Experts: Jack Smith’s "dramatic new proof" so "overwhelming" reluctant witnesses may decide to flip

Former President Donald Trump refused to help stop the violent attack on the U.S. Capitol and instead watched TV from the White House, according to previously undisclosed details that special counsel Jack Smith's team uncovered as part of its Jan. 6 probe, ABC News reported. 

A significant portion of the information in the report comes from interviews with Dan Scavino, Trump's former deputy chief of staff and current senior adviser to his reelection campaign. Scavino, who refused to cooperate with the House select committee's probe on Jan. 6, citing executive privilege, had his claims rejected by a judge last year and was informed he had to comply with a grand jury subpoena. Essential parts of his testimony were disclosed to ABC News.

Other White House advisers and top lawyers also spoke with Smith’s team, providing new details about Trump’s statements and demeanor on Jan. 6, 2021, the news outlet reported. 

The report describes a president “shockingly derelict” in immediately intervening to stop the “most serious invasion” of the Capitol by domestic terrorists in the nation’s history, Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. 

Scavino informed Smith's investigators that as the violence intensified on Jan. 6, Trump showed little interest in taking further action to curb it, sources told ABC News. 

“Trump was ‘very angry’ that day – not angry at what his supporters were doing to a pillar of American democracy, but steaming that the election was allegedly stolen from him and his supporters, who were ‘angry on his behalf,’” ABC News reported. “Scavino described it all as ‘very unsettling,’” sources told the outlet.

The ex-president would occasionally sit silently at the head of the table, arms folded, and gaze fixed on the TV, Scavino said, according to sources.

While speaking with Smith's team, Scavino recalled telling Trump in a phone call the night of Jan. 6: "This is all your legacy here, and there's smoke coming out of the Capitol," sources told ABC News. Scavino said he hoped Trump would ultimately help lead a peaceful transfer of power.

Former Trump aide Nick Luna also shared that when the ex-president was told about Vice President Mike Pence’s need to be moved to a secure location, Trump responded by saying "So what?" Luna perceived this as an “unexpected willingness” on Trump's part to expose a longtime loyalist to potential harm.

“Indeed, Trump’s angry response to Scavino’s comment to him that there’s smoke coming out of the Capitol in effect was, ‘Let it Burn,’” Gershman said. “And his nonchalant indifference to Vice President Pence’s safety and welfare offers chilling proof that Trump’s conscious purpose, namely, his intent, was first to incite an insurrection and then by his inaction to demonstrate his intent that the insurrection effectively stop Congress from doing its constitutional duty to certify the election results.”

This proof would be “powerful circumstantial” evidence of Trump’s criminal intent underlying all the federal charges, he added.

Temidayo Aganga-Williams, white-collar partner at Selendy Gay Elsberg and former senior investigative counsel for the House Select Committee to Investigate the January 6th Attack, agreed that Trump’s refusal to intervene could be used by Smith to show his criminal intent on the day of the attack because Trump agreed with the violence and hoped that it would succeed in preventing the transfer of power.  

“Trump’s decision not to act undercuts any argument that he was acting in good faith – even if he legitimately believed he won the election (which he did not), his decision to let violence go unimpeded helps show that he endorsed criminal obstruction of the Congressional proceeding and that the rioters’ actions were consistent with Trump’s goals,” he added.

In the extensive indictment against Trump, Smith accuses the former president of attempting to unlawfully cling to power by  "spread[ing] lies" about the 2020 election and pressuring Pence to obstruct Congress from certifying the results on Jan. 6. Trump has pleaded not guilty to all charges.

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The report indicates several instances when Trump’s inner circle tried to intervene and convince the ex-president to call off his supporters from rioting on January 6. But instead of releasing a statement that would put an end to the violence, Trump instead posted a message on his Twitter account further fueling it. 

Pence "didn't have the courage to do what should have been done," he tweeted. The message shocked his closest aides, with some even telling him that a public attack on Pence was "not what we need," sources told ABC News. 

“It seems that as Smith’s prosecution team keeps building its case with dramatic new proof, the case appears to be so gaining momentum and appears to be so overwhelming that reluctant or scared witnesses might decide to cooperate and avoid getting themselves entangled in the case as defendants,” Aganga-Williams said.

The legal consequences establish “overwhelmingly Trump’s evil intent to undermine constitutional democracy,” Gershman said. Through his lack of action in failing to prevent the riot and going against his aides' pleas for intervention, Trump “demonstrated a criminal intent" to collaborate with the insurrectionists to protect his own political survival at the "expense of the constitution and democracy.” 

Trump announced in effect, “Let the constitution and democracy burn down,” Gershman said.