Part 2 of 2
Former Trump Insider [Miles Taylor] EXPOSES Trump MISHANDLING Classified Info and MORE
by Ben Meiselas
MeidasTouch
Jul 24, 2023 MeidasTouch Podcast - Full Episodes
Ben Meiselas interviews former Donald Trump official Miles Taylor, who became an outspoken whistleblower against Donald Trump. Miles is out with a new book warning about the dangers of another Trump term and how our democracy will be destroyed if that happens. Meiselas gets Miles to deliver some breaking news exclusively with the MeidasTouch Network that Miles Taylor saw Donald Trump mishandle classified information. Special Counsel Jack Smith, are you listening?
Transcript
I'm Ben Meiselas from the Meidas touch Network and we are joined by Miles
Taylor miles previously served as the chief of staff at the U.S Department of
Homeland Security in the Trump Administration where he published an anonymous essay in the New York Times
blowing the whistle on Donald Trump miles has been an outspoken critic of
Donald Trump giving us an inside perspective of the dangers posed by this
malignant narcissistic unqualified sociopathic criminal traitor and Miles a
New York Times Best Sellers out with a new book blow back a warning to save
democracy from the next Trump was released on July 18th I've had the
opportunity to read it and now I have the opportunity to speak with you Miles Taylor and share it with all of the
Midas Mighty watching out there how you doing Ben I'm just glad you didn't introduce me as a narcissistic
sociopathic criminal traitor so you know if I ever enter that territory I need
you to send me a text message and call me out but uh but it's always great to be with you and uh and I've got to say uh just the other day she's gonna get a
kick out of this but my stepmom said I hope you're talking to the Midas touch guys because I love them and I said you
will be delighted to see on the schedule that I am that is so good to hear that she's a part of the Midas Mighty and
knowing that she's gonna be watching this interview so let's get right into
it you know and I've seen a lot of your interviews out there we've covered your book in some of these segments we do
here on the Meidas touch Network so our viewers are familiar but there's one nagging question that I haven't heard
you've been asked by anybody yet and it relates to Donald Trump's handling of
classified information and if you've observed anything about that yesterday there was a big ring in the Federal
Criminal Case brought by special counsel Jack Smith against Donald Trump for his
willful retention of National Defense information so I think the million
dollar question out there that I've never heard you've been asked is did you Miles Taylor observe Donald Trump
mishandling classified information and has special counsel Jack Smith reached
out to you?
[Miles Taylor] well you know Ben uh I did and I haven't heard from the special counsel but you
know I'm I'm willing to say I'm I'm more than happy to talk to the special counsel and his team if it's additive to
this case and I think there's actually probably a lot of other people from the administration who could add color to
this Narrative of Trump's really really reckless handling of National Security
Secrets which we saw all throughout the administration in my case there were several episodes I mean one was getting
a phone call early in the administration from Trump's Homeland Security advisor who uh called to say that the president
had just disclosed highly classified information in the Oval Office uh not
just to some civilians and tourists but to a foreign adversary it's when the Russians were visiting the white house
uh and and that was publicly reported the Sensitivity I think people still don't understand the extreme sensitivity
of what Trump had shared but it didn't stop there because after that we became really concerned about what to share
with Donald Trump and when because we had no confidence that he would protect
highly classified information that we put in front of him because he had a proclivity to talk about those things he
liked having leverage which was you know secrets that other people didn't know that he did know and I saw him brag
about it uh you know in a number of occasions and and one that stood out in particular was a day that I was sitting
in John Bolton's office having a conversation with him when he was Trump's National Security adviser and
and Sarah Sanders then press secretary enters sort of breathlessly to say that Trump had just had a meeting with a
group of reporters and sort of carelessly picked up a fistful of classified documents and waved it in
front of the reporters to brag about the sensitive intelligence he got as
commander-in-chief it was a it was an unbelievable lapse in protocol but I think is in indicative of a wider
Behavior we saw from Donald Trump which was again a failure to protect those secrets that American lives depend on
and we've seen it since the administration so I do hope the special counsel is building out a longer
historical Narrative of Trump's mishandling of documents so that they can show that what happened with the
documents at Mar-A-Lago was by no means some accident or just a brief lapse
[Ben Meiselas] And you'd be willing to testify and speak with special counsel Jack Smith about your observations about how Donald Trump
continuously mishandled classified information while you were in the administration correct well look I'd be
happy to talk to any of the investigators in any of these cases that have to do with the former president
because I think there is really important historical context to a lot of these cases so I mean let's take January
6th and the Insurrection for example the special counsel is investig creating Trump's failure to respond to that
incident or more directly his fomenting of an attempted Insurrection against the capital but I think one of the things
that will be really important in that case is telling the story of how Trump had an affinity for this idea of
invoking the Insurrection act years before he uh ended up fomenting January
6. then it's something that I talk about in blowback is you know as far back as I
remember an episode in 2019 when we had to rush to the White House to stop
Donald Trump from including the Insurrection act in his State of the Union Address he had seen on Fox News
these images of migrants coming to the border and Trump was well aware that he
had in his words this magical Authority called the Insurrection act where he could deploy the U.S military on
domestic soil and he wanted to exert that power and he was this close to
including that in his State of the Union and saying that he was invoking the Insurrection act that it was a national
emergency and he was going to deploy U.S troops uh on soil uh to you know turn
migrants away migrants who had a lawful right to come to the United States by the way people seeking Asylum and we
ultimately talked him out of it we got his lawyers to stand down but what this shows is that this was in Donald Trump's
mind years earlier he knew that if there was an incident like an Insurrection at
the Capitol it would give him pretext to potentially invoke those extraordinary presidential powers and that's why I
think he sat there in the west wing of the White House for hours and watched the event unfold is that he was waiting
for the moment when he felt like he could justify invoking those Powers now that is speculation on my part but I
think it's completely backed up by the history of him wanting to use those authorities for unlawful purposes well
what's not specular Nation though on your part and you've talked about this before and I want you to share with the
Meidas Mighty what you observed Donald Trump wanted to build out his own
mercenary force similar to what he observed with Vladimir Putin and he talked about in a serious way building
out his own personal Army to guard him and protect him and carry out his will
did he not?
[Miles Taylor] yeah I mean this this sounds like the type of thing that is in a is in a bad
Hollywood flop you know just a really bad screenplay but it was the president
of the United States that wanted his own mercenary force and I witnessed some of
the chaos around this internally in the administration in the first year is we
were in the process of briefing Trump on Afghanistan and trying to give him options for what to do next because we
were worried that Trump was going to recklessly handle the exit from Afghanistan and that people would die
U.S troops and civilians uh because of the way that he wanted to just pull out in an instant he needed a much more
sequenced uh reasonable plan so that troops wouldn't be put in danger civilians wouldn't be put in danger in
the course of us developing those options we got word that the president was having private conversations with
people about potentially creating his own mercenary force that could be deployed into Afghanistan allegedly one
of those people he was talking to was Eric Prince the controversial founder of Blackwater the Blackhawks Ops group that
got a lot of attention during the Iraq War um and thankfully we talked him down
from this and in the process of that you can read about it in the book was was absurd I mean you know John Kelly called
me and said you know this 50-page memo that we would normally give to any other president about what his options are is
something Trump literally can't read the man doesn't read we've got to boil this down into a one-pager in his voice and
so I had to write this incandescently stupid memo called something like Afghanistan how to put America First and
win and then Bullet by Bullet I summed up this highly classified memo into Trump's sort of bombastic language
because it was the only way he was going to understand I mean I literally said in there you know if we leave Afghanistan
too fast the terrorists will call us losers but if we want to be seen as winners we need to make sure the Afghan
forces have the strength to push push back against these criminals I mean it was it was that dumb and that's how you
had to talk to him so you know I had to write this this absurdly stupid memo in Trump's voice to persuade him to really
take the serious options seriously and not go create a private mercenary force
that he could send into Afghanistan instead of the military but then in the course of writing this book I didn't
want people just to hear from me I wanted them to hear from dozens and dozens of dozens of people almost all of
them Republicans who were appointed by Trump or were Republican members of Congress about what would happen in a
second term and in the course of those interviews someone brought up this idea of a mercenary Force again a top
official on Trump's National Security Council said that after I left the idea came back again and that Trump
desperately wanted to create his own armed mercenary group so much so that
the NSC had to scramble to write these memos and brief Trump and explain to him why it was a bad idea and they they
ultimately shut it down but what was clear to them is that he had this deep Envy of Vladimir Putin and Vladimir
Putin's own Wagner group right his sort of unaccountable you know band of uh you
know ex-military Fighters that he directly controlled now we've all seen how that worked out for Vladimir Putin
but Trump wanted his own group like that and a number of other officials former top counter terrorism officials and
folks from different departments and agencies said that they also had seen plans on the Shelf to deploy the U.S
military domestically to deploy DHS Security Forces domestically with political aims and that's what they
worry about in a second term and it's what I worry about in a second term I mean one of the people I spoke to for this book who was on Trump's National
Security Council appointed by the president said look in a second term they will try to take DHS forces and
they will send them to polling places in the name of election security but the goal will be to have armed individuals
at the polls to intimidate the political opposition and Ben we saw this in Arizona in the last election these
so-called ballot Watchers these militia men who showed up with guns and their goal wasn't to protect the polls from
violence their goal was to scare Democrats away from voting and to have one of Trump's own senior National Security Council officials say in the
second term he'll do that and he'll do that with official state Security Forces is I think deeply deeply just disturbing
it's the kind of thing you would hear about in a story about a third world Republic about a North Korea or an Iran
uh not the United States but that's the moment that we're in and that's the possibility we're facing yeah and both
unlawful and stupid when you when you look at some of his ideas and you talk
about in the book how Donald Trump's former Chief of Staff someone you mentioned earlier in the interview John
Kelly made the comment that you heard that look one-third of the things that Donald Trump does is illegal one-third
of them is just completely stupid and one-third of that is not possible did I
butcher the quote or do I get it about right well that's that's about right I mean you know Kelly's point was that
um you know we rarely have credible ideas uh from the president and you know
that was a point in the administration shortly before Kelly left and and he was growing immensely frustrated at his
inability to sort of hem Donald Trump in uh you know year one I think we were
able to keep a lot of the bad ideas in the Box you know his plans to pull out of NATO or shoot migrants at the border
uh or you know weaponize America's spy Powers against his political opponents
you know those things were put back in the box but by year two you know Trump was resisting these people who had a
conscience around him and if you can give him credit for anything it's that he had this finely tuned radar for
people with a conscience and he found them and he systematically eliminated them from the administration and that's
one of my warnings about a second Trump term or a copycat is there will not be these John Kelly's and Jim mattises that
come into the administration with the goal of trying to help the president govern and keeping him in check there
won't be it will be filled with political loyalty Loyalists and John Bolton said that to me and Mark esper
his former Defense secretary and on down the list it was actually the biggest thing I heard is people fearing the low
quality and character of the folks that will be running the federal government if we see a return of trumpism in the
white house when you talk with some of these Republican colleagues and or I
don't even know if they still identify with this modern day Republican party but you know one of the things that
shocks me is when I guess nothing could shock me anymore though when you see someone like the governor of Georgia
Brian Kemp and he says things like he recognizes that Donald Trump poses an
existential threat to our country that what he did on January 6 was traitorous it makes statements he tried to
overthrow the election in Georgia but then in the next breath he's asked a question well would you vote for him and
the response as well if he's the Republican nominee yeah I would I would vote for him i i i i i it's really inexplicable to me
and look Brian Kemp you can say a lot of things about him and I could be very critical of some of his policies but
in theory an intelligent person how does that how do you square that away when you see
that and do you see that when you speak with kind of former Republicans who are very critical of trump who who say well
I guess if he's not me I still got to vote for him I I think it's incredibly depressing and
and I hear that from a lot of folks and I I think that's why it's very plausible that Donald Trump becomes the next
president of the United States I think it's a very real possibility you know been a lot of our friends are sort of in
denial about that and folks don't want to think it can happen and and we keep fantasizing that the Justice
Department's going to take him down or this case or that case uh you know we've got it twice impeached twice indicted
you know potentially soon three-time indicted maybe more ex-president who's still not suffering in the polls because
of it we have to prepare ourselves for the prospect of a second term and that's
why I wrote this I mean no one wants to read another Trump retrospective or another Memoir and but what I was
frustrated by was that no one was out there detailing in a very clear-eyed way
what would happen if we make this Civic mistake again and we had great reporting
from The New York Times a few days ago uh that talked about how Trump has these
plans to use the powers of the presidency for revenge and that's just
the tip of the iceberg I mean blowback goes into detailed department by Department of exactly what they mean by
revenge and what they're going to try to do with those agencies I mean you know one of the ones that was really
disgusting to me is what I heard about America's veterans is there's plans on the Shelf in a second term to basically
destroy the social safety net for America's veterans the people who served
this country in uniform many of them wounded their families who sacrificed to pull that social safety net out from
under them why I mean why would anyone even consider that well it's because Donald Trump found out that the VA was
the second biggest department in the federal government with a 250 billion dollar budget and he wanted that money
spent somewhere else he wanted to spend it on political priorities again this isn't Miles Taylor saying this I mean
this is Trump's senior leaders at the Department of Veterans Affairs that he appoint painted they said that Trump
thought of Veterans as quote lazy malingerers and he didn't care if they were kicked out onto the street he was
just so frustrated that so much money was being spent on them and we know about Trump's long history of animosity
towards veterans how he went to France uh to Mark the anniversary of the Normandy invasion and said the guys in
the ground were suckers and losers because they didn't survive in the battle and look I'm not a psychologist
but I'm sure this has something to do with the fact that he was a draft Dodger that you know he used a false excuse
allegedly of bone spurs to avoid going into the draft and since then he's had this deeply vile view towards people who
serve this country and that's why he was so excited as president to bring the generals to serve under them he wanted
the generals under his thumb and I'll never forget standing in the Oval Office when John Kelly was sworn in as white
house chief of staff it was like a good man jumping on a grenade being thrown by
a bad one and the only person smiling in that room was Donald Trump is because he thought he was bringing Kelly in to keep
him in check and Kelly thought he was there to keep Trump in check and ultimately as much as I admire General
Kelly and I do Donald Trump ended up being the right one because it was clear that we were wrong that unelected
bureaucrats were never going to be able to protect this country from a wayward commander-in-chief and they certainly
won't be there if there's a second term
you also describe Donald Trump's treatment of female
staffers how he talked about his own daughter Ivanka can you speak to that
yeah you know this is something that I have told a couple of other people that I was unsure whether I even wanted to
put in the book because it's so disgusting um it doesn't have to do with public
policy on the surface but I included it anyway because when John
Kelly recounted that episode to me about Trump talking about ivanka's body and what it might like be like to have sex
with her his comment after that is Miles Trump is a very very evil man and
there's not a lot of things that can persuade his voters Maga voters really
hardcore ones to break from the former president but I've got to think they draw a line somewhere and I've got to
think they would draw the line at incest and it's not just John Kelly saying this
there's this rap sheet that goes on and on of Trump's sexualizing his own
children I mean you've got Trump going out there talking about how Democrats are are pedophiles and perverts this guy
acts in a way that's you know makes pedophiles look like you know innocent
people he is a consummate pervert and that deficient moral character can't
somehow be compartmentalized from the full-time job he brings that same lack
of character uh and disgusting attitude towards his work to towards relations
with other countries towards democracies guard rails he's a man without a moral
compass whatsoever and what worries me Ben is for the longest time I made the
mistake of thinking that Trump was an aberration and just a uniquely disturbing human being and that we only
needed to get past him but his views and his ethos have infused the Republican
party and now we are seeing them fall all over themselves to try to become the
next Trump and that's what I try to warn about here is that even if Trump doesn't win a lot of the candidates in this
field are trying to outdo him and take the policies that even he walked back
from and take them further and Implement them if the Maga movement retakes the White House and and it pains me to say
it but I genuinely think uh if we put another manga president in the white house it is the end of our democracy and
there's other people in this book uh quoted one of them Sue Gordon who was deputy director of National Intelligence
under Trump I asked her and her comment was I have low confidence that America
reaches its 300th birthday in any recognizable form if we put another
person like that in the White House and that's pretty damning coming from it's someone that Trump hand-picked to run
his intelligence community so in 2020 a lot of people who may have been on
opposite sides of the political Spectrum United in a common goal for democracy
there was a lot of passion a lot of energy out there from the ads that were
being made to whistleblowers coming forward to there was a lot a lot of
energy at that time as we approached the 2024 election what do you think is the
solution we know the warning but what has to be done now you know we're less
than 500 days away from election what has to be done well a couple things need to be done and
you point to one of the really important ones which is what I call Coalition campaigning it's really really vital
that this time around we make sure that concerned conservatives and independents
Coalition with Democrats to make sure that this doesn't happen again My worry
is I'm not entirely sure that that's the case I mean when I look at the polling
and I look every week at these new polls that drop about the attitudes of the GOP base you see a lot of these Republicans
who defected in 2020 and voted for Joe Biden you see him going back home you
see them going back to the GOP tribe and that worries me because we need those
voters as a firewall to prevent someone like Trump from coming back but they
aren't and part of the reason they aren't is because Republican leaders have continued to stand by Trump at
every opportunity they've had to break with him whether it was the Insurrection whether it was the unlawful retention of
classified documents indictment after indictment largely Republican leaders have stood by them which basically
signals to voters hey he's a good guy this is all politicized and it
perpetuates this conspiracy theory of a justice department that's out to get him for political retribution most of these
people in Jack Smith's team and otherwise they're all public servants a political public servants and they have
no reporting line to the president of the United States that's actively used to run these cases but that narrative
has taken hold so I worry about that Coalition staying together and the only way we can make it work is to get more
of these prominent Republicans to speak out luckily in the primaries we've seen people like Chris Christie and ASA
Hutchinson and will Hurd go out there and speak the truth but these guys are a minority I mean they've got single
digits in the polls what we need are people who know better like Kevin McCarthy the speaker of the house to
come out and say the things he used to say privately about Donald Trump I mean I witnessed him complain about Donald Trump all the time not just when I was
working in the house when I was at the Department of Homeland Security as Chief of Staff I mean you know Kevin McCarthy would call us when we would enlist his
help in trying to fix Trump problems and say you know he one time this quoted in the book he said you know why the [ __ ]
am I having to do this you know essentially like why is this guy so out of control like why do I have to keep intervening from Capitol Hill to keep
him from making stupid decisions Kevin needs to say those things publicly Kevin needs to stop keeping those opinions
private and the same with his lieutenants and the same with his caucus I mean I've got a lot of friends who are still in Congress I've got Republican
members of Congress that are friends of mine that are peers of mine that we came up together we'll go out for beers and
they'll say the same thing Trump's a danger to democracy but their mistake is in thinking he will just go away no he
will not go away unless they have the courage from within the tribe to start attacking him and diminishing his
political support and if they don't do that we are going to Zombie Walk Off The Democratic Cliff you know one of the
reasons I took a detour in the career trajectory I was on to build this
pro-democracy media network is I just felt when I was clicking through the
channels or searching online that a lot of I'm not saying all I don't want to
cast it with such a broad brush but a lot of Legacy Media is also normalizing
the behavior and every single day Donald Trump's on his social media platform
posting Q Anon memes threatening prosecutors yet the story that's
presented to the public outside of this network and a number of other uh and
some small few other networks is yeah just Democrats Republicans we are in a
situation where there's lots of polarization Americans are very divide did and they just fail to meet the
moment and do we just have to Recon my my answer
was I just got to rebuild the thing and create a new one and and do it but but
what do you see there I mean they over intellectualize it what's going on there
I think it's going to be really hard because people are exhausted and and you
know this well Ben it's one of the ironies of being in this space is you know the the other side the Maga side
tries to say well any of these never trumpers or former Republicans or rhinos or you know these these you know
Democrats you know they're all coming at us because they're grifters and I find that allegation remarkably funny because
like doing this you know being on this podcast talking to you writing this book has been literally the opposite of
financially lucrative like when I was working in the private sector and working in the tech sector I was finally
making very good money you know what's not a really good thing for business you know what's [ __ ] the stupidest thing
for business it's the dumbest thing I mean if people want to know if they want to see my
salary for the past two years my salary for the past two years has been less than it was when I was in government and
we don't pay government servants well so no you know I'm not getting rich off of talking about Trump if anything it is
deeply suppressed my financial situation and and again no one has to have sympathy for me I'm doing this because
it has to be done but you know when I came out against Trump yeah I say this all the time I did lose my home I did
lose my job I did lose relationships I did lose my life savings I was on unemployment for months so you know I
want those people who accuse folks like us being grifters come say that to my things because we are in this because
our country is literally on the cusp of potential what I call Civic suicidal
ideation it's essentially as a country where uh we're looking down the barrel of a gun and about to make a horrible
mistake that we cannot walk back from and we have to wake up to that and I'm so frustrated with a lot of the the
mentors I had coming up in Washington who I thought would have the courage to go sound that alarm and they didn't and
I'm just a kid from a middle class town in Indiana a small farm town and I grew
up thinking if someone's bad and if there's a bully you call it out and a lot of these people apparently weren't
raised that way and rather than acting like adults they've act like children
hiding under the bed from the Boogeyman and if they continue to do that we will
lose this we will lose this thing that we call our democracy and you know
Reagan said we were you know Freedom was always a generation away from Extinction and the founders thought that right the
famous quote from Ben Franklin when they asked him after he walked out of the Constitutional Convention well what have
we and he said a republic if you can keep it and there was a worry even then that we were always a few steps away
from throwing this away and I think that right now we're at Graver risk of that
than we were in 2016 than we were in 2020 I hate to sound like the broken record but I do think the 2024
presidential election will be the decisive referendum on the survival of American democracy really who are we as
a country I mean and I think it goes in two extremes right it either becomes
this fascist dystopia that looks like Russia or I think a pro-democracy
coalition can unite and you know there could be actual progress made and you
know yeah you and I probably disagree on a bunch of issues we probably agree on a
bunch of issues but ultimately we could have a very civil conversation and ultimately we want to make sure that
Americans can find a great job we want to make sure that they've got great working conditions right we want to make
sure that people can get health care now you and I in the past may have had disagreements or agreements I I don't
know about what's the best delivery method but we all agree that people should get health care and people should
not be spending huge amounts of money because big Pharma is jacking up rates
and like like we should protect our veterans like we we should and and you and I talk about those issues issues if
you were to watch what the podcast is going on on the other side of of the war
of the country they're talking about how the Barbie movie is a communist plot and
Mr Potato had this and you know I I just think that's what's that's what's on the
line ultimately I give you the final and and those things used to be Fringe conspiracy theories and what alarms me
is my former party has mainstreamed those conspiracy theories and a vast
majority of the the base now believes them that is changing their voting behavior and it's leading to some very
dangerous things and and I'll Echo your sentiment Ben which is you and I probably have tons of policy disagreements you know and and for
listeners I'm no liberal I'm a Libertarian conservative I'm that evil guy that you think wants to make
government so small and Destroy social services and blah blah blah blah I mean it's My Views are much more Humane than
that but I'm a hardcore libertarian that doesn't matter if the American experiment itself is on the line I am
more than happy to go team up with a Bernie Sanders you know Democrat that's the antithesis of my world view if it
means protecting our country and we all need to be doing that because I would love next time I come on the podcast Ben
that that the world's better our politics are better and you and I are just getting in a scrappy debate about welfare reform or you know taxes or
something like that that's what we need to go back to but we're not in that moment because democracy is on the line so if there's one exhortation I would
make to people again I'm not making a bunch of money off this book but what I want you to do is share this with
someone who needs to read it because almost all the voices in blowback are
from Republicans and Republicans that were appointed by Trump or served under Trump painting a picture of what he or a
copycat would do back in office people need to be clear-eyed about this before they enter the voting booth uh so I hope
they spread the message well we appreciate you you're spreading the message on the Meidas touch Network
everybody gets your copy of blowback a warning to save democracy from the next
Trump I've read it hopefully all of you will read it and share in the comments your thoughts about the book share in
the comments if you are purchasing this and make sure to recommend it to a family member friend co-worker colleague
or neighbor as well Miles Taylor thanks for joining us as always Ben you're a patriot I appreciate you
thank you for everything you guys do this has been the Ben micellis from the Midas touch Network interview with Miles
Taylor have a great day everybody
Trump lashes out at Gov. Doug Ducey following certification
Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Tue Jul 25, 2023 8:56 am
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Wed Jul 26, 2023 9:56 pm
Jack Smith CORNERS Trump with New KEY PIECE of evidence
by Michael Popok
MeidasTouch
Jul 26, 2023
Michael Popok of Legal AF reports on new revelations in Special Counsel Jack Smith’s criminal investigation of Trump as he tries to crack the code and pin “criminal intent” on him w new emphasis on a February 2020 Oval Office meeting 9 months before the election where Trump bragged about how secure the vote and elections were, before claiming “voter fraud” just 6 weeks later.
Transcript
Michael popok legal AF Jack Smith and
his team continue to try to crack the
nut and split the atom and prove that
Donald Trump had Criminal Intent and
they're trying to do that by getting in
doing a craniectomy get inside the brain
of Donald Trump to figure out what he
knew when he knew it about voter
integrity and when that switch flipped
and he started to talk about fraud false
ballots ballot stuffing software that
flipped uh Trump votes to Biden and the
like and they're trying to set up that
timeline to show basically that Donald
Trump is telling a lie when he tells
people that he truly believes there was
voter fraud he still does it to this day
but the timeline the the uh knew or
should have known timeline the willful
blindness timeline because you're not
allowed under the law to stick your head
in the sand it's the ostrich Theory put
your fingers in your ears and cover your
eyes and exclude out and and force out
all facts that you that are being
presented to you that don't fit your
theory because you want to claim that
there's voter fraud when there isn't and
the more data points that Jack Smith can
put together to show that Donald Trump
is full of crap and newer should have
known that the vote was Secure and that
this big lie about steal the vote
um was nothing more than that in order
to undermine the Integrity of the voting
system and cling to power and there's a
renewed Focus or a new Focus that's
being reported by CNN of a February of
2020 Oval Office meeting involving
Donald Trump and Senior White House
officials and other agency officials
talking about voting Integrity voter
Integrity this is February right this is
several months before the November
election and according to witnesses that
have testified to Jack Smith and I'm
going to give you a list of people I
think have given that testimony they
would have been in a meeting like this
one
Donald Trump was so impressed and so
happy with the secured Integrity
information he was getting about the
election the use of paper ballots the
use of audit Trails the use of security
audits he was so happy about that that
he wanted the Department of Homeland
Security and the FBI to take to the
airwaves and give a press conference to
assure the American people
that the election was going to be fair
and that its integrity was going to be
preserved right
so what happened that's February by
April Donald Trump is taken to the
airwaves spouting off about
Venezuelan hardware and software that's
flipping hundreds of thousands of votes
for Trump to Biden and deleting hundreds
of thousands of votes for Donald Trump
so what happened did he just go crazy or
is it all a lie and he's burying his
head in the sand because he knows from
his cyber security head right Chris
Krebs to his Department of Homeland
Security had at the time Ken cuccinelli
right to his head of the FBI Chris Ray
to his then chief of staff that would
have been in the room Mark Meadows
cooperating with Jack Smith Pat
cipollone White House counsel
cooperating with Jack Smith Eric
Hershman Deputy White House counsel
cooperating with Jack Smith Cassidy
Hutchinson right-hand aide to Mark
Meadows cooperating with Jack Smith I'm
sure that a combination of those people
are cooperating with Jack Smith as he
gets to the bottom is how did the train
drum jump the tracks sorry about that I
was at Trump the tracks how did the
train jump the tracks in Donald Trump's
mind
and getting inside that men's Raya right
that Criminal Mind that Criminal Intent
how did he go in February from wanting
to blow a horn from the top of the White
House and tell everybody how his secure
how secure his elections were going to
be right the most secure and he went
from that to April
to getting on his social media talking
about hundreds of thousands you know 941
000 so precise yet so nuts deleted votes
for Trump 435
000 votes that got flipped that were for
Trump got flipped to Biden by Venezuelan
and Italian software now I know who who
promoted these crazy crackpot conspiracy
theories Sydney Powell right pillow guy
overstock.com guy or as I like to call
him overthrow.com guy these were his
advisors these were the people that were
pouring poison into his ear but he's the
criminal right you know you don't get to
say well I I followed you know Mike
Lindell pillow guy Cindy Powell she had
a law degree you know
you don't go from it's the most you know
secure protected election and you want
the FBI the DHS to go to the airwaves
and tell people that
to telling people the only reason you
lost is millions of votes for you were
taken away illegally and by and by false
means
so the Department of Justice obviously
believes they have to explain this to a
jury
and these are data points these are
pieces of the puzzle they're going to
put in front of the jury to show that
he's Faking It right he's continuing to
talk about it because he knows he can't
slip anymore he already had one slip
when he said to his director of
communications who's now a host on The
View and he said to her Alyssa Farah can
you believe I lost to this effing guy
talking about Joe Biden we haven't heard
that since because he knows that was
terrible it's true but it's terrible for
his case and his argument that you know
he's too he's too crazy and nuts and a
believer of the fraud to have committed
a crime
and this is the nut that Jack Smith
literally has to crack right
Donald Trump's the nut
and this is the way that prosecutors are
going to do it one by one focusing on
February of 2020 meetings let me just
remind everybody
that the stop the steel slogeneering
and the approach that the Republicans
would challenge the Integrity of the
election and the vote process no matter
what
predated covet in 2019-2020
if you go back in Google you will find
um Roger Stone right who learned all of
his dirty tricks working for tricky dick
Nixon
talking about stop the seats stop the
steal in 2017 and 2018 before the
election
what what election is being stolen when
you're not even in election season yet
right two years or more before the
election the drum beat of stop the
steals started
Donald Trump got in we may not like it
but he got in in 2018.
so if anybody stole the election I guess
it was Donald Trump
now come 2020 February Donald Trump's on
board with this this is going to be a
fair election we don't have a voter
Integrity problem we've never had a
voter Integrity problem let me repeat
that in the history of elections in
America our elections especially
compared to the rest of the world are so
secure
I'm not saying they're fraud free
there's no election system that's fraud
free
but so de minimis into the 0.001
percentile
of voter fraud voter fraud running
everything from double voting purposely
voting outside your Precinct voting your
dead mother-in-law's ballot in a mail-in
whatever but if you add all that up it's
literally 0.001 It's never enough to
affect the outcome of an election not
one where Joe Biden won by over 7
million popular vote
you know two thousand three thousand
votes out of a couple hundred million
cast it's not going to make a difference
right
it's like spitting into the rain
and so Donald Trump knows better he was
told better by experts in his own
administration at a group meeting in
February he went into he should have
gone into the election believing that
but that that doesn't help him that
storyline that narrative doesn't help
Donald Trump cling to power and stop the
peaceful transfer he's got to attack the
election system
so we run the timeline back and The Time
Machine back and that is what we're
watching Jack Smith do and he's getting
all the people that were in rooms like
the February 2020 White House meeting
Mark Meadows Ken cuccinelli Pat sip
alone Pat Philbin I'm sure
Mark Meadows assistant Cassidy
Hutchinson
Chris Ray the FBI and he's saying to
them let's talk about that meeting in
which Donald Trump was crowing about how
secure the elections were well what
happened eight weeks later when he
started tweeting about a million deleted
or flipped votes or went on National
Television to say this the mail ballots
they cheat okay people cheat mail
ballots are very dangerous thing for
this country because they're cheaters
they go and collect them they're
fraudulent in many cases
right just because states trying to cope
with covid came up with more
approachable uh mail-in and drop-off
ballot requirements so we could have an
election during a pandemic and people
wouldn't stay home and give up their
constitutional right to vote there is no
important constitutional right in
America if you could only have one
right if you could only have one of
what's guaranteed you by the
Constitution
you would take voting
so the voting right is first among
equals in the Bill of Rights and in the
Constitution
right and so
we have to make sure that people are
able to exercise it even in a pandemic
even in a Bubonic plague that's sweeping
America people have to vote because
that's our system of government we don't
delay things
right it's one thing to cancel a
baseball game with Saturday Night Live
because of 9 11. it's another thing to
push off the vote and the national
election and the exercise of the
preeminent voting right and right under
our constitution
this is what Jack Smith is doing this is
why we've been so patient over the last
nine months as he develops his case and
continues to try to crack that nut and
split that atom and prove Criminal
Intent by Donald Trump I'm going to
follow all of these developments as I
find out about them and I report them to
you right here in hot takes just like
this one in only one place and you knew
that it's legal AF and the Midas touch
Network on the YouTube channel
you can find me slide over to playlists
you can find the popok playlist it'll
give you all my hot takes every
Wednesday and Saturday I co-anchor legal
AF the leading podcast at the
intersection of U.S law and politics you
get it on the Meidas Touch YouTube
channel if you want to watch us do it
you want to listen to us it's everywhere
podcasts are found every platform you
can find you can follow me on all things
social media I'll keep you up to speed
and up to date at m s poke including on
threads I'm Michael popok legal AF
reporting
by Michael Popok
MeidasTouch
Jul 26, 2023
Michael Popok of Legal AF reports on new revelations in Special Counsel Jack Smith’s criminal investigation of Trump as he tries to crack the code and pin “criminal intent” on him w new emphasis on a February 2020 Oval Office meeting 9 months before the election where Trump bragged about how secure the vote and elections were, before claiming “voter fraud” just 6 weeks later.
Transcript
Michael popok legal AF Jack Smith and
his team continue to try to crack the
nut and split the atom and prove that
Donald Trump had Criminal Intent and
they're trying to do that by getting in
doing a craniectomy get inside the brain
of Donald Trump to figure out what he
knew when he knew it about voter
integrity and when that switch flipped
and he started to talk about fraud false
ballots ballot stuffing software that
flipped uh Trump votes to Biden and the
like and they're trying to set up that
timeline to show basically that Donald
Trump is telling a lie when he tells
people that he truly believes there was
voter fraud he still does it to this day
but the timeline the the uh knew or
should have known timeline the willful
blindness timeline because you're not
allowed under the law to stick your head
in the sand it's the ostrich Theory put
your fingers in your ears and cover your
eyes and exclude out and and force out
all facts that you that are being
presented to you that don't fit your
theory because you want to claim that
there's voter fraud when there isn't and
the more data points that Jack Smith can
put together to show that Donald Trump
is full of crap and newer should have
known that the vote was Secure and that
this big lie about steal the vote
um was nothing more than that in order
to undermine the Integrity of the voting
system and cling to power and there's a
renewed Focus or a new Focus that's
being reported by CNN of a February of
2020 Oval Office meeting involving
Donald Trump and Senior White House
officials and other agency officials
talking about voting Integrity voter
Integrity this is February right this is
several months before the November
election and according to witnesses that
have testified to Jack Smith and I'm
going to give you a list of people I
think have given that testimony they
would have been in a meeting like this
one
Donald Trump was so impressed and so
happy with the secured Integrity
information he was getting about the
election the use of paper ballots the
use of audit Trails the use of security
audits he was so happy about that that
he wanted the Department of Homeland
Security and the FBI to take to the
airwaves and give a press conference to
assure the American people
that the election was going to be fair
and that its integrity was going to be
preserved right
so what happened that's February by
April Donald Trump is taken to the
airwaves spouting off about
Venezuelan hardware and software that's
flipping hundreds of thousands of votes
for Trump to Biden and deleting hundreds
of thousands of votes for Donald Trump
so what happened did he just go crazy or
is it all a lie and he's burying his
head in the sand because he knows from
his cyber security head right Chris
Krebs to his Department of Homeland
Security had at the time Ken cuccinelli
right to his head of the FBI Chris Ray
to his then chief of staff that would
have been in the room Mark Meadows
cooperating with Jack Smith Pat
cipollone White House counsel
cooperating with Jack Smith Eric
Hershman Deputy White House counsel
cooperating with Jack Smith Cassidy
Hutchinson right-hand aide to Mark
Meadows cooperating with Jack Smith I'm
sure that a combination of those people
are cooperating with Jack Smith as he
gets to the bottom is how did the train
drum jump the tracks sorry about that I
was at Trump the tracks how did the
train jump the tracks in Donald Trump's
mind
and getting inside that men's Raya right
that Criminal Mind that Criminal Intent
how did he go in February from wanting
to blow a horn from the top of the White
House and tell everybody how his secure
how secure his elections were going to
be right the most secure and he went
from that to April
to getting on his social media talking
about hundreds of thousands you know 941
000 so precise yet so nuts deleted votes
for Trump 435
000 votes that got flipped that were for
Trump got flipped to Biden by Venezuelan
and Italian software now I know who who
promoted these crazy crackpot conspiracy
theories Sydney Powell right pillow guy
overstock.com guy or as I like to call
him overthrow.com guy these were his
advisors these were the people that were
pouring poison into his ear but he's the
criminal right you know you don't get to
say well I I followed you know Mike
Lindell pillow guy Cindy Powell she had
a law degree you know
you don't go from it's the most you know
secure protected election and you want
the FBI the DHS to go to the airwaves
and tell people that
to telling people the only reason you
lost is millions of votes for you were
taken away illegally and by and by false
means
so the Department of Justice obviously
believes they have to explain this to a
jury
and these are data points these are
pieces of the puzzle they're going to
put in front of the jury to show that
he's Faking It right he's continuing to
talk about it because he knows he can't
slip anymore he already had one slip
when he said to his director of
communications who's now a host on The
View and he said to her Alyssa Farah can
you believe I lost to this effing guy
talking about Joe Biden we haven't heard
that since because he knows that was
terrible it's true but it's terrible for
his case and his argument that you know
he's too he's too crazy and nuts and a
believer of the fraud to have committed
a crime
and this is the nut that Jack Smith
literally has to crack right
Donald Trump's the nut
and this is the way that prosecutors are
going to do it one by one focusing on
February of 2020 meetings let me just
remind everybody
that the stop the steel slogeneering
and the approach that the Republicans
would challenge the Integrity of the
election and the vote process no matter
what
predated covet in 2019-2020
if you go back in Google you will find
um Roger Stone right who learned all of
his dirty tricks working for tricky dick
Nixon
talking about stop the seats stop the
steal in 2017 and 2018 before the
election
what what election is being stolen when
you're not even in election season yet
right two years or more before the
election the drum beat of stop the
steals started
Donald Trump got in we may not like it
but he got in in 2018.
so if anybody stole the election I guess
it was Donald Trump
now come 2020 February Donald Trump's on
board with this this is going to be a
fair election we don't have a voter
Integrity problem we've never had a
voter Integrity problem let me repeat
that in the history of elections in
America our elections especially
compared to the rest of the world are so
secure
I'm not saying they're fraud free
there's no election system that's fraud
free
but so de minimis into the 0.001
percentile
of voter fraud voter fraud running
everything from double voting purposely
voting outside your Precinct voting your
dead mother-in-law's ballot in a mail-in
whatever but if you add all that up it's
literally 0.001 It's never enough to
affect the outcome of an election not
one where Joe Biden won by over 7
million popular vote
you know two thousand three thousand
votes out of a couple hundred million
cast it's not going to make a difference
right
it's like spitting into the rain
and so Donald Trump knows better he was
told better by experts in his own
administration at a group meeting in
February he went into he should have
gone into the election believing that
but that that doesn't help him that
storyline that narrative doesn't help
Donald Trump cling to power and stop the
peaceful transfer he's got to attack the
election system
so we run the timeline back and The Time
Machine back and that is what we're
watching Jack Smith do and he's getting
all the people that were in rooms like
the February 2020 White House meeting
Mark Meadows Ken cuccinelli Pat sip
alone Pat Philbin I'm sure
Mark Meadows assistant Cassidy
Hutchinson
Chris Ray the FBI and he's saying to
them let's talk about that meeting in
which Donald Trump was crowing about how
secure the elections were well what
happened eight weeks later when he
started tweeting about a million deleted
or flipped votes or went on National
Television to say this the mail ballots
they cheat okay people cheat mail
ballots are very dangerous thing for
this country because they're cheaters
they go and collect them they're
fraudulent in many cases
right just because states trying to cope
with covid came up with more
approachable uh mail-in and drop-off
ballot requirements so we could have an
election during a pandemic and people
wouldn't stay home and give up their
constitutional right to vote there is no
important constitutional right in
America if you could only have one
right if you could only have one of
what's guaranteed you by the
Constitution
you would take voting
so the voting right is first among
equals in the Bill of Rights and in the
Constitution
right and so
we have to make sure that people are
able to exercise it even in a pandemic
even in a Bubonic plague that's sweeping
America people have to vote because
that's our system of government we don't
delay things
right it's one thing to cancel a
baseball game with Saturday Night Live
because of 9 11. it's another thing to
push off the vote and the national
election and the exercise of the
preeminent voting right and right under
our constitution
this is what Jack Smith is doing this is
why we've been so patient over the last
nine months as he develops his case and
continues to try to crack that nut and
split that atom and prove Criminal
Intent by Donald Trump I'm going to
follow all of these developments as I
find out about them and I report them to
you right here in hot takes just like
this one in only one place and you knew
that it's legal AF and the Midas touch
Network on the YouTube channel
you can find me slide over to playlists
you can find the popok playlist it'll
give you all my hot takes every
Wednesday and Saturday I co-anchor legal
AF the leading podcast at the
intersection of U.S law and politics you
get it on the Meidas Touch YouTube
channel if you want to watch us do it
you want to listen to us it's everywhere
podcasts are found every platform you
can find you can follow me on all things
social media I'll keep you up to speed
and up to date at m s poke including on
threads I'm Michael popok legal AF
reporting
- admin
- Site Admin
- Posts: 37523
- Joined: Thu Aug 01, 2013 5:21 am
Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Thu Jul 27, 2023 12:52 am
Part 1 of 2
Memorandum Opinion [Denying Defendant Chansley's § 2255 motion to vacate, set aside, or correct his guilty plea and corresponding sentence]
USA v. Jacob Anthony Chansley, Case No. 1:21-cr-3 (RCL)
by Royce C. Lamberth, United States District Judge
July 20, 2023
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
JACOB ANTHONY CHANSLEY,
Defendant.
Case No. 1:21-cr-3 (RCL)
MEMORANDUM OPINION
Defendant Jacob Anthony Chansley, who was the face of the riot at the United States Capitol on January 6, 2021, is now the face challenging the prosecutions of the criminal conduct that occurred that day. Citing what he calls "newly discovered" evidence, Mr. Chansley moves to vacate, set aside, or correct his guilty plea and corresponding sentence under 28 U.S.C. § 2255. The government opposes and urges the Court to summarily deny Mr. Chansley's motion.
Upon consideration of Mr. Chansley's motion, the government's opposition, the record therein, and the applicable law, the Court will DENY Mr. Chansley's § 2255 motion.
I. BACKGROUND
A. Mr. Chansley's Involvement in the Events of January 6, 2021 and Indictment
On January 6, 2021, at approximately 1:00 pm, the Senate and House of Representatives assembled in a joint session at the U.S. Capitol building to count electoral votes cast in the 2020 presidential election. Statement of Offense, ECF No. 70, ¶ 3. Then-Vice President Michael R. Pence was present and presiding over the joint session. Id. At approximately 1 :30 pm, the Senate and House adjourned to their respective chambers to resolve an objection to the certification. Id. Vice President Pence adjourned with the Senate and presided over that proceeding. Id. Meanwhile, a large crowd of rioters gathered outside of the building, assembled behind barricades in front of the police line at the West front of the Capitol. Id. ¶¶ 4, 5.
At approximately 1:50 pm, Mr. Chansley scaled a media tower constructed in preparation for the presidential inauguration. Id. ¶ 5. That day, Mr. Chansley was shirtless, wearing a homed and fur-lined hat, and red, white, and blue face paint. Id. He carried a six-foot-long pole with an American flag zip-tied to it and a spearhead affixed to the top, as well as a bullhorn. Id.; United States v. Chansley, 525 F. Supp. 3d 151, 155 (D.D.C. 2021). Approximately ten minutes later, Mr. Chansley and the other rioters breached the barricades and advanced to the Capitol's West front. Statement of Offense ¶¶ 6, 7. At approximately 2:13 pm, rioters forced open the Senate Wing Door, which set off a loud alarm. Id. ¶ 9. One minute later, Mr. Chansley entered the Capitol through the broken door, becoming one of the first thirty rioters to do so. Id. ¶ 10.
At approximately 2:16 pm, two minutes after entering the Capitol, Mr. Chansley and other rioters charged upstairs to the second floor of the Senate side of the Capitol building. Id. ¶ 11. On the second floor, Mr. Chansley encountered several U.S. Capitol police officers, including Officer Keith Robishaw. Chansley, 525 F. Supp. 3d at 155. Officer Robishaw instructed Mr. Chansley and his fellow rioters to leave the building. Statement of Offense ¶ 11. Most of the other rioters complied, but Mr. Chansley refused. Id. Instead, he used his bullhorn to demand that the lawmakers be brought out to face the crowd. Id. At 2:20 pm, the members of the Senate and House, including the Vice President, evacuated their chambers and all certification proceedings were suspended. Id. ¶ 10. During this time, Mr. Chansley ascended another staircase, arriving on the third floor of the Senate side of the Capitol building. Id. ¶ 12.
At approximately 2:52 pm, Mr. Chansley entered the Senate gallery alone. Id. While standing in the gallery, Mr. Chansley shouted obscenities. Id. After that, Mr. Chansley exited the gallery and descended a staircase, where he again met Officer Robishaw. Id. ¶ 13. Officer Robishaw again instructed Mr. Chansley to leave the building, but Mr. Chansley again refused. Id. Instead, Mr. Chansley said that he planned to join rioters who were on the Senate floor. Id.
Mr. Chansley then entered the Senate chamber, followed by Officer Robishaw. Id. Once inside the Senate chamber, he climbed onto the Senate dais and sat in the Vice President's chair, taking pictures of himself as he did so. Id. ¶ 14. Officer Robishaw asked Mr. Chansley to vacate the seat, but Mr. Chansley refused. Id. Instead, he stated, "Mike Pence is a fucking traitor." Id. Mr. Chansley then grabbed paper left on the dais and wrote the following note to the Vice President: "It's Only A Matter of Time. Justice Is Coming!" Id.; Chansley, 525 F. Supp. 3d at 155. Mr. Chansley repeated the same message verbally to a reporter from The New Yorker who was filming the events in the Senate chamber at the time. Chansley, 525 F. Supp. 3d at 155. Officer Robishaw asked that Mr. Chansley vacate the seat and assist him by using his bullhorn to convince his fellow rioters to leave the Senate chamber, but Mr. Chansley refused. Statement of Offense ¶ 15. Instead, Mr. Chansley used his bullhorn to lead his fellow rioters in the following "prayer": "Thank you for allowing the United States of America to be reborn. Thank you for allowing us to get rid of the communists, the globalists, and the traitors within our government." Id.; Chansley, 525 F. Supp. 3d at 155. At that time, there were approximately 20 rioters in the Senate Chamber. Sent'g Hr'g Tr., ECF No. 111, at 7:7-12. Officer Robishaw was the only law enforcement officer present. Statement of Offense ¶ 14. At approximately 3 :09 pm, additional law enforcement officers arrived in the Senate chamber. Id. ¶ 16. The officers then cleared Mr. Chansley and the other rioters from the chamber. Id.
Several media outlets interviewed Mr. Chansley in the hours and days after he left the Capitol. Id. ¶ 18. In an interview on January 7, 2021, Mr. Chansley stated: "The fact that we had a bunch of our traitors in office hunker down, put on their gas masks and retreat into their underground bunker, I consider that a win." Id.; Chansley, 525 F. Supp. 3d at 156.
On January 8, 2021-just two days after the riot-the government filed a sealed criminal complaint against Mr. Chansley, alleging that his actions on January 6 violated various federal laws. See ECF No. 1. Three days later, on January 11, 2021, a grand jury returned an indictment against Mr. Chansley, making him the first Capitol rioter to be indicted in connection with the events of January 6. Indictment, ECF No. 3; Sent'g Hr'g Tr. at 3:22-24. The indictment charged him with six counts: civil disorder in violation of 18 U.S.C. § 23 l(a)(3) (Count One); obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2) (Count Two); entering and remaining in a restricted building in violation of 18 U.S.C. § 1752(a)(l) (Count Three); disorderly and disruptive conduct in a restricted building in violation of18 U.S.C. § 1752(a)(2) (Count Four); violent entry and disorderly conduct in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(A) (Count Five); and parading, demonstrating, or picketing in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(G) (Count Six). See Indictment.
On the same day as his indictment, Mr. Chansley was arrested and appeared before U.S. Magistrate Judge Deborah M. Fine in the District of Arizona. Chansley, 525 F. Supp. 3d at 156. The government moved for, and Magistrate Judge Fine ordered, Mr. Chansley' s pre-trial detention. Id. at 156-57; United States v. Chansley, 2:21-mj-5000 (DMF), ECF Nos. 5, 10 (D. Ariz. Jan. 19, 2021). Magistrate Judge Fine then ordered Mr. Chansley to be committed to this District. Chansley, 2:21-mj-5000 (DMF), ECF No. 11 (D. Ariz. Jan. 19, 2021). Mr. Chansley was arraigned by the undersigned in late January 2021. Minute Entry (01/29/2021). He was then represented by Mr. Albert Watkins ("plea counsel"). Id.
B. Video Evidence and Discovery Process
Mr. Chansley, through plea counsel, moved in this Court for pre-trial release and the Court held a hearing on the motion on March 5, 2021. Minute Entry (03/05/2021); ECF No. 12. At the hearing, plea counsel made several representations regarding the video evidence in this case: that "there's miles and miles and miles of footage of my client from January 6th[,]" ECF No. 28, at 7:5--6; that he "provided the Court with the video footage that we were able to gamer through an independent investigative undertaking" in conjunction with a "former FBI special agent[,]" id. at 7:13-15; and "[t]here's a lot of footage of my client interacting peacefully, chatting with and supporting law enforcement who were similarly positioned in [the Senate] part of the Capitol[,]" id. at 10:2-4. Considering this evidence, in conjunction with the other evidence of Mr. Chansley's actions that day, the Court denied Mr. Chansley's motion. Chansley, 525 F. Supp. 3d at 172.
The case then proceeded. As part of the discovery process, the government filed in March and April 2021 motions for a protective order and for an order to disclose certain sealed and protected materials with defense counsel. Gov't Opp'n, ECF No. 123, at 2; ECF Nos. 21 & 36. The Court granted both motions within days of their filing. ECF Nos. 24 & 37.
On May 20, 2021, the government provided its first notice of discovery with the Court.1 ECF No. 38. That notice contained a letter to plea counsel, dated the same date, recounting the various discovery productions made to counsel between January and mid-May 2021. ECF No. 38- 1. Of relevance here, the letter listed the following productions:
Gov't Opp'n at 2 (referencing ECF No. 38-1 at 2). On September 17, 2021, the government provided two updates on the status of discovery. ECF Nos. 75 & 76. In the first update, describing the status of discovery as of August 23, 2021, the government expressly acknowledged the following: "Defense counsel in Capitol Breach cases have made requests including any and all information that captures an individual defendant's conduct or statements; shows people "peacefully walking around the Capitol"; or suggests that a member (or members) of law enforcement allowed people to enter or remain in the Capitol or on restricted grounds, acted friendly or sympathetic to the rioters, or otherwise failed to do their jobs." ECF No. 75 at 2 (emphasis added). In response, the government noted "there may be additional types of information a defendant may consider material or exculpatory" but that "since the government does not know the defense theory in any particular case, it is impossible to [sic] for the government to determine what other types of information a defendant may believe to be material." Id. The government added: "To the extent the type of information described above may exist, it may be interspersed among the voluminous sets of data." Id.
The government informed plea counsel of its proposed solution to this discovery conundrum. The government described how it was working with the Federal Public Defender ("FPD") for the District of Columbia to upload discovery materials to electronic databases. Id. at 3. Specifically, the government noted that it had already begun populating one database, named Relativity, with documentary discovery. Id. at 5. Further, due to processing and usability limitations associated with Relativity, the government explained that it was in the final stages of contracting to facilitate, in close consultation with FPD, production of video discovery via a different database, named Evidence.com. Id. at 7.
In the second discovery update of September 17, 2021, describing the status of discovery as of September 14, 2021, the government confirmed that the Evidence.com contracting process was complete and that the database was operational. ECF No. 76 at 2-3. The government further reported that it was in the process of populating Evidence.com with approximately 2,300 hours of footage captured by law enforcement body-worn cameras. Id. at 3. Specifically, the government stated that it "expect[ed] to produce [such footage] no later than the end of next week (Friday, September 24, 2021)." Id. (emphasis added).
On October 25, 2021, the government provided its fourth update regarding the status of discovery, current as of October 21, 2021. ECF No. 78. The update reported, in relevant part, that the following evidence had been made available on Evidence.com: (1) 16,925 closed circuit television ("CCTV") video files, containing approximately 4,800 hours of footage, recorded by 515 cameras located throughout the Capitol; (2) 15 maps indicating the location of cameras in the Capitol Visitor Center and interior of the Capitol; and (3) 1,676 files from body-worn cameras belonging to Metropolitan Police Department ("MPD") officers, containing approximately 1,600 hours of footage. Id. at 2. The government later represented that these materials were made available to defense counsel through Evidence.com on October 22, 2021. Def.'s Mot., ECF No. 117, at 12; Gov't Opp'n at 16. Separately, the government provided defense counsel with information about the location of the files within the database, their naming conventions, and the videos' timestamps. Gov't Opp'n at 17. Additionally, the government noted in the October 25, 2021 update that the FPD, who was coordinating access to Evidence.com on behalf of defendants charged with crimes related to January 6, 2021, had sent emails to all defense counsel with information on how to request a license to access the database. ECF No. 78 at 2. The FPD had also developed and shared a guide for defense attorneys on how to use Evidence.com and share discovery with their clients. Id. Mr. Chansley's plea counsel received the FPD's notification on October 15, 2021. Def.'s Reply at 6-7.
On November 5, 2021, the government provided its fifth update regarding the status of discovery, current as of that date. ECF No. 79. The government noted that, since the last status update, the government had populated Evidence.com with additional video footage. Id. at 2. In relevant part, the government stated that it shared an additional 4,204 CCTV video files recorded by 123 cameras, some of which were located in the Capitol's interior. Id.
C. Mr. Chansley's Guilty Plea and Sentencing
On September 3, 2021, Mr. Chansley pleaded guilty to Count Two, obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2), in exchange for the government's dismissal of the five other charges then-pending against him. See Minute Entry (09/03/2021). Mr. Chansley, in consultation with plea counsel, executed and signed a written plea agreement with the government. Plea Agreement, ECF No. 69. In the plea agreement, Mr. Chansley agreed that he was pleading guilty to Count Two because he was "in fact guilty." Id. at 10. In so doing, Mr. Chansley averred that the Statement of the Offense "fairly and accurately describe[d] [his] actions and involvement" in the offense. Id. ,i II. Mr. Chansley also agreed that he had "read every page of [the] Agreement," "discussed it with [his] attorney," and "fully underst[ood the] Agreement and agree[ d] to it without reservation." Id. at 10. In the plea agreement, Mr. Chansley attested that he was "satisfied with the legal services provided by [his] attorney in connection with [the] Agreement and the matters related to it." Id. at 10. Mr. Chansley reiterated his satisfaction with plea counsel to this Court during the plea hearing. See Plea Hr'g Tr., ECF No. 110, at 7:9-15; 9:22-25.
The plea agreement contained-and Mr. Chansley assented to-several express waivers. Specifically, Mr. Chansley agreed to waive his right to directly appeal his sentence, except for his rights to appeal a sentence imposed beyond the statutory maximum or U.S. Sentencing Guidelines range, and to appeal based on ineffective assistance of counsel. Plea Agreement ¶ IX(D). Furthermore, Mr. Chansley agreed to waive "any right to challenge the conviction entered or sentence imposed" through a motion brought under 28 U.S.C. § 2255, unless "such a motion is based on newly discovered evidence or on a claim that [Mr. Chansley] received ineffective assistance of counsel." Id. ¶ IX(E).
Finally, Mr. Chansley agreed to several provisions regarding sentencing. As relevant here, Mr. Chansley agreed that his sentence would be "determined by the Court, pursuant to the factors sector forth in 18 U.S.C. § 3553(a), including a consideration of the Sentencing Guidelines[,]" id. ¶ IV, and that he understood "that the sentence to be imposed is a matter solely within the discretion of the Court." Id. ¶ VII. He further agreed to the government's estimated offense level calculations under the Guidelines. Id. ¶ IV(C). Specifically, he agreed that the estimated offense level for Count Two was 25, representing the base offense level (14) plus enhancements for property damage (8) and substantial interference (3). Id. ¶ IV(A). The estimated Count Two offense level of 25, minus reductions for acceptance of responsibility (2) and assistance to authorities (1 ), rendered an estimated total offense level of 22. Id. Accordingly, Mr. Chansley agreed that, considering an estimated total offense level of 22 and criminal history category of I, id. ¶ IV(B), the estimated Sentencing Guidelines range in his case was 41 to 51 months' incarceration. Id. ¶ IV(C). He further concurred with the government's estimated monetary penalties, including a fine range of $15,000 to $150,000, id., a special assessment of $100 for his felony conviction, id. ¶¶ I, IV(C), and restitution in the amount of $2,000, id. ¶ XI. Finally, he agreed that his conviction carried a maximum supervised-release term of three years. Id. ¶ I.
On November 17, 2021, after the government's five updates regarding the status of discovery, this Court sentenced Mr. Chansley. See Minute Entry (11/17/2021). In calculating the applicable sentence, the Court agreed with the Guidelines calculations as outlined by the parties in the plea agreement and calculated a total offense level of 22. Sent'g Hr'g Tr. at 2:25-3:7. When it came time for plea counsel's presentation, he appreciated the seriousness of the events of January 6, 2021, id. at 14 :9-11, and acknowledged the overwhelming evidence in this case: "I've provided you with videos. I've provided the government with videos. The government's given me videos. The government's given you videos that I've given her. This isn't a drive-in movie theater. You don't need to see more video." Id. at 16:18-21. Plea counsel went on to focus on Mr. Chansley's acceptance of responsibility, which he previewed by saying, "Jake presents with having apologized without equivocation. No buts, no blames, I did it, I want to be accountable, I want to be held accountable." Id. at 27:15-17.
Mr. Chansley then spoke to the Court, accepting responsibility for his actions and expressing remorse. See, e.g., id. at 32:23-33:4 ("So I had to come to terms with the fact that I was in solitary confinement because of me, because of my decision. I broke the law, and if I believe in freedom, if I believe in law and order, if I believe in responsibility and accountability, then that means that I should do what Gandhi would do and take responsibility even and especially when it incriminates me. No ifs, ands, or buts about it. That's what men of honor do."); id. at 34:25-35:5 ("I am truly, truly repentant for my actions, because repentance is not just saying you're sorry. Repentance is apologizing and then moving in the exact opposite direction of the sin that you committed. And that's what I've been trying to do ever since I realized the magnitude of my error and the magnitude of my mistake."). Mr. Chansley unequivocally stated: "[I]n retrospect, I would do everything differently on January 6. In all honesty, I would do everything differently." Id. at 35:16-18. The Court heavily credited Mr. Chansley's apparent remorse and acceptance of responsibility. See id. at 48:21-22 ("[Y]ou have evolved in your thinking clearly and reversed your thinking in many ways"); id. at 49:3-5 ("You've certainly done everything you could today to convince the Court that you're anew person, and I think you're on the right track"); id. at 55:23- 56:2 ("[Y]ou were smart. It may not feel it today, but let me guarantee you, you were smart. You did the right thing. And you owned up to it today in a fashion that is unusual for me to see, the candor with which you approached me today. I appreciate it.").
The Court then sentenced Mr. Chansley to 41 months' incarceration as to Count Two, the bottom of the Guidelines range, with credit for time served. See J., ECF No. 92, at 2. In explaining the sentence, the Court stated: "[W]hat you did here was horrific, as you now concede, and obstructing the functioning of the government as you did is the type of conduct that is so serious that I cannot justify a downward departure [ from the Sentencing Guidelines range of 41 to 51 months]." Sent'g Hr'g Tr. at 48:22-25. Even considering the seriousness of the offense, the Court credited Mr. Chansley's remorse and acceptance of responsibility to sentence Mr. Chansley consistent with the bottom of the applicable Guidelines range. See id. 49:1-3 ("I do think that the minimum under the guidelines is something you've earned because you've done everything right from the time that you started in the other direction."). The Court also sentenced Mr. Chansley to three years of supervised release, a special assessment of$ 100, and $2,000 in restitution. 2 See J. at 3, 6. Approximately two weeks after sentencing, Mr. Chansley's current counsel, Mr. William Shipley ("post-conviction counsel") appeared to represent Mr. Chansley, ECF No. 101, and the Court granted plea counsel's motion to withdraw. Minute Entry (11/29/2021).
In late March 2023, Mr. Chansley was released from custody after having completed his term of incarceration, accounting for his time previously served and good-time credit. 3
D. Post-Sentencing Events Related to Mr. Chansley's Case
On March 6, 2023, then-television host Tucker Carlson aired footage from January 6, 2021 on his eponymous show.4 The host claimed that certain videos recorded on January 6 had been withheld from the public and that such videos demonstrated that the Capitol rioters were merely "sightseers." That segment prominently featured Mr. Chansley. All of the footage of Mr. Chansley aired on the program was recorded on CCTV cameras positioned inside the Capitol building between the times of 2:49 pm and 2:59 pm, except for one CCTV clip recorded at 2: 13 pm. Gov't Opp'n at 9-10. Mr. Chansley arrived at the Capitol more than one hour prior to this period and stayed for some time afterward. Statement of Offense ¶¶ 4, 5, 16. The footage, in relevant part, showed Mr. Chansley traversing hallways in the Senate side of the Capitol, sometimes followed by and sometimes following law enforcement officers who did not visibly impede Mr. Chansley' s movements. The footage did not include any audio recordings. The host claimed that the videos undermined the legitimacy of the government's prosecution against Mr. Chansley. Two days later, plea counsel stated on the same television program that he had not seen the videos at any point during his representation of Mr. Chansley.5
On March 9, 2023, Dominic Pezzola, who at the time was on trial for his own felonious conduct on January 6, 2021, moved to dismiss his indictment based on the government's failure to disclose the footage aired on March 6, which Pezzola claimed was "exculpatory" for himself and Mr. Chansley.6 See United States v. Pezzola, 21-cr-175-6 (TJK), ECF No. 679. On March 12, 2023, the government opposed, claiming that the footage of Pezzola and Mr. Chansley aired during the broadcast was neither withheld from the defense nor exculpatory. Pezzola, ECF No. 689, at 2. Specifically, the government asserted that all of the footage aired on the broadcast, save for one 10-second clip, was produced to defense counsel via the Evidence.com database by September 24, 2021, and that the remaining clip was produced on January 23, 2023. Id. at 3. Based on these representations, along with a consideration of the applicable law, Judge Timothy J. Kelly denied the motion because "Pezzola ha[ d] not shown that the video footage tends to show his innocence" "[n]or ha[d] the evidence been suppressed." Mem. Order, Pezzola, ECF No. 755, at 3.
On March 17, 2023, Mr. Chansley's post-conviction counsel contacted the government via letter asking specific questions about when the CCTV videos appearing in the March 6, 2023 segment were produced. Def.'s Mot. at 11; Gov't Opp'n at 9. The government responded on March 27, 2023, explaining that all of the clips appearing in the broadcast, except for the 10-second clip, were produced on October 22, 2021, and that the remaining clip was produced on February 21, 2023. Def.'s Mot. at 12; Gov't Opp'n at 9-10.
The Court summarizes the videos aired on March 6, 2023 as the following:
See Def's Mot. at 12; Gov't Opp'n at 9-10.
In April 2023, Mr. Chansley, through counsel, moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, claiming newly discovered evidence and ineffective assistance of his plea counsel. Def. 's Mot. at 2--4. Specifically, he claims that conduct by both the government and his plea counsel with respect to the videos aired during the March 6 broadcast rendered both his plea agreement and resulting sentence unconstitutional. Id. First, Mr. Chansley asserts that the videos were both exculpatory and withheld from the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that, had the videos been disclosed to the defense prior to sentencing, plea counsel would have used the videos' contents to argue for, and that this Court would have imposed, a lower sentence than the one Mr. Chansley received. Id. at 16-1 7. Second, he claims that plea counsel was unconstitutionally ineffective because counsel did not seek production of the videos from the government and because counsel recommended that Mr. Chansley accept the plea agreement containing a sentencing-enhancement stipulation and waiving appeal rights without this evidence. Id. at 17-21. Relatedly, he insists that further discovery into the video-disclosure issue is required, particularly due to government's conflicting statements regarding the dates of production as stated in filings in this and the Pezzola case. Id. at 21-22.
In June 2023, the government opposed, insisting that Mr. Chansley has not met his burden to establish that he is entitled to collateral relief because he either waived his claims or they are meritless. Gov't Opp'n at 1. Mr. Chansley submitted a brief reply. Def.'s Reply, ECF No. 126. Mr. Chansley's motion is now ripe for review.
II. LEGAL STANDARDS
A. 28 U.S.C. § 2255
A prisoner may move to vacate, set aside, or correct his sentence if (1) the sentence was imposed "in violation of the Constitution or laws of the United States"; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence "was in excess of the maximum authorized by law"; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The petitioner bears the burden to prove his right to relief by a preponderance of the evidence. United States v. Baugham, 941 F. Supp. 2d 109, 112 (D.D.C. 2012). A court need not hold an evidentiary hearing when "the motion and the files and records of the case conclusively show the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
B. Government's Discovery Obligations
The government has a constitutional obligation, as recognized in Brady and its progeny, to disclose "evidence in its possession that is favorable to the accused and material either to a defendant's guilt or punishment." United States v. Trie, 21 F. Supp. 2d 7, 23 (D.D.C. 1998). Favorable evidence "tends to help the defense by either bolstering the defense case or impeaching potential prosecution witnesses." United States v. Sa/avian, 233 F.R.D. 12, 16 (D.D.C. 2005); see also Brady, 373 U.S. at 87; Giglio v. United States, 405 U.S. 150, 153-55 (1972). To prevail on a Brady claim, the defendant must show prejudice; in other words, '" a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."' United States v. Sitzmann, 893 F.3d 811, 826 (D.C. Cir. 2018) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). "A court should evaluate prejudice under Brady based on the suppressed evidence as a whole rather than an 'item by item' basis." United States v. Martin, No. 98-cr-329 (RCL), 2021 WL 4989983, at *4 (D.D.C. Oct. 27, 2021) (quoting Kyles v. Whitley, 514 U.S. 419,420 (1995)). Importantly, "[f]or an item to be Brady, it must be something that is being 'suppress[ed] by the prosecution."' United States v. Blackley, 986 F. Supp. 600,603 (D.D.C. 1997) (quoting Brady, 373 U.S. at 87).
C. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a petitioner "must prove both incompetence and prejudice." Kimme/man v. Morrison, 477 U.S. 365, 381 (1986). Specifically, the petitioner must demonstrate that (1) "counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). That sets a high bar, as a court's evaluation of counsel's actions "must be highly deferential," and is assessed under the circumstances present at the time of representation without the benefit of hindsight. Id. at 689. Furthermore, a "reasonable probability" under Strickland's second prong is one that is "sufficient to undermine confidence in the outcome." Id. at 694. To establish prejudice, the petitioner must show there is "a substantial, not just conceivable, likelihood of a different result." Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (internal quotations and modifications omitted). An ineffective assistance of counsel claim is defeated if the defendant fails to demonstrate either prong. Strickland, 466 U.S. at 700.
III. DISCUSSION
Mr. Chansley' s motion concocts a Brady claim, and a derivative ineffective assistance of counsel claim, based on videos aired devoid of context and supposedly inconsistent disclosure dates provided by government counsel in two separate cases. These videos are decidedly not exculpatory, especially when viewed in context with the "miles and miles and miles of footage" recorded of Mr. Chansley on January 6, 2021. ECF No. 28, at 7:5--6. Such footage, conveniently omitted by the March 6, 2023 program, shows nearly all of Mr. Chansley's actions that day, including: carrying a six-foot-long pole armed with a spearhead, unlawfully entering the Capitol through a broken door, disobeying orders from law enforcement on more than a half-dozen occasions, screaming obscenities, entering the Senate chamber, climbing onto the Senate dais, sitting in the Vice President's chair, and leaving a threatening message for the Vice President. Moreover, the precise date that the particular videos appearing in the program were disclosed is immaterial because Mr. Chansley and plea counsel were aware of the videos' content -- Mr. Chansley interacting with law enforcement officers who did not visibly impede his progress -- by May 20, 2021. In other words, Mr. Chansley possessed the facts in the videos well in advance of his plea agreement, yet still determined, quite sensibly, to accept responsibility for his role in the criminal events of January 6, 2021. What is more, the record shows that the government disclosed virtually all of the videos at issue weeks before Mr. Chansley' s sentencing. These facts and the underlying law conclusively demonstrate that Mr. Chansley is not entitled to relief under § 2255.
A. Mr. Chansley's Claims Are Timely, Not Waived, and Not Moot
As a threshold matter, Mr. Chansley claims are not time-barred. Under the Anti-Terrorism and Effective Death Penalty Act, a defendant must bring any § 2255 claims within one year of "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(£)(4). Mr. Chansley's claims rely on facts, namely alleged discrepancies in the dates and circumstances surrounding discovery in his case, discovered in March 2023. Because Mr. Chansley filed his motion within one year after these events, his motion is timely.
Nevertheless, the government insists that Mr. Chansley's Brady claim is procedurally barred because he waived this claim through his plea agreement. 10 Gov't Opp'n at 14-16. Mr. Chansley agreed to waive a collateral challenge to his conviction unless the motion was based on "newly discovered evidence." Mr. Chansley responds that his claim is not waived because neither he nor his plea counsel were aware of the specific evidence (the videos broadcast on March 6, 2023), even if they may have been aware of the facts contained in the evidence. Def.'s Reply at 2-3. The Court is mindful of the government's view that the "concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas." Gov't Opp'n at 15 (quoting Bousley v. United States, 523 U.S. 614, 621 (1998)). At the same time, this Court "will not bar the door" to Mr. Chansley's collateral attack when "his waiver only arguably or ambiguously forecloses his claims." United States v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016). Because it is not clear that Mr. Chansley's plea agreement unambiguously waived his right to bring his claim, and because the government admits that one 10-second video appearing in the March 6, 2023 was not disclosed prior to Mr. Chansley's plea and sentencing, the Court concludes that Mr. Chansley did not waive his Brady claim.
Additionally, although not raised by either party, the Court notes that Mr. Chansley's claims are not moot even though he ended his period of incarceration prior to filing his motion. In addition to a prison term, the Court sentenced Mr. Chansley to supervised release, a special assessment, and restitution. He may still pursue relief from the remaining aspects of his sentence under§ 2255. See United States v. Mejia, No. 10-cr-256-03 (RCL), _ F. Supp._, 2023 WL 2297465, at *2 (D.D.C. Feb. 23, 2023) (citing United States v. Mejia, No. 20-3086, 2022 WL 4280686, at *1 (D.C. Cir. Sept. 14, 2022)).
The Court will therefore proceed to the merits of Mr. Chansley' s claims.
Memorandum Opinion [Denying Defendant Chansley's § 2255 motion to vacate, set aside, or correct his guilty plea and corresponding sentence]
USA v. Jacob Anthony Chansley, Case No. 1:21-cr-3 (RCL)
by Royce C. Lamberth, United States District Judge
July 20, 2023
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
JACOB ANTHONY CHANSLEY,
Defendant.
Case No. 1:21-cr-3 (RCL)
MEMORANDUM OPINION
Defendant Jacob Anthony Chansley, who was the face of the riot at the United States Capitol on January 6, 2021, is now the face challenging the prosecutions of the criminal conduct that occurred that day. Citing what he calls "newly discovered" evidence, Mr. Chansley moves to vacate, set aside, or correct his guilty plea and corresponding sentence under 28 U.S.C. § 2255. The government opposes and urges the Court to summarily deny Mr. Chansley's motion.
Upon consideration of Mr. Chansley's motion, the government's opposition, the record therein, and the applicable law, the Court will DENY Mr. Chansley's § 2255 motion.
I. BACKGROUND
A. Mr. Chansley's Involvement in the Events of January 6, 2021 and Indictment
On January 6, 2021, at approximately 1:00 pm, the Senate and House of Representatives assembled in a joint session at the U.S. Capitol building to count electoral votes cast in the 2020 presidential election. Statement of Offense, ECF No. 70, ¶ 3. Then-Vice President Michael R. Pence was present and presiding over the joint session. Id. At approximately 1 :30 pm, the Senate and House adjourned to their respective chambers to resolve an objection to the certification. Id. Vice President Pence adjourned with the Senate and presided over that proceeding. Id. Meanwhile, a large crowd of rioters gathered outside of the building, assembled behind barricades in front of the police line at the West front of the Capitol. Id. ¶¶ 4, 5.
At approximately 1:50 pm, Mr. Chansley scaled a media tower constructed in preparation for the presidential inauguration. Id. ¶ 5. That day, Mr. Chansley was shirtless, wearing a homed and fur-lined hat, and red, white, and blue face paint. Id. He carried a six-foot-long pole with an American flag zip-tied to it and a spearhead affixed to the top, as well as a bullhorn. Id.; United States v. Chansley, 525 F. Supp. 3d 151, 155 (D.D.C. 2021). Approximately ten minutes later, Mr. Chansley and the other rioters breached the barricades and advanced to the Capitol's West front. Statement of Offense ¶¶ 6, 7. At approximately 2:13 pm, rioters forced open the Senate Wing Door, which set off a loud alarm. Id. ¶ 9. One minute later, Mr. Chansley entered the Capitol through the broken door, becoming one of the first thirty rioters to do so. Id. ¶ 10.
At approximately 2:16 pm, two minutes after entering the Capitol, Mr. Chansley and other rioters charged upstairs to the second floor of the Senate side of the Capitol building. Id. ¶ 11. On the second floor, Mr. Chansley encountered several U.S. Capitol police officers, including Officer Keith Robishaw. Chansley, 525 F. Supp. 3d at 155. Officer Robishaw instructed Mr. Chansley and his fellow rioters to leave the building. Statement of Offense ¶ 11. Most of the other rioters complied, but Mr. Chansley refused. Id. Instead, he used his bullhorn to demand that the lawmakers be brought out to face the crowd. Id. At 2:20 pm, the members of the Senate and House, including the Vice President, evacuated their chambers and all certification proceedings were suspended. Id. ¶ 10. During this time, Mr. Chansley ascended another staircase, arriving on the third floor of the Senate side of the Capitol building. Id. ¶ 12.
At approximately 2:52 pm, Mr. Chansley entered the Senate gallery alone. Id. While standing in the gallery, Mr. Chansley shouted obscenities. Id. After that, Mr. Chansley exited the gallery and descended a staircase, where he again met Officer Robishaw. Id. ¶ 13. Officer Robishaw again instructed Mr. Chansley to leave the building, but Mr. Chansley again refused. Id. Instead, Mr. Chansley said that he planned to join rioters who were on the Senate floor. Id.
Mr. Chansley then entered the Senate chamber, followed by Officer Robishaw. Id. Once inside the Senate chamber, he climbed onto the Senate dais and sat in the Vice President's chair, taking pictures of himself as he did so. Id. ¶ 14. Officer Robishaw asked Mr. Chansley to vacate the seat, but Mr. Chansley refused. Id. Instead, he stated, "Mike Pence is a fucking traitor." Id. Mr. Chansley then grabbed paper left on the dais and wrote the following note to the Vice President: "It's Only A Matter of Time. Justice Is Coming!" Id.; Chansley, 525 F. Supp. 3d at 155. Mr. Chansley repeated the same message verbally to a reporter from The New Yorker who was filming the events in the Senate chamber at the time. Chansley, 525 F. Supp. 3d at 155. Officer Robishaw asked that Mr. Chansley vacate the seat and assist him by using his bullhorn to convince his fellow rioters to leave the Senate chamber, but Mr. Chansley refused. Statement of Offense ¶ 15. Instead, Mr. Chansley used his bullhorn to lead his fellow rioters in the following "prayer": "Thank you for allowing the United States of America to be reborn. Thank you for allowing us to get rid of the communists, the globalists, and the traitors within our government." Id.; Chansley, 525 F. Supp. 3d at 155. At that time, there were approximately 20 rioters in the Senate Chamber. Sent'g Hr'g Tr., ECF No. 111, at 7:7-12. Officer Robishaw was the only law enforcement officer present. Statement of Offense ¶ 14. At approximately 3 :09 pm, additional law enforcement officers arrived in the Senate chamber. Id. ¶ 16. The officers then cleared Mr. Chansley and the other rioters from the chamber. Id.
Several media outlets interviewed Mr. Chansley in the hours and days after he left the Capitol. Id. ¶ 18. In an interview on January 7, 2021, Mr. Chansley stated: "The fact that we had a bunch of our traitors in office hunker down, put on their gas masks and retreat into their underground bunker, I consider that a win." Id.; Chansley, 525 F. Supp. 3d at 156.
On January 8, 2021-just two days after the riot-the government filed a sealed criminal complaint against Mr. Chansley, alleging that his actions on January 6 violated various federal laws. See ECF No. 1. Three days later, on January 11, 2021, a grand jury returned an indictment against Mr. Chansley, making him the first Capitol rioter to be indicted in connection with the events of January 6. Indictment, ECF No. 3; Sent'g Hr'g Tr. at 3:22-24. The indictment charged him with six counts: civil disorder in violation of 18 U.S.C. § 23 l(a)(3) (Count One); obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2) (Count Two); entering and remaining in a restricted building in violation of 18 U.S.C. § 1752(a)(l) (Count Three); disorderly and disruptive conduct in a restricted building in violation of18 U.S.C. § 1752(a)(2) (Count Four); violent entry and disorderly conduct in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(A) (Count Five); and parading, demonstrating, or picketing in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(G) (Count Six). See Indictment.
On the same day as his indictment, Mr. Chansley was arrested and appeared before U.S. Magistrate Judge Deborah M. Fine in the District of Arizona. Chansley, 525 F. Supp. 3d at 156. The government moved for, and Magistrate Judge Fine ordered, Mr. Chansley' s pre-trial detention. Id. at 156-57; United States v. Chansley, 2:21-mj-5000 (DMF), ECF Nos. 5, 10 (D. Ariz. Jan. 19, 2021). Magistrate Judge Fine then ordered Mr. Chansley to be committed to this District. Chansley, 2:21-mj-5000 (DMF), ECF No. 11 (D. Ariz. Jan. 19, 2021). Mr. Chansley was arraigned by the undersigned in late January 2021. Minute Entry (01/29/2021). He was then represented by Mr. Albert Watkins ("plea counsel"). Id.
B. Video Evidence and Discovery Process
Mr. Chansley, through plea counsel, moved in this Court for pre-trial release and the Court held a hearing on the motion on March 5, 2021. Minute Entry (03/05/2021); ECF No. 12. At the hearing, plea counsel made several representations regarding the video evidence in this case: that "there's miles and miles and miles of footage of my client from January 6th[,]" ECF No. 28, at 7:5--6; that he "provided the Court with the video footage that we were able to gamer through an independent investigative undertaking" in conjunction with a "former FBI special agent[,]" id. at 7:13-15; and "[t]here's a lot of footage of my client interacting peacefully, chatting with and supporting law enforcement who were similarly positioned in [the Senate] part of the Capitol[,]" id. at 10:2-4. Considering this evidence, in conjunction with the other evidence of Mr. Chansley's actions that day, the Court denied Mr. Chansley's motion. Chansley, 525 F. Supp. 3d at 172.
The case then proceeded. As part of the discovery process, the government filed in March and April 2021 motions for a protective order and for an order to disclose certain sealed and protected materials with defense counsel. Gov't Opp'n, ECF No. 123, at 2; ECF Nos. 21 & 36. The Court granted both motions within days of their filing. ECF Nos. 24 & 37.
On May 20, 2021, the government provided its first notice of discovery with the Court.1 ECF No. 38. That notice contained a letter to plea counsel, dated the same date, recounting the various discovery productions made to counsel between January and mid-May 2021. ECF No. 38- 1. Of relevance here, the letter listed the following productions:
(1) video footage from the Senate floor (produced April 24, 2021); (2) video footage from a subpoena to The New Yorker (produced April 24, 2021); (3) nine videos from relevant Metropolitan Police Department ("MPD") body worn cameras ([produced] May 17, 2021); (4) five videos of Capitol Closed Circuit Video ("CCV") footage ([produced] May 18, 2021); and (5) two grand jury transcripts with ten accompanying grand jury exhibits ([produced] May 19, 2021).
Gov't Opp'n at 2 (referencing ECF No. 38-1 at 2). On September 17, 2021, the government provided two updates on the status of discovery. ECF Nos. 75 & 76. In the first update, describing the status of discovery as of August 23, 2021, the government expressly acknowledged the following: "Defense counsel in Capitol Breach cases have made requests including any and all information that captures an individual defendant's conduct or statements; shows people "peacefully walking around the Capitol"; or suggests that a member (or members) of law enforcement allowed people to enter or remain in the Capitol or on restricted grounds, acted friendly or sympathetic to the rioters, or otherwise failed to do their jobs." ECF No. 75 at 2 (emphasis added). In response, the government noted "there may be additional types of information a defendant may consider material or exculpatory" but that "since the government does not know the defense theory in any particular case, it is impossible to [sic] for the government to determine what other types of information a defendant may believe to be material." Id. The government added: "To the extent the type of information described above may exist, it may be interspersed among the voluminous sets of data." Id.
The government informed plea counsel of its proposed solution to this discovery conundrum. The government described how it was working with the Federal Public Defender ("FPD") for the District of Columbia to upload discovery materials to electronic databases. Id. at 3. Specifically, the government noted that it had already begun populating one database, named Relativity, with documentary discovery. Id. at 5. Further, due to processing and usability limitations associated with Relativity, the government explained that it was in the final stages of contracting to facilitate, in close consultation with FPD, production of video discovery via a different database, named Evidence.com. Id. at 7.
In the second discovery update of September 17, 2021, describing the status of discovery as of September 14, 2021, the government confirmed that the Evidence.com contracting process was complete and that the database was operational. ECF No. 76 at 2-3. The government further reported that it was in the process of populating Evidence.com with approximately 2,300 hours of footage captured by law enforcement body-worn cameras. Id. at 3. Specifically, the government stated that it "expect[ed] to produce [such footage] no later than the end of next week (Friday, September 24, 2021)." Id. (emphasis added).
On October 25, 2021, the government provided its fourth update regarding the status of discovery, current as of October 21, 2021. ECF No. 78. The update reported, in relevant part, that the following evidence had been made available on Evidence.com: (1) 16,925 closed circuit television ("CCTV") video files, containing approximately 4,800 hours of footage, recorded by 515 cameras located throughout the Capitol; (2) 15 maps indicating the location of cameras in the Capitol Visitor Center and interior of the Capitol; and (3) 1,676 files from body-worn cameras belonging to Metropolitan Police Department ("MPD") officers, containing approximately 1,600 hours of footage. Id. at 2. The government later represented that these materials were made available to defense counsel through Evidence.com on October 22, 2021. Def.'s Mot., ECF No. 117, at 12; Gov't Opp'n at 16. Separately, the government provided defense counsel with information about the location of the files within the database, their naming conventions, and the videos' timestamps. Gov't Opp'n at 17. Additionally, the government noted in the October 25, 2021 update that the FPD, who was coordinating access to Evidence.com on behalf of defendants charged with crimes related to January 6, 2021, had sent emails to all defense counsel with information on how to request a license to access the database. ECF No. 78 at 2. The FPD had also developed and shared a guide for defense attorneys on how to use Evidence.com and share discovery with their clients. Id. Mr. Chansley's plea counsel received the FPD's notification on October 15, 2021. Def.'s Reply at 6-7.
On November 5, 2021, the government provided its fifth update regarding the status of discovery, current as of that date. ECF No. 79. The government noted that, since the last status update, the government had populated Evidence.com with additional video footage. Id. at 2. In relevant part, the government stated that it shared an additional 4,204 CCTV video files recorded by 123 cameras, some of which were located in the Capitol's interior. Id.
C. Mr. Chansley's Guilty Plea and Sentencing
On September 3, 2021, Mr. Chansley pleaded guilty to Count Two, obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2), in exchange for the government's dismissal of the five other charges then-pending against him. See Minute Entry (09/03/2021). Mr. Chansley, in consultation with plea counsel, executed and signed a written plea agreement with the government. Plea Agreement, ECF No. 69. In the plea agreement, Mr. Chansley agreed that he was pleading guilty to Count Two because he was "in fact guilty." Id. at 10. In so doing, Mr. Chansley averred that the Statement of the Offense "fairly and accurately describe[d] [his] actions and involvement" in the offense. Id. ,i II. Mr. Chansley also agreed that he had "read every page of [the] Agreement," "discussed it with [his] attorney," and "fully underst[ood the] Agreement and agree[ d] to it without reservation." Id. at 10. In the plea agreement, Mr. Chansley attested that he was "satisfied with the legal services provided by [his] attorney in connection with [the] Agreement and the matters related to it." Id. at 10. Mr. Chansley reiterated his satisfaction with plea counsel to this Court during the plea hearing. See Plea Hr'g Tr., ECF No. 110, at 7:9-15; 9:22-25.
The plea agreement contained-and Mr. Chansley assented to-several express waivers. Specifically, Mr. Chansley agreed to waive his right to directly appeal his sentence, except for his rights to appeal a sentence imposed beyond the statutory maximum or U.S. Sentencing Guidelines range, and to appeal based on ineffective assistance of counsel. Plea Agreement ¶ IX(D). Furthermore, Mr. Chansley agreed to waive "any right to challenge the conviction entered or sentence imposed" through a motion brought under 28 U.S.C. § 2255, unless "such a motion is based on newly discovered evidence or on a claim that [Mr. Chansley] received ineffective assistance of counsel." Id. ¶ IX(E).
Finally, Mr. Chansley agreed to several provisions regarding sentencing. As relevant here, Mr. Chansley agreed that his sentence would be "determined by the Court, pursuant to the factors sector forth in 18 U.S.C. § 3553(a), including a consideration of the Sentencing Guidelines[,]" id. ¶ IV, and that he understood "that the sentence to be imposed is a matter solely within the discretion of the Court." Id. ¶ VII. He further agreed to the government's estimated offense level calculations under the Guidelines. Id. ¶ IV(C). Specifically, he agreed that the estimated offense level for Count Two was 25, representing the base offense level (14) plus enhancements for property damage (8) and substantial interference (3). Id. ¶ IV(A). The estimated Count Two offense level of 25, minus reductions for acceptance of responsibility (2) and assistance to authorities (1 ), rendered an estimated total offense level of 22. Id. Accordingly, Mr. Chansley agreed that, considering an estimated total offense level of 22 and criminal history category of I, id. ¶ IV(B), the estimated Sentencing Guidelines range in his case was 41 to 51 months' incarceration. Id. ¶ IV(C). He further concurred with the government's estimated monetary penalties, including a fine range of $15,000 to $150,000, id., a special assessment of $100 for his felony conviction, id. ¶¶ I, IV(C), and restitution in the amount of $2,000, id. ¶ XI. Finally, he agreed that his conviction carried a maximum supervised-release term of three years. Id. ¶ I.
On November 17, 2021, after the government's five updates regarding the status of discovery, this Court sentenced Mr. Chansley. See Minute Entry (11/17/2021). In calculating the applicable sentence, the Court agreed with the Guidelines calculations as outlined by the parties in the plea agreement and calculated a total offense level of 22. Sent'g Hr'g Tr. at 2:25-3:7. When it came time for plea counsel's presentation, he appreciated the seriousness of the events of January 6, 2021, id. at 14 :9-11, and acknowledged the overwhelming evidence in this case: "I've provided you with videos. I've provided the government with videos. The government's given me videos. The government's given you videos that I've given her. This isn't a drive-in movie theater. You don't need to see more video." Id. at 16:18-21. Plea counsel went on to focus on Mr. Chansley's acceptance of responsibility, which he previewed by saying, "Jake presents with having apologized without equivocation. No buts, no blames, I did it, I want to be accountable, I want to be held accountable." Id. at 27:15-17.
Mr. Chansley then spoke to the Court, accepting responsibility for his actions and expressing remorse. See, e.g., id. at 32:23-33:4 ("So I had to come to terms with the fact that I was in solitary confinement because of me, because of my decision. I broke the law, and if I believe in freedom, if I believe in law and order, if I believe in responsibility and accountability, then that means that I should do what Gandhi would do and take responsibility even and especially when it incriminates me. No ifs, ands, or buts about it. That's what men of honor do."); id. at 34:25-35:5 ("I am truly, truly repentant for my actions, because repentance is not just saying you're sorry. Repentance is apologizing and then moving in the exact opposite direction of the sin that you committed. And that's what I've been trying to do ever since I realized the magnitude of my error and the magnitude of my mistake."). Mr. Chansley unequivocally stated: "[I]n retrospect, I would do everything differently on January 6. In all honesty, I would do everything differently." Id. at 35:16-18. The Court heavily credited Mr. Chansley's apparent remorse and acceptance of responsibility. See id. at 48:21-22 ("[Y]ou have evolved in your thinking clearly and reversed your thinking in many ways"); id. at 49:3-5 ("You've certainly done everything you could today to convince the Court that you're anew person, and I think you're on the right track"); id. at 55:23- 56:2 ("[Y]ou were smart. It may not feel it today, but let me guarantee you, you were smart. You did the right thing. And you owned up to it today in a fashion that is unusual for me to see, the candor with which you approached me today. I appreciate it.").
The Court then sentenced Mr. Chansley to 41 months' incarceration as to Count Two, the bottom of the Guidelines range, with credit for time served. See J., ECF No. 92, at 2. In explaining the sentence, the Court stated: "[W]hat you did here was horrific, as you now concede, and obstructing the functioning of the government as you did is the type of conduct that is so serious that I cannot justify a downward departure [ from the Sentencing Guidelines range of 41 to 51 months]." Sent'g Hr'g Tr. at 48:22-25. Even considering the seriousness of the offense, the Court credited Mr. Chansley's remorse and acceptance of responsibility to sentence Mr. Chansley consistent with the bottom of the applicable Guidelines range. See id. 49:1-3 ("I do think that the minimum under the guidelines is something you've earned because you've done everything right from the time that you started in the other direction."). The Court also sentenced Mr. Chansley to three years of supervised release, a special assessment of$ 100, and $2,000 in restitution. 2 See J. at 3, 6. Approximately two weeks after sentencing, Mr. Chansley's current counsel, Mr. William Shipley ("post-conviction counsel") appeared to represent Mr. Chansley, ECF No. 101, and the Court granted plea counsel's motion to withdraw. Minute Entry (11/29/2021).
In late March 2023, Mr. Chansley was released from custody after having completed his term of incarceration, accounting for his time previously served and good-time credit. 3
D. Post-Sentencing Events Related to Mr. Chansley's Case
On March 6, 2023, then-television host Tucker Carlson aired footage from January 6, 2021 on his eponymous show.4 The host claimed that certain videos recorded on January 6 had been withheld from the public and that such videos demonstrated that the Capitol rioters were merely "sightseers." That segment prominently featured Mr. Chansley. All of the footage of Mr. Chansley aired on the program was recorded on CCTV cameras positioned inside the Capitol building between the times of 2:49 pm and 2:59 pm, except for one CCTV clip recorded at 2: 13 pm. Gov't Opp'n at 9-10. Mr. Chansley arrived at the Capitol more than one hour prior to this period and stayed for some time afterward. Statement of Offense ¶¶ 4, 5, 16. The footage, in relevant part, showed Mr. Chansley traversing hallways in the Senate side of the Capitol, sometimes followed by and sometimes following law enforcement officers who did not visibly impede Mr. Chansley' s movements. The footage did not include any audio recordings. The host claimed that the videos undermined the legitimacy of the government's prosecution against Mr. Chansley. Two days later, plea counsel stated on the same television program that he had not seen the videos at any point during his representation of Mr. Chansley.5
On March 9, 2023, Dominic Pezzola, who at the time was on trial for his own felonious conduct on January 6, 2021, moved to dismiss his indictment based on the government's failure to disclose the footage aired on March 6, which Pezzola claimed was "exculpatory" for himself and Mr. Chansley.6 See United States v. Pezzola, 21-cr-175-6 (TJK), ECF No. 679. On March 12, 2023, the government opposed, claiming that the footage of Pezzola and Mr. Chansley aired during the broadcast was neither withheld from the defense nor exculpatory. Pezzola, ECF No. 689, at 2. Specifically, the government asserted that all of the footage aired on the broadcast, save for one 10-second clip, was produced to defense counsel via the Evidence.com database by September 24, 2021, and that the remaining clip was produced on January 23, 2023. Id. at 3. Based on these representations, along with a consideration of the applicable law, Judge Timothy J. Kelly denied the motion because "Pezzola ha[ d] not shown that the video footage tends to show his innocence" "[n]or ha[d] the evidence been suppressed." Mem. Order, Pezzola, ECF No. 755, at 3.
On March 17, 2023, Mr. Chansley's post-conviction counsel contacted the government via letter asking specific questions about when the CCTV videos appearing in the March 6, 2023 segment were produced. Def.'s Mot. at 11; Gov't Opp'n at 9. The government responded on March 27, 2023, explaining that all of the clips appearing in the broadcast, except for the 10-second clip, were produced on October 22, 2021, and that the remaining clip was produced on February 21, 2023. Def.'s Mot. at 12; Gov't Opp'n at 9-10.
The Court summarizes the videos aired on March 6, 2023 as the following:
Approximate Time on January 6, 2021 / U.S. Capitol CCTV Camera7 / Time Stamp in Television Segment / Government's Representation of Approximate Date Disclosed to Defense via Evidence.com
2:13 pm / Camera A / 2:48 / May 2021 or October 22, 2021 8
2:49 pm / CameraE / 2:06 / October 22, 2021
2:51 pm / CameraE / 3:09 / October 22, 2021
2:56pm / CameraF / 4:31 / October 22, 2021
2:56 pm / Camera F / 5:14 / October 22, 2021
2:57 pm / CameraD / 3:35 / October 22, 2021
2:57pm / CameraD / 5:21 / October 22, 2021
2:57pm / CameraE / 4:12 / October 22, 2021
2:57pm / CameraE / 5:00 / October 22, 2021
2:57pm / CameraH / 3:40 / October 22, 2021
2:57pm / CameraH / 5:25 / October 22, 2021
2:59pm / CameraB / 3:28 / October 22, 2021
2:59pm / Camerae / 4:01 / October 22, 2021
2:59pm / CameraG / 3:48 / February 21, 2023 9
See Def's Mot. at 12; Gov't Opp'n at 9-10.
In April 2023, Mr. Chansley, through counsel, moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, claiming newly discovered evidence and ineffective assistance of his plea counsel. Def. 's Mot. at 2--4. Specifically, he claims that conduct by both the government and his plea counsel with respect to the videos aired during the March 6 broadcast rendered both his plea agreement and resulting sentence unconstitutional. Id. First, Mr. Chansley asserts that the videos were both exculpatory and withheld from the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that, had the videos been disclosed to the defense prior to sentencing, plea counsel would have used the videos' contents to argue for, and that this Court would have imposed, a lower sentence than the one Mr. Chansley received. Id. at 16-1 7. Second, he claims that plea counsel was unconstitutionally ineffective because counsel did not seek production of the videos from the government and because counsel recommended that Mr. Chansley accept the plea agreement containing a sentencing-enhancement stipulation and waiving appeal rights without this evidence. Id. at 17-21. Relatedly, he insists that further discovery into the video-disclosure issue is required, particularly due to government's conflicting statements regarding the dates of production as stated in filings in this and the Pezzola case. Id. at 21-22.
In June 2023, the government opposed, insisting that Mr. Chansley has not met his burden to establish that he is entitled to collateral relief because he either waived his claims or they are meritless. Gov't Opp'n at 1. Mr. Chansley submitted a brief reply. Def.'s Reply, ECF No. 126. Mr. Chansley's motion is now ripe for review.
II. LEGAL STANDARDS
A. 28 U.S.C. § 2255
A prisoner may move to vacate, set aside, or correct his sentence if (1) the sentence was imposed "in violation of the Constitution or laws of the United States"; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence "was in excess of the maximum authorized by law"; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The petitioner bears the burden to prove his right to relief by a preponderance of the evidence. United States v. Baugham, 941 F. Supp. 2d 109, 112 (D.D.C. 2012). A court need not hold an evidentiary hearing when "the motion and the files and records of the case conclusively show the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
B. Government's Discovery Obligations
The government has a constitutional obligation, as recognized in Brady and its progeny, to disclose "evidence in its possession that is favorable to the accused and material either to a defendant's guilt or punishment." United States v. Trie, 21 F. Supp. 2d 7, 23 (D.D.C. 1998). Favorable evidence "tends to help the defense by either bolstering the defense case or impeaching potential prosecution witnesses." United States v. Sa/avian, 233 F.R.D. 12, 16 (D.D.C. 2005); see also Brady, 373 U.S. at 87; Giglio v. United States, 405 U.S. 150, 153-55 (1972). To prevail on a Brady claim, the defendant must show prejudice; in other words, '" a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."' United States v. Sitzmann, 893 F.3d 811, 826 (D.C. Cir. 2018) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). "A court should evaluate prejudice under Brady based on the suppressed evidence as a whole rather than an 'item by item' basis." United States v. Martin, No. 98-cr-329 (RCL), 2021 WL 4989983, at *4 (D.D.C. Oct. 27, 2021) (quoting Kyles v. Whitley, 514 U.S. 419,420 (1995)). Importantly, "[f]or an item to be Brady, it must be something that is being 'suppress[ed] by the prosecution."' United States v. Blackley, 986 F. Supp. 600,603 (D.D.C. 1997) (quoting Brady, 373 U.S. at 87).
C. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a petitioner "must prove both incompetence and prejudice." Kimme/man v. Morrison, 477 U.S. 365, 381 (1986). Specifically, the petitioner must demonstrate that (1) "counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). That sets a high bar, as a court's evaluation of counsel's actions "must be highly deferential," and is assessed under the circumstances present at the time of representation without the benefit of hindsight. Id. at 689. Furthermore, a "reasonable probability" under Strickland's second prong is one that is "sufficient to undermine confidence in the outcome." Id. at 694. To establish prejudice, the petitioner must show there is "a substantial, not just conceivable, likelihood of a different result." Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (internal quotations and modifications omitted). An ineffective assistance of counsel claim is defeated if the defendant fails to demonstrate either prong. Strickland, 466 U.S. at 700.
III. DISCUSSION
Mr. Chansley' s motion concocts a Brady claim, and a derivative ineffective assistance of counsel claim, based on videos aired devoid of context and supposedly inconsistent disclosure dates provided by government counsel in two separate cases. These videos are decidedly not exculpatory, especially when viewed in context with the "miles and miles and miles of footage" recorded of Mr. Chansley on January 6, 2021. ECF No. 28, at 7:5--6. Such footage, conveniently omitted by the March 6, 2023 program, shows nearly all of Mr. Chansley's actions that day, including: carrying a six-foot-long pole armed with a spearhead, unlawfully entering the Capitol through a broken door, disobeying orders from law enforcement on more than a half-dozen occasions, screaming obscenities, entering the Senate chamber, climbing onto the Senate dais, sitting in the Vice President's chair, and leaving a threatening message for the Vice President. Moreover, the precise date that the particular videos appearing in the program were disclosed is immaterial because Mr. Chansley and plea counsel were aware of the videos' content -- Mr. Chansley interacting with law enforcement officers who did not visibly impede his progress -- by May 20, 2021. In other words, Mr. Chansley possessed the facts in the videos well in advance of his plea agreement, yet still determined, quite sensibly, to accept responsibility for his role in the criminal events of January 6, 2021. What is more, the record shows that the government disclosed virtually all of the videos at issue weeks before Mr. Chansley' s sentencing. These facts and the underlying law conclusively demonstrate that Mr. Chansley is not entitled to relief under § 2255.
A. Mr. Chansley's Claims Are Timely, Not Waived, and Not Moot
As a threshold matter, Mr. Chansley claims are not time-barred. Under the Anti-Terrorism and Effective Death Penalty Act, a defendant must bring any § 2255 claims within one year of "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(£)(4). Mr. Chansley's claims rely on facts, namely alleged discrepancies in the dates and circumstances surrounding discovery in his case, discovered in March 2023. Because Mr. Chansley filed his motion within one year after these events, his motion is timely.
Nevertheless, the government insists that Mr. Chansley's Brady claim is procedurally barred because he waived this claim through his plea agreement. 10 Gov't Opp'n at 14-16. Mr. Chansley agreed to waive a collateral challenge to his conviction unless the motion was based on "newly discovered evidence." Mr. Chansley responds that his claim is not waived because neither he nor his plea counsel were aware of the specific evidence (the videos broadcast on March 6, 2023), even if they may have been aware of the facts contained in the evidence. Def.'s Reply at 2-3. The Court is mindful of the government's view that the "concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas." Gov't Opp'n at 15 (quoting Bousley v. United States, 523 U.S. 614, 621 (1998)). At the same time, this Court "will not bar the door" to Mr. Chansley's collateral attack when "his waiver only arguably or ambiguously forecloses his claims." United States v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016). Because it is not clear that Mr. Chansley's plea agreement unambiguously waived his right to bring his claim, and because the government admits that one 10-second video appearing in the March 6, 2023 was not disclosed prior to Mr. Chansley's plea and sentencing, the Court concludes that Mr. Chansley did not waive his Brady claim.
Additionally, although not raised by either party, the Court notes that Mr. Chansley's claims are not moot even though he ended his period of incarceration prior to filing his motion. In addition to a prison term, the Court sentenced Mr. Chansley to supervised release, a special assessment, and restitution. He may still pursue relief from the remaining aspects of his sentence under§ 2255. See United States v. Mejia, No. 10-cr-256-03 (RCL), _ F. Supp._, 2023 WL 2297465, at *2 (D.D.C. Feb. 23, 2023) (citing United States v. Mejia, No. 20-3086, 2022 WL 4280686, at *1 (D.C. Cir. Sept. 14, 2022)).
The Court will therefore proceed to the merits of Mr. Chansley' s claims.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
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Part 2 of 2
B. Brady Applies at the Plea-Bargaining Stage
Mr. Chansley' s motion assumes that Brady provides a right to the disclosure of exculpatory information by the government to the criminal defendant at the plea-bargaining stage but does not directly address this question or offer any authority to support his position. The government, on the other hand, does engage with the question-whether Brady applies throughout the criminal proceeding or if it is only a trial right-and notes that there is currently a circuit split on the issue with no binding authority in this Circuit, but does not take a formal position. See Gov't Opp'n at 11 n.5; compare United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (holding that Brady applies to the non-disclosure of exculpatory evidence prior to plea bargain); Campbell v. Marshall, 769 F.2d 314, 322-24 (6th Cir. 1985) (same); White v. United States, 858 F.2d 416,422 (8th Cir. 1988) (same); Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995) (same); United States v. Ohiri, 133 Fed. App'x 555, 561--62 (10th Cir. 2005) (same); with United States v. Moussaoui, 591 F.3d 263,285 (4th Cir. 2010) (holding that Brady applies to the non-disclosure of exculpatory evidence only at the trial stage); Matthew v. Johnson, 201 F.3d 353, 361--62 (5th Cir. 2000) (same).
This Court joins the weight of authority and the principles enshrined in Brady to conclude that a defendant may challenge the validity of his guilty plea on the basis of Brady. Plea bargaining is a critical component of our modern criminal justice system. As the Supreme Court emphasized in Brady, "our system of the administration of justice suffers when any accused is treated unfairly." 373 U.S. at 87. When a defendant is forced to decide whether to go to trial or plead guilty without knowledge of exculpatory evidence in the government's possession, he suffers unfairness of the highest order. This is because shielding the plea-bargaining process from Brady creates perverse incentives for prosecutors to "deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas." Sanchez, 50 F .3d at 1453. What is more, plea bargaining is just one step in the process of preparing for a trial. Plea agreements, like any other contract, are only finalized after the assent of both parties. See Puckett v. United States, 556 U.S. 129, 137 (2009). In the situation where a defendant and the government fail to reach a plea agreement, or if that agreement is not accepted by the Court, a defendant must proceed to trial. A Brady rule that absolves the government of any responsibility to disclose exculpatory evidence until the eve of trial would impermissibly hinder a criminal defendant in the preparation of his defense. See United States v. Pollack, 534 F.2d 964, 973-74 (D.C. Cir. 1976). Under these circumstances, the Court agrees with the majority of circuit courts that Brady provides a right to the disclosure of exculpatory information at the plea-bargaining stage.
C. Mr. Chansley's Brady Argument Is Without Merit
Even though Mr. Chansley may assert his Brady claim, he does not meet his burden to show that he is entitled to relief on that basis. He argues that the government violated its obligations under Brady, and therefore secured an unconstitutional sentence, by not disclosing the videos broadcast on March 6, 2023. Mr. Chansley's argument, and its various permutations, is belied by the record, applicable law -- or both.
1. Nearly all of the videos at issue were disclosed to the defense
Mr. Chansley relies primarily on a televised statement by his former counsel-unswom and not subject to Rule 11 sanctions-along with the absence of plea counsel's discussion of the videos at sentencing as evidence that the videos were withheld from the defense. Perhaps plea counsel's memory has faded over the past two years. Perhaps plea counsel's statement was fueled by personal motives contrary to the interest of his former client. Regardless, the record is plain that the vast majority of the videos, and all the pertinent content contained therein, was indeed disclosed to the defense as early as May 2021 and by mid-October 2021 at the latest. 11
All of the facts surrounding Mr. Chansley's movements around the Capitol featured in the television program were disclosed months before Mr. Chansley's guilty plea, as he concedes. Def. 's Reply at 2-3. For example, the program showed Mr. Chansley's interaction with enforcement officers in the Senate stairwell, after he left the Senate gallery and before he entered the Senate chamber. This same footage was captured by MPD body-worn cameras that were made discoverable on May 17, 2021. Gov't Opp'n at 18; ECF No. 38-1 at 2. Finally, grand jury transcripts containing testimony of an officer who encountered Mr. Chansley several times on January 6, 2021, and who appears in the footage aired in the March 6, 2023 broadcast, were disclosed to plea counsel by May 19, 2021. Gov't Opp'n at 19; ECF No. 38-1 at 2. 12
The television program also discussed Mr. Chansley' s time on the Senate floor. The record demonstrates that footage depicting these same events, recorded by The New Yorker, was disclosed to plea counsel on April 24, 2021. Gov't Opp'n at 18; ECF No. 38-1 at 2. On May 14, 2021, plea counsel confirmed by email that he was aware of the video and that it was his position that the video "depict[ ed] the door to the Chamber being held for Mr. Chansley by law enforcement as he entered into the Chamber (followed thereafter by law enforcement)[,]" whom plea counsel later identified as Officer Robishaw. Gov't Opp'n at 18 (quoting Email, Ex. 1 to Sealed Gov't Opp'n, ECF No. 124-1 at 1, 5). Plea counsel further claimed that the video showed Mr. Chansley "being escorted into the Chamber just before 3:00p[m]." Id. (quoting Email at 1). In fact, plea counsel demonstrated awareness of evidence of his client supposedly interacting peacefully with law enforcement in the Capitol building two months earlier when he argued in support of his client's (unsuccessful) motion for pre-trial release. ECF No. 28 at 10:2-4. Thus, plea counsel's statements by email and in court reveal that counsel was aware of all pertinent facts aired in the March 6, 2023 program at least four months prior to Mr. Chansley' s plea.
The vast majority of the CCTV footage aired on the program, which did not contain any new facts, was made discoverable through Evidence.com prior to Mr. Chansley's sentencing. Gov't Opp'n at 16-17. Mr. Chansley cries foul at the government's representation in the Pezzola case -- that disclosure occurred on September 24, 2021-and the government's representation in this case -- that disclosure occurred on October 22, 2021-and claims that both representations are likely "false." Def.'s Mot. at 12. Rather than intentional government obfuscation, there is a far more likely, innocent explanation for the date discrepancy. As the government stated in its second discovery update in this case, filed on September 17, 2021, the government merely "expect[ ed]" to produce the videos via Evidence.com by September 24, 2021. The next update, filed on October 25, 2021, confirmed that the videos were, in fact, produced as of October 21, 2021 (which the government now clarifies as October 22, 2021). Regardless, contrary to defense counsel's assertions, the information was, in fact, produced by October 2021 at the very latest.
In alternative, Mr. Chansley argues that even if the videos were disclosed, the government provided too many videos too late because it would have been physically impossible for defense counsel to review the 4,800 hours of footage disclosed on October 22, 2021 before Mr. Chansley' s sentencing in mid-November 2021. Def.'s Mot. at 16 & n.3. Aside from the fact that "[Mr. Chansley] cite[ s] no authority for the proposition that the government fails to meet its Brady [] obligations by providing too much discovery," United States v. Bingert, Nos. 21-cr-91-1, 21-cr- 91-2 (RCL), 2023 WL 3203092, at *6 (D.D.C. May 9, 2023) (emphasis in original), this argument is an obvious red herring. As the government points out, Mr. Chansley was well aware of the path he walked on January 6, 2021. Gov't Opp'n at 17. That knowledge, combined with the government's disclosure of maps showing the CCTV cameras' locations and a guide for identifying the relevant cameras, certainly enabled the defense to focus on reviewing footage captured by cameras only in the areas of the Capitol that Mr. Chansley actually visited.
Mr. Chansley's Brady claim fails at the outset because the record confirms that none of the relevant facts have been suppressed. Blackley, 986 F. Supp. at 603. The Court further notes that "the volume of discovery does not excuse defense counsel," including Mr. Chansley's post-conviction counsel, "from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures." Mem. Order, Pezzola, at 3.
2. None of the videos are exculpatory
Despite spilling much ink on the supposed significance of the videos, Mr. Chansley does not explain why he believes the videos are exculpatory with respect to the charge to which he pleaded guilty: obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2). This is likely because he cannot make this showing.
Mr. Chansley admitted to engaging in the following conduct on January 6, 2021, all before the events recorded in the videos aired in the March 6, 2023 program: participating in a violent riot; being one of the first rioters to unlawfully enter the Capitol; traveling through hallways, stairwells, and the Senate gallery for approximately 38 minutes; encountering law enforcement on several occasions; ignoring their direct orders; screaming obscenities; and demanding that fleeing lawmakers be brought out to face the mob. Moreover, Mr. Chansley admitted to engaging in the following conduct after the events recorded in the videos: entering the Senate chamber; climbing on the Senate dais; ignoring multiple direct orders from the lone law enforcement officer in the chamber; sitting in the Vice President's chair; leaving a threatening message for the Vice President; leading the rioters in the chamber in a demonstration; and only vacating the chamber after multiple other law enforcement officers arrived. These facts show that Mr. Chansley intended to, and did, obstruct the certification proceedings. That law enforcement officers outnumbered by the quantity of rioters did not physically engage Mr. Chansley or impede his progress is irrelevant to his guilt with respect to Count Two.
Of the videos appearing in the March 6, 2023 segment, one 10-second video was disclosed in February 2023, after the conclusion of Mr. Chansley's case. The clip, capturing Mr. Chansley's movements at approximately 2:59 pm, appears to show him outside of the Senate chamber accompanied by two law enforcement officers. One of the law enforcement officers reaches out to briefly touch a door before leading Mr. Chansley away from the Senate chamber. Mr. Chansley argues that this video, and others, provide further context "about how he came to be inside the Senate Chamber," which he argues is evidence casting doubt on his intent to obstruct the certification proceedings. Def.' s Mot. at 19. This argument, like his others, misses the mark. The circumstances surrounding his entry into the Senate chamber are not legally relevant. His presence that day, his refusal to obey multiple orders :from law enforcement, and his specific statements and actions all created serious safety concerns and forced an end to the certification proceedings, consistent with his expressed intent. In addition, entry into the Senate chamber, or even the Capitol building, is not a required element for guilt under 18 U.S.C. § 1512(c), as this Court has implicitly determined numerous times. See, e.g., Notes for Oral Ruling, United States v. Worrell, No. 21-cr- 292-1, ECF No. 245 (D.D.C. May 12, 2023); Notes for Oral Ruling, Bingert, ECF No. 166; Notes for Oral Ruling, United States v. Hostetter, No. 21-cr-392-1 (RCL), ECF No. 275 (D.D.C. July 13, 2023); Findings of Pact and Conclusions of Law, United States v. Powell, No. 21-cr-179 (RCL), ECF No. 110 (D.D.C. July 18, 2023).
As a fallback position, Mr. Chansley appears to argue that the videos show that "he committed no acts of violence, that he expressed no hostility or intention to do violence to any property or individuals" and therefore the 8-point sentencing enhancement was improper. Def. 's Mot. at 19; see also id. at 17-19. But that argument suffers from the same fatal defect as the March 6, 2023 broadcast: it lacks the context of what occurred before and after. The enhancement applies "[i]f the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice[.]" U.S.S.G. § 2Jl.2(b)(l)(B). As explained above, Mr. Chansley's actions on January 6, 2021 more than fit the bill.
Whether the videos from the March 6, 2023 television segment are viewed individually or in context with the rest of the evidence against Mr. Chansley, the videos are not exculpatory. Therefore, Mr. Chansley's Brady claim fails at the second prong of the analysis as well.
3. The government's discovery approach in his case did not violate its Brady obligations
Separate from the alleged failure to disclose specific videos, Mr. Chansley argues that the government's approach to discovery contravened the applicable Brady standard in this District. See, e.g., Def. 's Mot. at 9; Def. 's Reply at 3-4. That argument, like his others, is misplaced.
In cases involving voluminous discovery, courts are "wary of requiring the government to, in effect, do defense counsel's work for them and of inserting itself into the fray of micromanaging discovery in these cases." United States v. Sheppard, No. 21-cr-203 (JDB), 2022 WL 17978837, at *14 (D.D.C. Dec. 28, 2022). "On the other hand, [courts are] sympathetic to the needle-in-thehaystack problem defendants face when confronted with such enormous amounts of discovery, only some of which is relevant to their cases, particularly since defense counsel have comparatively fewer resources at their disposal for identifying which evidence is relevant." Bingert, 2023 WL 3203092, at *6 (citing United States v. Hsia, 24 F. Supp. 2d 14, 29 (D.D.C. 1998)). Balancing the government's obligations and defendants' responsibilities, courts in this District have settled on the following standard: '"[T]o the extent that the government knows of any [Brady] material in its production,' the Court will 'require [the government] to identify' it." Sheppard, 2022 WL 17978837, at *14 (alterations in original) (quoting United States v. Saffarinia, 424 F. Supp. 3d 46, 86 (D.D.C. 2020)).
Mr. Chansley cites the government's first September 17, 2021 discovery update, and the two district court cases referenced in a footnote therein, as evidence that the government's approach to discovery does not adhere to Saffarinia. Def 's Mot. at 14; ECF No. 75 at 2 (citing United States v. Meek, No. 19-cr-378 (JMS/MJD), 2021 WL 1049773, at *5 (S.D. Ind. Mar. 19, 2021) and United States v. Ohle, No. S3-08-cr-1109 (JSR), 2011 WL 651849, at *4 (S.D.N.Y. Feb. 7, 2011)).
Taking the second portion of his argument first-and declining to opine on the wisdom of the government's choice to cite out-of-circuit, unpublished memorandum orders for points oflaw as important as Brady-Mr. Chansley' s argument misses the mark. The government cited those cases merely for the proposition that "[ d]efendants are in a better position to determine what evidence they believe is exculpatory and will help in their defense" than the government. ECF No. 75 at 2 (citing Meek, 2021 WL 1049773, at *5). That proposition is not inconsistent with Saffarinia. What is more, Mr. Chansley reads Saffarinia far too broadly. That opinion clearly held that the government is only required "to identify Brady material already known to it based on its existing knowledge of the documents it collected and reviewed in the first instance[,]" and that, as a corollary, the government is not required to "sift through the evidence in search of anything that could help the defense[.]" Saffarinia, 424 F. Supp. 3d at 86 (emphases in original) (internal citations omitted). In other words, Saffarinia does not require the government to specifically identify to a defendant any evidence in the government's voluminous disclosures that could conceivably qualify as Brady material based on the government's anticipation of any possible defense theory. Instead, Saffarinia only requires the government to identify exculpatory evidence of which it is aware.
The first part of Mr. Chansley's Brady argument similarly falters. In his view, the government's en masse production of discovery with the opportunity for defendants to lodge specific requests for information that they believe to be exculpatory is improper because this District "looks with disfavor on narrow readings of the government's Brady obligations[.]" Def. 's Mot. at 10 (collecting cases). But it is precisely the government's recognition of this District's exacting Brady standards that compelled the government to contract for, fund, and facilitate the introduction of a platform to disseminate massive amounts of discovery in cases related to January 6, 2021, and to equip defense teams with the tools necessary to digest the information made available on the platform. To be sure, this unprecedented prosecutorial effort places enormous disclosure burdens on the government and necessitates novel approaches to sharing discovery information with defendants. That said, Mr. Chansley has not demonstrated how the government's approach is inconsistent with Brady.
As a last gasp, Mr. Chansley faults the government for not providing him with specific discovery earlier because he was "easy to identify in the crowd of people who entered the Capitol" due to his distinctive costume. Def.'s Mot. at 13. Mr. Chansley does not cite any authority, and the Court is aware of none, stating that the government faces a heightened Brady obligation merely because a defendant is recognizable. Regardless, as previously discussed, the evidence that Mr. Chansley claims is exculpatory is decidedly not so.
* * *
Mr. Chansley has failed to demonstrate that the government fell short of its Brady obligations with respect to the production of video evidence in his case. Therefore, this claim fails.
D. Mr. Chansley's Ineffective Assistance of Counsel Argument Is Without Merit
Despite his repeated assertions that he was satisfied with plea counsel in writing and on the record, Mr. Chansley now argues that plea counsel was ineffective in two ways: (1) by encouraging him to accept a plea agreement containing a sentencing enhancement and appeal waivers; and (2) by not demanding production of the CCTV videos aired during the March 6, 2023 program prior to sentencing in order to use such video at sentencing. Def.'s Mot. at 17-21. He claims that he suffered prejudice because, absent these errors, he would have received a more favorable plea agreement and the Court would have imposed a lower sentence. Id. His argument is wildly speculative, contrary to established caselaw and practice, and devoid of common sense.
1. Mr. Chansley has not demonstrated that plea counsel's performance was deficient
Mr. Chansley's ineffective assistance of counsel claim stumbles at the start because he is unable to establish that his plea counsel's performance was deficient.
Mr. Chansley's first argument, that plea counsel erred in negotiating the terms of his plea agreement, collapses upon cursory inspection. First, a "prosecutor is not obligated to make a plea offer at all, let alone a plea offer on any particular terms." United States v. Zaia, 751 F. Supp. 2d 132, 143 (D.D.C. 2010). Similarly, Mr. Chansley does not point this Court to any authority stating that counsel has a constitutional duty to pursue a plea agreement more favorable than the agreement actually offered. What is more, dissatisfaction with the terms of a plea agreement alone cannot serve as a basis for an ineffective assistance of counsel claim. See United States v. Brunetti, 376 F.3d 93, 95 (2d Cir. 2004); Hunter v. United States, 160 F.3d 1109, 1115 (6th Cir. 1998). Second, plea counsel's suggestion to Mr. Chansley that he accept the plea agreement with the sentencing enhancement and appeal waiver fell squarely within the "wide range of reasonable professional assistance" that Strickland protects. 466 U.S. at 689. In exchange for Mr. Chansley's plea, the government agreed to dismiss the other charges pending against him and not to pursue other potential sentencing enhancements. Gov't Opp'n at 24 n.11. This sort of bargained-for-exchange is entirely consistent with effective performance by counsel during the plea process.
Mr. Chansley' s second claim, that plea counsel erred by not demanding or using the CCTV footage, also fails. As previously discussed, plea counsel did, in fact, have access to the videos well in advance of Mr. Chansley's sentencing. Similarly, as the government correctly notes, the record reflects that plea counsel reviewed such evidence with Mr. Chansley. See id. at 27 ( citing Sent'g Hr'g Tr. at 26:13-16). And contrary to Mr. Chansley's insistence, plea counsel's decision not to present the videos during sentencing does not demonstrate ineffective assistance-in fact, it was quite effective. The Court agrees with the government that plea counsel's strategic choice to use his presentation to focus on Mr. Chansley's remorse and acceptance of responsibility, rather than present additional video evidence in a futile attempt to contradict the obvious facts of the case, was objectively reasonable. See id. at 27-28. And that decision was all the more reasonable when considering that the Court previously rejected as unpersuasive plea counsel's attempt to cite the facts contained in the videos in light of the rest of the evidence of Mr. Chansley's conduct. See Chansley, 525 F. Supp. 3d at 170-71. Plea counsel sensibly changed course at sentencing, noting that the government was still pursuing investigations and gathering evidence related to the events of January 6, 2021, but that he and Mr. Chansley were "not in a position of slowing this court proceeding down because [they didn't] have to, because those investigations, those outcomes are irrelevant as to [Mr. Chansley], as to the defendant in this case, as to the decision of [Mr. Chansley] to enter a plea[.]" Sent'g Hr'g Tr. at 16:11-15. Plea counsel emphasized that Mr. Chansley wanted "to be held accountable based on evidence that we have today, that this court has seen." Id. at 16:16-17. Based on this presentation, along with Mr. Chansley's own comments, the Court determined that the appropriate sentence in his case was the bottom of the applicable Guidelines range, despite the seriousness of Mr. Chansley' s conduct.
Mr. Chansley does not meet his burden to establish that plea counsel performed deficiently.
2. Mr. Chansley has not demonstrated that he suffered any prejudice
As for prejudice, Mr. Chansley attempts to tread a fine line. He wisely does not claim that he would have opted for trial absent counsel's performance. Nor could he.13 Instead, he argues that, had plea counsel performed effectively, he would still have proceeded with a plea agreement, but would have agreed to one absent the sentencing-enhancement stipulation or the appeal waivers. Def.'s Mot. at 20-21. Mr. Chansley argues that without the stipulation, his recommended Guidelines sentence would have been lower and that without the waiver, he would have been able to appeal his sentence on any grounds he wished. Id. However, these hypothetical scenarios fall woefully short of establishing a legally sufficient showing of prejudice.
As discussed above, neither the government nor plea counsel had any obligation to reach a plea agreement without the sentencing enhancement or appeal waiver. Also, the enhancement at issue, U.S.S.G. § 2Jl.2(b)(l)(B), has been approved by courts in this District in a variety of cases involving the events of January 6, 2021, including this Court. Gov't Opp'n at 26 (collecting cases). And regarding the appeal waiver, it is clear that "[a] 'knowing, intelligent, and voluntary' waiver of the right to appeal 'generally may be enforced."' United States v. Adams, 780 F .3d 1182, 1183 (D.C. Cir. 2015) (quoting United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009)). Mr. Chansley has not alleged, much less shown, that his plea was not knowing, intelligent or voluntary. Nor has he so much as hinted at what other legal challenges to his conviction he could or would have raised had he not waived his direct-appeal rights. Under these circumstances, he cannot show that he suffered any prejudice due to the terms of the plea agreement that he accepted.
Similarly, Mr. Chansley has not met the required prejudice showing with respect to plea counsel's alleged failure to demand or use the CCTV footage appearing in the March 6, 2023 broadcast. Even if plea counsel had presented the Court with this footage, which, as discussed above, plea counsel was correct not to, Mr. Chansley would not have received a lower sentence. The criminal nature of Mr. Chansley's actions that day, including his decision to leave a note threatening "It's Only A Matter of Time. Justice Is Coming!" at the heart of the U.S. government, establish the appropriateness of a sentence of at least 41 months' incarceration. 14 In fact, without Mr. Chansley' s apparently unequivocal acceptance of responsibility, the Court is confident that he would have received a higher sentence.
In sum, Mr. Chansley cannot demonstrate that either the absence of certain terms in the plea agreement or the presence of the CCTV footage at sentencing would have resulted in even a "conceivable[] likelihood of a different result," much less a "substantial" one. Cullen, 563 U.S. at 189. Therefore, he has not established prejudice.
* * *
Mr. Chansley' s claims are without merit. Thus, the Court will DENY his motion to vacate, set aside, or correct his conviction under 28 U.S.C. § 2255.
The Court is disappointed to learn that, through his filings and public statements, Mr. Chansley has recanted the contrition displayed at his sentencing nearly two years ago. 15 Such an about-face casts serious doubt on the veracity of any of Mr. Chansley' s claims, here or elsewhere.
Finally, the Court would be remiss if it did not address the ill-advised television program of March 6, 2023. Not only was the broadcast replete with misstatements and misrepresentations regarding the events of January 6, 2021 too numerous to count, the host explicitly questioned the integrity of this Court -- not to mention the legitimacy of the entire U.S. criminal justice system with inflammatory characterizations of cherry-picked videos stripped of their proper context. In so doing, he called on his followers to "reject the evidence of [their] eyes and ears," language resembling the destructive, misguided rhetoric that fueled the events of January 6 in the first place. 16 The Court finds it alarming that the host's viewers throughout the nation so readily heeded his command. But this Court cannot and will not reject the evidence before it. Nor should the public. Members of the public who are concerned about the evidence presented in Mr. Chansley's case and others like may view the public docket and even attend court proceedings in these cases. Those of us who have presided over dozens of cases arising from, listened to hundreds of hours of testimony describing, and reviewed thousands of pages of briefing about the attack on our democracy of January 6 know all too well that neither the events of that day nor any particular defendant's involvement can be fully captured in a seconds-long video carelessly, or perhaps even cynically, aired in a television segment or attached to a tweet.
IV. CERTIFICATE OF APPEALABILITY
Before appealing a final order denying a § 2255 motion, a court must "issue or deny a certificate of appealability." Fed. R. Governing § 2255 Proceedings 1 l(b). The defendant may not appeal without this certificate of appealability, which requires "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). Doing so requires the defendant to demonstrate "that reasonable jurists could debate whether ( or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983) (internal quotation marks omitted)). When a district court denies relief on procedural grounds, the defendant must also show that reasonable jurists would debate "whether the district court was correct in its procedural ruling." United States v. Baxter, 761 F.3d 17, 26 n.10 (D.C. Cir. 2014) (quoting Slack, 529 U.S. at 484).
Mr. Chansley's arguments are without merit. For these reasons, the Court finds that reasonable jurists would not debate whether his claims deserve encouragement to proceed further. Mr. Chansley has not made a substantial showing of the denial of a constitutional right. The Court will therefore decline to issue a certificate of appealability for Mr. Chansley's claims.
V. CONCLUSION
For these reasons, the Court concludes that Mr. Chansley's motion and the record in his case do not show his entitlement to relief. No evidentiary hearing is warranted, see 28 U.S.C. § 2255(b), and the Court will DENY Mr. Chansley's motion. No certificate of appealability shall issue. A separate Order consistent with this Memorandum Opinion shall issue.
SIGNED this 20th day of July, 2023.
Royce C. Lamberth
United States District Judge
_______________
Notes:
1 In total, the government provided nine discovery updates in this case. Gov't Opp'n at 3 n.2.
2 Mr. Chansley appealed his conviction, ECF No. 108, but the U.S. Court of Appeals for the District of Columbia Circuit later issued a mandate dismissing Mr. Chansley's appeal pursuant to his own motion, ECF No. 112.
3 Scott Macfarlane, "QAnon Shaman" Jacob Chansley Released Early from Federal Prison, Transferred to Halfway House, CBS News, https://www.cbsnews.com/news/qanon-sham ... onhalfway- house-jan-6/ [https://perma.cc/4WNZ-4WVS].
4 Fox News, Tucker: This Video Tells A Different Story of Jan 6, YouTube (Mar. 6, 2023), https://youtu.be/Opy7MLGAPBk?t=169 [https://perma.cc/753P-ESUW].
5 Fox News, "QAnon Shaman's" Lawyer Speaks Out After Jan. 6 Bombshell Footage Released, YouTube (Mar. 9, 2023) https://www.youtube.com/watch?v=WTdL5VtjbtY [https://perma.cc/T4BP-68ST].
6 In early May 2023, a jury convicted Pezzola of eight of the ten crimes for which he was indicted, including seditious conspiracy in violation of 18 U.S.C. § 2384. Verdict, United States v. Pezzola, 21-cr-175-6 (TJK), ECF No. 804.
7 The Court follows government counsel's lead in referring to cameras by letter instead of their true identifiers due to the sensitive nature of the cameras and their locations. See Gov't Opp'n at 9 n.4.
8 Mr. Chansley's motion contains a purported excerpt from the government's March 27 letter indicating that this video was produced via Evidence.com on October 22, 2021 along with the vast majority of the other videos appearing in the segment. Def.'s Mot. at 12. However, the government's opposition indicates that this file was produced in May 2021. Gov't Opp'n at 9. The exact date of production is immaterial, as the Court will explain, because the record unmistakably shows that this video was not suppressed nor is it exculpatory.
9 Even though this clip was not available to Mr. Chansley prior to the conclusion of his case, it does not exculpate him nor would its disclosure have affected this Court's sentencing determination. See Part 111.C.
10 Mr. Chansley's plea agreement expressly reserved the right to collaterally attack his conviction based on a claim of ineffective assistance of counsel. Plea Agreement ¶ IX(E).
11 One 10-second video showing Mr. Chansley's movements outside of the Senate chamber was not disclosed to plea counsel prior to sentencing. However, because that video was not exculpatory, there is no Brady violation with respect to that video. See Part III.C.2.
12 In fact, as Mr. Chansley admits, counsel was aware of this information even earlier. On January 9, 2021, Mr. Chansley participated in an interview with the Federal Bureau of Investigation. Def. 's Mot. at 18-19. In that interview, Mr. Chansley "claimed that police escorted him into the Senate Chamber and asked if he would assist in getting the protestors to vacate the Chamber. [Mr.] Chansley claimed to use his megaphone to request that protestors depart." Id. at 19. Though Mr. Chansley later contradicted the second claim through his agreement to the facts as outlined in the Statement of Offense, the first claim is consistent with the Statement of Offense.
13 Both the government and plea counsel acknowledged the overwhelming evidence of Mr. Chansley's guilt, Sent'g Hr'g Tr. at 4: 13-16; 16:18-21. Given these facts, "[i]t is highly improbable" that Mr. Chansley would have declined to plead guilty and instead proceed to trial. United States v. Thomas, 999 F.3d 723, 738 (D.C. Cir. 2021). Furthermore, Mr. Chansley faced a potential sentence of 20 years in prison-more than five times longer than the term he actually received-had he gone to trial. Sent'g Hr'g Tr. at 42:12-18. A defendant cannot establish prejudice under these circumstances. See United States v. Ayers, 938 F. Supp. 2d 108, 115 (D.D.C. 2013).
14 At the time of his November 2021 sentencing, the government had not gathered any evidence that Mr. Chansley was aware of the noose hanging outside of the Capitol building at the time that he sat in the Vice President's chair and wrote his threatening note. Sent'g Hr'g Tr. at 8:7-13. Therefore, the Court did not take that event into consideration in imposing Mr. Chansley's sentence. Since then, the government has gathered terabytes of additional evidence regarding the events of January 6, 2021. Were Mr. Chansley to be resentenced today, perhaps the government would be able to present such evidence and, if so, the Court would certainly consider such evidence in imposing a new sentence.
15 See, e.g., Caitlin Sievers, "QAnon Shaman" Looks to Overturn Sentence, Says He Never Renounced QAnon, A'Z Mirror (June 22, 2023), https://www.azmirror.com/2023/06/22/qan ... s-henever- renounced-qanon/ [https://perma.ccN84G-UUR.7]; Mike Wendling, The 'QAnon Shaman' and Other Capitol Rioters Who Regret Pleading Guilty, BBC News (July 16, 2023), https://www.bbc.com/news/world-us-canada- 66169914 [https://perma.cc/8MTE-PWKM].
16 George Orwell, 1984, at 103 (1949).
B. Brady Applies at the Plea-Bargaining Stage
Mr. Chansley' s motion assumes that Brady provides a right to the disclosure of exculpatory information by the government to the criminal defendant at the plea-bargaining stage but does not directly address this question or offer any authority to support his position. The government, on the other hand, does engage with the question-whether Brady applies throughout the criminal proceeding or if it is only a trial right-and notes that there is currently a circuit split on the issue with no binding authority in this Circuit, but does not take a formal position. See Gov't Opp'n at 11 n.5; compare United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (holding that Brady applies to the non-disclosure of exculpatory evidence prior to plea bargain); Campbell v. Marshall, 769 F.2d 314, 322-24 (6th Cir. 1985) (same); White v. United States, 858 F.2d 416,422 (8th Cir. 1988) (same); Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995) (same); United States v. Ohiri, 133 Fed. App'x 555, 561--62 (10th Cir. 2005) (same); with United States v. Moussaoui, 591 F.3d 263,285 (4th Cir. 2010) (holding that Brady applies to the non-disclosure of exculpatory evidence only at the trial stage); Matthew v. Johnson, 201 F.3d 353, 361--62 (5th Cir. 2000) (same).
This Court joins the weight of authority and the principles enshrined in Brady to conclude that a defendant may challenge the validity of his guilty plea on the basis of Brady. Plea bargaining is a critical component of our modern criminal justice system. As the Supreme Court emphasized in Brady, "our system of the administration of justice suffers when any accused is treated unfairly." 373 U.S. at 87. When a defendant is forced to decide whether to go to trial or plead guilty without knowledge of exculpatory evidence in the government's possession, he suffers unfairness of the highest order. This is because shielding the plea-bargaining process from Brady creates perverse incentives for prosecutors to "deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas." Sanchez, 50 F .3d at 1453. What is more, plea bargaining is just one step in the process of preparing for a trial. Plea agreements, like any other contract, are only finalized after the assent of both parties. See Puckett v. United States, 556 U.S. 129, 137 (2009). In the situation where a defendant and the government fail to reach a plea agreement, or if that agreement is not accepted by the Court, a defendant must proceed to trial. A Brady rule that absolves the government of any responsibility to disclose exculpatory evidence until the eve of trial would impermissibly hinder a criminal defendant in the preparation of his defense. See United States v. Pollack, 534 F.2d 964, 973-74 (D.C. Cir. 1976). Under these circumstances, the Court agrees with the majority of circuit courts that Brady provides a right to the disclosure of exculpatory information at the plea-bargaining stage.
C. Mr. Chansley's Brady Argument Is Without Merit
Even though Mr. Chansley may assert his Brady claim, he does not meet his burden to show that he is entitled to relief on that basis. He argues that the government violated its obligations under Brady, and therefore secured an unconstitutional sentence, by not disclosing the videos broadcast on March 6, 2023. Mr. Chansley's argument, and its various permutations, is belied by the record, applicable law -- or both.
1. Nearly all of the videos at issue were disclosed to the defense
Mr. Chansley relies primarily on a televised statement by his former counsel-unswom and not subject to Rule 11 sanctions-along with the absence of plea counsel's discussion of the videos at sentencing as evidence that the videos were withheld from the defense. Perhaps plea counsel's memory has faded over the past two years. Perhaps plea counsel's statement was fueled by personal motives contrary to the interest of his former client. Regardless, the record is plain that the vast majority of the videos, and all the pertinent content contained therein, was indeed disclosed to the defense as early as May 2021 and by mid-October 2021 at the latest. 11
All of the facts surrounding Mr. Chansley's movements around the Capitol featured in the television program were disclosed months before Mr. Chansley's guilty plea, as he concedes. Def. 's Reply at 2-3. For example, the program showed Mr. Chansley's interaction with enforcement officers in the Senate stairwell, after he left the Senate gallery and before he entered the Senate chamber. This same footage was captured by MPD body-worn cameras that were made discoverable on May 17, 2021. Gov't Opp'n at 18; ECF No. 38-1 at 2. Finally, grand jury transcripts containing testimony of an officer who encountered Mr. Chansley several times on January 6, 2021, and who appears in the footage aired in the March 6, 2023 broadcast, were disclosed to plea counsel by May 19, 2021. Gov't Opp'n at 19; ECF No. 38-1 at 2. 12
The television program also discussed Mr. Chansley' s time on the Senate floor. The record demonstrates that footage depicting these same events, recorded by The New Yorker, was disclosed to plea counsel on April 24, 2021. Gov't Opp'n at 18; ECF No. 38-1 at 2. On May 14, 2021, plea counsel confirmed by email that he was aware of the video and that it was his position that the video "depict[ ed] the door to the Chamber being held for Mr. Chansley by law enforcement as he entered into the Chamber (followed thereafter by law enforcement)[,]" whom plea counsel later identified as Officer Robishaw. Gov't Opp'n at 18 (quoting Email, Ex. 1 to Sealed Gov't Opp'n, ECF No. 124-1 at 1, 5). Plea counsel further claimed that the video showed Mr. Chansley "being escorted into the Chamber just before 3:00p[m]." Id. (quoting Email at 1). In fact, plea counsel demonstrated awareness of evidence of his client supposedly interacting peacefully with law enforcement in the Capitol building two months earlier when he argued in support of his client's (unsuccessful) motion for pre-trial release. ECF No. 28 at 10:2-4. Thus, plea counsel's statements by email and in court reveal that counsel was aware of all pertinent facts aired in the March 6, 2023 program at least four months prior to Mr. Chansley' s plea.
The vast majority of the CCTV footage aired on the program, which did not contain any new facts, was made discoverable through Evidence.com prior to Mr. Chansley's sentencing. Gov't Opp'n at 16-17. Mr. Chansley cries foul at the government's representation in the Pezzola case -- that disclosure occurred on September 24, 2021-and the government's representation in this case -- that disclosure occurred on October 22, 2021-and claims that both representations are likely "false." Def.'s Mot. at 12. Rather than intentional government obfuscation, there is a far more likely, innocent explanation for the date discrepancy. As the government stated in its second discovery update in this case, filed on September 17, 2021, the government merely "expect[ ed]" to produce the videos via Evidence.com by September 24, 2021. The next update, filed on October 25, 2021, confirmed that the videos were, in fact, produced as of October 21, 2021 (which the government now clarifies as October 22, 2021). Regardless, contrary to defense counsel's assertions, the information was, in fact, produced by October 2021 at the very latest.
In alternative, Mr. Chansley argues that even if the videos were disclosed, the government provided too many videos too late because it would have been physically impossible for defense counsel to review the 4,800 hours of footage disclosed on October 22, 2021 before Mr. Chansley' s sentencing in mid-November 2021. Def.'s Mot. at 16 & n.3. Aside from the fact that "[Mr. Chansley] cite[ s] no authority for the proposition that the government fails to meet its Brady [] obligations by providing too much discovery," United States v. Bingert, Nos. 21-cr-91-1, 21-cr- 91-2 (RCL), 2023 WL 3203092, at *6 (D.D.C. May 9, 2023) (emphasis in original), this argument is an obvious red herring. As the government points out, Mr. Chansley was well aware of the path he walked on January 6, 2021. Gov't Opp'n at 17. That knowledge, combined with the government's disclosure of maps showing the CCTV cameras' locations and a guide for identifying the relevant cameras, certainly enabled the defense to focus on reviewing footage captured by cameras only in the areas of the Capitol that Mr. Chansley actually visited.
Mr. Chansley's Brady claim fails at the outset because the record confirms that none of the relevant facts have been suppressed. Blackley, 986 F. Supp. at 603. The Court further notes that "the volume of discovery does not excuse defense counsel," including Mr. Chansley's post-conviction counsel, "from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures." Mem. Order, Pezzola, at 3.
2. None of the videos are exculpatory
Despite spilling much ink on the supposed significance of the videos, Mr. Chansley does not explain why he believes the videos are exculpatory with respect to the charge to which he pleaded guilty: obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2). This is likely because he cannot make this showing.
Mr. Chansley admitted to engaging in the following conduct on January 6, 2021, all before the events recorded in the videos aired in the March 6, 2023 program: participating in a violent riot; being one of the first rioters to unlawfully enter the Capitol; traveling through hallways, stairwells, and the Senate gallery for approximately 38 minutes; encountering law enforcement on several occasions; ignoring their direct orders; screaming obscenities; and demanding that fleeing lawmakers be brought out to face the mob. Moreover, Mr. Chansley admitted to engaging in the following conduct after the events recorded in the videos: entering the Senate chamber; climbing on the Senate dais; ignoring multiple direct orders from the lone law enforcement officer in the chamber; sitting in the Vice President's chair; leaving a threatening message for the Vice President; leading the rioters in the chamber in a demonstration; and only vacating the chamber after multiple other law enforcement officers arrived. These facts show that Mr. Chansley intended to, and did, obstruct the certification proceedings. That law enforcement officers outnumbered by the quantity of rioters did not physically engage Mr. Chansley or impede his progress is irrelevant to his guilt with respect to Count Two.
Of the videos appearing in the March 6, 2023 segment, one 10-second video was disclosed in February 2023, after the conclusion of Mr. Chansley's case. The clip, capturing Mr. Chansley's movements at approximately 2:59 pm, appears to show him outside of the Senate chamber accompanied by two law enforcement officers. One of the law enforcement officers reaches out to briefly touch a door before leading Mr. Chansley away from the Senate chamber. Mr. Chansley argues that this video, and others, provide further context "about how he came to be inside the Senate Chamber," which he argues is evidence casting doubt on his intent to obstruct the certification proceedings. Def.' s Mot. at 19. This argument, like his others, misses the mark. The circumstances surrounding his entry into the Senate chamber are not legally relevant. His presence that day, his refusal to obey multiple orders :from law enforcement, and his specific statements and actions all created serious safety concerns and forced an end to the certification proceedings, consistent with his expressed intent. In addition, entry into the Senate chamber, or even the Capitol building, is not a required element for guilt under 18 U.S.C. § 1512(c), as this Court has implicitly determined numerous times. See, e.g., Notes for Oral Ruling, United States v. Worrell, No. 21-cr- 292-1, ECF No. 245 (D.D.C. May 12, 2023); Notes for Oral Ruling, Bingert, ECF No. 166; Notes for Oral Ruling, United States v. Hostetter, No. 21-cr-392-1 (RCL), ECF No. 275 (D.D.C. July 13, 2023); Findings of Pact and Conclusions of Law, United States v. Powell, No. 21-cr-179 (RCL), ECF No. 110 (D.D.C. July 18, 2023).
As a fallback position, Mr. Chansley appears to argue that the videos show that "he committed no acts of violence, that he expressed no hostility or intention to do violence to any property or individuals" and therefore the 8-point sentencing enhancement was improper. Def. 's Mot. at 19; see also id. at 17-19. But that argument suffers from the same fatal defect as the March 6, 2023 broadcast: it lacks the context of what occurred before and after. The enhancement applies "[i]f the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice[.]" U.S.S.G. § 2Jl.2(b)(l)(B). As explained above, Mr. Chansley's actions on January 6, 2021 more than fit the bill.
Whether the videos from the March 6, 2023 television segment are viewed individually or in context with the rest of the evidence against Mr. Chansley, the videos are not exculpatory. Therefore, Mr. Chansley's Brady claim fails at the second prong of the analysis as well.
3. The government's discovery approach in his case did not violate its Brady obligations
Separate from the alleged failure to disclose specific videos, Mr. Chansley argues that the government's approach to discovery contravened the applicable Brady standard in this District. See, e.g., Def. 's Mot. at 9; Def. 's Reply at 3-4. That argument, like his others, is misplaced.
In cases involving voluminous discovery, courts are "wary of requiring the government to, in effect, do defense counsel's work for them and of inserting itself into the fray of micromanaging discovery in these cases." United States v. Sheppard, No. 21-cr-203 (JDB), 2022 WL 17978837, at *14 (D.D.C. Dec. 28, 2022). "On the other hand, [courts are] sympathetic to the needle-in-thehaystack problem defendants face when confronted with such enormous amounts of discovery, only some of which is relevant to their cases, particularly since defense counsel have comparatively fewer resources at their disposal for identifying which evidence is relevant." Bingert, 2023 WL 3203092, at *6 (citing United States v. Hsia, 24 F. Supp. 2d 14, 29 (D.D.C. 1998)). Balancing the government's obligations and defendants' responsibilities, courts in this District have settled on the following standard: '"[T]o the extent that the government knows of any [Brady] material in its production,' the Court will 'require [the government] to identify' it." Sheppard, 2022 WL 17978837, at *14 (alterations in original) (quoting United States v. Saffarinia, 424 F. Supp. 3d 46, 86 (D.D.C. 2020)).
Mr. Chansley cites the government's first September 17, 2021 discovery update, and the two district court cases referenced in a footnote therein, as evidence that the government's approach to discovery does not adhere to Saffarinia. Def 's Mot. at 14; ECF No. 75 at 2 (citing United States v. Meek, No. 19-cr-378 (JMS/MJD), 2021 WL 1049773, at *5 (S.D. Ind. Mar. 19, 2021) and United States v. Ohle, No. S3-08-cr-1109 (JSR), 2011 WL 651849, at *4 (S.D.N.Y. Feb. 7, 2011)).
Taking the second portion of his argument first-and declining to opine on the wisdom of the government's choice to cite out-of-circuit, unpublished memorandum orders for points oflaw as important as Brady-Mr. Chansley' s argument misses the mark. The government cited those cases merely for the proposition that "[ d]efendants are in a better position to determine what evidence they believe is exculpatory and will help in their defense" than the government. ECF No. 75 at 2 (citing Meek, 2021 WL 1049773, at *5). That proposition is not inconsistent with Saffarinia. What is more, Mr. Chansley reads Saffarinia far too broadly. That opinion clearly held that the government is only required "to identify Brady material already known to it based on its existing knowledge of the documents it collected and reviewed in the first instance[,]" and that, as a corollary, the government is not required to "sift through the evidence in search of anything that could help the defense[.]" Saffarinia, 424 F. Supp. 3d at 86 (emphases in original) (internal citations omitted). In other words, Saffarinia does not require the government to specifically identify to a defendant any evidence in the government's voluminous disclosures that could conceivably qualify as Brady material based on the government's anticipation of any possible defense theory. Instead, Saffarinia only requires the government to identify exculpatory evidence of which it is aware.
The first part of Mr. Chansley's Brady argument similarly falters. In his view, the government's en masse production of discovery with the opportunity for defendants to lodge specific requests for information that they believe to be exculpatory is improper because this District "looks with disfavor on narrow readings of the government's Brady obligations[.]" Def. 's Mot. at 10 (collecting cases). But it is precisely the government's recognition of this District's exacting Brady standards that compelled the government to contract for, fund, and facilitate the introduction of a platform to disseminate massive amounts of discovery in cases related to January 6, 2021, and to equip defense teams with the tools necessary to digest the information made available on the platform. To be sure, this unprecedented prosecutorial effort places enormous disclosure burdens on the government and necessitates novel approaches to sharing discovery information with defendants. That said, Mr. Chansley has not demonstrated how the government's approach is inconsistent with Brady.
As a last gasp, Mr. Chansley faults the government for not providing him with specific discovery earlier because he was "easy to identify in the crowd of people who entered the Capitol" due to his distinctive costume. Def.'s Mot. at 13. Mr. Chansley does not cite any authority, and the Court is aware of none, stating that the government faces a heightened Brady obligation merely because a defendant is recognizable. Regardless, as previously discussed, the evidence that Mr. Chansley claims is exculpatory is decidedly not so.
* * *
Mr. Chansley has failed to demonstrate that the government fell short of its Brady obligations with respect to the production of video evidence in his case. Therefore, this claim fails.
D. Mr. Chansley's Ineffective Assistance of Counsel Argument Is Without Merit
Despite his repeated assertions that he was satisfied with plea counsel in writing and on the record, Mr. Chansley now argues that plea counsel was ineffective in two ways: (1) by encouraging him to accept a plea agreement containing a sentencing enhancement and appeal waivers; and (2) by not demanding production of the CCTV videos aired during the March 6, 2023 program prior to sentencing in order to use such video at sentencing. Def.'s Mot. at 17-21. He claims that he suffered prejudice because, absent these errors, he would have received a more favorable plea agreement and the Court would have imposed a lower sentence. Id. His argument is wildly speculative, contrary to established caselaw and practice, and devoid of common sense.
1. Mr. Chansley has not demonstrated that plea counsel's performance was deficient
Mr. Chansley's ineffective assistance of counsel claim stumbles at the start because he is unable to establish that his plea counsel's performance was deficient.
Mr. Chansley's first argument, that plea counsel erred in negotiating the terms of his plea agreement, collapses upon cursory inspection. First, a "prosecutor is not obligated to make a plea offer at all, let alone a plea offer on any particular terms." United States v. Zaia, 751 F. Supp. 2d 132, 143 (D.D.C. 2010). Similarly, Mr. Chansley does not point this Court to any authority stating that counsel has a constitutional duty to pursue a plea agreement more favorable than the agreement actually offered. What is more, dissatisfaction with the terms of a plea agreement alone cannot serve as a basis for an ineffective assistance of counsel claim. See United States v. Brunetti, 376 F.3d 93, 95 (2d Cir. 2004); Hunter v. United States, 160 F.3d 1109, 1115 (6th Cir. 1998). Second, plea counsel's suggestion to Mr. Chansley that he accept the plea agreement with the sentencing enhancement and appeal waiver fell squarely within the "wide range of reasonable professional assistance" that Strickland protects. 466 U.S. at 689. In exchange for Mr. Chansley's plea, the government agreed to dismiss the other charges pending against him and not to pursue other potential sentencing enhancements. Gov't Opp'n at 24 n.11. This sort of bargained-for-exchange is entirely consistent with effective performance by counsel during the plea process.
Mr. Chansley' s second claim, that plea counsel erred by not demanding or using the CCTV footage, also fails. As previously discussed, plea counsel did, in fact, have access to the videos well in advance of Mr. Chansley's sentencing. Similarly, as the government correctly notes, the record reflects that plea counsel reviewed such evidence with Mr. Chansley. See id. at 27 ( citing Sent'g Hr'g Tr. at 26:13-16). And contrary to Mr. Chansley's insistence, plea counsel's decision not to present the videos during sentencing does not demonstrate ineffective assistance-in fact, it was quite effective. The Court agrees with the government that plea counsel's strategic choice to use his presentation to focus on Mr. Chansley's remorse and acceptance of responsibility, rather than present additional video evidence in a futile attempt to contradict the obvious facts of the case, was objectively reasonable. See id. at 27-28. And that decision was all the more reasonable when considering that the Court previously rejected as unpersuasive plea counsel's attempt to cite the facts contained in the videos in light of the rest of the evidence of Mr. Chansley's conduct. See Chansley, 525 F. Supp. 3d at 170-71. Plea counsel sensibly changed course at sentencing, noting that the government was still pursuing investigations and gathering evidence related to the events of January 6, 2021, but that he and Mr. Chansley were "not in a position of slowing this court proceeding down because [they didn't] have to, because those investigations, those outcomes are irrelevant as to [Mr. Chansley], as to the defendant in this case, as to the decision of [Mr. Chansley] to enter a plea[.]" Sent'g Hr'g Tr. at 16:11-15. Plea counsel emphasized that Mr. Chansley wanted "to be held accountable based on evidence that we have today, that this court has seen." Id. at 16:16-17. Based on this presentation, along with Mr. Chansley's own comments, the Court determined that the appropriate sentence in his case was the bottom of the applicable Guidelines range, despite the seriousness of Mr. Chansley' s conduct.
Mr. Chansley does not meet his burden to establish that plea counsel performed deficiently.
2. Mr. Chansley has not demonstrated that he suffered any prejudice
As for prejudice, Mr. Chansley attempts to tread a fine line. He wisely does not claim that he would have opted for trial absent counsel's performance. Nor could he.13 Instead, he argues that, had plea counsel performed effectively, he would still have proceeded with a plea agreement, but would have agreed to one absent the sentencing-enhancement stipulation or the appeal waivers. Def.'s Mot. at 20-21. Mr. Chansley argues that without the stipulation, his recommended Guidelines sentence would have been lower and that without the waiver, he would have been able to appeal his sentence on any grounds he wished. Id. However, these hypothetical scenarios fall woefully short of establishing a legally sufficient showing of prejudice.
As discussed above, neither the government nor plea counsel had any obligation to reach a plea agreement without the sentencing enhancement or appeal waiver. Also, the enhancement at issue, U.S.S.G. § 2Jl.2(b)(l)(B), has been approved by courts in this District in a variety of cases involving the events of January 6, 2021, including this Court. Gov't Opp'n at 26 (collecting cases). And regarding the appeal waiver, it is clear that "[a] 'knowing, intelligent, and voluntary' waiver of the right to appeal 'generally may be enforced."' United States v. Adams, 780 F .3d 1182, 1183 (D.C. Cir. 2015) (quoting United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009)). Mr. Chansley has not alleged, much less shown, that his plea was not knowing, intelligent or voluntary. Nor has he so much as hinted at what other legal challenges to his conviction he could or would have raised had he not waived his direct-appeal rights. Under these circumstances, he cannot show that he suffered any prejudice due to the terms of the plea agreement that he accepted.
Similarly, Mr. Chansley has not met the required prejudice showing with respect to plea counsel's alleged failure to demand or use the CCTV footage appearing in the March 6, 2023 broadcast. Even if plea counsel had presented the Court with this footage, which, as discussed above, plea counsel was correct not to, Mr. Chansley would not have received a lower sentence. The criminal nature of Mr. Chansley's actions that day, including his decision to leave a note threatening "It's Only A Matter of Time. Justice Is Coming!" at the heart of the U.S. government, establish the appropriateness of a sentence of at least 41 months' incarceration. 14 In fact, without Mr. Chansley' s apparently unequivocal acceptance of responsibility, the Court is confident that he would have received a higher sentence.
In sum, Mr. Chansley cannot demonstrate that either the absence of certain terms in the plea agreement or the presence of the CCTV footage at sentencing would have resulted in even a "conceivable[] likelihood of a different result," much less a "substantial" one. Cullen, 563 U.S. at 189. Therefore, he has not established prejudice.
* * *
Mr. Chansley' s claims are without merit. Thus, the Court will DENY his motion to vacate, set aside, or correct his conviction under 28 U.S.C. § 2255.
The Court is disappointed to learn that, through his filings and public statements, Mr. Chansley has recanted the contrition displayed at his sentencing nearly two years ago. 15 Such an about-face casts serious doubt on the veracity of any of Mr. Chansley' s claims, here or elsewhere.
Finally, the Court would be remiss if it did not address the ill-advised television program of March 6, 2023. Not only was the broadcast replete with misstatements and misrepresentations regarding the events of January 6, 2021 too numerous to count, the host explicitly questioned the integrity of this Court -- not to mention the legitimacy of the entire U.S. criminal justice system with inflammatory characterizations of cherry-picked videos stripped of their proper context. In so doing, he called on his followers to "reject the evidence of [their] eyes and ears," language resembling the destructive, misguided rhetoric that fueled the events of January 6 in the first place. 16 The Court finds it alarming that the host's viewers throughout the nation so readily heeded his command. But this Court cannot and will not reject the evidence before it. Nor should the public. Members of the public who are concerned about the evidence presented in Mr. Chansley's case and others like may view the public docket and even attend court proceedings in these cases. Those of us who have presided over dozens of cases arising from, listened to hundreds of hours of testimony describing, and reviewed thousands of pages of briefing about the attack on our democracy of January 6 know all too well that neither the events of that day nor any particular defendant's involvement can be fully captured in a seconds-long video carelessly, or perhaps even cynically, aired in a television segment or attached to a tweet.
IV. CERTIFICATE OF APPEALABILITY
Before appealing a final order denying a § 2255 motion, a court must "issue or deny a certificate of appealability." Fed. R. Governing § 2255 Proceedings 1 l(b). The defendant may not appeal without this certificate of appealability, which requires "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). Doing so requires the defendant to demonstrate "that reasonable jurists could debate whether ( or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983) (internal quotation marks omitted)). When a district court denies relief on procedural grounds, the defendant must also show that reasonable jurists would debate "whether the district court was correct in its procedural ruling." United States v. Baxter, 761 F.3d 17, 26 n.10 (D.C. Cir. 2014) (quoting Slack, 529 U.S. at 484).
Mr. Chansley's arguments are without merit. For these reasons, the Court finds that reasonable jurists would not debate whether his claims deserve encouragement to proceed further. Mr. Chansley has not made a substantial showing of the denial of a constitutional right. The Court will therefore decline to issue a certificate of appealability for Mr. Chansley's claims.
V. CONCLUSION
For these reasons, the Court concludes that Mr. Chansley's motion and the record in his case do not show his entitlement to relief. No evidentiary hearing is warranted, see 28 U.S.C. § 2255(b), and the Court will DENY Mr. Chansley's motion. No certificate of appealability shall issue. A separate Order consistent with this Memorandum Opinion shall issue.
SIGNED this 20th day of July, 2023.
Royce C. Lamberth
United States District Judge
_______________
Notes:
1 In total, the government provided nine discovery updates in this case. Gov't Opp'n at 3 n.2.
2 Mr. Chansley appealed his conviction, ECF No. 108, but the U.S. Court of Appeals for the District of Columbia Circuit later issued a mandate dismissing Mr. Chansley's appeal pursuant to his own motion, ECF No. 112.
3 Scott Macfarlane, "QAnon Shaman" Jacob Chansley Released Early from Federal Prison, Transferred to Halfway House, CBS News, https://www.cbsnews.com/news/qanon-sham ... onhalfway- house-jan-6/ [https://perma.cc/4WNZ-4WVS].
4 Fox News, Tucker: This Video Tells A Different Story of Jan 6, YouTube (Mar. 6, 2023), https://youtu.be/Opy7MLGAPBk?t=169 [https://perma.cc/753P-ESUW].
5 Fox News, "QAnon Shaman's" Lawyer Speaks Out After Jan. 6 Bombshell Footage Released, YouTube (Mar. 9, 2023) https://www.youtube.com/watch?v=WTdL5VtjbtY [https://perma.cc/T4BP-68ST].
6 In early May 2023, a jury convicted Pezzola of eight of the ten crimes for which he was indicted, including seditious conspiracy in violation of 18 U.S.C. § 2384. Verdict, United States v. Pezzola, 21-cr-175-6 (TJK), ECF No. 804.
7 The Court follows government counsel's lead in referring to cameras by letter instead of their true identifiers due to the sensitive nature of the cameras and their locations. See Gov't Opp'n at 9 n.4.
8 Mr. Chansley's motion contains a purported excerpt from the government's March 27 letter indicating that this video was produced via Evidence.com on October 22, 2021 along with the vast majority of the other videos appearing in the segment. Def.'s Mot. at 12. However, the government's opposition indicates that this file was produced in May 2021. Gov't Opp'n at 9. The exact date of production is immaterial, as the Court will explain, because the record unmistakably shows that this video was not suppressed nor is it exculpatory.
9 Even though this clip was not available to Mr. Chansley prior to the conclusion of his case, it does not exculpate him nor would its disclosure have affected this Court's sentencing determination. See Part 111.C.
10 Mr. Chansley's plea agreement expressly reserved the right to collaterally attack his conviction based on a claim of ineffective assistance of counsel. Plea Agreement ¶ IX(E).
11 One 10-second video showing Mr. Chansley's movements outside of the Senate chamber was not disclosed to plea counsel prior to sentencing. However, because that video was not exculpatory, there is no Brady violation with respect to that video. See Part III.C.2.
12 In fact, as Mr. Chansley admits, counsel was aware of this information even earlier. On January 9, 2021, Mr. Chansley participated in an interview with the Federal Bureau of Investigation. Def. 's Mot. at 18-19. In that interview, Mr. Chansley "claimed that police escorted him into the Senate Chamber and asked if he would assist in getting the protestors to vacate the Chamber. [Mr.] Chansley claimed to use his megaphone to request that protestors depart." Id. at 19. Though Mr. Chansley later contradicted the second claim through his agreement to the facts as outlined in the Statement of Offense, the first claim is consistent with the Statement of Offense.
13 Both the government and plea counsel acknowledged the overwhelming evidence of Mr. Chansley's guilt, Sent'g Hr'g Tr. at 4: 13-16; 16:18-21. Given these facts, "[i]t is highly improbable" that Mr. Chansley would have declined to plead guilty and instead proceed to trial. United States v. Thomas, 999 F.3d 723, 738 (D.C. Cir. 2021). Furthermore, Mr. Chansley faced a potential sentence of 20 years in prison-more than five times longer than the term he actually received-had he gone to trial. Sent'g Hr'g Tr. at 42:12-18. A defendant cannot establish prejudice under these circumstances. See United States v. Ayers, 938 F. Supp. 2d 108, 115 (D.D.C. 2013).
14 At the time of his November 2021 sentencing, the government had not gathered any evidence that Mr. Chansley was aware of the noose hanging outside of the Capitol building at the time that he sat in the Vice President's chair and wrote his threatening note. Sent'g Hr'g Tr. at 8:7-13. Therefore, the Court did not take that event into consideration in imposing Mr. Chansley's sentence. Since then, the government has gathered terabytes of additional evidence regarding the events of January 6, 2021. Were Mr. Chansley to be resentenced today, perhaps the government would be able to present such evidence and, if so, the Court would certainly consider such evidence in imposing a new sentence.
15 See, e.g., Caitlin Sievers, "QAnon Shaman" Looks to Overturn Sentence, Says He Never Renounced QAnon, A'Z Mirror (June 22, 2023), https://www.azmirror.com/2023/06/22/qan ... s-henever- renounced-qanon/ [https://perma.ccN84G-UUR.7]; Mike Wendling, The 'QAnon Shaman' and Other Capitol Rioters Who Regret Pleading Guilty, BBC News (July 16, 2023), https://www.bbc.com/news/world-us-canada- 66169914 [https://perma.cc/8MTE-PWKM].
16 George Orwell, 1984, at 103 (1949).
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Thu Jul 27, 2023 3:30 am
Lev Parnas REVEALS MORE Trump Crimes HE WITNESSED and his BOMBSHELL Letter to Congress
by Lev Parnas
MeidasTouch
Jul 26, 2023
On today’s episode, Former Donald Trump and Rudy Giuliani Associate Lev Parnas reads from his exclusive letter to Rep. James Comer of the House Oversight Committee. His letter outlines Trump and Giuliani’s efforts to dig up dirt on the Biden family as well as their continued efforts to interfere with the highest levels of Ukrainian politics.
Transcript`
Hi everyone. Welcome to Lev Parnas's Diaries from home confinement. For those of you that don't know me, I used to be part of Donald Trump's inner circle, in Trump's cult. Donald Trump and Rudy Giuliani sent me to Ukraine to dig up dirt on Joe and Hunter Biden. Now that I'm out of the cult, and finishing up my sentence on home confinement, I want to share some of my diary stories with you.
Last week the oversight committee, led by representative James Comer, held a hearing to spread more conspiracy theories into Joe and Hunter Biden. Representative Jamie Raskin read portions of my letter, and entered it into evidence.
Like most of you, I've been watching the GOP, led by Senator Chuck Grassley, representative James Comer, and their cohorts like Marjorie Greene, continue to spread misinformation, and spread conspiracy theories, related to Joe and Hunter Biden, to confuse the American public.
And most importantly to distract from the real criminal, their leader, twice-impeached, twice-indicted, and with more indictments coming, Donald J Trump.
I'm currently in the process of writing my tell-all book. It's called, "Shadow Diplomacy," detailing everything that transpired in the Trump's Administration pertaining to the Bidens, and much, much more. Since the book is not scheduled to be released for a few more months, as a concerned citizen, and someone that loves our country, I had to do more. I had to act now.
So I decided to take pen to paper and write James Comer a letter, describing what actually transpired in our year and a half long investigation into Hunter and Joe Biden. Now I'm going to read the letter to you, and then we'll go discuss some things afterwards.
So there you have it folks. That was my 10-page letter that I wrote to James Comer. And what did he do? He basically looked the other way, just like they do all time. Because they don't want the truth. They don't want to get to the bottom of it. All they want to do is give you bits and pieces, they want to give you conspiracy theories, they want to confuse the people all for the simple fact: to deflect from the real criminal, like I said, Donald J Trump.
Thank you for watching. You can follow me on Twitter or Threads or Instagram at LevParnas. And please make sure to subscribe to the Meidas touch Network.
by Lev Parnas
MeidasTouch
Jul 26, 2023
On today’s episode, Former Donald Trump and Rudy Giuliani Associate Lev Parnas reads from his exclusive letter to Rep. James Comer of the House Oversight Committee. His letter outlines Trump and Giuliani’s efforts to dig up dirt on the Biden family as well as their continued efforts to interfere with the highest levels of Ukrainian politics.
Transcript`
Hi everyone. Welcome to Lev Parnas's Diaries from home confinement. For those of you that don't know me, I used to be part of Donald Trump's inner circle, in Trump's cult. Donald Trump and Rudy Giuliani sent me to Ukraine to dig up dirt on Joe and Hunter Biden. Now that I'm out of the cult, and finishing up my sentence on home confinement, I want to share some of my diary stories with you.
Last week the oversight committee, led by representative James Comer, held a hearing to spread more conspiracy theories into Joe and Hunter Biden. Representative Jamie Raskin read portions of my letter, and entered it into evidence.
Comer, Republicans' Investigative Chief, Embraces Role of Biden Antagonist: The fourth-term Kentuckian and chairman of the House Oversight and Accountability Committee has become an aggressive promoter of sinister-sounding claims about the president and his family.
Democrats accuse GOP of spreading 'racist conspiracy theories' in Biden docs probe
by Rebecca Beitsch and Brett Samuels
05/03/23 12:21 PM ET
The memo also condemns committee Chairman James Comer (R-Ky.), accusing him of misrepresenting Chung's testimony while spreading "false, xenophobic, and racist conspiracy theories."
The memo points to media appearances by Comer, including those in which he suggests Chung, who was born in South Korea, had ties to Hunter Biden and the Chinese Community Party, telling Fox's Maria Bartiromo, "We're looking into that."
Donald Trump becomes the first U.S. president to be impeached twice
All eyes on a Washington grand jury amid signs of possible third Trump indictment
by Stephen Collinson, CNN
Updated 9:22 AM EDT, Thu July 20, 2023
Like most of you, I've been watching the GOP, led by Senator Chuck Grassley, representative James Comer, and their cohorts like Marjorie Greene, continue to spread misinformation, and spread conspiracy theories, related to Joe and Hunter Biden, to confuse the American public.
And most importantly to distract from the real criminal, their leader, twice-impeached, twice-indicted, and with more indictments coming, Donald J Trump.
I'm currently in the process of writing my tell-all book. It's called, "Shadow Diplomacy," detailing everything that transpired in the Trump's Administration pertaining to the Bidens, and much, much more. Since the book is not scheduled to be released for a few more months, as a concerned citizen, and someone that loves our country, I had to do more. I had to act now.
So I decided to take pen to paper and write James Comer a letter, describing what actually transpired in our year and a half long investigation into Hunter and Joe Biden. Now I'm going to read the letter to you, and then we'll go discuss some things afterwards.
"Dear Chairman Comer,
As I have been closely following the developments in Congress's investigations into both Donald Trump and Joe Biden, I believe I can place the facts in context for you. I write to you as a concerned American, who wishes only to share the information that I know to be true, so that we can lay to rest the conspiracy theories about Biden's supposed corruption in Ukraine once and for all.
I feel I have a responsibility to remind you, our representatives, and the American people of what actually happened during Rudy Giuliani and Donald Trump's efforts to uncover information about the Bidens in Ukraine. From November 2018 to October 2019, I was a key participant in and witness to these efforts; and every event described below, I was either physically present in the room with the people involved, on phone calls with Giuliani and the individuals in question, often interpreting between the Ukrainian and English languages, or communicating directly with Giuliani about the situation. Please consider that the facts I state here have never changed from when I first submitted to Congress everything I knew in November 2019. It has always been my intention to tell the truth, because I love this country with my whole heart, and I want our government to unite for the greater good instead of chasing false stories that divide us.
By reading the information below, you will understand the full extent of the campaign orchestrated by Giuliani and Trump to dig up dirt on the Bidens, and to spread misinformation about them through various networks including government officials, journalists, and FOX News personnel. You will also see clearly that there is no evidence of Joe or Hunter Biden interfering with Ukrainian politics, and there never has been. Statements suggesting otherwise have been debunked again and again. I hope that the breadth of my experiences, which are all backed up by the materials I previously shared with Congress, will provide that no stone has been unturned in this investigation.
Here are the facts as I know them to be true:
In November of 2018, I was approached by Rudy Giuliani, who asked me about my contacts in Ukraine and if I could verify some information he received about Joe Biden.
A video had been recently shared online in which Biden, being interviewed by Council on Foreign Relations, said that in 2016 he had pressured Ukraine's president Petro Poroshenko to fire his Prosecutor General Viktor Shokin.
Giuliani told me he had discussed with then-President Trump not only Biden's statements in the video, but also his discovery that Biden's son Hunter was on the board of the Ukrainian Energy company called Burisma and that Shokin was supposedly looking into possible corruption in the company. When Giuliani spoke to me, he got very excited and said, "This is the smoking gun [he'd] been looking for" -- meaning he saw it as a way to discredit the Bidens.
Later that month, I attended the Hanukkah celebration at the White House where Giuliani and Trump were both present. Trump approached me briefly to say, "Rudy told me good things. Keep up the good work." Then he gave me a thumbs-up in approval.
I met with Shokin for the first time in Ukraine in December of 2018. Giuliani had instructed me to relay a message to him, which was essentially that if he wanted to be reinstated as Prosecutor General -- a goal he expressed very openly -- that the Trump Administration could help him get his position back, but only if he provided hard evidence of Joe Biden's corruption. Initially Shokin said he had decided not to investigate Burisma further, but when I gave him Giuliani's message, he became shifty in his answers, admitting that his team was "looking into it" without giving further details.
I returned from Ukraine, Giuliani told me to ask Shokin to fly to the States to meet up with Senator Lindsey Graham, and when he was speaking to the visa authorities, he should tell them he was only going to California to see his daughter, not that he would then travel to Washington, D.C. to meet Graham.
However, when Shokin applied for his visa, then-Ambassador Marie Yavanovich denied him.
Communications ensued where Giuliani continued to pressure Shokin into helping him get information on the Bidens, although Shokin was being skeptical because Giuliani could not get him a visa approved, and he didn't understand how the president of the United States and his personal representative could not achieve something like that. Eventually they had a 45-minute Skype call in January 2019, where I served as an interpreter between the two of them, and of which there was a recording that I later submitted to Congress. The recording shows Giuliani aggressively asking Shokin for details on the Bidens. Even though Shokin was trying to push the narrative that he had lost his job because of the pressure Joe Biden had put on President Poroshenko to fire him, when asked directly by Giuliani, he conceded that there was no evidence of either Hunter or Joe Biden doing anything that interfered with Ukrainian law.
Giuliani continued to receive conspiracy theories from different sources, and remained insistent that there must be some data on the Bidens' corruption.
In late January 2019, my business partner Igor Fruman got word that Yuri Lutsenko, Shokin's replacement as Ukraine's Prosecutor General, was in New York and wanted to meet with Giuliani to discuss some legal matters. We set up the meeting in Giuliani's office on Park Avenue. There, Lutsenko explained he'd requested the meeting because he wanted to sit down with Bill Barr and, Attorney General to Attorney General, discuss the overall problem of Ukrainian and American corruption, including the funneling of Ukrainian money into American institutions. Giuliani stopped Lutsenko and said he wasn't interested in that, only in information concerning Joe and Hunter Biden. He then added statements to the effect that if Lutsenko wanted a conversation with Barr, he would need to offer a give and take, and Giuliani was interested in details about the Bidens.
Even though Lutsenko protested that he hadn't come to discuss the Bidens, he agreed to see what he could find for Giuliani. The next day, we all met again in Giuliani's office and Lutsenko brought a folder containing purported wire transfers from Burisma to Hunter Biden, and documents from the Prosecutor General's office outlining the company's hierarchy and organization from its CEO, Mykola Zlochevsky, on down. These documents did show what the Prosecutor General's office was doing in its investigation into Burisma, but again, there was no evidence in any of these materials that pointed to any criminal activity from Hunter Biden.
During the meeting, Giuliani stopped to call President Trump for about 3-5 minutes to update him on how the meeting was going with Lutsenko, and told Lutsenko that Trump was very happy with the help he was giving. He gave Lutsenko the thumbs-up.
Lutsenko then promised that if we went to Ukraine, he would help us meet with President Poroshenko and other officials who were dealing directly with the Burisma investigation. After the first meeting, Lutsenko kept pressuring Giuliani that he needed to meet Bill Barr. However, Giuliani eventually told Lutsenko he hadn't provided enough information, and that the only way he could meet Bill Barr was if he retained Giuliani for $200,000. He then gave Lutsenko a "contract." (It should be noted that Lutsenko refused to pay and to this day has never met Bill Barr.)
A few days later, Giuliani told me that he had decided that it might not be a good look for him to represent Ukrainian officials while representing Donald Trump, and introduced me to attorneys Victoria Toensing and DiGenova, who he said would represent Lutsenko instead. Later on, Giuliani told me that Toensing and DiGenova had agreed to split the $200,000 retainer fee in some part with him. In subsequent calls with Giuliani, Lutsenko was still upset and complaining about the whole situation, arguing that he shouldn't have to pay anything to meet one Attorney General to another, particularly because they had to discuss criminal matters between their respective countries.
In February 2019, Giuliani and I met Lutsenko in Poland, where the Prosecutor General was now more favorable to the idea of helping the Trump team investigate the Bidens.
He said President Poroshenko would meet with us, so Giuliani decided I should go straight from Poland to Ukraine on his behalf. I then had a three-hour meeting with Poroshenko. Giuliani's message to the president, who was running for re-election, was that Trump would support him and help him win if he made an official announcement of an investigation against Joe Biden.
Poroshenko was taken aback and relayed to me that he didn't trust Trump based on the bad deal they had made in 2018. At the time, he and Trump had met in the White House, and after the meeting one of Trump's aides suggested that Poroshenko should buy coal from a Pennsylvania Coal Company. The reason, they explained, was that Trump was about to have a rally in that part of the state and the purchase would be a good look for the relationship between the two countries. Poroshenko bought the coal, which was more expensive than Ukraine had paid for the same product from other sources, and he ended up having issues with the Ukrainian Parliament over the cost. After Trump had the rally, there were no further interactions between the two of them. So according to Poroshenko, he now had no reason to trust Trump, but he did tell me that he would wait to see what happened since the lines of communication had been opened.
Arriving back in the States, I began a series of regular meetings at the Trump International Hotel with Giuliani and what I later called the "BLT Team," because we always met at the BLT Steak restaurant in the hotel.
The BLT Team included Toensing, DiGenova, and John Solomon, an investigative reporter who was then working for The Hill and had many contacts at FOX News and the State Department, as well as having Trump on his speed dial. Solomon gave us information at the meetings that he said various sources had shared with him about the Bidens' dealings in Ukraine. Giuliani tasked me with traveling to Ukraine throughout March, April, and May 2019 to interview different people who had promised to give us information and evidence including records of bribes, bank records, and incriminating tapes.
Yet every time I went on these trips and conducted these interviews, I came up with nothing. Lutsenko kept assuring me that they would announce an investigation into the Bidens, but that never happened either.
Around the same time as the BLT Team began meeting, I was introduced by phone to Congressman Devin Nunes, who was leading his own separate investigation into the Bidens.
His team decided to work with the BLT Team, and I was told to keep in contact with Nunes's staff member Derek Harvey. While I was in Ukraine on these assignments, Nunes and Harvey asked me to help set up interviews that would facilitate their investigation. With my assistance, Harvey conducted numerous interviews with Ukrainian prosecutors and officials via Skype.
During this process, the prosecutors initially expressed an interest in meeting Nunes directly and having him conduct in-person interviews in Ukraine. But Nunes declined, explaining to me again by phone that because Republicans did not have control of the House, they would have to report any travel they were doing. Therefore, he believed it was better to have Derek Harvey conduct the interviews on Skype so the Democrats wouldn't know what was going on. On one occasion I even tried to set up an interview with Viktor Shokin for Harvey, but Shokin told me that there was no need because the two had already spoken.
At one point Victoria Toensing said that Senator Ron Johnson would also work as the BLT Team's "guy in the Senate" to push all the information that we were getting -- which still amounted to the same unverified conspiracy theories.
In March 2019, John Solomon had the idea to set up FOX News interviews with Poroshenko, Lutsenko and Nazar Kholodnytsky, the head prosecutor for the National Anti-Corruption Bureau of Ukraine (NABU). Shortly before his interview, Kholodnytsky had gotten caught up in some criminal activities and Marie Yovanovitch called for him to be ousted from his position. During the taping of his interview, instead of talking about the Bidens as planned, Kholodnytsky complained about Yovanovitch's interfering in Ukrainian politics. However, during his taping, he never validated nor confirmed that any illegal activities had been committed by either Hunter or Joe Biden. This statement upset Solomon and Giuliani, so the interview never aired on FOX.
Ten minutes before Poroshenko's interview was to take place, he decided not to participate. There was an intense phone conversation that I translated between Lutsenko and Giuliani, which ended with Giuliani telling Lutsenko that if he couldn't get Poroshenko to do the interview, not to call anymore.
During the argument with Giuliani, Lutsenko sent me an expletive-ridden text. I read the original in Russian, but the translation into English is essentially as follows, accommodating for language and context: "Sorry, but I didn't get a visit. But first, my president didn't get a damn thing. I'm ready to destroy your competitor, but you want more and more. You expect us to do everything, and everything we ask of you is "Later." It's not right. It's not fair."
Finally, Lutsenko then said he would do the interview and give us a big bombshell about the situation in Ukraine, which Giuliani expected to be about the Bidens. But during the interview, instead of talking about the Bidens, Lutsenko spoke about Yovanovitch's newly uncovered "Do Not Prosecute" list of names. It became a big scandal, but not long after that announcement, he retracted his statements. Giuliani was incredibly angry.
Every time Giuliani and Lutsenko had spoken about the Bidens, he would answer that nothing had been found to incriminate them. Neither Joe nor Hunter Biden had done anything against the Ukrainian constitution or local laws; there was no evidence of bribery or extortion that anyone could find. At the same time, Lutsenko was worried he wouldn't be able to stay in office if Poroshenko lost his bid for re-election, so he did what he could to stay on Trump and Giuliani's good side. To appease them, he would sometimes make vague statements to the media about Hunter and Joe Biden, but he never said they had committed any acts of corruption or that an investigation was being opened. There was simply nothing he had to substantiate those claims.
By that point, the BLT Team were watching the Ukrainian presidential elections and realized Volodymyr Zelenskyy was probably going to win.
The conversations shifted from Poroshenko and Lutsenko to getting a promise from Zelenskyy that he would announce an investigation into the Bidens following his win. Giuliani assumed that because Zelenskyy was an actor and comedian, not a politician, he would naturally want to do anything he could to establish a good relationship with the U.S.
I was tasked in April 2019 to go to Ukraine and get in contact with Zelenskyy. Yet my attempts to contact him were consistently blocked by Ihor Kolomoyskyi, a Ukrainian oligarch who was backing Zelenskyy financially.
Eventually I flew to Israel, where Kolomoyskyi was living in exile, and explained Giuliani and Trump's stance on the matter and why we needed Zelenskyy to commence an investigation into the Bidens. Giuliani had also instructed me to tell Kolomoyskyi that he would help with his legal problems in the U.S. if he would help us with Zelenskyy.
As you see, these are flagrant examples of Giuliani interfering in Ukrainian politics. Ironically, the very thing he was desperate to prove that the Bidens were doing in Ukraine -- and for which he could find no evidence at all -- was what he was guilty of.
By the end of April 2019, it was clear Zelenskyy would win in a landslide. We were preparing to set up a meeting between Zelenskyy and Giuliani, who was supposed to come to Ukraine on May 10th with Victoria Toensing. Giuliani had given me a letter which I handed over on May 9th to Arsen Avakov, the Minister of the Interior; the letter was to communicate to Zelenskyy that Giuliani wanted to discuss private matters pertaining to Trump, as he represented Trump in his personal capacity.
However, this meeting never occurred.
On May 11th, Giuliani called me frantically in the middle of the night, saying he'd been approached by Kash Patel, a member of Devin Nunes's team and staffer for Trump's National Security Council. Patel informed him that people in Zelenskyy's inner circle were Trump's enemies and that Giuliani could not meet in Ukraine now because it would be "a set-up."
Instead I was once again assigned to be the man on the ground, to meet with Zelenskyy myself on Giuliani and Trump's behalf and deliver a precise message in very strict words. Unless Zelenskyy announced an investigation into the Bidens the U.S. would not deliver certain promises: 1) Trump would tell Mike Pence not to attend Zelenskyy's inauguration, and 2), the U.S. would not send any aid to Ukraine, military or otherwise.
It would be Zelenskyy's Chief of Staff Sergei Shafer, and not the president himself, who met with me on that trip. After sharing a copy of the letter with Shafer via WhatsApp, I reiterated Giuliani's message for Zelenskyy to Shafer. Though he initially told me that Zelenskyy wanted a good relationship with the U.S. and would cooperate, we never heard from them after that. A few days later, I was told by Avakov, Minister of the Interior, that Zelenskyy was told not to speak to Giuliani or his team and that he should only go through proper channels with people at the U.S. Embassy. When I reiterated that message to Giuliani, he became enraged.
On May 13th, Ukrainian officials got confirmation from the U.S. that Mike Pence would not attend Zelenskyy's inauguration, which caused turmoil inside the Ukrainian government. They didn't want their people to realize that the U.S. were essentially pulling out of its promise to provide aid. When Kolomoyskyi found out, he returned to Ukraine, and was furious about the situation. He went to the media, calling Fruman and me grifters, stating they we were trying to force Zelenskyy to do unethical things, and threatening our lives. On his end, Giuliani then began sending bullying and threatening messages to Zelenskyy on Twitter and disparaging him on FOX News. He would question Zelenskyy's power as president, he would insist that Zelenskyy arrest Kolomoyskyi immediately, and repeat that Zelenskyy's inner circle was comprised of Trump's enemies, among other such statements.
It was then decided that Giuliani and I would fly to Paris to discuss next steps for Ukraine.
While in Paris, Giuliani received a call from Rick Perry, then Secretary of Energy. Perry was calling from Air Force Two, explaining that Trump had assigned him to represent the U.S. at Zelenskyy's inauguration and that he was "supposed to call Rudy" for his exact instructions. The call was on speaker, so I heard every word. Giuliani outlined to Perry that he needed to relay the same message to Zelenskyy after the inauguration ceremony: Announce an investigation into the Bidens, or the U.S. will pull its aid. Right after the inauguration, Perry called Giuliani to say he had delivered the message and Zelenskyy was willing to play ball.
But when Zelenskyy did make an announcement the following day, it was a statement about addressing general corruption in Ukraine, and never mentioned the Bidens. Giuliani was angry, communicating with Trump that the Ukrainians were playing games. We knew that at the same time, Trump was also making several attempts to deliver messages to Zelenskyy through other members of his team outside of Giuliani, and all with the same theme: investigate Joe Biden or else.
Near the end of our trip to Paris, we were introduced to one of Igor Fruman's associates, a friend who happened to be an employee of a Ukrainian oligarch named Dmitry Firtash, who had many political and business connections, including with the head of Burisma, Zlochevsky. When we returned to the U.S., we met with the BLT Team and John Solomon said Firtash's help would be key because of his relationship with Zlochevsky.
The problem was that Firtash would prove nearly impossible to contact.
He was also facing a serious extradition case to the U.S. for a number of bribery, racketeering and other charges since 2014. Solomon and Giuliani put together a package of documents regarding regarding confidential information in Firtash's case, and had me travel to Vienna in June 2019 to meet with Firtash, letting him know that Giuliani and our whole team were serious and that we could help him if he helped us. From June until the time of my arrest in October 2019, we had ongoing communications with Firtash.
In a meeting with the BLT Team, Solomon relayed to Giuliani that he had information that Robert Mueller's lead prosecutor Andrew Weissman offered Firtash a deal to cancel his extradition if he would testify against Trump and Putin. Firtash didn't want to get involved with the Biden versus Trump situation, but was open to helping us with Mueller's investigations into Trump. Thereafter, as I became an interpreter between Firtash's new legal team and Firtash, most of the conversations in which I participated were potentially privileged; however, I believe this information may be made available to the House Oversight Committee through a congressional subpoena.
But the true purpose of dangling this carrot in front of Firtash was to get him to use his contacts to pressure Zlochevsky to cooperate with the BLT Team. Eventually, Giuliani proposed a $1 million contract to represent Firtash. Later, similar to the Lutsenko situation, he took it back and had Firtash sign a contract with Victoria Toensing. Giuliani, however, would continue to oversee everything and remain in charge of matters related to Firtash. Then later Giuliani and Toensing had several phone calls that I was privy to with Bill Barr, leading to an unofficial meeting in the lobby at the Trump International Hotel, and then an official meeting at the Department of Justice.Giuliani worked aggressively to hire Ms. Dunphy, offering her what seemed like a once-in-a-lifetime opportunity to work as his Director of Business Development with a salary of $1 million per year plus expenses. As an added inducement, Giuliani also offered to provide pro bono legal representation to Ms. Dunphy in connection with an ongoing dispute arising from an abusive ex-partner....
-- Noelle Dunphy, Plaintiff, against Rudolph W. Giuliani, et al, Defendants.
At the same time, the BLT Team was exploring many different angles to get information on the Bidens.
In June, Giuliani asked me to accompany him to a lunch in New York with Vitaly Pruss, a Russian businessman who claimed to have deep connections to Burisma, including with Hunter Biden's business partner Devon Archer, and had recommended powerful people to Zlochevsky that he should put on the company's board. During this meeting, Pruss shared a story with us: He said earlier that year, while doing business related to Burisma, he had taken Hunter Biden to meet Kazakhstan's minister of foreign affairs, and that Biden had gotten substantially intoxicated with drugs and alcohol on this trip. While he was incapacitated, his laptop was compromised and copied by a representative of FSB (Russia's secret police) and members of Zlochevsky's team.
It's important to note that certain aspects of Pruss's story are verifiably true. This trip with Hunter Biden did happen, and his computer hard drives were taken and duplicated. But Pruss specified that while the contents of the laptop were personally embarrassing to Hunter Biden -- pictures of him doing drugs and surrounded by girls -- there was no evidence of financial crimes or any data on his laptop that suggested the illegal activities of any other kind, which is the sort of proof that Giuliani desperately needed. Pruss never mentioned anything about the hard drives containing criminal information, only the embarrassing images. It was not until Giuliani began disseminating the story of Hunter Biden's laptop that the idea of proof of financial and political crimes was introduced.
Giuliani continued this simultaneous efforts to reach Zlochevsky through Firtash and Pruss.
I specifically recall that Giuliani told me to tell Pruss to pressure Zlochevsky by saying that he could be "an enemy or a friend of Trump." At a meeting of the BLT Team, Giuliani and Solomon came up with a series of 12-14 questions about the Bidens that we would propose to Zlochevsky. Eventually, we managed to get Zlochevsky's answers back. But his answers gave us nothing -- because there was nothing. On reading Zlochevsky's reply, Giuliani turned red and yelled, "What is this shit? This is bullshit. Make sure nobody sees this. Bury this."
I will remind you that Zlochevsky's answers are in the report that the House Oversight Committee published. In this document, he stated that Hunter Biden was never asked or assigned to speak with anybody in the U.S. on behalf of Burisma, that there were no political lobbying efforts on behalf of Burisma, that nobody from the company had ever spoken to Joe Biden, and that Hunter Biden was essentially innocent of what people had been implying. His letter debunked all the conspiracy theories.
In August 2019, Kurt Volker, Trump's Special Envoy to Ukraine, approached Giuliani. He said that Trump had written Zelenskyy off and wasn't talking to him, but wanted Giuliani to emphasize to Trump that the relationship with Zelenskyy was crucial. He stressed that Zelenskyy needed to get support from the U.S. in Ukraine's ongoing war with Russia. While at a meeting that I was present at with Giuliani and Volker at the Trump International Hotel in Washington, it was agreed that if Giuliani opened the communication channels with Zelenskyy and Trump, as well as invited Zelenskyy to the White House, then Zelenskyy would announce an investigation into the Bidens. A later meeting with Volker, Giuliani, and then U.S. ambassador to the European Union Gordon Sondland, and Rick Perry took place to discuss the details of the investigation announcement in a phone call with Zelenskyy's chief of staff Andriy Yermark.
I was then tasked with traveling to Spain to attend a meeting with Yermark and Giuliani. In that meeting, Giuliani pressured Yermark to tell Zelenskyy to make the announcement about the Bidens. Giuliani also brought up Vitali Klitschko, the mayor of Kiev, who he had met with several times in New York. He informed Yermark that he knew Zelenskyy wanted to fire Klitschko and emphasized that this would be a bad idea, because Klitschko was well liked by Trump and the American people.
Again, this is a blatant example of Giuliani interfering in foreign politics. Zelenskyy's aim was to clear out corruption in the Ukrainian government. Unfortunately, the war has limited Zelenskyy's opportunities to address this. However, there was no possible reason why Giuliani should have been suggesting who should play any role in the Ukrainian government.
In the early part of October 2019, I got a call telling me to go to Vienna with Giuliani, where the former Chief Financial Officer of Burisma, Alexander Gorbunenko, would meet Giuliani and give us Hunter Biden's hard drive and answer any questions we had. My Ukrainian contacts also told me they would have Viktor Shokin in Vienna to give an interview to Sean Hannity of FOX News, because Shokin was supposed to appear in a Viennese court on behalf of Dimitry Firtash, giving sworn testimony in court that would basically be saying what Giuliani wanted him to say -- that he was fired because of Joe Biden. (As mentioned earlier, Biden did make statements that he had helped to get Shokin fired, but Ukrainian investigations into the matter some years later concluded that Shokin had been terminated because of multiple cases of corruption while in office.)
I have text messages confirming all these plans, and all are among the materials I submitted to Congress during the first impeachment inquiry. These include messages from Hannity setting up the interview, and messages coordinating that Giuliani, Toensing, and I would go to Vienna to meet Burisma's ex-CFO Gorbunenko. Just before we were to fly to Austria, there was a meeting at FOX News in Washington, because Solomon was appearing that night on Hannity's show and Giuliani was appearing in Laura Ingraham's. The BLT Team got together in a FOX conference room and discussed how we would blow up the story once we got Hunter Biden's hard drive in Vienna.
The next morning Giuliani met me for breakfast and said that Trump needed him at the White House, he would be unable to go to Vienna. He insisted Fruman and I should go and set up everything and he would join us later. Toensing then contacted me to say that she would not go to Vienna either because her husband had a cold. Shortly afterward, on October 9, 2019, Fruman and I were arrested at Dulles International Airport while trying to make the first leg of our flight to Vienna.
Throughout all these months of work, the extensive campaigns and networking done by Trump allies and Giuliani associates, including the enormously thorough interviews and assignments that I undertook, there has never been any evidence that Hunter or Joe Biden committed any crimes related to Ukrainian politics. Never, during any of my communications with Ukrainian officials or connections to Burisma, did any of them confirm or provide concrete facts linking the Bidens to illegal activities. In fact, they asked me multiple times why our team was so concerned with this idea. The truth is that everyone, from Giuliani and the BLT Team to Devin Nunes and his colleagues, to the people at FOX News, knew that these allegations against the Bidens were false. There has never been any factual evidence, only conspiracy theories spread by people who knew exactly what they were doing.
With all due respect, Chairman Comer, the narrative you are seeking for this investigation has been proven false many times over, by a wide array of respected sources. There is simply no merit to investigating this matter any further. I hope my letter has provided you with additional clarity on this point.
Please know that in my sharing this information with you, I am not looking for any sympathy for myself. I take full responsibility for my own actions in this matter, and I am extremely remorseful for my participation. In explaining the full context to you here, I can only hope that my truth can be used for the greater good. Please abandon this effort to investigate the Bidens, which is nothing more than a wild goose chase, and let our elected officials return to the issue at hand of uniting our great country to be stronger and better than ever before.
I am willing to testify under oath in Congress regarding any of these matters, and answer any questions that you might have, or provide you with any texts or correspondence in these situations I have described in this letter. You may contact me through my attorney Joseph A. Bondy, who can be reached by phone at [DELETE].
Thank you for your consideration.
Sincerely,
Lev Parnas
So there you have it folks. That was my 10-page letter that I wrote to James Comer. And what did he do? He basically looked the other way, just like they do all time. Because they don't want the truth. They don't want to get to the bottom of it. All they want to do is give you bits and pieces, they want to give you conspiracy theories, they want to confuse the people all for the simple fact: to deflect from the real criminal, like I said, Donald J Trump.
Thank you for watching. You can follow me on Twitter or Threads or Instagram at LevParnas. And please make sure to subscribe to the Meidas touch Network.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Mon Jul 31, 2023 2:53 am
Part 1 of 2
Superseding Indictment
USDC, Southern District of Florida
USA v. Donald Trump, Waltine Nauta, and Carlos De Oliveira
Case No. 23-CR-80101-CANNON(s)
by Jack Smith, Special Counsel
07/27/2023
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 23-CR-80101-CANNON(s)
18 U.S.C. § 793(e)
18 U.S.C. § 1512(k)
18 U.S.C. § 1512(b)(2)(A)
18 U.S.C. § 1512(b)(2)(B)
18 U.S.C. § 1512(c)(1)
18 U.S.C. § 1519
18 U.S.C. § 1001(a)(1)
18 U.S.C. § 1001(a)(2)
18 U.S.C. § 2
UNITED STATES OF AMERICA
v.
DONALD J. TRUMP, WALTINE NAUTA, and CARLOS DE OLIVEIRA,
Defendants.
SUPERSEDING INDICTMENT
The Grand Jury charges that:
GENERAL ALLEGATIONS
At times material to this Superseding Indictment, on or about the dates and approximate times stated below:
Introduction
1. Defendant DONALD J. TRUMP was the forty-fifth President of the United States of America. He held office from January 20, 2017, until January 20, 2021. As president, TRUMP had lawful access to the most sensitive classified documents and national defense information gathered and owned by the United States government. including information from the agencies that comprise the United States Intelligence Community and the United States Department of Defense.
2. Over the course of his presidency, TRUMP gathered newspapers, press clippings, letters, notes, cards, photographs, official documents, and other materials in cardboard boxes that he kept in the White House. Among the materials TRUMP stored in his boxes were hundreds of classified documents.
3. The classified documents TRUMP stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack. The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.
4. At 12:00 p.m. on January 20, 2021, TRUMP ceased to be president. As he departed the White House, TRUMP caused scores of boxes, many of which contained classified documents, to be transported to The Mar-a-Lago Club in Palm Beach, Florida, where he maintained his residence. TRUMP was not authorized to possess or retain those classified documents.
5. The Mar-a-Lago Club was an active social club, which, between January 2021 and August 2022, hosted events for tens of thousands of members and guests. After TRUMP's presidency, The Mar-a-Lago Club was not an authorized location for the storage, possession, review, display, or discussion of classified documents. Nevertheless, TRUMP stored his boxes containing classified documents in various locations at The Mar-a-Lago Club -- including in a ballroom, a bathroom and shower, an office space, his bedroom, and a storage room.
6. On two occasions in 2021, TRUMP showed classified documents to others, as follows:
a. In July 2021, at Trump National Golf Club in Bedminster, New Jersey ("The Bedminster Club''), during an audio-recorded meeting with a writer, a publisher, and two members of his staff, none of whom possessed a security clearance, TRUMP showed and described a "plan of attack" that TRUMP said was prepared for him by the Department of Defense and a senior military official. TRUMP told the individuals that the plan was "highly confidential .. and "secret." TRUMP also said, ''as president I could have declassified it,'" and, "Now I can't, you know, but this is still a secret."
b. In August or September 2021, at The Bedminster Club, TRUMP showed a representative of his political action committee who did not possess a security clearance a classified map related to a military operation and told the representative that he should not be showing it to the representative and that the representative should not get too close.
7. On March 30, 2022, the Federal Bureau of Investigation ("FBI") opened a criminal investigation into the unlawful retention of classified documents at The Mar-a-Lago Club. A federal grand jury investigation began the next month. The grand jury issued a subpoena requiring TRUMP to turn over all documents with classification markings. TRUMP endeavored to obstruct the FBI and grand jury investigations and conceal his continued retention of classified documents by, among other things:
a. suggesting that his attorney falsely represent to the FBI and grand jury that TRUMP did not have documents called for by the grand jury subpoena;
b. directing defendant WALTINE NAUTA to move boxes of documents to conceal them from TRUMP's attorney, the FBI, and the grand jury;
c. suggesting that his attorney hide or destroy documents called for by the grand jury subpoena;
d. providing to the FBI and grand jury just some of the documents called for by the grand jury subpoena, while claiming that he was cooperating fully;
e. causing a certification to be submitted to the FBI and grand jury falsely representing that all documents called for by the grand jury subpoena had been produced -- while knowing that, in fact, not all such documents had been produced; and
f. attempting to delete security camera footage at The Mar-a-Lago Club to conceal information from the FBI and grand jury.
8. As a result of TRUMP's retention of classified documents after his presidency and refusal to return them, hundreds of classified documents were not recovered by the United States government until 2022, as follows:
a. On January 17, nearly one year after TRUMP left office, and after months of demands by the National Archives and Records Administration for TRUMP to provide all missing presidential records, TRUMP provided only 15 boxes, which contained 197 documents with classification markings.
b. On June 3, in response to a grand jury subpoena demanding the production of all documents with classification markings, TRUMP's attorney provided to the FBI 38 more documents with classification markings.
c. On August 8, pursuant to a court-authorized search warrant, the FBI recovered from TRUMP's office and a storage room at The Mar-a-Lago Club 102 more documents with classification markings. TRUMP's Co-Conspirators
9. Defendant NAUTA was a member of the United States Navy stationed as a valet in the White House during TRUMP's presidency. Beginning in August 2021, NAUTA became an executive assistant in The Office of Donald J. Trump and served as TRUMP's personal aide or "body man." NAUTA reported to TRUMP, worked closely with TRUMP, and traveled with TRUMP.
10. Beginning in January 2022, Defendant CARLOS DE OLIVEIRA was employed as the property manager at The Mar-a-Lago Club. Prior to holding the position of property manager, DE OLIVEIRA was employed as a valet at The Mar-a-Lago Club.
The Mar-a-Lago Club
11. The Mar-a-Lago Club was located on South Ocean Boulevard in Palm Beach, Florida, and included TRUMP's residence, more than 25 guest rooms, two ballrooms, a spa, a gift store, exercise facilities, office space, and an outdoor pool and patio. As of January 2021, The Mar-a-Lago Club had hundreds of members and was staffed by more than 150 full-time, part-time, and temporary employees.
12. Between January 2021 and August 2022, The Mar-a-Lago Club hosted more than 150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests.
13. The United States Secret Service (the 'Secret Service") provided protection services to TRUMP and his family after he left office, including at The Mar-a-Lago Club, but it was not responsible for the protection of TRUMP's boxes or their contents. TRUMP did not inform the Secret Service that he was storing boxes containing classified documents at The Mara-Lago Club. Classified Information
14. National security information was information owned by, produced by, produced for, and under the control of the United States government. Pursuant to Executive Order 12958, signed on April 17, 1995, as amended by Executive Order 13292 on March 25, 2003, and Executive Order 13526 on December 29, 2009, national security information was classified as ''TOP SECRET," "SECRET,'' or "CONFIDENTIAL," as follows:
a. Information was classified as TOP SECRET if the unauthorized disclosure of that information reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority was able to identify or describe.
b. Information was classified as SECRET if the unauthorized disclosure of that information reasonably could be expected to cause serious damage to the national security that the original classification authority was able to identify or describe.
c. Information was classified as CONFIDENTIAL if the unauthorized disclosure of that information reasonably could be expected to cause damage to the national security that the original classification authority was able to identify or describe.
15. The classification marking "NOFORN'' stood for "Not Releasable to Foreign Nationals" and denoted that dissemination of that information was limited to United States persons.
16. Classified information related to intelligence sources, methods, and analytical processes was designated as Sensitive Compartmented Information ("SCI"). SCI was to be processed, stored, used, or discussed in an accredited Sensitive Compartmented Information Facility ("SCIF''), and only individuals with the appropriate security clearance and additional SCI permissions were authorized to have access to such national security information.
17. When the vulnerability of, or threat to, specific classified information was exceptional, and the normal criteria for determining eligibility for access to classified information were insufficient to protect the information from unauthorized disclosure, the United States could establish Special Access Programs ("SAPs'') to further protect the classified information. The number of these programs was to be kept to an absolute minimum and limited to programs in which the number of persons who ordinarily would have access would be reasonably small and commensurate with the objective of providing enhanced protection for the information involved. Only individuals with the appropriate security clearance and additional SAP permissions were authorized to have access to such national security information, which was subject to enhanced handling and storage requirements.
18. Pursuant to Executive Order 13526, information classified at any level could be lawfully accessed only by persons determined by an appropriate United States government official to be eligible for access to classified information and who had signed an approved non-disclosure agreement, who received a security clearance, and who had a "need-to-know'' the classified information. After his presidency, TRUMP was not authorized to possess or retain classified documents.
19. Executive Order 13526 provided that a former president could obtain a waiver of the "need-to-know'' requirement, if the agency head or senior agency official of the agency that originated the classified information: (1) determined in writing that access was consistent with the interest of national security and (2) took appropriate steps to protect classified information from unauthorized disclosure or compromise and ensured that the information was safeguarded in a manner consistent with the order. TRUMP did not obtain any such waiver after his presidency.
The Executive Branch Departments and Agencies Whose Classified Documents TRUMP Retained After His Presidency
20. As part of his official duties as president, TRUMP received intelligence briefings from high-level United States government officials, including briefings from the Director of the Central Intelligence Agency, the Chairman of the Joint Chiefs of Staff, senior White House officials, and a designated briefer. He regularly received a collection of classified intelligence from the United States Intelligence Community (''USIC") known as the ''President's Daily Brief."
21. The USIC's mission was to collect, analyze, and deliver foreign intelligence and counterintelligence information to America's leaders, including the president, policymakers, law enforcement, and the military, so they could make sound decisions to protect the United States. The USIC consisted of United States executive branch departments and agencies responsible for the conduct of foreign relations and the protection of national security.
22. After his presidency, TRUMP retained classified documents originated by, or implicating the equities of, multiple USIC members and other executive branch departments and agencies, including the following:
a. The Central Intelligence Agency ("CIA"). CIA was responsible for providing intelligence on foreign countries and global issues to the president and other policymakers to help them make national security decisions.
b. The Department of Defense ("DoD"). DoD was responsible for providing the military forces needed to deter war and ensure national security. Some of the executive branch agencies comprising the USIC were within DoD.
c. The National Security Agency. The National Security Agency was a combat support agency within DoD and a member of the USIC responsible for foreign signals intelligence and cybersecurity. This included collecting, processing, and disseminating to United States policymakers and military leaders foreign intelligence derived from communications and information systems; protecting national security systems; and enabling computer network operations.
d. The National Geospatial Intelligence Agency. The National Geospatial Intelligence Agency was a combat support agency within DoD responsible for the exploitation and analysis of imagery, imagery intelligence, and geospatial information in support of the national security objectives of the United States and the geospatial intelligence requirements of DoD, the Department of State, and other federal agencies.
e. The National Reconnaissance Office. The National Reconnaissance Office was an agency within DoD responsible for developing, acquiring, launching, and operating space-based surveillance and reconnaissance systems that collected and delivered intelligence to enhance national security.
f. The Department of Energy. The Department of Energy was responsible for maintaining a safe, secure, and effective nuclear deterrent to protect national security, including ensuring the effectiveness of the United States nuclear weapons stockpile without nuclear explosive testing.
g. The Department of State and Bureau of Intelligence and Research. The Department of State was responsible for protecting and promoting United States security, prosperity, and democratic values. Within the Department of State, the Bureau of Intelligence and Research was a member of the USIC and responsible for providing intelligence to inform diplomacy and support United States diplomats.
TRUMP's Public Statements on Classified Information
23. As a candidate for President of the United States, TRUMP made the following public statements, among others, about classified information:
a. On August 18, 2016, TRUMP stated, "In my administration I'm going to enforce all laws concerning the protection of classified information. No one will be above the law."
b. On September 6, 2016, TRUMP stated, ·'We also need to fight this battle by collecting intelligence and then protecting, protecting our classified secrets. . . . We can't have someone in the Oval Office who doesn't understand the meaning of the word confidential or classified."
c. On September 7, 2016, TRUMP stated, "[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information."
d. On September 19, 2016, TRUMP stated, "We also need the best protection of classified information."
e. On November 3, 2016, TRUMP stated, "Service members here in North Carolina have risked their lives to acquire classified intelligence to protect our country.''
24. As President of the United States, on July 26, 2018, TRUMP issued the following statement about classified information:
TRUMP's Retention of Classified Documents After His Presidency
25. In January 2021, as he was preparing to leave the White House, TRUMP and his White House staff, including NAUTA, packed items, including some of TRUMP's boxes. TRUMP was personally involved in this process. TRUMP caused his boxes, containing hundreds of classified documents, to be transported from the White House to The Mar-a-Lago Club.
26. From January through March 15, 2021, some of TRUMP's boxes were stored in The Mar-a-Lago Club's White and Gold Ballroom, in which events and gatherings took place. TRUMP's boxes were for a time stacked on the ballroom's stage, as depicted in the photograph below (redacted to obscure an individual's identity).
27. In March 2021, NAUTA and others moved some of TRUMP's boxes from the White and Gold Ballroom to the business center at The Mar-a-Lago Club.
28. On April 5, 2021, an employee of The Office of Donald J. Trump ("Trump Employee 1 ") texted another employee of that office ("Trump Employee 2") to ask whether TRUMP's boxes could be moved out of the business center to make room for staff to use it as an office. Trump Employee 2 replied, ''Woah!! Ok so potus specifically asked Walt for those boxes to be in the business center because they are his 'papers."' Later that day, Trump Employee 1 and Trump Employee 2 exchanged the following text messages:
Trump Employee 2:
We can definitely make it work if we move his papers into the lake room?
Trump Employee 1 : There is still a little room in the shower where his other stuff is. Is it only his papers he cares about? Theres some other stuff in there that are not papers. Could that go to storage? Or does he want everything in there on property
Trump Employee 2:
Yes -anything that's not the beautiful mind paper boxes can definitely go to storage. Want to take a look at the space and start moving tomorrow AM?
29. After the text exchange between Trump Employee 1 and Trump Employee 2, in April 2021, some of TRUMP's boxes were moved from the business center to a bathroom and shower in The Mar-a-Lago Club's Lake Room, as depicted in the photograph below.
30. In May 2021, TRUMP directed that a storage room on the ground floor of The Mar-a-Lago Club (the "Storage Room") be cleaned out so that it could be used to store his boxes. The hallway leading to the Storage Room could be reached from multiple outside entrances, including one accessible from The Mar-a-Lago Club pool patio through a doorway that was often kept open. The Storage Room was near the liquor supply closet, linen room, lock shop, and various other rooms.
31. On June 24, 2021, TRUMP's boxes that were in the Lake Room were moved to the Storage Room. After the move, there were more than 80 boxes in the Storage Room, as depicted in the photographs below.
32. On December 7, 2021, NAUTA found several of TRUMP's boxes fallen and their contents spilled onto the floor of the Storage Room, including a document marked "SECRET//REL TO USA, FVEY," which denoted that the information in the document was releasable only to the Five Eyes intelligence alliance consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States. NAUTA texted Trump Employee 2, "I opened the door and found this ... " NAUTA also attached two photographs he took of the spill. Trump Employee 2 replied, "Oh no oh no," and "I'm sorry potus had my phone." One of the photographs NAUTA texted to Trump Employee 2 is depicted below with the visible classified information redacted. TRUMP's unlawful retention of this document is charged in Count 8 of this Superseding Indictment.
TRUMP's Disclosures of Classified Information in Private Meetings
33. In May 2021, TRUMP caused some of his boxes to be brought to his summer residence at The Bedminster Club. Like The Mar-a-Lago Club, after TRUMP's presidency, The Bedminster Club was not an authorized location for the storage, possession, review, display, or discussion of classified documents.
34. On July 21, 202 l, when he was no longer president, TRUMP gave an interview in his office at The Bedminster Club to a writer and a publisher in connection with a then-forthcoming book. Two members of TRUMP's staff also attended the interview, which was recorded with TRUMP's knowledge and consent. Before the interview, the media had published reports that, at the end of TRUMP's term as president, a senior military official (the "Senior Military Official") purportedly feared that TRUMP might order an attack on Country A and that the Senior Military Official advised TRUMP against doing so.
35. Upon greeting the writer, publisher, and his two staff members, TRUMP stated, "Look what I found, this was [the Senior Military Official's) plan of attack, read it and just show ... it's interesting.' Later in the interview, TRUMP engaged in the following exchange:
TRUMP: Well, with [the Senior Military Official]-uh, let me see that, I'll show you an example. He said that r wanted to attack [Country A]. Isn't it amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this -- this is off the record, but -- they presented me this. This was him. This was the Defense Department and him.
WRITER: Wow.
TRUMP: We looked at some. This was him. This wasn't done by me, this was him. All sorts of stuff-pages long, look.
STAFFER: Mm.
TRUMP: Wait a minute, let's see here.
STAFFER: [laughter] Yeah.
TRUMP: I just found, isn't that amazing? This totally wins my case, you know.
STAFFER: Mm-hm.
TRUMP: Except it is like, highly confidential.
STAFFER: Yeah. [Laughter]
TRUMP: Secret. This is secret information. Look, look at this. You attack, and-
* * *
TRUMP: By the way. Isn't that incredible?
STAFFER: Yeah.
TRUMP: I was just thinking, because we were talking about it. And you know, he said, "he wanted to attack [Country A], and what ... "
STAFFER: You did.
TRUMP: This was done by the military and given to me. Uh, I think we can probably, right?
STAFFER: I don't know, we'll, we'll have to see. Yeah, we'll have to try to-
TRUMP: Declassify it.
STAFFER: -figure out a-yeah.
TRUMP: See as president I could have declassified it.
STAFFER: Yeah. [Laughter]
TRUMP: Now I can't, you know, but this is still a secret.
STAFFER: Yeah. [Laughter] Now we have a problem.
TRUMP: Isn't that interesting?
At the time of this exchange, the writer, the publisher, and TRUMP's two staff members did not have security clearances or any need-to-know any classified information about a plan of attack on Country A. The document that TRUMP possessed and showed on July 21, 2021, is charged as Count 32 in this Superseding Indictment.
36. In August or September 2021, when he was no longer president, TRUMP met in his office at The Bedminster Club with a representative of his political action committee (the "PAC Representative"). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country Band told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-to-know classified information about the military operation.
37. On February 16, 2017, four years before TRUMP's disclosures of classified information set forth above, TRUMP said at a press conference:
TRUMP's Production of 15 Cardboard Boxes to the National Archives and Records Administration
38. Beginning in May 2021, the National Archives and Records Administration (''NARA"), which was responsible for archiving presidential records, repeatedly demanded that TRUMP turn over presidential records that he had kept after his presidency. On multiple occasions, beginning in June, NARA warned TRUMP through his representatives that if he did not comply, it would refer the matter of the missing records to the Department of Justice.
39. Between November 2021 and January 2022, NAUTA and Trump Employee 2 -- at TRUMP'S direction -- brought boxes from the Storage Room to TRUMP's residence for TRUMP to review.
40. On November 12, 2021, Trump Employee 2 provided TRUMP a photograph of his boxes in the Storage Room by taping it to one of the boxes that Trump Employee 2 had placed in TRUMP's residence. Trump Employee 2 provided TRUMP the photograph so that TRUMP could see how many of his boxes were stored in the Storage Room. The photograph, shown below, depicted a wall of the Storage Room against which dozens of TRUMP's boxes were stacked.
41. On November 17, 2021, NAUTA texted Trump Employee 2 about the photograph Trump Employee 2 had provided to TRUMP, stating, "He mentioned about a picture of the 'boxes' he wants me to see it?" Trump Employee 2 replied, "Calling you shortly."
42. On November 25, 2021, Trump Employee 2 texted NAUTA about TRUMP's review of the contents of his boxes, asking, "Has he mentioned boxes to you? I delivered some,
but I think he may need more. Could you ask if he'd like more in pine hall?" Pine Hall was an entry room in TRUMP's residence. NAUTA replied in three successive text messages:
Nothing about boxes yet
He has one he's working on in pine hall
Knocked out 2 boxes yesterday
43. On November 29, 2021, Trump Employee 2 texted NAUTA, asking, "Next you are on property (no rush) could you help me bring 4 more boxes up?" NAUTA replied, "Yes!! Of course."
44. On December 29, 2021, Trump Employee 2 texted a TRUMP representative who was in contact with NARA ("Trump Representative 1'"), "box answer will be wrenched out of him today, promise!" The next day, Trump Representative I replied in two successive text messages:
Hey -Just checking on Boxes ...
would love to have a number to them today
Trump Employee 2 spoke to TRUMP and then responded a few hours later in two successive text messages:
12
Is his number
45. On January 13, 2022, NAUTA texted Trump Employee 2 about TRUMP's "tracking" of boxes, stating, 'He's tracking the boxes, more to follow today on whether he wants to go through more today or tomorrow.'· Trump Employee 2 replied, "Thank you!"
46. On January 15, 2022, NAUTA sent Trump Employee 2 four successive text messages:
One thing he asked
Was for new covers for the boxes, for Monday m.
Morning
*can we get new box covers before giving these to them on Monday? They have too much writing on them . .I marked too much
Trump Employee 2 replied, "Yes, I will get that!"
47. On January 17, 2022, Trump Employee 2 and NAUTA gathered 15 boxes from TRUMP's residence, loaded the boxes in NAUTA's car, and took them to a commercial truck for delivery to NARA.
48. When interviewed by the FBI in May 2022 regarding the location and movement of boxes before the production to NARA, NAUTA made false and misleading statements as set forth in Count 38 of this Superseding Indictment, including:
a. falsely stating that he was not aware of TRUMP's boxes being brought to TRUMP's residence for his review before TRUMP provided 15 boxes to NARA in January 2022;
b. falsely stating that he did not know how the boxes that he and Trump Employee 2 brought from TRUMP's residence to the commercial truck for delivery to NARA on January 17, 2022, had gotten to the residence; and
c. when asked whether he knew where TRUMP's boxes had been stored before they were in TRUMP's residence and whether they had been in a secure or locked location, NAUTA falsely responded, "I wish, I wish I could tell you. I don't know. I don't-I honestly just don't know."
49. When the 15 boxes that TRUMP had provided reached NARA in January 2022, NARA reviewed the contents and determined that 14 of the boxes contained documents with classification markings. Specifically, as the FBI later determined, the boxes contained 197 documents with classification markings, of which 98 were marked "SECRET," 30 were marked "TOP SECRET," and the remainder were marked "CONFIDENTIAL." Some of those documents also contained SCI and SAP markings.
50. On February 9, 2022, NARA referred the discovery of classified documents in TRUMP's boxes to the Department of Justice for investigation.
The FBI and Grand Jury Investigations
51. On March 30, 2022, the FBI opened a criminal investigation.
52. On April 26, 2022, a federal grand jury opened an investigation.
The Defendants' Concealment of Boxes
53. On May 11, 2022, the grand jury issued a subpoena (the "May 11 Subpoena") to The Office of Donald J. Trump requiring the production of all documents with classification markings in the possession, custody, or control of TRUMP or The Office of Donald J. Trump. Two attorneys representing TRUMP (''Trump Attorney 1" and "Trump Attorney 2") informed TRUMP of the May 11 Subpoena, and he authorized Trump Attorney 1 to accept service.
54. On May 22, 2022, NAUTA entered the Storage Room at 3:47 p.m. and left approximately 34 minutes later, carrying one of TRUMP's boxes.
55. On May 23, 2022, TRUMP met with Trump Attorney 1 and Trump Attorney 2 at The Mar-a-Lago Club to discuss the response to the May 11 Subpoena. Trump Attorney 1 and Trump Attorney 2 told TRUMP that they needed to search for documents that would be responsive to the subpoena and provide a certification that there had been compliance with the subpoena. TRUMP, in sum and substance, made the following statements, among others, as memorialized by Trump Attorney 1:
a. I don't want anybody looking, I don't want anybody looking through my boxes, I really don't, I don't want you looking through my boxes.
b. Well what if we, what happens if we just don't respond at all or don't play ball with them?
c. Wouldn't it be better if we just told them we don't have anything here?
d. Well look isn't it better if there are no documents?
56. While meeting with Trump Attorney 1 and Trump Attorney 2 on May 23, TRUMP, in sum and substance, told the following story, as memorialized by Trump Attorney 1:
TRUMP related the story more than once that day.
57. On May 23, TRUMP also confirmed his understanding with Trump Attorney 1 that Trump Attorney 1 would return to The Mar-a-Lago Club on June 2 to search for any documents with classification markings to produce in response to the May 11 Subpoena. Trump Attorney 1 made it clear to TRUMP that Trump Attorney 1 would conduct the search for responsive documents by looking through TRUMP's boxes that had been transported from the White House and remained in storage at The Mar-a-Lago Club. TRUMP indicated that he wanted to be at The Mar-a-Lago Club when Trump Attorney 1 returned to review his boxes on June 2, and that TRUMP would change his summer travel plans to do so. TRUMP told Trump Attorney 2 that Trump Attorney 2 did not need to be present for the review of boxes.
58. After meeting with Trump Attorney 1 and Trump Attorney 2 on May 23, TRUMP delayed his departure from The Mar-a-Lago Club to The Bedminster Club for the summer so that he would be present at The Mar-a-Lago Club on June 2, when Trump Attorney l returned to review the boxes.
59. Between TRUMP's May 23 meeting with Trump Attorney 1 and Trump Attorney 2 to discuss the May 1 I Subpoena, and June 2, when Trump Attorney 1 returned to The Mar-a-Lago Club to review the boxes in the Storage Room, NAUT A removed-at TRUMP's direction-a total of approximately 64 boxes from the Storage Room and brought them to TRUMP's residence, as set forth below:
a. On May 24, 2022, between 5:30 p.m. and 5:38 p.m., NAUTA removed three boxes from the Storage Room.
b. On May 30, 2022, at 9:08 a.m., TRUMP and NAUTA spoke by phone for approximately 30 seconds. Between 10:02 a.m. and 11:51 a.m., NAUTA removed a total of approximately 50 boxes from the Storage Room.
c. On May 30, 2022, at 12:33 p.m., a Trump family member texted NAUTA:
Good afternoon Walt,
Happy Memorial Day!
I saw you put boxes to Potus room. Just FYI and I will tell him as well:
Not sure how many he wants to take on Friday on the plane. We will NOT have a room for them. Plane will be full with luggage.
Thank you!
NAUTA replied:
Good Afternoon Ma'am [Smiley Face Emoji] Thank you so much.
I think he wanted to pick from them. I don't imagine him wanting to take the boxes.
He told me to put them in the room and that he was going to talk to you about them.
d. On June 1, 2022, beginning at 12:52 p.m., NAUTA removed approximately 11 boxes from the Storage Room.
60. On June 1, 2022, TRUMP spoke with Trump Attorney 1 by phone and asked whether Trump Attorney 1 was coming to The Mar-a-Lago Club the next day and for exactly what purpose. Trump Attorney 1 reminded TRUMP that Trump Attorney 1 was going to review the boxes that had been transported from the White House and remained in storage at The Mar-a-Lago Club so that Trump Attorney 1 could have a custodian of records certify that the May 11 subpoena had been complied with fully.
61. On June 2, 2022, the day that Trump Attorney 1 was scheduled to review TRUMP's boxes in the Storage Room, TRUMP spoke with NAUTA on the phone at 9:29 a.m. for approximately 24 seconds.
62. Later that day, between 12:33 p.m. and 12:52 p.m., NAUTA and DE OLIVEIRA moved approximately 30 boxes from TRUMP's residence to the Storage Room.
63. In sum, between May 23, 2022, and June 2, 2022, before Trump Attorney 1's review of TRUMP's boxes in the Storage Room, NAUTA -- at TRUMP's direction -- moved approximately 64 boxes from the Storage Room to TRUMP's residence, and NAUTA and DE OLIVEIRA brought to the Storage Room only approximately 30 boxes. Neither TRUMP nor NAUTA informed Trump Attorney l of this information.
The False Certification to the FBI and the Grand Jury
64. On the afternoon of June 2, 2022, as TRUMP had been informed, Trump Attorney l arrived at The Mar-a-Lago Club to review TRUMP's boxes to look for documents with classification markings in response to the May 11 Subpoena. TRUMP met with Trump Attorney 1 before Trump Attorney 1 conducted the review. NAUT A escorted Trump Attorney 1 to the Storage Room.
65. Between 3:53 p.m. and 6:23 p.m., Trump Attorney 1 reviewed the contents of TRUMP's boxes in the Storage Room. Trump Attorney 1 located 38 documents with classification markings inside the boxes, which Trump Attorney 1 removed and placed in a Redweld folder. Trump Attorney 1 contacted NAUTA and asked him to bring clear duct tape to the Storage Room, which NAUTA did. Trump Attorney 1 used the clear duct tape to seal the Redweld folder with the documents with classification markings inside.
66. After Trump Attorney 1 finished sealing the Redweld folder containing the documents with classification markings that he had found inside TRUMP' s boxes, NAUTA took Trump Attorney 1 to a dining room in The Mar-a-Lago Club to meet with TRUMP. After Trump Attorney 1 confirmed that he was finished with his search of the Storage Room, TRUMP asked, "Did you find anything? ... Is it bad? Good?"
67. TRUMP and Trump Attorney 1 then discussed what to do with the Redweld folder containing documents with classification markings and whether Trump Attorney 1 should bring them to his hotel room and put them in a safe there. During that conversation, TRUMP made a plucking motion, as memorialized by Trump Attorney 1:
68. That evening, Trump Attorney 1 contacted the Department of Justice and requested that an FBI agent meet him at The Mar-a-Lago Club the next day, June 3, so that he could turn over the documents responsive to the May 11 Subpoena.
69. Also that evening, Trump Attorney l contacted another TRUMP attorney ("Trump Attorney 3") and asked her if she would come to The Mar-a-Lago Club the next morning to act as a custodian of records and sign a certification regarding the search for documents with classification markings in response to the May 11 Subpoena. Trump Attorney 3, who had no role in the review of TRUMP's boxes in the Storage Room, agreed.
70. The next day, on June 3, 2022, at Trump Attorney 1 's request, Trump Attorney 3 signed a certification as the custodian of records for The Office of Donald J. Trump and took it to The Mar-a-Lago Club to provide it to the Department of Justice and FBI. In the certification, Trump Attorney 3 -- who performed no search of TRUMP's boxes, had not reviewed the May 11
Subpoena, and had not reviewed the contents of the Redweld folder -- stated, among other things, that "[b]ased upon the information that [had] been provided to" her:
a. "A diligent search was conducted of the boxes that were moved from the White House to Florida";
b. "This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena"; and
c. "Any and all responsive documents accompany this certification."
Superseding Indictment
USDC, Southern District of Florida
USA v. Donald Trump, Waltine Nauta, and Carlos De Oliveira
Case No. 23-CR-80101-CANNON(s)
by Jack Smith, Special Counsel
07/27/2023
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 23-CR-80101-CANNON(s)
18 U.S.C. § 793(e)
18 U.S.C. § 1512(k)
18 U.S.C. § 1512(b)(2)(A)
18 U.S.C. § 1512(b)(2)(B)
18 U.S.C. § 1512(c)(1)
18 U.S.C. § 1519
18 U.S.C. § 1001(a)(1)
18 U.S.C. § 1001(a)(2)
18 U.S.C. § 2
UNITED STATES OF AMERICA
v.
DONALD J. TRUMP, WALTINE NAUTA, and CARLOS DE OLIVEIRA,
Defendants.
SUPERSEDING INDICTMENT
The Grand Jury charges that:
GENERAL ALLEGATIONS
At times material to this Superseding Indictment, on or about the dates and approximate times stated below:
Introduction
1. Defendant DONALD J. TRUMP was the forty-fifth President of the United States of America. He held office from January 20, 2017, until January 20, 2021. As president, TRUMP had lawful access to the most sensitive classified documents and national defense information gathered and owned by the United States government. including information from the agencies that comprise the United States Intelligence Community and the United States Department of Defense.
2. Over the course of his presidency, TRUMP gathered newspapers, press clippings, letters, notes, cards, photographs, official documents, and other materials in cardboard boxes that he kept in the White House. Among the materials TRUMP stored in his boxes were hundreds of classified documents.
3. The classified documents TRUMP stored in his boxes included information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack. The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.
4. At 12:00 p.m. on January 20, 2021, TRUMP ceased to be president. As he departed the White House, TRUMP caused scores of boxes, many of which contained classified documents, to be transported to The Mar-a-Lago Club in Palm Beach, Florida, where he maintained his residence. TRUMP was not authorized to possess or retain those classified documents.
5. The Mar-a-Lago Club was an active social club, which, between January 2021 and August 2022, hosted events for tens of thousands of members and guests. After TRUMP's presidency, The Mar-a-Lago Club was not an authorized location for the storage, possession, review, display, or discussion of classified documents. Nevertheless, TRUMP stored his boxes containing classified documents in various locations at The Mar-a-Lago Club -- including in a ballroom, a bathroom and shower, an office space, his bedroom, and a storage room.
6. On two occasions in 2021, TRUMP showed classified documents to others, as follows:
a. In July 2021, at Trump National Golf Club in Bedminster, New Jersey ("The Bedminster Club''), during an audio-recorded meeting with a writer, a publisher, and two members of his staff, none of whom possessed a security clearance, TRUMP showed and described a "plan of attack" that TRUMP said was prepared for him by the Department of Defense and a senior military official. TRUMP told the individuals that the plan was "highly confidential .. and "secret." TRUMP also said, ''as president I could have declassified it,'" and, "Now I can't, you know, but this is still a secret."
b. In August or September 2021, at The Bedminster Club, TRUMP showed a representative of his political action committee who did not possess a security clearance a classified map related to a military operation and told the representative that he should not be showing it to the representative and that the representative should not get too close.
7. On March 30, 2022, the Federal Bureau of Investigation ("FBI") opened a criminal investigation into the unlawful retention of classified documents at The Mar-a-Lago Club. A federal grand jury investigation began the next month. The grand jury issued a subpoena requiring TRUMP to turn over all documents with classification markings. TRUMP endeavored to obstruct the FBI and grand jury investigations and conceal his continued retention of classified documents by, among other things:
a. suggesting that his attorney falsely represent to the FBI and grand jury that TRUMP did not have documents called for by the grand jury subpoena;
b. directing defendant WALTINE NAUTA to move boxes of documents to conceal them from TRUMP's attorney, the FBI, and the grand jury;
c. suggesting that his attorney hide or destroy documents called for by the grand jury subpoena;
d. providing to the FBI and grand jury just some of the documents called for by the grand jury subpoena, while claiming that he was cooperating fully;
e. causing a certification to be submitted to the FBI and grand jury falsely representing that all documents called for by the grand jury subpoena had been produced -- while knowing that, in fact, not all such documents had been produced; and
f. attempting to delete security camera footage at The Mar-a-Lago Club to conceal information from the FBI and grand jury.
8. As a result of TRUMP's retention of classified documents after his presidency and refusal to return them, hundreds of classified documents were not recovered by the United States government until 2022, as follows:
a. On January 17, nearly one year after TRUMP left office, and after months of demands by the National Archives and Records Administration for TRUMP to provide all missing presidential records, TRUMP provided only 15 boxes, which contained 197 documents with classification markings.
b. On June 3, in response to a grand jury subpoena demanding the production of all documents with classification markings, TRUMP's attorney provided to the FBI 38 more documents with classification markings.
c. On August 8, pursuant to a court-authorized search warrant, the FBI recovered from TRUMP's office and a storage room at The Mar-a-Lago Club 102 more documents with classification markings. TRUMP's Co-Conspirators
9. Defendant NAUTA was a member of the United States Navy stationed as a valet in the White House during TRUMP's presidency. Beginning in August 2021, NAUTA became an executive assistant in The Office of Donald J. Trump and served as TRUMP's personal aide or "body man." NAUTA reported to TRUMP, worked closely with TRUMP, and traveled with TRUMP.
10. Beginning in January 2022, Defendant CARLOS DE OLIVEIRA was employed as the property manager at The Mar-a-Lago Club. Prior to holding the position of property manager, DE OLIVEIRA was employed as a valet at The Mar-a-Lago Club.
The Mar-a-Lago Club
11. The Mar-a-Lago Club was located on South Ocean Boulevard in Palm Beach, Florida, and included TRUMP's residence, more than 25 guest rooms, two ballrooms, a spa, a gift store, exercise facilities, office space, and an outdoor pool and patio. As of January 2021, The Mar-a-Lago Club had hundreds of members and was staffed by more than 150 full-time, part-time, and temporary employees.
12. Between January 2021 and August 2022, The Mar-a-Lago Club hosted more than 150 social events, including weddings, movie premieres, and fundraisers that together drew tens of thousands of guests.
13. The United States Secret Service (the 'Secret Service") provided protection services to TRUMP and his family after he left office, including at The Mar-a-Lago Club, but it was not responsible for the protection of TRUMP's boxes or their contents. TRUMP did not inform the Secret Service that he was storing boxes containing classified documents at The Mara-Lago Club. Classified Information
14. National security information was information owned by, produced by, produced for, and under the control of the United States government. Pursuant to Executive Order 12958, signed on April 17, 1995, as amended by Executive Order 13292 on March 25, 2003, and Executive Order 13526 on December 29, 2009, national security information was classified as ''TOP SECRET," "SECRET,'' or "CONFIDENTIAL," as follows:
a. Information was classified as TOP SECRET if the unauthorized disclosure of that information reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority was able to identify or describe.
b. Information was classified as SECRET if the unauthorized disclosure of that information reasonably could be expected to cause serious damage to the national security that the original classification authority was able to identify or describe.
c. Information was classified as CONFIDENTIAL if the unauthorized disclosure of that information reasonably could be expected to cause damage to the national security that the original classification authority was able to identify or describe.
15. The classification marking "NOFORN'' stood for "Not Releasable to Foreign Nationals" and denoted that dissemination of that information was limited to United States persons.
16. Classified information related to intelligence sources, methods, and analytical processes was designated as Sensitive Compartmented Information ("SCI"). SCI was to be processed, stored, used, or discussed in an accredited Sensitive Compartmented Information Facility ("SCIF''), and only individuals with the appropriate security clearance and additional SCI permissions were authorized to have access to such national security information.
17. When the vulnerability of, or threat to, specific classified information was exceptional, and the normal criteria for determining eligibility for access to classified information were insufficient to protect the information from unauthorized disclosure, the United States could establish Special Access Programs ("SAPs'') to further protect the classified information. The number of these programs was to be kept to an absolute minimum and limited to programs in which the number of persons who ordinarily would have access would be reasonably small and commensurate with the objective of providing enhanced protection for the information involved. Only individuals with the appropriate security clearance and additional SAP permissions were authorized to have access to such national security information, which was subject to enhanced handling and storage requirements.
18. Pursuant to Executive Order 13526, information classified at any level could be lawfully accessed only by persons determined by an appropriate United States government official to be eligible for access to classified information and who had signed an approved non-disclosure agreement, who received a security clearance, and who had a "need-to-know'' the classified information. After his presidency, TRUMP was not authorized to possess or retain classified documents.
19. Executive Order 13526 provided that a former president could obtain a waiver of the "need-to-know'' requirement, if the agency head or senior agency official of the agency that originated the classified information: (1) determined in writing that access was consistent with the interest of national security and (2) took appropriate steps to protect classified information from unauthorized disclosure or compromise and ensured that the information was safeguarded in a manner consistent with the order. TRUMP did not obtain any such waiver after his presidency.
The Executive Branch Departments and Agencies Whose Classified Documents TRUMP Retained After His Presidency
20. As part of his official duties as president, TRUMP received intelligence briefings from high-level United States government officials, including briefings from the Director of the Central Intelligence Agency, the Chairman of the Joint Chiefs of Staff, senior White House officials, and a designated briefer. He regularly received a collection of classified intelligence from the United States Intelligence Community (''USIC") known as the ''President's Daily Brief."
21. The USIC's mission was to collect, analyze, and deliver foreign intelligence and counterintelligence information to America's leaders, including the president, policymakers, law enforcement, and the military, so they could make sound decisions to protect the United States. The USIC consisted of United States executive branch departments and agencies responsible for the conduct of foreign relations and the protection of national security.
22. After his presidency, TRUMP retained classified documents originated by, or implicating the equities of, multiple USIC members and other executive branch departments and agencies, including the following:
a. The Central Intelligence Agency ("CIA"). CIA was responsible for providing intelligence on foreign countries and global issues to the president and other policymakers to help them make national security decisions.
b. The Department of Defense ("DoD"). DoD was responsible for providing the military forces needed to deter war and ensure national security. Some of the executive branch agencies comprising the USIC were within DoD.
c. The National Security Agency. The National Security Agency was a combat support agency within DoD and a member of the USIC responsible for foreign signals intelligence and cybersecurity. This included collecting, processing, and disseminating to United States policymakers and military leaders foreign intelligence derived from communications and information systems; protecting national security systems; and enabling computer network operations.
d. The National Geospatial Intelligence Agency. The National Geospatial Intelligence Agency was a combat support agency within DoD responsible for the exploitation and analysis of imagery, imagery intelligence, and geospatial information in support of the national security objectives of the United States and the geospatial intelligence requirements of DoD, the Department of State, and other federal agencies.
e. The National Reconnaissance Office. The National Reconnaissance Office was an agency within DoD responsible for developing, acquiring, launching, and operating space-based surveillance and reconnaissance systems that collected and delivered intelligence to enhance national security.
f. The Department of Energy. The Department of Energy was responsible for maintaining a safe, secure, and effective nuclear deterrent to protect national security, including ensuring the effectiveness of the United States nuclear weapons stockpile without nuclear explosive testing.
g. The Department of State and Bureau of Intelligence and Research. The Department of State was responsible for protecting and promoting United States security, prosperity, and democratic values. Within the Department of State, the Bureau of Intelligence and Research was a member of the USIC and responsible for providing intelligence to inform diplomacy and support United States diplomats.
TRUMP's Public Statements on Classified Information
23. As a candidate for President of the United States, TRUMP made the following public statements, among others, about classified information:
a. On August 18, 2016, TRUMP stated, "In my administration I'm going to enforce all laws concerning the protection of classified information. No one will be above the law."
b. On September 6, 2016, TRUMP stated, ·'We also need to fight this battle by collecting intelligence and then protecting, protecting our classified secrets. . . . We can't have someone in the Oval Office who doesn't understand the meaning of the word confidential or classified."
c. On September 7, 2016, TRUMP stated, "[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information."
d. On September 19, 2016, TRUMP stated, "We also need the best protection of classified information."
e. On November 3, 2016, TRUMP stated, "Service members here in North Carolina have risked their lives to acquire classified intelligence to protect our country.''
24. As President of the United States, on July 26, 2018, TRUMP issued the following statement about classified information:
As the head of the executive branch and Commander in Chief, I have a unique, Constitutional responsibility to protect the Nation's classified information, including by controlling access to it. . .. More broadly, the issue of [a former executive branch official's) security clearance raises larger questions about the practice of former officials maintaining access to our Nation's most sensitive secrets long after their time in Government has ended. Such access is particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks. Any access granted to our Nation's secrets should be in furtherance of national, not personal, interests.
TRUMP's Retention of Classified Documents After His Presidency
25. In January 2021, as he was preparing to leave the White House, TRUMP and his White House staff, including NAUTA, packed items, including some of TRUMP's boxes. TRUMP was personally involved in this process. TRUMP caused his boxes, containing hundreds of classified documents, to be transported from the White House to The Mar-a-Lago Club.
26. From January through March 15, 2021, some of TRUMP's boxes were stored in The Mar-a-Lago Club's White and Gold Ballroom, in which events and gatherings took place. TRUMP's boxes were for a time stacked on the ballroom's stage, as depicted in the photograph below (redacted to obscure an individual's identity).
27. In March 2021, NAUTA and others moved some of TRUMP's boxes from the White and Gold Ballroom to the business center at The Mar-a-Lago Club.
28. On April 5, 2021, an employee of The Office of Donald J. Trump ("Trump Employee 1 ") texted another employee of that office ("Trump Employee 2") to ask whether TRUMP's boxes could be moved out of the business center to make room for staff to use it as an office. Trump Employee 2 replied, ''Woah!! Ok so potus specifically asked Walt for those boxes to be in the business center because they are his 'papers."' Later that day, Trump Employee 1 and Trump Employee 2 exchanged the following text messages:
Trump Employee 2:
We can definitely make it work if we move his papers into the lake room?
Trump Employee 1 : There is still a little room in the shower where his other stuff is. Is it only his papers he cares about? Theres some other stuff in there that are not papers. Could that go to storage? Or does he want everything in there on property
Trump Employee 2:
Yes -anything that's not the beautiful mind paper boxes can definitely go to storage. Want to take a look at the space and start moving tomorrow AM?
29. After the text exchange between Trump Employee 1 and Trump Employee 2, in April 2021, some of TRUMP's boxes were moved from the business center to a bathroom and shower in The Mar-a-Lago Club's Lake Room, as depicted in the photograph below.
30. In May 2021, TRUMP directed that a storage room on the ground floor of The Mar-a-Lago Club (the "Storage Room") be cleaned out so that it could be used to store his boxes. The hallway leading to the Storage Room could be reached from multiple outside entrances, including one accessible from The Mar-a-Lago Club pool patio through a doorway that was often kept open. The Storage Room was near the liquor supply closet, linen room, lock shop, and various other rooms.
31. On June 24, 2021, TRUMP's boxes that were in the Lake Room were moved to the Storage Room. After the move, there were more than 80 boxes in the Storage Room, as depicted in the photographs below.
32. On December 7, 2021, NAUTA found several of TRUMP's boxes fallen and their contents spilled onto the floor of the Storage Room, including a document marked "SECRET//REL TO USA, FVEY," which denoted that the information in the document was releasable only to the Five Eyes intelligence alliance consisting of Australia, Canada, New Zealand, the United Kingdom, and the United States. NAUTA texted Trump Employee 2, "I opened the door and found this ... " NAUTA also attached two photographs he took of the spill. Trump Employee 2 replied, "Oh no oh no," and "I'm sorry potus had my phone." One of the photographs NAUTA texted to Trump Employee 2 is depicted below with the visible classified information redacted. TRUMP's unlawful retention of this document is charged in Count 8 of this Superseding Indictment.
TRUMP's Disclosures of Classified Information in Private Meetings
33. In May 2021, TRUMP caused some of his boxes to be brought to his summer residence at The Bedminster Club. Like The Mar-a-Lago Club, after TRUMP's presidency, The Bedminster Club was not an authorized location for the storage, possession, review, display, or discussion of classified documents.
34. On July 21, 202 l, when he was no longer president, TRUMP gave an interview in his office at The Bedminster Club to a writer and a publisher in connection with a then-forthcoming book. Two members of TRUMP's staff also attended the interview, which was recorded with TRUMP's knowledge and consent. Before the interview, the media had published reports that, at the end of TRUMP's term as president, a senior military official (the "Senior Military Official") purportedly feared that TRUMP might order an attack on Country A and that the Senior Military Official advised TRUMP against doing so.
35. Upon greeting the writer, publisher, and his two staff members, TRUMP stated, "Look what I found, this was [the Senior Military Official's) plan of attack, read it and just show ... it's interesting.' Later in the interview, TRUMP engaged in the following exchange:
TRUMP: Well, with [the Senior Military Official]-uh, let me see that, I'll show you an example. He said that r wanted to attack [Country A]. Isn't it amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this -- this is off the record, but -- they presented me this. This was him. This was the Defense Department and him.
WRITER: Wow.
TRUMP: We looked at some. This was him. This wasn't done by me, this was him. All sorts of stuff-pages long, look.
STAFFER: Mm.
TRUMP: Wait a minute, let's see here.
STAFFER: [laughter] Yeah.
TRUMP: I just found, isn't that amazing? This totally wins my case, you know.
STAFFER: Mm-hm.
TRUMP: Except it is like, highly confidential.
STAFFER: Yeah. [Laughter]
TRUMP: Secret. This is secret information. Look, look at this. You attack, and-
* * *
TRUMP: By the way. Isn't that incredible?
STAFFER: Yeah.
TRUMP: I was just thinking, because we were talking about it. And you know, he said, "he wanted to attack [Country A], and what ... "
STAFFER: You did.
TRUMP: This was done by the military and given to me. Uh, I think we can probably, right?
STAFFER: I don't know, we'll, we'll have to see. Yeah, we'll have to try to-
TRUMP: Declassify it.
STAFFER: -figure out a-yeah.
TRUMP: See as president I could have declassified it.
STAFFER: Yeah. [Laughter]
TRUMP: Now I can't, you know, but this is still a secret.
STAFFER: Yeah. [Laughter] Now we have a problem.
TRUMP: Isn't that interesting?
At the time of this exchange, the writer, the publisher, and TRUMP's two staff members did not have security clearances or any need-to-know any classified information about a plan of attack on Country A. The document that TRUMP possessed and showed on July 21, 2021, is charged as Count 32 in this Superseding Indictment.
36. In August or September 2021, when he was no longer president, TRUMP met in his office at The Bedminster Club with a representative of his political action committee (the "PAC Representative"). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country Band told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-to-know classified information about the military operation.
37. On February 16, 2017, four years before TRUMP's disclosures of classified information set forth above, TRUMP said at a press conference:
The first thing I thought of when I heard about it is, how does the press get this information that's classified? How do they do it? You know why? Because it's an illegal process, and the press should be ashamed of themselves. But more importantly, the people that gave out the information to the press should be ashamed of themselves. Really ashamed.
TRUMP's Production of 15 Cardboard Boxes to the National Archives and Records Administration
38. Beginning in May 2021, the National Archives and Records Administration (''NARA"), which was responsible for archiving presidential records, repeatedly demanded that TRUMP turn over presidential records that he had kept after his presidency. On multiple occasions, beginning in June, NARA warned TRUMP through his representatives that if he did not comply, it would refer the matter of the missing records to the Department of Justice.
39. Between November 2021 and January 2022, NAUTA and Trump Employee 2 -- at TRUMP'S direction -- brought boxes from the Storage Room to TRUMP's residence for TRUMP to review.
40. On November 12, 2021, Trump Employee 2 provided TRUMP a photograph of his boxes in the Storage Room by taping it to one of the boxes that Trump Employee 2 had placed in TRUMP's residence. Trump Employee 2 provided TRUMP the photograph so that TRUMP could see how many of his boxes were stored in the Storage Room. The photograph, shown below, depicted a wall of the Storage Room against which dozens of TRUMP's boxes were stacked.
41. On November 17, 2021, NAUTA texted Trump Employee 2 about the photograph Trump Employee 2 had provided to TRUMP, stating, "He mentioned about a picture of the 'boxes' he wants me to see it?" Trump Employee 2 replied, "Calling you shortly."
42. On November 25, 2021, Trump Employee 2 texted NAUTA about TRUMP's review of the contents of his boxes, asking, "Has he mentioned boxes to you? I delivered some,
but I think he may need more. Could you ask if he'd like more in pine hall?" Pine Hall was an entry room in TRUMP's residence. NAUTA replied in three successive text messages:
Nothing about boxes yet
He has one he's working on in pine hall
Knocked out 2 boxes yesterday
43. On November 29, 2021, Trump Employee 2 texted NAUTA, asking, "Next you are on property (no rush) could you help me bring 4 more boxes up?" NAUTA replied, "Yes!! Of course."
44. On December 29, 2021, Trump Employee 2 texted a TRUMP representative who was in contact with NARA ("Trump Representative 1'"), "box answer will be wrenched out of him today, promise!" The next day, Trump Representative I replied in two successive text messages:
Hey -Just checking on Boxes ...
would love to have a number to them today
Trump Employee 2 spoke to TRUMP and then responded a few hours later in two successive text messages:
12
Is his number
45. On January 13, 2022, NAUTA texted Trump Employee 2 about TRUMP's "tracking" of boxes, stating, 'He's tracking the boxes, more to follow today on whether he wants to go through more today or tomorrow.'· Trump Employee 2 replied, "Thank you!"
46. On January 15, 2022, NAUTA sent Trump Employee 2 four successive text messages:
One thing he asked
Was for new covers for the boxes, for Monday m.
Morning
*can we get new box covers before giving these to them on Monday? They have too much writing on them . .I marked too much
Trump Employee 2 replied, "Yes, I will get that!"
47. On January 17, 2022, Trump Employee 2 and NAUTA gathered 15 boxes from TRUMP's residence, loaded the boxes in NAUTA's car, and took them to a commercial truck for delivery to NARA.
48. When interviewed by the FBI in May 2022 regarding the location and movement of boxes before the production to NARA, NAUTA made false and misleading statements as set forth in Count 38 of this Superseding Indictment, including:
a. falsely stating that he was not aware of TRUMP's boxes being brought to TRUMP's residence for his review before TRUMP provided 15 boxes to NARA in January 2022;
b. falsely stating that he did not know how the boxes that he and Trump Employee 2 brought from TRUMP's residence to the commercial truck for delivery to NARA on January 17, 2022, had gotten to the residence; and
c. when asked whether he knew where TRUMP's boxes had been stored before they were in TRUMP's residence and whether they had been in a secure or locked location, NAUTA falsely responded, "I wish, I wish I could tell you. I don't know. I don't-I honestly just don't know."
49. When the 15 boxes that TRUMP had provided reached NARA in January 2022, NARA reviewed the contents and determined that 14 of the boxes contained documents with classification markings. Specifically, as the FBI later determined, the boxes contained 197 documents with classification markings, of which 98 were marked "SECRET," 30 were marked "TOP SECRET," and the remainder were marked "CONFIDENTIAL." Some of those documents also contained SCI and SAP markings.
50. On February 9, 2022, NARA referred the discovery of classified documents in TRUMP's boxes to the Department of Justice for investigation.
The FBI and Grand Jury Investigations
51. On March 30, 2022, the FBI opened a criminal investigation.
52. On April 26, 2022, a federal grand jury opened an investigation.
The Defendants' Concealment of Boxes
53. On May 11, 2022, the grand jury issued a subpoena (the "May 11 Subpoena") to The Office of Donald J. Trump requiring the production of all documents with classification markings in the possession, custody, or control of TRUMP or The Office of Donald J. Trump. Two attorneys representing TRUMP (''Trump Attorney 1" and "Trump Attorney 2") informed TRUMP of the May 11 Subpoena, and he authorized Trump Attorney 1 to accept service.
54. On May 22, 2022, NAUTA entered the Storage Room at 3:47 p.m. and left approximately 34 minutes later, carrying one of TRUMP's boxes.
55. On May 23, 2022, TRUMP met with Trump Attorney 1 and Trump Attorney 2 at The Mar-a-Lago Club to discuss the response to the May 11 Subpoena. Trump Attorney 1 and Trump Attorney 2 told TRUMP that they needed to search for documents that would be responsive to the subpoena and provide a certification that there had been compliance with the subpoena. TRUMP, in sum and substance, made the following statements, among others, as memorialized by Trump Attorney 1:
a. I don't want anybody looking, I don't want anybody looking through my boxes, I really don't, I don't want you looking through my boxes.
b. Well what if we, what happens if we just don't respond at all or don't play ball with them?
c. Wouldn't it be better if we just told them we don't have anything here?
d. Well look isn't it better if there are no documents?
56. While meeting with Trump Attorney 1 and Trump Attorney 2 on May 23, TRUMP, in sum and substance, told the following story, as memorialized by Trump Attorney 1:
[Attorney], he was great, he did a great job. You know what? He said, he said that it -that it was him. That he was the one who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and her going to the gym and her having beauty appointments. And he was great. And he, so she didn't get in any trouble because he said that he was the one who deleted them.
TRUMP related the story more than once that day.
57. On May 23, TRUMP also confirmed his understanding with Trump Attorney 1 that Trump Attorney 1 would return to The Mar-a-Lago Club on June 2 to search for any documents with classification markings to produce in response to the May 11 Subpoena. Trump Attorney 1 made it clear to TRUMP that Trump Attorney 1 would conduct the search for responsive documents by looking through TRUMP's boxes that had been transported from the White House and remained in storage at The Mar-a-Lago Club. TRUMP indicated that he wanted to be at The Mar-a-Lago Club when Trump Attorney 1 returned to review his boxes on June 2, and that TRUMP would change his summer travel plans to do so. TRUMP told Trump Attorney 2 that Trump Attorney 2 did not need to be present for the review of boxes.
58. After meeting with Trump Attorney 1 and Trump Attorney 2 on May 23, TRUMP delayed his departure from The Mar-a-Lago Club to The Bedminster Club for the summer so that he would be present at The Mar-a-Lago Club on June 2, when Trump Attorney l returned to review the boxes.
59. Between TRUMP's May 23 meeting with Trump Attorney 1 and Trump Attorney 2 to discuss the May 1 I Subpoena, and June 2, when Trump Attorney 1 returned to The Mar-a-Lago Club to review the boxes in the Storage Room, NAUT A removed-at TRUMP's direction-a total of approximately 64 boxes from the Storage Room and brought them to TRUMP's residence, as set forth below:
a. On May 24, 2022, between 5:30 p.m. and 5:38 p.m., NAUTA removed three boxes from the Storage Room.
b. On May 30, 2022, at 9:08 a.m., TRUMP and NAUTA spoke by phone for approximately 30 seconds. Between 10:02 a.m. and 11:51 a.m., NAUTA removed a total of approximately 50 boxes from the Storage Room.
c. On May 30, 2022, at 12:33 p.m., a Trump family member texted NAUTA:
Good afternoon Walt,
Happy Memorial Day!
I saw you put boxes to Potus room. Just FYI and I will tell him as well:
Not sure how many he wants to take on Friday on the plane. We will NOT have a room for them. Plane will be full with luggage.
Thank you!
NAUTA replied:
Good Afternoon Ma'am [Smiley Face Emoji] Thank you so much.
I think he wanted to pick from them. I don't imagine him wanting to take the boxes.
He told me to put them in the room and that he was going to talk to you about them.
d. On June 1, 2022, beginning at 12:52 p.m., NAUTA removed approximately 11 boxes from the Storage Room.
60. On June 1, 2022, TRUMP spoke with Trump Attorney 1 by phone and asked whether Trump Attorney 1 was coming to The Mar-a-Lago Club the next day and for exactly what purpose. Trump Attorney 1 reminded TRUMP that Trump Attorney 1 was going to review the boxes that had been transported from the White House and remained in storage at The Mar-a-Lago Club so that Trump Attorney 1 could have a custodian of records certify that the May 11 subpoena had been complied with fully.
61. On June 2, 2022, the day that Trump Attorney 1 was scheduled to review TRUMP's boxes in the Storage Room, TRUMP spoke with NAUTA on the phone at 9:29 a.m. for approximately 24 seconds.
62. Later that day, between 12:33 p.m. and 12:52 p.m., NAUTA and DE OLIVEIRA moved approximately 30 boxes from TRUMP's residence to the Storage Room.
63. In sum, between May 23, 2022, and June 2, 2022, before Trump Attorney 1's review of TRUMP's boxes in the Storage Room, NAUTA -- at TRUMP's direction -- moved approximately 64 boxes from the Storage Room to TRUMP's residence, and NAUTA and DE OLIVEIRA brought to the Storage Room only approximately 30 boxes. Neither TRUMP nor NAUTA informed Trump Attorney l of this information.
The False Certification to the FBI and the Grand Jury
64. On the afternoon of June 2, 2022, as TRUMP had been informed, Trump Attorney l arrived at The Mar-a-Lago Club to review TRUMP's boxes to look for documents with classification markings in response to the May 11 Subpoena. TRUMP met with Trump Attorney 1 before Trump Attorney 1 conducted the review. NAUT A escorted Trump Attorney 1 to the Storage Room.
65. Between 3:53 p.m. and 6:23 p.m., Trump Attorney 1 reviewed the contents of TRUMP's boxes in the Storage Room. Trump Attorney 1 located 38 documents with classification markings inside the boxes, which Trump Attorney 1 removed and placed in a Redweld folder. Trump Attorney 1 contacted NAUTA and asked him to bring clear duct tape to the Storage Room, which NAUTA did. Trump Attorney 1 used the clear duct tape to seal the Redweld folder with the documents with classification markings inside.
66. After Trump Attorney 1 finished sealing the Redweld folder containing the documents with classification markings that he had found inside TRUMP' s boxes, NAUTA took Trump Attorney 1 to a dining room in The Mar-a-Lago Club to meet with TRUMP. After Trump Attorney 1 confirmed that he was finished with his search of the Storage Room, TRUMP asked, "Did you find anything? ... Is it bad? Good?"
67. TRUMP and Trump Attorney 1 then discussed what to do with the Redweld folder containing documents with classification markings and whether Trump Attorney 1 should bring them to his hotel room and put them in a safe there. During that conversation, TRUMP made a plucking motion, as memorialized by Trump Attorney 1:
He made a funny motion as though -well okay why don't you take them with you to your hotel room and if there's anything really bad in there, like, you know, pluck it out. And that was the motion that he made. He didn't say that.
68. That evening, Trump Attorney 1 contacted the Department of Justice and requested that an FBI agent meet him at The Mar-a-Lago Club the next day, June 3, so that he could turn over the documents responsive to the May 11 Subpoena.
69. Also that evening, Trump Attorney l contacted another TRUMP attorney ("Trump Attorney 3") and asked her if she would come to The Mar-a-Lago Club the next morning to act as a custodian of records and sign a certification regarding the search for documents with classification markings in response to the May 11 Subpoena. Trump Attorney 3, who had no role in the review of TRUMP's boxes in the Storage Room, agreed.
70. The next day, on June 3, 2022, at Trump Attorney 1 's request, Trump Attorney 3 signed a certification as the custodian of records for The Office of Donald J. Trump and took it to The Mar-a-Lago Club to provide it to the Department of Justice and FBI. In the certification, Trump Attorney 3 -- who performed no search of TRUMP's boxes, had not reviewed the May 11
Subpoena, and had not reviewed the contents of the Redweld folder -- stated, among other things, that "[b]ased upon the information that [had] been provided to" her:
a. "A diligent search was conducted of the boxes that were moved from the White House to Florida";
b. "This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena"; and
c. "Any and all responsive documents accompany this certification."
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Re: Trump lashes out at Gov. Doug Ducey following certificat
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71. These statements were false because, among other reasons, TRUMP had directed NAUTA to move boxes before Trump Attorney 1's June 2 review, so that many boxes were not searched and many documents responsive to the May 11 Subpoena could not be found -- and in fact were not found -- by Trump Attorney 1.
72. Shortly after Trump Attorney 3 executed the false certification, on June 3, 2022, Trump Attorney 1 and Trump Attorney 3 met at The Mar-a-Lago Club with personnel from the Department of Justice and FBI. Trump Attorney 1 and Trump Attorney 3 turned over the Redweld folder containing documents with classification markings, as well as the false certification signed by Trump Attorney 3 as custodian of records. TRUMP, who had delayed his departure from The Mar-a-Lago Club, joined Trump Attorney 1 and Trump Attorney 3 for some of the meeting. TRUMP claimed to the Department of Justice and FBI that he was "an open book."
73. Earlier that same day, NAUTA, DE OLIVEIRA, and others loaded several of TRUMP's boxes along with other items on aircraft that flew TRUMP and his family north for the summer.
The Attempt to Delete Security Camera Footage
74. On June 3, 2022, when FBI agents were at The Mar-a-Lago Club to collect the documents with classification markings from Trump Attorney 1 and Trump Attorney 3, the agents observed that there were surveillance cameras located near the Storage Room.
75. On June 22, 2022, the Department of Justice emailed an attorney for TRUMP's business organization a draft grand jury subpoena requiring the production of certain security camera footage from The Mar-a-Lago Club, including footage from cameras "on ground floor (basement)," where the Storage Room was located.
76. On June 23, 2022, at 8:46 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately 24 minutes.
77. On Friday, June 24, 2022, the Department of Justice emailed the attorney for TRUMP's business organization the final grand jury subpoena, which required the production of "[a]ny and all surveillance records, videos, images, photographs and/or CCTV from internal cameras" at certain locations at The Mar-a-Lago Club, including "on ground floor (basement)," from January 10, 2022, to June 24, 2022.
78. That same day, June 24, 2022, at 1:25 p.m., Trump Attorney 1 spoke with TRUMP by phone regarding the subpoena for security camera footage. At 3:44 p.m., NAUTA received a text message from a co-worker, Trump Employee 3, indicating that TRUMP wanted to see NAUTA. Less than two hours later, NAUTA -- who was scheduled to travel with TRUMP to Illinois the next day -- changed his travel schedule and began to make arrangements to go to Palm Beach, Florida, instead.
79. NAUTA provided inconsistent explanations to colleagues for his sudden travel to Florida. At 7:14 p.m. on June 24, he texted one person that he would not be traveling with TRUMP the next day because he had a family emergency and used ''shushing" emojis; at 9:48 p.m. that night, he texted a Secret Service agent that he had to check on a family member in Florida; and after he arrived in Florida on June 25, he texted the same Secret Service agent that he was in Florida working.
80. Around the same time on June 24 that NAUTA was making his travel plans to go to Florida, NAUTA and DE OLIVEIRA contacted Trump Employee 4, who was the Director of Information Technology ("IT') at The Mar-a-Lago Club, as follows:
a. At 5:02 p.m., NAUTA sent text messages to Trump Employee 4 asking, ''Hey bro You around this weekend."
b. At 5:05 p.m., NAUTA texted DE OLIVEIRA, asking, "Hey brother You working today?" DE OLIVEIRA responded, "Yes I just left." NAUTA then called DE OLIVEIRA and they spoke for approximately two minutes.
c. At 5:09 p.m., Trump Employee 4 texted a response to NAUTA, "I am local. Entertaining some family that came to visit. What's up?" NAUTA responded to Trump Employee 4, "Ok, cool. No biggie just wanted to see if you where around. Enjoy bro!''
d. At 6:56 p.m., DE OLIVEIRA texted Trump Employee 4, "Hey buddy how are you ... Walter call me early said it was trying to get in touch with you I guess he's coming down tomorrow I guess needs you for something." Trump Employee 4 responded, "He reached out but he didn't say what he wanted. I told him I was local but entertaining some family that came from NYC this weekend. He told me to no worries.''
e. At 6:58 p.m., Trump Employee 4 texted NAUTA, "Bro, if you need me I can get away for a few. Just let me know." NAUTA responded, "Sounds good!! Thank you.''
81. On Saturday, June 25, 2022, NAUTA traveled from Bedminster, New Jersey, to Palm Beach, Florida. Prior to NAUTA's trip, DE OLIVEIRA told a valet at The Mar-a-Lago Club ("Trump Employee 5") that NAUTA was coming down. DE OLIVEIRA asked Trump Employee 5 not to tell anyone that NAUTA was coming down because NAUTA wanted the trip to remain secret. DE OLIVEIRA also told Trump Employee 5 that NAUTA wanted DE OLIVEIRA to talk to Trump Employee 4 to see how long camera footage was stored.
82. Shortly after arriving in Palm Beach on the evening of June 25, NAUTA went to The Mar-a-Lago Club and met with DE OLIVEIRA at 5:46 p.m. At The Mar-a-Lago Club, NAUTA and DE OLIVEIRA went to the security guard booth where surveillance video is displayed on monitors, walked with a flashlight through the tunnel where the Storage Room was located, and observed and pointed out surveillance cameras.
83. On Monday, June 27, 2022, at 9:48 a.m., DE OLIVEIRA walked to the IT office where Trump Employee 4 was working with another employee in the IT department. DE OLIVEIRA requested that Trump Employee 4 step away from the office so that DE OLIVEIRA and Trump Employee 4 could talk.
84. At 9:49 a.m., Trump Employee 4 and DE OLIVEIRA left the area of the IT office together and walked through a basement tunnel. DE OLIVEIRA took Trump Employee 4 to a small room known as an "audio closet" near the White and Gold Ballroom. Once inside the audio closet, DE OLIVEIRA and Trump Employee 4 had the following exchange:
a. DE OLIVEIRA told Trump Employee 4 that their conversation should remain between the two of them.
b. DE OLIVEIRA asked Trump Employee 4 how many days the server retained footage. Trump Employee 4 responded that he believed it was approximately 45 days.
c. DE OLIVEIRA told Trump Employee 4 that "the boss" wanted the server deleted. Trump Employee 4 responded that he would not know how to do that, and that he did not believe that he would have the rights to do that. Trump Employee 4 told DE OLIVEIRA that DE OLIVEIRA would have to reach out to another employee who was a supervisor of security for TRUMP's business organization. DE OLIVEIRA then insisted to TRUMP Employee 4 that "the boss" wanted the server deleted and asked, "what are we going to do?"
85. At 10:14 a.m., DE OLIVEIRA texted NAUTA, who was still in Florida, "Hey buddy are you working today?" DE OLIVEIRA then called NAUTA at 10:15 a.m., and they spoke for approximately one minute.
86. Later that day, at I :06 p.m., NAUTA texted DE OLIVEIRA, who was at The Mar-a-Lago Club, "On my way to you." Between 1:31 p.m. and 1:50 p.m., DE OLIVEIRA walked through the bushes on the northern edge of The Mar-a-Lago Club property to meet with NAUTA on the adjacent property; then walked back to the IT office that he had visited that morning; and then walked again through the bushes on the northern edge of The Mar-a-Lago Club property to meet with NAUTA on the adjacent property.
87. At 3:55 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately three and a half minutes.
The Court-Authorized Search of The Mar-a-Lago Club
88. In July 2022, the FBI and grand jury obtained and reviewed surveillance video from The Mar-a-Lago Club showing the movement of boxes set forth above.
89. August 8, 2022, the FBI executed a court-authorized search warrant at The Mar-a-Lago Club. The search warrant authorized the FBI to search for and seize, among other things, all documents with classification markings.
90. During the execution of the warrant at The Mar-a-Lago Club, the FBI seized 102 documents with classification markings in TRUMP's office and the Storage Room, as follows:
91. Just over two weeks after the FBI discovered classified documents in the Storage Room and TRUMP's office, on August 26, 2022, NAUTA called Trump Employee 5 and said words to the effect of, "someone just wants to make sure Carlos is good." In response, Trump Employee 5 told NAUTA that DE OLIVEIRA was loyal and that DE OLIVEIRA would not do anything to affect his relationship with TRUMP. That same day, at NAUTA's request, Trump Employee 5 confirmed in a Signal chat group with NAUTA and the PAC Representative that DE OLIVEIRA was loyal. That same day, TRUMP called DE OLIVEIRA and told DE OLIVEIRA that TRUMP would get DE OLIVEIRA an attorney.
COUNTS 1-32
Willful Retention of National Defense Information
(18 U.S.C. § 793(e))
92. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
93. On or about the dates set forth in the table below, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendant,
DONALD J. TRUMP,
having unauthorized possession of, access to, and control over documents relating to the national defense, did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them; that is- -- RUMP, without authorization, retained at The Mar-a-Lago Club documents relating to the national defense, including the following:
COUNT33
Conspiracy to Obstruct Justice
18 U.S.C. § 1512(k))
94. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
The Conspiracy and its Objects
95. From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP,
WALTINE NAUTA,
and CARLOS DE OLIVEIRA
did knowingly combine, conspire, confederate, and agree with each other and with others known and unknown to the grand jury, to engage in misleading conduct toward another person and corruptly persuade another person to withhold a record, document, and other object from an official proceeding, in violation of 18 U.S.C. § 1512(b)(2)(A); to corruptly persuade another person, with intent to cause and induce any person to alter, destroy, mutilate, and conceal an object with intent to impair the object's integrity and availability for use in an official proceeding, in violation of 18 U.S.C. § 1512(b)(2)(8); and to corruptly alter, destroy, mutilate, and conceal a record, document, and other object from an official proceeding, in violation of 18 U.S.C. § 1512(c)(1).
The Purpose of the Conspiracy
96. The purpose of the conspiracy was for TRUMP to keep classified documents he had taken with him from the White House and to hide and conceal them from a federal grand jury.
The Manner and Means of the Conspiracy
97. The manner and means by which the defendants sought to accomplish the objects and purpose of the conspiracy included, among other things, the following:
a. Suggesting that Trump Attorney 1 falsely represent to the FBI and grand jury that TRUMP did not have documents called for by the May 11 Subpoena;
b. moving boxes of documents to conceal them from Trump Attorney 1, the FBI, and the grand jury;
c. suggesting that Trump Attorney 1 hide or destroy documents called for by the May 11 Subpoena;
d. providing to the FBI and grand jury just some of the documents called for by the May 11 Subpoena, while TRUMP claimed he was cooperating fully;
e. causing a false certification to be submitted to the FBI and grand jury representing that all documents with classification markings had been produced, when in fact they had not;
f. making false and misleading statements to the FBI; and
g. attempting to delete security camera footage from The Mar-a-Lago Club to conceal the footage from the FBI and grand jury.
All in violation of Title 18, United States Code, Section 1512(k).
COUNT 34
Withholding a Document or Record
(18 U.S.C. §§ 1512(b)(2)(A), 2)
98. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
99. From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP
and WALTINE NAUTA,
did knowingly engage in misleading conduct toward another person, and knowingly corruptly persuade and attempt to persuade another person, with intent to cause and induce any person to withhold a record, document, and other object from an official proceeding; that is--(1) TRUMP attempted to persuade Trump Attorney 1 to hide and conceal documents from a federal grand jury; and (2) TRUMP and NAUTA misled Trump Attorney 1 by moving boxes that contained documents with classification markings so that Trump Attorney 1 would not find the documents and produce them to a federal grand jury.
All in violation of Title 18, United States Code, Sections 15 l2(b)(2)(A) and 2.
COUNT 35
Corruptly Concealing a Document or Record
(18 U.S.C. §§ 1512(c)(1), 2)
100. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
101. From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP
and WALTINE NAUTA,
did corruptly conceal a record, document, and other object, and attempted to do so, with the intent to impair the object's integrity and availability for use in an official proceeding; that is-TRUMP and NAUTA hid and concealed boxes that contained documents with classification markings from Trump Attorney 1 so that Trump Attorney 1 would not find the documents and produce them to a federal grand jury.
All in violation of Title 18, United States Code, Sections 1512(c )(1) and 2.
COUNT 36
Concealing a Document in a Federal Investigation
(18 U.S.C. §§ 1519, 2)
102. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
103. From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP
and WALTINE NAUTA,
did knowingly conceal, cover up, falsify, and make a false entry in any record, document, and tangible object with the intent to impede, obstruct, and influence the investigation and proper administration of any matter within the jurisdiction of a department and agency of the United States, and in relation to and contemplation of any such matter; that is--during a federal criminal investigation being conducted by the FBI, (1) TRUMP and NAUTA hid, concealed, and covered up from the FBI TRUMP's continued possession of documents with classification markings at The Mar-a-Lago Club; and (2) TRUMP caused a false certification to be submitted to the FBI.
All in violation of Title 18, United States Code, Sections 1519 and 2.
COUNT 37
Scheme to Conceal
(18 U.S.C. §§ 1001(a)(1), 2)
104. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
105. From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP
and WALTINE NAUTA,
in a matter within the jurisdiction of the judicial branch and executive branch of the United States government, did knowingly and willfully falsify, conceal, and cover up by any trick, scheme, and device a material fact; that is -- during a federal grand jury investigation and a federal criminal investigation being conducted by the FBI, TRUMP and NAUTA hid and concealed from the grand jury and the FBI TRUMP's continued possession of documents with classification markings.
All in violation of Title 18, United States Code, Sections 1001 (a)(1) and 2.
COUNT 38
False Statements and Representations
(18 U.S.C. §§ 1001(a)(2), 2)
106. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
107. On or about June 3, 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendant,
DONALD J. TRUMP,
in a matter within the jurisdiction of the judicial branch and executive branch of the United States government, did knowingly and willfully make and cause to be made a materially false, fictitious, and fraudulent statement and representation; that is -- during a federal grand jury investigation and a federal criminal investigation being conducted by the FBI, TRUMP caused the following false statements and representations to be made to the grand jury and the FBI in a sworn certification executed by Trump Attorney 3:
a. "A diligent search was conducted of the boxes that were moved from the White House to Florida";
b. "This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena"; and
c. "Any and all responsive documents accompany this certification."
108. The statements and representations set forth above were false, as TRUMP knew, because TRUMP had directed that boxes be removed from the Storage Room before Trump Attorney 1 conducted the June 2, 2022 search for documents with classification markings, so that Trump Attorney 1 's search would not and did not include all of TRUMP's boxes that were removed from the White House; Trump Attorney 1's search would not and did not locate all
documents responsive to the May 11 Subpoena; and all responsive documents were not provided to the FBI and the grand jury with the certification. In fact, after June 3, 2022, more than 100 documents with classification markings remained at The Mar-a-Lago Club until the FBI search on August 8, 2022.
All in violation of Title 18, United States Code, Sections l00l(a)(2) and 2.
COUNT 39
False Statements and Representations
(18 U.S.C. § 100l(a)(2))
109. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
110. On May 26, 2022, NAUTA participated in a voluntary interview with the FBI. During the interview, the FBI explained to NAUTA that the FBI was investigating how classified documents had been kept at The Mar-a-Lago Club, and the FBI asked NAUTA questions about the location and movement of TRUMP's boxes before TRUMP provided 15 boxes to NARA on January 17, 2022. NAUTA was represented by counsel, and the FBI advised NAUTA that the interview was voluntary and that he could leave at any time. The FBI also advised NAUTA that it was a criminal offense to lie to the FBI. The interview was recorded.
111. On or about May 26, 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendant,
WALTINE NAUTA,
in a matter within the jurisdiction of the executive branch of the United States government, did knowingly and willfully make a materially false, fictitious, and fraudulent statement and representation; that is -- in a voluntary interview during a federal criminal investigation being conducted by the FBI, NAUTA was asked the following questions and gave the following false answers:
Question: Does any -are you aware of any boxes being brought to his home -his suite?
Answer: No.
Question: All right. So, so to the best of your knowledge, you're saying that those boxes that you brought onto the truck, first time you ever laid eyes on them was just the day of when [Trump Employee 2) needed you --
Answer: Correct.
Question: -to take them. Okay.
* * *
Question: In knowing that we're trying to track the life of these boxes and where they could have been kept and stored and all that kind of stuff-
Answer: Mm-hm.
Question: --do you have any information that could-that would-that could help us understand, like, where they were kept, how they were kept, were they secured, were they locked? Something that makes the intelligence community feel better about these things, you know?
Answer: I wish, I wish I could tell you. I don't know. I don't-I honestly just don't know.
* * *
Question: And what-so, so you only saw the 15 boxes, 15, 17 boxes-
Answer: Mm-hm.
Question: -the day of the move? Even-they just showed up that day?
Answer: They were in Pine Hall. [Trump Employee 2) just asked me, hey, can we move some boxes?
Question: Okay. Answer: And I was like, okay.
Question: So, you didn't know-had no idea how they got there before?
Answer: No.
112. The underscored statements and representations above were false, as NAUTA knew, because (1) NAUTA did in fact know that the boxes in Pine Hall had come from the Storage Room, as NA UTA himself, with the assistance of Trump Employee 2, had moved the boxes from the Storage Room to Pine Hall; and (2) NAUTA had observed the boxes in and moved them to various locations at The Mar-a-Lago Club.
All in violation of Title 18, United States Code, Section 1001 (a)(2).
COUNT 40
Altering, Destroying, Mutilating, or Concealing an Object
(18 U.S.C. §§ 1512(b)(2)(B), 2)
113. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
114. From on or about June 22, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP,
WALTINE NAUTA,
and CARLOS DE OLIVEIRA
did knowingly corruptly persuade and attempt to persuade another person, with intent to cause and induce any person to alter, destroy, mutilate, and conceal an object with intent to impair the object's integrity and availability for use in an official proceeding; that is -- TRUMP, NAUTA, and DE OLIVEIRA requested that Trump Employee 4 delete security camera footage at The Mara-Lago Club to prevent the footage from being provided to a federal grand jury.
All in violation of Title 18, United States Code, Sections 1512(b )(2)(8) and 2.
COUNT 41
Corruptly Altering, Destroying, Mutilating or Concealing a Document, Record, or Other Object
(18 U.S.C. §§ 1512(c)(1), 2)
115. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
116. From on or about June 22, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP,
WALTINE NAUTA,
and CARLOS DE OLIVEIRA
did corruptly alter, destroy, mutilate. and conceal a record, document and other object and attempted to do so, with the intent to impair the object's integrity and availability for use in an official proceeding; that is -- TRUMP, NAUTA, and DE OLIVEIRA requested that Trump Employee 4 delete security camera footage at The Mar-a-Lago Club to prevent the footage from being provided to a federal grand jury.
All in violation of Title 18, United States Code, Sections 15 12(c)(1) and 2.
COUNT 42
False Statements and Representations
(18 U.S.C. § 1001(a)(2))
117. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
118. On January 13, 2023, DE OLIVEIRA participated in a voluntary interview with the FBI at DE OLIVEIRA's residence. During the interview, the FBI explained to DE OLIVEIRA that the FBI was investigating how classified documents had been kept at The Mara-Lago Club, and the FBI asked DE OLIVEIRA questions about the location and movement of TRUMP's boxes and other items. DE OLIVEIRA was advised by the FBI that the interview was voluntary and that he could tell the agents to leave at any time. The FBI also advised DE OLIVEIRA that it was a criminal offense to lie to the FBI. The interview was recorded.
119. On or about January 13, 2023, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendant,
CARLOS DE OLIVEIRA,
in a matter within the jurisdiction of the executive branch of the United States government, did knowingly and willfully make a materially false, fictitious, and fraudulent statement and representation; that is -- in a voluntary interview during a federal criminal investigation being conducted by the FBI, DE OLIVEIRA was asked the following questions and gave the following false answers:
Question: When --after the end of the presidency, boxes arrived to Mar-a-Lago. Were you part of any group to help --
Answer: No.
Question: --unload them and move them?
Answer: No.
* * *
Question: Do you --were you --do you even know, like, or were you even there or aware that boxes were --
Answer: No.
Question: --like, all this stuff was being moved in?
Answer: Never saw anything.
Question: Okay.
Answer: Yeah. And then --
Question: Even his personal stuff, like, his clothes -
Answer: Never.
Question: --and furniture, nothing?
Answer: Never saw nothing.
Question: Okay. So you don't know where items would have been stored, as soon as he moved back to Mar-a-Lago?
Answer: No.
120. The underscored statements and representations above were false, as DE OLIVEIRA knew, because DE OLIVEIRA had personally observed and helped move TRUMP's boxes when they arrived at The Mar-a-Lago Club in January 2021.
All in violation of Title 18, United States Code, Section 1001(a)(2).
A TRUE BILL
[DELETE]
FOREPERSON
JACK SMITH
SPECIAL COUNSEL
UNITED STATES DEPARTMENT OF JUSTICE
***
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
PENALTY SHEET
Defendant's Name: Donald J. Trump
Case No.: 23-CR-80101-AMC(s)
Counts #:1-32
Willful Retention of National Defense Information, 18 U.S.C. § 793(e)
*Max.Term of Imprisonment: 10 years *
*Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
*Max. Fine: $250,000
Count#: 33
Conspiracy to Obstruct Justice, 18 U.S.C. § 1512(k)
*Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
*Max. Fine: $250,000
Count#: 34
Withholding a Document or Record, 18 U.S.C. §§ 1512(b)(2)(A), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 35
Corruptly Concealing a Document or Record, 18 U.S.C. §§ 1512(c)(1), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 36
Concealing a Document in a Federal Investigation, 18 U.S.C. §§ 1519, 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
*Max. Supervised Release: 3 years
* Max. Fine: $250 000
Count#: 37
Scheme to Conceal, 18 U.S.C. §§ 1001(a)(1), 2
*Max. Term of Imprisonment: 5 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 39
False Statements and Representations, 18 U.S.C. § 1001 (a)(2)
*Max. Term of Imprisonment: 5 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
*Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 40
Altering, Destroying, Mutilating, or Concealing an Object. 18 U.S.C. §§ 1512(b)(2)(B). 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 41
Corruptly Altering, Destroying. Mutilating, or Concealing a Document, Record, or Other Object. 18 U.S.C. §§ 1512(c)(1), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
*Max. Supervised Release: 3 years
*Max. Fine: $250,000
*Refers only to possible term of incarceration, supervised release and fines. It does not include restitution, special assessments, parole terms, or forfeitures that may be applicable.
***
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
PENALTY SHEET
Defendant's Name: Waltine Nauta
Case No.: 23-CR-80101-AMC(s)
Count#: 33
Conspiracy to Obstruct Justice, 18 U.S.C. § 1512(k)
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 34
Withholding a Document or Record, 18 U.S.C. §§ 1512(b)(2)(A), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 35
Corruptly Concealing a Document or Record, 18 U.S.C. §§ 1512(c)(1), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 36
Concealing a Document in a Federal Investigation, 18 U.S.C. §§ 1519, 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 37
Scheme to Conceal, 18 U.S.C. §§ 1001(a)(1), 2
* Max. Term of Imprisonment: 5 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 39
False Statements and Representations, 18 U.S.C. § 1001(a)(2)
* Max. Term of Imprisonment: 5 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 40
Altering, Destroying, Mutilating, or Concealing an Object, 18 U.S.C. §§ 1512(b)(2)(B), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 41
Corruptly Altering, Destroying, Mutilating, or Concealing a Document, Record, or Other Object, 18 U.S.C. §§ 1512(c)(1), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
*Refers only to possible term of incarceration, supervised release and fines. It does not include restitution, special assessments, parole terms, or forfeitures that may be applicable.
***
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
PENALTY SHEET
Defendant's Name: Carlos De Oliveira
Case No.: 23-CR-80101-AMC(s)
Count #: 33
Conspiracy to Obstruct Justice, 18 U.S.C. §§ 1512(k)
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 40
Altering. Destroying, Mutilating. or Concealing an Object, 18 U.S.C. §§ 1512(b)(2)(B). 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 41 Corruptly Altering, Destroying. Mutilating, or Concealing a Document, Record. or Other Object, 18 U.S.C. §§ 1512(c)(1), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 42
False Statements and Representations, 18 U.S.C. § 1001 (a)(2)
*Max. Term of Imprisonment: 5 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
*Refers only to possible term of incarceration, supervised release and fines. It does not include restitution, special assessments, parole terms, or forfeitures that may be applicable.
71. These statements were false because, among other reasons, TRUMP had directed NAUTA to move boxes before Trump Attorney 1's June 2 review, so that many boxes were not searched and many documents responsive to the May 11 Subpoena could not be found -- and in fact were not found -- by Trump Attorney 1.
72. Shortly after Trump Attorney 3 executed the false certification, on June 3, 2022, Trump Attorney 1 and Trump Attorney 3 met at The Mar-a-Lago Club with personnel from the Department of Justice and FBI. Trump Attorney 1 and Trump Attorney 3 turned over the Redweld folder containing documents with classification markings, as well as the false certification signed by Trump Attorney 3 as custodian of records. TRUMP, who had delayed his departure from The Mar-a-Lago Club, joined Trump Attorney 1 and Trump Attorney 3 for some of the meeting. TRUMP claimed to the Department of Justice and FBI that he was "an open book."
73. Earlier that same day, NAUTA, DE OLIVEIRA, and others loaded several of TRUMP's boxes along with other items on aircraft that flew TRUMP and his family north for the summer.
The Attempt to Delete Security Camera Footage
74. On June 3, 2022, when FBI agents were at The Mar-a-Lago Club to collect the documents with classification markings from Trump Attorney 1 and Trump Attorney 3, the agents observed that there were surveillance cameras located near the Storage Room.
75. On June 22, 2022, the Department of Justice emailed an attorney for TRUMP's business organization a draft grand jury subpoena requiring the production of certain security camera footage from The Mar-a-Lago Club, including footage from cameras "on ground floor (basement)," where the Storage Room was located.
76. On June 23, 2022, at 8:46 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately 24 minutes.
77. On Friday, June 24, 2022, the Department of Justice emailed the attorney for TRUMP's business organization the final grand jury subpoena, which required the production of "[a]ny and all surveillance records, videos, images, photographs and/or CCTV from internal cameras" at certain locations at The Mar-a-Lago Club, including "on ground floor (basement)," from January 10, 2022, to June 24, 2022.
78. That same day, June 24, 2022, at 1:25 p.m., Trump Attorney 1 spoke with TRUMP by phone regarding the subpoena for security camera footage. At 3:44 p.m., NAUTA received a text message from a co-worker, Trump Employee 3, indicating that TRUMP wanted to see NAUTA. Less than two hours later, NAUTA -- who was scheduled to travel with TRUMP to Illinois the next day -- changed his travel schedule and began to make arrangements to go to Palm Beach, Florida, instead.
79. NAUTA provided inconsistent explanations to colleagues for his sudden travel to Florida. At 7:14 p.m. on June 24, he texted one person that he would not be traveling with TRUMP the next day because he had a family emergency and used ''shushing" emojis; at 9:48 p.m. that night, he texted a Secret Service agent that he had to check on a family member in Florida; and after he arrived in Florida on June 25, he texted the same Secret Service agent that he was in Florida working.
80. Around the same time on June 24 that NAUTA was making his travel plans to go to Florida, NAUTA and DE OLIVEIRA contacted Trump Employee 4, who was the Director of Information Technology ("IT') at The Mar-a-Lago Club, as follows:
a. At 5:02 p.m., NAUTA sent text messages to Trump Employee 4 asking, ''Hey bro You around this weekend."
b. At 5:05 p.m., NAUTA texted DE OLIVEIRA, asking, "Hey brother You working today?" DE OLIVEIRA responded, "Yes I just left." NAUTA then called DE OLIVEIRA and they spoke for approximately two minutes.
c. At 5:09 p.m., Trump Employee 4 texted a response to NAUTA, "I am local. Entertaining some family that came to visit. What's up?" NAUTA responded to Trump Employee 4, "Ok, cool. No biggie just wanted to see if you where around. Enjoy bro!''
d. At 6:56 p.m., DE OLIVEIRA texted Trump Employee 4, "Hey buddy how are you ... Walter call me early said it was trying to get in touch with you I guess he's coming down tomorrow I guess needs you for something." Trump Employee 4 responded, "He reached out but he didn't say what he wanted. I told him I was local but entertaining some family that came from NYC this weekend. He told me to no worries.''
e. At 6:58 p.m., Trump Employee 4 texted NAUTA, "Bro, if you need me I can get away for a few. Just let me know." NAUTA responded, "Sounds good!! Thank you.''
81. On Saturday, June 25, 2022, NAUTA traveled from Bedminster, New Jersey, to Palm Beach, Florida. Prior to NAUTA's trip, DE OLIVEIRA told a valet at The Mar-a-Lago Club ("Trump Employee 5") that NAUTA was coming down. DE OLIVEIRA asked Trump Employee 5 not to tell anyone that NAUTA was coming down because NAUTA wanted the trip to remain secret. DE OLIVEIRA also told Trump Employee 5 that NAUTA wanted DE OLIVEIRA to talk to Trump Employee 4 to see how long camera footage was stored.
82. Shortly after arriving in Palm Beach on the evening of June 25, NAUTA went to The Mar-a-Lago Club and met with DE OLIVEIRA at 5:46 p.m. At The Mar-a-Lago Club, NAUTA and DE OLIVEIRA went to the security guard booth where surveillance video is displayed on monitors, walked with a flashlight through the tunnel where the Storage Room was located, and observed and pointed out surveillance cameras.
83. On Monday, June 27, 2022, at 9:48 a.m., DE OLIVEIRA walked to the IT office where Trump Employee 4 was working with another employee in the IT department. DE OLIVEIRA requested that Trump Employee 4 step away from the office so that DE OLIVEIRA and Trump Employee 4 could talk.
84. At 9:49 a.m., Trump Employee 4 and DE OLIVEIRA left the area of the IT office together and walked through a basement tunnel. DE OLIVEIRA took Trump Employee 4 to a small room known as an "audio closet" near the White and Gold Ballroom. Once inside the audio closet, DE OLIVEIRA and Trump Employee 4 had the following exchange:
a. DE OLIVEIRA told Trump Employee 4 that their conversation should remain between the two of them.
b. DE OLIVEIRA asked Trump Employee 4 how many days the server retained footage. Trump Employee 4 responded that he believed it was approximately 45 days.
c. DE OLIVEIRA told Trump Employee 4 that "the boss" wanted the server deleted. Trump Employee 4 responded that he would not know how to do that, and that he did not believe that he would have the rights to do that. Trump Employee 4 told DE OLIVEIRA that DE OLIVEIRA would have to reach out to another employee who was a supervisor of security for TRUMP's business organization. DE OLIVEIRA then insisted to TRUMP Employee 4 that "the boss" wanted the server deleted and asked, "what are we going to do?"
85. At 10:14 a.m., DE OLIVEIRA texted NAUTA, who was still in Florida, "Hey buddy are you working today?" DE OLIVEIRA then called NAUTA at 10:15 a.m., and they spoke for approximately one minute.
86. Later that day, at I :06 p.m., NAUTA texted DE OLIVEIRA, who was at The Mar-a-Lago Club, "On my way to you." Between 1:31 p.m. and 1:50 p.m., DE OLIVEIRA walked through the bushes on the northern edge of The Mar-a-Lago Club property to meet with NAUTA on the adjacent property; then walked back to the IT office that he had visited that morning; and then walked again through the bushes on the northern edge of The Mar-a-Lago Club property to meet with NAUTA on the adjacent property.
87. At 3:55 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately three and a half minutes.
The Court-Authorized Search of The Mar-a-Lago Club
88. In July 2022, the FBI and grand jury obtained and reviewed surveillance video from The Mar-a-Lago Club showing the movement of boxes set forth above.
89. August 8, 2022, the FBI executed a court-authorized search warrant at The Mar-a-Lago Club. The search warrant authorized the FBI to search for and seize, among other things, all documents with classification markings.
90. During the execution of the warrant at The Mar-a-Lago Club, the FBI seized 102 documents with classification markings in TRUMP's office and the Storage Room, as follows:
Location / Number of Documents / Classification Markings
TRUMP's Office / 27 / Top Secret (6); Secret (18); Confidential (3)
Storage Room / 75 / Top Secret (11); Secret (36); Confidential (28)
91. Just over two weeks after the FBI discovered classified documents in the Storage Room and TRUMP's office, on August 26, 2022, NAUTA called Trump Employee 5 and said words to the effect of, "someone just wants to make sure Carlos is good." In response, Trump Employee 5 told NAUTA that DE OLIVEIRA was loyal and that DE OLIVEIRA would not do anything to affect his relationship with TRUMP. That same day, at NAUTA's request, Trump Employee 5 confirmed in a Signal chat group with NAUTA and the PAC Representative that DE OLIVEIRA was loyal. That same day, TRUMP called DE OLIVEIRA and told DE OLIVEIRA that TRUMP would get DE OLIVEIRA an attorney.
COUNTS 1-32
Willful Retention of National Defense Information
(18 U.S.C. § 793(e))
92. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
93. On or about the dates set forth in the table below, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendant,
DONALD J. TRUMP,
having unauthorized possession of, access to, and control over documents relating to the national defense, did willfully retain the documents and fail to deliver them to the officer and employee of the United States entitled to receive them; that is- -- RUMP, without authorization, retained at The Mar-a-Lago Club documents relating to the national defense, including the following:
Count / Date of Offense / Classification Marking / Document Description
1 / January 20, 2021 - August 8, 2022 / TOP SECRET//NOFORN//SPECIAL HANDLING / Document dated May 3, 2018, concerning White House intelligence briefing related to various foreign countries
2 / January 20, 2021 - August 8, 2022 / TOP SECRET//SI//NOFORN//SPECIAL HANDLING / Document dated May 9, 2018, concerning White House intelligence briefing related to various foreign countries
3 / January 20, 2021 - August 8, 2022 / TOP SECRET//SI//NOFORN//FISA / Undated document concerning military capabilities of a foreign country and the United States, with handwritten annotation in black marker
4 / January 20, 2021 - August 8, 2022 / TOP SECRET//SPECIAL HANDLING / Document dated May 6, 2019, concerning White House intelligence briefing related to foreign countries, including military activities and planning of foreign countries
5 / January 20, 2021 - August 8, 2022 / TOP SECRET//[redacted]/[redacted]//ORCON/NOFORN / Document dated June 2020 concerning nuclear capabilities of a foreign country
6 / January 20, 2021 - August 8, 2022 / TOP SECRET//SPECIAL HANDLING / Document dated June 4, 2020, concerning White House
7 / January 20, 2021 - August 8, 2022 / SECRET//NOFORN / Document dated October 21, 2018, concerning communications with a leader of a foreign country
8 / January 20, 2021 - August 8, 2022 / SECRET//REL TO USA, FVEY / Document dated October 4, 2019, concerning military capabilities of a foreign country
9 / January 20, 2021 - August 8, 2022 / TOP SECRET//[redacted]/[redacted]//ORCON/NOFORN/FISA / Undated document concerning military attacks by a foreign country
10 / January 20, 2021 - August 8, 2022 / TOP SECRET//TK//NOFORN / Document dated November 2017 concerning military capabilities of a foreign country
11 / January 20, 2021 - August 8, 2022 / No marking / Undated document concerning military contingency planning of the United States
12 / January 20, 2021 - August 8, 2022 / SECRET//REL TO USA, FVEY / Pages of undated document concerning projected regional military capabilities of a foreign country and the United States
13 / January 20, 2021 - August 8, 2022 / TOP SECRET//SI/TK//NOFORN / Undated document concerning military capabilities of a foreign country and the United States
14 / January 20, 2021 - August 8, 2022 / SECRET//ORCON/NOFORN / Document dated January 2020 concerning military options of a foreign country and potential effects on United States interests
15 / January 20, 2021 - August 8, 2022 / SECRET//ORCON/NOFORN / Document dated February 2020 concerning policies in a foreign country
16 / January 20, 2021 - August 8, 2022 / SECRET//ORCON/NOFORN / Document dated December 2019 concerning foreign country support of terrorist acts against United States interests
17 / January 20, 2021 - August 8, 2022 / TOP SECRET//[redacted]/TK//ORCON/IMCON/NOFORN / Document dated January 2020 concerning military capabilities of a foreign country
18 / January 20, 2021 - August 8, 2022 / SECRET//NOFORN / Document dated March 2020 concerning military operations against United States forces and others
19 / January 20, 2021 - August 8, 2022 / SECRET//FORMERLY RESTRICTED DATA / Undated document concerning nuclear weaponry of the United States
20 / January 20, 2021 - August 8, 2022 / TOP SECRET//[redacted]//ORCON/NOFORN / Undated document concerning timeline and details of attack in a foreign country
21 / January 20, 2021 - August 8, 2022 / SECRET//NOFORN / Undated document concerning military capabilities of foreign countries
22 / January 20, 2021 - June 3, 2022 / TOP SECRET//[redacted]//RSEN/ORCON/NOFORN / Document dated August 2019 concerning regional military activity of a foreign country
23 / January 20, 2021 - June 3, 2022 / TOP SECRET//SPECIAL HANDLING / Document dated August 30, 2019, concerning White House intelligence briefing related to various foreign countries, with handwritten annotation in black marker
24 / January 20, 2021 - June 3, 2022 / TOP SECRET//HCWS-P/SI//ORCON-USGOV/NOFORN / Undated document concerning military activity of a foreign country
25 / January 20, 2021 - June 3, 2022 / TOP SECRET//HCS-P/SI//ORCON-USGOV/NOFORN / Document dated October 24, 2019, concerning military activity of foreign countries and the United States
26 / January 20, 2021 - June 3, 2022 / TOP SECRET//[redacted]//ORCON/NOFORN/FISA / Document dated November 7, 2019, concerning military activity of foreign countries and the United States
27 / January 20, 2021 - June 3, 2022 / TOP SECRET//SI/TK//NOFORN / Document dated November 2019 concerning military activity of foreign countries
28 / January 20, 2021 - June 3, 2022 / TOP SECRET//SPECIAL HANDLING / Document dated October 18, 2019, concerning White House intelligence briefing related to various foreign countries
29 / January 20, 2021 - June 3, 2022 / TOP SECRET//[redacted]/SI/TK//ORCON/NOFORN / Document dated October 18, 2019, concerning military capabilities of a foreign country
30 / January 20, 2021 - June 3, 2022 / TOP SECRET//[redacted]//ORCON/NOFORN/FISA / Document dated October 15, 2019, concerning military activity in a foreign country
31 / January 20, 2021 - June 3, 2022 / TOP SECRET//SI/TK//NOFORN / Document dated February 2017 concerning military activity of a foreign country
32 / January 20, 2021 - January 17, 2022 / TOP SECRET//NOFORN / Presentation concerning military activity in a foreign country
All in violation of Title 18, United States Code, Section 793(e).
COUNT33
Conspiracy to Obstruct Justice
18 U.S.C. § 1512(k))
94. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
The Conspiracy and its Objects
95. From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP,
WALTINE NAUTA,
and CARLOS DE OLIVEIRA
did knowingly combine, conspire, confederate, and agree with each other and with others known and unknown to the grand jury, to engage in misleading conduct toward another person and corruptly persuade another person to withhold a record, document, and other object from an official proceeding, in violation of 18 U.S.C. § 1512(b)(2)(A); to corruptly persuade another person, with intent to cause and induce any person to alter, destroy, mutilate, and conceal an object with intent to impair the object's integrity and availability for use in an official proceeding, in violation of 18 U.S.C. § 1512(b)(2)(8); and to corruptly alter, destroy, mutilate, and conceal a record, document, and other object from an official proceeding, in violation of 18 U.S.C. § 1512(c)(1).
The Purpose of the Conspiracy
96. The purpose of the conspiracy was for TRUMP to keep classified documents he had taken with him from the White House and to hide and conceal them from a federal grand jury.
The Manner and Means of the Conspiracy
97. The manner and means by which the defendants sought to accomplish the objects and purpose of the conspiracy included, among other things, the following:
a. Suggesting that Trump Attorney 1 falsely represent to the FBI and grand jury that TRUMP did not have documents called for by the May 11 Subpoena;
b. moving boxes of documents to conceal them from Trump Attorney 1, the FBI, and the grand jury;
c. suggesting that Trump Attorney 1 hide or destroy documents called for by the May 11 Subpoena;
d. providing to the FBI and grand jury just some of the documents called for by the May 11 Subpoena, while TRUMP claimed he was cooperating fully;
e. causing a false certification to be submitted to the FBI and grand jury representing that all documents with classification markings had been produced, when in fact they had not;
f. making false and misleading statements to the FBI; and
g. attempting to delete security camera footage from The Mar-a-Lago Club to conceal the footage from the FBI and grand jury.
All in violation of Title 18, United States Code, Section 1512(k).
COUNT 34
Withholding a Document or Record
(18 U.S.C. §§ 1512(b)(2)(A), 2)
98. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
99. From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP
and WALTINE NAUTA,
did knowingly engage in misleading conduct toward another person, and knowingly corruptly persuade and attempt to persuade another person, with intent to cause and induce any person to withhold a record, document, and other object from an official proceeding; that is--(1) TRUMP attempted to persuade Trump Attorney 1 to hide and conceal documents from a federal grand jury; and (2) TRUMP and NAUTA misled Trump Attorney 1 by moving boxes that contained documents with classification markings so that Trump Attorney 1 would not find the documents and produce them to a federal grand jury.
All in violation of Title 18, United States Code, Sections 15 l2(b)(2)(A) and 2.
COUNT 35
Corruptly Concealing a Document or Record
(18 U.S.C. §§ 1512(c)(1), 2)
100. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
101. From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP
and WALTINE NAUTA,
did corruptly conceal a record, document, and other object, and attempted to do so, with the intent to impair the object's integrity and availability for use in an official proceeding; that is-TRUMP and NAUTA hid and concealed boxes that contained documents with classification markings from Trump Attorney 1 so that Trump Attorney 1 would not find the documents and produce them to a federal grand jury.
All in violation of Title 18, United States Code, Sections 1512(c )(1) and 2.
COUNT 36
Concealing a Document in a Federal Investigation
(18 U.S.C. §§ 1519, 2)
102. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
103. From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP
and WALTINE NAUTA,
did knowingly conceal, cover up, falsify, and make a false entry in any record, document, and tangible object with the intent to impede, obstruct, and influence the investigation and proper administration of any matter within the jurisdiction of a department and agency of the United States, and in relation to and contemplation of any such matter; that is--during a federal criminal investigation being conducted by the FBI, (1) TRUMP and NAUTA hid, concealed, and covered up from the FBI TRUMP's continued possession of documents with classification markings at The Mar-a-Lago Club; and (2) TRUMP caused a false certification to be submitted to the FBI.
All in violation of Title 18, United States Code, Sections 1519 and 2.
COUNT 37
Scheme to Conceal
(18 U.S.C. §§ 1001(a)(1), 2)
104. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
105. From on or about May 11, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP
and WALTINE NAUTA,
in a matter within the jurisdiction of the judicial branch and executive branch of the United States government, did knowingly and willfully falsify, conceal, and cover up by any trick, scheme, and device a material fact; that is -- during a federal grand jury investigation and a federal criminal investigation being conducted by the FBI, TRUMP and NAUTA hid and concealed from the grand jury and the FBI TRUMP's continued possession of documents with classification markings.
All in violation of Title 18, United States Code, Sections 1001 (a)(1) and 2.
COUNT 38
False Statements and Representations
(18 U.S.C. §§ 1001(a)(2), 2)
106. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
107. On or about June 3, 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendant,
DONALD J. TRUMP,
in a matter within the jurisdiction of the judicial branch and executive branch of the United States government, did knowingly and willfully make and cause to be made a materially false, fictitious, and fraudulent statement and representation; that is -- during a federal grand jury investigation and a federal criminal investigation being conducted by the FBI, TRUMP caused the following false statements and representations to be made to the grand jury and the FBI in a sworn certification executed by Trump Attorney 3:
a. "A diligent search was conducted of the boxes that were moved from the White House to Florida";
b. "This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena"; and
c. "Any and all responsive documents accompany this certification."
108. The statements and representations set forth above were false, as TRUMP knew, because TRUMP had directed that boxes be removed from the Storage Room before Trump Attorney 1 conducted the June 2, 2022 search for documents with classification markings, so that Trump Attorney 1 's search would not and did not include all of TRUMP's boxes that were removed from the White House; Trump Attorney 1's search would not and did not locate all
documents responsive to the May 11 Subpoena; and all responsive documents were not provided to the FBI and the grand jury with the certification. In fact, after June 3, 2022, more than 100 documents with classification markings remained at The Mar-a-Lago Club until the FBI search on August 8, 2022.
All in violation of Title 18, United States Code, Sections l00l(a)(2) and 2.
COUNT 39
False Statements and Representations
(18 U.S.C. § 100l(a)(2))
109. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
110. On May 26, 2022, NAUTA participated in a voluntary interview with the FBI. During the interview, the FBI explained to NAUTA that the FBI was investigating how classified documents had been kept at The Mar-a-Lago Club, and the FBI asked NAUTA questions about the location and movement of TRUMP's boxes before TRUMP provided 15 boxes to NARA on January 17, 2022. NAUTA was represented by counsel, and the FBI advised NAUTA that the interview was voluntary and that he could leave at any time. The FBI also advised NAUTA that it was a criminal offense to lie to the FBI. The interview was recorded.
111. On or about May 26, 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendant,
WALTINE NAUTA,
in a matter within the jurisdiction of the executive branch of the United States government, did knowingly and willfully make a materially false, fictitious, and fraudulent statement and representation; that is -- in a voluntary interview during a federal criminal investigation being conducted by the FBI, NAUTA was asked the following questions and gave the following false answers:
Question: Does any -are you aware of any boxes being brought to his home -his suite?
Answer: No.
Question: All right. So, so to the best of your knowledge, you're saying that those boxes that you brought onto the truck, first time you ever laid eyes on them was just the day of when [Trump Employee 2) needed you --
Answer: Correct.
Question: -to take them. Okay.
* * *
Question: In knowing that we're trying to track the life of these boxes and where they could have been kept and stored and all that kind of stuff-
Answer: Mm-hm.
Question: --do you have any information that could-that would-that could help us understand, like, where they were kept, how they were kept, were they secured, were they locked? Something that makes the intelligence community feel better about these things, you know?
Answer: I wish, I wish I could tell you. I don't know. I don't-I honestly just don't know.
* * *
Question: And what-so, so you only saw the 15 boxes, 15, 17 boxes-
Answer: Mm-hm.
Question: -the day of the move? Even-they just showed up that day?
Answer: They were in Pine Hall. [Trump Employee 2) just asked me, hey, can we move some boxes?
Question: Okay. Answer: And I was like, okay.
Question: So, you didn't know-had no idea how they got there before?
Answer: No.
112. The underscored statements and representations above were false, as NAUTA knew, because (1) NAUTA did in fact know that the boxes in Pine Hall had come from the Storage Room, as NA UTA himself, with the assistance of Trump Employee 2, had moved the boxes from the Storage Room to Pine Hall; and (2) NAUTA had observed the boxes in and moved them to various locations at The Mar-a-Lago Club.
All in violation of Title 18, United States Code, Section 1001 (a)(2).
COUNT 40
Altering, Destroying, Mutilating, or Concealing an Object
(18 U.S.C. §§ 1512(b)(2)(B), 2)
113. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
114. From on or about June 22, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP,
WALTINE NAUTA,
and CARLOS DE OLIVEIRA
did knowingly corruptly persuade and attempt to persuade another person, with intent to cause and induce any person to alter, destroy, mutilate, and conceal an object with intent to impair the object's integrity and availability for use in an official proceeding; that is -- TRUMP, NAUTA, and DE OLIVEIRA requested that Trump Employee 4 delete security camera footage at The Mara-Lago Club to prevent the footage from being provided to a federal grand jury.
All in violation of Title 18, United States Code, Sections 1512(b )(2)(8) and 2.
COUNT 41
Corruptly Altering, Destroying, Mutilating or Concealing a Document, Record, or Other Object
(18 U.S.C. §§ 1512(c)(1), 2)
115. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
116. From on or about June 22, 2022, through in or around August 2022, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendants,
DONALD J. TRUMP,
WALTINE NAUTA,
and CARLOS DE OLIVEIRA
did corruptly alter, destroy, mutilate. and conceal a record, document and other object and attempted to do so, with the intent to impair the object's integrity and availability for use in an official proceeding; that is -- TRUMP, NAUTA, and DE OLIVEIRA requested that Trump Employee 4 delete security camera footage at The Mar-a-Lago Club to prevent the footage from being provided to a federal grand jury.
All in violation of Title 18, United States Code, Sections 15 12(c)(1) and 2.
COUNT 42
False Statements and Representations
(18 U.S.C. § 1001(a)(2))
117. The General Allegations of this Superseding Indictment are re-alleged and fully incorporated here by reference.
118. On January 13, 2023, DE OLIVEIRA participated in a voluntary interview with the FBI at DE OLIVEIRA's residence. During the interview, the FBI explained to DE OLIVEIRA that the FBI was investigating how classified documents had been kept at The Mara-Lago Club, and the FBI asked DE OLIVEIRA questions about the location and movement of TRUMP's boxes and other items. DE OLIVEIRA was advised by the FBI that the interview was voluntary and that he could tell the agents to leave at any time. The FBI also advised DE OLIVEIRA that it was a criminal offense to lie to the FBI. The interview was recorded.
119. On or about January 13, 2023, in Palm Beach County, in the Southern District of Florida, and elsewhere, the defendant,
CARLOS DE OLIVEIRA,
in a matter within the jurisdiction of the executive branch of the United States government, did knowingly and willfully make a materially false, fictitious, and fraudulent statement and representation; that is -- in a voluntary interview during a federal criminal investigation being conducted by the FBI, DE OLIVEIRA was asked the following questions and gave the following false answers:
Question: When --after the end of the presidency, boxes arrived to Mar-a-Lago. Were you part of any group to help --
Answer: No.
Question: --unload them and move them?
Answer: No.
* * *
Question: Do you --were you --do you even know, like, or were you even there or aware that boxes were --
Answer: No.
Question: --like, all this stuff was being moved in?
Answer: Never saw anything.
Question: Okay.
Answer: Yeah. And then --
Question: Even his personal stuff, like, his clothes -
Answer: Never.
Question: --and furniture, nothing?
Answer: Never saw nothing.
Question: Okay. So you don't know where items would have been stored, as soon as he moved back to Mar-a-Lago?
Answer: No.
120. The underscored statements and representations above were false, as DE OLIVEIRA knew, because DE OLIVEIRA had personally observed and helped move TRUMP's boxes when they arrived at The Mar-a-Lago Club in January 2021.
All in violation of Title 18, United States Code, Section 1001(a)(2).
A TRUE BILL
[DELETE]
FOREPERSON
JACK SMITH
SPECIAL COUNSEL
UNITED STATES DEPARTMENT OF JUSTICE
***
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
PENALTY SHEET
Defendant's Name: Donald J. Trump
Case No.: 23-CR-80101-AMC(s)
Counts #:1-32
Willful Retention of National Defense Information, 18 U.S.C. § 793(e)
*Max.Term of Imprisonment: 10 years *
*Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
*Max. Fine: $250,000
Count#: 33
Conspiracy to Obstruct Justice, 18 U.S.C. § 1512(k)
*Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
*Max. Fine: $250,000
Count#: 34
Withholding a Document or Record, 18 U.S.C. §§ 1512(b)(2)(A), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 35
Corruptly Concealing a Document or Record, 18 U.S.C. §§ 1512(c)(1), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 36
Concealing a Document in a Federal Investigation, 18 U.S.C. §§ 1519, 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
*Max. Supervised Release: 3 years
* Max. Fine: $250 000
Count#: 37
Scheme to Conceal, 18 U.S.C. §§ 1001(a)(1), 2
*Max. Term of Imprisonment: 5 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 39
False Statements and Representations, 18 U.S.C. § 1001 (a)(2)
*Max. Term of Imprisonment: 5 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
*Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 40
Altering, Destroying, Mutilating, or Concealing an Object. 18 U.S.C. §§ 1512(b)(2)(B). 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 41
Corruptly Altering, Destroying. Mutilating, or Concealing a Document, Record, or Other Object. 18 U.S.C. §§ 1512(c)(1), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
*Max. Supervised Release: 3 years
*Max. Fine: $250,000
*Refers only to possible term of incarceration, supervised release and fines. It does not include restitution, special assessments, parole terms, or forfeitures that may be applicable.
***
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
PENALTY SHEET
Defendant's Name: Waltine Nauta
Case No.: 23-CR-80101-AMC(s)
Count#: 33
Conspiracy to Obstruct Justice, 18 U.S.C. § 1512(k)
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 34
Withholding a Document or Record, 18 U.S.C. §§ 1512(b)(2)(A), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 35
Corruptly Concealing a Document or Record, 18 U.S.C. §§ 1512(c)(1), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 36
Concealing a Document in a Federal Investigation, 18 U.S.C. §§ 1519, 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 37
Scheme to Conceal, 18 U.S.C. §§ 1001(a)(1), 2
* Max. Term of Imprisonment: 5 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 39
False Statements and Representations, 18 U.S.C. § 1001(a)(2)
* Max. Term of Imprisonment: 5 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 40
Altering, Destroying, Mutilating, or Concealing an Object, 18 U.S.C. §§ 1512(b)(2)(B), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 41
Corruptly Altering, Destroying, Mutilating, or Concealing a Document, Record, or Other Object, 18 U.S.C. §§ 1512(c)(1), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
*Refers only to possible term of incarceration, supervised release and fines. It does not include restitution, special assessments, parole terms, or forfeitures that may be applicable.
***
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
PENALTY SHEET
Defendant's Name: Carlos De Oliveira
Case No.: 23-CR-80101-AMC(s)
Count #: 33
Conspiracy to Obstruct Justice, 18 U.S.C. §§ 1512(k)
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 40
Altering. Destroying, Mutilating. or Concealing an Object, 18 U.S.C. §§ 1512(b)(2)(B). 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 41 Corruptly Altering, Destroying. Mutilating, or Concealing a Document, Record. or Other Object, 18 U.S.C. §§ 1512(c)(1), 2
* Max. Term of Imprisonment: 20 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
Count#: 42
False Statements and Representations, 18 U.S.C. § 1001 (a)(2)
*Max. Term of Imprisonment: 5 years
* Mandatory Min. Term of Imprisonment (if applicable): N/A
* Max. Supervised Release: 3 years
* Max. Fine: $250,000
*Refers only to possible term of incarceration, supervised release and fines. It does not include restitution, special assessments, parole terms, or forfeitures that may be applicable.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Tue Aug 01, 2023 3:33 am
Order on Motion to Quash, Preclude, and Recuse [Trump and Latham's motions to preclude any State prosecuting agency from using evidence derived from the Special Purpose Grand Jury DISMISSED for lack of standing; motions to quash (or expunge) the Final Report of the Special Purpose Grand Jury DENIED as moot; motions to disqualify the District Attorney and her office are DENIED.]
In Re 2 May 2022 Special Purpose Grand Jury
Superior Court of Fulton County, Case No. 2022-EX-000024
by Judge Robert C.I. McBurney, Superior Court of Fulton County
July 31, 2023
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
IN RE 2 MAY 2022 SPECIAL PURPOSE GRAND JURY
2022-EX-000024
ORDER ON MOTION TO QUASH, PRECLUDE, AND RECUSE
On 20 March 2023, former President Trump filed a motion to quash the Special Purpose Grand Jury's Final Report, to preclude any State prosecuting agency from using any evidence derived from the Special Purpose Grand Jury's work, and to disqualify the Fulton County District Attorney's Office from further investigation into/prosecution of alleged interference with the 2020 general election in Georgia! On 28 April 2023, Cathleen Latham, one of the "alternate" presidential electors advanced by Georgia's Republican Party in the aftermath of the 2020 general election, filed a motion joining Trump's motion. On 15 May 2023, the District Attorney responded to the two motions and certain media intervenors did the same -- although the intervenors' response was limited to opposing Trump and Latham's efforts to suppress the Final Report. Finally, on 19 May 2023, a "bipartisan" collection of former federal and state prosecutors submitted an amicus brief opposing all relief sought by Trump and Latham? At that point, the record was complete, as the Court declined Trump's request to file a reply brief, finding the 500+ pages of pleadings ample and sufficient to resolve the issues presented.
1. Precluding Further Prosecution
Having reviewed the pleadings, the Court now finds that neither Trump nor Latham enjoys standing to mount a challenge -- at this pre-indictment phase of the proceedings -- to the continued investigation into and potential prosecution of possible criminal interference in the 2020 general election in Georgia. The movants' asserted "injuries" that would open the doors of the courthouse to their claims are either insufficient or else speculative and unrealized. They are insufficient because, while being the subject (or even target) of a highly publicized criminal investigation is likely an unwelcome and unpleasant experience, no court ever has held that that status alone provides a basis for the courts to interfere with or halt the investigation.3 Trump knew this, and now Latham does too: "No doubt the threat of prosecution can weigh heavily on the mind of anyone under investigation. But without diminishing the seriousness of the burden, that ordinary experience cannot support extraordinary jurisdiction." Trump v. United States, 54 F.4th 689, 700 (11th Cir. 2022) (citations omitted); see also Ramsden v. United States, 2 F.3d 322, 326 (9th Cir. 1993) ("if the mere threat of prosecution were allowed to constitute irreparable harm, every potential defendant could point to the same harm and invoke the equitable powers of the court").4
The professed injuries are also speculative and unrealized because there is, as of yet, no indictment that creates the genuine controversy required to confer standing.5 Trump and Latham presently theorize that evidence derived from the Special Purpose Grand Jury will be used to secure whatever indictment(s) may be imminent. They further suppose that they will be named in one or more charging documents. Perhaps and perhaps. Alone, that possibility is not enough to create a controversy, cause an injury, or confer standing. So Trump and Latham necessarily further allege that the information from the Special Purpose Grand Jury is fatally tainted due to procedural missteps made by the grand jury and the supervising judge.6 Assuming without finding that there were procedural infirmities, relief continues to elude the pair at this pre-indictment juncture:
State v. Lampl, 296 Ga. 892, 89798 (2015); see also Mitchell v. State, 239 Ga. 456, 459 (1977) (evidence which the grand jury receives in finding a true bill is "not subject to inquiry").7
Finally, there are sound policy reasons, buttressed by controlling precedent, to defer resolution of these complaints until indictment.8 Prosecution is an executive branch function; the judicial branch should involve itself sparingly and delicately in the work that precedes formal charges. See State v. Wooten, 273 Ga. 529, 531 (2001) ("In the district attorney's role as an administrator of justice, she has broad discretion in making decisions prior to trial about who to prosecute [and] what charges to bring"); Evans v. State, 356 Ga. App. 438, 44o (2020) ("not even a trial court may interfere with a prosecutor's discretion to pursue criminal prosecution"). After formal charges are brought, the locus of power, authority, and jurisdiction shifts to the courts. Arguments like those being made prematurely in the pending motions can be more effectively (and reasonably) presented and ruled upon when the full picture of who is being charged with what has been painted. Guessing at what that picture might look like before the investigative dots are connected may be a popular game for the media and blogosphere, but it is not a proper role for the courts and formal legal argumentation.9
There will be a time and a forum in which Trump and Latham can raise their concerns about the constitutionality of the special purpose grand jury statutes, about the performance of this particular Special Purpose Grand Jury (and the judge supervising it), and about the propriety of allowing the Fulton County District Attorney to remain involved with whatever criminal prosecution -- if any -- results from the work of this Special Purpose Grand Jury. That time is not now and that forum is not here. Should either (or both) movant be indicted, they can raise all these issues (as they undoubtedly will) before the judge who is actually confronted with a case and controversy, whether that judge be here in the Superior Court of Fulton County or instead in the Northern District of Georgia.10
2. Quashing the Final Report
Trump and Latham both seek to have the Special Purpose Grand Jury's final report locked away from public view forever. Such permanent silencing of that investigative body is not what either statutory or case law generally allows. See O.C.G.A. § 151280 (when a grand jury recommends to the court that its presentments be published, "the judge shall order the publication") (emphasis added); In re Gwinnett Cnty. Grand Jury, 284 Ga. 510, 513 (2008) (holding that USCR 21, which restricts the courts' ability to limit access to court files, encompasses "presentments made by the grand jury in open court at the conclusion of the grand jury's investigation"). However, a more complete analysis of Trump and Latham's claimed due process rights concerning publication of the Final Report -- assuming, arguendo, that they are named in it -- is unnecessary at this time because those portions of the report that have not been released will, per this Court's earlier Order entered on 13 February 2023, remain out of the public's eye until the District Attorneys final charging decision, which she has widely advertised will occur sometime in the first two weeks of August. After that, the Court will, as promised, revisit the question of releasing the remainder of the Final Report. Until then, motions to quash or expunge are MOOT.11
3. Disqualifying the District Attorney
Finally, Trump and Latham seek to have the District Attorney and her office "disqualified from any further involvement in this matter." Trump Mot. at 1. This is a bold request; a significant showing must be made to grant such uncommon relief." There are two primary grounds for disqualification of a prosecuting attorney: (1) conflict of interest and (2) "forensic misconduct." Williams v. State, 258 Ga. 305, 314 (1988). Neither ground has been shown here. The conflicts of interest that typically suffice to support a motion to disqualify arise when the prosecutor previously represented the defendant with respect to the crimes charged, when she consulted with the defendant in a professional capacity with regard to such crimes, or when she "has acquired a personal interest or stake in the defendant's conviction." Ventura v. State, 346 Ga. App. 309, 310 11 (2018) (citation omitted). Forensic misconduct occurs when, for example, the prosecutor improperly expresses her "personal belief in the defendant's guilt." Williams, 258 Ga. at 314.
None of that has happened -- yet. There is no evidence (or even a contention) that the District Attorney (or any of her many assistants) ever represented Trump or Latham or consulted with them in a professional legal capacity. Nor is there evidence of any direct financial interest that any member of the District Attorney's Office has in the outcome of the case, unlike the sole case upon which movants rely: the fractured, inapposite, and unpersuasive opinion in Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987113 And as for "forensic misconduct" -- while both sides have done enough talking, posting, tweeting ("X'ing"?), and press conferencing to have hit (and perhaps stretched) the bounds of Georgia Rules of Professional Conduct 3.6(a) and 3.8(g) -- neither movant has pointed to any averments from the District Attorney or her team of lawyers expressing a belief that Trump or Latham is guilty or has committed this or that offense. Rather, the consistent -- and persistent -- theme has been the standard fare of "pursuing the evidence where it leads us," "holding everyone accountable," and "no one being above the law." The drumbeat from the District Attorney has been neither partisan (in the political sense) nor personal, in marked and refreshing contrast to the stream of personal invective flowing from one of the movants.
Put differently, the District Attorney's Office has been doing a fairly routine -- and legally unobjectionable -- job of public relations in a case that is anything but routine. None of what movants cite rises to the level of justifying disqualification and all of it, collectively, falls far short of what prompted the District Attorney's disqualification from the investigation into Lieutenant Governor Jones. The prosecutor is not a neutral party and does not need to pretend to be: she has a cause she has sworn to pursue, and in that pursuit of justice, she "is necessarily a partisan in the case. If [s]he were compelled to proceed with the same circumspection as the judge and jury, there would be an end to the conviction of criminals." State v. Sutherland, 190 Ga. App. 606, 607 (1989) (citation omitted). 'For these reasons, Trump and Latham's motions to disqualify the District Attorney are DENIED.14
***
Former President Trump and alternate Elector Latham's motions to preclude any State prosecuting agency from using evidence derived from the Special Purpose Grand Jury's work are DISMISSED for lack of standing. Their motions to quash (or expunge) the Final Report of the Special Purpose Grand Jury are DENIED as moot. And their motions to disqualify the District Attorney and her office are DENIED.15
SO ORDERED this 31st day of July 2023.
Judge Robert C.I. McBurney
Superior Court of Fulton County
_______________
Notes:
1 Trump also sought to have either the Chief Judge of the Atlanta Judicial Circuit or "a duly assigned Fulton County Superior Court judge" other than the undersigned consider his motion. Trump mot. at 1. Counsel for Trump -- seasoned Georgia practitioners -- are all no doubt familiar with Uniform Superior Court Rule 25, which prescribes the method for seeking the recusal of the judge assigned to a matter. That required approach was not followed here in any respect and so the motion necessarily remains with the judge originally randomly assigned to supervise the Special Purpose Grand Jury.
2 The 19 May 2023 filing was more specifically a motion to allow the amici to file a brief for the Court's consideration. That motion is hereby GRANTED; the amicus brief is part of the universe of pleadings the Court considered in reaching its conclusions in this Order.
3 And for some, being the subject of a criminal investigation can, a la Rumpelstiltskin, be turned into golden political capital, making it seem more providential than problematic. Regardless, simply being the subject (or target) of an investigation does not yield standing to bring a claim to halt that investigation in court.
4 Both Trump and Ramsden involve our federal district courts' limited equitable jurisdiction in the context of pre-indictment challenges to search warrants brought pursuant to Federal Rule of Criminal Procedure 41. It is true that federal standing requirements - which are "grounded in Article III's limitation of the federal judicial power to only certain kinds of 'cases' and 'controversies"' -- do not control standing analysis in Georgia's courts. Sons of Confederate Veterans v. Henry Cnty. Bd. of Commissioners, 315 Ga. 39, 45 (2022). Nonetheless, "from the earliest days" Georgia's courts "have understood the power of courts the judicial power to be limited to cases involving actual controversies, which requires a showing of some injury." Id. at 62. Thus, Trump and Ramsden's analysis of what constitutes actual injury, in the context of preindictment criminal investigations, is instructive -- if not memorable to Trump and his legal team.
5 The Court appreciates that "a wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man's [or woman's] escutcheon is seldom wiped out by a subsequent judgment of not guilty." United States v. Search of Law Office, Residence, & Storage Unit Alan Brown, 341 F.3d 404, 410 (5th Cir. 2003) (punctuation and citation omitted). However, in this situation, movants' rather overwrought allegations of prosecutorial overreach and judicial error do not suffice to show that there is a significant risk of a "wrongful" indictment (or even a blot on an escutcheon).
5 The pair also argue that the statutes authorizing special purposes grand juries are unconstitutionally vague. While this Court finds such an argument unpersuasive -- as a plain language reading of the statutes (and the case law interpreting them) demonstrates -- it is not reaching the merits of that position, given the ruling on standing.
7 It is further important to note, in considering injury and standing (and lack thereof), that neither Trump nor Latham appeared before the Special Purpose Grand Jury. Thus, the litany of procedural and constitutional shortcomings that they allege infected the Special Purpose Grand Jury's work are all applicable to... someone not named Trump or Latham. Moreover, several of their challenges to the constitutionality of the statutory scheme that authorizes special purpose grand juries -- to include in particular their assertion that, in Georgia, special purpose grand juries can only conduct civil investigations and thus cannot compel the attendance of out-of-state witnesses -- were repeatedly rejected by the many foreign jurisdictions that were confronted with such arguments.
8 "A robust standing doctrine is necessary to ensure that courts remain the least dangerous branch of government. When we decide only cases brought by parties seeking redress for actual harm, we limit ourselves to exercising only that power granted us by the Georgia Constitution." Parker v. Leeuwenburg, 300 Ga. 789, 793 (2017) (Peterson, J., dissenting).
9 A further bar to the form of relief being sought by Trump and Latham is O.C.G.A. § 9-5-2, which mandates that equity "will take no part in the administration of the criminal law." See also GeorgiaCarry.org v. Atlanta Botanical Garden, Inc., 299 Ga. 26, 31 (2016) (requesting injunctive relief that would enjoin the State from prosecuting the movant "squarely implicates the administration of criminal law and, thus, is improper"). Latham is more explicit in her motion, demanding "permanent injunctive relief' from (1) the use of any evidence derived from the Special Purpose Grand Jury's work and (2) the Fulton County District Attorney's Office continued participation in the "investigation or prosecution of this matter." Latham Mot. at 5-6. Trump's requests are no different, even if not so transparent in their nomenclature.
10 See 28 U.S.C. 1442.
11 There is one potential intervening event that could require reconsideration of this mootness finding: the media intervenors have appealed this Court's 13 February 2023 Order restricting publication of certain portions of the Final Report. See In re: 2 May Special Purpose Grand Jury, Case No. A23A1453, filed 4 May 2023. Should the Court of Appeals reverse this Court's ruling and direct the Court to enter a revised Order mandating the release of the remainder of the report before the District Attorney completes her charging process, the Court will revisit Trump and Latham's arguments about quashal (and expungement), as well as the media intervenor's and amici's arguments opposing such relief.
12 As both the movants and the District Attorney note, such a showing was made earlier as to a lone subject of the investigation, Lieutenant Governor Burt Jones (who, at the time, was candidate Burt Jones). In that situation -- in stark contrast to this one -- the District Attorney had lent her name and her public office to the fundraising purposes of a political opponent of Jones, creating an unavoidable and profound appearance of partiality. That decision injected direct partisanship into a criminal investigation that should remain as politically neutral as possible. For that reason, the District Attorney and her office were disqualified from pursuing charges against Jones for any possible criminal interference in the general election of 2020. See Order of 25 July 2022 in this docket. Neither movant has demonstrated anything of the sort in their cases -- indeed, it is unclear how Latham could, given that she was not a candidate for any office. Public comments about the need for and importance of the investigation fall far short of the type of bias, explicit or implicit, that must be found.
13 The speaking engagements, book deals, etc., that will inevitably flow from this investigation are equal opportunity prospects for prosecutors and defense attorneys alike -- and not linked to any particular outcome, as the O.J. Simpson case illustrated. And the claim Trump raises in his amended petition for mandamus (discussed in n. 14 below) that the District Attorney has an improper financial stake in the investigation because of unsolicited political support she is receiving is similarly a non-starter: that private citizens who take a dim view of the former President have responded to third-party urgings to support the District Attorney's re-election campaign is neither remarkable nor disqualifying. If it were, no elected prosecutor could ever take on a politically polarizing case.
14 There is an additional basis for denial, not reached here but certainly one preserved for pursuit should this Order be appealed: waiver. As the District Attorney noted in her response, a motion to disqualify the prosecutor in a criminal case "must be raised promptly after the defendant learns of a potentially disqualifying matter." Reed v. State; 314 Ga. 534, 546 (2022). Much, if not all, of what serves as the movants' grounds for disqualification is quite dated, having occurred months before their motions were filed -- and movants offer no explanation for their delay in seeking disqualification.
15 Perplexingly, prematurely, and with the standard pugnacity, Trump has filed not one but two mandamus actions against the District Attorney and this Court -- one in the Supreme Court of Georgia (case 82301134, which the Supreme Court has already dismissed) and one in the Superior Court of Fulton County (Civil Action 20230V382670). Peculiarly, neither petition requests the sole relief available under mandamus: an order "compel[ling] a public officer to perform a required duty. " Love v. Fulton Cnty. Bd. of Tax Assessors, 311 Ga. 682, 692 (2021) (citation omitted). That "required duty," though it is only obliquely referenced in the twin mandamus petitions, could only be for this Court to rule on the pending motion. Perhaps the conspicuous omission of a demand for such relief is due to petitioner's counsel's familiarity with O.C.G.A. § 15-6-21(b). Pursuant to that statute, a superior court judge in a county with more than 100,000 inhabitants (such as Fulton County) must decide all motions within 90 days after briefing is complete. Basic calendar math shows why mandamus relief is not (yet) available: the State's response was filed on 15 May 2023, per the Court's amended (and unobjected to) Scheduling Order of 1 May 2023. Ninety days from 15 May 2023 is 13 August 2023 -- which is a Sunday -- making the statutory deadline for the Court's Order 14 August 2023. Before that date, there is nothing to compel. We are several weeks from that date and here is the Order. This filing, while it will indubitably generate an appeal, should render moot Civil Action 2023CV382670 as to the supervising judge. In the future, counsel is encouraged to follow the professional standard of inquiring with Chamber's staff about timing and deadlines before burdening other courts with unnecessary and unfounded legal filings.
In Re 2 May 2022 Special Purpose Grand Jury
Superior Court of Fulton County, Case No. 2022-EX-000024
by Judge Robert C.I. McBurney, Superior Court of Fulton County
July 31, 2023
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
IN RE 2 MAY 2022 SPECIAL PURPOSE GRAND JURY
2022-EX-000024
ORDER ON MOTION TO QUASH, PRECLUDE, AND RECUSE
On 20 March 2023, former President Trump filed a motion to quash the Special Purpose Grand Jury's Final Report, to preclude any State prosecuting agency from using any evidence derived from the Special Purpose Grand Jury's work, and to disqualify the Fulton County District Attorney's Office from further investigation into/prosecution of alleged interference with the 2020 general election in Georgia! On 28 April 2023, Cathleen Latham, one of the "alternate" presidential electors advanced by Georgia's Republican Party in the aftermath of the 2020 general election, filed a motion joining Trump's motion. On 15 May 2023, the District Attorney responded to the two motions and certain media intervenors did the same -- although the intervenors' response was limited to opposing Trump and Latham's efforts to suppress the Final Report. Finally, on 19 May 2023, a "bipartisan" collection of former federal and state prosecutors submitted an amicus brief opposing all relief sought by Trump and Latham? At that point, the record was complete, as the Court declined Trump's request to file a reply brief, finding the 500+ pages of pleadings ample and sufficient to resolve the issues presented.
1. Precluding Further Prosecution
Having reviewed the pleadings, the Court now finds that neither Trump nor Latham enjoys standing to mount a challenge -- at this pre-indictment phase of the proceedings -- to the continued investigation into and potential prosecution of possible criminal interference in the 2020 general election in Georgia. The movants' asserted "injuries" that would open the doors of the courthouse to their claims are either insufficient or else speculative and unrealized. They are insufficient because, while being the subject (or even target) of a highly publicized criminal investigation is likely an unwelcome and unpleasant experience, no court ever has held that that status alone provides a basis for the courts to interfere with or halt the investigation.3 Trump knew this, and now Latham does too: "No doubt the threat of prosecution can weigh heavily on the mind of anyone under investigation. But without diminishing the seriousness of the burden, that ordinary experience cannot support extraordinary jurisdiction." Trump v. United States, 54 F.4th 689, 700 (11th Cir. 2022) (citations omitted); see also Ramsden v. United States, 2 F.3d 322, 326 (9th Cir. 1993) ("if the mere threat of prosecution were allowed to constitute irreparable harm, every potential defendant could point to the same harm and invoke the equitable powers of the court").4
The professed injuries are also speculative and unrealized because there is, as of yet, no indictment that creates the genuine controversy required to confer standing.5 Trump and Latham presently theorize that evidence derived from the Special Purpose Grand Jury will be used to secure whatever indictment(s) may be imminent. They further suppose that they will be named in one or more charging documents. Perhaps and perhaps. Alone, that possibility is not enough to create a controversy, cause an injury, or confer standing. So Trump and Latham necessarily further allege that the information from the Special Purpose Grand Jury is fatally tainted due to procedural missteps made by the grand jury and the supervising judge.6 Assuming without finding that there were procedural infirmities, relief continues to elude the pair at this pre-indictment juncture:
Even if some of the evidence presented to the regular grand jury emanated from the unlawful investigation by the special purpose grand jury, this in itself is of no moment, for grand juries, unlike petit juries, are authorized to consider evidence without regard to its eventual admissibility at trial.
State v. Lampl, 296 Ga. 892, 89798 (2015); see also Mitchell v. State, 239 Ga. 456, 459 (1977) (evidence which the grand jury receives in finding a true bill is "not subject to inquiry").7
Finally, there are sound policy reasons, buttressed by controlling precedent, to defer resolution of these complaints until indictment.8 Prosecution is an executive branch function; the judicial branch should involve itself sparingly and delicately in the work that precedes formal charges. See State v. Wooten, 273 Ga. 529, 531 (2001) ("In the district attorney's role as an administrator of justice, she has broad discretion in making decisions prior to trial about who to prosecute [and] what charges to bring"); Evans v. State, 356 Ga. App. 438, 44o (2020) ("not even a trial court may interfere with a prosecutor's discretion to pursue criminal prosecution"). After formal charges are brought, the locus of power, authority, and jurisdiction shifts to the courts. Arguments like those being made prematurely in the pending motions can be more effectively (and reasonably) presented and ruled upon when the full picture of who is being charged with what has been painted. Guessing at what that picture might look like before the investigative dots are connected may be a popular game for the media and blogosphere, but it is not a proper role for the courts and formal legal argumentation.9
There will be a time and a forum in which Trump and Latham can raise their concerns about the constitutionality of the special purpose grand jury statutes, about the performance of this particular Special Purpose Grand Jury (and the judge supervising it), and about the propriety of allowing the Fulton County District Attorney to remain involved with whatever criminal prosecution -- if any -- results from the work of this Special Purpose Grand Jury. That time is not now and that forum is not here. Should either (or both) movant be indicted, they can raise all these issues (as they undoubtedly will) before the judge who is actually confronted with a case and controversy, whether that judge be here in the Superior Court of Fulton County or instead in the Northern District of Georgia.10
2. Quashing the Final Report
Trump and Latham both seek to have the Special Purpose Grand Jury's final report locked away from public view forever. Such permanent silencing of that investigative body is not what either statutory or case law generally allows. See O.C.G.A. § 151280 (when a grand jury recommends to the court that its presentments be published, "the judge shall order the publication") (emphasis added); In re Gwinnett Cnty. Grand Jury, 284 Ga. 510, 513 (2008) (holding that USCR 21, which restricts the courts' ability to limit access to court files, encompasses "presentments made by the grand jury in open court at the conclusion of the grand jury's investigation"). However, a more complete analysis of Trump and Latham's claimed due process rights concerning publication of the Final Report -- assuming, arguendo, that they are named in it -- is unnecessary at this time because those portions of the report that have not been released will, per this Court's earlier Order entered on 13 February 2023, remain out of the public's eye until the District Attorneys final charging decision, which she has widely advertised will occur sometime in the first two weeks of August. After that, the Court will, as promised, revisit the question of releasing the remainder of the Final Report. Until then, motions to quash or expunge are MOOT.11
3. Disqualifying the District Attorney
Finally, Trump and Latham seek to have the District Attorney and her office "disqualified from any further involvement in this matter." Trump Mot. at 1. This is a bold request; a significant showing must be made to grant such uncommon relief." There are two primary grounds for disqualification of a prosecuting attorney: (1) conflict of interest and (2) "forensic misconduct." Williams v. State, 258 Ga. 305, 314 (1988). Neither ground has been shown here. The conflicts of interest that typically suffice to support a motion to disqualify arise when the prosecutor previously represented the defendant with respect to the crimes charged, when she consulted with the defendant in a professional capacity with regard to such crimes, or when she "has acquired a personal interest or stake in the defendant's conviction." Ventura v. State, 346 Ga. App. 309, 310 11 (2018) (citation omitted). Forensic misconduct occurs when, for example, the prosecutor improperly expresses her "personal belief in the defendant's guilt." Williams, 258 Ga. at 314.
None of that has happened -- yet. There is no evidence (or even a contention) that the District Attorney (or any of her many assistants) ever represented Trump or Latham or consulted with them in a professional legal capacity. Nor is there evidence of any direct financial interest that any member of the District Attorney's Office has in the outcome of the case, unlike the sole case upon which movants rely: the fractured, inapposite, and unpersuasive opinion in Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987113 And as for "forensic misconduct" -- while both sides have done enough talking, posting, tweeting ("X'ing"?), and press conferencing to have hit (and perhaps stretched) the bounds of Georgia Rules of Professional Conduct 3.6(a) and 3.8(g) -- neither movant has pointed to any averments from the District Attorney or her team of lawyers expressing a belief that Trump or Latham is guilty or has committed this or that offense. Rather, the consistent -- and persistent -- theme has been the standard fare of "pursuing the evidence where it leads us," "holding everyone accountable," and "no one being above the law." The drumbeat from the District Attorney has been neither partisan (in the political sense) nor personal, in marked and refreshing contrast to the stream of personal invective flowing from one of the movants.
Put differently, the District Attorney's Office has been doing a fairly routine -- and legally unobjectionable -- job of public relations in a case that is anything but routine. None of what movants cite rises to the level of justifying disqualification and all of it, collectively, falls far short of what prompted the District Attorney's disqualification from the investigation into Lieutenant Governor Jones. The prosecutor is not a neutral party and does not need to pretend to be: she has a cause she has sworn to pursue, and in that pursuit of justice, she "is necessarily a partisan in the case. If [s]he were compelled to proceed with the same circumspection as the judge and jury, there would be an end to the conviction of criminals." State v. Sutherland, 190 Ga. App. 606, 607 (1989) (citation omitted). 'For these reasons, Trump and Latham's motions to disqualify the District Attorney are DENIED.14
***
Former President Trump and alternate Elector Latham's motions to preclude any State prosecuting agency from using evidence derived from the Special Purpose Grand Jury's work are DISMISSED for lack of standing. Their motions to quash (or expunge) the Final Report of the Special Purpose Grand Jury are DENIED as moot. And their motions to disqualify the District Attorney and her office are DENIED.15
SO ORDERED this 31st day of July 2023.
Judge Robert C.I. McBurney
Superior Court of Fulton County
_______________
Notes:
1 Trump also sought to have either the Chief Judge of the Atlanta Judicial Circuit or "a duly assigned Fulton County Superior Court judge" other than the undersigned consider his motion. Trump mot. at 1. Counsel for Trump -- seasoned Georgia practitioners -- are all no doubt familiar with Uniform Superior Court Rule 25, which prescribes the method for seeking the recusal of the judge assigned to a matter. That required approach was not followed here in any respect and so the motion necessarily remains with the judge originally randomly assigned to supervise the Special Purpose Grand Jury.
2 The 19 May 2023 filing was more specifically a motion to allow the amici to file a brief for the Court's consideration. That motion is hereby GRANTED; the amicus brief is part of the universe of pleadings the Court considered in reaching its conclusions in this Order.
3 And for some, being the subject of a criminal investigation can, a la Rumpelstiltskin, be turned into golden political capital, making it seem more providential than problematic. Regardless, simply being the subject (or target) of an investigation does not yield standing to bring a claim to halt that investigation in court.
4 Both Trump and Ramsden involve our federal district courts' limited equitable jurisdiction in the context of pre-indictment challenges to search warrants brought pursuant to Federal Rule of Criminal Procedure 41. It is true that federal standing requirements - which are "grounded in Article III's limitation of the federal judicial power to only certain kinds of 'cases' and 'controversies"' -- do not control standing analysis in Georgia's courts. Sons of Confederate Veterans v. Henry Cnty. Bd. of Commissioners, 315 Ga. 39, 45 (2022). Nonetheless, "from the earliest days" Georgia's courts "have understood the power of courts the judicial power to be limited to cases involving actual controversies, which requires a showing of some injury." Id. at 62. Thus, Trump and Ramsden's analysis of what constitutes actual injury, in the context of preindictment criminal investigations, is instructive -- if not memorable to Trump and his legal team.
5 The Court appreciates that "a wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man's [or woman's] escutcheon is seldom wiped out by a subsequent judgment of not guilty." United States v. Search of Law Office, Residence, & Storage Unit Alan Brown, 341 F.3d 404, 410 (5th Cir. 2003) (punctuation and citation omitted). However, in this situation, movants' rather overwrought allegations of prosecutorial overreach and judicial error do not suffice to show that there is a significant risk of a "wrongful" indictment (or even a blot on an escutcheon).
5 The pair also argue that the statutes authorizing special purposes grand juries are unconstitutionally vague. While this Court finds such an argument unpersuasive -- as a plain language reading of the statutes (and the case law interpreting them) demonstrates -- it is not reaching the merits of that position, given the ruling on standing.
7 It is further important to note, in considering injury and standing (and lack thereof), that neither Trump nor Latham appeared before the Special Purpose Grand Jury. Thus, the litany of procedural and constitutional shortcomings that they allege infected the Special Purpose Grand Jury's work are all applicable to... someone not named Trump or Latham. Moreover, several of their challenges to the constitutionality of the statutory scheme that authorizes special purpose grand juries -- to include in particular their assertion that, in Georgia, special purpose grand juries can only conduct civil investigations and thus cannot compel the attendance of out-of-state witnesses -- were repeatedly rejected by the many foreign jurisdictions that were confronted with such arguments.
8 "A robust standing doctrine is necessary to ensure that courts remain the least dangerous branch of government. When we decide only cases brought by parties seeking redress for actual harm, we limit ourselves to exercising only that power granted us by the Georgia Constitution." Parker v. Leeuwenburg, 300 Ga. 789, 793 (2017) (Peterson, J., dissenting).
9 A further bar to the form of relief being sought by Trump and Latham is O.C.G.A. § 9-5-2, which mandates that equity "will take no part in the administration of the criminal law." See also GeorgiaCarry.org v. Atlanta Botanical Garden, Inc., 299 Ga. 26, 31 (2016) (requesting injunctive relief that would enjoin the State from prosecuting the movant "squarely implicates the administration of criminal law and, thus, is improper"). Latham is more explicit in her motion, demanding "permanent injunctive relief' from (1) the use of any evidence derived from the Special Purpose Grand Jury's work and (2) the Fulton County District Attorney's Office continued participation in the "investigation or prosecution of this matter." Latham Mot. at 5-6. Trump's requests are no different, even if not so transparent in their nomenclature.
10 See 28 U.S.C. 1442.
11 There is one potential intervening event that could require reconsideration of this mootness finding: the media intervenors have appealed this Court's 13 February 2023 Order restricting publication of certain portions of the Final Report. See In re: 2 May Special Purpose Grand Jury, Case No. A23A1453, filed 4 May 2023. Should the Court of Appeals reverse this Court's ruling and direct the Court to enter a revised Order mandating the release of the remainder of the report before the District Attorney completes her charging process, the Court will revisit Trump and Latham's arguments about quashal (and expungement), as well as the media intervenor's and amici's arguments opposing such relief.
12 As both the movants and the District Attorney note, such a showing was made earlier as to a lone subject of the investigation, Lieutenant Governor Burt Jones (who, at the time, was candidate Burt Jones). In that situation -- in stark contrast to this one -- the District Attorney had lent her name and her public office to the fundraising purposes of a political opponent of Jones, creating an unavoidable and profound appearance of partiality. That decision injected direct partisanship into a criminal investigation that should remain as politically neutral as possible. For that reason, the District Attorney and her office were disqualified from pursuing charges against Jones for any possible criminal interference in the general election of 2020. See Order of 25 July 2022 in this docket. Neither movant has demonstrated anything of the sort in their cases -- indeed, it is unclear how Latham could, given that she was not a candidate for any office. Public comments about the need for and importance of the investigation fall far short of the type of bias, explicit or implicit, that must be found.
13 The speaking engagements, book deals, etc., that will inevitably flow from this investigation are equal opportunity prospects for prosecutors and defense attorneys alike -- and not linked to any particular outcome, as the O.J. Simpson case illustrated. And the claim Trump raises in his amended petition for mandamus (discussed in n. 14 below) that the District Attorney has an improper financial stake in the investigation because of unsolicited political support she is receiving is similarly a non-starter: that private citizens who take a dim view of the former President have responded to third-party urgings to support the District Attorney's re-election campaign is neither remarkable nor disqualifying. If it were, no elected prosecutor could ever take on a politically polarizing case.
14 There is an additional basis for denial, not reached here but certainly one preserved for pursuit should this Order be appealed: waiver. As the District Attorney noted in her response, a motion to disqualify the prosecutor in a criminal case "must be raised promptly after the defendant learns of a potentially disqualifying matter." Reed v. State; 314 Ga. 534, 546 (2022). Much, if not all, of what serves as the movants' grounds for disqualification is quite dated, having occurred months before their motions were filed -- and movants offer no explanation for their delay in seeking disqualification.
15 Perplexingly, prematurely, and with the standard pugnacity, Trump has filed not one but two mandamus actions against the District Attorney and this Court -- one in the Supreme Court of Georgia (case 82301134, which the Supreme Court has already dismissed) and one in the Superior Court of Fulton County (Civil Action 20230V382670). Peculiarly, neither petition requests the sole relief available under mandamus: an order "compel[ling] a public officer to perform a required duty. " Love v. Fulton Cnty. Bd. of Tax Assessors, 311 Ga. 682, 692 (2021) (citation omitted). That "required duty," though it is only obliquely referenced in the twin mandamus petitions, could only be for this Court to rule on the pending motion. Perhaps the conspicuous omission of a demand for such relief is due to petitioner's counsel's familiarity with O.C.G.A. § 15-6-21(b). Pursuant to that statute, a superior court judge in a county with more than 100,000 inhabitants (such as Fulton County) must decide all motions within 90 days after briefing is complete. Basic calendar math shows why mandamus relief is not (yet) available: the State's response was filed on 15 May 2023, per the Court's amended (and unobjected to) Scheduling Order of 1 May 2023. Ninety days from 15 May 2023 is 13 August 2023 -- which is a Sunday -- making the statutory deadline for the Court's Order 14 August 2023. Before that date, there is nothing to compel. We are several weeks from that date and here is the Order. This filing, while it will indubitably generate an appeal, should render moot Civil Action 2023CV382670 as to the supervising judge. In the future, counsel is encouraged to follow the professional standard of inquiring with Chamber's staff about timing and deadlines before burdening other courts with unnecessary and unfounded legal filings.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Wed Aug 02, 2023 1:57 am
Part 1 of 2
Indictment
USDC, District of Columbia
USA v. Donald Trump
Case 1:23-cr-00257-TSC
by Jack Smith, Special Counsel
8/1/23
Case 1:23-cr-00257-TSC Document 1
Filed 08/01/23
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
DONALD J. TRUMP,
Defendant.
CRIMINAL NO.
GRAND JURY ORIGINAL
VIOLATIONS:
Count 1: 18 U.S.C. § 371
(Conspiracy to Defraud the United States)
Count 2: 18 U.S.C. § 1512(k)
(Conspiracy to Obstruct an Official Proceeding)
Count 3: 18 U.S.C. §§ 1512(c)(2), 2
(Obstruction of and Attempt to Obstruct an Official Proceeding)
Count 4: 18 U.S.C. § 241
(Conspiracy Against Rights)
INDICTMENT
The Grand Jury charges that, at all times material to this Indictment, on or about the dates and at the approximate times stated below:
INTRODUCTION
1. The Defendant, DONALD J. TRUMP, was the forty-fifth President of the United States and a candidate for re-election in 2020. The Defendant lost the 2020 presidential election.
2. Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But the Defendant repeated and widely disseminated them anyway -- to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.
3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.
4. Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies:
a. A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government, in violation of 18 U.S.C. § 371;
b. A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified ("the certification proceeding"), in violation of 18 U.S.C. § 1512(k); and
c. A conspiracy against the right to vote and to have one's vote counted, in violation of 18 U.S.C. § 241.
Each of these conspiracies -- which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud-targeted a bedrock function of the United States federal government: the nation's process of collecting, counting, and certifying the results of the presidential election ("the federal government function").
COUNT ONE
(Conspiracy to Defraud the United States -- 18 U.S.C. § 371)
5. The allegations contained in paragraphs 1 through 4 of this Indictment are realleged and fully incorporated here by reference.
The Conspiracy
6. From on or about November 14, 2020, through on or about January 20, 2021, in the District of Columbia and elsewhere, the Defendant,
DONALD J. TRUMP,
did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government.
Purpose of the Conspiracy
7. The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.
The Defendant's Co-Conspirators
8. The Defendant enlisted co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power. Among these were:
a. Co-Conspirator 1 [Rudy Giuliani], an attorney who was willing to spread knowingly false claims and pursue strategies that the Defendant's 2020 re-election campaign attorneys would not.
b. Co-Conspirator 2 [John Eastman]], an attorney who devised and attempted to implement a strategy to leverage the Vice President's ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election.
c. Co-Conspirator 3 [Sidney Powell], an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded "crazy." Nonetheless, the Defendant embraced and publicly amplified Co-Conspirator 3 [Sidney Powell]'s disinformation.
d. Co-Conspirator 4 [Jeffrey Clark], a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.
e. Co-Conspirator 5 [Kenneth Chesebro], an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.
f. Co-Conspirator 6 [Boris Epshteyn], a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.
The Federal Government Function
9. The federal government function by which the results of the election for President of the United States are collected, counted, and certified was established through the Constitution and the Electoral Count Act CECA), a federal law enacted in 1887. The Constitution provided that individuals called electors select the president, and that each state determine for itself how to appoint the electors apportioned to it. Through state laws, each of the fifty states and the District of Columbia chose to select their electors based on the popular vote in the state. After election day, the ECA required each state to formally determine -- or "ascertain" -- the electors who would represent the state's voters by casting electoral votes on behalf of the candidate who had won the popular vote, and required the executive of each state to certify to the federal government the identities of those electors. Then, on a date set by the ECA, each state's ascertained electors were required to meet and collect the results of the presidential election -- that is, to cast electoral votes based on their state's popular vote, and to send their electoral votes, along with the state executive's certification that they were the state's legitimate electors, to the United States Congress to be counted and certified in an official proceeding. Finally, the Constitution and ECA required that on the sixth of January following election day, the Congress meet in a Joint Session for a certification proceeding, presided over by the Vice President as President of the Senate, to count the electoral votes, resolve any objections, and announce the result -- thus certifying the winner of the presidential election as president-elect. This federal government function -- from the point of ascertainment to the certification -- is foundational to the United States' democratic process, and until 2021, had operated in a peaceful and orderly manner for more than 130 years.
Manner and Means
10. The Defendant's conspiracy to impair, obstruct, and defeat the federal government function through dishonesty, fraud, and deceit included the following manner and means:
a. The Defendant and co-conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant's opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant. That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant.
b. The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws. This included causing the fraudulent electors to meet on the day appointed by federal law on which legitimate electors were to gather and cast their votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they were legitimate electors. Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the Defendant succeeded in outcome-determinative lawsuits within their state, which the Defendant never did. The Defendant and co-conspirators then caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.
c. The Defendant and co-conspirators attempted to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome; that sought to advance the Defendant's fraudulent elector plan by using the Justice Department's authority to falsely present the fraudulent electors as a valid alternative to the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states' legislatures to convene to create the opportunity to choose the fraudulent electors over the legitimate electors.
d. The Defendant and co-conspirators attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results. First, using knowingly false claims of election fraud, the Defendant and co-conspirators attempted to convince the Vice President to use the Defendant's fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them. When that failed, on the morning of January 6, the Defendant and co-conspirators repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.
e. After it became public on the afternoon of January 6 that the Vice President would not fraudulently alter the election results, a large and angry crowd -- including many individuals whom the Defendant had deceived into believing the Vice President could and might change the election results -- violently attacked the Capitol and halted the proceeding. As violence ensued, the Defendant and co-conspirators exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims.
The Defendant's Knowledge of the Falsity of His Election Fraud Claims
11. The Defendant, his co-conspirators, and their agents made knowingly false claims that there had been outcome-determinative fraud in the 2020 presidential election. These prolific lies about election fraud 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. These claims were false, and the Defendant knew that they were false. In fact, the Defendant was notified repeatedly that his claims were untrue -- often by the people on whom he relied for candid advice on important matters, and who were best positioned to know the facts -- and he deliberately disregarded the truth. For instance:
a. The Defendant's Vice President -- who personally stood to gain by remaining in office as part of the Defendant's ticket and whom the Defendant asked to study fraud allegations -- told the Defendant that he had seen no evidence of outcome-determinative fraud.
b. The senior leaders of the Justice Department -- appointed by the Defendant and responsible for investigating credible allegations of election crimes -- told the Defendant on multiple occasions that various allegations of fraud were unsupported.
c. The Director of National Intelligence -- the Defendant's principal advisor on intelligence matters related to national security -- disabused the Defendant of the notion that the Intelligence Community's findings regarding foreign interference would change the outcome of the election.
d. The Department of Homeland Security's Cybersecurity and Infrastructure Security Agency ("CISA") -- whose existence the Defendant signed into law to protect the nation's cybersecurity infrastructure from attack -- joined an official multi-agency statement that there was no evidence any voting system had been compromised and that declared the 2020 election "the most secure in American history." Days later, after the CISA Director -- whom the Defendant had appointed -- announced publicly that election security experts were in agreement that claims of computer-based election fraud were unsubstantiated, the Defendant fired him.
e. Senior White House attorneys -- selected by the Defendant to provide him candid advice -- informed the Defendant that there was no evidence of outcome-determinative election fraud, and told him that his presidency would end on Inauguration Day in 2021.
f. Senior staffers on the Defendant's 2020 re-election campaign ("Defendant's Campaign" or "Campaign") -- whose sole mission was the Defendant's reelection -- told the Defendant on November 7, 2020, that he had only a five to ten percent chance of prevailing in the election, and that success was contingent on the Defendant winning ongoing vote counts or litigation in Arizona, Georgia, and Wisconsin. Within a week of that assessment, the Defendant lost in Arizona -- meaning he had lost the election.
g. State legislators and officials -- many of whom were the Defendant's political allies, had voted for him, and wanted him to be re-elected -- repeatedly informed the Defendant that his claims of fraud in their states were unsubstantiated or false and resisted his pressure to act based upon them.
h. State and federal courts -- the neutral arbiters responsible for ensuring the fair and even-handed administration of election laws -- rejected every outcome-determinative post-election lawsuit filed by the Defendant, his coconspirators, and allies, providing the Defendant real-time notice that his allegations were meritless.
12. The Defendant widely disseminated his false claims of election fraud for months, despite the fact that he knew, and in many cases had been informed directly, that they were not true. The Defendant's knowingly false statements were integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others' right to vote and have their votes counted. He made these knowingly false claims throughout the post-election time period, including those below that he made immediately before the attack on the Capitol on January 6:
a. The Defendant insinuated that more than ten thousand dead voters had voted in Georgia. Just four days earlier, Georgia's Secretary of State had explained to the Defendant that this was false.
b. The Defendant asserted that there had been 205, 000 more votes than voters in Pennsylvania. The Defendant's Acting Attorney General and Acting Deputy Attorney General had explained to him that this was false.
c. The Defendant said that there had been a suspicious vote dump in Detroit, Michigan. The Defendant's Attorney General had explained to the Defendant that this was false, and the Defendant's allies in the Michigan state legislature -- the Speaker of the House of Representatives and Majority Leader of the Senate -- had publicly announced that there was no evidence of substantial fraud in the state.
d. The Defendant claimed that there had been tens of thousands of double votes and other fraud in Nevada. The Nevada Secretary of State had previously rebutted the Defendant's fraud claims by publicly posting a "Facts vs. Myths" document explaining that Nevada judges had reviewed and rejected them, and the Nevada Supreme Court had rendered a decision denying such claims.
e. The Defendant said that more than 30,000 non-citizens had voted in Arizona. The Defendant's own Campaign Manager had explained to him that such claims were false, and the Speaker of the Arizona House of Representatives, who had supported the Defendant in the election, had issued a public statement that there was no evidence of substantial fraud in Arizona.
f. The Defendant asserted that voting machines in various contested states had switched votes from the Defendant to Biden. The Defendant's Attorney General, Acting Attorney General, and Acting Deputy Attorney General all had explained to him that this was false, and numerous recounts and audits had confirmed the accuracy of voting machines.
The Criminal Agreement and Acts to Effect the Object of the Conspiracy
The Defendant's Use of Deceit to Get State Officials to Subvert the Legitimate Election Results and Change Electoral Votes
13. Shortly after election day -- which fell on November 3, 2020 -- the Defendant launched his criminal scheme. On November 13, the Defendant's Campaign attorneys conceded in court that he had lost the vote count in the state of Arizona -- meaning, based on the assessment the Defendant's Campaign advisors had given him just a week earlier, the Defendant had lost the election. So the next day, the Defendant turned to Co-Conspirator 1 [Rudy Giuliani], whom he announced would spearhead his efforts going forward to challenge the election results. From that point on, the Defendant and his co-conspirators executed a strategy to use knowing deceit in the targeted states to impair, obstruct, and defeat the federal government function, including as described below.
Arizona
14. On November 13, 2020, the Defendant had a conversation with his Campaign Manager, who informed him that a claim that had been circulating, that a substantial number of non-citizens had voted in Arizona, was false.
15. On November 22, eight days before Arizona's Governor certified the ascertainment of the state's legitimate electors based on the popular vote, the Defendant and Co-Conspirator 1 [Rudy Giuliani] called the Speaker of the Arizona House of Representatives and made knowingly false claims of election fraud aimed at interfering with the ascertainment of and voting by Arizona's electors, as follows:
a. The Defendant and Co-Conspirator 1 [Rudy Giuliani] falsely asserted, among other things, that a substantial number of non-citizens, non-residents, and dead people had voted fraudulently in Arizona. The Arizona House Speaker asked Co-Conspirator 1 [Rudy Giuliani] for evidence of the claims, which Co-Conspirator 1 [Rudy Giuliani] did not have, but claimed he would provide. Co-Conspirator 1 [Rudy Giuliani] never did so.
b. The Defendant and Co-Conspirator 1 [Rudy Giuliani] asked the Arizona House Speaker to call the legislature into session to hold a hearing based on their claims of election fraud. The Arizona House Speaker refused, stating that doing so would require a two-thirds vote of its members, and he would not allow it without actual evidence of fraud.
c. The Defendant and Co-Conspirator 1 [Rudy Giuliani] asked the Arizona House Speaker to use the legislature to circumvent the process by which legitimate electors would be ascertained for Biden based on the popular vote, and replace those electors with a new slate for the Defendant. The Arizona House Speaker refused, responding that the suggestion was beyond anything he had ever heard or thought of as something within his authority.
16. On December 1, Co-Conspirator 1 [Rudy Giuliani] met with the Arizona House Speaker. When the Arizona House Speaker again asked Co-Conspirator 1 [Rudy Giuliani] for evidence of the outcome-determinative election fraud he and the Defendant had been claiming, Co-Conspirator 1 [Rudy Giuliani] responded with words to the effect of, "We don't have the evidence, but we have lots of theories."
17. On December 4, the Arizona House Speaker issued a public statement that said, in part:
18. On the morning of January 4, 2021, Co-Conspirator 2 [John Eastman]] called the Arizona House Speaker to urge him to use a majority of the legislature to decertify the state's legitimate electors. Arizona's validly ascertained electors had voted three weeks earlier and sent their votes to Congress, which was scheduled to count those votes in Biden's favor in just two days' time at the January 6 certification proceeding. When the Arizona House Speaker explained that state investigations had uncovered no evidence of substantial fraud in the state, Co-Conspirator 2 [John Eastman]] conceded that he "[didn't] know enough about facts on the ground" in Arizona, but nonetheless told the Arizona House Speaker to decertify and "let the courts sort it out." The Arizona House Speaker refused, stating that he would not "play with the oath" he had taken to uphold the United States Constitution and Arizona law.
19. On January 6, the Defendant publicly repeated the knowingly false claim that 36, 000 non-citizens had voted in Arizona.
Georgia
20. On November 16, 2020, on the Defendant's behalf, his executive assistant sent Co-Conspirator 3 [Sidney Powell] and others a document containing bullet points critical of a certain voting machine company, writing, "See attached -- Please include as is, or almost as is, in lawsuit." Co-Conspirator 3 [Sidney Powell] 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." On November 25, Co-Conspirator 3 [Sidney Powell] filed a lawsuit against the Governor of Georgia falsely alleging "massive election fraud" accomplished through the voting machine company's election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed Co-Conspirator 3 [Sidney Powell]'s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 [Sidney Powell] sounded "crazy." Co-Conspirator 3 [Sidney Powell]'s Georgia lawsuit was dismissed on December 7.
21. On December 3, Co-Conspirator 1 [Rudy Giuliani] orchestrated a presentation to a Judiciary Subcommittee of the Georgia State Senate, with the intention of misleading state senators into blocking the ascertainment of legitimate electors. During the presentation:
a. An agent of the Defendant and Co-Conspirator 1 [Rudy Giuliani] falsely claimed that more than 10, 000 dead people voted in Georgia. That afternoon, a Senior Advisor to the Defendant told the Defendant's Chief of Staff through text messages, "Just an FYI. [A Campaign lawyer] and his team verified that the 10k+ supposed dead people voting in GA is not accurate .... It was alleged in [Co-Conspirator 1 [Rudy Giuliani] 's] hearing today." The Senior Advisor clarified that he believed that the actual number was 12.
b. Another agent of the Defendant and Co-Conspirator 1 [Rudy Giuliani] played a misleading excerpt of a video recording of ballot-counting at State Farm Arena in Atlanta and insinuated that it showed election workers counting "suitcases" of illegal ballots.
c. Co-Conspirator 2 [John Eastman]] encouraged the legislators to decertify the state's legitimate electors based on false allegations of election fraud.
22. Also on December 3, the Defendant issued a Tweet amplifying the knowingly false claims made in Co-Conspirator 1 [Rudy Giuliani]'s presentation in Georgia: "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 leads to an easy win of the State!"
23. On December 4, the Georgia Secretary of State's Chief Operating Officer debunked the claims made at Co-Conspirator 1 [Rudy Giuliani]'s presentation the previous day, issuing a Tweet stating, "The 90 second video of election workers at State Farm arena, purporting to show fraud was watched in its entirety (hours) by @GaSecofState investigators. Shows normal ballot processing. Here is the fact check on it." On December 7, he reiterated during a press conference that the claim that there had been misconduct at State Farm Arena was false.
24. On December 8, the Defendant called the Georgia Attorney General to pressure him to support an election lawsuit filed in the Supreme Court by another state's attorney general. The Georgia Attorney General told the Defendant that officials had investigated various claims of election fraud in the state and were not seeing evidence to support them.
25. Also on December 8, a Senior Campaign Advisor -- who spoke with the Defendant on a daily basis and had informed him on multiple occasions that various fraud claims were untrue -- expressed frustration that many of Co-Conspirator 1 [Rudy Giuliani] and his legal team's claims could not be substantiated. As early as mid-November, for instance, the Senior Campaign Advisor had informed the Defendant that his claims of a large number of dead voters in Georgia were untrue. With respect to the persistent false claim regarding State Farm Arena, on December 8, the Senior Campaign Advisor wrote in an email, "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."
26. On December 10, four days before Biden's validly ascertained electors were scheduled to cast votes and send them to Congress, Co-Conspirator 1 [Rudy Giuliani] appeared at a hearing before the Georgia House of Representatives' Government Affairs Committee. Co-Conspirator 1 [Rudy Giuliani] played the State Farm Arena video again, and falsely claimed that it showed "voter fraud right in front of people's eyes" and was "the tip of the iceberg." Then, he cited two election workers by name, 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." Thereafter, the two election workers received numerous death threats.
27. On December 15, the Defendant summoned the incoming Acting Attorney General, the incoming Acting Deputy Attorney General, and others to the Oval Office to discuss allegations of election fraud. During the meeting, the Justice Department officials specifically refuted the Defendant's claims about State Farm Arena, explaining to him that the activity shown on the tape Co-Conspirator 1 [Rudy Giuliani] had used was "benign."
28. On December 23, a day after the Defendant's Chief of Staff personally observed the signature verification process at the Cobb County Civic Center and notified the Defendant that state election officials were "conducting themselves in an exemplary fashion" and would find fraud if it existed, the Defendant tweeted that the Georgia officials administering the signature verification process were trying to hide evidence of election fraud and were "[t]errible people!"
29. In a phone call on December 27, the Defendant spoke with the Acting Attorney General and Acting Deputy Attorney General. During the call, the Defendant again pressed the unfounded claims regarding State Farm Arena, and the two top Justice Department officials again rebutted the allegations, telling him that the Justice Department had reviewed videotape and interviewed witnesses, and had not identified any suspicious conduct.
30. On December 31, the Defendant signed a verification affirming false election fraud allegations made on his behalf in a lawsuit filed in his name against the Georgia Governor. In advance of the filing, Co-Conspirator 2 [John Eastman]] -- who was advising the Defendant on the lawsuit -- acknowledged in an email that he and the Defendant had, since signing a previous verification, "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." The Defendant and Co-Conspirator 2 [John Eastman]] caused the Defendant's signed verification to be filed nonetheless.
31. On January 2, four days before Congress's certification proceeding, the Defendant and others called Georgia's Secretary of State. During the call, the Defendant lied to the Georgia Secretary of State to induce him to alter Georgia's popular vote count and call into question the validity of the Biden electors' votes, which had been transmitted to Congress weeks before, including as follows:
a. The Defendant raised allegations regarding the State Farm Arena video and repeatedly disparaged one of the same election workers that Co-Conspirator 1 [Rudy Giuliani] had maligned on December 10, using her name almost twenty times and falsely referring to her as "a professional vote scammer and hustler." In response, the Georgia Secretary of State refuted this: "You're talking about the State Farm video. And I think it's extremely unfortunate that [Co-Conspirator 1 [Rudy Giuliani]] or his people, they sliced and diced that video and took it out of context." When the Georgia Secretary of State then offered a link to a video that would disprove Co-Conspirator 1 [Rudy Giuliani]'s claims, the Defendant responded, "I don't care about a link, I don't need it. I have a much, [Georgia Secretary of State], I have a much better link."
b. The Defendant asked about rumors that paper ballots cast in the election were being destroyed, and the Georgia Secretary of State's Counsel explained to him that the claim had been investigated and was not true.
c. The Defendant claimed that 5, 000 dead people voted in Georgia, causing the Georgia Secretary of State to respond, "Well, Mr. President, the challenge that you have is the data you have is wrong .... The actual number were two. Two. Two people that were dead that voted. And so [your information]'s wrong, that was two."
d. The Defendant claimed that thousands of out-of-state voters had cast ballots in Georgia's election, which the Georgia Secretary of State's Counsel refuted, explaining, "We've been going through each of those as well, and those numbers that we got, that [Defendant's counsel] was just saying, they're not accurate. Every one we've been through are people that lived in Georgia, moved to a different state, but then moved back to Georgia legitimately ... they moved back in years ago. This was not like something just before the election."
e. In response to multiple other of the Defendant's allegations, the Georgia Secretary of State's Counsel told the Defendant that the Georgia Bureau of Investigation was examining all such claims and finding no merit to them.
f. The Defendant said that he needed to "find" 11,780 votes, and insinuated that the Georgia Secretary of State and his Counsel could be subject to criminal prosecution if they failed to find election fraud as he demanded, stating, "And you are going 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 [the Georgia Secretary of State's Counsel], your lawyer."
32. The next day, on January 3, the Defendant falsely claimed that the Georgia Secretary of State had not addressed the Defendant's allegations, publicly stating that the Georgia Secretary of State "was unwilling, or unable, to answer questions such as the 'ballots under table' scam, ballot destruction, out of state 'voters', dead voters, and more. He has no clue!"
33. On January 6, the Defendant publicly repeated the knowingly false insinuation that more than 10, 300 dead people had voted in Georgia.
Michigan
34. On November 5, 2020, the Defendant claimed that there had been a suspicious dump of votes -- purportedly illegitimate ballots -- stating, "In Detroit, there were hours of unexplained delay in delivering many of the votes for counting. The final batch did not arrive until four in the morning and -- even though the polls closed at eight o'clock. So they brought it in, and the batches came in, and nobody knew where they came from."
35. On November 20, three days before Michigan's Governor signed a certificate of ascertainment notifying the federal government that, based on the popular vote, Biden's electors were to represent Michigan's voters, the Defendant held a meeting in the Oval Office with the Speaker of the Michigan House of Representatives and the Majority Leader of the Michigan Senate. In the meeting, the Defendant raised his false claim, among others, of an illegitimate vote dump in Detroit. In response, the Michigan Senate Majority Leader told the Defendant that he had lost Michigan not because of fraud, but because the Defendant had underperformed with certain voter populations in the state. Upon leaving their meeting, the Michigan House Speaker and Michigan Senate Majority Leader issued a statement reiterating this:
36. On December 1, the Defendant raised his Michigan vote dump claim with the Attorney General, who responded that what had occurred in Michigan had been the normal vote-counting process and that there was no indication of fraud in Detroit.
37. Despite this, the next day, the Defendant made a knowingly false statement that in Michigan, "[a]t 6:31 in the morning, a vote dump of 149, 772 votes came in unexpectedly. We were winning by a lot. That batch was received in horror. Nobody knows anything about it. ... It's corrupt. Detroit is corrupt. I have a lot of friends in Detroit. They know it. But Detroit is totally corrupt."
38. On December 4, Co-Conspirator 1 [Rudy Giuliani] sent a text message to the Michigan House Speaker reiterating his unsupported claim of election fraud and attempting to get the Michigan House Speaker to assist in reversing the ascertainment of the legitimate Biden electors, stating, "Looks like Georgia may well hold some factual hearings and change the certification under ArtII sec 1 cl 2 of the Constitution. As [Co-Conspirator 2 [John Eastman]]] explained they don't just have the right to do it but the obligation .... Help me get this done in Michigan."
39. Similarly, on December 7, despite still having established no fraud in Michigan, Co-Conspirator 1 [Rudy Giuliani] sent a text intended for the Michigan Senate Majority Leader: "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."
40. On December 14 -- the day that electors in states across the country were required to vote and submit their votes to Congress -- the Michigan House Speaker and Michigan Senate Majority Leader announced that, contrary to the Defendant's requests, they would not decertify the legitimate election results or electors in Michigan. The Michigan Senate Majority Leader's public statement included, "[W]e have not received evidence of fraud on a scale that would change the outcome of the election in Michigan." The Michigan House Speaker's public statement read, in part:
41. On January 6, 2021, the Defendant publicly repeated his knowingly false claim regarding an illicit dump of more than a hundred thousand ballots in Detroit.
Pennsylvania
42. On November 11, 2020, the Defendant publicly maligned a Philadelphia City Commissioner for stating on the news that there was no evidence of widespread fraud in Philadelphia. As a result, the Philadelphia City Commissioner and his family received death threats.
43. On November 25, the day after Pennsylvania's Governor signed a certificate of ascertainment and thus certified to the federal government that Biden's electors were the legitimate electors for the state, Co-Conspirator 1 [Rudy Giuliani] orchestrated an event at a hotel in Gettysburg attended by state legislators. Co-Conspirator 1 [Rudy Giuliani] falsely claimed that Pennsylvania had issued 1.8 million absentee ballots and received 2.5 million in return. In the days thereafter, a Campaign staffer wrote internally that Co-Conspirator 1 [Rudy Giuliani]'s allegation was "just wrong" and "[t]here's no way to defend it." The Deputy Campaign Manager responded, "We have been saying this for a while. It's very frustrating. "
44. On December 4, after four Republican leaders of the Pennsylvania legislature issued a public statement 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, the Defendant re-tweeted a post labeling the legislators cowards.
45. On December 31 and January 3, the Defendant repeatedly raised with the Acting Attorney General and Acting Deputy Attorney General the allegation that in Pennsylvania, there had been 205, 000 more votes than voters. Each time, the Justice Department officials informed the Defendant that his claim was false.
46. On January 6, 2021, the Defendant publicly repeated his knowingly false claim that there had been 205, 000 more votes than voters in Pennsylvania.
Wisconsin
47. On November 29, 2020, a recount in Wisconsin that the Defendant's Campaign had petitioned and paid for did not change the election result, and in fact increased the Defendant's margin of defeat.
48. On December 14, the Wisconsin Supreme Court rejected an election challenge by the Campaign. One Justice wrote, "[N]othing in this case casts any legitimate doubt that the people of Wisconsin lawfully chose Vice President Biden and Senator Harris to be the next leaders of our great country."
49. On December 21, as a result of the state Supreme Court's decision, the Wisconsin Governor -- who had signed a certificate of ascertainment on November 30 identifying Biden's electors as the state's legitimate electors -- signed a certificate of final determination in which he recognized that the state Supreme Court had resolved a controversy regarding the appointment of Biden's electors, and confirmed that Biden had received the highest number of votes in the state and that his electors were the state's legitimate electors.
50. That same day, in response to the court decision that had prompted the Wisconsin Governor to sign a certificate of final determination, the Defendant issued a Tweet repeating his knowingly false claim of election fraud and demanding that the Wisconsin legislature overturn the election results that had led to the ascertainment of Biden's electors as the legitimate electors.
51. On December 27, the Defendant raised with the Acting Attorney General and Acting Deputy Attorney General a specific fraud claim -- that there had been more votes than voters in Wisconsin. The Acting Deputy Attorney General informed the Defendant that the claim was false.
52. On January 6, 2021, the Defendant publicly repeated knowingly false claims that there had been tens of thousands of unlawful votes in Wisconsin.
Indictment
USDC, District of Columbia
USA v. Donald Trump
Case 1:23-cr-00257-TSC
by Jack Smith, Special Counsel
8/1/23
Case 1:23-cr-00257-TSC Document 1
Filed 08/01/23
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
DONALD J. TRUMP,
Defendant.
CRIMINAL NO.
GRAND JURY ORIGINAL
VIOLATIONS:
Count 1: 18 U.S.C. § 371
(Conspiracy to Defraud the United States)
Count 2: 18 U.S.C. § 1512(k)
(Conspiracy to Obstruct an Official Proceeding)
Count 3: 18 U.S.C. §§ 1512(c)(2), 2
(Obstruction of and Attempt to Obstruct an Official Proceeding)
Count 4: 18 U.S.C. § 241
(Conspiracy Against Rights)
INDICTMENT
The Grand Jury charges that, at all times material to this Indictment, on or about the dates and at the approximate times stated below:
INTRODUCTION
1. The Defendant, DONALD J. TRUMP, was the forty-fifth President of the United States and a candidate for re-election in 2020. The Defendant lost the 2020 presidential election.
2. Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But the Defendant repeated and widely disseminated them anyway -- to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.
3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.
4. Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies:
a. A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government, in violation of 18 U.S.C. § 371;
b. A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified ("the certification proceeding"), in violation of 18 U.S.C. § 1512(k); and
c. A conspiracy against the right to vote and to have one's vote counted, in violation of 18 U.S.C. § 241.
Each of these conspiracies -- which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud-targeted a bedrock function of the United States federal government: the nation's process of collecting, counting, and certifying the results of the presidential election ("the federal government function").
COUNT ONE
(Conspiracy to Defraud the United States -- 18 U.S.C. § 371)
5. The allegations contained in paragraphs 1 through 4 of this Indictment are realleged and fully incorporated here by reference.
The Conspiracy
6. From on or about November 14, 2020, through on or about January 20, 2021, in the District of Columbia and elsewhere, the Defendant,
DONALD J. TRUMP,
did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government.
Purpose of the Conspiracy
7. The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.
The Defendant's Co-Conspirators
8. The Defendant enlisted co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power. Among these were:
a. Co-Conspirator 1 [Rudy Giuliani], an attorney who was willing to spread knowingly false claims and pursue strategies that the Defendant's 2020 re-election campaign attorneys would not.
b. Co-Conspirator 2 [John Eastman]], an attorney who devised and attempted to implement a strategy to leverage the Vice President's ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election.
c. Co-Conspirator 3 [Sidney Powell], an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded "crazy." Nonetheless, the Defendant embraced and publicly amplified Co-Conspirator 3 [Sidney Powell]'s disinformation.
d. Co-Conspirator 4 [Jeffrey Clark], a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.
e. Co-Conspirator 5 [Kenneth Chesebro], an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.
f. Co-Conspirator 6 [Boris Epshteyn], a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.
The Federal Government Function
9. The federal government function by which the results of the election for President of the United States are collected, counted, and certified was established through the Constitution and the Electoral Count Act CECA), a federal law enacted in 1887. The Constitution provided that individuals called electors select the president, and that each state determine for itself how to appoint the electors apportioned to it. Through state laws, each of the fifty states and the District of Columbia chose to select their electors based on the popular vote in the state. After election day, the ECA required each state to formally determine -- or "ascertain" -- the electors who would represent the state's voters by casting electoral votes on behalf of the candidate who had won the popular vote, and required the executive of each state to certify to the federal government the identities of those electors. Then, on a date set by the ECA, each state's ascertained electors were required to meet and collect the results of the presidential election -- that is, to cast electoral votes based on their state's popular vote, and to send their electoral votes, along with the state executive's certification that they were the state's legitimate electors, to the United States Congress to be counted and certified in an official proceeding. Finally, the Constitution and ECA required that on the sixth of January following election day, the Congress meet in a Joint Session for a certification proceeding, presided over by the Vice President as President of the Senate, to count the electoral votes, resolve any objections, and announce the result -- thus certifying the winner of the presidential election as president-elect. This federal government function -- from the point of ascertainment to the certification -- is foundational to the United States' democratic process, and until 2021, had operated in a peaceful and orderly manner for more than 130 years.
Manner and Means
10. The Defendant's conspiracy to impair, obstruct, and defeat the federal government function through dishonesty, fraud, and deceit included the following manner and means:
a. The Defendant and co-conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant's opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant. That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant.
b. The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws. This included causing the fraudulent electors to meet on the day appointed by federal law on which legitimate electors were to gather and cast their votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they were legitimate electors. Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the Defendant succeeded in outcome-determinative lawsuits within their state, which the Defendant never did. The Defendant and co-conspirators then caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.
c. The Defendant and co-conspirators attempted to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome; that sought to advance the Defendant's fraudulent elector plan by using the Justice Department's authority to falsely present the fraudulent electors as a valid alternative to the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states' legislatures to convene to create the opportunity to choose the fraudulent electors over the legitimate electors.
d. The Defendant and co-conspirators attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results. First, using knowingly false claims of election fraud, the Defendant and co-conspirators attempted to convince the Vice President to use the Defendant's fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them. When that failed, on the morning of January 6, the Defendant and co-conspirators repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.
e. After it became public on the afternoon of January 6 that the Vice President would not fraudulently alter the election results, a large and angry crowd -- including many individuals whom the Defendant had deceived into believing the Vice President could and might change the election results -- violently attacked the Capitol and halted the proceeding. As violence ensued, the Defendant and co-conspirators exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims.
The Defendant's Knowledge of the Falsity of His Election Fraud Claims
11. The Defendant, his co-conspirators, and their agents made knowingly false claims that there had been outcome-determinative fraud in the 2020 presidential election. These prolific lies about election fraud 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. These claims were false, and the Defendant knew that they were false. In fact, the Defendant was notified repeatedly that his claims were untrue -- often by the people on whom he relied for candid advice on important matters, and who were best positioned to know the facts -- and he deliberately disregarded the truth. For instance:
a. The Defendant's Vice President -- who personally stood to gain by remaining in office as part of the Defendant's ticket and whom the Defendant asked to study fraud allegations -- told the Defendant that he had seen no evidence of outcome-determinative fraud.
b. The senior leaders of the Justice Department -- appointed by the Defendant and responsible for investigating credible allegations of election crimes -- told the Defendant on multiple occasions that various allegations of fraud were unsupported.
c. The Director of National Intelligence -- the Defendant's principal advisor on intelligence matters related to national security -- disabused the Defendant of the notion that the Intelligence Community's findings regarding foreign interference would change the outcome of the election.
d. The Department of Homeland Security's Cybersecurity and Infrastructure Security Agency ("CISA") -- whose existence the Defendant signed into law to protect the nation's cybersecurity infrastructure from attack -- joined an official multi-agency statement that there was no evidence any voting system had been compromised and that declared the 2020 election "the most secure in American history." Days later, after the CISA Director -- whom the Defendant had appointed -- announced publicly that election security experts were in agreement that claims of computer-based election fraud were unsubstantiated, the Defendant fired him.
e. Senior White House attorneys -- selected by the Defendant to provide him candid advice -- informed the Defendant that there was no evidence of outcome-determinative election fraud, and told him that his presidency would end on Inauguration Day in 2021.
f. Senior staffers on the Defendant's 2020 re-election campaign ("Defendant's Campaign" or "Campaign") -- whose sole mission was the Defendant's reelection -- told the Defendant on November 7, 2020, that he had only a five to ten percent chance of prevailing in the election, and that success was contingent on the Defendant winning ongoing vote counts or litigation in Arizona, Georgia, and Wisconsin. Within a week of that assessment, the Defendant lost in Arizona -- meaning he had lost the election.
g. State legislators and officials -- many of whom were the Defendant's political allies, had voted for him, and wanted him to be re-elected -- repeatedly informed the Defendant that his claims of fraud in their states were unsubstantiated or false and resisted his pressure to act based upon them.
h. State and federal courts -- the neutral arbiters responsible for ensuring the fair and even-handed administration of election laws -- rejected every outcome-determinative post-election lawsuit filed by the Defendant, his coconspirators, and allies, providing the Defendant real-time notice that his allegations were meritless.
12. The Defendant widely disseminated his false claims of election fraud for months, despite the fact that he knew, and in many cases had been informed directly, that they were not true. The Defendant's knowingly false statements were integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others' right to vote and have their votes counted. He made these knowingly false claims throughout the post-election time period, including those below that he made immediately before the attack on the Capitol on January 6:
a. The Defendant insinuated that more than ten thousand dead voters had voted in Georgia. Just four days earlier, Georgia's Secretary of State had explained to the Defendant that this was false.
b. The Defendant asserted that there had been 205, 000 more votes than voters in Pennsylvania. The Defendant's Acting Attorney General and Acting Deputy Attorney General had explained to him that this was false.
c. The Defendant said that there had been a suspicious vote dump in Detroit, Michigan. The Defendant's Attorney General had explained to the Defendant that this was false, and the Defendant's allies in the Michigan state legislature -- the Speaker of the House of Representatives and Majority Leader of the Senate -- had publicly announced that there was no evidence of substantial fraud in the state.
d. The Defendant claimed that there had been tens of thousands of double votes and other fraud in Nevada. The Nevada Secretary of State had previously rebutted the Defendant's fraud claims by publicly posting a "Facts vs. Myths" document explaining that Nevada judges had reviewed and rejected them, and the Nevada Supreme Court had rendered a decision denying such claims.
e. The Defendant said that more than 30,000 non-citizens had voted in Arizona. The Defendant's own Campaign Manager had explained to him that such claims were false, and the Speaker of the Arizona House of Representatives, who had supported the Defendant in the election, had issued a public statement that there was no evidence of substantial fraud in Arizona.
f. The Defendant asserted that voting machines in various contested states had switched votes from the Defendant to Biden. The Defendant's Attorney General, Acting Attorney General, and Acting Deputy Attorney General all had explained to him that this was false, and numerous recounts and audits had confirmed the accuracy of voting machines.
The Criminal Agreement and Acts to Effect the Object of the Conspiracy
The Defendant's Use of Deceit to Get State Officials to Subvert the Legitimate Election Results and Change Electoral Votes
13. Shortly after election day -- which fell on November 3, 2020 -- the Defendant launched his criminal scheme. On November 13, the Defendant's Campaign attorneys conceded in court that he had lost the vote count in the state of Arizona -- meaning, based on the assessment the Defendant's Campaign advisors had given him just a week earlier, the Defendant had lost the election. So the next day, the Defendant turned to Co-Conspirator 1 [Rudy Giuliani], whom he announced would spearhead his efforts going forward to challenge the election results. From that point on, the Defendant and his co-conspirators executed a strategy to use knowing deceit in the targeted states to impair, obstruct, and defeat the federal government function, including as described below.
Arizona
14. On November 13, 2020, the Defendant had a conversation with his Campaign Manager, who informed him that a claim that had been circulating, that a substantial number of non-citizens had voted in Arizona, was false.
15. On November 22, eight days before Arizona's Governor certified the ascertainment of the state's legitimate electors based on the popular vote, the Defendant and Co-Conspirator 1 [Rudy Giuliani] called the Speaker of the Arizona House of Representatives and made knowingly false claims of election fraud aimed at interfering with the ascertainment of and voting by Arizona's electors, as follows:
a. The Defendant and Co-Conspirator 1 [Rudy Giuliani] falsely asserted, among other things, that a substantial number of non-citizens, non-residents, and dead people had voted fraudulently in Arizona. The Arizona House Speaker asked Co-Conspirator 1 [Rudy Giuliani] for evidence of the claims, which Co-Conspirator 1 [Rudy Giuliani] did not have, but claimed he would provide. Co-Conspirator 1 [Rudy Giuliani] never did so.
b. The Defendant and Co-Conspirator 1 [Rudy Giuliani] asked the Arizona House Speaker to call the legislature into session to hold a hearing based on their claims of election fraud. The Arizona House Speaker refused, stating that doing so would require a two-thirds vote of its members, and he would not allow it without actual evidence of fraud.
c. The Defendant and Co-Conspirator 1 [Rudy Giuliani] asked the Arizona House Speaker to use the legislature to circumvent the process by which legitimate electors would be ascertained for Biden based on the popular vote, and replace those electors with a new slate for the Defendant. The Arizona House Speaker refused, responding that the suggestion was beyond anything he had ever heard or thought of as something within his authority.
16. On December 1, Co-Conspirator 1 [Rudy Giuliani] met with the Arizona House Speaker. When the Arizona House Speaker again asked Co-Conspirator 1 [Rudy Giuliani] for evidence of the outcome-determinative election fraud he and the Defendant had been claiming, Co-Conspirator 1 [Rudy Giuliani] responded with words to the effect of, "We don't have the evidence, but we have lots of theories."
17. On December 4, the Arizona House Speaker issued a public statement that said, in part:
No election is perfect, and if there were evidence of illegal votes or an improper count, then Arizona law provides a process to contest the election: a lawsuit under state law. But the law does not authorize the Legislature to reverse the results of an election.
As a conservative Republican, I don't like the results of the presidential election. I voted for President Trump and worked hard to reelect him. But I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election.
I and my fellow legislators swore an oath to support the U.S. Constitution and the constitution and laws of the state of Arizona. It would violate that oath, the basic principles of republican government, and the rule of law if we attempted to nullify the people's vote based on unsupported theories of fraud. Under the laws that we wrote and voted upon, Arizona voters choose who wins, and our system requires that their choice be respected.
18. On the morning of January 4, 2021, Co-Conspirator 2 [John Eastman]] called the Arizona House Speaker to urge him to use a majority of the legislature to decertify the state's legitimate electors. Arizona's validly ascertained electors had voted three weeks earlier and sent their votes to Congress, which was scheduled to count those votes in Biden's favor in just two days' time at the January 6 certification proceeding. When the Arizona House Speaker explained that state investigations had uncovered no evidence of substantial fraud in the state, Co-Conspirator 2 [John Eastman]] conceded that he "[didn't] know enough about facts on the ground" in Arizona, but nonetheless told the Arizona House Speaker to decertify and "let the courts sort it out." The Arizona House Speaker refused, stating that he would not "play with the oath" he had taken to uphold the United States Constitution and Arizona law.
19. On January 6, the Defendant publicly repeated the knowingly false claim that 36, 000 non-citizens had voted in Arizona.
Georgia
20. On November 16, 2020, on the Defendant's behalf, his executive assistant sent Co-Conspirator 3 [Sidney Powell] and others a document containing bullet points critical of a certain voting machine company, writing, "See attached -- Please include as is, or almost as is, in lawsuit." Co-Conspirator 3 [Sidney Powell] 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." On November 25, Co-Conspirator 3 [Sidney Powell] filed a lawsuit against the Governor of Georgia falsely alleging "massive election fraud" accomplished through the voting machine company's election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed Co-Conspirator 3 [Sidney Powell]'s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 [Sidney Powell] sounded "crazy." Co-Conspirator 3 [Sidney Powell]'s Georgia lawsuit was dismissed on December 7.
21. On December 3, Co-Conspirator 1 [Rudy Giuliani] orchestrated a presentation to a Judiciary Subcommittee of the Georgia State Senate, with the intention of misleading state senators into blocking the ascertainment of legitimate electors. During the presentation:
a. An agent of the Defendant and Co-Conspirator 1 [Rudy Giuliani] falsely claimed that more than 10, 000 dead people voted in Georgia. That afternoon, a Senior Advisor to the Defendant told the Defendant's Chief of Staff through text messages, "Just an FYI. [A Campaign lawyer] and his team verified that the 10k+ supposed dead people voting in GA is not accurate .... It was alleged in [Co-Conspirator 1 [Rudy Giuliani] 's] hearing today." The Senior Advisor clarified that he believed that the actual number was 12.
b. Another agent of the Defendant and Co-Conspirator 1 [Rudy Giuliani] played a misleading excerpt of a video recording of ballot-counting at State Farm Arena in Atlanta and insinuated that it showed election workers counting "suitcases" of illegal ballots.
c. Co-Conspirator 2 [John Eastman]] encouraged the legislators to decertify the state's legitimate electors based on false allegations of election fraud.
22. Also on December 3, the Defendant issued a Tweet amplifying the knowingly false claims made in Co-Conspirator 1 [Rudy Giuliani]'s presentation in Georgia: "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 leads to an easy win of the State!"
23. On December 4, the Georgia Secretary of State's Chief Operating Officer debunked the claims made at Co-Conspirator 1 [Rudy Giuliani]'s presentation the previous day, issuing a Tweet stating, "The 90 second video of election workers at State Farm arena, purporting to show fraud was watched in its entirety (hours) by @GaSecofState investigators. Shows normal ballot processing. Here is the fact check on it." On December 7, he reiterated during a press conference that the claim that there had been misconduct at State Farm Arena was false.
24. On December 8, the Defendant called the Georgia Attorney General to pressure him to support an election lawsuit filed in the Supreme Court by another state's attorney general. The Georgia Attorney General told the Defendant that officials had investigated various claims of election fraud in the state and were not seeing evidence to support them.
25. Also on December 8, a Senior Campaign Advisor -- who spoke with the Defendant on a daily basis and had informed him on multiple occasions that various fraud claims were untrue -- expressed frustration that many of Co-Conspirator 1 [Rudy Giuliani] and his legal team's claims could not be substantiated. As early as mid-November, for instance, the Senior Campaign Advisor had informed the Defendant that his claims of a large number of dead voters in Georgia were untrue. With respect to the persistent false claim regarding State Farm Arena, on December 8, the Senior Campaign Advisor wrote in an email, "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."
26. On December 10, four days before Biden's validly ascertained electors were scheduled to cast votes and send them to Congress, Co-Conspirator 1 [Rudy Giuliani] appeared at a hearing before the Georgia House of Representatives' Government Affairs Committee. Co-Conspirator 1 [Rudy Giuliani] played the State Farm Arena video again, and falsely claimed that it showed "voter fraud right in front of people's eyes" and was "the tip of the iceberg." Then, he cited two election workers by name, 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." Thereafter, the two election workers received numerous death threats.
27. On December 15, the Defendant summoned the incoming Acting Attorney General, the incoming Acting Deputy Attorney General, and others to the Oval Office to discuss allegations of election fraud. During the meeting, the Justice Department officials specifically refuted the Defendant's claims about State Farm Arena, explaining to him that the activity shown on the tape Co-Conspirator 1 [Rudy Giuliani] had used was "benign."
28. On December 23, a day after the Defendant's Chief of Staff personally observed the signature verification process at the Cobb County Civic Center and notified the Defendant that state election officials were "conducting themselves in an exemplary fashion" and would find fraud if it existed, the Defendant tweeted that the Georgia officials administering the signature verification process were trying to hide evidence of election fraud and were "[t]errible people!"
29. In a phone call on December 27, the Defendant spoke with the Acting Attorney General and Acting Deputy Attorney General. During the call, the Defendant again pressed the unfounded claims regarding State Farm Arena, and the two top Justice Department officials again rebutted the allegations, telling him that the Justice Department had reviewed videotape and interviewed witnesses, and had not identified any suspicious conduct.
30. On December 31, the Defendant signed a verification affirming false election fraud allegations made on his behalf in a lawsuit filed in his name against the Georgia Governor. In advance of the filing, Co-Conspirator 2 [John Eastman]] -- who was advising the Defendant on the lawsuit -- acknowledged in an email that he and the Defendant had, since signing a previous verification, "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." The Defendant and Co-Conspirator 2 [John Eastman]] caused the Defendant's signed verification to be filed nonetheless.
31. On January 2, four days before Congress's certification proceeding, the Defendant and others called Georgia's Secretary of State. During the call, the Defendant lied to the Georgia Secretary of State to induce him to alter Georgia's popular vote count and call into question the validity of the Biden electors' votes, which had been transmitted to Congress weeks before, including as follows:
a. The Defendant raised allegations regarding the State Farm Arena video and repeatedly disparaged one of the same election workers that Co-Conspirator 1 [Rudy Giuliani] had maligned on December 10, using her name almost twenty times and falsely referring to her as "a professional vote scammer and hustler." In response, the Georgia Secretary of State refuted this: "You're talking about the State Farm video. And I think it's extremely unfortunate that [Co-Conspirator 1 [Rudy Giuliani]] or his people, they sliced and diced that video and took it out of context." When the Georgia Secretary of State then offered a link to a video that would disprove Co-Conspirator 1 [Rudy Giuliani]'s claims, the Defendant responded, "I don't care about a link, I don't need it. I have a much, [Georgia Secretary of State], I have a much better link."
b. The Defendant asked about rumors that paper ballots cast in the election were being destroyed, and the Georgia Secretary of State's Counsel explained to him that the claim had been investigated and was not true.
c. The Defendant claimed that 5, 000 dead people voted in Georgia, causing the Georgia Secretary of State to respond, "Well, Mr. President, the challenge that you have is the data you have is wrong .... The actual number were two. Two. Two people that were dead that voted. And so [your information]'s wrong, that was two."
d. The Defendant claimed that thousands of out-of-state voters had cast ballots in Georgia's election, which the Georgia Secretary of State's Counsel refuted, explaining, "We've been going through each of those as well, and those numbers that we got, that [Defendant's counsel] was just saying, they're not accurate. Every one we've been through are people that lived in Georgia, moved to a different state, but then moved back to Georgia legitimately ... they moved back in years ago. This was not like something just before the election."
e. In response to multiple other of the Defendant's allegations, the Georgia Secretary of State's Counsel told the Defendant that the Georgia Bureau of Investigation was examining all such claims and finding no merit to them.
f. The Defendant said that he needed to "find" 11,780 votes, and insinuated that the Georgia Secretary of State and his Counsel could be subject to criminal prosecution if they failed to find election fraud as he demanded, stating, "And you are going 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 [the Georgia Secretary of State's Counsel], your lawyer."
32. The next day, on January 3, the Defendant falsely claimed that the Georgia Secretary of State had not addressed the Defendant's allegations, publicly stating that the Georgia Secretary of State "was unwilling, or unable, to answer questions such as the 'ballots under table' scam, ballot destruction, out of state 'voters', dead voters, and more. He has no clue!"
33. On January 6, the Defendant publicly repeated the knowingly false insinuation that more than 10, 300 dead people had voted in Georgia.
Michigan
34. On November 5, 2020, the Defendant claimed that there had been a suspicious dump of votes -- purportedly illegitimate ballots -- stating, "In Detroit, there were hours of unexplained delay in delivering many of the votes for counting. The final batch did not arrive until four in the morning and -- even though the polls closed at eight o'clock. So they brought it in, and the batches came in, and nobody knew where they came from."
35. On November 20, three days before Michigan's Governor signed a certificate of ascertainment notifying the federal government that, based on the popular vote, Biden's electors were to represent Michigan's voters, the Defendant held a meeting in the Oval Office with the Speaker of the Michigan House of Representatives and the Majority Leader of the Michigan Senate. In the meeting, the Defendant raised his false claim, among others, of an illegitimate vote dump in Detroit. In response, the Michigan Senate Majority Leader told the Defendant that he had lost Michigan not because of fraud, but because the Defendant had underperformed with certain voter populations in the state. Upon leaving their meeting, the Michigan House Speaker and Michigan Senate Majority Leader issued a statement reiterating this:
The Senate and House Oversight Committees are actively engaged in a thorough review of Michigan's elections process and we have faith in the committee process to provide greater transparency and accountability to our citizens. We have not yet been made aware of any information that would change the outcome of the election in Michigan and as legislative leaders, we will follow the law and follow the normal process regarding Michigan's electors, just as we have said throughout this election.
36. On December 1, the Defendant raised his Michigan vote dump claim with the Attorney General, who responded that what had occurred in Michigan had been the normal vote-counting process and that there was no indication of fraud in Detroit.
37. Despite this, the next day, the Defendant made a knowingly false statement that in Michigan, "[a]t 6:31 in the morning, a vote dump of 149, 772 votes came in unexpectedly. We were winning by a lot. That batch was received in horror. Nobody knows anything about it. ... It's corrupt. Detroit is corrupt. I have a lot of friends in Detroit. They know it. But Detroit is totally corrupt."
38. On December 4, Co-Conspirator 1 [Rudy Giuliani] sent a text message to the Michigan House Speaker reiterating his unsupported claim of election fraud and attempting to get the Michigan House Speaker to assist in reversing the ascertainment of the legitimate Biden electors, stating, "Looks like Georgia may well hold some factual hearings and change the certification under ArtII sec 1 cl 2 of the Constitution. As [Co-Conspirator 2 [John Eastman]]] explained they don't just have the right to do it but the obligation .... Help me get this done in Michigan."
39. Similarly, on December 7, despite still having established no fraud in Michigan, Co-Conspirator 1 [Rudy Giuliani] sent a text intended for the Michigan Senate Majority Leader: "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."
40. On December 14 -- the day that electors in states across the country were required to vote and submit their votes to Congress -- the Michigan House Speaker and Michigan Senate Majority Leader announced that, contrary to the Defendant's requests, they would not decertify the legitimate election results or electors in Michigan. The Michigan Senate Majority Leader's public statement included, "[W]e have not received evidence of fraud on a scale that would change the outcome of the election in Michigan." The Michigan House Speaker's public statement read, 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.
41. On January 6, 2021, the Defendant publicly repeated his knowingly false claim regarding an illicit dump of more than a hundred thousand ballots in Detroit.
Pennsylvania
42. On November 11, 2020, the Defendant publicly maligned a Philadelphia City Commissioner for stating on the news that there was no evidence of widespread fraud in Philadelphia. As a result, the Philadelphia City Commissioner and his family received death threats.
43. On November 25, the day after Pennsylvania's Governor signed a certificate of ascertainment and thus certified to the federal government that Biden's electors were the legitimate electors for the state, Co-Conspirator 1 [Rudy Giuliani] orchestrated an event at a hotel in Gettysburg attended by state legislators. Co-Conspirator 1 [Rudy Giuliani] falsely claimed that Pennsylvania had issued 1.8 million absentee ballots and received 2.5 million in return. In the days thereafter, a Campaign staffer wrote internally that Co-Conspirator 1 [Rudy Giuliani]'s allegation was "just wrong" and "[t]here's no way to defend it." The Deputy Campaign Manager responded, "We have been saying this for a while. It's very frustrating. "
44. On December 4, after four Republican leaders of the Pennsylvania legislature issued a public statement 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, the Defendant re-tweeted a post labeling the legislators cowards.
45. On December 31 and January 3, the Defendant repeatedly raised with the Acting Attorney General and Acting Deputy Attorney General the allegation that in Pennsylvania, there had been 205, 000 more votes than voters. Each time, the Justice Department officials informed the Defendant that his claim was false.
46. On January 6, 2021, the Defendant publicly repeated his knowingly false claim that there had been 205, 000 more votes than voters in Pennsylvania.
Wisconsin
47. On November 29, 2020, a recount in Wisconsin that the Defendant's Campaign had petitioned and paid for did not change the election result, and in fact increased the Defendant's margin of defeat.
48. On December 14, the Wisconsin Supreme Court rejected an election challenge by the Campaign. One Justice wrote, "[N]othing in this case casts any legitimate doubt that the people of Wisconsin lawfully chose Vice President Biden and Senator Harris to be the next leaders of our great country."
49. On December 21, as a result of the state Supreme Court's decision, the Wisconsin Governor -- who had signed a certificate of ascertainment on November 30 identifying Biden's electors as the state's legitimate electors -- signed a certificate of final determination in which he recognized that the state Supreme Court had resolved a controversy regarding the appointment of Biden's electors, and confirmed that Biden had received the highest number of votes in the state and that his electors were the state's legitimate electors.
50. That same day, in response to the court decision that had prompted the Wisconsin Governor to sign a certificate of final determination, the Defendant issued a Tweet repeating his knowingly false claim of election fraud and demanding that the Wisconsin legislature overturn the election results that had led to the ascertainment of Biden's electors as the legitimate electors.
51. On December 27, the Defendant raised with the Acting Attorney General and Acting Deputy Attorney General a specific fraud claim -- that there had been more votes than voters in Wisconsin. The Acting Deputy Attorney General informed the Defendant that the claim was false.
52. On January 6, 2021, the Defendant publicly repeated knowingly false claims that there had been tens of thousands of unlawful votes in Wisconsin.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
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Part 2 of 2
The Defendant's Use of Dishonesty. Fraud, and Deceit to Organize Fraudulent Slates of Electors and Cause Them to Transmit False Certificates to Congress
53. As the Defendant's attempts to obstruct the electoral vote through deceit of state officials met with repeated failure, beginning in early December 2020, he and co-conspirators developed a new plan: to marshal individuals who would have served as the Defendant's electors, had he won the popular vote, in seven targeted states -- Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin -- and cause those individuals to make and send to the Vice President and Congress false certifications that they were legitimate electors. Under the plan, the submission of these fraudulent slates would create a fake controversy at the certification proceeding and position the Vice President -- presiding on January 6 as President of the Senate -- to supplant legitimate electors with the Defendant's fake electors and certify the Defendant as president.
54. The plan capitalized on ideas presented in memoranda drafted by Co-Conspirator 5 [Kenneth Chesebro], an attorney who was assisting the Defendant's Campaign with legal efforts related to a recount in Wisconsin. The memoranda evolved over time from a legal strategy to preserve the Defendant's rights to a corrupt plan to subvert the federal government function by stopping Biden electors' votes from being counted and certified, as follows:
a. The November 18 Memorandum ("Wisconsin Memo") advocated that, because of the ongoing recount in Wisconsin, the Defendant's electors there should meet and cast votes on December 14 -- the date the ECA required appointed electors to vote -- to preserve the alternative of the Defendant's Wisconsin elector slate in the event the Defendant ultimately prevailed in the state.
b. The December 6 Memorandum ("Fraudulent Elector Memo") marked a sharp departure from Co-Conspirator 5 [Kenneth Chesebro]'s Wisconsin Memo, advocating that the alternate electors originally conceived of to preserve rights in Wisconsin instead be used in a number of states as fraudulent electors to prevent Biden from receiving the 270 electoral votes necessary to secure the presidency on January 6. The Fraudulent Elector Memo suggested that the Defendant's electors in six purportedly "contested" states (Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin) should meet and mimic as best as possible the actions of the legitimate Biden electors, and that on January 6, the Vice President should open and count the fraudulent votes, setting up a fake controversy that would derail the proper certification of Biden as president-elect.
c. The December 9 Memorandum ("Fraudulent Elector Instructions") consisted of Co-Conspirator 5 [Kenneth Chesebro]'s instructions on how fraudulent electors could mimic legitimate electors in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. Co-Conspirator 5 [Kenneth Chesebro] noted that in some states, it would be virtually impossible for the fraudulent electors to successfully take the same steps as the legitimate electors because state law required formal participation in the process by state officials, or access to official resources.
55. The plan began in early December, and ultimately, the conspirators and the Defendant's Campaign took the Wisconsin Memo and expanded it to any state that the Defendant claimed was "contested" -- even New Mexico, which the Defendant had lost by more than ten percent of the popular vote. This expansion was forecast by emails the Defendant's Chief of Staff sent on December 6, forwarding the Wisconsin Memo to Campaign staff and writing, "We just need to have someone coordinating the electors for states."
56. On December 6, the Defendant and Co-Conspirator 2 [John Eastman] called the Chairwoman of the Republican National Committee to ensure that the plan was in motion. During the call, Co-Conspirator 2 [John Eastman] told the Chairwoman that it was important for the RNC to help the Defendant's Campaign gather electors in targeted states, and falsely represented to her that such electors' votes would be used only if ongoing litigation in one of the states changed the results in the Defendant's favor. After the RNC Chairwoman consulted the Campaign and heard that work on gathering electors was underway, she called and reported this information to the Defendant, who responded approvingly.
57. On December 7, Co-Conspirator 1 [Rudy Giuliani] received the Wisconsin Memo and the Fraudulent Elector Memo. Co-Conspirator 1 [Rudy Giuliani] spoke with Co-Conspirator 6 [Boris Epshteyn] regarding attorneys who could assist in the fraudulent elector effort in the targeted states, and he received from Co-Conspirator 6 [Boris Epshteyn] an email identifying attorneys in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin.
58. The next day, on December 8, Co-Conspirator 5 [Kenneth Chesebro] called the Arizona attorney on Co-Conspirator 6 [Boris Epshteyn]'s list. In an email after the call, the Arizona attorney recounted his conversation with Co-Conspirator 5 [Kenneth Chesebro] as follows:
59. At Co-Conspirator 1 [Rudy Giuliani]'s direction, on December 10, Co-Conspirator 5 [Kenneth Chesebro] sent to points of contact in all targeted states except Wisconsin (which had already received his memos) and New Mexico a streamlined version of the Wisconsin Memo -- which did not reveal the intended fraudulent use of the Defendant's electors -- and the Fraudulent Elector Instructions, along with fraudulent elector certificates that he had drafted.
60. The next day, on December 11, through Co-Conspirator 5 [Kenneth Chesebro], Co-Conspirator 1 [Rudy Giuliani] suggested that the Arizona lawyer file a petition for certiorari in the Supreme Court as a pretext to claim that litigation was pending in the state, to provide cover for the convening and voting of the Defendant's fraudulent electors there. Co-Conspirator 5 [Kenneth Chesebro] explained that Co-Conspirator 1 [Rudy Giuliani] had heard from a state official and state provisional elector that "it could appear treasonous for the AZ electors to vote on Monday if there is no pending court proceeding .... "
61. To manage the plan in Pennsylvania, on December 12, Co-Conspirator 1 [Rudy Giuliani], Co- Conspirator 5 [Kenneth Chesebro], and Co-Conspirator 6 [Boris Epshteyn] participated in a conference call organized by the Defendant's Campaign with the Defendant's electors in that state. When the Defendant's electors expressed concern about signing certificates representing themselves as legitimate electors, Co-Conspirator 1 [Rudy Giuliani] falsely assured them that their certificates would be used only if the Defendant succeeded in litigation. Subsequently, Co-Conspirator 6 [Boris Epshteyn] circulated proposed conditional language to that effect for potential inclusion in the fraudulent elector certificates. A Campaign official cautioned not to offer the conditional language to other states because "[t]he other States are signing what he prepared -- if it gets out we changed the language for PA it could snowball." In some cases, the Defendant's electors refused to participate in the plan.
62. On December 13, Co-Conspirator 5 [Kenneth Chesebro] sent Co-Conspirator 1 [Rudy Giuliani] an email memorandum that further confirmed that the conspirators' plan was not to use the fraudulent electors only in the circumstance that the Defendant's litigation was successful in one of the targeted states -- instead, the plan was to falsely present the fraudulent slates as an alternative to the legitimate slates at Congress's certification proceeding.
63. On December 13, the Defendant asked the Senior Campaign Advisor for an update on "what was going on" with the elector plan and directed him to "put out [a] statement on electors." As a result, Co-Conspirator 1 [Rudy Giuliani] directed the Senior Campaign Advisor to join a conference call with him, Co-Conspirator 6 [Boris Epshteyn], and others. When the Senior Campaign Advisor related these developments in text messages to the Deputy Campaign Manager, a Senior Advisor to the Defendant, and a Campaign staffer, the Deputy Campaign Manager responded, "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." The Senior Advisor wrote, "Certifying illegal votes." In turn, the participants in the group text message refused to have a statement regarding electors attributed to their names because none of them could "stand by it."
64. Also on December 13, at a Campaign staffer's request, Co-Conspirator 5 [Kenneth Chesebro] drafted and sent fraudulent elector certificates for the Defendant's electors in New Mexico, which had not previously been among the targeted states, and where there was no pending litigation on the Defendant's behalf. The next day, the Defendant's Campaign filed an election challenge suit in New Mexico at 11:54 a.m., six minutes before the noon deadline for the electors' votes, as a pretext so that there was pending litigation there at the time the fraudulent electors voted. 65. On December 14, the legitimate electors of all 50 states and the District of Columbia met in their respective jurisdictions to formally cast their votes for president, resulting in a total of 232 electoral votes for the Defendant and 306 for Biden. The legitimate electoral votes that Biden won in the states that the Defendant targeted, and the Defendant's margin of defeat, were as follows: Arizona (11 electoral votes; 10,457 votes), Georgia (16 electoral votes; 11,779 votes), Michigan (16 electoral votes; 154, 188 votes), Nevada (6 electoral votes; 33, 596 votes), New Mexico (5 electoral votes; 99,720 votes), Pennsylvania (20 electoral votes; 80, 555 votes), and Wisconsin (10 electoral votes; 20,682 votes).
66. On the same day, at the direction of the Defendant and Co-Conspirator 1 [Rudy Giuliani], fraudulent electors convened sham proceedings in the seven targeted states to cast fraudulent electoral ballots in favor of the Defendant. In some states, in order to satisfy legal requirements set forth for legitimate electors under state law, state officials were enlisted to provide the fraudulent electors access to state capitol buildings so that they could gather and vote there. In many cases, however, as Co-Conspirator 5 [Kenneth Chesebro] had predicted in the Fraudulent Elector Instructions, the fraudulent electors were unable to satisfy the legal requirements.
67. Nonetheless, as directed in the Fraudulent Elector Instructions, shortly after the fraudulent electors met on December 14, the targeted states' fraudulent elector certificates were mailed to the President of the Senate, the Archivist of the United States, and others. The Defendant and co-conspirators ultimately used the certificates of these fraudulent electors to deceitfully target the government function, and did so contrary to how fraudulent electors were told they would be used.
68. Unlike those of the fraudulent electors, consistent with the ECA, the legitimate electors' signed certificates were annexed to the state executives' certificates of ascertainment before being sent to the President of the Senate and others.
69. That evening, at 6:26 p.m., the RNC Chairwoman forwarded to the Defendant, through his executive assistant, an email titled, "Electors Recap - Final, " which represented that in "Six Contested States" -- Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin -- the Defendant's electors had voted in parallel to Biden's electors. The Defendant's executive assistant responded, "It's in front of him!"
The Defendant's Attempt to Leverage the Justice Department to Use Deceit to Get State Officials to Replace Legitimate Electors and Electoral Votes with the Defendant's
70. In late December 2020, the Defendant attempted to use the Justice Department to make knowingly false claims of election fraud to officials in the targeted states through a formal letter under the Acting Attorney General's signature, thus giving the Defendant's lies the backing of the federal government and attempting to improperly influence the targeted states to replace legitimate Biden electors with the Defendant's.
71. On December 22, the Defendant met with Co-Conspirator 4 [Jeffrey Clark] at the White House. Co-Conspirator 4 [Jeffrey Clark] had not informed his leadership at the Justice Department of the meeting, which was a violation of the Justice Department's written policy restricting contacts with the White House to guard against improper political influence.
72. On December 26, Co-Conspirator 4 [Jeffrey Clark] spoke on the phone with the Acting Attorney General and lied about the circumstances of his meeting with the Defendant at the White House, falsely claiming that the meeting had been unplanned. The Acting Attorney General directed Co-Conspirator 4 [Jeffrey Clark] not to have unauthorized contacts with the White House again, and Co-Conspirator 4 [Jeffrey Clark] said he would not.
73. The next morning, on December 27, contrary to the Acting Attorney General's direction, Co-Conspirator 4 [Jeffrey Clark] spoke with the Defendant on the Defendant's cell phone for nearly three minutes.
74. That afternoon, the Defendant called the Acting Attorney General and Acting Deputy Attorney General and said, among other things, "People tell me [Co-Conspirator 4 [Jeffrey Clark]] is great. I should put him in." The Defendant also raised multiple false claims of election fraud, which the Acting Attorney General and Acting Deputy Attorney General refuted. When the Acting Attorney General told the Defendant that the Justice Department could not and would not change the outcome of the election, the Defendant responded, "Just say that the election was corrupt and leave the rest to me and the Republican congressmen."
75. On December 28, Co-Conspirator 4 [Jeffrey Clark] sent a draft letter to the Acting Attorney General and Acting Deputy Attorney General, which he proposed they all sign. The draft was addressed to state officials in Georgia, and Co-Conspirator 4 [Jeffrey Clark] proposed sending versions of the letter to elected officials in other targeted states. The proposed letter contained numerous knowingly false claims about the election and the Justice Department, including that:
a. The Justice Department had "identified significant concerns that may have impacted the outcome of the election in multiple States[.]"
b. The Justice Department believed that in Georgia and other states, two valid slates of electors had gathered at the proper location on December 14, and that both sets of ballots had been transmitted to Congress. That is, Co-Conspirator 4 [Jeffrey Clark]'s letter sought to advance the Defendant's fraudulent elector plan by using the authority of the Justice Department to falsely present the fraudulent electors as a valid alternative to the legitimate electors.
c. The Justice Department urged that the state legislature convene a special legislative session to create the opportunity to, among other things, choose the fraudulent electors over the legitimate electors.
76. The Acting Deputy Attorney General promptly responded to Co-Conspirator 4 [Jeffrey Clark] by email and told him that his proposed letter was false, writing, "Despite dramatic claims to the contrary, we have not seen the type of fraud that calls into question the reported (and certified) results of the election." In a meeting shortly thereafter, the Acting Attorney General and Acting Deputy Attorney General again directed Co-Conspirator 4 [Jeffrey Clark] not to have unauthorized contact with the White House.
77. On December 31, the Defendant summoned to the Oval Office the Acting Attorney General, Acting Deputy Attorney General, and other advisors. In the meeting, the Defendant again raised claims about election fraud that Justice Department officials already had told him were not true -- and that the senior Justice Department officials reiterated were false -- and suggested he might change the leadership in the Justice Department.
78. On January 2, 2021, just four days before Congress's certification proceeding, Co-Conspirator 4 [Jeffrey Clark] tried to coerce the Acting Attorney General and Acting Deputy Attorney General to sign and send Co-Conspirator 4 [Jeffrey Clark]'s draft letter, which contained false statements, to state officials. He told them that the Defendant was considering making Co-Conspirator 4 [Jeffrey Clark] the new Acting Attorney General, but that Co-Conspirator 4 [Jeffrey Clark] would decline the Defendant's offer if the Acting Attorney General and Acting Deputy Attorney General would agree to send the proposed letter to the targeted states. The Justice Department officials refused.
79. The next morning, on January 3, despite having uncovered no additional evidence of election fraud, Co-Conspirator 4 [Jeffrey Clark] sent to a Justice Department colleague an edited version of his draft letter to the states, which included a change from its previous claim that the Justice Department had "concerns" to a stronger false claim that "[a]s of today, there is evidence of significant irregularities that may have impacted the outcome of the election in multiple States .... "
80. Also on the morning of January 3, Co-Conspirator 4 [Jeffrey Clark] met with the Defendant at the White House -- again without having informed senior Justice Department officials -- and accepted the Defendant's offer that he become Acting Attorney General.
81. On the afternoon of January 3, Co-Conspirator 4 [Jeffrey Clark] spoke with a Deputy White House Counsel. The previous month, the Deputy White House Counsel had informed the Defendant that "there is no world, there is no option in which you do not leave the White House [o]n January 20th." Now, the same Deputy White House Counsel tried to dissuade Co-Conspirator 4 [Jeffrey Clark] from assuming the role of Acting Attorney General. The Deputy White House Counsel reiterated to Co-Conspirator 4 [Jeffrey Clark] that there had not been outcome-determinative fraud in the election and that if the Defendant remained in office nonetheless, there would be "riots in every major city in the United States." Co-Conspirator 4 [Jeffrey Clark] responded, "Well, [Deputy White House Counsel], that's why there's an Insurrection Act."
82. Also that afternoon, Co-Conspirator 4 [Jeffrey Clark] met with the Acting Attorney General and told him that the Defendant had decided to put Co-Conspirator 4 [Jeffrey Clark] in charge of the Justice Department. The Acting Attorney General responded that he would not accept being fired by a subordinate and immediately scheduled a meeting with the Defendant for that evening.
83. On the evening of January 3, the Defendant met for a briefing on an overseas national security issue with the Chairman of the Joint Chiefs of Staff and other senior national security advisors. The Chairman briefed the Defendant on the issue -- which had previously arisen in December -- as well as possible ways the Defendant could handle it. When the Chairman and another advisor recommended that the Defendant take no action because Inauguration Day was only seventeen days away and any course of action could trigger something unhelpful, the Defendant calmly agreed, stating, "Yeah, you're right, it's too late for us. We're going to give that to the next guy."
84. The Defendant moved immediately from this national security briefing to the meeting that the Acting Attorney General had requested earlier that day, which included Co-Conspirator 4 [Jeffrey Clark], the Acting Attorney General, the Acting Deputy Attorney General, the Justice Department's Assistant Attorney General for the Office of Legal Counsel, the White House Counsel, a Deputy White House Counsel, and a Senior Advisor. At the meeting, the Defendant expressed frustration with the Acting Attorney General for failing to do anything to overturn the election results, and the group discussed Co-Conspirator 4 [Jeffrey Clark]'s plans to investigate purported election fraud and to send his proposed letter to state officials -- a copy of which was provided to the Defendant during the meeting. The Defendant relented in his plan to replace the Acting Attorney General with Co-Conspirator 4 [Jeffrey Clark] only when he was told that it would result in mass resignations at the Justice Department and of his own White House Counsel.
85. At the meeting in the Oval Office on the night of January 3, Co-Conspirator 4 [Jeffrey Clark] suggested that the Justice Department should opine that the Vice President could exceed his lawful authority during the certification proceeding and change the election outcome. When the Assistant Attorney General for the Office of Legal Counsel began to explain why the Justice Department should not do so, the Defendant said, "No one here should be talking to the Vice President. I'm talking to the Vice President, " and ended the discussion.
The Defendant's Attempts to Enlist the Vice President to Fraudulently Alter the Election Results at the January 6 Certification Proceeding
86. As the January 6 congressional certification proceeding approached and other efforts to impair, obstruct, and defeat the federal government function failed, the Defendant sought to enlist the Vice President to use his ceremonial role at the certification to fraudulently alter the election results. The Defendant did this first by using knowingly false claims of election fraud to convince the Vice President to accept the Defendant's fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than count them. When that failed, the Defendant attempted to use a crowd of supporters that he had gathered in Washington, D.C., to pressure the Vice President to fraudulently alter the election results.
87. On December 19, 2020, after cultivating widespread anger and resentment for weeks with his knowingly false claims of election fraud, the Defendant urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, "Big protest in D.C. on January 6th. Be there, will be wild!" Throughout late December, he repeatedly urged his supporters to come to Washington for January 6.
88. On December 23, the Defendant re-tweeted a memo titled "Operation 'PENCE' CARD, " which falsely asserted that the Vice President could, among other things, unilaterally disqualify legitimate electors from six targeted states.
89. On the same day, Co-Conspirator 2 [John Eastman] circulated a two-page memorandum outlining a plan for the Vice President to unlawfully declare the Defendant the certified winner of the presidential election. In the memorandum, Co-Conspirator 2 [John Eastman] claimed that seven states had transmitted two slates of electors and proposed that the Vice President announce that "because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States." Next, Co-Conspirator 2 [John Eastman] proposed steps that he acknowledged violated the ECA, advocating that, in the end, "Pence then gavels President Trump as re-elected." Just two months earlier, on October 11, Co-Conspirator 2 [John Eastman] had taken the opposite position, writing that neither the Constitution nor the ECA provided the Vice President discretion in the counting of electoral votes, or permitted him to "make the determination on his own."
90. On several private phone calls in late December and early January, the Defendant repeated knowingly false claims of election fraud and directly pressured the Vice President to use his ceremonial role at the certification proceeding on January 6 to fraudulently overturn the results of the election, and the Vice President resisted, including:
a. On December 25, when the Vice President called the Defendant to wish him a Merry Christmas, the Defendant quickly turned the conversation to January 6 and his request that the Vice President reject electoral votes that day. The Vice President pushed back, telling the Defendant, as the Vice President already had in previous conversations, "You know I don't think I have the authority to change the outcome."
b. On December 29, as reflected in the Vice President's contemporaneous notes, the Defendant falsely told the Vice President that the "Justice Dept [was] finding major infractions."
c. On January 1, the Defendant called the Vice President and berated him because he had learned that the Vice President had opposed a lawsuit seeking a judicial decision that, at the certification, the Vice President had the authority to reject or return votes to the states under the Constitution. The Vice President responded that he thought there was no constitutional basis for such authority and that it was improper. In response, the Defendant told the Vice President, "You're too honest." Within hours of the conversation, the Defendant reminded his supporters to meet in Washington before the certification proceeding, tweeting, "The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!"
d. On January 3, the Defendant again told the Vice President that at the certification proceeding, the Vice President had the absolute right to reject electoral votes and the ability to overturn the election. The Vice President responded that he had no such authority, and that a federal appeals court had rejected the lawsuit making that claim the previous day.
91. On January 3, Co-Conspirator 2 [John Eastman] circulated a second memorandum that included a new plan under which, contrary to the ECA, the Vice President would send the elector slates to the state legislatures to determine which slate to count.
92. On January 4, the Defendant held a meeting with Co-Conspirator 2 [John Eastman], the Vice President, the Vice President's Chief of Staff, and the Vice President's Counsel for the purpose of convincing the Vice President, based on the Defendant's knowingly false claims of election fraud, that the Vice President should reject or send to the states Biden's legitimate electoral votes, rather than count them. The Defendant deliberately excluded his White House Counsel from the meeting because the White House Counsel previously had pushed back on the Defendant's false claims of election fraud.
93. During the meeting, as reflected in the Vice President's contemporaneous notes, the Defendant made knowingly false claims of election fraud, including, "Bottom line -- won every state by 100,000s of votes" and "We won every state, " and asked -- regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before -- "What about 205,000 votes more in PA than voters?" The Defendant and Co-Conspirator 2 [John Eastman] then asked the Vice President to either unilaterally reject the legitimate electors from the seven targeted states, or send the question of which slate was legitimate to the targeted states' legislatures. When the Vice President challenged Co-Conspirator 2 [John Eastman] on whether the proposal to return the question to the states was defensible, Co-Conspirator 2 [John Eastman] responded, "Well, nobody's tested it before." The Vice President then told the Defendant, "Did you hear that? Even your own counsel is not saying I have that authority." The Defendant responded, "That's okay, I prefer the other suggestion" of the Vice President rejecting the electors unilaterally.
94. Also on January 4, when Co-Conspirator 2 [John Eastman] acknowledged to the Defendant's Senior Advisor that no court would support his proposal, the Senior Advisor told Co-Conspirator 2 [John Eastman], "[Y]ou're going to cause riots in the streets." Co-Conspirator 2 [John Eastman] responded that there had previously been points in the nation's history where violence was necessary to protect the republic. After that conversation, the Senior Advisor notified the Defendant that Co-Conspirator 2 [John Eastman] had conceded that his plan was "not going to work."
95. On the morning of January 5, at the Defendant's direction, the Vice President's Chief of Staff and the Vice President's Counsel met again with Co-Conspirator 2 [John Eastman]. Co-Conspirator 2 [John Eastman] now advocated that the Vice President do what the Defendant had said he preferred the day before: unilaterally reject electors from the targeted states. During this meeting, Co-Conspirator 2 [John Eastman] privately acknowledged to the Vice President's Counsel that he hoped to prevent judicial review of his proposal because he understood that it would be unanimously rejected by the Supreme Court. The Vice President's Counsel expressed to Co-Conspirator 2 [John Eastman] that following through with the proposal would result in a "disastrous situation" where the election might "have to be decided in the streets."
96. That same day, the Defendant encouraged supporters to travel to Washington on January 6, and he set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in the Defendant's favor, including issuing the following Tweets:
a. At 11:06 a.m., "The Vice President has the power to reject fraudulently chosen electors." This was within 40 minutes of the Defendant's earlier reminder, "See you in D.C."
b. At 5:05 p.m., "Washington is being inundated with people who don't want to see an election victory stolen .... Our Country has had enough, they won't take it anymore! We hear you (and love you) from the Oval Office."
c. At 5:43 p.m., "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!"
97. Also on January 5, the Defendant met alone with the Vice President. When the Vice President refused to agree to the Defendant's request that he obstruct the certification, the Defendant grew frustrated and told the Vice President that the Defendant would have to publicly criticize him. Upon learning of this, the Vice President's Chief of Staff was concerned for the Vice President's safety and alerted the head of the Vice President's Secret Service detail.
98. As crowds began to gather in Washington and were audible from the Oval Office, the Defendant remarked to advisors that the crowd the following day on January 6 was going to be "angry."
99. That night, the Defendant approved and caused the Defendant's Campaign to issue a public statement that the Defendant knew, from his meeting with the Vice President only hours earlier, was false: "The Vice President and I are in total agreement that the Vice President has the power to act."
100. On January 6, starting in the early morning hours, the Defendant again turned to knowingly false statements aimed at pressuring the Vice President to fraudulently alter the election outcome, and raised publicly the false expectation that the Vice President might do so:
a. At 1:00 a.m., the Defendant issued a Tweet that falsely claimed, "If 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!"
b. At 8:17 a.m., the Defendant issued a Tweet that falsely stated, "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!"
101. On the morning of January 6, an agent of the Defendant contacted a United States Senator to ask him to hand-deliver documents to the Vice President. The agent then facilitated the receipt by the Senator's staff of the fraudulent certificates signed by the Defendant's fraudulent electors in Michigan and Wisconsin, which were believed not to have been delivered to the Vice President or Archivist by mail. When one of the Senator's staffers contacted a staffer for the Vice President by text message to arrange for delivery of what the Senator's staffer had been told were "[a]lternate slate[s] of electors for MI and WI because archivist didn't receive them, " the Vice President's staffer rejected them.
102. At 11:15 a.m., the Defendant called the Vice President and again pressured him to fraudulently reject or return Biden's legitimate electoral votes. The Vice President again refused. Immediately after the call, the Defendant decided to single out the Vice President in public remarks he would make within the hour, reinserting language that he had personally drafted earlier that morning -- falsely claiming that the Vice President had authority to send electoral votes to the states-but that advisors had previously successfully advocated be removed.
103. Earlier that morning, the Defendant had selected Co-Conspirator 2 [John Eastman] to join Co- Conspirator 1 [Rudy Giuliani] in giving public remarks before his own. When they did so, based on knowingly false election fraud claims, Co-Conspirator 1 [Rudy Giuliani] and Co-Conspirator 2 [John Eastman] intensified pressure on the Vice President to fraudulently obstruct the certification proceeding:
a. Co-Conspirator 1 [Rudy Giuliani] told the crowd that the Vice President could "cast [the ECA] aside" and unilaterally "decide on the validity of these crooked ballots[.]" He also lied when he claimed to "have letters from five legislatures begging us" to send elector slates to the legislatures for review, and called for "trial by combat."
b. Co-Conspirator 2 [John Eastman] told the crowd, "[A]ll we are demanding of Vice President Pence is this afternoon at one o'clock he let the legislatures of the state look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not. We no longer live in a self-governing republic if we can't get the answer to this question."
104. Next, beginning at 11:56 a.m., the Defendant made multiple knowingly false statements integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others' right to vote and have their votes counted. The Defendant repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification. The Defendant's knowingly false statements for these purposes included:
a. The Defendant falsely claimed that, based on fraud, the Vice President could alter the outcome of the election results, stating:
b. After the Defendant falsely stated that the Pennsylvania legislature wanted "to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back, " the crowd began to chant, "Send it back."
c. The Defendant also said that regular rules no longer applied, stating, "And fraud breaks up everything, doesn't it? When you catch somebody in a fraud, you're allowed to go by very different rules."
d. Finally, after exhorting that "we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore, " the Defendant directed the people in front of him to head to the Capitol, suggested he was going with them, and told them to give Members of Congress "the kind of pride and boldness that they need to take back our country."
105. During and after the Defendant's remarks, thousands of people marched toward the Capitol.
The Defendant's Exploitation of the Violence and Chaos at the Capitol
106. Shortly before 1:00 p.m., the Vice President issued a public statement explaining that his role as President of the Senate at the certification proceeding that was about to begin did not include "unilateral authority to determine which electoral votes should be counted and which should not."
107. Before the Defendant had finished speaking, a crowd began to gather at the Capitol. Thereafter, a mass of people -- including individuals who had traveled to Washington and to the Capitol at the Defendant's direction -- broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.
108. The Defendant, who had returned to the White House after concluding his remarks, watched events at the Capitol unfold on the television in the dining room next to the Oval Office.
109. At 2:13 p.m., after more than an hour of steady, violent advancement, the crowd at the Capitol broke into the building.
110. Upon receiving news that individuals had breached the Capitol, the Defendant's advisors told him that there was a riot there and that rioters had breached the building. When advisors urged the Defendant to issue a calming message aimed at the rioters, the Defendant refused, instead repeatedly remarking that the people at the Capitol were angry because the election had been stolen.
111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: "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!"
112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.
113. At the Capitol, throughout the afternoon, members of the crowd chanted, "Hang Mike Pence!"; "Where is Pence? Bring him out!"; and "Traitor Pence!"
114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors -- including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor. Instead, the Defendant issued two Tweets that did not ask rioters to leave the Capitol but instead falsely suggested that the crowd at the Capitol was being peaceful, including:
a. At 2:38 p.m., "Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!"
b. At 3:13 p.m., "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!"
115. At 3:00 p.m., the Defendant had a phone call with the Minority Leader of the United States House of Representatives. The Defendant told the Minority Leader that the crowd at the Capitol was more upset about the election than the Minority Leader was.
116. At 4:17 p.m., the Defendant released a video message on Twitter that he had just taped in the White House Rose Garden. In it, the Defendant repeated the knowingly false claim that "[ w]e had an election that was stolen from us, " and finally asked individuals to leave the Capitol, while telling them that they were "very special" and that "we love you."
117. After the 4:17 p.m. Tweet, as the Defendant joined others in the outer Oval Office to watch the attack on the Capitol on television, the Defendant said, "See, this is what happens when they try to steal an election. These people are angry. These people are really angry about it. This is what happens."
118. At 6:01 p.m., the Defendant tweeted, "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!"
119. On the evening of January 6, the Defendant and Co-Conspirator 1 [Rudy Giuliani] attempted to exploit the violence and chaos at the Capitol by calling lawmakers to convince them, based on knowingly false claims of election fraud, to delay the certification, including:
a. The Defendant, through White House aides, attempted to reach two United States Senators at 6:00 p.m.
b. From 6:59 p.m. until 7:18 p.m., Co-Conspirator 1 [Rudy Giuliani] placed calls to five United States Senators and one United States Representative.
c. Co-Conspirator 6 [Boris Epshteyn] attempted to confirm phone numbers for six United States Senators whom the Defendant had directed Co-Conspirator 1 [Rudy Giuliani] to call and attempt to enlist in further delaying the certification.
d. In one of the calls, Co-Conspirator 1 [Rudy Giuliani] left a voicemail intended for a United States Senator that said, "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 get ourselves into tomorrow -- ideally until the end of tomorrow."
e. In another message intended for another United States Senator, Co-Conspirator 1 [Rudy Giuliani] repeated knowingly false allegations of election fraud, including that the vote counts certified by the states to Congress were incorrect and that the governors who had certified knew they were incorrect; that "illegal immigrants" had voted in substantial numbers in Arizona; and that "Georgia gave you a number in which 65,000 people who were underage voted." Co-Conspirator 1 [Rudy Giuliani] also claimed that the Vice President's actions had been surprising and asked the Senator to "object to every state and kind of spread this out a little bit like a filibuster[.]"
120. At 7:01 p.m., while Co-Conspirator 1 [Rudy Giuliani] was calling United States Senators on behalf of the Defendant, the White House Counsel called the Defendant to ask him to withdraw any objections and allow the certification. The Defendant refused.
121. The attack on the Capitol obstructed and delayed the certification for approximately six hours, until the Senate and House of Representatives came back into session separately at 8:06 p.m. and 9:02 p.m., respectively, and came together in a Joint Session at 11:35 p.m.
122. At 11:44 p.m., Co-Conspirator 2 [John Eastman] emailed the Vice President's Counsel advocating that the Vice President violate the law and seek further delay of the certification. Co-Conspirator 2 [John Eastman] wrote, "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."
123. At 3:41 a.m. on January 7, as President of the Senate, the Vice President announced the certified results of the 2020 presidential election in favor of Biden.
124. The Defendant and his co-conspirators committed one or more of the acts to effect the object of the conspiracy alleged above in Paragraphs 13, 15-16, 18-22, 24, 26, 28, 30-33, 35, 37-39, 41, 43-44, 46, 50, 52, 54, 56, 57-64, 67, 71-75, 78-82, 84, 85, 87-97, 99-100, 102-104, 111, 114, 116, 118-119, and 122.
(In violation of Title 18, United States Code, Section 371)
COUNT TWO
(Conspiracy to Obstruct an Official Proceeding -- 18 U.S.C. § 1512))
125. The allegations contained in paragraphs 1 through 4 and 8 through 123 of this Indictment are re-alleged and fully incorporated here by reference.
126. From on or about November 14, 2020, through on or about January 7, 2021, in the District of Columbia and elsewhere, the Defendant,
DONALD J. TRUMP,
did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote, in violation of Title 18, United States Code, Section 1512(c)(2).
(In violation of Title 18, United States Code, Section 1512(k))
COUNT THREE
(Obstruction of, and Attempt to Obstruct, an Official Proceeding -- 18 U.S.C. §§ 1512(c)(2), 2)
127. The allegations contained in paragraphs 1 through 4 and 8 through 123 of this Indictment are re-alleged and fully incorporated here by reference.
128. From on or about November 14, 2020, through on or about January 7, 2021, in the District of Columbia and elsewhere, the Defendant,
DONALD J. TRUMP,
attempted to, and did, corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote.
(In violation of Title 18, United States Code, Sections 1512(c)(2), 2)
COUNT FOUR
(Conspiracy Against Rights -- 18 U.S.C. § 241)
129. The allegations contained in paragraphs 1 through 4 and 8 through 123 of this Indictment are re-alleged and fully incorporated here by reference.
130. From on or about November 14, 2020, through on or about January 20, 2021, in the District of Columbia and elsewhere, the Defendant,
DONALD J. TRUMP,
did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States -- that is, the right to vote, and to have one's vote counted.
(In violation of Title 18, United States Code, Section 241)
A TRUE BILL
FOREPERSON
JACK SMITH
SPECIAL COUNSEL
UNITED STATES DEPARTMENT OF JUSTICE
The Defendant's Use of Dishonesty. Fraud, and Deceit to Organize Fraudulent Slates of Electors and Cause Them to Transmit False Certificates to Congress
53. As the Defendant's attempts to obstruct the electoral vote through deceit of state officials met with repeated failure, beginning in early December 2020, he and co-conspirators developed a new plan: to marshal individuals who would have served as the Defendant's electors, had he won the popular vote, in seven targeted states -- Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin -- and cause those individuals to make and send to the Vice President and Congress false certifications that they were legitimate electors. Under the plan, the submission of these fraudulent slates would create a fake controversy at the certification proceeding and position the Vice President -- presiding on January 6 as President of the Senate -- to supplant legitimate electors with the Defendant's fake electors and certify the Defendant as president.
54. The plan capitalized on ideas presented in memoranda drafted by Co-Conspirator 5 [Kenneth Chesebro], an attorney who was assisting the Defendant's Campaign with legal efforts related to a recount in Wisconsin. The memoranda evolved over time from a legal strategy to preserve the Defendant's rights to a corrupt plan to subvert the federal government function by stopping Biden electors' votes from being counted and certified, as follows:
a. The November 18 Memorandum ("Wisconsin Memo") advocated that, because of the ongoing recount in Wisconsin, the Defendant's electors there should meet and cast votes on December 14 -- the date the ECA required appointed electors to vote -- to preserve the alternative of the Defendant's Wisconsin elector slate in the event the Defendant ultimately prevailed in the state.
b. The December 6 Memorandum ("Fraudulent Elector Memo") marked a sharp departure from Co-Conspirator 5 [Kenneth Chesebro]'s Wisconsin Memo, advocating that the alternate electors originally conceived of to preserve rights in Wisconsin instead be used in a number of states as fraudulent electors to prevent Biden from receiving the 270 electoral votes necessary to secure the presidency on January 6. The Fraudulent Elector Memo suggested that the Defendant's electors in six purportedly "contested" states (Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin) should meet and mimic as best as possible the actions of the legitimate Biden electors, and that on January 6, the Vice President should open and count the fraudulent votes, setting up a fake controversy that would derail the proper certification of Biden as president-elect.
c. The December 9 Memorandum ("Fraudulent Elector Instructions") consisted of Co-Conspirator 5 [Kenneth Chesebro]'s instructions on how fraudulent electors could mimic legitimate electors in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. Co-Conspirator 5 [Kenneth Chesebro] noted that in some states, it would be virtually impossible for the fraudulent electors to successfully take the same steps as the legitimate electors because state law required formal participation in the process by state officials, or access to official resources.
55. The plan began in early December, and ultimately, the conspirators and the Defendant's Campaign took the Wisconsin Memo and expanded it to any state that the Defendant claimed was "contested" -- even New Mexico, which the Defendant had lost by more than ten percent of the popular vote. This expansion was forecast by emails the Defendant's Chief of Staff sent on December 6, forwarding the Wisconsin Memo to Campaign staff and writing, "We just need to have someone coordinating the electors for states."
56. On December 6, the Defendant and Co-Conspirator 2 [John Eastman] called the Chairwoman of the Republican National Committee to ensure that the plan was in motion. During the call, Co-Conspirator 2 [John Eastman] told the Chairwoman that it was important for the RNC to help the Defendant's Campaign gather electors in targeted states, and falsely represented to her that such electors' votes would be used only if ongoing litigation in one of the states changed the results in the Defendant's favor. After the RNC Chairwoman consulted the Campaign and heard that work on gathering electors was underway, she called and reported this information to the Defendant, who responded approvingly.
57. On December 7, Co-Conspirator 1 [Rudy Giuliani] received the Wisconsin Memo and the Fraudulent Elector Memo. Co-Conspirator 1 [Rudy Giuliani] spoke with Co-Conspirator 6 [Boris Epshteyn] regarding attorneys who could assist in the fraudulent elector effort in the targeted states, and he received from Co-Conspirator 6 [Boris Epshteyn] an email identifying attorneys in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin.
58. The next day, on December 8, Co-Conspirator 5 [Kenneth Chesebro] called the Arizona attorney on Co-Conspirator 6 [Boris Epshteyn]'s list. In an email after the call, the Arizona attorney recounted his conversation with Co-Conspirator 5 [Kenneth Chesebro] as follows:
I just talked to the gentleman who did that memo, [Co-Conspirator 5 [Kenneth Chesebro]]. His idea is 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 the 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 was 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.
59. At Co-Conspirator 1 [Rudy Giuliani]'s direction, on December 10, Co-Conspirator 5 [Kenneth Chesebro] sent to points of contact in all targeted states except Wisconsin (which had already received his memos) and New Mexico a streamlined version of the Wisconsin Memo -- which did not reveal the intended fraudulent use of the Defendant's electors -- and the Fraudulent Elector Instructions, along with fraudulent elector certificates that he had drafted.
60. The next day, on December 11, through Co-Conspirator 5 [Kenneth Chesebro], Co-Conspirator 1 [Rudy Giuliani] suggested that the Arizona lawyer file a petition for certiorari in the Supreme Court as a pretext to claim that litigation was pending in the state, to provide cover for the convening and voting of the Defendant's fraudulent electors there. Co-Conspirator 5 [Kenneth Chesebro] explained that Co-Conspirator 1 [Rudy Giuliani] had heard from a state official and state provisional elector that "it could appear treasonous for the AZ electors to vote on Monday if there is no pending court proceeding .... "
61. To manage the plan in Pennsylvania, on December 12, Co-Conspirator 1 [Rudy Giuliani], Co- Conspirator 5 [Kenneth Chesebro], and Co-Conspirator 6 [Boris Epshteyn] participated in a conference call organized by the Defendant's Campaign with the Defendant's electors in that state. When the Defendant's electors expressed concern about signing certificates representing themselves as legitimate electors, Co-Conspirator 1 [Rudy Giuliani] falsely assured them that their certificates would be used only if the Defendant succeeded in litigation. Subsequently, Co-Conspirator 6 [Boris Epshteyn] circulated proposed conditional language to that effect for potential inclusion in the fraudulent elector certificates. A Campaign official cautioned not to offer the conditional language to other states because "[t]he other States are signing what he prepared -- if it gets out we changed the language for PA it could snowball." In some cases, the Defendant's electors refused to participate in the plan.
62. On December 13, Co-Conspirator 5 [Kenneth Chesebro] sent Co-Conspirator 1 [Rudy Giuliani] an email memorandum that further confirmed that the conspirators' plan was not to use the fraudulent electors only in the circumstance that the Defendant's litigation was successful in one of the targeted states -- instead, the plan was to falsely present the fraudulent slates as an alternative to the legitimate slates at Congress's certification proceeding.
63. On December 13, the Defendant asked the Senior Campaign Advisor for an update on "what was going on" with the elector plan and directed him to "put out [a] statement on electors." As a result, Co-Conspirator 1 [Rudy Giuliani] directed the Senior Campaign Advisor to join a conference call with him, Co-Conspirator 6 [Boris Epshteyn], and others. When the Senior Campaign Advisor related these developments in text messages to the Deputy Campaign Manager, a Senior Advisor to the Defendant, and a Campaign staffer, the Deputy Campaign Manager responded, "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." The Senior Advisor wrote, "Certifying illegal votes." In turn, the participants in the group text message refused to have a statement regarding electors attributed to their names because none of them could "stand by it."
64. Also on December 13, at a Campaign staffer's request, Co-Conspirator 5 [Kenneth Chesebro] drafted and sent fraudulent elector certificates for the Defendant's electors in New Mexico, which had not previously been among the targeted states, and where there was no pending litigation on the Defendant's behalf. The next day, the Defendant's Campaign filed an election challenge suit in New Mexico at 11:54 a.m., six minutes before the noon deadline for the electors' votes, as a pretext so that there was pending litigation there at the time the fraudulent electors voted. 65. On December 14, the legitimate electors of all 50 states and the District of Columbia met in their respective jurisdictions to formally cast their votes for president, resulting in a total of 232 electoral votes for the Defendant and 306 for Biden. The legitimate electoral votes that Biden won in the states that the Defendant targeted, and the Defendant's margin of defeat, were as follows: Arizona (11 electoral votes; 10,457 votes), Georgia (16 electoral votes; 11,779 votes), Michigan (16 electoral votes; 154, 188 votes), Nevada (6 electoral votes; 33, 596 votes), New Mexico (5 electoral votes; 99,720 votes), Pennsylvania (20 electoral votes; 80, 555 votes), and Wisconsin (10 electoral votes; 20,682 votes).
66. On the same day, at the direction of the Defendant and Co-Conspirator 1 [Rudy Giuliani], fraudulent electors convened sham proceedings in the seven targeted states to cast fraudulent electoral ballots in favor of the Defendant. In some states, in order to satisfy legal requirements set forth for legitimate electors under state law, state officials were enlisted to provide the fraudulent electors access to state capitol buildings so that they could gather and vote there. In many cases, however, as Co-Conspirator 5 [Kenneth Chesebro] had predicted in the Fraudulent Elector Instructions, the fraudulent electors were unable to satisfy the legal requirements.
67. Nonetheless, as directed in the Fraudulent Elector Instructions, shortly after the fraudulent electors met on December 14, the targeted states' fraudulent elector certificates were mailed to the President of the Senate, the Archivist of the United States, and others. The Defendant and co-conspirators ultimately used the certificates of these fraudulent electors to deceitfully target the government function, and did so contrary to how fraudulent electors were told they would be used.
68. Unlike those of the fraudulent electors, consistent with the ECA, the legitimate electors' signed certificates were annexed to the state executives' certificates of ascertainment before being sent to the President of the Senate and others.
69. That evening, at 6:26 p.m., the RNC Chairwoman forwarded to the Defendant, through his executive assistant, an email titled, "Electors Recap - Final, " which represented that in "Six Contested States" -- Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin -- the Defendant's electors had voted in parallel to Biden's electors. The Defendant's executive assistant responded, "It's in front of him!"
The Defendant's Attempt to Leverage the Justice Department to Use Deceit to Get State Officials to Replace Legitimate Electors and Electoral Votes with the Defendant's
70. In late December 2020, the Defendant attempted to use the Justice Department to make knowingly false claims of election fraud to officials in the targeted states through a formal letter under the Acting Attorney General's signature, thus giving the Defendant's lies the backing of the federal government and attempting to improperly influence the targeted states to replace legitimate Biden electors with the Defendant's.
71. On December 22, the Defendant met with Co-Conspirator 4 [Jeffrey Clark] at the White House. Co-Conspirator 4 [Jeffrey Clark] had not informed his leadership at the Justice Department of the meeting, which was a violation of the Justice Department's written policy restricting contacts with the White House to guard against improper political influence.
72. On December 26, Co-Conspirator 4 [Jeffrey Clark] spoke on the phone with the Acting Attorney General and lied about the circumstances of his meeting with the Defendant at the White House, falsely claiming that the meeting had been unplanned. The Acting Attorney General directed Co-Conspirator 4 [Jeffrey Clark] not to have unauthorized contacts with the White House again, and Co-Conspirator 4 [Jeffrey Clark] said he would not.
73. The next morning, on December 27, contrary to the Acting Attorney General's direction, Co-Conspirator 4 [Jeffrey Clark] spoke with the Defendant on the Defendant's cell phone for nearly three minutes.
74. That afternoon, the Defendant called the Acting Attorney General and Acting Deputy Attorney General and said, among other things, "People tell me [Co-Conspirator 4 [Jeffrey Clark]] is great. I should put him in." The Defendant also raised multiple false claims of election fraud, which the Acting Attorney General and Acting Deputy Attorney General refuted. When the Acting Attorney General told the Defendant that the Justice Department could not and would not change the outcome of the election, the Defendant responded, "Just say that the election was corrupt and leave the rest to me and the Republican congressmen."
75. On December 28, Co-Conspirator 4 [Jeffrey Clark] sent a draft letter to the Acting Attorney General and Acting Deputy Attorney General, which he proposed they all sign. The draft was addressed to state officials in Georgia, and Co-Conspirator 4 [Jeffrey Clark] proposed sending versions of the letter to elected officials in other targeted states. The proposed letter contained numerous knowingly false claims about the election and the Justice Department, including that:
a. The Justice Department had "identified significant concerns that may have impacted the outcome of the election in multiple States[.]"
b. The Justice Department believed that in Georgia and other states, two valid slates of electors had gathered at the proper location on December 14, and that both sets of ballots had been transmitted to Congress. That is, Co-Conspirator 4 [Jeffrey Clark]'s letter sought to advance the Defendant's fraudulent elector plan by using the authority of the Justice Department to falsely present the fraudulent electors as a valid alternative to the legitimate electors.
c. The Justice Department urged that the state legislature convene a special legislative session to create the opportunity to, among other things, choose the fraudulent electors over the legitimate electors.
76. The Acting Deputy Attorney General promptly responded to Co-Conspirator 4 [Jeffrey Clark] by email and told him that his proposed letter was false, writing, "Despite dramatic claims to the contrary, we have not seen the type of fraud that calls into question the reported (and certified) results of the election." In a meeting shortly thereafter, the Acting Attorney General and Acting Deputy Attorney General again directed Co-Conspirator 4 [Jeffrey Clark] not to have unauthorized contact with the White House.
77. On December 31, the Defendant summoned to the Oval Office the Acting Attorney General, Acting Deputy Attorney General, and other advisors. In the meeting, the Defendant again raised claims about election fraud that Justice Department officials already had told him were not true -- and that the senior Justice Department officials reiterated were false -- and suggested he might change the leadership in the Justice Department.
78. On January 2, 2021, just four days before Congress's certification proceeding, Co-Conspirator 4 [Jeffrey Clark] tried to coerce the Acting Attorney General and Acting Deputy Attorney General to sign and send Co-Conspirator 4 [Jeffrey Clark]'s draft letter, which contained false statements, to state officials. He told them that the Defendant was considering making Co-Conspirator 4 [Jeffrey Clark] the new Acting Attorney General, but that Co-Conspirator 4 [Jeffrey Clark] would decline the Defendant's offer if the Acting Attorney General and Acting Deputy Attorney General would agree to send the proposed letter to the targeted states. The Justice Department officials refused.
79. The next morning, on January 3, despite having uncovered no additional evidence of election fraud, Co-Conspirator 4 [Jeffrey Clark] sent to a Justice Department colleague an edited version of his draft letter to the states, which included a change from its previous claim that the Justice Department had "concerns" to a stronger false claim that "[a]s of today, there is evidence of significant irregularities that may have impacted the outcome of the election in multiple States .... "
80. Also on the morning of January 3, Co-Conspirator 4 [Jeffrey Clark] met with the Defendant at the White House -- again without having informed senior Justice Department officials -- and accepted the Defendant's offer that he become Acting Attorney General.
81. On the afternoon of January 3, Co-Conspirator 4 [Jeffrey Clark] spoke with a Deputy White House Counsel. The previous month, the Deputy White House Counsel had informed the Defendant that "there is no world, there is no option in which you do not leave the White House [o]n January 20th." Now, the same Deputy White House Counsel tried to dissuade Co-Conspirator 4 [Jeffrey Clark] from assuming the role of Acting Attorney General. The Deputy White House Counsel reiterated to Co-Conspirator 4 [Jeffrey Clark] that there had not been outcome-determinative fraud in the election and that if the Defendant remained in office nonetheless, there would be "riots in every major city in the United States." Co-Conspirator 4 [Jeffrey Clark] responded, "Well, [Deputy White House Counsel], that's why there's an Insurrection Act."
82. Also that afternoon, Co-Conspirator 4 [Jeffrey Clark] met with the Acting Attorney General and told him that the Defendant had decided to put Co-Conspirator 4 [Jeffrey Clark] in charge of the Justice Department. The Acting Attorney General responded that he would not accept being fired by a subordinate and immediately scheduled a meeting with the Defendant for that evening.
83. On the evening of January 3, the Defendant met for a briefing on an overseas national security issue with the Chairman of the Joint Chiefs of Staff and other senior national security advisors. The Chairman briefed the Defendant on the issue -- which had previously arisen in December -- as well as possible ways the Defendant could handle it. When the Chairman and another advisor recommended that the Defendant take no action because Inauguration Day was only seventeen days away and any course of action could trigger something unhelpful, the Defendant calmly agreed, stating, "Yeah, you're right, it's too late for us. We're going to give that to the next guy."
84. The Defendant moved immediately from this national security briefing to the meeting that the Acting Attorney General had requested earlier that day, which included Co-Conspirator 4 [Jeffrey Clark], the Acting Attorney General, the Acting Deputy Attorney General, the Justice Department's Assistant Attorney General for the Office of Legal Counsel, the White House Counsel, a Deputy White House Counsel, and a Senior Advisor. At the meeting, the Defendant expressed frustration with the Acting Attorney General for failing to do anything to overturn the election results, and the group discussed Co-Conspirator 4 [Jeffrey Clark]'s plans to investigate purported election fraud and to send his proposed letter to state officials -- a copy of which was provided to the Defendant during the meeting. The Defendant relented in his plan to replace the Acting Attorney General with Co-Conspirator 4 [Jeffrey Clark] only when he was told that it would result in mass resignations at the Justice Department and of his own White House Counsel.
85. At the meeting in the Oval Office on the night of January 3, Co-Conspirator 4 [Jeffrey Clark] suggested that the Justice Department should opine that the Vice President could exceed his lawful authority during the certification proceeding and change the election outcome. When the Assistant Attorney General for the Office of Legal Counsel began to explain why the Justice Department should not do so, the Defendant said, "No one here should be talking to the Vice President. I'm talking to the Vice President, " and ended the discussion.
The Defendant's Attempts to Enlist the Vice President to Fraudulently Alter the Election Results at the January 6 Certification Proceeding
86. As the January 6 congressional certification proceeding approached and other efforts to impair, obstruct, and defeat the federal government function failed, the Defendant sought to enlist the Vice President to use his ceremonial role at the certification to fraudulently alter the election results. The Defendant did this first by using knowingly false claims of election fraud to convince the Vice President to accept the Defendant's fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than count them. When that failed, the Defendant attempted to use a crowd of supporters that he had gathered in Washington, D.C., to pressure the Vice President to fraudulently alter the election results.
87. On December 19, 2020, after cultivating widespread anger and resentment for weeks with his knowingly false claims of election fraud, the Defendant urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, "Big protest in D.C. on January 6th. Be there, will be wild!" Throughout late December, he repeatedly urged his supporters to come to Washington for January 6.
88. On December 23, the Defendant re-tweeted a memo titled "Operation 'PENCE' CARD, " which falsely asserted that the Vice President could, among other things, unilaterally disqualify legitimate electors from six targeted states.
89. On the same day, Co-Conspirator 2 [John Eastman] circulated a two-page memorandum outlining a plan for the Vice President to unlawfully declare the Defendant the certified winner of the presidential election. In the memorandum, Co-Conspirator 2 [John Eastman] claimed that seven states had transmitted two slates of electors and proposed that the Vice President announce that "because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States." Next, Co-Conspirator 2 [John Eastman] proposed steps that he acknowledged violated the ECA, advocating that, in the end, "Pence then gavels President Trump as re-elected." Just two months earlier, on October 11, Co-Conspirator 2 [John Eastman] had taken the opposite position, writing that neither the Constitution nor the ECA provided the Vice President discretion in the counting of electoral votes, or permitted him to "make the determination on his own."
90. On several private phone calls in late December and early January, the Defendant repeated knowingly false claims of election fraud and directly pressured the Vice President to use his ceremonial role at the certification proceeding on January 6 to fraudulently overturn the results of the election, and the Vice President resisted, including:
a. On December 25, when the Vice President called the Defendant to wish him a Merry Christmas, the Defendant quickly turned the conversation to January 6 and his request that the Vice President reject electoral votes that day. The Vice President pushed back, telling the Defendant, as the Vice President already had in previous conversations, "You know I don't think I have the authority to change the outcome."
b. On December 29, as reflected in the Vice President's contemporaneous notes, the Defendant falsely told the Vice President that the "Justice Dept [was] finding major infractions."
c. On January 1, the Defendant called the Vice President and berated him because he had learned that the Vice President had opposed a lawsuit seeking a judicial decision that, at the certification, the Vice President had the authority to reject or return votes to the states under the Constitution. The Vice President responded that he thought there was no constitutional basis for such authority and that it was improper. In response, the Defendant told the Vice President, "You're too honest." Within hours of the conversation, the Defendant reminded his supporters to meet in Washington before the certification proceeding, tweeting, "The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!"
d. On January 3, the Defendant again told the Vice President that at the certification proceeding, the Vice President had the absolute right to reject electoral votes and the ability to overturn the election. The Vice President responded that he had no such authority, and that a federal appeals court had rejected the lawsuit making that claim the previous day.
91. On January 3, Co-Conspirator 2 [John Eastman] circulated a second memorandum that included a new plan under which, contrary to the ECA, the Vice President would send the elector slates to the state legislatures to determine which slate to count.
92. On January 4, the Defendant held a meeting with Co-Conspirator 2 [John Eastman], the Vice President, the Vice President's Chief of Staff, and the Vice President's Counsel for the purpose of convincing the Vice President, based on the Defendant's knowingly false claims of election fraud, that the Vice President should reject or send to the states Biden's legitimate electoral votes, rather than count them. The Defendant deliberately excluded his White House Counsel from the meeting because the White House Counsel previously had pushed back on the Defendant's false claims of election fraud.
93. During the meeting, as reflected in the Vice President's contemporaneous notes, the Defendant made knowingly false claims of election fraud, including, "Bottom line -- won every state by 100,000s of votes" and "We won every state, " and asked -- regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before -- "What about 205,000 votes more in PA than voters?" The Defendant and Co-Conspirator 2 [John Eastman] then asked the Vice President to either unilaterally reject the legitimate electors from the seven targeted states, or send the question of which slate was legitimate to the targeted states' legislatures. When the Vice President challenged Co-Conspirator 2 [John Eastman] on whether the proposal to return the question to the states was defensible, Co-Conspirator 2 [John Eastman] responded, "Well, nobody's tested it before." The Vice President then told the Defendant, "Did you hear that? Even your own counsel is not saying I have that authority." The Defendant responded, "That's okay, I prefer the other suggestion" of the Vice President rejecting the electors unilaterally.
94. Also on January 4, when Co-Conspirator 2 [John Eastman] acknowledged to the Defendant's Senior Advisor that no court would support his proposal, the Senior Advisor told Co-Conspirator 2 [John Eastman], "[Y]ou're going to cause riots in the streets." Co-Conspirator 2 [John Eastman] responded that there had previously been points in the nation's history where violence was necessary to protect the republic. After that conversation, the Senior Advisor notified the Defendant that Co-Conspirator 2 [John Eastman] had conceded that his plan was "not going to work."
95. On the morning of January 5, at the Defendant's direction, the Vice President's Chief of Staff and the Vice President's Counsel met again with Co-Conspirator 2 [John Eastman]. Co-Conspirator 2 [John Eastman] now advocated that the Vice President do what the Defendant had said he preferred the day before: unilaterally reject electors from the targeted states. During this meeting, Co-Conspirator 2 [John Eastman] privately acknowledged to the Vice President's Counsel that he hoped to prevent judicial review of his proposal because he understood that it would be unanimously rejected by the Supreme Court. The Vice President's Counsel expressed to Co-Conspirator 2 [John Eastman] that following through with the proposal would result in a "disastrous situation" where the election might "have to be decided in the streets."
96. That same day, the Defendant encouraged supporters to travel to Washington on January 6, and he set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in the Defendant's favor, including issuing the following Tweets:
a. At 11:06 a.m., "The Vice President has the power to reject fraudulently chosen electors." This was within 40 minutes of the Defendant's earlier reminder, "See you in D.C."
b. At 5:05 p.m., "Washington is being inundated with people who don't want to see an election victory stolen .... Our Country has had enough, they won't take it anymore! We hear you (and love you) from the Oval Office."
c. At 5:43 p.m., "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!"
97. Also on January 5, the Defendant met alone with the Vice President. When the Vice President refused to agree to the Defendant's request that he obstruct the certification, the Defendant grew frustrated and told the Vice President that the Defendant would have to publicly criticize him. Upon learning of this, the Vice President's Chief of Staff was concerned for the Vice President's safety and alerted the head of the Vice President's Secret Service detail.
98. As crowds began to gather in Washington and were audible from the Oval Office, the Defendant remarked to advisors that the crowd the following day on January 6 was going to be "angry."
99. That night, the Defendant approved and caused the Defendant's Campaign to issue a public statement that the Defendant knew, from his meeting with the Vice President only hours earlier, was false: "The Vice President and I are in total agreement that the Vice President has the power to act."
100. On January 6, starting in the early morning hours, the Defendant again turned to knowingly false statements aimed at pressuring the Vice President to fraudulently alter the election outcome, and raised publicly the false expectation that the Vice President might do so:
a. At 1:00 a.m., the Defendant issued a Tweet that falsely claimed, "If 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!"
b. At 8:17 a.m., the Defendant issued a Tweet that falsely stated, "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!"
101. On the morning of January 6, an agent of the Defendant contacted a United States Senator to ask him to hand-deliver documents to the Vice President. The agent then facilitated the receipt by the Senator's staff of the fraudulent certificates signed by the Defendant's fraudulent electors in Michigan and Wisconsin, which were believed not to have been delivered to the Vice President or Archivist by mail. When one of the Senator's staffers contacted a staffer for the Vice President by text message to arrange for delivery of what the Senator's staffer had been told were "[a]lternate slate[s] of electors for MI and WI because archivist didn't receive them, " the Vice President's staffer rejected them.
102. At 11:15 a.m., the Defendant called the Vice President and again pressured him to fraudulently reject or return Biden's legitimate electoral votes. The Vice President again refused. Immediately after the call, the Defendant decided to single out the Vice President in public remarks he would make within the hour, reinserting language that he had personally drafted earlier that morning -- falsely claiming that the Vice President had authority to send electoral votes to the states-but that advisors had previously successfully advocated be removed.
103. Earlier that morning, the Defendant had selected Co-Conspirator 2 [John Eastman] to join Co- Conspirator 1 [Rudy Giuliani] in giving public remarks before his own. When they did so, based on knowingly false election fraud claims, Co-Conspirator 1 [Rudy Giuliani] and Co-Conspirator 2 [John Eastman] intensified pressure on the Vice President to fraudulently obstruct the certification proceeding:
a. Co-Conspirator 1 [Rudy Giuliani] told the crowd that the Vice President could "cast [the ECA] aside" and unilaterally "decide on the validity of these crooked ballots[.]" He also lied when he claimed to "have letters from five legislatures begging us" to send elector slates to the legislatures for review, and called for "trial by combat."
b. Co-Conspirator 2 [John Eastman] told the crowd, "[A]ll we are demanding of Vice President Pence is this afternoon at one o'clock he let the legislatures of the state look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not. We no longer live in a self-governing republic if we can't get the answer to this question."
104. Next, beginning at 11:56 a.m., the Defendant made multiple knowingly false statements integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others' right to vote and have their votes counted. The Defendant repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification. The Defendant's knowingly false statements for these purposes included:
a. The Defendant falsely claimed that, based on fraud, the Vice President could alter the outcome of the election results, stating:
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. All he has to do -- all, this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country -- he has the absolute right to do it. We're supposed to protect our country, support our country, support our Constitution, and protect our Constitution.
States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.
b. After the Defendant falsely stated that the Pennsylvania legislature wanted "to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back, " the crowd began to chant, "Send it back."
c. The Defendant also said that regular rules no longer applied, stating, "And fraud breaks up everything, doesn't it? When you catch somebody in a fraud, you're allowed to go by very different rules."
d. Finally, after exhorting that "we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore, " the Defendant directed the people in front of him to head to the Capitol, suggested he was going with them, and told them to give Members of Congress "the kind of pride and boldness that they need to take back our country."
105. During and after the Defendant's remarks, thousands of people marched toward the Capitol.
The Defendant's Exploitation of the Violence and Chaos at the Capitol
106. Shortly before 1:00 p.m., the Vice President issued a public statement explaining that his role as President of the Senate at the certification proceeding that was about to begin did not include "unilateral authority to determine which electoral votes should be counted and which should not."
107. Before the Defendant had finished speaking, a crowd began to gather at the Capitol. Thereafter, a mass of people -- including individuals who had traveled to Washington and to the Capitol at the Defendant's direction -- broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.
108. The Defendant, who had returned to the White House after concluding his remarks, watched events at the Capitol unfold on the television in the dining room next to the Oval Office.
109. At 2:13 p.m., after more than an hour of steady, violent advancement, the crowd at the Capitol broke into the building.
110. Upon receiving news that individuals had breached the Capitol, the Defendant's advisors told him that there was a riot there and that rioters had breached the building. When advisors urged the Defendant to issue a calming message aimed at the rioters, the Defendant refused, instead repeatedly remarking that the people at the Capitol were angry because the election had been stolen.
111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: "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!"
112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.
113. At the Capitol, throughout the afternoon, members of the crowd chanted, "Hang Mike Pence!"; "Where is Pence? Bring him out!"; and "Traitor Pence!"
114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors -- including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor. Instead, the Defendant issued two Tweets that did not ask rioters to leave the Capitol but instead falsely suggested that the crowd at the Capitol was being peaceful, including:
a. At 2:38 p.m., "Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!"
b. At 3:13 p.m., "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!"
115. At 3:00 p.m., the Defendant had a phone call with the Minority Leader of the United States House of Representatives. The Defendant told the Minority Leader that the crowd at the Capitol was more upset about the election than the Minority Leader was.
116. At 4:17 p.m., the Defendant released a video message on Twitter that he had just taped in the White House Rose Garden. In it, the Defendant repeated the knowingly false claim that "[ w]e had an election that was stolen from us, " and finally asked individuals to leave the Capitol, while telling them that they were "very special" and that "we love you."
117. After the 4:17 p.m. Tweet, as the Defendant joined others in the outer Oval Office to watch the attack on the Capitol on television, the Defendant said, "See, this is what happens when they try to steal an election. These people are angry. These people are really angry about it. This is what happens."
118. At 6:01 p.m., the Defendant tweeted, "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!"
119. On the evening of January 6, the Defendant and Co-Conspirator 1 [Rudy Giuliani] attempted to exploit the violence and chaos at the Capitol by calling lawmakers to convince them, based on knowingly false claims of election fraud, to delay the certification, including:
a. The Defendant, through White House aides, attempted to reach two United States Senators at 6:00 p.m.
b. From 6:59 p.m. until 7:18 p.m., Co-Conspirator 1 [Rudy Giuliani] placed calls to five United States Senators and one United States Representative.
c. Co-Conspirator 6 [Boris Epshteyn] attempted to confirm phone numbers for six United States Senators whom the Defendant had directed Co-Conspirator 1 [Rudy Giuliani] to call and attempt to enlist in further delaying the certification.
d. In one of the calls, Co-Conspirator 1 [Rudy Giuliani] left a voicemail intended for a United States Senator that said, "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 get ourselves into tomorrow -- ideally until the end of tomorrow."
e. In another message intended for another United States Senator, Co-Conspirator 1 [Rudy Giuliani] repeated knowingly false allegations of election fraud, including that the vote counts certified by the states to Congress were incorrect and that the governors who had certified knew they were incorrect; that "illegal immigrants" had voted in substantial numbers in Arizona; and that "Georgia gave you a number in which 65,000 people who were underage voted." Co-Conspirator 1 [Rudy Giuliani] also claimed that the Vice President's actions had been surprising and asked the Senator to "object to every state and kind of spread this out a little bit like a filibuster[.]"
120. At 7:01 p.m., while Co-Conspirator 1 [Rudy Giuliani] was calling United States Senators on behalf of the Defendant, the White House Counsel called the Defendant to ask him to withdraw any objections and allow the certification. The Defendant refused.
121. The attack on the Capitol obstructed and delayed the certification for approximately six hours, until the Senate and House of Representatives came back into session separately at 8:06 p.m. and 9:02 p.m., respectively, and came together in a Joint Session at 11:35 p.m.
122. At 11:44 p.m., Co-Conspirator 2 [John Eastman] emailed the Vice President's Counsel advocating that the Vice President violate the law and seek further delay of the certification. Co-Conspirator 2 [John Eastman] wrote, "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."
123. At 3:41 a.m. on January 7, as President of the Senate, the Vice President announced the certified results of the 2020 presidential election in favor of Biden.
124. The Defendant and his co-conspirators committed one or more of the acts to effect the object of the conspiracy alleged above in Paragraphs 13, 15-16, 18-22, 24, 26, 28, 30-33, 35, 37-39, 41, 43-44, 46, 50, 52, 54, 56, 57-64, 67, 71-75, 78-82, 84, 85, 87-97, 99-100, 102-104, 111, 114, 116, 118-119, and 122.
(In violation of Title 18, United States Code, Section 371)
COUNT TWO
(Conspiracy to Obstruct an Official Proceeding -- 18 U.S.C. § 1512))
125. The allegations contained in paragraphs 1 through 4 and 8 through 123 of this Indictment are re-alleged and fully incorporated here by reference.
126. From on or about November 14, 2020, through on or about January 7, 2021, in the District of Columbia and elsewhere, the Defendant,
DONALD J. TRUMP,
did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote, in violation of Title 18, United States Code, Section 1512(c)(2).
(In violation of Title 18, United States Code, Section 1512(k))
COUNT THREE
(Obstruction of, and Attempt to Obstruct, an Official Proceeding -- 18 U.S.C. §§ 1512(c)(2), 2)
127. The allegations contained in paragraphs 1 through 4 and 8 through 123 of this Indictment are re-alleged and fully incorporated here by reference.
128. From on or about November 14, 2020, through on or about January 7, 2021, in the District of Columbia and elsewhere, the Defendant,
DONALD J. TRUMP,
attempted to, and did, corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote.
(In violation of Title 18, United States Code, Sections 1512(c)(2), 2)
COUNT FOUR
(Conspiracy Against Rights -- 18 U.S.C. § 241)
129. The allegations contained in paragraphs 1 through 4 and 8 through 123 of this Indictment are re-alleged and fully incorporated here by reference.
130. From on or about November 14, 2020, through on or about January 20, 2021, in the District of Columbia and elsewhere, the Defendant,
DONALD J. TRUMP,
did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States -- that is, the right to vote, and to have one's vote counted.
(In violation of Title 18, United States Code, Section 241)
A TRUE BILL
FOREPERSON
JACK SMITH
SPECIAL COUNSEL
UNITED STATES DEPARTMENT OF JUSTICE
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