Gripping filing in United States of America v. DONALD JOHN TRUMP: read "GOVERNMENT’S MOTION FOR IMMUNITY DETERMINATIONS"

Read Special Prosecutor Jack Smith's filing with Judge Chutkin in the criminal case of United States of America v. DONALD JOHN TRUMP: 

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

* CRIMINAL NO. 23-cr-257 (TSC)* 

UNITED STATES OF AMERICA * *  

v.

DONALD J. TRUMP, * * 

Defendant. * *

GOVERNMENT’S MOTION FOR IMMUNITY DETERMINATIONS

The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so. Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted—a function in which the defendant, as President, had no official role. In Trump v. United States, 144 S. Ct. 2312 (2024), the Supreme Court held that presidents are immune from prosecution for certain official conduct— including the defendant’s use of the Justice Department in furtherance of his scheme, as was alleged in the original indictment—and remanded to this Court to determine whether the remaining allegations against the defendant are immunized. The answer to that question is no. This motion provides a comprehensive account of the defendant’s private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none of the defendant’s charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted; and requests the relief the Government seeks, which is, at bottom, this: that the Court determine that the defendant must stand trial for his private crimes as would any other citizen.

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This motion provides the framework for conducting the “necessarily factbound” immunity analysis required by the Supreme Court’s remand order. Trump, 144 S. Ct. at 2340. It proceeds in four parts.

Section I provides a detailed statement of the case that the Government intends to prove at trial. This includes the conduct alleged in the superseding indictment, as well as other categories of evidence that the Government intends to present in its case-in-chief. This detailed statement reflects the Supreme Court’s ruling that presidential immunity contains an evidentiary component, id., which should be “addressed at the outset of a proceeding,” id. at 2334.

Section II sets forth the legal principles governing claims of presidential immunity. It explains that, for each category of conduct that the Supreme Court has not yet addressed, this Court should first determine whether it was official or unofficial by analyzing the relevant “content, form, and context,” id. at 2340, to determine whether the defendant was acting in his official capacity or instead “in his capacity as a candidate for re-election.” Blassingame v. Trump, 87 F.4th 1, 17 (D.C. Cir. 2023). Where the defendant was acting “as office-seeker, not office-holder,” no immunity attaches. Id. (emphasis in original). For any conduct deemed official, the Court should next determine whether the presumption of immunity is rebutted, which requires the Government to show that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Trump, 144 S. Ct. at 2331-32 (quotingNixon v. Fitzgerald, 457 U.S. 731, 754 (1982)).

Section III then applies those legal principles to the defendant’s conduct and establishes that nothing the Government intends to present to the jury is protected by presidential immunity. Although the defendant’s discussions with the Vice President about “their official responsibilities” qualify as official, see Trump, 144 S. Ct. at 2336, the Government rebuts the presumption of

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immunity. And all of the defendant’s remaining conduct was unofficial: as content, form, and context show, the defendant was acting in his capacity as a candidate for reelection, not in his capacity as President. In the alternative, if any of this conduct were deemed official, the Government could rebut the presumption of immunity.

Finally, Section IV explains the relief sought by the Government and specifies the findings the Court should make in a single order—namely, that the defendant’s conduct set forth in Section I is not immunized, and that as a result, the defendant must stand trial on the superseding indictment and the Government is not prohibited at trial from using evidence of the conduct described in Section I.
I. Factual Proffer

When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office. With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the “targeted states”). His efforts included lying to state officials in order to induce them to ignore true vote counts; manufacturing fraudulent electoral votes in the targeted states; attempting to enlist Vice President Michael R. Pence, in his role as President of the Senate, to obstruct Congress’s certification of the election by using the defendant’s fraudulent electoral votes; and when all else had failed, on January 6, 2021, directing an angry crowd of supporters to the United States Capitol to obstruct the congressional certification. The throughline of these efforts was deceit: the defendant’s and co-conspirators’ knowingly false claims of election fraud. They used these lies in furtherance of three conspiracies: 1) a conspiracy to interfere with the federal government function by which the nation collects and counts election results, which is set forth in the Constitution and the Electoral Count Act (ECA); 2) a conspiracy to obstruct the official proceeding in which Congress certifies the legitimate results

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claimed that mail-in ballots were inherently fraudulent, and asserted that only votes counted by election day were valid. For instance:

In an interview on July 19, 2020, when asked repeatedly if he would accept the results of the election, the defendant said he would “have to see” and “it depends.”5

On July 30, despite having voted by mail himself earlier that year, the defendant suggested that widespread mail-in voting provided cause for delaying the election, tweeting, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”6

In an interview on August 2, the defendant claimed, without any basis, that “[t]here is no way you can go through a mail-in vote without massive cheating.”7

At a campaign event in Wisconsin on August 17, the defendant told his supporters, “[t]he only way we’re going to lose this election is if the election is rigged, remember that. It’s the only way we’re going to lose this election, so we have to be very careful.”8

In his acceptance speech at the Republican National Convention on August 24, the defendant said that “[t]he only way they can take this election away from us is if this is a rigged election.”9

On October 27, during remarks regarding his campaign, the defendant said, “[i]t would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws. I don’t believe that. So we’ll see what happens.”10 The defendant said this despite—or perhaps because—his private advisors had informed him that it was unlikely that the winner of the election would be declared on November 3.

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

6 See https://x.com/realDonaldTrump/status/1288818160389558273 (Donald J. Trump Tweet 07/30/2020).

7 See Donald Trump Interview Transcript with Jonathan Swan of Axios on HBO, Rev (Aug. 3, 2020) https://www.rev.com/blog/transcripts/donald-trump-interview-transcript-with-axios-on- hbo.

8 GA 1943 at 57:33 (Video of Oshkosh Rally 08/17/2020).
9 GA 1951 at 22:08 (Video of RNC Speech 08/24/2020).
10 GA 1927 at 3:11-3:28 (Video of Donald J. Trump Statement 10/27/2020).

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election fraud in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin that had been publicly, or directly, debunked.61 The defendant used these lies to inflame and motivate the large and angry crowd of his supporters to march to the Capitol and disrupt the certification proceeding.62

C. TheDefendantAimedDeceitattheTargetedStatestoAlterTheirAscertainment and Appointment of Electors

Shortly after election day, the defendant began to target the electoral process at the state level by attempting to deceive state officials and to prevent or overturn the legitimate ascertainment and appointment of Biden’s electors. As President, the defendant had no official responsibilities related to the states’ administration of the election or the appointment of their electors, and instead contacted state officials in his capacity as a candidate. Tellingly, the defendant contacted only state officials who were in his political party and were his political supporters, and only in states he had lost. The defendant’s attempts to use deceit to target the states’ electoral process played out in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, as well as across these and other states that used certain voting machines. In addition to the following evidence of the defendant’s conduct during the charged conspiracies, at trial the Government will elicit testimony from election officials from the targeted states to establish the objective falsity—and often, impossibility—of the defendant’s fraud claims. Notably, although these election officials would have been the best sources of information to determine whether there was any merit to specific allegations of election fraud in their states, the defendant never contacted any of them to ask.

61 GA 1126-1129, GA 1131-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021). 62 GA 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021).

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Fox News’s coverage of events at the Capitol included, at about 2:12 p.m., reports of the Capitol being on lockdown and showed video footage of large crowds within the restricted area surrounding the Capitol; much of the crowd was wearing clothing and carrying flags evidencing their allegiance to the defendant.458 At about 2:20 p.m., video of crowds on the Capitol lawn and West Terrace were shown alongside a chyron stating, “CERTIFICATION VOTE PAUSED AS PROTESTSERUPTONCAPITOLHILL.”459 At2:21p.m.,anon-the-streetreporterinterviewed an individual marching from the Ellipse to the Capitol who claimed to have come to Washington “because President Trump told us we had something big to look forward to, and I believed that Vice President Pence was going to certify the electorial [sic] votes and, or not certify them, but I guess that’s just changed, correct? And it’s a very big disappointment. I think there’s several hundred thousand people here who are very disappointed. But I still believe President Trump has something else left.”460 And at approximately 2:24 p.m., Fox News reported that a police officer may have been injured and that “protestors . . . have made their way inside the Capitol.”461

At 2:24 p.m., Trump was alone in his dining room when he issued a Tweet attacking Pence and fueling the ongoing riot: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”462 That afternoon, at the Capitol, a rioter used a bullhorn to read the defendant’s Tweet about the Vice President aloud to the crowd trying to gain entry to the

458 GA 1931 at 12:12 (Video of Fox News Coverage 01/06/2021).
459 GA 1931 at 20:11 (Video of Fox News Coverage 01/06/2021).
460 GA 1931 at 21:47 (Video of Fox News Coverage 01/06/2021).
461 GA 1931 at 24:05–24:17 (Video of Fox News Coverage 01/06/2021).
462 GA 946-947 (Donald J. Trump Tweet 01/06/2021); GA 546 ( ).

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building.463 The defendant issued the incendiary Tweet about Pence despite knowing—as he would later admit in an interview in 2023—that his supporters “listen to [him] like no one else.”464 One minute later, at 2:25 p.m., the Secret Service was forced to evacuate Pence to a secure location.465 AttheCapitol,throughouttheafternoon,membersofthecrowdchanted,“HangMike Pence!”466;“WhereisPence?Bringhimout!”467;and“TraitorPence!”468 Severalriotersinthose chanting crowds wore hats and carried flags evidencing their allegiance to the defendant. In the years since January 6, the defendant has refused to take responsibility for putting Pence in danger, instead blaming Pence. On March 13, 2023, he said, “Had Mike Pence sent the votes back to the legislatures, they wouldn’t have had a problem with Jan. 6, so in many ways you can blame him for Jan. 6. Had he sent them back to Pennsylvania, Georgia, Arizona, the states, I believe, number one, you would have had a different outcome. But I also believe you wouldn’t have had ‘Jan. 6’

as we call it.” 469
Rioters—again, many bearing pro-Trump paraphernalia indicating their allegiance—

breached the Senate chamber,470 rifled through the papers on the Senators’ desks,471 and stood on thedaiswherePencehadbeenpresidingjustminutesearlier.472 OntheHouseside,rioterswatched

463 GA 1922 (Video of Capitol Riot 01/06/2021).
464 GA 1693 (Transcript of CNN Town Hall 05/10/2023). 465 GA 1944 (Video of Pence Evacuation 01/06/2021). 466 GA 1914 (Video of Capitol Riot 01/06/2021).
467 GA 1911 (Video of Capitol Riot 01/06/2021).
468 GA 1910 (Video of Capitol Riot 01/06/2021).

469 Isaac Arnsdorf and Maeve Reston, Trump claims violence he inspired on Jan. 6 was Pence’s fault, Wash. Post, (Mar. 13, 2023, 8:09 p.m.), https://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/.

470 GA 1956 (Video of Senate Gallery Doors CCTV 01/06/2021). 471 GA 1955 at 16:20 (Video of Senate Floor 01/06/2021).
472 GA 1955 at 29:15 (Video of Senate Floor 01/06/2021).

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

The threshold question here, then, is whether the defendant can carry his burden to establish that his acts were official and thus subject to presumptive immunity. Id. at 2332; see Dennis v. Sparks, 449 U.S. 24, 29 (1980) (noting that for immunity doctrines, “the burden is on the official claiming immunity to demonstrate his entitlement”). Official conduct includes acts taken within the “‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond [his] authority.’” Trump, 144 S. Ct. at 2333 (quoting Blassingame, 87 F.4th at 13). But consistent with the D.C. Circuit’s opinion in Blassingame, the Supreme Court suggested that a President who speaks “as a candidate for office or party leader”— as the defendant did here—does not act in his official, presidential capacity. Id. at 2340. As the D.C. Circuit explained, a President acting as a “candidate for re-election” is, to that extent, not carrying out an official responsibility. Blassingame, 87 F.4th at 17; accord id. at 5 (“When a sitting President running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern. Yet he does

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so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity.”) (emphasis in original). To assess whether a presidential action constitutes an “official” act, courts must apply an “objective analysis” that focuses on the “‘content, form, and context’” of the conduct in question. Trump, 144 S. Ct. at 2340 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). A President’s motives for undertaking the conduct and the fact that the conduct is alleged to have violated a generally applicable law are not relevant considerations. Id. at 2333-34.

If a President’s actions constitute non-core official presidential conduct, he is at least presumptively immune from criminal prosecution for that conduct. 144 S. Ct. at 2328, 2331; id. at 2332 (reserving whether “this immunity is presumptive or absolute . . . [b]ecause we need not decide that question today”). The Government can overcome that presumptive immunity by demonstrating that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Id. at 2331-32 (quoting Fitzgerald, 457 U.S. at 754). Just as the inquiry into whether conduct is official or unofficial is “necessarily factbound,” Trump, 144 S. Ct. at 2340, with “[t]he necessary analysis [being] . . . fact specific,” id. at 2339, so too should be the inquiry into whether any “presumption of immunity is rebutted under the circumstances,” id. at 2337. The analysis should first identify the specific alleged act at issue, and then determine whether criminal liability for the act intrudes on a relevant Executive Branch authority or function, taking care not to “conceive[] of the inquiry at too high a level of generality.” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1141 (D.C. Cir. 2015) (reversing district court in civil immunity case). Such an approach recognizes that Executive authority has limits—boundaries imposed by constitutional text, the separation of powers, and precedent—and that application of criminal law to the President’s official conduct does not per se intrude

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impermissibly on Executive Branch authority and functions. Cf. Trump, 144 S. Ct. at 2327 (“If the President claims authority to act but in fact exercises mere ‘individual will’ and ‘authority without law,’ the courts may say so.”) (quoting Youngstown, 343 U.S. at 655 (Jackson, J., concurring)).

These principles for assessing whether the conduct alleged in the superseding indictment is immune apply equally to evidence. The Government may not introduce evidence of immunized official conduct against a former President at a trial, even to prove that the former President committed a crime predicated on unofficial conduct. Id. at 2340-41.
III. None of the Allegations or Evidence Is Protected by Presidential Immunity

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

This section first addresses the defendant’s interactions with Pence, because in Trump, the Supreme Court held that when the defendant conversed with Pence about “their official responsibilities,” the conduct was official. 144 S. Ct. at 2336. Accordingly, the Government explains below why any presumptive immunity as to the defendant’s official conduct regarding

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Pence is rebutted. Other than the specific official conduct related to Pence that the Supreme Court held to be official, none of the defendant’s other actions were official. This section categorizes that conduct and provides the “content, form, and context” that establishes its unofficial nature. These categories are: a) the defendant’s interactions, as a candidate, with state officials; b) the defendant’s efforts, as a candidate, to organize fraudulent electors; c) the defendant’s public speeches, Tweets, and other public statements as a candidate; d) the defendant’s interactions, as a candidate, with White House staff; and e) other evidence of the defendant’s knowledge and intent. Lastly, even if these categories of conduct and evidence were to be deemed official, the Government can rebut the attendant presumption of immunity as described below.

A. The Defendant’s Interactions with Pence

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

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

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

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has such a majority, does the choice fall to the House of Representatives, who, voting by state delegation, “choose immediately, by ballot,” from the three presidential candidates receiving the most electoral votes. Id. There, too, the Executive Branch plays no role in the process.

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

Some of those precautions are reflected in the design of the Electoral College itself. “[W]ary of ‘cabal, intrigue, and corruption,’” the Framers “specifically excluded from service as electors ‘all those who from situation might be suspected of too great devotion to the president in

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

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

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

History confirms that presidents have never understood their wide-ranging duties to encompass any direct role in the function of collecting, counting, and certifying the results of a presidential election. As President Lincoln explained in 1864, “[b]y the Constitution and laws the President is charged with no duty in the conduct of a presidential election in any State,” and “[i]f any election shall be held, and any votes shall be cast in the State of Tennessee for President and Vice President of the United States, it will belong, not to the military agents, nor yet to the Executive Department, but exclusively to another department of the Government, to determine whether they are entitled to be counted, in conformity with the Constitution and laws of the United States.” 8 Collected Works of Abraham Lincoln, 71-72 (1953). When Congress later sent to Lincoln for his signature a “Joint resolution declaring certain States not entitled to representation in the electoral college,” Lincoln signed the resolution “in deference to the view of Congress implied in its passage and presentation to him,” but “disclaim[ed] all right of the Executive to interfere in any way in the matter of canvassing or counting electoral votes.” House Special Committee, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 229-230 (1877). The Government is aware of no contrary evidence, including of any President, other than the defendant,

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seeking to influence his Vice President in the discharge of his duties as President of the Senate in presiding over the joint session. The absence of any such historical tradition is reinforced by the fact that in 22 of the 59 certification proceedings the Vice President has not presided at all. See Joel K. Goldstein, The Ministerial Role of the President of the Senate in Counting Electoral Votes: A Post-January 6 Perspective, 21 U. N.H. L. REV. 369, 402 & App’x 1 (2023).

When it comes to the certification proceeding specifically, not only has the President been deliberately excluded from the process, but the Vice President’s role, as President of the Senate, is highly circumscribed and ministerial in nature. The Twelfth Amendment gives the President of the Senate no substantive role in determining how to count the votes of the electors appointed by the states. Rather, it provides only that he “shall, in the presence of the Senate and House of Representatives, open all the certificates,” and then shifts to the passive voice: “and the votes shall then be counted.” Nothing in the Constitution remotely suggests that the single individual serving as President of the Senate would have the momentous responsibility to decide which votes to count and how they should be counted. Indeed, as Pence himself explained on January 6, 2021, giving the President of the Senate such a role “would be entirely antithetical to the [Constitution’s] design.”497 And, removing any possible doubt, “Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes,” Trump, 144 S. Ct. at 2337 (citing 3 U.S.C. § 15), and it has never provided any substantive role for the Vice President, instead assigning the resolution of disputes to the two Houses of Congress.498 Moreover, Congress has

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

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

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now made explicit—echoing and reaffirming constitutional tradition and practice—that, with limited exceptions of no relevance to this case, “the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties,” 3 U.S.C. § 15(b)(1). He “shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.” Id. § 15(b)(2).499 Because the Vice President’s role is and has always been ministerial, rather than substantive or discretionary, it is difficult to imagine an occasion in which a President would have any valid reason to try to influence it. As such, criminalizing a President’s efforts to affect the Vice President’s role as the President of the Senate overseeing the certification of Electoral College results would not jeopardize an Executive Branch function or authority.

Critically, applying a criminal prohibition to the discrete and distinctive category of official interactions between the President and Vice President alleged in this case would have no effect— chilling or otherwise—on the President’s other interactions with the Vice President that implicate Executive Branch interests. The President would still be free to direct the Vice President in the discharge of his Executive Branch functions, such as “presid[ing] over . . . cabinet meetings,” engaging in “diplomacy and negotiation,” or performing any other presidential duties that the President chooses to delegate. See Trump, 144 S. Ct. at 2336 (internal quotation marks omitted). The President would likewise still be free to advise the Vice President on how to “advance the

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

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2024) (similarly denying notice of removal to federal court of a criminal case in Arizona related to the defendant’s fraudulent elector plan on the basis that conduct in furtherance of the plan charged by the State “is unrelated to official duties”).

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

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

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

144 S. Ct. at 2339. Under the Constitution, the Executive Branch has no constitutionally assigned role in the state-electoral process. To the contrary, the constitutional framework excludes the President from that process to protect against electoral abuses. See supra p. 93. Accordingly, applying federal criminal law to the defendant’s use of fraud to interfere with electoral processes carried out by the states does not intrude on Executive Branch authority or functions. Rather, it ensures that the President’s conduct remains consistent with the Constitution’s allocation of that authority to the States, while in no way impairing his ability to “encourage [state officials] to act

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

1. The statements at issue were unofficial

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

a. Speeches

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

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There were more ballots than voters (Dalton at GA 1106: “There were 11,000 more ballots than there were voters.” Ellipse at GA 1134: “11,600 more ballots and votes were counted, more than there were actual voters.”).

o Georgia

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

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

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

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

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

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

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

o Michigan

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

o Nevada

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

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

o Pennsylvania

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

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

14,000 out-of-state voters voted (Dalton at GA 1106: “14,000 ballots illegally cast by out of state voters.” Ellipse at GA 1127: “Over 14,000

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ballots were cast by out-of-state voters. So these are voters that don’t live in this state.”);

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

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

o Wisconsin

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

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

The defendant’s language throughout the speech was that of a candidate focused on his re- election. He claimed that he would not concede, that he received more votes than he had four years earlier, that the election was over by 10:00 p.m. on election night, and that he wanted to go

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back eight weeks to fix the election result. Significantly, he made many of these statements at the beginning of the speech, framing the themes for the rest of the speech.594

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

b. Tweets

One of the tools the defendant used for partisan political advantage—and in furtherance of the charged conspiracies—was his personal Twitter account. He used his Twitter account to undermine public confidence in the electoral system, spread false claims of election fraud, attack those speaking the truth that the defendant had lost the election, exhort supporters to travel to Washington for the certification proceeding, and marshal his supporters’ anger at, and pressure on,

594 GA 1118-1119 (Ellipse Rally Speech Draft Tr. 01/06/2021).
595 GA 1122, 1126-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).
596 GA 1115, 1122 (Ellipse Rally Speech Draft Tr. 01/06/2021).
597 GA 1115, 1132-1133, 1136 (Ellipse Rally Speech Draft Tr. 01/06/2021). 598 GA 1119, 1133, 1135 (Ellipse Rally Speech Draft Tr. 01/06/2021).

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Pence. As described below, an objective analysis of “content, form, and context,” id. at 2340, establishes that the select Tweets that the Government intends to offer at trial were unofficial.

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

The Supreme Court’s decision in Lindke v. Freed, 144 S. Ct. 756, 769 (2024), confirms that a public official’s personal social-media account can be used for both personal and public business, and—consistent with Trump—that a fact-specific inquiry is required to discern into which category a post falls. In conducting the necessary Tweet-by-Tweet analysis, context and

599 GA 525-527 ( ); GA 534 ( ).

600

753965070003109888?lang=en (Donald J. Trump Tweet 07/15/2016).

601 https://x.com/realDonaldTrump/status/1091760712756744192 (Donald J. Trump Tweet

02/02/2019); https://x.com/realdonaldtrump/status/1172353230505938946 (Donald J. Trump Tweet 09/12/2019).

 

GA 411 ( ); see https://x.com/realDonaldTrump/status/

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not differentiate between his official and Campaign duties and when he would send Tweets on the account for Campaign purposes as a Campaign volunteer.603

A review of the defendant’s official @POTUS45 account presents a relevant contrast. The defendant used this institutional account primarily to re-tweet other accounts like the @realDonaldTrump account, as well as @WhiteHouse. There were 74 Tweets from the @POTUS45 account during the charged conspiracies.604 None of them include the defendant’s election-related claims or his election challenges.605 The last four Tweets in the account, which the Government cites here to show context, were re-Tweets of Tweets from @realDonaldTrump regarding January 6.606 These include two Tweets that the defendant issued on the afternoon of January 6 purportedly asking individuals to support law enforcement and “stay” peaceful; notably, the @POTUS45 account archive does not include the defendant’s Twitter pressure campaign against Pence, such as the 2:24 p.m. Tweet on January 6.607

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

603 GA 526-532 ( ).
604 GA 1899 (Spreadsheet of @POTUS45 Tweets). 605 Id. (Spreadsheet of @POTUS45 Tweets).

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

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

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

The private and Campaign nature of the Tweets is further confirmed when viewed in the context of the defendant’s increasing desperation as even his unlawful path to remain in power narrowed. When the defendant re-tweeted the “Operation Pence Card” Tweet on December 23, the defendant knew that he had lost the legitimate electoral college vote and had begun summoning supporterstoWashingtonfortheEllipserallyonJanuary6.639 WhenhetweetedonJanuary5that Pence had the power to reject fraudulent electors, Pence already had “told him many times” that Pence did not believe he had such power—including as recently as the day before.640 And in the early morning hours of January 6, when the defendant again tweeted publicly that Pence should exceed his authority as President of the Senate when counting electoral votes, the defendant’s

638 Id.; GA 940-941 (Donald J. Trump Tweet 01/06/2021). 639 GA 873-874 (Donald J. Trump Tweet 12/19/2020).
640 GA 457-460 ( ).

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that he do more to stop the riot, the defendant at 4:17 p.m. tweeted a video message in which he finally asked those at the Capitol—whom he described as “very special” people that he “love[d]”— to leave the Capitol, while also claiming that “[w]e had an election that was stolen from us.”666 He sent a Tweet at 6:01 p.m. that conveyed a similar sentiment: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”667

The defendant at least has an argument—though he issued the 2:38 p.m. and 3:13 p.m. Tweets only after being harangued by his staff while he adamantly refused to do anything at all— that he was addressing a matter of public safety as President (the riot at the Capitol). Likewise, in the 4:17 p.m. message, the defendant, while still focused on his election loss, asked rioters to evacuate the breached Capitol, and foreshadowed the sentiment in his 6:01 p.m. Tweet when he said to “[g]o home with love & in peace.”668 By contrast, in the 2:24 p.m. Tweet, the defendant focused solely on the Vice President’s role in the certification of the presidential election results— a matter of intense personal concern to the defendant as a candidate for office. Even assuming that topic constituted a “matter[] of public concern,” Blassingame, 87 F.4th at 14, the defendant’s 2:24

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

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

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

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p.m. Tweet reflected speech made “in an unofficial, private capacity as office-seeker, not an official capacity as office-holder.” Id. at 5.

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

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

c. Other public statements

By virtue of his status as a candidate for re-election, the defendant occasionally made public statements—whether in response to questions or otherwise. Examples of such statements set forth in Section I are the defendant’s statements in advance of the election to seed public doubt in the outcome (supra p. 6), the defendant’s televised election night remarks to his supporters

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

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

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

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

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outcome that would effectively bar any Executive Branch employee from providing evidence against a President who committed crimes in his private capacity. Put concretely, allowing these independent acts of Executive Branch officials to be used in the prosecution would not chill any Presidential conduct, and thus any presumption of immunity is overcome.

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

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

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

Respectfully submitted,

JACK SMITH Special Counsel

/s/ Molly Gaston
Molly Gaston
Thomas P. Windom
Senior Assistant Special Counsels 950 Pennsylvania Avenue NW Room B-206

Washington, D.C. 20530

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