Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 1 of 165 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA V. DONALD J. TRUMP, Defendant. * * * CRIMINAL NO. 23-cr-257 (TSC) * * * * * GOVERNMENT’S MOTION FOR IMMUNITY DETERMINATIONS The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so. Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted a function in which the defendant, as President, had no official role. In Trump v. United States, 144 S. Ct. 2312 (2024), the Supreme Court held that presidents are immune from prosecution for certain official conduct― including the defendant’s use of the Justice Department in furtherance of his scheme, as was alleged in the original indictment—and remanded to this Court to determine whether the remaining allegations against the defendant are immunized. The answer to that question is no. This motion provides a comprehensive account of the defendant’s private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none of the defendant’s charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted; and requests the relief the Government seeks, which is, at bottom, this: that the Court determine that the defendant must stand trial for his private crimes as would any other citizen.
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 2 of 165 This motion provides the framework for conducting the “necessarily factbound” immunity analysis required by the Supreme Court’s remand order. Trump, 144 S. Ct. at 2340. It proceeds in four parts. Section I provides a detailed statement of the case that the Government intends to prove at trial. This includes the conduct alleged in the superseding indictment, as well as other categories of evidence that the Government intends to present in its case-in-chief. This detailed statement reflects the Supreme Court’s ruling that presidential immunity contains an evidentiary component, id., which should be “addressed at the outset of a proceeding,” id. at 2334. Section II sets forth the legal principles governing claims of presidential immunity. It explains that, for each category of conduct that the Supreme Court has not yet addressed, this Court should first determine whether it was official or unofficial by analyzing the relevant “content, form, and context,” id. at 2340, to determine whether the defendant was acting in his official capacity or instead “in his capacity as a candidate for re-election.” Blassingame v. Trump, 87 F.4th 1, 17 (D.C. Cir. 2023). Where the defendant was acting “as office-seeker, not office-holder,” no immunity attaches. Id. (emphasis in original). For any conduct deemed official, the Court should next determine whether the presumption of immunity is rebutted, which requires the Government to show that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.”” Trump, 144 S. Ct. at 2331-32 (quoting Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982)). Section III then applies those legal principles to the defendant’s conduct and establishes that nothing the Government intends to present to the jury is protected by presidential immunity. Although the defendant’s discussions with the Vice President about “their official responsibilities” qualify as official, see Trump, 144 S. Ct. at 2336, the Government rebuts the presumption of -2-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 3 of 165 immunity. And all of the defendant’s remaining conduct was unofficial: as content, form, and context show, the defendant was acting in his capacity as a candidate for reelection, not in his capacity as President. In the alternative, if any of this conduct were deemed official, the Government could rebut the presumption of immunity. Finally, Section IV explains the relief sought by the Government and specifies the findings the Court should make in a single order—namely, that the defendant’s conduct set forth in Section I is not immunized, and that as a result, the defendant must stand trial on the superseding indictment and the Government is not prohibited at trial from using evidence of the conduct described in Section I. I. Factual Proffer When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office. With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost-Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the “targeted states”). His efforts included lying to state officials in order to induce them to ignore true vote counts; manufacturing fraudulent electoral votes in the targeted states; attempting to enlist Vice President Michael R. Pence, in his role as President of the Senate, to obstruct Congress’s certification of the election by using the defendant’s fraudulent electoral votes; and when all else had failed, on January 6, 2021, directing an angry crowd of supporters to the United States Capitol to obstruct the congressional certification. The throughline of these efforts was deceit: the defendant’s and co-conspirators’ knowingly false claims of election fraud. They used these lies in furtherance of three conspiracies: 1) a conspiracy to interfere with the federal government function by which the nation collects and counts election results, which is set forth in the Constitution and the Electoral Count Act (ECA); 2) a conspiracy to obstruct the official proceeding in which Congress certifies the legitimate results – 3-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 4 of 165 of the presidential election; and 3) a conspiracy against the rights of millions of Americans to vote and have their votes counted. At its core, the defendant’s scheme was a private criminal effort. In his capacity as a candidate, the defendant used deceit to target every stage of the electoral process, which through the Constitution, ECA, and state laws includes the states’ notification to the federal government of the selection of their representative electors based on the popular vote in the state; the meeting of those electors to cast their votes consistent with the popular vote; and Congress’s counting of the electors’ votes at a certification proceeding. As set forth in detail below, the defendant worked with private co-conspirators, including private attorneys CC1 CC2 CC3 and CC5 and private political operatives CC6 and P1 The defendant also relied heavily on private agents, such as his Campaign employees and volunteers, like Campaign Manager P2 Senior Campaign Advisor P4 Deputy Campaign Manager and Campaign operative P3 P5 In this section, the Government sets forth detailed facts supporting the charges against the defendant,¹ before addressing in the next section why none of this conduct is subject to immunity under the Supreme Court’s decision in Trump. The conduct set forth below includes the defendant’s formation of the conspiracies leading up to and immediately following the 2020 presidential election; certain information regarding his knowledge that there had not been outcome-determinative fraud in the election as he persistently claimed; and his increasingly desperate efforts to use knowingly false claims of election fraud to disrupt the electoral process. 1 Section I represents the Government’s efforts to provide the Court and the defendant with all of the categories of evidence that it may offer in its case-in-chief at trial. It does not include citations to every potential exhibit, nor does it account for any additional evidence that may be developed before trial. -4-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 5 of 165 The Government does not consider any of the following conduct to be subject to immunity for the reasons set forth in Section III. A. Formation of the Conspiracies Although his multiple conspiracies began after election day in 2020, the defendant laid the P6 groundwork for his crimes well before then. Leading into the election, the defendant’s private and Campaign advisors, including (then a private citizen) and P2 (the defendant’s Campaign manager), informed him that it would be a close contest and that it was unlikely to be finalized on election day—in part because of the time needed to process large numbers of mail-in ballots prompted by the COVID-19 pandemic.² They also told the defendant that the initial returns on election night might be misleading—that is, that he might take an early lead in the vote count that would diminish as mail-in ballots were counted because his own supporters favored in-person voting, while supporters of his opponent, Joseph R. Biden, favored mail-in ballots.³ Privately, the defendant told advisors—including P6 P8 Campaign personnel, P7 (the Vice President’s (a White House staffer and Campaign volunteer), and Chief of Staff)—that in such a scenario, he would simply declare victory before all the ballots were counted and any winner was projected.4 Publicly, the defendant began to plant the seeds for that false declaration. In the months leading up to the election, he refused to say whether he would accept the election results, insisted that he could lose the election only because of fraud, falsely 2 GA 501-510 247 D; GA 591-599 ); GA 246- ); GA 591-599 ); GA 250-255 ======== 3 GA 501-512 249 4 GA 505-507 ); GA 132-153 ); GA 246- ); GA 588-589 -5-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 6 of 165 claimed that mail-in ballots were inherently fraudulent, and asserted that only votes counted by election day were valid. For instance: • • • In an interview on July 19, 2020, when asked repeatedly if he would accept the results of the election, the defendant said he would “have to see” and “it depends.”5 On July 30, despite having voted by mail himself earlier that year, the defendant suggested that widespread mail-in voting provided cause for delaying the election, tweeting, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”6 In an interview on August 2, the defendant claimed, without any basis, that “[t]here is no way you can go through a mail-in vote without massive cheating.” 997 At a campaign event in Wisconsin on August 17, the defendant told his supporters, “[t]he only way we’re going to lose this election is if the election is rigged, remember that. It’s the only way we’re going to lose this election, so we have to be very careful.”8 In his acceptance speech at the Republican National Convention on August 24, the defendant said that “[t]he only way they can take this election away from us is if this is a rigged election.”⁹ On October 27, during remarks regarding his campaign, the defendant said, “[i]t would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws. I don’t believe that. So we’ll see what happens.” 10 The defendant said this despite or perhaps because his private advisors had informed him that it was unlikely that the winner of the election would be declared on November 3. 5 GA 1968 at 37:20 (Video of Trump Interview with Chris Wallace 07/19/2020). 6 See https://x.com/realDonaldTrump/status/1288818160389558273 (Donald J. Trump Tweet 07/30/2020). 7 See Donald Trump Interview Transcript with Jonathan Swan of Axios on HBO, Rev (Aug. 3, 2020) hbo. https://www.rev.com/blog/transcripts/donald-trump-interview-transcript-with-axios-on- 8 GA 1943 at 57:33 (Video of Oshkosh Rally 08/17/2020). 9 GA 1951 at 22:08 (Video of RNC Speech 08/24/2020). 10 GA 1927 at 3:11-3:28 (Video of Donald J. Trump Statement 10/27/2020). -6-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 7 of 165 By October 2020, P1 a private political advisor who had worked for the defendant’s 2016 presidential campaign, began to assist with the defendant’s re-election effort. Three days before election day, P1 described the defendant’s plan to a private gathering of supporters: “And what Trump’s going to do is just declare victory. Right? He’s going to declare victory. That doesn’t mean he’s the winner, he’s just going to say he’s the winner.”11 After explaining that Biden’s supporters favored voting by mail, P1 stated further, “And so they’re going to have a natural disadvantage and Trump’s going to take advantage of it—that’s our strategy. He’s going to declare himself a winner.” “12 13 Immediately following election day on November 3, the defendant did exactly that. As his private and Campaign advisors had predicted to him, in certain states, the defendant took an early lead on election day that began to erode. At approximately 11:20 p.m., Fox News projected that Biden would prevail in the state of Arizona, and according to Campaign advisor P4 he and the defendant were shocked and angry at this development. ¹³ As election day turned to November 4, the contest was too close to project a winner, and in discussions about what the defendant should say publicly regarding the election, senior advisors suggested that the defendant should show restraint while counting continued. 14 Two private advisors, however, advocated a different course: CC1 and CC6 suggested that the defendant just declare victory. 15 And at about 2:20 a.m., the defendant gave televised remarks to a crowd of his campaign supporters in which he falsely 11 GA 1886 at 0:00 12 Id. at 0:20 13 GA 376-380 at 70-74 ( 14 GA 600-602 ); GA 610-614 ); GA 380- 383 ); GA 128-130 ( ); GA 161 ; GA 370 15 GA 154 ); GA 600 ; GA 181-182 -7-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 8 of 165 claimed, without evidence or specificity, that there had been fraud in the election and that he had won: “This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election. We did win this election.”16 In the immediate post-election period, while the defendant claimed fraud without proof, his private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes. For example, on November 4, P5 -a Campaign employee, agent, and co-conspirator of the defendant―tried to sow confusion when the ongoing vote count at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a colleague at the TCF Center told P5 “We think [a batch of votes heavily in Biden’s favor is] right,”17 P5 responded, “find a reason it isnt,” “give me options to file litigation,” and “even if itbis [sic].”18 When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot, 19 a violent effort to stop the vote count in Florida after the 2000 presidential election, P5 responded, “Make them riot” and “Do it!!!”20 The defendant’s Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, Pennsylvania, 2¹ and the defendant sometimes used the resulting confrontations to falsely claim 21 GA 1974 at 7:44 (Video of White House Speech 11/04/2020). 16 17 GA 968-996 18 Id. 19 Id. 20 Id. 21 GA 997-999 -8-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 9 of 165 that his election observers were being denied proper access, thus serving as a predicate to the defendant’s claim that fraud must have occurred in the observers’ absence. 22 Contrary to the defendant’s public claims of victory immediately following election day, his advisors informed him that he would likely lose. On November 7, in a private Campaign meeting that included P2 P3 P4 and White House staffer P9 who came to serve as a conduit for information from the Campaign to the defendant, Campaign staff told the defendant that he had only a slim chance of prevailing in the election, and that any potential success was contingent on the defendant winning all ongoing vote counts or litigation in Arizona, Georgia, and Wisconsin. 23 Within a week of that assessment, on November 13, the defendant’s Campaign conceded its litigation in Arizona²4—meaning that based on his Campaign advisors’ previous assessment, the defendant had lost the election. That same day, in an implicit acknowledgment that he had no lawful way to prevail, the defendant sidelined the existing Campaign staff responsible for mounting his legal election challenges. From P2 P3 and others who were telling the defendant the truth that he did not want to hear-that he had lost the defendant turned to CC1 a private attorney who was willing to falsely claim victory and spread knowingly false claims of election fraud. As the defendant placed alternating phone calls to P3 and CC1 throughout November 13,25 P1 informed CC6 another private Campaign advisor, of the change, writing, “Close hold don’t tell anyone Trump just fired P3 and put CC1 in charge” and 22 GA 774-775 (Donald J. Trump Tweet https://x.com/realDonaldTrump/status/1325194709443080192 11/07/2020). 11/06/2020); (Donald J. Trump GA 776, Tweet 23 GA 155-158 24 OGA 1001 (Donald J. Trump for President, Inc. v. Hobbs Hearing Transcript 11/13/2020); GA 1002-1003 (Minute entry and order dismissing Donald J. Trump for President, Inc. v. Hobbs). 25 GA 731-734 -9-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 10 of 165 “You are to report to CC1 26 When CC6 asked if P2 was “gone too?”, P1 replied that “[t]hey all report to CC1 and that P1 had “made a recommendation directly that if CC1 was not in charge this thing is over[.] Trump is in to the end.”27 The next day, consistent with P1 description, the defendant announced his staff change by Tweet, writing, “I look forward spearheading the legal effort to defend OUR RIGHT to FREE and FAIR to CC1 ELECTIONS! CC1 P10 P11 CC3 and P12 a truly great team, added to our other wonderful lawyers and representatives!”28 B. The Defendant Knew that His Claims of Outcome-Determinative Fraud Were False Following election day and throughout the charged conspiracies, the defendant, his co- conspirators, and their agents spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These lies included dozens of specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non- citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes for the defendant to votes for Biden. And the defendant and co-conspirators continued to make these unsupported, objectively unreasonable, and ever-changing claims even after they had been publicly disproven or after advisors had directly informed the defendant that they were untrue. The evidence demonstrates that the defendant knew his fraud claims were false because he continued to make those claims even after his close advisors—acting not in an official capacity but in a private or Campaign-related capacity—told him they were not true. These advisors 26 GA 1004 27 Id. 28 GA 784-785 (Donald J. Trump Tweet 11/14/2020). – 10 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 11 of 165 included P9 the White House staffer and Campaign conduit, and Pence, the defendant’s running mate. 9 P9 relationship with the defendant began before P9 worked for him in the White House. P9 had known P13 the defendant’s son-in-law, since P13 was a child, and through P13 met P14 and then the defendant.29 P9 was one of several attorneys who represented the defendant in his first impeachment trial in the Senate in 2019 and 2020, including presenting argument on the Senate floor on January 27, 2020. P9 began working in the White House as an Assistant to the President in August 2020.30 In October 2020, P9 became interested in learning more about the defendant’s Campaign, and in early November 2020, after he began interfacing with Campaign staff. P9 consulted with the White House Counsel’s Office to ensure he complied with any applicable laws regarding Campaign activity.³¹ Thereafter, and throughout the post-election period, P9 became a conduit of information from the Campaign to the defendant, and over the course of the conspiracies, P9 told the defendant the unvarnished truth about his Campaign legal team and the claims of fraud that they and the defendant were making. Examples of these instances include: P9 repeatedly gave the defendant his honest assessment that CC1 could not mount successful legal challenges to the election. For instance, when the defendant told P9 that he was going to put CC1 in charge of the Campaign’s legal efforts but pay him only if he succeeded, P9 told the defendant he would never have to pay CC1 anything; 32 in response, the defendant laughed and said, “we’ll see.” Thereafter, in Oval Office meetings with the defendant, CC1 and others, in which CC1 made speculative claims, that CC1 P9 told CC1 -in front of the defendant 33 29 GA 699 30 GA 671 31 GA 672-673; GA 686 32 GA 205 33 Id. – 11 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 12 of 165 34 would be unable to prove his allegations in a courtroom. In a separate private conversation, when P9 reiterated to the defendant that CC1 would be unable to prove his false fraud allegations in court, the defendant responded, “The details don’t matter.” 935 In the post-election period, P9 also took on the role of updating the defendant on a near-daily basis on the Campaign’s unsuccessful efforts to support any fraud claims. ³ P9 told the defendant that the Campaign was looking into his fraud claims, and had even hired external experts to do so, but could find no support for them. He told the defendant that if the Campaign took these claims to court, they would get slaughtered, because the claims are all “bullshit.”37 P9 was privy in real time to the findings of the two expert consulting firms the Campaign retained to investigate fraud claims- C1 and C2 -and discussed with the defendant their debunkings on all major claims.38 For example, told the defendant that Georgia’s audit disproved claims that had altered votes. 39 P9 C3 In the post-election time period, Pence—the defendant’s own running mate, who he had directed to assess fraud allegations—told the defendant that he had seen no evidence of outcome- determinative fraud in the election. 40 This was in one of the many conversations the defendant and Pence had as running mates, in which they discussed their shared electoral interests. Pence gradually and gently tried to convince the defendant to accept the lawful results of the election, even if it meant they lost. These conversations included: • A conversation on November 4 in which the defendant asked Pence to “study up” claims of voter fraud in states that they had won together in 2016 to determine whether they could bring legal challenges as candidates in those states. 41 Pence described the conversation as follows: “Well, I think, I think it was broadly. It was just look at all of it. Let me know what you think. But he told me that the Campaign was going to fight, was going to go to 34 GA 198-204 35 GA 715, 718 36 GA 213-214 37 GA 718 38 GA 715-721 39 GA 211-212 40 GA 414-420 41 GA 412-413 -12- ; GA 207-213
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 13 of 165 • court and make challenges…. And then he just said we’re going to fight this and take a look at it. Let me know what you think.”42 A call between the defendant and Pence on November 7, the day that media organizations began to project Biden as the winner of the election. Pence “tried to encourage” the defendant “as a friend,” reminding him, “you took a dying political party and gave it a new lease on life.”43 A November 11 meeting among the defendant, Pence, Campaign staff, and some White House staff during which Pence asked when most of the lawsuits would be resolved (“when does this come to a head?”) and the Campaign staff responded, the “week after Thanksgiving.”44 A November 12 meeting among the defendant, Pence, Campaign staff, and some White House staff during which, Pence recalls, the “Campaign lawyers gave a sober and somewhat pessimistic report on the state of election challenges.”45 • A private lunch on November 12 in which Pence reiterated a face-saving option for the defendant: “don’t concede but recognize process is over.” • • “46 A private lunch on November 16 in which Pence tried to encourage the defendant to accept the results of the election and run again in 2024, to which the defendant responded, “I don’t know, 2024 is so far off.”47 A November 23 phone call in which the defendant told Pence that the defendant’s private attorney, P76 was not optimistic about the election challenges. 48 A December 21 private lunch in which Pence “encouraged” the defendant “not to look at the election ‘as a loss – just an intermission.”” This was followed later in the day by a private discussion in the Oval Office in which the defendant asked Pence, “what do you think we should do?” Pence said, “after we have exhausted every legal process in the courts and Congress, if we still came up short, [the defendant] should ‘take a bow. 49 42 GA 413-414 43 GA 421 44 GA 1036 ( 45 GA 422-424 ( 46 GA 1037 47 GA 425-426 48 GA 430 49 GA 442-448 ( ). See GA 1016 (Pence, So Help Me God p. 430). ); GA 1034-1035 ). See GA 1017 (Pence, So Help Me God p. 431). See GA 1018 (Pence, So Help Me God p. 432). ); GA 736 ). See GA 1020-1022 (Pence, So Help Me God p. 437- – 13-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 14 of 165 P9 Discussions in which Pence apprised the defendant of conversations he had had with governors in Arizona and Georgia in the context of “election challenges,” in which Pence had called the governors “simply to gather information and share it with the president,”50 and in which the governors did not report evidence of fraud in the elections in their states and explained that they could not take actions to convene their states’ legislatures. 51 But the defendant disregarded and Pence in the same way that he disregarded dozens of court decisions that unanimously rejected his and his allies’ legal claims, and that he disregarded officials in the targeted states—including those in his own party—who stated publicly that he had lost and that his specific fraud allegations were false. 52 Election officials, for instance, issued press releases and other public statements to combat the disinformation that the defendant and allies were spreading. 53 At one point long after the defendant had begun spreading false fraud 439). 50 GA 1039 432). 51 GA 427-429, GA431-435 p. 432). 52 See GA 1018 (Pence, So Help Me God p. See GA 1018 (Pence, So Help Me God OGA 1040 (Joint Statement 11/20/2020); GA 1041 (Statement 12/04/2020). 53 See, e.g., GA 1043 (Letter to Maricopa County voters 11/17/2020); GA 838 (Arizona Governor’s Tweet 12/01/2020); GA 1041 (Arizona Legislator’s Statement 12/04/2020); GA 1044- 1046 (Georgia Secretary of State News Release 10/23/2020); GA 1047-1048 (Georgia Secretary of State News Release 11/05/2020); GA 1947 (Video of Georgia Press Conference 11/06/2020); GA 1959 (Video of Georgia Press Conference 11/09/2020); GA 1960 (Video of Georgia Press Conference 11/12/2020); GA 1049-1050 (Georgia Secretary of State News Release 11/18/2020); GA 1051-1052 (Georgia Secretary of State News Release 11/19/2020); GA 1053-1054 (Georgia Secretary of State News Release 12/07/2020); GA 1946 (Video of Georgia News Conference 12/07/2020); GA 1948 (Video of Georgia Press Conference 12/16/2020); GA 1055-1057 (Georgia Secretary of State News Release 12/29/2020); GA 1949 (Video of Georgia Secretary of State Interview with Cavuto 01/02/2021); GA 1958 (Video of Georgia Press Conference 01/04/2021); GA 1058-1059 (Michigan Secretary of State web page 11/06/2020); GA 1040 (Michigan Legislators’ Joint Statement 11/20/2020); GA 1060-1062 (Michigan Attorney General and Secretary of State News Release 12/14/2020); GA 1063-1064 (Michigan Secretary of State web page 12/17/2020); GA 1065 (Michigan Secretary of State web page 12/18/2020); GA 1066 (Michigan Secretary of State web page); GA 1907 (Video of Michigan Clerk’s Statement); GA 1068-1070 (New Mexico Secretary of State News Release 12/14/2020); GA 1953 (Video of P47 Interview with CNN 11/11/2020); GA 822 P47 Tweet 11/27/2020); GA 1071-1072 (Pennsylvania Department of State Public Response Statement 12/29/2020); GA 1073-1076 – 14-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 15 of 165 claims, P15 a White House staffer traveling with the defendant, overheard him tell family members that “it doesn’t matter if you won or lost the election. You still have to fight like hell.”54 The defendant and his co-conspirators also demonstrated their deliberate disregard for the truth—and thus their knowledge of falsity—when they repeatedly changed the numbers in their baseless fraud allegations from day to day. At trial, the Government will introduce several instances of this pattern, in which the defendant and conspirators’ lies were proved by the fact that they made up figures from whole cloth. One example concerns the defendant and conspirators’ claims about non-citizen voters in Arizona. The conspirators started with the allegation that 36,000 non-citizens voted in Arizona; 55 five days later, it was “beyond credulity that a few hundred thousand didn’t vote”; 5 three weeks later, “the bare minimum [was] 40 or 50,000. The reality is about 250,000”;57 days after that, the assertion was 32,000; 58 and ultimately, the conspirators landed back where they started, at 36,000—a false figure that they never verified or corroborated. 59 56 Ultimately, the defendant’s steady stream of disinformation in the post-election period culminated in the speech he gave at a privately-funded, privately-organized rally at the Ellipse on the morning of January 6, 2021, in advance of the official proceeding in which Congress was to certify the election in favor of Biden. 60 In his speech, the defendant repeated the same lies about (Wisconsin Elections Commission web page 11/05/2020); GA 1077-1081 (Wisconsin Elections Commission web page 11/10/2020); GA 1082-1087 (Wisconsin Elections Commission web page). 54 GA 308 55 OGA 1890 at 20:46 (Common Sense with 11/25/2020). 56 GA 1906 at 2:06:25 (Video of Arizona Hotel Hearing 11/30/2020). 57 GA 1980 at 18:52 58 GA 1981 at 35:19 59 GA 1106 (Dalton Rally Speech Draft Tr. 01/04/2021); GA 1134 (Ellipse Rally Speech Draft Tr. 01/06/2021). 60 GA 1114-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021); GA 1142 -15-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 16 of 165 election fraud in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin that had been publicly, or directly, debunked. 61 The defendant used these lies to inflame and motivate the large and angry crowd of his supporters to march to the Capitol and disrupt the certification proceeding. 62 C. The Defendant Aimed Deceit at the Targeted States to Alter Their Ascertainment and Appointment of Electors Shortly after election day, the defendant began to target the electoral process at the state level by attempting to deceive state officials and to prevent or overturn the legitimate ascertainment and appointment of Biden’s electors. As President, the defendant had no official responsibilities related to the states’ administration of the election or the appointment of their electors, and instead contacted state officials in his capacity as a candidate. Tellingly, the defendant contacted only state officials who were in his political party and were his political supporters, and only in states he had lost. The defendant’s attempts to use deceit to target the states’ electoral process played out in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, as well as across these and other states that used certain voting machines. In addition to the following evidence of the defendant’s conduct during the charged conspiracies, at trial the Government will elicit testimony from election officials from the targeted states to establish the objective falsity—and often, impossibility—of the defendant’s fraud claims. Notably, although these election officials would have been the best sources of information to determine whether there was any merit to specific allegations of election fraud in their states, the defendant never contacted any of them to ask. 61 GA 1126-1129, GA 1131-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021). 62 GA 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021). -16-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 17 of 165 1. Arizona P16 to ask him The defendant was on notice that there was no evidence of widespread election fraud in Arizona within a week of the election. On November 9, for instance, two days after news networks projected that Biden had won, the defendant called Arizona Governor what was happening at the state level with the presidential vote count in Arizona. 63 At that point, though Fox News had projected that Biden had won the state, several other news outlets- including ABC, NBC, CNN, and the New York Times-had not yet made a projection.64 P16 walked the defendant through the margins and the votes remaining to be counted, which were primarily from Pima County, which favored Biden, and Maricopa County, which was split.65 P16 described the situation to the defendant as “the ninth inning, two outs, and [the defendant] was several runs down.” The defendant also raised claims of election fraud, and P16 asked the defendant to send him supporting evidence. 67 Although the defendant said he would-stating, “we’re packaging it up”―he never did. 68 Shortly thereafter, on November 13, Campaign Manager P2 told the defendant directly that a false fraud claim that had been circulating-that a 63 GA 656-658 64 ); GA 727 See, e.g., Democrats flip Arizona as Biden, Kelly score key election wins, Fox NEWS, Nov. 3, 2020, available at https://www.foxnews.com/video/6206934979001; Dan Merica, Biden carries Arizona, flipping a longtime Republican stronghold, CNN.COM, Nov. 13, 2020, available at https://www.cnn.com/2020/11/12/politics/biden-wins-arizona/index.html; Luis Ferré-Sadurni et al., Biden flips Arizona, further cementing his presidential victory, N.Y. TIMES, Nov. 12, 2020, available at https://www.nytimes.com/2020/11/12/us/biden-wins-arizona.html; Election Latest: Biden Projected Winner in Arizona, NBC 4 NEW YORK, Nov. 12, 2020, available at https://www.nbcnewyork.com/news/politics/decision-2020/election-latest-biden-talks-to-world- leaders-about-virus/2718671/. 65 GA 667 66 Id. 67 GA 657 68 Id. -17-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 18 of 165 substantial number of non-citizens had voted in Arizona-was false. 69 The same day, as noted previously, Campaign attorneys conceded in court that the remaining election lawsuit in Arizona was moot. The defendant and CC1 continued to try to influence P16 For example, CC1 tried to contact P16 on November 22—the same day the defendant and CC1 reached out to the Arizona Speaker of the House, as described below. 70 And on November 30, the day P16 signed the Arizona certificate of ascertainment formally declaring Biden’s electors as the legitimate electors for Arizona, P16 received a call from the defendant and Pence.7 P16 advised them that Arizona had certified the election; when the defendant brought up fraud claims, P16 -eager to see the evidence—again asked the defendant to provide it, but the defendant never did.72 Instead, later that evening and into the following morning, the defendant repeatedly publicly attacked P16 (as well as Georgia Governor P17 ) on Twitter, re-tweeting posts by others, such as “Who needs Democrats when you have Republicans like P17 and P16 73. “Watching the Arizona hearings and then watching Gov. P16 sign those papers, why bother voting for Republicans if what you get is P16 and ran the most corrupt election in American history.’ P17 74.
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 19 of 165 The defendant and co-conspirators also attempted to use false fraud claims to convince political allies in the Arizona state legislature to ignore the popular vote and appoint illegitimate electors. On November 22, the defendant and CC1 called P18 the Speaker of the Arizona House of Representatives.7 77 CC1 did most of the talking.78 During the call, the defendant and CC1 levied multiple false fraud claims—including of non-citizen, non-resident, and dead voters that affected the defendant’s race and asked P18 to use them as a basis to call the state legislature into session to replace Arizona’s legitimate electors with illegitimate ones for the defendant.79 When P18 voiced his deep skepticism, CC1 said, “well, you know, we’re all kind of Republicans and we need to be working together.” P18 refused, and asked CC1 to provide evidence supporting his fraud claims.81 CC1 80 never did. 82 Indeed, CC1 met with P18 in person approximately a week later and still had nothing to back up his claims. On November 30, CC1 P12 and others arrived in Arizona for a “hotel hearing”—an unofficial meeting with Republican legislators—―during which they promoted false fraud allegations. 83 In a meeting the day after the hearing, when state legislators pressed CC1 and P12 for evidence to support their claims, CC1 conceded that even on that late date, “[w]e don’t have the evidence, but we have lots of theories.”84 When the legislators were frustrated that CC1 had no support for his claims and asked him tough questions, CC1 expressed surprise at the way he was being treated, stating “Man, I thought we were all 77 GA 735 78 See GA 30 79 GA 22-24 80 GA 28 81 GA 22-33 82 GA 25 ); GA 21-22 83 GA 1906 at 56:19 (Video of Arizona Hotel Hearing 11/30/2020). 84 GA 36 – 19 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 20 of 165 Republicans…. [T]his is a little more hostile a reception. I’m amazed at the reception I’m getting here.”85 On December 4, P18 released a public statement in which he explained that he did not have the authority to use the legislature “to reverse the results of the election” and that doing so would constitute an attempt “to nullify the people’s vote based on unsupported theories of fraud.”86 P18 made clear that he was disappointed with the legitimate election results because he “voted 987 P19 for President Trump and worked hard to reelect him” but would not “violate current law to change the outcome of a certified election.” On Twitter, a Campaign staffer who worked with CC6 attacked P18 for his statement, writing that P18 “is intentionally misleading the people of Arizona to avoid the inevitable.” The defendant re-tweeted P19 false post and praised her. 88 A month later, just two days before January 6, CC2 attorneys and a co-conspirator-called P18 and P18 -another of the defendant’s private counsel, P20 and urged P18 one last time to use the legislature to decertify Arizona’s legitimate electors and overturn that there was no evidence of substantial the valid election results. 89 When P18 told CC2 fraud in Arizona, and that he could not legally call the legislature into session, CC2 was undeterred. He conceded that he “[didn’t] know enough about the facts on the ground” regarding 85 GA 35 86 GA 1041-1042 87 GA 1042 88 Statement 12/04/2020). Statement 12/04/2020). GA 854-855 (Donald J. Trump Tweet 12/06/2020); GA 852-853 (Donald J. Trump Tweet 12/06/2020). 89 GA 37-44 ); GA 408-409 -20-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 21 of 165 fraud in Arizona, and said that P18 should nonetheless falsely claim that he had the authority 990 to convene the legislature and “let the courts sort it out.” P18 again refused.⁹1 was harassed; on several occasions, individuals home with bullhorns and screamed and honked their vehicle horns to In the post-election period, P18 gathered outside P18 create noise. 92 Once, an individual in visible possession of a pistol and wearing a t-shirt in support of a militia group came onto P18 property and screamed at him.93 At the time of these events, P18 daughter was at home and was very ill, and the noise caused her “disruption and angst.” 2. Georgia >>94 The defendant had early notice that his claims of election fraud in Georgia were false. Around mid-November, Campaign advisor P4 told the defendant that his claim that a large number of dead people had voted in Georgia was false. 95 The defendant continued to press the claim anyway, including in a press appearance on November 29, when he suggested that a large enough number of dead voters had cast ballots to change the outcome of the election in Georgia.⁹ Four days later, on December 3, CC1 orchestrated a presentation to a Judiciary Subcommittee of the Georgia State Senate. 97 In the morning in advance of it, CC1 had spoken to the defendant on the phone for almost twenty minutes.98 And at the hearing, CC1 arranged for co-conspirators and agents to repeat the false dead voter claim. The claim was so patently false 90 GA 1144 91 GA 41-42 92 GA 45-47 93 GA 46-47 94 GA 47 95 GA 388-390 ); GA 39 96 GA 1969 at 22:43-23:51 (Video of Trump Interview with Maria Bartiromo 11/29/2020). 97 GA 1934 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020). 98 GA 739 at 1 -21-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 22 of 165 P9 attorney, P22 that everyone around the defendant knew it: during the hearing, Chief of Staff P21 exchanged text messages on their personal phones confirming that a Campaign had verified that CC1 claim of more than 10,000 dead voters was false and that the actual number was around 12 and could not be outcome-determinative.99 and During the subcommittee hearing, the conspirators also set in motion a sensational and dangerous lie about election workers at State Farm Arena that would result in the defendant’s supporters harassing and threatening those workers. First, P23 one of the defendant’s private attorneys, claimed that more than 10,000 dead people had voted in Georgia. 100 Next, P24 an agent of the defendant, played misleading excerpts of closed-circuit camera footage from State Farm Arena and insinuated that it showed election workers committing misconduct― counting “suitcases” of illegal ballots. 101 Lastly, based on the false fraud allegations, CC2 who had already been engaged as a private lawyer for the defendant but did not disclose that at the hearing encouraged the Georgia legislators to decertify the state’s legitimate electors. 102 While the hearing was ongoing, the defendant simultaneously amplified the misinformation about the State Farm Arena election workers, falsely tweeting, “Wow! Blockbuster testimony taking place right now in Georgia. Ballot stuffing by Dems when Republicans were forced to leave the large counting room. Plenty more coming, but this alone 99 ECF No. 226 ¶ 26(a); GA 1146 ); see also GA 364-365 100 GA 1934 at 30:54 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020); GA 1146 101 GA 1934 at 34:06 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020); ECF No. 226 ¶ 26(b). 102 GA 1934 at 4:44:05 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020). -22-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 23 of 165 leads to an easy win of the State!”103 He did this just after re-tweeting two of his Campaign account’s Tweets that promoted the false claim about election workers at State Farm Arena. 104 Over the next week, the claim of misconduct at State Farm Arena was disproven publicly the Chief Operating as well as directly to the defendant. The day after the hearing, P25 Officer of the Georgia Secretary of State’s Office, posted a Tweet explaining that Secretary of State officers had watched the video in its entirety and confirmed that it showed “normal ballot processing.”105 P25 again forcefully debunked the conspirators’ claim about the State Farm video in a press conference on December 7, explaining at length the election workers’ innocent conduct depicted in the closed-circuit camera footage and stating: And what’s really frustrating is the President’s attorneys had this same videotape. They saw the exact same things the rest of us could see. And they chose to mislead state senators and the public about what was on that video. I’m quite sure that they will not characterize the video if they try to enter it into evidence because that’s the kind of thing that could lead to sanctions because it is obviously untrue. They knew it was untrue and they continue to do things like this.10 106 On December 8, the defendant called Georgia Attorney General P26 107 P26 had advance notice that the topic of the call was Texas v. Pennsylvania, an election lawsuit in which Texas was suing other states—including Georgia—to attempt to prevent the certification of the election. 108 U.S. Senator P27 told P26 that the defendant had heard that P26 was “whipping,” or lobbying, other state attorneys general against filing amicus briefs in support of 103 GA 846-847 (Donald J. Trump Tweet 12/03/2020). 104 GA 845, GA 1893 (Donald J. Trump Tweet 12/03/2020); GA 844, GA 1894 (Donald J. Trump Tweet 12/03/2020). 105 GA 848 P25 Tweet 12/04/2020). 106 OGA 1933 at 8:43 (Video of Georgia Secretary of State Press Conference 12/07/2020). 107 GA 742 108 GA 61-62 -23-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 24 of 165 Texas. 109 P26 was not lobbying against the suit, and told P27 P27 asked P26 if he would speak with the defendant about it, and P26 agreed. 110 so Shortly thereafter, the defendant called P26 and immediately raised Texas v. Pennsylvania, saying, “I hope you’re not talking to your AGs and encouraging them not to get on the lawsuit.”111 P26 told the defendant that he was not affirmatively calling other state attorneys general, but that if they called him, he was telling them what he was seeing in his state—which was something that the defendant probably did not want to hear: P26 was just not seeing evidence of fraud in Georgia. 112 The defendant nonetheless raised various fraud claims. P26 told him that state authorities had investigated the State Farm Arena allegations and found no wrongdoing, and that he thought another claim the defendant raised about Coffee County, Georgia, had been similarly resolved, but would check. 113 The defendant asked P26 to look at them again “because we’re running out of time.” 114 P26 tried to steer the call to an end by thanking the defendant and telling him that he had voted for him twice and appreciated the defendant, to which the defendant responded, “Yeah, I did a hell of a job, didn’t I?”115 At one point, the defendant raised with P26 the impending run-off election for Georgia’s U.S. Senate seats and how important it was to re-elect P27 and P28 116 The day after the call, the defendant-in his private capacity as a candidate for president—intervened in support of Texas v. CC2 117 Pennsylvania; his attorney for that matter was 109 GA 62 110 GA 61-62 111 GA 64 112 Id. 113 GA 65-66 114 GA 66 GA 67 115 116 Id. 117 2023). Mot. to Intervene, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 9, 2020). -24-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 25 of 165 On the same day as the defendant’s call with P26 the defendant’s Campaign staff acknowledged that the State Farm Arena claim was unsupported, emailing one another about the fact that television networks may decline to run Campaign advertisements promoting it. In frustration regarding the claim and others like it, P4 -who spoke with the defendant on a daily basis and had informed him on multiple occasions that various fraud claims were false—wrote, “When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0-32 on our cases. I’ll obviously hustle to help on all fronts, but it’s tough to own any of this when it’s all just conspiracy shit beamed down from the mothership.”118 On December 10, however, CC1 further perpetuated the false State Farm Arena claim when he appeared at another hearing, this one before the Georgia House of Representatives’ Government Affairs Committee. During it, he displayed some of the same footage as had been used in the December 3 hearing that had been debunked in the interim by Georgia officials, and nonetheless claimed that it showed “voter fraud right in front of people’s eyes.” “119 He then named two election workers- P29 and her mother, P30 -and baselessly accused them of “quite obviously surreptitiously passing around USB ports as if they are vials of heroin or cocaine,” and suggested that they were criminals whose “places of work, their homes, should have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter fraud.”120 As these false claims about P30 and P29 spread, the women were barraged by racist death threats. In the years since, they have spoken about the effect of the defendant and co- conspirators’ lies about them; as P30 explained in an interview with congressional 118 GA 1147 119 GA 1932 at 1:37:18-1:48:33 (Video of Georgia House Committee Hearing 12/10/2020). 120 GA 1932 at 1:57:10-1:58:00 (Video of Georgia House Committee Hearing 12/10/2020). -25-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 26 of 165 investigators, “when someone as powerful as the President of the United States eggs on a mob, that mob will come. They came for us with their cruelty, their threats, their racism, and their hats. They haven’t stopped even today.”121 Indeed, to this day, the defendant has never stopped falsely attacking P30 and P29 Although none of the false claims against them were ever corroborated, the defendant has continued to levy them on social media, including when the defendant attacked P30 in January 2023 just after her testimony to congressional investigators was made public. 122 Throughout the post-election period, the defendant used Twitter to publicly attack Georgia Governor P17 with particular aggression. In the thirty-five days between November 30, 2020, and January 3, 2021, the defendant tweeted critically about P17 by name or title, more than forty times. These tweets included the ones also attacking P16 described above, as well as others particular to P17 like, “Why won’t Governor @ P17 the hapless Governor of Georgia, use his emergency powers, which can be easily done, to overrule his obstinate Secretary of State, and do a match of signatures on envelopes. It will be a ‘goldmine’ of fraud, and we will easily WIN the state”123; “I will easily & quickly win Georgia if Governor @ P17 or the Secretary of State permit a simple signature verification. Has not been done and will show large scale discrepancies. Why are these two ‘Republicans’ saying no? If we win Georgia, everything else falls in place!”124; “The Republican Governor of Georgia refuses to do signature verification, which would give us an easy win. What’s wrong with this guy? What is he 121 GA 171 122 GA 966 (Donald J. Trump Truth Social Post 01/03/2023); GA 964 (Donald J. Trump Truth Social Post 01/02/2023); GA 965 (Donald J. Trump Truth Social Post 01/03/2023). 123 GA 829-830 (Donald J. Trump Tweet 11/30/2020). 124 GA 850-851 (Donald J. Trump Tweet 12/05/2020). -26-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 27 of 165 hiding?”125; and “How does Governor @ P17 allow certification of votes without verifying signatures and despite the recently released tape of ballots being stuffed? His poll numbers have dropped like a rock. He is finished as governor!”126 In the post-election period, the defendant also made false claims in court about fraud in Georgia-unsuccessfully. For example, in Trump v. Kemp, a federal lawsuit in which the defendant sued Georgia’s Governor and Secretary of State, the defendant signed a verification of fraud allegations that he and his attorney on the case, CC2 knew was inaccurate. spoke with the defendant and CC2 in late December regarding the proposed verification. First, he told CC2 that they could not have the P9 and another private attorney, P31 defendant sign it because they could not verify any of the facts.¹ 127 And P9 told the defendant that any lawyer that signed the complaint that the verification supported would get disbarred. 128 CC2 acknowledged this problem in an email on December 31 to P32 lead counsel for the defendant as candidate in Trump v. Kemp, and another private attorney, writing that in the time since the defendant signed a previous verification in the case, he “had been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate” and that signing a new affirmation “with that knowledge (and incorporation by reference) would not be accurate.” 129 Nonetheless, on December 31, the defendant signed the verification, and caused it to be filed. 130 CC2 125 GA 857, GA 859 (Donald J. Trump Tweet 12/07/2020). 126 GA 864 (Donald J. Trump Tweet 12/10/2020). 127 GA 238-239 128 GA 239 129 GA 1152 130 Complaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1. -27-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 28 of 165 On January 2, Georgia Secretary of State P33 appeared on Fox News and said that various rumors of election fraud were false, and the defendant had lost in Georgia: Our office has been very busy with what I call the rumor whack-a-mole. Every day, a rumor will pop up and then we whack it down. What we do is, we basically whack it down with the truth. And people can’t handle the truth sometimes because they’re very disappointed in the results. And I get that. I voted for President Trump also, but at the end of the day, we did everything we could. We did an audit of the race; President Trump still lost. Then we did a full recount; President Trump still lost… we had a safe, secure process. P33 131 like P17 had been on the receiving end of the defendant’s Tweets. These a so-called Republican, allowing included: “Why isn’t the @GASecofState P33 us to look at signatures on envelopes for verification? We will find tens of thousands of fraudulent and illegal votes”; “RINOS @ P17 P34 & Secretary of State P33 will be solely responsible for the potential loss of our two GREAT Senators from Georgia, @ P27 & @ P28 Won’t call a Special Session or check for Signature Verification! People are ANGRY!;” and “Georgia, where is signature verification approval? What do have you @GaSecofState.” to lose? Must move quickly! @ P17 P34 “132 Shortly after seeing the interview, the defendant set up a call with P33 to discuss P33 his pending private lawsuit, Trump v. Kemp, in which For this reason, P33 was a named defendant. 133 at first hoped to avoid speaking with the defendant but ultimately 131 GA 1949 at 3:22 (Video of 132 P33 Interview with Cavuto 01/02/2021). GA 813-814 (Donald J. Trump Tweet 11/24/2020); GA 862-863 (Donald J. Trump Tweet 12/08/2020); GA 865-866 (Donald J. Trump Tweet 12/11/2020). 133 GA 367-368 Complaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1. -28-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 29 of 165 acquiesced because the defendant was persistent in seeking to set it up. P33 arranged for his general counsel, 134 Also because of the P35 to participate.” 135 pending lawsuit, Joining the defendant on the call were Chief of Staff P21 and three private attorneys- and P36 P32 counsel of record in Trump v. Kemp and the attorneys whom CC2 had emailed about the defendant’s false verification, and P31 whom P21 introduced on the call as someone “who is not the attorney of record but has been involved.” The defendant began the call with an animated monologue in which he argued that he had won the election in Georgia, saying, “Okay, thank you very much. Hello P33 and P35 and everybody. We appreciate the time and the call. So we’ve spent a lot of time on this, and if we could just go over some of the numbers, I think it’s pretty clear that we won. We won very 136 substantially, uh, Georgia.” Throughout the call, the defendant continued to state that he had won and referenced Biden’s margin of victory that he needed to overcome to prevail in the state, including by asserting that “I just want to find 11,780 votes.” He did not reference other 137 elections on the same ballot. After the defendant’s opening salvo, P33 stated, “Well, I listened to what the President has just said. President Trump, we’ve had several lawsuits, and we’ve had to respond in court to the lawsuits and the contentions. We don’t agree that you have “138 won. The defendant raised multiple false claims of election fraud, each of which P33 refuted in turn. When the defendant attacked P30 called her “a professional vote scammer 134 GA 514 135 GA 514-515 136 GA 1154 (Tr. of P33 Call 01/02/2021). 137 GA 1165 (Tr. of P33 Call 01/02/2021). 138 GA 1157 (Tr. of P33 Call 01/02/2021). -29-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 30 of 165 and hustler,” 139 and mentioned her dozens of times throughout the call, P33 said, “You’re talking about the State Farm video. And I think it’s extremely unfortunate that CC1 “140 or his people, they sliced and diced that video and took it out of context.” He then offered the defendant a link to a video disproving the claim, to which the defendant responded, “I don’t care about a link, I don’t need it. I have a much, P33 I have a much better link.”141 When the defendant claimed that 5,000 dead people had voted in Georgia, P33 said, “Well, Mr. President, the challenge you have is the data you have is wrong… The actual number were two. Two. Two people that were dead that voted. And so that’s wrong, that was two.”142 When the defendant claimed that thousands of out-of-state voters had cast ballots, P33 counsel, P35 responded, “We’ve been going through each of those as well, and those numbers that we got, that Ms. P31 was just saying, they’re not accurate.”143 P33 and P35 At one point, the defendant became frustrated after both explained repeatedly that his claims had been investigated and were not true and stated, “And you’re gonna to find that they are which is totally illegal—it’s, it’s, it’s more illegal for you than it is for them because, you know what they did and you’re not reporting it. That’s a criminal, you know, that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you and to P35 your lawyer. That’s a big risk.”144 The call ended with P35 stating that he 139 GA 1155 (Tr. of P33 Call 01/02/2021). 140 GA 1160 (Tr. of P33 Call 01/02/2021). 141 GA 1161 (Tr. of P33 Call 01/02/2021). 142 GA 1159 (Tr. of P33 Call 01/02/2021). 143 GA 1162 (Tr. of P33 Call 01/02/2021). 144 GA 1165 (Tr. of P33 Call 01/02/2021). -30-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 31 of 165 would coordinate with the lawyer representing P33 office in the private lawsuit and get together with P32 as agreed earlier in the call. 145 State The day after the call, on January 3, the defendant falsely tweeted, “I spoke to Secretary of yesterday about Fulton County and voter fraud in Georgia. He was P33 unwilling, or unable, to answer questions such as the ‘ballots under table’ scam, ballot destruction, P33 out of state ‘voters’, dead voters, and more. He has no clue!” 146 promptly responded in a Tweet of his own: “Respectfully, President Trump: What you’re saying is not true. The truth will come out.’ “147 3. Michigan On November 20, three days before Michigan’s Governor signed a certificate of ascertainment appointing Biden’s electors based on the popular vote, the defendant met with P37 Michigan’s Senate Majority Leader and Speaker of the House, at the P39 and P38 Oval Office. 148 The defendant initiated the meeting by asking RNC Chairwoman to reach out to P38 P39 and gauge his receptivity to a meeting. 149 The defendant also asked to participate in the meeting, but P39 told him that she had consulted with her attorney and that she could not be involved in a meeting with legislators because it could be P39 made the first contact, on November 18, the defendant 150 After perceived as lobbying.’ reached out to P37 and P38 to extend an invitation. 151 The same day that he contacted 145 GA 1172-1173 (Tr. of P33 Call 01/02/2021). 146 GA 919-920 (Donald J. Trump Tweet 01/03/2021). 147 GA 925 P33 Tweet 01/03/2021). 148 GA 555-557, 565 149 GA 70-71 150 GA 330-337 151 GA 556-557 -31- ); GA 15
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 32 of 165 P37 and P38 the defendant issued a false Tweet: “In Detroit, there are FAR MORE VOTES THAN PEOPLE. Nothing can be done to cure that giant scam. I win Michigan!”152 When the defendant called P37 and P38 to invite them to the White House, he did not provide the topic of the meeting, but he did ask about allegations of fraud in the election in Michigan. 153 The legislators told him that they and the Michigan legislature were examining the allegations. 154 Both P37 and P38 assumed that the defendant wanted to see them to discuss claims of election fraud, and they wanted to be firm that they had not seen evidence that would change the outcome of the election. 155 For this reason, and to avoid talking only about election fraud, they prepared materials to raise regarding COVID-19, and planned in advance to release a statement once the meeting was over that said that the legislators were unaware of information that would change the outcome of the election. 156 P21 despite her request Over the course of the meeting, the defendant dialed in both P39 not to participate and CC1 157 was present for some, but not all, of the meeting. 158 After some small talk with the legislators in the Oval Office, the defendant raised various fraud claims, including that he had lost Michigan because of fraud or misconduct in Wayne County, where Detroit is located.¹ 159 P37 corrected the defendant and told him that he had lost primarily because in two routinely Republican counties, the defendant had underperformed with educated 152 OGA 797-798 (Donald J. Trump Tweet 11/18/2020). 153 GA 556-557 154 GA 558 155 GA 74-78 156 GA 75 157 GA 330-337 561 158 GA 361-362 159 GA 562-564 ); GA 82 ); GA 560- -32-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 33 of 165 females, and if he had received the same number of votes there as the two winning local sheriffs, P37 could tell by the defendant’s body language that he likely would have won Michigan.” 160 he was not happy to hear P37 assessment. 161 Notably, the defendant only raised fraud claims to the extent that they affected the outcome in his own race, not those for other offices in Michigan.¹ 162 CC1 participation came after the legislators assured the defendant that they were looking into fraud claims; the defendant dialed CC1 into the meeting and said, CC1 tell them what’s going on.” CC1 then launched into a fraud monologue. 163 Finally, P37 interrupted and asked, “So when are you going to file a lawsuit in Michigan?”—a question that CC1 ignored and did not answer. 164 Immediately after the meeting, P37 and P38 released a public statement in which they stated that they had “not yet been made aware of any information that would change the “165 outcome of the election in Michigan.” On November 21, the defendant acknowledged P37 and P38 statement when he tweeted, “This is true, but much different than reported by the media” and implicitly conceded that he had not provided evidence of fraud yet when he added, “We will show massive and unprecedented fraud!”166 Days later, the defendant’s Campaign 160 GA 564 161 GA 563-565 162 GA 560-571 163 GA 575 164 GA 569 165 GA 1040 166 ); GA 70-94 ); GA 567-569 ); GA 575 ( Joint Statement 11/20/2020); GA 94-95 GA 799-800 (Donald J. Trump Tweet 11/21/2020). – 33 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 34 of 165 declined to request a state-wide recount in Michigan, for which it would have had to pay unless the recount succeeded in changing the outcome of the election. 167 P38 Despite failing to establish any valid fraud claims, CC1 followed up with P37 and and attempted to pressure them to use the Michigan legislature to overturn the valid election results. On December 4, CC1 sent a message to P38 claiming that Georgia was poised to do so (based on CC1 and and asked P38 CC2 false advocacy there in the December 3 hearing) for help: “Looks like Georgia may well hold some factual hearings and change the certification under ArtII sec 1 cl 2 of the Constitution. As CC2 explained they 168 On don’t just have the right to do it but the obligation. . . . Help me get this done in Michigan.” December 7, CC1 attempted to send P37 a message (though failed because he typed the wrong number into his phone): “So I need you to pass a joint resolution from the Michigan legislature that states that, * the election is in dispute, * there’s an ongoing investigation by the Legislature, and * the Electors sent by Governor Whitmer are not the official Electors of the State of Michigan and do not fall within the Safe Harbor deadline of Dec 8 under Michigan law.” Campaign operative P5 was involved in the drafting of this message with the assistance of P41 170 who was associated with the defendant’s Campaign efforts in Michigan. following day, CC1 shared the draft with the defendant, sending it to his executive assistant, 169 The P42 by email. 171 167 GA 49-53 168 GA 1175 GA 1177 169 1187 170 GA 1188 171 GA 1189 ); GA 15-19 ); GA 1178- -34-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 35 of 165 These efforts failed. On December 14, the day that duly-appointed electors across the country met and cast their electoral votes, P37 and P38 issued public statements confirming that the defendant had lost Michigan and the legislators still had not received evidence of outcome-determinative fraud in their state. 172 P37 public statement included, “[W]e have not received evidence of fraud on a scale that would change the outcome of the election in Michigan.’ “173 P38 stated, in part: We’ve diligently examined these reports of fraud to the best of our ability. . . I fought hard for President Trump. Nobody wanted him to win more than me. I think he’s done an incredible job. But I love our republic, too. I can’t fathom risking our norms, traditions and institutions to pass a resolution retroactively changing the electors for Trump, simply because some think there may have been enough widespread fraud to give him the win. That’s unprecedented for good reason. And that’s why there is not enough support in the House to cast a new slate of electors. I fear we’d lose our country forever. This truly would bring mutually assured destruction for every future election in regards to the Electoral College. And I can’t stand for that. I won’t. 174 On January 3, the defendant’s Campaign publicly posted P37 phone number, and attempted to post P38 (but erred by one digit), in a Tweet urging, “Contact Speaker P38 175יין P37 received four thousand text 176 P37 & Senate Majority Leader messages in two hours, forcing him to get a new phone number. 4. Nevada On November 17, in Law v. Whitmer, agents of the defendant in Nevada filed suit, claiming “substantial irregularities, improprieties, and fraud” in the presidential election, including based 172 GA 1190-1192 173 GA 1191 Press Releases 12/14/2020). Press Releases 12/14/2020). 174 GA 1192 175 Press Releases 12/14/2020). GA 917 (Team Trump Tweet 01/03/2021); GA 918 (Team Trump Tweet 01/03/2021). 176 GA 573-574, 576-577 -35-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 36 of 165 on machines used in ballot signature matching and votes by non-resident and dead voters. defendant approved a press conference by his surrogates announcing the suit. 178 On November 19, P43 177 The the RNC Chief Counsel, sent an email to P44 an RNC spokesperson, warning about inaccuracies in the suit: “Just FYI that I don’t believe the claims in the contest regarding dead voters, those voting from out-of-state, etc. are substantiated. We are working with the campaign on a data matching project and those numbers are going to be a lot lower than what the NV people have come up with. They are also targeting our military voters. To be frank, the contest has little chance of succeeding. Happy to discuss this then sent a copy of P43 email from her personal email account to the personal email account of P45 “179 P44 stuff if you want more info.” staffers who also volunteered for the Campaign. 180 one of the defendant’s White House Notwithstanding the RNC Chief Counsel’s warning, the defendant re-tweeted and amplified news of the lawsuit on November 24, calling it “Big News!” that a Nevada Court had agreed to hear it. 181 But the defendant did not similarly promote the fact that within two weeks, on December 4, the Nevada District Court dismissed Law v. Whitmer, finding in a detailed opinion that “there is no credible or reliable evidence that the 2020 General Election in Nevada was affected by fraud,” including through the signature-match machines, and that Biden won the election in the state. 182 Four days later, on December 8, Nevada’s Supreme Court unanimously 177 Complaint at 1, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Nov. 17, 2020) available at: https://electioncases.osu.edu/wp-content/uploads/2020/11/Law-v-Gloria-Complaint.pdf; GA 1963 (Video of Trump Campaign Press Conference 11/17/2020). 178 OGA 1193-1194 179 GA 1195 180 GA 1196-1197, 1195 181 GA 817-818 (Donald J. Trump Tweet 11/24/2020). 182 Order at 13-24, 28-34, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Dec. 4, 2020) -36-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 37 of 165 affirmed the District Court’s decision, noting that despite its “earlier order asking appellants to identify specific findings with which they take issue, appellants have not pointed to any unsupported factual findings, and we have identified none. Later, in his Ellipse speech on “183 January 6, the defendant repeated multiple claims explicitly rejected by Nevada courts. 184 On December 18, the Nevada Secretary of State’s Office released a “Facts vs. Myths” document to combat disinformation that the defendant and others were propagating about the election, including false claims that the Secretary of State’s Office had not investigated claims of fraud even though it had “been presented with evidence of wide-spread fraud”—to which the Office responded, “While we are pursuing action in a number of isolated cases, we have yet to see any evidence of wide-spread fraud.” ” 185 The “Facts vs. Myths” document also stated publicly that courts had universally rejected fraud claims: “Four separate cases were heard by Nevada judges including the NV Supreme Court. After examining records presented, each case was discounted due to a lack of evidence.”186 5. Pennsylvania P46 the Two days after the election, on November 6, the defendant called Chairman of the Pennsylvania Republican Party—the entity responsible for supporting Republican available at: https://electioncases.osu.edu/wp-content/uploads/2020/11/Law-v-Gloria-Order- Granting-Motion-to-Dismiss.pdf. 183 Law v. Whitmer, 136 Nev. 840 (Nev. 2020). 184 Compare Order at 18-20, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Dec. 4, 2020) available at: https://electioncases.osu.edu/wp-content/uploads/2020/11/Law-v-Gloria-Order- Granting-Motion-to-Dismiss.pdf (finding no support for claims of double ballots, non-resident, and deceased voters) with GA 1134-1135 (Ellipse Rally Speech Draft Tr. 01/06/2021) (“There were also more than 42,000 double votes in Nevada”; “1,500 ballots were cast by individuals whose names and dates of birth match Nevada residents who died in 2020 prior to November 3rd election. More than 8,000 votes were cast by individuals who had no address and probably didn’t live there.”). 185 GA 1198 (Nevada Facts vs. Myths 12/18/2020). 186 OGA 1199 (Nevada Facts vs. Myths 12/18/2020). -37-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 38 of 165 P46 had a prior candidates in the commonwealth at the federal, state, and local level. 187 relationship with the defendant, including having represented him in litigation in Pennsylvania after the 2016 presidential election. 188 The defendant asked P46 how, without fraud, he had gone from winning Pennsylvania on election day to trailing in the days 189 afterward.¹ Consistent with what Campaign staff already had told the defendant, P46 confirmed that it was not fraud; it was that there were roughly 1,750,000 mail-in ballots still being counted in Pennsylvania, which were expected to be eighty percent for Biden. 190 Over the following two months, the defendant spread false claims of fraud in Pennsylvania anyway. In early November, in a Campaign meeting, when the defendant suggested that more people in Pennsylvania voted than had checked in to vote, Deputy Campaign Manager P3 corrected him.191 Around the same time, Philadelphia City Commissioner P47 appeared 192 After P47 a on television and stated that there was no evidence of widespread fraud in Philadelphia. seeing the interview, the defendant targeted P47 tweeting, “A guy named Philadelphia Commissioner and so-called Republican (RINO), is being used big time by the Fake News Media to explain how honest things were with respect to the Election in Philadelphia. He refuses to look at a mountain of corruption & dishonesty. We win!” 193 As a result of the defendant’s attack, threats that P47 already was receiving became more targeted and detailed and included his address and the names of his family members. 194 187 GA 618-619 ); GA 723-724 188 GA 616-617 189 GA 619-620 190 GA 620 191 GA 159 192 GA 1953 at 2:20-4:13 (Video of P47 Interview with CNN 11/11/2020). 193 GA 777-778 (Donald J. Trump Tweet 11/11/2020). 194 GA 550-551 -38-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 39 of 165 On the defendant’s behalf, CC1 too spread patently false claims about Pennsylvania. On November 25, CC1 and P12 attended an unofficial hearing with Republican state legislators in a Gettysburg hotel conference room. The defendant called in, claimed to have 195 “196 been watching, and demanded that the election in Pennsylvania “has to be turned around.” During the event, CC1 falsely stated that Pennsylvania issued 1.8 million absentee ballots and received 2.5 million in return. 197 The claim was rooted in an obvious error-the comparison of the number of ballots sent out in the primary election to the number of ballots received in the general election. After seeing CC1 make this claim, P43 the RNC’s Chief Counsel, tweeted publicly, “This is not true.”198 In the following days, Campaign staff internally confirmed that CC1 was lying; when one Campaign staffer wrote in an email that CC1 claim was “just wrong” and “[t]here’s no way to defend it,” P3 responded, “We have been saying this for a while. It’s very frustrating.”199 Likewise, in late November or December, P9 the defendant directly that a claim CC1 was spreading, that “Pennsylvania received 700,000 more mail-in ballots than were mailed out,” was “bullshit” and explained the error. 200 informed P43 followed up on his public Tweet in a private email on November 28 to P44 the RNC spokesperson, expressing his concern about CC1 and P12 spread of disinformation: “I’m really not trying to give you a hard time but what CC1 and P12 are doing is a joke and they are getting laughed out of court. It’s setting us back in our fight for election integrity and 195 GA 1945 (Video of Pennsylvania Hotel Hearing 11/25/2020). 196 GA 1945 at 2:06:23-2:07:23 (Video of Pennsylvania Hotel Hearing 11/25/2020). 197 GA 1945 at 2:21:30-2:21:53 (Video of Pennsylvania Hotel Hearing 11/25/2020). 198 GA 819 P43 Tweet 11/25/2020). 199 GA 1203-1206 200 GA 721 ); GA 1207-1208 – 39 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 40 of 165 they are misleading millions of people who have wishful thinking that the president is going to “201 somehow win this thing.” When CC1 learned of P43 Tweet and email, on November 28, he called P43 and left a threatening voicemail, stating, “I really do need an explanation for what you said today because if there isn’t a good one, you should resign. Got it? So call me or CC1 also I’ll call the boss and get you to resign. Call me. It’d be better for you if you do.”202 contacted RNC Chairwoman P39 to demand that P43 be fired, and thereafter P43 was relieved of his duties as RNC Chief Counsel.2 203 On December 3, four Republican leaders of the Pennsylvania legislature issued a public letter stating that the General Assembly lacked the authority to overturn the popular vote and appoint its own slate of electors, and that doing so would violate the state Election Code and Constitution.2 204 P48 -an agent of the defendant who worked closely with CC1 issued a Tweet showing the four legislators’ names and signatures and wrote, “These are the four cowardice Pennsylvania legislators that intend to allow the Democrat machine to #StealtheVote! #Cowards #Liars #Traitors” while linking to the legislators’ Twitter accounts. 205 On Sunday December 6, at 12:56 a.m., from the White House residence having just returned from a political rally in Valdosta, Georgia—the defendant re-tweeted and amplified P48 post. 206 201 GA 1209 202 GA 1976 203 OGA 1210-1214 1215 ); GA ); GA 342-346 ( 204 GA 1222-1223 (Letter from Pennsylvania Legislators 12/03/2020); GA 173 205 GA 849 Tweet 12/04/2020). 206 GA 856, 858 (Donald J. Trump Tweet 12/06/2020). -40-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 41 of 165 6. Wisconsin On November 29, a recount that the defendant’s Campaign had petitioned and paid for confirmed that Biden had won in Wisconsin—and increased the defendant’s margin of defeat. 207 On December 14, the Wisconsin Supreme Court rejected the Campaign’s election lawsuit there. 208 As a result, on December 21, Wisconsin’s Governor signed a certificate of final determination confirming the prior certificate of ascertainment that established Biden’s electors as the valid electors for the state. 209 In response, the defendant issued a series of Tweets attacking Wisconsin Supreme Court Justice who had written the majority opinion rejecting his Campaign’s lawsuit and advocating that the Wisconsin legislature overturn the valid election results: P49 the Two years ago, the great people of Wisconsin asked me to endorse a man named P49 for State Supreme Court Justice, when he was getting destroyed in the Polls against a tough Democrat Candidate who had no chance of losing. After my endorsement, P49 easily won! WOW, he just voted against me in a Big Court Decision on voter fraud (of which there was much!), despite many pages of dissent from three highly respected Justices. One thing has nothing to do with another, but we ended up losing 4-3 in a really incorrect ruling! Great Republicans in Wisconsin should take these 3 strong decisions to their State Legislators and overturn this ridiculous State Election. We won in a LANDSLIDE! 210 After the defendant’s Tweet, the state marshals responsible for P49 safety arranged to provide P49 with additional police protection based on social media traffic and other threatening communications. 211 207 GA 1224-1225 (Wisconsin Order for Recount 11/19/2020); GA 1226 (Wisconsin Statement of Canvass 11/30/2020); Trump v. Biden, 394 Wis. 2d 629, 633 (Wis. 2020). 208 Trump v. Biden, 394 Wis. 2d 629, 633 (Wis. 2020). 209 GA 1235 (Wisconsin Certificate of Ascertainment 11/03/2020). 210 GA 875, GA 876, GA 877, GA 880, GA 879, and GA 878 (Donald J. Trump Tweets 12/21/2020). 211 GA 184-186, GA 188-189 – 41 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 42 of 165 7. Voting Machines in Multiple States Throughout the post-election period, the defendant and co-conspirators repeatedly made claims about the security and accuracy of voting machines across multiple states, despite the fact that they were on notice that the claims were false. As early as November 12, for instance, the National Association of Secretaries of State, the National Association of State Election Directors, and other coordinated federal, state, and private entities issued a public statement declaring that the 2020 election was “the most secure in American history” and that there was “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”212 On November 14, in the Tweet announcing that CC1 was to lead his Campaign legal efforts, the defendant also named CC3 a private attorney who was fixated on voting machine claims, and P10 another private attorney. 213 Two days later, on November 16, on the defendant’s behalf, executive assistant P42 sent CC3 and other private attorneys an email, titled “From POTUS,” attaching a document containing bullet points critical of C3 a company that manufactured voting machines used in certain states, and writing, “See attached – Please include as is, or almost as is, in lawsuit.”214 CC3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.”215 On November 17, P50 the director of the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA), publicly tweeted that a group of private 212 GA 1236 (Election Security Joint Statement 11/12/2020). 213 GA 784-785 (Donald J. Trump Tweet 11/14/2020). 214 GA 1238-1239 215 GA 1240 -42-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 43 of 165 election security experts concluded that claims of computer-based election fraud “either have been unsubstantiated or are technically incoherent.”216 Two days later, on November 19, CC1 CC3 P10 and others held a press conference at the RNC headquarters, on behalf of the defendant and his Campaign. 217 During it, CC3 made false and factually impossible claims regarding C3 and the integrity of the country’s election infrastructure.2 218 That night, Fox News television personality P51 stated on air that because of CC3 incendiary comments about voting machines, he had invited her on his television program. He further stated, “[b]ut she never sent us any evidence, despite a lot of requests, polite requests. Not a page. When we kept pressing, she got angry and told us to stop contacting her. When we checked with others around the Trump Campaign, people in positions of authority, they told us CC3 has never given them any evidence either . . . she never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.” “219 The defendant saw his private attorneys’ RNC press conference and P51 discussion of CC3 and he acknowledged to P4 that CC3 had appeared “unhinged” in the press conference. 220 On November 20, the day after the press conference, the defendant made a similar comment to P7 and P45 two White House staffers who also volunteered for his 221 Campaign.2 In casual conversation after another meeting had ended, the defendant told P7 216 GA 790 P50 Tweet 11/17/2020). 217 GA 1950 (Video of RNC Press Conference 11/19/2020). 218 GA 1950 at 38:58-52:34 (Video of RNC Press Conference 11/19/2020). 219 GA 1972 at 9:18-10:02 (Video of P51 Show 11/19/2020). 220 GA 391-392 221 GA 248-249 ); GA 528 -43-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 44 of 165 and P45 that P51 had “eviscerated” or “destroyed” CC3 222 The defendant then had a call with CC3 on speakerphone, while P7 and P45 listened in, and mentioned the P51 segment to CC3 223 While CC3 responded, the defendant placed the call on mute and to P7 and P45 mocked and laughed at CC3 called her claims “crazy,” and made a reference to the science fiction series Star Trek when describing her allegations. In the same time period, P9 told the defendant that CC3 claims were unreliable and should not be when 224 included in lawsuits, the defendant agreed that he had not seen anything to substantiate CC3 allegations.2 225 CC3 CC3 On November 22, notwithstanding the defendant’s Tweet from eight days prior announcing involvement, CC1 issued a statement on behalf of the Campaign distancing the defendant from CC3 is practicing law on her own. She is not a member of the “226 Trump Legal Team. She is also not a lawyer for the President in his personal capacity.” Nonetheless, the defendant continued to support and publicize CC3 knowingly false claims. For example, within days of CC1 statement, the defendant promoted a lawsuit that CC3 was about to file, tweeting on November 24, “BREAKING NEWS: @ CC3 says her lawsuit in Georgia could be filed as soon as tomorrow and says there’s no way there was anything but widespread election fraud. #MAGA #AmericaFirst #Dobbs.” 227 CC3 filed a lawsuit the next day against the Governor of Georgia falsely alleging “massive election fraud” accomplished 222 GA 258-259 223 GA 256-259 224 GA 258-260 225 GA 206 226 GA 1241 (Trump Campaign Statement 11/22/2020). 227 GA 815-816 (Donald J. Trump Tweet 11/24/2020). – 44 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 45 of 165 through C3 election software and hardware. 228 The defendant again promoted the lawsuit in a Tweet. 229 The lawsuit was dismissed within two weeks, on December 7.230 On November 29, P50 who was no longer the CISA Director, appeared on the television program 60 Minutes. 231 P50 stated that he was confident that the election had been secure and “that there was no manipulation of the vote on the machine count side.”232 In response, the defendant tweeted publicly about P50 appearance: “@60Minutes never asked us for a comment about their ridiculous, one sided story on election security, which is an international joke. C3 Our 2020 Election, from poorly rated to a Country FLOODED with unaccounted for Mail-In ballots, was probably our least secure EVER!”233 A few days later, P10 appeared on a radio program as the defendant’s agent and said that because of P50 comments to promote confidence in the security of the election infrastructure, P50 “should be drawn and quartered. “234 Taken out at dawn and shot.” Thereafter, P50 was subjected to death threats. 235 In a press a Georgia conference on December 1 that the defendant acknowledged watching, 236 P25 election official, decried P10 and the defendant’s public statements spreading disinformation and said that if they did not stop, “someone is going to get killed.” “237 228 Complaint at 2, Pearson v. Kemp, No. 1:20-cv-4809 (N.D. Ga. Nov. 25, 2020), ECF No. 1. 229 GA 820-821 (Donald J. Trump Tweet 11/26/2020). 230 Transcript of Mots. Hr’g at 41-44, Pearson v. Kemp, (N.D. Ga. Dec. 7, 2020), ECF No. 79. 231 GA 1940 (Video of P50 on 60 Minutes 11/29/2020). 232 GA 1940 at 4:14-4:19 (Video of P50 on 60 Minutes 11/29/2020). 233 GA 825-826 (Donald J. Trump Tweet 11/29/2020). 234 GA 1887 (Audio of P10 on 235 GA 295-296 11/30/2020). 236 GA 841-842 (Donald J. Trump Tweet 12/01/2020). 237 GA 1961 at 3:32-3:55 (Video of P25 Press Conference 12/01/2020). -45-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 46 of 165 On December 1, Attorney General P52 stated publicly that the Justice Department had not seen evidence of fraud sufficient to change the election results. 238 With respect to voting machines, he said, “There’s been one assertion that would be systemic fraud and that would be the claim that machines were programmed essentially to skew the election results. And the DHS and DOJ have looked into that, and so far, we haven’t seen anything to substantiate that.”239 CC1 and P12 immediately issued a formal Campaign statement attacking P52 and the Justice Department, writing, “With all due respect to the Attorney General, there hasn’t been any semblance of a Department of Justice Investigation . . . his opinion appears to be without any knowledge or investigation of the substantial irregularities and evidence of systemic fraud.” “240 In mid-December, the defendant spoke with RNC Chairwoman P39 and asked her to publicize and promote a private report that had been released on December 13 that purported to identify flaws in the use of C3 machines in Antrim County, Michigan. 241 refused, telling the defendant that she already had discussed the report with Speaker of the House, who had told her that the report was inaccurate.2 P39 242 P39 P38 Michigan’s conveyed to the defendant P38 exact assessment: the report was “fucking nuts.” “243 On January 2, during the defendant’s call with Georgia Secretary of State P33 said of false claims regarding voting machines, “I don’t believe that you’re really questioning the C3 machines. Because we did a hand re-tally, a 100 percent re-tally of all the ballots, and compared them to what the machines said and came up with virtually the same 238 GA 12-13 239 GA 1242-1243 (Email from Comms Alert 12/01/2020). 240 GA 1244 (Trump Campaign Press Release 12/01/2020). 241 GA 338-339 242 GA 339-341 243 Id. -46-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 47 of 165 result. Then we did the recount, and we got virtually the same result. So I guess we can probably take that off the table.”244 In response, the defendant falsely claimed that “in other states, we think we found tremendous corruption with C3 machines, but we’ll have to see.” “245 At the Ellipse on January 6, the defendant and co-conspirators who spoke at the rally continued to make unsubstantiated and false claims about C3 machines. CC1 claimed that in the U.S. Senate run-off election in Georgia the day before, “the votes were deliberately changed by the same algorithm that was used in cheating President Trump and Vice President Pence.”246 CC2 continued the false attack: “We now know because we caught it live last time in real time, how the machines contributed to that fraud. . . . They put those ballots in a secret folder in the machines sitting there waiting, until they know how many they need. And then the machine after the close of polls, we now know who’s voted. And we know who hasn’t. And I can now in that machine match those unvoted ballots with an unvoted voter and put them together in the machine. . . . We saw it happen in real time last night and it happened on November 3rd as In his own speech, the defendant again raised the false specter of “the highly troubling and lied about machines flipping votes from the defendant well.”247 matter of C3 to Biden and an “astronomical and astounding” error rate in the machines’ ballot scanning. 248 D. The Defendant Organized and Caused His Electors to Submit Fraudulent Certificates Creating the False Appearance That States Submitted Competing Electoral Slates By late November 2020, every effort—both legitimate and illegitimate—that the defendant had made to challenge the results of the election had been unsuccessful. The defendant, his 244 GA 1889 at 15:58-16:27 (Audio of Trump- P33 Call 01/02/2021). 245 GA 1889 at 16:32-17:26 (Audio of Trump- P33 Call 01/02/2021). 246 GA 1928 at 2:22:41-2:23:07 (Video of Ellipse Rally 01/06/2021). 247 GA 1928 at 2:25:25-22:26:56 (Video of Ellipse Rally 01/06/2021). 248 GA 1136 (Ellipse Rally Speech Draft Tr. 01/06/2021). -47-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 48 of 165 Campaign, and their allies had lost or withdrawn one election lawsuit after another in the seven targeted states. And the defendant and co-conspirators’ efforts to overturn the legitimate vote count through a pressure campaign on state officials, and through false claims made directly to state legislators in formal or pseudo-hearings, continued to fail. So in early December, the defendant and his co-conspirators developed a new plan regarding the targeted states that the defendant had lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin): to organize the people who would have served as the defendant’s electors had he won the popular vote, and cause them to sign and send to Pence, as President of the Senate, certifications in which they falsely represented themselves as legitimate electors who had cast electoral votes for the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulent electoral votes mere pieces of paper without the lawful imprimatur of a state executive―to falsely claim that in his ministerial role presiding over the January 6 certification, Pence had the authority to choose the fraudulent slates over the legitimate ones, or to send the purportedly “dueling” slates to the state legislatures for consideration anew. The fraudulent elector plan’s arc and obstructive purpose is reflected in a series of memoranda drafted in late November and early December by CC5 an attorney who volunteered to assist the defendant’s Campaign in lawsuits challenging the election in Wisconsin. 249 CC5 advocated that Beginning with a memorandum drafted on November 18, the defendant’s elector nominees in Wisconsin meet and cast votes on the date required by the ECA (in 2020, December 14) in the event that an ongoing recount in the state reversed the defendant’s loss there.2 250 But this course of action—which CC5 Wisconsin memorandum 249 GA 1245-1246 250 GA 1249-1255 CC5 memo 11/18/2020). -48- ); GA 1247-1248
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 49 of 165 CC5 presented as a contingency plan to preserve the possibility that the defendant’s electors’ votes be counted at the January 6 certification proceeding if he prevailed in the Wisconsin litigation and won the state quickly transformed into a corrupt strategy to overturn the legitimate election results. 251 revealed this obstructive plan in two additional memoranda, dated December 6252 and December 9, 253 which proposed that the defendant’s elector nominees in six of the targeted states—all but New Mexico, a state the defendant lost by more than ten percent of the popular vote, sparsely referenced in his false claims of voter fraud, and did not envision challenging at the inception of the elector scheme²: -meet on December 14, sign fraudulent certifications, and send 254 them to the Vice President to manufacture a fake controversy during the January 6 congressional certification. The defendant personally set the fraudulent elector plan in motion in early December, ensured that it was carried out by co-conspirators and Campaign agents in the targeted states, and monitored its progress. By December 5, the defendant was starting to think about Congress’s role in the election process; for the first time, he mentioned to Pence the possibility of challenging the election results in the House of Representatives. 255 In the same call, Pence told the defendant that the Georgia Bureau of Investigation was investigating their race. 256 251 GA 1256-1259 252 GA 1260-1265 CC5 253 memo 12/06/2020). GA 1266-1270 CC5 memo 12/09/2020). 254 GA 1271 ; GA 1272 (New Mexico Certificate of Ascertainment); GA 1273-1282 S 255 GA 1283-1284 GA 1019 (Pence, So Help Me God, p. 433). 256 GA 1283-1284 ); GA 436-437 ; GA 438-439 – 49 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 50 of 165 On December 6, the same day that CC2 called RNC Chairwoman P39 CC5 put the plan on paper, 257 the defendant and out of the blue. 258 P39 did not know CC2 and the defendant introduced him to P39 by saying that he was a professor and lawyer; thereafter, CC2 was the primary speaker during the conversation. 259 CC2 told P39 that he and the defendant wanted the RNC “to help the campaign assemble the electors in the states where we had legal challenges, or litigation that was ongoing . . . in case any of that litigation changed the result of a state so that it would meet the constitutional requirement of electors P39 immediately called P3 one of the defendant’s deputy Campaign managers, and relayed her conversation with the defendant and “260 meeting.’ When the call ended, CC2 261 After P3 assured P39 that the Campaign was “on it,” P39 called the defendant back and told him so. 262 On the same day, from his personal email account, P21 forwarded to Campaign staff CC5 November 18 memorandum and wrote, “We just need to have someone coordinating the electors for states.” “263 And the following day, on the evening of December 7, CC1 sent P39 a text message stating in part, “I have lawyers assigned in each state working on Dec 14 electors meeting and what they need. I will send you a list.”264 The defendant’s co-conspirators worked with his Campaign staff, and used his pre-election Campaign apparatus, to execute the fraudulent elector plan. 257 GA 1260-1265 CC5 memo 12/06/2020). 258 GA 323-325 259 GA 324-325 260 GA 325 261 GA 325-327 262 GA 326-327 263 GA 1285 264 OGA 1286-1287 265 GA 1288-1290 265 The defendant communicated with ); GA 1247 – 50 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 51 of 165 CC5 267 Ultimately, P5 CC1 and CC2 about the plan, ,266 and they in turn communicated with CC6 and P19 and other Campaign staff and agents helped carry out CC5 plans.2 268 On December 8, CC5 spoke on the phone with P53 269 a private attorney whom CC1 and CC6 had identified as a contact for the plan in Arizona. 270 Following the call, P53 recounted the conversation in an email: CC5 His idea is I just talked to the gentleman who did that memo, basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren’t legal under federal law – because they’re not signed by Governor); so that members of Congress can fight about whether they should be counted on January 6th. (They could potentially argue that they’re not bound by federal law because they’re Congress and make the law, etc.) Kind of wild/creative – I’m happy to discuss. My comment to him is that I guess there’s no harm in it, (legally at least) – i.e. we would just be sending in “fake” electoral votes to Pence so that “someone” in Congress can make an objection when they start counting votes, and start arguing that the “fake” votes should be counted.2 271 On December 9, CC6 contacted P39 for assistance with a request from CC5 “272 P39 CC6 to P3 273 The next day, at for “a list of our electors in each state and copies of the certificates sent in 4 years ago.” responded that Campaign employees were already assisting in the effort and referred CC1 direction, CC5 generated directions to the 266 OGA 1291-1295 267 GA 1296-1299 268 GA 1312-1317 1320 269 GA 1296-1299 270 GA 1325 271 GA 1296-1299 272 GA 1326-1327 273 GA 1288-1290 -51- ; GA 1300-1309 ); GA 1318- ); GA 1321-1324
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 52 of 165 electors in all of the targeted states except for Wisconsin (which had already received his memos) and New Mexico (which he had not yet been asked to do) on how best to mimic the manner in which valid electors were required by state law to gather and vote, along with fraudulent certificates of vote for the defendant’s electors to sign. 274 The day before the defendant’s electors were scheduled to meet and sign fraudulent certificates of vote, the defendant asked Campaign advisor P4 for an update on the elector plan and directed P4 to issue a statement, and CC1 asked P4 to participate in a messaging conference call. 275 Campaign Staffer P54 P4 discussed these developments in a text thread with P3 and P9 After P4 proposed a communications plan for the Campaign on the elector vote, P9 wrote to P3 “I’ll call soon and we’ll talk with boss.”276 The participants then discussed to whom a Campaign statement could be attributed. P3 wrote, “Here’s the thing the way this has morphed it’s a crazy play so I don’t know who wants to put their name on it.”277 P4 then shared with those on the text thread the invitees to the call CC1 was convening- CC1 CC6 P12 P19 P55 and P56 and derogatorily referred to them as the “Star Wars bar,” meaning a motley assortment of characters, and in this case specifically ones whose professional competence P4 doubted and 274 GA 1328 ; GA 1310-1311 ); GA 1321-1324 ); GA 1334-1335 ); GA 1336- 1338 ( to GA 1345-1346 ); GA 1339-1341 ( ); GA 1342-1344 ( 275 GA 1300 GA 394-395 276 GA 1301 277 GA 1304 -52-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 53 of 165 whom he personally would not choose to hire. 278 P9 Votes.”279 responded, “Certifying illegal Thereafter, the text participants collectively agreed that no message would go out under their names because they “can’t stand by it.”280 In the midst of these text messages, P9 P4 and P3 had a nineteen-minute phone call with the defendant. 281 In practice, the fraudulent elector plan played out somewhat differently in each targeted state. In general, the co-conspirators deceived the defendant’s elector nominees in the same way that the defendant and CC2 deceived P39 by falsely claiming that their electoral votes would be used only if ongoing litigation were resolved in the defendant’s favor. 282 A select few of the defendant’s agents and elector nominees, however, had insight into the ultimate plan to use the fraudulent elector certificates to disrupt the congressional certification on January 6.283 In several states, the defendant, his co-conspirators, and agents were unable to convince all of the defendant’s elector nominees to participate.2 P57 284 for instance, a former U.S. Representative and U.S. Attorney and one of the defendant’s elector nominees in Pennsylvania who opted out of the plan, told the state party vice chair trying to organize the defendant’s electors 278 GA 1305-1306 ); GA 396-397 279 GA 1306 280 GA 1308 281 GA 744 282 GA 1347-1349 1350-1356 GA 517-518 283 284 GA 1888 at 3:15-4:32 2020); GA 97-98 ); GA D; 2020); GA 1296-1299 D; ); GA 320-321 See, e.g., GA 625-633 ( GA 265 ); GA 1362-1365 (Fraudulent “Georgia’s Electoral Votes for President and Vice President”); GA 1372-1373 (Fraudulent “Michigan’s Electoral Votes for President and Vice President”); GA 1383-1389 (Fraudulent “Pennsylvania’s Electoral Votes for President and Vice President”). -53-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 54 of 165 285 that he would not participate because the plan did not follow the proper process and was illegal.” When electors like P57 declined, the conspirators and agents had to recruit substitutes willing to go along with the plan.² Other electors who participated based on the conspirators’ false assurances that their votes were only a contingency were later surprised to learn that they were 286 used on January 6—and would not have agreed to participate if the conspirators had been truthful about their plan.2 287 In Pennsylvania, the defendant’s elector nominees’ concern about the propriety of the plan presented a problem for the conspirators. In text messages that P5 and CC6 exchanged on December 11 into the early morning hours of December 12, P5 told CC6 that P46 the state Republican Party Chairman whom the defendant had called shortly after the election28 “is winding up the electors. Telling them if the[y] sign the petition they could be prosecuted. Need a counter argument or someone has to call him and tell him to stop.”289 “290 288 CC6 responded, replied, “That’s the plan. “Have someone who knows him call him to tell him to stop.’ P5 PA is squishy right now. Going to need a call with CC1 “291 tomorrow. On December 12, CC1 organized by the Campaign to placate the defendant’s Pennsylvania electors. 292 CC5 CC6 and others held a conference call CC1 falsely 285 GA 320-321 286 GA 519-520 024). 287 GA 164-165 ); GA 522-523 ); GA 488- 495 ); GA 723-724, GA 726 288 GA 618-619 289 GA 1318 290 GA 1319 291 Id. 292 GA 1394-1398 -54- ); GA 1399
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 55 of 165 294 assured them that their certificates of vote would be used only if the defendant succeeded in litigation. 293 During the call, some of the defendant’s conspirators and agents exchanged text messages expressing frustration at the electors’ concerns. P5 wrote, “Whoever selected this slate should be shot.” P12 responded, “These people are making this so much more complicated than it needs to be omg” and “We couldn’t have found 20 people better than this???” P5 agreed, writing, “We need good substitutes.”295 When the possibility arose that the electors’ certificates of vote include conditional language making clear that they were not yet the duly-appointed electors, P5 wrote, “The other States are signing what CC5 if it gets out we changed the language for PA it could snowball.” “296 prepared – On December 13, the eve of when the electors were to meet, the defendant was preoccupied with preventing the certification of the electoral vote. He tweeted: “Swing States that have found massive VOTER FRAUD, which is all of them, CANNOT LEGALLY CERTIFY these votes as complete & correct without committing a severely punishable crime. Everybody knows that dead people, below age people, illegal immigrants, fake signatures, prisoners, and many others voted illegally. Also, machine ‘glitches” (another word for FRAUD), ballot harvesting, non-resident voters, fake ballots, ‘stuffing the ballot box’, votes for pay, roughed up Republican Poll Watchers, and sometimes even more votes than people voting, took place in Detroit, Philadelphia, Milwaukee, Atlanta, Pittsburgh, and elsewhere. In all Swing State cases, there are far more votes 293 GA 743 294 GA 1407 295 GA 1407-1408 296 GA 1408 ); GA 1400 -55- ); GA 621
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 56 of 165 than are necessary to win the State, and the Election itself. Therefore, VOTES CANNOT BE CERTIFIED. THIS ELECTION IS UNDER PROTEST!” 297 Ultimately, the Pennsylvania electors insisted upon using conditional language in their elector certificates to avoid falsely certifying that they were duly-appointed electors. 298 And in New Mexico the state that CC5 ‘s memoranda did not even address 299-the defendant’s Campaign filed a pretextual lawsuit just minutes before the fraudulent electors met so that there was litigation pending at the time of the vote. 300 Notwithstanding obstacles, the defendant and his co-conspirators successfully organized his elector nominees and substitutes to gather on December 14 in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulent votes to Washington, D.C., in order to falsely claim at the congressional certification that certain states had sent competing slates of electors. 301 When possible, the defendant and co-conspirators tried to have the fake electoral votes appear to be in compliance with state law governing how legitimate electors vote. 302 For example, 297 GA 867-872 (Donald J. Trump Tweets 12/13/2020). 298 GA 1407-1408 ); GA 1409-1410 ); GA 1411-1412 299 GA 1416 300 OGA 1417-1419 ); GA 1413-1415 ); GA 622-625 ); GA 1273-1282 301 GA 1420-1424 (Fraudulent “Arizona’s Electoral Votes for President and Vice President”); GA 1357-1368 (Fraudulent “Georgia’s Electoral Votes for President and Vice President”); GA 1369- 1379 (Fraudulent “Michigan’s Electoral Votes for President and Vice President”); GA 1425-1444 (Fraudulent “Nevada’s Electoral Votes for President and Vice President”); GA 1445-1450 (Fraudulent “New Mexico’s Electoral Votes for President and Vice President”); GA 1380-1393 (Fraudulent “Pennsylvania’s Electoral Votes for President and Vice President”); GA 1451-1457 (Fraudulent “Wisconsin’s Electoral Votes for President and Vice President”); GA 1458-1472 302 GA 1266-1270 CC5 memo 12/09/2020). -56-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 57 of 165 the co-conspirators knew that some states required that the duly-appointed electors meet and cast 303 their votes in the state capitol building.3 To make it seem like they had complied with this requirement, state officials were enlisted to provide the fraudulent electors with access to state capitol buildings so that they could gather and vote there. 304 In many cases, however, the conspirators and fraudulent electors were unable to comply with state law for legitimate electors.³ 305 For example, Pennsylvania law required the Governor to give notice whenever an elector was substituted, but the conspirators could not arrange for the Governor to give notice when P46 and others opted out and had to be replaced. 306 Thereafter, CC5 and others brainstormed fake excuses for their failure to follow state law, writing, “maybe we can use Covid19 as an excuse for the Governor not giving notice.”307 P39 Then, on December 14—the date that duly-appointed electors across the country met to cast their votes, and when the defendant’s fraudulent electors in seven states mimicked them— followed up with the defendant. 308 When she received an internal RNC email titled “Electors Recap – Final,” which summarized the day’s activities with respect to electors and included a list of six “contested” states in which the defendant’s electors voted, she forwarded it to the defendant’s executive assistant, P42 who responded, “It’s in front of him!”309 303 GA 1268-1270 CC5 memo 12/09/2020). 304 GA 1473-1475 ); GA 1458-1472 ( ); GA 1476 ( 305 GA 1458-1472 306 GA 1270 CC5 memo 12/09/2020); GA 1390 (Fraudulent “Pennsylvania’s Electoral Votes for President and Vice President”). 307 GA 1477-1482 308 GA 328-329 309 Id; see also GA 1483-1484 -57-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 58 of 165 P39 also called the defendant to tell him that she had sent him the update, 310 and she spoke to CC1 shortly before CC1 spoke to the defendant. 311 At the same time that the defendant’s fraudulent electors were preparing to gather and cast fraudulent votes, the defendant’s co-conspirators began planning how to use the fraudulent votes to overturn the election results at the January 6 certification. On December 13, CC5 sent CC1 a memorandum that envisioned a scenario in which Pence would use the fraudulent slates as a pretext to claim that there were dueling slates of electors from the targeted states and negotiate a solution to defeat Biden. 312 On the same day, the defendant resumed almost daily direct contact with P1 who maintained a podcast that disseminated the defendant’s false fraud claims.³ On December 14, P1 podcast focused on spreading lies about the defendant’s fraudulent electors—including the false claim that their votes were merely a contingency in the event the defendant won legal challenges in the targeted states.³ 314 313 On December 16, CC5 traveled to Washington with a group of private attorneys who had done work for the defendant’s Campaign in Wisconsin for a photo opportunity with the During the encounter, the defendant complained about Wisconsin defendant in the Oval Office.³ 315 310 GA 329 311 GA 745 312 GA 1486 313 See, e.g., GA 744 ); GA 750 ); GA 753 D; GA 758-759 314 GA 1979 315 GA 1494 ; GA 764 ( ; GA 768, 770 ); GA 1485 -58- D; GA 749 ); GA 751 ); GA 756 GA 763 ); GA 765 ); GA 1498-1500 ); GA 1487-1493 ; GA 771 GA 1495
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 59 of 165 Supreme Court Justice P49 who two days earlier had cast the deciding vote in rejecting the defendant’s election challenge in the state. 316 As the group was leaving, the defendant spoke directly—and privately-to CC5 317 As late as early January, the conspirators attempted to keep the full nature of the fraudulent elector plan secret. On January 3, for instance, in a private text message exchange, CC6 wrote to CC5 “Careful with your texts on text groups. No reason to text things about electors to anyone but CC2 and me.” CC5 responded, “K,” and CC6 followed up, “I’m probably a bit paranoid haha.” CC5 wrote, “A valuable trait!”318 E. The Defendant Attempted to Persuade Pence to Reject Votes Cast by Duly- Appointed Electors and Choose the Defendant’s Fraudulent Ones As the defendant’s various attempts to target the states failed, and the January 6 congressional certification approached, the defendant and co-conspirators turned their attention to Pence, who as President of the Senate presided over the certification proceeding. In service of a new plan—to enlist Pence to use his role to fraudulently alter the election results at the January 6 certification proceeding—the defendant and his co-conspirators again used deceit. They lied to Pence, telling him that there was substantial election fraud and concealing their orchestration of the plan to manufacture fraudulent elector slates, as well as their intention to use the fake slates to attempt to obstruct the congressional certification. And they lied to the public, falsely claiming that Pence had the authority during the certification proceeding to reject electoral votes, send them ); GA 746 GA 747-748 ); GA 100-101 316 GA 497-498 317 GA 498-500 318 GA 1501-1502 -59-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 60 of 165 back to the states, or overturn the election-and that Pence agreed he had these boundless powers. With these lies, the defendant created the tinderbox that he purposely ignited on January 6. The defendant first publicly turned his sights toward January 6 in the early morning hours of December 19. At 1:42 a.m., the defendant posted on Twitter a copy of a report falsely alleging * fraud and wrote, Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!” 319 When CC5 learned about the Tweet, he sent a link about it to another of the Wisconsin attorneys who had met with the defendant in the Oval Office on December 16 and wrote, “Wow. Based on 3 days ago, I think we have unique understanding of this.”320 Later on December 19, the defendant called Pence and told him of plans for a rally on January 6 and said that he thought it would be a “big day” and good to have lots of their supporters in town. 321 The defendant and his co-conspirators recognized that Pence, by virtue of his ministerial role presiding over the January 6 congressional certification, would need to be a key part of their plan to obstruct the certification proceeding. On December 23, in a memorandum drafted with CC5 assistance, CC2 outlined a plan for Pence to “gavel” in the defendant as the winner of the election based on the false claim that “7 states have transmitted dual slates of electors to the President of the Senate,” and proposed that Pence announce that “because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.” “322 319 GA 873-874 (Donald J. Trump Tweet 12/19/2020). 320 GA 1504 321 GA 440-441 322 GA 1506-1508 ( ); GA 1020 (Pence, So Help Me God p. 437). ); GA 1509 ; GA 1510-1512 ); GA 1513-1515 -60-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 61 of 165 CC2 emphasized concealment, writing that “the main thing here” was that Pence act without “asking for permission—either from a vote of the Joint Session or from the Court.”323 CC2 memorandum stood in stark contrast to concessions he had previously made about the Vice President’s lack of authority in the certification proceeding. Two months earlier, on October 11, he had written to a colleague that neither the Constitution nor the ECA provided the Vice President with discretion in the counting of electoral votes or permitted him to “make the determination on his own.”324 And just one day earlier, on December 22, when asked by other private attorneys to provide views on a draft complaint that would, if filed, have raised the issue of the Vice President’s authority on January 6, CC2 had recommended that the complaint not be filed.32 325 He wrote that “the risk of getting a court ruling that Pence has no authority to reject the Biden-certified ballots [is] very high.’ “326 On the evening of December 23, after CC1 shared CC2 and CC5 plan with the defendant, the defendant publicly re-tweeted a document called “Operation Pence Card,” which, like CC2 memorandum, advocated that Pence block the lawful certification of the legitimate electoral votes. 327 Also on December 23, CC2 emailed P42 asking to speak to the defendant “to update him on our overall strategic thinking.” “328 The following day, December 323 GA 1515 324 GA 1517 325 GA 1521 326 Id. 327 GA 1005 ; GA 1523 ); GA 883 (Donald J. Trump Tweet 12/23/2020); GA 449 GA 1022-1023 (Pence, So Help Me God p. 439-40); see also GA 1524-1527 328 GA 1528 – 61 – ; GA 752, 754 );
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 62 of 165 CC5 and CC6 24, the defendant called CC2 and they spoke for forty minutes. 329 Then on December 25, proposed in a text message to CC2 that Pence permit an unlimited filibuster of the certification, in violation of the ECA, and ultimately gavel in the defendant as president. 330 When CC2 asked, “Is Pence really likely to be on board with this?” CC6 responded, “Let’s keep this off text for now.’ “331 CC2 From that point on, the conspirators plotted to manipulate Pence. CC1 CC6 and P1 worked in concert to enlist Pence to act unlawfully, and to rachet up public pressure from the defendant’s supporters that he do so. The defendant began to directly and repeatedly pressure Pence at the same time that he continued summoning his supporters to amass in Washington, D.C., on the day of the congressional certification. On December 25, when Pence called the defendant to wish him a Merry Christmas, the defendant raised the certification and told Pence that he had discretion in his role as President of the Senate. 332 Pence emphatically responded, “You know I don’t think I have the authority to change the outcome.”³33 The next day, the defendant tweeted, “Never give up. See everyone in D.C. on January 6th “334 He also tweeted false fraud claims: “Time for Republican Senators to step up and fight for the Presidency, like the Democrats would do if they had actually won. The proof is irrefutable! Massive late night mail- in ballot drops in swing states, stuffing the ballot boxes (on video), double voters, dead voters, fake signatures, illegal immigrant voters, banned Republican vote watchers, MORE VOTES THAN ACTUAL VOTERS (check out Detroit & Philadelphia), and much more. The numbers 329 GA 755 330 GA 1529 331 Id. 332 GA 450-452 333 Id. ); GA 1024-1025 (Pence, So Help Me God p. 441-42). 334 GA 886-887 (Donald J. Trump Tweet 12/26/2020). -62-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 63 of 165 are far greater than what is necessary to win the individual swing states, and cannot even be contested. Courts are bad, the FBI and ‘Justice’ didn’t do their job, and the United States Election System looks like that of a third world country. Freedom of the press has been gone for a long time, it is Fake News, and now we have Big Tech (with Section 230) to deal with. But when it is all over, and this period of time becomes just another ugly chapter in our Country’s history, WE WILL WIN!!!”335 On December 28, CC2 CC5 and CC6 exchanged text messages in which CC2 expressed concern that Gohmert v. Pence—a lawsuit filed the day before that asserted that Pence had discretion to choose electoral votes during the certification proceeding—would prompt a federal court to publicly reject, and thus preclude, the plan that the conspirators were advancing in private. 336 Thereafter, at 11:00 a.m. on January 1, the defendant called Pence to berate him because he had learned that Pence had filed a brief opposing the relief sought in Gohmert. 337 When Pence explained, as he had before, that he did not believe that he had the power under the Constitution to decide which votes to accept, the defendant told him that “hundreds of thousands” of people “are gonna hate your guts” and “people are gonna think you’re stupid,” and berated him pointedly, “You’re too honest.”338 Immediately before the call, the defendant had spoken separately to CC1 (from 10:06 a.m. to 10:14 a.m.) and P1 (from 10:36 a.m. to 10:46 a.m.), and late that afternoon, the defendant spoke separately with P1 CC2 and 335 GA 888-895 (Donald J. Trump Tweet 12/26/2020). 336 GA 1530-1531 337 GA 453 758 ); GA 1026-1027 (Pence, So Help Me God p. 446-47); GA 338 GA 1026 (Pence, So Help Me God p. 446). -63-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 64 of 165 CC1 339 Within hours of the call with Pence, the defendant reminded supporters to travel to Washington for the certification proceeding, tweeting, “The BIG Protest Rally in Washington, 343 That D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!”340 The next day, on January 2, CC1 CC2 and CC6 appeared on P1 podcast. 341 When P1 asked whether the January 6 certification would be “a climactic battle,” CC2 responded that “a lot of that depends on the courage and the spine of the individuals involved.” “342 The defendant spoke to CC1 shortly after his appearance on the podcast. afternoon, CC6 worked to arrange a meeting among the defendant, CC2 and Pence in order to enlist Pence to misuse his role as President of the Senate at the certification proceeding. 344 When CC6 texted Pl about the meeting, P1 who had just finished a phone call with the defendant—reiterated that the defendant wanted Pence “briefed” by CC2 immediately.3 Thereafter, the defendant called Pence, informing him “that he had spent the day 345 speaking to a secretary of state, state legislators, and members of Congress.” “346 (As described P33 the same day.) supra pp. 29-31, the defendant spoke with Georgia Secretary of State On the call with Pence, the defendant said he had learned that a U.S. Senator was going to propose a ten-day delay in the certification proceeding, and told Pence, “you can make the decision” to 339 GA 757-760 340 GA 905-906 (Donald J. Trump Tweet 01/01/2021). 341 GA 1981 342 GA 1981 at 24:56-25:40 343 GA 761-762 344 GA 1006-1008, 1011-1014 345 GA 763 ); GA 1007 346 GA 1027 (Pence, So Help Me God p. 447); GA 1532-1533 -64-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 65 of 165 delay the count for ten days. 347 The defendant then referred Pence to CC2 for the first time and asked if Pence would meet with him. 348 Pence On January 3, the defendant again told Pence that at the certification proceeding, Pence had the absolute right to reject electoral votes and the ability to overturn the election. 349 responded that he had no such authority, and that a federal appeals court had rejected a lawsuit making that claim the previous day. 350 Then, the defendant took to Twitter to again falsely claim that fraud had permeated the election: “Sorry, but the number of votes in the Swing States that we are talking about is VERY LARGE and totally OUTCOME DETERMINATIVE! Only the Democrats and some RINO’S would dare dispute this – even though they know it is true!”351 The same day, CC2 circulated a second memorandum that included a new plan under which, in violation of the ECA, the Vice President would send the elector slates to the state legislatures to determine which slate to count. 352 The meeting that CC6 had organized so that the defendant and CC2 could enlist Pence to reject Biden’s legitimate electoral votes was scheduled late in the afternoon of January 4.353 In advance of the meeting, CC1 CC2 CC6 and P1 gathered at the Willard Hotel near the White House, and from there, CC1 called and spoke with the defendant. 354 347 Id. 348 Id. 349 GA 454-456 350 Id. ); GA 1534-1536 351 GA 926-927 (Donald J. Trump Tweet 01/03/2021). 352 GA 1537-1543 353 GA 1007-1012 ); GA 766 354 OGA 1904 at row 909 ); GA 1011 ( ; GA 765 ; GA 1544-1546 ); GA 1547-1548 -65-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 66 of 165 When CC2 arrived at the White House for the meeting, P9 confronted CC2 about P9 ‘s second memo, warned CC2 then the legal basis for his proposal. 355 went line by line through CC2 and CC2 conceded that no court would support it; in response,| P9 that pressing his admittedly unlawful plan would cause “riots in the streets.”356 P9 also spoke to the defendant, telling him that the theory that CC2 and others were promoting would not work, and that CC2 had acknowledged that it was “not going to work”; the defendant responded, “other people disagree” but did not identify those other people. 357 P9 pointed out to the defendant that CC2 ‘s theory regarding a strategic Democratic plan to subvert the election was inconsistent with other allegations that had been floating around about| C3 and foreign interference. 358 361 The meeting among the defendant, CC2, Pence, and Pence staffers P8 and P58 began around 4:45 p.m. 359 No one from the defendant’s White House Counsel’s Office attended. 360 During the meeting, the defendant asked CC2 to explain his plan to Pence. 3 CC2 presented two options: Pence could unilaterally decide objections to electors, or alternatively, in the plan that CC2 had devised the prior day, Pence could send the elector slates to the targeted states’ legislatures to determine which electors’ votes should be counted. 30 In the defendant’s presence, in response to Pence’s questioning, CC2 admitted that the ECA 362 355 GA 215-221 356 GA 215-218 357 GA 219-223 358 GA 224 359 GA 766 ); GA 1901 at row 5745 ); GA 766 ( ); GA 274-275 360 GA 120-121 361 GA 276-277 ); GA 579-580 362 GA 276-277 ); GA 580-585 -66-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 67 of 165 forbade what he proposed and that no one had tested CC2 new plan to send elector slates to state legislatures for review. 363 Nonetheless, the defendant repeatedly expressed a preference that Pence unilaterally reject valid elector slates. 364 Throughout the meeting, the defendant repeated his knowingly false fraud claims as a purported basis for Pence to act illegally. Pence’s five pages of contemporaneous notes from the meeting reflect that the defendant said, “when there’s fraud the rules get changed”; “bottom line – won every state by 100,000s of votes”; “this whole thing is up to MP”; “has to do w/you – you can be bold”; and “r[igh]t to do whatever you want to do.”365 The meeting concluded with Pence— firm and clear―telling the defendant “I’m not seeing this argument working.” Nonetheless, the defendant requested that Pence’s staff meet with CC2 again to discuss further, and Pence agreed.³ 367 “366 The conspirators were undeterred. Immediately after leaving the White House, CC2 gathered with CC6 and P1 back at the Willard Hotel. 368 Over the days that followed, these conspirators strategized on how CC2 could influence Pence through the Vice President’s counsel, and normalized the unlawful plan by discussing it on P1 podcast. 369 Meanwhile, the defendant continued to pressure Pence publicly. 363 GA 1028-1029 (Pence, So Help Me God p. 450-51); GA 278-279 364 GA 277 365 OGA 1549-1553 366 GA 280-281 ); GA 582-584 367 GA 1028-1029 (Pence, So Help Me God p. 450-51). 368 GA 1011-1013 369 GA 766 ); GA 1011-1014 ); GA 1559 ( ); GA 1983 at 36:55-37:43 ); GA 1984 at 9:09–9:55 -67-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 68 of 165 For his part, immediately upon leaving the meeting with Pence, the defendant traveled to Dalton, Georgia, to speak at a political rally at the invitation of two U.S. Senators engaged in run- off elections there. 370 During his political speech, the defendant promoted many of the same falsehoods that he previously had been informed were untrue. He said, “they’re not taking the White House. We’re gonna fight like hell, I’ll tell you right now,” and remarked, “I hope Mike Pence comes through for us, I have to tell you. I hope that our great Vice President, our great Vice President comes through for us… Of course, if he doesn’t come through, I won’t like him quite as much.”371 He also used the Dalton Campaign speech as a call to action to his own supporters, telling the crowd that “[i]f you don’t fight to save your country with everything you have, you’re not going to have a country left,”³72 and demanded that his supporters take action to prevent what he falsely called “the outright stealing of elections, like they’re trying to do with us,”³73 emphasizing, we “can’t let that happen.” 374 The next morning, on January 5, the defendant spoke on the phone with P1 375 Less said in anticipation of the January 6 certification than two hours later, on his podcast, P1 proceeding, “All Hell is going to break loose tomorrow.”376 Also on the morning of January 5, CC2 participated in a federal court hearing in Trump v. Kemp,3 377 the Georgia lawsuit against P17 and P33 in which the defendant had 370 GA 767 01/04/2021). 371 ); GA 930-931 (Donald J. Trump Tweet GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021). 372 GA 1096 (Dalton Rally Speech Draft Tr. 01/04/2021). 373 GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021). 374 GA 1096 (Dalton Rally Speech Draft Tr. 01/04/2021). 375 GA 768 376 OGA 1984 at 29:00-29:50 ( 377 Transcript of Mots. Hr’g, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021), ECF No. 21. -68-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 69 of 165 378 signed a false verification days earlier.³ CC2 on the defendant’s behalf, asked the federal court to decertify the presidential election in Georgia and declare that the state legislature may choose the state’s electors. 379 During the hearing, the federal court denied the relief requested. ³ Immediately following the federal court’s rejection of the legal basis for the conspirators’ went to the meeting that the defendant had requested that Pence’s staff, P58 and plan, CC2 380 P8 take.3 381 At the outset, CC2 changed his tack and advocated that Pence simply reject the Biden electors outright. 382 This was contrary to his primary recommendation the day before for Pence to send the slates to the state legislatures, but consistent with the preference the defendant had expressed. 383 CC2 made additional concessions during this meeting. For example, CC2 agreed that the Supreme Court would unanimously reject his proposed action, consistent historical practice since the Founding was that the Vice President never asserted authority to reject electors, no reasonable person would want the Constitution read that way because the office would never switch political parties, no state legislature appeared poised to try to change its electors, and if Democrats were to claim the same authority, CC2 would not credit it. 384 P58 expressed CC2 that the defendant’s plan would result in a “disastrous situation” where the election to 378 Complaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1; GA 1152 379 Transcript of Mots. Hr’g at 29-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021), ECF No. 21. 380 Transcript of Mots. Hr’g at 55-56, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021), ECF No. 21. 381 GA 1563 382 GA 283-284 Committee Testimony 06/16/2022); GA 1564 383 GA 283-284 ); GA 1939 at 1:20:00-1:21:30 (Video of Select ); GA 1939 at 1:20:00-1:21:30 (Video of Select Committee Testimony 06/16/2022); GA 1564 ( 384 GA 1939 at 56:53-57:36, 1:05:59-1:07:02, 1:21:55–1:29:50 (Video of Select Committee Testimony 06/16/2022); GA 267-272 -69-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 70 of 165 might “have to be decided in the streets.”385 Having failed to enlist P58 in the criminal conspiracy, CC2 told him that the “team” was going to be “really disappointed.” “team,” in fact, was disappointed; after CC2 updated confirmed to P1 that the “Pence lawyer”—that is, P58 was “totally against us,” prompting P1 to respond, “Fuck his lawyer.”387 That same day, CC2 received an email confirming “386 The CC1 on the meeting, CC6 what he already had admitted to P58 no chamber of any legislature in any state, including Arizona, Georgia, Pennsylvania, and Wisconsin, was requesting that its electoral votes be returned to the state for review.³ 388 Meanwhile, CC5 who had traveled to Washington as directed by the defendant’s public messages, obtained duplicate originals of the fraudulent certificates signed by the defendant’s fraudulent electors in Michigan and Wisconsin, which they believed had not been delivered by mail to the President of the Senate or Archivist. 389 CC5 received these duplicates from Campaign staff and surrogates, who flew them to Washington at private expense. 390 He then 385 GA 1939 at 1:26:01-1:26:32 (Video of Select Committee Testimony 06/16/2022). 386 GA 289-290 387 GA 1014 388 GA 1565-1567 389 GA 1568-1574 ); GA 1575 ( ); GA 1576-1580 ( GA 1581-1582 ); GA 1595-1596 390 GA 1601-1607 -70- ; GA 1583-1585 GA 1586-1589 D; GA 1590-1593 ); GA 1608
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 71 of 165 hand-delivered them to staffers for a U.S. Representative at the Capitol as part of a plan to deliver 391 them to Pence for use in the certification proceeding. 39 CC2 The defendant did not leave the pressure campaign to his co-conspirators; he redoubled his own efforts. On January 5 at 11:06 a.m., shortly before meeting with P58 the defendant tweeted, “The Vice President has the power to reject fraudulently chosen electors”³92 and designate the defendant as the winner of the electoral college vote. That afternoon, the defendant met privately with Pence in the Oval Office. 393 During the meeting, the defendant once again told Pence, “I think you have the power to decertify.”394 When Pence was unmoved, the defendant threatened to criticize him publicly (“I’m gonna have to say you did a great disservice”); 395 this concerned P8 to whom Pence had relayed the defendant’s threat, to the point that he alerted Pence’s Secret Service detail. 396 Next still, the defendant initiated a phone call with Pence, P8 P58 CC2 and one or two other private attorneys—likely including CC1 and again raised the scenario of the Vice President sending the elector slates to state legislatures. 398 P58 again pointed out that such a strategy violated the ECA, and Pence reaffirmed that he did not believe he had the authority to do so. 391 GA 1583-1585 1586-1589 1596 392 GA 934-935 (Donald J. Trump Tweet 01/05/2021). 393 GA 461-462 394 GA 461, 463 GA 1656 395 GA 461, 463-470 54); GA 1656 396 GA 586-587 397 GA 1657 ); GA 1659 398 GA 282-288 399 Id. 399 Shortly after the call that D; GA ); GA 1595- ); GA 1031-1032 (Pence, So Help Me God p. 453-54). ); GA 1031-1032 (Pence, So Help Me God p. 453-54); ); GA 1215 ); GA 1031-1032 (Pence, So Help Me God p. 453- ); GA 1658 -71-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 72 of 165 evening, at 5:43 p.m., the defendant tweeted, “I will be speaking at the SAVE AMERICA RALLY tomorrow on the Ellipse at 11AM Eastern. Arrive early – doors open at 7AM Eastern. BIG CROWDS!”400 The defendant continued his pressure campaign on Pence that evening. After a New York Times article that night detailed the afternoon’s private conversation in which Pence had rejected the defendant’s demand to act unlawfully, the defendant directed P4 to issue a statement rebutting it and approved the statement at 9:28 p.m.4 401 Minutes later, the defendant called Pence and told him, “you gotta be tough tomorrow.”402 After concluding the call with Pence, the defendant sequentially spoke to P1 followed by CC2 403 Then, at around 10:00 p.m. that night, the defendant issued the public statement, which read “the Vice President and I are in total agreement that the Vice President has the power to act”404_ -a statement that the defendant knew was a lie from Pence’s repeated and firm rejections of his efforts, but that gave false hope to the defendant’s supporters arriving in the city at the defendant’s request, and maximized pressure on Pence. F. The Defendant Caused Unlawful Conduct on January 6 and Tried to Take Advantage of the Riot that Ensued The defendant continued his intense pressure campaign against the Vice President into the early morning hours of January 6. Around 1:00 a.m., the defendant tweeted, falsely: “If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to 400 GA 938-939 (Donald J. Trump Tweet 01/05/2021). 401 GA 769 ); GA 1662 ); GA 1660-1661 ); GA 384-386 ); GA 1033 (Pence, So Help Me God p. 455). 402 GA 770 403 GA 770 404 GA 1663 (Donald J. Trump Campaign Statement 01/05/2021). -72-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 73 of 165 406 decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!”405 At 8:17 a.m., as the supporters he had summoned to the city gathered near the White House, the defendant again falsely tweeted about the certification: “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it, Mike, this is a time for extreme courage!”407 CC5 Later that morning, worked with another attorney for the defendant, who contacted a U.S. Senator to ask him to obtain the fraudulent Wisconsin and Michigan documents from the U.S. Representative’s office and hand-deliver them to the Vice President. 408 When one of the U.S. Senator’s staffers contacted a Pence staffer by text message to arrange for delivery of what the U.S. Senator’s staffer had been told were “[a]lternate slate[s] of electors for MI and WI because [the] archivist didn’t receive them,” Pence’s staffer rejected them. 409 At 11:15 a.m., shortly before traveling to the Ellipse to speak to his supporters, the defendant called Pence and made one last attempt to induce him to act unlawfully in the upcoming session. 410 When Pence again refused, and told the defendant that he intended to make a statement to Congress before the certification proceeding confirming that he lacked the authority to do what 405 GA 940-941 (Donald J. Trump Tweet 01/06/2021). 406 GA 1929 at 02:16:45 (Video of Ellipse Rally 01/06/2021). 407 GA 942-943 (Donald J. Trump Tweet 01/06/2021). 408 GA 1664 409 GA 1665-1666 410 GA 359 ); GA 102-103 -73- D; GA 55-56 ); GA 262-263 ); GA 1667
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 74 of 165 the defendant wanted, the defendant was incensed. 411 He decided to re-insert into his Campaign speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the certification. 412 And the defendant set into motion the last plan in furtherance of his conspiracies: if Pence would not do as he asked, the defendant needed to find another way to prevent the certification of Biden as president. So on January 6, the defendant sent to the Capitol a crowd of angry supporters, whom the defendant had called to the city413 and inundated with false claims of outcome-determinative election fraud, to induce Pence not to certify the legitimate electoral votes and to obstruct the certification. 414 At the Ellipse Campaign rally, CC1 and CC2 spoke just before the defendant. In his rally speech, CC1 sought to cloak the conspiracies in an air of legitimacy, assuring the defendant’s supporters that “every single thing that has been outlined as the plan for today is “415 perfectly legal,” and introducing CC2 as a “preeminent constitutional scholar[]” who would further explain this plan. 416 He falsely claimed that legislatures in five states were “begging” to have their electoral ballots returned. 417 CC1 then asserted that Pence could “decide on the 411 GA 371-373 GA 471-472 D; GA 227-228 ); GA 1668-1669 412 GA 405-406 ; GA 1670 ); GA 638-642 D; GA 1680 ( ; GA 1681 D; GA 371 ( ); GA 231 413 See, e.g., GA 886-887 (Donald J. Trump Tweet 12/26/2020); GA 897-898 (Donald J. Trump Tweet 12/27/2020); GA 899-900 (Donald J. Trump Tweet 12/30/2020); GA 905-906 (Donald J. Trump Tweet 01/01/2021); GA 907-908 (Donald J. Trump Tweet 01/01/2021); GA 913-914, GA 1891 (Donald J. Trump Tweet 01/01/2021); GA 928-929 (Donald J. Trump Tweet 01/04/2021); GA 932-933 (Donald J. Trump Tweet 01/05/2021); GA 938-939 (Donald J. Trump Tweet 01/05/2021). 414 See GA 1928 (Video of Ellipse Rally 01/06/2021). 415 GA 1928 at 2:19:27 (Video of Ellipse Rally 01/06/2021). 416 GA 1928 at 2:19:40 (Video of Ellipse Rally 01/06/2021). 417 GA 1928 at 2:20:13 (Video of Ellipse Rally 01/06/2021). -74-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 75 of 165 >>418 CC2 validity of these crooked ballots” and told the crowd, “[1]et’s have trial by combat.”419 in his speech, claimed that Pence must send electoral votes to state legislatures for “the American people [to] know whether we have control of the direction of our government or not,” and decried that “[w]e no longer live in a self-governing republic if we can’t get the answer to this question.”421 “420 When the defendant took the stage at the Ellipse rally to speak to the supporters who had gathered there at his urging, he knew that Pence had refused, once and for all, to use the defendant’s fraudulent electors’ certificates. The defendant also knew that he had only one last hope to prevent Biden’s certification as President: the large and angry crowd standing in front of him. So for more than an hour, the defendant delivered a speech designed to inflame his supporters and motivate them to march to the Capitol.42 422 The defendant told his crowd many of the same lies he had been telling for months- publicly and privately, including to the officials in the targeted states—and that he knew were not true. In Arizona, he claimed, more than 36,000 ballots had been cast by non-citizens. 423 Regarding 424 and he Georgia, the defendant repeated the falsehood that more than 10,300 dead people voted, raised the publicly disproven claims about fraud by election workers at State Farm Arena. 425 He made baseless allegations of dead voters in Nevada and Michigan and false claims about illegally 418 GA 1928 at 2:22:10 (Video of Ellipse Rally 01/06/2021). 419 Id. 420 GA 1928 at 2:27:08 (Video of Ellipse Rally 01/06/2021). 421 GA 1928 at 2:27:21 (Video of Ellipse Rally 01/06/2021). 422 GA 1928 at 3:31:20-4:42:50 (Video of Ellipse Rally 01/06/2021). 423 GA 1134 (Ellipse Rally Speech Draft Tr. 01/06/2021). 424 GA 1133-1134 (Ellipse Rally Speech Draft Tr. 01/06/2021). 425 GA 1133 (Ellipse Rally Speech Draft Tr. 01/06/2021). -75-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 76 of 165 counted votes in Wisconsin. 426 And in Pennsylvania, he claimed that there were hundreds of thousands more ballots counted than there had been voters. 427 The defendant also lied to his rally supporters when he claimed that certain states wanted to reconsider or recertify their duly appointed electors. For instance, he said, “By the way, Pennsylvania has now seen all of this. They didn’t know because it was so quick. They had a vote. They voted. But now they see all this stuff, it’s all come to light. Doesn’t happen that fast. And they want to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.”428 In response to this lie about Pennsylvania, the defendant’s crowd began to chant, “Send it back! Send it back!”429 The defendant gave his supporters false hope that Pence would take action to change the results of the election and claimed that Pence had the authority to do so. He falsely told the crowd that Pence could still “do the right thing’ 430 and halt the certification, and he extemporized lines about the Vice President through the speech, including the indirect threat, “Mike Pence, I hope you’re gonna stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m gonna be very disappointed in you. I will tell you right now. I’m not hearing good stories.”431 426 GA 1131 (Ellipse Rally Speech Draft Tr. 01/06/2021). 427 GA 1127, 1137 (Ellipse Rally Speech Draft Tr. 01/06/2021). 428 GA 1128 (Ellipse Rally Speech Draft Tr. 01/06/2021). 429 GA 1896 at 5:10 (Rallygoer Video 01/06/2021). 430 OGA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021). 431 Compare GA 1133 (Ellipse Rally Speech Draft Tr. 01/06/2021) with GA 1683 (Ellipse Rally teleprompter speech excerpt). – 76-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 77 of 165 “433 The defendant galvanized his supporters by painting the stakes as critical and assuring them that “history [was] going to be made.”432 He made clear that he expected his supporters to take action, telling them regarding his loss of the election that “we’re not going to let that happen,” calling on them to “fight”434 and to “take back”435 their country through strength, while suggesting that legal means were antiquated or insufficient to remedy the purported fraud, because “[w]hen you catch somebody in a fraud, you’re allowed to go by very different rules.” Throughout the speech—from as early as about fifteen minutes into it and twice in its final lines—the defendant directed his supporters to go to the Capitol and suggested that he would go with them.437 “436 The overall impact of the defendant’s speech-particularly in light of months of statements and Tweets falsely claiming election fraud and following on the heels of CC1 and CC2 speeches was to fuel the crowd’s anger. For instance, when the defendant told his supporters that “[w]e will not let them silence your voices. We’re not going to let it happen,’ the crowd 439 “438 chanted, “Fight for Trump,” in response. When the defendant soon after told supporters that “we’re going to walk down to the Capitol,’ ,”440 that they would “never take back our country with 432 GA 1122 (Ellipse Rally Speech Draft Tr. 01/06/2021). 433 GA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021). 434 See, e.g., GA 1120, 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021). 435 Id. 436 GA 1137 (Ellipse Rally Speech Draft Tr. 01/06/2021). 437 GA 1120, 1140, 1141 (Ellipse Rally Speech Draft Tr. 01/06/2021). 438 GA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021). 439 GA 1897 at 3:18 (Rallygoer Video 01/06/2021). 440 GA 1120 (Ellipse Rally Speech Draft Tr. 01/06/2021). -77-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 78 of 165 weakness,”441 and that they had “to show strength and [had] to be strong,’ crowd shouted, “Invade the Capitol building!” and, “Take the Capitol!”443 >>442 members of the Thousands of the defendant’s supporters obeyed his directive and marched to the Capitol, 444 where the certification proceeding began around 1:00 p.m.4 Minutes earlier, Pence 445 had issued a public statement explaining that his role as President of the Senate did not include “unilateral authority to determine which electoral votes should be counted and which should “446 not.” On the floor of the House of Representatives, Pence opened the certificates of vote and certificate of ascertainment from Arizona, consistent with the ECA. After an objection from a Senator and Representative, the House and Senate retired to their separate chambers to debate it. 447 Outside of the Capitol building, a mass of people—including those who had traveled to Washington and the Capitol at the defendant’s direction—broke through barriers cordoning off the Capitol grounds and advanced on the building.4 Among these was CC5 who had attended 448 449 the defendant’s speech from the Washington Monument, marched with the crowd to the Capitol, and breached the restricted area surrounding the building. A large portion of the crowd at the Capitol including rioters who violently attacked law enforcement officers trying to secure the 441 Id. 442 Id. 443 GA 1898 at 00:19 (Rallygoer Video 01/06/2021). 444 See, e.g., GA 1930 at 1:09:30 (Video of Ellipse Rally 01/06/2021); GA 1942 (Video of March to Capitol 01/06/2021); GA 1941 at 02:10-2:33 (Video of March to Capitol 01/06/2021). 445 GA 1937 at 20:47 (Video of House Floor 01/06/2021). 446 GA 1685 (Pence Dear Colleague Letter 01/06/2021). 447 GA 1937 at 26:24 (Video of House Floor 01/06/2021). 448 See, e.g., GA 1915 at 3:25 (Video of Capitol Riot 01/06/2021). 449 GA 1687 ); GA 1689 ; GA 1583-1585 ; GA 1688 D; GA 1690 ( -78-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 79 of 165 building wore clothing and carried items bearing the defendant’s name and Campaign slogans, leaving no doubt that they were there on his behalf and at his direction. 450 Beginning at about 1:30 p.m., the defendant settled in the dining room off of the Oval Office. He spent the afternoon there reviewing Twitter on his phone,4 451 while the dining room television played Fox News’ contemporaneous coverage of events at the Capitol.4 recess. 452 At 2:13 p.m., the crowd at the Capitol broke into the building, and forced the Senate to 453 Within minutes, staffers fled the Senate chamber carrying the legitimate electors’ physical certificates of vote and certificates of ascertainment. 454 Next to the Senate chamber, a group of rioters chased a U.S. Capitol Police officer up a flight of stairs to within forty feet of where Pence was sheltering with his family. 455 As they did so, the rioters shouted at the officer, in search of public officials, “Where the fuck they at? Where the fuck they counting the votes at? Why are you protecting them? You’re a fucking traitor.”456 On the other side of the Capitol, the House was also forced to recess.” 457 450 GA 1912 at 56:56 (Video of Capitol Riot 01/06/2021); GA 1924 at 38:48 (Video of Capitol Riot 01/06/2021); GA 1918 (Video of Capitol Riot 01/06/2021); GA 1919 (Video of Capitol Riot 01/06/2021); GA 1921 at 04:30 (Video of Capitol Riot 01/06/2021); see also GA 2-3 451 GA 1902 452 GA 168-169 GA 540, 541-544 ( ); GA 292-293 ); GA 232, 236 ( 453 GA 1957 at 1:04-1:25 (Video of Senate Wing Door CCTV 01/06/2021); GA 1954 at 44:16 (Video of Senate Floor 01/06/2021). 454 United States v. Hale-Cusanelli, No. 21-cr-37, ECF No. 93 at 38-39 (D.D.C. June 3, 2022) (Trial Tr. 05/24/2022). 455 GA 1923 (Video of Capitol Riot 01/06/2021); GA 177-178 456 GA 175 ); see also GA 176, 179 GA 1916 at 00:50 (Video of Capitol Riot 01/06/2021). 457 GA 1937 at 1:34:00 (Video of House Floor 01/06/2021). – 79 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 80 of 165 Fox News’s coverage of events at the Capitol included, at about 2:12 p.m., reports of the Capitol being on lockdown and showed video footage of large crowds within the restricted area surrounding the Capitol; much of the crowd was wearing clothing and carrying flags evidencing their allegiance to the defendant. 458 At about 2:20 p.m., video of crowds on the Capitol lawn and West Terrace were shown alongside a chyron stating, “CERTIFICATION VOTE PAUSED AS PROTESTS ERUPT ON CAPITOL HILL.”459 At 2:21 p.m., an on-the-street reporter interviewed an individual marching from the Ellipse to the Capitol who claimed to have come to Washington “because President Trump told us we had something big to look forward to, and I believed that Vice President Pence was going to certify the electorial [sic] votes and, or not certify them, but I guess that’s just changed, correct? And it’s a very big disappointment. I think there’s several hundred thousand people here who are very disappointed. But I still believe President Trump has 99460 something else left.” And at approximately 2:24 p.m., Fox News reported that a police officer may have been injured and that “protestors . . . have made their way inside the Capitol.” 461 At 2:24 p.m., Trump was alone in his dining room when he issued a Tweet attacking Pence and fueling the ongoing riot: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”462 That afternoon, at the Capitol, a rioter used a bullhorn to read the defendant’s Tweet about the Vice President aloud to the crowd trying to gain entry to the 458 GA 1931 at 12:12 (Video of Fox News Coverage 01/06/2021). 459 GA 1931 at 20:11 (Video of Fox News Coverage 01/06/2021). 460 GA 1931 at 21:47 (Video of Fox News Coverage 01/06/2021). 461 GA 1931 at 24:05-24:17 (Video of Fox News Coverage 01/06/2021). 462 GA 946-947 (Donald J. Trump Tweet 01/06/2021); GA 546 – 80 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 81 of 165 building. .463 The defendant issued the incendiary Tweet about Pence despite knowing as he would later admit in an interview in 2023—that his supporters “listen to [him] like no one else.”464 One minute later, at 2:25 p.m., the Secret Service was forced to evacuate Pence to a secure location. 465 At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”466; “Where is Pence? Bring him out!”467; and “Traitor Pence!”468 Several rioters in those chanting crowds wore hats and carried flags evidencing their allegiance to the defendant. In the years since January 6, the defendant has refused to take responsibility for putting Pence in danger, instead blaming Pence. On March 13, 2023, he said, “Had Mike Pence sent the votes back to the legislatures, they wouldn’t have had a problem with Jan. 6, so in many ways you can blame him for Jan. 6. Had he sent them back to Pennsylvania, Georgia, Arizona, the states, I believe, number one, you would have had a different outcome. But I also believe you wouldn’t have had ‘Jan. 6′ as we call it.” “469 Rioters again, many bearing pro-Trump paraphernalia indicating their allegiance― breached the Senate chamber, 470 rifled through the papers on the Senators’ desks, 471 and stood on the dais where Pence had been presiding just minutes earlier. 472 On the House side, rioters watched 463 GA 1922 (Video of Capitol Riot 01/06/2021). 464 GA 1693 (Transcript of CNN Town Hall 05/10/2023). 465 GA 1944 (Video of Pence Evacuation 01/06/2021). 466 GA 1914 (Video of Capitol Riot 01/06/2021). 467 GA 1911 (Video of Capitol Riot 01/06/2021). 468 GA 1910 (Video of Capitol Riot 01/06/2021). 469 Isaac Arnsdorf and Maeve Reston, Trump claims violence he inspired on Jan. 6 was Pence’s fault, Wash. Post, (Mar. 13, 2023, https://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/. 470 GA 1956 (Video of Senate Gallery Doors CCTV 01/06/2021). 471 GA 1955 at 16:20 (Video of Senate Floor 01/06/2021). 472 GA 1955 at 29:15 (Video of Senate Floor 01/06/2021). 8:09 p.m.), – 81 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 82 of 165 as police evacuated lawmakers from the House chamber, smashing glass windows surrounding a locked door that stood between them and the fleeing Members and staffers. 473 At least one rioter recorded video showing Members being evacuated while the growing crowd screamed at the Capitol Police officers guarding the locked door to the House Speaker’s Lobby. 474 Some of the worst violence of the day took place outside of the Capitol on the Lower West Terrace the side of the building facing the Ellipse where the defendant had given his speech. There, scaffolding placed in anticipation of the January 20 Inauguration created a tunnel leading to a set of double glass doors into the center of the Capitol building. After rioters had forced their way onto restricted Capitol grounds and past the temporary barriers, including layers of snow fencing and bike racks, they attacked the law enforcement officers trying to protect the building with flag poles, bear spray, stolen police riot shields, and other improvised weapons. time defending the Capitol, one Metropolitan Police Department Officer said: 475 I feared for my life from the moment I got into that—we were walking into the crowd, when the Capitol Police officer was leading us into the front line. And especially when I got sprayed in the middle of the crowd. I-at that point, honestly, I thought, this is it. Yeah, multiple times. . . You know, you’re getting pushed, kicked, you know, people are throwing metal bats at you and all that stuff. I was like, yeah, this is fucking it.476 Of his The officer described that the rioters he encountered at the Capitol were wearing both “tactical gear” and “Trump paraphernalia” and appeared to be acting out of “pure, sheer anger.”477 473 GA 1938 at 00:05 (Video of House Floor 01/06/2021); GA 1905 (Video inside Capitol Building 01/06/2021). 474 GA 1936 at 06:18 (Video of House Chamber Doors 01/06/2021). 475 GA 1920 (Video of Capitol Riot 01/06/2021); GA 1917 at 54:30 (Video of Capitol Riot 01/06/2021). 476 GA 5-6 477 GA 4 -82-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 83 of 165 99479 In the years after January 6, the defendant has reiterated his support for and allegiance to rioters who broke into the Capitol, calling them “patriots”478 and “hostages,” providing them financial assistance, 480 and reminiscing about January 6 as “a beautiful day.”481 At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times-opening the event with a song called “Justice for All,” recorded by a group of charged and in many cases, convicted January 6 offenders known as the “January 6 Choir” and who, because of their dangerousness, are held at the District of Columbia jail. 482 At the Waco Rally, of the January 6 Choir, the defendant said, “our people love those people, they love those people.”483 The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484 On the evening of January 6, the defendant and CC1 attempted to exploit the violence and chaos at the Capitol by having CC1 call Senators and attempt to get them to further delay the certification. 485 At around 7:00 p.m., CC1 placed calls to five U.S. Senators and one U.S. Representative.4 CC6 attempted to confirm phone numbers for Members of Congress whom 486 478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022). 479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024). 480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022). 481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023). 482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United States v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022). 483 OGA 1973 at 06:02 (Video of Waco Rally 03/25/2023). 484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022). 485 OGA 1904 at row 1383 486 GA 1697 ); GA 1696 ); GA 1401-1406 ; GA 1698-1701 -83-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 84 of 165 the defendant had directed CC1 to call. 487 In a voicemail that CC1 intended for one Senator, CC1 said, “I’m calling you because I want to discuss with you how they’re trying to rush this hearing and how we need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they’re reconvening at eight tonight, but the only strategy we can follow is to object to numerous states and raise issues so that we can get ourselves into tomorrow-ideally until the end of tomorrow.” “488 He then asked the Senator to “object to every state” to “give us the opportunity to get the legislators who are very, very close to pulling their votes.” This concession—that legislatures had not yet asked to review their slates— stood in contrast to CC1 and the defendant’s lies at the Ellipse that they already had. 489 Next, in a voicemail intended for another Senator, CC1 told more lies. 490 He falsely claimed that Pence’s decision not to use the defendant’s fraudulent electors’ certificates had been surprising, and that in light of the surprise, “we could use a little time so that the state legislatures can prepare even more to come to you and say, ‘Please give this back to us for a while so we can fix it.””>491 CC1 then repeated knowingly false claims of election fraud, including that non-citizens had voted in Arizona and an outcome-determinative number of underage voters had cast ballots in Georgia. 492 Although the attack on the Capitol successfully delayed the certification for approximately six hours, the House and Senate resumed the Joint Session at 11:35 p.m. But the conspirators 493 487 GA 1702 488 GA 1977 489 GA 1928 at 2:20:13, 3:37:54 (Video of Ellipse Rally 01/06/2021). 490 GA 1975 491 Id. 492 Id. 493 GA 1703 (Congressional Record 01/06/2021). -84-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 85 of 165 were not done. Within ten minutes, at 11:44 p.m., CC2 who earlier that day wrote to P58 that “[t]he ‘siege’ is because YOU and your boss did not do what was necessary” emailed P58 again and urged him to convince Pence to violate the law, writing, “I implore you to consider one more relatively minor violation [of the ECA] and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here.”494 At 3:41 a.m. on January 7, as President of the Senate, Pence announced the certified results of the 2020 presidential election in favor of Biden. 495 II. Legal Framework In Trump, the Supreme Court held that former presidents are immune from prosecution for core official acts, enjoy at least a rebuttable presumption of immunity for other official acts, and have no immunity for unofficial acts, and remanded to this Court for further proceedings consistent with its holding. 144 S. Ct. at 2327, 2332, 2347. This section sets forth the applicable legal principles and then Section III applies them to the categories of conduct that the superseding indictment alleges and that the Government intends to prove at trial in order to demonstrate that none of the defendant’s conduct is immunized. In Trump, the Supreme Court announced the principles that govern a former President’s claim of constitutional immunity from federal criminal prosecution. The Supreme Court divided presidential acts into three categories: (1) core presidential conduct that Congress has no power to regulate and for which a former President has absolute immunity; (2) other official presidential acts for which the President has at least presumptive immunity; and (3) unofficial conduct for 494 IGA 1705-1709 495 GA 1925 at 19:14, 20:34 (Video of Congress Joint Session 01/06/2021); GA 1704 at 41 (Congressional Record 01/06/2021). -85-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 86 of 165 which the President has no immunity. Id. at 2327, 2331-32. With respect to the first category of core official conduct, when the President’s authority to act is “conclusive and preclusive,”” Congress may not regulate his actions, and the President has absolute immunity from criminal prosecution. Id. at 2327 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring)). Applying those principles to the original indictment, the Supreme Court concluded that the defendant is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials” and his “threatened removal of the Acting Attorney General.” Id. at 2335. The superseding indictment omits those allegations, and the Supreme Court did not find that any other conduct alleged in the original indictment implicated “conclusive and preclusive” presidential authority. See id. at 2335-40. The threshold question here, then, is whether the defendant can carry his burden to establish that his acts were official and thus subject to presumptive immunity. Id. at 2332; see Dennis v. Sparks, 449 U.S. 24, 29 (1980) (noting that for immunity doctrines, “the burden is on the official claiming immunity to demonstrate his entitlement”). Official conduct includes acts taken within the ” ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond [his] authority.”” Trump, 144 S. Ct. at 2333 (quoting Blassingame, 87 F.4th at 13). But consistent with the D.C. Circuit’s opinion in Blassingame, the Supreme Court suggested that a President who speaks “as a candidate for office or party leader”- as the defendant did here―does not act in his official, presidential capacity. Id. at 2340. As the D.C. Circuit explained, a President acting as a “candidate for re-election” is, to that extent, not carrying out an official responsibility. Blassingame, 87 F.4th at 17; accord id. at 5 (“When a sitting President running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern. Yet he does -86-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 87 of 165 so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity.”) (emphasis in original). To assess whether a presidential action constitutes an “official” act, courts must apply an “objective analysis” that focuses on the “content, form, and context”” of the conduct in question. Trump, 144 S. Ct. at 2340 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). A President’s motives for undertaking the conduct and the fact that the conduct is alleged to have violated a generally applicable law are not relevant considerations. Id. at 2333-34. If a President’s actions constitute non-core official presidential conduct, he is at least presumptively immune from criminal prosecution for that conduct. 144 S. Ct. at 2328, 2331; id. at 2332 (reserving whether “this immunity is presumptive or absolute . . . [b]ecause we need not decide that question today”). The Government can overcome that presumptive immunity by demonstrating that “applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.”” Id. at 2331-32 (quoting Fitzgerald, 457 U.S. at 754). Just as the inquiry into whether conduct is official or unofficial is “necessarily factbound,” Trump, 144 S. Ct. at 2340, with “[t]he necessary analysis [being] . . . fact specific,” id. at 2339, so too should be the inquiry into whether any “presumption of immunity is rebutted under the circumstances,” id. at 2337. The analysis should first identify the specific alleged act at issue, and then determine whether criminal liability for the act intrudes on a relevant Executive Branch authority or function, taking care not to “conceive[] of the inquiry at too high a level of generality.” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1141 (D.C. Cir. 2015) (reversing district court in civil immunity case). Such an approach recognizes that Executive authority has limits boundaries imposed by constitutional text, the separation of powers, and precedent—and that application of criminal law to the President’s official conduct does not per se intrude -87-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 88 of 165 impermissibly on Executive Branch authority and functions. Cf. Trump, 144 S. Ct. at 2327 (“If the President claims authority to act but in fact exercises mere ‘individual will’ and ‘authority without law,’ the courts may say so.”) (quoting Youngstown, 343 U.S. at 655 (Jackson, J., concurring)). These principles for assessing whether the conduct alleged in the superseding indictment is immune apply equally to evidence. The Government may not introduce evidence of immunized official conduct against a former President at a trial, even to prove that the former President committed a crime predicated on unofficial conduct. Id. at 2340-41. III. None of the Allegations or Evidence Is Protected by Presidential Immunity At its core, the defendant’s scheme was a private one; he extensively used private actors and his Campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office. To the limited extent that the superseding indictment and proffered evidence reflect official conduct, however, the Government can rebut the presumption of immunity because relying on that conduct in this prosecution will not pose a danger of intrusion on the authority or functions of the Executive Branch. Below, the Government categorizes the conduct outlined in Section I and provides “content, form, and context” for this Court to determine that the defendant’s conduct was private or that, in the alternative, any presumptive immunity is rebutted “under the circumstances.” Trump, 144 S. Ct. at 2337. This analysis is necessarily fact- intensive, and all of the Government’s analysis below is based on the unique facts and circumstances of this case. This section first addresses the defendant’s interactions with Pence, because in Trump, the Supreme Court held that when the defendant conversed with Pence about “their official responsibilities,” the conduct was official. 144 S. Ct. at 2336. Accordingly, the Government explains below why any presumptive immunity as to the defendant’s official conduct regarding -88-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 89 of 165 Pence is rebutted. Other than the specific official conduct related to Pence that the Supreme Court held to be official, none of the defendant’s other actions were official. This section categorizes that conduct and provides the “content, form, and context” that establishes its unofficial nature. These categories are: a) the defendant’s interactions, as a candidate, with state officials; b) the defendant’s efforts, as a candidate, to organize fraudulent electors; c) the defendant’s public speeches, Tweets, and other public statements as a candidate; d) the defendant’s interactions, as a candidate, with White House staff; and e) other evidence of the defendant’s knowledge and intent. Lastly, even if these categories of conduct and evidence were to be deemed official, the Government can rebut the attendant presumption of immunity as described below. A. The Defendant’s Interactions with Pence The only conduct alleged in the original indictment that the Supreme Court held was official, and subject to at least a rebuttable presumption of immunity, was the defendant’s attempts to lie to and pressure Vice President Pence to misuse his role as President of the Senate at the congressional certification. The Supreme Court stated that “[w]henever the President and Vice President discuss their official responsibilities, they engage in official conduct,” and further explained that because Pence’s role at the certification was “a constitutional and statutory duty of the Vice President,” the defendant was “at least presumptively immune from prosecution for such conduct.” 144 S. Ct. at 2336. Accordingly, unlike all of the other threshold determinations that the Court will have to make about whether the defendant’s conduct alleged in the superseding indictment was official, with respect to the defendant’s conversations with Pence about Pence’s official role at the certification proceeding, the Court can skip to the second step: whether the Government can rebut the presumption of immunity that the Supreme Court held applies to such conversations. Because the Executive Branch has no role in the certification proceeding—and indeed, the President was purposely excluded from it by design—prosecuting the defendant for his – 89 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 90 of 165 corrupt efforts regarding Pence poses no danger to the Executive Branch’s authority or functioning. As described below, the Government also intends to introduce at trial evidence regarding conversations between the defendant and Pence in which they did not discuss Pence’s official responsibilities as President of the Senate and instead acted in their private capacities as running mates. And the Government intends to elicit at trial evidence about a Pence staffer’s conversations with co-conspirator CC2 Those conversations were unofficial and therefore not immune. 1. The defendant’s interactions with Pence as the President of the Senate were official, but the rebuttable presumption of immunity is overcome The superseding indictment and the Government’s trial evidence include the defendant’s attempts to influence Pence’s “oversight of the certification proceeding in his capacity as President of the Senate.” Trump, 144 S. Ct. at 2337. These conversations included one-on-one conversations between the defendant and Pence (see, e.g., supra pp. 49, 63-65, 72-74, describing conversations on December 5 and 25, 2020, and January 1, 3, 5, and 6, 2021496), as well as conversations in which the defendant included private actors, such as co-conspirator CC2 in his attempts to convince Pence to participate in the conspiracies (see, e.g., supra pp. 66-67 and 71-72, describing conversations on January 4 and 5, 2021). The Supreme Court held that discussions between the defendant and Pence concerning Pence’s role at the certification proceeding qualify as official conduct, and therefore are subject to 496 The Government’s factual proffer also describes a conversation between the defendant and Pence on December 19—the same day that the defendant issued his “will be wild!” Tweet calling supporters to Washington—in which the defendant told Pence that it would be good to have lots of their supporters in town on January 6. See supra pp. 60. At trial, the Government intends to use this unofficial portion of the conversation, held between running mates, but not Pence’s response, which included a reference to the certification proceeding on January 6. GA 440-441 ); GA 1020 (Pence, So Help Me God p. 437). See infra p. 145-146. -90-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 91 of 165 a rebuttable presumption of immunity, because they involved “the President and the Vice President discuss[ing] their official responsibilities.” Id. at 2336. Those discussions qualify as official because “[p]residing over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President.” See id. at 2336; U.S. Const. Art. I, § 3, cl. 4. The discussions at issue did not pertain to Pence’s role as President of the Senate writ large, however, but instead focused only on his discrete duties in presiding over the certification proceeding―a process in which the Executive Branch, by design, plays no direct role. Trump, 144 S. Ct. at 2337. A prosecution involving the defendant’s efforts to influence Pence in the discharge of this particular duty, housed in the Legislative Branch, would not “pose any dangers of intrusion on the authority and functions of the Executive Branch.” Id. The Executive Branch has no authority or function to choose the next President. Blassingame, 87 F.4th at 17. To the contrary, the Constitution provides that the States will appoint electors to vote for the President and Vice President. U.S. Const. Art. II, § 1, cl. 2. And all States have chosen to make such appointments based on the ballots cast by the people in their respective states. See Chiafalo v. Washington, 591 U.S. 578, 581 (2020). “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes,” U.S. Const. Art. II, § 1, cl. 4, but the Executive Branch has no direct role in that process. The next step in the process established by the Constitution similarly provides no role for the Executive Branch: the House and Senate meet in joint session, with the President of the Senate present to “open all the certificates” of the state-appointed electors in the presence of the House and Senate, for them to be counted. U.S. Const. Amend. XII. “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.” Id. Only if the state-appointed electors have failed to make a choice, i.e., no candidate – 91 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 92 of 165 has such a majority, does the choice fall to the House of Representatives, who, voting by state delegation, “choose immediately, by ballot,” from the three presidential candidates receiving the most electoral votes. Id. There, too, the Executive Branch plays no role in the process. The exclusion of the Executive Branch reflects fundamental constitutional principles. The “executive Power” is “vested in a President” only for “the Term of four Years,” U.S. Const. Art. II, § 1, cl. 1, and it transfers to his successor, by operation of law, “at noon on the 20th day of January,” U.S. Const. Amend. XX. Permitting the incumbent President to choose his own successor -or, worse still, to perpetuate himself in power-would contradict the entire constitutional system that the Framers created. “In free Governments,” Benjamin Franklin explained, “the rulers are the servants, and the people their superiors [and] sovereigns.” 2 The Records of the Federal Convention of 1787, at 120 (Max Farrand ed., 1911). A government could not be considered a “genuine republic,” Madison argued, unless “the persons administering it,” including the President, “be appointed, either directly or indirectly, by the people; and that they hold their appointments” for a “definite period.” The Federalist No. 39 (J. Madison). Thus, while the Framers recognized “the necessity of an energetic Executive,” they justified and checked his power by ensuring that he always retained “a due dependence on the people.” The Federalist No. 70 (A. Hamilton); see Seila Law LLC v. CFPB, 591 U.S. 197, 223-24 (2020). The Framers further recognized that while regular elections would serve as “the primary control on the government,” “experience has taught mankind the necessity of auxiliary precautions” as well. The Federalist No. 51 (J. Madison). Some of those precautions are reflected in the design of the Electoral College itself. “[W]ary of ‘cabal, intrigue, and corruption,”” the Framers “specifically excluded from service as electors ‘all those who from situation might be suspected of too great devotion to the president in -92-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 93 of 165 office.”” Trump, 144 S. Ct. at 2339 (quoting The Federalist No. 68 (A. Hamilton)). They were keenly aware, as Justice Story later explained, that “an ambitious candidate” could hold out “the rewards of office, or other sources of patronage,” in an effort “to influence a majority of votes; and, thus, by his own bold and unprincipled conduct, to secure a choice, to the exclusion of the highest, and purest, and most enlightened men in the country.” Joseph Story, 3 Commentaries on the Constitution of the United States § 1450, at 314 (1833 ed.). To guard against that possibility, Article II provides that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” U.S. Const. Art. II, § 1, cl. 2. As a leading early American commentator observed, these limitations serve “to prevent the person in office, at the time of the election, from having any improper influence on his re-election, by his ordinary agency in the government.” See 1 James Kent, Commentaries on American Law *276 (8th ed. 1854). The Constitution’s structure further reflects the Framers’ considered choice to exclude the incumbent President from playing a role in choosing the next President. The Constitution reflects an abiding concern that governmental “power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it,” not least to protect against “the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.” The Federalist No. 48 (J. Madison); see Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) (“The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive.”). The Framers therefore designed a system of separated powers in part to ensure that “[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The Federalist No. 10 (J. Madison). -93-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 94 of 165 The defendant’s charged conduct directly contravenes these foundational principles. He sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people. As such, applying a criminal prohibition to the defendant’s conduct would not pose any danger of intrusion on the authority and functions of the Executive Branch; rather, it would advance the Constitution’s structural design to prevent one Branch from usurping or impairing the performance of the constitutional responsibilities of another Branch. See Clinton v. Jones, 520 U.S. 681, 699- 702 (1997). History confirms that presidents have never understood their wide-ranging duties to encompass any direct role in the function of collecting, counting, and certifying the results of a presidential election. As President Lincoln explained in 1864, “[b]y the Constitution and laws the President is charged with no duty in the conduct of a presidential election in any State,” and “[i]f any election shall be held, and any votes shall be cast in the State of Tennessee for President and Vice President of the United States, it will belong, not to the military agents, nor yet to the Executive Department, but exclusively to another department of the Government, to determine whether they are entitled to be counted, in conformity with the Constitution and laws of the United States.” 8 Collected Works of Abraham Lincoln, 71-72 (1953). When Congress later sent to Lincoln for his signature a “Joint resolution declaring certain States not entitled to representation in the electoral college,” Lincoln signed the resolution “in deference to the view of Congress implied in its passage and presentation to him,” but “disclaim[ed] all right of the Executive to interfere in any way in the matter of canvassing or counting electoral votes.” House Special Committee, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 229-230 (1877). The Government is aware of no contrary evidence, including of any President, other than the defendant, -94-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 95 of 165 seeking to influence his Vice President in the discharge of his duties as President of the Senate in presiding over the joint session. The absence of any such historical tradition is reinforced by the fact that in 22 of the 59 certification proceedings the Vice President has not presided at all. See Joel K. Goldstein, The Ministerial Role of the President of the Senate in Counting Electoral Votes: A Post-January 6 Perspective, 21 U. N.H. L. REV. 369, 402 & App’x 1 (2023). When it comes to the certification proceeding specifically, not only has the President been deliberately excluded from the process, but the Vice President’s role, as President of the Senate, is highly circumscribed and ministerial in nature. The Twelfth Amendment gives the President of the Senate no substantive role in determining how to count the votes of the electors appointed by the states. Rather, it provides only that he “shall, in the presence of the Senate and House of Representatives, open all the certificates,” and then shifts to the passive voice: “and the votes shall then be counted.” Nothing in the Constitution remotely suggests that the single individual serving as President of the Senate would have the momentous responsibility to decide which votes to count and how they should be counted. Indeed, as Pence himself explained on January 6, 2021, giving the President of the Senate such a role “would be entirely antithetical to the [Constitution’s] design. And, removing any possible doubt, “Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes,” Trump, 144 S. Ct. at 2337 (citing 3 U.S.C. § 15), and it has never provided any substantive role for the Vice President, instead assigning the resolution of disputes to the two Houses of Congress. 498 Moreover, Congress has 99497 497 GA 1685 (Pence Dear Colleague Letter 01/06/2021). 498 Legislation confirming the ministerial nature of that role dates to the Electoral Count Act of 1887, Pub. L. 49-90, 24 Stat. 373 (1887). See 3 U.S.C. §§ 15-18 (2020 ed.) (assigning all power to resolve vote-counting disputes to the two Houses of Congress, while assigning to the President of the Senate only the ministerial duties of “presiding,” “preserv[ing] order,” “open[ing] . . . the certificates,” “call[ing] for objections,” and “announc[ing] the state of the vote” after receiving the results from the tellers). -95-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 96 of 165 now made explicit echoing and reaffirming constitutional tradition and practice that, with limited exceptions of no relevance to this case, “the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties,” 3 U.S.C. § 15(b)(1). He “shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.” Id. § 15(b)(2). 499 Because the Vice President’s role is and has always been ministerial, rather than substantive or discretionary, it is difficult to imagine an occasion in which a President would have any valid reason to try to influence it. As such, criminalizing a President’s efforts to affect the Vice President’s role as the President of the Senate overseeing the certification of Electoral College results would not jeopardize an Executive Branch function or authority. Critically, applying a criminal prohibition to the discrete and distinctive category of official interactions between the President and Vice President alleged in this case would have no effect— chilling or otherwise- -on the President’s other interactions with the Vice President that implicate Executive Branch interests. The President would still be free to direct the Vice President in the discharge of his Executive Branch functions, such as “presid[ing] over . . . cabinet meetings,” engaging in “diplomacy and negotiation,” or performing any other presidential duties that the President chooses to delegate. See Trump, 144 S. Ct. at 2336 (internal quotation marks omitted). The President would likewise still be free to advise the Vice President on how to “advance the 499 Section 15 of Title 3 was amended in the Electoral Count Reform Act of 2022, Pub. L. 117- 328, 136 Stat. 4459, 5237-40 (2022), in response to the defendant’s conduct here, to eliminate any doubt that the President of the Senate’s role at the joint session is ministerial. And because the rebuttal analysis is necessarily prospective in nature, the current version of Section 15 supplies the relevant measure, in this context, of “the Vice President’s role in the counting of electoral votes,” Trump, 144 S. Ct. at 2337. -96-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 97 of 165 President’s agenda in Congress,” by casting tiebreaking votes on legislation or nominations. Id. at 2337. None of these legitimate Executive Branch functions would be chilled or affected at all. Lastly, the fact that the defendant regularly included other private actors, such as his private attorney and co-conspirator CC2 in some conversations to attempt to pressure Pence (Superseding Indictment, ECF No. 226 ¶¶75-76; supra pp. 66-67, 71-72) strengthens the conclusion that prosecuting the defendant for his actions using CC2 to help recruit Pence into the conspiracies does not infringe on any Executive Branch authority or function. As set forth in Section I, private co-conspirators worked to schedule the January 4 meeting at which CC2 attempted to pressure Pence. Although White House Counsel P59 was invited to the meeting, when he arrived to attend, the defendant explicitly excluded him from it—meaning that the only attorney attending the meeting for the defendant was CC2 his privately-retained counsel. In P59 telling, when P59 arrived at the Oval Office for the meeting, the defendant “said words . . . indicating he didn’t want me at the meeting.”500 It is hard to imagine stronger evidence that conduct is private than when the President excludes his White House Counsel and only wishes to have his private counsel present. and P8 as CC2 Next, the phone call on January 5 that the defendant and CC2 made to Pence, P58 was the result of the private co-conspirators’ failure to convince P58 and P8 to do urged in the meeting on the morning of January 5 that P58 and P8 took at the defendant’s request. The defendant’s decision to include private actors in the conversations with Pence about his role at the certification makes even more clear that there is no danger to the Executive Branch’s functions and authority, because the CC2 conversations had no bearing on any Executive Branch prerogative. Instead, all of this conduct objectively benefitted the defendant 500 GA 120-121 -97-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 98 of 165 in his private capacity as a candidate. The Court should therefore find the presumption of immunity to be rebutted. And because the presumption is rebutted, any participant in the meeting or phone call—including Pence, P58 and P8 can testify about it at trial. 2. The defendant’s interactions with Pence as a running mate were unofficial At trial, as indicated supra pp. 12-14, the Government intends to introduce evidence of private phone calls or in-person meetings (which occasionally included Campaign staff) that the defendant had with Pence in their unofficial capacities, as running mates in the post-election period. These conversations were not described in the original indictment nor analyzed by the Supreme Court in its opinion, nor are they described in the superseding indictment. In these conversations, the defendant and Pence discussed their electoral prospects, election-related litigation, and the possibility of the defendant running again in 2024 if his legal challenges failed. For example, Pence “tried to encourage” the defendant “as a friend,” when news networks projected Biden as the winner of the election; on other occasions, softly suggested the defendant “recognize [the] process is over” even if he was unwilling to concede; and encouraged the defendant to consider running for election again in 2024. Although the defendant and Pence naturally may have touched upon arguably official responsibilities that were tangential to their election prospects—for instance, whether the federal government should begin its logistical transition to prepare for a different Administration 50 -the overall context and content of the 501 conversations demonstrate that they were primarily frank exchanges between two candidates on a shared ticket, and the Government does not intend to elicit testimony about any peripheral discussion of arguably official responsibilities. See Blassingame, 87 F.4th at 17 (“[A] President 501 See, e.g., GA 1037 ). See GA 1018 (Pence, So Help Me God p. 432). -98- ; GA 425-426
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 99 of 165 acts in a private, unofficial capacity when engaged in re-election campaign activity.”); see also United States v. Helstoski, 442 U.S. 477, 488 n. 7 (1979) (in the Speech or Debate context, when an act contains both protected legislative components and non-protected components, the correct course is to “excis[e] references to legislative acts, so that the remainder of the evidence would be admissible”). Together, these discussions show the defendant and Pence considering advice from their shared Campaign advisors, weighing electoral strategies, and grappling with their loss. Both men had something to gain by winning re-election, making more notable the persistence of Pence’s suggestions on how to accept the results of the election without losing face. Even if the Court determines that these conversations were official, however, the Government can rebut the presumption of immunity because the use of this evidence poses no risk to Executive Branch prerogatives. The content of the conversations at issue—the defendant and Pence’s joint electoral fate and how to accept the election results—have no bearing on any function of the Executive Branch. See Blassingame, 87 F.4th at 4 (“The Office of the Presidency as an institution is agnostic about who will occupy it next.”). 3. P58 one-on-one interactions with CC2 were unofficial Pence staffer P58 also participated in a January 5 meeting with CC2 and P8 (Superseding Indictment, ECF No. 226 ¶ 78a; supra pp. 69-70) and on January 6 engaged in a lengthy email exchange with CC2 (Superseding Indictment, ECF No. 226 ¶ 99; supra p. 85). These interactions were outside of the defendant’s presence, and the latter was a series of emails. These conversations were not official, within the meaning of Trump, since the defendant was not involved and did not otherwise direct P58 actions, and because of the other information above describing CC2 inherently private role. – 99-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 100 of 165 B. The Defendant’s Interactions, in his Capacity as a Candidate, with Officials in the Targeted States 1. The interactions at issue were unofficial the At trial, the Government will introduce evidence that the defendant, in his capacity as a candidate, contacted state elected officials to use false claims of election fraud to induce their assistance with the charged conspiracies at the point in the electoral process in which the states ascertain electors. These communications included calls to P16 the Governor of Arizona; a meeting with Michigan legislators at the White House; a call to P18 the Speaker of the Arizona State House; a call to P26 the Attorney General of Georgia; and a call to P33 Georgia Secretary of State. The contacts, sometimes in person and sometimes by phone, were part of a single course of conduct aimed at lying to and influencing these state officials to alter the results of the election in the defendant’s favor. In each conversation, the defendant raised false claims of election fraud when pressing the state officials, often asking them to take steps to prevent or overturn the ascertainment of Biden’s legitimate electors. And in each case, the state officials informed the defendant that they had not seen the fraud he was claiming had occurred in their state. Notably, all of these elected officials were the defendant’s fellow Republicans; he made no efforts to contact the equivalent individuals holding the same offices in Nevada, New Mexico, Pennsylvania, or Wisconsin, all of whom were Democrats. Most importantly, as with the defendant’s plan regarding the fraudulent elector slates, as President, he had no official role in the process by which states appointed and ascertained their presidential electors. See 144 S. Ct. at 2353 (Barrett, J., concurring) (“The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.”). The content, – 100 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 101 of 165 form, and context of the defendant’s interactions with these state officials firmly establish that his conduct was unofficial. a. Calls to P16 (supra pp. 17-18) The defendant called P16 then the Governor of Arizona, on or about November 9.502 The defendant’s call to P16 was unofficial and undertaken as a candidate. Throughout the call, the defendant was engaged in partisan electioneering. His comments focused on the vote count in Arizona in his particular race, and on the margins and allegations of fraud that could potentially benefit him personally as a candidate. P16 in turn, responded by giving the defendant his assessment of the defendant’s electoral prospects in Arizona-prospects that were dim. 503 The defendant did not ask about the vote counts for, or claim fraud existed in, any race other than his own. And he raised fraud claims in this context—about whether he could still win Arizona―not in the larger context of election integrity. The defendant claimed that he would deliver evidence of election fraud to P16 then did not. 504 The call was a surprise to P16 and unusually short and to the point for the defendant, who usually liked to chat. 505 In contrast, according to P16 this call contained little conversation or pleasantries and was solely focused on the vote count in the Presidential race and the defendant’s fraud claims. 50 506 This call must also be considered in the context of the conspirators’ additional pressure campaign on P16 On other occasions, CC1 tried to reach P16 but P16 declined to 502 GA 656-658 503 See GA 656-658 ); GA 727 ). See also GA 667 ( 504 GA 657 505 Id. 506 Id. – 101 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 102 of 165 accept the calls. 507 And on November 30, the day P16 signed the certificate of ascertainment declaring Biden’s electors the legitimate ones for Arizona, the defendant (joined by Pence) again called P16 again raised fraud claims, and again failed to substantiate them.5 failed to do as the defendant demanded, after the call, the defendant attacked P16 publicly through Twitter. 509 508 When P16 Each of these communications with P16 was unofficial. The defendant engaged in them all in his capacity as a candidate, in an attempt to elicit P16 support in re-installing him as president. b. Meeting with Michigan legislators (Superseding Indictment, ECF No. 226 ¶36; supra pp. 31-34) The defendant’s November 20 Oval Office meeting with Michigan state legislators was private in nature. During the meeting, the defendant raised claims of election fraud in the state related specifically and only to his own election, and the legislators explained that the defendant had lost not because of fraud but because he had underperformed with educated female voters. 510 Although the meeting took place in the Oval Office as did many unofficial Campaign meetings in which the defendant participated in the post-election period ³¹¹—a close examination of all of the other circumstances surrounding the meeting makes clear that it was a Campaign meeting. 511 507 GA 661 508 GA 658-659, 667-668 509 GA 831-834 (Donald J. Trump Tweet 11/30/2020); GA 835-836, GA 1892 (Donald J. Trump Tweet 11/30/2020). 510 GA 563-564 511 See, e.g., GA 723, 725 ; GA 732 ); GA 728-730 ); GA 737-738 ; GA 739-740 ; GA 746 – 102-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 103 of 165 P39 -both The defendant originally initiated the meeting through RNC Chairwoman a private and partisan actor, and then followed up himself with P37 and P38 fellow Republicans and strong political supporters of the defendant. 512 Cf. Trump, 144 S. Ct. at 2340 (suggesting the President acts in an unofficial capacity when acting as “party leader”). Although the defendant did not specify the topic of the meeting in advance, both P37 and P38 513 assumed correctly—that the defendant wanted to see them to discuss claims of election fraud related to his own race. Notably, the defendant did not include in the meeting invitation other Michigan officials who held positions more relevant to the election and certification the Governor and Secretary of State but who were not Republicans. 514 At the time, public interest and alarm were piqued by news that the defendant was meeting with legislators from a state where there were pending election disputes and where the Governor had not yet signed a certificate of ascertainment, and the White House declined to state the topic of the meeting. 515 During a press conference on the morning of November 20, White House Press Secretary was asked about the meeting and claimed, “This is not an advocacy meeting. There will be no one from the Campaign there. He routinely meets with lawmakers from P60 all across the country.” “516 P39 P60 claim was false. Over the course of the meeting, the defendant dialed in both despite her request not to participate and CC1 517 The defendant’s Chief of 512 GA 69-71 513 GA 556-559 514 GA 559-561 ); GA 555-557 GA 71-74 515 GA 1712 (Email from the White House Press Office 11/20/2020). 516 Id. (Email from the White House Press Office 11/20/2020). 517 GA 330-337 561 ); GA 82 – 103 – ); GA 560-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 104 of 165 who 519 Staff, P21 was present for at least part of the meeting. 518 But besides P21 separate from his Chief of Staff duties assisted the defendant with Campaign-related logistics,5 no other Executive Branch staff joined the meeting; in fact, according to P9 he and White House Counsel P59 wanted no part of it. 520 As P37 and P38 had expected, the defendant was focused on his own vote count in Michigan and on claims of fraud that related only to him. 521 CC1 a private Campaign attorney, then dominated the rest of the meeting with 522 a monologue of false fraud claims. 52 The only reason that there were topics of conversation other than the defendant’s claims of election fraud in his race was because the legislators, on their own initiative, brought them up, including presenting the defendant with a letter on COVID that they had prepared specifically to have something to talk about other than the defendant’s unsupported election fraud claims 523 official portion of the meeting about which the Government does not intend to elicit testimony at trial. The legislators then took photos with the defendant, and the meeting ended; afterward, P21 took the group on a tour of the White House. 524 -an As planned, after the meeting, P37 and P38 released their statement that publicly disclaimed evidence of outcome-determinative fraud in the election in Michigan. 525 The statement had raised with the defendant issues related to Michigan’s also specified that P37 and P38 ); GA 685 518 GA 560 519 GA 348-358 520 GA 560 521 GA 560-571 522 GA 567-569 523 GA 75, 80-81 524 GA 348-358 525 GA 75, 94-95 D; GA 361-362 ); GA 348-354 ); GA 74-84 ). ); GA 559, 561-562 ); GA 562 ); GA 1040 (Joint Statement 11/20/2020). – 104 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 105 of 165 need for federal funds to fight COVID. 526 When the defendant responded to the legislators’ public statement in a Tweet, the private nature of that message, sent as a candidate seeking to overturn the results of his own election-“We will show massive and unprecedented fraud!”—further demonstrates the private nature of the meeting it concerned. 527 In addition, it was one of six retweets and replies the defendant sent over an approximately thirteen-minute period, all of which 528 were focused on allegations of election fraud in his own race. Notably, the defendant did not conduct similar meetings in this period with legislators in states where he had won or even where he had lost by large margins, nor did he seek a meeting with the Michigan officials—the Governor and Secretary of State—who could have provided him with information about the integrity of the election. 529 sent text messages 530 In the same As further context establishing the private nature of this meeting, it was the opening volley of a larger pressure campaign on the same Michigan legislators by the defendant, his co- conspirators, and his Campaign. For example, days after this meeting, CC1 intended to urge P37 and P38 to help overturn the results in Michigan. time period, the Campaign publicized contact information for P37 and P38 number published for P38 was wrong) and encouraged the defendant’s supporters to flood their phone lines with complaints. 531 (although the 526 Id. (Joint Statement 11/20/2020). 527 GA 799-800 (Donald J. Trump Tweet 11/21/2020). 528 GA 801-802 (Donald J. Trump Tweet 11/22/2020); GA 803-804 (Donald J. Trump Tweet 11/22/2020); GA 805-806 (Donald J. Trump Tweet 11/22/2020); GA 807-808 (Donald J. Trump Tweet 11/22/2020); GA 809-810 (Donald J. Trump Tweet 11/22/2020); GA 811-812 (Donald J. Trump Tweet 11/22/2020)). 529 GA 559-561 ); GA 71-74 530 GA 1175 531 GA 913-914 (Team Trump Tweet 01/03/2021). – 105 – ); GA 1177
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 106 of 165 c. Call with p. 19) P18 (Superseding Indictment, ECF No. 226 ¶ 19; supra The defendant’s call to P18 on November 22, 2020, also was unofficial. 532 Along with his private attorney, the defendant made the call in his capacity as a candidate and pressured P18 on electoral matters over which neither the defendant-nor even P18 role. had an official The context of the call makes its unofficial nature clear. The defendant placed the call to P18 along with CC1 his lead Campaign attorney, and no White House officials participated in the call. 533 In fact, CC1 did most of the talking. 534 The defendant and CC1 were singularly focused on fraud claims that affected only the defendant, and did not raise any other races in Arizona. 535 And the content of the call confirmed it was unofficial: the defendant and his private attorney asked P18 the defendant’s political ally, to take steps to replace Arizona’s legitimate electors with illegitimate ones for the defendant—a step that necessarily only affected the defendant’s race, out of all the races on the same ballot. 53 536 P61 The call must also be viewed in the larger context of the pressure campaign the defendant and his co-conspirators put on P18 and other Arizona officials. Immediately after speaking to P18 the defendant and CC1 spoke to Arizona State Senate President 537 A week later, during the “hotel hearing,” CC1 and P12 failed to bring the promised evidence and instead admitted “[w]e don’t have the evidence, but we have lots of theories.” “538 See supra p. 19. 532 GA 735 533 GA 21-22 534 GA 22-31 535 Id. 536 GA 22-25, 32-34 537 GA 735 538 GA 36 ); GA 21-22 – 106-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 107 of 165 When P18 publicly announced that he would not take extralegal action on the defendant’s behalf, P19 and the defendant attacked P18 on Twitter. 539 Then, days before January 6, to act in contravention of the law and his CC2 made another attempt to convince P18 principles. 540 And just as was done with the Michigan legislators, the defendant’s Campaign and P1 publicized contact information for P18 and P61 in an attempt to pressure them to undertake the same actions the defendant and co-conspirators had asked them privately to perform. 541 P18 like others who publicly opposed the defendant’s efforts, was harassed and threatened. 542 d. Call to P26 (supra pp. 23-24) The defendant’s call on December 8 to P26 the Georgia Attorney General, also was private. He undertook it to speak with P26 about Texas v. Pennsylvania, a lawsuit filed by the Texas Attorney General against Pennsylvania, Georgia, Michigan, and Wisconsin seeking to prevent those states from certifying their election results in favor of Biden based on a claim that the manner in which those states had administered their elections had violated the Constitution. 54 543 The defendant’s interest in Texas v. Pennsylvania was personal and private; the lawsuit dealt only with the election for the offices of President and Vice President, not the myriad other races on the same ballots. Indeed, the day after his call with P26 the defendant-in his personal capacity and with the assistance of co-conspirator CC2 as his private attorney-intervened in 539 GA 854-855 (Donald J. Trump Tweet 12/06/2020); GA 852-853 (Donald J. Trump Tweet 12/06/2020). 540 GA 37-44 541 GA 915 (Team Trump Facebook Post 01/02/2021); GA 916 (Team Trump Tweet 01/02/2021); ); see also GA 1713-1715 GA 1982 at 22:00 542 GA 45-47 543 GA 61-64 ); Mot. for Leave to File Bill of Complaint, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 7, 2020). – 107 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 108 of 165 the suit 544 and in so doing “affirmatively communicated to the Supreme Court (and the public) that he was acting and speaking in that matter in his ‘personal capacity’ as a candidate for reelection.” Blassingame, 87 F.4th at 16. The defendant initiated the call with P26 after a political intermediary laid the groundwork for it, and immediately raised the lawsuit, which was the principal topic of conversation on the call. 545 Based on P26’s estimate and the Presidential Daily Diary, the call lasted about ten minutes and the defendant placed it at night from his private residence in the White House. 546 In fact, shortly before speaking with P26, the defendant had spoken with| P62 the Texas Attorney General who had filed the lawsuit, 547 and immediately after speaking with P26, the defendant called P63 the Missouri Attorney General who authored an amicus brief supporting the lawsuit that sixteen other state attorneys general joined.5 548 , The speed of the filing of the defendant’s intervention brief the following day echoed what he told P26: he was “running out of time,”549 presumably because landmark dates in the electoral process, like December 14 and January 6, were fast approaching. Lastly, the defendant and P26 also spoke about the importance of their fellow Republican party members, Senators P27 and P28 winning their pending election-further making clear this call was unofficial.5 550 544 Mot. to Intervene, Texas v. Pennsylvania, No. 22-0-155 (S. Ct. Dec. 9, 2020). 545 GA 64 546 GA 67 547 GA 742 ); GA 742 ); Mot. for Leave to File Bill of Complaint, Texas ); Brief of Missouri et al. as Amici Curiae v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 7, 2020). 548 GA 742 Supporting Plaintiff, Texas v. Pennsylvania, No. 22-0-155 (S. Ct. Dec. 9, 2020). 549 GA 66 550 GA 67 – 108 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 109 of 165 e. Call to supra pp. 28-31) P33 (Superseding Indictment, ECF No. 226 ¶ 33; The defendant’s January 2 call to P33 was unofficial and is not subject to immunity; its content, form, and context make clear that the defendant undertook it as a candidate and plaintiff in a private lawsuit in which P33 was a defendant. P21 has said that the purpose of the call was to discuss the lawsuit, 551 and he acted P36 and P31 accordingly during it. At the outset of the call, P21 made introductions of all the participants on the defendant’s behalf- P32 552 all of whom were affiliated with the Campaign’s litigation efforts, which the defendant brought in his capacity as a candidate for President of the United States. 553 Throughout the call, the defendant and his advisors approached the conversation through his role as a candidate and with a focus on his private lawsuit. For instance, in an apparent reference to individuals retained for his private lawsuit, the defendant claimed, “We’re going to have an accurate number over the next two days with certified accountants. But an accurate number will be given, but it’s, it’s in the fifties of thousands, and that’s people that went to vote and they were told they can’t vote because they’ve already been voted for.”554 Some of his false claims of fraud paralleled claims made in Campaign lawsuits, such as that of a substantial number of dead and non-resident voters-for example, in Trump v. Raffensperger, a state court case whose complaint was appended to the federal suit Trump v. Kemp, the defendant’s complaint asserted that 4,926 out-of-state voters had cast ballots, while on the call the defendant cited the number 551 GA 367-368 552 GA 1154 (Tr. of Call 01/02/2021). 553 Complaint at 1, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1. 554 GA 1154 (Tr. of Call 01/02/2021). – 109 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 110 of 165 4,925.5 555 And he deferred to his private attorneys at multiple points throughout the conversation. For instance, after P33 told the defendant, “the challenge that you have is the data you have is wrong,” the defendant turned to P31 and asked, “Well, P31, how do you respond to that?”556 At one point, P21 interjected and invoked the Campaign’s litigation, asking whether “we can find some kind of agreement . . to find a path forward that’s less litigious.” And near the end of the call, P32 the defendant’s lead counsel in the lawsuit against requested “to sit down with your office, and we can do it through purposes of P33 99557 compromise just like this phone call” to review data. 558 P33 counsel, P35 The defendant’s call to P33 responded that P32 s cited numbers were inaccurate, but agreed to meet with him. 559 was purely a private one, which he undertook as a candidate and the plaintiff in a lawsuit. Indeed, a federal district court has concluded that the P33 call was a Campaign call rather than official business; when P21 sought removal to federal court of his criminal case in Fulton County, Georgia, a court in the Northern District of Georgia issued an order declining to assume jurisdiction because P21 had failed to meet his burden of showing that his role in the call was official rather than unofficial. See Georgia v. Meadows, 692 F. Supp. 3d 1310, 1332 (N.D. Ga. 2023), aff’d 88 F. 4th 1331, 1349 (11th Cir. 2023) (petition for cert. filed) (“ attempt to further Trump’s private litigation interests s participation in the call reflected a clear .”) (emphasis in original)); see also Arizona v. Meadows, No. CV-24-02063-PHX-JJT, 2024 WL 4198384, at *7 (D. Ariz. Sept. 16, 555 Complaint at 19, Trump v. Raffensperger, No. 2020CV343255 (Ga. Super. Ct. Dec. 4, 2020) available at: Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1-1 at 12-79. 556 GA 1159 (Tr. of Call 01/02/2021). 557 GA 1157 (Tr. of Call 01/02/2021). 558 GA 1170 (Tr. of Call 01/02/2021). 559 GA 1170-1171 (Tr. of Call 01/02/2021). – 110-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 111 of 165 2024) (similarly denying notice of removal to federal court of a criminal case in Arizona related to the defendant’s fraudulent elector plan on the basis that furtherance of the plan charged by the State “is unrelated to conduct in official duties”). 2. Even if the defendant’s contacts with state officials were official, the Government can rebut the presumption of immunity Although the Supreme Court did not resolve the issue in Trump, it described the basis for concluding that using the defendant’s conduct of lying to and pressuring state officials to change the legitimate vote in a criminal prosecution would not intrude on Executive Branch functions or authority: Indeed, the Constitution commits to the States the power to “appoint” Presidential electors “in such Manner as the Legislature thereof may direct.”” Art. II, § 1, cl. 2; see Burroughs v. United States, 290 U.S. 534, 544 (1934). “Article II, § 1’s appointments power,” we have said, “gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.” Chiafalo v. Washington, 591 U.S. 578, 588-589 (2020). By contrast, the Federal Government’s role in appointing electors is limited. Congress may prescribe when the state-appointed electors shall meet, and it counts and certifies their votes. Art. II, § 1, cls. 3, 4. The President, meanwhile, plays no direct role in the process, nor does he have authority to control the state officials who do. And the Framers, wary of “cabal, intrigue and corruption,” specifically excluded from service as electors “all those who from situation might be suspected of too great devotion to the president in office.” The Federalist No. 68, at 459 (A. Hamilton); see Art. II, § 1, cl. 2. 144 S. Ct. at 2339. Under the Constitution, the Executive Branch has no constitutionally assigned role in the state-electoral process. To the contrary, the constitutional framework excludes the President from that process to protect against electoral abuses. See supra p. 93. Accordingly, applying federal criminal law to the defendant’s use of fraud to interfere with electoral processes carried out by the states does not intrude on Executive Branch authority or functions. Rather, it ensures that the President’s conduct remains consistent with the Constitution’s allocation of that authority to the States, while in no way impairing his ability to “encourage [state officials] to act – 111 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 112 of 165 in a manner that promotes the President’s view of the public good.” 144 S. Ct. at 2338. The President remains free, for instance, to urge state officials to institute measures to combat a pandemic or make arrangements to provide emergency relief. This case does not remotely implicate such official conduct. What neither the President nor any other candidate may do is further his private campaign for office by using fraudulent means to have state officials certify him as winner of a presidential election despite the will of the voters. Accordingly, applying criminal penalties to that conduct will not intrude on any Executive Branch authority or function. C. The defendant’s efforts, as a candidate, to organize fraudulent electors 1. The conduct at issue was unofficial The defendant’s conduct with respect to the elector scheme is inherently private, and not subject to immunity. See 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part) (“Sorting private from official conduct sometimes will be difficult—but not always. Take the President’s alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection.”). The President of the United States has no official responsibilities related to the organization or voting of electors in the various states-by virtue of the Constitution, that process takes place in the states according to the laws and procedures set forth by each state. See U.S Const., Art. II, § 1, cl. 2. At oral argument before the Supreme Court, the defendant initially conceded that the plan to submit fraudulent electors directed by the defendant and CC1 was not official. Tr. of Oral Argument at 29-30; Trump, 144 S. Ct. at 2338. The Government nonetheless sets forth here the context, form, and content of the defendant’s private contacts with P39 in furtherance of the fraudulent elector plan because the defendant RNC Chairwoman conversely suggested in the same oral argument that he will argue that those efforts were official. See 144 S. Ct. at 2338. – 112 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 113 of 165 The defendant had two relevant contacts with P39 first, he and co-conspirator CC2 called P39 on December 6 to ask her to ensure that the effort was properly coordinated (Superseding Indictment, ECF No. 226 ¶ 53; supra p. 50), and second, on the evening of December 14, P39 emailed the defendant through his executive assistant, inform him that the fraudulent electors had cast votes as he had directed (Superseding Indictment, P42 to ECF No. 22666; supra p. 57). The defendant and CC2 CC2 call to P39 on December 6 was private. The defendant placed the call along with a private attorney and co-conspirator, to P39 the Chairwoman of a political organization whose objective was to elect a broad set of Republicans at the federal and state level, including the defendant and other allied candidates. 560 CC2 was acting in his capacity as a private attorney for the defendant; on the same day, CC2 emailed with several other private attorneys and wrote, “This is huge — and hugely important. Let’s make sure the various state electors are aware of the absolute necessity of meeting on the 14th, casting their votes, and otherwise complying with the transmittal requirements of federal law.”561 Finally, the content of the call was likewise unofficial. The defendant and CC2 asked P39 to work with the Campaign, to ensure that the fraudulent electors were properly organized, which she agreed to do and did, as is clear from her further contacts with CC1 and CC6 regarding the plan. 562 P39 P39 email to the defendant on December 14 was likewise a private communication; simply forwarded the defendant an RNC communication summarizing the electoral vote 560 GA 323-325 561 GA 1716-1717 562 GA 323-325 ; GA 1286-1287 D; GA 1326-1327 ); GA 1288-1290 – 113 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 114 of 165 to inform him that the private task the defendant had given her was complete, and P42 confirmed that she had relayed the message by writing, “It’s in front of him!”563 As discussed infra pp. 145-147, when a White House staffer facilitates unofficial conduct by relaying private, political communications, the private action is not converted to an official one simply because an Executive Branch aide helps carry it out. 2. Even if the conduct were deemed official, the Government could rebut the presumption of immunity In any event, even if the defendant’s efforts to convene fraudulent electors could be considered official, the presumption would be rebutted because “a President has no legal authority and thus no official capacity—to influence how the States appoint their electors,” and accordingly, there is “no plausible argument for barring prosecution of that alleged conduct.” Trump, 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part). “[W]hile Congress has a limited role [in the appointment of Presidential electors], the President has none.” Id. Accordingly, applying the criminal law to the defendant’s “alleged attempt to organize alternative slates of electors,” while properly viewed as prosecution for private conduct, see id., implicates no authority or functions of the Executive Branch—and therefore including such conduct in the defendant’s prosecution poses no danger of intruding on Executive Branch authority or functions. No federal executive function is impaired by applying criminal law to the alleged conduct of privately organizing fraudulent slates of electors. 563 GA 328-329 ); GA 1483-1484 – 114 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 115 of 165 D. The Defendant’s Public Speeches, Tweets, and Other Public Statements as a Candidate 1. The statements at issue were unofficial Merely because the President is speaking to the public-even on “matters of public concern” does not automatically render the communication official. Blassingame, 87 F.4th at 19-20. Instead, what matters is “whether the President is speaking (or engaging in conduct) in an official capacity as office-holder or instead in an unofficial capacity as officer-seeker,” id. at 19, as determined by “content, form, and context,” Trump, 144 S. Ct. at 2340. Starting before the election and lasting until January 6, the defendant at various times communicated publicly not as President but as a candidate for office. These communications included public Campaign speeches, Tweets, and other public statements and comments. The defendant’s communications that the Government has alleged in the superseding indictment and described in Section I were all made in his capacity as a candidate and are not official. a. Speeches The defendant made a number of speeches as a candidate, rather than as an office-holder. See 144 S. Ct. at 2339-40 (“There may . . . be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader.”). The superseding indictment cites, and the Government plans to use at trial, two: the defendant’s Campaign speech at a political rally in Dalton, Georgia, on January 4, 2021, and his Campaign speech at a political rally on the Ellipse on January 6, 2021. – 115 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 116 of 165 i. Dalton, Georgia, on January 4, 2021 (supra p. 68) In his capacity as a candidate, the defendant traveled to Dalton, Georgia, on January 4 at the invitation of two Republican U.S. Senators who were competing in a run-off election the following day to retain their seats. The RNC paid for the event. 564 The White House’s records, including the trip binder that White House staff prepared for the event and that includes a schedule and manifests, further confirm the private nature of the Dalton speech.565 The defendant was the only Executive Branch participant in the event—other attendees were federal and state elected officials, the Chairman of the Georgia Republican Party, and the founder of Bikers for Trump. 566 The trip binder included a Hatch Act disclaimer stating that “employees of the Federal Government may not use their official title or position when participating in a political event.”567 Its description of the “event” to which the defendant was traveling was “Remarks at Victory Rally.”568 Similarly, the Presidential Daily Diary from that day describes that “[t]he President made remarks at the Georgia Senate Victory Rally.” This nomenclature the use of the phrase “Victory Rally”—is significant. “Victory” necessitates one political candidate or party defeating another, and rallies are the kinds of events that candidates hold to excite their supporters and garner votes. “569 564 GA 1718-1724 ; GA 1730-1732 ); GA 1743 ( ); GA 1741 ); GA 1747 ); GA 1739 565 GA 1751-1755 566 GA 1752 567 Id. 568 Id. 569 GA 767 – 116- ); GA 1725-1729 D; GA 1733-1736 ); GA 1744 ; GA 1745-1746
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 117 of 165 Moreover, the defendant’s Campaign sent numerous fundraising emails before, during, and after the speech, confirming the event’s private nature. In a January 4 email around 3:00 p.m., the Campaign sent a fundraising email with the subject line “EPIC Rally in 6 HOURS,” that began, “President Trump is heading to GEORGIA for a RALLY with Senators| 99570 P28 and P27 the This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU, are fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff Election is TOMORROW, and it’s going to take the support of Patriots from all around the Nation if we’re going to WIN BIG and SAVE America from the Radical Left.” Later, at 9:21 p.m., Campaign sent a fundraising email (in the name of the defendant’s son) that began, “My father is on stage RIGHT NOW in Georgia rallying with Senators | P28 DEFEND our Senate Republican Majority. Are YOU watching?”571 The email reminded voters that “The Senate Runoff Election is TOMORROW and YOU are the only one who can stop [“the Left”] from taking over.” 99572 and P27 to Another email at 10:41 p.m. (sent in the name of the defendant) began, “I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators P28 and P27 The energy of the American People was UNMATCHED and I know we’re going to WIN BIG tomorrow.”573 570 See, e.g., GA 1759-1762 (Campaign Fundraising email 01/04/2021); GA 1763-1765 (Campaign Fundraising email 01/04/2021); GA 1766-1767 ); GA 1768-1771 (Campaign Fundraising email 01/04/2021). 571 See, e.g., GA 1772-1775 (Campaign Fundraising email 01/04/2021); GA 1776-1778 (Campaign Fundraising email 01/04/2021); GA 1779-1780 572 Id. 573 |); GA 1781-1784 (Campaign Fundraising email 01/04/2021). See, e.g., GA 1785-1788 (Campaign Fundraising email 01/04/2021); GA 1789-1791 (Campaign Fundraising email 01/04/2021); GA 1792-1793 |); GA 1794-1797 (Campaign Fundraising email 01/04/2021). – 117-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 118 of 165 Finally, the content of the Dalton speech confirms its unofficial nature. The defendant began by telling the crowd, “Tomorrow, each of you is going to vote in one of the most important runoff elections in the history of our country…. You’re going to get everyone you know. You’re going to show up to the polls in record numbers. You got to swamp them, and together, we’re going to defeat the Democrat extremists and deliver a thundering victory to And someone that has really been a star in Washington, speech to pressure Pence. 5 575 P28 P27 574 He also used the Much of the speech then veered into the defendant’s principal claims of fraud and irregularities in the presidential election, but he occasionally returned to the theme of the following day’s election, including discussion of the Democratic candidates. 57 ii. 576 The Ellipse on January 6, 2021 (Superseding Indictment, ECF No. 226 ¶86; supra pp. 75-78) The “content and context” of the Ellipse rally, including the people involved in “organizing the rally,” Trump, 144 S. Ct. at 2340, demonstrate that it too consisted of non-official conduct. The Ellipse rally-named the Save America Rally or the March for Trump―was planned and executed by private political supporters, including Women For America First (WFAF), a 501(c)(4) organization that advocated for the defendant’s reelection in advance of election day in 2020 and throughout the post-election time period. 577 Cf. Trump, 144 S. Ct. at 2340 (“Knowing . . . who was involved in . . . organizing the rally[] could be relevant to the classification” of the Ellipse speech as official or unofficial.). The Ellipse rally was originally planned to take place at Freedom Plaza, but after WFAF began to plan the rally independent of the defendant, 574 GA 1089 (Dalton Rally Speech Draft Tr. 01/04/2021). 575 GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021). 576 GA 1091 (Dalton Rally Speech Draft Tr. 01/04/2021). 577 GA 299-300 ( 653 P64 a ); GA 485-486 ); GA 1801-1802 ); GA – 118 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 119 of 165 private fundraiser for the defendant, contacted WFAF to discuss moving the event to the Ellipse 578 and featuring the defendant as a guest. The organizers and planners of the event were almost exclusively private individuals, with minimal involvement by White House advance staff. The United States Secret Service, which is charged with the President’s protection at all times, even P65 55579 580 during unofficial events, considered the rally to be “a campaign event.” The rally was completely funded by a $2.1 million private donation by a grocery chain heiress.5 This private funding, while not dispositive, is a strong indicator that the event was unofficial. P66 the rally organizer who had the most direct contact with the defendant, was an employee of the defendant’s Campaign until December 31, 2020, and after that, a private citizen. 581 And in public statements since leaving office, the defendant has said repeatedly that he “had nothing to do with” the rally “other than they asked me to make a speech. I showed up for a speech.”582 For weeks leading up to the event, the defendant promoted it on Twitter using the word “rally” a word that the defendant, on his Twitter account, reserved almost exclusively for political and Campaign events. As with the trip binder for the Dalton remarks, the defendant’s trip binder for the Ellipse speech also reinforces the private nature of the event. Although it does not 578 GA 301-302 579 GA 399-403 ; GA 1804 ( then the Special Agent in Charge of the Washington Field Office of the Secret Service, elaborated that the defendant’s protective detail “wasn’t getting information [about the rally] from their counterparts at the White House staff because this was not a staff-driven event. This was a campaign driven event.” GA 399. 580 GA 645-652 ); GA 1805-1818 ( ; GA 1142 ( ); GA 1895 GA 1819-1822 581 GA 483-484 582 Riley Hoffman, Read: Harris-Trump presidential debate transcript (Sept. 10, 2024, 11:58 PM), available https://abcnews.go.com/Politics/harris-trump-presidential-debate-transcript/ story?id=113560542; see also GA 1692 (Transcript of CNN Town Hall 05/10/2023). at – 119 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 120 of 165 include the same Hatch Act disclaimer-—perhaps because the event, in contrast to the Dalton rally, was not for the benefit of another political candidate—it describes the event as the defendant’s “Remarks at the Save America Rally”—using a word, “rally,” that reflected an unofficial, Campaign-related event. 583 The defendant’s White House employees understood the rally and the defendant’s speech at it to be a private, unofficial exercise and acted accordingly. Consistent with the Hatch Act’s requirement that officials within the Executive Branch (other than the President or Vice President) must refrain from using their official authority for partisan political purposes, see 5 U.S.C. § 7323(a)(1), on the morning of the rally, an email from White House photographer | P67 on which P45 was copied, provided “[a] reminder today is a political event.”584 Likewise, the defendant’s White House speechwriting staff understood that the speech was a political, unofficial one and used their personal devices and personal email accounts to do most of the drafting and fact-checking for the defendant’s Ellipse speech, though some last revisions to the speech on the morning of January 6 occurred over White House email. 585 And officials in the White House Counsel’s Office who customarily reviewed the defendant’s official remarks pointedly did not review the Ellipse speech because it was an unofficial Campaign speech. 586 Similarly, the White House website in the moments after the defendant’s speech at the rally made no mention of it—instead, the official webpage touted official accomplishments like COVID 583 GA 1827-1832 584 GA 1833 585 See GA 636 GA 1834-1843 586 GA 105 ); GA 539 ; GA 191-192 ); GA 1681 ); GA 476-477 -120-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 121 of 165 vaccines and peace in the Middle East. 587 By contrast, the speech was advertised heavily by the defendant’s Campaign Twitter account, which also repeatedly posted clips of the event in progress and afterward. 588 The day-of logistics of the Save America Rally further indicate its private nature. No other Executive Branch officials spoke. Instead, other speakers included WFAF officials, the defendant’s political allies, two U.S. Representatives, and the defendant’s co-conspirators and private attorneys, CC1 and CC2 589 Moreover, the defendant’s appearance was consistent with a Campaign rally, not an official event. The crowd at the rally consisted of the defendant’s political supporters, who held signs and wore clothing bearing the defendant’s Campaign slogans. 590 And the manner in which the defendant took the stage at the rally was also consistent with his Campaign rallies: instead of entering as a military band played Hail to the Chief, as he might at an official presidential event, the defendant entered and exited the Ellipse speech to the songs he had used throughout his Campaign (Lee Greenwood’s “”God Bless the U.S.A.” and the Village People’s “Y.M.C.A.”591). 587 See The White House Home Page (screenshot), WHITEHOUSE.GOV (Jan. 6, 2021) https://web.archive.org/web/20210106154456/https:/www.whitehouse.gov/. 588 GA 954 (Team Trump Facebook Post 01/06/2021); GA 955 (Team Trump Facebook Post 01/06/2021); GA 956 (Team Trump Facebook Post 01/06/2021); GA 957 (Team Trump Tweet 01/06/2021); GA 958 (Team Trump Tweet 01/06/2021); GA 959 (Team Trump Tweet 01/06/2021); GA 960 (Team Trump Tweet 01/06/2021); GA 961 (Team Trump Tweet 01/06/2021); GA 962 (Team Trump Tweet 01/06/2021); GA 963 (Team Trump Tweet 01/06/2021). 589 OGA 1928 (Video of Ellipse Rally 01/06/2021). 590 See GA 1913 (Video of Ellipse Rally 01/06/2021); GA 1908 (Video of Ellipse Rally 01/06/2021). 591 Compare KJRH-TV Tulsa, President Trump arrives at White House, YouTube https://www.youtube.com/watch?v=j7u5obMdl8A with GA 1928 at 3:28:50 and 4:42:55 (Video of Ellipse Rally 01/06/2021). -121-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 122 of 165 592 Tellingly, the significant similarities with the defendant’s Dalton Campaign speech³ confirm that the Ellipse speech 593—delivered just two days later—was private, partisan electioneering. The defendant covered many of the same topics and told many of the same lies about fraud in only his election in some cases, using the exact same words. For instance: • The defendant, as a candidate, falsely claimed he had won the election (Dalton at GA 1102: “I ran two elections. I won both of them. Second one, much more successful than the first.” Ellipse at GA 1115: “I’ve been in two elections; I won them both, and the second one I won much bigger than the first.”). The defendant, as a candidate and the leader of a political party, implored political supporters to pressure Pence (Dalton at GA 1090: “I hope Mike Pence comes through for us, I have to tell you. I hope that our great Vice President, our great Vice President comes through for us. He’s a great guy. Of course, if he doesn’t come through, I won’t like him quite as much.” Ellipse at GA 1116: “I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election.”). The defendant, as a candidate and the leader of a political party, attacked a fellow party member who had been insufficiently subservient (Dalton at GA 1104: Georgia Governor P17 was an “incompetent governor.” Ellipse at GA 1125: P17 was “one of the dumbest governors in the United States.”). The defendant, who in his capacity as a candidate had suffered personal legal defeats in his private, election-related litigation at the Supreme Court, attacked it (Dalton at GA 1095: “I’m not happy with the Supreme Court. They are not stepping up to the plate. They’re not stepping up.” Ellipse at GA 1125: “I’m not happy with the Supreme Court. They love to rule against me.”). • The defendant, as a candidate, made myriad false claims regarding fraud in the presidential election, including: o Arizona Non-citizens cast 36,000 votes (Dalton at GA 1106: “In Arizona, more than 36,000 votes were cast by non-citizens.” Ellipse at GA 1134: “Over 36,000 ballots were illegally cast by non-citizens.”); and 592 See GA 1088 (Dalton Rally Speech Draft Tr. 01/04/2021). 593 See GA 1114 (Ellipse Rally Speech Draft Tr. 01/06/2021). -122-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 123 of 165 ○ Georgia There were more ballots than voters (Dalton at GA 1106: “There were 11,000 more ballots than there were voters.” Ellipse at GA 1134: “11,600 more ballots and votes were counted, more than there were actual voters.”). There were more than 10,000 dead voters (Dalton at GA 1103: “We were up. 10,315 ballots were cast by individuals whose name and date of birth matches a Georgia resident who died in 2020 prior to the election. Then your wacky secretary of state said two people, two people.” Ellipse at GA 1133-1134: “Over 10,300 ballots in Georgia were cast by individuals whose names and dates of birth match Georgia residents who died in 2020 and prior to the election.”); More than 2,500 ineligible felons voted (Dalton at GA 1103: “2,506 ballots were cast by individuals whose name and date of birth matches an incarcerated felon in a Georgia prison. Maybe they aren’t all there, but they did a lot of work. I paid a lot of money to a lot of people. I can tell you that.” Ellipse at GA 1134: “More than 2,500 ballots were cast by individuals whose names and dates of birth match incarcerated felons in Georgia prison people who are not allowed to vote.”); Thousands of unregistered people voted (Dalton at GA 1103: “4,502 illegal ballots were cast by individuals who do not appear on the state’s voter rolls.” Ellipse at GA 1134: “More than 4,500 illegal ballots were cast by individuals who do not appear on the state’s own voter rolls.”); More than 18,000 voters used vacant addresses (Dalton at GA 1103: “18,325 illegal ballots were cast by individuals who registered to vote using an address listed as vacant according to the postal service.” Ellipse at GA 1134: “Over 18,000 illegal ballots were cast by individuals who registered to vote using an address listed as ‘vacant,’ according to the Postal Service.”); At least 88,000 ballots were illegally backdated (Dalton at GA 1103: “At least 86,880 ballots were cast by people whose registrations were illegally backdated.” Ellipse at GA 1134: “At least 88,000 ballots in Georgia were cast by people whose registrations were illegally backdated.”); Underage voters cast 66,000 ballots (Dalton at GA 1103: “66,000 votes in Georgia were cast by people under the legal voting age.” Ellipse at GA 1134: “66,000 votes―each one of these is far more than we need. 66,000 votes in Georgia were cast by individuals under the legal voting age.”); and -123-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 124 of 165 15,000 voters had moved out of the state before the election (Dalton at GA 1103: “At least 15,000 ballots were cast by individuals who moved out of the state prior to the November 3rd election, or maybe they moved back in.” Ellipse at GA 1134: “And at least 15,000 ballots were cast by individuals who moved out of the state prior to November 3rd election. They say they moved right back. They moved right back. Oh, they moved out; they moved right back. Okay. They missed Georgia that much. I do. I love Georgia. But it’s a corrupt system.”). ○ Michigan ○ Nevada 17,000 ballots were cast by dead people (Dalton at GA 1106: “An estimated 17,000 ballots were cast by dead people.” Ellipse at GA 1135: “More than 17,000 Michigan ballots were cast by individuals whose names and dates of birth match people who were deceased.”). Signature verification machines were flawed (Dalton at GA 1106: “In Clark County, Nevada, over 130,000 ballots, this is far, just so you know, all these numbers, these are far more than we need, were processed on machines where the signature matching threshold was intentionally lowered to a level that you could sign your name, ‘Santa Claus,’ and it wouldn’t pick it up.” Ellipse at GA 1134: “In Clark County, Nevada, the accuracy settings on signature verification machines were purposely lowered before they were used to count over 130,000 ballots.”); and There were tens of thousands of double votes (Dalton at GA 1106: “More than 42,000 people in Nevada double voted.” Ellipse at GA 1134: “There were also more than 42,000 double votes in Nevada.”). ○ Pennsylvania The Commonwealth had more votes than voters (Dalton at GA 1105: “In Pennsylvania, there were 205,000 more ballots cast than there were voters.” Ellipse at GA 1127: “So, in Pennsylvania, you had 205,000 more votes than you had voters.”); 8,000 dead people voted (Dalton at GA 1106: “Pennsylvania also had an estimated 8,000 dead voters.” Ellipse at GA 1127: “Over 8,000 ballots in Pennsylvania were cast by people whose names and dates of birth match individuals who died in 2020 and prior to the election.”); 14,000 out-of-state voters voted (Dalton at GA 1106: “14,000 ballots illegally cast by out of state voters.” Ellipse at GA 1127: “Over 14,000 – 124 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 125 of 165 ○ ballots were cast by out-of-state voters. So these are voters that don’t live in this state.”); 400,000 absentee ballots appeared after the election (Dalton at GA 1106: “There’s an unexplained 400,000 vote discrepancy between the number of mail-in ballots in Pennsylvania sent out reported on November 2nd, 2020, and the number reported on November 4th. They can’t explain it. 400,000 previously unreported mail-in ballots, magically appeared. They couldn’t explain it. And all of a sudden they just happened to find 400,000. That’s a lot of people.” Ellipse at GA 1128: “The day before the election, the state of Pennsylvania reported the number of absentee ballots that had been sent out, yet this number was suddenly and drastically increased by 400,000 people. It was increased―nobody knows where it came from—by 400,000 ballots one day after the election.”); and Tens of thousands of ballots were received back before they were mailed out (Dalton at GA 1106: “55,000 ballots received back before they were even sent.” Ellipse at GA 1128: “And more than 60,000 ballots in Pennsylvania were reported received back-they got back-before they were ever supposedly mailed out. In other words, you got the ballot back before you mailed it, which is also logically and logistically impossible. Right?”). Wisconsin Hundreds of illegal drop boxes were used (Dalton at GA 1105: “In Wisconsin over 90,000 ballots were illegally harvested. Can’t do that. Not allowed to. Through so-called human drop boxes and over 500 illegal unmanned drop boxes were put out statewide.” Ellipse at GA 1131: “In Wisconsin, corrupt Democrat-run cities deployed more than 500 illegal, unmanned, unsecured drop boxes, which collected a minimum of 91,000 unlawful votes.”); and 170,000 invalid absentee votes were counted (Dalton at GA 1105: “Over 170,000 absentee votes were counted that are blatantly illegal under Wisconsin law and should never have been included in the tally.” Ellipse at GA 1131: “Over 170,000 absentee votes were counted in Wisconsin without a valid absentee ballot application. So they had a vote, but they had no application, and that’s illegal in Wisconsin.”). The defendant’s language throughout the speech was that of a candidate focused on his re- election. He claimed that he would not concede, that he received more votes than he had four years earlier, that the election was over by 10:00 p.m. on election night, and that he wanted to go -125-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 126 of 165 back eight weeks to fix the election result. Significantly, he made many of these statements at the beginning of the speech, framing the themes for the rest of the speech. 594 In addition, although countless federal, state, and local races also were on the same ballots as the defendant on election day—including those of every sitting member of the House of Representatives, even those on whom the defendant was counting to object at the congressional proceeding the defendant focused only on his own race, the election for President, and only on allegations favoring him as a candidate in targeted states he had lost. 595 He claimed his “election victory” was “stolen,” that he would not “concede,” and that “with only three of the seven states in question, we win the presidency of the United States. “596 He framed the claims of election fraud in terms of his own election and the margin of victory in his own race, and he spoke to his political supporters using the pronoun “we”—showing that he was speaking not to all citizens, but only to his own voters. Finally, the defendant repeatedly aimed accusations at Biden, his principal 597 opponent in the election contest, as would a candidate. 598 b. Tweets One of the tools the defendant used for partisan political advantage—and in furtherance of the charged conspiracies—was his personal Twitter account. He used his Twitter account to undermine public confidence in the electoral system, spread false claims of election fraud, attack those speaking the truth that the defendant had lost the election, exhort supporters to travel to Washington for the certification proceeding, and marshal his supporters’ anger at, and pressure on, 594 GA 1118-1119 (Ellipse Rally Speech Draft Tr. 01/06/2021). 595 GA 1122, 1126-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021). 596 GA 1115, 1122 (Ellipse Rally Speech Draft Tr. 01/06/2021). 597 GA 1115, 1132-1133, 1136 (Ellipse Rally Speech Draft Tr. 01/06/2021). 598 GA 1119, 1133, 1135 (Ellipse Rally Speech Draft Tr. 01/06/2021). -126-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 127 of 165 Pence. As described below, an objective analysis of “content, form, and context,” id. at 2340, establishes that the select Tweets that the Government intends to offer at trial were unofficial. As an initial matter, the defendant sent, or directed the sending of, all Tweets and re-Tweets from @realDonaldTrump, the personal Twitter account that the defendant started long before assuming the presidency. 599 The defendant began tweeting from @realDonaldTrump in May 2009. Throughout his campaign for the presidency in 2016, the defendant used this Twitter account for electioneering purposes; he even announced the selection of Pence as his Vice Presidential nominee over Twitter. 600 Since the end of his term in office, the defendant again has used the account for private purposes. During his presidential term, the defendant sometimes used the @realDonaldTrump account to tweet about official business, including regarding COVID relief and vaccines, legislation in Congress, and Executive Branch business. But he also regularly used the account to post on unambiguously private matters-for example, when he posted a picture of himself golfing with Jack Nicklaus and Tiger Woods at the Trump National Golf Club in Jupiter, Florida, and re-tweeted a Trump Organization post about the Trump New York hotel being “named the #1 ‘Best Hotel in the World!””601 The Supreme Court’s decision in Lindke v. Freed, 144 S. Ct. 756, 769 (2024), confirms that a public official’s personal social-media account can be used for both personal and public business, and consistent with Trump—that a fact-specific inquiry is required to discern into which category a post falls. In conducting the necessary Tweet-by-Tweet analysis, context and 599 GA 525-527 600 GA 411 ); GA 534 D); see https://x.com/realDonaldTrump/status/ 753965070003109888?lang=en (Donald J. Trump Tweet 07/15/2016). 601 https://x.com/realDonaldTrump/status/1091760712756744192 (Donald J. Trump Tweet 02/02/2019); https://x.com/realdonaldtrump/status/1172353230505938946 (Donald J. Trump Tweet 09/12/2019). -127-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 128 of 165 content matter. Simply because a Tweet relates to a matter of public concern does not automatically transform it into an official communication. In Blassingame, 87 F.4th at 20, the D.C. Circuit rejected the defendant’s contention that any and all of the President’s communications are immune official acts whenever they involve a matter of public concern. The D.C. Circuit recognized that the “integrity of the 2020 election” was a matter of public concern, but if the defendant spoke about that issue “in his personal capacity as a candidate for reelection rather than in his official capacity as President,” it was unofficial speech not shielded by immunity. Id. Thus, when a court consults “content and context” to inform the official-act inquiry, see Trump, 144 S. Ct. at 2340, a claim that all Tweets concerning election integrity were official must fail. An analysis of the @realDonaldTrump account during the time period of the charged conspiracies demonstrates that the defendant frequently used the account to advance his unofficial objectives as a candidate. Of the more than 1,200 Tweets, the vast majority were related to the 2020 presidential election. For example, he announced over Twitter that CC1 and others were taking over his Campaign legal team, and he repeatedly used the platform to espouse false claims of election fraud and promote political rallies on his behalf. 602 P45 the defendant’s Deputy Chief of Staff and the only person other than the defendant with control over the @realDonaldTrump Twitter account, acknowledged that he sometimes consulted with Campaign personnel about material he was going to post on the account, that he worked as a volunteer for the defendant’s Campaign at the same time that he served as Deputy Chief of Staff, and that he did 602 GA 784-785 (Donald J. Trump Tweet 11/14/2020); GA 786-787 (Donald J. Trump Tweet 11/14/2020); GA 944-945 (Donald J. Trump Tweet 01/06/2021); GA 881-882 (Donald J. Trump Tweet 12/22/2020); GA 884-885 (Donald J. Trump Tweet 12/23/2020); GA 905-906 (Donald J. Trump Tweet 01/01/2021); GA 938-939 (Donald J. Trump Tweet 01/05/2021). – 128-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 129 of 165 not differentiate between his official and Campaign duties and when he would send Tweets on the account for Campaign purposes as a Campaign volunteer. 603 A review of the defendant’s official @POTUS45 account presents a relevant contrast. The defendant used this institutional account primarily to re-tweet other accounts like the @realDonaldTrump account, as well as @White House. There were 74 Tweets from the @POTUS45 account during the charged conspiracies. 604 None of them include the defendant’s 605 election-related claims or his election challenges. The last four Tweets in the account, which the Government cites here to show context, were re-Tweets of Tweets from @realDonaldTrump regarding January 6.606 These include two Tweets that the defendant issued on the afternoon of January 6 purportedly asking individuals to support law enforcement and “stay” peaceful; notably, the @POTUS45 account archive does not include the defendant’s Twitter pressure campaign against Pence, such as the 2:24 p.m. Tweet on January 6.60′ Below, the Government analyzes the “content, form, and context,” id. at 2340, of various categories of the defendant’s Tweets. All of these categories consist of unofficial Tweets. 603 GA 526-532 604 GA 1899 (Spreadsheet of @POTUS45 Tweets). 605 Id. (Spreadsheet of @POTUS45 Tweets). 606 Id. (Spreadsheet of @POTUS45 Tweets). The four re-Tweets are: on January 5, “Antifa is a Terrorist Organization, stay out of Washington. Law enforcement is watching you very closely! @DeptofDefense @TheJusticeDept @DHSgov @DHS_Wolf @SecBernhardt @SecretService @FBI”; on January 6, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay Peaceful” and “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!”; and on January 7, a link to a speech the defendant gave on that date about the events of the previous day. – 607 Compare id. (Spreadsheet of @POTUS45 Tweets) with GA 946-947 (Donald J. Trump Tweet 01/06/2021). – 129 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 130 of 165 i. Tweets, as candidate, casting doubt on election integrity As described in Section I, the defendant attempted to discourage mail-in voting and undermine confidence in the election results to prepare to declare victory even if he lost. See, e.g., supra p. 6. Just as his public statements casting doubt on the election were unofficial, so too were the analogous Tweets that the defendant posted in his capacity as a candidate. The context of these Tweets confirms this conclusion. The defendant issued the Tweets in advance of election day, in the midst of his campaign for re-election; furthermore, he made them while his own Campaign advisors were warning him that Biden supporters were much more likely to use mail-in voting, the very method the defendant attempted to discourage. In addition, the Tweets’ content further reinforces their private nature; they show the defendant taking a partisan electioneering position on an issue rather than proposing any official measures to address a problem that the defendant claimed existed. ii. Tweets making false claims of election fraud The superseding indictment alleges that the defendant repeated and widely disseminated false claims of election fraud. See, e.g., Superseding Indictment, ECF No. 226 ¶¶ 12, 14. One of the ways that he did so was by Tweet, constantly, day in and day out. Examples of the kinds of Tweets that the Government intends to use at trial are set forth throughout Section I, in which the defendant falsely claimed victory and outcome-determinative election fraud in targeted states. See, e.g., supra pp. 22-23, 32, 45, 55-56, 62-63. These kinds of Tweets all shared common internal characteristics that establish their unofficial nature. The defendant used the language of a candidate when he spoke in terms of his personal electoral victory (“I win!” or “We win!”).” 608 He divided his audience between personal 608 See, e.g., GA 772-773 (Donald J. Trump Tweet 11/05/2020); GA 774-775 (Donald J. Trump – 130 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 131 of 165 allies who supported his election challenges and enemies who did not, dismissing the latter as “609 “RINOS” (shorthand for Republicans in Name Only) or “the Democrats.” And he focused only on fraud claims that would affect his own election and was fixated on his own margin of victory (“far more votes than are necessary to win”). 610 iii. Tweets and re-Tweets attacking those speaking the truth about the election .612 On multiple occasions, the defendant issued a Tweet, or re-tweeted an agent’s Tweet, in order to attack individuals who had spoken out publicly to defend the integrity of the 2020 presidential election and reassure the public that there had not been outcome-determinative fraud. These instances include: on November 11, the defendant attacked Philadelphia City Commissioner P47 611 after he dispelled fraud claims in a television interview that the defendant saw; on November 29, the defendant issued a Tweet attacking P50 when he appeared on 60 Minutes; 6 on December 6, the defendant re-tweeted a post by his agent, P19 attacking Arizona House Speaker P18 for a public announcement that the defendant had not presented Arizona legislators with any evidence of outcome-determinative fraud and that the Arizona legislature could not overturn election results based on unsupported theories of fraud; 613 again on December 6, the defendant re-tweeted a post by his agent, P48 labeling four Republican state legislators Tweet 11/06/2020); GA 797-798 (Donald J. Trump Tweet 11/18/2020); GA 850-851 (Donald J. Trump Tweet 12/05/2020). 609 See, e.g., GA 777-778 (Donald J. Trump Tweet 11/11/2020); GA 860-861 (Donald J. Trump Tweet 12/07/2020); GA 782-783 (Donald J. Trump Tweet 11/13/2020); GA 795-796 (Donald J. Trump Tweet 11/17/2020); GA 881-882 (Donald J. Trump Tweet 12/22/2020). 610 GA 909-910 (Donald J. Trump Tweet 01/01/2021); GA 911-912 (Donald J. Trump Tweet 01/01/2021). 611 GA 1953 at 2:20-4:13 (Video of Interview with CNN 11/11/2020); GA 777-778 (Donald J. Trump Tweet 11/11/2020). 612 GA 825-826 (Donald J. Trump Tweet 11/29/2020). 613 GA 854-855 (Donald J. Trump Tweet 12/06/2020). -131 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 132 of 165 “cowards” after they issued a public announcement that they could not overturn the popular vote and appoint their own electors; 614 and on December 21, the defendant attacked Wisconsin Supreme Court Justice P49 for ruling against him.615 After P47 (a) P47 p. 38) (Superseding Indictment, ECF No. 226 ¶ 41; supra then a Philadelphia City Commissioner, gave a television interview on November 11 and made clear that he had not seen evidence of fraud there, the defendant issued a Tweet attacking P47 in partisan terms. The defendant called P47 a “so called Republican (RINO)” and finished the Tweet with “We win!”616 In so doing, the defendant was acting as a candidate frustrated that a member of his political party refused to perpetuate the lies the defendant was promoting to advance his personal political interests. (b) P50 (supra pp. 45) On November 29, when 60 Minutes aired an interview with P50 formerly the CISA director, defending the integrity of the election, the defendant tweeted an attack on the television and claimed that the 2020 election was “probably our program and C3 least secure EVER!”617 These complaints about C3 and mail-in ballots echoed others which the defendant was making regularly as a candidate only in states in which he had lost the election.6 618 He also issued the Tweet between two other Tweets in which he was speaking as a candidate. Thirty minutes before the P50 Tweet, the defendant used his @realDonaldTrump account to discuss Campaign litigation-specifically, he wrote, “We have some big things 614 GA 856, 858 (Donald J. Trump Tweet 12/06/2020). 615 GA 875-880 (Donald J. Trump Tweets 12/21/2021). 616 GA 777-778 (Donald J. Trump Tweet 11/11/2020). 617 GA 825-826 (Donald J. Trump Tweet 11/29/2020). 618 See, e.g., GA 867-872 (Donald J. Trump Tweets 12/13/2020). -132-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 133 of 165 happening in our various litigations on the Election Hoax. Everybody knows it was Rigged. They know Biden didn’t get more votes from the Black community than Obama, & certainly didn’t get 80,000,000 votes. Look what happened in Detroit, Philadelphia, plus!”619 And within twenty minutes of the P50 Tweet, the defendant issued another Tweet about 60 Minutes, this time asking whether the “Fake News” program was paying attention to a Tweet that the defendant then linked to by P68 then a private citizen—who in turn was publicizing what he characterized as a Campaign litigation victory on the defendant’s behalf by co-conspirator CC3 in litigation in Georgia. 620 The defendant’s Tweet regarding 60 Minutes and P50 was unofficial. The Campaign litigation-focused Tweets surrounding it demonstrate that the “us” whom the defendant claims 60 Minutes never consulted was the defendant’s Campaign, not his Administration. (c) P18 and Pennsylvania legislators (Superseding Indictment, ECF No. 226 ¶¶ 21, 43; supra pp. 20, 40) In the early morning hours on December 6, upon returning from a Campaign speech in Valdosta, Georgia, the defendant re-tweeted a December 4 Tweet from P19 who was working with the Campaign and CC6 to overturn the election results 621_attacking Arizona House Speaker P18 after P18 released a public statement that he had not seen evidence of election fraud and could not take action to overturn the election results in Arizona.6 622 Just four minutes 619 620 GA 823-824 (Donald J. Trump Tweet 11/29/2020). GA 827-828 (Donald J. Trump Tweet 11/29/2020). A week later, the court dismissed the lawsuit, stating that the plaintiffs “essentially ask the Court for perhaps the most extraordinary relief ever sought in any Federal Court in connection with an election. They want this Court to substitute its judgment for that of two-and-a-half million Georgia voters who voted for Joe Biden, and this I am unwilling to do.” Pearson v. Kemp, 1:20-cv-4809, ECF No. 79 at 43 (N.D. Ga.) (Tr. of 12/7/2020 Hrg.). 621 See generally, e.g., GA 1848-1850 622 GA 854-855 (Donald J. Trump Tweet 12/06/2020). – 133 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 134 of 165 earlier, the defendant had written “Thank you P19 !”623 while re-tweeting another of P19 Tweets that read, “President Trump is back on the campaign trail today!!! America is the best country on earth and @realDonaldTrump is the greatest President!”624 On the same day, December 6, the defendant also re-tweeted a Tweet by P48 an agent CC1 625 of the defendant who was working closely with P48 Tweet attacked four Pennsylvania legislators who, like P18 had issued a public statement that they could not overturn the valid election results. The defendant re-tweeted P48 post without comment. 626 Both of the defendant’s re-tweets on December 6 were unofficial. At the time, both P19 and P48 were, at a minimum, private agents of the defendant who were working to overturn the election results in his favor. P19 and P48 original Tweets were in service of that objective they were attempting to pressure state officials to take extralegal actions to replace their states’ duly-ascertained electors with the defendant’s fraudulent ones. The defendant’s re-posting of these private Tweets was similarly private. (d) P49 p. 41) (Superseding Indictment, ECF No. 226 ¶ 46; supra On December 21, when Wisconsin’s Governor signed a certificate of final determination confirming that Biden had won the state based on the resolution by the Wisconsin Supreme Court of a lawsuit in Biden’s favor, the defendant took to Twitter to attack Justice P49 who had written the majority opinion that ruled against him.627 The defendant claimed—falsely—that he 623 GA 852-853 (Donald J. Trump Tweet 12/06/2020). 624 Id. (Donald J. Trump Tweet 12/06/2020). 625 GA 856, 858 (Donald J. Trump Tweet 12/06/2020). See, e.g., GA 1851-1852 626 627 GA 856, 858 (Donald J. Trump Tweet 12/06/2020). GA 1233-1235 (Wisconsin Certificate of Ascertainment 11/30/2020 and Certificate of Final Determination 12/21/2020); Trump v. Biden, 394 Wis. 2d 629 (Wis. 2020); GA 875-880 (Donald – 134 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 135 of 165 had endorsed P49 in his election for the Wisconsin Supreme Court, and implied that the endorsement had caused P49 to win. 6 628 The defendant then encouraged “Republicans in Wisconsin” to go “to their State Legislators and overturn this ridiculous State Election. We won in a LANDSLIDE!”629 The entire context of the defendant’s Tweet about P49 -including his fictitious endorsement of P49 his encouragement of Wisconsin Republicans to lobby their legislators, and his claim at the end that “We won”-demonstrates that the Tweet as a whole was partisan, personal, and unofficial. (e) Governor P16 Governor P17 and Secretary of State P33 (supra pp. 18, 26-31) Throughout the post-election period, the defendant used his status and power as the head P33 In the of a political party to bring political pressure to bear on fellow Republicans, including Arizona Governor P16 Georgia Governor P17 and Georgia Secretary of State Tweets, the defendant assailed the three elected officials because they refused to take extralegal actions to benefit him personally, suggested that they would suffer politically if they did not do as he asked, and repeatedly suggested that they were “RINOS” and not real Republicans. The defendant launched these public attacks both as “a candidate for office” and as “a party leader,” Trump, 144 S. Ct. at 2340, and they were thus unofficial. J. Trump Tweets 12/21/2020). 628 Id. (Donald J. Trump Tweets 12/21/2020); GA 187-188 Although the defendant did not endorse Justice P49 as he claimed, he did endorse a congressional candidate with the surname P49 from another midwestern state. See https://x.com/realDonaldTrump/status/1292879824210595842. 629 GA 877, 880 (Donald J. Trump Tweet 12/21/2020). – 135 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 136 of 165 iv. Tweets exhorting individuals to travel to Washington, D.C., for the Save America Rally (Superseding Indictment, ECF No. 226 ¶¶ 68, 72, 79(b); supra pp. 60, 64, 71-73) Beginning on December 19, and continuing through early January, the defendant used the @realDonaldTrump account to promote the private, campaign-style Ellipse rally at which he spoke on the morning of January 6. Indeed, some of the defendant’s Tweets from this account were re- tweeted and amplified by the defendant’s Campaign Twitter account. 630 The defendant’s multiple Tweets on this topic 631 included his initial message that there would be a “[b]ig protest in D.C. on January 6th. Be there, will be wild!”632 In turn, that Tweet linked to a document drafted by P69 that had nothing to do with P69 official duties as a White House trade advisor, but rather constituted unofficial political activity by a Campaign volunteer who the Office of Special Counsel already had determined to have violated the Hatch Act on numerous occasions by attacking the defendant’s opponent during the lead up to the 2020 presidential election. 633 For the reasons described supra pp. 118-126 that make clear that the Ellipse rally was a private event, and the defendant’s remarks there unofficial, his Tweets as a candidate promoting the event were unofficial. 630 See, e.g., GA 896 (Team Trump Retweet of Donald J. Trump Tweet 12/26/2020); GA 901 (Team Trump Retweet of Donald J. Trump Tweet 12/30/2020); GA 902 (Team Trump Retweet of Donald J. Trump Tweet 12/30/2020); GA 534 631 GA 886-887 (Donald J. Trump Tweet 12/26/2020); GA 897-898 (Donald J. Trump Tweet 12/27/2020); GA 899-900 (Donald J. Trump Tweet 12/30/2020); GA 903-904 (Donald J. Trump Tweet 01/01/2021); GA 905-906 (Donald J. Trump Tweet 01/01/2021); GA 913-914, 1891 (Donald J. Trump Tweet 01/01/2021); GA 921-922 (Donald J. Trump Tweet 01/03/2021); GA 923-924 (Donald J. Trump Tweet 01/03/2021); GA 928-929 (Donald J. Trump Tweet 01/04/2021); GA 932-933 (Donald J. Trump Tweet 01/05/2021); GA 938-939 (Donald J. Trump Tweet 01/05/2021). 632 GA 873-874 (Donald J. Trump Tweet 12/19/2020). 633 Id. (Donald J. Trump Tweet 12/19/2020); GA 1853-1865 (Report of Prohibited Political Activity Under the Hatch Act 11/18/2020). – 136-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 137 of 165 V. Tweets regarding Pence’s role on January 6 (Superseding Indictment, ECF No. 226¶¶ 69, 79(a), 82; supra pp. 61, 71-73) As the defendant set his sights on using Pence’s role as President of the Senate to overturn the election results at the January 6 certification proceeding, concurrent with his direct efforts to pressure Pence, the defendant began to issue Tweets falsely claiming that Pence could use his ministerial position to benefit the defendant as a candidate. For instance, on December 23, the defendant re-tweeted a Tweet by a Campaign surrogate named P70 who had posted a facially fake White House memorandum titled “Operation ‘PENCE’ CARD,” which falsely claimed that Pence could unilaterally disqualify legitimate electors. 634 The defendant issued similar Tweets as the certification grew closer, including posting on January 5 that “[t]he Vice President has the power to reject fraudulently chosen electors.”635 And twice on the morning of January 6, before his speech at the Ellipse rally, the defendant tweeted again about Pence. First, at 1:00 a.m., the defendant wrote, “[i]f Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!”636 He again focused on Pence’s role in the certification at 8:17 a.m. when he wrote, “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”637 634 GA 883 (Donald J. Trump Tweet 12/23/2020); GA 449 1023 (Pence, So Help Me God p. 439-40); see also GA 1524-1527 635 GA 934-395 (Donald J. Trump Tweet 01/05/2021). 636 637 GA 940-941 (Donald J. Trump Tweet 01/06/2021). GA 942-943 (Donald J. Trump Tweet 01/06/2021). ); GA 1022- -137-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 138 of 165 The context and content of these Tweets establish that they were unofficial. Through the Tweets, the defendant was using the political pressure of his supporters and social media followers to convince Pence to take an action to benefit the defendant as a candidate and help him overturn the results of the election. As discussed supra pp. 91-96, the defendant played no official role in the congressional certification proceeding and was not using his Tweets about Pence’s role to advance any Executive Branch or governmental interest. Likewise, the defendant had no role in whether state legislatures might take action regarding their own electoral slates (though his claim that these legislatures were poised to do so was also false). And the defendant’s language throughout the Tweets is that of a candidate seeking to win an election, including stating to his political supporters that if Pence “comes through for us, we will win the Presidency” and “All Mike Pence has to do is send them back to the States, AND WE WIN.”638 The private and Campaign nature of the Tweets is further confirmed when viewed in the context of the defendant’s increasing desperation as even his unlawful path to remain in power narrowed. When the defendant re-tweeted the “Operation Pence Card” Tweet on December 23, the defendant knew that he had lost the legitimate electoral college vote and had begun summoning supporters to Washington for the Ellipse rally on January 6.639 When he tweeted on January 5 that Pence had the power to reject fraudulent electors, Pence already had “told him many times” that Pence did not believe he had such power—including as recently as the day before. 640 And in the early morning hours of January 6, when the defendant again tweeted publicly that Pence should exceed his authority as President of the Senate when counting electoral votes, the defendant’s 638 Id.; GA 940-941 (Donald J. Trump Tweet 01/06/2021). 639 GA 873-874 (Donald J. Trump Tweet 12/19/2020). 640 GA 457-460 – 138 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 139 of 165 personal desperation was at its zenith: he was only hours from the certification proceeding that spelled the end. vi. The defendant’s 2:24 p.m. Tweet on January 6 (Superseding Indictment, ECF No. 226 ¶ 94; supra pp. 80-81) The defendant’s 2:24 p.m. Tweet aimed at Vice President Pence was unofficial. The defendant personally posted the Tweet on the afternoon of January 6 at a point when he already understood that the Capitol had been breached, writing: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”641 642 The defendant’s actions and knowledge in the hours leading up to this Tweet provide helpful context. First, the evening before, on January 5, the defendant had dictated a Tweet to P45 as he listened to the angry crowd gathered outside the White House.6 That Tweet shows that the defendant understood that his gathering supporters, who were angry and believed his false claims that the election had been stolen, were a powder keg. At 5:05 p.m., he tweeted: “Washington is being inundated with people who don’t want to see an election victory stolen by emboldened Radical Left Democrats. Our Country has had enough, they won’t take it anymore! We hear you (and love you) from the Oval Office. MAKE AMERICA GREAT AGAIN!”643 Thereafter, the defendant continued to fixate on preventing the certification proceeding. 644 As described above, he tweeted about it at 1:00 a.m. on January 6 and again at 8:17 a.m. After 641 GA 946-947 (Donald J. Trump Tweet 01/06/2021). 642 GA 535-538 643 GA 936-937 (Donald J. Trump Tweet 01/05/2021). 644 GA 940-941 (Donald J. Trump Tweet 01/06/2021); GA 942-943 (Donald J. Trump Tweet 01/06/2021). – 139 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 140 of 165 the 8:17 a.m. Tweet, the defendant worked on his remarks for the Ellipse and planned to include language explicitly putting pressure on Pence regarding the certification until advisors prevailed on him not to. 645 At 11:15 a.m., the defendant called Pence and tried one last-ditch effort to convince him to fraudulently reject or return Biden’s legitimate electors.6 Pence was resolute 646 and unmoved, and the defendant was furious. 647 Immediately after the call, the defendant directed that the original language targeting Pence be reinserted in his prepared remarks for the Ellipse rally 648 The defendant then went to the Ellipse and delivered a falsehood-laden speech to his angry supporters. He purposely singled out Pence by claiming that Pence had the power to overturn the election results and—though the defendant stood at the podium with full knowledge that Pence 649 The would not do so-gave the crowd false hope that Pence might exercise that power.” defendant told the crowd to act, stating, we “can’t let it happen” and then directed his supporters, who were angry and motivated by his speech, to march to the Capitol.6 650 Instead of marching with his supporters as he said he would, the defendant returned to the White House. 651 He went to the dining room next to the Oval Office and began to watch television coverage of the events at the Capitol. 6 652 Although the Government does not intend to use at trial 645 GA 1680 646 GA 471-472 ); GA 1668-166 647 GA 471-472 ); GA 1668-1669 ); GA 225-230 648 GA 1681 ); GA 405-406 ); GA 638-642 GA 1670-1679 ( 649 See GA 1114-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021). 650 See GA 1140-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021). 651 GA 1866 652 GA 541-544 ); GA 168 ); GA 232, GA 236 – 140- D;
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 141 of 165 evidence of the defendant’s discussions with White House staff during this time period, it provides necessary context: when news broke that rioters had breached the Capitol, the defendant’s advisors including P59 Deputy White House Counsel P71 and P9 urged the defendant to issue a calming message and make efforts to stop the riot. 653 The defendant refused, responding that the people at the Capitol were angry because the election had been stolen. 654 655 Eventually, all of the defendant’s staffers left him alone in the dining room. Fox News continued to report on the growing crisis at the Capitol.656 It was at that point—alone, watching news in real time, and with knowledge that rioters had breached the Capitol building—that the defendant issued the 2:24 p.m. Tweet attacking Pence for refusing the defendant’s entreaties to join the conspiracy and help overturn the results of the election. 657 One minute later, the Secret Service was forced to evacuate Pence to a secure location in the Capitol.65 658 This was roughly ninety minutes after Pence had announced publicly that he would not act unlawfully to overturn the election; 659 the certification proceeding was underway;6 and the first breach of the Capitol building had occurred minutes before, at 2:12 p.m. 661 At that 660 653 GA 479 ) (recalling telling ) (advisors told the defendant that “[t]here’s a riot, and there are people inside the Capitol Building”); GA 122 the defendant “that someone’s gotten into the Capitol”); GA 232-234 ); GA 168-169 654 GA 547-548 ( ); GA 232-234 ); GA 123 655 GA 546 656 GA 1931 (Video of Fox News Coverage 01/06/2021). 657 GA 546 ); GA 946-947 (Donald J. Trump Tweet 01/06/2021). 658 GA 473-474 ); GA 1944 (Video of Pence Evacuation 01/06/2021). 659 GA 1684-1686 (Pence Dear Colleague Letter 01/06/2021); GA 1867-1868 660 661 GA 1937 (Video of House Floor 01/06/2021); GA 1954 (Video of Senate Floor 01/06/2021). GA 1957 at 00:40–1:25 (Video of Senate Wing Door CCTV 01/06/2021); GA 1909 at 00:15– 1:10 (Video of Capitol Riot 01/06/2021). – 141 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 142 of 165 point, the defendant’s only hope to disrupt the certification proceeding and retain power was through his angry supporters. The defendant further revealed the private nature of his desperate conduct as a candidate, rather than a President, in an exchange (that the Government does not plan to use at trial) he had with aide P15 shortly after the 2:24 p.m. Tweet. Upon receiving a phone call alerting him that Pence had been taken to a secure location, P15 rushed to the dining room to inform the defendant in hopes that the defendant would take action to ensure Pence’s safety. Instead, after P15 delivered the news, the defendant looked at him and said only, “So what?””662 664 The private, unofficial nature of the 2:24 p.m. Tweet contrasts with two other Tweets the defendant sent during the following hour and a video message he sent two hours later, and which the Government does not intend to introduce at trial. Only after advisors had again urged the defendant to calm matters at the Capitol,663 the defendant at 2:38 p.m. posted, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” As the violence at the Capitol nonetheless escalated, the defendant at 3:13 p.m. posted, “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order-respect the Law and our great men and women in Blue. Thank you!”665 And after those Tweets failed to disperse the rioters, and after still more demands from his staff 662 GA 310-317 663 GA 124-125 (“both P71 and I went down and told him you got to tell people get out of the Capitol, the people who were breaching the Capitol”); GA 232 ) (“And I said, we need to tell everyone to get the fuck out of the P71 and P59 “argued Capitol, right now.”); GA 237 … … … to the president, you have to tell people to get out, right now, as well. P71 for the first time I’d ever heard him raise his voice, yelled at the president… He said, you need to tell them now; you’re destroying your legacy; you’re destroying everything anyone’s ever worked for; you’ve got to tell these people to get out of the Capitol, immediately.”); GA 480 ( (“I think we were probably, at that point, encouraging the President that he needed to come out and say something, he needed to condemn this and say something about it.”). 664 GA 948-949 (Donald J. Trump Tweet 01/06/2021). 665 GA 950-951 (Donald J. Trump Tweet 01/06/2021). – 142 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 143 of 165 “666 that he do more to stop the riot, the defendant at 4:17 p.m. tweeted a video message in which he finally asked those at the Capitol-whom he described as “very special” people that he “love[d]”— to leave the Capitol, while also claiming that “[w]e had an election that was stolen from us.” He sent a Tweet at 6:01 p.m. that conveyed a similar sentiment: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”667 The defendant at least has an argument—though he issued the 2:38 p.m. and 3:13 p.m. Tweets only after being harangued by his staff while he adamantly refused to do anything at all— that he was addressing a matter of public safety as President (the riot at the Capitol). Likewise, in the 4:17 p.m. message, the defendant, while still focused on his election loss, asked rioters to evacuate the breached Capitol, and foreshadowed the sentiment in his 6:01 p.m. Tweet when he said to “[g]o home with love & in peace.’ .”668 By contrast, in the 2:24 p.m. Tweet, the defendant focused solely on the Vice President’s role in the certification of the presidential election results- a matter of intense personal concern to the defendant as a candidate for office. Even assuming that topic constituted a “matter[] of public concern,” Blassingame, 87 F.4th at 14, the defendant’s 2:24 666 GA 1952 (Video of Rose Garden Speech 01/06/2021); GA 1868 (Rose Garden Speech Draft Tr. 01/06/2021). 667 GA 952-953 (Donald J. Trump Tweet 01/06/2021). 668 There are, however, strong arguments that all of these Tweets were unofficial. For example, in some of them, the defendant misleadingly suggested that the already-violent crowd should “[s]tay” or “remain” “peaceful” while failing to urge or direct those unlawfully at the Capitol to leave, as his advisors had urged him to do. He also used the messages to recognize the rioters at the Capitol as his own supporters, calling them “WE” and telling them that they were “very special” and that he loved them. And even as early as the afternoon of January 6, when violence still raged at the Capitol, the defendant justified and revered the rioters’ lawless actions on his behalf when he tweeted that “[t]hese are the things and events that happen” and to “[r]emember this day forever!” – 143 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 144 of 165 p.m. Tweet reflected speech made “in an unofficial, private capacity as office-seeker, not an official capacity as office-holder.” Id. at 5. Given all of this context, the 2:24 p.m. Tweet was unofficial. When the defendant sent it, he knew that what he had asked Pence to do, and that he claimed would “protect our Country and our Constitution,” was contrary to the ECA; that no state was poised to “certify a corrected set of facts;” that a large crowd of his political supporters had gathered in Washington at his urging; that these supporters were angry and believed his false claims that the election had been stolen; that he had called them to action through his Ellipse speech, in which he told them that Pence might still do as he wished and directed these supporters to march to the Capitol; and that his supporters had done so and had breached the Capitol building. The defendant also knew what his advisors were forcefully urging him to do as President: issue a message to quell the emergency at the Capitol. Instead, the defendant refused repeatedly until his advisors gave up and left him alone in the dining room. It was then that the defendant issued the 2:24 p.m. Tweet, as a candidate communicating to his angry supporters that Pence had let him and them-down. The content of the 2:24 p.m. Tweet was not a message sent to address a matter of public concern and ease unrest; it was the message of an angry candidate upon the realization that he would lose power. And unlike the defendant’s later Tweets that day, the defendant was not asking the individuals at the Capitol to “remain peaceful,” leave the building, or “go home.” c. Other public statements By virtue of his status as a candidate for re-election, the defendant occasionally made public statements—whether in response to questions or otherwise. Examples of such statements set forth in Section I are the defendant’s statements in advance of the election to seed public doubt in the outcome (supra p. 6), the defendant’s televised election night remarks to his supporters – 144 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 145 of 165 (supra pp. 7-8), and the defendant’s telephonic endorsement of CC1 false allegations at the Gettysburg “hotel hearing” (supra p. 39). 669 Each of the defendant’s cited public statements was made in his capacity as a candidate. His pre-election statements, for instance, were made in contexts like the Republican National Convention or in the midst of statements about political polling. His election night remarks were made to a room of his supporters and were about his status as a candidate in the pending election.6 670 And his contribution to the Gettysburg “hotel hearing” was to call in by dialing one of his private attorneys, who broadcast his personal message by holding her phone to the microphone so that he could make statements supporting those of his private attorneys.6 In sum, the defendant made all of these comments as a candidate for office, and was speaking about his own election. They were unofficial. 671 2. In the alternative, any official portions of the defendant’s public speeches, Tweets, or statements should be excised Alternatively, if segregable portions of the speeches, Tweets, or statements are found to be presumptively immune official conduct, the first alternative would be to excise them from the speeches, allowing the Government to rely on the unofficial statements in those speeches. The D.C. Circuit has long recognized that district courts have “discretionary power to delete objectionable portions” of evidence “where appropriate,” United States v. Lemonakis, 485 F.2d 941, 949 (D.C. Cir. 1973), and the Supreme Court has approved of that practice in the context of statements that contain protected legislative acts along with unprotected acts under the Constitution’s Speech or Debate Clause, see United States v. Helstoski, 442 U.S. 477, 488 n.7 669 GA 1951 at 22:08-22:18 (Video of RNC Speech 08/24/2020); GA 1927 at 2:50-3:28 (Video of Donald J. Trump Statement 10/27/2020). 670 GA 1974 (Video of White House Speech 11/04/2020). 671 GA 1945 at 2:06:23-2:07:23 (Video of Pennsylvania Hotel Hearing 11/25/2020). – 145 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 146 of 165 (1979) (approving practice of “excising references to legislative acts, so that the remainder of the evidence would be admissible”); see also Gov’t of Virgin Islands v. Lee, 775 F.2d 514, 523 (3d Cir. 1985) (“even where a conversation includes a discussion of both legislative acts and non- legislative acts, the conversation can be examined and the immunized aspects of the conversation deleted”). This is a familiar practice across a range of legal contexts. See, e.g., Samia v. United States, 599 U.S. 635, 653 (2023) (upholding use of a redacted statement to avoid constitutional concerns); Davis v. Washington, 547 U.S. 813, 829 (2006) (“Through in limine procedure, [trial courts] should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.”); In re Rail Freight Fuel Surcharge Antitrust Litig. – MDL No. 1869, 34 F.4th 1, 13 (D.C. Cir. 2022) (relying on Lemonakis). Redaction of any statements ultimately found to be immune, while admitting the significant remaining unofficial content, would resolve any constitutional questions under Trump. To the extent that excision does not resolve any arguable immunity claim, then even if the defendant’s conduct in these speeches, Tweets, and statements can be nudged across the line from Campaign conduct to official action, it is so heavily intertwined with Campaign-related conduct that prosecuting it does not pose a danger to any Executive Branch function or authority. Because the defendant bears the burden in the first instance of proving that conduct was official so as to qualify for presumptive immunity, the Government in its reply brief will address any specific arguments the defense makes regarding the speeches, Tweets, and statements discussed here. – 146-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 147 of 165 E. The Defendant’s Interactions, in his Capacity as a Candidate, with White House Staff 1. The interactions at issue were unofficial defendant. These staffers included White House staffers witnessed or engaged in private, unofficial communications with the P9 the White House Senior Advisor who acted as a conduit between the defendant and the Campaign; P45 and P7 who both volunteered for the Campaign while working in the White House; P15 a staffer who witnessed a pertinent private remark by the defendant; and P42 the defendant’s executive assistant. Federal law confirms that the defendant’s Campaign-related conversations with these White House staffers were unofficial. The Hatch Act permits certain White House staffers to engage in political activity while on duty, see 5 U.S.C. § 7324(a)(1), but prohibits them from using their “official authority or influence for the purpose of interfering with or affecting the result of an election,” 5 U.S.C. § 7323(a)(1). These staffers can thus wear two hats. They can work in their private capacity to advance the interests of a political candidate, including while on official duty, or they can work in their official capacity to carry out Executive Branch responsibilities—but they may not wear both hats at the same time. Accordingly, when the defendant’s White House staff participated in political activity on his behalf as a candidate, they were not exercising their official authority or carrying out official responsibilities. And when the President, acting as a candidate, engaged in Campaign-related activities with these officials or in their presence, he too was not engaging in official presidential conduct. 6 672 Precedent from the D.C. Circuit further confirms that the defendant was not engaging in official presidential conduct when he spoke with White House staffers about Campaign matters. P9 672 Indeed, at least two of the witnesses- and P45 consulted with the White House Counsel’s Office about their ability to engage with the Campaign, demonstrating that they understood their roles with respect to the Campaign were distinct from their White House roles. – 147-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 148 of 165 In In re Lindsey, 158 F.3d 1263, 1278-79 (D.C. Cir. 1998), the D.C. Circuit recognized that senior White House personnel may serve as the President’s agents in a personal capacity to act as a conduit for unofficial information from a private party. The D.C. Circuit held that while the President’s communications with his personal attorney are “fully protected by the absolute attorney-client privilege,” id. at 1283, a White House lawyer “cannot rely on a government attorney-client privilege to shield evidence from the grand jury,” id. at 1281. But a White House lawyer may invoke the President’s personal attorney-client privilege when he acts as “an intermediary” to convey unofficial information from the President to his personal attorney. Id. As the court explained, a President must often “rely on aides” to communicate with personal advisors, such as his personal attorneys, and the involvement of those aides does not alter the personal nature of the underlying communication. Id. at 1281-82. Similarly in this case, the transmission of a private Campaign communication by or to the defendant through a White House employee serving as an intermediary did not render that communication official and thereby shield it from use in a criminal trial against the defendant. In sum, just as the President can at times act “in an unofficial capacity”—including as “a candidate for office or party leader,” Trump, 144 S. Ct. at 2340—so too can the Executive Branch staff around him. Simply because a staffer holds a title in the Executive Branch and interacts with the President does not mean that the interaction is necessarily official. See Blassingame, 87 F.4th at 14 (noting “the settled understanding that immunity is based on ‘the nature of the function performed, not the identity of the actor who performed it.”” (quoting Clinton, 520 U.S. at 695)). When the individuals listed below interacted with the defendant in the circumstances described in Section I, those conversations were unofficial. – 148 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 149 of 165 P9 a. From August 2020 through the end of the defendant’s administration, P9 was an Assistant to the President without a defined portfolio. 673 More importantly for the Court’s purposes, during the charged conspiracies, P9 served as a conduit of information from the Campaign to the defendant and discussed Campaign matters with the defendant. These actions were, consistent with In re Lindsey, unofficial. As part of its immunity analysis, the Court should consider multiple different interactions involving P9 none of which bear on his official White House responsibilities: (1) a November 13 phone call in which the defendant told P9 he was going to put CC1 in charge of the Campaign’s legal efforts under an agreement where the defendant only would pay if CC1 were successful, and P9 guaranteed the defendant he never would have to pay (supra pp. 11-12); (2) a November conversation with the defendant regarding CC3 (supra p. 44); (3) an undated conversation in which he told the defendant that CC1 fraud allegations could never be proved in court and the defendant responded, “the details don’t matter” (supra pp. 12-13); (4) a November or December 2020 conversation in which P9 explained to the defendant why one of his fraud claims was “bullshit” (supra p. 13); (5) a late December exchange with the defendant regarding the verification CC2 Kemp (supra p. 27); (6) a January 4, 2021, conversation wanted him to sign in Trump v. P9 had with CC2 (ECF No. 22677; supra p. 66), after which Herschman reported to the defendant that CC2 had admitted his plan was “not going to work” (supra p. 66); and (7) a variety of occasions on which P9 reported to the defendant that his Campaign and its hired experts had found various election fraud claims to be unsupported (supra p. 12). 673 GA 671 – 149-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 150 of 165 Section I also includes actions by P9 that do not reflect any presidential conduct because the defendant was not involved. P9 These include December 3 text messages that exchanged with P21 regarding CC1 false fraud claims at a Georgia legislative hearing (ECF No. 226 ¶ 26(a); supra pp. 21-22), and December 13 text messages P9 exchanged with Campaign personnel regarding the fraudulent elector scheme (ECF No. 22660; supra pp. 52-53). The content of each of P9 communications with the defendant enumerated above involve the defendant’s Campaign, including the status and viability of the defendant’s fraud claims, the quality of the advice the defendant was receiving from his Campaign advisors, his litigation and electoral prospects, and the legality and practicality of CC2 proposal that Pence reject Biden’s legitimate electors at the certification proceeding. None of the communications pertain to general election policy issues or considerations, Justice Department criminal investigations, Executive Branch functions, or any other presidential responsibilities. P9 As context for all these communications, the Court should consider relationship with the defendant, his role in the White House, and his interactions with the relationship with the defendant and his family pre-existed his position Campaign. P9 in the White House, and P9 P9 represented the defendant in his impeachment trial. did not have a defined portfolio, and worked on matters related to the Justice Department, including the Portland riots and Section 230 of the Communications Decency Act, as well as Middle East issues and pardons. 674 The Government does not intend to elicit specific had with the defendant regarding his official information about communications P9 duties. ); GA 700 674 GA 671, 697 – 150 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 151 of 165 P9 was not acting in an official capacity during the conversations enumerated above, but as a conduit for information from the Campaign. P9 contact with the Campaign began in October 2020, when he asked Campaign staffers P3 and P72 for a tutorial on campaign basics and operations. 675 He continued to talk to P3 and P72 leading up to the election to understand different electoral college win/loss scenarios. 676 Shortly thereafter, in early November 2020 P9 asked P77 who handled ethics issues in the White House Counsel’s Office, for permission to engage with the Campaign, and thereafter P9 P9 CC1 P56 CC3 P10 began frequent contact with Campaign staff. 677 Several days after the election, went to the Campaign headquarters in Virginia for the first time, while P2 P48 and P12 were there too. 678 As discussed supra P9 p. 9, on November 7—likely the same day he went to the Campaign headquarters- joined Campaign staffers, including P2 the defendant the fact that networks that morning had projected Biden as the winner of the P3 and P4 at the White House to discuss with election. 679 The Campaign staff and P9 slim. 680 told the defendant his chance of victory was P9 also participated in various Oval Office meetings with the defendant, Pence, White House staff, Campaign officials, and P39 681 P9 and others, various fraud allegations The defendant heard and mentioned, to throughout the post-election period, sometimes from his outside attorneys like CC1 CC3 ог 675 GA 671-672 676 GA 672-673 677 GA 673, 686 678 GA 673 679 GA 194-195 680 GA 196-197 681 See, e.g., GA 683-684 – 151 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 152 of 165 Consistent with this, P9 asked P3 and P72 if certain fraud allegations were accurate, so that he could challenge information provided to the defendant by people like CC1 CC3 and P12 682 P9 also began interacting on a near-daily basis with P22 a Campaign staffer who P73 told P9 he could trust. 683 The Campaign, in turn, hired two outside firms- C1 and C2 to investigate fraud allegations. 684 P9 told the defendant that people external to the Campaign were hired to look into fraud allegations. 685 Overall, P9 served as a conduit of day-to-day information between P22 and the defendant during the post-election period. P22 testified that around the time that CC1 was named to lead legal efforts, “I was introduced to predominately reporting to P9 P9 686 He elaborated that P9 and I started “started to call me more and more. It would be, you know, once every couple of days that then it was kind of every day for a period of time that I was talking to on a daily basis, P9 For example, after watching P9 687 With this information, attempted to debunk the false fraud allegations in the White House. P74 Georgia, P9 reached out to P22 688 testify in a December 10, 2020, hearing in Through this channel, P9 learned about C1 and C2 uniform findings that no substantial fraud allegations were supported- essentially in real time. 689 P9 also participated in calls with C1 and had the number 682 GA 673 683 GA 704 684 GA 715 685 GA 716 686 GA 58 687 GA 59 688 GA 719 689 GA 715, 719 ); GA 710 ); GA 715 -152-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 153 of 165 of one of its managing directors, P75 in his cell phone; some of those calls occurred at directly passed the information to the defendant. 691 the White House. 690 P9 P9 had other contact regarding initiatives by the Campaign or its outside P9 attorneys. For example, was on a call with the defendant and CC2 on December 9 regarding the defendant’s motion, in his capacity as a candidate, to intervene in Texas v. Pennsylvania. 692 Separately, P9 spoke to the defendant about the lawsuit, and explained how the legal system worked and that the Campaign—not the Justice Department or FBI—was responsible for filing election challenge lawsuits. 693 Throughout these conversations, even if P9 could be understood to have been P9 acting in an official capacity—which he was not—rather than a Campaign one, the defendant was himself acting in his private capacity as a candidate. The defendant was asking for view on various strategic decisions he was making regarding his Campaign and his private attorneys, and he was getting reports from P9 potential election challenges important to his candidacy and private Campaign. All of this context establishes both that P9 on information related to actual and wore two hats one official, one private and that the defendant interacted with P9 interactions between the defendant and in these conversations as a candidate rather than as President. The P9 that the Government intends to introduce at trial were thus all private. 690 GA 719, 721 691 GA 717-718 692 GA 713 693 GA 687 – 153 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 154 of 165 b. P45 P45 served as Assistant to the President and White House Deputy Chief of Staff. 694 He also volunteered his time for Campaign work, including traveling to political rallies with the defendant and posting pictures and videos. 695 The Government will elicit from■ P45 696 at trial He also will that he was the only person other than the defendant with the ability to post to the defendant’s Twitter account, that he sent tweets only at the defendant’s express direction, and that P45 did not send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021.6 generally describe the defendant’s Twitter knowledge and habits, including that the defendant was “very active on his Twitter account,” “paid attention to how his tweets played with his followers,” “was very engaged in watching the news,” and “knew how to read the replies and see all the replies of what people were saying and doing which . . . led to where he would retweet things,” and that any Tweet sent “between 5 or 6 a.m. until 9 or 10 a.m.” and after “9 or 10 p.m.” generally was the defendant personally sending out the Tweet, as opposed to having P45 do it. None of this proposed testimony on P45 ‘s part constitutes evidence of an official act. General information about access to the defendant’s Twitter account, as well as P45 ‘s testimony that P45 did or did not issue a particular Tweet, is unrelated to any particular official act by the defendant. P7 c. P7 was an Assistant to the President and a volunteer for the Campaign. 697 She will testify about two specific sets of conversations: (1) a handful of conversations in which the defendant, in advance of the election, said that he would simply declare victory (supra p. 5); and 694 GA 526 695 GA 528-529 696 GA 527 697 GA 241-244 ); GA 545 – 154-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 155 of 165 (2) an unprompted statement in which the defendant remarked, in a private moment, that CC3 claims were “crazy” (supra p. 44). Regarding the pre-election conversations, P7 has testified that COVID’s expected effect on the election, and in particular the anticipated phenomenon that the defendant would take an early lead in some states based on the election day vote that would dissipate as mail-in ballots were counted, was discussed among Campaign personnel and dual-hat White House staffers who simultaneously volunteered for the Campaign. 698 In that context, the defendant told P7 and others words to the effect of, “We’ll just declare victory.””699 Regarding the defendant’s statement about CC3 P7 will testify about a November 20 phone call in which the defendant mocked and laughed at CC3 and called her allegations—that he adopted and amplified—“crazy.” “700 not as P7 In all of these interactions, the defendant was interacting as a candidate with P7 President. With respect to his pre-election comments about declaring victory, the context of the conversations indicates that the defendant was responding in real time to information that Campaign staff provided him on private matters. Similarly, the November 20 conversation among the defendant, P7 and P45 regarding CC3 was also a Campaign conversation. and P45 two staffers who volunteered for the Campaign while working in the White House, were informally discussing with the defendant developments in his Campaign—namely that one of his private attorneys had been a source of public embarrassment. The defendant then dialed his private attorney, CC3 and made the comment about her claims with her on the muted phone line. The defendant was not seeking advice from White House staffers; he was making fun of his private attorney in the presence of Campaign volunteers. 698 GA 246-249 699 GA 250-253 700 GA 258 – 155 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 156 of 165 c. P15 P15 was an Assistant to the President and Director of Oval Office Operations. 701 At trial, the Government will elicit from P15 that he witnessed an unprompted comment that the defendant made to his family members in which the defendant suggested that he would fight to remain in power regardless of whether he had won the election. Specifically, following the 2020 election while aboard Marine One, the defendant told his wife, daughter P14 P13 and son-in-law “It doesn’t matter if you won or lost the election. You still have to fight like hell.” See supra p. 14-15.702 P15 happened to overhear this comment, but was not participating in the conversation. 703 This statement is plainly private. It was exclusively about the election and the defendant’s determination, as a candidate, to remain in power whether he won or lost. The defendant made the comment to his family members, who campaigned on his behalf and served as private advisors (in addition to any official role they may have played). The fact that it was overheard by P15 a White House staffer, does not convert it to an official communication. d. P42 To a limited extent, the allegations in the superseding indictment and the Government’s evidence involve P42 the defendant’s executive assistant in the White House. Section I describes multiple instances in which P42 received emails intended for the defendant or sent emails on the defendant’s behalf. These instances include: P42 sending to a group of private attorneys, including CC3 an email with the subject “From POTUS” directing the private in private lawsuits (see supra attorneys to include material critical of C3 701 GA 307 702 GA 308 703 GA 309 ); GA 304-305 – 156-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 157 of 165 pp. 42); P42 receiving from CC1 an email for the defendant providing a copy of the message CC1 had drafted to exert pressure on Michigan Senate Majority Leader P37 (see supra p. 34); P42 receiving from P39 the RNC’s “Elector Recap” email to put in front of the defendant (see supra p. 57); and P42 receiving an email from CC2 on December 23 asking to update the defendant on “overall strategic thinking” on the defendant’s status as a candidate (see supra p. 61). None of these actions by P42 in which she was merely facilitating communications between the defendant and his private attorneys or private political allies, constitute the defendant’s official conduct. P42 regularly facilitated the defendant’s purely private matters, including communications with his children about his Thanksgiving travel. 704 The defendant’s reliance on P42 to pass messages to and from personal advisors, friends, and family does not render the underlying private communications official. See Lindsey, 158 F.3d at 1281-82. 2. Even if this evidence were deemed official, the Government could rebut any presumption of immunity Even if an “official” gloss were applied to the defendant’s conversations with White House staff pertaining solely to the President’s chances as a candidate to successfully challenge the election results, the use of such evidence would not intrude on Executive Branch functions or authority. “The Office of the Presidency as an institution is agnostic about who will occupy it next.” Blassingame, 87 F.4th at 4. Whatever blurring of the lines might exist between candidate conduct and official conduct in conversations that the President may conduct with his immediate (11/17/2020, “Hi ! Your 704 GA 1904 at row 1151 dad is going to stay in DC for thanksgiving – just wanted to let you know!” from P42 to ), row 1765, 1153 (11/16/2020, “Has DJT solidified his Thanksgiving plans” from P73 to P42 she responded, “As of earlier today, FLOTUS wants to stay up here and POTUS is on board, as of now”). -157 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 158 of 165 staff, introducing evidence of conversations with dual-hat White House staff members—those who function in both a Campaign-related capacity and an official advisory capacity—when they are speaking to the President in his capacity as a candidate or in their Campaign-related capacity does not impede decision-making on matters entrusted to the Executive Branch. The Supreme Court required that its rebuttal analysis focus on Executive Branch authority and functions—not merely on anything that the President might say or do while at the White House. Here, the Executive Branch has no authority or function in the certification of the next President. Accordingly, the use of evidence of White House staffers’ Campaign-capacity discussions with the President about how to challenge state election results-challenges brought in his capacity as a candidate―does not risk impairing the constitutional role of the Executive Branch. F. Other Evidence of the Defendant’s Knowledge and Intent The Government intends to introduce at trial additional evidence to prove the defendant’s knowledge and intent. These include (1) public statements by federal officials that the defendant did not direct be made (specifically, public statements by Attorney General P52 and CISA Director P50 about the lack of election fraud and foreign interference); (2) evidence that the defendant was reviewing Twitter and watching television throughout the afternoon of January 6; and (3) the defendant’s post-Administration statements. None of this evidence will involve testimony from the defendant’s Executive Branch staff about his official actions. 1. The evidence at issue was unofficial a. Statements by federal officials i. P52 (supra p. 46) In a public statement issued on December 1, 2020, Attorney General P52 said that the Department of Justice had not seen evidence of fraud sufficient to change the election results, and – 158 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 159 of 165 that claims that voting machines had skewed election results were unsubstantiated. 705 P52 decided to make his statement without informing the defendant in advance. 706 He prepared the statement because he had been watching the defendant repeat claims of election fraud publicly despite direct knowledge, from P52 and others, that they were false, and P52 was growing more and more frustrated by the defendant’s actions. 707 On November 29, P52 saw the defendant appear on the Maria Bartiromo Show and claim, among other false things, that the Justice Department was “missing in action” and had ignored evidence of fraud. 708 P52 decided it was time to speak publicly in contravention of the defendant’s false claims, set up a lunch with a reporter for the Associated Press, and made his statement—all without informing or seeking permission from the defendant. The same day, on behalf of the Campaign, CC1 and P12 issued a statement attacking P52 for his comments. 709 In the days that followed, P1 criticized P52 statement during his podcast, asking rhetorically “is P52 reading the same things we’re reading?” and prompting guest CC6 to comment that “the DOJ has not been following up on these leads as far as we know right now. That statement seemed to be very premature. . . . [T]here’s no way one can look at this election in these states and say that it was done properly.”710 acknowledged and P52 statement is not an official act by the defendant. Trump treats only the defendant’s own acts as potentially immune, see, e.g., 144 S. Ct. at 2338, consistent with the “justifying purposes of the immunity”—“to ensure that the President can undertake his constitutionally 705 GA 1242-1243 (Email from Comms Alert 12/01/2020). 706 GA 12-13 707 GA 8-10 708 GA 10 709 GA 1244 (Trump Campaign Press Release 12/01/2020). 710 GA 1978 at 11:56–12:04, 32:06-33:16 – 159-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 160 of 165 designated functions effectively, free from undue pressures or distortions,” id. at 2332 (internal quotation marks omitted). The immunity that the Supreme Court recognized thus does not imply that acts by other government officials can qualify as presidential acts. More to the point, P52 statement does not reveal any official action by the defendant because P52 did not give his public statement at the defendant’s direction or even with his knowledge. To the contrary, if the defendant had been aware of what P52 intended to do he undoubtedly would have instructed P52 not to make the statement; when the defendant learned of P52 statement, he was so angry that P52 tendered his resignation and, momentarily, the defendant accepted—until P59 P9 and 711 prevailed upon the defendant to calm down and convinced P52 to delay his departure. The Government does not intend to introduce evidence that implies that P52 or his deputies refuted the defendant’s fraud claims to him directly; instead, the Government intends to introduce P52 statement and CC1 recognition and repetition of P52 statement. Campaign response to it, as well as P1 ii. P50 (supra pp. 42-43) On November 17, CISA Director P50 tweeted a link to an open letter by 59 election security experts and touted it in an effort to promote public confidence in the election’s infrastructure. 712 This was similar to what P50 had done five days earlier on November 12, when he had publicized the joint statement CISA issued with the National Association of Secretaries of State, the National Association of State Election Directors, and other organizations declaring the 2020 election to be “the most secure in American history” and that there was “no evidence that any voting system deleted or lost votes, changed votes, or was in any way 711 GA 107-113 712 GA 790 (Tweet 11/17/2020). ); GA 115-119 – 160 –
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 161 of 165 compromised.” 713 On November 17, P50 promoted the expert report on his own initiative and, as he later learned, contrary to the defendant’s wishes; the defendant promptly fired P50 the same day, by Tweet. 714 The Government does not intend to introduce any evidence about the defendant’s removal of P50 Rather, as with P52 public statement, P50 public Tweets were not official actions by the defendant and thus are not protected by presidential immunity. b. The defendant’s use of Twitter and television on January 6 (Superseding Indictment, ECF No. 226 ¶ 92; supra p. 79) Forensic evidence from the defendant’s iPhone and observations by witnesses otherwise testifying about unofficial acts will establish that upon his return from the Ellipse, throughout the afternoon on January 6, the defendant sat in the dining room by the Oval Office, where he used his phone to review Twitter and watched the television, which was turned on and displaying news coverage of the riot at the Capitol. 715 As explained in the Government’s expert notice, ECF No. 183, an FBI Computer Analysis Response Team forensic examiner can testify as to the news and social media applications downloaded on the defendant’s phone, 716 and can describe the activity occurring on the phone throughout the afternoon of January 6.717 The phone’s activity logs show that the defendant was using his phone, and in particular, using the Twitter application, consistently throughout the day after he returned from the Ellipse speech. 718 713 GA 779 (Tweet 11/12/2020); GA 1236-1237 (Election Security Joint Statement 11/12/2020). GA 791-794 (Donald J. Trump Tweet 11/17/2020). 714 715 GA 1869-1871 716 GA 1900 717 GA 1872-1885 718 GA 1902 Phone.); – 161-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 162 of 165 P45 In addition, P9 719 P15 720 and each of whom are, as described supra pp. 147-154, 156, otherwise expected to testify about the defendant’s unofficial acts—will offer the objective observation that during the afternoon of January 6, the television in the defendant’s dining room, where he spent the day, was on and tuned into news programs that were covering in real time the ongoing events at the Capitol. In turn, the Government will introduce the authenticated coverage showing what Fox News was playing in real time while the defendant sat in the room with the television on. This evidence is particularly relevant to the defendant’s knowledge at the time he issued the 2:24 p.m. Tweet, which, as described above, was unofficial. None of this evidence involves testimony about an act by the defendant at all, and it shows what social media and news the defendant privately reviewed in service of issuing a private Tweet. The Government will not elicit testimony from the defendant’s staffers about his official deliberations, reactions to social media or television, or official actions taken in response. The defendant’s review of social media and television news-under these particular circumstances— was no different from that of any other citizen or candidate and therefore was unofficial. c. The defendant’s post-Administration statements (supra pp. 81, 83) As the Government identified in its Rule 404(b) notice, ECF No. 174-1 at 8-9, the Government will introduce some of the defendant’s numerous statements that post-date his time as President in which he has blamed Pence and approved of the actions of his supporters who breached the Capitol and obstructed the certification proceeding, 722 thus providing evidence of his intent on January 6. 719 GA 232-236 720 GA 318 721 GA 541-543 722 See, e.g., GA 1970 at 17:37 (Video of Trump Interview 07/10/2021); GA 1926 at 1:15:30 -162-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 163 of 165 The defendant’s endorsement of the violent actions of his supporters on January 6, and his sentiment that they were justified in threatening Pence—all made while the defendant was a private citizen after the end of his term in office—are probative of his intent during the charged conspiracies. The Government intends to offer them as evidence of the defendant’s intent on January 6, not as evidence of his official acts. 2. Even if this evidence were deemed official, the Government could rebut any presumption of immunity The use of the evidence regarding former Attorney General P52 and CISA Director P50 would not intrude on Executive Branch authority or functions because the federal officials’ statements reflected those officials’ positions, knowledge, and expertise not presidential acts or direction. The President is the “the only person who alone composes a branch of government,” Trump, 144 S. Ct. at 2329 (citation omitted), but Congress structures the Executive Branch and assigns manifold specific duties to subordinate officers who in turn execute the law. The President is responsible to take care that the laws be faithfully executed, see U.S. Const. Art. 2, § 3, but that does not mean that every executive official is at all times performing presidential acts. Allowing the Government to introduce evidence of these independent actions and public statements of subordinate officials in the Executive Branch, not taken at the direction of the President, does not intrude on the authority or functions of the Executive Branch. Nothing in Trump dictates such an (Video of Conroe Rally 01/29/2022); GA 1971 at 15:51, 16:42 (Video of Trump Interview 02/01/2022); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1966 at 09:30 (Video of Trump Interview 09/01/2022); GA 1973 at 43:07 (Video of Waco Rally 03/25/2023); GA 1694 (Transcript of CNN Town Hall 05/10/2023); GA 1964 (Video of Trump Campaign Statement 2024); GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1965 at 56:10, 57:11 (Video of Trump Interview on Meet the Press 09/17/2023); GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024); GA 967 (Donald J. Trump Truth Social Post 03/11/2024); Isaac Arnsdorf and Maeve Reston, Trump claims violence he inspired on Jan. 6 was Pence’s POST, (Mar. 13, 2023, https://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/. fault, WASH. 8:09 p.m.), -163-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 164 of 165 outcome that would effectively bar any Executive Branch employee from providing evidence against a President who committed crimes in his private capacity. Put concretely, allowing these independent acts of Executive Branch officials to be used in the prosecution would not chill any Presidential conduct, and thus any presumption of immunity is overcome. The same is true for testimony by White House staff about the President’s review of Twitter or his watching public events on television. Assuming for the moment that the President sometimes acts in an official capacity when watching television or reviewing Twitter, no statute or constitutional provision addresses the matter, and using evidence of his activity that virtually all citizens engage in—i.e., checking their social-media feeds and watching television—does not intrude on any authority or functions of the Executive Branch. IV. Conclusion Based on a “factbound analysis,” for the reasons explained above, the Court should determine that the conduct described in the factual proffer of Section I of this motion is not subject to presidential immunity. As part of this determination, the Court should specify four determinations, and do so in a single order: (1) that the Government has rebutted the presumption of immunity attached to the defendant’s official communications with the Vice President (see supra pp. 49, 63-67, 77-74; ECF No. 226 ¶¶ 11(c), 67, 70-78, 80, 82, and 84); and (2) that the remaining conduct described in Section I (that is, conduct other than the official communications with the Vice President) was not official, and, in the alternative, that the Government has rebutted any presumptive immunity for any of the remaining conduct that the Court finds to be official. The Government requests alternative rulings regarding rebuttal for all conduct the Court finds to be unofficial, to buttress the Court’s record, ensure thorough and efficient appellate review, and minimize the risk of successive rounds of interlocutory appeal. – 164-
Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 165 of 165 Furthermore, based on the determination that all the conduct described in Section I is not immune from prosecution, and because Section I encompasses all the allegations in the superseding indictment, the Court should further specify: (3) that the defendant is subject to trial on the superseding indictment; and (4) that the Government is not prohibited at trial from using evidence of the conduct described in Section I, subject at a later date to non-immunity based objections and this Court’s admissibility rulings under the Federal Rules of Evidence. Respectfully submitted, JACK SMITH Special Counsel /s/ Molly Gaston Molly Gaston Thomas P. Windom Senior Assistant Special Counsels 950 Pennsylvania Avenue NW Room B-206 Washington, D.C. 20530 – 165-
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