to Trump's desire to have Congress debate the allegations of election fraud in key battleground states and have Vice President Mike Pence send the constitutionally contested Electoral College votes back to state legislatures for review after Jan. 6.

The Constitution has language that requires Congress to confirm the president-elect by the specific date Jan. 6.

Gaston's filing presses forward with the argument Trump has ties to a Capitol breach plot, without mentioning the widely shared Epps evidence that began Jan. 5.

"This evidence will include video evidence demonstrating that on the morning of Jan. 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant's supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to "fight" at the Capitol then violently attacked law enforcement and breached the Capitol," Gaston's filing read.

Notably, Epps testified before the now-disbanded, anti-Trump House select committee that he flew to D.C., the weekend before Jan. 6 on a whim with the intention to attend Trump's speech. But he never attended the speech, he admitted in testimony, and stood on the route to the Capitol directing would-be Trump supporters to march to the steps of the Capitol, "because that's where our problems lie."

Smith announced this indictment Aug. 1 – one of a handful against Trump, including in Fulton County, Georgia, South Florida, and Washington, D.C. – calling the Jan. 6 protest at the Capitol "an unprecedented assault on the seat of American democracy" and alleging it was "fueled by lies."

But Trump backers and legal scholars – like Alan Dershowitz on Newsmax – have long questioned the omission of exonerating facts in the indictments against Trump. Gaston's filing omits the publicly available facts on Epps urging to "go into the Capitol."

"The defendant here is charged with four related criminal counts, including conspiring to obstruct and obstructing the official certification proceeding on Jan. 6," Gaston wrote. "Essential to those charges are factual allegations and evidence that the proceeding was in fact impeded — namely, by a large crowd, including individuals whom the defendant had directed at the Capitol, that violently advanced on the Capitol building to create 'a catastrophic security risk.'"

Dershowitz has specifically warned that Smith's indictment omits the exonerating evidence that Trump's speech urged protesters to "peacefully and patriotically" have their voices heard Jan. 6 during the joint session of Congress – where Republicans duly and constitutionally had signatures to debate the validity of the Electoral College vote.

Then, before that debate could take place, protesters who allegedly did not attend Trump's speech – with Epps at the front lines and whispering into the ear of a man – breached the gate that would evolve into a riot on the steps of the Capitol after police tear-gassed the crowd.

Gaston's filing comes days after Trump's legal team demanded U.S. District Court Judge Tanya Chutkan strike references to the Jan. 6 riot from the indictment, arguing "surplusage" allegations that were included to incite potential jurors.

"Because the government has not charged President Trump with responsibility for the actions at the Capitol on Jan. 6, 2021, allegations related to these actions are not relevant and are prejudicial and inflammatory," Trump's attorney John Lauro argued in his filing last week.

The next deadline in the Judge Chutkan trial is a Nov. 10 deadline for the Trump team to respond to the prosecution's request to publicly televise the trial.