USA v Trump: Government's Motion for Immunity Determinations

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E. The Defendant Attempted to Persuade Pence to Reject Votes Cast by Duly Appointed Electors and Choose the Defendant's Fraudulent Ones

As the defendant's various attempts to target the states failed, and the January 6 congressional certification approached, the defendant and co-conspirators turned their attention to Pence, who as President of the Senate presided over the certification proceeding. In service of a new plan -- to enlist Pence to use his role to fraudulently alter the election results at the January 6 certification proceeding -- the defendant and his co-conspirators again used deceit. They lied to Pence, telling him that there was substantial election fraud and concealing their orchestration of the plan to manufacture fraudulent elector slates, as well as their intention to use the fake slates to attempt to obstruct the congressional certification. And they lied to the public, falsely claiming that Pence had the authority during the certification proceeding to reject electoral votes, send them back to the states, or overturn the election -- and that Pence agreed he had these boundless powers. With these lies, the defendant created the tinderbox that he purposely ignited on January 6.

The defendant first publicly turned his sights toward January 6 in the early morning hours of December 19. At 1:42 a.m., the defendant posted on Twitter a copy of a report falsely alleging fraud and wrote, " . . . Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!" 319 When [KENNETH CHESEBRO] learned about the Tweet, he sent a link about it to another of the Wisconsin attorneys who had met with the defendant in the Oval Office on December 16 and wrote, "Wow. Based on 3 days ago, I think we have unique understanding of this." 320 Later on December 19, the defendant called Pence and told him of plans for a rally on January 6 and said that he thought it would be a "big day" and good to have lots of their supporters in town. 321

The defendant and his co-conspirators recognized that Pence, by virtue of his ministerial role presiding over the January 6 congressional certification, would need to be a key part of their plan to obstruct the certification proceeding. On December 23, in a memorandum drafted with [KENNETH CHESEBRO] assistance, [JOHN EASTMAN] outlined a plan for Pence to "gavel" in the defendant as the winner of the election based on the false claim that "7 states have transmitted dual slates of electors to the President of the Senate," and proposed that Pence announce that "because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States." 322 [JOHN EASTMAN] emphasized concealment, writing that "the main thing here" was that Pence act without "asking for permission -- either from a vote of the Joint Session or from the Court." 323

[JOHN EASTMAN] memorandum stood in stark contrast to concessions he had previously made about the Vice President's lack of authority in the certification proceeding. Two months earlier, on October 11, he had written to a colleague that neither the Constitution nor the ECA provided the Vice President with discretion in the counting of electoral votes or permitted him to "make the determination on his own." 324 And just one day earlier, on December 22, when asked by other private attorneys to provide views on a draft complaint that would, if filed, have raised the issue of the Vice President's authority on January 6, [JOHN EASTMAN] had recommended that the complaint not be filed. 325 He wrote that "the risk of getting a court ruling that Pence has no authority to reject the Biden-certified ballots [is] very high."326

On the evening of December 23, and[RUDY GIULIANI] shared [JOHN EASTMAN] and [KENNETH CHESEBRO] plan with the defendant, the defendant publicly re-tweeted a document called "Operation Pence Card," which, like [JOHN EASTMAN]'s memorandum, advocated that Pence block the lawful certification of the legitimate electoral votes.327 Also on December 23, [JOHN EASTMAN] emailed [MOLLY MICHAEL, TRUMP EXEC. ASSIST.] asking to speak to the defendant "to update him on our overall strategic thinking." 328 The following day, December 24, the defendant called [JOHN EASTMAN] and they spoke for forty minutes. 329 Then on December 25, [KENNETH CHESEBRO] proposed in a text message to [JOHN EASTMAN] and [BORIS EPSHTEYN] that Pence permit an unlimited filibuster of the certification, in violation of the ECA, and ultimately gavel in the defendant as president. 330 When [JOHN EASTMAN] asked, "Is Pence really likely to be on board with this?" [BORIS EPSHTEYN] responded, "Let's keep this off text for now." 331

From that point on, the conspirators plotted to manipulate Pence. [RUDY GIULIANI], [JOHN EASTMAN], [BORIS EPSHTEYN] and [STEVE BANNON] worked in concert to enlist Pence to act unlawfully, and to rachet up public pressure from the defendant's supporters that he do so. The defendant began to directly and repeatedly pressure Pence at the same time that he continued summoning his supporters to amass in Washington, D.C., on the day of the congressional cel1ification. On December 25, when Pence called the defendant to wish him a Merry Christmas, the defendant raised the certification and told Pence that he had discretion in his role as President of the Senate. 332 Pence emphatically responded, "You know I don't think I have the authority to change the outcome." 339 The next day, the defendant tweeted, "Never give up. See everyone in D.C. on January 6th." 334 He also tweeted false fraud claims: "Time for Republican Senators to step up and fight for the Presidency, like the Democrats would do if they had actually won. The proof is irrefutable! Massive late night mail-in ballot drops in swing states, shifting the ballot boxes (on video), double voters, dead voters, fake signatures, illegal immigrant voters, banned Republican vote watchers, MORE VOTES THAN ACTUAL VOTERS (check out Detroit & Philadelphia), and much more. The numbers are far greater than what is necessary to win the individual swing states, and cannot even be contested. Courts are bad, the FBI and 'Justice' didn't do their job, and the United States Election System looks like that of a third world country. Freedom of the press has been gone for a long time, it is Fake News, and now we have Big Tech (with Section 230) to deal with. But when it is all over, and this period of time becomes just another ugly chapter in our Country's history, WE WILL WIN!!!" 335

On December 28, [JOHN EASTMAN], [KENNETH CHESEBRO] and [BORIS EPSHTEYN] exchanged text messages in which [JOHN EASTMAN] expressed concern that Gohmert v. Pence -- a lawsuit filed the day before that asserted that Pence had discretion to choose electoral votes during the certification proceeding -- would prompt a federal court to publicly reject, and thus preclude, the plan that the conspirators were advancing in private. 336 Thereafter, at 11:00 a.m. on January 1, the defendant called Pence to berate him because he had learned that Pence had filed a brief opposing the relief sought in Gohmert. 337 When Pence explained, as he had before, that he did not believe that he had the power under the Constitution to decide which votes to accept, the defendant told him that "hundreds of thousands" of people "are gonna hate your guts" and "people are gonna think you're stupid," and berated him pointedly, "You're too honest." 338 Immediately before the call, the defendant had spoken separately to [RUDY GIULIANI] (from 10:06 a.m. to 10:14 a.m.) and [STEVE BANNON] (from 10:36 a.m. to 10:46 a.m.), and late that afternoon, the defendant spoke separately with [STEVE BANNON], [JOHN EASTMAN] and [RUDY GIULIANI]. 339 Within hours of the call with Pence, the defendant reminded supporters to travel to Washington for the certification proceeding, tweeting, "The BIG Protest Rally in Washington, D.C., will take place at 11:00 A.M. on January 6th. Locational details to follow. StopTheSteal!" 340

The next day, on January 2, [RUDY GIULIANI], [JOHN EASTMAN] and [BORIS EPSHTEYN] appeared on [STEVE BANNON] podcast. 341 When [STEVE BANNON] asked whether the January 6 certification would be "a climactic battle," responded that "a lot of that depends on the courage and the spine of the individuals [JOHN EASTMAN] involved." 342 The defendant spoke shortly after his appearance on the podcast. 343 That afternoon, [BORIS EPSHTEYN] worked to arrange a meeting among the defendant, [JOHN EASTMAN] and Pence in order to enlist Pence to misuse his role as President of the Senate at the certification proceeding. 344 When [BORIS EPSHTEYN] texted [STEVE BANNON] about the meeting, [STEVE BANNON], who had just finished a phone call with the defendant -- reiterated that the defendant wanted Pence "briefed" by [JOHN EASTMAN] immediately. 345 Thereafter, the defendant called Pence, informing him "that he had spent the day speaking to a secretary of state, state legislators, and members of Congress." 346 (As described supra pp. 29-31, the defendant spoke with Georgia Secretary of State, [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] the same day.) On the call with Pence, the defendant said he had learned that a U.S. Senator was going to propose a ten-day delay in the certification proceeding, and told Pence, "you can make the decision" to delay the count for ten days. 347 The defendant then referred Pence to [JOHN EASTMAN] for the first time and asked if Pence would meet with him. 348

On January 3, the defendant again told Pence that at the certification proceeding, Pence had the absolute right to reject electoral votes and the ability to overturn the election. 349 Pence responded that he had no such authority, and that a federal appeals court had rejected a lawsuit making that claim the previous day. 350 Then, the defendant took to Twitter to again falsely claim that fraud had permeated the election: "Sorry, but the number of votes in the Swing States that we are talking about is VERY LARGE and totally OUTCOME DETERMINATIVE! Only the Democrats and some RINO'S would dare dispute this - even though they know it is true!" 351 The same day, [JOHN EASTMAN] circulated a second memorandum that included a new plan under which, in violation of the ECA, the Vice President would send the elector slates to the state legislatures to determine which slate to count. 352

The meeting that [BORIS EPSHTEYN] had organized so that the defendant and [JOHN EASTMAN] could enlist Pence to reject Biden's legitimate electoral votes was scheduled late in the afternoon of January 4. 353 In advance of the meeting, [RUDY GIULIANI], [JOHN EASTMAN], [BORIS EPSHTEYN] and [STEVE BANNON] gathered at the Willard Hotel near the White House, and from there, [RUDY GIULIANI] called and spoke with the defendant. 354 When [JOHN EASTMAN] arrived at the White House for the meeting, [ERIC HERSCHMANN, WHITE HOUSE LAWYER] confronted [JOHN EASTMAN] about the legal basis for his proposal. 355 [ERIC HERSCHMANN, WHITE HOUSE LAWYER] went line by line through [JOHN EASTMAN]'s second memo, and [JOHN EASTMAN] conceded that no court would support it; in response, in response, [ERIC HERSCHMANN, WHITE HOUSE LAWYER] warned [JOHN EASTMAN] that pressing his admittedly unlawful plan would cause "riots in the streets." 356 [ERIC HERSCHMANN, WHITE HOUSE LAWYER] then spoke to the defendant, telling him that the theory that [JOHN EASTMAN] and others were promoting would not work, and that [JOHN EASTMAN] had acknowledged that it was "not going to work"; the defendant responded, "other people disagree" but did not identify those other people. 357 [ERIC HERSCHMANN, WHITE HOUSE LAWYER] also pointed out to the defendant that [JOHN EASTMAN]'s theory regarding a strategic Democratic plan to subvert the election was inconsistent with other allegations that had been floating around about [DOMINION VOTING SYSTEMS] and foreign interference. 358

The meeting among the defendant, [JOHN EASTMAN], Pence, and Pence staffers [MARK SHORT, MIKE PENCE CHIEF OF STAFF] and [GREG JACOB, PENCE GENL. COUNSEL] began around 4:45 p.m. 359 No one from the defendant's White House Counsel's Office attended. 360 During the meeting, the defendant asked [JOHN EASTMAN] to explain his plan to Pence. 361 [JOHN EASTMAN] resented two options: Pence could unilaterally decide objections to electors, or alternatively, in the plan that [JOHN EASTMAN] had devised the prior day, Pence could send the elector slates to the targeted states' legislatures to determine which electors' votes should be counted. 362 In the defendant's presence, in response to Pence's questioning, [JOHN EASTMAN] admitted that the ECA forbade what he proposed and that no one had tested [JOHN EASTMAN]'s new plan to send elector slates to state legislatures for review. 363 Nonetheless, the defendant repeatedly expressed a preference that Pence unilaterally reject valid elector slates. 364

Throughout the meeting, the defendant repeated his knowingly false fraud claims as a purported basis for Pence to act illegally. Pence's five pages of contemporaneous notes from the meeting reflect that the defendant said, "when there's fraud the rules get changed"; "bottom line -- won every state by 100,000s of votes"; "this whole thing is up to MP"; "has to do w/you -- you can be bold"; and "r[igh]t to do whatever you want to do." 365 The meeting concluded with Pence -- firm and clear -- telling the defendant "I 'm not seeing this argument working." 366 Nonetheless, the defendant requested that Pence's staff meet with [JOHN EASTMAN] again to discuss further, and Pence agreed. 367

The conspirators were undeterred. Immediately after leaving the White House, [JOHN EASTMAN] gathered with [BORIS EPSHTEYN] and [STEVE BANNON] back at the Willard Hotel. 368 Over the days that followed, these conspirators strategized on could influence Pence through the Vice President's counsel, and normalized the unlawful plan by discussing it on [STEVE BANNON] podcast. 369 Meanwhile, the defendant continued to pressure Pence publicly.

For his part, immediately upon leaving the meeting with Pence, the defendant traveled to Dalton, Georgia, to speak at a political rally at the invitation of two U.S. Senators engaged in run-off elections there. 370 During his political speech, the defendant promoted many of the same falsehoods that he previously had been informed were untrue. He said, "they're not taking the White House. We're gonna fight like hell, I'll tell you right now," and remarked, "I hope Mike Pence comes through for us, I have to tell you. I hope that our great Vice President, our great Vice President comes through for us . . . Of course, if he doesn't come through, I won' t like him quite as much." 371 He also used the Dalton Campaign speech as a call to action to his own supporters, telling the crowd that " [ i]f you don't fight to save your country with everything you have, you 're not going to have a country left," 372 and demanded that his supporters take action to prevent what he falsely called "the outright stealing of elections, like they're trying to do with US," 373 emphasizing, we "can't let that happen." 374

The next morning, on January 5, the defendant spoke on the phone with [STEVE BANNON]. 375 Less than two hours later, on his podcast, [STEVE BANNON] said in anticipation of the January 6 certification proceeding, "All Hell is going to break loose tomorrow." 376

Also on the morning of January 5, [JOHN EASTMAN] participated in a federal court hearing in Trump v. Kemp, 377 the Georgia lawsuit against [GOV. BRIAN KEMP (R)] and [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] in which the defendant had signed a false verification days earlier. 378 [JOHN EASTMAN], on the defendant's behalf, asked the federal court to decertify the presidential election in Georgia and declare that the state legislature may choose the state's electors. 379 During the hearing, the federal court denied the relief requested. 380

Immediately following the federal court's rejection of the legal basis for the conspirators' plan, [JOHN EASTMAN] went to the meeting that the defendant had requested that Pence's staff, [GREG JACOB, PENCE GENL. COUNSEL] and [MARK SHORT, MIKE PENCE CHIEF OF STAFF] take. 381 At the outset, [JOHN EASTMAN] changed his tack and advocated that Pence simply reject the Biden electors outright. 382 This was contrary to his primary recommendation the day before for Pence to send the slates to the state legislatures, but consistent with the preference the defendant had expressed. 383 [JOHN EASTMAN] made additional concessions during this meeting. For example, [JOHN EASTMAN] agreed that the Supreme Court would unanimously reject his proposed action, consistent historical practice since the Founding was that the Vice President never asserted authority to reject electors, no reasonable person would want the Constitution read that way because the office would never switch political parties, no state legislature appeared poised to try to change its electors, and if Democrats were to claim the same authority, [JOHN EASTMAN] would not credit it. 384 [GREG JACOB, PENCE GENL. COUNSEL] expressed to [JOHN EASTMAN] that the defendant's plan would result in a "disastrous situation" where the election might "have to be decided in the streets." 385 Having failed to enlist [GREG JACOB, PENCE GENL. COUNSEL] in the criminal conspiracy, [JOHN EASTMAN] told him that the "team" was going to be "really disappointed." 386 The "team," in fact, was disappointed; after [JOHN EASTMAN] updated [RUDY GIULIANI] on the meeting, [BORIS EPSHTEYN] confirmed to [STEVE BANNON] that the "Pence lawyer -- that is, [GREG JACOB, PENCE GENL. COUNSEL] was "totally against us," prompting [STEVE BANNON] to respond, "Fuck his lawyer." 387 That same day, [JOHN EASTMAN] received an email confirming what he already had admitted to [GREG JACOB, PENCE GENL. COUNSEL] no chamber of any legislature in any state, including Arizona, Georgia, Pennsylvania, and Wisconsin, was requesting that its electoral votes be returned to the state for review. 388

Meanwhile, [KENNETH CHESEBRO] who had traveled to Washington as directed by the defendant's public messages, obtained duplicate originals of the fraudulent certificates signed by the defendant's fraudulent electors in Michigan and Wisconsin, which they believed had not been delivered by mail to the President of the Senate or Archivist. 389 [KENNETH CHESEBRO] received these duplicates from Campaign staff and surrogates, who flew them to Washington at private expense. 390 He then hand-delivered them to staffers for a U.S. Representative at the Capitol as part of a plan to deliver them to Pence for use in the certification proceeding. 391

The defendant did not leave the pressure campaign to his co-conspirators; he redoubled his own efforts. On January 5 at 11:06 a.m., shortly before [JOHN EASTMAN] meeting with III the defendant tweeted, "The Vice President has the power to reject fraudulently chosen electors,,392 and designate the defendant as the winner of the electoral college vote. That afternoon, the defendant met privately with Pence in the Oval Office. 393 During the meeting, the defendant once again told Pence, "I think you have the power to decertify." 394 When Pence was unmoved, the defendant threatened to criticize him publicly ("I'm gonna have to say you did a great disservice"); 395 this concerned [MARK SHORT, MIKE PENCE CHIEF OF STAFF] to whom Pence had relayed the defendant's threat, to the point that he alerted Pence's Secret Se1vice detail. 396 Next still, the defendant initiated a phone call with Pence, [MARK SHORT, MIKE PENCE CHIEF OF STAFF], [GREG JACOB, PENCE GENL. COUNSEL], [JOHN EASTMAN] and one or two other private attorneys -- likely including [RUDY GIULIANI] and again raised the scenario of the Vice President sending the elector slates to state legislatures. 398 [GREG JACOB, PENCE GENL. COUNSEL] again pointed out that such a strategy violated the ECA, and Pence reaffirmed that he did not believe he had the authority to do so. 399 Shortly after the call that evening, at 5:43 p.m., the defendant tweeted, "I will be speaking at the SAVE AMERICA RALLY tomorrow on the Ellipse at 11AM Eastern. Arrive early - doors open at 7AM Eastern. BIG CROWDS!"400

The defendant continued his pressure campaign on Pence that evening. After a New York Times article that night detailed the afternoon's private conversation in which Pence had rejected the defendant's demand to act unlawfully, the defendant directed [JASON MILLER, TRUMP SENIOR CAMPAIGN ADVISOR] to issue a statement rebutting it and approved the statement at 9:28 p.m. 401 Minutes later, the defendant called Pence and told him, "you gotta be tough tomorrow." 402 After concluding the call with Pence, the defendant sequentially spoke to [STEVE BANNON] followed by b[JOHN EASTMAN]. 405. Then, at around 10:00 p.m. that night, the defendant issued the public statement, which read "the Vice President and I are in total agreement that the Vice President has the power to act" 404 -- a statement that the defendant knew was a lie from Pence's repeated and firm rejections of his efforts, but that gave false hope to the defendant's supporters arriving in the city at the defendant's request, and maximized pressure on Pence.

F. The Defendant Caused Unlawful Conduct on January 6 and Tried to Take Advantage of the Riot that Ensued

The defendant continued his intense pressure campaign against the Vice President into the early morning hours of January 6. Around 1:00 a.m., the defendant tweeted, falsely: "If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!" 405 At 8:17 a.m., as the supporters he had summoned to the city gathered near the White House, 406 the defendant again falsely tweeted about the certification: "States want to connect their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it, Mike, this is a time for extreme courage!" 407

Later that morning, [KENNETH CHESEBRO] worked with another attorney for the defendant, who contacted a U.S. Senator to ask him to obtain the fraudulent Wisconsin and Michigan documents from the U.S. Representative's office and hand-deliver them to the Vice President. 408 When one of the U.S. Senator's staffers contacted a Pence staffer by text message to arrange for delivery of what the U.S. Senator's staffer had been told were "[a]ltemate slate[s] of electors for MI and WI because [the] archivist didn't receive them," Pence's staffer rejected them. 409

At 11:15 a.m., shortly before traveling to the Ellipse to speak to his supporters, the defendant called Pence and made one last attempt to induce him to act unlawfully in the upcoming session. 410 When Pence again refused, and told the defendant that he intended to make a statement to Congress before the certification proceeding confirming that he lacked the authority to do what the defendant wanted, the defendant was incensed. 411 He decided to re-insert into his Campaign speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the certification. 412 And the defendant set into motion the last plan in furtherance of his conspiracies: if Pence would not do as he asked, the defendant needed to find another way to prevent the certification of Biden as president. So on January 6, the defendant sent to the Capitol a crowd of angry supporters, whom the defendant had called to the City 413 and inundated with false claims of outcome-determinative election fraud, to induce Pence not to certify the legitimate electoral votes and to obstruct the certification. 414

At the Ellipse Campaign rally, [RUDY GIULIANI] and [JOHN EASTMAN] and spoke just before the defendant. In his rally speech, [RUDY GIULIANI] sought to cloak the conspiracies in an air of legitimacy, assuring the defendant's supporters that "every single thing that has been outlined as the plan for today is perfectly legal," 415 and introducing [JOHN EASTMAN] as a "preeminent constitutional scholar[]" who would further explain this plan. 416 He falsely claimed that legislatures in five states were "begging" to have their electoral ballots returned. 417 [RUDY GIULIANI] then asserted that Pence could "decide on the validity of these crooked ballots" 418 and told the crowd, "[l]et's have trial by combat." 419 [JOHN EASTMAN] in his speech, claimed that Pence must send electoral votes to state legislatures for "the American people [to] know whether we have control of the direction of our government or not," 420 and decried that "[w]e no longer live in a self-governing republic if we can 't get the answer to this question." 421

When the defendant took the stage at the Ellipse rally to speak to the supporters who had gathered there at his urging, he knew that Pence had refused, once and for all, to use the defendant's fraudulent electors' certificates. The defendant also knew that he had only one last hope to prevent Biden's certification as President: the large and angry crowd standing in front of him. So for more than an hour, the defendant delivered a speech designed to inflame his supporters and motivate them to march to the Capitol. 422

The defendant told his crowd many of the same lies he had been telling for months -- publicly and privately, including to the officials in the targeted states -- and that he knew were not true. In Arizona, he claimed, more than 36,000 ballots had been cast by non-citizens. 423 Regarding Georgia, the defendant repeated the falsehood that more than 10,300 dead people voted, 424 and he raised the publicly disproven claims about fraud by election workers at State Farm Arena. 425 He made baseless allegations of dead voters in Nevada and Michigan and false claims about illegally counted votes in Wisconsin. 426 And in Pennsylvania, he claimed that there were hundreds of thousands more ballots counted than there had been voters. 427

The defendant also lied to his rally supporters when he claimed that certain states wanted to reconsider or recertify their duly appointed electors. For instance, he said, "By the way, Pennsylvania has now seen all of this. They didn't know because it was so quick. They had a vote. They voted. But now they see all this stuff, it's all come to light. Doesn't happen that fast. And they want to recertify their votes. They want to recertify. But the only way that can happen as if Mike Pence agrees to send it back. Mike Pence has top agree to send it back." 428 In response to this lie about Pennsylvania, the defendant's crowd began to chant, "Send it back! Send it back!" 429

The defendant gave his supporters false hope that Pence would take action to change the results of the election and claimed that Pence had the authority to do so. He falsely told the crowd that Pence could still "do the right thing" 430 and halt the certification, and he extemporized lines about the Vice President through the speech, including the indirect threat, "Mike Pence, I hope you're gonna stand up for the good of our Constitution and for the good of our country. And if you're not, I'm gonna be very disappointed in you. I will tell you right now. I'm not hearing good stories." 431

The defendant galvanized his supporters by painting the stakes as critical and assuring them that "history [was] going to be made."432 He made clear that he expected his supporters to take action, telling them regarding his loss of the election that "we're not going to let that happen," 433 calling on them to "fight" 434 and to "take back" 435 their country through strength, while suggesting that legal means were antiquated or insufficient to remedy the purported fraud, because "[w]hen you catch somebody in a fraud, you 're allowed to go by very different rules." 436 Throughout the speech -- from as early as about fifteen minutes into it and twice in its final lines -- the defendant directed his supporters to go to the Capitol and suggested that he would go with them. 437

The overall impact of the defendant's speech -- particularly in light of months of statements and Tweets falsely claiming election fraud and following on the heels of [RUDY GIULIANI] and [JOHN EASTMAN] speeches -- was to fuel the crowd's anger. For instance, when the defendant told his supporters that "[w]e will not let them silence your voices. We're not going to let it happen," 438 the crowd chanted, "Fight for Tnuup," in response. 439 When the defendant soon after told supporters that "we're going to walk down to the Capitol," 440 that they would "never take back our country with weakness," 441 and that they had "to show strength and [had] to be strong," 442 members of the crowd shouted, "Invade the Capitol building!" and, "Take the Capitol!" 443

Thousands of the defendant's supporters obeyed his directive and marched to the Capitol, 444 where the certification proceeding began around 1:00 p.m. 445 Minutes earlier, Pence had issued a public statement explaining that his role as President of the Senate did not include "unilateral authority to determine which electoral votes should be counted and which should not." 446 On the floor of the House of Representatives, Pence opened the certificates of vote and certificate of ascertainment from Arizona, consistent with the ECA. After an objection from a Senator and Representative, the House and Senate retired to their separate chambers to debate it. 447

Outside of the Capitol building, a mass of people -- including those who had traveled to Washington and the Capitol at the defendant's direction -- broke through barriers cordoning off the Capitol grounds and advanced on the building. 448 Among these was [KENNETH CHESEBRO] who had attended the defendant's speech from the Washington Monument, marched with the crowd to the Capitol, and breached the restricted area surrounding the building. 449 A large portion of the crowd at the Capitol -- including rioters who violently attacked law enforcement officers trying to secure the building -- wore clothing and carried items bearing the defendant's name and Campaign slogans, leaving no doubt that they were there on his behalf and at his direction. 450

Beginning at about 1:30 p.m., the defendant settled in the dining room off of the Oval Office. He spent the afternoon there reviewing Twitter on his phone, 451 while the dining room television played Fox News' contemporaneous coverage of events at the Capitol. 452

At 2:13 p.m., the crowd at the Capitol broke into the building, and forced the Senate to recess. 453 Within minutes, staffers fled the Senate chamber carrying the legitimate electors' physical certificates of vote and certificates of ascertainment. 454 Next to the Senate chamber, a group of rioters chased a U.S. Capitol Police officer up a flight of stairs to within forty feet of where Pence was sheltering with his family. 455 As they did so, the rioters shouted at the officer, in search of public officials, "Where the fuck they at? Where the fuck they counting the votes at? Why are you protecting them? You're a fucking traitor." 456 On the other side of the Capitol, the House was also forced to recess. 457

Fox News’s coverage of events at the Capitol included, at about 2:12 p.m., reports of the Capitol being on lockdown and showed video footage of large crowds within the restricted area surrounding the Capitol; much of the crowd was wearing clothing and carrying flags evidencing their allegiance to the defendant. 458 At about 2:20 p.m., video of crowds on the Capitol lawn and West Terrace were shown alongside a chyron stating, “CERTIFICATION VOTE PAUSED AS PROTESTS ERUPT ON CAPITOL HILL.” 459 At 2:21 p.m., an on-the-street reporter interviewed an individual marching from the Ellipse to the Capitol who claimed to have come to Washington “because President Trump told us we had something big to look forward to, and I believed that Vice President Pence was going to certify the electorial [sic] votes and, or not certify them, but I guess that’s just changed, correct? And it’s a very big disappointment. I think there’s several hundred thousand people here who are very disappointed. But I still believe President Trump has something else left.” 460 And at approximately 2:24 p.m., Fox News reported that a police officer may have been injured and that “protestors . . . have made their way inside the Capitol.” 461

At 2:24 p.m., Trump was alone in his dining room when he issued a Tweet attacking Pence and fueling the ongoing riot: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” 462 That afternoon, at the Capitol, a rioter used a bullhorn to read the defendant’s Tweet about the Vice President aloud to the crowd trying to gain entry to the building. 463 The defendant issued the incendiary Tweet about Pence despite knowing—as he would later admit in an interview in 2023—that his supporters “listen to [him] like no one else.” 464

One minute later, at 2:25 p.m., the Secret Service was forced to evacuate Pence to a secure location. 465 At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!” 466; “Where is Pence? Bring him out!” 467; and “Traitor Pence!” 468 Several rioters in those chanting crowds wore hats and carried flags evidencing their allegiance to the defendant. In the years since January 6, the defendant has refused to take responsibility for putting Pence in danger, instead blaming Pence. On March 13, 2023, he said, “Had Mike Pence sent the votes back to the legislatures, they wouldn’t have had a problem with Jan. 6, so in many ways you can blame him for Jan. 6. Had he sent them back to Pennsylvania, Georgia, Arizona, the states, I believe, number one, you would have had a different outcome. But I also believe you wouldn’t have had ‘Jan. 6’ as we call it.” 469

Rioters—again, many bearing pro-Trump paraphernalia indicating their allegiance— breached the Senate chamber, 470 rifled through the papers on the Senators’ desks, 471 and stood on the dais where Pence had been presiding just minutes earlier. 472 On the House side, rioters watched as police evacuated lawmakers from the House chamber, smashing glass windows surrounding a locked door that stood between them and the fleeing Members and staffers. 473 At least one rioter recorded video showing Members being evacuated while the growing crowd screamed at the Capitol Police officers guarding the locked door to the House Speaker's Lobby. 474

Some of the worst violence of the day took place outside of the Capitol on the Lower West Terrace -- the side of the building facing the Ellipse where the defendant had given his speech. There, scaffolding placed in anticipation of the January 20 Inauguration created a tunnel leading to a set of double glass doors into the center of the Capitol building. After rioters had forced their way onto restricted Capitol grounds and past the temporary barriers, including layers of snow fencing and bike racks, they attacked the law enforcement officers trying to protect the building with flag poles, bear spray, stolen police riot shields, and other improvised weapons. 475 Of his time defending the Capitol, one Metropolitan Police Department Officer said:

I feared for my life from the moment 1 got into that -- we were walking into the crowd, when the Capitol Police officer was leading us into the front line. And especially when I got sprayed in the middle of the crowd. I -- at that point, honestly, I thought, this is it. Yeah, multiple times ... You know, you're getting pushed, kicked, you know, people are throwing metal bats at you and all that stuff. 1 was like, yeah, this is fucking it. 476


The officer described that the rioters he encountered at the Capitol were wearing both "tactical gear" and "Trump paraphernalia" and appeared to be acting out of "pure, sheer anger." 477

In the years after January 6, the defendant has reiterated his support for and allegiance to rioters who broke into the Capitol, calling them "patriots" 478 and "hostages," 479 providing them financial assistance, 480 and reminiscing about January 6 as "a beautiful day." 481 At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times -- opening the event with a song called "Justice for All," recorded by a group of charged -- and in many cases, convicted -- January 6 offenders known as the "January 6 Choir" and who, because of their dangerousness, are held at the District of Columbia jai1. 482 At the Waco Rally, of the January 6 Choir, the defendant said, "our people love those people, they love those people." 483 The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6. 484

On the evening of January 6, the defendant and [RUDY GIULIANI] attempted to exploit the violence and chaos at the Capitol by having [RUDY GIULIANI] call Senators and attempt to get them to further delay the certification. 485 At around 7:00 p.m., [RUDY GIULIANI] placed calls to five U.S. Senators and one U.S. Representative. 486 [BORIS EPSHTEYN] attempted to confirm phone numbers for Members of Congress whom the defendant had directed to call. 487 In a voicemail that [RUDY GIULIANI] intended for one Senator, [RUDY GIULIANI] said, "I'm calling you because I want to discuss with you how they're trying to rush this hearing and how we need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they're reconvening at eight tonight, but the only strategy we can follow is to object to numerous states and raise issues so that we can get ourselves into tomorrow -- ideally until the end of tomorrow." 488 He then asked the Senator to "object to every state" to "give us the opportunity to get the legislators who are very, very close to pulling their votes." This concession -- that legislatures had not yet asked to review their slates -- stood in contrast to [RUDY GIULIANI] and the defendant's lies at the Ellipse that they already had. 489 Next, in a voicemail intended for another Senator, [RUDY GIULIANI] told more lies. 490 He falsely claimed that Pence's decision not to use the defendant's fraudulent electors' certificates had been surprising, and that in light of the surprise, "we could use a little time so that the state legislatures can prepare even more to come to you and say, 'Please give this back to us for a while so we can fix it." 491 [RUDY GIULIANI] then repeated knowingly false claims of election fraud, including that non-citizens had voted in Arizona and an outcome-determinative number of underage voters had cast ballots in Georgia. 492

Although the attack on the Capitol successfully delayed the certification for approximately six hours, the House and Senate resumed the Joint Session at 11:35 p.m. 493 But the conspirators were not done. Within ten minutes, at 11:44 p.m., [JOHN EASTMAN] who earlier that day wrote to [GREG JACOB, PENCE GENL. COUNSEL] that "[t]he 'siege' is because YOU and your boss did not do what was necessary" -- emailed [GREG JACOB, PENCE GENL. COUNSEL] again and urged him to convince Pence to violate the law, writing, "I implore you to consider one more relatively minor violation [of the ECA] and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here." 494

At 3:41 a.m. on January 7, as President of the Senate, Pence announced the certified results of the 2020 presidential election in favor of Biden. 495

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II. Legal Framework

In Trump, the Supreme Court held that former presidents are immune from prosecution for core official acts, enjoy at least a rebuttable presumption of immunity for other official acts, and have no immunity for unofficial acts, and remanded to this Court for further proceedings consistent with its holding. 144 S. Ct. at 2327, 2332, 2347. This section sets forth the applicable legal principles and then Section III applies them to the categories of conduct that the superseding indictment alleges and that the Government intends to prove at trial in order to demonstrate that none of the defendant's conduct is immunized.

In Trump, the Supreme Court announced the principles that govern a former President's claim of constitutional immunity from federal criminal prosecution. The Supreme Court divided presidential acts into three categories: (1) core presidential conduct that Congress has no power to regulate and for which a former President has absolute immunity; (2) other official presidential acts for which the President has at least presumptive immunity; and (3) unofficial conduct for which the President has no immunity. Id. at 2327, 2331-32. With respect to the first category of core official conduct, when the President’s authority to act is “‘conclusive and preclusive,’” Congress may not regulate his actions, and the President has absolute immunity from criminal prosecution. Id. at 2327 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring)). Applying those principles to the original indictment, the Supreme Court concluded that the defendant is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials” and his “threatened removal of the Acting Attorney General.” Id. at 2335. The superseding indictment omits those allegations, and the Supreme Court did not find that any other conduct alleged in the original indictment implicated “conclusive and preclusive” presidential authority. See id. at 2335-40.

The threshold question here, then, is whether the defendant can carry his burden to establish that his acts were official and thus subject to presumptive immunity. Id. at 2332; see Dennis v. Sparks, 449 U.S. 24, 29 (1980) (noting that for immunity doctrines, “the burden is on the official claiming immunity to demonstrate his entitlement”). Official conduct includes acts taken within the “‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond [his] authority.’” Trump, 144 S. Ct. at 2333 (quoting Blassingame, 87 F.4th at 13). But consistent with the D.C. Circuit’s opinion in Blassingame, the Supreme Court suggested that a President who speaks “as a candidate for office or party leader”— as the defendant did here—does not act in his official, presidential capacity. Id. at 2340. As the D.C. Circuit explained, a President acting as a “candidate for re-election” is, to that extent, not carrying out an official responsibility. Blassingame, 87 F.4th at 17; accord id. at 5 (“When a sitting President running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern. Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity.”) (emphasis in original). To assess whether a presidential action constitutes an “official” act, courts must apply an “objective analysis” that focuses on the “‘content, form, and context’” of the conduct in question. Trump, 144 S. Ct. at 2340 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). A President’s motives for undertaking the conduct and the fact that the conduct is alleged to have violated a generally applicable law are not relevant considerations. Id. at 2333-34.

If a President’s actions constitute non-core official presidential conduct, he is at least presumptively immune from criminal prosecution for that conduct. 144 S. Ct. at 2328, 2331; id. at 2332 (reserving whether “this immunity is presumptive or absolute . . . [ b]ecause we need not decide that question today”). The Government can overcome that presumptive immunity by demonstrating that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Id. at 2331-32 (quoting Fitzgerald, 457 U.S. at 754). Just as the inquiry into whether conduct is official or unofficial is “necessarily factbound,” Trump, 144 S. Ct. at 2340, with “[t]he necessary analysis [being] . . . fact specific,” id. at 2339, so too should be the inquiry into whether any “presumption of immunity is rebutted under the circumstances,” id. at 2337. The analysis should first identify the specific alleged act at issue, and then determine whether criminal liability for the act intrudes on a relevant Executive Branch authority or function, taking care not to “conceive[] of the inquiry at too high a level of generality.” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1141 (D.C. Cir. 2015) (reversing district court in civil immunity case). Such an approach recognizes that Executive authority has limits—boundaries imposed by constitutional text, the separation of powers, and precedent—and that application of criminal law to the President’s official conduct does not per se intrude impermissibly on Executive Branch authority and functions. Cf. Trump, 144 S. Ct. at 2327 (“If the President claims authority to act but in fact exercises mere ‘individual will’ and ‘authority without law,’ the courts may say so.”) (quoting Youngstown, 343 U.S. at 655 (Jackson, J., concurring)).

These principles for assessing whether the conduct alleged in the superseding indictment is immune apply equally to evidence. The Government may not introduce evidence of immunized official conduct against a former President at a trial, even to prove that the former President committed a crime predicated on unofficial conduct. Id. at 2340-41.

III. None of the Allegations or Evidence Is Protected by Presidential Immunity

At its core, the defendant’s scheme was a private one; he extensively used private actors and his Campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office. To the limited extent that the superseding indictment and proffered evidence reflect official conduct, however, the Government can rebut the presumption of immunity because relying on that conduct in this prosecution will not pose a danger of intrusion on the authority or functions of the Executive Branch. Below, the Government categorizes the conduct outlined in Section I and provides “content, form, and context” for this Court to determine that the defendant’s conduct was private or that, in the alternative, any presumptive immunity is rebutted “under the circumstances.” Trump, 144 S. Ct. at 2337. This analysis is necessarily fact-intensive, and all of the Government’s analysis below is based on the unique facts and circumstances of this case.

This section first addresses the defendant’s interactions with Pence, because in Trump, the Supreme Court held that when the defendant conversed with Pence about “their official responsibilities,” the conduct was official. 144 S. Ct. at 2336. Accordingly, the Government explains below why any presumptive immunity as to the defendant’s official conduct regarding Pence is rebutted. Other than the specific official conduct related to Pence that the Supreme Court held to be official, none of the defendant’s other actions were official. This section categorizes that conduct and provides the “content, form, and context” that establishes its unofficial nature. These categories are: a) the defendant’s interactions, as a candidate, with state officials; b) the defendant’s efforts, as a candidate, to organize fraudulent electors; c) the defendant’s public speeches, Tweets, and other public statements as a candidate; d) the defendant’s interactions, as a candidate, with White House staff; and e) other evidence of the defendant’s knowledge and intent. Lastly, even if these categories of conduct and evidence were to be deemed official, the Government can rebut the attendant presumption of immunity as described below.

A. The Defendant’s Interactions with Pence

The only conduct alleged in the original indictment that the Supreme Court held was official, and subject to at least a rebuttable presumption of immunity, was the defendant’s attempts to lie to and pressure Vice President Pence to misuse his role as President of the Senate at the congressional certification. The Supreme Court stated that “[w]henever the President and Vice President discuss their official responsibilities, they engage in official conduct,” and further explained that because Pence’s role at the certification was “a constitutional and statutory duty of the Vice President,” the defendant was “at least presumptively immune from prosecution for such conduct.” 144 S. Ct. at 2336. Accordingly, unlike all of the other threshold determinations that the Court will have to make about whether the defendant’s conduct alleged in the superseding indictment was official, with respect to the defendant’s conversations with Pence about Pence’s official role at the certification proceeding, the Court can skip to the second step: whether the Government can rebut the presumption of immunity that the Supreme Court held applies to such conversations. Because the Executive Branch has no role in the certification proceeding—and indeed, the President was purposely excluded from it by design—prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the Executive Branch's authority or functioning.

As described below, the Government also intends to introduce at trial evidence regarding conversations between the defendant and Pence in which they did not discuss Pence's official responsibilities as President of the Senate and instead acted in their private capacities as running mates. And the Government intends to elicit at trial evidence about a Pence staffer's conversations with co-conspirator Those conversations were unofficial and therefore not immune.

1. The defendant's interactions with Pence as the President of the Senate were official, but the rebuttable presumption of immunity is overcome

The superseding indictment and the Government's trial evidence include the defendant's attempts to influence Pence's "oversight of the certification proceeding in his capacity as President of the Senate." Trump, 144 S. Ct. at 2337. These conversations included one-on-one conversations between the defendant and Pence (see, e.g., supra pp. 49, 63-65, 72-74, describing conversations on December 5 and 25, 2020, and January 1, 3, 5, and 6, 2021 496), as well as conversations in which the defendant included private actors, such as co-conspirator [JOHN EASTMAN] in his attempts to convince Pence to participate in the conspiracies (see, e.g. , supra pp. 66-67 and 71-72, describing conversations on January 4 and 5, 2021).

The Supreme Court held that discussions between the defendant and Pence concerning Pence's role at the certification proceeding qualify as official conduct, and therefore are subject to a rebuttable presumption of immunity, because they involved “the President and the Vice President discuss[ing] their official responsibilities.” Id. at 2336. Those discussions qualify as official because “[p]residing over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President.” See id. at 2336; U.S. Const. Art. I, § 3, cl. 4. The discussions at issue did not pertain to Pence’s role as President of the Senate writ large, however, but instead focused only on his discrete duties in presiding over the certification proceeding—a process in which the Executive Branch, by design, plays no direct role. Trump, 144 S. Ct. at 2337. A prosecution involving the defendant’s efforts to influence Pence in the discharge of this particular duty, housed in the Legislative Branch, would not “pose any dangers of intrusion on the authority and functions of the Executive Branch.” Id.

The Executive Branch has no authority or function to choose the next President. Blassingame, 87 F.4th at 17. To the contrary, the Constitution provides that the States will appoint electors to vote for the President and Vice President. U.S. Const. Art. II, § 1, cl. 2. And all States have chosen to make such appointments based on the ballots cast by the people in their respective states. See Chiafalo v. Washington, 591 U.S. 578, 581 (2020). “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes,” U.S. Const. Art. II, § 1, cl. 4, but the Executive Branch has no direct role in that process. The next step in the process established by the Constitution similarly provides no role for the Executive Branch: the House and Senate meet in joint session, with the President of the Senate present to “open all the certificates” of the state-appointed electors in the presence of the House and Senate, for them to be counted. U.S. Const. Amend. XII. “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.” Id. Only if the state-appointed electors have failed to make a choice, i.e., no candidate has such a majority, does the choice fall to the House of Representatives, who, voting by state delegation, “choose immediately, by ballot,” from the three presidential candidates receiving the most electoral votes. Id. There, too, the Executive Branch plays no role in the process.

The exclusion of the Executive Branch reflects fundamental constitutional principles. The “executive Power” is “vested in a President” only for “the Term of four Years,” U.S. Const. Art. II, § 1, cl. 1, and it transfers to his successor, by operation of law, “at noon on the 20th day of January,” U.S. Const. Amend. XX. Permitting the incumbent President to choose his own successor—or, worse still, to perpetuate himself in power—would contradict the entire constitutional system that the Framers created. “In free Governments,” Benjamin Franklin explained, “the rulers are the servants, and the people their superiors [and] sovereigns.” 2 The Records of the Federal Convention of 1787, at 120 (Max Farrand ed., 1911). A government could not be considered a “genuine republic,” Madison argued, unless “the persons administering it,” including the President, “be appointed, either directly or indirectly, by the people; and that they hold their appointments” for a “definite period.” The Federalist No. 39 (J. Madison). Thus, while the Framers recognized “the necessity of an energetic Executive,” they justified and checked his power by ensuring that he always retained “a due dependence on the people.” The Federalist No. 70 (A. Hamilton); see Seila Law LLC v. CFPB, 591 U.S. 197, 223-24 (2020). The Framers further recognized that while regular elections would serve as “the primary control on the government,” “experience has taught mankind the necessity of auxiliary precautions” as well. The Federalist No. 51 (J. Madison).

Some of those precautions are reflected in the design of the Electoral College itself. “[W]ary of ‘cabal, intrigue, and corruption,’” the Framers “specifically excluded from service as electors ‘all those who from situation might be suspected of too great devotion to the president in office.’” Trump, 144 S. Ct. at 2339 (quoting The Federalist No. 68 (A. Hamilton)). They were keenly aware, as Justice Story later explained, that “an ambitious candidate” could hold out “the rewards of office, or other sources of patronage,” in an effort “to influence a majority of votes; and, thus, by his own bold and unprincipled conduct, to secure a choice, to the exclusion of the highest, and purest, and most enlightened men in the country.” Joseph Story, 3 Commentaries on the Constitution of the United States § 1450, at 314 (1833 ed.). To guard against that possibility, Article II provides that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” U.S. Const. Art. II, § 1, cl. 2. As a leading early American commentator observed, these limitations serve “to prevent the person in office, at the time of the election, from having any improper influence on his re-election, by his ordinary agency in the government.” See 1 James Kent, Commentaries on American Law *276 (8th ed. 1854).

The Constitution’s structure further reflects the Framers’ considered choice to exclude the incumbent President from playing a role in choosing the next President. The Constitution reflects an abiding concern that governmental “power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it,” not least to protect against “the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.” The Federalist No. 48 (J. Madison); see Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) (“The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive.”). The Framers therefore designed a system of separated powers in part to ensure that “[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The Federalist No. 10 (J. Madison).

The defendant’s charged conduct directly contravenes these foundational principles. He sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people. As such, applying a criminal prohibition to the defendant’s conduct would not pose any danger of intrusion on the authority and functions of the Executive Branch; rather, it would advance the Constitution’s structural design to prevent one Branch from usurping or impairing the performance of the constitutional responsibilities of another Branch. See Clinton v. Jones, 520 U.S. 681, 699- 702 (1997).

History confirms that presidents have never understood their wide-ranging duties to encompass any direct role in the function of collecting, counting, and certifying the results of a presidential election. As President Lincoln explained in 1864, “[ b]y the Constitution and laws the President is charged with no duty in the conduct of a presidential election in any State,” and “[ i]f any election shall be held, and any votes shall be cast in the State of Tennessee for President and Vice President of the United States, it will belong, not to the military agents, nor yet to the Executive Department, but exclusively to another department of the Government, to determine whether they are entitled to be counted, in conformity with the Constitution and laws of the United States.” 8 Collected Works of Abraham Lincoln, 71-72 (1953). When Congress later sent to Lincoln for his signature a “Joint resolution declaring certain States not entitled to representation in the electoral college,” Lincoln signed the resolution “in deference to the view of Congress implied in its passage and presentation to him,” but “disclaim[ed] all right of the Executive to interfere in any way in the matter of canvassing or counting electoral votes.” House Special Committee, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 229-230 (1877). The Government is aware of no contrary evidence, including of any President, other than the defendant, seeking to influence his Vice President in the discharge of his duties as President of the Senate in presiding over the joint session. The absence of any such historical tradition is reinforced by the fact that in 22 of the 59 certification proceedings the Vice President has not presided at all. See Joel K. Goldstein, The Ministerial Role of the President of the Senate in Counting Electoral Votes: A Post-January 6 Perspective, 21 U.N.H. L. REV. 369, 402 & App’x 1 (2023).

When it comes to the certification proceeding specifically, not only has the President been deliberately excluded from the process, but the Vice President’s role, as President of the Senate, is highly circumscribed and ministerial in nature. The Twelfth Amendment gives the President of the Senate no substantive role in determining how to count the votes of the electors appointed by the states. Rather, it provides only that he “shall, in the presence of the Senate and House of Representatives, open all the certificates,” and then shifts to the passive voice: “and the votes shall then be counted.” Nothing in the Constitution remotely suggests that the single individual serving as President of the Senate would have the momentous responsibility to decide which votes to count and how they should be counted. Indeed, as Pence himself explained on January 6, 2021, giving the President of the Senate such a role “would be entirely antithetical to the [Constitution’s] design.”497 And, removing any possible doubt, “Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes,” Trump, 144 S. Ct. at 2337 (citing 3 U.S.C. § 15), and it has never provided any substantive role for the Vice President, instead assigning the resolution of disputes to the two Houses of Congress.498 Moreover, Congress has now made explicit—echoing and reaffirming constitutional tradition and practice—that, with limited exceptions of no relevance to this case, “the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties,” 3 U.S.C. § 15(b)(1). He “shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.” Id. § 15(b)(2). 499 Because the Vice President’s role is and has always been ministerial, rather than substantive or discretionary, it is difficult to imagine an occasion in which a President would have any valid reason to try to influence it. As such, criminalizing a President’s efforts to affect the Vice President’s role as the President of the Senate overseeing the certification of Electoral College results would not jeopardize an Executive Branch function or authority.

Critically, applying a criminal prohibition to the discrete and distinctive category of official interactions between the President and Vice President alleged in this case would have no effect— chilling or otherwise—on the President’s other interactions with the Vice President that implicate Executive Branch interests. The President would still be free to direct the Vice President in the discharge of his Executive Branch functions, such as “presid[ing] over . . . cabinet meetings,” engaging in “diplomacy and negotiation,” or performing any other presidential duties that the President chooses to delegate. See Trump, 144 S. Ct. at 2336 (internal quotation marks omitted). The President would likewise still be free to advise the Vice President on how to “advance the President's agenda in Congress," by casting tiebreaking votes on legislation or nominations. Id. at 2337. None of these legitimate Executive Branch functions would be chilled or affected at all.

Lastly, the fact that the defendant regularly included other private actors, such as his private attorney and co-conspirator [JOHN EASTMAN] in some conversations to attempt to pressure Pence (Superseding Indictment, ECF No. 226 § 75-76; supra pp. 66-67, 71-72) strengthens the conclusion that prosecuting the defendant for his actions using [JOHN EASTMAN] to help recruit Pence into the conspiracies does not infringe on any Executive Branch authority or function. As set forth in Section I, private co-conspirators worked to schedule the January 4 meeting at which [JOHN EASTMAN] attempted to pressure Pence. Although White House Counsel [PAT CIPOLLONE, TRUMP WHITE HOUSE COUNSEL] was invited to the meeting, when he arrived to attend, the defendant explicitly excluded him from it-meaning that the only attorney attending the meeting for the defendant was his privately-retained counsel. In [PAT CIPOLLONE, TRUMP WHITE HOUSE COUNSEL] telling, when [PAT CIPOLLONE, TRUMP WHITE HOUSE COUNSEL] arrived at the Oval Office for the meeting, the defendant "said words . .. indicating he didn't want me at the meeting." 500 It is hard to imagine stronger evidence that conduct is private than when the President excludes his White House Counsel and only wishes to have his private counsel present.

Next, the phone call on January 5 that the defendant and [JOHN EASTMAN] made to Pence, [GREG JACOB, PENCE GENL. COUNSEL] and [MARK SHORT, MIKE PENCE CHIEF OF STAFF] was the result of the private co-conspirators' failure to convince [GREG JACOB, PENCE GENL. COUNSEL] and [MARK SHORT, MIKE PENCE CHIEF OF STAFF] to do as [JOHN EASTMAN] urged in the meeting on the morning of January 5 that [GREG JACOB, PENCE GENL. COUNSEL] and [MARK SHORT, MIKE PENCE CHIEF OF STAFF] took at the defendant's request. The defendant 's decision to include private actors in the conversations with Pence about his role at the certification makes even more clear that there is no danger to the Executive Branch's functions and authority, because the [JOHN EASTMAN] conversations had no bearing on any Executive Branch prerogative. Instead, all of this conduct objectively benefitted the defendant in his private capacity as a candidate. The Court should therefore find the presumption of immunity to be rebutted. And because the presumption is rebutted, any participant in the meeting or phone call -- including Pence, [GREG JACOB, PENCE GENL. COUNSEL] and [MARK SHORT, MIKE PENCE CHIEF OF STAFF] can testify about it at trial.

2. The defendant's interactions with Pence as a running mate were unofficial

At trial, as indicated supra pp. 12-14, the Government intends to introduce evidence of private phone calls or in-person meetings (which occasionally included Campaign staff) that the defendant had with Pence in their unofficial capacities, as running mates in the post-election period. These conversations were not described in the original indictment nor analyzed by the Supreme Court in its opinion, nor are they described in the superseding indictment. In these conversations, the defendant and Pence discussed their electoral prospects, election-related litigation, and the possibility of the defendant running again in 2024 if his legal challenges failed. For example, Pence "tried to encourage" the defendant "as a friend," when news networks projected Biden as the winner of the election; on other occasions, softly suggested the defendant "recognize [the] process is over" even if he was unwilling to concede; and encouraged the defendant to consider running for election again in 2024. Although the defendant and Pence naturally may have touched upon arguably official responsibilities that were tangential to their election prospects-for instance, whether the federal government should begin its logistical transition to prepare for a different Administration 501 -- the overall context and content of the conversations demonstrate that they were primarily frank exchanges between two candidates on a shared ticket, and the Government does not intend to elicit testimony about any peripheral discussion of arguably official responsibilities. See Blassingame, 87 F.4th at 17 ("[A] President acts in a private, unofficial capacity when engaged in re-election campaign activity."); see also United States v. Helstoski, 442 U.S. 477, 488 n. 7 (1979) (in the Speech or Debate context, when an act contains both protected legislative components and non-protected components, the correct course is to "excis[e] references to legislative acts, so that the remainder of the evidence would be admissible"). Together, these discussions show the defendant and Pence considering advice from their shared Campaign advisors, weighing electoral strategies, and grappling with their loss. Both men had something to gain by winning re-election, making more notable the persistence of Pence's suggestions on how to accept the results of the election without losing face.

Even if the Court determines that these conversations were official, however, the Government can rebut the presumption of immunity because the use of this evidence poses no risk to Executive Branch prerogatives. The content of the conversations at issue -- the defendant and Pence's joint electoral fate and how to accept the election results -- have no bearing on any function of the Executive Branch. See Blassingame, 87 F.4th at 4 ("The Office of the Presidency as an institution is agnostic about who will occupy it next.").

3. [GREG JACOB, PENCE GENL. COUNSEL] one-on-one interactions with [JOHN EASTMAN] were unofficial

Pence staffer [GREG JACOB, PENCE GENL. COUNSEL] also participated in a January 5 meeting with [JOHN EASTMAN] and [MARK SHORT, MIKE PENCE CHIEF OF STAFF] (Superseding Indictment, ECF No. 226 § 78a; supra pp. 69-70) and on January 6 engaged in a lengthy email exchange with [JOHN EASTMAN] (Superseding Indictment, ECF No. 226 § 99; supra p. 85). These interactions were outside of the defendant's presence, and the latter was a series of emails. These conversations were not official, within the meaning of Trump, since the defendant was not involved and did not otherwise direct [GREG JACOB, PENCE GENL. COUNSEL] actions, and because of the other information above describing [JOHN EASTMAN] inherently private role.

B. The Defendant's Interactions, in his Capacity as a Candidate, with Officials in the Targeted States

1. The interactions at issue were unofficial

At trial, the Government will introduce evidence that the defendant, in his capacity as a candidate, contacted state elected officials to use false claims of election fraud to induce their assistance with the charged conspiracies at the point in the electoral process in which the states ascertain electors. These communications included calls to [FORMER GOV. DOUG DUCEY (R)], the Governor of Arizona; a meeting with Michigan legislators at the White House; a call to [FORMER REP. RUSTY BOWERS (R)], the Speaker of the Arizona State House; a call to [CHRIS CARR, ATTORNEY GEN. GA.], the Attorney General of Georgia; and a call to [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE], the Georgia Secretary of State. The contacts, sometimes in person and sometimes by phone, were part of a single course of conduct aimed at lying to and influencing these state officials to alter the results of the election in the defendant's favor. In each conversation, the defendant raised false claims of election fraud when pressing the state officials, often asking them to take steps to prevent or overturn the ascertainment of Biden's legitimate electors. And in each case, the state officials informed the defendant that they had not seen the fraud he was claiming had occurred in their state. Notably, all of these elected officials were the defendant's fellow Republicans; he made no efforts to contact the equivalent individuals holding the same offices in Nevada, New Mexico, Pennsylvania, or Wisconsin, all of whom were Democrats. Most importantly, as with the defendant's plan regarding the fraudulent elector slates, as President, he had no official role in the process by which states appointed and ascertained their presidential electors. See 144 S. Ct. at 2353 (Barrett, J., concurring) ("The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power."). The content, form, and context of the defendant's interactions with these state officials firmly establish that his conduct was unofficial.

a. Calls to [FORMER GOV. DOUG DUCEY (R)] (supra pp. 17-18)

The defendant called [FORMER GOV. DOUG DUCEY (R)] then the Governor of Arizona, on or about November 9. 502 The defendant's call to [FORMER GOV. DOUG DUCEY (R)] was unofficial and undertaken as a candidate. Throughout the call, the defendant was engaged in partisan electioneering. His comments focused on the vote count in Arizona in his particular race, and on the margins and allegations of fraud that could potentially benefit him personally as a candidate. [FORMER GOV. DOUG DUCEY (R)], in turn, responded by giving the defendant his assessment of the defendant's electoral prospects in Arizona -- prospects that were dim. 503 The defendant did not ask about the vote counts for, or claim fraud existed in, any race other than his own. And he raised fraud claims in this context -- about whether he could still win Arizona -- not in the larger context of election integrity. The defendant claimed that he would deliver evidence of election fraud to [FORMER GOV. DOUG DUCEY (R)] then did not. 504 The call was a surprise to [FORMER GOV. DOUG DUCEY (R)] and unusually short and to the point for the defendant, who usually liked to chat. 505 In contrast, according to [FORMER GOV. DOUG DUCEY (R)] this call contained little conversation or pleasantries and was solely focused on the vote count in the Presidential race and the defendant's fraud claims. 506

This call must also be considered in the context of the conspirators' additional pressure campaign on [FORMER GOV. DOUG DUCEY (R)]. On other occasions, [RUDY GIULIANI] tried to reach [FORMER GOV. DOUG DUCEY (R)] but [FORMER GOV. DOUG DUCEY (R)] declined to accept the calls. 507 And on November 30, the day [FORMER GOV. DOUG DUCEY (R)] signed the certificate of ascertainment declaring Biden's electors the legitimate ones for Arizona, the defendant (joined by Pence) again again called [FORMER GOV. DOUG DUCEY (R)] again raised fraud claims, and again failed to substantiate them. 508 When [FORMER GOV. DOUG DUCEY (R)] failed to do as the defendant demanded, after the call, the defendant attacked [FORMER GOV. DOUG DUCEY (R)] publicly through Twitter. 509

Each of these communications with [FORMER GOV. DOUG DUCEY (R)] was unofficial. The defendant engaged in them all in his capacity as a candidate, in an attempt to elicit [FORMER GOV. DOUG DUCEY (R)] support in re-installing him as president.

b. Meeting with Michigan legislators (Superseding Indictment, ECF No. 226 § 36; supra pp. 31-34)

The defendant's November 20 Oval Office meeting with Michigan state legislators was private in nature. During the meeting, the defendant raised claims of election fraud in the state related specifically and only to his own election, and the legislators explained that the defendant had lost not because of fraud but because he had underperformed with educated female voters. 510 Although the meeting took place in the Oval Office -- as did many unofficial Campaign meetings in which the defendant participated in the post-election period 511 -- a close examination of all of the other circumstances surrounding the meeting makes clear that it was a Campaign meeting.

The defendant originally initiated the meeting through RNC Chairwoman [RONNA MCDANIEL, THEN-RNC CHAIR], a private and partisan actor, and then followed up himself with [FORMER SEN. MIKE SHIRKEY (R)), MI. FORMER SENATE MAJORITY LEADER] and [FORMER REP. LEE CHATFIELD (R), MI. FORMER SPEAKER OF THE HOUSE OF REP.] -- both fellow Republicans and strong political supporters of the defendant. 512 Cf. Trump, 144 S. Ct. at 2340 (suggesting the President acts in an unofficial capacity when acting as "pat1y leader"). Although the defendant did not specify the topic of the meeting in advance, both and assumed -- correctly -- that the defendant wanted to see them to discuss claims of election fraud related to his own race. 513 Notably, the defendant did not include in the meeting invitation other Michigan officials who held positions more relevant to the election and certification -- the Governor and Secretary of State -- but who were not Republicans. 514

At the time, public interest and alarm were piqued by news that the defendant was meeting with legislators from a state where there were pending election disputes and where the Governor had not yet signed a certificate of ascel1aitunent, and the White House declined to state the topic of the meeting. 515 During a press conference on the morning of November 20, White House Press Secretary [KAYLEIGH MEENANY, THEN-WHITE HOUSE PRESS SECTY.] was asked about the meeting and claimed, "This is not an advocacy meeting. There will be no one from the Campaign there. He routinely meets with lawmakers from all across the country." 516

[KAYLEIGH MEENANY, THEN-WHITE HOUSE PRESS SECTY.] claim was false. Over the course of the meeting, the defendant dialed in both [RONNA MCDANIEL, THEN-RNC CHAIR] despite her request not to participate -- and [RUDY GIULIANI]. 517 The defendant's Chief of Staff, [MARK MEADOWS] was present for at least part of the meeting. 518 But besides [MARK MEADOWS] who separate from his Chief of Staff duties assisted the defendant with Campaign-related logistics, 519 no other Executive Branch staff joined the meeting; in fact, according to [ERIC HERSCHMANN, WHITE HOUSE LAWYER] he and White House Counsel [PAT CIPOLLONE, TRUMP WHITE HOUSE COUNSEL] wanted no part of it. 520 As [FORMER SEN. MIKE SHIRKEY (R)), MI. FORMER SENATE MAJORITY LEADER] and [FORMER REP. LEE CHATFIELD (R), MI. FORMER SPEAKER OF THE HOUSE OF REP.] had expected, the defendant was focused on his own vote count in Michigan and on claims of fraud that related only to him. 521 [RUDY GIULIANI], a private Campaign attorney, then dominated the rest of the meeting with a monologue of false fraud claims. 522

The only reason that there were topics of conversation other than the defendant's claims of election fraud in his race was because the legislators, on their own initiative, brought them up, including presenting the defendant with a letter on COVID that they had prepared specifically to have something to talk about other than the defendant's unsupported election fraud claims 523 -- an official portion of the meeting about which the Government does not intend to elicit testimony at trial. The legislators then took photos with the defendant, and the meeting ended; afterward, [MARK MEADOWS] took the group on a tour of the White House. 524

As planned, after the meeting, [FORMER SEN. MIKE SHIRKEY (R)), MI. FORMER SENATE MAJORITY LEADER] and [FORMER REP. LEE CHATFIELD (R), MI. FORMER SPEAKER OF THE HOUSE OF REP.] released their statement that publicly disclaimed evidence of outcome-determinative fraud in the election in Michigan. 525 The statement also specified that [FORMER SEN. MIKE SHIRKEY (R)), MI. FORMER SENATE MAJORITY LEADER] and [FORMER REP. LEE CHATFIELD (R), MI. FORMER SPEAKER OF THE HOUSE OF REP.] had raised with the defendant issues related to Michigan's need for federal funds to fight COVID. 526 When the defendant responded to the legislators' public statement in a Tweet, the private nature of that message, sent as a candidate seeking to overturn the results of his own election -- "We will show massive and unprecedented fraud!" -- further demonstrates the private nature of the meeting it concerned. 527 In addition, it was one of six retweets and replies the defendant sent over an approximately thirteen-minute period, all of which were focused on allegations of election fraud in his own race. 528 Notably, the defendant did not conduct similar meetings in this period with legislators in states where he had won or even where he had lost by large margins, nor did he seek a meeting with the Michigan officials-the Governor and Secretary of State -- who could have provided him with information about the integrity of the election. 529

As further context establishing the private nature of this meeting, it was the opening volley of a larger pressure campaign on the same Michigan legislators by the defendant, his coconspirators, and his Campaign. For example, days after this meeting, [RUDY GIULIANI] sent text messages intended to urge [FORMER SEN. MIKE SHIRKEY (R)), MI. FORMER SENATE MAJORITY LEADER] and [FORMER REP. LEE CHATFIELD (R), MI. FORMER SPEAKER OF THE HOUSE OF REP.] to help overturn the results in Michigan. 530 In the same time period, the Campaign publicized contact information for [FORMER SEN. MIKE SHIRKEY (R)), MI. FORMER SENATE MAJORITY LEADER] and [FORMER REP. LEE CHATFIELD (R), MI. FORMER SPEAKER OF THE HOUSE OF REP.] (although the number published was wrong) and encouraged the defendant's supporters to flood their phone lines with complaints. 531

c. Call with [FORMER REP. RUSTY BOWERS (R)] (Superseding Indictment, ECF No. 226 § 19; supra p. 19)

The defendant's call to [FORMER REP. RUSTY BOWERS (R)] on November 22, 2020, also was unofficial. 532 Along with his private attorney, the defendant made the call in his capacity as a candidate and pressured [FORMER REP. RUSTY BOWERS (R)] on electoral matters over which neither the defendant -- nor even [FORMER REP. RUSTY BOWERS (R)] had an official role.

The context of the call makes its unofficial nature clear. The defendant placed the call to [FORMER REP. RUSTY BOWERS (R)] along with [RUDY GIULIANI], his lead Campaign attorney, and no White House officials participated in the call. 533 In fact, [RUDY GIULIANI] did most of the talking. 534 The defendant and [RUDY GIULIANI] were singularly focused on fraud claims that affected only the defendant, and did not raise any other races in Arizona. 535 And the content of the call confirmed it was unofficial: the defendant and his private attorney asked [FORMER REP. RUSTY BOWERS (R)] the defendant's political ally, to take steps to replace Arizona's legitimate electors with illegitimate ones for the defendant -- a step that necessarily only affected the defendant's race, out of all the races on the same ballot. 536

The call must also be viewed in the larger context of the pressure campaign the defendant and his co-conspirators put on [FORMER REP. RUSTY BOWERS (R)] and other Arizona officials. Immediately after speaking to [FORMER REP. RUSTY BOWERS (R)], the defendant and [RUDY GIULIANI] spoke to Arizona State Senate President [FRMR. SEN. KAREN FANN (R-AZ.), AZ THEN-STATE SENATE PRES.]. 537 A week later, during the "hotel hearing," [RUDY GIULIANI] and [JENNA ELLIS] failed to bring the promised evidence and instead admitted "[w]e don't have the evidence, but we have lots of theories." 538 See supra p. 19. When [FORMER REP. RUSTY BOWERS (R)] publicly announced that he would not take extralegal action on the defendant's behalf, [CHRISTINA BOBB] and the defendant attacked [FORMER REP. RUSTY BOWERS (R)] on Twitter. 539 Then, days before January 6, [JOHN EASTMAN] made another attempt to convince to act in contravention of the law and his principles. 546 And just as was done with the Michigan legislators, the defendant's Campaign and [STEVE BANNON] publicized contact information for [FORMER REP. RUSTY BOWERS (R)] and [FRMR. SEN. KAREN FANN (R-AZ.), AZ THEN-STATE SENATE PRES.], in an attempt to pressure them to undertake the same actions the defendant and co-conspirators had asked them privately to perform. 541 [FORMER REP. RUSTY BOWERS (R)], like others who publicly opposed the defendant's efforts, was harassed and threatened. 542

d. Call to [CHRIS CARR, ATTORNEY GEN. GA.] (supra pp. 23-24)

The defendant's call on December 8 to [CHRIS CARR, ATTORNEY GEN. GA.], the Georgia Attorney General, also was private. He undertook it to speak with [CHRIS CARR, ATTORNEY GEN. GA.] about Texas v. Pennsylvania, a lawsuit filed by the Texas Attorney General against Pennsylvania, Georgia, Michigan, and Wisconsin seeking to prevent those states from certifying their election results in favor of Biden based on a claim that the manner in which those states had administered their elections had violated the Constitution. 543

The defendant's interest in Texas v. Pennsylvania was personal and private; the lawsuit dealt only with the election for the offices of President and Vice President, not the myriad other races on the same ballots. Indeed, the day after his call with [CHRIS CARR, ATTORNEY GEN. GA.], the defendant -- in his personal capacity and with the assistance of co-conspirator [JOHN EASTMAN] as his private attorney -- intervened in the suit 544 and in so doing "affirmatively communicated to the Supreme Court (and the public) that he was acting and speaking in that matter in his 'personal capacity' as a candidate for reelection." Blassingame, 87 F.4th at 16.

The defendant initiated the call with [CHRIS CARR, ATTORNEY GEN. GA.] after a political intermediary laid the groundwork for it, and immediately raised the lawsuit, which was the principal topic of conversation on the call. 545 Based on [CHRIS CARR, ATTORNEY GEN. GA.]'s estimate and the Presidential Daily Diary, the call lasted about ten minutes and the defendant placed it at night from his private residence in the White House. 546 In fact, shortly before speaking with [CHRIS CARR, ATTORNEY GEN. GA.], the defendant had spoken with [KEN PAXTON, TX. ATTY. GENL.], the Texas Attorney General who had filed the lawsuit, 547 and immediately after speaking with [CHRIS CARR, ATTORNEY GEN. GA.], the defendant called [ERIC SCHMITT, MISSOURI ATTY. GENL.], the Missouri Attorney General who authored an amicus brief supporting the lawsuit that sixteen other state attorneys general joined. 548

The speed of the filing of the defendant's intervention brief the following day echoed what he told [CHRIS CARR, ATTORNEY GEN. GA.]: he was "running out of time," 549 presumably because landmark dates in the electoral process, like December 14 and January 6, were fast approaching. Lastly, the defendant and [CHRIS CARR, ATTORNEY GEN. GA.] also spoke about the importance of their fellow Republican party members, Senators [SEN. DAVID PERDUE (R. GA.)] and [SEN. KELLY LOEFFLER (R. GA], winning their pending election -- further making clear this call was unofficial. 550

e. Call to [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] (Superseding Indictment, ECF No. 226 § 33; supra pp. 28-31)

The defendant's January 2 call to [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] was unofficial and is not subject to immunity; its content, form, and context make clear that the defendant undertook it as a candidate and plaintiff in a private lawsuit in which [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] was a defendant.

[MARK MEADOWS] has said that the purpose of the call was to discuss the lawsuit, 551 and he acted accordingly during it. At the outset of the call, [MARK MEADOWS] made introductions of all the participants on the defendant's behalf -- [KURT HILBERT, TRUMP ATTORNEY IN TRUMP V. KEMP], [RYAN GERMANY, BRAD RAFFENSPERGER’S GENL. COUNSEL] and [CLETA MITCHELL, TRUMP ATTORNEY] 552 -- all of whom were affiliated with the Campaign's litigation efforts, which the defendant brought in his capacity as a candidate for President of the United States. 553

Throughout the call, the defendant and his advisors approached the conversation through his role as a candidate and with a focus on his private lawsuit. For instance, in an apparent reference to individuals retained for his private lawsuit, the defendant claimed, "We're going to have an accurate number over the next two days with certified accountants. But an accurate number will be given, but it's, it's in the fifties of thousands, and that's people that went to vote and they were told they can't vote because they've already been voted for". 554 Some of his false claims of fraud paralleled claims made in Campaign lawsuits, such as that of a substantial number of dead and non-resident voters -- for example, in Trump v. Raffensperger, a state court case whose complaint was appended to the federal suit Trump v. Kemp, the defendant's complaint asserted that 4,926 out-of-state voters had cast ballots, while on the call the defendant cited the number 4,925. 555 And he deferred to his private attorneys at multiple points throughout the conversation. For instance, after [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] told the defendant, "the challenge that you have is the data you have is wrong," the defendant turned to [CLETA MITCHELL, TRUMP ATTORNEY] and asked, "Well, [CLETA MITCHELL, TRUMP ATTORNEY], how do you respond to that?" 556 At one point, [MARK MEADOWS] interjected and invoked the Campaign's litigation, asking whether "we can find some kind of agreement ... to find a path forward that's less litigious." 557 And near the end of the call, [KURT HILBERT, TRUMP ATTORNEY IN TRUMP V. KEMP], the defendant's lead counsel in the lawsuit against [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE], requested "to sit down with your office, and we can do it through purposes of compromise just like this phone call" to review data. 558 [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] counsel, [RYAN GERMANY, BRAD RAFFENSPERGER’S GENL. COUNSEL], responded that [KURT HILBERT, TRUMP ATTORNEY IN TRUMP V. KEMP]'s cited numbers were inaccurate, but agreed to meet with him. 559

The defendant's call to [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] was purely a private one, which he undertook as a candidate and the plaintiff in a lawsuit. Indeed, a federal district court has concluded that the [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] call was a Campaign call rather than official business; when [MARK MEADOWS] sought removal to federal court of his criminal case in Fulton County, Georgia, a court in the Northern District of Georgia issued an order declining to assume jurisdiction because [MARK MEADOWS] had failed to meet his burden of showing that his role in the call was official rather than unofficial. See Georgia v. Meadows, 692 F. Supp. 3d 1310, 1332 (N.D. Ga. 2023), aff'd 88 F. 4th 1331, 1349 (11th Cir. 2023) (petition for cert. filed) ('[DELETE]'s participation in the call reflected a clear attempt to further Trump's private litigation interests .... ") (emphasis in original)); see also Arizona v. Meadows, No. CV-24-02063-PHX-JJT, 2024 WL 4198384, at *7 (D. Ariz. Sept. 16, 2024) (similarly denying [DELETE]'s notice of removal to federal court of a criminal case in Arizona related to the defendant’s fraudulent elector plan on the basis that [DELETE]'s conduct in furtherance of the plan charged by the State “is unrelated to official duties”).

2. Even if the defendant’s contacts with state officials were official, the Government can rebut the presumption of immunity

Although the Supreme Court did not resolve the issue in Trump, it described the basis for concluding that using the defendant’s conduct of lying to and pressuring state officials to change the legitimate vote in a criminal prosecution would not intrude on Executive Branch functions or authority:

Indeed, the Constitution commits to the States the power to “appoint” Presidential electors “in such Manner as the Legislature thereof may direct.” Art. II, § 1, cl. 2; see Burroughs v. United States, 290 U.S. 534, 544 (1934). “Article II, § 1’s appointments power,” we have said, “gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.” Chiafalo v. Washington, 591 U.S. 578, 588–589 (2020). By contrast, the Federal Government’s role in appointing electors is limited. Congress may prescribe when the state-appointed electors shall meet, and it counts and certifies their votes. Art. II, § 1, cls. 3, 4. The President, meanwhile, plays no direct role in the process, nor does he have authority to control the state officials who do. And the Framers, wary of “cabal, intrigue and corruption,” specifically excluded from service as electors “all those who from situation might be suspected of too great devotion to the president in office.” The Federalist No. 68, at 459 (A. Hamilton); see Art. II, § 1, cl. 2.


144 S. Ct. at 2339. Under the Constitution, the Executive Branch has no constitutionally assigned role in the state-electoral process. To the contrary, the constitutional framework excludes the President from that process to protect against electoral abuses. See supra p. 93. Accordingly, applying federal criminal law to the defendant’s use of fraud to interfere with electoral processes carried out by the states does not intrude on Executive Branch authority or functions. Rather, it ensures that the President’s conduct remains consistent with the Constitution’s allocation of that authority to the States, while in no way impairing his ability to “encourage [state officials] to act in a manner that promotes the President's view of the public good." 144 S. Ct. at 2338. The President remains free, for instance, to urge state officials to institute measures to combat a pandemic or make arrangements to provide emergency relief. This case does not remotely implicate such official conduct. What neither the President nor any other candidate may do is further his private campaign for office by using fraudulent means to have state officials certify him as winner of a presidential election despite the will of the voters. Accordingly, applying criminal penalties to that conduct will not intrude on any Executive Branch authority or function.

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C. The defendant's efforts, as a candidate, to organize fraudulent electors

1. The conduct at issue was unofficial

The defendant's conduct with respect to the elector scheme is inherently private, and not subject to immunity. See 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part) ("Sorting private from official conduct sometimes will be difficult -- but not always. Take the President's alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection."). The President of the United States has no official responsibilities related to the organization or voting of electors in the various states -- by virtue of the Constitution, that process takes place in the states according to the laws and procedures set forth by each state. See U.S. Const., Art. II, § I , d. 2. At oral argument before the Supreme Court, the defendant initially conceded that the plan to submit fraudulent electors directed by the defendant and [RUDY GIULIANI] was not official. Tr. of Oral Argument at 29-30; Trump, 144 S. Ct. at 2338. The Government nonetheless sets forth here the context, form, and content of the defendant's private contacts with RNC Chairwoman [RONNA MCDANIEL, THEN-RNC CHAIR] in furtherance of the fraudulent elector plan because the defendant conversely suggested in the same oral argument that he will argue that those efforts were official. See 144 S. Ct. at 2338.

The defendant had two relevant contacts with [RONNA MCDANIEL, THEN-RNC CHAIR] first, he and co-conspirator [JOHN EASTMAN] called [RONNA MCDANIEL, THEN-RNC CHAIR] on December 6 to ask her to ensure that the effort was properly coordinated (Superseding Indictment, ECF No. 226 § 53; supra p. 50), and second, on the evening of December 14, [RONNA MCDANIEL, THEN-RNC CHAIR] emailed the defendant through his executive assistant, [MOLLY MICHAEL, TRUMP EXEC. ASSIST.], to inform him that the fraudulent electors had cast votes as he had directed (Superseding Indictment, ECF No. 226 § 66; supra p. 57).

The defendant and [JOHN EASTMAN] call to [RONNA MCDANIEL, THEN-RNC CHAIR] on December 6 was private. The defendant placed the call along with [JOHN EASTMAN], a private attorney and co-conspirator, to [RONNA MCDANIEL, THEN-RNC CHAIR], the Chairwoman of a political organization whose objective was to elect a broad set of Republicans at the federal and state level, including the defendant and other allied candidates. 560 [JOHN EASTMAN] was acting in his capacity as a private attorney for the defendant; on the same day, [JOHN EASTMAN] emailed with several other private attorneys and wrote, "This is huge -- and hugely important. Let's make sure the various state electors are aware of the absolute necessity of meeting on the 14th, casting their votes, and otherwise complying with the transmittal requirements of federal law." 561 Finally, the content of the call was likewise unofficial. The defendant and [JOHN EASTMAN] asked [RONNA MCDANIEL, THEN-RNC CHAIR] to work with the Campaign, to ensure that the fraudulent electors were properly organized, which she agreed to do -- and did, as is clear from her further contacts with [RUDY GIULIANI] and [BORIS EPSHTEYN] regarding the plan. 562

[RONNA MCDANIEL, THEN-RNC CHAIR] email to the defendant on December 14 was likewise a private communication; [RONNA MCDANIEL, THEN-RNC CHAIR] simply forwarded the defendant an RNC communication summarizing the electoral vote to inform him that the private task the defendant had given her was complete, and [MOLLY MICHAEL, TRUMP EXEC. ASSIST.] confirmed that she had relayed the message by writing, "It's in front of him!" 563 As discussed infra pp. 145-147, when a White House staffer facilitates unofficial conduct by relaying private, political communications, the private action is not converted to an official one simply because an Executive Branch aide helps carry it out.

2. Even if the conduct were deemed official, the Government could rebut the presumption of immunity

In any event, even if the defendant's efforts to convene fraudulent electors could be considered official, the prescription would be rebutted because "a President has no legal authority -- and thus no official capacity -- to influence how the States appoint their electors," and accordingly, there is "no plausible argument for barring prosecution of that alleged conduct." Trump, 144 S. Ct. at 2353 n. 2 (Barrett, J., concurring in part). "[W]hile Congress has a limited role [in the appointment of Presidential electors], the President has none." Id. Accordingly, applying the criminal law to the defendant's "alleged attempt to organize alternative slates of electors," while properly viewed as prosecution for private conduct, see id., implicates no authority or functions of the Executive Branch -- and therefore including such conduct in the defendant's prosecution poses no danger of intruding on Executive Branch authority or functions. No federal executive function is impaired by applying criminal law to the alleged conduct of privately organizing fraudulent slates of electors.

D. The Defendant’s Public Speeches, Tweets, and Other Public Statements as a Candidate

1. The statements at issue were unofficial

Merely because the President is speaking to the public—even on “matters of public concern”—does not automatically render the communication official. Blassingame, 87 F.4th at 19-20. Instead, what matters is “whether the President is speaking (or engaging in conduct) in an official capacity as office-holder or instead in an unofficial capacity as officer-seeker,” id. at 19, as determined by “content, form, and context,” Trump, 144 S. Ct. at 2340. Starting before the election and lasting until January 6, the defendant at various times communicated publicly not as President but as a candidate for office. These communications included public Campaign speeches, Tweets, and other public statements and comments. The defendant’s communications that the Government has alleged in the superseding indictment and described in Section I were all made in his capacity as a candidate and are not official.

a. Speeches

The defendant made a number of speeches as a candidate, rather than as an office-holder. See 144 S. Ct. at 2339-40 (“There may . . . be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader.”). The superseding indictment cites, and the Government plans to use at trial, two: the defendant’s Campaign speech at a political rally in Dalton, Georgia, on January 4, 2021, and his Campaign speech at a political rally on the Ellipse on January 6, 2021.

i. Dalton, Georgia, on January 4, 2021 (supra p. 68)

In his capacity as a candidate, the defendant traveled to Dalton, Georgia, on January 4 at the invitation of two Republican U.S. Senators who were competing in a run-off election the following day to retain their seats. The RNC paid for the event. 564

The White House's records, including the trip binder that White House staff prepared for the event and that includes a schedule and manifests, further confirm the private nature of the Dalton speech. 565 The defendant was the only Executive Branch participant in the event -- other attendees were federal and state elected officials, the Chairman of the Georgia Republican Party, and the founder of Bikers for Trump. 566 The trip binder included a Hatch Act disclaimer stating that "employees of the Federal Government may not use their official title or position when participating in a political event." 567 Its description of the "event" to which the defendant was traveling was "Remarks at Victory Rally." 568 Similarly, the Presidential Daily Diary from that day describes that "[t]he President made remarks at the Georgia Senate Victory Rally." 569 This nomenclature -- the use of the phrase "Victory Rally" -- is significant. "Victory" necessitates one political candidate or party defeating another, and rallies are the kinds of events that candidates hold to excite their supporters and garner votes.

Moreover, the defendant's Campaign sent numerous fundraising emails before, during, and after the speech, confirming the event's private nature. In a January 4 email around 3:00 p.m., the Campaign sent a fundraising email with the subject line "EPIC Rally in 6 HOURS," that began, "President Trump is heading to GEORGIA for a RALLY with Senators [SEN. KELLY LOEFFLER (R. GA] and [SEN. DAVID PERDUE (R. GA.)]. This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU, are fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff Election is TOMORROW, and it's going to take the support of Patriots from all around the Nation if we're going to WIN BIG and SAVE America from the Radical Left." 570 Later, at 9:21 p.m., the Campaign sent a fundraising email (in the name of the defendant's son) that began, "My father is on stage RIGHT NOW in Georgia rallying with Senators and to DEFEND our Senate Republican Majority. Are YOU watching?" 571 The email reminded voters that "The Senate Runoff Election is TOMORROW and YOU are the only one who can stop ["the Left"] from taking over." 572 Another email at 10:41 p.m. (sent in the name of the defendant) began, "I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators [SEN. KELLY LOEFFLER (R. GA] and [SEN. DAVID PERDUE (R. GA.)]. The energy of the American People was UNMATCHED and I know we're going to WIN BIG tomorrow."573

Finally, the content of the Dalton speech confirms its unofficial nature. The defendant began by telling the crowd, "Tomorrow, each of you is going to vote in one of the most important runoff elections in the history of our country . . . . You're going to get everyone you know. You're going to show up to the polls in record numbers. You got to swamp them, and together, we're going to defeat the Democrat extremists and deliver a thundering victory to [SEN. DAVID PERDUE (R. GA.)]. And someone that has really been a star in Washington, [SEN. DAVID PERDUE (R. GA.)]. 574 He also used the speech to pressure Pence. 575 Much of the speech then veered into the defendant's principal claims of fraud and irregularities in the presidential election, but he occasionally returned to the theme of the following day's election, including discussion of the Democratic candidates. 576

ii. The Ellipse on January 6, 2021 (Superseding Indictment, ECF No. 226 § 86; supra pp. 75-78)

The "content and context" of the Ellipse rally, including the people involved in "organizing the rally," Trump, 144 S. Ct. at 2340, demonstrate that it too consisted of non-official conduct. The Ellipse rally -- named the Save America Rally or the March for Trump -- was planned and executed by private political supporters, including Women For America First (WFAF), a 501 (c)(4) organization that advocated for the defendant's reelection in advance of election day in 2020 and throughout the post-election time period. 577 Cf. Trump, 144 S. Ct. at 2340 ("Knowing . . . who was involved in ... organizing the rally[] could be relevant to the classification" of the Ellipse speech as official or unofficial.). The Ellipse rally was originally planned to take place at Freedom Plaza, but after WFAF began to plan the rally independent of the defendant, [CAROLINE WREN, TRUMP FUNDRAISER PLANNED ELLIPSE RALLY], a private fundraiser for the defendant, contacted WFAF to discuss moving the event to the Ellipse and featuring the defendant as a guest. 578 The organizers and planners of the event were almost exclusively private individuals, with minimal involvement by White House advance staff. The United States Secret Service, which is charged with the President's protection at all times, even during unofficial events, considered the rally to be "a campaign event." 579 The rally was completely funded by a $2.1 million private donation by [JULIE FANCELLI, “GROCERY STORE HEIRESS”, PLAYED ROLE IN “STOP STEAL” RALLY], a grocery chain heiress. 580 This private funding, while not dispositive, is a strong indicator that the event was unofficial. [ELLIPSE RALLY ORGANIZER], the rally organizer who had the most direct contact with the defendant, was an employee of the defendant's Campaign until December 31, 2020, and after that, a private citizen. 581 And in public statements since leaving office, the defendant has said repeatedly that he "had nothing to do with" the rally "other than they asked me to make a speech. I showed up for a speech." 582

For weeks leading up to the event, the defendant promoted it on Twitter using the word "rally" -- a word that the defendant, on his Twitter account, reserved almost exclusively for political and Campaign events. As with the trip binder for the Dalton remarks, the defendant's trip binder for the Ellipse speech also reinforces the private nature of the event. Although it does not include the same Hatch Act disclaimer -- perhaps because the event, in contrast to the Dalton rally, was not for the benefit of another political candidate -- it describes the event as the defendant's "Remarks at the Save America Rally" -- using a word, "rally," that reflected an unofficial, Campaign-related event. 583

The defendant's White House employees understood the rally and the defendant's speech at it to be a private, unofficial exercise and acted accordingly. Consistent with the Hatch Act's requirement that officials within the Executive Branch (other than the President or Vice President) must refrain from using their official authority for partisan political purposes, see 5 U.S.C. § 7323(a)(1), on the morning of the rally, an email from White House photographer [SHEALAH CRAIGHEAD, TRUMP WHITE HOUSE PHOTOGRAPHER] on which [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF] was copied, provided "[a] reminder today is a political event." 584 Likewise, the defendant's White House speechwriting staff understood that the speech was a political, unofficial one and used their personal devices and personal email accounts to do most of the drafting and fact-checking for the defendant's Ellipse speech, though some last revisions to the speech on the morning of January 6 occurred over White House email. 585 And officials in the White House Counsel's Office who customarily reviewed the defendant's official remarks pointedly did not review the Ellipse speech because it was an unofficial Campaign speech. 586 Similarly, the White House website in the moments after the defendant's speech at the rally made no mention of it -- instead, the official webpage touted official accomplishments like COVID vaccines and peace in the Middle East. 587 By contrast, the speech was advertised heavily by the defendant's Campaign Twitter account, which also repeatedly posted clips of the event in progress and afterward. 588

The day-of-logistics of the Save America Rally further indicate its private nature. No other Executive Branch officials spoke. Instead, other speakers included WFAF officials, the defendant's political allies, two U.S. Representatives, and the defendant 's co-conspirators and private attorneys, [RUDY GIULIANI] and [JOHN EASTMAN]. 589

Moreover, the defendant's appearance was consistent with a Campaign rally, not an official event. The crowd at the rally consisted of the defendant's political supporters, who held signs and wore clothing bearing the defendant's Campaign slogans. 590 And the manner in which the defendant took the stage at the rally was also consistent with his Campaign rallies: instead of entering as a military band played Hail to the Chief, as he might at an official presidential event, the defendant entered and exited the Ellipse speech to the songs he had used throughout his Campaign (Lee Greenwood's "God Bless the U.S.A." and the Village People's "Y.M.C.A." 591).

Tellingly, the significant similarities with the defendant's Dalton Campaign speech 592 confirm that the Ellipse speech 593 -- delivered just two days later-was private, partisan electioneering. The defendant covered many of the same topics and told many of the same lies about fraud in only his election -- in some cases, using the exact same words. For instance:

• The defendant, as a candidate, falsely claimed he had won the election (Dalton at GA 1102: "I ran two elections. I won both of them. Second one, much more successful than the first." Ellipse at GA 1115: "I've been in two elections; I won them both, and the second one I won much bigger than the first.").

• The defendant, as a candidate and the leader of a political party, implored political supporters to pressure Pence (Dalton at GA 1090: "I hope Mike Pence comes through for us, I have to tell you. I hope that our great Vice President, our great Vice President comes through for us. He's a great guy. Of course, if he doesn't come through, I won't like him quite as much." Ellipse at GA 1116: "I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election.").

• The defendant, as a candidate and the leader of a political party, attacked a fellow party member who had been insufficiently subservient (Dalton at GA 1104: Georgia Governor [GOV. BRIAN KEMP (R)] was an "incompetent governor." Ellipse at GA 1125: [GOV. BRIAN KEMP (R)] was "one of the dumbest governors in the United States.").

• The defendant, who in his capacity as a candidate had suffered personal legal defeats in his private, election-related litigation at the Supreme Com1, attacked it (Dalton at GA 1095: "I'm not happy with the Supreme Court. They are not stepping up to the plate. They're not stepping up." Ellipse at GA 1125: "I'm not happy with the Supreme Court. They love to rule against me.").

• The defendant, as a candidate, made myriad false claims regarding fraud in the presidential election, including:

o Arizona

• Non-citizens cast 36,000 votes (Dalton at GA 1106: "In Arizona, more than 36,000 votes were cast by non-citizens." Ellipse at GA 1134: "Over 36,000 ballots were illegally cast by non-citizens."); and
• There were more ballots than voters (Dalton at GA 1106: “There were 11,000 more ballots than there were voters.” Ellipse at GA 1134: “11,600 more ballots and votes were counted, more than there were actual voters.”).

o Georgia

• There were more than 10,000 dead voters (Dalton at GA 1103: “We were up. 10,315 ballots were cast by individuals whose name and date of birth matches a Georgia resident who died in 2020 prior to the election. Then your wacky secretary of state said two people, two people.” Ellipse at GA 1133-1134: “Over 10,300 ballots in Georgia were cast by individuals whose names and dates of birth match Georgia residents who died in 2020 and prior to the election.”);

• More than 2,500 ineligible felons voted (Dalton at GA 1103: “2,506 ballots were cast by individuals whose name and date of birth matches an incarcerated felon in a Georgia prison. Maybe they aren’t all there, but they did a lot of work. I paid a lot of money to a lot of people. I can tell you that.” Ellipse at GA 1134: “More than 2,500 ballots were cast by individuals whose names and dates of birth match incarcerated felons in Georgia prison—people who are not allowed to vote.”);

• Thousands of unregistered people voted (Dalton at GA 1103: “4,502 illegal ballots were cast by individuals who do not appear on the state’s voter rolls.” Ellipse at GA 1134: “More than 4,500 illegal ballots were cast by individuals who do not appear on the state’s own voter rolls.”);

• More than 18,000 voters used vacant addresses (Dalton at GA 1103: “18,325 illegal ballots were cast by individuals who registered to vote using an address listed as vacant according to the postal service.” Ellipse at GA 1134: “Over 18,000 illegal ballots were cast by individuals who registered to vote using an address listed as ‘vacant,’ according to the Postal Service.”);

• At least 88,000 ballots were illegally backdated (Dalton at GA 1103: “At least 86,880 ballots were cast by people whose registrations were illegally backdated.” Ellipse at GA 1134: “At least 88,000 ballots in Georgia were cast by people whose registrations were illegally backdated.”);

• Underage voters cast 66,000 ballots (Dalton at GA 1103: “66,000 votes in Georgia were cast by people under the legal voting age.” Ellipse at GA 1134: “66,000 votes—each one of these is far more than we need. 66,000 votes in Georgia were cast by individuals under the legal voting age.”); and

• 15,000 voters had moved out of the state before the election (Dalton at GA 1103: “At least 15,000 ballots were cast by individuals who moved out of the state prior to the November 3rd election, or maybe they moved back in.” Ellipse at GA 1134: “And at least 15,000 ballots were cast by individuals who moved out of the state prior to November 3rd election. They say they moved right back. They moved right back. Oh, they moved out; they moved right back. Okay. They missed Georgia that much. I do. I love Georgia. But it’s a corrupt system.”).

o Michigan

• 17,000 ballots were cast by dead people (Dalton at GA 1106: “An estimated 17,000 ballots were cast by dead people.” Ellipse at GA 1135: “More than 17,000 Michigan ballots were cast by individuals whose names and dates of birth match people who were deceased.”).

o Nevada

• Signature verification machines were flawed (Dalton at GA 1106: “In Clark County, Nevada, over 130,000 ballots, this is far, just so you know, all these numbers, these are far more than we need, were processed on machines where the signature matching threshold was intentionally lowered to a level that you could sign your name, ‘Santa Claus,’ and it wouldn’t pick it up.” Ellipse at GA 1134: “In Clark County, Nevada, the accuracy settings on signature verification machines were purposely lowered before they were used to count over 130,000 ballots.”); and

• There were tens of thousands of double votes (Dalton at GA 1106: “More than 42,000 people in Nevada double voted.” Ellipse at GA 1134: “There were also more than 42,000 double votes in Nevada.”).

o Pennsylvania

• The Commonwealth had more votes than voters (Dalton at GA 1105: “In Pennsylvania, there were 205,000 more ballots cast than there were voters.” Ellipse at GA 1127: “So, in Pennsylvania, you had 205,000 more votes than you had voters.”);

• 8,000 dead people voted (Dalton at GA 1106: “Pennsylvania also had an estimated 8,000 dead voters.” Ellipse at GA 1127: “Over 8,000 ballots in Pennsylvania were cast by people whose names and dates of birth match individuals who died in 2020 and prior to the election.”);

• 14,000 out-of-state voters voted (Dalton at GA 1106: “14,000 ballots illegally cast by out of state voters.” Ellipse at GA 1127: “Over 14,000 ballots were cast by out-of-state voters. So these are voters that don’t live in this state.”);

• 400,000 absentee ballots appeared after the election (Dalton at GA 1106: “There’s an unexplained 400,000 vote discrepancy between the number of mail-in ballots in Pennsylvania sent out reported on November 2nd, 2020, and the number reported on November 4th. They can’t explain it. 400,000 previously unreported mail-in ballots, magically appeared. They couldn’t explain it. And all of a sudden they just happened to find 400,000. That’s a lot of people.” Ellipse at GA 1128: “The day before the election, the state of Pennsylvania reported the number of absentee ballots that had been sent out, yet this number was suddenly and drastically increased by 400,000 people. It was increased—nobody knows where it came from—by 400,000 ballots one day after the election.”); and

• Tens of thousands of ballots were received back before they were mailed out (Dalton at GA 1106: “55,000 ballots received back before they were even sent.” Ellipse at GA 1128: “And more than 60,000 ballots in Pennsylvania were reported received back—they got back—before they were ever supposedly mailed out. In other words, you got the ballot back before you mailed it, which is also logically and logistically impossible. Right?”).

o Wisconsin

• Hundreds of illegal drop boxes were used (Dalton at GA 1105: “In Wisconsin over 90,000 ballots were illegally harvested. Can’t do that. Not allowed to. Through so-called human drop boxes and over 500 illegal unmanned drop boxes were put out statewide.” Ellipse at GA 1131: “In Wisconsin, corrupt Democrat-run cities deployed more than 500 illegal, unmanned, unsecured drop boxes, which collected a minimum of 91,000 unlawful votes.”); and

• 170,000 invalid absentee votes were counted (Dalton at GA 1105: “Over 170,000 absentee votes were counted that are blatantly illegal under Wisconsin law and should never have been included in the tally.” Ellipse at GA 1131: “Over 170,000 absentee votes were counted in Wisconsin without a valid absentee ballot application. So they had a vote, but they had no application, and that’s illegal in Wisconsin.”).

The defendant’s language throughout the speech was that of a candidate focused on his reelection. He claimed that he would not concede, that he received more votes than he had four years earlier, that the election was over by 10:00 p.m. on election night, and that he wanted to goback eight weeks to fix the election result. Significantly, he made many of these statements at the beginning of the speech, framing the themes for the rest of the speech. 594

In addition, although countless federal, state, and local races also were on the same ballots as the defendant on election day—including those of every sitting member of the House of Representatives, even those on whom the defendant was counting to object at the congressional proceeding—the defendant focused only on his own race, the election for President, and only on allegations favoring him as a candidate in targeted states he had lost. 595 He claimed his “election victory” was “stolen,” that he would not “concede,” and that “with only three of the seven states in question, we win the presidency of the United States.” 596 He framed the claims of election fraud in terms of his own election and the margin of victory in his own race, and he spoke to his political supporters using the pronoun “we”—showing that he was speaking not to all citizens, but only to his own voters. 597 Finally, the defendant repeatedly aimed accusations at Biden, his principal opponent in the election contest, as would a candidate. 598

b. Tweets

One of the tools the defendant used for partisan political advantage—and in furtherance of the charged conspiracies—was his personal Twitter account. He used his Twitter account to undermine public confidence in the electoral system, spread false claims of election fraud, attack those speaking the truth that the defendant had lost the election, exhort supporters to travel to Washington for the certification proceeding, and marshal his supporters’ anger at, and pressure on, Pence. As described below, an objective analysis of “content, form, and context,” id. at 2340, establishes that the select Tweets that the Government intends to offer at trial were unofficial.

As an initial matter, the defendant sent, or directed the sending of, all Tweets and re-Tweets from @realDonaldTrump, the personal Twitter account that the defendant started long before assuming the presidency. 599 The defendant began tweeting from @realDonaldTrump in May 2009. Throughout his campaign for the presidency in 2016, the defendant used this Twitter account for electioneering purposes; he even announced the selection of Pence as his Vice Presidential nominee over Twitter. 600 Since the end of his term in office, the defendant again has used the account for private purposes. During his presidential term, the defendant sometimes used the @realDonaldTrump account to tweet about official business, including regarding COVID relief and vaccines, legislation in Congress, and Executive Branch business. But he also regularly used the account to post on unambiguously private matters—for example, when he posted a picture of himself golfing with Jack Nicklaus and Tiger Woods at the Trump National Golf Club in Jupiter, Florida, and re-tweeted a Trump Organization post about the Trump New York hotel being “named the #1 ‘Best Hotel in the World!’” 601

The Supreme Court’s decision in Lindke v. Freed, 144 S. Ct. 756, 769 (2024), confirms that a public official’s personal social-media account can be used for both personal and public business, and—consistent with Trump—that a fact-specific inquiry is required to discern into which category a post falls. In conducting the necessary Tweet-by-Tweet analysis, context and content matter. Simply because a Tweet relates to a matter of public concern does not automatically transform it into an official communication. In Blassingame, 87 F.4th at 20, the D.C. Circuit rejected the defendant's contention that any and all of the President's communications are immune official acts whenever they involve a matter of public concern. The D.C. Circuit recognized that the "integrity of the 2020 election" was a matter of public concern, but if the defendant spoke about that issue "in his personal capacity as a candidate for reelection rather than in his official capacity as President," it was unofficial speech not shielded by immunity. Id. Thus, when a court consults "content and context" to inform the official-act inquiry, see Trump, 144 S. Ct. at 2340, a claim that all Tweets concerning election integrity were official must fail.

An analysis of the @realDonaldTrump account during the time period of the charged conspiracies demonstrates that the defendant frequently used the account to advance his unofficial objectives as a candidate. Of the more than 1,200 Tweets, the vast majority were related to the 2020 presidential election. For example, he announced over Twitter that [RUDY GIULIANI] and others were taking over his Campaign legal team, and he repeatedly used the platform to espouse false claims of election fraud and promote political rallies on his behalf. 602 [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF], the defendant's Deputy Chief of Staff and the only person other than the defendant with control over the @realDonaldTrump Twitter account, acknowledged that he sometimes consulted with Campaign personnel about material he was going to post on the account, that he worked as a volunteer for the defendant's Campaign at the same time that he served as Deputy Chief of Staff, and that he did not differentiate between his official and Campaign duties and when he would send Tweets on the account for Campaign purposes as a Campaign volunteer. 603

A review of the defendant’s official @POTUS45 account presents a relevant contrast. The defendant used this institutional account primarily to re-tweet other accounts like the @realDonaldTrump account, as well as @WhiteHouse. There were 74 Tweets from the @POTUS45 account during the charged conspiracies. 604 None of them include the defendant’s election-related claims or his election challenges. 605 The last four Tweets in the account, which the Government cites here to show context, were re-Tweets of Tweets from @realDonaldTrump regarding January 6. 606 These include two Tweets that the defendant issued on the afternoon of January 6 purportedly asking individuals to support law enforcement and “stay” peaceful; notably, the @POTUS45 account archive does not include the defendant’s Twitter pressure campaign against Pence, such as the 2:24 p.m. Tweet on January 6. 607

Below, the Government analyzes the “content, form, and context,” id. at 2340, of various categories of the defendant’s Tweets. All of these categories consist of unofficial Tweets.

i. Tweets, as candidate, casting doubt on election integrity

As described in Section 1, the defendant attempted to discourage mail-in voting and undermine confidence in the election results to prepare to declare victory even if he lost. See, e.g., supra p. 6. Just as his public statements casting doubt on the election were unofficial, so too were the analogous Tweets that the defendant posted in his capacity as a candidate. The context of these Tweets confirms this conclusion. The defendant issued the Tweets in advance of election day, in the midst of his campaign for re-election; furthermore, he made them while his own Campaign advisors were warning him that Biden supporters were much more likely to use mail-in voting, the very method the defendant attempted to discourage. In addition, the Tweets' content further reinforces their private nature; they show the defendant taking a partisan electioneering position on an issue rather than proposing any official measures to address a problem that the defendant claimed existed.

ii. Tweets making false claims of election fraud

The superseding indictment alleges that the defendant repeated and widely disseminated false claims of election fraud. See, e.g., Superseding Indictment, ECF No. 226 §§ 12, 14. One of the ways that he did so was by Tweet, constantly, day in and day out. Examples of the kinds of Tweets that the Government intends to use at trial are set forth throughout Section 1, in which the defendant falsely claimed victory and outcome-determinative election fraud in targeted states. See e.g., supra pp. 22-23, 32, 45, 55-56, 62-63.

These kinds of Tweets all shared common internal characteristics that establish their unofficial nature. The defendant used the language of a candidate when he spoke in terms of his personal electoral victory ("I win!" or "We win!"). 608 He divided his audience between personal allies who supported his election challenges and enemies who did not, dismissing the latter as "RINOs" (shorthand for Republicans in Name Only) or "the Democrats." 609 And he focused only on fraud claims that would affect his own election and was fixated on his own margin of victory ("far more votes than are necessary to win"). 610

iii. Tweets and re-Tweets attacking those speaking the truth about the election

On multiple occasions, the defendant issued a Tweet, or re-tweeted an agent's Tweet, in order to attack individuals who had spoken out publicly to defend the integrity of the 2020 presidential election and reassure the public that there had not been outcome-determinative fraud. These instances include: on November 11, the defendant attacked Philadelphia City Commissioner [AL SCHMIDT, A THEN-PHILADELPHIA CITY COMMISSIONER, (R), TRUMP CRITICIZED FOR REFUSING TO OVERTURN ELECTION] after he dispelled fraud claims in a television interview that the defendant saw; 611 on November 29, the defendant issued a Tweet attacking [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] when he appeared on 60 Minutes, 612 on December 6, the defendant re-tweeted a post by his agent, [CHRISTINA BOBB] attacking Arizona House Speaker [FORMER REP. RUSTY BOWERS (R)] for a public announcement that the defendant had not presented Arizona legislators with any evidence of outcome-determinative fraud and that the Arizona legislature could not overturn election results based on unsupported theories of fraud; 613 again on December 6, the defendant re-tweeted a post by his agent, [BERNIE KERICK, EX-NYPD COMMISSIONER, ATTACKED PA. LAWMAKERS] labeling four Republican state legislators "cowards" after they issued a public announcement that they could not overturn the popular vote and appoint their own electors; 614 and on December 21, the defendant attacked Wisconsin Supreme Court Justice [BRIAN HAGEDORN, CONSERVATIVE WI. SUPREME CT. JUSTICE, TRUMP CRITICIZED FOR REJECTING TRUMP ELECTION LAWSUJIT] for ruling against him. 615

(a) [AL SCHMIDT, A THEN-PHILADELPHIA CITY COMMISSIONER, (R), TRUMP CRITICIZED FOR REFUSING TO OVERTURN ELECTION] (Superseding Indictment, ECF No. 226 § 41; supra p. 38)

After [AL SCHMIDT, A THEN-PHILADELPHIA CITY COMMISSIONER, (R), TRUMP CRITICIZED FOR REFUSING TO OVERTURN ELECTION] then a Philadelphia City Commissioner, gave a television interview on November 11 and made clear that he had not seen evidence of fraud there, the defendant issued a Tweet attacking [AL SCHMIDT, A THEN-PHILADELPHIA CITY COMMISSIONER, (R), TRUMP CRITICIZED FOR REFUSING TO OVERTURN ELECTION] in partisan terms. The defendant called [AL SCHMIDT, A THEN-PHILADELPHIA CITY COMMISSIONER, (R), TRUMP CRITICIZED FOR REFUSING TO OVERTURN ELECTION] a "so called Republican (RINO)" and finished the Tweet with "We win!" 616 In so doing, the defendant was acting as a candidate frustrated that a member of his political patty refused to perpetuate the lies the defendant was promoting to advance his personal political interests.

(b) [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] (supra pp. 45)

On November 29, when 60 Minutes aired an interview with [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] formerly the CISA director, defending the integrity of the election, the defendant tweeted an attack on the television program and [DOMINION VOTING SYSTEMS] and claimed that the 2020 election was "probably our least secure EVER!" 617 These complaints about [DOMINION VOTING SYSTEMS] and mail-in ballots echoed others which the defendant was making regularly as a candidate only in states in which he had lost the election. 618 He also issued the Tweet between two other Tweets in which he was speaking as a candidate. Thirty minutes before the [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] Tweet, the defendant used his @realDonaldTrump account to discuss Campaign litigation -- specifically, he wrote, "We have some big things happening in our various litigations on the Election Hoax. Everybody knows it was Rigged. They know Biden didn't get more votes from the Black community than Obama, & certainly didn't get 80,000,000 votes. Look what happened in Detroit, Philadelphia, plus!" 619 And within twenty minutes of the [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] Tweet, the defendant issued another Tweet about 60 Minutes, this time asking whether the "Fake News" program was paying attention to a Tweet that the defendant then linked to by [MICHAEL FLYNN, TRUMP FRMR. NAT. SEC. ADVISOR] -- then a private citizen -- who in turn was publicizing what he characterized as a Campaign litigation victory on the defendant's behalf by co-conspirator [SIDNEY POWELL] in litigation in Georgia. 620

The defendant's Tweet regarding 60 Minutes and [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] was unofficial. The Campaign litigation-focused Tweets surrounding it demonstrate that the "us" whom the defendant claims 60 Minutes never consulted was the defendant's Campaign, not his Administration.

(c) [FORMER REP. RUSTY BOWERS (R)] (DELETE) and Pennsylvania legislators (Superseding Indictment, ECF No. 226 §§ 21, 43; supra pp. 20, 40)

In the early morning hours on December 6, upon returning from a Campaign speech in Valdosta, Georgia, the defendant re-tweeted a December 4 Tweet from [CHRISTINA BOBB] who was working with the Campaign and [BORIS EPSHTEYN] to overturn the election results 621 -- attacking Arizona House Speaker [FORMER REP. RUSTY BOWERS (R)] after [FORMER REP. RUSTY BOWERS (R)] released a public statement that he had not seen evidence of election fraud and could not take action to overturn the election results in Arizona. 622 Just four minutes earlier, the defendant had written "Thank you [CHRISTINA BOBB]!" 623 while re-tweeting another of [CHRISTINA BOBB] Tweets that read, "President Trump is back on the campaign trail today!!! America is the best country on earth and @realDonaldTrump is the greatest President!" 624

On the same day, December 6, the defendant also re-tweeted a Tweet by [BERNIE KERICK, EX-NYPD COMMISSIONER, ATTACKED PA. LAWMAKERS], an agent of the defendant who was working closely with [RUDY GIULIANI]. 625 Tweet attacked four Pennsylvania legislators who, like [FORMER REP. RUSTY BOWERS (R)] had issued a public statement that they could not overturn the valid election results. The defendant re-tweeted [BERNIE KERICK, EX-NYPD COMMISSIONER, ATTACKED PA. LAWMAKERS] post without comment. 626

Both of the defendant's re-tweets on December 6 were unofficial. At the time, both [CHRISTINA BOBB] and [BERNIE KERICK, EX-NYPD COMMISSIONER, ATTACKED PA. LAWMAKERS] were, at a minimum, private agents of the defendant who were working to overturn the election results in his favor. [CHRISTINA BOBB] and [BERNIE KERICK, EX-NYPD COMMISSIONER, ATTACKED PA. LAWMAKERS] original Tweets were in service of that objective -- they were attempting to pressure state officials to take extralegal actions to replace their states' duly-ascertained electors with the defendant's fraudulent ones. The defendant's re-posting of these private Tweets was similarly private.

[BRIAN HAGEDORN, CONSERVATIVE WI. SUPREME CT. JUSTICE, TRUMP CRITICIZED FOR REJECTING TRUMP ELECTION LAWSUJIT] (Superseding Indictment, ECF No. 226 § 46; supra

On December 21, when Wisconsin's Governor signed a certificate of final determination confirming that Biden had won the state based on the resolution by the Wisconsin Supreme Court of a lawsuit in Biden's favor, the defendant took to Twitter to attack Justice [BRIAN HAGEDORN, CONSERVATIVE WI. SUPREME CT. JUSTICE, TRUMP CRITICIZED FOR REJECTING TRUMP ELECTION LAWSUJIT] who had written the majority opinion that ruled against him. 627 The defendant claimed -- falsely -- that he had endorsed [BRIAN HAGEDORN, CONSERVATIVE WI. SUPREME CT. JUSTICE, TRUMP CRITICIZED FOR REJECTING TRUMP ELECTION LAWSUJIT] in his election for the Wisconsin Supreme Court, and implied that the endorsement had caused [BRIAN HAGEDORN, CONSERVATIVE WI. SUPREME CT. JUSTICE, TRUMP CRITICIZED FOR REJECTING TRUMP ELECTION LAWSUJIT] to win. 628 The defendant then encouraged "Republicans in Wisconsin" to go "to their State Legislators and overturn this ridiculous State Election. We won in a LANDSLIDE!" 629 The entire context of the defendant's Tweet about his fictitious endorsement of [BRIAN HAGEDORN, CONSERVATIVE WI. SUPREME CT. JUSTICE, TRUMP CRITICIZED FOR REJECTING TRUMP ELECTION LAWSUJIT] his encouragement of Wisconsin Republicans to lobby their legislators, and his claim at the end that "We won" -- demonstrates that the Tweet as a whole was partisan, personal, and unofficial.

(e) Governor [FORMER GOV. DOUG DUCEY (R)], Governor [GOV. BRIAN KEMP (R)], and Secretary of State [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] (supra pp. 18, 26-31)

Throughout the post-election period, the defendant used his status and power as the head of a political party to bring political pressure to bear on fellow Republicans, including Arizona Governor [FORMER GOV. DOUG DUCEY (R)], Georgia Governor [GOV. BRIAN KEMP (R)], and Georgia Secretary of State [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE]. In the Tweets, the defendant assailed the three elected officials because they refused to take extralegal actions to benefit him personally, suggested that they would suffer politically if they did not do as he asked, and repeatedly suggested that they were "RINOs" and not real Republicans. The defendant launched these public attacks both as "a candidate for office" and as "a party leader," Trump, 144 S. Ct. at 2340, and they were thus unofficial.

iv. Tweets exhorting individuals to travel to Washington, D.C., for the Save America Rally (Superseding Indictment, ECF No. 226 §§ 68, 72, 79(b); supra pp. 60, 64, 71-73)

Beginning on December 19, and continuing through early January, the defendant used the @realDonaldTrump account to promote the private, campaign-style Ellipse rally at which he spoke on the morning of January 6. Indeed, some of the defendant's Tweets from this account were retweeted and amplified by the defendant's Campaign Twitter account. 630 The defendant's multiple Tweets on this topic 631 included his initial message that there would be a "[ b]ig protest in D.C. on January 6th. Be there, will be wild!" 632 In turn, that Tweet linked to a document drafted by [PETER NAVARRO] that had nothing to do with [PETER NAVARRO] official duties as a White House trade advisor, but rather constituted unofficial political activity by a Campaign volunteer who the Office of Special Counsel already had determined to have violated the Hatch Act on numerous occasions by attacking the defendant's opponent during the lead up to the 2020 presidential election. 633 For the reasons described supra pp. 118-126 that make clear that the Ellipse rally was a private event, and the defendant's remarks there unofficial, his Tweets as a candidate promoting the event were unofficial.

v. Tweets regarding Pence's role on January 6 (Superseding Indictment, ECF No. 226 §§ 69, 79(a), 82; supra pp. 61, 71-73)

As the defendant set his sights on using Pence's role as President of the Senate to overturn the election results at the January 6 certification proceeding, concurrent with his direct efforts to pressure Pence, the defendant began to issue Tweets falsely claiming that Pence could use his ministerial position to benefit the defendant as a candidate. For instance, on December 23, the defendant re-tweeted a Tweet by a Campaign surrogate named [IVAN RAIKLIN, TRUMP “CAMPAIGN SURROGATE”], who had posted a facially fake White House memorandum titled "Operation 'PENCE' CARD," which falsely claimed that Pence could unilaterally disqualify legitimate electors. 634 The defendant issued similar Tweets as the certification grew closer, including posting on January 5 that "[t]he Vice President has the power to reject fraudulently chosen electors." 635 And twice on the morning of January 6, before his speech at the Ellipse rally, the defendant tweeted again about Pence. First, at I:00 a.m., the defendant wrote, "[ i]f Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!" 636 He again focused on Pence's role in the certification at 8:17 a.m. when he wrote, "States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!" 637

The context and content of these Tweets establish that they were unofficial. Through the Tweets, the defendant was using the political pressure of his supporters and social media followers to convince Pence to take an action to benefit the defendant as a candidate and help him overturn the results of the election. As discussed supra pp. 91-96, the defendant played no official role in the congressional certification proceeding and was not using his Tweets about Pence’s role to advance any Executive Branch or governmental interest. Likewise, the defendant had no role in whether state legislatures might take action regarding their own electoral slates (though his claim that these legislatures were poised to do so was also false). And the defendant’s language throughout the Tweets is that of a candidate seeking to win an election, including stating to his political supporters that if Pence “comes through for us, we will win the Presidency” and “All Mike Pence has to do is send them back to the States, AND WE WIN.” 638

The private and Campaign nature of the Tweets is further confirmed when viewed in the context of the defendant’s increasing desperation as even his unlawful path to remain in power narrowed. When the defendant re-tweeted the “Operation Pence Card” Tweet on December 23, the defendant knew that he had lost the legitimate electoral college vote and had begun summoning supporters to Washington for the Ellipse rally on January 6. 639 When he tweeted on January 5 that Pence had the power to reject fraudulent electors, Pence already had “told him many times” that Pence did not believe he had such power—including as recently as the day before. 640 And in the early morning hours of January 6, when the defendant again tweeted publicly that Pence should exceed his authority as President of the Senate when counting electoral votes, the defendant’s personal desperation was at its zenith: he was only hours from the certification proceeding that spelled the end.

[admin]

vi. The defendant's 2:24 p.m. Tweet on January 6 (Superseding Indictment, ECF No. 226 § 94; supra pp. 80-81)

The defendant's 2:24 p.m. Tweet aimed at Vice President Pence was unofficial. The defendant personally posted the Tweet on the afternoon of January 6 at a point when he already understood that the Capitol had been breached, writing: "Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!" 641

The defendant's actions and knowledge in the hours leading up to this Tweet provide helpful context. First, the evening before, on January 5, the defendant had dictated a Tweet to [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF] as he listened to the angry crowd gathered outside the White House. 642 That Tweet shows that the defendant understood that his gathering supporters, who were angry and believed his false claims that the election had been stolen, were a powder keg. At 5:05 p.m., he tweeted: "Washington is being inundated with people who don't want to see an election victory stolen by emboldened Radical Left Democrats. Our Country has had enough, they won't take it anymore! We hear you (and love you) from the Oval Office. MAKE AMERICA GREAT AGAIN!" 643

Thereafter, the defendant continued to fixate on preventing the certification proceeding. As described above, he tweeted about it at 1:00 a.m. on January 6 and again at 8:17 a.m. 644 After the 8:17 a.m. Tweet, the defendant worked on his remarks for the Ellipse and planned to include language explicitly putting pressure on Pence regarding the certification until advisors prevailed on him not to. 645 At 11:15 a.m., the defendant called Pence and tried one last-ditch effort to convince him to fraudulently reject or return Biden's legitimate electors. 646 Pence was resolute and unmoved, and the defendant was furious. 647 Immediately after the call, the defendant directed that the original language targeting Pence be reinserted in his prepared remarks for the Ellipse rally. 648

The defendant then went to the Ellipse and delivered a falsehood-laden speech to his angry supporters. He purposely singled out Pence by claiming that Pence had the power to overturn the election results and-though the defendant stood at the podium with full knowledge that Pence would not do so -- gave the crowd false hope that Pence might exercise that power. 649 The defendant told the crowd to act, stating, we "can't let it happen" and then directed his supporters, who were angry and motivated by his speech, to march to the Capitol. 650

Instead of marching with his supporters as he said he would, the defendant returned to the White House. 651 He went to the dining room next to the Oval Office and began to watch television coverage of the events at the Capitol. 652 Although the Government does not intend to use at trial evidence of the defendant's discussions with White House staff during this time period, it provides necessary context: when news broke that rioters had breached the Capitol, the defendant's advisors -- including [PAT CIPOLLONE, TRUMP WHITE HOUSE COUNSEL], Deputy White House Counsel [PATRICK PHILBIN, TRUMP DEP. WHITE HOUSE COUNSEL] and [ERIC HERSCHMANN, WHITE HOUSE LAWYER], urged the defendant to issue a calming message and make efforts to stop the riot. 653 The defendant refused, responding that the people at the Capitol were angry because the election had been stolen. 654 Eventually, all of the defendant' s staffers left him alone in the dining room. 655 Fox News continued to report on the growing crisis at the Capitol. 656

It was at that point -- alone, watching news in real time, and with knowledge that rioters had breached the Capitol building -- that the defendant issued the 2:24 p.m. Tweet attacking Pence for refusing the defendant's entreaties to join the conspiracy and help overturn the results of the election. 657 One minute later, the Secret Service was forced to evacuate Pence to a secure location in the Capitol. 658 This was roughly ninety minutes after Pence had announced publicly that he would not act unlawfully to overturn the election; 659 the certification proceeding was underway; 660 and the first breach of the Capitol building had occurred minutes before, at 2:12 p.m. 661 At that point, the defendant's only hope to disrupt the certification proceeding and retain power was through his angry supporters. The defendant further revealed the private nature of his desperate conduct as a candidate, rather than a President, in an exchange (that the Government does not plan to use at trial) he had with aide [NICK LUNA] shortly after the 2:24 p.m. Tweet. Upon receiving a phone call alerting him that Pence had been taken to a secure location, [NICK LUNA] rushed to the dining room to inform the defendant in hopes that the defendant would take action to ensure Pence's safety. Instead, after [NICK LUNA] delivered the news, the defendant looked at him and said only, "So what?" 662

The private, unofficial nature of the 2:24 p.m. Tweet contrasts with two other Tweets the defendant sent during the following hour and a video message he sent two hours later, and which the Government does not intend to introduce at trial. Only after advisors had again urged the defendant to calm matters at the Capitol, 663 the defendant at 2:38 p.m. posted, "Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful! " 664 As the violence at the Capitol nonetheless escalated, the defendant at 3:13 p.m. posted, "I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order -- respect the Law and am great men and women in Blue. Thank you!" 665 And after those Tweets failed to disperse the rioters, and after still more demands from his staff that he do more to stop the riot, the defendant at 4:17 p.m. tweeted a video message in which he finally asked those at the Capitol—whom he described as “very special” people that he “love[d]”— to leave the Capitol, while also claiming that “[w]e had an election that was stolen from us.” 666 He sent a Tweet at 6:01 p.m. that conveyed a similar sentiment: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!” 667

The defendant at least has an argument—though he issued the 2:38 p.m. and 3:13 p.m. Tweets only after being harangued by his staff while he adamantly refused to do anything at all— that he was addressing a matter of public safety as President (the riot at the Capitol). Likewise, in the 4:17 p.m. message, the defendant, while still focused on his election loss, asked rioters to evacuate the breached Capitol, and foreshadowed the sentiment in his 6:01 p.m. Tweet when he said to “[g]o home with love & in peace.” 668 By contrast, in the 2:24 p.m. Tweet, the defendant focused solely on the Vice President’s role in the certification of the presidential election results— a matter of intense personal concern to the defendant as a candidate for office. Even assuming that topic constituted a “matter[] of public concern,” Blassingame, 87 F.4th at 14, the defendant’s 2:24 p.m. Tweet reflected speech made “in an unofficial, private capacity as office-seeker, not an official capacity as office-holder.” Id. at 5.

Given all of this context, the 2:24 p.m. Tweet was unofficial. When the defendant sent it, he knew that what he had asked Pence to do, and that he claimed would “protect our Country and our Constitution,” was contrary to the ECA; that no state was poised to “certify a corrected set of facts;” that a large crowd of his political supporters had gathered in Washington at his urging; that these supporters were angry and believed his false claims that the election had been stolen; that he had called them to action through his Ellipse speech, in which he told them that Pence might still do as he wished and directed these supporters to march to the Capitol; and that his supporters had done so and had breached the Capitol building.

The defendant also knew what his advisors were forcefully urging him to do as President: issue a message to quell the emergency at the Capitol. Instead, the defendant refused repeatedly until his advisors gave up and left him alone in the dining room. It was then that the defendant issued the 2:24 p.m. Tweet, as a candidate communicating to his angry supporters that Pence had let him—and them—down. The content of the 2:24 p.m. Tweet was not a message sent to address a matter of public concern and ease unrest; it was the message of an angry candidate upon the realization that he would lose power. And unlike the defendant’s later Tweets that day, the defendant was not asking the individuals at the Capitol to “remain peaceful,” leave the building, or “go home.”

c. Other public statements

By virtue of his status as a candidate for re-election, the defendant occasionally made public statements—whether in response to questions or otherwise. Examples of such statements set forth in Section I are the defendant’s statements in advance of the election to seed public doubt in the outcome (supra p. 6), the defendant’s televised election night remarks to his supporters (supra pp. 7-8), and the defendant's telephonic endorsement of [RUDY GIULIANI] false allegations at the Gettysburg "hotel hearing" (supra p. 39).

Each of the defendant's cited public statements was made in his capacity as a candidate. His pre-election statements, for instance, were made in contexts like the Republican National Convention or in the midst of statements about political polling. 669 His election night remarks were made to a room of his supporters and were about his status as a candidate in the pending election. 670 And his contribution to the Gettysburg "hotel hearing" was to call in by dialing one of his private attorneys, who broadcast his personal message by holding her phone to the microphone so that he could make statements supporting those of his private attorneys. 671 In sum, the defendant made all of these contents as a candidate for office, and was speaking about his own election. They were unofficial.

2. In the alternative, any official portions of the defendant's public speeches, Tweets, or statements should be excised

Alternatively, if segregable portions of the speeches, Tweets, or statements are found to be presumptively immune official conduct, the first alternative would be to excise them from the speeches, allowing the Government to rely on the unofficial statements in those speeches.

The D.C. Circuit has long recognized that district courts have "discretionary power to delete objectionable portions" of evidence "where appropriate," United States v. Lemonakis, 485 F.2d 941, 949 (D.C. Cir. 1973), and the Supreme Court has approved of that practice in the context of statements that contain protected legislative acts along with unprotected acts under the Constitution's Speech or Debate Clause, see United States v. Helstoski, 442 U.S. 477, 488 n.7 (1979) (approving practice of “excising references to legislative acts, so that the remainder of the evidence would be admissible”); see also Gov’t of Virgin Islands v. Lee, 775 F.2d 514, 523 (3d Cir. 1985) (“even where a conversation includes a discussion of both legislative acts and non-legislative acts, the conversation can be examined and the immunized aspects of the conversation deleted”). This is a familiar practice across a range of legal contexts. See, e.g., Samia v. United States, 599 U.S. 635, 653 (2023) (upholding use of a redacted statement to avoid constitutional concerns); Davis v. Washington, 547 U.S. 813, 829 (2006) (“Through in limine procedure, [trial courts] should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.”); In re Rail Freight Fuel Surcharge Antitrust Litig. - MDL No. 1869, 34 F.4th 1, 13 (D.C. Cir. 2022) (relying on Lemonakis). Redaction of any statements ultimately found to be immune, while admitting the significant remaining unofficial content, would resolve any constitutional questions under Trump.

To the extent that excision does not resolve any arguable immunity claim, then even if the defendant’s conduct in these speeches, Tweets, and statements can be nudged across the line from Campaign conduct to official action, it is so heavily intertwined with Campaign-related conduct that prosecuting it does not pose a danger to any Executive Branch function or authority. Because the defendant bears the burden in the first instance of proving that conduct was official so as to qualify for presumptive immunity, the Government in its reply brief will address any specific arguments the defense makes regarding the speeches, Tweets, and statements discussed here.


E. The Defendant's Interactions, in his Capacity as a Candidate, with White House Staff

1. The interactions at issue were unofficial

White House staffers witnessed or engaged in private, unofficial communications with the defendant. These staffers included [ERIC HERSCHMANN, WHITE HOUSE LAWYER], the White House Senior Advisor who acted as a conduit between the defendant and the Campaign; [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF] and [ASSISTANT TO PRES., TO WHOM TRUMP SAID SIDNEY POWELL’S ELECTION FRAUD CLAIMS WERE “CRAZY”] who both volunteered for the Campaign while working in the White House; [NICK LUNA] a staffer who witnessed a pertinent private remark by the defendant; and [MOLLY MICHAEL, TRUMP EXEC. ASSIST.], the defendant's executive assistant.

Federal law confirms that the defendant's Campaign-related conversations with these White House staffers were unofficial. The Hatch Act permits certain White House staffers to engage in political activity while on duty, see 5 U.S.C. § 7324(a)(1), but prohibits them from using their "official authority or influence for the purpose of interfering with or affecting the result of an election," 5 U.S.C. § 7323(a)(1). These staffers can thus wear two hats. They can work in their private capacity to advance the interests of a political candidate, including while on official duty, or they can work in their official capacity to carry out Executive Branch responsibilities -- but they may not wear both hats at the same time. Accordingly, when the defendant's White House staff participated in political activity on his behalf as a candidate, they were not exercising their official authority or carrying out official responsibilities. And when the President, acting as a candidate, engaged in Campaign-related activities with these officials or in their presence, he too was not engaging in official presidential conduct. 672

Precedent from the D.C. Circuit further confirms that the defendant was not engaging in official presidential conduct when he spoke with White House staffers about Campaign matters. In In re Lindsey, 158 F.3d 1263, 1278-79 (D.C. Cir. 1998), the D.C. Circuit recognized that senior White House personnel may serve as the President’s agents in a personal capacity to act as a conduit for unofficial information from a private party. The D.C. Circuit held that while the President’s communications with his personal attorney are “fully protected by the absolute attorney-client privilege,” id. at 1283, a White House lawyer “cannot rely on a government attorney-client privilege to shield evidence from the grand jury,” id. at 1281. But a White House lawyer may invoke the President’s personal attorney-client privilege when he acts as “an intermediary” to convey unofficial information from the President to his personal attorney. Id. As the court explained, a President must often “rely on aides” to communicate with personal advisors, such as his personal attorneys, and the involvement of those aides does not alter the personal nature of the underlying communication. Id. at 1281-82. Similarly in this case, the transmission of a private Campaign communication by or to the defendant through a White House employee serving as an intermediary did not render that communication official and thereby shield it from use in a criminal trial against the defendant.

In sum, just as the President can at times act “in an unofficial capacity”—including as “a candidate for office or party leader,” Trump, 144 S. Ct. at 2340—so too can the Executive Branch staff around him. Simply because a staffer holds a title in the Executive Branch and interacts with the President does not mean that the interaction is necessarily official. See Blassingame, 87 F.4th at 14 (noting “the settled understanding that immunity is based on ‘the nature of the function performed, not the identity of the actor who performed it.’” (quoting Clinton, 520 U.S. at 695)). When the individuals listed below interacted with the defendant in the circumstances described in Section I, those conversations were unofficial.

a. [ERIC HERSCHMANN, WHITE HOUSE LAWYER]

From August 2020 through the end of the defendant's administration. [ERIC HERSCHMANN, WHITE HOUSE LAWYER] was an Assistant to the President without a defined portfolio. 673 More importantly for the Court's purposes, during the charged conspiracies, [ERIC HERSCHMANN, WHITE HOUSE LAWYER] served as a conduit of information from the Campaign to the defendant and discussed Campaign matters with the defendant. These actions were, consistent with In re Lindsey, unofficial.

As part of its immunity analysis, the Court should consider multiple different interactions involving [ERIC HERSCHMANN, WHITE HOUSE LAWYER], none of which bear on his official White House responsibilities: (1) a November 13 phone call in which the defendant told [ERIC HERSCHMANN, WHITE HOUSE LAWYER] he was going to put [RUDY GIULIANI] in charge of the Campaign's legal efforts under an agreement where the defendant only would pay if [RUDY GIULIANI] were successful, and [ERIC HERSCHMANN, WHITE HOUSE LAWYER] guaranteed the defendant he never would have to pay (supra pp. 11-12); (2) a November conversation with the defendant regarding [SIDNEY POWELL] (supra p. 44); (3) an undated conversation in which he told the defendant that [RUDY GIULIANI] fraud allegations could never be proved in court and the defendant responded, "the details don't matter" (supra pp. 12-13); (4) a November or December 2020 conversation in which [ERIC HERSCHMANN, WHITE HOUSE LAWYER] explained to the defendant why one of his fraud claims was "bullshit" (supra p. 13); (5) a late December exchange with the defendant regarding the verification [JOHN EASTMAN] wanted him to sign in Trump v. Kemp (supra p. 27); (6) a January 4, 2021, conversation [ERIC HERSCHMANN, WHITE HOUSE LAWYER] had with [JOHN EASTMAN] (ECF No. 226 § 77; supra p. 66), after which (DELETE) reported to the defendant that [JOHN EASTMAN] had admitted his plan was "not going to work" (supra p. 66); and (7) a variety of occasions on which [ERIC HERSCHMANN, WHITE HOUSE LAWYER] reported to the defendant that his Campaign and its hired experts had found various election fraud claims to be unsupported (supra p. 12).

Section I also includes actions by [ERIC HERSCHMANN, WHITE HOUSE LAWYER] that do not reflect any presidential conduct because the defendant was not involved. These include December 3 text messages that [ERIC HERSCHMANN, WHITE HOUSE LAWYER] exchanged with [MARK MEADOWS] regarding [RUDY GIULIANI] false fraud claims at a Georgia legislative hearing (ECF No. 226 § 26(a); supra pp. 21-22), and December 13 text messages [ERIC HERSCHMANN, WHITE HOUSE LAWYER] exchanged with Campaign personnel regarding the fraudulent elector scheme (ECF No. 226 § 60; supra pp. 52-53).

The content of each of [ERIC HERSCHMANN, WHITE HOUSE LAWYER] communications with the defendant enumerated above involve the defendant's Campaign, including the status and viability of the defendant's fraud claims, the quality of the advice the defendant was receiving from his Campaign advisors, his litigation and electoral prospects, and the legality and practicality of [JOHN EASTMAN]'s proposal that Pence reject Biden's legitimate electors at the certification proceeding. None of the communications pertain to general election policy issues or considerations, Justice Department criminal investigations, Executive Branch functions, or any other presidential responsibilities.

As context for all these communications, the Court should consider [ERIC HERSCHMANN, WHITE HOUSE LAWYER]'s relationship with the defendant, his role in the White House, and his interactions with the Campaign. [ERIC HERSCHMANN, WHITE HOUSE LAWYER]'s relationship with the defendant and his family pre-existed his position in the White House, and [ERIC HERSCHMANN, WHITE HOUSE LAWYER] represented the defendant in his impeachment trial. [ERIC HERSCHMANN, WHITE HOUSE LAWYER] did not have a defined portfolio, and worked on matters related to the Justice Department, including the Portland riots and Section 230 of the Communications Decency Act, as well as Middle East issues and pardons. 674 The Government does not intend to elicit specific information about communications [ERIC HERSCHMANN, WHITE HOUSE LAWYER] had with the defendant regarding his official duties.

[ERIC HERSCHMANN, WHITE HOUSE LAWYER] was not acting in an official capacity during the conversations enumerated above, but as a conduit for information from the Campaign. [ERIC HERSCHMANN, WHITE HOUSE LAWYER]'s contact with the Campaign began in October 2020, when he asked Campaign staffers [JUSTIN CLARK, TRUMP THEN-DEPUTY CAMPAIGN MANAGER] and [MATT MORGAN, TRUMP CAMPAIGN STAFFER GAVE TRUMP TUTORIAL ON CAMPAIGN OPERATIONS] for a tutorial on campaign basics and operations. 675 He continued to talk to [JUSTIN CLARK, TRUMP THEN-DEPUTY CAMPAIGN MANAGER] and [MATT MORGAN, TRUMP CAMPAIGN STAFFER GAVE TRUMP TUTORIAL ON CAMPAIGN OPERATIONS] leading up to the election to understand different electoral college win/loss scenarios. 676 Shortly thereafter, in early November 2020, [ERIC HERSCHMANN, WHITE HOUSE LAWYER] asked [HANDLED ETHICS ISSUES IN WHITE HOUSE COUNSEL OFC.], who handled ethics issues in the White House Counsel's Office, for permission to engage with the Campaign, and thereafter [ERIC HERSCHMANN, WHITE HOUSE LAWYER] began frequent contact with Campaign staff. 677 Several days after the election, [ERIC HERSCHMANN, WHITE HOUSE LAWYER], went to the Campaign headquarters in Virginia for the first time, while [BILL STEPIEN, TRUMP THEN-CAMPAIGN MANAGER], [RUDY GIULIANI], [ANOTHER MEMBER OF “STAR WARS BAR”], [SIDNEY POWELL], [JOSEPH DIGENOVA], [BERNIE KERICK, EX-NYPD COMMISSIONER, ATTACKED PA. LAWMAKERS] and [JENNA ELLIS] were there too. 678 As discussed supra p. 9, on November 7 -- likely the same day he went to the Campaign headquarters -- [ERIC HERSCHMANN, WHITE HOUSE LAWYER] joined Campaign staffers, including [BILL STEPIEN, TRUMP THEN-CAMPAIGN MANAGER], [JUSTIN CLARK, TRUMP THEN-DEPUTY CAMPAIGN MANAGER], and [JASON MILLER, TRUMP SENIOR CAMPAIGN ADVISOR] at the White House to discuss with the defendant the fact that networks that morning had projected Biden as the winner of the election. 679 The Campaign staff and [ERIC HERSCHMANN, WHITE HOUSE LAWYER] told the defendant his chance of victory was slim. 680 [ERIC HERSCHMANN, WHITE HOUSE LAWYER] also participated in various Oval Office meetings with the defendant, Pence, White House staff, Campaign officials, and [RONNA MCDANIEL, THEN-RNC CHAIR]. 681

The defendant heard and mentioned, to [ERIC HERSCHMANN, WHITE HOUSE LAWYER] and others, various fraud allegations throughout the post-election period, sometimes from his outside attorneys like [RUDY GIULIANI] or [SIDNEY POWELL]. Consistent with this, [ERIC HERSCHMANN, WHITE HOUSE LAWYER] asked [JUSTIN CLARK, TRUMP THEN-DEPUTY CAMPAIGN MANAGER] and [MATT MORGAN, TRUMP CAMPAIGN STAFFER GAVE TRUMP TUTORIAL ON CAMPAIGN OPERATIONS] if certain fraud allegations were accurate, so that he could challenge information provided to the defendant by people like [RUDY GIULIANI], [SIDNEY POWELL] and [JENNA ELLIS]. 682 [ERIC HERSCHMANN, WHITE HOUSE LAWYER] also began interacting on a near-daily basis with [TRUMP CAMPAIGN ATTORNEY WHO DEBUNKED RUDY GIULIANI’S CLAIM OF DEAD PEOPLE VOTING IN GA.], a Campaign staffer who [TOLD WHITE HOUSE ATTY. ERIC HERSCHMANN HE COULD TRUST MATT MORGAN, TRUMP CAMPAIGN STAFFER] told [ERIC HERSCHMANN, WHITE HOUSE LAWYER] he could trust. 683 The Campaign, in turn, hired two outside firms -- [RUDY GIULIANI] and [JOHN EASTMAN]2 to investigate fraud allegations. 684 [ERIC HERSCHMANN, WHITE HOUSE LAWYER] told the defendant that people external to the Campaign were hired to look into fraud allegations. 685

Overall, [ERIC HERSCHMANN, WHITE HOUSE LAWYER] served as a conduit of day-to-day information between [TRUMP CAMPAIGN ATTORNEY WHO DEBUNKED RUDY GIULIANI’S CLAIM OF DEAD PEOPLE VOTING IN GA.] and the defendant during the post-election period. [TRUMP CAMPAIGN ATTORNEY WHO DEBUNKED RUDY GIULIANI’S CLAIM OF DEAD PEOPLE VOTING IN GA.] testified that around the time that [RUDY GIULIANI] was named to lead legal efforts, "I was introduced to [ERIC HERSCHMANN, WHITE HOUSE LAWYER] ... and I started predominately reporting to [ERIC HERSCHMANN, WHITE HOUSE LAWYER]. 686 He elaborated that[ERIC HERSCHMANN, WHITE HOUSE LAWYER] "started to call me more and more. It would be, you know, once every couple of days that then it was kind of every day for a period of time that I was talking to [ERIC HERSCHMANN, WHITE HOUSE LAWYER]. 687 With this information, on a daily basis, [ERIC HERSCHMANN, WHITE HOUSE LAWYER] attempted to debunk the false fraud allegations in the White House. For example, after watching [TESTIFIED AT HEARING IN GA. 12/10/20] testify in a December 10, 2020, hearing in Georgia, [ERIC HERSCHMANN, WHITE HOUSE LAWYER] reached out to [TRUMP CAMPAIGN ATTORNEY WHO DEBUNKED RUDY GIULIANI’S CLAIM OF DEAD PEOPLE VOTING IN GA.]. 688 Through this channel, [ERIC HERSCHMANN, WHITE HOUSE LAWYER] learned about [SYMPATICO SOFTWARE SYSTEMS] and [BERKELELY RESEARCH GROUP] uniform findings -- that no substantial fraud allegations were supported -- essentially in real time. 689 [ERIC HERSCHMANN, WHITE HOUSE LAWYER] also participated in calls with [SYMPATICO SOFTWARE SYSTEMS] and had the number of one of its managing directors, [MANAGING DIR. OF A COMPANY] in his cell phone; some of those calls occurred at the White House. 690 [ERIC HERSCHMANN, WHITE HOUSE LAWYER] directly passed the information to the defendant. 691

[ERIC HERSCHMANN, WHITE HOUSE LAWYER] had other contact regarding initiatives by the Campaign or its outside attorneys. For example [ERIC HERSCHMANN, WHITE HOUSE LAWYER] was on a call with the defendant and [JOHN EASTMAN] on December 9 regarding the defendant's motion, in his capacity as a candidate, to intervene in Texas v. Pennsylvania. 692 Separately, [ERIC HERSCHMANN, WHITE HOUSE LAWYER] spoke to the defendant about the lawsuit, and explained how the legal system worked and that the Campaign -- not the Justice Department or FBI -- was responsible for filing election challenge lawsuits. 693

Throughout these conversations, even if [ERIC HERSCHMANN, WHITE HOUSE LAWYER] could be understood to have been acting in an official capacity -- which he was not -- rather than a Campaign one, the defendant was himself acting in his private capacity as a candidate. The defendant was asking for [ERIC HERSCHMANN, WHITE HOUSE LAWYER] view on various strategic decisions he was making regarding his Campaign and his private attorneys, and he was getting reports from [ERIC HERSCHMANN, WHITE HOUSE LAWYER] on information related to actual and potential election challenges important to his candidacy and private Campaign. All of this context establishes both that [ERIC HERSCHMANN, WHITE HOUSE LAWYER] wore two hats -- one official, one private -- and that the defendant interacted with [ERIC HERSCHMANN, WHITE HOUSE LAWYER] in these conversations as a candidate rather than as President. The interactions between the defendant and [ERIC HERSCHMANN, WHITE HOUSE LAWYER] that the Government intends to introduce at trial were thus all private.

b. [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF]

[DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF] served as Assistant to the President and White House Deputy Chief of Staff. 694 He also volunteered his time for Campaign work, including traveling to political rallies with the defendant and posting pictures and videos. 695 The Government will elicit from [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF] at trial that he was the only person other than the defendant with the ability to post to the defendant's Twitter account, that he sent tweets only at the defendant's express direction, and that [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF] did not send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021. 696 He also will generally describe the defendant's Twitter knowledge and habits, including that the defendant was "very active on his Twitter account" "paid attention to how his tweets played with his followers," "was very engaged in watching the news," and "knew how to read the replies and see all the replies of what people were saying and doing which ... led to where he would retweet things," and that any Tweet sent "between 5 or 6 a.m. until 9 or 10 a.m." and after "9 or 10 p.m." generally was the defendant personally sending out the Tweet, as opposed to having [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF] do it. None of this proposed testimony on [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF]'s part constitutes evidence of an official act. General information about access to the defendant's Twitter account, as well as [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF]'s testimony that [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF] did or did not issue a particular Tweet, is unrelated to any particular official act by the defendant.

c. [ASSISTANT TO PRES., TO WHOM TRUMP SAID SIDNEY POWELL’S ELECTION FRAUD CLAIMS WERE “CRAZY”]

[ASSISTANT TO PRES., TO WHOM TRUMP SAID SIDNEY POWELL’S ELECTION FRAUD CLAIMS WERE “CRAZY”] was an Assistant to the President and a volunteer for the Campaign. 697 She will testify about two specific sets of conversations: (1) a handful of conversations in which the defendant, in advance of the election, said that he would simply declare victory (supra p. 5); and (2) an unprompted statement in which the defendant remarked, in a private moment, claims were "crazy" (supra p. 44).

Regarding the pre-election conversations, [ASSISTANT TO PRES., TO WHOM TRUMP SAID SIDNEY POWELL’S ELECTION FRAUD CLAIMS WERE “CRAZY”] has testified that COVID's expected effect on the election, and in particular the anticipated phenomenon that the defendant would take an early lead in some states based on the election day vote that would dissipate as mail-in ballots were counted, was discussed among Campaign personnel and dual-hat White House staffers who simultaneously volunteered for the Campaign. 698 In that context, the defendant told [ASSISTANT TO PRES., TO WHOM TRUMP SAID SIDNEY POWELL’S ELECTION FRAUD CLAIMS WERE “CRAZY”] and others words to the effect of, "We'll just declare victory." 699 Regarding the defendant's statement about [SIDNEY POWELL], [ASSISTANT TO PRES., TO WHOM TRUMP SAID SIDNEY POWELL’S ELECTION FRAUD CLAIMS WERE “CRAZY”] will testify about a November 20 phone call in which the defendant mocked and laughed at [SIDNEY POWELL] and called her allegations -- that he adopted and amplified -- "crazy." 700

In all of these interactions, the defendant was interacting as a candidate with [ASSISTANT TO PRES., TO WHOM TRUMP SAID SIDNEY POWELL’S ELECTION FRAUD CLAIMS WERE “CRAZY”], not as President. With respect to his pre-election comments about declaring victory, the context of the conversations indicates that the defendant was responding in real time to information that Campaign staff provided him on private matters. Similarly, the November 20 conversation among the defendant, [ASSISTANT TO PRES., TO WHOM TRUMP SAID SIDNEY POWELL’S ELECTION FRAUD CLAIMS WERE “CRAZY”] and [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF] regarding [SIDNEY POWELL] was also a Campaign conversation. [ASSISTANT TO PRES., TO WHOM TRUMP SAID SIDNEY POWELL’S ELECTION FRAUD CLAIMS WERE “CRAZY”] and [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF], two staffers who volunteered for the Campaign while working in the White House, were informally discussing with the defendant developments in his Campaign -- namely that one of his private attorneys had been a source of public embarrassment. The defendant then dialed his private attorney, [SIDNEY POWELL], and made the comment about her claims with her on the muted phone line. The defendant was not seeking advice from White House staffers; he was making fun of his private attorney in the presence of Campaign volunteers.

c. [NICK LUNA]

[NICK LUNA] was an Assistant to the President and Director of Oval Office Operations. 701 At trial, the Government will elicit from [NICK LUNA] that he witnessed an unprompted comment that the defendant made to his family members in which the defendant suggested that he would fight to remain in power regardless of whether he had won the election. Specifically, following the 2020 election while aboard Marine One, the defendant told his wife, daughter, [IVANKA TRUMP], and son-in-law [JARED KUSHNER], "It doesn't matter if you won or lost the election. You still have to fight like hell." See supra p. 14-15. 702 [NICK LUNA] happened to overhear this comment, but was not participating in the conversation. 703

This statement is plainly private. It was exclusively about the election and the defendant's determination, as a candidate, to remain in power whether he won or lost. The defendant made the comment to his family members, who campaigned on his behalf and served as private advisors (in addition to any official role they may have played). The fact that it was overheard by [NICK LUNA], a White House staffer, does not convert it to an official communication.

d. [MOLLY MICHAEL, TRUMP EXEC. ASSIST.]

To a limited extent, the allegations in the superseding indictment and the Government's evidence involve [MOLLY MICHAEL, TRUMP EXEC. ASSIST.] involve the defendant's executive assistant in the White House. Section I describes multiple instances in which [MOLLY MICHAEL, TRUMP EXEC. ASSIST.] received emails intended for the defendant or sent emails on the defendant's behalf. These instances include: [MOLLY MICHAEL, TRUMP EXEC. ASSIST.] sending to a group of private attorneys, including [SIDNEY POWELL], an email with the subject "From POTUS", directing the private attorneys to include material critical of [DOMINION VOTING SYSTEMS] in private lawsuits (see supra pp. 42); [MOLLY MICHAEL, TRUMP EXEC. ASSIST.], receiving from [RUDY GIULIANI] an email for the defendant providing a copy of the message [RUDY GIULIANI] had drafted to exert pressure on Michigan Senate Majority Leader [FORMER SEN. MIKE SHIRKEY (R)), MI. FORMER SENATE MAJORITY LEADER] (see supra p. 34); [MOLLY MICHAEL, TRUMP EXEC. ASSIST.], receiving from [RONNA MCDANIEL, THEN-RNC CHAIR], the RNC's "Elector Recap" email to put in front of the defendant (see supra p. 57); and [MOLLY MICHAEL, TRUMP EXEC. ASSIST.], receiving an email from [JOHN EASTMAN] on December 23 asking to update the defendant on "overall strategic thinking" on the defendant's status as a candidate (see supra p. 61).

None of these actions by [MOLLY MICHAEL, TRUMP EXEC. ASSIST.], in which she was merely facilitating communications between the defendant and his private attorneys or private political allies, constitute the defendant's official conduct. [MOLLY MICHAEL, TRUMP EXEC. ASSIST.] regularly facilitated the defendant's purely private matters, including communications with his children about his Thanksgiving travel. 704 The defendant's reliance on [MOLLY MICHAEL, TRUMP EXEC. ASSIST.] to pass messages to and from personal advisors, friends, and family does not render the underlying private communications official. See Lindsey, 158 F.3d at 128 1-82.

2. Even if this evidence were deemed official, the Government could rebut any presumption of immunity

Even if an "official" gloss were applied to the defendant's conversations with White House staff pertaining solely to the President's chances as a candidate to successfully challenge the election results, the use of such evidence would not intrude on Executive Branch functions or authority. "The Office of the Presidency as an institution is agnostic about who will occupy it next." Blassingame, 87 F.4th at 4. Whatever blurring of the lines might exist between candidate conduct and official conduct in conversations that the President may conduct with his immediate staff, introducing evidence of conversations with dual-hat White House staff members -- those who function in both a Campaign-related capacity and an official advisory capacity -- when they are speaking to the President in his capacity as a candidate or in their Campaign-related capacity does not impede decision-making on matters entrusted to the Executive Branch. The Supreme Court required that its rebuttal analysis focus on Executive Branch authority and functions -- not merely on anything that the President might say or do while at the White House. Here, the Executive Branch has no authority or function in the certification of the next President. Accordingly, the use of evidence of White House staffers' Campaign-capacity discussions with the President about how to challenge state election results -- challenges brought in his capacity as a candidate -- does not risk impairing the constitutional role of the Executive Branch.

F. Other Evidence of the Defendant's Knowledge and Intent

The Government intends to introduce at trial additional evidence to prove the defendant's knowledge and intent. These include (1) public statements by federal officials that the defendant did not direct be made (specifically, public statements by Attorney General [BILL BARR] and CISA Director [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] about the lack of election fraud and foreign interference); (2) evidence that the defendant was reviewing Twitter and watching television throughout the afternoon of January 6; and (3) the defendant's post-Administration statements. None of this evidence will involve testimony from the defendant's Executive Branch staff about his official actions.

1. The evidence at issue was unofficial

a. Statements by federal officials

i. [BILL BARR] (supra p. 46)

In a public statement issued on December 1, 2020, Attorney General [BILL BARR] said that the Department of Justice had not seen evidence of fraud sufficient to change the election results, and that claims that voting machines had skewed election results were unsubstantiated. 705 [BILL BARR] decided to make his statement without informing the defendant in advance. 706 He prepared the statement because he had been watching the defendant repeat claims of election fraud publicly despite direct knowledge, from [BILL BARR] and others, that they were false, and [BILL BARR] was growing more and more frustrated by the defendant's actions. 707 On November 29, [BILL BARR] saw the defendant appear on the Maria Bartiromo Show and claim, among other false things, that the Justice Department was "missing in action" and had ignored evidence of fraud. 708 [BILL BARR] decided it was time to speak publicly in contravention of the defendant's false claims, set up a lunch with a reporter for the Associated Press, and made his statement -- all without infol1ning or seeking pel1nission from the defendant. The same day, on behalf of the Campaign, [RUDY GIULIANI] and [JENNA ELLIS] issued a statement attacking [BILL BARR] for his comments. 709 In the days that followed, [STEVE BANNON] acknowledged and criticized [BILL BARR]'s statement during his podcast, asking rhetorically "is [BILL BARR] reading the same things we're reading?" and prompting guest [BORIS EPSHTEYN] to comment that "the DOJ has not been following up on these leads as far as we know right now. That statement seemed to be very premature . ... [T]here's no way one can look at this election in these states and say that it was done properly." 710

[BILL BARR]'s statement is not an official act by the defendant. Trump treats only the defendant's own acts as potentially immune, see, e.g. , 144 S. Ct. at 2338, consistent with the "justifying purposes of the immunity" -- "to ensure that the President can undertake his constitutionally designated functions effectively, free from undue pressures or distortions," id. at 2332 (internal quotation marks omitted). The immunity that the Supreme Court recognized thus does not imply that acts by other government officials can qualify as presidential acts. More to the point, [BILL BARR] statement does not reveal any official action by the defendant because [BILL BARR] did not give his public statement at the defendant's direction or even with his knowledge. To the contrary, if the defendant had been aware of what [BILL BARR] intended to do he undoubtedly would have instructed [BILL BARR] not to make the statement; when the defendant learned of [BILL BARR]'s statement, he was so angry that [BILL BARR] tendered his resignation and, momentarily, the defendant accepted -- until [ERIC HERSCHMANN, WHITE HOUSE LAWYER] and [PAT CIPOLLONE, TRUMP WHITE HOUSE COUNSEL] prevailed upon the defendant to calm down and convinced [BILL BARR] to delay his departure. 711 The Government does not intend to introduce evidence that implies that [BILL BARR] or his deputies refuted the defendant's fraud claims to him directly; instead, the Government intends to introduce [BILL BARR] statement and [RUDY GIULIANI] Campaign response to it, as well as [STEVE BANNON]'s recognition and repetition of [BILL BARR]'s statement.

ii. [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] (supra pp. 42-43)

On November 17, CISA Director [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] tweeted a link to an open letter by 59 election security experts and touted it in an effort to promote public confidence in the election's infrastructure. 712 This was similar to what [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] had done five days earlier on November 12, when he had publicized the joint statement CISA issued with the National Association of Secretaries of State, the National Association of State Election Directors, and other organizations declaring the 2020 election to be "the most secure in American history" and that there was "no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised." 713 On November 17, [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] promoted the expert report on his own initiative and, as he later learned, contrary to the defendant's wishes; the defendant promptly fired [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] the same day, by Tweet. 714 The Government does not intend to introduce any evidence about the defendant's removal of [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY]. Rather, as with [BILL BARR]'s public statement, [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY]'s public Tweets were not official actions by the defendant and thus are not protected by presidential immunity.

b. The defendant's use of Twitter and television on January 6 (Superseding Indictment, ECF No. 226 § 92; supra p. 79)

Forensic evidence from the defendant's iPhone and observations by witnesses otherwise testifying about unofficial acts will establish that upon his return from the Ellipse, throughout the afternoon on January 6, the defendant sat in the dining room by the Oval Office, where he used his phone to review Twitter and watched the television, which was turned on and displaying news coverage of the riot at the Capitol. 715

As explained in the Government's expert notice, ECF No. 183, an FBI Computer Analysis Response Team forensic examiner can testify as to the news and social media applications downloaded on the defendant's phone, 716 and can describe the activity occurring on the phone throughout the afternoon of January 6. 717 The phone 's activity logs show that the defendant was using his phone, and in particular, using the Twitter application, consistently throughout the day after he returned from the Ellipse speech. 718

In addition, [ERIC HERSCHMANN, WHITE HOUSE LAWYER] 719 [NICK LUNA] 720 and [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF] each of whom are, as described supra pp. 147-154, 156, otherwise expected to testify about the defendant's unofficial acts -- will offer the objective observation that during the afternoon of January 6, the television in the defendant's dining room, where he spent the day, was on and hilled into news programs that were covering in real time the ongoing events at the Capitol. In turn, the Government will introduce the authenticated coverage showing what Fox News was playing in real time while the defendant sat in the room with the television on. This evidence is particularly relevant to the defendant's knowledge at the time he issued the 2:24 p.m. Tweet, which, as described above, was unofficial.

None of this evidence involves testimony about an act by the defendant at all, and it shows what social media and news the defendant privately reviewed in service of issuing a private Tweet. The Government will not elicit testimony from the defendant' s staffers about his official deliberations, reactions to social media or television, or official actions taken in response. The defendant's review of social media and television news -- under these particular circumstances -- was no different from that of any other citizen or candidate and therefore was unofficial.

c. The defendant's post-Administration statements (supra pp. 81, 83)

As the Government identified in its Rule 404(b) notice, ECF No. 174-1 at 8-9, the Government will introduce some of the defendant's numerous statements that post-date his time as President in which he has blamed Pence and approved of the actions of his supporters who breached the Capitol and obstructed the certification proceeding, 722 thus providing evidence of his intent on January 6.

The defendant's endorsement of the violent actions of his supporters on January 6, and his sentiment that they were justified in threatening Pence -- all made while the defendant was a private citizen after the end of his term in office -- are probative of his intent during the charged conspiracies. The Government intends to offer them as evidence of the defendant's intent on January 6, not as evidence of his official acts.
2. Even if this evidence were deemed official, the Government could rebut any presumption of immunity

The use of the evidence regarding former Attorney General [BILL BARR] and CISA Director [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] would not intrude on Executive Branch authority or functions because the federal officials' statements reflected those officials' positions, knowledge, and expertise -- not presidential acts or direction. The President is the "the only person who alone composes a branch of government," Trump, 144 S. Ct. at 2329 (citation omitted), but Congress structures the Executive Branch and assigns manifold specific duties to subordinate officers who in turn execute the law. The President is responsible to take care that the laws be faithfully executed, see U.S. Canst. Art. 2, § 3, but that does not mean that every executive official is at all times performing presidential acts. Allowing the Government to introduce evidence of these independent actions and public statements of subordinate officials in the Executive Branch, not taken at the direction of the President, does not intrude on the authority or functions of the Executive Branch. Nothing in Trump dictates such an outcome that would effectively bar any Executive Branch employee from providing evidence against a President who committed crimes in his private capacity. Put concretely, allowing these independent acts of Executive Branch officials to be used in the prosecution would not chill any Presidential conduct, and thus any presumption of immunity is overcome.

The same is true for testimony by White House staff about the President’s review of Twitter or his watching public events on television. Assuming for the moment that the President sometimes acts in an official capacity when watching television or reviewing Twitter, no statute or constitutional provision addresses the matter, and using evidence of his activity that virtually all citizens engage in—i.e., checking their social-media feeds and watching television—does not intrude on any authority or functions of the Executive Branch.

IV. Conclusion

Based on a “fact-bound analysis,” for the reasons explained above, the Court should determine that the conduct described in the factual proffer of Section I of this motion is not subject to presidential immunity. As part of this determination, the Court should specify four determinations, and do so in a single order: (1) that the Government has rebutted the presumption of immunity attached to the defendant’s official communications with the Vice President (see supra pp. 49, 63-67, 77-74; ECF No. 226 ¶¶ 11(c), 67, 70-78, 80, 82, and 84); and (2) that the remaining conduct described in Section I (that is, conduct other than the official communications with the Vice President) was not official, and, in the alternative, that the Government has rebutted any presumptive immunity for any of the remaining conduct that the Court finds to be official. The Government requests alternative rulings regarding rebuttal for all conduct the Court finds to be unofficial, to buttress the Court’s record, ensure thorough and efficient appellate review, and minimize the risk of successive rounds of interlocutory appeal.

Furthermore, based on the determination that all the conduct described in Section I is not immune from prosecution, and because Section I encompasses all the allegations in the superseding indictment, the Court should further specify: (3) that the defendant is subject to trial on the superseding indictment; and (4) that the Government is not prohibited at trial from using evidence of the conduct described in Section I, subject at a later date to non-immunity based objections and this Court’s admissibility rulings under the Federal Rules of Evidence.

Respectfully submitted,
JACK SMITH
Special Counsel
/s/ Molly Gaston
Molly Gaston
Thomas P. Windom
Senior Assistant Special Counsels
950 Pennsylvania Avenue NW
Room B-206
Washington, D.C. 20530

[admin]

_______________

Notes:

1 Section I represents the Government’s efforts to provide the Court and the defendant with all of the categories of evidence that it may offer in its case-in-chief at trial. It does not include citations to every potential exhibit, nor does it account for any additional evidence that may be developed before trial.

2 GA 501-510 (DELETE) GA 591-599 (DELETE) GA 246-247 (DELETE)

3. GA 501-512 (DELETE) GA 591-599 (DELETE) GA 246-249 (DELETE) GA 132-153 (DELETE)

4. GA 505-507 (DELETE) GA 250-255 (DELETE) GA 588-589 (DELETE)

5 GA 1968 at 37:20 (Video of Trump Interview with Chris Wallace 07/19/2020).

6 See https://x.com/realDonaldTrump/status/12 ... 0389558273 (Donald J. Trump Tweet 07/30/2020).

7 See Donald Trump Interview Transcript with Jonathan Swan of Axios on HBO, Rev (Aug. 3, 2020) https://www.rev.com/blog/transcripts/do ... xios-onhbo.

8 GA 1943 at 57:33 (Video of Oshkosh Rally 08/17/2020).

9 GA 1951 at 22:08 (Video of RNC Speech 08/24/2020).

10 GA 1927 at 3:11-3:28 (Video of Donald J. Trump Statement 10/27/2020).

11 GA 1886 at 0:00 (DELETE).

12 Id. at 0:20 (DELETE).

13 GA 376-380 at 70-74 (DELETE).

14 GA 600-602 (DELETE); GA 610-614 (DELETE); GA 380-383 (DELETE); GA 128-130(DELETE); GA 161 (DELETE); GA 370 (DELETE).

15 GA 154 (DELETE); GA 600 (DELETE); GA 181-182 (DELETE).

16 GA 1974 at 7:44 (Video of White House Speech 11/04/2020).

17 GA 968-996 (DELETE).

18 Id.

19. Id.

20. Id.

21 GA 997-999 (DELETE).

22 GA 774-775 (Donald J. Trump Tweet 11/06/2020); GA 776, https://x.com/realDonaldTrump/status/13 ... 9443080192 (Donald J. Trump Tweet 11/07/2020.

23 GA 155-158 (DELETE)

24 GA 1001 (Donald J. Trump for President, Inc v. Hobbs Hearing Transcript 11/13/2020); GA 1002-1003 (Minute entry and order dismissing Donald J Trump for President, Inc. v. Hobbs).

25 GA 731-734 (DELETE)

26 GA 1004 (DELETE)

27 Id.

28 GA 784-785 (Donald 1. Tromp Tweet 11/14/2020).

29 GA 699 (DELETE)

30 671 (DELETE)

31 GA 672-673; GA 686 (DELETE)

32 GA 205 (DELETE)

33 Id.

34 GA 198-204 (DELETE)

35 GA 715, 718 (DELETE)

36 GA 213-214 (DELETE)

37 GA 718 (DELETE)

38 GA 715-721 (DELETE); GA 207-213 (DELETE)

39 GA 211-212 (DELETE)

40 GA 414-420 (DELETE)

41 GA 412-413 (DELETE)

42. GA 413-414 (DELETE)

43. GA 421 (DELETE). See GA 1016 (Pence, So Help Me God p. 430).

44. GA 1036 (DELETE); GA 1034-1035 (DELETE)

45. GA 422-424 (DELETE). See GA 1017 (Pence, So Help Me God p. 431).

46. GA 1037 (DELETE).

47. GA 425-426 (DELETE). See GA 1018 (Pence, So Help Me God p. 432).

48. GA 430 (DELETE); GA 736 (DELETE).

49. GA 442-448 (DELETE). See GA 1020-1022 (Pence, So Help Me God p. 437- 439).

50 GA 1039 (DELETE). See GA 1018 (Pence, So Help Me God p. 432).

51 GA 427-429, GA 431-435 439). See GA 1018 (Pence, So Help Me God, p. 432).

52 GA 1040 (Joint Statement 11/20/2020); GA 1041 (Statement 12/04/2020).

53 See, e.g., GA 1043 (Letter to Maricopa County voters 11/17/2020); GA 838 (Arizona Governor's Tweet 12/01/2020); GA 1041 (Arizona Legislator's Statement 12/04/2020); GA 1044- 1046 (Georgia Secretary of State News Release 10/23/2020); GA 1047-1048 (Georgia Secretary of State News Release 11/5/2020); GA 1947 (Video of Georgia Press Conference 11/06/2020); GA 1959 (Video of Georgia Press Conference 11/09/2020); GA 1960 (Video of Georgia Press Conference 11/12/2020); GA 1049-1050 (Georgia Secretary of State News Release 11/18/2020); GA 1051-1052 (Georgia Secretary of State News Release 11/19/2020); GA 1053-1054 (Georgia Secretary of State News Release 12/07/2020); GA 1946 (Video of Georgia News Conference 12/07/2020); GA 1948 (Video of Georgia Press Conference 12/16/2020); GA 1055-1057 (Georgia Secretary of State News Release 12/29/2020); GA 1949 (Video of Georgia Secretary of State Interview with Cavuto 01/02/2021); GA 1958 (Video of Georgia Press Conference 01/04/2021); GA 1058-1059 (Michigan Secretary of State web page 11/06/2020); GA 1040 (Michigan Legislators' Joint Statement 11/20/2020); GA 1060-1062 (Michigan Attorney General and Secretary of State News Release 12/14/2020); GA 1063-1064 (Michigan Secretary of State web page 12/17/2020); GA 1065 (Michigan Secretary of State web page 12/18/2020); GA 1066 (Michigan Secretary of State web page); GA 1907 (Video of Michigan Clerk's Statement); GA 1068-1070 (New Mexico Secretary of State News Release 12/14/2020); GA 1953 (Video of [AL SCHMIDT, A THEN-PHILADELPHIA CITY COMMISSIONER, (R), TRUMP CRITICIZED FOR REFUSING TO OVERTURN ELECTION] Interview with CNN l1/11/2020); GA 822 [AL SCHMIDT, A THEN-PHILADELPHIA CITY COMMISSIONER, (R), TRUMP CRITICIZED FOR REFUSING TO OVERTURN ELECTION] Tweet 11/27/2020); GA 1071-1072 (Pennsylvania Department of State Public Response Statement 12/29/2020); GA 1073-1076 (Wisconsin Elections Commission web page 11/05/2020); GA 1077-1081 (Wisconsin Elections Commission web page 11/10/2020); GA 1082-1087 (Wisconsin Elections Commission web page).

54 GA308 [DELETE]

55 GA 1890 at 20:46 (Common Sense with [DELETE] 11/25/2020).

56 GA 1906 at 2:06:25 (Video of Arizona Hotel Hearing 11/30/2020).

57 GA 1980 at 18:52 [DELETE].

58 GA 1981 at 35:19 [DELETE]

59 GA 1106 (Dalton Rally Speech Draft Tr. 01/04/2021); GA 1134 (Ellipse Rally Speech Draft Tr. 01/06/2021).

60 GA 1114-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021); GA 1142 [DELETE].

61 GA 1126-1129, GA 1131-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).

62 GA 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021).

63 GA 656-658 (DELETE); GA 727 (DELETE)

64 See, e.g., Democrats flip Arizona as Biden, Kelly score key election wills, Fox NEWS, Nov. 3, 2020, available at https://www.foxnews.com/video/6206934979001; Dan Merica, Biden carries Arizona, flipping a longtime Republican stronghold, CNN.COM, Nov. 13, 2020, available at https://www.cnn.com/2020/11/ 12/politics/biden-wins-arizona/index.html; Luis Ferre-Sadurni et al., Biden flips Arizona, further cementing his presidential victory, N.Y. TIMES, Nov. 12, 2020, available at https://www.nytimes.com/2020/11/12/us/b ... zona.html; Election Latest: Biden Projected Winner in Arizona, NBC 4 NEW YORK, Nov. 12, 2020, available at https://www.nbcnewyork.com/news/politic ... d-leaders- about-virus/2718671/.

65 GA 667 (DELETE).

66 Id.

67 GA 657 (DELETE)

68 Id.

69 603-608 (DELETE).

70 GA 661 (DELETE).

71 GA 658 (DELETE).

72 GA 658, GA 667-668 (DELETE).

73 GA 840 (Trump Twitter Archive 11/30/2020).

74 GA 833-834 (Donald J. Trump Tweet 11/30/2020).

75 GA 831-832 (Donald J. Trump Tweet 11/30/2020).

76 GA 839 (Trump Twitter Archive 12/01/2020.

77 GA 735 (DELETE); GA 21-22 (DELETE).

78 See GA 30 (DELETE).

79 GA 22-24 (DELETE)

80 GA 28 (DELETE).

81 GA 22-33 (DELETE).

82 GA 25 (DELETE).

83 GA 1906 at 56:19 (Video of Arizona Hotel Heating 11/30/2020).

84 GA 36 (DELETE).

85 GA (DELETE).

86 1041-1042 (DELETE) STATEMENT 12/04/2020.

87 GA 1042 Statement 12/04/2020).

88 GA 854-855 (Donald J. Trump Tweet 12/06/2020); GA 852-853 (Donald J. Trump Tweet 12/06/2020).

89 GA 37-44 (DELETE); GA 408-409 (DELETE).

90 GA 1144 (DELETE).

91 GA 41-42 (DELETE).

92 GA 45-47 (DELETE).

93 GA 46-47 (DELETE).

94 GA 47 (DELETE).

95 GA 388-390 (DELETE).

96 GA 1969 at 22:43-23:51 (Video of Trump Interview with Maria Bartiromo 11/29/2020).

97 GA 1934 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020).

98 GA 739 at 1 (DELETE).

99 ECF No. 226 §26(a); GA 1146 (DELETE); see also GA 364-365 (DELETE).

100 GA 1934 at 30:54 (Video of Georgia Senate Judiciary Subcommittee Hearing 2/03/2020); GA 1146 (DELETE).

101 GA 1934 at 34:06 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020); ECF No. 226 §26(b).

102 GA 1934 at 4:44:05 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020).

103 GA 846-847 (Donald J. Trump Tweet 12/03/2020).

104 GA 845, GA 1893 (Donald J. Trump Tweet 12/03/2020); GA 844, GA 1894 (Donald J. Trump Tweet 12/03/2020).

105 GA 848 ([GABRIEL STERLING, COO GA. SECTY. STATE]) Tweet 12/04/2020).

106 GA 1933 at 8:43 (Video of Georgia Secretary of State Press Conference 12/07/2020).

107 GA 742 (DELETE).

108 GA 61-62 (DELETE).

109 GA 62 (DELETE).

110 GA 61-62 (DELETE).

111 GA 64 (DELETE).

112 Id.

113 GA 65-66 (DELETE).

114 GA 66 (DELETE) (2023).

115 GA 67 (DELETE).

116 Id.

117 Mot. to Intervene, Texas v. Pennsylvania, No. 22-0-155 (S. Ct. Dec. 9, 2020).

118 GA 1147 (DELETE).

119 GA 1932 at 1:37:18-1:48:33 (Video of Georgia House Committee Hearing 12/10/2020).

120 GA 1932 at 1:57:10-1:58:00 (Video of Georgia House Committee Hearing 12/10/2020).

121 GA 171 (DELETE).

122 GA 966 (Donald J. Trump Truth Social Post 01/03/2023); GA 964 (Donald J. Trump Truth Social Post 01/02/2023); GA 965 (Donald J. Trump Truth Social Post 01/03/2023).

123 GA 829-830 (Donald J. Trump Tweet 11/30/2020).

124 GA 850-851 (Donald J. Trump Tweet 12/05/2020).

125 GA 857, GA 859 (Donald J. Trump Tweet 12/07/2020).

126 GA 864 (Donald J. Trump Tweet 12/10/2020).

127 GA 238-239 (DELETE).

128 GA 239 (DELETE).

129 GA 1152 (DELETE)

130 Complaint at 33-34, Trump v. Kemp , No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.

131 GA 1949 at 3:22 (Video of [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE]. Interview with Cavuto 01/02/2021).

132 GA 813-814 (Donald J. Trump Tweet 11/24/2020); GA 862-863 (Donald J. Trump Tweet 12/08/2020); GA 865-866 (Donald J. Trump Tweet 12/11 /2020).

133 GA 367-368 (DELETE); Complaint at 33-34. Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.

134 GA 514 (DELETE).

135 GA 514-515 (DELETE).

136 GA 1154 (Tr. of [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] Call 01/02/2021).

137 GA 1165 (Tr. of [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] Call 01/02/2021).

138 GA 1157 (Tr. of [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] Call 01/02/2021).

139 GA 1155 (Tr. of [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] Call 01/02/2021).

140 GA 1160 (Tr. of [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] Call 01/02/2021).

141 GA 1161 (Tr. of [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] Call 01/02/2021).

142 GA 1159 (Tr. of [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] Call 01/02/2021).

143 GA 1162 (Tr. of [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] Call 01/02/2021).

144 GA 1165 (Tr. of [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] Call 01/02/2021).

145 GA 1172-1173 (Tr. of [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] Call 01/02/2021).

146 GA 919-920 (Donald J. Trump Tweet 01/03/2021).

147 GA 925 ([SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE] Tweet 01/03/2021).

148 GA 555-557, 565 (DELETE); GA 15 (DELETE).

149 GA 70-71 (DELETE).

150 GA 330-337 (DELETE).

151 GA 556-557 (DELETE).

152 GA 797-798 (Donald J. Trump Tweet 11/18/2020).

153 GA 556-557 (DELETE).

154 GA 558 (DELETE).

155 GA 74-78 (DELETE).

156 GA 75 (DELETE).

157 GA 330-227 (DELETE); GA 82 (DELETE); GA 560-561 (DELETE).

158 GA 361-362 (DELETE).

159 GA 562-564 (DELETE).

160 GA 564 (DELETE).

161 GA 563-465 (DELETE).

162 GA 560-571 (DELETE); GA 70-94 (DELETE).

163 GA 575 (DELETE); GA 567-569 (DELETE).

164 GA 569 (DELETE); GA 575 (DELETE).

165 GA 1040 (DELETE) Joint Statement 11/20/2020); GA 94-95 (DELETE).

166 GA 799-800 (Donald J. Trump Tweet 11/21/2020.

167 GA 49-53 (DELETE); GA 15-19 (DELETE).

168 GA 1175 (DELETE).

169 GA 1177 (DELETE); GA 1178-1187 (DELETE).

170 GA 1188 (DELETE). 171 GA 1189 (DELETE).

172 GA 1190-1192 (DELETE) Press Releases 12/14/2020).

173 GA 1191 (DELETE) Press Releases 12/14/2020).

174 GA 1192 (DELETE) Press Releases 12/14/2020).

175 GA 917 (Team Trump Tweet 01/03/2021); GA 918 (Team Trump Tweet 01/03/2021).

176 GA 573-574, 576-577 (DELETE).

177 Complaint at 1, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Nov. 17, 2020) available at: https://electioncases.osu.edu/wp-conten ... laint.pdf; GA 1963 (Video of Trump Campaign Press Conference 11/17/2020).

178 GA 1193-1194 (DELETE).

179 GA 1195 (DELETE).

180 GA 1196-1197, 1195 (DELETE).

181 GA 817-818 (Donald J. Trump Tweet 11/24/2020).

182 Order at 13-24, 28-34, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Dec. 4, 2020) available at: https://electioncases.osu.edu/wp-content/uploads/2020/ 11/Law-v-Gloria-OrderGranting-Motion-to-Dismiss.pdf.

183 Law v. Whitmer, 136 Nev. 840 (Nev. 2020).

184 Compare Order at 18-20, Law v. Whitmer, No. 200C00163 1B (Nev. Dist. Ct. Dec. 4, 2020) available at: https://electioncases.osu.edu/wp-content/uploads/2020/ 11/Law-v-Gloria-OrderGranting-Motion-to-Dismiss.pdf (finding no support for claims of double ballots, non-resident, and deceased voters) with GA 1134-1135 (Ellipse Rally Speech Draft Tr. 01/06/2021) ("There were also more than 42,000 double votes in Nevada"; "1,500 ballots were cast by individuals whose names and dates of birth match Nevada residents who died in 2020 prior to November 3rd election. More than 8,000 votes were cast by individuals who had no address and probably didn't live there.").

185 GA 1198 (Nevada Facts vs. Myths 12/18/2020).

186 GA 1199 (Nevada Facts vs. Myths 12/18/2020).

187 GA 618-619 (DELETE); GA 723-724 (DELETE).

188 GA 616-617 (DELETE).

189 GA 619-620 (DELETE).

190 GA 620 (DELETE).

191 GA 159 (DELETE).

192 GA 1953 at 2:20-4:13 (Video of [AL SCHMIDT, A THEN-PHILADELPHIA CITY COMMISSIONER, (R), TRUMP CRITICIZED FOR REFUSING TO OVERTURN ELECTION] Interview with CNN 11/11/2020.

193 GA 777-778 (Donald J. Trump Tweet 11/11/2020.

194 GA 550-551 (DELETE).

195 GA 1945 (Video of Pennsylvania Hotel Hearing 11/25/2020).

196 GA 1945 at 2:06:23-2:07:23 (Video of Pennsylvania Hotel Hearing 11/25/2020).

197 GA 1945 at 2:21:30-2:21:53 (Video of Pennsylvania Hotel Hearing 11/25/2020).

198 GA 819 ([JUSTIN RIEMER, RNC THEN-CHIEF COUNSEL] Tweet 11/25/2020).

199 GA 1203-1206 (DELETE).

200 GA 721 (DELETE); GA 1207-1208 (DELETE).

201 GA 1209 (DELETE).

202 GA 1976 (DELETE).

203 GA 1210-1214 (DELETE); GA 1215 (DELETE); GA 342-346 (DELETE).

204 GA 1222-1223 (Letter from Pennsylvania Legislators 12/03/2020); GA 173 (DELETE).

205 GA 849 (DELETE Tweet 12/04/2020).

206 GA 856, 858 (Donald J. Trump Tweet 12/06/2020).

207 GA 1224-1225 (Wisconsin Order for Recount 11/19/2020); GA 1226 (Wisconsin Statement of Canvass 11/30/2020); Trump v. Biden, 394 Wis. 2d 629, 633 (Wis. 2020).

208 Trump v. Biden, 394 Wis. 2d 629, 633 (Wis. 2020).

209 GA 1235 (Wisconsin Certificate of Ascertainment 11/03/2020).

210 GA 875, GA 876, GA 877, GA 880, GA 879, and GA 878 (Donald J. Trump Tweets 12/21/2020).

211 GA 184-186, GA 188-189 (DELETE).

212 GA 1236 (Election Security Joint Statement 11/12/2020).

213 GA 784-785 (Donald J. Trump Tweet 11/14/2020).

214 GA 1238-1239 (DELETE).

215 GA 1240 (DELETE).

216 GA 790 ([CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] Tweet 11/17/2020).

217 GA 1950 (Video of RNC Press Conference 11/19/2020).

218 GA 1950 at 38:58-52:34 (Video of RNC Press Conference 11/19/2020).

219 GA 1972 at 9:18-10:02 (Video Show of [TUCKER CARLSON] Show 11/19/2020).

220 GA 391-392 (DELETE).

221 GA 248-249 (DELETE); GA 528 (DELETE).

222 GA 258-259 (DELETE).

223 GA 256-259 (DELETE).

224 GA 258-260 (DELETE).

225 GA 206 (DELETE).

226 GA 1241 (Trump Campaign Statement 11/22/2020).

227 GA 815-816 (Donald J. Trump Tweet 11/24/2020).

228 Complaint at 2, Pearson v. Kemp, No. 1:20-cv-4809 (N.D. Ga. Nov. 25, 2020), ECF No. I.

229 GA 820-821 (Donald J. Trump Tweet 11/26/2020).

230 Transcript of Mots. Hr'g at 41-44, Pearson v. Kemp, (N.D. Ga. Dec. 7, 2020), ECF No. 79.

231 GA 1940 (Video of [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] on 60 Minutes 11/29/2020).

232 GA 1940 at 4:14-4:19 (Video of [CHRIS KREBS, THEN-CYBERSEC. CZAR, WHO CALLED ELECTION “MOST SECURE” IN HISTORY] on 60 Minutes 11/29/2020).

233 GA 825-826 (Donald J. Trump Tweet 11/29/2020).

234 GA 1887 (Audio of [JOSEPH DIGENOVA] on 11/30/2020).

235 GA 295-296 (DELETE).

236 GA 841-842 (Donald J. Trump Tweet 12/01/2020.

237 GA 1961 at 3:32-3:55 (Video of [GABRIEL STERLING, COO GA. SECTY. STATE] Press Conference 12/01/2020.

238 GA 12-13 (DELETE).

239 GA 1242-1243 (Email from Comms Alert 12/01/2020).

240 GA 1244 (Trump Campaign Press Release 12/01/2020).

241 GA 338-339 (DELETE).

242 GA 339-341 (DELETE).

243 Id.

244 GA 1889 at 15:58-16:27 (Audio of Trump [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE]. Call 01/02/2021).

245 GA 1889 at 16:32-1 7:26 (Audio of Trump [SEC. BRAD RAFFENSPERGER (R), GA. SECTY. STATE]. Call 01/02/2021).

246 GA 1928 at 2:22:41-2:23:07 (Video of Ellipse Rally 01/06/2021).

247 GA 1928 at 2:25:25-22:26:56 (Video of Ellipse Rally 01/06/2021).

248 GA 1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).

249 GA 1 245-1246 (DELETE); GA 1247-1248 (DELETE).

250 GA 1249-1255 ([KENNETH CHESEBRO] memo 11/18/2020).

251 GA 1256-1259 (DELETE).

252 GA 1260-1265 ([KENNETH CHESEBRO] memo on 12/06/2020).

253 GA 1266-1270 ([KENNETH CHESEBRO] memo on 12/09/2020).

254 GA 1271 (DELETE); GA 1272 (New Mexico Certificate of Ascertainment); GA 1273-1282 (DELETE).

255 GA 1283-1284 (DELETE); GA 436-437 (DELETE); GA 1019 (Pence, So Help Me God, p. 433).

256 1283-1284 (DELETE); GA 438-439 (DELETE).

257 GA 1260-1265 ([KENNETH CHESEBRO] memo 12/06/2020).

258 GA 323-325 (DELETE).

259 GA 324-325 (DELETE).

260 GA 325 (DELETE).

261 GA 325-327 (DELETE).

263 GA 326-327 (DELETE).

264 GA 1286-1287 (DELETE).

265 GA 1288-1290 (DELETE); GA 1247 (DELETE).

266 GA 1291-1295 (DELETE).

267 GA 1296-1299 (DELETE); GA 1300-1309 (DELETE).

268 GA 1312-1317 (DELETE); GA 1318-1320 (DELETE); GA 1321-1324 (DELETE).

269 GA 1296-1299 (DELETE).

270 GA 1325 (DELETE).

271 GA 1296-1299 (DELETE).

272 GA 1326-1327 (DELETE).

273 GA 1288-1290 (DELETE).

274 GA 1328 (DELETE); GA 1310-1311 (DELETE); GA 1321-1324 (DELETE); GA 1334-1335 (DELETE); GA 1336-1338 (DELETE); GA 1339-1341 (DELETE); to (DELETE); GA 1342-1344 (DELETE); GA 1345-1346 (DELETE).

275 GA 1300 (DELETE); GA 394-395 (DELETE).

276 GA 1301 (DELETE).

277 GA 1304 (DELETE).

278 GA 1305-1306 (DELETE); GA 396-397 (DELETE).

279 GA 1306 (DELETE).

280 GA 1308 (DELETE).

281 GA 744 (DELETE).

282 GA 1347-1349 (DELETE); GA 1350-1356 (DELETE) 2020); GA 97-98 (DELETE); GA 517-518 (DELETE).

283 GA 1188 at 3:15-4:32 (DELETE) 2020); GA 1296-1299 (DELETE).

284 See, e.g., GA 625-633 (DELETE); GA 320-321 (DELETE); GA 265(DELETE); GA 1362-1365 (Fraudulent "Georgia's Electoral Votes for President and Vice President"); GA 1372-1373 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); GA 1383-1389 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President").

285 GA 320-321 (DELETE).

286 GA 519-520 (DELETE) 024).

287 GA 164-165 (DELETE); GA 522-523 (DELETE); GA 488-495 (DELETE).

288 GA 618-619 (DELETE); GA 723-724, GA 726 (DELETE).

289 GA 1318 (DELETE).

290 GA 1319 (DELETE).

291 Id.

292 GA 1394-1398 (DELETE); GA 1399 (DELETE).

293 GA 743 (DELETE); GA 1400 (DELETE); GA 621 (DELETE).

294 GA 1407 (DELETE).

295 GA 1407-1408 (DELETE).

296 GA 1408 (DELETE).

297 GA 867-872 (Donald J. Trump Tweets 12/13/2020).

298 GA 1407-1408 (DELETE); GA 1409-1410 (DELETE); GA 1411-1412 (DELETE); GA 1413-1415 (DELETE); GA 622-625 (DELETE); GA 1273-1282 (DELETE).

300 GA 1417-1419 (DELETE).

301 GA 1420-1424 (Fraudulent "Arizona's Electoral Votes for President and Vice President"); GA 1357-1368 (Fraudulent "Georgia's Electoral Votes for President and Vice President"); GA 1369- 1379 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); GA 1425-1444 (Fraudulent "Nevada's Electoral Votes for President and Vice President"); GA 1445-1450 (Fraudulent ''New Mexico's Electoral Votes for President and Vice President"); GA 1380-1393 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President"); GA 1451-1457 (Fraudulent "Wisconsin's Electoral Votes for President and Vice President"); GA 1458-1472 (DELETE).

302 GA 1266-1270 ([KENNETH CHESEBRO] memo 12/09/2020)

303 GA 1268-1270 ([KENNETH CHESEBRO] memo 12/09/2020).

304 GA 1473-1475 (DELETE); GA 1458-1472 (DELETE); GA 1476 (DELETE).

305 GA 1458-1472 (DELETE).

306 GA 1270 ([KENNETH CHESEBRO] memo 12/09/2020); GA 1390 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President").

307 GA 1477-1482 (DELETE).

308 GA 328-329 (DELETE).

309 Id; see also GA 1483-1484 (DELETE).

310 GA 329 (DELETE).

311 GA 745 (DELETE); GA 1485 (DELETE).

312 GA 1486 (DELETE); GA 1487-1493 (DELETE).

313 See, e.g., GA 744 (DELETE); GA 749 (DELETE); GA 750 (DELETE); GA 751 (DELETE); GA 753 (DELETE); GA 756 (DELETE); GA 758-759 (DELETE); GA 763 (DELETE); GA 764 (DELETE); GA 765 (DELETE); GA 768, 770 (DELETE); GA 771 (DELETE).

314 GA 1979 (DELETE).

315 GA 1494 (DELETE); GA 1495 (DELETE); GA 1498-1500 (DELETE); GA 746 (DELETE); GA 747-748 (DELETE); GA 100-101 (DELETE).

316 GA 497-498 (DELETE).

317 GA 498-500 (DELETE).

318 GA 1501-1502 (DELETE).

319 GA 873-874 (Donald J. Trump Tweet 12/19/2020).

320 GA 1504 (DELETE).

321 GA 440-441 (DELETE); GA 1020 (Pence, So Help Me God p. 437).

322 GA 1506-1508 (DELETE); GA 1509 (DELETE); GA 1510-1512 (DELETE); GA 1513-1515 (DELETE).


323 GA 1515 (DELETE).

324 GA 1517 (DELETE).

325 GA 1521 (DELETE).

326 Id.

327 GA 1005 (DELETE); GA 752, 754 (DELETE); GA 1523 (DELETE); GA 883 (Donald J. Trump Tweet 12/23/2020); GA 449 (DELETE); GA 1022-1023 (Pence, So Help Me God p. 439); see also GA 1524-1527 (DELETE).

328 GA 1528 (DELETE).



329 GA 755 (DELETE).

330 GA 1529 (DELETE).

331 Id.

332 GA 450-452 (DELETE); GA 1024-1025 (Pence, So Help Me God p. 441-42).

333 Id.

334 GA 886-887 (Donald J. Trump Tweet 12/26/2020).

335 GA 888-895 (Donald J. Trump Tweet 12/26/2020).

336 GA 1530-1531 (DELETE).

337 GA 453 (DELETE); GA 1026-1027 (Pence, So Help Me God p. 446-47); GA 758 (DELETE).

338 GA 1026 (Pence, So Help Me God p. 446).

339 GA 757-760 (DELETE).

340 GA 905-906 (Donald J. Trump Tweet 01/01/2021).

341 GA 1981 (DELETE).

342 GA 1981 at 24:56-25:40 (DELETE).

343 GA 761-762 (DELETE).

344 GA 1006-1008, 1011-1014 (DELETE).

345 GA 763 (DELETE); GA 1007 (DELETE).

346 GA 1027 (Pence, So Help Me God p. 447); GA 1532-1533 (DELETE).

347 Id.

348 Id.

349 GA 454-456 (DELETE); GA 1534-1536 (DELETE).

350 Id.

351 GA 926-927 (Donald J. Trump Tweet 01/03//2021).

352 GA 1537-1543 (DELETE).

353 GA 1007-1012 (DELETE); GA 766 (DELETE).

354 GA 1904 at row 909 (DELETE); GA 1011 (DELETE); GA 765 (DELETE); GA 1544-1546(DELETE); GA 1547-1548 (DELETE).

355 GA 215-221 (DELETE); G1 1901 at row 5745 (DELETE); GA 766 (DELETE).

356 GA 215-218 (DELETE).

357 GA 219-223 (DELETE).

358 GA 224 (DELETE)

359 GA 766 (DELETE); GA 274-275 (DELETE).

360 GA 120-121 (DELETE).

361 GA 276-277 (DELETE); GA 579-580 (DELETE).

362 GA 276-277 (DELETE); GA 580-585 (DELETE).

363 GA 1028-1029 (Pence, So Help Me God p. 450-51); GA 278-279 (DELETE).

364 GA 277 (DELETE); GA 582-584 (DELETE).

365 GA 1549-1553 (DELETE).

366 GA 280-281 (DELETE).

367 GA 1028-1029 (Pence, So Help Me God p. 450-51).

368 GA 1011-1013 (DELETE).

369 GA 766 (DELETE); GA 1011-1014 (DELETE); GA 1559 (DELETE); GA 1983 at 36:55-37:43 (DELETE); GA 1984 at 9:09-9:55 (DELETE).

370 GA 767 (DELETE); GA 930-931 (Donald J. Trump Tweet 01/04/2021).

371 GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).

372 GA 1096 (Dalton Rally Speech Draft Tr. 01/04/2021).

373 GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).

374 GA 1096 (Dalton Rally Speech Draft Tr. 01/04/2021).

375 GA 768 (DELETE).

376 GA 1984 at 29:00-29:50 (DELETE).

377 Transcript of Mots. Hr'g, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021), ECF No. 21.

378 Complaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec/ 31, 2021), ECF No. 1; GA 1152 (DELETE).

379 Transcript of Mots. Hr'g at 29-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021), ECF No. 21.

380 Transcript of Mots. Hr'g at 55-56, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021), ECF No. 21.

381 GA 1563 (DELETE).

382 GA 283-284 (DELETE); GA 1939 at 1:20:00-1:21:30 (Video of Select Committee Testimony 06/16/2022); GA 1564 (DELETE).

383 GA 283-284 (DELETE); GA 1939 at 1:20:00-1:21:30 (Video of Select Committee Testimony 06/16/2022); GA 1564 (DELETE).

384 GA 1939 at 56:53-57:36, 1:05:59-1:07:02; 1:21:55-1:29:50 (Video of Select Committee Testimony 06/16/2022); GA 267-272 (DELETE).

385 GA 1939 at 1:26:01-1:26:32 (Video of Select Committee Testimony 06/16/2022).

386 GA 289-290 (DELETE).

387 GA 1014 (DELETE).

388 GA 1565-1567 (DELETE).

389 GA 1568-1574 (DELETE); GA 1575 (DELETE); GA 1576-1580 (DELETE); GA 1581-1582 (DELETE); GA 1583-1585 (DELETE); GA 1586-1589 (DELETE); GA 1590-1593 (DELETE); GA 1595-1596 (DELETE).

390 GA 1601-1607 (DELETE); GA 1608 (DELETE).

391 GA 1583-1585 (DELETE); GA 1586-1589 (DELETE); GA 1595-1596 (DELETE).

392 GA 934-935 (Donald J. Trump Tweet 01/05/2021).

393 GA 461-462 (Donald J. Trump Tweet 01/05/2021); GA 1031-1032 (Pence, So Help Me God p. 453-54).

394 GA 461, 463 (DELETE); GA 1031-1032 (Pence, So Help Me God p. 453-54); GA 1656 (DELETE).

395 GA 461, 463-470 (DELETE); GA 1031-1032 (Pence, So Help Me God p. 453-54); GA 1656 (DELETE).

396 GA 586-587 (DELETE).

397 GA 1657 (DELETE); GA 1215 (DELETE); GA 1658 (DELETE); GA 1659 (DELETE).

398 GA 282-288 (DELETE).

399 Id.

400 GA 938-939 (Donald J. Trump Tweet 01/05/2021).

401 GA 769 (DELETE); GA 1660-1661 (DELETE); GA 1662 (DELETE); GA 384-386 (DELETE).

402 GA 770 (DELETE); GA 1033 (Pence, So Help Me God p. 455).

403 GA 770 (DELETE).

404 GA 1663 (Donald J. Trump Campaign Statement 01/05/2021).

405 GA 940-941 (Donald J. Trump Tweet 01/06/2021).

406 GA 1929 at 02:16:45 (Video of Ellipse Rally 01/06/2021).

407 GA 942-943 (Donald J. Trump Tweet 01/06/2021).

408 GA 1664 (DELETE); GA 55-56 (DELETE); GA 102-103 (DELETE); GA 262-263 (DELETE).

409 GA 1665-1666 (DELETE); GA 1667 (DELETE).

410 GA 359 (DELETE).

411 GA 371-373 (DELETE); GA 227-228 (DELETE); GA 471-472 (DELETE); GA 1668-1669(DELETE).

412 GA 405-406 (DELETE); GA 1670 (DELETE); GA 638-642 (DELETE); GA 1680 (DELETE); GA 1681 (DELETE); GA 231 (DELETE); GA 371 (DELETE).

413 See e.g., GA 886-887 (Donald J. Trump Tweet 12/26/2020); GA 897-898 (Donald J. Trump Tweet 12/27/2020); GA 899-900 (Donald J. Trump Tweet 12/30/2020); GA 905-906 (Donald J. Trump Tweet 01/01/2021); GA 907-908 (Donald J. Trump Tweet 01/01/2021); GA 913-914, GA 1891 (Donald J. Trump Tweet 01/01/2021); GA 928-929 (Donald J. Trump Tweet 01/04/2021); GA 932-933 (Donald J. Trump Tweet 01/05/2021); GA 938-939 (Donald J. Trump Tweet 01/05/2021).

414 See GA 1928 (Video of Ellipse Rally 01/06/2021).

415 GA 1928 at 2:19:27 (Video of Ellipse Rally 01/06/2021).

416 GA 1928 at 2:19:40 (Video of Ellipse Rally 01/06/2021).

417 GA 1928 at 2:20:13 (Video of Ellipse Rally 01/06/2021).

418 GA 1928 at 2:22:10 (Video of Ellipse Rally 01/06/2021).

419 Id.

420 GA 1928 at 2:27:08 (Video of Ellipse Rally 01/06/2021).

421 GA 1928 at 2:27:21 (Video of Ellipse Rally 01/06/2021).

422 GA 1928 at 3:31:20-4:42 :50 (Video of Ellipse Rally 01/06/2021).

423 GA 1134 (Ellipse Rally Speech Draft Tr. 01/06/2021).

424 GA 1133-1134 (Ellipse Rally Speech Draft Tr. 01/06/2021).

425 GA 1133 (Ellipse Rally Speech Draft Tr. 01/06/2021).

426 GA 1131 (Ellipse Rally Speech Draft Tr. 01/06/2021).

427 GA 1127, 1137 (Ellipse Rally Speech Draft Tr. 01/06/2021).

428 GA 1128 (Ellipse Rally Speech Draft Tr. 01/06/2021).

429 GA 1896 at 5:10 (Rallygoer Video 10/06/2021).

430 GA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021).

431 Compare GA 1133 (Ellipse Rally Speech Draft Tr. 01/06/2021) with GA 1683 (Ellipse Rally Teleprompter speech excerpt).

432 GA 1122 (Ellipse Rally Speech Draft Tr. 01/06/2021).

433 GA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021).

434 See, e.g., GA 1120, 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021).

435 Id.

436 GA 1137 (Ellipse Rally Speech Draft Tr. 01/06/2021).

437 GA 1120, 1140, 1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).

438 GA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021).

439 GA 1897 at 3:18 (Rallygoer Video 01/06/2021).

440 GA 1120 (Ellipse Rally Speech Draft Tr. 01/06/2021).

441 Id.

442 Id.

443 GA 1898 at 00:19 (Rallygoer Video 01/06/2021.)

444 See, e.g., GA 1930 at 1:09:30 (Video of Ellipse Rally 01/06/2021); GA 1942 (Video of March to Capitol 01/06/2021); GA 1941 at 02:10-2:33 (Video of March to Capitol 01/06/2021).

445 GA 1937 at 20:47 (Video of House Floor 01/06/2021).

446 GA 1685 (Pence Dear Colleague Letter 01/06/2021).

447 GA 1937 at 26:24 (Video of House Floor 01/06/2021).

448 See, e.g. , GA 1915 at 3:25 Riot 01/06/2021).

449 GA 1687 (DELETE); GA 1688 (DELETE); GA 1689 (DELETE); GA 1690 (DELETE); GA 1583-1585 (DELETE).

450 GA 1912 at 56:56 (Video of Capitol Riot 01/06/2021); GA 1924 at 38:48 (Video of Capitol Riot 01/06/2021); GA 1918 (Video of Capitol Riot 01/06/2021); GA 1919 (Video of Capitol Riot 01/06/2021); GA 1921 at 04:30 (Video of Capitol Riot 01/06/2021); see also GA 2-3 (DELETE).

451 GA 1902 (DELETE).

452 GA 168-169 (DELETE); GA 292 -293 (DELETE); GA 540, 541-544 (DELETE); GA 232, 236 (DELETE).

453 GA 1957 at 1:04-1:25 (Video of Senate Wing Door CCTV 01/06/2021; GA 1954 at 44:16 (Video of Senate Floor 01/06/2021).

454 United States v. Hale-Cusanelli, No. 21-cr-37, ECF No. 93 at 38-39 (D.D.C. June 3, 2022) (Trial Tr. 05/24/2022).

455 GA 1923 (Video of Capitol Riot 01/06/2021; GA 177-178 (DELETE).

456 GA 175 (DELETE); see also GA 176, 179 (DELETE); GA 1916 at 00:50 (Video of Capitol Riot 01/06/2021).

457 GA 1937 at 1:34:00 (Video of House Floor 01/06/2021.

458 GA 1931 at 12:12 (Video of Fox News Coverage 01/06/2021).

459 GA 1931 at 20:11 (Video of Fox News Coverage 01/06/2021).

460 GA 1931 at 21:47 (Video of Fox News Coverage 01/06/2021).

461 GA 1931 at 24:05–24:17 (Video of Fox News Coverage 01/06/2021).

462 GA 946-947 (Donald J. Trump Tweet 01/06/2021); GA 546 (DELETE).

463 GA 1922 (Video of Capitol Riot 01/06/2021).

464 GA 1693 (Transcript of CNN Town Hall 05/10/2023).

465 GA 1944 (Video of Pence Evacuation 01/06/2021).

466 GA 1914 (Video of Capitol Riot 01/06/2021).

467 GA 1911 (Video of Capitol Riot 01/06/2021).

468 GA 1910 (Video of Capitol Riot 01/06/2021).

469 Isaac Arnsdorf and Maeve Reston, Trump claims violence he inspired on Jan. 6 was Pence’s fault, Wash. Post, (Mar. 13, 2023, 8:09 p.m.), https://www.washingtonpost.com/politics ... ence-iowa/.

470 GA 1956 (Video of Senate Gallery Doors CCTV 01/06/2021).

471 GA 1955 at 16:20 (Video of Senate Floor 01/06/2021).

472 GA 1955 at 29:15 (Video of Senate Floor 01/06/2021).

473 GA 1938 at 00:05 (Video of House Floor 01/06/2021); GA 1905 (Video inside Capitol Building 01/06/2021).

474 GA 1936 at 06:18 (Video of House Chamber Doors 01/06/2021).

475 GA 1920 (Video of Capitol Riot 01/06/2021); GA 1917 at 54:30 (Video of Capitol Riot 01/06/2021).

476 GA 5-6 (DELETE)

477 GA 4 (DELETE).

478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).

479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).

480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022).

481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023).

482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United Stales v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).

483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).

484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).

485 GA 1904 at row 1383 (DELETE); GA 1696 (DELETE).

486 GA 1697 (DELETE); GA 1401-1406 (DELETE); GA 1698-1701 (DELETE).

487 GA 1702 (DELETE).

488 GA 1977 (DELETE).

489 GA 1928 at 2:20:13, 3:37:54 (Video of Ellipse Rally 01/06/2021.

490 GA 1975 (DELETE).

491 Id.

492 Id.

493 GA 1703 (Congressional Record 01/06/2021).

494 GA 1705-1709 (DELETE).

495 GA 1925 at 19:14, 20:34 (Video of Congress Joint Session 01/06/2021); GA 1704 at 41 (Congressional Record 01/06/2021).

496 The Government's factual proffer also describes a conversation between the defendant and Pence on December 19 -- the same day that the defendant issued his "will be wild!" Tweet calling supporters to Washington -- in which the defendant told Pence that it would be good to have lots of their supporters in town on January 6. See supra pp. 60. At trial, the Government intends to use this unofficial portion of the conversation, held between running mates, but not Pence's a reference to the certification proceeding on January 6. GA 440-441 (DELETE); GA 1020 (Pence, So Help Me God p. 437). See infra p. 145-146.

497 GA 1685 (Pence Dear Colleague Letter 01/06/2021).

498 Legislation confirming the ministerial nature of that role dates to the Electoral Count Act of 1887, Pub. L. 49-90, 24 Stat. 373 (1887). See 3 U.S.C. §§ 15-18 (2020 ed.) (assigning all power to resolve vote-counting disputes to the two Houses of Congress, while assigning to the President of the Senate only the ministerial duties of “presiding,” “preserv[ing] order,” “open[ing] . . . the certificates,” “call[ing] for objections,” and “announc[ing] the state of the vote” after receiving the results from the tellers).

499 Section 15 of Title 3 was amended in the Electoral Count Reform Act of 2022, Pub. L. 117- 328, 136 Stat. 4459, 5237-40 (2022), in response to the defendant’s conduct here, to eliminate any doubt that the President of the Senate’s role at the joint session is ministerial. And because the rebuttal analysis is necessarily prospective in nature, the current version of Section 15 supplies the relevant measure, in this context, of “the Vice President’s role in the counting of electoral votes,” Trump, 144 S. Ct. at 2337.

500 GA 120-121 (DELETE).

501 See, e.g., GA 1037 (DELETE); GA 425-426 DELETE). See GA 1018 (Pence, So Help Me God p. 432).

502 GA 656-658 (DELETE); GA 727 (DELETE).

503 See GA 656-658 (DELETE). See also GA 667 (DELETE).

504 GA 657 (DELETE).

505 Id.

506 Id.

507 GA 661 (DELETE).

508 GA 658-659, 667-668 (DELETE).

509 GA 831-834 (Donald J. Trump Tweet 11/30/2020); GA 835-836, GA 1892 (Donald J. Trump Tweet 11/30/2020).

510 GA 563-564 (DELETE).

511 See, e.g., GA 723, 725 (DELETE); GA 728-730 (DELETE); GA 732 (DELETE); GA 737-738 (DELETE); GA 732 (DELETE); GA 737-738 (DELETE); GA 739-740 (DELETE); GA 746 (DELETE).

512 GA 69-71 (DELETE); GA 555-557 (DELETE).

513 GA 556-559 (DELETE).

514 GA 559-561 (DELETE); GA 71-74 (DELETE).

515 GA 1712 (Email from the White House Press Office 11/20/2020).

516 Id. (Email from the White House Press Office 11/20/2020).

517 GA 330-337 (DELETE); GA 82 (DELETE); GA 560-561 (DELETE).

518 GA 560 (DELETE); GA 361-362 (DELETE).

519 GA 348-358 (DELETE).

520 GA 560 (DELETE); GA 348-354 (DELETE); GA 685 (DELETE).

521 GA 560-571 (DELETE); GA 74-84 (DELETE).

522 GA 567-569 (DELETE).

523 GA 75, 80-81 (DELETE); GA 559, 561-562 (DELETE).

524 GA 348-358 (DELETE); GA 562 (DELETE).

525 GA 75, 94-95 (DELETE); GA 1040 (Joint Statement 11/20/2020).

526 Id. (Joint Statement 11/20/2020).

527 GA 799-800 (Donald J. Trump Tweet 11/21/2020.

528 GA 801-802 (Donald J. Trump Tweet 11/22/2020); GA 803-804 (Donald J. Trump Tweet 11/22/2020); GA 805-806 (Donald J. Trump Tweet 11/22/2020); GA 807-808 (Donald J. Trump Tweet 11/22/2020); GA 809-810 (Donald J. Trump Tweet 11/22/2020); GA 811-812 (Donald J. GA 913-914 (Team Trump Tweet 01/03/2021).

529 GA 559-561 (DELETE); GA 71-74 (DELETE).

530 GA 1175 (DELETE); GA 1177 (DELETE).

531 GA 913-914 (Team Trump Tweet 01/03/2021).

532 GA 735 (DELETE); GA 21-22 (DELETE).

533 GA 21-22 (DELETE).


534 GA 22-31 (DELETE).

535 Id.

536 GA 22-25, 32-34 (DELETE).

537 GA 735 (DELETE).

538 GA 36 (DELETE).

539 GA 854-855 (Donald J. Trump Tweet 12/06/2020); GA 852-853 (Donald J. Trump Tweet 12/06/2020).

540 GA 37-44 (DELETE).

541 GA 915 (Team Trump Facebook Post 01/02/2021); GA 916 (Team Trump Tweet 01/02/2021); GA 1982 at 22:00 (DELETE); see also GA 1713-1715 (DELETE).

542 GA 45-47 (DELETE).

543 GA 61-64 (DELETE); Mot. for Leave to File Bill of Complaint, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 7, 2020).

544 Mot. to Intervene, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 9, 2020).

545 GA 64 (DELETE).

546 GA 67 (DELETE); GA 742 (DELETE).

547 GA 742 (DELETE); Mot. for Leave to File Bill of Complaint, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 7, 2020).

548 GA 742 (DELETE); Brief of Missouri et al. as Amici Curiae Supporting Plaintiff, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 7, 2020).

549 GA 66 (DELETE).

550 GA 67 (DELETE).

551 GA 367-368 (DELETE).

552 GA 1154 (Tr. of Call 01/02/2021).

553 Complaint at 1, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.

554 GA 1154 (Tr. of Call 01/02/2021).

555 Complaint at 19, Trump v. Raffensperger, No. 2020CV343255 (Ga. Super. Ct. Dec. 4, 2020) available at: Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1-1 at 12-79.

556 GA 1159 (Tr. of Call 01/02/2021).

557 GA 1157 (Tr. of Call 01/02/2021).

558 GA 1170 (Tr. of Call 01/02/2021).

559 GA 1170-1171 (Tr. of Call 01/02/2021).

560 GA 323-325 (DELETE).

561 GA 1716-1717 (DELETE).
562 GA 323-325 (DELETE); GA 1286-1287 (DELETE); GA 1326-1327 (DELETE); GA 1288-1290 (DELETE).

563 GA 328-329 (DELETE); GA 1483-1484 (DELETE).

564 GA 1718-1724 (DELETE); GA 1725-1729 (DELETE); GA 1730-1732 (DELETE); GA 1733-1736 (DELETE); GA 1743 (DELETE); GA 1744 (DELETE); GA 1747 (DELETE); GA 1739 (DELETE).

565 GA 1751-1755 (DELETE).

566 GA 1752 (DELETE).

567 Id.

568 Id.

569 GA 767 (DELETE).

570 See, e.g., GA 1759-1762 (Campaign Fundraising email 01/04/2021); GA 1763-1765 (Campaign Fundraising email 01/04/2021); GA 1766-1767 (DELETE); GA 1768-1771 (Campaign Fundraising email 01/04/2021).

571 See, e.g. , GA 1772-1775 (Campaign Fundraising email 01/04/2021); GA 1776-1778 (Campaign Fundraising email 01/04/2021); GA 1779-1780 (DELETE); GA 1781-1784 (Campaign Fundraising email 01/04/2021).

572 Id.

573 See, e.g., GA 1785-1788 (Campaign Fundraising email 01/04/2021); GA 1789-1791 (Campaign Fundraising email 01/04/2021); GA 1792-1793 (DELETE); GA 1794-1797 (Campaign Fundraising email 01/04/2021).

574 GA 1089 (Dalton Rally Speech Draft Tr. 01/04/2021).

575 GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).

576 GA 1091 (Dalton Draft Tr. 01/04/2021).

577 GA 299-300 (DELETE); GA 485-486 (DELETE); GA 653 (DELETE); GA 1801-1802 (DELETE).

578 GA 301-302 (DELETE); GA 1804 (DELETE).

579 GA 399-403 (DELETE). (DELETE), then the Special Agent in Charge of the Washington Field Office of the Secret Service elaborated that the defendant's protective detail "wasn't getting information [about the rally] from their counterparts at the White House staff because this was not a staff-driven event. This was a campaign driven event." GA 399.

580 GA 645-652 (DELETE); GA 1142 (DELETE); GA 1805-1818 (DELETE); GA 1895 (DELETE); GA 1819-1822 (DELETE).

581 GA 483-484 (DELETE).

582 Riley Hoffman, Read: Harris-Trump presidential debate transcript (Sept. 10, 2024, 11:58 PM), available at https://abcnews.go.com/Politics/harris- ... 113560542; see also GA 1692 (Transcript of CNN Town Hall 05/10/2023).

583 GA 1827-1832 (DELETE).

584 GA 1833 (DELETE); GA 539 (DELETE);

585 See GA 636 (DELETE); GA 191-192 (DELETE); GA 1834-1843 (DELETE); GA 1681(DELETE).

586 GA 105 (DELETE); GA 476-477 (DELETE).

587 See The White House Home Page (screenshot), WHITEHOUSE.GOV (Jan. 6, 2021) https://web.archive.org/web/20210106154 ... house.gov/.

588 GA 954 (Team Trump Facebook Post 01/06/2021; GA 955 (Team Trump Facebook Post 01/06/2021); GA 956 (Team Trump Facebook Post 01/06/2021); GA 957 (Team Trump Tweet 01/06/2021); GA 958 (Team Trump Tweet 01/06/2021); GA 959 (Team Trump Tweet 01/06/2021); GA 960 (Team Trump Tweet 01/06/2021); GA 961 (Team Trump Tweet 01/06/2021); GA 962 (Team Trump Tweet 01/06/2021); GA 963 (Team Trump Tweet 01/06/2021).

589 GA 1928 (Video of Ellipse Rally 01/06/2021).

590 See GA 1913 (Video of Ellipse Rally 01/06/2021); GA 1908 (Video of Ellipse Rally 01/06/2021).

591 Compare KJRH-TV Tulsa, President Trump arrives at White House, YouTube https://www.youtube.com/watch?v=j7u50bMdl8A with GA 1928 at 3:28:50 and 4:42:55 (Video of Ellipse Rally 01/06/2021.

592 See GA 1088 (Dalton Rally Speech Draft Tr. 01/04/2021).

593 See GA 1114 (Ellipse Rally Speech Draft Tr. 01/06/2021).

594 GA 1118-1119 (Ellipse Rally Speech Draft Tr. 01/06/2021).

595 GA 1122, 1126-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).

596 GA 1115, 1122 (Ellipse Rally Speech Draft Tr. 01/06/2021).

597 GA 1115, 1132-1133, 1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).

598 GA 1119, 1133, 1135 (Ellipse Rally Speech Draft Tr. 01/06/2021).

599 GA 525-527 (DELETE); GA 534 (DELETE).

600 GA 411 (DELETE); see https://x.com/realDonaldTrump/status/ 753965070003109888?lang=en (Donald J. Trump Tweet 07/15/2016).

601 https://x.com/realDonaldTrump/status/10 ... 2756744192 (Donald J. Trump Tweet 02/02/2019); https://x.com/realdonaldtrump/status/11 ... 0505938946 (Donald J. Trump Tweet 09/12/2019).

602 GA 784-785 (Donald J. Trump Tweet 11/14/2020); GA 786-787 (Donald J. Trump Tweet 11/14/2020); GA 944-945 (Donald J. Trump Tweet 01/06/2021); GA 881-882 (Donald J. Trump Tweet 12/22/2020); GA 884-885 (Donald J. Trump Tweet 12/23/2020); GA 905-906 (Donald J. Trump Tweet 01/01/2021); GA 938-939 (Donald J. Trump Tweet 01/05/2021).

603 GA 526-532 (DELETE).

604 GA 1899 (Spreadsheet of @POTUS45 Tweets).

605 Id. (Spreadsheet of @POTUS45 Tweets).

606 Id. (Spreadsheet of @POTUS45 Tweets). The four re-Tweets are: on January 5, “Antifa is a Terrorist Organization, stay out of Washington. Law enforcement is watching you very closely! @DeptofDefense @TheJusticeDept @DHSgov @DHS_Wolf @SecBernhardt @SecretService @FBI”; on January 6, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay Peaceful” and “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!”; and on January 7, a link to a speech the defendant gave on that date about the events of the previous day.

607 Compare id. (Spreadsheet of @POTUS45 Tweets) with GA 946-947 (Donald J. Trump Tweet 01/06/2021).

608 See, e.g., GA 772-773 (Donald J. Trump Tweet 11/05/2020; GA 774-775 (Donald J. Trump Tweet 11 /06/2020); GA 797-798 (Donald J. Trump Tweet 11/18/2020); GA 850-851 (Donald J. Trump Tweet 12/05/2020).

609 See, e.g. , GA 777-778 (Donald J. Trump Tweet 11/11/2020; GA 860-861 (Donald J. Trump Tweet 12/07/2020); GA 782-783 (Donald J. Trump Tweet 11/13/2020); GA 795-796 (Donald J. Trump Tweet 11/17/2020); GA 881-882 (Donald J. Trump Tweet 12/22/2020).

610 GA 909-910 (Donald J. Trump Tweet 01/0112021); GA 911-912 (Donald J. Trump Tweet 01/01/2021).

611 GA 1953 at 2:20-4:13 (Video of Interview with CNN 11/11/2020; GA 777-778 (Donald J. Trump Tweet 11/11/2020.

612 GA 825-826 (Donald J. Trump Tweet 11/29/2020).

613 GA 854-855 (Donald J. Trump Tweet 12/06/2020).

614 GA 856, 858 (Donald J. Trump Tweet 12/06/2020).

615 GA 875-880 (Donald J. Trump Tweets 12/21/2021).

616 GA 777-778 (Donald J. Trump Tweet 11/11/2020).

617 GA 825-826 (Donald J. Trump Tweet 11/29/2020).

618 See, e.g., GA 867-872 (Donald J. Trump Tweets 12/13/2020).

619 GA 823-824 (Donald J. Trump Tweet 11/29/2020).

620 GA 827-828 (Donald J. Trump Tweet 11/29/2020). A week later, the court dismissed the lawsuit, stating that the plaintiffs "essentially ask the Com1 for perhaps the most extraordinary relief ever sought in any Federal Court in connection with an election. They want this Court to substitute its judgment for that of two-and-a-half million Georgia voters who voted for Joe Biden, and this I am unwilling to do." Pearson v. Kemp, 1:20-cv-4809, ECF No. 79 at 43 (N.D. Ga.) (Tr. of 12/7/2020 Hrg.).

621 See generally, e.g., GA 1848-1850 (DELETE).

622 GA 854-855 (Donald J. Trump Tweet 12/06/2020).

623 GA 852-853 (Donald J. Trump Tweet 12/06/2020).

624 Id. (Donald J. Trump Tweet 12/06/2020).

625 GA 856, 858 (Donald J. Trump Tweet 12/06/2020). See, e.g., GA 1851-1852 (DELETE).

626 GA 856, 858 (Donald J. Trump Tweet 12/06/2020).

627 GA 1233-1235 (Wisconsin Certificate of Ascertainment 11/30/2020 and Certificate of Final Determination 12/21/2020; Trump v. Biden, 394 Wis. 2d 629 (Wis. 2020); GA 875-880 (Donald J. Trump Tweets 12/21/2020.

628 Id. (Donald J. Trump Tweets 12/21/2020); GA 187-188 (DELETE). Although the defendant did not endorse Justice [BRIAN HAGEDORN, CONSERVATIVE WI. SUPREME CT. JUSTICE, TRUMP CRITICIZED FOR REJECTING TRUMP ELECTION LAWSUJIT] as he claimed, he did endorse a congressional candidate with the surname [BRIAN HAGEDORN, CONSERVATIVE WI. SUPREME CT. JUSTICE, TRUMP CRITICIZED FOR REJECTING TRUMP ELECTION LAWSUJIT] from another midwestern state. https://x.com/realDonaldTrump/status/12 ... 4210595842.

629 GA 877, 880 (Donald J. Trump Tweet 12/21/2020).

630 See, e.g., GA 896 (Team Trump Retweet of Donald J. Trump Tweet 12/26/2020); GA 901 (Team Trump Retweet of Donald J. Trump 12/30/2020); GA 902 (Team Trump Retweet of Donald J. Trump Tweet 12/30/2020); GA 534 (DELETE).

631 GA 886-887 (Donald J. Trump Tweet 12/26/2020; GA 897-898 (Donald J. Trump Tweet 12/27/2020); GA 899-900 (Donald J. Trump Tweet 12/30/2020); GA 903-904 (Donald J. Trump Tweet 01/01/2021); GA 905-906 (Donald J. Trump Tweet 1/01/2021); GA 913-914, 1891 (Donald J. Trump Tweet 01/01/2021); GA 921-922 (Donald J. Trump Tweet 01/03/2021); GA 923-924 (Donald J. Trump Tweet 01/03/2021); GA 928-929 (Donald J. Trump Tweet 01/04/2021); GA 932-933 (Donald J. Trump Tweet 01/05/2021); GA 938-939 (Donald J. Trump Tweet 01/05/2021).

632 GA 873-874 (Donald J. Trump Tweet 12/19/2020).

633 Id. (Donald J. Trump Tweet 12/19/2020; GA 1853-1865 (Report of Prohibited Political Activity Under the Hatch Act 11/18/2020).

634 GA 883 (Donald J. Trump Tweet 12/23/2020); GA 449 (DELETE); GA 1022-1023 (Pence, So Help Me God p. 439-40); see also GA 1524-1527 (DELETE).

635 GA 934-395 (Donald J. Trump Tweet 01/05/2021).

636 GA 940-941 (Donald J. Trump Tweet 01/06/2021).

637 GA 942-943 (Donald J. Trump Tweet 01/06/2021).

638 Id.; GA 940-941 (Donald J. Trump Tweet 01/06/2021).

639 GA 873-874 (Donald J. Trump Tweet 12/19/2020).

640 GA 457-460 (DELETE).

641 GA 946-947 (Donald J. Trump Tweet 01/06/2021).

642 GA 535-538 (DELETE).

643 GA 936-937 (Donald J. Trump Tweet 01/05/2021).

644 GA 940-941 (Donald J. Trump Tweet 01/06/2021; GA 942-943 (Donald J. Trump Tweet 01/06/2021).

645 GA 1680 (DELETE); GA 638-642 (DELETE).

646 GA 471-472 (DELETE); GA 1668-166 (DELETE).

647 GA 471-472 (DELETE); GA 1668-1669 (DELETE); GA 225-230 (DELETE).

648 GA 1681 (DELETE); GA 405-406 (DELETE); GA 1670-1679 (DELETE).

649 See GA 1114-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).

650 See GA 1140-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).

651 GA 1866 (DELETE); GA 168 (DELETE).

652 GA 541-544 (DELETE); GA 232, GA 236 (DELETE).

653 GA 479 (DELETE) (advisors told the defendant that "[t]here's a riot, and there are people inside the Capitol Building"); GA 122 (DELETE) (recalling telling the defendant "that someone's gotten into the Capitol"); GA 232-234 (DELETE); GA 168-169 (DELETE).

654 GA 547-548 (DELETE); GA 232-234 (DELETE); GA 123 (DELETE).

655 GA 546 (DELETE).

656 GA 1931 (Video of Fox News Coverage 01/06/2021).

657 GA 546 (DELETE); GA 646-947 (Donald J. Trump Tweet 01/06/2021).

658 473-474 (DELETE); GA 1944 (Video of Pence Evacuation 01/06/2021).

659 GA 1684-1686 (Pence Dear Colleague Letter 01/06/2021); GA 1867-1868 (DELETE).

660 GA 1937 (Video of House Floor 01/06/2021); GA 1954 (Video of Senate Floor 01/06/2021).

661 GA 1957 at 00:40-1:25 Video of Senate Wing Door CCTV 01/06/2021); GA 1909 at 00:15- 1:10 (Video of Capitol Riot 01/06/2021).

662 GA 310-317 (DELETE).

663 GA 124-125 (DELETE) ("both [PATRICK PHILBIN, TRUMP DEP. WHITE HOUSE COUNSEL] and I went down and told him you got to tell people get out of the Capitol, the people who were breaching the Capitol"); GA 232 (DELETE) ("And I said, we need to tell everyone to get the fuck out of the Capitol, right now."); GA 237 (DELETE) ([PATRICK PHILBIN, TRUMP DEP. WHITE HOUSE COUNSEL] and [PAT CIPOLLONE, TRUMP WHITE HOUSE COUNSEL] "argued ... to the president, you have to tell people to get out, right now, as well. [PATRICK PHILBIN, TRUMP DEP. WHITE HOUSE COUNSEL] for the first time I'd ever heard him raise his voice, yelled at the president ... He said, you need to tell them now; you're destroying your legacy; you're destroying everything anyone's ever worked for; you got to tell these people to get out of the Capitol, immediately."); GA 480 (DELETE) ("I think we were probably, at that point, encouraging the President that he needed to come out and say something, he needed to condemn this and say something about it.").

664 GA 948-949 (Donald J. Trump Tweet 01/06/2021).

665 GA 950-951 (Donald J. Trump Tweet 01/06/2021).

666 GA 1952 (Video of Rose Garden Speech 01/06/2021); GA 1868 (Rose Garden Speech Draft Tr. 01/06/2021).

667 GA 952-953 (Donald J. Trump Tweet 01/06/2021).

668 There are, however, strong arguments that all of these Tweets were unofficial. For example, in some of them, the defendant misleadingly suggested that the already-violent crowd should “[s]tay” or “remain” “peaceful” while failing to urge or direct those unlawfully at the Capitol to leave, as his advisors had urged him to do. He also used the messages to recognize the rioters at the Capitol as his own supporters, calling them “WE” and telling them that they were “very special” and that he loved them. And even as early as the afternoon of January 6, when violence still raged at the Capitol, the defendant justified and revered the rioters’ lawless actions on his behalf when he tweeted that “[t]hese are the things and events that happen” and to “[r]emember this day forever!”

669 GA 1951 at 22:08-22:18 (Video of RNC Speech 08/24/2020); GA 1927 at 2:50-3:28 (Video of Donald J. Trump Statement 10/27/2020).

670 GA 1974 (Video of White House Speech 11/04/2020).

671 GA 1945 at 2:06:23-2:07:23 (Video of Pennsylvania Hotel Hearing 11/25/2020).

672 Indeed, at least two of the witnesses -- [ERIC HERSCHMANN, WHITE HOUSE LAWYER] and [DAN SCAVINO, TRUMP’S THEN-SOCIAL MEDIA CHIEF] consulted with the White House Counsel's Office about their ability to engage with the Campaign, demonstrating that they understood their roles with respect to the Campaign were distinct from their White House roles.

673 GA 671 (DELETE).

674 GA 671, 697 (DELETE); GA 700 (DELETE).

675 GA 671-672 (DELETE).

676 GA 672-673 (DELETE).

677 GA 673, 686 (DELETE).

678 GA 673 (DELETE).

679 GA 196-197 (DELETE).

681 See, e.g., GA 683-684 (DELETE).

682 GA 673 (DELETE); GA 710 (DELETE).

683 GA 704 (DELETE); GA 715 (DELETE).

684 GA 715 (DELETE).

685 GA 716 (DELETE).

686 GA 58 (DELETE).

687 GA 59 (DELETE)

688 GA 719 (DELETE).

689 GA 715, 719 (DELETE).

690 GA 719, 721 (DELETE).

691 GA 717-718 (DELETE).

692 GA 713 (DELETE).

693 GA 687 (DELETE).

694 GA 526 (DELETE).

695 528-529 (DELETE).

696 GA 527 (DELETE); GA 545 (DELETE).

697 GA 241-244 (DELETE).

698 GA 246-249 (DELETE).

699 GA 250-253 (DELETE).

700 GA 258 (DELETE).

701 GA 307 (DELETE); GA 304-305 (DELETE).

702 GA 308 (DELETE).

703 GA 309 (DELETE).

704 GA 1904 at row 1151 (DELETE) (11/17/2020, "Hi (DELETE)! Your dad is going to stay in DC for thanksgiving -- just wanted to let you know! from [MOLLY MICHAEL, TRUMP EXEC. ASSIST.] to (DELETE), row 1765, 1153 (11/16/2020, "Has DJT solidified his Thanksgiving plans" from [TOLD WHITE HOUSE ATTY. ERIC HERSCHMANN HE COULD TRUST MATT MORGAN, TRUMP CAMPAIGN STAFFER] to [MOLLY MICHAEL, TRUMP EXEC. ASSIST.], she responded, "As of earlier today, FLOTUS wants to stay up here and POTUS is on board, as of now").

705 GA 1242-1243 (Email from Comms Alert 12/01/2020).

706 GA 12-13 (DELETE).

707 GA 8-10 (DELETE).

708 GA 10 (DELETE).

709 GA 1244 (Trump Campaign Press Release 12/01/2020).

710 GA 1978 at 11:56-12:04, 32:06-33:16 (DELETE).

711 GA 107-113 (DELETE); GA 115-119 (DELETE).

712 GA 790 (Tweet 11/17/2020).

713 GA 779 (Tweet 11/12/2020); GA 1236-1237 (Election Security Joint Statement 11/12/2020).

714 GA 791 -794 (Donald J. Trump Tweet 11/17/2020).

715 GA 1869-1871 (DELETE).

716 GA 1900 (DELETE).

717 GA 1872-1885 (DELETE).

718 GA 1902 (DELETE) Phone.); (DELETE).

719 GA 232-236 (DELETE).

720 GA 318 (DELETE).

721 GA 541-543 (DELETE).

722 See, e.g., GA 1970 at 17:37 (Video of Trump Interview 07/10/2021); GA 1926 at 1:15:30 (Video of Conroe Rally 01/29/2022); GA 1971 at 15:51, 16:42 (Video of Trump Interview 02/01/2022); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1966 at 09:30 (Video of Trump Interview 09/01/2022); GA 1973 at 43:07 (Video of Waco Rally 03/25/2023); GA 1694 (Transcript of CNN Town Hall 05/10/2023); GA 1964 (Video of Trump Campaign Statement 2024); GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1965 at 56: 10, 57:11 (Video of Trump Interview on Meet the Press 09/17/2023); GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024); GA 967 (Donald J. Trump Truth Social Post 03/11/2024); Isaac Arnsdorf and Maeve Reston, Trump claims violence he inspired on Jan. 6 was Pence 's fault, WASH. POST, (Mar. 13, 2023, 8:09 p.m.), https:/ /www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/.