diff --git a/README.md b/README.md index 6d3cbc94..9ac1319d 100644 --- a/README.md +++ b/README.md @@ -31,7 +31,7 @@ python --version 1. Clone the DocETL repository: ```bash -git clone https://github.com/shreyashankar/docetl.git +git clone https://github.com/ucbepic/docetl.git cd docetl ``` diff --git a/docetl/builder.py b/docetl/builder.py index e8dc65cb..02522873 100644 --- a/docetl/builder.py +++ b/docetl/builder.py @@ -80,6 +80,12 @@ def items(self): class Optimizer: @classmethod def from_yaml(cls, yaml_file: str, **kwargs): + # check that file ends with .yaml or .yml + if not yaml_file.endswith(".yaml") and not yaml_file.endswith(".yml"): + raise ValueError( + "Invalid file type. Please provide a YAML file ending with '.yaml' or '.yml'." + ) + base_name = yaml_file.rsplit(".", 1)[0] suffix = yaml_file.split("/")[-1].split(".")[0] config = load_config(yaml_file) diff --git a/docetl/operations/split.py b/docetl/operations/split.py index 37370cb2..78444b95 100644 --- a/docetl/operations/split.py +++ b/docetl/operations/split.py @@ -52,7 +52,7 @@ def execute(self, input_data: List[Dict]) -> Tuple[List[Dict], float]: method = self.config["method"] method_kwargs = self.config["method_kwargs"] encoder = tiktoken.encoding_for_model( - self.config["method_kwargs"].get("model", self.default_model) + self.config["method_kwargs"].get("model", self.default_model).split("/")[-1] ) results = [] cost = 0.0 diff --git a/docetl/operations/utils.py b/docetl/operations/utils.py index 5b1322a3..f093053d 100644 --- a/docetl/operations/utils.py +++ b/docetl/operations/utils.py @@ -634,7 +634,9 @@ def truncate_messages( """ Truncate the messages to fit the model's context length. """ - model_input_context_length = model_cost.get(model, {}).get("max_input_tokens", 8192) + model_input_context_length = model_cost.get(model.split("/")[-1], {}).get( + "max_input_tokens", 8192 + ) total_tokens = sum(count_tokens(json.dumps(msg), model) for msg in messages) if total_tokens <= model_input_context_length - 100: @@ -645,7 +647,10 @@ def truncate_messages( content = longest_message["content"] excess_tokens = total_tokens - model_input_context_length + 200 # 200 token buffer - encoder = tiktoken.encoding_for_model(model) + try: + encoder = tiktoken.encoding_for_model(model.split("/")[-1]) + except Exception: + encoder = tiktoken.encoding_for_model("gpt-4o") encoded_content = encoder.encode(content) tokens_to_remove = min(len(encoded_content), excess_tokens) mid_point = len(encoded_content) // 2 diff --git a/docetl/runner.py b/docetl/runner.py index 40f1afde..057173a1 100644 --- a/docetl/runner.py +++ b/docetl/runner.py @@ -69,6 +69,12 @@ def __init__(self, config: Dict, max_threads: int = None): @classmethod def from_yaml(cls, yaml_file: str, **kwargs): + # check that file ends with .yaml or .yml + if not yaml_file.endswith(".yaml") and not yaml_file.endswith(".yml"): + raise ValueError( + "Invalid file type. Please provide a YAML file ending with '.yaml' or '.yml'." + ) + config = load_config(yaml_file) return cls(config, **kwargs) diff --git a/docs/community/index.md b/docs/community/index.md index d94088a3..fd89eb03 100644 --- a/docs/community/index.md +++ b/docs/community/index.md @@ -10,7 +10,7 @@ While we don't have a formal code of conduct page, we expect all community membe We welcome contributions from everyone who is interested in improving DocETL. Here's how you can get involved: -1. **Report Issues**: If you encounter a bug or have a feature request, open an issue on our [GitHub repository](https://github.com/shreyashankar/docetl/issues). +1. **Report Issues**: If you encounter a bug or have a feature request, open an issue on our [GitHub repository](https://github.com/ucbepic/docetl/issues). 2. **Join Discussions**: Have a question or want to discuss ideas? Post on our [Discord server](https://discord.gg/fHp7B2X3xx). @@ -27,7 +27,7 @@ To contribute code: ## Connect with Us -- **GitHub Repository**: Contribute to the project or report issues on our [GitHub repo](https://github.com/shreyashankar/docetl). +- **GitHub Repository**: Contribute to the project or report issues on our [GitHub repo](https://github.com/ucbepic/docetl). - **Discord Community**: Join our [Discord server](https://discord.gg/fHp7B2X3xx); we're looking to build a vibrant community of people interested in intelligent document processing. - **Lab Webpages**: We are affiliated with the EPIC Lab at UC Berkeley. Visit our [Lab Page](https://epic.berkeley.edu) for a description of our research. We are also affiliated with the Data Systems and Foundations group at UC Berkeley--visit our [DSF Page](https://dsf.berkeley.edu) for more information. diff --git a/docs/examples/mining-product-reviews.md b/docs/examples/mining-product-reviews.md index 60420971..9e120d85 100644 --- a/docs/examples/mining-product-reviews.md +++ b/docs/examples/mining-product-reviews.md @@ -521,4 +521,4 @@ Upon further analysis, 1421 themes is still a lot! I realized that my resolve op Something else we could have done is included a list of themes we care about in the original map operation, e.g., graphics. Since our map prompt was very open-ended, the LLM could have generated themes that we didn't care about, leading to a large number of themes in the output. -Anyways, we've filtered the 1421 reports down to 65 themes/reports that contain quotes from 3 or more different games. You can check out the output [here](https://github.com/shreyashankar/docetl/blob/main/example_data/steamgames/frequent_polarizing_themes.json). +Anyways, we've filtered the 1421 reports down to 65 themes/reports that contain quotes from 3 or more different games. You can check out the output [here](https://github.com/ucbepic/docetl/blob/main/example_data/steamgames/frequent_polarizing_themes.json). diff --git a/docs/examples/presidential-debate-themes.md b/docs/examples/presidential-debate-themes.md index 38662d76..18ab2ad0 100644 --- a/docs/examples/presidential-debate-themes.md +++ b/docs/examples/presidential-debate-themes.md @@ -9,7 +9,7 @@ Our goal is to build a pipeline that will: 1. Extract key themes and viewpoints from presidential debate transcripts 2. Analyze how these themes have evolved over time, with references to specific debates and quotes -You can take a look at the raw data [here](https://github.com/shreyashankar/docetl/tree/main/example_data/debates/data.json). +You can take a look at the raw data [here](https://github.com/ucbepic/docetl/tree/main/example_data/debates/data.json). Let's examine the pipeline structure and its operations: @@ -319,7 +319,7 @@ This output shows the progress of our pipeline execution, including the differen ## Initial Results -Our pipeline generated reports on various themes discussed in the presidential debates. We've put the results up [here](https://github.com/shreyashankar/docetl/tree/main/example_data/debates/theme_evolution_analysis_baseline.json). However, upon inspection, we found that these reports were lacking in depth and recency. Let's look at a few examples: +Our pipeline generated reports on various themes discussed in the presidential debates. We've put the results up [here](https://github.com/ucbepic/docetl/tree/main/example_data/debates/theme_evolution_analysis_baseline.json). However, upon inspection, we found that these reports were lacking in depth and recency. Let's look at a few examples: !!! example "Example Reports Lacking in Recent Quotes" @@ -509,7 +509,7 @@ Validator improvements (gleaning round 1): 3. **Structure and Flow**: Overall, the output is fairly well-structured and maintains a logical flow, using headings appropriately to signal key sections. However, it may benefit from clearer subsections under each party's overview to delineate specific key points, such as 'Tax Policy', 'Job Creation', and 'Response to Economic Crises'. This would enhance readability and assist the reader in navigating the shifts in viewpoints. For example, adding bullet points or more vivid transitions between historical periods could clarify the evolution timeline. Moreover, resolving any redundancy (such as multiple mentions of similar themes across years) would streamline the narrative. ``` -Check out the new output [here](https://github.com/shreyashankar/docetl/tree/main/example_data/debates/theme_evolution_analysis_reduce_gleaning.json) to see the improvements made by the optimized pipeline! Of course, we can probably optimize the initial map operation too, do prompt engineering, and more to further enhance the pipeline. +Check out the new output [here](https://github.com/ucbepic/docetl/tree/main/example_data/debates/theme_evolution_analysis_reduce_gleaning.json) to see the improvements made by the optimized pipeline! Of course, we can probably optimize the initial map operation too, do prompt engineering, and more to further enhance the pipeline. !!! note "Interactive Pipeline Creation" diff --git a/docs/examples/split-gather.md b/docs/examples/split-gather.md new file mode 100644 index 00000000..51b460ee --- /dev/null +++ b/docs/examples/split-gather.md @@ -0,0 +1,310 @@ +# Split and Gather Example: Analyzing Trump Immunity Case + +This example demonstrates how to use the Split and Gather operations in DocETL to process and analyze a large legal document, specifically the government's motion for immunity determinations in the case against former President Donald Trump. You can download the dataset we'll be using [here](https://github.com/ucbepic/docetl/blob/main/example_data/post_di_trump_motion.json). This dataset contains a single document. + +## Problem Statement + +We want to analyze a [lengthy legal document](https://storage.courtlistener.com/recap/gov.uscourts.dcd.258148/gov.uscourts.dcd.258148.252.0.pdf) to identify all people involved in the Trump vs. United States case regarding presidential immunity. The document is too long to process in a single operation, so we need to split it into manageable chunks and then gather context to ensure each chunk can be analyzed effectively. + +## Chunking Strategy + +When dealing with long documents, it's often necessary to break them down into smaller, manageable pieces. This is where the Split and Gather operations come in handy: + +1. **Split Operation**: This divides the document into smaller chunks based on token count or delimiters. For legal documents, using a token count method is often preferable to ensure consistent chunk sizes. + +2. **Gather Operation**: After splitting, we use the Gather operation to add context to each chunk. This operation can include content from surrounding chunks, as well as document-level metadata and headers, ensuring that each piece maintains necessary context for accurate analysis. + +!!! note "Pipeline Overview" + + Our pipeline will follow these steps: + + 1. Extract metadata from the full document + 2. Split the document into chunks + 3. Extract headers from each chunk + 4. Gather context for each chunk + 5. Analyze each chunk to identify people and their involvements in the case + 6. Reduce the results to compile a comprehensive list of people and their roles + +## Example Pipeline and Output + +Here's a breakdown of the pipeline defined in trump-immunity_opt.yaml: + +1. **Dataset Definition**: + We define a dataset (json file) with a single document. + +2. **Metadata Extraction**: + We define a map operation to extract any document-level metadata that we want to pass to each chunk being processed. + +3. **Split Operation**: + The document is split into chunks using the following configuration: + + ```yaml + - name: split_find_people_and_involvements + type: split + method: token_count + method_kwargs: + num_tokens: 3993 + split_key: extracted_text + ``` + + This operation splits the document into chunks of approximately 3993 tokens each. This size is chosen to balance between maintaining context and staying within model token limits. `split_key` should be the field in the document that contains the text to split. + +4. **Header Extraction**: + We define a map operation to extract headers from each chunk. Then, when rendering each chunk, we can also render the headers in levels above the headers in the chunk--ensuring that we can maintain hierarchical context, even when the headers are in other chunks. + +5. **Gather Operation**: + Context is gathered for each chunk using the following configuration: + + ```yaml + - name: gather_extracted_text_find_people_and_involvements + type: gather + content_key: extracted_text_chunk # (1)! + doc_header_key: headers # (2)! + doc_id_key: split_find_people_and_involvements_id # (3)! + order_key: split_find_people_and_involvements_chunk_num # (4)! + peripheral_chunks: + next: + head: + count: 1 + previous: + tail: + count: 1 + ``` + + 1. The field containing the chunk content; the split_key with "\_chunk" appended. Automatically exists as a result of the split operation. **This is required.** + 2. The field containing the extracted headers for each chunk. Only exists if you have a header extraction map operation. **This can be omitted if you don't have headers extracted for each chunk.** + 3. The unique identifier for each document; the split operation name with "\_id" appended. Automatically exists as a result of the split operation. **This is required.** + 4. The field indicating the order of chunks; the split operation name with "\_chunk_num" appended. Automatically exists as a result of the split operation. **This is required.** + + This operation gathers context for each chunk, including the previous chunk, the current chunk, and the next chunk. We also render the headers populated by the previous operation. + +6. **Chunk Analysis**: + We define a map operation to analyze each chunk. + +7. **Result Reduction**: + We define a reduce operation to reduce the results of the map operation (applied to each chunk) to a single list of people and their involvements in the case. + +Here is the full pipeline configuration, with the split and gather operations highlighted. Assuming the sample dataset looks like this: + +```json +[ + { + "pdf_url": "https://storage.courtlistener.com/recap/gov.uscourts.dcd.258148/gov.uscourts.dcd.258148.252.0.pdf" + } +] +``` + +??? example "Full Pipeline Configuration" + + ```yaml linenums="1" hl_lines="26-31 55-67" + datasets: + legal_doc: + type: file + path: /path/to/your/dataset.json + parsing: # (1)! + - function: azure_di_read + input_key: pdf_url + output_key: extracted_text + function_kwargs: + use_url: true + include_line_numbers: true + + default_model: gpt-4o-mini + + operations: + - name: extract_metadata_find_people_and_involvements + type: map + model: gpt-4o-mini + prompt: | + Given the document excerpt: {{ input.extracted_text }} + Extract all the people mentioned and summarize their involvements in the case described. + output: + schema: + metadata: str + + - name: split_find_people_and_involvements + type: split + method: token_count + method_kwargs: + num_tokens: 3993 + split_key: extracted_text + + - name: header_extraction_extracted_text_find_people_and_involvements + type: map + model: gpt-4o-mini + output: + schema: + headers: "list[{header: string, level: integer}]" + prompt: | + Analyze the following chunk of a document and extract any headers you see. + + { input.extracted_text_chunk } + + Examples of headers and their levels based on the document structure: + - "GOVERNMENT'S MOTION FOR IMMUNITY DETERMINATIONS" (level 1) + - "Legal Framework" (level 1) + - "Section I" (level 2) + - "Section II" (level 2) + - "Section III" (level 2) + - "A. Formation of the Conspiracies" (level 3) + - "B. The Defendant Knew that His Claims of Outcome-Determinative Fraud Were False" (level 3) + - "1. Arizona" (level 4) + - "2. Georgia" (level 4) + + - name: gather_extracted_text_find_people_and_involvements + type: gather + content_key: extracted_text_chunk + doc_header_key: headers + doc_id_key: split_find_people_and_involvements_id + order_key: split_find_people_and_involvements_chunk_num + peripheral_chunks: + next: + head: + count: 1 + previous: + tail: + count: 1 + + - name: submap_find_people_and_involvements + type: map + model: gpt-4o-mini + output: + schema: + people_and_involvements: list[str] + prompt: | + Given the document excerpt: {{ input.extracted_text_chunk_rendered }} + Extract all the people mentioned and summarize their involvements in the case described. Only process the main chunk. + + - name: subreduce_find_people_and_involvements + type: reduce + model: gpt-4o-mini + associative: true + pass_through: true + synthesize_resolve: false + output: + schema: + people_and_involvements: list[str] + reduce_key: + - split_find_people_and_involvements_id + prompt: | + Given the following extracted information about individuals involved in the case, compile a comprehensive list of people and their specific involvements in the case: + + {% for chunk in inputs %} + {% for involvement in chunk.people_and_involvements %} + - {{ involvement }} + {% endfor %} + {% endfor %} + + Make sure to include all the people and their involvements. If a person has multiple involvements, group them together. + + pipeline: + steps: + - name: analyze_document + input: legal_doc + operations: + - extract_metadata_find_people_and_involvements + - split_find_people_and_involvements + - header_extraction_extracted_text_find_people_and_involvements + - gather_extracted_text_find_people_and_involvements + - submap_find_people_and_involvements + - subreduce_find_people_and_involvements + + output: + type: file + path: /path/to/your/output/people_and_involvements.json + intermediate_dir: /path/to/your/intermediates + ``` + + 1. This is an example parsing function, as explained in the [Parsing](../examples/custom-parsing.md) docs. You can define your own parsing function to extract the text you want to split, or just have the text be directly in the json file. + +Running the pipeline with `docetl run pipeline.yaml` will execute the pipeline and save the output to the path specified in the output section. It cost $0.05 and took 23.8 seconds with gpt-4o-mini. + +Here's a table with one column listing all the people mentioned in the case and their involvements: + +??? tip "Final Output" + + | People Involved in the Case and Their Involvements | + |---------------------------------------------------| + | DONALD J. TRUMP: Defendant accused of orchestrating a criminal scheme to overturn the 2020 presidential election results through deceit and collaboration with private co-conspirators; charged with leading conspiracies to overturn the 2020 presidential election; made numerous claims of election fraud and pressured officials to find votes to overturn the election results; incited a crowd to march to the Capitol; communicated with various officials regarding election outcomes; exerted political pressure on Vice President Pence; publicly attacked fellow party members for not supporting his claims; involved in spreading false claims about the election, including through Twitter; pressured state legislatures to take unlawful actions regarding electors; influenced campaign decisions and narrative regarding the election results; called for action to overturn the certified results and demanded compliance from officials; worked with co-conspirators on efforts to promote fraudulent elector plans and led actions that culminated in the Capitol riot. | + | MICHAEL R. PENCE: Vice President at the time, pressured by Trump to obstruct Congress's certification of the election; informed Trump there was no evidence of significant fraud; encouraged Trump to accept election results; involved in discussions with Trump regarding election challenges and strategies; publicly asserted his constitutional limitations in the face of Trump's pressure; became the target of attacks from Trump and the Capitol rioters; sought to distance himself from Trump's efforts to overturn the election. | + | CC1: Private attorney who Trump enlisted to falsely claim victory and perpetuate fraud allegations; participated in efforts to influence political actions in targeted states; suggested the defendant declare victory despite ongoing counting; actively involved in making false fraud claims regarding the election; pressured state officials; spread false claims about election irregularities and raised threats against election workers; coordinated fraudulent elector meetings and misrepresented legal bases. | + | CC2: Mentioned as a private co-conspirator involved in the efforts to invalidate election results; proposed illegal strategies to influence the election certification; urged others to decertify legitimate electors; involved in discussions influencing state officials; pressured Mike Pence to act against certification; experienced disappointment with Pence's rejection of proposed strategies; presented unlawful plans to key figures. | + | CC3: Another private co-conspirator involved in scheming to undermine legitimate vote counts; promoted false claims during public hearings and made remarks inciting fraud allegations; encouraged fraudulent election lawsuits and made claims about voting machines; pressured other officials regarding claims of election fraud. | + | CC5: Private political operative who collaborated in the conspiracy; worked on coordinating actions related to the fraudulent elector plan; engaged in text discussions regarding the electors and strategized about the fraud claims. | + | CC6: Private political advisor providing strategic guidance to Trump's re-election efforts; involved in communications with campaign staff regarding the electoral vote processes. | + | P1: Private political advisor who assisted with Trump's re-election campaign; advocated declaring victory before final counts; maintained a podcast spreading false claims about the election. | + | P2: Trump's Campaign Manager, providing campaign direction during the election aftermath; informed the defendant regarding false claims related to state actions. | + | P3: Deputy Campaign Manager, involved in assessing election outcomes; coordinated with team members discussing legal strategies post-election; marked by frequent contact with Trump regarding campaign operations. | + | P4: Senior Campaign Advisor, part of the team advising Trump on election outcome communication; expressed skepticism about allegations of fraud; contradicted Trump's claims about deceased voters in Georgia. | + | P5: Campaign operative and co-conspirator, instructed to create chaos during vote counting and incited unrest at polling places; engaged in discussions about the elector plan. | + | P6: Private citizen campaign advisor who provided early warnings regarding the election outcome; engaged in discussions about the validity of allegations. | + | P7: White House staffer and campaign volunteer who advised Trump on potential election challenges and outcomes; acted as a conduit between Trump and various officials; communicated political advice relevant to the election. | + | P8: Staff member of Pence, who communicated about the electoral process and advised against Trump's unlawful plans; was involved in discussions of political strategy surrounding election results. | + | P9: White House staffer who became a link between Trump and campaign efforts regarding fraud claims; provided truthful assessments of the situation; facilitated communications during post-election fraud discussions. | + | P12: Attended non-official legislative hearings; involved in spreading disinformation about election irregularities. | + | P15: Assistant to the President who overheard Trump's private comments about fighting to remain in power after the 2020 election; involved in discussions about various election-related strategies. | + | P16: Governor of Arizona; received calls from Trump regarding election fraud claims and the count in Arizona. | + | P18: Speaker of the Arizona State House contacted as part of efforts to challenge election outcomes; also expressed reservations about Trump's strategies. | + | P21: Chief of Staff who exchanged communications about the fraudulent allegations; facilitated discussions and logistics during meetings. | + | P22: Campaign attorney who verified that claims about deceased voters were false; participated in discussions around the integrity of the election results. | + | P26: Georgia Attorney General contacted regarding fraud claims; openly stated there was no substantive evidence to support fraud allegations; discussed Texas v. Pennsylvania lawsuit with Trump. | + | P33: Georgia Secretary of State; defended election integrity publicly; stated rumors of election fraud were false; involved in discussions about the impact of fraudulent elector claims in Georgia. | + | P39: RNC Chairwoman; advised against lobbying with state legislators; coordinated with Trump on fraudulent elector efforts; refused to promote inaccurate reports regarding election fraud. | + | P47: Philadelphia City Commissioner; stated there was no evidence of widespread fraud; targeted by Trump for criticism after his public statements. | + | P52: Attorney General who publicly stated that there was no evidence of fraud that would affect election results; faced pressure from Trump's narrative. | + | P50: CISA Director; publicly declared the election secure; faced backlash after contradicting Trump's claims about election fraud. | + | P53: Various Republican U.S. Senators participated in rallies organized by Trump; linked to his campaign efforts regarding the election process. | + | P54: Campaign staff member involved in strategizing about elector votes; discussed procedures and expectations surrounding election tasks and claims. | + | P57: Former U.S. Representative who opted out of the fraudulent elector plan in Pennsylvania; cited legal concerns about the actions being proposed. | + | P58: A staff member of Pence involved in communications directing Pence regarding official duties, managing conversations surrounding election processes. | + | P59: Community organizers who were engaged in discussions relating to Trump's electoral undertakings. | + | P60: Individual responses to Trump's directives aimed at influencing ongoing election outcomes and legislative actions. | + +## Optional: Compiling a Pipeline into a Split-Gather Pipeline + +You can also compile a pipeline into a split-gather pipeline using the `docetl build` command. Say we had a much simpler pipeline for the same document analysis task as above, with just one map operation to extract people and their involvements. + +```yaml +default_model: gpt-4o-mini + +datasets: + legal_doc: # (1)! + path: /path/to/dataset.json + type: file + parsing: + - input_key: pdf_url + function: azure_di_read + output_key: extracted_text + function_kwargs: + use_url: true + include_line_numbers: true + +operations: + - name: find_people_and_involvements + type: map + optimize: true + prompt: | + Given this document, extract all the people and their involvements in the case described by the document. + + {{ input.extracted_text }} + + Return a list of people and their involvements in the case. + output: + schema: + people_and_involvements: list[str] + +pipeline: + steps: + - name: analyze_document + input: legal_doc + operations: + - find_people_and_involvements + + output: + type: file + path: "/path/to/output/people_and_involvements.json" +``` + +1. This is an example parsing function, as explained in the [Parsing](../examples/custom-parsing.md) docs. You can define your own parsing function to extract the text you want to split, or just have the text be directly in the json file. If you want the text directly in the json file, you can have your json be a list of objects with a single field "extracted_text". + +In the pipeline above, we don't have any split or gather operations. Running `docetl build pipeline.yaml [--model=gpt-4o-mini]` will output a new pipeline_opt.yaml file with the split and gather operations highlighted--like we had defined in the previous example. Note that this cost us $20 to compile, since we tried a bunch of different plans... diff --git a/docs/installation.md b/docs/installation.md index eabadafe..2e8fff82 100644 --- a/docs/installation.md +++ b/docs/installation.md @@ -33,7 +33,7 @@ To install DocETL from source, follow these steps: 1. Clone the repository: ```bash -git clone https://github.com/shreyashankar/docetl.git +git clone https://github.com/ucbepic/docetl.git cd docetl ``` diff --git a/example_data/post_di_trump_motion.json b/example_data/post_di_trump_motion.json new file mode 100644 index 00000000..e98e9a59 --- /dev/null +++ b/example_data/post_di_trump_motion.json @@ -0,0 +1,6 @@ +[ + { + "extracted_text": "\n\nPage 1:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 1 of 165\nIN THE UNITED STATES DISTRICT COURT\nFOR THE DISTRICT OF COLUMBIA\nUNITED STATES OF AMERICA\n*\n*\nV.\n*\nCRIMINAL NO. 23-cr-257 (TSC)\n*\nDONALD J. TRUMP,\n*\n*\nDefendant.\n*\n*\nGOVERNMENT'S MOTION FOR IMMUNITY DETERMINATIONS\nThe defendant asserts that he is immune from prosecution for his criminal scheme to\noverturn the 2020 presidential election because, he claims, it entailed official conduct. Not so.\nAlthough the defendant was the incumbent President during the charged conspiracies, his scheme\nwas fundamentally a private one. Working with a team of private co-conspirators, the defendant\nacted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit,\nthe government function by which votes are collected and counted-a function in which the\ndefendant, as President, had no official role. In Trump v. United States, 144 S. Ct. 2312 (2024),\nthe Supreme Court held that presidents are immune from prosecution for certain official conduct-\nincluding the defendant's use of the Justice Department in furtherance of his scheme, as was\nalleged in the original indictment-and remanded to this Court to determine whether the remaining\nallegations against the defendant are immunized. The answer to that question is no. This motion\nprovides a comprehensive account of the defendant's private criminal conduct; sets forth the legal\nframework created by Trump for resolving immunity claims; applies that framework to establish\nthat none of the defendant's charged conduct is immunized because it either was unofficial or any\npresumptive immunity is rebutted; and requests the relief the Government seeks, which is, at\nbottom, this: that the Court determine that the defendant must stand trial for his private crimes as\nwould any other citizen.\n\nPage 2:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 2 of 165\nThis motion provides the framework for conducting the \"necessarily factbound\" immunity\nanalysis required by the Supreme Court's remand order. Trump, 144 S. Ct. at 2340. It proceeds\nin four parts.\nSection I provides a detailed statement of the case that the Government intends to prove at\ntrial. This includes the conduct alleged in the superseding indictment, as well as other categories\nof evidence that the Government intends to present in its case-in-chief. This detailed statement\nreflects the Supreme Court's ruling that presidential immunity contains an evidentiary component,\nid., which should be \"addressed at the outset of a proceeding,\" id. at 2334.\nSection II sets forth the legal principles governing claims of presidential immunity. It\nexplains that, for each category of conduct that the Supreme Court has not yet addressed, this Court\nshould first determine whether it was official or unofficial by analyzing the relevant \"content,\nform, and context,\" id. at 2340, to determine whether the defendant was acting in his official\ncapacity or instead \"in his capacity as a candidate for re-election.\" Blassingame v. Trump, 87 F.4th\n1, 17 (D.C. Cir. 2023). Where the defendant was acting \"as office-seeker, not office-holder,\" no\nimmunity attaches. Id. (emphasis in original). For any conduct deemed official, the Court should\nnext determine whether the presumption of immunity is rebutted, which requires the Government\nto show that \"applying a criminal prohibition to that act would pose no 'dangers of intrusion on\nthe authority and functions of the Executive Branch.\"\" Trump, 144 S. Ct. at 2331-32 (quoting\nNixon v. Fitzgerald, 457 U.S. 731, 754 (1982)).\nSection III then applies those legal principles to the defendant's conduct and establishes\nthat nothing the Government intends to present to the jury is protected by presidential immunity.\nAlthough the defendant's discussions with the Vice President about \"their official responsibilities\"\nqualify as official, see Trump, 144 S. Ct. at 2336, the Government rebuts the presumption of\n- 2 -\n\nPage 3:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 3 of 165\nimmunity. And all of the defendant's remaining conduct was unofficial: as content, form, and\ncontext show, the defendant was acting in his capacity as a candidate for reelection, not in his\ncapacity as President. In the alternative, if any of this conduct were deemed official, the\nGovernment could rebut the presumption of immunity.\nFinally, Section IV explains the relief sought by the Government and specifies the findings\nthe Court should make in a single order-namely, that the defendant's conduct set forth in Section\nI is not immunized, and that as a result, the defendant must stand trial on the superseding\nindictment and the Government is not prohibited at trial from using evidence of the conduct\ndescribed in Section I.\nI.\nFactual Proffer\nWhen the defendant lost the 2020 presidential election, he resorted to crimes to try to stay\nin office. With private co-conspirators, the defendant launched a series of increasingly desperate\nplans to overturn the legitimate election results in seven states that he had lost-Arizona, Georgia,\nMichigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the \"targeted states\"). His efforts\nincluded lying to state officials in order to induce them to ignore true vote counts; manufacturing\nfraudulent electoral votes in the targeted states; attempting to enlist Vice President Michael R.\nPence, in his role as President of the Senate, to obstruct Congress's certification of the election by\nusing the defendant's fraudulent electoral votes; and when all else had failed, on January 6, 2021,\ndirecting an angry crowd of supporters to the United States Capitol to obstruct the congressional\ncertification. The throughline of these efforts was deceit: the defendant's and co-conspirators'\nknowingly false claims of election fraud. They used these lies in furtherance of three conspiracies:\n1) a conspiracy to interfere with the federal government function by which the nation collects and\ncounts election results, which is set forth in the Constitution and the Electoral Count Act (ECA);\n2) a conspiracy to obstruct the official proceeding in which Congress certifies the legitimate results\n- 3 -\n\nPage 4:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 4 of 165\nof the presidential election; and 3) a conspiracy against the rights of millions of Americans to vote\nand have their votes counted.\nAt its core, the defendant's scheme was a private criminal effort. In his capacity as a\ncandidate, the defendant used deceit to target every stage of the electoral process, which through\nthe Constitution, ECA, and state laws includes the states' notification to the federal government\nof the selection of their representative electors based on the popular vote in the state; the meeting\nof those electors to cast their votes consistent with the popular vote; and Congress's counting of\nthe electors' votes at a certification proceeding. As set forth in detail below, the defendant worked\nwith private co-conspirators, including private attorneys\nCC1\nCC2\nCC3\nand\nCC5\nand private political operatives\nCC6\nand\nP1\nThe defendant also relied heavily on private agents, such as his Campaign employees and\nvolunteers, like Campaign Manager\nP2\nDeputy Campaign Manager\nP3\nSenior Campaign Advisor\nP4\nand Campaign operative\nP5\nIn this section, the Government sets forth detailed facts supporting the charges against the\ndefendant, 1 before addressing in the next section why none of this conduct is subject to immunity\nunder the Supreme Court's decision in Trump. The conduct set forth below includes the\ndefendant's formation of the conspiracies leading up to and immediately following the 2020\npresidential election; certain information regarding his knowledge that there had not been\noutcome-determinative fraud in the election as he persistently claimed; and his increasingly\ndesperate efforts to use knowingly false claims of election fraud to disrupt the electoral process.\n1 Section I represents the Government's efforts to provide the Court and the defendant with all of\nthe categories of evidence that it may offer in its case-in-chief at trial. It does not include citations\nto every potential exhibit, nor does it account for any additional evidence that may be developed\nbefore trial.\n- 4 -\n\nPage 5:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 5 of 165\nThe Government does not consider any of the following conduct to be subject to immunity for the\nreasons set forth in Section III.\nA. Formation of the Conspiracies\nAlthough his multiple conspiracies began after election day in 2020, the defendant laid the\ngroundwork for his crimes well before then. Leading into the election, the defendant's private and\nCampaign advisors, including\nP6\n(then a private citizen) and\nP2\n(the defendant's\nCampaign manager), informed him that it would be a close contest and that it was unlikely to be\nfinalized on election day-in part because of the time needed to process large numbers of mail-in\nballots prompted by the COVID-19 pandemic.2 They also told the defendant that the initial returns\non election night might be misleading-that is, that he might take an early lead in the vote count\nthat would diminish as mail-in ballots were counted because his own supporters favored in-person\nvoting, while supporters of his opponent, Joseph R. Biden, favored mail-in ballots.3\nPrivately, the defendant told advisors-including\nP6\nCampaign personnel,\nP7\n(a White House staffer and Campaign volunteer), and\nP8\n(the Vice President's\nChief of Staff)-that in such a scenario, he would simply declare victory before all the ballots were\ncounted and any winner was projected.4 Publicly, the defendant began to plant the seeds for that\nfalse declaration. In the months leading up to the election, he refused to say whether he would\naccept the election results, insisted that he could lose the election only because of fraud, falsely\n2 GA 501-510\n); GA 591-599\n); GA 246-\n247\n3 GA 501-512\n); GA 591-599\n); GA 246-\n249\n); GA 132-153\n4 GA 505-507\nGA 250-255\nGA 588-589\n- 5 -\n\nPage 6:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 6 of 165\nclaimed that mail-in ballots were inherently fraudulent, and asserted that only votes counted by\nelection day were valid. For instance:\n\u00b7 In an interview on July 19, 2020, when asked repeatedly if he would accept the results\nof the election, the defendant said he would \"have to see\" and \"it depends.\"5\n\u00b7 On July 30, despite having voted by mail himself earlier that year, the defendant\nsuggested that widespread mail-in voting provided cause for delaying the election,\ntweeting, \"With Universal Mail-In Voting (not Absentee Voting, which is good), 2020\nwill be the most INACCURATE & FRAUDULENT Election in history. It will be a\ngreat embarrassment to the USA. Delay the Election until people can properly, securely\nand safely vote ??? \"6\n\u00b7 In an interview on August 2, the defendant claimed, without any basis, that \"[t]here is\nno way you can go through a mail-in vote without massive cheating.\"7\n\u00b7 At a campaign event in Wisconsin on August 17, the defendant told his supporters,\n\"[t]he only way we're going to lose this election is if the election is rigged, remember\nthat. It's the only way we're going to lose this election, so we have to be very careful.\"8\n\u00b7 In his acceptance speech at the Republican National Convention on August 24, the\ndefendant said that \"[t]he only way they can take this election away from us is if this is\na rigged election.\"9\n\u00b7 On October 27, during remarks regarding his campaign, the defendant said, \"[i]t would\nbe very, very proper and very nice if a winner were declared on November 3rd, instead\nof counting ballots for two weeks, which is totally inappropriate, and I don't believe\nthat that's by our laws. I don't believe that. So we'll see what happens.\"10 The\ndefendant said this despite or perhaps because his private advisors had informed\nhim that it was unlikely that the winner of the election would be declared on\nNovember 3.\n5 GA 1968 at 37:20 (Video of Trump Interview with Chris Wallace 07/19/2020).\n6 See https://x.com/realDonaldTrump/status/1288818160389558273 (Donald J. Trump Tweet\n07/30/2020).\n7 See Donald Trump Interview Transcript with Jonathan Swan of Axios on HBO, Rev (Aug. 3,\n2020)\nhttps://www.rev.com/blog/transcripts/donald-trump-interview-transcript-with-axios-on-\nhbo.\n8 GA 1943 at 57:33 (Video of Oshkosh Rally 08/17/2020).\n9 GA 1951 at 22:08 (Video of RNC Speech 08/24/2020).\n10 GA 1927 at 3:11-3:28 (Video of Donald J. Trump Statement 10/27/2020).\n- 6 -\n\nPage 7:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 7 of 165\nBy October 2020,\nP1\na private political advisor who had worked for the defendant's\n2016 presidential campaign, began to assist with the defendant's re-election effort. Three days\nbefore election day,\nP1\ndescribed the defendant's plan to a private gathering of supporters:\n\"And what Trump's going to do is just declare victory. Right? He's going to declare victory.\nThat doesn't mean he's the winner, he's just going to say he's the winner.\"11 After explaining that\nBiden's supporters favored voting by mail,\nP1\nstated further, \"And so they're going to have\na natural disadvantage and Trump's going to take advantage of it-that's our strategy. He's going\nto declare himself a winner.\"12\nImmediately following election day on November 3, the defendant did exactly that. As his\nprivate and Campaign advisors had predicted to him, in certain states, the defendant took an early\nlead on election day that began to erode. At approximately 11:20 p.m., Fox News projected that\nBiden would prevail in the state of Arizona, and according to Campaign advisor\nP4\nhe and the\ndefendant were shocked and angry at this development.13 As election day turned to November 4,\nthe contest was too close to project a winner, and in discussions about what the defendant should\nsay publicly regarding the election, senior advisors suggested that the defendant should show\nrestraint while counting continued. 14 Two private advisors, however, advocated a different course:\nCC1\nand\nCC6\nsuggested that the defendant just declare victory.15 And at about 2:20 a.m.,\nthe defendant gave televised remarks to a crowd of his campaign supporters in which he falsely\n11 GA 1886 at 0:00\n12 Id. at 0:20\n).\n13 GA 376-380 at 70-74 (\n14 GA 600-602\n); GA 610-614\n); GA 380-\n383\n); GA 128-130\n); GA 161\nGA 370\n15\nGA 154\nGA 600\n); GA 181-182\n- 7 -\n\nPage 8:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 8 of 165\nclaimed, without evidence or specificity, that there had been fraud in the election and that he had\nwon: \"This is a fraud on the American public. This is an embarrassment to our country. We were\ngetting ready to win this election. Frankly, we did win this election. We did win this election.\"16\nIn the immediate post-election period, while the defendant claimed fraud without proof,\nhis private operatives sought to create chaos, rather than seek clarity, at polling places where states\nwere continuing to tabulate votes. For example, on November 4,\nP5\na Campaign employee,\nagent, and co-conspirator of the defendant-tried to sow confusion when the ongoing vote count\nat the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a\ncolleague at the TCF Center told\nP5\n\"We think [a batch of votes heavily in Biden's favor is]\nright,\"17\nP5\nresponded, \"find a reason it isnt,\" \"give me options to file litigation,\" and \"even\nif itbis [sic].\"18 When the colleague suggested that there was about to be unrest reminiscent of the\nBrooks Brothers Riot, 19 a violent effort to stop the vote count in Florida after the 2000 presidential\nelection,\nP5\nresponded, \"Make them riot\" and \"Do it !!! \"20 The defendant's Campaign\noperatives and supporters used similar tactics at other tabulation centers, including in Philadelphia,\nPennsylvania,21 and the defendant sometimes used the resulting confrontations to falsely claim\n16 GA 1974 at 7:44 (Video of White House Speech 11/04/2020).\n17 GA 968-996\n18 Id.\n19 Id.\n20 Id.\n21 GA 997-999\n- 8 -\n\nPage 9:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 9 of 165\nthat his election observers were being denied proper access, thus serving as a predicate to the\ndefendant's claim that fraud must have occurred in the observers' absence.22\nContrary to the defendant's public claims of victory immediately following election day,\nhis advisors informed him that he would likely lose. On November 7, in a private Campaign\nmeeting that included\nP2\nP3\nP4\nand White House staffer\nP9\nwho came\nto serve as a conduit for information from the Campaign to the defendant, Campaign staff told the\ndefendant that he had only a slim chance of prevailing in the election, and that any potential success\nwas contingent on the defendant winning all ongoing vote counts or litigation in Arizona, Georgia,\nand Wisconsin.23 Within a week of that assessment, on November 13, the defendant's Campaign\nconceded its litigation in Arizona24-meaning that based on his Campaign advisors' previous\nassessment, the defendant had lost the election.\nThat same day, in an implicit acknowledgment that he had no lawful way to prevail, the\ndefendant sidelined the existing Campaign staff responsible for mounting his legal election\nchallenges. From\nP2\nP3\nand others who were telling the defendant the truth that he did\nnot want to hear-that he had lost-the defendant turned to\nCC1\n, a private attorney who was\nwilling to falsely claim victory and spread knowingly false claims of election fraud.\nAs the defendant placed alternating phone calls to\nP3\nand\nCC1\nthroughout\nNovember 13,25\nP1\ninformed\nCC6\nanother private Campaign advisor, of the change,\nwriting, \"Close hold don't tell anyone Trump just fired\nP3\nand put CC1\nin charge\" and\n22\nGA\n774-775\n(Donald\nJ.\nTrump\nTweet\n11/06/2020);\nGA\n776,\nhttps://x.com/realDonaldTrump/status/1325194709443080192\n11/07/2020).\n(Donald J.\nTrump\nTweet\n23 GA 155-158\n24 GA 1001 (Donald J. Trump for President, Inc. v. Hobbs Hearing Transcript 11/13/2020); GA\n1002-1003 (Minute entry and order dismissing Donald J. Trump for President, Inc. v. Hobbs).\n25 GA 731-734\n- 9 -\n\nPage 10:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 10 of 165\n\"You are to report to\nCC1\n26 When\nCC6\nasked if\nP2\nwas \"gone too?\",\nP1\nreplied\nthat \"[t]hey all report to CC1\nand that\nP1\nhad \"made a recommendation directly that if CC1\nwas not in charge this thing is over[.] Trump is in to the end.\"27 The next day, consistent with\nP1\ndescription, the defendant announced his staff change by Tweet, writing, \"I look forward\nto\nCC1\nspearheading the legal effort to defend OUR RIGHT to FREE and FAIR\nELECTIONS!\nCC1\nP10\nP11\nCC3\nand\nP12\na truly great team, added to our other wonderful lawyers and representatives!\"28\nB. The Defendant Knew that His Claims of Outcome-Determinative Fraud Were\nFalse\nFollowing election day and throughout the charged conspiracies, the defendant, his co-\nconspirators, and their agents spread lies that there had been outcome-determinative fraud in the\nelection and that he had actually won. These lies included dozens of specific claims that there had\nbeen substantial fraud in certain states, such as that large numbers of dead, non-resident, non-\ncitizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes\nfor the defendant to votes for Biden. And the defendant and co-conspirators continued to make\nthese unsupported, objectively unreasonable, and ever-changing claims even after they had been\npublicly disproven or after advisors had directly informed the defendant that they were untrue.\nThe evidence demonstrates that the defendant knew his fraud claims were false because he\ncontinued to make those claims even after his close advisors-acting not in an official capacity\nbut in a private or Campaign-related capacity-told him they were not true. These advisors\n26 GA 1004\n27 Id.\n28 GA 784-785 (Donald J. Trump Tweet 11/14/2020).\n- 10 -\n\nPage 11:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 11 of 165\nincluded\nP9\nthe White House staffer and Campaign conduit, and Pence, the defendant's\nrunning mate.\nP9\nrelationship with the defendant began before\nP9\nworked for him\nin the White House.\nP9\nhad known\nP13\nthe defendant's son-in-law, since\nP13\nwas a child, and through\nP13\nmet\nP14\nand then the defendant. 29\nP9\nwas one of several attorneys who represented the defendant in his first impeachment\ntrial in the Senate in 2019 and 2020, including presenting argument on the Senate floor on January\n27, 2020.\nP9\nbegan working in the White House as an Assistant to the President in\nAugust 2020.30 In October 2020,\nbecame interested in learning more about the\ndefendant's Campaign, and in early November 2020, after he began interfacing with Campaign\nstaff,\nP9\nconsulted with the White House Counsel's Office to ensure he complied with\nany applicable laws regarding Campaign activity.31 Thereafter, and throughout the post-election\nP9\nbecame a conduit of information from the Campaign to the defendant, and\nperiod,\nover the course of the conspiracies,\nP9\ntold the defendant the unvarnished truth about\nhis Campaign legal team and the claims of fraud that they and the defendant were making.\nExamples of these instances include:\nP9\nrepeatedly gave the defendant his honest assessment that\nCC1\ncould not\nmount successful legal challenges to the election. For instance, when the defendant told\nP9\nthat he was going to put\nCC1\nin charge of the Campaign's legal efforts but\nP9\ntold the defendant he would never have to pay\nanything;32 in response, the defendant laughed and said, \"we'll see.\"33 Thereafter,\npay him only if he succeeded,\nCC1\nin Oval Office meetings with the defendant,\nCC1\nand others, in which\nCC1\nmade\nspeculative claims,\nP9\ntold\nCC1\n-in front of the defendant-that\nCC1\n29 GA 699\n30 GA 671\n).\n31 GA 672-673; GA 686 (\n32 GA 205\n33 Id.\nP9\n- 11 -\n\nPage 12:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 12 of 165\nwould be unable to prove his allegations in a courtroom.34\nIn a separate private\nconversation, when\nP9\nreiterated to the defendant that\nCC1\nwould be unable\nto prove his false fraud allegations in court, the defendant responded, \"The details don't\nmatter.\">35\n\u00b7 In the post-election period,\nP9\nalso took on the role of updating the defendant on\na near-daily basis on the Campaign's unsuccessful efforts to support any fraud claims.36\nP9\ntold the defendant that the Campaign was looking into his fraud claims, and\nhad even hired external experts to do so, but could find no support for them. He told the\ndefendant that if the Campaign took these claims to court, they would get slaughtered,\nbecause the claims are all \"bullshit.\"37\nP9\nwas privy in real time to the findings\nof the two expert consulting firms the Campaign retained to investigate fraud claims-\nC1\nand\nC2\nand discussed with the defendant their\ndebunkings on all major claims.\n'38\nFor example,\nP9\nGeorgia's audit disproved claims that\nC3\ntold the defendant that\nhad altered votes. 39\nIn the post-election time period, Pence-the defendant's own running mate, who he had\ndirected to assess fraud allegations-told the defendant that he had seen no evidence of outcome-\ndeterminative fraud in the election. 40 This was in one of the many conversations the defendant\nand Pence had as running mates, in which they discussed their shared electoral interests. Pence\ngradually and gently tried to convince the defendant to accept the lawful results of the election,\neven if it meant they lost. These conversations included:\n. A conversation on November 4 in which the defendant asked Pence to \"study up\" claims\nof voter fraud in states that they had won together in 2016 to determine whether they could\nbring legal challenges as candidates in those states.41 Pence described the conversation as\nfollows: \"Well, I think, I think it was broadly. It was just look at all of it. Let me know\nwhat you think. But he told me that the Campaign was going to fight, was going to go to\n34 GA 198-204\n35 GA 715, 718\n36 GA 213-214\n37 GA 718\n38\nGA 715-721\n);\nGA 207-213\n39\nGA 211-212\n40 GA 414-420\n41 GA 412-413\n- 12 -\n\nPage 13:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 13 of 165\ncourt and make challenges ... . And then he just said we're going to fight this and take a\nlook at it. Let me know what you think.\"42\n. A call between the defendant and Pence on November 7, the day that media organizations\nbegan to project Biden as the winner of the election. Pence \"tried to encourage\" the\ndefendant \"as a friend,\" reminding him, \"you took a dying political party and gave it a new\nlease on life.\"43\n\u00b7 A November 11 meeting among the defendant, Pence, Campaign staff, and some White\nHouse staff during which Pence asked when most of the lawsuits would be resolved (\"when\ndoes this come to a head?\") and the Campaign staff responded, the \"week after\nThanksgiving.\">44\n. A November 12 meeting among the defendant, Pence, Campaign staff, and some White\nHouse staff during which, Pence recalls, the \"Campaign lawyers gave a sober and\nsomewhat pessimistic report on the state of election challenges. \">45\n. A private lunch on November 12 in which Pence reiterated a face-saving option for the\ndefendant: \"don't concede but recognize process is over.\"46\n. A private lunch on November 16 in which Pence tried to encourage the defendant to accept\nthe results of the election and run again in 2024, to which the defendant responded, \"I don't\nknow, 2024 is so far off.\"47\n. A November 23 phone call in which the defendant told Pence that the defendant's private\nattorney,\nP76\n, was not optimistic about the election challenges. 48\n. A December 21 private lunch in which Pence \"encouraged\" the defendant \"not to look at\nthe election 'as a loss - just an intermission.\"\" This was followed later in the day by a\nprivate discussion in the Oval Office in which the defendant asked Pence, \"what do you\nthink we should do?\" Pence said, \"after we have exhausted every legal process in the\ncourts and Congress, if we still came up short, [the defendant] should 'take a bow.\"\",49\n42 GA 413-414\n43 GA 421\n). See GA 1016 (Pence, So Help Me God p. 430).\n44 GA 1036\n; GA 1034-1035\n45 GA 422-424\nSee GA 1017 (Pence, So Help Me God p. 431).\n46 GA 1037\n47 GA 425-426\nSee GA 1018 (Pence, So Help Me God p. 432).\n48 GA 430\n); GA 736\n49\nGA 442-448\nSee GA 1020-1022 (Pence, So Help Me God p. 437-\n- 13 -\n\nPage 14:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 14 of 165\n\u00b7 Discussions in which Pence apprised the defendant of conversations he had had with\ngovernors in Arizona and Georgia in the context of \"election challenges,\" in which Pence\nhad called the governors \"simply to gather information and share it with the president,\"50\nand in which the governors did not report evidence of fraud in the elections in their states\nand explained that they could not take actions to convene their states' legislatures.51\nBut the defendant disregarded\nP9\nand Pence in the same way that he disregarded\ndozens of court decisions that unanimously rejected his and his allies' legal claims, and that he\ndisregarded officials in the targeted states-including those in his own party-who stated publicly\nthat he had lost and that his specific fraud allegations were false.52 Election officials, for instance,\nissued press releases and other public statements to combat the disinformation that the defendant\nand allies were spreading.53 At one point long after the defendant had begun spreading false fraud\n439).\n50 GA 1039\n432).\nSee GA 1018 (Pence, So Help Me God p.\n51 GA 427-429, GA431-435\nSee GA 1018 (Pence, So Help Me God\np. 432).\n52 GA 1040 (Joint Statement 11/20/2020); GA 1041 (Statement 12/04/2020).\n53 See, e.g., GA 1043 (Letter to Maricopa County voters 11/17/2020); GA 838 (Arizona\nGovernor's Tweet 12/01/2020); GA 1041 (Arizona Legislator's Statement 12/04/2020); GA 1044-\n1046 (Georgia Secretary of State News Release 10/23/2020); GA 1047-1048 (Georgia Secretary\nof State News Release 11/05/2020); GA 1947 (Video of Georgia Press Conference 11/06/2020);\nGA 1959 (Video of Georgia Press Conference 11/09/2020); GA 1960 (Video of Georgia Press\nConference 11/12/2020); GA 1049-1050 (Georgia Secretary of State News Release 11/18/2020);\nGA 1051-1052 (Georgia Secretary of State News Release 11/19/2020); GA 1053-1054 (Georgia\nSecretary of State News Release 12/07/2020); GA 1946 (Video of Georgia News Conference\n12/07/2020); GA 1948 (Video of Georgia Press Conference 12/16/2020); GA 1055-1057 (Georgia\nSecretary of State News Release 12/29/2020); GA 1949 (Video of Georgia Secretary of State\nInterview with Cavuto 01/02/2021); GA 1958 (Video of Georgia Press Conference 01/04/2021);\nGA 1058-1059 (Michigan Secretary of State web page 11/06/2020); GA 1040 (Michigan\nLegislators' Joint Statement 11/20/2020); GA 1060-1062 (Michigan Attorney General and\nSecretary of State News Release 12/14/2020); GA 1063-1064 (Michigan Secretary of State web\npage 12/17/2020); GA 1065 (Michigan Secretary of State web page 12/18/2020); GA 1066\n(Michigan Secretary of State web page); GA 1907 (Video of Michigan Clerk's Statement); GA\n1068-1070 (New Mexico Secretary of State News Release 12/14/2020); GA 1953 (Video of\nP47\nInterview with CNN 11/11/2020); GA 822 ( P47\nTweet 11/27/2020); GA 1071-1072\n(Pennsylvania Department of State Public Response Statement 12/29/2020); GA 1073-1076\n- 14 -\n\nPage 15:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 15 of 165\nclaims,\nP15\na White House staffer traveling with the defendant, overheard him tell family\nmembers that \"it doesn't matter if you won or lost the election. You still have to fight like hell.\"54\nThe defendant and his co-conspirators also demonstrated their deliberate disregard for the\ntruth-and thus their knowledge of falsity-when they repeatedly changed the numbers in their\nbaseless fraud allegations from day to day. At trial, the Government will introduce several\ninstances of this pattern, in which the defendant and conspirators' lies were proved by the fact that\nthey made up figures from whole cloth. One example concerns the defendant and conspirators'\nclaims about non-citizen voters in Arizona. The conspirators started with the allegation that 36,000\nnon-citizens voted in Arizona;55 five days later, it was \"beyond credulity that a few hundred\nthousand didn't vote\";56 three weeks later, \"the bare minimum [was] 40 or 50,000. The reality is\nabout 250,000\";57 days after that, the assertion was 32,000;58 and ultimately, the conspirators\nlanded back where they started, at 36,000-a false figure that they never verified or corroborated.59\nUltimately, the defendant's steady stream of disinformation in the post-election period\nculminated in the speech he gave at a privately-funded, privately-organized rally at the Ellipse on\nthe morning of January 6, 2021, in advance of the official proceeding in which Congress was to\ncertify the election in favor of Biden. 60 In his speech, the defendant repeated the same lies about\n(Wisconsin Elections Commission web page 11/05/2020); GA 1077-1081 (Wisconsin Elections\nCommission web page 11/10/2020); GA 1082-1087 (Wisconsin Elections Commission web page).\n54 GA 308\n55 GA 1890 at 20:46 (Common Sense with\n11/25/2020).\n56 GA 1906 at 2:06:25 (Video of Arizona Hotel Hearing 11/30/2020).\n57 GA 1980 at 18:52\n58 GA 1981 at 35:19\n59 GA 1106 (Dalton Rally Speech Draft Tr. 01/04/2021); GA 1134 (Ellipse Rally Speech Draft Tr.\n01/06/2021).\n60 GA 1114-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021); GA 1142\n- 15 -\n\nPage 16:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 16 of 165\nelection fraud in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin that had been\npublicly, or directly, debunked.61 The defendant used these lies to inflame and motivate the large\nand angry crowd of his supporters to march to the Capitol and disrupt the certification\nproceeding. 62\nC. The Defendant Aimed Deceit at the Targeted States to Alter Their Ascertainment\nand Appointment of Electors\nShortly after election day, the defendant began to target the electoral process at the state\nlevel by attempting to deceive state officials and to prevent or overturn the legitimate ascertainment\nand appointment of Biden's electors. As President, the defendant had no official responsibilities\nrelated to the states' administration of the election or the appointment of their electors, and instead\ncontacted state officials in his capacity as a candidate. Tellingly, the defendant contacted only\nstate officials who were in his political party and were his political supporters, and only in states\nhe had lost. The defendant's attempts to use deceit to target the states' electoral process played\nout in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, as well as across these\nand other states that used certain voting machines. In addition to the following evidence of the\ndefendant's conduct during the charged conspiracies, at trial the Government will elicit testimony\nfrom election officials from the targeted states to establish the objective falsity-and often,\nimpossibility-of the defendant's fraud claims. Notably, although these election officials would\nhave been the best sources of information to determine whether there was any merit to specific\nallegations of election fraud in their states, the defendant never contacted any of them to ask.\n61 GA 1126-1129, GA 1131-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n62 GA 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n- 16 -\n\nPage 17:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 17 of 165\n1. Arizona\nThe defendant was on notice that there was no evidence of widespread election fraud in\nArizona within a week of the election. On November 9, for instance, two days after news networks\nprojected that Biden had won, the defendant called Arizona Governor\nP16\nto ask him\nwhat was happening at the state level with the presidential vote count in Arizona.63 At that point,\nthough Fox News had projected that Biden had won the state, several other news outlets-\nincluding ABC, NBC, CNN, and the New York Times-had not yet made a projection. 64\nP16\nwalked the defendant through the margins and the votes remaining to be counted, which were\nprimarily from Pima County, which favored Biden, and Maricopa County, which was split. 65\nP16\ndescribed the situation to the defendant as \"the ninth inning, two outs, and [the defendant]\nwas several runs down.\"66 The defendant also raised claims of election fraud, and\nP16\nasked\nthe defendant to send him supporting evidence. 67 Although the defendant said he would-stating,\n\"we're packaging it up\"-he never did.68 Shortly thereafter, on November 13, Campaign Manager\nP2\ntold the defendant directly that a false fraud claim that had been circulating-that a\n63 GA 656-658\n; GA 727 (\n64 See, e.g., Democrats flip Arizona as Biden, Kelly score key election wins, Fox NEWS, Nov. 3,\n2020, available at https://www.foxnews.com/video/6206934979001; Dan Merica, Biden carries\nArizona, flipping a longtime Republican stronghold, CNN.COM, Nov. 13, 2020, available at\nhttps://www.cnn.com/2020/11/12/politics/biden-wins-arizona/index.html; Luis Ferr\u00e9-Sadurni et\nal., Biden flips Arizona, further cementing his presidential victory, N.Y. TIMES, Nov. 12, 2020,\navailable at https://www.nytimes.com/2020/11/12/us/biden-wins-arizona.html; Election Latest:\nBiden Projected Winner in Arizona, NBC 4 NEW YORK, Nov. 12, 2020, available at\nhttps://www.nbcnewyork.com/news/politics/decision-2020/election-latest-biden-talks-to-world-\nleaders-about-virus/2718671/.\n65 GA 667\n67 GA 657\n68 Id.\n- 17 -\n\nPage 18:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 18 of 165\nsubstantial number of non-citizens had voted in Arizona-was false.69 The same day, as noted\npreviously, Campaign attorneys conceded in court that the remaining election lawsuit in Arizona\nwas moot.\nThe defendant and\nCC1\ncontinued to try to influence\nP16\nFor example,\nCC1\ntried to contact\nP16\non November 22-the same day the defendant and\nCC1\nreached out to\nP16\nthe Arizona Speaker of the House, as described below.70 And on November 30, the day\nsigned the Arizona certificate of ascertainment formally declaring Biden's electors as the\nlegitimate electors for Arizona,\nP16\nreceived a call from the defendant and Pence.71\nP16\nadvised them that Arizona had certified the election; when the defendant brought up fraud claims,\nP16\neager to see the evidence-again asked the defendant to provide it, but the defendant\nnever did.72 Instead, later that evening and into the following morning, the defendant repeatedly\npublicly attacked\nP16\n(as well as Georgia Governor\nP17\n) on Twitter, re-tweeting posts\nby others, such as \"Who needs Democrats when you have Republicans like\nP16\n73. \"Watching the Arizona hearings and then watching Gov.\nsign those papers, why\nbother voting for Republicans if what you get is\nP16\nand\nP17\n74. c\nP17\n'My state\nran the most corrupt election in American history.'\nP16\n'Hold my beer, \"\"75; and \"Why\nP16\nstill pretending he's a member of the Republican Party after he just certified\nfraudulent election results in Arizona that disenfranchised millions of Republicans?\"76\n69 GA 603-608\n70 GA 661\n71 GA 658\n72 GA 658, GA 667-668\n73 GA 840 (Trump Twitter Archive 11/30/2020).\n74 GA 833-834 (Donald J. Trump Tweet 11/30/2020).\n75 GA 831-832 (Donald J. Trump Tweet 11/30/2020).\n76 GA 839 (Trump Twitter Archive 12/01/2020).\n- 18 -\nP17\nand\nP16\nis\n\nPage 19:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 19 of 165\nThe defendant and co-conspirators also attempted to use false fraud claims to convince\npolitical allies in the Arizona state legislature to ignore the popular vote and appoint illegitimate\nelectors. On November 22, the defendant and\nCC1\ncalled\nP18\nArizona House of Representatives. 77\nCC1\ndid most of the talking. 78\nDuring the call, the\nlevied multiple false fraud claims-including of non-citizen, non-resident,\nand dead voters that affected the defendant's race-and asked\nP18\nto use them as a basis to\ncall the state legislature into session to replace Arizona's legitimate electors with illegitimate ones\nfor the defendant.79 When\nP18\nvoiced his deep skepticism,\nCC1\nsaid, \"well, you know,\nwe're all kind of Republicans and we need to be working together.\"80\nP18\nrefused, and asked\nCC1\nto provide evidence supporting his fraud claims. 81\nCC1\nnever did. 82\nIndeed,\nCC1\nmet with\nP18\nin person approximately a week later and still had\nnothing to back up his claims. On November 30,\nCC1\nP12\nand others arrived in Arizona for\na \"hotel hearing\"-an unofficial meeting with Republican legislators-during which they\npromoted false fraud allegations. 83 In a meeting the day after the hearing, when state legislators\npressed\nCC1\nand P12\nfor evidence to support their claims,\nCC1\nconceded that even on that\nlate date, \"[w]e don't have the evidence, but we have lots of theories.\"84\nWhen the legislators were\nfrustrated that\nCC1\nhad no support for his claims and asked him tough questions,\nCC1\nexpressed surprise at the way he was being treated, stating \"Man, I thought we were all\n77 GA 735\n); GA 21-22 (\n78 See GA 30\n79 GA 22-24\n80 GA 28\n81 GA 22-33\n82 GA 25\n83 GA 1906 at 56:19 (Video of Arizona Hotel Hearing 11/30/2020).\n84 GA 36\n- 19 -\nthe Speaker of the\ndefendant and\nCC1\n\nPage 20:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 20 of 165\nRepublicans.\n[T]his is a little more hostile a reception. I'm amazed at the reception I'm getting\nhere.\"85\nOn December 4,\nP18\nreleased a public statement in which he explained that he did not\nhave the authority to use the legislature \"to reverse the results of the election\" and that doing so\nwould constitute an attempt \"to nullify the people's vote based on unsupported theories of fraud.\"86\nP18\nmade clear that he was disappointed with the legitimate election results because he \"voted\nfor President Trump and worked hard to reelect him\" but would not \"violate current law to change\nthe outcome of a certified election.\"87 On Twitter,\nP19\na Campaign staffer who worked\nwith\nCC6\nattacked\nP18\nfor his statement, writing that\nP18\n\"is intentionally misleading\nthe people of Arizona to avoid the inevitable.\" The defendant re-tweeted\npraised her. 88\nP19\nfalse post and\nA month later, just two days before January 6,\nCC2\nanother of the defendant's private\nattorneys and a co-conspirator-called\nP18\nand\nP18\ncounsel,\nP20\nand urged\nP18\none last time to use the legislature to decertify Arizona's legitimate electors and overturn\nthe valid election results. 89 When\nP18\ntold\nCC2\nthat there was no evidence of substantial\nfraud in Arizona, and that he could not legally call the legislature into session,\nCC2\nwas\nundeterred. He conceded that he \"[didn't] know enough about the facts on the ground\" regarding\n85 GA 35\n86 GA 1041-1042\nStatement 12/04/2020).\n87 GA 1042\nStatement 12/04/2020).\n88 GA 854-855 (Donald J. Trump Tweet 12/06/2020); GA 852-853 (Donald J. Trump Tweet\n12/06/2020).\n89 GA 37-44 (\nGA 408-409\n- 20 -\n\nPage 21:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 21 of 165\nfraud in Arizona, and said that\nP18\nshould nonetheless falsely claim that he had the authority\nto convene the legislature and \"let the courts sort it out.\"90\nP18\nagain refused.91\nIn the post-election period,\nP18\nwas harassed; on several occasions, individuals\ngathered outside\nP18\nhome with bullhorns and screamed and honked their vehicle horns to\ncreate noise.92 Once, an individual in visible possession of a pistol and wearing a t-shirt in support\nof a militia group came onto\nP18\nproperty and screamed at him.93 At the time of these events,\nP18\ndaughter was at home and was very ill, and the noise caused her \"disruption and angst.\"94\n2. Georgia\nThe defendant had early notice that his claims of election fraud in Georgia were false.\nAround mid-November, Campaign advisor\nP4\ntold the defendant that his claim that a large\nnumber of dead people had voted in Georgia was false.95 The defendant continued to press the\nclaim anyway, including in a press appearance on November 29, when he suggested that a large\nenough number of dead voters had cast ballots to change the outcome of the election in Georgia.96\nFour days later, on December 3,\nCC1\norchestrated a presentation to a Judiciary\nSubcommittee of the Georgia State Senate.97 In the morning in advance of it,\nhad spoken\nCC1\nto the defendant on the phone for almost twenty minutes.98 And at the hearing,\nCC1\narranged\nfor co-conspirators and agents to repeat the false dead voter claim. The claim was so patently false\n90 GA 1144\n); GA 39\n91 GA 41-42\n92 GA 45-47\n93 GA 46-47\n94 GA 47\n95 GA 388-390\n96 GA 1969 at 22:43-23:51 (Video of Trump Interview with Maria Bartiromo 11/29/2020).\n97 GA 1934 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020).\n98 GA 739 at 1\n- 21 -\n\nPage 22:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 22 of 165\nthat everyone around the defendant knew it: during the hearing, Chief of Staff\nP21\nand\nP9\nexchanged text messages on their personal phones confirming that a Campaign\nattorney,\nP22\nhad verified that\nCC1\nclaim of more than 10,000 dead voters was\nfalse and that the actual number was around 12 and could not be outcome-determinative.99\nDuring the subcommittee hearing, the conspirators also set in motion a sensational and\ndangerous lie about election workers at State Farm Arena that would result in the defendant's\nsupporters harassing and threatening those workers. First,\nP23\none of the defendant's\nprivate attorneys, claimed that more than 10,000 dead people had voted in Georgia. 100 Next, P24\nan agent of the defendant, played misleading excerpts of closed-circuit camera footage from\nState Farm Arena and insinuated that it showed election workers committing misconduct-\ncounting \"suitcases\" of illegal ballots. 101 Lastly, based on the false fraud allegations,\nCC2\nwho had already been engaged as a private lawyer for the defendant but did not disclose that at the\nhearing-encouraged the Georgia legislators to decertify the state's legitimate electors. 102\nWhile the hearing was ongoing, the defendant simultaneously amplified the\nmisinformation about the State Farm Arena election workers, falsely tweeting, \"Wow!\nBlockbuster testimony taking place right now in Georgia. Ballot stuffing by Dems when\nRepublicans were forced to leave the large counting room. Plenty more coming, but this alone\n99 ECF No. 226 | 26(a); GA 1146\n); see also GA 364-365\n100 GA 1934 at 30:54 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020); GA\n1146\n101 GA 1934 at 34:06 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020);\nECF No. 226 | 26(b).\n102 GA 1934 at 4:44:05 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020).\n- 22 -\n\nPage 23:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 23 of 165\nleads to an easy win of the State!\"103 He did this just after re-tweeting two of his Campaign\naccount's Tweets that promoted the false claim about election workers at State Farm Arena. 104\nOver the next week, the claim of misconduct at State Farm Arena was disproven publicly\nas well as directly to the defendant. The day after the hearing,\nP25\nthe Chief Operating\nOfficer of the Georgia Secretary of State's Office, posted a Tweet explaining that Secretary of\nState officers had watched the video in its entirety and confirmed that it showed \"normal ballot\nprocessing.\"105\nP25\nagain forcefully debunked the conspirators' claim about the State Farm\nvideo in a press conference on December 7, explaining at length the election workers' innocent\nconduct depicted in the closed-circuit camera footage and stating:\nAnd what's really frustrating is the President's attorneys had this same videotape.\nThey saw the exact same things the rest of us could see. And they chose to mislead\nstate senators and the public about what was on that video. I'm quite sure that they\nwill not characterize the video if they try to enter it into evidence because that's the\nkind of thing that could lead to sanctions because it is obviously untrue. They knew\nit was untrue and they continue to do things like this. 106\nOn December 8, the defendant called Georgia Attorney General\nP26\n107\nP26 had\nadvance notice that the topic of the call was Texas v. Pennsylvania, an election lawsuit in which\nTexas was suing other states-including Georgia-to attempt to prevent the certification of the\nelection. 108 U.S. Senator\nP27\ntold P26 that the defendant had heard that P26\nwas\n\"whipping,\" or lobbying, other state attorneys general against filing amicus briefs in support of\n103 GA 846-847 (Donald J. Trump Tweet 12/03/2020).\n104 GA 845, GA 1893 (Donald J. Trump Tweet 12/03/2020); GA 844, GA 1894 (Donald J. Trump\nTweet 12/03/2020).\n105 GA 848\nP25\nTweet 12/04/2020).\n106 GA 1933 at 8:43 (Video of Georgia Secretary of State Press Conference 12/07/2020).\n107 GA 742 (\n108 GA 61-62\n- 23 -\n\nPage 24:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 24 of 165\nTexas. 109\nP26\nwas not lobbying against the suit, and told\nP27\nso;\nP27\nasked P26 if he would\nspeak with the defendant about it, and P26 agreed. 110 Shortly thereafter, the defendant called P26\nand immediately raised Texas v. Pennsylvania, saying, \"I hope you're not talking to your AGs and\nencouraging them not to get on the lawsuit.\"111\nP26\ntold the defendant that he was not\naffirmatively calling other state attorneys general, but that if they called him, he was telling them\nwhat he was seeing in his state-which was something that the defendant probably did not want\nto hear: P26 was just not seeing evidence of fraud in Georgia. 112 The defendant nonetheless raised\nvarious fraud claims.\nP26\ntold him that state authorities had investigated the State Farm Arena\nallegations and found no wrongdoing, and that he thought another claim the defendant raised about\nCoffee County, Georgia, had been similarly resolved, but would check. 113 The defendant asked\nP26\nto look at them again \"because we're running out of time.\"114\nP26\ntried to steer the call to\nan end by thanking the defendant and telling him that he had voted for him twice and appreciated\nthe defendant, to which the defendant responded, \"Yeah, I did a hell of a job, didn't I?\"115 At one\npoint, the defendant raised with P26\nthe impending run-off election for Georgia's U.S. Senate\nseats and how important it was to re-elect\nP27\nand\nP28\n116\nThe day after the call, the\ndefendant-in his private capacity as a candidate for president-intervened in support of Texas v.\nPennsylvania; his attorney for that matter was\nCC2\n117\n109 GA 62\n110 GA 61-62\n111 GA 64\n112 Id.\n113 GA 65-66\n114 GA 66\n2023).\n115 GA 67\n116 Id.\n117 Mot. to Intervene, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 9, 2020).\n- 24 -\n\nPage 25:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 25 of 165\nOn the same day as the defendant's call with\nP26\nthe defendant's Campaign staff\nacknowledged that the State Farm Arena claim was unsupported, emailing one another about the\nfact that television networks may decline to run Campaign advertisements promoting it. In\nfrustration regarding the claim and others like it,\nP4\nwho spoke with the defendant on a daily\nbasis and had informed him on multiple occasions that various fraud claims were false-wrote,\n\"When our research and campaign legal team can't back up any of the claims made by our Elite\nStrike Force Legal Team, you can see why we're 0-32 on our cases. I'll obviously hustle to help\non all fronts, but it's tough to own any of this when it's all just conspiracy shit beamed down from\nthe mothership.\"118\nOn December 10, however,\nCC1\nfurther perpetuated the false State Farm Arena claim\nwhen he appeared at another hearing, this one before the Georgia House of Representatives'\nGovernment Affairs Committee. During it, he displayed some of the same footage as had been\nused in the December 3 hearing that had been debunked in the interim by Georgia officials, and\nnonetheless claimed that it showed \"voter fraud right in front of people's eyes.\"119 He then named\ntwo election workers-\nP29\nand her mother,\nP30\nand baselessly\naccused them of \"quite obviously surreptitiously passing around USB ports as if they are vials of\nheroin or cocaine,\" and suggested that they were criminals whose \"places of work, their homes,\nshould have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter\nfraud.\"120\nAs these false claims about\nP30\nand\nP29\nspread, the women were barraged by\nracist death threats. In the years since, they have spoken about the effect of the defendant and co-\nconspirators' lies about them; as\nP30\nexplained in an interview with congressional\n118 GA 1147\n119 GA 1932 at 1:37:18-1:48:33 (Video of Georgia House Committee Hearing 12/10/2020).\n120 GA 1932 at 1:57:10-1:58:00 (Video of Georgia House Committee Hearing 12/10/2020).\n- 25 -\n\nPage 26:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 26 of 165\ninvestigators, \"when someone as powerful as the President of the United States eggs on a mob,\nthat mob will come. They came for us with their cruelty, their threats, their racism, and their hats.\nThey haven't stopped even today.\"121 Indeed, to this day, the defendant has never stopped falsely\nP30\nattacking\nand\nP29\nAlthough none of the false claims against them were ever\ncorroborated, the defendant has continued to levy them on social media, including when the\ndefendant attacked\nP30\nin January 2023 just after her testimony to congressional investigators\nwas made public. 122\nThroughout the post-election period, the defendant used Twitter to publicly attack Georgia\nGovernor\nP17\nwith particular aggression. In the thirty-five days between November 30, 2020,\nand January 3, 2021, the defendant tweeted critically about\nP17\nby name or title, more than\nforty times. These tweets included the ones also attacking\nP16\ndescribed above, as well as\nothers particular to\nP17\nlike, \"Why won't Governor @\nP17\nthe hapless Governor of\nGeorgia, use his emergency powers, which can be easily done, to overrule his obstinate Secretary\nof State, and do a match of signatures on envelopes. It will be a 'goldmine' of fraud, and we will\neasily WIN the state\"123; \"I will easily & quickly win Georgia if Governor @\nP17\no\u013e\nthe Secretary of State permit a simple signature verification. Has not been done and will show\nlarge scale discrepancies. Why are these two 'Republicans' saying no? If we win Georgia,\neverything else falls in place!\"124; \"The Republican Governor of Georgia refuses to do signature\nverification, which would give us an easy win. What's wrong with this guy? What is he\n121 GA 171\n122 GA 966 (Donald J. Trump Truth Social Post 01/03/2023); GA 964 (Donald J. Trump Truth\nSocial Post 01/02/2023); GA 965 (Donald J. Trump Truth Social Post 01/03/2023).\n123 GA 829-830 (Donald J. Trump Tweet 11/30/2020).\n124 GA 850-851 (Donald J. Trump Tweet 12/05/2020).\n- 26 -\n\nPage 27:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 27 of 165\nhiding?\"125; and \"How does Governor\n@\nP17\nallow certification of votes without\nverifying signatures and despite the recently released tape of ballots being stuffed? His poll\nnumbers have dropped like a rock. He is finished as governor!\"126\nIn the post-election period, the defendant also made false claims in court about fraud in\nGeorgia-unsuccessfully. For example, in Trump v. Kemp, a federal lawsuit in which the\ndefendant sued Georgia's Governor and Secretary of State, the defendant signed a verification of\nfraud allegations that he and his attorney on the case,\nCC2\nknew was inaccurate.\nP9\nspoke with the defendant and\nCC2\nin late December regarding the proposed verification. First,\nhe told\nCC2\nand another private attorney,\nP31\nthat they could not have the\nP9\ndefendant sign it because they could not verify any of the facts. 127 And\ntold the\ndefendant that any lawyer that signed the complaint that the verification supported would get\ndisbarred. 128\nCC2\nP32\nacknowledged this problem in an email on December 31 to\nlead counsel for the defendant as candidate in Trump v. Kemp, and another private attorney, writing\nthat in the time since the defendant signed a previous verification in the case, he \"had been made\naware that some of the allegations (and evidence proffered by the experts) has been inaccurate\"\nand that signing a new affirmation \"with that knowledge (and incorporation by reference) would\nnot be accurate.\" 129\nNonetheless, on December 31, the defendant signed the verification, and\nCC2\ncaused it to be filed. 130\n125 GA 857, GA 859 (Donald J. Trump Tweet 12/07/2020).\n126 GA 864 (Donald J. Trump Tweet 12/10/2020).\n127 GA 238-239\n128\nGA 239\n129 GA 1152\n130 Complaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.\n- 27 -\n\nPage 28:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 28 of 165\nOn January 2, Georgia Secretary of State\nP33\nappeared on Fox News and\nsaid that various rumors of election fraud were false, and the defendant had lost in Georgia:\nOur office has been very busy with what I call the rumor whack-a-mole. Every\nday, a rumor will pop up and then we whack it down. What we do is, we basically\nwhack it down with the truth. And people can't handle the truth sometimes because\nthey're very disappointed in the results. And I get that. I voted for President Trump\nalso, but at the end of the day, we did everything we could. We did an audit of the\nrace; President Trump still lost. Then we did a full recount; President Trump still\nlost ... we had a safe, secure process. 131\nP33\nlike\nP17\nhad been on the receiving end of the defendant's Tweets. These\nincluded: \"Why isn't the @GASecofState\nP33\na so-called Republican, allowing\nus to look at signatures on envelopes for verification? We will find tens of thousands of fraudulent\nand illegal votes\"; \"RINOS @\nP17\n@\nP34\nP33\n& Secretary of State\nwill be solely responsible for the potential loss of our two GREAT Senators from\nGeorgia, @\nP27\n& @\nP28\nWon't call a Special Session or check for Signature\nVerification! People are ANGRY !; \" and \"Georgia, where is signature verification approval? What\ndo you have to lose? Must move quickly!\n@\nP17\na\nP34\n@GaSecofState.\"132\nShortly after seeing the interview, the defendant set up a call with\nP33\nto discuss\nhis pending private lawsuit, Trump v. Kemp, in which\nP33\nwas a named defendant. 133\nFor this reason,\nP33\nat first hoped to avoid speaking with the defendant but ultimately\n131\nGA 1949 at 3:22 (Video of\nP33\nInterview with Cavuto 01/02/2021).\n132 GA 813-814 (Donald J. Trump Tweet 11/24/2020); GA 862-863 (Donald J. Trump Tweet\n12/08/2020); GA 865-866 (Donald J. Trump Tweet 12/11/2020).\n133 GA 367-368\n;\nComplaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.\n- 28 -\n\nPage 29:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 29 of 165\nacquiesced because the defendant was persistent in seeking to set it up. 134 Also because of the\npending lawsuit,\nP33\narranged for his general counsel,\nP35\nto participate. 135\nJoining the defendant on the call were Chief of Staff\nP21\nand three private attorneys\nP32\nand\nP36\ncounsel of record in Trump v. Kemp and the attorneys whom\nCC2\nhad\nemailed about the defendant's false verification, and\nP31\nwhom\nP21\nintroduced on the\ncall as someone \"who is not the attorney of record but has been involved.\"\nThe defendant began the call with an animated monologue in which he argued that he had\nwon the election in Georgia, saying, \"Okay, thank you very much. Hello P33\nand\nP35\nand\neverybody. We appreciate the time and the call. So we've spent a lot of time on this, and if we\ncould just go over some of the numbers, I think it's pretty clear that we won. We won very\nsubstantially, uh, Georgia.\"136 Throughout the call, the defendant continued to state that he had\nwon and referenced Biden's margin of victory that he needed to overcome to prevail in the state,\nincluding by asserting that \"I just want to find 11,780 votes.\"137\nHe did not reference other\nelections on the same ballot. After the defendant's opening salvo,\nP33\nstated, \"Well, I\nlistened to what the President has just said. President Trump, we've had several lawsuits, and\nwe've had to respond in court to the lawsuits and the contentions. We don't agree that you have\nwon \"138\nThe defendant raised multiple false claims of election fraud, each of which\nP33\nrefuted in turn. When the defendant attacked\nP30\ncalled her \"a professional vote scammer\n134 GA 514\n135 GA 514-515\n136 GA 1154 (Tr. of\nP33\nCall 01/02/2021).\n137 GA 1165 (Tr. of\nP33\nCall 01/02/2021).\n138 GA 1157 (Tr. of\nP33\nCall 01/02/2021).\n- 29 -\n\nPage 30:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 30 of 165\nand hustler,\"139 and mentioned her dozens of times throughout the call,\nP33\nsaid,\n\"You're talking about the State Farm video. And I think it's extremely unfortunate that\nCC1\nor his people, they sliced and diced that video and took it out of context.\" 140 He then\noffered the defendant a link to a video disproving the claim, to which the defendant responded, \"I\ndon't care about a link, I don't need it. I have a much,\nP33\nI have a much better link.\">141 When\nP33\nsaid, \"Well,\nthe defendant claimed that 5,000 dead people had voted in Georgia,\nMr. President, the challenge you have is the data you have is wrong . .. The actual number were\ntwo. Two. Two people that were dead that voted. And so that's wrong, that was two.\"142 When\nthe defendant claimed that thousands of out-of-state voters had cast ballots,\nP33\ncounsel,\nP35\nresponded, \"We've been going through each of those as well, and those\nnumbers that we got, that Ms.\nP31\nwas just saying, they're not accurate.\"143\nAt one point, the defendant became frustrated after both\nP33\nand\nP35\nexplained repeatedly that his claims had been investigated and were not true and stated, \"And\nyou're gonna to find that they are-which is totally illegal-it's, it's, it's more illegal for you than\nit is for them because, you know what they did and you're not reporting it. That's a criminal, you\nknow, that's a criminal offense. And you know, you can't let that happen. That's a big risk to you\nP35\nstating that he\nand to\nP35\nyour lawyer. That's a big risk.\"144 The call ended with\n139 GA 1155 (Tr. of\nP33\nCall 01/02/2021).\n140 GA 1160 (Tr. of\nP33\nCall 01/02/2021).\n141 GA 1161 (Tr. of\nP33\nCall 01/02/2021).\n142\nGA 1159 (Tr. of\nP33\nCall 01/02/2021).\n143\nGA 1162 (Tr. of\nP33\nCall 01/02/2021).\n144 GA 1165 (Tr. of\nP33\nCall 01/02/2021).\n- 30 -\n\nPage 31:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 31 of 165\nwould coordinate with the lawyer representing\nP33\noffice in the private lawsuit and\nget together with\nP32\nas agreed earlier in the call. 145\nThe day after the call, on January 3, the defendant falsely tweeted, \"I spoke to Secretary of\nState\nP33\nyesterday about Fulton County and voter fraud in Georgia. He was\nunwilling, or unable, to answer questions such as the 'ballots under table' scam, ballot destruction,\nout of state 'voters', dead voters, and more. He has no clue!\" 146\nP33\npromptly\nresponded in a Tweet of his own: \"Respectfully, President Trump: What you're saying is not true.\nThe truth will come out.\"147\n3. Michigan\nOn November 20, three days before Michigan's Governor signed a certificate of\nascertainment appointing Biden's electors based on the popular vote, the defendant met with P37\nand\nP38\nMichigan's Senate Majority Leader and Speaker of the House, at the\nOval Office. 148 The defendant initiated the meeting by asking RNC Chairwoman\nP39\nto reach out to\nP38\nand gauge his receptivity to a meeting. 149\nThe defendant also asked\nP39\nto participate in the meeting, but\nP39\ntold him that she had consulted with her\nattorney and that she could not be involved in a meeting with legislators because it could be\nperceived as lobbying. 150 After\nP39\nmade the first contact, on November 18, the defendant\nreached out to\nP37\nand\nP38\nto extend an invitation. 151 The same day that he contacted\n145 GA 1172-1173 (Tr. of\nP33\nCall 01/02/2021).\n146 GA 919-920 (Donald J. Trump Tweet 01/03/2021).\n147 GA 925\nP33\nTweet 01/03/2021).\n148 GA 555-557, 565\n); GA 15\n149\nGA 70-71\n150 GA 330-337\n151 GA 556-557\n- 31 -\n\nPage 32:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 32 of 165\nP37\nand\nP38\nthe defendant issued a false Tweet: \"In Detroit, there are FAR MORE\nVOTES THAN PEOPLE. Nothing can be done to cure that giant scam. I win Michigan!\" 152\nWhen the defendant called\nP37\nand\nP38\nto invite them to the White House, he did\nnot provide the topic of the meeting, but he did ask about allegations of fraud in the election in\nMichigan. 153 The legislators told him that they and the Michigan legislature were examining the\nallegations. 154\nBoth\nP37\nassumed that the defendant wanted to see them to\ndiscuss claims of election fraud, and they wanted to be firm that they had not seen evidence that\nwould change the outcome of the election. 155 For this reason, and to avoid talking only about\nelection fraud, they prepared materials to raise regarding COVID-19, and planned in advance to\nrelease a statement once the meeting was over that said that the legislators were unaware of\ninformation that would change the outcome of the election. 156\nOver the course of the meeting, the defendant dialed in both\nnot to participate-and\nCC1\n157\nP21\nP39\ndespite her request\nwas present for some, but not all, of the meeting. 158\nAfter some small talk with the legislators in the Oval Office, the defendant raised various fraud\nclaims, including that he had lost Michigan because of fraud or misconduct in Wayne County,\nwhere Detroit is located. 159\nP37\ncorrected the defendant and told him that he had lost primarily\nbecause in two routinely Republican counties, the defendant had underperformed with educated\n152 GA 797-798 (Donald J. Trump Tweet 11/18/2020).\n153\nGA 556-557\n154 GA 558\n155 GA 74-78\n156 GA 75\n157 GA 330-337\n); GA 82\n); GA 560-\n561\n).\n158 GA 361-362\n159 GA 562-564\nand\nP38\n- 32 -\n\nPage 33:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 33 of 165\nfemales, and if he had received the same number of votes there as the two winning local sheriffs,\nhe likely would have won Michigan. 160\nP37\ncould tell by the defendant's body language that\nhe was not happy to hear\nP37\nassessment. 161 Notably, the defendant only raised fraud claims\nto the extent that they affected the outcome in his own race, not those for other offices in\nMichigan. 162\nCC1\nparticipation came after the legislators assured the defendant that they were\nlooking into fraud claims; the defendant dialed\nCC1\ninto the meeting and said, '\nCC1\ntell them\nwhat's going on.\"\nCC1\nthen launched into a fraud monologue. 163 Finally,\nP37\ninterrupted\nand asked, \"So when are you going to file a lawsuit in Michigan?\"-a question that\nignored and did not answer. 164\nCC1\nImmediately after the meeting,\nP37\nand\nP38\nreleased a public statement in which\nthey stated that they had \"not yet been made aware of any information that would change the\noutcome of the election in Michigan.\"165 On November 21, the defendant acknowledged\nP37\nand\nP38\nstatement when he tweeted, \"This is true, but much different than reported by the\nmedia\" and implicitly conceded that he had not provided evidence of fraud yet when he added,\n\"We will show massive and unprecedented fraud!\"166 Days later, the defendant's Campaign\n160 GA 564\n161 GA 563-565\n162 GA 560-571\n); GA 70-94\n163 GA 575\n); GA 567-569\n164\nGA 569\n; GA 575\n165\nGA 1040\nJoint Statement 11/20/2020); GA 94-95\n166 GA 799-800 (Donald J. Trump Tweet 11/21/2020).\n- 33 -\n\nPage 34:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 34 of 165\ndeclined to request a state-wide recount in Michigan, for which it would have had to pay unless\nthe recount succeeded in changing the outcome of the election. 167\nDespite failing to establish any valid fraud claims,\nCC1\nfollowed up with\nP37\nand\nP38\nand attempted to pressure them to use the Michigan legislature to overturn the valid\nelection results. On December 4,\nCC1\nsent a message to\nP38\nclaiming that Georgia was\npoised to do so (based on\nCC1\nand\nCC2\nfalse advocacy there in the December 3 hearing)\nand asked\nP38\nfor help: \"Looks like Georgia may well hold some factual hearings and change\nthe certification under ArtII sec 1 cl 2 of the Constitution. As\nCC2\nexplained they\ndon't just have the right to do it but the obligation. . . . Help me get this done in Michigan.\"168 On\nDecember 7,\nCC1\nattempted to send\nP37\na message (though failed because he typed the\nwrong number into his phone): \"So I need you to pass a joint resolution from the Michigan\nlegislature that states that, * the election is in dispute, * there's an ongoing investigation by the\nLegislature, and * the Electors sent by Governor Whitmer are not the official Electors of the State\nof Michigan and do not fall within the Safe Harbor deadline of Dec 8 under Michigan law.\">169\nCampaign operative\nP5\nwas involved in the drafting of this message with the assistance of\nP41\nwho was associated with the defendant's Campaign efforts in Michigan. 170 The\nfollowing day,\nCC1\nshared the draft with the defendant, sending it to his executive assistant,\nP42\nby email. 171\n167 GA 49-53\n); GA 15-19\n168 GA 1175\n169 GA 1177\n); GA 1178-\n1187\n170 GA 1188\n).\n171 GA 1189\n- 34 -\n\nPage 35:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 35 of 165\nThese efforts failed. On December 14, the day that duly-appointed electors across the\ncountry met and cast their electoral votes,\nP37\nand\nP38\nissued public statements\nconfirming that the defendant had lost Michigan and the legislators still had not received evidence\nof outcome-determinative fraud in their state. 172\nP37\npublic statement included, \"[W]e have\nnot received evidence of fraud on a scale that would change the outcome of the election in\nMichigan.\"173\nP38\nstated, in part:\nWe've diligently examined these reports of fraud to the best of our ability. . . I\nfought hard for President Trump. Nobody wanted him to win more than me. I\nthink he's done an incredible job. But I love our republic, too. I can't fathom\nrisking our norms, traditions and institutions to pass a resolution retroactively\nchanging the electors for Trump, simply because some think there may have been\nenough widespread fraud to give him the win. That's unprecedented for good\nreason. And that's why there is not enough support in the House to cast a new slate\nof electors. I fear we'd lose our country forever. This truly would bring mutually\nassured destruction for every future election in regards to the Electoral College.\nAnd I can't stand for that. I won't. 174\nOn January 3, the defendant's Campaign publicly posted\nP37\nphone number, and\nattempted to post\nP38\n(but erred by one digit), in a Tweet urging, \"Contact Speaker\nP38\n& Senate Majority Leader\nP37\n!\",175\nP37\nreceived four thousand text\nmessages in two hours, forcing him to get a new phone number. 176\n4. Nevada\nOn November 17, in Law v. Whitmer, agents of the defendant in Nevada filed suit, claiming\n\"substantial irregularities, improprieties, and fraud\" in the presidential election, including based\n172 GA 1190-1192\nPress Releases 12/14/2020).\n173 GA 1191\nPress Releases 12/14/2020).\n174 GA 1192\nPress Releases 12/14/2020).\n175 GA 917 (Team Trump Tweet 01/03/2021); GA 918 (Team Trump Tweet 01/03/2021).\n176 GA 573-574, 576-577\n- 35 -\n\nPage 36:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 36 of 165\non machines used in ballot signature matching and votes by non-resident and dead voters. 177 The\ndefendant approved a press conference by his surrogates announcing the suit. 178\nOn November 19,\nP43\nthe RNC Chief Counsel, sent an email to\nP44\nan RNC spokesperson, warning about inaccuracies in the suit: \"Just FYI that I don't\nbelieve the claims in the contest regarding dead voters, those voting from out-of-state, etc. are\nsubstantiated. We are working with the campaign on a data matching project and those numbers\nare going to be a lot lower than what the NV people have come up with. They are also targeting\nour military voters. To be frank, the contest has little chance of succeeding. Happy to discuss this\nstuff if you want more info.\"179\nP44\nthen sent a copy of\nP43\nemail from her personal\nemail account to the personal email account of\nP45\none of the defendant's White House\nstaffers who also volunteered for the Campaign. 180\nNotwithstanding the RNC Chief Counsel's warning, the defendant re-tweeted and\namplified news of the lawsuit on November 24, calling it \"Big News!\" that a Nevada Court had\nagreed to hear it. 181 But the defendant did not similarly promote the fact that within two weeks,\non December 4, the Nevada District Court dismissed Law v. Whitmer, finding in a detailed opinion\nthat \"there is no credible or reliable evidence that the 2020 General Election in Nevada was\naffected by fraud,\" including through the signature-match machines, and that Biden won the\nelection in the state. 182 Four days later, on December 8, Nevada's Supreme Court unanimously\n177 Complaint at 1, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Nov. 17, 2020) available\nat: https://electioncases.osu.edu/wp-content/uploads/2020/11/Law-v-Gloria-Complaint.pdf; GA\n1963 (Video of Trump Campaign Press Conference 11/17/2020).\n178 GA 1193-1194\n179 GA 1195\n).\n180 GA 1196-1197, 1195\n181 GA 817-818 (Donald J. Trump Tweet 11/24/2020).\n182\nOrder at 13-24, 28-34, Law v. Whitmer, No. 20OC001631B (Nev. Dist. Ct. Dec. 4, 2020)\n- 36 -\n\nPage 37:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 37 of 165\naffirmed the District Court's decision, noting that despite its \"earlier order asking appellants to\nidentify specific findings with which they take issue, appellants have not pointed to any\nunsupported factual findings, and we have identified none.\"183\nLater, in his Ellipse speech on\nJanuary 6, the defendant repeated multiple claims explicitly rejected by Nevada courts. 184\nOn December 18, the Nevada Secretary of State's Office released a \"Facts vs. Myths\"\ndocument to combat disinformation that the defendant and others were propagating about the\nelection, including false claims that the Secretary of State's Office had not investigated claims of\nfraud even though it had \"been presented with evidence of wide-spread fraud\"-to which the\nOffice responded, \"While we are pursuing action in a number of isolated cases, we have yet to see\nany evidence of wide-spread fraud.\"185 The \"Facts vs. Myths\" document also stated publicly that\ncourts had universally rejected fraud claims: \"Four separate cases were heard by Nevada judges\nincluding the NV Supreme Court. After examining records presented, each case was discounted\ndue to a lack of evidence.\"186\n5. Pennsylvania\nTwo days after the election, on November 6, the defendant called\nP46\nthe\nChairman of the Pennsylvania Republican Party-the entity responsible for supporting Republican\navailable\nat:\nhttps://electioncases.osu.edu/wp-content/uploads/2020/11/Law-v-Gloria-Order-\nGranting-Motion-to-Dismiss.pdf.\n183 Law v. Whitmer, 136 Nev. 840 (Nev. 2020).\n184\nCompare Order at 18-20, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Dec. 4, 2020)\navailable\nat:\nhttps://electioncases.osu.edu/wp-content/uploads/2020/11/Law-v-Gloria-Order-\nGranting-Motion-to-Dismiss.pdf (finding no support for claims of double ballots, non-resident,\nand deceased voters) with GA 1134-1135 (Ellipse Rally Speech Draft Tr. 01/06/2021) (\"There\nwere also more than 42,000 double votes in Nevada\"; \"1,500 ballots were cast by individuals\nwhose names and dates of birth match Nevada residents who died in 2020 prior to November 3rd\nelection. More than 8,000 votes were cast by individuals who had no address and probably didn't\nlive there.\").\n185 GA 1198 (Nevada Facts vs. Myths 12/18/2020).\n186 GA 1199 (Nevada Facts vs. Myths 12/18/2020).\n- 37 -\n\nPage 38:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 38 of 165\ncandidates in the commonwealth at the federal, state, and local level. 187\nP46\nhad a prior\nrelationship with the defendant, including having represented him in litigation in\nPennsylvania after the 2016 presidential election. 188 The defendant asked\nP46\nhow, without\nfraud, he had gone from winning Pennsylvania on election day to trailing in the days\nafterward. 189\nConsistent with what Campaign staff already had told the defendant,\nP46\nconfirmed that it was not fraud; it was that there were roughly 1,750,000 mail-in ballots still\nbeing counted in Pennsylvania, which were expected to be eighty percent for Biden.190 Over the\nfollowing two months, the defendant spread false claims of fraud in Pennsylvania anyway.\nIn early November, in a Campaign meeting, when the defendant suggested that more\npeople in Pennsylvania voted than had checked in to vote, Deputy Campaign Manager\nP3\ncorrected him. 191 Around the same time, Philadelphia City Commissioner\nP47\nappeared\non television and stated that there was no evidence of widespread fraud in Philadelphia. 192 After\nseeing the interview, the defendant targeted\nP47\nP47\ntweeting, \"A guy named\na\nPhiladelphia Commissioner and so-called Republican (RINO), is being used big time by the Fake\nNews Media to explain how honest things were with respect to the Election in Philadelphia. He\nrefuses to look at a mountain of corruption & dishonesty. We win!\"193 As a result of the\ndefendant's attack, threats that\nP47\nalready was receiving became more targeted and\ndetailed-and included his address and the names of his family members. 194\n187 GA 618-619\n); GA 723-724\n188\nGA 616-617\n189 GA 619-620\n190\nGA 620\n).\n191 GA 159\n192 GA 1953 at 2:20-4:13 (Video of\nP47\nInterview with CNN 11/11/2020).\n193 GA 777-778 (Donald J. Trump Tweet 11/11/2020).\n194 GA 550-551\n- 38 -\n\nPage 39:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 39 of 165\nOn the defendant's behalf,\nCC1\ntoo spread patently false claims about Pennsylvania.\nOn November 25,\nCC1\nand\nP12\nattended an unofficial hearing with Republican state\nlegislators in a Gettysburg hotel conference room. 195 The defendant called in, claimed to have\nbeen watching, and demanded that the election in Pennsylvania \"has to be turned around.\"196\nDuring the event,\nCC1\nfalsely stated that Pennsylvania issued 1.8 million absentee ballots and\nreceived 2.5 million in return. 19\nThe claim was rooted in an obvious error-the comparison of\nthe number of ballots sent out in the primary election to the number of ballots received in the\ngeneral election. After seeing\nCC1\nmake this claim,\nP43\nthe RNC's Chief Counsel,\ntweeted publicly, \"This is not true.\"198 In the following days, Campaign staff internally confirmed\nthat\nCC1\nwas lying; when one Campaign staffer wrote in an email that\nCC1\nclaim was\n\"just wrong\" and \"[t]here's no way to defend it,\"\nP3\nresponded, \"We have been saying this for\na while. It's very frustrating.\"199 Likewise, in late November or December,\nP9\ninformed\nthe defendant directly that a claim\nCC1\nwas spreading, that \"Pennsylvania received 700,000\nmore mail-in ballots than were mailed out,\" was \"bullshit\" and explained the error. 200\nP43\nfollowed up on his public Tweet in a private email on November 28 to\nP44\nthe RNC spokesperson, expressing his concern about\nCC1\nand\nP12\nspread of disinformation:\n\"I'm really not trying to give you a hard time but what CC1\nand\nP12\nare doing is a joke and\nthey are getting laughed out of court. It's setting us back in our fight for election integrity and\n195 GA 1945 (Video of Pennsylvania Hotel Hearing 11/25/2020).\n196 GA 1945 at 2:06:23-2:07:23 (Video of Pennsylvania Hotel Hearing 11/25/2020).\n197 GA 1945 at 2:21:30-2:21:53 (Video of Pennsylvania Hotel Hearing 11/25/2020).\n198\nGA 819\nP43\nTweet 11/25/2020).\n199 GA 1203-1206\n200\nGA 721\nGA 1207-1208\n- 39 -\n\nPage 40:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 40 of 165\nthey are misleading millions of people who have wishful thinking that the president is going to\nsomehow win this thing.\"201\nWhen\nCC1\nlearned of\nP43\nTweet and email, on November\n28, he called\nP43\nand left a threatening voicemail, stating, \"I really do need an explanation for\nwhat you said today because if there isn't a good one, you should resign. Got it? So call me or\nI'll call the boss and get you to resign. Call me. It'd be better for you if you do.\">202\nCC1\nalso\ncontacted RNC Chairwoman\nP39\nto demand that\nP43\nbe fired, and thereafter\nP43\nwas\nrelieved of his duties as RNC Chief Counsel.203\nOn December 3, four Republican leaders of the Pennsylvania legislature issued a public\nletter stating that the General Assembly lacked the authority to overturn the popular vote and\nappoint its own slate of electors, and that doing so would violate the state Election Code and\nConstitution. 204\nP48\nan agent of the defendant who worked closely with\nCC1\nissued a Tweet showing the four legislators' names and signatures and wrote, \"These are the four\ncowardice Pennsylvania legislators that intend to allow the Democrat machine to #Stealthe Vote!\n#Cowards #Liars #Traitors\" while linking to the legislators' Twitter accounts.205 On Sunday\nDecember 6, at 12:56 a.m., from the White House residence-having just returned from a political\nrally in Valdosta, Georgia-the defendant re-tweeted and amplified\nP48\npost. 206\n201\nGA 1209\n202\nGA 1976\n203\nGA 1210-1214\nb); GA\n1215\n); GA 342-346\n204\nGA 1222-1223 (Letter from Pennsylvania Legislators 12/03/2020); GA 173\n205 GA 849\nTweet 12/04/2020).\n206 GA 856, 858 (Donald J. Trump Tweet 12/06/2020).\n- 40 -\n\nPage 41:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 41 of 165\n6. Wisconsin\nOn November 29, a recount that the defendant's Campaign had petitioned and paid for\nconfirmed that Biden had won in Wisconsin-and increased the defendant's margin of defeat.207\nOn December 14, the Wisconsin Supreme Court rejected the Campaign's election lawsuit there. 208\nAs a result, on December 21, Wisconsin's Governor signed a certificate of final determination\nconfirming the prior certificate of ascertainment that established Biden's electors as the valid\nelectors for the state. 209\nIn response, the defendant issued a series of Tweets attacking\nP49\nthe\nWisconsin Supreme Court Justice who had written the majority opinion rejecting his Campaign's\nlawsuit and advocating that the Wisconsin legislature overturn the valid election results:\nTwo years ago, the great people of Wisconsin asked me to endorse a man named\nP49\nfor State Supreme Court Justice, when he was getting destroyed in\nthe Polls against a tough Democrat Candidate who had no chance of losing. After\nmy endorsement,\nP49\neasily won! WOW, he just voted against me in a Big\nCourt Decision on voter fraud (of which there was much!), despite many pages of\ndissent from three highly respected Justices. One thing has nothing to do with\nanother, but we ended up losing 4-3 in a really incorrect ruling! Great Republicans\nin Wisconsin should take these 3 strong decisions to their State Legislators and\noverturn this ridiculous State Election. We won in a LANDSLIDE! 210\nAfter the defendant's Tweet, the state marshals responsible for\nP49\nsafety arranged\nto provide\nP49\nwith additional police protection based on social media traffic and other\nthreatening communications. 211\n207 GA 1224-1225 (Wisconsin Order for Recount 11/19/2020); GA 1226 (Wisconsin Statement of\nCanvass 11/30/2020); Trump v. Biden, 394 Wis. 2d 629, 633 (Wis. 2020).\n208\nTrump v. Biden, 394 Wis. 2d 629, 633 (Wis. 2020).\n209 GA 1235 (Wisconsin Certificate of Ascertainment 11/03/2020).\n210 GA 875, GA 876, GA 877, GA 880, GA 879, and GA 878 (Donald J. Trump Tweets\n12/21/2020).\n211 GA 184-186, GA 188-189\n- 41 -\n\nPage 42:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 42 of 165\n7. Voting Machines in Multiple States\nThroughout the post-election period, the defendant and co-conspirators repeatedly made\nclaims about the security and accuracy of voting machines across multiple states, despite the fact\nthat they were on notice that the claims were false. As early as November 12, for instance, the\nNational Association of Secretaries of State, the National Association of State Election Directors,\nand other coordinated federal, state, and private entities issued a public statement declaring that\nthe 2020 election was \"the most secure in American history\" and that there was \"no evidence that\nany voting system deleted or lost votes, changed votes, or was in any way compromised.\"212\nOn November 14, in the Tweet announcing that\nCC1\nwas to lead his Campaign legal\nefforts, the defendant also named\nCC3\na private attorney who was fixated on voting machine\nclaims, and\nP10\nanother private attorney.213\nTwo days later, on November 16, on the\ndefendant's behalf, executive assistant\nP42\nsent\nCC3\nand other private attorneys an email,\ntitled \"From POTUS,\" attaching a document containing bullet points critical of\nC3\na company that manufactured voting machines used in certain states, and writing, \"See\nattached - Please include as is, or almost as is, in lawsuit.\"214\nCC3\nresponded nine minutes later,\nwriting, \"IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD\nCLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and\nmachines impounded for non-partisan professional inspection.\"215\nOn November 17,\nP50\nthe director of the Department of Homeland Security's\nCybersecurity and Infrastructure Security Agency (CISA), publicly tweeted that a group of private\n212 GA 1236 (Election Security Joint Statement 11/12/2020).\n213\nGA 784-785 (Donald J. Trump Tweet 11/14/2020).\n214 GA 1238-1239\n215 GA 1240\n- 42 -\n\nPage 43:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 43 of 165\nelection security experts concluded that claims of computer-based election fraud \"either have been\nunsubstantiated or are technically incoherent.\"216\nTwo days later, on November 19,\nCC1\nCC3\nP10\nand others held a press\nconference at the RNC headquarters, on behalf of the defendant and his Campaign.217 During it,\nCC3\nmade false and factually impossible claims regarding\nC3\nand the integrity of the\ncountry's election infrastructure.218\nThat night, Fox News television personality\nP51\nstated on air that because of\nCC3\nincendiary comments about voting machines, he had invited\nher on his television program. He further stated, \"[b]ut she never sent us any evidence, despite a\nlot of requests, polite requests. Not a page. When we kept pressing, she got angry and told us to\nstop contacting her. When we checked with others around the Trump Campaign, people in\npositions of authority, they told us\nCC3\nhas never given them any evidence either . . . she never\ndemonstrated that a single actual vote was moved illegitimately by software from one candidate\nto another. Not one.\"219\nThe defendant saw his private attorneys' RNC press conference and\nP51\ndiscussion\nof\nCC3\nand he acknowledged to\nP4\nthat\nCC3\nhad appeared \"unhinged\" in the press\nconference.220\nOn November 20, the day after the press conference, the defendant made a similar\ncomment to\nP7\nand\nP45\ntwo White House staffers who also volunteered for his\nCampaign.221 In casual conversation after another meeting had ended, the defendant told\nP7\n216 GA 790 (\nP50\nTweet 11/17/2020).\n217 GA 1950 (Video of RNC Press Conference 11/19/2020).\n218 GA 1950 at 38:58-52:34 (Video of RNC Press Conference 11/19/2020).\n219 GA 1972 at 9:18-10:02 (Video of\nP51\nShow 11/19/2020).\n220\nGA 391-392\n).\n221 GA 248-249\nGA 528\n- 43 -\n\nPage 44:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 44 of 165\nand\nP45\nthat\nP51\nhad \"eviscerated\" or \"destroyed\"\nCC3\n222\nThe defendant then had a\ncall with\nCC3\non speakerphone, while P7\nand\nP45\nlistened in, and mentioned the\nP51\nsegment to\nCC3\n223\nWhile\nCC3\nresponded, the defendant placed the call on mute and to\nP7\nand\nP45\nmocked and laughed at\nCC3\ncalled her claims \"crazy,\" and made a reference to\nthe science fiction series Star Trek when describing her allegations. 224 In the same time period,\nwhen\nP9\ntold the defendant that\nCC3\nclaims were unreliable and should not be\nincluded in lawsuits, the defendant agreed that he had not seen anything to substantiate\nallegations. 225\nCC3\nOn November 22, notwithstanding the defendant's Tweet from eight days prior announcing\nCC3\ninvolvement,\nCC1\nissued a statement on behalf of the Campaign distancing the\ndefendant from\nCC3\nCC3\nis practicing law on her own. She is not a member of the\nTrump Legal Team. She is also not a lawyer for the President in his personal capacity.\"226\nNonetheless, the defendant continued to support and publicize\nCC3\nknowingly false claims.\nFor example, within days of\nCC1\nstatement, the defendant promoted a lawsuit that\nCC3\nwas about to file, tweeting on November 24, \"BREAKING NEWS: @\nCC3\nsays her\nlawsuit in Georgia could be filed as soon as tomorrow and says there's no way there was anything\nbut widespread election fraud. #MAGA #AmericaFirst #Dobbs.\"227\nCC3\nfiled a lawsuit the next\nday against the Governor of Georgia falsely alleging \"massive election fraud\" accomplished\n222 GA 258-259\n223 GA 256-259\n).\n224 GA 258-260\n225 GA 206\n226 GA 1241 (Trump Campaign Statement 11/22/2020).\n227 GA 815-816 (Donald J. Trump Tweet 11/24/2020).\n- 44 -\n\nPage 45:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 45 of 165\nthrough\nC3\nelection software and hardware.228 The defendant again promoted the lawsuit\nin a Tweet.229 The lawsuit was dismissed within two weeks, on December 7.230\nOn November 29,\nP50\nwho was no longer the CISA Director, appeared on the television\nprogram 60 Minutes.231\nP50\nstated that he was confident that the election had been secure and\n\"that there was no manipulation of the vote on the machine count side.\"232 In response, the\ndefendant tweeted publicly about\nP50\nappearance: \"@60Minutes never asked us for a\ncomment about their ridiculous, one sided story on election security, which is an international joke.\nOur 2020 Election, from poorly rated\nC3\nto a Country FLOODED with unaccounted for\nMail-In ballots, was probably our least secure EVER!\"233 A few days later,\nP10\nappeared\non a radio program as the defendant's agent and said that because of\nP50\ncomments to promote\nconfidence in the security of the election infrastructure,\nP50\n\"should be drawn and quartered.\nTaken out at dawn and shot.\"234\nThereafter,\nP50\nwas subjected to death threats. 23\nIn a press\nconference on December 1 that the defendant acknowledged watching, 236\nP25\na Georgia\nelection official, decried\nP10\nand the defendant's public statements spreading\ndisinformation and said that if they did not stop, \"someone is going to get killed.\"237\n228\nComplaint at 2, Pearson v. Kemp, No. 1:20-cv-4809 (N.D. Ga. Nov. 25, 2020), ECF No. 1.\n229 GA 820-821 (Donald J. Trump Tweet 11/26/2020).\n230 Transcript of Mots. Hr'g at 41-44, Pearson v. Kemp, (N.D. Ga. Dec. 7, 2020), ECF No. 79.\n231 GA 1940 (Video of P50\non 60 Minutes 11/29/2020).\n232 GA 1940 at 4:14-4:19 (Video of P50\non 60 Minutes 11/29/2020).\n233\nGA 825-826 (Donald J. Trump Tweet 11/29/2020).\n234 GA 1887 (Audio of\non\nP10\n11/30/2020).\n235 GA 295-296\n236 GA 841-842 (Donald J. Trump Tweet 12/01/2020).\n237 GA 1961 at 3:32-3:55 (Video of P25\nPress Conference 12/01/2020).\n- 45 -\n\nPage 46:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 46 of 165\nOn December 1, Attorney General\nP52\nstated publicly that the Justice Department\nhad not seen evidence of fraud sufficient to change the election results.238 With respect to voting\nmachines, he said, \"There's been one assertion that would be systemic fraud and that would be the\nclaim that machines were programmed essentially to skew the election results. And the DHS and\nDOJ have looked into that, and so far, we haven't seen anything to substantiate that.\"239\nCC1\nand P12\nimmediately issued a formal Campaign statement attacking\nP52\nand the Justice\nDepartment, writing, \"With all due respect to the Attorney General, there hasn't been any\nsemblance of a Department of Justice Investigation . . . his opinion appears to be without any\nknowledge or investigation of the substantial irregularities and evidence of systemic fraud.\"240\nIn mid-December, the defendant spoke with RNC Chairwoman\nP39\nand asked her to\npublicize and promote a private report that had been released on December 13 that purported to\nidentify flaws in the use of\nC3\nmachines in Antrim County, Michigan. 241\nP39\nrefused, telling the defendant that she already had discussed the report with\nP38\nMichigan's\nSpeaker of the House, who had told her that the report was inaccurate. 242\nconveyed to\nP39\nthe defendant\nP38\nexact assessment: the report was \"fucking nuts.\"243\nOn January 2, during the defendant's call with Georgia Secretary of State\nP33\nsaid of false claims regarding voting machines, \"I don't believe that you're really\nquestioning the\nC3\nmachines. Because we did a hand re-tally, a 100 percent re-tally of all\nthe ballots, and compared them to what the machines said and came up with virtually the same\n238 GA 12-13\n239 GA 1242-1243 (Email from Comms Alert 12/01/2020).\n240\nGA 1244 (Trump Campaign Press Release 12/01/2020).\n241\nGA 338-339\n242 GA 339-341\n).\n243 Id.\n- 46 -\n\nPage 47:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 47 of 165\nresult. Then we did the recount, and we got virtually the same result. So I guess we can probably\ntake that off the table.\"244 In response, the defendant falsely claimed that \"in other states, we think\nwe found tremendous corruption with\nC3\nmachines, but we'll have to see.\"245\nAt the Ellipse on January 6, the defendant and co-conspirators who spoke at the rally\ncontinued to make unsubstantiated and false claims about\nC3\nmachines.\nCC1\nclaimed\nthat in the U.S. Senate run-off election in Georgia the day before, \"the votes were deliberately\nchanged by the same algorithm that was used in cheating President Trump and Vice President\nPence.\"246\nCC2\ncontinued the false attack: \"We now know because we caught it live last time\nin real time, how the machines contributed to that fraud. .\nThey put those ballots in a secret\nfolder in the machines sitting there waiting, until they know how many they need. And then the\nmachine after the close of polls, we now know who's voted. And we know who hasn't. And I can\nnow in that machine match those unvoted ballots with an unvoted voter and put them together in\nthe machine. .\nWe saw it happen in real time last night and it happened on November 3rd as\nwell.\"247\nIn his own speech, the defendant again raised the false specter of \"the highly troubling\nC3\nand lied about machines flipping votes from the defendant\nmatter of\nto Biden and an \"astronomical and astounding\" error rate in the machines' ballot scanning. 248\nD. The Defendant Organized and Caused His Electors to Submit Fraudulent\nCertificates Creating the False Appearance That States Submitted Competing\nElectoral Slates\nBy late November 2020, every effort-both legitimate and illegitimate-that the defendant\nhad made to challenge the results of the election had been unsuccessful. The defendant, his\n244 GA 1889 at 15:58-16:27 (Audio of Trump-\nP33\nP33\nCall 01/02/2021).\n245 GA 1889 at 16:32-17:26 (Audio of Trump-\nCall 01/02/2021).\n246 GA 1928 at 2:22:41-2:23:07 (Video of Ellipse Rally 01/06/2021).\n247 GA 1928 at 2:25:25-22:26:56 (Video of Ellipse Rally 01/06/2021).\n248 GA 1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n- 47 -\n\nPage 48:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 48 of 165\nCampaign, and their allies had lost or withdrawn one election lawsuit after another in the seven\ntargeted states. And the defendant and co-conspirators' efforts to overturn the legitimate vote\ncount through a pressure campaign on state officials, and through false claims made directly to\nstate legislators in formal or pseudo-hearings, continued to fail. So in early December, the\ndefendant and his co-conspirators developed a new plan regarding the targeted states that the\ndefendant had lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and\nWisconsin): to organize the people who would have served as the defendant's electors had he won\nthe popular vote, and cause them to sign and send to Pence, as President of the Senate, certifications\nin which they falsely represented themselves as legitimate electors who had cast electoral votes\nfor the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulent\nelectoral votes-mere pieces of paper without the lawful imprimatur of a state executive-to\nfalsely claim that in his ministerial role presiding over the January 6 certification, Pence had the\nauthority to choose the fraudulent slates over the legitimate ones, or to send the purportedly\n\"dueling\" slates to the state legislatures for consideration anew.\nThe fraudulent elector plan's arc and obstructive purpose is reflected in a series of\nmemoranda drafted in late November and early December by\nCC5\nan attorney who\nvolunteered to assist the defendant's Campaign in lawsuits challenging the election in\nWisconsin. 249 Beginning with a memorandum drafted on November 18,\nCC5\nadvocated that\nthe defendant's elector nominees in Wisconsin meet and cast votes on the date required by the\nECA (in 2020, December 14) in the event that an ongoing recount in the state reversed the\ndefendant's loss there. 250 But this course of action-which\nCC5\nWisconsin memorandum\n249\nGA 1245-1246\nGA 1247-1248\n250 GA 1249-1255\nCC5\nmemo 11/18/2020).\n- 48 -\n\nPage 49:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 49 of 165\npresented as a contingency plan to preserve the possibility that the defendant's electors' votes be\ncounted at the January 6 certification proceeding if he prevailed in the Wisconsin litigation and\nwon the state-quickly transformed into a corrupt strategy to overturn the legitimate election\nresults. 251\nCC5\nrevealed this obstructive plan in two additional memoranda, dated December\n6252 and December 9,253 which proposed that the defendant's elector nominees in six of the targeted\nstates-all but New Mexico, a state the defendant lost by more than ten percent of the popular\nvote, sparsely referenced in his false claims of voter fraud, and did not envision challenging at the\ninception of the elector scheme254_meet on December 14, sign fraudulent certifications, and send\nthem to the Vice President to manufacture a fake controversy during the January 6 congressional\ncertification.\nThe defendant personally set the fraudulent elector plan in motion in early December,\nensured that it was carried out by co-conspirators and Campaign agents in the targeted states, and\nmonitored its progress. By December 5, the defendant was starting to think about Congress's role\nin the election process; for the first time, he mentioned to Pence the possibility of challenging the\nelection results in the House of Representatives. 255 In the same call, Pence told the defendant that\nthe Georgia Bureau of Investigation was investigating their race.256\n251 GA 1256-1259\n252 GA 1260-1265\n253\nGA 1266-1270\nCC5\nCC5\nmemo 12/06/2020).\nmemo 12/09/2020).\n254 GA 1271\nCertificate of Ascertainment); GA 1273-1282\n1\n255\nGA 1283-1284\nGA 436-437\nGA 1019 (Pence, So Help Me God, p. 433).\n256\nGA 1283-1284\nGA 438-439\n); GA 1272 (New Mexico\n- 49 -\n\nPage 50:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 50 of 165\nOn December 6, the same day that\nCC5\nput the plan on paper, 257 the defendant and\nCC2\ncalled RNC Chairwoman\nP39\nout of the blue. 258\nP39\ndid not know\nCC2\nand the defendant introduced him to\nP39\nby saying that he was a professor and lawyer;\nthereafter,\nCC2\nwas the primary speaker during the conversation. 259\nCC2\ntold\nP39\nthat he and the defendant wanted the RNC \"to help the campaign assemble the electors in the states\nwhere we had legal challenges, or litigation that was ongoing . .. in case any of that litigation\nchanged the result of a state so that it would meet the constitutional requirement of electors\nmeeting.\"260\nWhen the call ended,\nP39\nimmediately called\nP3\none of the defendant's\ndeputy Campaign managers, and relayed her conversation with the defendant and\nCC2\n261\nAfter\nP3\nassured\nP39\nthat the Campaign was \"on it,\"\nP39\ncalled the defendant back\nand told him so.262 On the same day, from his personal email account,\nP21\nforwarded to\nCampaign staff\nCC5\nNovember 18 memorandum and wrote, \"We just need to have someone\ncoordinating the electors for states.\"263 And the following day, on the evening of December 7,\nCC1\nP39\nsent\na text message stating in part, \"I have lawyers assigned in each state\nworking on Dec 14 electors meeting and what they need. I will send you a list.\">264\nThe defendant's co-conspirators worked with his Campaign staff, and used his pre-election\nCampaign apparatus, to execute the fraudulent elector plan.265 The defendant communicated with\n257\nGA 1260-1265\nCC5\nmemo 12/06/2020).\n258\nGA 323-325\n259\nGA 324-325\n260\nGA 325\n261\nGA 325-327\n262\nGA 326-327\n263\nGA 1285\n264 GA 1286-1287\n265\nGA 1288-1290\nGA 1247\n- 50 -\n\nPage 51:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 51 of 165\nCC1\nand\nCC2\nabout the plan, 266 and they in turn communicated with\nCC6\nand\nCC5\n267\nUltimately,\nP5\nP19\nand other Campaign staff and agents helped carry out\nCC5\nplans. 268\nOn December 8,\nCC5\nspoke on the phone with\nP53\n269\na private attorney\nwhom\nCC1\nand\nCC6\nhad identified as a contact for the plan in Arizona.270 Following the\ncall,\nP53\nrecounted the conversation in an email:\nI just talked to the gentleman who did that memo,\nHis idea is\nbasically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes\n(even though the votes aren't legal under federal law - because they're not signed\nby Governor); so that members of Congress can fight about whether they should be\ncounted on January 6th. (They could potentially argue that they're not bound by\nfederal law because they're Congress and make the law, etc.) Kind of wild/creative\n- I'm happy to discuss. My comment to him is that I guess there's no harm in it,\n(legally at least) - i.e. we would just be sending in \"fake\" electoral votes to Pence\nso that \"someone\" in Congress can make an objection when they start counting\nvotes, and start arguing that the \"fake\" votes should be counted.271\nOn December 9,\nCC6\ncontacted\nP39\nfor assistance with a request from\nCC5\nfor \"a list of our electors in each state and copies of the certificates sent in 4 years ago.\"272\nP39\nresponded that Campaign employees were already assisting in the effort and referred\nCC6\nto\nP3\n273\nThe next day, at\nCC1\ndirection,\nCC5\ngenerated directions to the\n266 GA 1291-1295\nD\n267\nGA 1296-1299\nGA 1300-1309\n).\n268\nGA 1312-1317 (\n1320\n); GA 1318-\n); GA 1321-1324\n269\nGA 1296-1299\n270 GA 1325\n271\nGA 1296-1299\n272 GA 1326-1327\n273 GA 1288-1290\n- 51 -\nCC5\n\nPage 52:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 52 of 165\nelectors in all of the targeted states except for Wisconsin (which had already received his memos)\nand New Mexico (which he had not yet been asked to do) on how best to mimic the manner in\nwhich valid electors were required by state law to gather and vote, along with fraudulent\ncertificates of vote for the defendant's electors to sign. 274\nThe day before the defendant's electors were scheduled to meet and sign fraudulent\ncertificates of vote, the defendant asked Campaign advisor\nP4\nfor an update on the elector plan\nand directed\nP4\nto issue a statement, and\nCC1\nasked\nP4\nto participate in a messaging\nconference call.275\nP4\ndiscussed these developments in a text thread with\nP3\nCampaign Staffer\nP54\nand\nP9\nAfter\nP4\nproposed a communications plan\nfor the Campaign on the elector vote,\nP9\nwrote to\n\"I'll call soon and we'll talk\nwith boss.\"276 The participants then discussed to whom a Campaign statement could be attributed.\nP3\nwrote, \"Here's the thing the way this has morphed it's a crazy play so I don't know who\nwants to put their name on it.\"277\nP4\nthen shared with those on the text thread the invitees to\nthe call\nCC1\nwas convening-\nCC1\nCC6\nP12\nP19\nP55\nand\nP56\nand derogatorily referred to them as the \"Star Wars bar,\" meaning a motley assortment of\ncharacters, and in this case specifically ones whose professional competence\nP4\ndoubted and\n274\nGA 1328\nGA 1310-1311\n); GA 1321-1324\n); GA 1334-1335\nGA 1336-\n1338\nGA 1339-1341\nto\nGA 1342-1344\nGA 1345-1346\n275 GA 1300\nGA 394-395\n).\n276 GA 1301\n277 GA 1304\nP3\n- 52 -\n\nPage 53:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 53 of 165\nwhom he personally would not choose to hire.278\nP9\nresponded, \"Certifying illegal\nvotes.\"279\nThereafter, the text participants collectively agreed that no message would go out under\ntheir names because they \"can't stand by it.\"280 In the midst of these text messages,\nP9\nP4\nand\nP3\nhad a nineteen-minute phone call with the defendant. 281\nIn practice, the fraudulent elector plan played out somewhat differently in each targeted\nstate. In general, the co-conspirators deceived the defendant's elector nominees in the same way\nthat the defendant and\nCC2\ndeceived\nP39\nby falsely claiming that their electoral votes\nwould be used only if ongoing litigation were resolved in the defendant's favor.282 A select few\nof the defendant's agents and elector nominees, however, had insight into the ultimate plan to use\nthe fraudulent elector certificates to disrupt the congressional certification on January 6.283 In\nseveral states, the defendant, his co-conspirators, and agents were unable to convince all of the\ndefendant's elector nominees to participate. 284\nP57\nfor instance, a former U.S.\nRepresentative and U.S. Attorney and one of the defendant's elector nominees in Pennsylvania\nwho opted out of the plan, told the state party vice chair trying to organize the defendant's electors\n278\nGA 1305-1306\nGA 396-397 (\n279\nGA 1306\n).\n280 GA 1308\n281\nGA 744\n).\n282\nGA 1347-1349\n); GA\n1350-1356\n2020); GA 97-98\n);\nGA 517-518\n283 GA 1888 at 3:15-4:32\n2020); GA 1296-1299\n284\nSee, e.g., GA 625-633\n); GA 320-321\nGA 265\n); GA 1362-1365 (Fraudulent \"Georgia's Electoral Votes for\nPresident and Vice President\"); GA 1372-1373 (Fraudulent \"Michigan's Electoral Votes for\nPresident and Vice President\"); GA 1383-1389 (Fraudulent \"Pennsylvania's Electoral Votes for\nPresident and Vice President\").\n- 53 -\n\nPage 54:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 54 of 165\nthat he would not participate because the plan did not follow the proper process and was illegal.285\nWhen electors like\nP57\ndeclined, the conspirators and agents had to recruit substitutes willing\nto go along with the plan.286 Other electors who participated based on the conspirators' false\nassurances that their votes were only a contingency were later surprised to learn that they were\nused on January 6-and would not have agreed to participate if the conspirators had been truthful\nabout their plan. 287\nIn Pennsylvania, the defendant's elector nominees' concern about the propriety of the plan\npresented a problem for the conspirators. In text messages that\nP5\nand\nCC6\nexchanged\non December 11 into the early morning hours of December 12,\nP5\ntold\nCC6\nthat\nP46\nthe state Republican Party Chairman whom the defendant had called shortly after the election288\n\"is winding up the electors. Telling them if the[y] sign the petition they could be prosecuted.\nNeed a counter argument or someone has to call him and tell him to stop.\"289\nCC6\n\"Have someone who knows him call him to tell him to stop.\"290\nP5\nreplied, \"That's the plan.\nPA is squishy right now. Going to need a call with\nCC1\ntomorrow \"291\nOn December 12,\nCC1\nCC5\nCC6\nand others held a conference call\norganized by the Campaign to placate the defendant's Pennsylvania electors. 292\nCC1\nfalsely\n285\nGA 320-321\n286\nGA 519-520\n024).\n287\nGA 164-165\n); GA 522-523\n, GA 488-\n495\n).\n288\nGA 618-619\nGA 723-724, GA 726\n1\n289\nGA 1318\n290 GA 1319\n291 Id.\n292\nGA 1394-1398\nGA 1399\n- 54 -\nresponded,\n\nPage 55:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 55 of 165\nassured them that their certificates of vote would be used only if the defendant succeeded in\nlitigation.293 During the call, some of the defendant's conspirators and agents exchanged text\nmessages expressing frustration at the electors' concerns. 294\nP5\nwrote, \"Whoever selected\nthis slate should be shot.\"\nP12\nresponded, \"These people are making this so much more\ncomplicated than it needs to be omg\" and \"We couldn't have found 20 people better than this ??? \"\nP5\nagreed, writing, \"We need good substitutes.\"295\nWhen the possibility arose that the\nelectors' certificates of vote include conditional language making clear that they were not yet the\nduly-appointed electors,\nP5\nwrote, \"The other States are signing what\nCC5\nprepared -\nif it gets out we changed the language for PA it could snowball.\"296\nOn December 13, the eve of when the electors were to meet, the defendant was preoccupied\nwith preventing the certification of the electoral vote. He tweeted: \"Swing States that have found\nmassive VOTER FRAUD, which is all of them, CANNOT LEGALLY CERTIFY these votes as\ncomplete & correct without committing a severely punishable crime. Everybody knows that dead\npeople, below age people, illegal immigrants, fake signatures, prisoners, and many others voted\nillegally. Also, machine 'glitches' (another word for FRAUD), ballot harvesting, non-resident\nvoters, fake ballots, 'stuffing the ballot box', votes for pay, roughed up Republican Poll Watchers,\nand sometimes even more votes than people voting, took place in Detroit, Philadelphia,\nMilwaukee, Atlanta, Pittsburgh, and elsewhere. In all Swing State cases, there are far more votes\n293\nGA 743\nGA 1400\nGA 621\n294\nGA 1407\n295\nGA 1407-1408\n296\nGA 1408\n- 55 -\n\nPage 56:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 56 of 165\nthan are necessary to win the State, and the Election itself. Therefore, VOTES CANNOT BE\nCERTIFIED. THIS ELECTION IS UNDER PROTEST!\"297\nUltimately, the Pennsylvania electors insisted upon using conditional language in their\nelector certificates to avoid falsely certifying that they were duly-appointed electors.298 And in\nNew Mexico-the state that\nCC5\n's memoranda did not even address299-the defendant's\nCampaign filed a pretextual lawsuit just minutes before the fraudulent electors met so that there\nwas litigation pending at the time of the vote.300 Notwithstanding obstacles, the defendant and his\nco-conspirators successfully organized his elector nominees and substitutes to gather on December\n14 in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulent\nvotes to Washington, D.C., in order to falsely claim at the congressional certification that certain\nstates had sent competing slates of electors.301\nWhen possible, the defendant and co-conspirators tried to have the fake electoral votes\nappear to be in compliance with state law governing how legitimate electors vote.302 For example,\n297 GA 867-872 (Donald J. Trump Tweets 12/13/2020).\n298 GA 1407-1408\n); GA 1409-1410\n); GA 1411-1412\n); GA 1413-1415\nGA 622-625\n299\nGA 1416\nGA 1273-1282\n300 GA 1417-1419\n301 GA 1420-1424 (Fraudulent \"Arizona's Electoral Votes for President and Vice President\"); GA\n1357-1368 (Fraudulent \"Georgia's Electoral Votes for President and Vice President\"); GA 1369-\n1379 (Fraudulent \"Michigan's Electoral Votes for President and Vice President\"); GA 1425-1444\n(Fraudulent \"Nevada's Electoral Votes for President and Vice President\"); GA 1445-1450\n(Fraudulent \"New Mexico's Electoral Votes for President and Vice President\"); GA 1380-1393\n(Fraudulent \"Pennsylvania's Electoral Votes for President and Vice President\"); GA 1451-1457\n(Fraudulent \"Wisconsin's Electoral Votes for President and Vice President\"); GA 1458-1472\n302 GA 1266-1270\nCC5\nmemo 12/09/2020).\n- 56 -\n\nPage 57:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 57 of 165\nthe co-conspirators knew that some states required that the duly-appointed electors meet and cast\ntheir votes in the state capitol building. 303\nTo make it seem like they had complied with this\nrequirement, state officials were enlisted to provide the fraudulent electors with access to state\ncapitol buildings so that they could gather and vote there. 304\nIn many cases, however, the\nconspirators and fraudulent electors were unable to comply with state law for legitimate electors. 305\nFor example, Pennsylvania law required the Governor to give notice whenever an elector was\nsubstituted, but the conspirators could not arrange for the Governor to give notice when\nP46\nand\nothers opted out and had to be replaced. 306 Thereafter,\nCC5\nand others brainstormed fake\nexcuses for their failure to follow state law, writing, \"maybe we can use Covid19 as an excuse for\nthe Governor not giving notice.\"307\nThen, on December 14-the date that duly-appointed electors across the country met to\ncast their votes, and when the defendant's fraudulent electors in seven states mimicked them-\n-\nP39\nfollowed up with the defendant.308 When she received an internal RNC email titled\n\"Electors Recap - Final,\" which summarized the day's activities with respect to electors and\nincluded a list of six \"contested\" states in which the defendant's electors voted, she forwarded it\nto the defendant's executive assistant,\nP42\nwho responded, \"It's in front of him!\"309\n303\nGA 1268-1270\nCC5\nmemo 12/09/2020).\n304 GA 1473-1475\n); GA 1458-1472(\n; GA 1476 (\n305\nGA 1458-1472\n306 GA 1270 (\nCC5\nmemo 12/09/2020); GA 1390 (Fraudulent \"Pennsylvania's Electoral Votes\nfor President and Vice President\").\n307 GA 1477-1482\n308\nGA 328-329\n309 Id; see also GA 1483-1484\n- 57 -\n\nPage 58:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 58 of 165\nP39\nalso called the defendant to tell him that she had sent him the update, 310 and she spoke\nto\nCC1\nshortly before\nCC1\nspoke to the defendant.311\nAt the same time that the defendant's fraudulent electors were preparing to gather and cast\nfraudulent votes, the defendant's co-conspirators began planning how to use the fraudulent votes\nto overturn the election results at the January 6 certification. On December 13,\nCC5\nsent\nCC1\na memorandum that envisioned a scenario in which Pence would use the fraudulent slates\nas a pretext to claim that there were dueling slates of electors from the targeted states and negotiate\na solution to defeat Biden.312 On the same day, the defendant resumed almost daily direct contact\nwith\nP1\nwho maintained a podcast that disseminated the defendant's false fraud claims.313\nOn December 14,\nP1\npodcast focused on spreading lies about the defendant's fraudulent\nelectors-including the false claim that their votes were merely a contingency in the event the\ndefendant won legal challenges in the targeted states. 314\nOn December 16,\nCC5\ntraveled to Washington with a group of private attorneys who\nhad done work for the defendant's Campaign in Wisconsin for a photo opportunity with the\ndefendant in the Oval Office.315 During the encounter, the defendant complained about Wisconsin\n310 GA 329\n311 GA 745\n); GA 1485\n312 GA 1486\n); GA 1487-1493\n).\n313\nSee, e.g., GA 744\n); GA 749\n); GA 750\n); GA 751\n); GA 753\n); GA 756\n); GA 758-759\n); GA 763\n); GA 764\n); GA 765\n); GA 768, 770\n); GA 771\n314 GA 1979\n315\nGA 1494\nGA 1495\n); GA 1498-1500\n- 58 -\n\nPage 59:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 59 of 165\nSupreme Court Justice\nP49\nwho two days earlier had cast the deciding vote in rejecting the\ndefendant's election challenge in the state. 316\nAs the group was leaving, the defendant spoke\ndirectly-and privately-to\nCC5\n317\nAs late as early January, the conspirators attempted to keep the full nature of the fraudulent\nelector plan secret. On January 3, for instance, in a private text message exchange,\nCC6\nwrote\nto\nCC5\n\"Careful with your texts on text groups. No reason to text things about electors to\nanyone but\nCC2\nand me.\"\nCC5\nresponded, \"K,\" and\nCC6\nfollowed up, \"I'm\nprobably a bit paranoid haha.\"\nCC5\nwrote, \"A valuable trait!\"318\nE. The Defendant Attempted to Persuade Pence to Reject Votes Cast by Duly-\nAppointed Electors and Choose the Defendant's Fraudulent Ones\nAs the defendant's various attempts to target the states failed, and the January 6\ncongressional certification approached, the defendant and co-conspirators turned their attention to\nPence, who as President of the Senate presided over the certification proceeding. In service of a\nnew plan-to enlist Pence to use his role to fraudulently alter the election results at the January 6\ncertification proceeding-the defendant and his co-conspirators again used deceit. They lied to\nPence, telling him that there was substantial election fraud and concealing their orchestration of\nthe plan to manufacture fraudulent elector slates, as well as their intention to use the fake slates to\nattempt to obstruct the congressional certification. And they lied to the public, falsely claiming\nthat Pence had the authority during the certification proceeding to reject electoral votes, send them\nGA 746\nGA 747-748\n); GA 100-101\n316\nGA 497-498\n).\n317 GA 498-500\n).\n318 GA 1501-1502\n- 59 -\n\nPage 60:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 60 of 165\nback to the states, or overturn the election-and that Pence agreed he had these boundless powers.\nWith these lies, the defendant created the tinderbox that he purposely ignited on January 6.\nThe defendant first publicly turned his sights toward January 6 in the early morning hours\nof December 19. At 1:42 a.m., the defendant posted on Twitter a copy of a report falsely alleging\nfraud and wrote, \". . . Statistically impossible to have lost the 2020 Election. Big protest in D.C.\non January 6th. Be there, will be wild!\"319\nWhen\nCC5\nlearned about the Tweet, he sent a\nlink about it to another of the Wisconsin attorneys who had met with the defendant in the Oval\nOffice on December 16 and wrote, \"Wow. Based on 3 days ago, I think we have unique\nunderstanding of this.\"320 Later on December 19, the defendant called Pence and told him of plans\nfor a rally on January 6 and said that he thought it would be a \"big day\" and good to have lots of\ntheir supporters in town. 321\nThe defendant and his co-conspirators recognized that Pence, by virtue of his ministerial\nrole presiding over the January 6 congressional certification, would need to be a key part of their\nplan to obstruct the certification proceeding. On December 23, in a memorandum drafted with\nCC5\nassistance,\nCC2\noutlined a plan for Pence to \"gavel\" in the defendant as the winner\nof the election based on the false claim that \"7 states have transmitted dual slates of electors to the\nPresident of the Senate,\" and proposed that Pence announce that \"because of the ongoing disputes\nin the 7 States, there are no electors that can be deemed validly appointed in those States.\"322\n319 GA 873-874 (Donald J. Trump Tweet 12/19/2020).\n320\nGA 1504(\n321 GA 440-441\nGA 1020 (Pence, So Help Me God p. 437).\n322\nGA 1506-1508\n); GA 1509\n; GA 1510-1512\nGA 1513-1515\n- 60 -\n\nPage 61:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 61 of 165\nCC2\nemphasized concealment, writing that \"the main thing here\" was that Pence act without\n\"asking for permission-either from a vote of the Joint Session or from the Court.\"323\nCC2\nmemorandum stood in stark contrast to concessions he had previously made\nabout the Vice President's lack of authority in the certification proceeding. Two months earlier,\non October 11, he had written to a colleague that neither the Constitution nor the ECA provided\nthe Vice President with discretion in the counting of electoral votes or permitted him to \"make the\ndetermination on his own.\"324\nAnd just one day earlier, on December 22, when asked by other\nprivate attorneys to provide views on a draft complaint that would, if filed, have raised the issue\nof the Vice President's authority on January 6,\nCC2\nhad recommended that the complaint not\nbe filed. 325 He wrote that \"the risk of getting a court ruling that Pence has no authority to reject\nthe Biden-certified ballots [is] very high.\"326\nOn the evening of December 23, after\nCC1\nshared\nCC2\nand\nCC5\nplan with\nthe defendant, the defendant publicly re-tweeted a document called \"Operation Pence Card,\"\nwhich, like\nCC2\nmemorandum, advocated that Pence block the lawful certification of the\nlegitimate electoral votes. 327 Also on December 23,\nCC2\nP42\nemailed\nasking to speak to\nthe defendant \"to update him on our overall strategic thinking.\"328 The following day, December\n323 GA 1515\n324 GA 1517\n325\nGA 1521\n326 Id.\n327\nGA 1005\nGA 752, 754\n); GA 1523\n); GA 883 (Donald J. Trump Tweet 12/23/2020); GA 449 (\nGA 1022-1023 (Pence, So Help Me God p. 439-40); see also GA 1524-1527 (\n328\nGA 1528\n- 61 -\n\nPage 62:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 62 of 165\n24, the defendant called\nCC2\nand they spoke for forty minutes. 329 Then on December 25,\nCC5\nproposed in a text message to\nCC2\nand\nCC6\nthat Pence permit an unlimited\nfilibuster of the certification, in violation of the ECA, and ultimately gavel in the defendant as\npresident.330 When\nCC2\nasked, \"Is Pence really likely to be on board with this?\"\nCC6\nresponded, \"Let's keep this off text for now.\"331\nFrom that point on, the conspirators plotted to manipulate Pence.\nCC1\nCC2\nand\nP1\nworked in concert to enlist Pence to act unlawfully, and to rachet up public\npressure from the defendant's supporters that he do so. The defendant began to directly and\nrepeatedly pressure Pence at the same time that he continued summoning his supporters to amass\nin Washington, D.C., on the day of the congressional certification. On December 25, when Pence\ncalled the defendant to wish him a Merry Christmas, the defendant raised the certification and told\nPence that he had discretion in his role as President of the Senate. 332\nPence emphatically\nresponded, \"You know I don't think I have the authority to change the outcome.\"333 The next day,\nthe defendant tweeted, \"Never give up. See everyone in D.C. on January 6th.\"334 He also tweeted\nfalse fraud claims: \"Time for Republican Senators to step up and fight for the Presidency, like the\nDemocrats would do if they had actually won. The proof is irrefutable! Massive late night mail-\nin ballot drops in swing states, stuffing the ballot boxes (on video), double voters, dead voters,\nfake signatures, illegal immigrant voters, banned Republican vote watchers, MORE VOTES\nTHAN ACTUAL VOTERS (check out Detroit & Philadelphia), and much more. The numbers\n329 GA 755\n330 GA 1529\n331 Id.\n332 GA 450-452\nGA 1024-1025 (Pence, So Help Me God p. 441-42).\n333 Id.\n334 GA 886-887 (Donald J. Trump Tweet 12/26/2020).\n- 62 -\nCC6\n\nPage 63:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 63 of 165\nare far greater than what is necessary to win the individual swing states, and cannot even be\ncontested. Courts are bad, the FBI and 'Justice' didn't do their job, and the United States Election\nSystem looks like that of a third world country. Freedom of the press has been gone for a long\ntime, it is Fake News, and now we have Big Tech (with Section 230) to deal with. But when it is\nall over, and this period of time becomes just another ugly chapter in our Country's history, WE\nWILL WIN !!! \"335\nOn December 28,\nCC2\nCC5\nand\nCC6\nexchanged text messages in which\nCC2\nexpressed concern that Gohmert v. Pence-a lawsuit filed the day before that asserted\nthat Pence had discretion to choose electoral votes during the certification proceeding-would\nprompt a federal court to publicly reject, and thus preclude, the plan that the conspirators were\nadvancing in private. 336 Thereafter, at 11:00 a.m. on January 1, the defendant called Pence to\nberate him because he had learned that Pence had filed a brief opposing the relief sought in\nGohmert.337 When Pence explained, as he had before, that he did not believe that he had the power\nunder the Constitution to decide which votes to accept, the defendant told him that \"hundreds of\nthousands\" of people \"are gonna hate your guts\" and \"people are gonna think you're stupid,\" and\nberated him pointedly, \"You're too honest.\"338\nImmediately before the call, the defendant had\nspoken separately to\nCC1\n(from 10:06 a.m. to 10:14 a.m.) and\nP1\n(from 10:36 a.m. to\n10:46 a.m.), and late that afternoon, the defendant spoke separately with\nP1\nCC2\nand\n335 GA 888-895 (Donald J. Trump Tweet 12/26/2020).\n336\nGA 1530-1531\n337\nGA 453\nGA 1026-1027 (Pence, So Help Me God p. 446-47); GA\n758\n338 GA 1026 (Pence, So Help Me God p. 446).\n- 63 -\n\nPage 64:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 64 of 165\nCC1\n339\nWithin hours of the call with Pence, the defendant reminded supporters to travel to\nWashington for the certification proceeding, tweeting, \"The BIG Protest Rally in Washington,\nD.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!\"340\nThe next day, on January 2,\nCC1\nCC2\nand\nCC6\nappeared on\nP1\npodcast.341 When\nP1\nasked whether the January 6 certification would be \"a climactic battle,\"\nCC2\nresponded that \"a lot of that depends on the courage and the spine of the individuals\ninvolved.\"342 The defendant spoke to\nCC1\nshortly after his appearance on the podcast. 343 That\nafternoon,\nCC6\nworked to arrange a meeting among the defendant,\nCC2\nand Pence in\norder to enlist Pence to misuse his role as President of the Senate at the certification proceeding. 344\nWhen\nCC6\ntexted\nP1\nabout the meeting,\nP1\nwho had just finished a phone call\nwith the defendant-reiterated that the defendant wanted Pence \"briefed\" by\nCC2\nimmediately.345 Thereafter, the defendant called Pence, informing him \"that he had spent the day\nspeaking to a secretary of state, state legislators, and members of Congress.\"346 (As described\nsupra pp. 29-31, the defendant spoke with Georgia Secretary of State\nP33\nthe same day.)\nOn the call with Pence, the defendant said he had learned that a U.S. Senator was going to propose\na ten-day delay in the certification proceeding, and told Pence, \"you can make the decision\" to\n339 GA 757-760\n340\nGA 905-906 (Donald J. Trump Tweet 01/01/2021).\n341\nGA 1981\n342 GA 1981 at 24:56-25:40\n343 GA 761-762\n).\n344\nGA 1006-1008, 1011-1014\n345 GA 763\n); GA 1007\n346\nGA 1027 (Pence, So Help Me God p. 447); GA 1532-1533\n- 64 -\n\nPage 65:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 65 of 165\ndelay the count for ten days. 347 The defendant then referred Pence to\nCC2\nfor the first time\nand asked if Pence would meet with him. 348\nOn January 3, the defendant again told Pence that at the certification proceeding, Pence\nhad the absolute right to reject electoral votes and the ability to overturn the election. 349 Pence\nresponded that he had no such authority, and that a federal appeals court had rejected a lawsuit\nmaking that claim the previous day.350 Then, the defendant took to Twitter to again falsely claim\nthat fraud had permeated the election: \"Sorry, but the number of votes in the Swing States that we\nare talking about is VERY LARGE and totally OUTCOME DETERMINATIVE! Only the\nDemocrats and some RINO'S would dare dispute this - even though they know it is true!\"351 The\nsame day,\nCC2\ncirculated a second memorandum that included a new plan under which, in\nviolation of the ECA, the Vice President would send the elector slates to the state legislatures to\ndetermine which slate to count. 352\nThe meeting that\nCC6\nhad organized so that the defendant and\nCC2\ncould enlist\nPence to reject Biden's legitimate electoral votes was scheduled late in the afternoon of January\n4.353 In advance of the meeting,\nCC1\nCC2\nCC6\nand\nP1\ngathered at the Willard\nHotel near the White House, and from there,\nCC1\ncalled and spoke with the defendant. 354\n347 Id.\n348 Id.\n349\nGA 454-456\nGA 1534-1536\n350\nId.\n351\nGA 926-927 (Donald J. Trump Tweet 01/03/2021).\n352 GA 1537-1543\n353\nGA 1007-1012\nGA 766\n354\nGA 1904 at row 909\n); GA 1011\n1544-1546\nGA 765\n); GA 1547-1548\nD; GA\n- 65 -\n\nPage 66:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 66 of 165\nWhen\nCC2\narrived at the White House for the meeting,\nP9\nconfronted\nCC2\nabout\nthe legal basis for his proposal.355\nP9\nwent line by line through\nCC2\ns second memo,\nand\nCC2\nconceded that no court would support it; in response,\nP9\nwarned\nCC2\nthat pressing his admittedly unlawful plan would cause \"riots in the streets.\"356\nP9\nthen\nspoke to the defendant, telling him that the theory that\nCC2\nand others were promoting would\nnot work, and that\nCC2\nhad acknowledged that it was \"not going to work\"; the defendant\nresponded, \"other people disagree\" but did not identify those other people. 357\nP9\nalso\npointed out to the defendant that\nCC2\n's theory regarding a strategic Democratic plan to subvert\nthe election was inconsistent with other allegations that had been floating around about\nC3\nand foreign interference.358\nThe meeting among the defendant,\nCC2\nPence, and Pence staffers\nP8\nand P58\nbegan around 4:45 p.m.359 No one from the defendant's White House Counsel's Office\nattended.360 During the meeting, the defendant asked\nCC2\nto explain his plan to Pence. 361\nCC2\npresented two options: Pence could unilaterally decide objections to electors, or\nalternatively, in the plan that\nCC2\nhad devised the prior day, Pence could send the elector\nslates to the targeted states' legislatures to determine which electors' votes should be counted.362\nIn the defendant's presence, in response to Pence's questioning,\nCC2\nadmitted that the ECA\n355 GA 215-221\nGA 1901 at row 5745\nGA 766\n356 GA 215-218\n357\nGA 219-223\n358\nGA 224\n359 GA 766\n); GA 274-275\n360 GA 120-121\n361 GA 276-277\n); GA 579-580\n362 GA 276-277\n); GA 580-585\n- 66 -\n\nPage 67:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 67 of 165\nforbade what he proposed and that no one had tested\nCC2\nnew plan to send elector slates to\nstate legislatures for review.363 Nonetheless, the defendant repeatedly expressed a preference that\nPence unilaterally reject valid elector slates. 364\nThroughout the meeting, the defendant repeated his knowingly false fraud claims as a\npurported basis for Pence to act illegally. Pence's five pages of contemporaneous notes from the\nmeeting reflect that the defendant said, \"when there's fraud the rules get changed\"; \"bottom line -\nwon every state by 100,000s of votes\"; \"this whole thing is up to MP\"; \"has to do w/you - you can\nbe bold\"; and \"r[igh]t to do whatever you want to do.\"365 The meeting concluded with Pence\nfirm and clear-telling the defendant \"I'm not seeing this argument working.\"366 Nonetheless, the\ndefendant requested that Pence's staff meet with\nCC2\nagain to discuss further, and Pence\nagreed.367\nThe conspirators were undeterred. Immediately after leaving the White House,\nCC2\ngathered with\nCC6\nand\nP1\nback at the Willard Hotel.368 Over the days that followed,\nthese conspirators strategized on how\ncould influence Pence through the Vice President's\nCC2\ncounsel, and normalized the unlawful plan by discussing it on\nP1\npodcast.369\nMeanwhile,\nthe defendant continued to pressure Pence publicly.\n363\nGA 1028-1029 (Pence, So Help Me God p. 450-51); GA 278-279\n364 GA 277\n); GA 582-584\n365\nGA 1549-1553\n366\nGA 280-281\n367 GA 1028-1029 (Pence, So Help Me God p. 450-51).\n368 GA 1011-1013\n369\nGA 766\n); GA 1011-1014\n; GA 1559\nD; GA 1983 at 36:55-37:43\nGA 1984 at 9:09-9:55\n- 67 -\n\nPage 68:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 68 of 165\nFor his part, immediately upon leaving the meeting with Pence, the defendant traveled to\nDalton, Georgia, to speak at a political rally at the invitation of two U.S. Senators engaged in run-\noff elections there.370 During his political speech, the defendant promoted many of the same\nfalsehoods that he previously had been informed were untrue. He said, \"they're not taking the\nWhite House. We're gonna fight like hell, I'll tell you right now,\" and remarked, \"I hope Mike\nPence comes through for us, I have to tell you. I hope that our great Vice President, our great Vice\nPresident comes through for us .. . Of course, if he doesn't come through, I won't like him quite\nas much.\"371 He also used the Dalton Campaign speech as a call to action to his own supporters,\ntelling the crowd that \"[i]f you don't fight to save your country with everything you have, you're\nnot going to have a country left,\"372 and demanded that his supporters take action to prevent what\nhe falsely called \"the outright stealing of elections, like they're trying to do with us,\"373\nemphasizing, we \"can't let that happen.\"374\nThe next morning, on January 5, the defendant spoke on the phone with\nP1\n375\nLess\nthan two hours later, on his podcast,\nP1\nsaid in anticipation of the January 6 certification\nproceeding, \"All Hell is going to break loose tomorrow.\"376\nAlso on the morning of January 5,\nCC2\nparticipated in a federal court hearing in Trump\nv. Kemp,377 the Georgia lawsuit against\nP17\nand\nP33\nin which the defendant had\n370\nGA 767\n01/04/2021).\n);\nGA 930-931 (Donald J. Trump Tweet\n371\nGA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).\n372 GA 1096 (Dalton Rally Speech Draft Tr. 01/04/2021).\n373\nGA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).\n374 GA 1096 (Dalton Rally Speech Draft Tr. 01/04/2021).\n375 GA 768\n376 GA 1984 at 29:00-29:50 (\n377 Transcript of Mots. Hr'g, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021), ECF No.\n21.\n- 68 -\n\nPage 69:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 69 of 165\nsigned a false verification days earlier. 378\nCC2\non the defendant's behalf, asked the federal\ncourt to decertify the presidential election in Georgia and declare that the state legislature may\nchoose the state's electors.379 During the hearing, the federal court denied the relief requested. 380\nImmediately following the federal court's rejection of the legal basis for the conspirators'\nplan,\nCC2\nwent to the meeting that the defendant had requested that Pence's staff,\nP58\nand\nP8\ntake.381\nAt the outset,\nCC2\nchanged his tack and advocated that Pence simply reject the\nBiden electors outright. 382\nThis was contrary to his primary recommendation the day before for\nPence to send the slates to the state legislatures, but consistent with the preference the defendant\nhad expressed. 383\nCC2\nmade additional concessions during this meeting. For example,\nCC2\nagreed that the Supreme Court would unanimously reject his proposed action, consistent\nhistorical practice since the Founding was that the Vice President never asserted authority to reject\nelectors, no reasonable person would want the Constitution read that way because the office would\nnever switch political parties, no state legislature appeared poised to try to change its electors, and\nif Democrats were to claim the same authority,\nCC2\nwould not credit it. 384\nP58\nexpressed\nto\nCC2\nthat the defendant's plan would result in a \"disastrous situation\" where the election\n378\nComplaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1;\nGA 1152\n379 Transcript of Mots. Hr'g at 29-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021),\nECF No. 21.\n380 Transcript of Mots. Hr'g at 55-56, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021),\nECF No. 21.\n381 GA 1563\n382\nGA 283-284\nGA 1939 at 1:20:00-1:21:30 (Video of Select\nCommittee Testimony 06/16/2022); GA 1564\n383\nGA 283-284\n; GA 1939 at 1:20:00-1:21:30 (Video of Select\nCommittee Testimony 06/16/2022); GA 1564\n384\nGA 1939 at 56:53-57:36, 1:05:59-1:07:02, 1:21:55-1:29:50 (Video of Select Committee\nTestimony 06/16/2022); GA 267-272\n- 69 -\n\nPage 70:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 70 of 165\nmight \"have to be decided in the streets.\"385\nHaving failed to enlist\nP58\nin the criminal\nconspiracy,\nCC2\ntold him that the \"team\" was going to be \"really disappointed.\"386\nThe\n\"team,\" in fact, was disappointed; after\nCC2\nupdated\nCC1\non the meeting,\nCC6\nconfirmed to\nP1\nthat the \"Pence lawyer\"-that is,\nP58\nwas \"totally against us,\" prompting\nP1\nto respond, \"Fuck his lawyer.\"387 That same day,\nCC2\nreceived an email confirming\nwhat he already had admitted to\nP58\nno chamber of any legislature in any state, including\nArizona, Georgia, Pennsylvania, and Wisconsin, was requesting that its electoral votes be returned\nto the state for review. 388\nMeanwhile,\nCC5\nwho had traveled to Washington as directed by the defendant's\npublic messages, obtained duplicate originals of the fraudulent certificates signed by the\ndefendant's fraudulent electors in Michigan and Wisconsin, which they believed had not been\ndelivered by mail to the President of the Senate or Archivist. 389\nCC5\nreceived these duplicates\nfrom Campaign staff and surrogates, who flew them to Washington at private expense.390 He then\n385\nGA 1939 at 1:26:01-1:26:32 (Video of Select Committee Testimony 06/16/2022).\n386 GA 289-290\n387 GA 1014\n388 GA 1565-1567\n389 GA 1568-1574\n); GA 1575\n); GA 1576-1580(\nGA 1581-1582\n; GA 1583-1585\nGA 1586-1589\n); GA 1590-1593\n; GA 1595-1596\n390\nGA 1601-1607\nGA 1608\n- 70 -\n\nPage 71:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 71 of 165\nhand-delivered them to staffers for a U.S. Representative at the Capitol as part of a plan to deliver\nthem to Pence for use in the certification proceeding. 391\nThe defendant did not leave the pressure campaign to his co-conspirators; he redoubled his\nown efforts. On January 5 at 11:06 a.m., shortly before\nCC2\nmeeting with\nP58\nthe\ndefendant tweeted, \"The Vice President has the power to reject fraudulently chosen electors\"392\nand designate the defendant as the winner of the electoral college vote. That afternoon, the\ndefendant met privately with Pence in the Oval Office.393 During the meeting, the defendant once\nagain told Pence, \"I think you have the power to decertify.\"394 When Pence was unmoved, the\ndefendant threatened to criticize him publicly (\"I'm gonna have to say you did a great\ndisservice\"); 395 this concerned\nP8\nto whom Pence had relayed the defendant's threat, to the\npoint that he alerted Pence's Secret Service detail.39% Next still, the defendant initiated a phone\ncall with Pence,\nP8\nP58\nCC1\nand again raised the scenario of the Vice President sending the elector slates to state\nlegislatures. 398\nP58\nagain pointed out that such a strategy violated the ECA, and Pence\nreaffirmed that he did not believe he had the authority to do so.399\nShortly after the call that\n391 GA 1583-1585\n; GA\n1586-1589\n; GA 1595-\n1596\n392\nGA 934-935 (Donald J. Trump Tweet 01/05/2021).\n393 GA 461-462\n); GA 1031-1032 (Pence, So Help Me God p. 453-54).\n394\nGA 461, 463\nGA 1031-1032 (Pence, So Help Me God p. 453-54);\nGA 1656\n395 GA 461, 463-470\n); GA 1031-1032 (Pence, So Help Me God p. 453-\n54); GA 1656\n396 GA 586-587\n397 GA 1657\n); GA 1215\n);\nGA 1658\n); GA 1659\n398\nGA 282-288\n399 Id.\nCC2\nand one or two other private attorneys-likely including\n- 71 -\n\nPage 72:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 72 of 165\nevening, at 5:43 p.m., the defendant tweeted, \"I will be speaking at the SAVE AMERICA RALLY\ntomorrow on the Ellipse at 11AM Eastern. Arrive early - doors open at 7AM Eastern. BIG\nCROWDS!\"400\nThe defendant continued his pressure campaign on Pence that evening. After a New York\nTimes article that night detailed the afternoon's private conversation in which Pence had rejected\nthe defendant's demand to act unlawfully, the defendant directed\nP4\nto issue a statement\nrebutting it and approved the statement at 9:28 p.m. 401 Minutes later, the defendant called Pence\nand told him, \"you gotta be tough tomorrow.\"402\nAfter concluding the call with Pence, the\ndefendant sequentially spoke to\nP1\nfollowed by\nCC2\n403\nThen, at around 10:00 p.m. that\nnight, the defendant issued the public statement, which read \"the Vice President and I are in total\nagreement that the Vice President has the power to act\"404.\n-a statement that the defendant knew\nwas a lie from Pence's repeated and firm rejections of his efforts, but that gave false hope to the\ndefendant's supporters arriving in the city at the defendant's request, and maximized pressure on\nPence.\nF. The Defendant Caused Unlawful Conduct on January 6 and Tried to Take\nAdvantage of the Riot that Ensued\nThe defendant continued his intense pressure campaign against the Vice President into the\nearly morning hours of January 6. Around 1:00 a.m., the defendant tweeted, falsely: \"If Vice\nPresident @Mike_Pence comes through for us, we will win the Presidency. Many States want to\n400 GA 938-939 (Donald J. Trump Tweet 01/05/2021).\n401\nGA 769\nGA 1660-1661\n); GA 1662\n); GA 384-386\n402\nGA 770\n); GA 1033 (Pence, So Help Me God p. 455).\n403\nGA 770\n).\n404 GA 1663 (Donald J. Trump Campaign Statement 01/05/2021).\n- 72 -\n\nPage 73:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 73 of 165\ndecertify the mistake they made in certifying incorrect & even fraudulent numbers in a process\nNOT approved by their State Legislatures (which it must be). Mike can send it back!\"405\nAt\n8:17 a.m., as the supporters he had summoned to the city gathered near the White House, 406 the\ndefendant again falsely tweeted about the certification: \"States want to correct their votes, which\nthey now know were based on irregularities and fraud, plus corrupt process never received\nlegislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN.\nDo it, Mike, this is a time for extreme courage!\"407\nLater that morning,\nCC5\nworked with another attorney for the defendant, who\ncontacted a U.S. Senator to ask him to obtain the fraudulent Wisconsin and Michigan documents\nfrom the U.S. Representative's office and hand-deliver them to the Vice President. 408\nWhen one\nof the U.S. Senator's staffers contacted a Pence staffer by text message to arrange for delivery of\nwhat the U.S. Senator's staffer had been told were \"[a]lternate slate[s] of electors for MI and WI\nbecause [the] archivist didn't receive them,\" Pence's staffer rejected them. 409\nAt 11:15 a.m., shortly before traveling to the Ellipse to speak to his supporters, the\ndefendant called Pence and made one last attempt to induce him to act unlawfully in the upcoming\nsession. 410 When Pence again refused, and told the defendant that he intended to make a statement\nto Congress before the certification proceeding confirming that he lacked the authority to do what\n405 GA 940-941 (Donald J. Trump Tweet 01/06/2021).\n406 GA 1929 at 02:16:45 (Video of Ellipse Rally 01/06/2021).\n407\nGA 942-943 (Donald J. Trump Tweet 01/06/2021).\n408\nGA 1664\n); GA 55-56\nGA 102-103\nGA 262-263\n409\nGA 1665-1666\nGA 1667\n410 GA 359\n- 73 -\n\nPage 74:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 74 of 165\nthe defendant wanted, the defendant was incensed. 411 He decided to re-insert into his Campaign\nspeech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the\ncertification. 412 And the defendant set into motion the last plan in furtherance of his conspiracies:\nif Pence would not do as he asked, the defendant needed to find another way to prevent the\ncertification of Biden as president. So on January 6, the defendant sent to the Capitol a crowd of\nangry supporters, whom the defendant had called to the city413 and inundated with false claims of\noutcome-determinative election fraud, to induce Pence not to certify the legitimate electoral votes\nand to obstruct the certification. 414\nAt the Ellipse Campaign rally,\nCC1\nand\nCC2\nspoke just before the defendant. In\nhis rally speech,\nCC1\nsought to cloak the conspiracies in an air of legitimacy, assuring the\ndefendant's supporters that \"every single thing that has been outlined as the plan for today is\nperfectly legal,\"415 and introducing\nCC2\nas a \"preeminent constitutional scholar[]\" who would\nfurther explain this plan. 416 He falsely claimed that legislatures in five states were \"begging\" to\nhave their electoral ballots returned. 417\nCC1\nthen asserted that Pence could \"decide on the\n411\nGA 371-373\nGA 227-228\nGA 471-472\n); GA 1668-1669\n412\nGA 405-406\n; GA 1670\n); GA 638-642\n); GA 1680\nGA 1681\n; GA 231\nGA 371\n413\nSee, e.g., GA 886-887 (Donald J. Trump Tweet 12/26/2020); GA 897-898 (Donald J. Trump\nTweet 12/27/2020); GA 899-900 (Donald J. Trump Tweet 12/30/2020); GA 905-906 (Donald J.\nTrump Tweet 01/01/2021); GA 907-908 (Donald J. Trump Tweet 01/01/2021); GA 913-914, GA\n1891 (Donald J. Trump Tweet 01/01/2021); GA 928-929 (Donald J. Trump Tweet 01/04/2021);\nGA 932-933 (Donald J. Trump Tweet 01/05/2021); GA 938-939 (Donald J. Trump Tweet\n01/05/2021).\nSee GA 1928 (Video of Ellipse Rally 01/06/2021).\n415 GA 1928 at 2:19:27 (Video of Ellipse Rally 01/06/2021).\n416 GA 1928 at 2:19:40 (Video of Ellipse Rally 01/06/2021).\n417 GA 1928 at 2:20:13 (Video of Ellipse Rally 01/06/2021).\n- 74 -\n\nPage 75:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 75 of 165\nvalidity of these crooked ballots\"418 and told the crowd, \"[I]et's have trial by combat.\"419\nCC2\nin his speech, claimed that Pence must send electoral votes to state legislatures for \"the American\npeople [to] know whether we have control of the direction of our government or not,\"420 and\ndecried that \"[w]e no longer live in a self-governing republic if we can't get the answer to this\nquestion.\"421\nWhen the defendant took the stage at the Ellipse rally to speak to the supporters who had\ngathered there at his urging, he knew that Pence had refused, once and for all, to use the defendant's\nfraudulent electors' certificates. The defendant also knew that he had only one last hope to prevent\nBiden's certification as President: the large and angry crowd standing in front of him. So for more\nthan an hour, the defendant delivered a speech designed to inflame his supporters and motivate\nthem to march to the Capitol. 422\nThe defendant told his crowd many of the same lies he had been telling for months-\n-\npublicly and privately, including to the officials in the targeted states-and that he knew were not\ntrue. In Arizona, he claimed, more than 36,000 ballots had been cast by non-citizens. 423 Regarding\nGeorgia, the defendant repeated the falsehood that more than 10,300 dead people voted, 424 and he\nraised the publicly disproven claims about fraud by election workers at State Farm Arena. 425 He\nmade baseless allegations of dead voters in Nevada and Michigan and false claims about illegally\n418\nGA 1928 at 2:22:10 (Video of Ellipse Rally 01/06/2021).\n419 Id.\n420 GA 1928 at 2:27:08 (Video of Ellipse Rally 01/06/2021).\n421 GA 1928 at 2:27:21 (Video of Ellipse Rally 01/06/2021).\n422 GA 1928 at 3:31:20-4:42:50 (Video of Ellipse Rally 01/06/2021).\n423\nGA 1134 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n424 GA 1133-1134 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n425 GA 1133 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n- 75 -\n\nPage 76:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 76 of 165\ncounted votes in Wisconsin.426 And in Pennsylvania, he claimed that there were hundreds of\nthousands more ballots counted than there had been voters. 427\nThe defendant also lied to his rally supporters when he claimed that certain states wanted\nto reconsider or recertify their duly appointed electors. For instance, he said, \"By the way,\nPennsylvania has now seen all of this. They didn't know because it was so quick. They had a\nvote. They voted. But now they see all this stuff, it's all come to light. Doesn't happen that fast.\nAnd they want to recertify their votes. They want to recertify. But the only way that can happen\nis if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.\"428\nIn response\nto this lie about Pennsylvania, the defendant's crowd began to chant, \"Send it back! Send it\nback!\"429\nThe defendant gave his supporters false hope that Pence would take action to change the\nresults of the election and claimed that Pence had the authority to do so. He falsely told the crowd\nthat Pence could still \"do the right thing\"430 and halt the certification, and he extemporized lines\nabout the Vice President through the speech, including the indirect threat, \"Mike Pence, I hope\nyou're gonna stand up for the good of our Constitution and for the good of our country. And if\nyou're not, I'm gonna be very disappointed in you. I will tell you right now. I'm not hearing good\nstories.\"431\n426 GA 1131 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n427\nGA 1127, 1137 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n428\nGA 1128 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n429\nGA 1896 at 5:10 (Rallygoer Video 01/06/2021).\n430 GA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n431\nCompare GA 1133 (Ellipse Rally Speech Draft Tr. 01/06/2021) with GA 1683 (Ellipse Rally\nteleprompter speech excerpt).\n- 76 -\n\nPage 77:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 77 of 165\nThe defendant galvanized his supporters by painting the stakes as critical and assuring them\nthat \"history [was] going to be made.\">432\nHe made clear that he expected his supporters to take\naction, telling them regarding his loss of the election that \"we're not going to let that happen,\"433\ncalling on them to \"fight\"434 and to \"take back\"435 their country through strength, while suggesting\nthat legal means were antiquated or insufficient to remedy the purported fraud, because \"[w]hen\nyou catch somebody in a fraud, you're allowed to go by very different rules.\"436 Throughout the\nspeech-from as early as about fifteen minutes into it and twice in its final lines-the defendant\ndirected his supporters to go to the Capitol and suggested that he would go with them. 437\nThe overall impact of the defendant's speech-particularly in light of months of statements\nand Tweets falsely claiming election fraud and following on the heels of\nCC1\nand\nCC2\nspeeches-was to fuel the crowd's anger. For instance, when the defendant told his supporters\nthat \"[w]e will not let them silence your voices. We're not going to let it happen,\"438 the crowd\nchanted, \"Fight for Trump,\" in response. 439 When the defendant soon after told supporters that\n\"we're going to walk down to the Capitol,\"440 that they would \"never take back our country with\n432 GA 1122 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n433\nGA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n434 See, e.g., GA 1120, 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n435 Id.\n436 GA 1137 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n437\nGA 1120, 1140, 1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n438\nGA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n439 GA 1897 at 3:18 (Rallygoer Video 01/06/2021).\n440 GA 1120 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n- 77 -\n\nPage 78:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 78 of 165\nweakness,\"441 and that they had \"to show strength and [had] to be strong, \"442\nmembers of the\ncrowd shouted, \"Invade the Capitol building!\" and, \"Take the Capitol!\"443\nThousands of the defendant's supporters obeyed his directive and marched to the\nCapitol, 444 where the certification proceeding began around 1:00 p.m. 445 Minutes earlier, Pence\nhad issued a public statement explaining that his role as President of the Senate did not include\n\"unilateral authority to determine which electoral votes should be counted and which should\nnot.\"446\nOn the floor of the House of Representatives, Pence opened the certificates of vote and\ncertificate of ascertainment from Arizona, consistent with the ECA. After an objection from a\nSenator and Representative, the House and Senate retired to their separate chambers to debate it. 447\nOutside of the Capitol building, a mass of people-including those who had traveled to\nWashington and the Capitol at the defendant's direction-broke through barriers cordoning off the\nCapitol grounds and advanced on the building. 448 Among these was\nCC5\nwho had attended\nthe defendant's speech from the Washington Monument, marched with the crowd to the Capitol,\nand breached the restricted area surrounding the building. 449 A large portion of the crowd at the\nCapitol-including rioters who violently attacked law enforcement officers trying to secure the\n441 Id.\n442 Id.\n443 GA 1898 at 00:19 (Rallygoer Video 01/06/2021).\n444 See, e.g., GA 1930 at 1:09:30 (Video of Ellipse Rally 01/06/2021); GA 1942 (Video of March\nto Capitol 01/06/2021); GA 1941 at 02:10-2:33 (Video of March to Capitol 01/06/2021).\n445 GA 1937 at 20:47 (Video of House Floor 01/06/2021).\n46\nGA 1685 (Pence Dear Colleague Letter 01/06/2021).\n447 GA 1937 at 26:24 (Video of House Floor 01/06/2021).\n448 See, e.g., GA 1915 at 3:25 (Video of Capitol Riot 01/06/2021).\n449 GA 1687\n); GA 1688\n); GA 1689\n); GA 1690\nGA 1583-1585\n- 78 -\n\nPage 79:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 79 of 165\nbuilding-wore clothing and carried items bearing the defendant's name and Campaign slogans,\nleaving no doubt that they were there on his behalf and at his direction. 450\nBeginning at about 1:30 p.m., the defendant settled in the dining room off of the Oval\nOffice. He spent the afternoon there reviewing Twitter on his phone, 451 while the dining room\ntelevision played Fox News' contemporaneous coverage of events at the Capitol. 452\nAt 2:13 p.m., the crowd at the Capitol broke into the building, and forced the Senate to\nrecess. 453\nWithin minutes, staffers fled the Senate chamber carrying the legitimate electors'\nphysical certificates of vote and certificates of ascertainment.454 Next to the Senate chamber, a\ngroup of rioters chased a U.S. Capitol Police officer up a flight of stairs to within forty feet of\nwhere Pence was sheltering with his family.455 As they did so, the rioters shouted at the officer,\nin search of public officials, \"Where the fuck they at? Where the fuck they counting the votes at?\nWhy are you protecting them? You're a fucking traitor.\"456\nOn the other side of the Capitol, the\nHouse was also forced to recess. 457\n450 GA 1912 at 56:56 (Video of Capitol Riot 01/06/2021); GA 1924 at 38:48 (Video of Capitol\nRiot 01/06/2021); GA 1918 (Video of Capitol Riot 01/06/2021); GA 1919 (Video of Capitol Riot\n01/06/2021); GA 1921 at 04:30 (Video of Capitol Riot 01/06/2021); see also GA 2-3\n451 GA 1902\n452 GA 168-169\n; GA 292-293\nGA 540, 541-544\n); GA 232, 236\n453 GA 1957 at 1:04-1:25 (Video of Senate Wing Door CCTV 01/06/2021); GA 1954 at 44:16\n(Video of Senate Floor 01/06/2021).\n454 United States v. Hale-Cusanelli, No. 21-cr-37, ECF No. 93 at 38-39 (D.D.C. June 3, 2022)\n(Trial Tr. 05/24/2022).\n455 GA 1923 (Video of Capitol Riot 01/06/2021); GA 177-178\n456 GA 175\n); see also GA 176, 179\n).\nGA 1916 at 00:50 (Video of Capitol Riot 01/06/2021).\n457 GA 1937 at 1:34:00 (Video of House Floor 01/06/2021).\n- 79 -\n\nPage 80:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 80 of 165\nFox News's coverage of events at the Capitol included, at about 2:12 p.m., reports of the\nCapitol being on lockdown and showed video footage of large crowds within the restricted area\nsurrounding the Capitol; much of the crowd was wearing clothing and carrying flags evidencing\ntheir allegiance to the defendant. 458 At about 2:20 p.m., video of crowds on the Capitol lawn and\nWest Terrace were shown alongside a chyron stating, \"CERTIFICATION VOTE PAUSED AS\nPROTESTS ERUPT ON CAPITOL HILL.\"459 At 2:21 p.m., an on-the-street reporter interviewed\nan individual marching from the Ellipse to the Capitol who claimed to have come to Washington\n\"because President Trump told us we had something big to look forward to, and I believed that\nVice President Pence was going to certify the electorial [sic] votes and, or not certify them, but I\nguess that's just changed, correct? And it's a very big disappointment. I think there's several\nhundred thousand people here who are very disappointed. But I still believe President Trump has\nsomething else left.\"460\nAnd at approximately 2:24 p.m., Fox News reported that a police officer\nmay have been injured and that \"protestors\n. have made their way inside the Capitol.\"461\nAt 2:24 p.m., Trump was alone in his dining room when he issued a Tweet attacking Pence\nand fueling the ongoing riot: \"Mike Pence didn't have the courage to do what should have been\ndone to protect our Country and our Constitution, giving States a chance to certify a corrected set\nof facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA\ndemands the truth!\"462\nThat afternoon, at the Capitol, a rioter used a bullhorn to read the\ndefendant's Tweet about the Vice President aloud to the crowd trying to gain entry to the\n458\nGA 1931 at 12:12 (Video of Fox News Coverage 01/06/2021).\n459\nGA 1931 at 20:11 (Video of Fox News Coverage 01/06/2021).\n460 GA 1931 at 21:47 (Video of Fox News Coverage 01/06/2021).\n461 GA 1931 at 24:05-24:17 (Video of Fox News Coverage 01/06/2021).\n462 GA 946-947 (Donald J. Trump Tweet 01/06/2021); GA 546\n- 80 -\n\nPage 81:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 81 of 165\nbuilding. 463 The defendant issued the incendiary Tweet about Pence despite knowing-as he\nwould later admit in an interview in 2023-that his supporters \"listen to [him] like no one else.\"464\nOne minute later, at 2:25 p.m., the Secret Service was forced to evacuate Pence to a secure\nlocation. 465 At the Capitol, throughout the afternoon, members of the crowd chanted, \"Hang Mike\nPence!\"466; \"Where is Pence? Bring him out!\"467; and \"Traitor Pence!\"468 Several rioters in those\nchanting crowds wore hats and carried flags evidencing their allegiance to the defendant. In the\nyears since January 6, the defendant has refused to take responsibility for putting Pence in danger,\ninstead blaming Pence. On March 13, 2023, he said, \"Had Mike Pence sent the votes back to the\nlegislatures, they wouldn't have had a problem with Jan. 6, so in many ways you can blame him\nfor Jan. 6. Had he sent them back to Pennsylvania, Georgia, Arizona, the states, I believe, number\none, you would have had a different outcome. But I also believe you wouldn't have had 'Jan. 6'\nas we call it.\" 469\nRioters-again, many bearing pro-Trump paraphernalia indicating their allegiance\nbreached the Senate chamber,470 rifled through the papers on the Senators' desks,471 and stood on\nthe dais where Pence had been presiding just minutes earlier. 472 On the House side, rioters watched\n463\nGA 1922 (Video of Capitol Riot 01/06/2021).\n464\nGA 1693 (Transcript of CNN Town Hall 05/10/2023).\n465\nGA 1944 (Video of Pence Evacuation 01/06/2021).\n466 GA 1914 (Video of Capitol Riot 01/06/2021).\n467 GA 1911 (Video of Capitol Riot 01/06/2021).\n468 GA 1910 (Video of Capitol Riot 01/06/2021).\n469 Isaac Arnsdorf and Maeve Reston, Trump claims violence he inspired on Jan. 6 was Pence's\nfault,\nWash.\nPost,\n(Mar.\n13,\n2023,\n8:09\np.m.),\nhttps://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/.\n470 GA 1956 (Video of Senate Gallery Doors CCTV 01/06/2021).\n471 GA 1955 at 16:20 (Video of Senate Floor 01/06/2021).\n472 GA 1955 at 29:15 (Video of Senate Floor 01/06/2021).\n- 81 -\n\nPage 82:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 82 of 165\nas police evacuated lawmakers from the House chamber, smashing glass windows surrounding a\nlocked door that stood between them and the fleeing Members and staffers. 473\nAt least one rioter\nrecorded video showing Members being evacuated while the growing crowd screamed at the\nCapitol Police officers guarding the locked door to the House Speaker's Lobby.474\nSome of the worst violence of the day took place outside of the Capitol on the Lower West\nTerrace-the side of the building facing the Ellipse where the defendant had given his speech.\nThere, scaffolding placed in anticipation of the January 20 Inauguration created a tunnel leading\nto a set of double glass doors into the center of the Capitol building. After rioters had forced their\nway onto restricted Capitol grounds and past the temporary barriers, including layers of snow\nfencing and bike racks, they attacked the law enforcement officers trying to protect the building\nwith flag poles, bear spray, stolen police riot shields, and other improvised weapons. 475 Of his\ntime defending the Capitol, one Metropolitan Police Department Officer said:\nI feared for my life from the moment I got into that-we were walking into the\ncrowd, when the Capitol Police officer was leading us into the front line. And\nespecially when I got sprayed in the middle of the crowd. I-at that point, honestly,\nI thought, this is it. Yeah, multiple times . .. You know, you're getting pushed,\nkicked, you know, people are throwing metal bats at you and all that stuff. I was\nlike, yeah, this is fucking it. 476\nThe officer described that the rioters he encountered at the Capitol were wearing both \"tactical\ngear\" and \"Trump paraphernalia\" and appeared to be acting out of \"pure, sheer anger.\"477\n473 GA 1938 at 00:05 (Video of House Floor 01/06/2021); GA 1905 (Video inside Capitol Building\n01/06/2021).\n474 GA 1936 at 06:18 (Video of House Chamber Doors 01/06/2021).\n475\nGA 1920 (Video of Capitol Riot 01/06/2021); GA 1917 at 54:30 (Video of Capitol Riot\n01/06/2021).\n476 GA 5-6\n477 GA 4 (\n- 82 -\n\nPage 83:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 83 of 165\nIn the years after January 6, the defendant has reiterated his support for and allegiance to\nrioters who broke into the Capitol, calling them \"patriots\"478 and \"hostages,\"479 providing them\nfinancial assistance, 480 and reminiscing about January 6 as \"a beautiful day.\"481 At a rally in Waco,\nTexas, on March 25, 2023, the defendant started a tradition he has repeated several times-opening\nthe event with a song called \"Justice for All,\" recorded by a group of charged-and in many cases,\nconvicted-January 6 offenders known as the \"January 6 Choir\" and who, because of their\ndangerousness, are held at the District of Columbia jail. 482 At the Waco Rally, of the January 6\nChoir, the defendant said, \"our people love those people, they love those people.\"483 The defendant\nhas also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484\nOn the evening of January 6, the defendant and\nCC1\nattempted to exploit the violence\nand chaos at the Capitol by having\nCC1\ncall Senators and attempt to get them to further delay\nthe certification. 485\nAt around 7:00 p.m.,\nCC1\nplaced calls to five U.S. Senators and one U.S.\nRepresentative. 486\nCC6\nattempted to confirm phone numbers for Members of Congress whom\n478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at\nFaith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).\n479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).\n480\nGA 1966 at 09:30 (Video of Trump Interview 09/01/2022).\n481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town\nHall 05/10/2023).\n482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert\nMink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United\nStates v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222\n(D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).\n483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).\nGA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).\n485 GA 1904 at row 1383\n); GA 1696\n486\nGA 1697\n); GA 1401-1406\n); GA\n1698-1701\n- 83 -\n\nPage 84:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 84 of 165\nthe defendant had directed\nCC1\nto call. 487 In a voicemail that\nCC1\nintended for one Senator,\nCC1\nsaid, \"I'm calling you because I want to discuss with you how they're trying to rush this\nhearing and how we need you, our Republican friends, to try to just slow it down so we can get\nthese legislatures to get more information to you. And I know they're reconvening at eight tonight,\nbut the only strategy we can follow is to object to numerous states and raise issues so that we can\nget ourselves into tomorrow-ideally until the end of tomorrow.\"488\nHe then asked the Senator to\n\"object to every state\" to \"give us the opportunity to get the legislators who are very, very close to\npulling their votes.\" This concession-that legislatures had not yet asked to review their slates-\n-\nstood in contrast to\nCC1\nand the defendant's lies at the Ellipse that they already had. 489 Next,\nin a voicemail intended for another Senator,\nCC1\ntold more lies. 49\nHe falsely claimed that\nPence's decision not to use the defendant's fraudulent electors' certificates had been surprising,\nand that in light of the surprise, \"we could use a little time so that the state legislatures can prepare\neven more to come to you and say, 'Please give this back to us for a while so we can fix it.\">>491\nCC1\nthen repeated knowingly false claims of election fraud, including that non-citizens had\nvoted in Arizona and an outcome-determinative number of underage voters had cast ballots in\nGeorgia. 492\nAlthough the attack on the Capitol successfully delayed the certification for approximately\nsix hours, the House and Senate resumed the Joint Session at 11:35 p.m. 493 But the conspirators\n487 GA 1702\n488\nGA 1977\n489 GA 1928 at 2:20:13, 3:37:54 (Video of Ellipse Rally 01/06/2021).\n490\nGA 1975\n491 Id\n492 Id.\n493 GA 1703 (Congressional Record 01/06/2021).\n- 84 -\n\nPage 85:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 85 of 165\nwere not done. Within ten minutes, at 11:44 p.m.,\nCC2\nwho earlier that day wrote to\nP58\nthat \"[t]he 'siege' is because YOU and your boss did not do what was necessary\"-emailed\nP58\nagain and urged him to convince Pence to violate the law, writing, \"I implore you to consider one\nmore relatively minor violation [of the ECA] and adjourn for 10 days to allow the legislatures to\nfinish their investigations, as well as to allow a full forensic audit of the massive amount of illegal\nactivity that has occurred here.\"494\nAt 3:41 a.m. on January 7, as President of the Senate, Pence announced the certified results\nof the 2020 presidential election in favor of Biden. 495\nII.\nLegal Framework\nIn Trump, the Supreme Court held that former presidents are immune from prosecution for\ncore official acts, enjoy at least a rebuttable presumption of immunity for other official acts, and\nhave no immunity for unofficial acts, and remanded to this Court for further proceedings consistent\nwith its holding. 144 S. Ct. at 2327, 2332, 2347. This section sets forth the applicable legal\nprinciples and then Section III applies them to the categories of conduct that the superseding\nindictment alleges and that the Government intends to prove at trial in order to demonstrate that\nnone of the defendant's conduct is immunized.\nIn Trump, the Supreme Court announced the principles that govern a former President's\nclaim of constitutional immunity from federal criminal prosecution. The Supreme Court divided\npresidential acts into three categories: (1) core presidential conduct that Congress has no power to\nregulate and for which a former President has absolute immunity; (2) other official presidential\nacts for which the President has at least presumptive immunity; and (3) unofficial conduct for\n494 GA 1705-1709\n495\nGA 1925 at 19:14, 20:34 (Video of Congress Joint Session 01/06/2021); GA 1704 at 41\n(Congressional Record 01/06/2021).\n- 85 -\n\nPage 86:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 86 of 165\nwhich the President has no immunity. Id. at 2327, 2331-32. With respect to the first category of\ncore official conduct, when the President's authority to act is \"'conclusive and preclusive,\"\"\nCongress may not regulate his actions, and the President has absolute immunity from criminal\nprosecution. Id. at 2327 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638\n(1952) (Jackson, J., concurring)). Applying those principles to the original indictment, the\nSupreme Court concluded that the defendant is \"absolutely immune from prosecution for the\nalleged conduct involving his discussions with Justice Department officials\" and his \"threatened\nremoval of the Acting Attorney General.\" Id. at 2335. The superseding indictment omits those\nallegations, and the Supreme Court did not find that any other conduct alleged in the original\nindictment implicated \"conclusive and preclusive\" presidential authority. See id. at 2335-40.\nThe threshold question here, then, is whether the defendant can carry his burden to establish\nthat his acts were official and thus subject to presumptive immunity. Id. at 2332; see Dennis v.\nSparks, 449 U.S. 24, 29 (1980) (noting that for immunity doctrines, \"the burden is on the official\nclaiming immunity to demonstrate his entitlement\"). Official conduct includes acts taken within\nthe \"'outer perimeter' of the President's official responsibilities, covering actions so long as they\nare 'not manifestly or palpably beyond [his] authority.\"\" Trump, 144 S. Ct. at 2333 (quoting\nBlassingame, 87 F.4th at 13). But consistent with the D.C. Circuit's opinion in Blassingame, the\nSupreme Court suggested that a President who speaks \"as a candidate for office or party leader\"-\nas the defendant did here-does not act in his official, presidential capacity. Id. at 2340. As the\nD.C. Circuit explained, a President acting as a \"candidate for re-election\" is, to that extent, not\ncarrying out an official responsibility. Blassingame, 87 F.4th at 17; accord id. at 5 (\"When a\nsitting President running for re-election speaks in a campaign ad or in accepting his political party's\nnomination at the party convention, he typically speaks on matters of public concern. Yet he does\n- 86 -\n\nPage 87:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 87 of 165\nso in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And\nactions taken in an unofficial capacity cannot qualify for official-act immunity.\") (emphasis in\noriginal). To assess whether a presidential action constitutes an \"official\" act, courts must apply\nan \"objective analysis\" that focuses on the \"'content, form, and context\"\" of the conduct in\nquestion. Trump, 144 S. Ct. at 2340 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). A\nPresident's motives for undertaking the conduct and the fact that the conduct is alleged to have\nviolated a generally applicable law are not relevant considerations. Id. at 2333-34.\nIf a President's actions constitute non-core official presidential conduct, he is at least\npresumptively immune from criminal prosecution for that conduct. 144 S. Ct. at 2328, 2331; id.\nat 2332 (reserving whether \"this immunity is presumptive or absolute ... [b]ecause we need not\ndecide that question today\"). The Government can overcome that presumptive immunity by\ndemonstrating that \"applying a criminal prohibition to that act would pose no 'dangers of intrusion\non the authority and functions of the Executive Branch.\"\" Id. at 2331-32 (quoting Fitzgerald, 457\nU.S. at 754). Just as the inquiry into whether conduct is official or unofficial is \"necessarily\nfactbound,\" Trump, 144 S. Ct. at 2340, with \"[t]he necessary analysis [being] ... fact specific,\"\nid. at 2339, so too should be the inquiry into whether any \"presumption of immunity is rebutted\nunder the circumstances,\" id. at 2337. The analysis should first identify the specific alleged act at\nissue, and then determine whether criminal liability for the act intrudes on a relevant Executive\nBranch authority or function, taking care not to \"conceive[] of the inquiry at too high a level of\ngenerality.\" Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1141 (D.C. Cir. 2015) (reversing\ndistrict court in civil immunity case). Such an approach recognizes that Executive authority has\nlimits-boundaries imposed by constitutional text, the separation of powers, and precedent-and\nthat application of criminal law to the President's official conduct does not per se intrude\n- 87 -\n\nPage 88:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 88 of 165\nimpermissibly on Executive Branch authority and functions. Cf. Trump, 144 S. Ct. at 2327 (\"If\nthe President claims authority to act but in fact exercises mere 'individual will' and 'authority\nwithout law,' the courts may say so.\") (quoting Youngstown, 343 U.S. at 655 (Jackson, J.,\nconcurring)).\nThese principles for assessing whether the conduct alleged in the superseding indictment\nis immune apply equally to evidence. The Government may not introduce evidence of immunized\nofficial conduct against a former President at a trial, even to prove that the former President\ncommitted a crime predicated on unofficial conduct. Id. at 2340-41.\nIII.\nNone of the Allegations or Evidence Is Protected by Presidential Immunity\nAt its core, the defendant's scheme was a private one; he extensively used private actors\nand his Campaign infrastructure to attempt to overturn the election results and operated in a private\ncapacity as a candidate for office. To the limited extent that the superseding indictment and\nproffered evidence reflect official conduct, however, the Government can rebut the presumption\nof immunity because relying on that conduct in this prosecution will not pose a danger of intrusion\non the authority or functions of the Executive Branch. Below, the Government categorizes the\nconduct outlined in Section I and provides \"content, form, and context\" for this Court to determine\nthat the defendant's conduct was private or that, in the alternative, any presumptive immunity is\nrebutted \"under the circumstances.\" Trump, 144 S. Ct. at 2337. This analysis is necessarily fact-\nintensive, and all of the Government's analysis below is based on the unique facts and\ncircumstances of this case.\nThis section first addresses the defendant's interactions with Pence, because in Trump, the\nSupreme Court held that when the defendant conversed with Pence about \"their official\nresponsibilities,\" the conduct was official. 144 S. Ct. at 2336. Accordingly, the Government\nexplains below why any presumptive immunity as to the defendant's official conduct regarding\n- 88 -\n\nPage 89:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 89 of 165\nPence is rebutted. Other than the specific official conduct related to Pence that the Supreme Court\nheld to be official, none of the defendant's other actions were official. This section categorizes\nthat conduct and provides the \"content, form, and context\" that establishes its unofficial nature.\nThese categories are: a) the defendant's interactions, as a candidate, with state officials; b) the\ndefendant's efforts, as a candidate, to organize fraudulent electors; c) the defendant's public\nspeeches, Tweets, and other public statements as a candidate; d) the defendant's interactions, as a\ncandidate, with White House staff; and e) other evidence of the defendant's knowledge and intent.\nLastly, even if these categories of conduct and evidence were to be deemed official, the\nGovernment can rebut the attendant presumption of immunity as described below.\nA. The Defendant's Interactions with Pence\nThe only conduct alleged in the original indictment that the Supreme Court held was\nofficial, and subject to at least a rebuttable presumption of immunity, was the defendant's attempts\nto lie to and pressure Vice President Pence to misuse his role as President of the Senate at the\ncongressional certification. The Supreme Court stated that \"[w]henever the President and Vice\nPresident discuss their official responsibilities, they engage in official conduct,\" and further\nexplained that because Pence's role at the certification was \"a constitutional and statutory duty of\nthe Vice President,\" the defendant was \"at least presumptively immune from prosecution for such\nconduct.\" 144 S. Ct. at 2336. Accordingly, unlike all of the other threshold determinations that\nthe Court will have to make about whether the defendant's conduct alleged in the superseding\nindictment was official, with respect to the defendant's conversations with Pence about Pence's\nofficial role at the certification proceeding, the Court can skip to the second step: whether the\nGovernment can rebut the presumption of immunity that the Supreme Court held applies to such\nconversations. Because the Executive Branch has no role in the certification proceeding-and\nindeed, the President was purposely excluded from it by design-prosecuting the defendant for his\n- 89 -\n\nPage 90:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 90 of 165\ncorrupt efforts regarding Pence poses no danger to the Executive Branch's authority or\nfunctioning.\nAs described below, the Government also intends to introduce at trial evidence regarding\nconversations between the defendant and Pence in which they did not discuss Pence's official\nresponsibilities as President of the Senate and instead acted in their private capacities as running\nmates. And the Government intends to elicit at trial evidence about a Pence staffer's conversations\nwith co-conspirator\nCC2\nThose conversations were unofficial and therefore not immune.\n1. The defendant's interactions with Pence as the President of the Senate were\nofficial, but the rebuttable presumption of immunity is overcome\nThe superseding indictment and the Government's trial evidence include the defendant's\nattempts to influence Pence's \"oversight of the certification proceeding in his capacity as President\nof the Senate.\" Trump, 144 S. Ct. at 2337. These conversations included one-on-one conversations\nbetween the defendant and Pence (see, e.g., supra pp. 49, 63-65, 72-74, describing conversations\non December 5 and 25, 2020, and January 1, 3, 5, and 6, 2021496), as well as conversations in\nwhich the defendant included private actors, such as co-conspirator\nCC2\nin his attempts to\nconvince Pence to participate in the conspiracies (see, e.g., supra pp. 66-67 and 71-72, describing\nconversations on January 4 and 5, 2021).\nThe Supreme Court held that discussions between the defendant and Pence concerning\nPence's role at the certification proceeding qualify as official conduct, and therefore are subject to\n496 The Government's factual proffer also describes a conversation between the defendant and\nPence on December 19-the same day that the defendant issued his \"will be wild!\" Tweet calling\nsupporters to Washington-in which the defendant told Pence that it would be good to have lots\nof their supporters in town on January 6. See supra pp. 60. At trial, the Government intends to\nuse this unofficial portion of the conversation, held between running mates, but not Pence's\nresponse, which included a reference to the certification proceeding on January 6. GA 440-441\n); GA 1020 (Pence, So Help Me God p. 437). See infra p. 145-146.\n- 90 -\n\nPage 91:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 91 of 165\na rebuttable presumption of immunity, because they involved \"the President and the Vice President\ndiscuss[ing] their official responsibilities.\" Id. at 2336. Those discussions qualify as official\nbecause \"[p]residing over the January 6 certification proceeding at which Members of Congress\ncount the electoral votes is a constitutional and statutory duty of the Vice President.\" See id. at\n2336; U.S. Const. Art. I, \u00a7 3, cl. 4. The discussions at issue did not pertain to Pence's role as\nPresident of the Senate writ large, however, but instead focused only on his discrete duties in\npresiding over the certification proceeding-a process in which the Executive Branch, by design,\nplays no direct role. Trump, 144 S. Ct. at 2337. A prosecution involving the defendant's efforts\nto influence Pence in the discharge of this particular duty, housed in the Legislative Branch, would\nnot \"pose any dangers of intrusion on the authority and functions of the Executive Branch.\" Id.\nThe Executive Branch has no authority or function to choose the next President.\nBlassingame, 87 F.4th at 17. To the contrary, the Constitution provides that the States will appoint\nelectors to vote for the President and Vice President. U.S. Const. Art. II, \u00a7 1, cl. 2. And all States\nhave chosen to make such appointments based on the ballots cast by the people in their respective\nstates. See Chiafalo v. Washington, 591 U.S. 578, 581 (2020). \"The Congress may determine the\nTime of chusing the Electors, and the Day on which they shall give their Votes,\" U.S. Const. Art.\nII, \u00a7 1, cl. 4, but the Executive Branch has no direct role in that process. The next step in the\nprocess established by the Constitution similarly provides no role for the Executive Branch: the\nHouse and Senate meet in joint session, with the President of the Senate present to \"open all the\ncertificates\" of the state-appointed electors in the presence of the House and Senate, for them to\nbe counted. U.S. Const. Amend. XII. \"The person having the greatest number of votes for\nPresident, shall be the President, if such number be a majority of the whole number of Electors\nappointed.\" Id. Only if the state-appointed electors have failed to make a choice, i.e., no candidate\n- 91 -\n\nPage 92:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 92 of 165\nhas such a majority, does the choice fall to the House of Representatives, who, voting by state\ndelegation, \"choose immediately, by ballot,\" from the three presidential candidates receiving the\nmost electoral votes. Id. There, too, the Executive Branch plays no role in the process.\nThe exclusion of the Executive Branch reflects fundamental constitutional principles. The\n\"executive Power\" is \"vested in a President\" only for \"the Term of four Years,\" U.S. Const. Art.\nII, \u00a7 1, cl. 1, and it transfers to his successor, by operation of law, \"at noon on the 20th day of\nJanuary,\" U.S. Const. Amend. XX. Permitting the incumbent President to choose his own\nsuccessor-or, worse still, to perpetuate himself in power-would contradict the entire\nconstitutional system that the Framers created. \"In free Governments,\" Benjamin Franklin\nexplained, \"the rulers are the servants, and the people their superiors [and] sovereigns.\" 2 The\nRecords of the Federal Convention of 1787, at 120 (Max Farrand ed., 1911). A government could\nnot be considered a \"genuine republic,\" Madison argued, unless \"the persons administering it,\"\nincluding the President, \"be appointed, either directly or indirectly, by the people; and that they\nhold their appointments\" for a \"definite period.\" The Federalist No. 39 (J. Madison). Thus, while\nthe Framers recognized \"the necessity of an energetic Executive,\" they justified and checked his\npower by ensuring that he always retained \"a due dependence on the people.\" The Federalist No.\n70 (A. Hamilton); see Seila Law LLC v. CFPB, 591 U.S. 197, 223-24 (2020). The Framers further\nrecognized that while regular elections would serve as \"the primary control on the government,\"\n\"experience has taught mankind the necessity of auxiliary precautions\" as well. The Federalist\nNo. 51 (J. Madison).\nSome of those precautions are reflected in the design of the Electoral College itself.\n\"[W]ary of 'cabal, intrigue, and corruption,\" the Framers \"specifically excluded from service as\nelectors 'all those who from situation might be suspected of too great devotion to the president in\n- 92 -\n\nPage 93:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 93 of 165\noffice.\"\" Trump, 144 S. Ct. at 2339 (quoting The Federalist No. 68 (A. Hamilton)). They were\nkeenly aware, as Justice Story later explained, that \"an ambitious candidate\" could hold out \"the\nrewards of office, or other sources of patronage,\" in an effort \"to influence a majority of votes;\nand, thus, by his own bold and unprincipled conduct, to secure a choice, to the exclusion of the\nhighest, and purest, and most enlightened men in the country.\" Joseph Story, 3 Commentaries on\nthe Constitution of the United States \u00a7 1450, at 314 (1833 ed.). To guard against that possibility,\nArticle II provides that \"no Senator or Representative, or Person holding an Office of Trust or\nProfit under the United States, shall be appointed an Elector.\" U.S. Const. Art. II, \u00a7 1, cl. 2. As a\nleading early American commentator observed, these limitations serve \"to prevent the person in\noffice, at the time of the election, from having any improper influence on his re-election, by his\nordinary agency in the government.\" See 1 James Kent, Commentaries on American Law *276\n(8th ed. 1854).\nThe Constitution's structure further reflects the Framers' considered choice to exclude the\nincumbent President from playing a role in choosing the next President. The Constitution reflects\nan abiding concern that governmental \"power is of an encroaching nature, and that it ought to be\neffectually restrained from passing the limits assigned to it,\" not least to protect against \"the danger\nto liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.\" The\nFederalist No. 48 (J. Madison); see Metro. Wash. Airports Auth. v. Citizens for Abatement of\nAircraft Noise, Inc., 501 U.S. 252, 273 (1991) (\"The abuses by the monarch recounted in the\nDeclaration of Independence provide dramatic evidence of the threat to liberty posed by a too\npowerful executive.\"). The Framers therefore designed a system of separated powers in part to\nensure that \"[n]o man is allowed to be a judge in his own cause, because his interest would certainly\nbias his judgment, and, not improbably, corrupt his integrity.\" The Federalist No. 10 (J. Madison).\n- 93 -\n\nPage 94:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 94 of 165\nThe defendant's charged conduct directly contravenes these foundational principles. He\nsought to encroach on powers specifically assigned by the Constitution to other branches, to\nadvance his own self-interest and perpetuate himself in power, contrary to the will of the people.\nAs such, applying a criminal prohibition to the defendant's conduct would not pose any danger of\nintrusion on the authority and functions of the Executive Branch; rather, it would advance the\nConstitution's structural design to prevent one Branch from usurping or impairing the performance\nof the constitutional responsibilities of another Branch. See Clinton v. Jones, 520 U.S. 681, 699-\n702 (1997).\nHistory confirms that presidents have never understood their wide-ranging duties to\nencompass any direct role in the function of collecting, counting, and certifying the results of a\npresidential election. As President Lincoln explained in 1864, \"[b]y the Constitution and laws the\nPresident is charged with no duty in the conduct of a presidential election in any State,\" and \"[i]f\nany election shall be held, and any votes shall be cast in the State of Tennessee for President and\nVice President of the United States, it will belong, not to the military agents, nor yet to the\nExecutive Department, but exclusively to another department of the Government, to determine\nwhether they are entitled to be counted, in conformity with the Constitution and laws of the United\nStates.\" 8 Collected Works of Abraham Lincoln, 71-72 (1953). When Congress later sent to\nLincoln for his signature a \"Joint resolution declaring certain States not entitled to representation\nin the electoral college,\" Lincoln signed the resolution \"in deference to the view of Congress\nimplied in its passage and presentation to him,\" but \"disclaim[ed] all right of the Executive to\ninterfere in any way in the matter of canvassing or counting electoral votes.\" House Special\nCommittee, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 229-230 (1877). The\nGovernment is aware of no contrary evidence, including of any President, other than the defendant,\n- 94 -\n\nPage 95:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 95 of 165\nseeking to influence his Vice President in the discharge of his duties as President of the Senate in\npresiding over the joint session. The absence of any such historical tradition is reinforced by the\nfact that in 22 of the 59 certification proceedings the Vice President has not presided at all. See\nJoel K. Goldstein, The Ministerial Role of the President of the Senate in Counting Electoral Votes:\nA Post-January 6 Perspective, 21 U. N.H. L. REV. 369, 402 & App'x 1 (2023).\nWhen it comes to the certification proceeding specifically, not only has the President been\ndeliberately excluded from the process, but the Vice President's role, as President of the Senate,\nis highly circumscribed and ministerial in nature. The Twelfth Amendment gives the President of\nthe Senate no substantive role in determining how to count the votes of the electors appointed by\nthe states. Rather, it provides only that he \"shall, in the presence of the Senate and House of\nRepresentatives, open all the certificates,\" and then shifts to the passive voice: \"and the votes shall\nthen be counted.\" Nothing in the Constitution remotely suggests that the single individual serving\nas President of the Senate would have the momentous responsibility to decide which votes to count\nand how they should be counted. Indeed, as Pence himself explained on January 6, 2021, giving\nthe President of the Senate such a role \"would be entirely antithetical to the [Constitution's]\ndesign.\"497\nAnd, removing any possible doubt, \"Congress has legislated extensively to define the\nVice President's role in the counting of the electoral votes,\" Trump, 144 S. Ct. at 2337 (citing 3\nU.S.C. \u00a7 15), and it has never provided any substantive role for the Vice President, instead\nassigning the resolution of disputes to the two Houses of Congress.498 Moreover, Congress has\n497 GA 1685 (Pence Dear Colleague Letter 01/06/2021).\n498\nLegislation confirming the ministerial nature of that role dates to the Electoral Count Act of\n1887, Pub. L. 49-90, 24 Stat. 373 (1887). See 3 U.S.C. \u00a7\u00a7 15-18 (2020 ed.) (assigning all power\nto resolve vote-counting disputes to the two Houses of Congress, while assigning to the President\nof the Senate only the ministerial duties of \"presiding,\" \"preserv[ing] order,\" \"open[ing] .. . the\ncertificates,\" \"call[ing] for objections,\" and \"announc[ing] the state of the vote\" after receiving the\nresults from the tellers).\n- 95 -\n\nPage 96:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 96 of 165\nnow made explicit-echoing and reaffirming constitutional tradition and practice-that, with\nlimited exceptions of no relevance to this case, \"the role of the President of the Senate while\npresiding over the joint session shall be limited to performing solely ministerial duties,\" 3 U.S.C.\n\u00a7 15(b)(1). He \"shall have no power to solely determine, accept, reject, or otherwise adjudicate or\nresolve disputes over the proper certificate of ascertainment of appointment of electors, the validity\nof electors, or the votes of electors.\" Id. \u00a7 15(b)(2).499 Because the Vice President's role is and\nhas always been ministerial, rather than substantive or discretionary, it is difficult to imagine an\noccasion in which a President would have any valid reason to try to influence it. As such,\ncriminalizing a President's efforts to affect the Vice President's role as the President of the Senate\noverseeing the certification of Electoral College results would not jeopardize an Executive Branch\nfunction or authority.\nCritically, applying a criminal prohibition to the discrete and distinctive category of official\ninteractions between the President and Vice President alleged in this case would have no effect-\nchilling or otherwise-on the President's other interactions with the Vice President that implicate\nExecutive Branch interests. The President would still be free to direct the Vice President in the\ndischarge of his Executive Branch functions, such as \"presid[ing] over ... cabinet meetings,\"\nengaging in \"diplomacy and negotiation,\" or performing any other presidential duties that the\nPresident chooses to delegate. See Trump, 144 S. Ct. at 2336 (internal quotation marks omitted).\nThe President would likewise still be free to advise the Vice President on how to \"advance the\n499\nSection 15 of Title 3 was amended in the Electoral Count Reform Act of 2022, Pub. L. 117-\n328, 136 Stat. 4459, 5237-40 (2022), in response to the defendant's conduct here, to eliminate any\ndoubt that the President of the Senate's role at the joint session is ministerial. And because the\nrebuttal analysis is necessarily prospective in nature, the current version of Section 15 supplies the\nrelevant measure, in this context, of \"the Vice President's role in the counting of electoral votes,\"\nTrump, 144 S. Ct. at 2337.\n- 96 -\n\nPage 97:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 97 of 165\nPresident's agenda in Congress,\" by casting tiebreaking votes on legislation or nominations. Id.\nat 2337. None of these legitimate Executive Branch functions would be chilled or affected at all.\nLastly, the fact that the defendant regularly included other private actors, such as his private\nattorney and co-conspirator\nCC2\nin some conversations to attempt to pressure Pence\n(Superseding Indictment, ECF No. 226 \"| 75-76; supra pp. 66-67, 71-72) strengthens the\nconclusion that prosecuting the defendant for his actions using\nCC2\nto help recruit Pence into\nthe conspiracies does not infringe on any Executive Branch authority or function. As set forth in\nSection I, private co-conspirators worked to schedule the January 4 meeting at which\nCC2\nP59\nwas invited to the\nattempted to pressure Pence. Although White House Counsel\nmeeting, when he arrived to attend, the defendant explicitly excluded him from it-meaning that\nthe only attorney attending the meeting for the defendant was\nCC2\nhis privately-retained\ncounsel. In\nP59\ntelling, when\nP59\narrived at the Oval Office for the meeting, the\ndefendant \"said words\n. indicating he didn't want me at the meeting.\"500 It is hard to imagine\nstronger evidence that conduct is private than when the President excludes his White House\nCounsel and only wishes to have his private counsel present.\nNext, the phone call on January 5 that the defendant and\nCC2\nmade to Pence,\nP58\nand\nP8\nwas the result of the private co-conspirators' failure to convince\nP58\nand\nP8\nto do\nas\nCC2\nurged in the meeting on the morning of January 5 that\nP58\nand\nP8\ntook at the\ndefendant's request. The defendant's decision to include private actors in the conversations with\nPence about his role at the certification makes even more clear that there is no danger to the\nExecutive Branch's functions and authority, because the\nCC2\nconversations had no bearing on\nany Executive Branch prerogative. Instead, all of this conduct objectively benefitted the defendant\n500 GA 120-121\n- 97 -\n\nPage 98:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 98 of 165\nin his private capacity as a candidate. The Court should therefore find the presumption of\nimmunity to be rebutted. And because the presumption is rebutted, any participant in the meeting\nor phone call-including Pence,\nP58\nand\nP8\ncan testify about it at trial.\n2. The defendant's interactions with Pence as a running mate were unofficial\nAt trial, as indicated supra pp. 12-14, the Government intends to introduce evidence of\nprivate phone calls or in-person meetings (which occasionally included Campaign staff) that the\ndefendant had with Pence in their unofficial capacities, as running mates in the post-election\nperiod. These conversations were not described in the original indictment nor analyzed by the\nSupreme Court in its opinion, nor are they described in the superseding indictment. In these\nconversations, the defendant and Pence discussed their electoral prospects, election-related\nlitigation, and the possibility of the defendant running again in 2024 if his legal challenges failed.\nFor example, Pence \"tried to encourage\" the defendant \"as a friend,\" when news networks\nprojected Biden as the winner of the election; on other occasions, softly suggested the defendant\n\"recognize [the] process is over\" even if he was unwilling to concede; and encouraged the\ndefendant to consider running for election again in 2024. Although the defendant and Pence\nnaturally may have touched upon arguably official responsibilities that were tangential to their\nelection prospects-for instance, whether the federal government should begin its logistical\ntransition to prepare for a different Administration501_the overall context and content of the\nconversations demonstrate that they were primarily frank exchanges between two candidates on a\nshared ticket, and the Government does not intend to elicit testimony about any peripheral\ndiscussion of arguably official responsibilities. See Blassingame, 87 F.4th at 17 (\"[A] President\n501 See, e.g., GA 1037\nGA 425-426\n). See GA 1018 (Pence, So Help Me God p. 432).\n- 98 -\n\nPage 99:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 99 of 165\nacts in a private, unofficial capacity when engaged in re-election campaign activity.\"); see also\nUnited States v. Helstoski, 442 U.S. 477, 488 n. 7 (1979) (in the Speech or Debate context, when\nan act contains both protected legislative components and non-protected components, the correct\ncourse is to \"excis[e] references to legislative acts, so that the remainder of the evidence would be\nadmissible\"). Together, these discussions show the defendant and Pence considering advice from\ntheir shared Campaign advisors, weighing electoral strategies, and grappling with their loss. Both\nmen had something to gain by winning re-election, making more notable the persistence of Pence's\nsuggestions on how to accept the results of the election without losing face.\nEven if the Court determines that these conversations were official, however, the\nGovernment can rebut the presumption of immunity because the use of this evidence poses no risk\nto Executive Branch prerogatives. The content of the conversations at issue-the defendant and\nPence's joint electoral fate and how to accept the election results-have no bearing on any function\nof the Executive Branch. See Blassingame, 87 F.4th at 4 (\"The Office of the Presidency as an\ninstitution is agnostic about who will occupy it next.\").\n3.\nP58\none-on-one interactions with\nCC2\nwere unofficial\nPence staffer\nP58\nalso participated in a January 5 meeting with\nCC2\nand\nP8\n(Superseding Indictment, ECF No. 226 | 78a; supra pp. 69-70) and on January 6 engaged in a\nlengthy email exchange with\nCC2\n(Superseding Indictment, ECF No. 226 | 99; supra p. 85).\nThese interactions were outside of the defendant's presence, and the latter was a series of emails.\nThese conversations were not official, within the meaning of Trump, since the defendant was not\ninvolved and did not otherwise direct\nP58\nactions, and because of the other information above\ndescribing\nCC2\ninherently private role.\n- 99 -\n\nPage 100:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 100 of 165\nB. The Defendant's Interactions, in his Capacity as a Candidate, with Officials in the\nTargeted States\n1. The interactions at issue were unofficial\nAt trial, the Government will introduce evidence that the defendant, in his capacity as a\ncandidate, contacted state elected officials to use false claims of election fraud to induce their\nassistance with the charged conspiracies at the point in the electoral process in which the states\nascertain electors. These communications included calls to\nP16\nthe Governor of Arizona; a\nmeeting with Michigan legislators at the White House; a call to\nP18\nthe Speaker of the Arizona\nState House; a call to\nP26\nthe Attorney General of Georgia; and a call to\nP33\nthe\nGeorgia Secretary of State. The contacts, sometimes in person and sometimes by phone, were part\nof a single course of conduct aimed at lying to and influencing these state officials to alter the\nresults of the election in the defendant's favor. In each conversation, the defendant raised false\nclaims of election fraud when pressing the state officials, often asking them to take steps to prevent\nor overturn the ascertainment of Biden's legitimate electors. And in each case, the state officials\ninformed the defendant that they had not seen the fraud he was claiming had occurred in their state.\nNotably, all of these elected officials were the defendant's fellow Republicans; he made no efforts\nto contact the equivalent individuals holding the same offices in Nevada, New Mexico,\nPennsylvania, or Wisconsin, all of whom were Democrats. Most importantly, as with the\ndefendant's plan regarding the fraudulent elector slates, as President, he had no official role in the\nprocess by which states appointed and ascertained their presidential electors. See 144 S. Ct. at\n2353 (Barrett, J., concurring) (\"The President has no authority over state legislatures or their\nleadership, so it is hard to see how prosecuting him for crimes committed when dealing with the\nArizona House Speaker would unconstitutionally intrude on executive power.\"). The content,\n- 100 -\n\nPage 101:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 101 of 165\nform, and context of the defendant's interactions with these state officials firmly establish that his\nconduct was unofficial.\na. Calls to\nP16\n(supra pp. 17-18)\nThe defendant called\nP16\nthen the Governor of Arizona, on or about November 9.502\nThe defendant's call to\nP16\nwas unofficial and undertaken as a candidate. Throughout the call,\nthe defendant was engaged in partisan electioneering. His comments focused on the vote count in\nArizona in his particular race, and on the margins and allegations of fraud that could potentially\nbenefit him personally as a candidate.\nP16\nin turn, responded by giving the defendant his\nassessment of the defendant's electoral prospects in Arizona-prospects that were dim.503 The\ndefendant did not ask about the vote counts for, or claim fraud existed in, any race other than his\nown. And he raised fraud claims in this context-about whether he could still win Arizona-not\nin the larger context of election integrity. The defendant claimed that he would deliver evidence\nof election fraud to\nP16\nthen did not.504 The call was a surprise to\nP16\nand unusually short\nand to the point for the defendant, who usually liked to chat.505 In contrast, according to\nP16\nthis call contained little conversation or pleasantries and was solely focused on the vote count in\nthe Presidential race and the defendant's fraud claims. 506\nThis call must also be considered in the context of the conspirators' additional pressure\ncampaign on\nP16\nOn other occasions,\nCC1\ntried to reach\nP16\nbut\nP16\ndeclined to\n502 GA 656-658\nGA 727\n503 See GA 656-658\n). See also GA 667\n504\nGA 657\n505 Id.\n506 Id.\n- 101 -\n\nPage 102:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 102 of 165\naccept the calls. 507 And on November 30, the day\nP16\nsigned the certificate of ascertainment\ndeclaring Biden's electors the legitimate ones for Arizona, the defendant (joined by Pence) again\ncalled\nP16\nagain raised fraud claims, and again failed to substantiate them. 508\nWhen\nP16\nfailed to do as the defendant demanded, after the call, the defendant attacked\nP16\npublicly\nthrough Twitter. 509\nEach of these communications with\nP16\nwas unofficial. The defendant engaged in them\nall in his capacity as a candidate, in an attempt to elicit\nP16\nsupport in re-installing him as\npresident.\nb. Meeting with Michigan legislators (Superseding Indictment, ECF No. 226\n\" 36; supra pp. 31-34)\nThe defendant's November 20 Oval Office meeting with Michigan state legislators was\nprivate in nature. During the meeting, the defendant raised claims of election fraud in the state\nrelated specifically and only to his own election, and the legislators explained that the defendant\nhad lost not because of fraud but because he had underperformed with educated female voters. 510\nAlthough the meeting took place in the Oval Office-as did many unofficial Campaign meetings\nin which the defendant participated in the post-election period511 a close examination of all of\nthe other circumstances surrounding the meeting makes clear that it was a Campaign meeting.\n507\nGA 661\n508\nGA 658-659, 667-668\n509 GA 831-834 (Donald J. Trump Tweet 11/30/2020); GA 835-836, GA 1892 (Donald J. Trump\nTweet 11/30/2020).\n510 GA 563-564\n511 See, e.g., GA 723, 725\n); GA 728-730\n); GA 737-738\n); GA 732\n); GA 739-740\nGA 746\n;\n- 102 -\n\nPage 103:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 103 of 165\nThe defendant originally initiated the meeting through RNC Chairwoman\nP39\na private and partisan actor, and then followed up himself with\nP37\nand\nP38\nboth\nfellow Republicans and strong political supporters of the defendant.512\nCf. Trump, 144 S. Ct.\nat 2340 (suggesting the President acts in an unofficial capacity when acting as \"party leader\").\nAlthough the defendant did not specify the topic of the meeting in advance, both\nP37\nand\nP38\nassumed-correctly-that the defendant wanted to see them to discuss claims of\nelection fraud related to his own race.513 Notably, the defendant did not include in the meeting\ninvitation other Michigan officials who held positions more relevant to the election and\ncertification-the Governor and Secretary of State-but who were not Republicans. 514\nAt the time, public interest and alarm were piqued by news that the defendant was meeting\nwith legislators from a state where there were pending election disputes and where the Governor\nhad not yet signed a certificate of ascertainment, and the White House declined to state the topic\nof the meeting.515 During a press conference on the morning of November 20, White House Press\nSecretary\nP60\nwas asked about the meeting and claimed, \"This is not an advocacy\nmeeting. There will be no one from the Campaign there. He routinely meets with lawmakers from\nall across the country.\"516\nP60\nclaim was false. Over the course of the meeting, the defendant dialed in both\nP39\ndespite her request not to participate-and\nCC1\n1517\nThe defendant's Chief of\n512 GA 69-71\n); GA 555-557(\n513 GA 556-559\n514 GA 559-561\n); GA 71-74\n515 GA 1712 (Email from the White House Press Office 11/20/2020).\n516 Id. (Email from the White House Press Office 11/20/2020).\n517 GA 330-337\n); GA 82\nGA 560-\n561\n- 103 -\n\nPage 104:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 104 of 165\nStaff,\nP21\nwas present for at least part of the meeting. 518\nBut besides\nP21\nwho\nseparate from his Chief of Staff duties assisted the defendant with Campaign-related logistics,519\nno other Executive Branch staff joined the meeting; in fact, according to\nP9\nhe and\nWhite House Counsel\nP59\nwanted no part of it. 520 As\nP37\nand\nP38\nhad expected,\nthe defendant was focused on his own vote count in Michigan and on claims of fraud that related\nonly to him. 521\nCC1\na private Campaign attorney, then dominated the rest of the meeting with\na monologue of false fraud claims. 522\nThe only reason that there were topics of conversation other than the defendant's claims of\nelection fraud in his race was because the legislators, on their own initiative, brought them up,\nincluding presenting the defendant with a letter on COVID that they had prepared specifically to\nhave something to talk about other than the defendant's unsupported election fraud claims 523_an\nofficial portion of the meeting about which the Government does not intend to elicit testimony at\ntrial. The legislators then took photos with the defendant, and the meeting ended; afterward,\nP21\ntook the group on a tour of the White House. 524\nAs planned, after the meeting,\nP37\nand\nP38\nreleased their statement that publicly\ndisclaimed evidence of outcome-determinative fraud in the election in Michigan. 525 The statement\nalso specified that\nP37\nand\nP38\nhad raised with the defendant issues related to Michigan's\n518 GA 560\nGA 361-362\n519\nGA 348-358\n520 GA 560\nGA 348-354\n); GA 685\n).\n521 GA 560-571\n); GA 74-84\n522 GA 567-569\n-\n523 GA 75, 80-81\n); GA 559, 561-562 (\n524 GA 348-358\n); GA 562\n525 GA 75, 94-95\n); GA 1040 (Joint Statement 11/20/2020).\n- 104 -\n\nPage 105:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 105 of 165\nneed for federal funds to fight COVID.526 When the defendant responded to the legislators' public\nstatement in a Tweet, the private nature of that message, sent as a candidate seeking to overturn\nthe results of his own election-\"We will show massive and unprecedented fraud!\"-further\ndemonstrates the private nature of the meeting it concerned. 527 In addition, it was one of six\nretweets and replies the defendant sent over an approximately thirteen-minute period, all of which\nwere focused on allegations of election fraud in his own race. 528 Notably, the defendant did not\nconduct similar meetings in this period with legislators in states where he had won or even where\nhe had lost by large margins, nor did he seek a meeting with the Michigan officials-the Governor\nand Secretary of State-who could have provided him with information about the integrity of the\nelection. 529\nAs further context establishing the private nature of this meeting, it was the opening volley\nof a larger pressure campaign on the same Michigan legislators by the defendant, his co-\nconspirators, and his Campaign. For example, days after this meeting,\nCC1\nsent text messages\nand\nP38\nto help overturn the results in Michigan. 530\nIn the same\nintended to urge\nP37\ntime period, the Campaign publicized contact information for\nP37\nand\nP38\n(although the\nnumber published for\nP38\nwas wrong) and encouraged the defendant's supporters to flood\ntheir phone lines with complaints. 531\n526 Id. (Joint Statement 11/20/2020).\n527 GA 799-800 (Donald J. Trump Tweet 11/21/2020).\n528\nGA 801-802 (Donald J. Trump Tweet 11/22/2020); GA 803-804 (Donald J. Trump Tweet\n11/22/2020); GA 805-806 (Donald J. Trump Tweet 11/22/2020); GA 807-808 (Donald J. Trump\nTweet 11/22/2020); GA 809-810 (Donald J. Trump Tweet 11/22/2020); GA 811-812 (Donald J.\nTrump Tweet 11/22/2020)).\n529 GA 559-561\n); GA 71-74 (\n530\nGA 1175\n; GA 1177\n531 GA 913-914 (Team Trump Tweet 01/03/2021).\n- 105 -\n\nPage 106:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 106 of 165\nc. Call with\nP18\n(Superseding Indictment, ECF No. 226 | 19; supra\np. 19)\nThe defendant's call to\nP18\non November 22, 2020, also was unofficial. 532 Along with\nhis private attorney, the defendant made the call in his capacity as a candidate and pressured\nP18\non electoral matters over which neither the defendant-nor even\nP18\nhad an official\nrole.\nThe context of the call makes its unofficial nature clear. The defendant placed the call to\nP18\nalong with\nCC1\nhis lead Campaign attorney, and no White House officials participated\nin the call.533 In fact,\nCC1\ndid most of the talking. 534 The defendant and\nCC1\nwere\nsingularly focused on fraud claims that affected only the defendant, and did not raise any other\nraces in Arizona. 535\nAnd the content of the call confirmed it was unofficial: the defendant and his\nprivate attorney asked\nP18\nthe defendant's political ally, to take steps to replace Arizona's\nlegitimate electors with illegitimate ones for the defendant-a step that necessarily only affected\nthe defendant's race, out of all the races on the same ballot.536\nThe call must also be viewed in the larger context of the pressure campaign the defendant\nand his co-conspirators put on\nP18\nand other Arizona officials. Immediately after speaking to\nP18\nthe defendant and\nCC1\nspoke to Arizona State Senate President\nP61\n537\nA\nweek later, during the \"hotel hearing,\"\nCC1\nand P12 failed to bring the promised evidence and\ninstead admitted \"[w]e don't have the evidence, but we have lots of theories.\"53\nSee supra p. 19.\n532 GA 735\nGA 21-22(\n533 GA 21-22\n534 GA 22-31\n535 Id.\n536 GA 22-25, 32-34\n537 GA 735\n538 GA 36\n- 106 -\n\nPage 107:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 107 of 165\nWhen\nP18\npublicly announced that he would not take extralegal action on the defendant's\nbehalf,\nP19\nand the defendant attacked\nP18\non Twitter. 539 Then, days before January 6,\nCC2\nmade another attempt to convince\nP18\nto act in contravention of the law and his\nprinciples.540 And just as was done with the Michigan legislators, the defendant's Campaign and\nP1\npublicized contact information for\nP18\nand P61\nin an attempt to pressure them to\nundertake the same actions the defendant and co-conspirators had asked them privately to\nperform. 541\nP18\nlike others who publicly opposed the defendant's efforts, was harassed and\nthreatened. 542\nd. Call to\nP26\n(supra pp. 23-24)\nThe defendant's call on December 8 to P26\nthe Georgia Attorney General, also was\nprivate. He undertook it to speak with P26\nabout Texas v. Pennsylvania, a lawsuit filed by the\nTexas Attorney General against Pennsylvania, Georgia, Michigan, and Wisconsin seeking to\nprevent those states from certifying their election results in favor of Biden based on a claim that\nthe manner in which those states had administered their elections had violated the Constitution. 543\nThe defendant's interest in Texas v. Pennsylvania was personal and private; the lawsuit\ndealt only with the election for the offices of President and Vice President, not the myriad other\nraces on the same ballots. Indeed, the day after his call with\nP26\nthe defendant-in his personal\ncapacity and with the assistance of co-conspirator\nCC2\nas his private attorney-intervened in\n539\nGA 854-855 (Donald J. Trump Tweet 12/06/2020); GA 852-853 (Donald J. Trump Tweet\n12/06/2020).\n540 GA 37-44\n541 GA 915 (Team Trump Facebook Post 01/02/2021); GA 916 (Team Trump Tweet 01/02/2021);\nGA 1982 at 22:00\n); see also GA 1713-1715\n542 GA 45-47\n543\nGA 61-64\n); Mot. for Leave to File Bill of Complaint, Texas v.\nPennsylvania, No. 22-O-155 (S. Ct. Dec. 7, 2020).\n- 107 -\n\nPage 108:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 108 of 165\nthe suit544 and in so doing \"affirmatively communicated to the Supreme Court (and the public) that\nhe was acting and speaking in that matter in his 'personal capacity' as a candidate for reelection.\"\nBlassingame, 87 F.4th at 16.\nThe defendant initiated the call with P26 after a political intermediary laid the groundwork\nfor it, and immediately raised the lawsuit, which was the principal topic of conversation on the\ncall.545 Based on P26's estimate and the Presidential Daily Diary, the call lasted about ten minutes\nand the defendant placed it at night from his private residence in the White House.546 In fact,\nshortly before speaking with P26, the defendant had spoken with\nP62\nthe Texas Attorney\nGeneral who had filed the lawsuit,547 and immediately after speaking with P26, the defendant\ncalled\nP63\nthe Missouri Attorney General who authored an amicus brief supporting the\nlawsuit that sixteen other state attorneys general joined.548\nThe speed of the filing of the defendant's intervention brief the following day echoed what\nhe told P26 : he was \"running out of time,\"549 presumably because landmark dates in the electoral\nprocess, like December 14 and January 6, were fast approaching. Lastly, the defendant and P26\nalso spoke about the importance of their fellow Republican party members, Senators\nP27\nand\nP28\nwinning their pending election-further making clear this call was unofficial. 550\n544 Mot. to Intervene, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 9, 2020).\n545\nGA 64\n546 GA 67\n; GA 742\n547 GA 742\n; Mot. for Leave to File Bill of Complaint, Texas\nv. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 7, 2020).\n548 GA 742\n; Brief of Missouri et al. as Amici Curiae\nSupporting Plaintiff, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 9, 2020).\n549 GA 66\n550 GA 67\n- 108 -\n\nPage 109:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 109 of 165\ne. Call to\nsupra pp. 28-31)\nP33\n(Superseding Indictment, ECF No. 226 | 33;\nThe defendant's January 2 call to\nP33\nwas unofficial and is not subject to\nimmunity; its content, form, and context make clear that the defendant undertook it as a candidate\nand plaintiff in a private lawsuit in which\nP33\nwas a defendant.\nP21\nhas said that the purpose of the call was to discuss the lawsuit, 551 and he acted\naccordingly during it. At the outset of the call,\nP21\nmade introductions of all the participants\non the defendant's behalf-\nP32\nP36\nand\nP31\n552\nall of whom were affiliated with\nthe Campaign's litigation efforts, which the defendant brought in his capacity as a candidate for\nPresident of the United States. 553\nThroughout the call, the defendant and his advisors approached the conversation through\nhis role as a candidate and with a focus on his private lawsuit. For instance, in an apparent\nreference to individuals retained for his private lawsuit, the defendant claimed, \"We're going to\nhave an accurate number over the next two days with certified accountants. But an accurate\nnumber will be given, but it's, it's in the fifties of thousands, and that's people that went to vote\nand they were told they can't vote because they've already been voted for.\"554 Some of his false\nclaims of fraud paralleled claims made in Campaign lawsuits, such as that of a substantial number\nof dead and non-resident voters-for example, in Trump v. Raffensperger, a state court case whose\ncomplaint was appended to the federal suit Trump v. Kemp, the defendant's complaint asserted\nthat 4,926 out-of-state voters had cast ballots, while on the call the defendant cited the number\n551 GA 367-368\n552 GA 1154 (Tr. of Call 01/02/2021).\n553 Complaint at 1, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.\n554 GA 1154 (Tr. of Call 01/02/2021).\n- 109 -\n\nPage 110:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 110 of 165\n4,925.555 And he deferred to his private attorneys at multiple points throughout the conversation.\nFor instance, after\nP33\ntold the defendant, \"the challenge that you have is the data you\nhave is wrong,\" the defendant turned to\nP31\nand asked, \"Well, P31 , how do you respond to\nthat?\"556 At one point,\nP21\ninterjected and invoked the Campaign's litigation, asking\nwhether \"we can find some kind of agreement . .. to find a path forward that's less litigious.\"557\nAnd near the end of the call,\nP32\nthe defendant's lead counsel in the lawsuit against\nP33\nrequested \"to sit down with your office, and we can do it through purposes of\ncompromise just like this phone call\" to review data.558\nP33\ncounsel,\nP35\nresponded that\nP32\ns cited numbers were inaccurate, but agreed to meet with him.559\nThe defendant's call to\nP33\nwas purely a private one, which he undertook as a\ncandidate and the plaintiff in a lawsuit. Indeed, a federal district court has concluded that the\nP33\ncall was a Campaign call rather than official business; when\nP21\nsought\nremoval to federal court of his criminal case in Fulton County, Georgia, a court in the Northern\nDistrict of Georgia issued an order declining to assume jurisdiction because\nP21\nhad failed\nto meet his burden of showing that his role in the call was official rather than unofficial. See\nGeorgia v. Meadows, 692 F. Supp. 3d 1310, 1332 (N.D. Ga. 2023), aff'd 88 F. 4th 1331, 1349\n(11th Cir. 2023) (petition for cert. filed) (\"\ns participation in the call reflected a clear\nattempt to further Trump's private litigation interests . .\n.\") (emphasis in original)); see also\nArizona v. Meadows, No. CV-24-02063-PHX-JJT, 2024 WL 4198384, at *7 (D. Ariz. Sept. 16,\n555 Complaint at 19, Trump v. Raffensperger, No. 2020CV343255 (Ga. Super. Ct. Dec. 4, 2020)\navailable at: Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1-1 at 12-79.\n556 GA 1159 (Tr. of Call 01/02/2021).\n557 GA 1157 (Tr. of Call 01/02/2021).\n558 GA 1170 (Tr. of Call 01/02/2021).\n559 GA 1170-1171 (Tr. of Call 01/02/2021).\n- 110 -\n\nPage 111:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 111 of 165\n2024) (similarly denying\nnotice of removal to federal court of a criminal case in\nArizona related to the defendant's fraudulent elector plan on the basis that\nconduct in\nfurtherance of the plan charged by the State \"is unrelated to\nofficial duties\").\n2. Even if the defendant's contacts with state officials were official, the\nGovernment can rebut the presumption of immunity\nAlthough the Supreme Court did not resolve the issue in Trump, it described the basis for\nconcluding that using the defendant's conduct of lying to and pressuring state officials to change\nthe legitimate vote in a criminal prosecution would not intrude on Executive Branch functions or\nauthority:\nIndeed, the Constitution commits to the States the power to \"appoint\" Presidential\nelectors \"in such Manner as the Legislature thereof may direct.\" Art. II, \u00a7 1, cl. 2;\nsee Burroughs v. United States, 290 U.S. 534, 544 (1934). \"Article II, \u00a7 1's\nappointments power,\" we have said, \"gives the States far-reaching authority over\npresidential electors, absent some other constitutional constraint.\" Chiafalo v.\nWashington, 591 U.S. 578, 588-589 (2020). By contrast, the Federal\nGovernment's role in appointing electors is limited. Congress may prescribe when\nthe state-appointed electors shall meet, and it counts and certifies their votes. Art.\nII, \u00a7 1, cls. 3, 4. The President, meanwhile, plays no direct role in the process, nor\ndoes he have authority to control the state officials who do. And the Framers, wary\nof \"cabal, intrigue and corruption,\" specifically excluded from service as electors\n\"all those who from situation might be suspected of too great devotion to the\npresident in office.\" The Federalist No. 68, at 459 (A. Hamilton); see Art. II, \u00a7 1,\ncl. 2.\n144 S. Ct. at 2339. Under the Constitution, the Executive Branch has no constitutionally assigned\nrole in the state-electoral process. To the contrary, the constitutional framework excludes the\nPresident from that process to protect against electoral abuses. See supra p. 93. Accordingly,\napplying federal criminal law to the defendant's use of fraud to interfere with electoral processes\ncarried out by the states does not intrude on Executive Branch authority or functions. Rather, it\nensures that the President's conduct remains consistent with the Constitution's allocation of that\nauthority to the States, while in no way impairing his ability to \"encourage [state officials] to act\n- 111 -\n\nPage 112:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 112 of 165\nin a manner that promotes the President's view of the public good.\" 144 S. Ct. at 2338. The\nPresident remains free, for instance, to urge state officials to institute measures to combat a\npandemic or make arrangements to provide emergency relief. This case does not remotely\nimplicate such official conduct. What neither the President nor any other candidate may do is\nfurther his private campaign for office by using fraudulent means to have state officials certify him\nas winner of a presidential election despite the will of the voters. Accordingly, applying criminal\npenalties to that conduct will not intrude on any Executive Branch authority or function.\nC. The defendant's efforts, as a candidate, to organize fraudulent electors\n1. The conduct at issue was unofficial\nThe defendant's conduct with respect to the elector scheme is inherently private, and not\nsubject to immunity. See 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part) (\"Sorting private\nfrom official conduct sometimes will be difficult-but not always. Take the President's alleged\nattempt to organize alternative slates of electors. In my view, that conduct is private and therefore\nnot entitled to protection.\"). The President of the United States has no official responsibilities\nrelated to the organization or voting of electors in the various states-by virtue of the Constitution,\nthat process takes place in the states according to the laws and procedures set forth by each state.\nSee U.S Const., Art. II, \u00a7 1, cl. 2. At oral argument before the Supreme Court, the defendant\ninitially conceded that the plan to submit fraudulent electors directed by the defendant and\nCC1\nwas not official. Tr. of Oral Argument at 29-30; Trump, 144 S. Ct. at 2338. The Government\nnonetheless sets forth here the context, form, and content of the defendant's private contacts with\nRNC Chairwoman\nP39\nin furtherance of the fraudulent elector plan because the defendant\nconversely suggested in the same oral argument that he will argue that those efforts were official.\nSee 144 S. Ct. at 2338.\n- 112 -\n\nPage 113:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 113 of 165\nThe defendant had two relevant contacts with\nP39\nfirst, he and co-conspirator\nCC2\nP39\ncalled\non December 6 to ask her to ensure that the effort was properly\ncoordinated (Superseding Indictment, ECF No. 226 | 53; supra p. 50), and second, on the evening\nof December 14,\nP39\nemailed the defendant through his executive assistant,\nP42\nto\ninform him that the fraudulent electors had cast votes as he had directed (Superseding Indictment,\nECF No. 226 | 66; supra p. 57).\nThe defendant and\nCC2\ncall to\nP39\non December 6 was private. The defendant\nplaced the call along with\nCC2\na private attorney and co-conspirator, to\nP39\nthe\nChairwoman of a political organization whose objective was to elect a broad set of Republicans at\nthe federal and state level, including the defendant and other allied candidates. 560\nCC2\nwas\nacting in his capacity as a private attorney for the defendant; on the same day,\nCC2\nemailed\nwith several other private attorneys and wrote, \"This is huge - and hugely important. Let's make\nsure the various state electors are aware of the absolute necessity of meeting on the 14th, casting\ntheir votes, and otherwise complying with the transmittal requirements of federal law.\"561 Finally,\nthe content of the call was likewise unofficial. The defendant and\nCC2\nasked\nP39\nto\nwork with the Campaign, to ensure that the fraudulent electors were properly organized, which she\nagreed to do-and did, as is clear from her further contacts with\nCC1\nand\nCC6\nregarding\nthe plan. 562\nP39\nemail to the defendant on December 14 was likewise a private communication;\nP39\nsimply forwarded the defendant an RNC communication summarizing the electoral vote\n560 GA 323-325\n561 GA 1716-1717\n562\nGA 323-325\nGA 1286-1287\n); GA 1326-1327\nGA 1288-1290\n- 113 -\n\nPage 114:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 114 of 165\nto inform him that the private task the defendant had given her was complete, and\nP42\nconfirmed that she had relayed the message by writing, \"It's in front of him!\"563 As discussed\ninfra pp. 145-147, when a White House staffer facilitates unofficial conduct by relaying private,\npolitical communications, the private action is not converted to an official one simply because an\nExecutive Branch aide helps carry it out.\n2. Even if the conduct were deemed official, the Government could rebut the\npresumption of immunity\nIn any event, even if the defendant's efforts to convene fraudulent electors could be\nconsidered official, the presumption would be rebutted because \"a President has no legal\nauthority-and thus no official capacity-to influence how the States appoint their electors,\" and\naccordingly, there is \"no plausible argument for barring prosecution of that alleged conduct.\"\nTrump, 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part). \"[W]hile Congress has a limited\nrole [in the appointment of Presidential electors], the President has none.\" Id. Accordingly,\napplying the criminal law to the defendant's \"alleged attempt to organize alternative slates of\nelectors,\" while properly viewed as prosecution for private conduct, see id., implicates no authority\nor functions of the Executive Branch-and therefore including such conduct in the defendant's\nprosecution poses no danger of intruding on Executive Branch authority or functions. No federal\nexecutive function is impaired by applying criminal law to the alleged conduct of privately\norganizing fraudulent slates of electors.\n563 GA 328-329\nGA 1483-1484 (\n- 114 -\n\nPage 115:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 115 of 165\nD. The Defendant's Public Speeches, Tweets, and Other Public Statements as a\nCandidate\n1. The statements at issue were unofficial\nMerely because the President is speaking to the public-even on \"matters of public\nconcern\"-does not automatically render the communication official. Blassingame, 87 F.4th at\n19-20. Instead, what matters is \"whether the President is speaking (or engaging in conduct) in an\nofficial capacity as office-holder or instead in an unofficial capacity as officer-seeker,\" id. at 19,\nas determined by \"content, form, and context,\" Trump, 144 S. Ct. at 2340. Starting before the\nelection and lasting until January 6, the defendant at various times communicated publicly not as\nPresident but as a candidate for office. These communications included public Campaign\nspeeches, Tweets, and other public statements and comments. The defendant's communications\nthat the Government has alleged in the superseding indictment and described in Section I were all\nmade in his capacity as a candidate and are not official.\na. Speeches\nThe defendant made a number of speeches as a candidate, rather than as an office-holder.\nSee 144 S. Ct. at 2339-40 (\"There may ... be contexts in which the President, notwithstanding the\nprominence of his position, speaks in an unofficial capacity-perhaps as a candidate for office or\nparty leader.\"). The superseding indictment cites, and the Government plans to use at trial, two:\nthe defendant's Campaign speech at a political rally in Dalton, Georgia, on January 4, 2021, and\nhis Campaign speech at a political rally on the Ellipse on January 6, 2021.\n- 115 -\n\nPage 116:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 116 of 165\ni.\nDalton, Georgia, on January 4, 2021 (supra p. 68)\nIn his capacity as a candidate, the defendant traveled to Dalton, Georgia, on January 4 at\nthe invitation of two Republican U.S. Senators who were competing in a run-off election the\nfollowing day to retain their seats. The RNC paid for the event. 564\nThe White House's records, including the trip binder that White House staff prepared for\nthe event and that includes a schedule and manifests, further confirm the private nature of the\nDalton speech.565 The defendant was the only Executive Branch participant in the event-other\nattendees were federal and state elected officials, the Chairman of the Georgia Republican Party,\nand the founder of Bikers for Trump. 566 The trip binder included a Hatch Act disclaimer stating\nthat \"employees of the Federal Government may not use their official title or position when\nparticipating in a political event.\"567 Its description of the \"event\" to which the defendant was\ntraveling was \"Remarks at Victory Rally.\"568 Similarly, the Presidential Daily Diary from that day\ndescribes that \"[t]he President made remarks at the Georgia Senate Victory Rally.\"569\nThis\nnomenclature-the use of the phrase \"Victory Rally\"-is significant. \"Victory\" necessitates one\npolitical candidate or party defeating another, and rallies are the kinds of events that candidates\nhold to excite their supporters and garner votes.\n564 GA 1718-1724\n; GA 1725-1729\n); GA 1730-1732\nD; GA 1733-1736\n); GA 1743\n); GA 1744\n);\nGA 1741\n; GA 1745-1746\nGA 1747\n; GA 1739\n565 GA 1751-1755\n566 GA 1752\n567 Id.\n568 Id.\n569 GA 767\n- 116 -\n\nPage 117:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 117 of 165\nMoreover, the defendant's Campaign sent numerous fundraising emails before, during, and\nafter the speech, confirming the event's private nature. In a January 4 email around 3:00 p.m., the\nCampaign sent a fundraising email with the subject line \"EPIC Rally in 6 HOURS,\" that began,\n\"President Trump is heading to GEORGIA for a RALLY with Senators\nP28\nand P27\n- This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU,\nare fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff\nElection is TOMORROW, and it's going to take the support of Patriots from all around the Nation\nif we're going to WIN BIG and SAVE America from the Radical Left.\"570 Later, at 9:21 p.m., the\nCampaign sent a fundraising email (in the name of the defendant's son) that began, \"My father is\non stage RIGHT NOW in Georgia rallying with Senators\nP28\nand\nP27\nto\nDEFEND our Senate Republican Majority. Are YOU watching?\"571 The email reminded voters\nthat \"The Senate Runoff Election is TOMORROW and YOU are the only one who can stop [\"the\nLeft\"] from taking over.\"572 Another email at 10:41 p.m. (sent in the name of the defendant) began,\n\"I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators P28\nand\nP27\nThe energy of the American People was UNMATCHED and I know\nwe're going to WIN BIG tomorrow.\"573\n570\nSee, e.g., GA 1759-1762 (Campaign Fundraising email 01/04/2021); GA 1763-1765\n(Campaign Fundraising email 01/04/2021); GA 1766-1767\n); GA 1768-1771 (Campaign Fundraising email 01/04/2021).\n571 See, e.g., GA 1772-1775 (Campaign Fundraising email 01/04/2021); GA 1776-1778\n(Campaign Fundraising email 01/04/2021); GA 1779-1780\n); GA 1781-1784 (Campaign Fundraising email 01/04/2021).\n572 Id.\n573\nSee, e.g., GA 1785-1788 (Campaign Fundraising email 01/04/2021); GA 1789-1791\n(Campaign Fundraising email 01/04/2021); GA 1792-1793\n); GA 1794-1797 (Campaign Fundraising email 01/04/2021).\n- 117 -\n\nPage 118:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 118 of 165\nFinally, the content of the Dalton speech confirms its unofficial nature. The defendant\nbegan by telling the crowd, \"Tomorrow, each of you is going to vote in one of the most important\nrunoff elections in the history of our country. ... You're going to get everyone you know. You're\ngoing to show up to the polls in record numbers. You got to swamp them, and together, we're\ngoing to defeat the Democrat extremists and deliver a thundering victory to\nP27\nAnd someone that has really been a star in Washington,\nP28\n574\nHe also used the\nspeech to pressure Pence.575 Much of the speech then veered into the defendant's principal claims\nof fraud and irregularities in the presidential election, but he occasionally returned to the theme of\nthe following day's election, including discussion of the Democratic candidates. 576\nii.\nThe Ellipse on January 6, 2021 (Superseding Indictment, ECF No. 226\n\" 86; supra pp. 75-78)\nThe \"content and context\" of the Ellipse rally, including the people involved in \"organizing\nthe rally,\" Trump, 144 S. Ct. at 2340, demonstrate that it too consisted of non-official conduct.\nThe Ellipse rally-named the Save America Rally or the March for Trump-was planned and\nexecuted by private political supporters, including Women For America First (WFAF), a 501(c)(4)\norganization that advocated for the defendant's reelection in advance of election day in 2020 and\nthroughout the post-election time period.577 Cf. Trump, 144 S. Ct. at 2340 (\"Knowing . . . who\nwas involved in . . . organizing the rally[] could be relevant to the classification\" of the Ellipse\nspeech as official or unofficial.). The Ellipse rally was originally planned to take place at Freedom\nPlaza, but after WFAF began to plan the rally independent of the defendant,\nP64\na\n574 GA 1089 (Dalton Rally Speech Draft Tr. 01/04/2021).\n575 GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).\n576 GA 1091 (Dalton Rally Speech Draft Tr. 01/04/2021).\n577 GA 299-300\n; GA 485-486\n); GA\n653\nGA 1801-1802\n- 118 -\n\nPage 119:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 119 of 165\nprivate fundraiser for the defendant, contacted WFAF to discuss moving the event to the Ellipse\nand featuring the defendant as a guest.578\nThe organizers and planners of the event were almost\nexclusively private individuals, with minimal involvement by White House advance staff. The\nUnited States Secret Service, which is charged with the President's protection at all times, even\nduring unofficial events, considered the rally to be \"a campaign event.\"579\nThe rally was\ncompletely funded by a $2.1 million private donation by\nP65\na grocery chain heiress.580\nThis private funding, while not dispositive, is a strong indicator that the event was unofficial.\nP66\nthe rally organizer who had the most direct contact with the defendant, was an\nemployee of the defendant's Campaign until December 31, 2020, and after that, a private citizen. 581\nAnd in public statements since leaving office, the defendant has said repeatedly that he \"had\nnothing to do with\" the rally \"other than they asked me to make a speech. I showed up for a\nspeech.\"582\nFor weeks leading up to the event, the defendant promoted it on Twitter using the word\n\"rally\"-a word that the defendant, on his Twitter account, reserved almost exclusively for\npolitical and Campaign events. As with the trip binder for the Dalton remarks, the defendant's trip\nbinder for the Ellipse speech also reinforces the private nature of the event. Although it does not\n578 GA 301-302\n; GA 1804\n579 GA 399-403\nthen the Special Agent in Charge\nof the Washington Field Office of the Secret Service, elaborated that the defendant's protective\ndetail \"wasn't getting information [about the rally] from their counterparts at the White House staff\nbecause this was not a staff-driven event. This was a campaign driven event.\" GA 399.\n580 GA 645-652\nGA 1142\n); GA 1805-1818\n); GA 1895\nGA 1819-1822\n581 GA 483-484\n582 Riley Hoffman, Read: Harris-Trump presidential debate transcript (Sept. 10, 2024, 11:58 PM),\navailable\nat\nhttps://abcnews.go.com/Politics/harris-trump-presidential-debate-transcript/\nstory?id=113560542; see also GA 1692 (Transcript of CNN Town Hall 05/10/2023).\n- 119 -\n\nPage 120:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 120 of 165\ninclude the same Hatch Act disclaimer-perhaps because the event, in contrast to the Dalton rally,\nwas not for the benefit of another political candidate-it describes the event as the defendant's\n\"Remarks at the Save America Rally\"-using a word, \"rally,\" that reflected an unofficial,\nCampaign-related event. 583\nThe defendant's White House employees understood the rally and the defendant's speech\nat it to be a private, unofficial exercise and acted accordingly. Consistent with the Hatch Act's\nrequirement that officials within the Executive Branch (other than the President or Vice President)\nmust refrain from using their official authority for partisan political purposes, see 5 U.S.C.\n\u00a7 7323(a)(1), on the morning of the rally, an email from White House photographer\nP67\non which\nP45\nwas copied, provided \"[a] reminder today is a political event.\"584\nLikewise, the defendant's White House speechwriting staff understood that the speech was a\npolitical, unofficial one and used their personal devices and personal email accounts to do most of\nthe drafting and fact-checking for the defendant's Ellipse speech, though some last revisions to the\nspeech on the morning of January 6 occurred over White House email. 585 And officials in the\nWhite House Counsel's Office who customarily reviewed the defendant's official remarks\npointedly did not review the Ellipse speech because it was an unofficial Campaign speech.586\nSimilarly, the White House website in the moments after the defendant's speech at the rally made\nno mention of it-instead, the official webpage touted official accomplishments like COVID\n583 GA 1827-1832\n584 GA 1833\n); GA 539\n585 See GA 636\n); GA 191-192\nGA 1834-1843\n); GA 1681\n586 GA 105\nGA 476-477\n- 120 -\n\nPage 121:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 121 of 165\nvaccines and peace in the Middle East.587 By contrast, the speech was advertised heavily by the\ndefendant's Campaign Twitter account, which also repeatedly posted clips of the event in progress\nand afterward. 588\nThe day-of logistics of the Save America Rally further indicate its private nature. No other\nExecutive Branch officials spoke. Instead, other speakers included WFAF officials, the\ndefendant's political allies, two U.S. Representatives, and the defendant's co-conspirators and\nprivate attorneys,\nCC1\nand\nCC2\n589\nMoreover, the defendant's appearance was consistent with a Campaign rally, not an official\nevent. The crowd at the rally consisted of the defendant's political supporters, who held signs and\nwore clothing bearing the defendant's Campaign slogans. 590\nAnd the manner in which the\ndefendant took the stage at the rally was also consistent with his Campaign rallies: instead of\nentering as a military band played Hail to the Chief, as he might at an official presidential event,\nthe defendant entered and exited the Ellipse speech to the songs he had used throughout his\nCampaign (Lee Greenwood's \"God Bless the U.S.A.\" and the Village People's \"Y.M.C.A.\"591).\n587\nSee The White House Home Page (screenshot), WHITEHOUSE.GOV (Jan. 6, 2021)\nhttps://web.archive.org/web/20210106154456/https:/www.whitehouse.gov/.\n588 GA 954 (Team Trump Facebook Post 01/06/2021); GA 955 (Team Trump Facebook Post\n01/06/2021); GA 956 (Team Trump Facebook Post 01/06/2021); GA 957 (Team Trump Tweet\n01/06/2021); GA 958 (Team Trump Tweet 01/06/2021); GA 959 (Team Trump Tweet\n01/06/2021); GA 960 (Team Trump Tweet 01/06/2021); GA 961 (Team Trump Tweet\n01/06/2021); GA 962 (Team Trump Tweet 01/06/2021); GA 963 (Team Trump Tweet\n01/06/2021).\n589 GA 1928 (Video of Ellipse Rally 01/06/2021).\n590\nSee GA 1913 (Video of Ellipse Rally 01/06/2021); GA 1908 (Video of Ellipse Rally\n01/06/2021).\n591\nCompare KJRH-TV Tulsa, President Trump arrives at White House, YouTube\nhttps://www.youtube.com/watch?v=j7u5obMd18A with GA 1928 at 3:28:50 and 4:42:55 (Video\nof Ellipse Rally 01/06/2021).\n- 121 -\n\nPage 122:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 122 of 165\nTellingly, the significant similarities with the defendant's Dalton Campaign speech592\nconfirm that the Ellipse speech593 delivered just two days later-was private, partisan\nelectioneering. The defendant covered many of the same topics and told many of the same lies\nabout fraud in only his election-in some cases, using the exact same words. For instance:\n. The defendant, as a candidate, falsely claimed he had won the election (Dalton at GA 1102:\n\"I ran two elections. I won both of them. Second one, much more successful than the\nfirst.\" Ellipse at GA 1115: \"I've been in two elections; I won them both, and the second\none I won much bigger than the first.\").\n. The defendant, as a candidate and the leader of a political party, implored political\nsupporters to pressure Pence (Dalton at GA 1090: \"I hope Mike Pence comes through for\nus, I have to tell you. I hope that our great Vice President, our great Vice President comes\nthrough for us. He's a great guy. Of course, if he doesn't come through, I won't like him\nquite as much.\" Ellipse at GA 1116: \"I hope Mike is going to do the right thing. I hope\nso. I hope so. Because if Mike Pence does the right thing, we win the election.\").\n\u00b7 The defendant, as a candidate and the leader of a political party, attacked a fellow party\nmember who had been insufficiently subservient (Dalton at GA 1104: Georgia Governor\nP17\nwas an \"incompetent governor.\" Ellipse at GA 1125:\nP17\nwas \"one of the\ndumbest governors in the United States.\").\n\u00b7 The defendant, who in his capacity as a candidate had suffered personal legal defeats in his\nprivate, election-related litigation at the Supreme Court, attacked it (Dalton at GA 1095:\n\"I'm not happy with the Supreme Court. They are not stepping up to the plate. They're\nnot stepping up.\" Ellipse at GA 1125: \"I'm not happy with the Supreme Court. They love\nto rule against me.\").\n\u00b7 The defendant, as a candidate, made myriad false claims regarding fraud in the presidential\nelection, including:\nO\nArizona\nNon-citizens cast 36,000 votes (Dalton at GA 1106: \"In Arizona, more than\n36,000 votes were cast by non-citizens.\" Ellipse at GA 1134: \"Over 36,000\nballots were illegally cast by non-citizens.\"); and\n592 See GA 1088 (Dalton Rally Speech Draft Tr. 01/04/2021).\n593 See GA 1114 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n- 122 -\n\nPage 123:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 123 of 165\n\" There were more ballots than voters (Dalton at GA 1106: \"There were\n11,000 more ballots than there were voters.\" Ellipse at GA 1134: \"11,600\nmore ballots and votes were counted, more than there were actual voters.\").\no Georgia\n\" There were more than 10,000 dead voters (Dalton at GA 1103: \"We were\nup. 10,315 ballots were cast by individuals whose name and date of birth\nmatches a Georgia resident who died in 2020 prior to the election. Then\nyour wacky secretary of state said two people, two people.\" Ellipse at GA\n1133-1134: \"Over 10,300 ballots in Georgia were cast by individuals whose\nnames and dates of birth match Georgia residents who died in 2020 and\nprior to the election.\");\n\u00b7 More than 2,500 ineligible felons voted (Dalton at GA 1103: \"2,506 ballots\nwere cast by individuals whose name and date of birth matches an\nincarcerated felon in a Georgia prison. Maybe they aren't all there, but they\ndid a lot of work. I paid a lot of money to a lot of people. I can tell you\nthat.\" Ellipse at GA 1134: \"More than 2,500 ballots were cast by\nindividuals whose names and dates of birth match incarcerated felons in\nGeorgia prison-people who are not allowed to vote.\");\n\u00b7 Thousands of unregistered people voted (Dalton at GA 1103: \"4,502 illegal\nballots were cast by individuals who do not appear on the state's voter\nrolls.\" Ellipse at GA 1134: \"More than 4,500 illegal ballots were cast by\nindividuals who do not appear on the state's own voter rolls.\");\n. More than 18,000 voters used vacant addresses (Dalton at GA 1103:\n\"18,325 illegal ballots were cast by individuals who registered to vote using\nan address listed as vacant according to the postal service.\" Ellipse at GA\n1134: \"Over 18,000 illegal ballots were cast by individuals who registered\nto vote using an address listed as 'vacant,' according to the Postal\nService.\");\n\u00b7 At least 88,000 ballots were illegally backdated (Dalton at GA 1103: \"At\nleast 86,880 ballots were cast by people whose registrations were illegally\nbackdated.\" Ellipse at GA 1134: \"At least 88,000 ballots in Georgia were\ncast by people whose registrations were illegally backdated.\");\n\u00b7 Underage voters cast 66,000 ballots (Dalton at GA 1103: \"66,000 votes in\nGeorgia were cast by people under the legal voting age.\" Ellipse at GA\n1134: \"66,000 votes-each one of these is far more than we need. 66,000\nvotes in Georgia were cast by individuals under the legal voting age.\"); and\n- 123 -\n\nPage 124:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 124 of 165\n\u00b7 15,000 voters had moved out of the state before the election (Dalton at GA\n1103: \"At least 15,000 ballots were cast by individuals who moved out of\nthe state prior to the November 3rd election, or maybe they moved back in.\"\nEllipse at GA 1134: \"And at least 15,000 ballots were cast by individuals\nwho moved out of the state prior to November 3rd election. They say they\nmoved right back. They moved right back. Oh, they moved out; they\nmoved right back. Okay. They missed Georgia that much. I do. I love\nGeorgia. But it's a corrupt system.\").\no Michigan\n\u00b7 17,000 ballots were cast by dead people (Dalton at GA 1106: \"An estimated\n17,000 ballots were cast by dead people.\" Ellipse at GA 1135: \"More than\n17,000 Michigan ballots were cast by individuals whose names and dates of\nbirth match people who were deceased.\").\no Nevada\n\u00b7 Signature verification machines were flawed (Dalton at GA 1106: \"In Clark\nCounty, Nevada, over 130,000 ballots, this is far, just so you know, all these\nnumbers, these are far more than we need, were processed on machines\nwhere the signature matching threshold was intentionally lowered to a level\nthat you could sign your name, 'Santa Claus,' and it wouldn't pick it up.\"\nEllipse at GA 1134: \"In Clark County, Nevada, the accuracy settings on\nsignature verification machines were purposely lowered before they were\nused to count over 130,000 ballots.\"); and\n\" There were tens of thousands of double votes (Dalton at GA 1106: \"More\nthan 42,000 people in Nevada double voted.\" Ellipse at GA 1134: \"There\nwere also more than 42,000 double votes in Nevada.\").\no Pennsylvania\n\" The Commonwealth had more votes than voters (Dalton at GA 1105: \"In\nPennsylvania, there were 205,000 more ballots cast than there were voters.\"\nEllipse at GA 1127: \"So, in Pennsylvania, you had 205,000 more votes than\nyou had voters.\");\n\u00b7 8,000 dead people voted (Dalton at GA 1106: \"Pennsylvania also had an\nestimated 8,000 dead voters.\" Ellipse at GA 1127: \"Over 8,000 ballots in\nPennsylvania were cast by people whose names and dates of birth match\nindividuals who died in 2020 and prior to the election.\");\n\u00b7 14,000 out-of-state voters voted (Dalton at GA 1106: \"14,000 ballots\nillegally cast by out of state voters.\" Ellipse at GA 1127: \"Over 14,000\n- 124 -\n\nPage 125:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 125 of 165\nballots were cast by out-of-state voters. So these are voters that don't live\nin this state.\");\n\u00b7 400,000 absentee ballots appeared after the election (Dalton at GA 1106:\n\"There's an unexplained 400,000 vote discrepancy between the number of\nmail-in ballots in Pennsylvania sent out reported on November 2nd, 2020,\nand the number reported on November 4th. They can't explain it. 400,000\npreviously unreported mail-in ballots, magically appeared. They couldn't\nexplain it. And all of a sudden they just happened to find 400,000. That's\na lot of people.\" Ellipse at GA 1128: \"The day before the election, the state\nof Pennsylvania reported the number of absentee ballots that had been sent\nout, yet this number was suddenly and drastically increased by 400,000\npeople. It was increased-nobody knows where it came from-by 400,000\nballots one day after the election.\"); and\n\" Tens of thousands of ballots were received back before they were mailed\nout (Dalton at GA 1106: \"55,000 ballots received back before they were\neven sent.\" Ellipse at GA 1128: \"And more than 60,000 ballots in\nPennsylvania were reported received back-they got back-before they\nwere ever supposedly mailed out. In other words, you got the ballot back\nbefore you mailed it, which is also logically and logistically impossible.\nRight?\").\no Wisconsin\n. Hundreds of illegal drop boxes were used (Dalton at GA 1105: \"In\nWisconsin over 90,000 ballots were illegally harvested. Can't do that. Not\nallowed to. Through so-called human drop boxes and over 500 illegal\nunmanned drop boxes were put out statewide.\" Ellipse at GA 1131: \"In\nWisconsin, corrupt Democrat-run cities deployed more than 500 illegal,\nunmanned, unsecured drop boxes, which collected a minimum of 91,000\nunlawful votes.\"); and\n\u00b7 170,000 invalid absentee votes were counted (Dalton at GA 1105: \"Over\n170,000 absentee votes were counted that are blatantly illegal under\nWisconsin law and should never have been included in the tally.\" Ellipse\nat GA 1131: \"Over 170,000 absentee votes were counted in Wisconsin\nwithout a valid absentee ballot application. So they had a vote, but they had\nno application, and that's illegal in Wisconsin.\").\nThe defendant's language throughout the speech was that of a candidate focused on his re-\nelection. He claimed that he would not concede, that he received more votes than he had four\nyears earlier, that the election was over by 10:00 p.m. on election night, and that he wanted to go\n- 125 -\n\nPage 126:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 126 of 165\nback eight weeks to fix the election result. Significantly, he made many of these statements at the\nbeginning of the speech, framing the themes for the rest of the speech. 594\nIn addition, although countless federal, state, and local races also were on the same ballots\nas the defendant on election day-including those of every sitting member of the House of\nRepresentatives, even those on whom the defendant was counting to object at the congressional\nproceeding-the defendant focused only on his own race, the election for President, and only on\nallegations favoring him as a candidate in targeted states he had lost. 595 He claimed his \"election\nvictory\" was \"stolen,\" that he would not \"concede,\" and that \"with only three of the seven states\nin question, we win the presidency of the United States.\"596 He framed the claims of election fraud\nin terms of his own election and the margin of victory in his own race, and he spoke to his political\nsupporters using the pronoun \"we\"-showing that he was speaking not to all citizens, but only to\nhis own voters. 597\nFinally, the defendant repeatedly aimed accusations at Biden, his principal\nopponent in the election contest, as would a candidate. 598\nb. Tweets\nOne of the tools the defendant used for partisan political advantage-and in furtherance of\nthe charged conspiracies-was his personal Twitter account. He used his Twitter account to\nundermine public confidence in the electoral system, spread false claims of election fraud, attack\nthose speaking the truth that the defendant had lost the election, exhort supporters to travel to\nWashington for the certification proceeding, and marshal his supporters' anger at, and pressure on,\n594\nGA 1118-1119 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n595\nGA 1122, 1126-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n596 GA 1115, 1122 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n597 GA 1115, 1132-1133, 1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n598 GA 1119, 1133, 1135 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n- 126 -\n\nPage 127:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 127 of 165\nPence. As described below, an objective analysis of \"content, form, and context,\" id. at 2340,\nestablishes that the select Tweets that the Government intends to offer at trial were unofficial.\nAs an initial matter, the defendant sent, or directed the sending of, all Tweets and re-Tweets\nfrom @realDonaldTrump, the personal Twitter account that the defendant started long before\nassuming the presidency.599 The defendant began tweeting from @realDonaldTrump in May\n2009. Throughout his campaign for the presidency in 2016, the defendant used this Twitter\naccount for electioneering purposes; he even announced the selection of Pence as his Vice\nPresidential nominee over Twitter. 600 Since the end of his term in office, the defendant again has\nused the account for private purposes. During his presidential term, the defendant sometimes used\nthe @realDonaldTrump account to tweet about official business, including regarding COVID\nrelief and vaccines, legislation in Congress, and Executive Branch business. But he also regularly\nused the account to post on unambiguously private matters-for example, when he posted a picture\nof himself golfing with Jack Nicklaus and Tiger Woods at the Trump National Golf Club in Jupiter,\nFlorida, and re-tweeted a Trump Organization post about the Trump New York hotel being \"named\nthe #1 'Best Hotel in the World!\"\",601\nThe Supreme Court's decision in Lindke v. Freed, 144 S. Ct. 756, 769 (2024), confirms\nthat a public official's personal social-media account can be used for both personal and public\nbusiness, and-consistent with Trump-that a fact-specific inquiry is required to discern into\nwhich category a post falls. In conducting the necessary Tweet-by-Tweet analysis, context and\n599 GA 525-527\nGA 534\n600\nGA 411\nsee\nhttps://x.com/realDonaldTrump/status/\n753965070003109888?lang=en (Donald J. Trump Tweet 07/15/2016).\n(\n601\nhttps://x.com/realDonaldTrump/status/1091760712756744192 (Donald J. Trump Tweet\n02/02/2019); https://x.com/realdonaldtrump/status/1172353230505938946 (Donald J. Trump\nTweet 09/12/2019).\n- 127 -\n\nPage 128:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 128 of 165\ncontent matter. Simply because a Tweet relates to a matter of public concern does not\nautomatically transform it into an official communication. In Blassingame, 87 F.4th at 20, the\nD.C. Circuit rejected the defendant's contention that any and all of the President's communications\nare immune official acts whenever they involve a matter of public concern. The D.C. Circuit\nrecognized that the \"integrity of the 2020 election\" was a matter of public concern, but if the\ndefendant spoke about that issue \"in his personal capacity as a candidate for reelection rather than\nin his official capacity as President,\" it was unofficial speech not shielded by immunity. Id. Thus,\nwhen a court consults \"content and context\" to inform the official-act inquiry, see Trump, 144 S.\nCt. at 2340, a claim that all Tweets concerning election integrity were official must fail.\nAn analysis of the @realDonaldTrump account during the time period of the charged\nconspiracies demonstrates that the defendant frequently used the account to advance his unofficial\nobjectives as a candidate. Of the more than 1,200 Tweets, the vast majority were related to the\n2020 presidential election. For example, he announced over Twitter that\nCC1\nand others were\ntaking over his Campaign legal team, and he repeatedly used the platform to espouse false claims\nof election fraud and promote political rallies on his behalf. 602\nP45\nthe defendant's Deputy\nChief of Staff and the only person other than the defendant with control over the\n@realDonaldTrump Twitter account, acknowledged that he sometimes consulted with Campaign\npersonnel about material he was going to post on the account, that he worked as a volunteer for\nthe defendant's Campaign at the same time that he served as Deputy Chief of Staff, and that he did\n602\nGA 784-785 (Donald J. Trump Tweet 11/14/2020); GA 786-787 (Donald J. Trump Tweet\n11/14/2020); GA 944-945 (Donald J. Trump Tweet 01/06/2021); GA 881-882 (Donald J. Trump\nTweet 12/22/2020); GA 884-885 (Donald J. Trump Tweet 12/23/2020); GA 905-906 (Donald J.\nTrump Tweet 01/01/2021); GA 938-939 (Donald J. Trump Tweet 01/05/2021).\n- 128 -\n\nPage 129:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 129 of 165\nnot differentiate between his official and Campaign duties and when he would send Tweets on the\naccount for Campaign purposes as a Campaign volunteer. 603\nA review of the defendant's official @POTUS45 account presents a relevant contrast. The\ndefendant used this institutional account primarily to re-tweet other accounts like the\n@realDonaldTrump account, as well as @WhiteHouse. There were 74 Tweets from the\n@POTUS45 account during the charged conspiracies. 604 None of them include the defendant's\nelection-related claims or his election challenges.605 The last four Tweets in the account, which\nthe Government cites here to show context, were re-Tweets of Tweets from @realDonaldTrump\nregarding January 6.606 These include two Tweets that the defendant issued on the afternoon of\nJanuary 6 purportedly asking individuals to support law enforcement and \"stay\" peaceful; notably,\nthe @POTUS45 account archive does not include the defendant's Twitter pressure campaign\nagainst Pence, such as the 2:24 p.m. Tweet on January 6.607\nBelow, the Government analyzes the \"content, form, and context,\" id. at 2340, of various\ncategories of the defendant's Tweets. All of these categories consist of unofficial Tweets.\n603 GA 526-532 (\n604 GA 1899 (Spreadsheet of @POTUS45 Tweets).\n605 Id. (Spreadsheet of @POTUS45 Tweets).\n606 Id. (Spreadsheet of @POTUS45 Tweets). The four re-Tweets are: on January 5, \"Antifa is a\nTerrorist Organization, stay out of Washington. Law enforcement is watching you very closely!\n@DeptofDefense @TheJusticeDept @DHSgov @DHS_Wolf @SecBernhardt @SecretService\n@FBI\"; on January 6, \"Please support our Capitol Police and Law Enforcement. They are truly\non the side of our Country. Stay Peaceful\" and \"I am asking for everyone at the U.S. Capitol to\nremain peaceful. No violence! Remember, WE are the Party of Law & Order - respect the Law\nand our great men and women in Blue. Thank you!\"; and on January 7, a link to a speech the\ndefendant gave on that date about the events of the previous day.\n607 Compare id. (Spreadsheet of @POTUS45 Tweets) with GA 946-947 (Donald J. Trump Tweet\n01/06/2021).\n- 129 -\n\nPage 130:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 130 of 165\ni.\nTweets, as candidate, casting doubt on election integrity\nAs described in Section I, the defendant attempted to discourage mail-in voting and\nundermine confidence in the election results to prepare to declare victory even if he lost. See, e.g.,\nsupra p. 6. Just as his public statements casting doubt on the election were unofficial, so too were\nthe analogous Tweets that the defendant posted in his capacity as a candidate. The context of these\nTweets confirms this conclusion. The defendant issued the Tweets in advance of election day, in\nthe midst of his campaign for re-election; furthermore, he made them while his own Campaign\nadvisors were warning him that Biden supporters were much more likely to use mail-in voting, the\nvery method the defendant attempted to discourage. In addition, the Tweets' content further\nreinforces their private nature; they show the defendant taking a partisan electioneering position\non an issue rather than proposing any official measures to address a problem that the defendant\nclaimed existed.\nii.\nTweets making false claims of election fraud\nThe superseding indictment alleges that the defendant repeated and widely disseminated\nfalse claims of election fraud. See, e.g., Superseding Indictment, ECF No. 226 TT 12, 14. One of\nthe ways that he did so was by Tweet, constantly, day in and day out. Examples of the kinds of\nTweets that the Government intends to use at trial are set forth throughout Section I, in which the\ndefendant falsely claimed victory and outcome-determinative election fraud in targeted states. See,\ne.g., supra pp. 22-23, 32, 45, 55-56, 62-63.\nThese kinds of Tweets all shared common internal characteristics that establish their\nunofficial nature. The defendant used the language of a candidate when he spoke in terms of his\npersonal electoral victory (\"I win!\" or \"We win!\").608 He divided his audience between personal\n608 See, e.g., GA 772-773 (Donald J. Trump Tweet 11/05/2020); GA 774-775 (Donald J. Trump\n- 130 -\n\nPage 131:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 131 of 165\nallies who supported his election challenges and enemies who did not, dismissing the latter as\n\"RINOs\" (shorthand for Republicans in Name Only) or \"the Democrats.\"609\nAnd he focused only\non fraud claims that would affect his own election and was fixated on his own margin of victory\n(\"far more votes than are necessary to win\"). 610\niii.\nTweets and re-Tweets attacking those speaking the truth about the\nelection\nOn multiple occasions, the defendant issued a Tweet, or re-tweeted an agent's Tweet, in\norder to attack individuals who had spoken out publicly to defend the integrity of the 2020\npresidential election and reassure the public that there had not been outcome-determinative fraud.\nThese instances include: on November 11, the defendant attacked Philadelphia City Commissioner\nP47\nafter he dispelled fraud claims in a television interview that the defendant saw; 611 on\nNovember 29, the defendant issued a Tweet attacking\nP50\nwhen he appeared on 60 Minutes:612\non December 6, the defendant re-tweeted a post by his agent,\nP19\nattacking Arizona House\nSpeaker\nP18\nfor a public announcement that the defendant had not presented Arizona\nlegislators with any evidence of outcome-determinative fraud and that the Arizona legislature\ncould not overturn election results based on unsupported theories of fraud; 613 again on December\n6, the defendant re-tweeted a post by his agent,\nP48\nlabeling four Republican state legislators\nTweet 11/06/2020); GA 797-798 (Donald J. Trump Tweet 11/18/2020); GA 850-851 (Donald J.\nTrump Tweet 12/05/2020).\n609 See, e.g., GA 777-778 (Donald J. Trump Tweet 11/11/2020); GA 860-861 (Donald J. Trump\nTweet 12/07/2020); GA 782-783 (Donald J. Trump Tweet 11/13/2020); GA 795-796 (Donald J.\nTrump Tweet 11/17/2020); GA 881-882 (Donald J. Trump Tweet 12/22/2020).\n610 GA 909-910 (Donald J. Trump Tweet 01/01/2021); GA 911-912 (Donald J. Trump Tweet\n01/01/2021).\n611 GA 1953 at 2:20-4:13 (Video of Interview with CNN 11/11/2020); GA 777-778 (Donald J.\nTrump Tweet 11/11/2020).\n612 GA 825-826 (Donald J. Trump Tweet 11/29/2020).\n613 GA 854-855 (Donald J. Trump Tweet 12/06/2020).\n- 131 -\n\nPage 132:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 132 of 165\n\"cowards\" after they issued a public announcement that they could not overturn the popular vote\nand appoint their own electors; 614 and on December 21, the defendant attacked Wisconsin Supreme\nCourt Justice\nP49\nfor ruling against him. 615\n(a)\nP47\nP47\n(Superseding Indictment, ECF No. 226 | 41; supra\np. 38)\nAfter\nthen a Philadelphia City Commissioner, gave a television interview on\nNovember 11 and made clear that he had not seen evidence of fraud there, the defendant issued a\nTweet attacking\nP47\nin partisan terms. The defendant called\nP47\na \"so called Republican\n(RINO)\" and finished the Tweet with \"We win!\"616 In so doing, the defendant was acting as a\ncandidate frustrated that a member of his political party refused to perpetuate the lies the defendant\nwas promoting to advance his personal political interests.\n(b)\nP50\n(supra pp. 45)\nOn November 29, when 60 Minutes aired an interview with\nP50\nformerly the CISA\ndirector, defending the integrity of the election, the defendant tweeted an attack on the television\nC3\nand claimed that the 2020 election was \"probably our\nprogram and\nleast secure EVER!\"617\nThese complaints about\nC3\nand mail-in ballots echoed others\nwhich the defendant was making regularly as a candidate only in states in which he had lost the\nelection. 618\nHe also issued the Tweet between two other Tweets in which he was speaking as a\ncandidate. Thirty minutes before the\nP50\nTweet, the defendant used his @realDonaldTrump\naccount to discuss Campaign litigation-specifically, he wrote, \"We have some big things\n614 GA 856, 858 (Donald J. Trump Tweet 12/06/2020).\n615 GA 875-880 (Donald J. Trump Tweets 12/21/2021).\n616 GA 777-778 (Donald J. Trump Tweet 11/11/2020).\n617 GA 825-826 (Donald J. Trump Tweet 11/29/2020).\n618 See, e.g., GA 867-872 (Donald J. Trump Tweets 12/13/2020).\n- 132 -\n\nPage 133:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 133 of 165\nhappening in our various litigations on the Election Hoax. Everybody knows it was Rigged. They\nknow Biden didn't get more votes from the Black community than Obama, & certainly didn't get\n80,000,000 votes. Look what happened in Detroit, Philadelphia, plus!\"619 And within twenty\nminutes of the\nP50\nTweet, the defendant issued another Tweet about 60 Minutes, this time asking\nwhether the \"Fake News\" program was paying attention to a Tweet that the defendant then linked\nto by\nP68\nthen a private citizen-who in turn was publicizing what he characterized\nas a Campaign litigation victory on the defendant's behalf by co-conspirator\nCC3\nin litigation\nin Georgia. 620\nThe defendant's Tweet regarding 60 Minutes and\nP50\nwas unofficial. The Campaign\nlitigation-focused Tweets surrounding it demonstrate that the \"us\" whom the defendant claims 60\nMinutes never consulted was the defendant's Campaign, not his Administration.\n(c)\nP18\nand Pennsylvania legislators (Superseding\nIndictment, ECF No. 226 || 21, 43; supra pp. 20, 40)\nIn the early morning hours on December 6, upon returning from a Campaign speech in\nValdosta, Georgia, the defendant re-tweeted a December 4 Tweet from\nP19\nwho was working\nwith the Campaign and\nCC6\nto overturn the election results 621 attacking Arizona House\nSpeaker\nP18\nafter\nP18\nreleased a public statement that he had not seen evidence of election\nfraud and could not take action to overturn the election results in Arizona. 622 Just four minutes\n619 GA 823-824 (Donald J. Trump Tweet 11/29/2020).\n620 GA 827-828 (Donald J. Trump Tweet 11/29/2020). A week later, the court dismissed the\nlawsuit, stating that the plaintiffs \"essentially ask the Court for perhaps the most extraordinary\nrelief ever sought in any Federal Court in connection with an election. They want this Court to\nsubstitute its judgment for that of two-and-a-half million Georgia voters who voted for Joe Biden,\nand this I am unwilling to do.\" Pearson v. Kemp, 1:20-cv-4809, ECF No. 79 at 43 (N.D. Ga.) (Tr.\nof 12/7/2020 Hrg.).\n621 See generally, e.g., GA 1848-1850\n622 GA 854-855 (Donald J. Trump Tweet 12/06/2020).\n- 133 -\n\nPage 134:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 134 of 165\nearlier, the defendant had written \"Thank you\nP19\n!\"623 while re-tweeting another of\nP19\nTweets that read, \"President Trump is back on the campaign trail today !!! America is the best\ncountry on earth and @realDonaldTrump is the greatest President!\"624\nOn the same day, December 6, the defendant also re-tweeted a Tweet by\nP48\nan agent\nof the defendant who was working closely with\nCC1\n625\nP48\nTweet attacked four\nPennsylvania legislators who, like\nP18\nhad issued a public statement that they could not\noverturn the valid election results. The defendant re-tweeted\nP48\npost without comment. 626\nBoth of the defendant's re-tweets on December 6 were unofficial. At the time, both\nP19\nand\nP48\nwere, at a minimum, private agents of the defendant who were working to overturn the\nelection results in his favor.\nP19\nand\nP48\noriginal Tweets were in service of that objective\nthey were attempting to pressure state officials to take extralegal actions to replace their states'\nduly-ascertained electors with the defendant's fraudulent ones. The defendant's re-posting of these\nprivate Tweets was similarly private.\n(d)\np. 41)\nP49\n(Superseding Indictment, ECF No. 226 | 46; supra\nOn December 21, when Wisconsin's Governor signed a certificate of final determination\nconfirming that Biden had won the state based on the resolution by the Wisconsin Supreme Court\nof a lawsuit in Biden's favor, the defendant took to Twitter to attack Justice\nP49\nwho had\nwritten the majority opinion that ruled against him. 627 The defendant claimed-falsely-that he\n623 GA 852-853 (Donald J. Trump Tweet 12/06/2020).\n624 Id. (Donald J. Trump Tweet 12/06/2020).\n625 GA 856, 858 (Donald J. Trump Tweet 12/06/2020). See, e.g., GA 1851-1852\n626 GA 856, 858 (Donald J. Trump Tweet 12/06/2020).\n627 GA 1233-1235 (Wisconsin Certificate of Ascertainment 11/30/2020 and Certificate of Final\nDetermination 12/21/2020); Trump v. Biden, 394 Wis. 2d 629 (Wis. 2020); GA 875-880 (Donald\n- 134 -\n\nPage 135:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 135 of 165\nhad endorsed\nP49\nin his election for the Wisconsin Supreme Court, and implied that the\nendorsement had caused\nP49\nto win. 628 The defendant then encouraged \"Republicans in\nWisconsin\" to go \"to their State Legislators and overturn this ridiculous State Election. We won\nin a LANDSLIDE!\"629 The entire context of the defendant's Tweet about\nP49\nincluding\nhis fictitious endorsement of\nP49\nhis encouragement of Wisconsin Republicans to lobby\ntheir legislators, and his claim at the end that \"We won\"-demonstrates that the Tweet as a whole\nwas partisan, personal, and unofficial.\n(e) Governor\nState\nP16\nP33\nGovernor\nP17\nand Secretary of\n(supra pp. 18, 26-31)\nThroughout the post-election period, the defendant used his status and power as the head\nof a political party to bring political pressure to bear on fellow Republicans, including Arizona\nGovernor\nP16\nGeorgia Governor\nP17\nand Georgia Secretary of State\nP33\nIn the\nTweets, the defendant assailed the three elected officials because they refused to take extralegal\nactions to benefit him personally, suggested that they would suffer politically if they did not do as\nhe asked, and repeatedly suggested that they were \"RINOs\" and not real Republicans. The\ndefendant launched these public attacks both as \"a candidate for office\" and as \"a party leader,\"\nTrump, 144 S. Ct. at 2340, and they were thus unofficial.\nJ. Trump Tweets 12/21/2020).\n628 Id. (Donald J. Trump Tweets 12/21/2020); GA 187-188\nAlthough the defendant did not endorse Justice\nP49\nas he claimed, he did endorse a\ncongressional candidate with the surname\nP49\nfrom another midwestern state. See\nhttps://x.com/realDonaldTrump/status/1292879824210595842.\n629 GA 877, 880 (Donald J. Trump Tweet 12/21/2020).\n- 135 -\n\nPage 136:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 136 of 165\niv.\nTweets exhorting individuals to travel to Washington, D.C., for the Save\nAmerica Rally (Superseding Indictment, ECF No. 226 \"|| 68, 72, 79(b);\nsupra pp. 60, 64, 71-73)\nBeginning on December 19, and continuing through early January, the defendant used the\n@realDonaldTrump account to promote the private, campaign-style Ellipse rally at which he spoke\non the morning of January 6. Indeed, some of the defendant's Tweets from this account were re-\ntweeted and amplified by the defendant's Campaign Twitter account. 630 The defendant's multiple\nTweets on this topic631 included his initial message that there would be a \"[b]ig protest in D.C. on\nJanuary 6th. Be there, will be wild!\"632 In turn, that Tweet linked to a document drafted by\nP69\nthat had nothing to do with\nP69\nofficial duties as a White House trade advisor, but\nrather constituted unofficial political activity by a Campaign volunteer who the Office of Special\nCounsel already had determined to have violated the Hatch Act on numerous occasions by\nattacking the defendant's opponent during the lead up to the 2020 presidential election. 633 For the\nreasons described supra pp. 118-126 that make clear that the Ellipse rally was a private event, and\nthe defendant's remarks there unofficial, his Tweets as a candidate promoting the event were\nunofficial.\n630\nSee, e.g., GA 896 (Team Trump Retweet of Donald J. Trump Tweet 12/26/2020); GA 901\n(Team Trump Retweet of Donald J. Trump Tweet 12/30/2020); GA 902 (Team Trump Retweet of\nDonald J. Trump Tweet 12/30/2020); GA 534 (\n631 GA 886-887 (Donald J. Trump Tweet 12/26/2020); GA 897-898 (Donald J. Trump Tweet\n12/27/2020); GA 899-900 (Donald J. Trump Tweet 12/30/2020); GA 903-904 (Donald J. Trump\nTweet 01/01/2021); GA 905-906 (Donald J. Trump Tweet 01/01/2021); GA 913-914, 1891\n(Donald J. Trump Tweet 01/01/2021); GA 921-922 (Donald J. Trump Tweet 01/03/2021); GA\n923-924 (Donald J. Trump Tweet 01/03/2021); GA 928-929 (Donald J. Trump Tweet 01/04/2021);\nGA 932-933 (Donald J. Trump Tweet 01/05/2021); GA 938-939 (Donald J. Trump Tweet\n01/05/2021).\n632 GA 873-874 (Donald J. Trump Tweet 12/19/2020).\n633\nId. (Donald J. Trump Tweet 12/19/2020); GA 1853-1865 (Report of Prohibited Political\nActivity Under the Hatch Act 11/18/2020).\n- 136 -\n\nPage 137:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 137 of 165\nV.\nTweets regarding Pence's role on January 6 (Superseding Indictment,\nECF No. 226 | 69, 79(a), 82; supra pp. 61, 71-73)\nAs the defendant set his sights on using Pence's role as President of the Senate to overturn\nthe election results at the January 6 certification proceeding, concurrent with his direct efforts to\npressure Pence, the defendant began to issue Tweets falsely claiming that Pence could use his\nministerial position to benefit the defendant as a candidate. For instance, on December 23, the\ndefendant re-tweeted a Tweet by a Campaign surrogate named\nP70\nwho had posted a\nfacially fake White House memorandum titled \"Operation 'PENCE' CARD,\" which falsely\nclaimed that Pence could unilaterally disqualify legitimate electors. 634 The defendant issued\nsimilar Tweets as the certification grew closer, including posting on January 5 that \"[t]he Vice\nPresident has the power to reject fraudulently chosen electors.\"635 And twice on the morning of\nJanuary 6, before his speech at the Ellipse rally, the defendant tweeted again about Pence. First,\nat 1:00 a.m., the defendant wrote, \"[i]f Vice President @Mike_Pence comes through for us, we\nwill win the Presidency. Many States want to decertify the mistake they made in certifying\nincorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which\nit must be). Mike can send it back!\"636 He again focused on Pence's role in the certification at\n8:17 a.m. when he wrote, \"States want to correct their votes, which they now know were based on\nirregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence\nhas to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme\ncourage!\"637\n634 GA 883 (Donald J. Trump Tweet 12/23/2020); GA 449 (\n1023 (Pence, So Help Me God p. 439-40); see also GA 1524-1527\n); GA 1022-\n635\nGA 934-395 (Donald J. Trump Tweet 01/05/2021).\n636 GA 940-941 (Donald J. Trump Tweet 01/06/2021).\n637 GA 942-943 (Donald J. Trump Tweet 01/06/2021).\n- 137 -\n\nPage 138:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 138 of 165\nThe context and content of these Tweets establish that they were unofficial. Through the\nTweets, the defendant was using the political pressure of his supporters and social media followers\nto convince Pence to take an action to benefit the defendant as a candidate and help him overturn\nthe results of the election. As discussed supra pp. 91-96, the defendant played no official role in\nthe congressional certification proceeding and was not using his Tweets about Pence's role to\nadvance any Executive Branch or governmental interest. Likewise, the defendant had no role in\nwhether state legislatures might take action regarding their own electoral slates (though his claim\nthat these legislatures were poised to do so was also false). And the defendant's language\nthroughout the Tweets is that of a candidate seeking to win an election, including stating to his\npolitical supporters that if Pence \"comes through for us, we will win the Presidency\" and \"All\nMike Pence has to do is send them back to the States, AND WE WIN.\"638\nThe private and Campaign nature of the Tweets is further confirmed when viewed in the\ncontext of the defendant's increasing desperation as even his unlawful path to remain in power\nnarrowed. When the defendant re-tweeted the \"Operation Pence Card\" Tweet on December 23,\nthe defendant knew that he had lost the legitimate electoral college vote and had begun summoning\nsupporters to Washington for the Ellipse rally on January 6.639 When he tweeted on January 5 that\nPence had the power to reject fraudulent electors, Pence already had \"told him many times\" that\nPence did not believe he had such power-including as recently as the day before. 640 And in the\nearly morning hours of January 6, when the defendant again tweeted publicly that Pence should\nexceed his authority as President of the Senate when counting electoral votes, the defendant's\n638 Id .; GA 940-941 (Donald J. Trump Tweet 01/06/2021).\n639 GA 873-874 (Donald J. Trump Tweet 12/19/2020).\n640 GA 457-460\n- 138 -\n\nPage 139:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 139 of 165\npersonal desperation was at its zenith: he was only hours from the certification proceeding that\nspelled the end.\nvi.\nThe defendant's 2:24 p.m. Tweet on January 6 (Superseding\nIndictment, ECF No. 226 | 94; supra pp. 80-81)\nThe defendant's 2:24 p.m. Tweet aimed at Vice President Pence was unofficial. The\ndefendant personally posted the Tweet on the afternoon of January 6 at a point when he already\nunderstood that the Capitol had been breached, writing: \"Mike Pence didn't have the courage to\ndo what should have been done to protect our Country and our Constitution, giving States a chance\nto certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to\npreviously certify. USA demands the truth!\"641\nThe defendant's actions and knowledge in the hours leading up to this Tweet provide\nhelpful context. First, the evening before, on January 5, the defendant had dictated a Tweet to\nP45\nas he listened to the angry crowd gathered outside the White House. 642 That Tweet shows\nthat the defendant understood that his gathering supporters, who were angry and believed his false\nclaims that the election had been stolen, were a powder keg. At 5:05 p.m., he tweeted:\n\"Washington is being inundated with people who don't want to see an election victory stolen by\nemboldened Radical Left Democrats. Our Country has had enough, they won't take it anymore!\nWe hear you (and love you) from the Oval Office. MAKE AMERICA GREAT AGAIN!\"643\nThereafter, the defendant continued to fixate on preventing the certification proceeding.\nAs described above, he tweeted about it at 1:00 a.m. on January 6 and again at 8:17 a.m. 644 After\n641 GA 946-947 (Donald J. Trump Tweet 01/06/2021).\n642 GA 535-538\n643\nGA 936-937 (Donald J. Trump Tweet 01/05/2021).\n644 GA 940-941 (Donald J. Trump Tweet 01/06/2021); GA 942-943 (Donald J. Trump Tweet\n01/06/2021).\n- 139 -\n\nPage 140:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 140 of 165\nthe 8:17 a.m. Tweet, the defendant worked on his remarks for the Ellipse and planned to include\nlanguage explicitly putting pressure on Pence regarding the certification until advisors prevailed\non him not to.645 At 11:15 a.m., the defendant called Pence and tried one last-ditch effort to\nconvince him to fraudulently reject or return Biden's legitimate electors. 646 Pence was resolute\nand unmoved, and the defendant was furious. 647 Immediately after the call, the defendant directed\nthat the original language targeting Pence be reinserted in his prepared remarks for the Ellipse\nrally. 648\nThe defendant then went to the Ellipse and delivered a falsehood-laden speech to his angry\nsupporters. He purposely singled out Pence by claiming that Pence had the power to overturn the\nelection results and-though the defendant stood at the podium with full knowledge that Pence\nwould not do so-gave the crowd false hope that Pence might exercise that power. 649 The\ndefendant told the crowd to act, stating, we \"can't let it happen\" and then directed his supporters,\nwho were angry and motivated by his speech, to march to the Capitol. 650\nInstead of marching with his supporters as he said he would, the defendant returned to the\nWhite House. 651 He went to the dining room next to the Oval Office and began to watch television\ncoverage of the events at the Capitol.652 Although the Government does not intend to use at trial\n645 GA 1680\nGA 638-642 (\n).\n646\nGA 471-472\nGA 1668-166\n647\nGA 471-472\nGA 1668-1669\n); GA 225-230 (\n648\nGA 1681\n); GA 405-406\nGA 1670-1679\n649 See GA 1114-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n650\nSee GA 1140-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).\n651\nGA 1866\nGA 168\n652 GA 541-544 (\n; GA 232, GA 236\n- 140 -\n\nPage 141:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 141 of 165\nevidence of the defendant's discussions with White House staff during this time period, it provides\nnecessary context: when news broke that rioters had breached the Capitol, the defendant's\nadvisors-including\nP59\nDeputy White House Counsel\nP71\nand\nP9\nurged the defendant to issue a calming message and make efforts to stop the riot. 653 The defendant\nrefused, responding that the people at the Capitol were angry because the election had been\nstolen. 654 Eventually, all of the defendant's staffers left him alone in the dining room. 655 Fox\nNews continued to report on the growing crisis at the Capitol.656\nIt was at that point-alone, watching news in real time, and with knowledge that rioters\nhad breached the Capitol building-that the defendant issued the 2:24 p.m. Tweet attacking Pence\nfor refusing the defendant's entreaties to join the conspiracy and help overturn the results of the\nelection. 657 One minute later, the Secret Service was forced to evacuate Pence to a secure location\nin the Capitol. 658 This was roughly ninety minutes after Pence had announced publicly that he\nwould not act unlawfully to overturn the election; 659 the certification proceeding was underway; 660\nand the first breach of the Capitol building had occurred minutes before, at 2:12 p.m. 661 At that\n653 GA 479\n(advisors told the defendant that \"[t]here's a riot, and there\nare people inside the Capitol Building\"); GA 122\n(recalling telling\nthe defendant \"that someone's gotten into the Capitol\"); GA 232-234\n; GA 168-169\n654\nGA 547-548\n); GA 232-234(\n; GA\n123\n655 GA 546\n656 GA 1931 (Video of Fox News Coverage 01/06/2021).\n657 GA 546\nGA 946-947 (Donald J. Trump Tweet 01/06/2021).\n658 GA 473-474\n); GA 1944 (Video of Pence Evacuation 01/06/2021).\n659 GA 1684-1686 (Pence Dear Colleague Letter 01/06/2021); GA 1867-1868\n660 GA 1937 (Video of House Floor 01/06/2021); GA 1954 (Video of Senate Floor 01/06/2021).\n661 GA 1957 at 00:40-1:25 (Video of Senate Wing Door CCTV 01/06/2021); GA 1909 at 00:15-\n1:10 (Video of Capitol Riot 01/06/2021).\n- 141 -\n\nPage 142:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 142 of 165\npoint, the defendant's only hope to disrupt the certification proceeding and retain power was\nthrough his angry supporters. The defendant further revealed the private nature of his desperate\nconduct as a candidate, rather than a President, in an exchange (that the Government does not plan\nto use at trial) he had with aide\nP15\nshortly after the 2:24 p.m. Tweet. Upon receiving a phone\ncall alerting him that Pence had been taken to a secure location,\nP15\nrushed to the dining room to\ninform the defendant in hopes that the defendant would take action to ensure Pence's safety.\nInstead, after P15\ndelivered the news, the defendant looked at him and said only, \"So what?\"662\nThe private, unofficial nature of the 2:24 p.m. Tweet contrasts with two other Tweets the\ndefendant sent during the following hour and a video message he sent two hours later, and which\nthe Government does not intend to introduce at trial. Only after advisors had again urged the\ndefendant to calm matters at the Capitol, 663 the defendant at 2:38 p.m. posted, \"Please support our\nCapitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!\"664\nAs the violence at the Capitol nonetheless escalated, the defendant at 3:13 p.m. posted, \"I am\nasking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the\nParty of Law & Order-respect the Law and our great men and women in Blue. Thank you!\"665\nAnd after those Tweets failed to disperse the rioters, and after still more demands from his staff\n662 GA 310-317\n(\"both\nP71\nand I went down and told him\n663 GA 124-125\nyou got to tell people get out of the Capitol, the people who were breaching the Capitol\"); GA 232\n(\"And I said, we need to tell everyone to get the fuck out of the\nP71\nand\nP59\n\u201cargued\nCapitol, right now.\"); GA 237\nP71\n. . . to the president, you have to tell people to get out, right now, as well.\nfor the first time\nI'd ever heard him raise his voice, yelled at the president. . . He said, you need to tell them now;\nyou're destroying your legacy; you're destroying everything anyone's ever worked for; you've got\nto tell these people to get out of the Capitol, immediately.\"); GA 480 (\n(\"I think we were probably, at that point, encouraging the President that he needed to come out\nand say something, he needed to condemn this and say something about it.\").\n664 GA 948-949 (Donald J. Trump Tweet 01/06/2021).\n665 GA 950-951 (Donald J. Trump Tweet 01/06/2021).\n- 142 -\n\nPage 143:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 143 of 165\nthat he do more to stop the riot, the defendant at 4:17 p.m. tweeted a video message in which he\nfinally asked those at the Capitol-whom he described as \"very special\" people that he \"love[d]\"-\nto leave the Capitol, while also claiming that \"[w]e had an election that was stolen from us.\"666\nHe sent a Tweet at 6:01 p.m. that conveyed a similar sentiment: \"These are the things and events\nthat happen when a sacred landslide election victory is so unceremoniously & viciously stripped\naway from great patriots who have been badly & unfairly treated for so long. Go home with love\n& in peace. Remember this day forever!\"667\nThe defendant at least has an argument-though he issued the 2:38 p.m. and 3:13 p.m.\nTweets only after being harangued by his staff while he adamantly refused to do anything at all-\nthat he was addressing a matter of public safety as President (the riot at the Capitol). Likewise, in\nthe 4:17 p.m. message, the defendant, while still focused on his election loss, asked rioters to\nevacuate the breached Capitol, and foreshadowed the sentiment in his 6:01 p.m. Tweet when he\nsaid to \"[g]o home with love & in peace.\"668 By contrast, in the 2:24 p.m. Tweet, the defendant\nfocused solely on the Vice President's role in the certification of the presidential election results\na matter of intense personal concern to the defendant as a candidate for office. Even assuming that\ntopic constituted a \"matter[] of public concern,\" Blassingame, 87 F.4th at 14, the defendant's 2:24\n666 GA 1952 (Video of Rose Garden Speech 01/06/2021); GA 1868 (Rose Garden Speech Draft\nTr. 01/06/2021).\n667 GA 952-953 (Donald J. Trump Tweet 01/06/2021).\n668 There are, however, strong arguments that all of these Tweets were unofficial. For example, in\nsome of them, the defendant misleadingly suggested that the already-violent crowd should \"[s]tay\"\nor \"remain\" \"peaceful\" while failing to urge or direct those unlawfully at the Capitol to leave, as\nhis advisors had urged him to do. He also used the messages to recognize the rioters at the Capitol\nas his own supporters, calling them \"WE\" and telling them that they were \"very special\" and that\nhe loved them. And even as early as the afternoon of January 6, when violence still raged at the\nCapitol, the defendant justified and revered the rioters' lawless actions on his behalf when he\ntweeted that \"[t]hese are the things and events that happen\" and to \"[r]emember this day forever!\"\n- 143 -\n\nPage 144:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 144 of 165\np.m. Tweet reflected speech made \"in an unofficial, private capacity as office-seeker, not an\nofficial capacity as office-holder.\" Id. at 5.\nGiven all of this context, the 2:24 p.m. Tweet was unofficial. When the defendant sent it,\nhe knew that what he had asked Pence to do, and that he claimed would \"protect our Country and\nour Constitution,\" was contrary to the ECA; that no state was poised to \"certify a corrected set of\nfacts;\" that a large crowd of his political supporters had gathered in Washington at his urging; that\nthese supporters were angry and believed his false claims that the election had been stolen; that he\nhad called them to action through his Ellipse speech, in which he told them that Pence might still\ndo as he wished and directed these supporters to march to the Capitol; and that his supporters had\ndone so and had breached the Capitol building.\nThe defendant also knew what his advisors were forcefully urging him to do as President:\nissue a message to quell the emergency at the Capitol. Instead, the defendant refused repeatedly\nuntil his advisors gave up and left him alone in the dining room. It was then that the defendant\nissued the 2:24 p.m. Tweet, as a candidate communicating to his angry supporters that Pence had\nlet him-and them-down. The content of the 2:24 p.m. Tweet was not a message sent to address\na matter of public concern and ease unrest; it was the message of an angry candidate upon the\nrealization that he would lose power. And unlike the defendant's later Tweets that day, the\ndefendant was not asking the individuals at the Capitol to \"remain peaceful,\" leave the building,\nor \"go home.\"\nc. Other public statements\nBy virtue of his status as a candidate for re-election, the defendant occasionally made\npublic statements-whether in response to questions or otherwise. Examples of such statements\nset forth in Section I are the defendant's statements in advance of the election to seed public doubt\nin the outcome (supra p. 6), the defendant's televised election night remarks to his supporters\n- 144 -\n\nPage 145:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 145 of 165\n(supra pp. 7-8), and the defendant's telephonic endorsement of\nCC1\nfalse allegations at the\nGettysburg \"hotel hearing\" (supra p. 39).\nEach of the defendant's cited public statements was made in his capacity as a candidate.\nHis pre-election statements, for instance, were made in contexts like the Republican National\nConvention or in the midst of statements about political polling. 669 His election night remarks\nwere made to a room of his supporters and were about his status as a candidate in the pending\nelection. 670\nAnd his contribution to the Gettysburg \"hotel hearing\" was to call in by dialing one\nof his private attorneys, who broadcast his personal message by holding her phone to the\nmicrophone so that he could make statements supporting those of his private attorneys. 671 In sum,\nthe defendant made all of these comments as a candidate for office, and was speaking about his\nown election. They were unofficial.\n2. In the alternative, any official portions of the defendant's public speeches,\nTweets, or statements should be excised\nAlternatively, if segregable portions of the speeches, Tweets, or statements are found to be\npresumptively immune official conduct, the first alternative would be to excise them from the\nspeeches, allowing the Government to rely on the unofficial statements in those speeches.\nThe D.C. Circuit has long recognized that district courts have \"discretionary power to\ndelete objectionable portions\" of evidence \"where appropriate,\" United States v. Lemonakis, 485\nF.2d 941, 949 (D.C. Cir. 1973), and the Supreme Court has approved of that practice in the context\nof statements that contain protected legislative acts along with unprotected acts under the\nConstitution's Speech or Debate Clause, see United States v. Helstoski, 442 U.S. 477, 488 n.7\n669 GA 1951 at 22:08-22:18 (Video of RNC Speech 08/24/2020); GA 1927 at 2:50-3:28 (Video\nof Donald J. Trump Statement 10/27/2020).\n670 GA 1974 (Video of White House Speech 11/04/2020).\n671 GA 1945 at 2:06:23-2:07:23 (Video of Pennsylvania Hotel Hearing 11/25/2020).\n- 145 -\n\nPage 146:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 146 of 165\n(1979) (approving practice of \"excising references to legislative acts, so that the remainder of the\nevidence would be admissible\"); see also Gov't of Virgin Islands v. Lee, 775 F.2d 514, 523 (3d\nCir. 1985) (\"even where a conversation includes a discussion of both legislative acts and non-\nlegislative acts, the conversation can be examined and the immunized aspects of the conversation\ndeleted\"). This is a familiar practice across a range of legal contexts. See, e.g., Samia v. United\nStates, 599 U.S. 635, 653 (2023) (upholding use of a redacted statement to avoid constitutional\nconcerns); Davis v. Washington, 547 U.S. 813, 829 (2006) (\"Through in limine procedure, [trial\ncourts] should redact or exclude the portions of any statement that have become testimonial, as\nthey do, for example, with unduly prejudicial portions of otherwise admissible evidence.\"); In re\nRail Freight Fuel Surcharge Antitrust Litig. - MDL No. 1869, 34 F.4th 1, 13 (D.C. Cir. 2022)\n(relying on Lemonakis). Redaction of any statements ultimately found to be immune, while\nadmitting the significant remaining unofficial content, would resolve any constitutional questions\nunder Trump.\nTo the extent that excision does not resolve any arguable immunity claim, then even if the\ndefendant's conduct in these speeches, Tweets, and statements can be nudged across the line from\nCampaign conduct to official action, it is so heavily intertwined with Campaign-related conduct\nthat prosecuting it does not pose a danger to any Executive Branch function or authority. Because\nthe defendant bears the burden in the first instance of proving that conduct was official so as to\nqualify for presumptive immunity, the Government in its reply brief will address any specific\narguments the defense makes regarding the speeches, Tweets, and statements discussed here.\n- 146 -\n\nPage 147:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 147 of 165\nE. The Defendant's Interactions, in his Capacity as a Candidate, with White House\nStaff\n1. The interactions at issue were unofficial\nWhite House staffers witnessed or engaged in private, unofficial communications with the\ndefendant. These staffers included\nP9\nthe White House Senior Advisor who acted as a\nconduit between the defendant and the Campaign;\nP45\nand\nP7\nwho both volunteered for\nthe Campaign while working in the White House;\nP15\na staffer who witnessed a pertinent private\nremark by the defendant; and\nP42\nthe defendant's executive assistant.\nFederal law confirms that the defendant's Campaign-related conversations with these\nWhite House staffers were unofficial. The Hatch Act permits certain White House staffers to\nengage in political activity while on duty, see 5 U.S.C. \u00a7 7324(a)(1), but prohibits them from using\ntheir \"official authority or influence for the purpose of interfering with or affecting the result of an\nelection,\" 5 U.S.C. \u00a7 7323(a)(1). These staffers can thus wear two hats. They can work in their\nprivate capacity to advance the interests of a political candidate, including while on official duty,\nor they can work in their official capacity to carry out Executive Branch responsibilities-but they\nmay not wear both hats at the same time. Accordingly, when the defendant's White House staff\nparticipated in political activity on his behalf as a candidate, they were not exercising their official\nauthority or carrying out official responsibilities. And when the President, acting as a candidate,\nengaged in Campaign-related activities with these officials or in their presence, he too was not\nengaging in official presidential conduct. 672\nPrecedent from the D.C. Circuit further confirms that the defendant was not engaging in\nofficial presidential conduct when he spoke with White House staffers about Campaign matters.\n672 Indeed, at least two of the witnesses-\nP9\nand\nP45\nconsulted with the White\nHouse Counsel's Office about their ability to engage with the Campaign, demonstrating that they\nunderstood their roles with respect to the Campaign were distinct from their White House roles.\n- 147 -\n\nPage 148:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 148 of 165\nIn In re Lindsey, 158 F.3d 1263, 1278-79 (D.C. Cir. 1998), the D.C. Circuit recognized that senior\nWhite House personnel may serve as the President's agents in a personal capacity to act as a\nconduit for unofficial information from a private party. The D.C. Circuit held that while the\nPresident's communications with his personal attorney are \"fully protected by the absolute\nattorney-client privilege,\" id. at 1283, a White House lawyer \"cannot rely on a government\nattorney-client privilege to shield evidence from the grand jury,\" id. at 1281. But a White House\nlawyer may invoke the President's personal attorney-client privilege when he acts as \"an\nintermediary\" to convey unofficial information from the President to his personal attorney. Id. As\nthe court explained, a President must often \"rely on aides\" to communicate with personal advisors,\nsuch as his personal attorneys, and the involvement of those aides does not alter the personal nature\nof the underlying communication. Id. at 1281-82. Similarly in this case, the transmission of a\nprivate Campaign communication by or to the defendant through a White House employee serving\nas an intermediary did not render that communication official and thereby shield it from use in a\ncriminal trial against the defendant.\nIn sum, just as the President can at times act \"in an unofficial capacity\"-including as \"a\ncandidate for office or party leader,\" Trump, 144 S. Ct. at 2340-so too can the Executive Branch\nstaff around him. Simply because a staffer holds a title in the Executive Branch and interacts with\nthe President does not mean that the interaction is necessarily official. See Blassingame, 87 F.4th\nat 14 (noting \"the settled understanding that immunity is based on 'the nature of the function\nperformed, not the identity of the actor who performed it.\"\" (quoting Clinton, 520 U.S. at 695)).\nWhen the individuals listed below interacted with the defendant in the circumstances described in\nSection I, those conversations were unofficial.\n- 148 -\n\nPage 149:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 149 of 165\na.\nP9\nFrom August 2020 through the end of the defendant's administration,\nP9\nwas an\nAssistant to the President without a defined portfolio. 673\nMore importantly for the Court's\npurposes, during the charged conspiracies,\nP9\nserved as a conduit of information from\nthe Campaign to the defendant and discussed Campaign matters with the defendant. These actions\nwere, consistent with In re Lindsey, unofficial.\nAs part of its immunity analysis, the Court should consider multiple different interactions\ninvolving\nP9\nnone of which bear on his official White House responsibilities: (1) a\nNovember 13 phone call in which the defendant told\nP9\nhe was going to put\nCC1\nin\ncharge of the Campaign's legal efforts under an agreement where the defendant only would pay if\nCC1\nwere successful, and\nP9\nguaranteed the defendant he never would have to pay\n(supra pp. 11-12); (2) a November conversation with the defendant regarding\nCC3\n(supra\nfraud allegations\np. 44); (3) an undated conversation in which he told the defendant that\nCC1\ncould never be proved in court and the defendant responded, \"the details don't matter\" (supra\nP9\npp. 12-13); (4) a November or December 2020 conversation in which\nexplained to\nthe defendant why one of his fraud claims was \"bullshit\" (supra p. 13); (5) a late December\nexchange with the defendant regarding the verification\nCC2\nwanted him to sign in Trump v.\nP9\nCC2\n(ECF\nKemp (supra p. 27); (6) a January 4, 2021, conversation\nhad with\nNo. 226 | 77; supra p. 66), after which Herschman reported to the defendant that\nCC2\nadmitted his plan was \"not going to work\" (supra p. 66); and (7) a variety of occasions on which\nhad\nP9\nreported to the defendant that his Campaign and its hired experts had found various\nelection fraud claims to be unsupported (supra p. 12).\n673 GA 671\n- 149 -\n\nPage 150:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 150 of 165\nSection I also includes actions by\nP9\nthat do not reflect any presidential conduct\nbecause the defendant was not involved. These include December 3 text messages that\nP9\nexchanged with\nP21\nregarding\nCC1\nfalse fraud claims at a Georgia\nlegislative hearing (ECF No. 226 | 26(a); supra pp. 21-22), and December 13 text messages\nP9\nexchanged with Campaign personnel regarding the fraudulent elector scheme (ECF\nNo. 226 | 60; supra pp. 52-53).\nThe content of each of\nP9\ncommunications with the defendant enumerated\nabove involve the defendant's Campaign, including the status and viability of the defendant's fraud\nclaims, the quality of the advice the defendant was receiving from his Campaign advisors, his\nlitigation and electoral prospects, and the legality and practicality of\nCC2\nproposal that Pence\nreject Biden's legitimate electors at the certification proceeding. None of the communications\npertain to general election policy issues or considerations, Justice Department criminal\ninvestigations, Executive Branch functions, or any other presidential responsibilities.\nAs context for all these communications, the Court should consider\nP9\nrelationship with the defendant, his role in the White House, and his interactions with the\nCampaign.\nP9\nrelationship with the defendant and his family pre-existed his position\nin the White House, and\nP9\nrepresented the defendant in his impeachment trial.\nP9\ndid not have a defined portfolio, and worked on matters related to the Justice\nDepartment, including the Portland riots and Section 230 of the Communications Decency Act, as\nwell as Middle East issues and pardons. 674\nThe Government does not intend to elicit specific\ninformation about communications\nP9\nhad with the defendant regarding his official\nduties.\n674 GA 671, 697 (\n; GA 700\n- 150 -\n\nPage 151:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 151 of 165\nP9\nwas not acting in an official capacity during the conversations enumerated\nabove, but as a conduit for information from the Campaign.\nP9\ncontact with the\nCampaign began in October 2020, when he asked Campaign staffers\nP3\nand\nP72\nfor a tutorial on campaign basics and operations. 675 He continued to talk to\nP3\nand\nP72\nleading up to the election to understand different electoral college win/loss scenarios. 676 Shortly\nthereafter, in early November 2020\nP9\nasked\nP77\nwho handled ethics issues in\nthe White House Counsel's Office, for permission to engage with the Campaign, and thereafter\nP9\nbegan frequent contact with Campaign staff. 677\nSeveral days after the election,\nP9\nwent to the Campaign headquarters in Virginia for the first time, while\nP2\nCC1\nP56\nCC3\nP10\nP48\nand P12\nwere there too.678 As discussed supra\np. 9, on November 7-likely the same day he went to the Campaign headquarters-\nP9\nP3\nand\nP4\nat the White House to discuss with\njoined Campaign staffers, including\nP2\nthe defendant the fact that networks that morning had projected Biden as the winner of the\nelection. 679\nThe Campaign staff and\nP9\ntold the defendant his chance of victory was\nslim. 680\nP9\nalso participated in various Oval Office meetings with the defendant, Pence,\nWhite House staff, Campaign officials, and\nP39\n681\nThe defendant heard and mentioned, to\nP9\nand others, various fraud allegations\nthroughout the post-election period, sometimes from his outside attorneys like\nCC1\no\u013e\nCC3\n675 GA 671-672\n676 GA 672-673\n677 GA 673, 686\n678 GA 673\n679\nGA 194-195\n680 GA 196-197\n681 See, e.g., GA 683-684\n- 151 -\n\nPage 152:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 152 of 165\nConsistent with this,\nP9\nasked\nP3\nand\nP72\nif certain fraud allegations were\naccurate, so that he could challenge information provided to the defendant by people like\nCC1\nCC3\nand\nP12 682\nP9\nalso began interacting on a near-daily basis with\nP22\na\nCampaign staffer who\nP73\ntold\nP9\nhe could trust. 683\nThe Campaign, in turn,\nhired two outside firms-\nC1\nand\nC2\nto investigate fraud allegations. 684\nP9\ntold the defendant that people external to the Campaign were hired to look into fraud allegations. 685\nOverall,\nP9\nserved as a conduit of day-to-day information between\nP22\nand\nthe defendant during the post-election period.\nP22\ntestified that around the time that\nCC1\nwas named to lead legal efforts, \"I was introduced to\nP9\nand I started\npredominately reporting to\nP9\n686\nHe elaborated that\nP9\n\"started to call\nme more and more. It would be, you know, once every couple of days that then it was kind of\nevery day for a period of time that I was talking to\nP9\n687\nWith this information,\non a daily basis,\nP9\nattempted to debunk the false fraud allegations in the White House.\nFor example, after watching\nP74\ntestify in a December 10, 2020, hearing in\nGeorgia,\nP9\nreached out to\nP22\n688\nThrough this channel,\nP9\nlearned about\nC1\nand\nC2\nuniform findings-that no substantial fraud allegations were supported-\nessentially in real time. 689\nP9\nalso participated in calls with\nC1\nand had the number\n682 GA 673\n); GA 710\n683\nGA 704\n); GA 715 (\n684 GA 715\n685\nGA 716\n).\n686\nGA 58\n687 GA 59\n688\nGA 719\n689 GA 715, 719 (\n- 152 -\n\nPage 153:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 153 of 165\nof one of its managing directors,\nP75\nin his cell phone; some of those calls occurred at\nthe White House. 690\nP9\ndirectly passed the information to the defendant. 691\nP9\nhad other contact regarding initiatives by the Campaign or its outside\nattorneys. For example,\nP9\nwas on a call with the defendant and\nCC2\non December\n9 regarding the defendant's motion, in his capacity as a candidate, to intervene in Texas v.\nPennsylvania.692 Separately,\nP9\nspoke to the defendant about the lawsuit, and explained\nhow the legal system worked and that the Campaign-not the Justice Department or FBI-was\nresponsible for filing election challenge lawsuits. 693\nThroughout these conversations, even if\nP9\ncould be understood to have been\nacting in an official capacity-which he was not-rather than a Campaign one, the defendant was\nhimself acting in his private capacity as a candidate. The defendant was asking for\nP9\nview on various strategic decisions he was making regarding his Campaign and his private\nattorneys, and he was getting reports from\nP9\non information related to actual and\npotential election challenges important to his candidacy and private Campaign. All of this context\nestablishes both that\nP9\nwore two hats-one official, one private-and that the defendant\ninteracted with\nP9\nin these conversations as a candidate rather than as President. The\ninteractions between the defendant and\nP9\nthat the Government intends to introduce at\ntrial were thus all private.\n690 GA 719, 721\n691 GA 717-718\n692 GA 713\n693 GA 687\n- 153 -\n\nPage 154:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 154 of 165\nb.\nP45\nP45\nserved as Assistant to the President and White House Deputy Chief of Staff. 694 He\nalso volunteered his time for Campaign work, including traveling to political rallies with the\ndefendant and posting pictures and videos.695 The Government will elicit from\nP45\nat trial\nthat he was the only person other than the defendant with the ability to post to the defendant's\nTwitter account, that he sent tweets only at the defendant's express direction, and that\nP45\ndid\nnot send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021.696 He also will\ngenerally describe the defendant's Twitter knowledge and habits, including that the defendant was\n\"very active on his Twitter account,\" \"paid attention to how his tweets played with his followers,\"\n\"was very engaged in watching the news,\" and \"knew how to read the replies and see all the replies\nof what people were saying and doing which ... led to where he would retweet things,\" and that\nany Tweet sent \"between 5 or 6 a.m. until 9 or 10 a.m.\" and after \"9 or 10 p.m.\" generally was the\ndefendant personally sending out the Tweet, as opposed to having\nP45\ndo it. None of this\nproposed testimony on\nP45\n's part constitutes evidence of an official act. General information\nabout access to the defendant's Twitter account, as well as\nP45\n's testimony that\nP45\ndid\nor did not issue a particular Tweet, is unrelated to any particular official act by the defendant.\nc.\nP7\nP7\nwas an Assistant to the President and a volunteer for the Campaign.697 She will\ntestify about two specific sets of conversations: (1) a handful of conversations in which the\ndefendant, in advance of the election, said that he would simply declare victory (supra p. 5); and\n694 GA 526\n695 GA 528-529\n696 GA 527 (\n); GA 545\n697 GA 241-244 (\n- 154 -\n\nPage 155:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 155 of 165\n(2) an unprompted statement in which the defendant remarked, in a private moment, that\nCC3\nclaims were \"crazy\" (supra p. 44).\nRegarding the pre-election conversations,\nP7\nhas testified that COVID's expected effect\non the election, and in particular the anticipated phenomenon that the defendant would take an\nearly lead in some states based on the election day vote that would dissipate as mail-in ballots were\ncounted, was discussed among Campaign personnel and dual-hat White House staffers who\nsimultaneously volunteered for the Campaign. 698 In that context, the defendant told\nP7\nand\nothers words to the effect of, \"We'll just declare victory.\"699 Regarding the defendant's statement\nabout\nCC3\nP7\nwill testify about a November 20 phone call in which the defendant mocked\nand laughed at\nCC3\nand called her allegations-that he adopted and amplified-\"crazy.\"700\nIn all of these interactions, the defendant was interacting as a candidate with\nP7\nnot as\nPresident. With respect to his pre-election comments about declaring victory, the context of the\nconversations indicates that the defendant was responding in real time to information that\nCampaign staff provided him on private matters. Similarly, the November 20 conversation among\nthe defendant,\nP7\nand\nP45\nregarding\nCC3\nwas also a Campaign conversation.\nP7\nP45\nand\ntwo staffers who volunteered for the Campaign while working in the White House,\nwere informally discussing with the defendant developments in his Campaign-namely that one\nof his private attorneys had been a source of public embarrassment. The defendant then dialed his\nprivate attorney,\nCC3\nand made the comment about her claims with her on the muted phone\nline. The defendant was not seeking advice from White House staffers; he was making fun of his\nprivate attorney in the presence of Campaign volunteers.\n698\nGA 246-249\n699 GA 250-253\n700 GA 258\n- 155 -\n\nPage 156:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 156 of 165\nc.\nP15\nP15\nwas an Assistant to the President and Director of Oval Office Operations.701 At trial,\nthe Government will elicit from P15\nthat he witnessed an unprompted comment that the defendant\nmade to his family members in which the defendant suggested that he would fight to remain in\npower regardless of whether he had won the election. Specifically, following the 2020 election\nwhile aboard Marine One, the defendant told his wife, daughter\nP14\nand son-in-law\nP13\n\"It doesn't matter if you won or lost the election. You still have to fight like hell.\"\nSee supra p. 14-15.702\nP15\nhappened to overhear this comment, but was not participating in the\nconversation. 703\nThis statement is plainly private. It was exclusively about the election and the defendant's\ndetermination, as a candidate, to remain in power whether he won or lost. The defendant made\nthe comment to his family members, who campaigned on his behalf and served as private advisors\n(in addition to any official role they may have played). The fact that it was overheard by\nP15\na\nWhite House staffer, does not convert it to an official communication.\nd.\nP42\nTo a limited extent, the allegations in the superseding indictment and the Government's\nevidence involve\nP42\nthe defendant's executive assistant in the White House. Section I\ndescribes multiple instances in which\nP42\nreceived emails intended for the defendant or sent\nemails on the defendant's behalf. These instances include:\nP42\nsending to a group of private\nCC3\nattorneys, including\nan email with the subject \"From POTUS\" directing the private\nattorneys to include material critical of\nC3\nin private lawsuits (see supra\n701 GA 307\n); GA 304-305\n702 GA 308\n).\n703 GA 309\nD-\n- 156 -\n\nPage 157:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 157 of 165\npp. 42);\nP42\nreceiving from\nCC1\nan email for the defendant providing a copy of the\nmessage\nCC1\nhad drafted to exert pressure on Michigan Senate Majority Leader\nP37\n(see\nsupra p. 34);\nP42\nreceiving from\nP39\nthe RNC's \"Elector Recap\" email to put in front\nof the defendant (see supra p. 57); and\nP42\nreceiving an email from\nCC2\non December 23\nasking to update the defendant on \"overall strategic thinking\" on the defendant's status as a\ncandidate (see supra p. 61).\nNone of these actions by\nP42\nin which she was merely facilitating communications\nbetween the defendant and his private attorneys or private political allies, constitute the\ndefendant's official conduct.\nP42\nregularly facilitated the defendant's purely private matters,\nincluding communications with his children about his Thanksgiving travel.704 The defendant's\nreliance on\nP42\nto pass messages to and from personal advisors, friends, and family does not\nrender the underlying private communications official. See Lindsey, 158 F.3d at 1281-82.\n2. Even if this evidence were deemed official, the Government could rebut any\npresumption of immunity\nEven if an \"official\" gloss were applied to the defendant's conversations with White House\nstaff pertaining solely to the President's chances as a candidate to successfully challenge the\nelection results, the use of such evidence would not intrude on Executive Branch functions or\nauthority. \"The Office of the Presidency as an institution is agnostic about who will occupy it\nnext.\" Blassingame, 87 F.4th at 4. Whatever blurring of the lines might exist between candidate\nconduct and official conduct in conversations that the President may conduct with his immediate\n704 GA 1904 at row 1151\n(11/17/2020, \"Hi\n! Your\ndad is going to stay in DC for thanksgiving - just wanted to let you know!\" from\nP42\nto\n), row 1765, 1153 (11/16/2020, \"Has DJT solidified his Thanksgiving plans\" from P'73\nto\nP42\nshe responded, \"As of earlier today, FLOTUS wants to stay up here and POTUS\nis on board, as of now\").\n- 157 -\n\nPage 158:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 158 of 165\nstaff, introducing evidence of conversations with dual-hat White House staff members-those who\nfunction in both a Campaign-related capacity and an official advisory capacity-when they are\nspeaking to the President in his capacity as a candidate or in their Campaign-related capacity does\nnot impede decision-making on matters entrusted to the Executive Branch. The Supreme Court\nrequired that its rebuttal analysis focus on Executive Branch authority and functions-not merely\non anything that the President might say or do while at the White House. Here, the Executive\nBranch has no authority or function in the certification of the next President. Accordingly, the use\nof evidence of White House staffers' Campaign-capacity discussions with the President about how\nto challenge state election results-challenges brought in his capacity as a candidate-does not\nrisk impairing the constitutional role of the Executive Branch.\nF. Other Evidence of the Defendant's Knowledge and Intent\nThe Government intends to introduce at trial additional evidence to prove the defendant's\nknowledge and intent. These include (1) public statements by federal officials that the defendant\ndid not direct be made (specifically, public statements by Attorney General\nP52\nand CISA\nDirector\nP50\nabout the lack of election fraud and foreign interference); (2) evidence that the\ndefendant was reviewing Twitter and watching television throughout the afternoon of January 6;\nand (3) the defendant's post-Administration statements. None of this evidence will involve\ntestimony from the defendant's Executive Branch staff about his official actions.\n1. The evidence at issue was unofficial\na. Statements by federal officials\ni.\nP52\n(supra p. 46)\nIn a public statement issued on December 1, 2020, Attorney General P52\nsaid that the\nDepartment of Justice had not seen evidence of fraud sufficient to change the election results, and\n- 158 -\n\nPage 159:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 159 of 165\nthat claims that voting machines had skewed election results were unsubstantiated. 705\nP52 decided\nto make his statement without informing the defendant in advance.706 He prepared the statement\nbecause he had been watching the defendant repeat claims of election fraud publicly despite direct\nknowledge, from\nP52\nand others, that they were false, and\nP52\nwas growing more and more\nfrustrated by the defendant's actions. 707 On November 29, P52\nsaw the defendant appear on the\nMaria Bartiromo Show and claim, among other false things, that the Justice Department was\n\"missing in action\" and had ignored evidence of fraud. 708\nP52\ndecided it was time to speak\npublicly in contravention of the defendant's false claims, set up a lunch with a reporter for the\nAssociated Press, and made his statement-all without informing or seeking permission from the\ndefendant. The same day, on behalf of the Campaign,\nCC1\nand P12\nissued a statement\nattacking\nP52\nfor his comments. 709\nIn the days that followed,\nP1\nacknowledged and\ncriticized\nP52\nstatement during his podcast, asking rhetorically \"is\nP52\nreading the same\nthings we're reading?\" and prompting guest\nCC6\nto comment that \"the DOJ has not been\nfollowing up on these leads as far as we know right now. That statement seemed to be very\npremature.\n[T]here's no way one can look at this election in these states and say that it was\ndone properly.\"710\nP52\nstatement is not an official act by the defendant. Trump treats only the defendant's\nown acts as potentially immune, see, e.g., 144 S. Ct. at 2338, consistent with the \"justifying\npurposes of the immunity\"-\"to ensure that the President can undertake his constitutionally\n705 GA 1242-1243 (Email from Comms Alert 12/01/2020).\n706 GA 12-13\n707 GA 8-10\n708\nGA 10\n709 GA 1244 (Trump Campaign Press Release 12/01/2020).\n710 GA 1978 at 11:56-12:04, 32:06-33:16\n- 159 -\n\nPage 160:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 160 of 165\ndesignated functions effectively, free from undue pressures or distortions,\" id. at 2332 (internal\nquotation marks omitted). The immunity that the Supreme Court recognized thus does not imply\nthat acts by other government officials can qualify as presidential acts. More to the point,\nP52\nstatement does not reveal any official action by the defendant because\nP52\ndid not give his public\nstatement at the defendant's direction or even with his knowledge. To the contrary, if the defendant\nhad been aware of what P52\nintended to do he undoubtedly would have instructed P52\nnot to\nmake the statement; when the defendant learned of\nP52\nstatement, he was so angry that P52\ntendered his resignation and, momentarily, the defendant accepted-until\nP9\nand\nP59\nprevailed upon the defendant to calm down and convinced P52\nto delay his departure. 711\nThe Government does not intend to introduce evidence that implies that P52\nor his deputies refuted\nthe defendant's fraud claims to him directly; instead, the Government intends to introduce\nP52\nstatement and\nCC1\nCampaign response to it, as well as\nP1\nrecognition and repetition\nof P52\nstatement.\nii.\nP50\n(supra pp. 42-43)\nOn November 17, CISA Director\nP50\ntweeted a link to an open letter by 59 election\nsecurity experts and touted it in an effort to promote public confidence in the election's\ninfrastructure. 712 This was similar to what\nP50\nhad done five days earlier on November 12,\nwhen he had publicized the joint statement CISA issued with the National Association of\nSecretaries of State, the National Association of State Election Directors, and other organizations\ndeclaring the 2020 election to be \"the most secure in American history\" and that there was \"no\nevidence that any voting system deleted or lost votes, changed votes, or was in any way\n711 GA 107-113\n); GA 115-119\n712 GA 790 (Tweet 11/17/2020).\n- 160 -\n\nPage 161:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 161 of 165\ncompromised.\"713 On November 17,\nP50\npromoted the expert report on his own initiative and,\nas he later learned, contrary to the defendant's wishes; the defendant promptly fired\nP50\nthe\nsame day, by Tweet.714 The Government does not intend to introduce any evidence about the\ndefendant's removal of\nP50\nRather, as with\nP52\npublic statement,\nP50\npublic Tweets\nwere not official actions by the defendant and thus are not protected by presidential immunity.\nb. The defendant's use of Twitter and television on January 6 (Superseding\nIndictment, ECF No. 226 | 92; supra p. 79)\nForensic evidence from the defendant's iPhone and observations by witnesses otherwise\ntestifying about unofficial acts will establish that upon his return from the Ellipse, throughout the\nafternoon on January 6, the defendant sat in the dining room by the Oval Office, where he used his\nphone to review Twitter and watched the television, which was turned on and displaying news\ncoverage of the riot at the Capitol.715\nAs explained in the Government's expert notice, ECF No. 183, an FBI Computer Analysis\nResponse Team forensic examiner can testify as to the news and social media applications\ndownloaded on the defendant's phone, 716 and can describe the activity occurring on the phone\nthroughout the afternoon of January 6.717 The phone's activity logs show that the defendant was\nusing his phone, and in particular, using the Twitter application, consistently throughout the day\nafter he returned from the Ellipse speech. 718\n713 GA 779 (Tweet 11/12/2020); GA 1236-1237 (Election Security Joint Statement 11/12/2020).\n714 GA 791-794 (Donald J. Trump Tweet 11/17/2020).\n715 GA 1869-1871\n716 GA 1900\n717 GA 1872-1885\n718 GA 1902\nPhone.);\n- 161 -\n\nPage 162:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 162 of 165\nIn addition,\nP9\n719\nP15\n720\nand\nP45\neach of whom are, as described\nsupra pp. 147-154, 156, otherwise expected to testify about the defendant's unofficial acts-will\noffer the objective observation that during the afternoon of January 6, the television in the\ndefendant's dining room, where he spent the day, was on and tuned into news programs that were\ncovering in real time the ongoing events at the Capitol. In turn, the Government will introduce the\nauthenticated coverage showing what Fox News was playing in real time while the defendant sat\nin the room with the television on. This evidence is particularly relevant to the defendant's\nknowledge at the time he issued the 2:24 p.m. Tweet, which, as described above, was unofficial.\nNone of this evidence involves testimony about an act by the defendant at all, and it shows\nwhat social media and news the defendant privately reviewed in service of issuing a private Tweet.\nThe Government will not elicit testimony from the defendant's staffers about his official\ndeliberations, reactions to social media or television, or official actions taken in response. The\ndefendant's review of social media and television news-under these particular circumstances-\n-\nwas no different from that of any other citizen or candidate and therefore was unofficial.\nc. The defendant's post-Administration statements (supra pp. 81, 83)\nAs the Government identified in its Rule 404(b) notice, ECF No. 174-1 at 8-9, the\nGovernment will introduce some of the defendant's numerous statements that post-date his time\nas President in which he has blamed Pence and approved of the actions of his supporters who\nbreached the Capitol and obstructed the certification proceeding, 722 thus providing evidence of his\nintent on January 6.\n719 GA 232-236\n720 GA 318\n).\n721 GA 541-543\n722\nSee, e.g., GA 1970 at 17:37 (Video of Trump Interview 07/10/2021); GA 1926 at 1:15:30\n- 162 -\n\nPage 163:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 163 of 165\nThe defendant's endorsement of the violent actions of his supporters on January 6, and his\nsentiment that they were justified in threatening Pence-all made while the defendant was a private\ncitizen after the end of his term in office-are probative of his intent during the charged\nconspiracies. The Government intends to offer them as evidence of the defendant's intent on\nJanuary 6, not as evidence of his official acts.\n2. Even if this evidence were deemed official, the Government could rebut any\npresumption of immunity\nThe use of the evidence regarding former Attorney General P52\nand CISA Director\nP50\nwould not intrude on Executive Branch authority or functions because the federal officials'\nstatements reflected those officials' positions, knowledge, and expertise-not presidential acts or\ndirection. The President is the \"the only person who alone composes a branch of government,\"\nTrump, 144 S. Ct. at 2329 (citation omitted), but Congress structures the Executive Branch and\nassigns manifold specific duties to subordinate officers who in turn execute the law. The President\nis responsible to take care that the laws be faithfully executed, see U.S. Const. Art. 2, \u00a7 3, but that\ndoes not mean that every executive official is at all times performing presidential acts. Allowing\nthe Government to introduce evidence of these independent actions and public statements of\nsubordinate officials in the Executive Branch, not taken at the direction of the President, does not\nintrude on the authority or functions of the Executive Branch. Nothing in Trump dictates such an\n(Video of Conroe Rally 01/29/2022); GA 1971 at 15:51, 16:42 (Video of Trump Interview\n02/01/2022); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA\n1966 at 09:30 (Video of Trump Interview 09/01/2022); GA 1973 at 43:07 (Video of Waco Rally\n03/25/2023); GA 1694 (Transcript of CNN Town Hall 05/10/2023); GA 1964 (Video of Trump\nCampaign Statement 2024); GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1965\nat 56:10, 57:11 (Video of Trump Interview on Meet the Press 09/17/2023); GA 1935 at 35:50,\n01:16:16 (Video of Greensboro Rally 03/02/2024); GA 967 (Donald J. Trump Truth Social Post\n03/11/2024); Isaac Arnsdorf and Maeve Reston, Trump claims violence he inspired on Jan. 6 was\nPence's\nfault,\nWASH.\nPOST,\n(Mar.\n13,\n2023,\n8:09\np.m.),\nhttps://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/.\n- 163 -\n\nPage 164:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 164 of 165\noutcome that would effectively bar any Executive Branch employee from providing evidence\nagainst a President who committed crimes in his private capacity. Put concretely, allowing these\nindependent acts of Executive Branch officials to be used in the prosecution would not chill any\nPresidential conduct, and thus any presumption of immunity is overcome.\nThe same is true for testimony by White House staff about the President's review of Twitter\nor his watching public events on television. Assuming for the moment that the President\nsometimes acts in an official capacity when watching television or reviewing Twitter, no statute\nor constitutional provision addresses the matter, and using evidence of his activity that virtually\nall citizens engage in-i.e., checking their social-media feeds and watching television-does not\nintrude on any authority or functions of the Executive Branch.\nIV.\nConclusion\nBased on a \"factbound analysis,\" for the reasons explained above, the Court should\ndetermine that the conduct described in the factual proffer of Section I of this motion is not subject\nto presidential immunity. As part of this determination, the Court should specify four\ndeterminations, and do so in a single order: (1) that the Government has rebutted the presumption\nof immunity attached to the defendant's official communications with the Vice President (see\nsupra pp. 49, 63-67, 77-74; ECF No. 226 ||| 11(c), 67, 70-78, 80, 82, and 84); and (2) that the\nremaining conduct described in Section I (that is, conduct other than the official communications\nwith the Vice President) was not official, and, in the alternative, that the Government has rebutted\nany presumptive immunity for any of the remaining conduct that the Court finds to be official.\nThe Government requests alternative rulings regarding rebuttal for all conduct the Court finds to\nbe unofficial, to buttress the Court's record, ensure thorough and efficient appellate review, and\nminimize the risk of successive rounds of interlocutory appeal.\n- 164 -\n\nPage 165:\nCase 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 165 of 165\nFurthermore, based on the determination that all the conduct described in Section I is not\nimmune from prosecution, and because Section I encompasses all the allegations in the\nsuperseding indictment, the Court should further specify: (3) that the defendant is subject to trial\non the superseding indictment; and (4) that the Government is not prohibited at trial from using\nevidence of the conduct described in Section I, subject at a later date to non-immunity based\nobjections and this Court's admissibility rulings under the Federal Rules of Evidence.\nRespectfully submitted,\nJACK SMITH\nSpecial Counsel\n/s/ Molly Gaston\nMolly Gaston\nThomas P. Windom\nSenior Assistant Special Counsels\n950 Pennsylvania Avenue NW\nRoom B-206\nWashington, D.C. 20530\n- 165 -", + "pdf_url": "https://storage.courtlistener.com/recap/gov.uscourts.dcd.258148/gov.uscourts.dcd.258148.252.0.pdf" + } +] \ No newline at end of file diff --git a/mkdocs.yml b/mkdocs.yml index 2eb02e28..9c41d298 100644 --- a/mkdocs.yml +++ b/mkdocs.yml @@ -48,6 +48,7 @@ nav: - Reporting on Themes from Presidential Debates: examples/presidential-debate-themes.md - Mining Product Reviews for Polarizing Features: examples/mining-product-reviews.md - Medical Document Classification with Ollama: examples/ollama.md + - Split and Gather for Legal Document Analysis: examples/split-gather.md - Datasets With Custom Parsing: examples/custom-parsing.md # - Annotating Legal Documents: examples/annotating-legal-documents.md # - Characterizing Troll Behavior on Wikipedia: examples/characterizing-troll-behavior.md