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 Congress53. 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's70. 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 Proceeding86. 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 Capitol106. 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
