https://ia600501.us.archive.org/6/items ... .252.0.pdf
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
DONALD J. TRUMP,
Defendant.
CRIMINAL NO. 23-cr-257 (TSC)
GOVERNMENT’S MOTION FOR IMMUNITY DETERMINATIONS
The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so. Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted—a function in which the defendant, as President, had no official role. In Trump v. United States, 144 S. Ct. 2312 (2024), the Supreme Court held that presidents are immune from prosecution for certain official conduct— including the defendant’s use of the Justice Department in furtherance of his scheme, as was alleged in the original indictment—and remanded to this Court to determine whether the remaining allegations against the defendant are immunized. The answer to that question is no. This motion provides a comprehensive account of the defendant’s private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none of the defendant’s charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted; and requests the relief the Government seeks, which is, at bottom, this: that the Court determine that the defendant must stand trial for his private crimes as would any other citizen.
This motion provides the framework for conducting the “necessarily factbound” immunity analysis required by the Supreme Court’s remand order. Trump, 144 S. Ct. at 2340. It proceeds in four parts.
Section I provides a detailed statement of the case that the Government intends to prove at trial. This includes the conduct alleged in the superseding indictment, as well as other categories of evidence that the Government intends to present in its case-in-chief. This detailed statement reflects the Supreme Court’s ruling that presidential immunity contains an evidentiary component, id., which should be “addressed at the outset of a proceeding,” id. at 2334.
Section II sets forth the legal principles governing claims of presidential immunity. It explains that, for each category of conduct that the Supreme Court has not yet addressed, this Court should first determine whether it was official or unofficial by analyzing the relevant “content, form, and context,” id. at 2340, to determine whether the defendant was acting in his official capacity or instead “in his capacity as a candidate for re-election.” Blassingame v. Trump, 87 F.4th 1, 17 (D.C. Cir. 2023). Where the defendant was acting “as office-seeker, not office-holder,” no immunity attaches. Id. (emphasis in original). For any conduct deemed official, the Court should next determine whether the presumption of immunity is rebutted, which requires the Government to show that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Trump, 144 S. Ct. at 2331-32 (quoting Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982)).
Section III then applies those legal principles to the defendant’s conduct and establishes that nothing the Government intends to present to the jury is protected by presidential immunity. Although the defendant’s discussions with the Vice President about “their official responsibilities” qualify as official, see Trump, 144 S. Ct. at 2336, the Government rebuts the presumption of immunity. And all of the defendant’s remaining conduct was unofficial: as content, form, and context show, the defendant was acting in his capacity as a candidate for reelection, not in his capacity as President. In the alternative, if any of this conduct were deemed official, the Government could rebut the presumption of immunity.
Finally, Section IV explains the relief sought by the Government and specifies the findings the Court should make in a single order—namely, that the defendant’s conduct set forth in Section I is not immunized, and that as a result, the defendant must stand trial on the superseding indictment and the Government is not prohibited at trial from using evidence of the conduct described in Section I.
I. Factual Proffer
When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office. With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the “targeted states”). His efforts included lying to state officials in order to induce them to ignore true vote counts; manufacturing fraudulent electoral votes in the targeted states; attempting to enlist Vice President Michael R. Pence, in his role as President of the Senate, to obstruct Congress’s certification of the election by using the defendant’s fraudulent electoral votes; and when all else had failed, on January 6, 2021, directing an angry crowd of supporters to the United States Capitol to obstruct the congressional certification. The throughline of these efforts was deceit: the defendant’s and co-conspirators’ knowingly false claims of election fraud. They used these lies in furtherance of three conspiracies: 1) a conspiracy to interfere with the federal government function by which the nation collects and counts election results, which is set forth in the Constitution and the Electoral Count Act (ECA); 2) a conspiracy to obstruct the official proceeding in which Congress certifies the legitimate results of the presidential election; and 3) a conspiracy against the rights of millions of Americans to vote and have their votes counted.
At its core, the defendant's scheme was a private criminal effort. In his capacity as a candidate, the defendant used deceit to target every stage of the electoral process, which through the Constitution, ECA, and state laws includes the states' notification to the federal government of the selection of their representative electors based on the popular vote in the state; the meeting of those electors to cast their votes consistent with the popular vote; and Congress's counting of the electors' votes at a certification proceeding. As set forth in detail below, the defendant worked with private co-conspirators, including private attorneys CC1 CC2 CC3 [DELETE] and CC5 and private political operatives CC6 and PI. The defendant also relied heavily on private agents, such as his Campaign employees and volunteers, like Campaign Manager P2 Deputy Campaign Manager P3 Senior Campaign Advisor P4 and Campaign operative P5.
In this section, the Government sets forth detailed facts supporting the charges against the defendant,1 before addressing in the next section why none of this conduct is subject to immunity under the Supreme Court's decision in Trump. The conduct set forth below includes the defendant's formation of the conspiracies leading up to and immediately following the 2020 presidential election; certain information regarding his knowledge that there had not been outcome-determinative fraud in the election as he persistently claimed; and his increasingly desperate efforts to use knowingly false claims of election fraud to disrupt the electoral process. The Government does not consider any of the following conduct to be subject to immunity for the reasons set forth in Section III.
A. Formation of the Conspiracies
Although his multiple conspiracies began after election day in 2020, the defendant laid the groundwork for his crimes well before then. Leading into the election, the defendant laid the groundwork for his crimes well before then. Leading into the election, the defendant's private and Campaign advisors, including P6 (then a private citizen) and P2 (the defendant's Campaign manager), informed him that it would be a close contest and that it was unlikely to be finalized on election day -- in part because of the time needed to process large numbers of mail-in ballots prompted by the COVID-19 pandemic.2 They also told the defendant that the initial returns on election night be misleading -- that is, that he might take an early lead in the vote count that would diminish as mail-in ballots were counted bec ause his own supporters favored in-person voting, while supporters of his opponent, Joseph R. Biden, favored mail-in ballots.3
Privately, the defendant told advisers -- including P6 Campaign personnel, P7 [DELETE] (a White House staffer and Campaign volunteer), and P8 (the Vice President's Chief of Staff) -- that in such a scenario, he would simply declare victors before all the ballots were counted and any winner was projected.4 Publicly, the defendant began to plant the seeds for that false declaration. In the months leading up to the election leading up to the election, he refused to say whether he would accept the election results, insisted that he could lose the election only because of fraud, falsely claimed that mail-in ballots were inherently fraudulent, and asserted that only votes counted by election day were valid. For instance:
• In an interview on July 19, 2020, when asked repeatedly if he would accept the results of the lection, the defendant said he would “have to see” and “it depends.”5
• On July 30, despite having voted by mail himself earlier that year, the defendant suggested that widespread mail-in voting provided cause for delaying the election, tweeting, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”6
• In an interview on August 2, the defendant claimed, without any basis, that “[t]here is no way you can go through a mail-in vote without massive cheating.”7
• At a campaign event in Wisconsin on August 17, the defendant told his supporters, “[t]he only way we’re going to lose this election is if the election is rigged, remember that. It’s the only way we’re going to lose this election, so we have to be very careful.”8
• In his acceptance speech at the Republican National Convention on August 24, the defendant said that “[t]he only way they can take this election away from us is if this is a rigged election.”9
• On October 27, during remarks regarding his campaign, the defendant said, “[i]t would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws. I don’t believe that. So we’ll see what happens.”10The defendant said this despite—or perhaps because—his private advisors had informed him that it was unlikely that the winner of the election would be declared on November 3.
By October 2020, P1 a private political advisor who had worked for the defendant's 2016 presidential campaign, began to assist with the defendant's re-election effort. Three days before election day, P1 described the defendant's plan to a private gathering of supporters: "And what Trump's going to do is just declare victory. Right? He's going to declare victory. That doesn't mean he's the winner, he's just going to say he's the winner"11 After explaining that Biden's supporters favored voting by mail, P1 stated further, "And so they're going to have a natural disadvantage and Trump's going to take advantage of it -- that's our strategy. He's going to declare himself a winner."12
Immediately following election day on November 3, the defendant did exactly that. As his private and Campaign advisors had predicted to him, in certain states, the defendant took an early lead on election day that began to erode. At approximately 11:20 p.m., Fox News projected that Biden would prevail in the state of Arizona, and according to Campaign advisor P4 he and the defendant were shocked and angry at this development.13 As election day turned to November 4, the contest was too close to project a winner, and in discussions about what the defendant should show restraint while counting continued.14 Two private advisors, however, advocated a different course: CC1 and CC6 suggested that the defendant just declare victory.15 And at about 2:20 a.m., the defendant gave televised remarks to a crowd of his campaign supporters in which he falsely claimed, without evidence or specificity, that there had been fraud in the election and that he had won: "This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election. We did win this election."16
In the immediately post-election period, while the defendant claimed fraud without proof, his private operatives sought to create chaos, rather than seek clarity, at polling places where states were continuing to tabulate votes. For example, on November 4, P5 -- A Campaign employee, agent, and co-conspirator of the defendant -- tried to sow confusion when the ongoing vote count at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a colleague at the TCF Center told P5 "We think [a batch of votes heavily in Biden's favor is] right," 17 P5 responded, "find a reason it isn't," "give me options to file litigation," and "even if ithis [sic]."18 When the colleague suggested that there was about to be unrest reminiscent of the Brooks Brothers Riot,19 a violent effort to stop the vote count in Florida after the 2000 presidential election, P5 responded, "Make them riot" and "Do it!!!"20 The defendant's Campaign operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia, | Pennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim that his election observers were being denied proper access, thus serving as a predicate to the defendant's claim that fraud must have occurred in the observers' absence. 22
Contrary to the defendant's public claims of victory immediately following election day, his advisors informed him that he would likely lose. On November 7, in a private Campaign meeting that included P2, P3, P4 and White House staffer P9 who came to serve as a conduit for information from the Campaign to the defendant, Campaign staff told the defendant that he had only a slim chance of prevailing in the election, and that any potential success was contingent on the defendant winning all ongoing vote counts or litigation in Arizona, Georgia, and Wisconsin.23 Within a week of that assessment, on November 13, the defendant's Campaign conceded its litigation in Arizona24 -- meaning that based on his Campaign advisors' previous assessment, the defendant had lost the election.
That same day, in an implicit acknowledgment that he had no lawful way to prevail, the defendant sidelined the existing Campaign staff responsible for mounting his legal election challenges. Prom P2 and P3 and others who were telling the defendant the truth that he did not want to hear -- that he had lost -- the defendant turned to CC1, a private attorney who was willing to falsely claim victory and spread knowingly false claims of election fraud.
As the defendant placed alternating phone calls to P3 and CC1 throughout November 13,25 P1 informed CC6, another private Campaign advisor, of the change, writing, "Close hold don't tell anyone Trump just fired P3 and put CC1 in charge" and "You are to report to CC1 26. WhenCC6 asked if P2 was "gone too?", P1 replied that "[t]hey all report to CC1 and that P1 had made a recommendation directly that if CC1 was not in charge this thing is over[.] Trump is in to the end."27 The next day, consistent with P1 description, the defendant announced his staff change by Tweet, writing, "I look forward to CC1 spearheading the legal effort to defend OUR RIGHT to FREE and FAIR ELECTIONS! CC1, P10, P11, CC3, and P12 a truly great team, added to our other wonderful lawyers and representatives!" 28
B. The Defendant Knew that His Claims of Outcome-Determinative Fraud Were False
Following election day and throughout the charged conspiracies, the defendant, his coconspirators, and their agents spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These lies included dozens of specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes for the defendant to voters for Biden. And the defendant and co-conspirators continued to make these unsupported, objectively unreasonable, and ever-changing claims even after they had been publicly disproven or after advisors had directly informed the defendant that they were untrue.
The evidence demonstrates that the defendant knew his fraud claims were false because he continued to make those claims even after his close advisors -- acting not in an official capacity but in a private or Campaign-related capacity -- told him they were not true. These advisors included P9 the White House staffer and Campaign conduit, and Pence, the defendant's running mate.
P9's relationship with the defendant began before P9 worked for him in the White House. P9 had known P13, the defendant's son-in-law, since P13 was a child, and through P13 met P14 and then the defendant. 29 P9 was one of several attorneys who represented the defendant in his first impeachment trial in the Senate in 2019 and 2020, including presenting argument on the Senate floor on January 27, 2020. 30 P9 began working in the White House as an Assistant to the President in August 2020. 30 In October 2020, P9 became interested in learning more about the defendant's Campaign, and in early November 2020, after he began interfacing with Campaign staff, P9 consulted with the White House Counsel's Office to ensure he complied with any applicable laws regarding Campaign activity. 31 Thereafter, and throughout the post-election period, P9 became a conduit of information from the Campaign to the defendant, and over the course of the conspiracies, P9 told the defendant the unvarnished truth about his Campaign legal team and the claims of fraud that they and the defendant were making. Examples of these instances include:
• P9 repeatedly gave the defendant his honest assessment that CC1 could not mount successful legal challenges to the election. For instance, when the defendant told P9 that he was going to put CC1 in charge of the Campaign's legal efforts but pay him only if he succeeded, P9 told the defendant he would never have to pay CC1 anything; 32 in response, the defendant laughed and said, "we'll see." 33 Thereafter, in Oval Office meetings with the defendant, CC1 and others, in which CC1 made speculative claims, P9 told CC1 -- in front of the defendant -- that CC1 would be unable to prove his allegations in a courtroom. 34 In a separate private conversation, when P9 reiterated to the defendant that CC1 would he unable to prove his false fraud allegations, the defendant responded, "The details don't matter." 35
• In the post-election period, P9 also took on the role of updating the defendant on a near-daily basis on the Campaign's unsuccessful efforts to support any fraud claims. 36 P9 told the defendant that the Campaign was looking into his fraud claims, and had even hired external experts to do so, but could find no support for them. He told the defendant that if the Campaign took to court, they would get slaughtered, because the claims are all "bullshit." 37 P9 was privy to the findings of the two expert consulting firms the Campaign retained to investigate fraud claims -- C1 and C2 -- and discussed with the defendant their debunkings on all major claims. 38 For example, P9 told the defendant that Georgia's audit disproved claims that C3 had altered votes. 39
In the post-election time period, Pence -- the defendant's own running mate, who he had directed to assess fraud allegations -- told the defendant that he had seen no evidence of outcome- determinative fraud in the election. 40 This was in one of the many conversations the defendant and Pence had as running mates, in which they discussed their shared electoral interests. Pence gradually and gently tried to convince the defendant to the lawful results of the election, even if it meant they lost. These conversations included:
• A conversation on November 4 in which the defendant asked Pence to "study up" claims of voter fraud in states that they had won together in 2016 to whether they could bring legal challenges as candidates in those states. 41 Pence described the conversation as follows: "Well, I think, I think it was broadly. It was just look at all of it. Let me know what you think. But he told me that the Campaign was going to fight, was going to go to court and make challenges .... And then he just said we're going to fight this and take a look at it. Let me know what you think.42
• A call between the defendant and Pence on November 7, the day that media organizations began to project Biden as the winner of the election. Pence "tried to encourage" the defendant "as a friend," reminding him, "you took a dying political party and gave it a new lease on life." 43
• A November 11 meeting among the defendant, Pence, Campaign staff, and some White House staff during which Pence asked when most of the lawsuits would be resolved ("when does this come to a head?") and the Campaign staff responded, the ''week after Thanksgiving." 44
• A November 12 meeting among the defendant Pence, Campaign staff, and some White House staff during which, Pence recalls, the "Campaign lawyers gave a sober and somewhat pessimistic report on the state of election challenges." 45
• A private lunch on November 12 in which Pence reiterated a face-saving option for the defendant: "don't concede but recognize process is over." 46
• A private lunch on November 16 in which Pence tried to encourage the defendant to accept the results of the election and run again in 2024, to which the defendant responded, "I don't know, 2024 is so far off." 47
• A November 23 phone call in which the defendant told Pence that the defendant's private attorney, P76, was not optimistic about the election challenges. 48
• A December 21 private lunch in which Pence "encouraged" the defendant "not to look at the election 'as a loss -- just an intermission.'" This was followed later in the day by a private discussion in the Oval Office in which the defendant asked Pence, "what do you think we should do?" Pence said, "after we have exhausted every legal process in the courts and Congress, if we still came up short, [the defendant] should 'take a bow.'" 49
• Discussions in which Pence apprised the defendant of conversations he had had with governors in Arizona and Georgia in the context of "election challenges," in which Pence had called the governors "simply to gather information and share it with the president," 50 and in which the governors did not report evidence of fraud in the elections in their states and explained that they could not take actions to convene their states' legislatures. 51
But the defendant disregarded P9 and Pence in the same way that he disregarded dozens of court decisions that unanimously rejected his and his allies' legal claims, and that he disregarded officials in the targeted states -- including those in his own party -- who stated publicly that he had lost and that his specific fraud allegations were false. 52 Election officials, for instance. issued press releases and other public statements to combat the disinformation that the defendant and allies were spreading. 53 At one point long after the defendant had begun spreading false fraud claims, P15, a White House staffer traveling with the defendant, overheard him tell family members that "it doesn't matter if you won or lost the election. You still have to fight like hell." 54
The defendant and his co-conspirators also demonstrated their deliberate disregard for the truth -- and thus their knowledge of falsity -- when they repeatedly changed the numbers in their baseless fraud allegations from day to day. At trial, thee Government will introduce several instances of this pattern, in which the defendant and conspirators' lies were proved by the fact that they made up figures from whole cloth. One example concerns the defendant and conspirators' claims about non-citizen voters in Arizona. The conspirators started with the allegation that 36,000 non-citizens voted in Arizona; 55 five days later, it was "beyond credulity that a few hundred thousand didn't vote"; 56 three weeks later, "the bare minimum [was] 40 or 50,000. The reality is about 250,000"; 57 days after that, the assertion was 32,000; 58 and ultimately, the conspirators landed back where they started, at 36,000 -- a false figure that they never verified or corroborated. 59
Ultimately, the defendant's steady stream of disinformation in the post-election period culminated in the speech he gave at a privately-funded, privately-organized rally at the Ellipse on the morning of January 6, 2021, in advance of the official proceeding in which Congress was to certify the election in favor of Biden.60 In his speech, the defendant repeated the same lies about election fraud in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin that had been publicly, or directly, debunked.61 The defendant used these lies to inflame and motivate the large and angry crowd of his supporters to march to the Capitol and disrupt the certification proceeding.62
C. The Defendant Aimed Deceit at the Targeted States to Alter Their Ascertainment and Appointment of Electors
Shortly after election day, the defendant began to target the electoral process at the state level by attempting to deceive state officials and to prevent or overturn the legitimate ascertainment and appointment of Biden’s electors. As President, the defendant had no official responsibilities related to the states’ administration of the election or the appointment of their electors, and instead contacted state officials in his capacity as a candidate. Tellingly, the defendant contacted only state officials who were in his political party and were his political supporters, and only in states he had lost. The defendant’s attempts to use deceit to target the states’ electoral process played out in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, as well as across these and other states that used certain voting machines. In addition to the following evidence of the defendant’s conduct during the charged conspiracies, at trial the Government will elicit testimony from election officials from the targeted states to establish the objective falsity—and often, impossibility—of the defendant’s fraud claims. Notably, although these election officials would have been the best sources of information to determine whether there was any merit to specific allegations of election fraud in their states, the defendant never contacted any of them to ask.
1. Arizona
The defendant was on notice that there was no evidence of widespread election fraud in Arizona within a week of the election. On November 9, for instance, two days after news networks projected that Biden had won, the defendant called Arizona Governor P16 to ask him what was happening at the state level with the presidential vote count in Arizona. 63 At that point, though Fox News had projected that Biden had won the state, several other news outlets -- including ABC, NBC, CNN, and the New York Times -- had not yet made a projection. 64 P16 walked the defendant through the margins and the votes remaining to be counted, which were primarily from Pima County, which favored Biden, and Maricopa County, which was split. 65 P16 described the situation to the defendant as "the ninth inning, two outs, and [the defendant] was several runs down."66 The defendant also raised claims of election fraud, and P16 asked the defendant to send him supporting evidence. 67 Although the defendant said he would -- stating, "we're packaging it up" -- he never did.68 Shortly thereafter, on November 13, Campaign Manager told the defendant directly that a false fraud claim that had been circulating -- that a substantial number of non-citizens had voted in Arizona -- was false. 69 The same day, as noted previously, Campaign attorneys conceded in court that the remaining election lawsuit in Arizona was moot.
The defendant and CC1 continued to try to influence P16. For example, CC1 tried to contact P16 on November 22 -- the same day the defendant and reached out to the Arizona Speaker of the House, as described below.70 And on November 30, the day P16 signed the Arizona certificate of ascertainment formally declaring Biden's electors as the legitimate electors for Arizona, P16 received a call from the defendant and Pence.71 P16 advised them that Arizona had certified the election; when the defendant brought up fraud claims, P16 -- eager to see the evidence -- again asked the defendant to provide it, but the defendant never did. 72 Instead, later that evening and into the following morning, the defendant repeatedly publicly attacked P16 (as well as Georgia Governor P17) on Twitter, re-tweeting posts by others, such as "Who needs Democrats when you have Republicans like P17 and P16 73; "Watching the Arizona hearings and then watching Gov. P16 sign those papers, why bother voting for Republicans if what you get is P16 and P17 74; "P17 'My state ran the most corrupt election in American history.' P16 'Hold my beer,"75; and "Why is P16 still pretending he's a member of the Republican Party after he just certified fraudulent election results in Arizona that disenfranchised millions of Republicans?"76
The defendant and co-conspirators also attempted to use false fraud claims to convince political allies in the Arizona state legislature to ignore the popular vote and appoint illegitimate electors. On November 22, the defendant and CC1 called P18 the Speaker of the Arizona House of Representatives. 77 CC1 did most of the talking. 78 During the call, the defendant and CC1 levied multiple false fraud claims -- including of non-citizen, non-resident, and dead voters that affected the defendant's race -- and asked P18 to use them as a basis to call the state legislature into session to replace Arizona's legitimate electors with illegitimate ones for the defendant. 79 When voiced his deep skepticism, said, "well, you know, we're all kind of Republicans and we need to be working together." 80 P18 refused, and asked CC1 to provide evidence supporting his fraud claims. 81 CC1 never did. 82
Indeed, CC1 met with P18 person approximately a week later and still had nothing to back up his claims . On November 30, CC1, P12 and others arrived in Arizona for a "hotel healing" -- an unofficial meeting with Republican legislators -- during which they promoted false fraud allegations. 83 In a meeting the day after the hearing, when state legislators pressed CC1 and P12 for evidence to support their claims, conceded that even on that late date, "[w]e don't have the evidence, but we have lots of theories."84 When the legislators were frustrated that CC1 had no support for his claims and asked him tough questions, CC1 expressed surprise at the way he was being treated, stating "Man, I thought we were all Republicans. . . . [T]his is a little more hostile a reception. I'm amazed at the reception I'm getting here." 85
On December 4, P18 released a public statement in which he explained that he did not have the authority to use the legislature "to reverse the results of the election" and that doing so would constitute an attempt "to nullify the people's vote based on unsupported theories of fraud." 86 P18 made clear that he was disappointed with the legitimate election results because he "voted for President Trump and worked hard to reelect him" but would not ''violate current law to change the outcome of a certified election."87 On Twitter, P19 a Campaign staffer who worked with CC6 attacked P18 for his statement, writing that P18 "is intentionally misleading the people of Arizona to avoid the inevitable." The defendant re-tweeted P19's false post and praised her. 88
A month later, just two days before January 6, CC2 -- another of the defendant's private attorneys and a co-conspirator -- called P18 and P18 counsel, P20 and urged one last time to use the legislature to decertify Arizona's legitimate electors and overturn the valid election results. 89 When P18 told CC1 that there was no evidence of substantial fraud in Arizona, and that he could not legally call the legislature into session, CC2 was undeterred. He conceded that he "[didn't] know enough about the facts on the ground" regarding fraud in Arizona, and said P18 should nonetheless falsely claim that he had the authority to convene the legislature and "let the courts sort it out."90 P18 again refused. 91
In the post-election period, P18 was harassed; on several occasions, individuals gathered outside P18 home with bullhorns and screamed and honked their vehicle horns to create noise. 92 Once, an individual in visible possession of a pistol and wearing a t-shirt in support of a militia group came onto P18 property and screamed at him. 93 At the time of these events, P18's daughter was at home and was very ill, and the noise caused her "disruption and angst." 94
2. Georgia
The defendant had early notice that his claims of election fraud in Georgia were false. Around mid-November, Campaign advisor P4 told the defendant that his claim that a large number of dead people had voted in Georgia was false. 95 The defendant continued to press the claim anyway, including in a press appearance on November 29, when he suggested that a large enough number of dead voters had cast ballots to change the outcome of the election in Georgia.96
Four days later, on December 3, CC1 orchestrated a presentation to a Judiciary Subcommittee of the Georgia State Senate. 97 In the morning in advance of it, CC1 had spoken to the defendant on the phone for almost twenty minutes.98 And at the hearing, CC1 arranged for co-conspirators and agents to repeat the false dead voter claim. The claim was so patently false that everyone around the defendant knew it: during the hearing, Chief of Staff P 21 and P9 exchanged text messages on their personal phones confirming that a Campaign attorney, P22, had verified that CC1 claim of more than 10,000 dead voters was false and that the actual number was around 12 and could not be outcome-determinative. 99
During the subcommittee hearing, the conspirators also set in motion a sensational and dangerous lie about election workers at State Farm Arena that would result in the defendant's supporters harassing and threatening those workers. First, P23, one of the defendant's private attorneys, claimed that more than 10,000 dead people had voted in Georgia. 100 Next, P24, an agent of the defendant, played misleading excerpts of closed-circuit camera footage from State Farm Arena and insinuated that it showed election workers committing misconduct -- counting "suitcases" of illegal ballots.101 Lastly, based on the false fraud allegations, CC2 who had already been engaged as a private lawyer for the defendant but did not disclose that at the hearing -- encouraged the Georgia legislators to decertify the state's legitimate electors. 102
While the hearing was ongoing, the defendant simultaneously amplified the misinformation about the State Farm Arena election workers, falsely tweeting, "Wow! Blockbuster testimony taking place right now in Georgia. Ballot stuffing by Dems when Republicans were forced to leave the large counting room. Plenty more coming, but this alone leads to an easy win of the State!" 103 He did this just after re-tweeting two of his Campaign account's Tweets that promoted the false claim about election workers at State Farm Arena. 104
Over the next week, the claim of misconduct at State Farm Arena was disproven publicly as well as directly to the defendant. The day after the hearing, P25, the Chief Operating Officer of the Georgia Secretary of State's Office, posted a Tweet explaining that Secretary of State officers had watched the video in its entirety and confirmed that it showed "normal ballot processing." 105 P25 again forcefully debunked the conspirators' claim about the State Farm video in a press conference on December 7, explaining at length the election workers' innocent conduct depicted in the closed-circuit camera footage and stating:
And what's really frustrating is the President's attorneys had this same videotape. They saw the exact same things the rest of us could see. And they chose to mislead state senators and the public about what was on that video. I'm quite sure that they will not characterize the video if they by to enter it into evidence because that's the kind of thing that could lead to sanctions because it is obviously untrue. They knew it was untrue and they continue to do things like this. 106
On December 8, the defendant called Georgia Attorney General P26. 107 P26 had advance notice that the topic of the call was Texas v. Pennsylvania, an election lawsuit in which Texas was suing other states -- including Georgia -- to attempt to prevent the certification of the election. 108 U.S. Senator P27 told P26 that the defendant had heard that P26 was "whipping," or lobbying, other state attorneys general against filing amicus briefs in support of Texas. 109 P26 was not lobbying against the suit, and told P27 so, P27 asked P26 if he would speak with the defendant about it, and P26 agreed. 110 Shortly thereafter, the defendant called P26 and immediately raised Texas v. Pennsylvania, saying, "I hope you're not talking to your AGs and encouraging them not to get on the lawsuit." 111 P26 told the defendant that he was not affirmatively calling other state attorneys general, but that if they called him, he was telling them what he was seeing in his state -- which was something that the defendant probably did not want to hear: P26 was just not seeing evidence of fraud in Georgia. 112 The defendant nonetheless raised various fraud claims. P26 told him that state authorities had investigated the State Farm Arena allegations and found no wrongdoing, and that he thought another claim the defendant raised about Coffee County, Georgia, had been similarly resolved, but would check. 113 The defendant asked P26 to look at them again "because we're running out of time." 114 P26 tried to steer the call to an end by thinking the defendant and telling him that he had voted for him twice and appreciated the defendant, to which the defendant responded, "Yeah, I did a hell of a job, didn't I?"115 At one point, the defendant raised with P26 the impending run-off election for Georgia's U.S. Senate seats and how important it was to re-elect P27 and P28 116 The day after the call, the defendant -- in his private capacity as a candidate for president -- intervened in support of Texas v. Pennsylvania; his attorney for that matter was CC2. 117
On the same day as the defendant's call with P26 the defendant's Campaign staff acknowledged that the State Farm Arena claim was unsupported, emailing one another about the fact that television networks may decline to run Campaign advertisements promoting it. In frustration regarding the claim and others like it, P4 -- who spoke with the defendant on a daily basis and had informed him on multiple occasions that various fraud claims were false -- wrote, "When our research and campaign legal team can't back up any of the claims made by am Elite Strike Force Legal Team, you can see why we're 0-32 on am cases. I'll obviously hustle to help on all fronts, but it's tough to own any of this when it's all just conspiracy shit beamed down from the mothership."118
On December 10, however, CC1 further perpetuated the false State Farm Arena claim when he appeared at another hearing, this one before the Georgia House of Representatives' Government Affairs Committee. During it, he displayed some of the same footage as had been used in the December 3 hearing that had been debunked in the interim by Georgia officials, and nonetheless claimed that it showed "voter fraud right in front of people's eyes."119 He then named two election workers -- P29 and her mother, P30 -- and baselessly accused them of "quite obviously surreptitiously passing around USB ports as if they are vials of heroin or cocaine," and suggested that they were criminals whose "places of work, their homes, should have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter fraud."120 As these false claims about P30 and P29 spread, the women were barraged by racist death threats. In the years since, they have spoken about the effect of the defendant and coconspirators' lies about them; as P30 explained in an interview with congressional investigators, "when someone as powerful as the President of the United States eggs on a mob, that mob will come. They came for us with their cruelty, their threats, their racism, and their hats. They haven't stopped even today." 121 Indeed, to this day, the defendant has never stopped falsely attacking P30 and P29. Although none of the false claims against them were ever corroborated, the defendant has continued to levy them on social media, including when the defendant attacked P30 in January 2023 just after her testimony to congressional investigators was made public. 122
Throughout the post-election period, the defendant used Twitter to publicly attack Georgia Governor P17 with particular aggression. In the thirty-five days between November 30, 2020, and January 3, 2021, the defendant tweeted critically about P17 by name or title, more than forty times. These tweets included the ones also attacking P16 described above, as well as others particular to P17 like, "Why won't Governor @P17, the hapless Governor of Georgia, use his emergency powers, which can be easily done, to overrule his obstinate Secretary of State, and do a match of signatures on envelopes. It will be a 'goldmine' of fraud, and we will easily WIN the state"123; "I will easily & quickly win Georgia if Governor @P17, or the Secretary of State permit a simple signature verification. Has not been done and will show large scale discrepancies. Why are these two 'Republicans' saying no? If we win Georgia, everything else falls in place!"124; "The Republican Governor of Georgia refuses to do signature verification, which would give us an easy win. What's wrong with this guy? What is he hiding?" 125; and "How does Governor @P17 allow certification of votes without verifying signatures and despite the recently released tape of ballots being stuffed? His poll numbers have dropped like a rock. He is finished as governor!"126
In the post-election period, the defendant also made false claims in court about fraud in Georgia -- unsuccessfully. For example, in Trump v. Kemp , a federal lawsuit in which the defendant sued Georgia's Governor and Secretary of State, the defendant signed a verification of fraud allegations that he and his attorney on the case, CC2 knew was inaccurate. P9 spoke with the defendant and CC2 in late December regarding the proposed verification. First, he told CC2 and another private attorney, P31 that they could not have the defendant sign it because they could not verify any of the facts.127 And P9 told the defendant that any lawyer that signed the complaint that the verification supported would get disbarred. 128 acknowledged this problem in an email on December 31 to P32 lead counsel for the defendant as candidate in Trump v. Kemp, and another private attorney, writing that in the time since the defendant signed a previous verification in the case, he "had been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate" and that signing a new affirmation "with that knowledge (and incorporation by reference) would not be accurate."129 Nonetheless, on December 31, the defendant signed the verification, and caused it to be filed. 130
On January 2, Georgia Secretary of State P33 appeared on Fox News and said that various rumors of election fraud were false, and the defendant had lost in Georgia:
Our office has been very busy with what I call the rumor whack-a-mole. Every day, a rumor will pop up and then we whack it down. What we do is, we basically whack it down with the truth. And people can't handle the truth sometimes because they're very disappointed in the results. And I get that. I voted for President Trump also, but at the end of the day, we did everything we could. We did an audit of the race; President Trump still lost. Then we did a full recount; President Trump still lost ... we had a safe, secure process. 131
P33 like P17 had been on the receiving end of the defendant's Tweets. These included: "Why isn't the @GASecofState P33 a so-called Republican, allowing us to look at signatures on envelopes for verification? We will find tens of thousands of fraudulent and illegal votes"; "RINOS @ P17 @ P34 & Secretary of State P33 will be solely responsible for the potential loss of our two GREAT Senators from Georgia, @ P27 and @ P28. Won't call a Special Session or check for Signature Verification! People are ANGRY!;" and "Georgia, where is signature verification approval? What do you have to lose? Must move quickly! @ P17 @ P34 @GaSecofState." 132
Shorty after seeing the interview, the defendant set up a call with P33 to discuss his pending private lawsuit, Trump v. Kemp, in was a named defendant. 133 For this reason, P33 at first hoped to avoid speaking with the defendant but ultimately acquiesced because the defendant was persistent in seeking to set it up. 134 Also because of the pending lawsuit, arranged for his general counsel, to participate. 135 Joining the defendant on the call were Chief of Staff P21 and three private attorneys -- P32 and P36 counsel of record in Trump v. Kemp and the attorneys whom CC2 had emailed about the defendant's false verification, and P31 whom P21 introduced on the call as someone "who is not the attorney of record but has been involved."
The defendant began the call with an animated monologue in which he argued that he had won the election in Georgia, saying, "Okay, thank you very much. Hello P33 and P35 and everybody. We appreciate the time and the call. So we've spent a lot of time on this, and if we could just go over some of the numbers, I think it's pretty clear that we won. We won very substantially, uh, Georgia."136 Throughout the call, the defendant continued to state that he had won and referenced Biden's margin of victory that he needed to overcome to prevail in the state, including by asserting that "I just want to find 11,780 votes." 137 He did not reference other elections on the same ballot. After the defendant's opening salvo, P33 stated, "Well, I listened to what the President has just said. President Trump, we've had several lawsuits, and we've had to respond in court to the lawsuits and the contentions. We don't agree that you have won."138
The defendant raised multiple false claims of election fraud, each of which P33 refuted in turn. When the defendant attacked P30 called her a "professional vote scammer and hustler, 139 and mentioned her dozens of times throughout the call, P33 said, "You're talking about the State Farm video. And I think it's extremely unfortunate that CC1 or his people, they sliced and diced that video and took it out of context." 140 He then offered the defendant a link to a video disproving the claim, to which the defendant responded, "I don't care about a link, I don't need it. I have a much, I have a much better link." 141 When the defendant claimed that 5,000 dead people had voted in Georgia, said, "Well, Mr. President, the challenge you have is the data you have is wrong ... The actual number were two. Two. Two people that were dead that voted. And so that's wrong, that was two." 142 When the defendant claimed that thousands of out-of-state voters had cast ballots, P33 counsel, P35 responded, "We've been going through each of those as well, and those numbers that we got, that Ms. P31 was just saying, they're not accurate." 143
At one point, the defendant became frustrated after both P33 and P35 explained repeatedly that his claims had been investigated and were not true and stated, "And you're gonna to find that they are -- which is totally illegal -- it's, it's, it's more illegal for you than it is for them because, you know what they did and you're not reporting it. That's a criminal, you know, that's a criminal offense. And you know, you can 't let that happen. That's a big risk to you and to P35 your lawyer. That's a big risk." 144 The call ended with P35 stating that he would coordinate with the lawyer representing P33 office in the private lawsuit and get together with P32 as agreed earlier in the call. 145
The day after the call, on January 3, the defendant falsely tweeted, "I spoke to Secretary of State P33 yesterday about Fulton County and voter fraud in Georgia. He was unwilling, or unable, to answer questions such as the 'ballots under table' scam, ballot destruction, out of state 'voters ', dead voters, and more. He has no clue!" 146 P33 promptly responded in a Tweet of his own: "Respectfully, President Trump: What you're saying is not true. The truth will come out." 147