Gov.uscourts.dcd.258148.252.0 OCR

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 1 of 165
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
HXoe
V. CRIMINAL NO. 23-cr-257 (TSC)
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 7rump 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 1s, at
bottom, this: that the Court determine that the defendant must stand trial for his private crimes as
would any other citizen.

This motion provides the framework for conducting the “necessarily factbound” immunity
analysis required by the Supreme Court’s remand order. Trump, 144 S. Ct. at 2340. It proceeds
in four parts.
Section I provides a detailed statement of the case that the Government intends to prove at
trial. This includes the conduct alleged in the superseding indictment, as well as other categories
of evidence that the Government intends to present in its case-in-chief. This detailed statement
reflects the Supreme Court’s ruling that presidential immunity contains an evidentiary component,
id., which should be “addressed at the outset of a proceeding,” id. at 2334.
Section II sets forth the legal principles governing claims of presidential immunity. It
explains that, for each category of conduct that the Supreme Court has not yet addressed, this Court
should first determine whether it was official or unofficial by analyzing the relevant “content,
form, and context,” id. at 2340, to determine whether the defendant was acting in his official
capacity or instead “in his capacity as a candidate for re-election.” Blassingame v. Trump, 87 F.Ath
1, 17 (D.C. Cir. 2023). Where the defendant was acting “as office-seeker, not office-holder,” no
immunity attaches. /d. (emphasis in original). For any conduct deemed official, the Court should
next determine whether the presumption of immunity 1s rebutted, which requires the Government
to show that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on
the authority and functions of the Executive Branch.’” Trump, 144 S. Ct. at 2331-32 (quoting
Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982)).
Section II then applies those legal principles to the defendant’s conduct and establishes
that nothing the Government intends to present to the jury is protected by presidential immunity.
Although the defendant’s discussions with the Vice President about “their official responsibilities”
qualify as official, see Trump, 144 S. Ct. at 2336, the Government rebuts the presumption of
immunity. And all of the defendant’s remaining conduct was unofficial: as content, form, and
context show, the defendant was acting in his capacity as a candidate for reelection, not in his
capacity as President. In the alternative, if any of this conduct were deemed official, the
Government could rebut the presumption of immunity.
Finally, Section IV explains the relief sought by the Government and specifies the findings
the Court should make in a single order—namely, that the defendant’s conduct set forth in Section
I is not immunized, and that as a result, the defendant must stand trial on the superseding
indictment and the Government is not prohibited at trial from using evidence of the conduct
described in Section I.
I. Factual Proffer
When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay
in office. With private co-conspirators, the defendant launched a series of increasingly desperate
plans to overturn the legitimate election results in seven states that he had lost—Arizona, Georgia,
Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the “targeted states”). His efforts
included lying to state officials in order to induce them to ignore true vote counts; manufacturing
fraudulent electoral votes in the targeted states; attempting to enlist Vice President Michael R.
Pence, in his role as President of the Senate, to obstruct Congress’s certification of the election by
using the defendant’s fraudulent electoral votes; and when all else had failed, on January 6, 2021,
directing an angry crowd of supporters to the United States Capitol to obstruct the congressional
certification. The throughline of these efforts was deceit: the defendant’s and co-conspirators’
knowingly false claims of election fraud. They used these lies in furtherance of three conspiracies:
1) aconspiracy 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) aconspiracy to obstruct the official proceeding in which Congress certifies the legitimate results
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of the presidential election; and 3) a conspiracy against the rights of millions of Americans to vote
and have their votes counted.
At its core, the defendant’s scheme was a private criminal effort. In his capacity as a
candidate, the defendant used deceit to target every stage of the electoral process, which through
the Constitution, ECA, and state laws includes the states’ notification to the federal government
of the selection of their representative electors based on the popular vote in the state; the meeting
of those electors to cast their votes consistent with the popular vote; and Congress’s counting of
the electors’ votes at a certification proceeding. As set forth in detail below, the defendant worked
with private co-conspirators, including private attorneys
P| and iC and private political operatives CC6 and
The defendant also relied heavily on private agents, such as his Campaign employees and
volunteers, like Campaign Manager Deputy Campaign Manager
Senior Campaign Advisor ii and Campaign operative
In this section, the Government sets forth detailed facts supporting the charges against the
defendant,! before addressing in the next section why none of this conduct is subject to immunity
under the Supreme Court’s decision in 7rwmp. The conduct set forth below includes the
defendant’s formation of the conspiracies leading up to and ummediately following the 2020
presidential election; certain information regarding his knowledge that there had not been
outcome-determinative fraud in the election as he persistently claimed; and his increasingly
desperate efforts to use knowingly false claims of election fraud to disrupt the electoral process.
' Section I represents the Government’s efforts to provide the Court and the defendant with all of
the categories of evidence that it may offer in its case-in-chief at trial. It does not include citations
to every potential exhibit, nor does it account for any additional evidence that may be developed
before trial.
The Government does not consider any of the following conduct to be subject to immunity for the
reasons set forth in Section III.
A. Formation of the Conspiracies
Although his multiple conspiracies began after election day in 2020, the defendant laid the
groundwork for his crimes well before then. Leading into the election, the defendant’s private and
Campaign advisors, including i (then a private citizen) and (the defendant’s
Campaign manager), informed him that it would be a close contest and that it was unlikely to be
finalized on election day—ain part because of the time needed to process large numbers of mail-in
ballots prompted by the COVID-19 pandemic.” They also told the defendant that the initial returns
on election night might be misleading—that is, that he might take an early lead in the vote count
that would diminish as mail-in ballots were counted because his own supporters favored in-person
voting, while supporters of his opponent, Joseph R. Biden, favored mail-in ballots.’
Privately, the defendant told advisors—including | PO | Campaign personnel,
po (a White House staffer and Campaign volunteer), and | PB (the Vice President’s
Chief of Staff)—that in such a scenario, he would simply declare victory before all the ballots were
counted and any winner was projected.* Publicly, the defendant began to plant the seeds for that
false declaration. In the months leading up to the election, he refused to say whether he would
accept the election results, insisted that he could lose the election only because of fraud, falsely
* GA 501-510
247
3 GA 501-512 ); GA 591-599 ); GA 246-

249 ); GA 132-153 ).
4 GA 505-507 ); GA 250-255 GE): GA 588-589
).
-5-
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.”>
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???””°
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.”
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.”®
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.””
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.”!° 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.
> GA 1968 at 37:20 (Video of Trump Interview with Chris Wallace 07/19/2020).
° See https://x.com/realDonaldTrump/status/12888
18 160389558273 (Donald J. Trump Tweet
07/30/2020).
’ 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.
® 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).
'0 GA 1927 at 3:11-3:28 (Video of Donald J. Trump Statement 10/27/2020).
-6-
By October 2020, a private political advisor who had worked for the defendant’s
2016 presidential campaign, began to assist with the defendant’s re-election effort. Three days
before election day, described the defendant’s plan to a private gathering of supporters:
“And what Trump’s going to do is just declare victory. Right? He’s going to declare victory.
That doesn’t mean he’s the winner, he’s just going to say he’s the winner.”!’ After explaining that
Biden’s supporters favored voting by mail, | PL | stated further, “And so they’re going to have
a natural disadvantage and Trump’s going to take advantage of it—that’s our strategy. He’s going
to declare himself a winner.”

!”
Immediately following election day on November 3, the defendant did exactly that. As his
private and Campaign advisors had predicted to him, in certain states, the defendant took an early
lead on election day that began to erode. At approximately 11:20 p.m., Fox News projected that
Biden would prevail in the state of Arizona, and according to Campaign advisor faa he and the
defendant were shocked and angry at this development.!? As election day turned to November 4,
the contest was too close to project a winner, and in discussions about what the defendant should
say publicly regarding the election, senior advisors suggested that the defendant should show
restraint while counting continued.'* Two private advisors, however, advocated a different course:
CORE and MGC succested that the defendant just declare victory.!° And at about 2:20 a.m.,
the defendant gave televised remarks to a crowd of his campaign supporters in which he falsely
12 Td. at 0:20
13 GA 376-380 at 70-74
14 GA 600-602 ); GA 610-614 ); GA 380-
GA 128-130 ),GA 161
claimed, without evidence or specificity, that there had been fraud in the election and that he had
won: “This is a fraud on the American public. This is an embarrassment to our country. We were
getting ready to win this election. Frankly, we did win this election. We did win this election.”
!®
In the immediate post-election period, while the defendant claimed fraud without proof,
his private operatives sought to create chaos, rather than seek clarity, at polling places where states
were continuing to tabulate votes. For example, on November 4, | PS Campaign employee,
agent, and co-conspirator of the defendant—tried to sow confusion when the ongoing vote count
at the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when a
colleague at the TCF Center told “We think [a batch of votes heavily in Biden’s favor is]
right,”!” responded, “find a reason it isnt,” “give me options to file litigation,” and “even
if itbis [sic].”'* When the colleague suggested that there was about to be unrest reminiscent of the
Brooks Brothers Riot,’ a violent effort to stop the vote count in Florida after the 2000 presidential
election, responded, “Make them riot” and “Do it!!!”2° The defendant’s Campaign
operatives and supporters used similar tactics at other tabulation centers, including in Philadelphia,
Pennsylvania,”! and the defendant sometimes used the resulting confrontations to falsely claim
16 GA 1974 at 7:44 (Video of White House Speech 11/04/2020).
18 Td.
19 Td.
20 Td.
that his election observers were being denied proper access, thus serving as a predicate to the
defendant’s claim that fraud must have occurred in the observers’ absence.”
Contrary to the defendant’s public claims of victory immediately following election day,
his advisors informed him that he would likely lose. On November 7, in a private Campaign
meeting that included Zl ame and White House staffer TT who came
to serve as a conduit for information from the Campaign to the defendant, Campaign staff told the
defendant that he had only a slim chance of prevailing in the election, and that any potential success
was contingent on the defendant winning all ongoing vote counts or litigation in Arizona, Georgia,
and Wisconsin.”? Within a week of that assessment, on November 13, the defendant’s Campaign
conceded its litigation in Arizona7*—meaning that based on his Campaign advisors’ previous
assessment, the defendant had lost the election.
That same day, in an implicit acknowledgment that he had no lawful way to prevail, the
defendant sidelined the existing Campaign staff responsible for mounting his legal election
challenges. From and others who were telling the defendant the truth that he did
not want to hear—that he had lost—the defendant turned to | CCL J a private attorney who was
willing to falsely claim victory and spread knowingly false claims of election fraud.
As the defendant placed alternating phone calls to and $RG@@Re throughout
November 13,” informed | CC F another private Campaign advisor, of the change,
writing, “Close hold don’t tell anyone Trump just fired and put in charge” and
22 GA 774-775. —Ss (Donald ~—sdJ. —s Trump -_ Tweet 11/06/2020); GA _ 776,

https://x.com/realDonaldTrump/status/1325194709443080192 (Donald J. Trump _ Tweet
11/07/2020).
*4 GA 1001 (Donald J. Trump for President, Inc. v. Hobbs Hearing Transcript 11/13/2020); GA
1002-1003 (Minute entry and order dismissing Donald J. Trump for President, Inc. v. Hobbs).
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“You are to report to | CCl fg When CCG asked if was “gone too?”, replied
that “[t]hey all report to fM@@@i and that had “made a recommendation directly that ny CCI
was not in charge this thing is over[.] Trump is in to the end.””’ The next day, consistent with
description, the defendant announced his staff change by Tweet, writing, “I look forward
to CCl spearheading the legal effort to defend OUR RIGHT to FREE and FAIR
po a truly great team, added to our other wonderful lawyers and representatives!””*
B. The Defendant Knew that His Claims of Outcome-Determinative Fraud Were

False
Following election day and throughout the charged conspiracies, the defendant, his co-
conspirators, and their agents spread lies that there had been outcome-determuinative fraud in the
election and that he had actually won. These lies included dozens of specific claims that there had
been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-
citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes
for the defendant to votes for Biden. And the defendant and co-conspirators continued to make
these unsupported, objectively unreasonable, and ever-changing claims even after they had been
publicly disproven or after advisors had directly informed the defendant that they were untrue.
The evidence demonstrates that the defendant knew his fraud claims were false because he
continued to make those claims even after his close advisors—acting not in an official capacity
but in a private or Campaign-related capacity—told him they were not true. These advisors
27 Td.
28 GA 784-785 (Donald J. Trump Tweet 11/14/2020).
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included ii 2a the White House staffer and Campaign conduit, and Pence, the defendant’s
running mate.
relationship with the defendant began before | PO worked for him
in the White House. | PO had known the defendant’s son-in-law, since
was a child, and through gS met P14 and then the defendant.”?
| PD was one of several attorneys who represented the defendant in his first impeachment
trial in the Senate in 2019 and 2020, including presenting argument on the Senate floor on January
27, 2020. began working in the White House as an Assistant to the President in
August 2020.2° In October 2020, | PO became interested in learning more about the
defendant’s Campaign, and in early November 2020, after he began interfacing with Campaign
staff, | PD consulted with the White House Counsel’s Office to ensure he complied with
any applicable laws regarding Campaign activity.*! Thereafter, and throughout the post-election
period, became a conduit of information from the Campaign to the defendant, and
over the course of the conspiracies, | PO told the defendant the unvarnished truth about
his Campaign legal team and the claims of fraud that they and the defendant were making.
Examples of these instances include:
e | PO repeatedly gave the defendant his honest assessment that could not
mount successful legal challenges to the election. For instance, when the defendant told
P9 that he was going to put in charge of the Campaign’s legal efforts but
pay him only if he succeeded, told the defendant he would never have to pay
anything:*” in response, the defendant laughed and said, “we’ll see.”*? Thereafter,
in Oval Office meetings with the defendant, and others, in which made
speculative claims, told —in front of the defendant—that
cm
30 GA 671
31 GA 672-673; GA 686 ).
Gs 205
33 Td.
would be unable to prove his allegations in a courtroom.** In a separate private

conversation, when i reiterated to the defendant that would be unable
to prove his false fraud allegations in court, the defendant responded, “The details don’t
matter.”
In the post-election period, | PD also took on the role of updating the defendant on
a near-daily basis on the Campaign’s unsuccessful efforts to support any fraud claims.*°
told the defendant that the Campaign was looking into his fraud claims, and
had even hired external experts to do so, but could find no support for them. He told the
defendant that if the Campaign took these claims to court, they would get slaughtered,
because the claims are all “bullshit.”>” was privy in real time to the findings
of the two expert consulting firms the Campaign retained to investigate fraud claims—
Cl and | C2 Tg discussed with the defendant their
debunkings on all major claims.** For example, told the defendant that
Georgia’s audit disproved claims that had altered votes. *?
In the post-election time period, Pence—the defendant’s own running mate, who he had
directed to assess fraud allegations—told the defendant that he had seen no evidence of outcome-
determinative fraud in the election.*° This was in one of the many conversations the defendant
and Pence had as running mates, in which they discussed their shared electoral interests. Pence
gradually and gently tried to convince the defendant to accept the lawful results of the election,
even if it meant they lost. These conversations included:
A conversation on November 4 in which the defendant asked Pence to “study up” claims
of voter fraud in states that they had won together in 2016 to determine whether they could
bring legal challenges as candidates in those states.*’ Pence described the conversation as
follows: “Well, I think, I think it was broadly. It was just look at all of it. Let me know
what you think. But he told me that the Campaign was going to fight, was going to go to
34 GA 198-204
3° GA 715, 718
36 GA 213-214
38 GA 715-721
).
40 GA 414-420 ).
41 GA 412-413 ).
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court and make challenges . .. . And then he just said we’re going to fight this and take a
look at it. Let me know what you think.”
*”
e Acall between the defendant and Pence on November 7, the day that media organizations
began to project Biden as the winner of the election. Pence “tried to encourage” the
defendant “as a friend,” reminding him, “‘you took a dying political party and gave it anew
lease on life.”*?
e A November 11 meeting among the defendant, Pence, Campaign staff, and some White
House staff during which Pence asked when most of the lawsuits would be resolved (“when
does this come to a head?”) and the Campaign staff responded, the “week after
Thanksgiving.”**
e A November 12 meeting among the defendant, Pence, Campaign staff, and some White
House staff during which, Pence recalls, the “Campaign lawyers gave a sober and
somewhat pessimistic report on the state of election challenges.”*°
e A private lunch on November 12 in which Pence reiterated a face-saving option for the
defendant: “don’t concede but recognize process is over.”*°
e A private lunch on November 16 in which Pence tried to encourage the defendant to accept
the results of the election and run again in 2024, to which the defendant responded, “I don’t
know, 2024 is so far off.”*”
e A November 23 phone call in which the defendant told Pence that the defendant’s private
attorney, | P76 was not optimistic about the election challenges.
*®
e <A December 21 private lunch in which Pence “encouraged” the defendant “not to look at
the election ‘as a loss — just an intermission.’” This was followed later in the day by a
private discussion in the Oval Office in which the defendant asked Pence, “what do you
think we should do?” Pence said, “after we have exhausted every legal process in the
courts and Congress, if we still came up short, [the defendant] should ‘take a bow.’”*””
*” GA 413-414 ).
43 GA 42] ). See GA 1016 (Pence, So Help Me God p. 430).
).
45 GA 422-424 ). See GA 1017 (Pence, So Help Me God p. 431).
46 GA 1037 ).
47 GA 425-426 ). See GA 1018 (Pence, So Help Me God p. 432).
48 GA 430 Ca 736 a
49 GA 442-448 ). See GA 1020-1022 (Pence, So Help Me God p. 437-
-]3-
e Discussions in which Pence apprised the defendant of conversations he had had with
governors in Arizona and Georgia in the context of “election challenges,” in which Pence
had called the governors “simply to gather information and share it with the president,”~°
and in which the governors did not report evidence of fraud in the elections in their states
and explained that they could not take actions to convene their states’ legislatures.*!
But the defendant disregarded iC and Pence in the same way that he disregarded
dozens of court decisions that unanimously rejected his and his allies’ legal claims, and that he
disregarded officials in the targeted states—including those in his own party—who stated publicly
that he had lost and that his specific fraud allegations were false.** Election officials, for instance,
issued press releases and other public statements to combat the disinformation that the defendant
and allies were spreading.’ At one point long after the defendant had begun spreading false fraud
439).
0 GA 1039 IE) Sec GA 1018 (Pence, So Help Me God p.
432).
51 GA 427-429, GA431-435 QE). See GA 1018 (Pence, So Help Me God
p. 432).
2 GA 1040 (Joint Statement 11/20/2020); GA 1041 (Statement 12/04/2020).

3 See, e.g., GA 1043 (Letter to Maricopa County voters 11/17/2020); GA 838 (Arizona
Governor’s Tweet 12/01/2020); GA 1041 (Arizona Legislator’s Statement 12/04/2020); GA 1044-
1046 (Georgia Secretary of State News Release 10/23/2020); GA 1047-1048 (Georgia Secretary
of State News Release 11/05/2020); GA 1947 (Video of Georgia Press Conference 11/06/2020);
GA 1959 (Video of Georgia Press Conference 11/09/2020); GA 1960 (Video of Georgia Press
Conference 11/12/2020); GA 1049-1050 (Georgia Secretary of State News Release 11/18/2020);
GA 1051-1052 (Georgia Secretary of State News Release 11/19/2020); GA 1053-1054 (Georgia
Secretary of State News Release 12/07/2020); GA 1946 (Video of Georgia News Conference
12/07/2020); GA 1948 (Video of Georgia Press Conference 12/16/2020); GA 1055-1057 (Georgia
Secretary of State News Release 12/29/2020); GA 1949 (Video of Georgia Secretary of State
Interview with Cavuto 01/02/2021); GA 1958 (Video of Georgia Press Conference 01/04/2021);
GA 1058-1059 (Michigan Secretary of State web page 11/06/2020); GA 1040 (Michigan
Legislators’ Joint Statement 11/20/2020); GA 1060-1062 (Michigan Attorney General and
Secretary of State News Release 12/14/2020); GA 1063-1064 (Michigan Secretary of State web
page 12/17/2020); GA 1065 (Michigan Secretary of State web page 12/18/2020); GA 1066
(Michigan Secretary of State web page); GA 1907 (Video of Michigan Clerk’s Statement); GA
1068-1070 (New Mexico Secretary of State News Release 12/14/2020); GA 1953 (Video of
Interview with CNN 11/11/2020); GA 822 Tweet 11/27/2020); GA 1071-1072
(Pennsylvania Department of State Public Response Statement 12/29/2020); GA 1073-1076
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claims, a White House staffer traveling with the defendant, overheard him tell family
members that “it doesn’t matter if you won or lost the election. You still have to fight like hell.”°*
The defendant and his co-conspirators also demonstrated their deliberate disregard for the
truth—and thus their knowledge of falsity—when they repeatedly changed the numbers in their
baseless fraud allegations from day to day. At trial, the Government will introduce several
instances of this pattern, in which the defendant and conspirators’ lies were proved by the fact that
they made up figures from whole cloth. One example concerns the defendant and conspirators’
claims about non-citizen voters in Arizona. The conspirators started with the allegation that 36,000
non-citizens voted in Arizona;° five days later, it was “beyond credulity that a few hundred
thousand didn’t vote”;°° three weeks later, “the bare minimum [was] 40 or 50,000. The reality is
about 250,000”;°’ days after that, the assertion was 32,000;°° and ultimately, the conspirators
landed back where they started, at 36,000—a false figure that they never verified or corroborated.*?
Ultimately, the defendant’s steady stream of disinformation in the post-election period
culminated in the speech he gave at a privately-funded, privately-organized rally at the Ellipse on
the morning of January 6, 2021, in advance of the official proceeding in which Congress was to
certify the election in favor of Biden.© In his speech, the defendant repeated the same lies about
(Wisconsin Elections Commission web page 11/05/2020); GA 1077-1081 (Wisconsin Elections

Commission web page 11/10/2020); GA 1082-1087 (Wisconsin Elections Commission web page).
os)
°° GA 1890 at 20:46 (Common Sense with JM 11/25/2020).
°° GA 1906 at 2:06:25 (Video of Arizona Hotel Hearing 11/30/2020).
°7 GA 1980 at 18:52 ).
8 GA 1981 at 35:19 ).
°? GA 1106 (Dalton Rally Speech Draft Tr. 01/04/2021); GA 1134 (Ellipse Rally Speech Draft Tr.
01/06/2021).
© GA 1114-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021); GA 1142 ii
oe
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election fraud in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin that had been
publicly, or directly, debunked.°! 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.
C. The Defendant Aimed Deceit at the Targeted States to Alter Their Ascertainment
and Appointment of Electors
Shortly after election day, the defendant began to target the electoral process at the state
level by attempting to deceive state officials and to prevent or overturn the legitimate ascertainment
and appointment of Biden’s electors. As President, the defendant had no official responsibilities
related to the states’ administration of the election or the appointment of their electors, and instead
contacted state officials in his capacity as a candidate. Tellingly, the defendant contacted only
state officials who were in his political party and were his political supporters, and only in states
he had lost. The defendant’s attempts to use deceit to target the states’ electoral process played
out in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, as well as across these
and other states that used certain voting machines. In addition to the following evidence of the
defendant’s conduct during the charged conspiracies, at trial the Government will elicit testimony
from election officials from the targeted states to establish the objective falsity—and often,
impossibility—of the defendant’s fraud claims. Notably, although these election officials would
have been the best sources of information to determine whether there was any merit to specific
allegations of election fraud in their states, the defendant never contacted any of them to ask.
61 GA 1126-1129, GA 1131-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).

° GA 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021).
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1. Arizona
The defendant was on notice that there was no evidence of widespread election fraud in
Arizona within a week of the election. On November 9, for instance, two days after news networks
projected that Biden had won, the defendant called Arizona Governor | Pl6 to ask him
what was happening at the state level with the presidential vote count in Arizona.®’ At that point,
though Fox News had projected that Biden had won the state, several other news outlets—
including ABC, NBC, CNN, and the New York Times—had not yet made a projection.“ igi
walked the defendant through the margins and the votes remaining to be counted, which were
primarily from Pima County, which favored Biden, and Maricopa County, which was split.®
tem described the situation to the defendant as “the ninth inning, two outs, and [the defendant]
was several runs down.”® The defendant also raised claims of election fraud, and asked
the defendant to send him supporting evidence.®’ Although the defendant said he would—-stating,
“we're packaging it up”—he never did. Shortly thereafter, on November 13, Campaign Manager
told the defendant directly that a false fraud claim that had been circulating—that a
64 See, e.g., Democrats flip Arizona as Biden, Kelly score key election wins, Fox News, Nov. 3,
2020, available at https://www.foxnews.com/video/6206934979001; Dan Merica, Biden carries
Arizona, flipping a longtime Republican stronghold, CNN.coM, Nov. 13, 2020, available at
https://www.cnn.com/2020/1 1/12/politics/biden-wins-arizona/index.html; Luis Ferré-Sadurni et
al., Biden flips Arizona, further cementing his presidential victory, N.Y. TIMES, Nov. 12, 2020,
available at https://www.nytimes.com/2020/11/12/us/biden-wins-arizona.html; Election Latest:
Biden Projected Winner in Arizona, NBC 4 New York, Nov. 12, 2020, available at
https://www.nbcnewyork.com/news/politics/decision-2020/election-latest-biden-talks-to-world-
leaders-about-virus/2718671/.
°c: 6 aT
667d.
°C: 5)
887d.
-17-
substantial number of non-citizens had voted in Arizona—was false.©’ The same day, as noted
previously, Campaign attorneys conceded in court that the remaining election lawsuit in Arizona
was moot.
The defendant and R@@&Mi continued to try to influence For example,
tried to contact EH on November 22—the same day the defendant and eer reached out to
the Arizona Speaker of the House, as described below.’? And on November 30, the day | P16 |
signed the Arizona certificate of ascertainment formally declaring Biden’s electors as the
legitimate electors for Arizona, received a call from the defendant and Pence.”!
advised them that Arizona had certified the election; when the defendant brought up fraud claims,
BF — eager to see the evidence—again asked the defendant to provide it, but the defendant
never did.” Instead, later that evening and into the following morning, the defendant repeatedly
publicly attacked ST (as well as Georgia Governor J) on Twitter, re-tweeting posts
by others, such as “Who needs Democrats when you have Republicans like P17 and
ae”: “Watching the Arizona hearings and then watching Gov. sign those papers, why
bother voting for Republicans if what you get is and | P17 ie hia ‘My state
ran the most corrupt election in American history.’ P16 ‘Hold my beer,’”’”?; and “Why
is | P16 still pretending he’s a member of the Republican Party after he just certified
fraudulent election results in Arizona that disenfranchised millions of Republicans?””°
1 GA 661 ).
1 GA 658 ).
? GA 658, GA 667-668
® GA 840 (Trump Twitter Archive 11/30/2020).
TM GA 833-834 (Donald J. Trump Tweet 11/30/2020).
TM GA 831-832 (Donald J. Trump Tweet 11/30/2020).
78 GA 839 (Trump Twitter Archive 12/01/2020).
-18-
The defendant and co-conspirators also attempted to use false fraud claims to convince
political allies in the Arizona state legislature to ignore the popular vote and appoint illegitimate
electors. On November 22, the defendant and (Q@@MM called P18 the Speaker of the
Arizona House of Representatives.

”” did most of the talking.”* During the call, the
defendant and {em levied multiple false fraud claims—including of non-citizen, non-resident,
and dead voters that affected the defendant’s race—and asked SEM to use them as a basis to
call the state legislature into session to replace Arizona’s legitimate electors with illegitimate ones
for the defendant.’? When voiced his deep skepticism, said, “well, you know,
we’re all kind of Republicans and we need to be working together.”

®° refused, and asked
CORE to provide evidence supporting his fraud claims.*! never did.*
Indeed, met with | PIB | in person approximately a week later and still had
nothing to back up his claims. On November 30, a4 and others arrived in Arizona for
a “hotel hearing’—an unofficial meeting with Republican legislators—during which they

>?
promoted false fraud allegations.*? In a meeting the day after the hearing, when state legislators
pressed Cora and for evidence to support their claims, conceded that even on that
late date, “[w]e don’t have the evidence, but we have lots of theories.”** When the legislators were
frustrated that had no support for his claims and asked him tough questions,
expressed surprise at the way he was being treated, stating “Man, I thought we were all
8 See GA 30 ).
® GA 22-24
80 GA 28 ).
81 GA 22-33 ).
83 GA 1906 at 56:19 (Video of Arizona Hotel Hearing 11/30/2020).
wer
-19-
Republicans. ... [T]his is a little more hostile a reception. I’m amazed at the reception I’m getting
here.”*®°
On December 4, S89 released a public statement in which he explained that he did not
have the authority to use the legislature “to reverse the results of the election” and that doing so
would constitute an attempt “to nullify the people’s vote based on unsupported theories of fraud.”*°
made clear that he was disappointed with the legitimate election results because he “voted
for President Trump and worked hard to reelect him” but would not “violate current law to change
the outcome ofa certified election.”*®’ On Twitter, P19 a Campaign staffer who worked
with Ges attacked JEM for his statement, writing that EM “Gs intentionally misleading
the people of Arizona to avoid the inevitable.” The defendant re-tweeted false post and
praised her.**
A month later, just two days before January 6, ee — another of the defendant’s private
attorneys and a co-conspirator—called JEM and counsel, and urged
one last time to use the legislature to decertify Arizona’s legitimate electors and overturn
the valid election results.

*? When EM told HRQ@C#4M that there was no evidence of substantial
fraud in Arizona, and that he could not legally call the legislature into session, MR@@4Mi was
undeterred. He conceded that he “[didn’t] know enough about the facts on the ground” regarding
89° GA 35 ).
86 GA 1041-1042 Statement 12/04/2020).
*7 GA 1042 QM Statement 12/04/2020).
88 GA 854-855 (Donald J. Trump Tweet 12/06/2020); GA 852-853 (Donald J. Trump Tweet
12/06/2020).
-20-
fraud in Arizona, and said that | PIS should nonetheless falsely claim that he had the authority
to convene the legislature and “let the courts sort it out.”?° | P18 | again refused.”’
In the post-election period, MQM was harassed; on several occasions, individuals
gathered outside #33 home with bullhorns and screamed and honked their vehicle homs to
create noise.”” Once, an individual in visible possession of a pistol and wearinga t-shirt in support
of a militia group came onto TE property and screamed at him.*? At the time of these events,
| PIS daughter was at home and was very ill, and the noise caused her “disruption and angst.”**
2. Georgia
The defendant had early notice that his claims of election fraud in Georgia were false.
Around mid-November, Campaign advisor told the defendant that his claim that a large
number of dead people had voted in Georgia was false.?? The defendant continued to press the
claim anyway, including in a press appearance on November 29, when he suggested that a large
enough number of dead voters had cast ballots to change the outcome of the election in Georgia.”©
Four days later, on December 3, RQQMM orchestrated a presentation to a Judiciary
Subcommittee of the Georgia State Senate.’ In the morning in advance of it, had spoken
to the defendant on the phone for almost twenty minutes.”® And at the hearing, arranged
for co-conspirators and agents to repeat the false dead voter claim. The claim was so patently false
GA 1144 ). CA)
°! GA 41-42 ).
°? GA 45-47 ).
°3 GA 46-47 ).
°4 GA 47 ).
°° GA 1969 at 22:43—23:51 (Video of Trump Interview with Maria Bartiromo 11/29/2020).

°7 GA 1934 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020).
-2]-
that everyone around the defendant knew it: during the hearing, Chief of Staff and
| PO exchanged text messages on their personal phones confirming that a Campaign
attorney, had verified that claim of more than 10,000 dead voters was
false and that the actual number was around 12 and could not be outcome-determinative.””
During the subcommittee hearing, the conspirators also set in motion a sensational and
dangerous lie about election workers at State Farm Arena that would result in the defendant’s
supporters harassing and threatening those workers. Furst, P23 one of the defendant’s
private attorneys, claimed that more than 10,000 dead people had voted in Georgia.!®° Next,
| | an agent of the defendant, played misleading excerpts of closed-circuit camera footage from
State Farm Arena and insinuated that it showed election workers committing misconduct—
counting “suitcases” of illegal ballots.!°! Lastly, based on the false fraud allegations, JAG&
who had already been engaged as a private lawyer for the defendant but did not disclose that at the
hearing—encouraged the Georgia legislators to decertify the state’s legitimate electors.!”
While the hearing was ongoing, the defendant simultaneously amplified the
misinformation about the State Farm Arena election workers, falsely tweeting, “Wow!
Blockbuster testimony taking place mght now in Georgia. Ballot stuffing by Dems when
Republicans were forced to leave the large counting room. Plenty more coming, but this alone
°° ECF No. 226 § 26(a); GA 1146

GE). sec ciso GA 364-365 ).
100 GA 1934 at 30:54 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020); GA
1146 eee
10! GA 1934 at 34:06 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020);
ECF No. 226 § 26(b).
102 GA 1934 at 4:44:05 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020).
-22-
leads to an easy win of the State!”!°? He did this just after re-tweeting two of his Campaign
account’s Tweets that promoted the false claim about election workers at State Farm Arena.'TM
Over the next week, the claim of misconduct at State Farm Arena was disproven publicly
as well as directly to the defendant. The day after the hearing, the Chief Operating
Officer of the Georgia Secretary of State’s Office, posted a Tweet explaining that Secretary of
State officers had watched the video in its entirety and confirmed that it showed “normal ballot
processing.”!° [@SEM again forcefully debunked the conspirators’ claim about the State Farm
video in a press conference on December 7, explaining at length the election workers’ innocent
conduct depicted in the closed-circuit camera footage and stating:
And what’s really frustrating is the President’s attorneys had this same videotape.
They saw the exact same things the rest of us could see. And they chose to mislead
state senators and the public about what was on that video. I’m quite sure that they
will not characterize the video if they try to enter it into evidence because that’s the
kind of thing that could lead to sanctions because it is obviously untrue. They knew
it was untrue and they continue to do things like this.!°°
On December 8, the defendant called Georgia Attorney General | P26 Mg WAY had
advance notice that the topic of the call was Texas v. Pennsylvania, an election lawsuit in which
Texas was suing other states—including Georgia—to attempt to prevent the certification of the
election.!° U.S. Senator P27 told $49 that the defendant had heard that HY was
“whipping,” or lobbying, other state attorneys general against filing amicus briefs in support of

104 GA 845, GA 1893 (Donald J. Trump Tweet 12/03/2020); GA 844, GA 1894 (Donald J. Trump
Tweet 12/03/2020).
105 GA 848 Tweet 12/04/2020).

106 GA 1933 at 8:43 (Video of Georgia Secretary of State Press Conference 12/07/2020).
107 GA 742 ).
108 GA 61-62
-23-
Texas. 1 was not lobbying against the suit, and told a so; asked PY if he would
speak with the defendant about it, and Pag agreed.'!° Shortly thereafter, the defendant called J
and immediately raised Texas v. Pennsylvania, saying, “I hope you’re not talking to your AGs and
encouraging them not to get on the lawsuit.”!!! told the defendant that he was not
affirmatively calling other state attorneys general, but that if they called him, he was telling them
what he was seeing in his state—which was something that the defendant probably did not want
to hear: was just not seeing evidence of fraud in Georgia.!!* The defendant nonetheless raised
various fraud claims. told him that state authorities had investigated the State Farm Arena
allegations and found no wrongdoing, and that he thought another claim the defendant raised about
Coffee County, Georgia, had been similarly resolved, but would check.'? The defendant asked
to look at them again “because we’re running out of time.”!!* [49 tried to steer the call to
an end by thanking the defendant and telling him that he had voted for him twice and appreciated
the defendant, to which the defendant responded, “Yeah, I did a hell of a job, didn’t I?”!!? At one
point, the defendant raised with the impending run-off election for Georgia’s U.S. Senate
seats and how important it was to re-elect 4 and Ze 116 The day after the call, the
defendant—uin his private capacity as a candidate for president—intervened in support of Texas v.
Pennsylvania; his attorney for that matter was Ce M7
109 GA 62 ).
10 GA 61-62 ).
CA 61 a.
112 Td.
14 GA 66 2023).
19 GA 67 ).
116 77
117 Mot. to Intervene, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 9, 2020).
-24-
On the same day as the defendant’s call with the defendant’s Campaign staff
acknowledged that the State Farm Arena claim was unsupported, emailing one another about the
fact that television networks may decline to run Campaign advertisements promoting it. In
frustration regarding the claim and others like it, | P4 Ti spoke with the defendant on a daily
basis and had informed him on multiple occasions that various fraud claims were false—wrote,
“When our research and campaign legal team can’t back up any of the claims made by our Elite
Strike Force Legal Team, you can see why we’re 0-32 on our cases. I'll obviously hustle to help
on all fronts, but it’s tough to own any of this when it’s all just conspiracy shit beamed down from
the mothership.”
!!*
On December 10, however, further perpetuated the false State Farm Arena claim
when he appeared at another hearing, this one before the Georgia House of Representatives’
Government Affairs Committee. During it, he displayed some of the same footage as had been
used in the December 3 hearing that had been debunked in the interim by Georgia officials, and
nonetheless claimed that it showed “voter fraud right in front of people’s eyes.”!!° He then named
two election workers 2 and her mother, | P30 baselessly
accused them of “quite obviously surreptitiously passing around USB ports as if they are vials of
heroin or cocaine,” and suggested that they were criminals whose “places of work, their homes,
should have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter
fraud.”!?° As these false claims about and B24 spread, the women were barraged by
racist death threats. In the years since, they have spoken about the effect of the defendant and co-
conspirators’ lies about them; as QMAUMB explained in an interview with congressional
119 GA 1932 at 1:37:18—1:48:33 (Video of Georgia House Committee Hearing 12/10/2020).

120 GA 1932 at 1:57:10—1:58:00 (Video of Georgia House Committee Hearing 12/10/2020).
-25-
investigators, “when someone as powerful as the President of the United States eggs on a mob,
that mob will come. They came for us with their cruelty, their threats, their racism, and their hats.
They haven’t stopped even today.”!*! Indeed, to this day, the defendant has never stopped falsely
attacking and Although none of the false claims against them were ever
corroborated, the defendant has continued to levy them on social media, including when the
defendant attacked BSA in January 2023 just after her testimony to congressional investigators
was made public. !”
Throughout the post-election period, the defendant used Twitter to publicly attack Georgia
Governor with particular aggression. In the thirty-five days between November 30, 2020,
and January 3, 2021, the defendant tweeted critically about by name or title, more than
forty times. These tweets included the ones also attacking MUIMM described above, as well as
others particular to RSW like, “Why won’t Governor the hapless Governor of
Georgia, use his emergency powers, which can be easily done, to overrule his obstinate Secretary
of State, and do a match of signatures on envelopes. It will be a ‘goldmine’ of fraud, and we will
easily WIN the state”!??; “I will easily & quickly win Georgia if Governor P17 or
the Secretary of State permit a simple signature verification. Has not been done and will show
large scale discrepancies. Why are these two ‘Republicans’ saying no? If we win Georgia,
everything else falls in place!” !?*; “The Republican Governor of Georgia refuses to do signature
verification, which would give us an easy win. What’s wrong with this guy? What is he
122 GA 966 (Donald J. Trump Truth Social Post 01/03/2023); GA 964 (Donald J. Trump Truth
Social Post 01/02/2023); GA 965 (Donald J. Trump Truth Social Post 01/03/2023).
- 26
-
hiding?”!”°; and “How does Governor P17 allow certification of votes without
verifying signatures and despite the recently released tape of ballots being stuffed? His poll
numbers have dropped like a rock. He is finished as governor!”!”°
In the post-election period, the defendant also made false claims in court about fraud in
Georgia—unsuccessfully. For example, in Zrump v. Kemp, a federal lawsuit in which the
defendant sued Georgia’s Governor and Secretary of State, the defendant signed a verification of
fraud allegations that he and his attorney on the case, MRQ@#M knew was inaccurate. | PO
spoke with the defendant and oom in late December regarding the proposed verification. First,
he told and another private attorney, that they could not have the
defendant sign it because they could not verify any of the facts.!*” And | PD told the
defendant that any lawyer that signed the complaint that the verification supported would get
disbarred. 78 acknowledged this problem in an email on December 31 to P32
lead counsel for the defendant as candidate in Zrwmp v. Kemp, and another private attorney, writing
that in the time since the defendant signed a previous verification in the case, he “had been made
aware that some of the allegations (and evidence proffered by the experts) has been inaccurate”
and that signing a new affirmation “with that knowledge (and incorporation by reference) would
not be accurate.”!*? Nonetheless, on December 31, the defendant signed the verification, and
caused it to be filed. !*°
29 GA 857, GA 859 (Donald J. Trump Tweet 12/07/2020).

126 GA 864 (Donald J. Trump Tweet 12/10/2020).
27 GA 238-239 ).
128 GA 239 ).
130 Complaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.
-27-
On January 2, Georgia Secretary of State P33 appeared on Fox News and
said that various rumors of election fraud were false, and the defendant had lost in Georgia:
Our office has been very busy with what I call the rumor whack-a-mole. Every
day, a rumor will pop up and then we whack it down. What we do is, we basically
whack it down with the truth. And people can’t handle the truth sometimes because
they’re very disappointed in the results. And I get that. I voted for President Trump
also, but at the end of the day, we did everything we could. We did an audit of the
race; President Trump still lost. Then we did a full recount; President Trump still
lost... we had a safe, secure process. 131
like had been on the receiving end of the defendant’s Tweets. These
included: “Why isn’t the @GASecofState P33 a so-called Republican, allowing
us to look at signatures on envelopes for verification? We will find tens of thousands of fraudulent
and illegal votes”; “RINOS & Secretary of State
po will be solely responsible for the potential loss of our two GREAT Senators from
Georgia, & Won’t call a Special Session or check for Signature
Verification! People are ANGRY!;” and “Georgia, where is signature verification approval? What
do you have to lose? Must move quickly!
@GaSecofState.”
132
Shortly after seeing the interview, the defendant set up a call with iz to discuss
his pending private lawsuit, Trump v. Kemp, in which was a named defendant.
!??
For this reason, P33 at first hoped to avoid speaking with the defendant but ultimately
Complaint at 33-34, 7rump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.
-28-
acquiesced because the defendant was persistent in seeking to set it up.'°4 Also because of the
pending lawsuit, P33 arranged for his general counsel, P35 to participate. !7°
Joiming the defendant on the call were Chief of Sev P21 | and three private attomeys— eo
and counsel of record in Zrump v. Kemp and the attorneys whom #RQ@4l had
emailed about the defendant’s false verification, and Isa whom Zia introduced on the
call as someone “who is not the attorney of record but has been involved.”
The defendant began the call with an animated monologue in which he argued that he had
won the election in Georgia, saying, “Okay, thank you very much. Hello BX§BJ and BS8¥ and
everybody. We appreciate the time and the call. So we’ve spent a lot of time on this, and if we
could just go over some of the numbers, I think it’s pretty clear that we won. We won very
substantially, uh, Georgia.”

°° Throughout the call, the defendant continued to state that he had
won and referenced Biden’s margin of victory that he needed to overcome to prevail in the state,
including by asserting that “I just want to find 11,780 votes.”!3’ He did not reference other
elections on the same ballot. After the defendant’s opening salvo, P33 stated, “Well, I
listened to what the President has just said. President Trump, we’ve had several lawsuits, and
we’ve had to respond in court to the lawsuits and the contentions. We don’t agree that you have
won,”!38
The defendant raised multiple false claims of election fraud, each of which P33
refuted in turn. When the defendant attacked EOE called her “a professional vote scammer
135 GA 514-515 ,
136 GA 1154 (Tr. of Call 01/02/2021).
Call 01/02/2021).
Call 01/02/2021).
-29
-
and hustler,”!°? and mentioned her dozens of times throughout the call, said,
“You're talking about the State Farm video. And I think it’s extremely unfortunate that
p | or his people, they sliced and diced that video and took it out of context.”!4° He then
offered the defendant a link to a video disproving the claim, to which the defendant responded, “I
don’t care about a link, I don’t need it. I have a much, M8 I have a much better link.”!4! When
the defendant claimed that 5,000 dead people had voted in Georgia, P33 said, “Well,
Mr. President, the challenge you have is the data you have is wrong . . . The actual number were
two. Two. Two people that were dead that voted. And so that’s wrong, that was two.”!47 When
the defendant claimed that thousands of out-of-state voters had cast ballots, P33
counsel, responded, “We’ve been going through each of those as well, and those
numbers that we got, that Ms. was just saying, they’re not accurate.”
!*?
At one point, the defendant became frustrated after both and
explained repeatedly that his claims had been investigated and were not true and stated, “And
you’re gonna to find that they are—which is totally illegal—it’s, it’s, it’s more illegal for you than
it is for them because, you know what they did and you’re not reporting it. That’s a criminal, you
know, that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you
and to your lawyer. That’s a big risk.”!** The call ended with stating that he
Call 01/02/2021).
Call 01/02/2021).
Call 01/02/2021).
Call 01/02/2021).
Call 01/02/2021).
Call 01/02/2021).
-30-
would coordinate with the lawyer representing P33 office in the private lawsuit and
get together with aa as agreed earlier in the call.!*°
The day after the call, on January 3, the defendant falsely tweeted, “I spoke to Secretary of
State P33 yesterday about Fulton County and voter fraud in Georgia. He was
unwilling, or unable, to answer questions such as the ‘ballots under table’ scam, ballot destruction,
out of state ‘voters’, dead voters, and more. He has no clue!”!*° P33 promptly
responded in a Tweet of his own: “Respectfully, President Trump: What you’re saying is not true.
The truth will come out.”!47
3. Michigan
On November 20, three days before Michigan’s Governor signed a certificate of
ascertainment appointing Biden’s electors based on the popular vote, the defendant met with Beg
P| and ze Michigan’s Senate Majority Leader and Speaker of the House, at the
Oval Office.'*® The defendant initiated the meeting by asking RNC Chairwoman P39
to reach out to and gauge his receptivity to a meeting.'*? The defendant also asked
hm to participate in the meeting, but told him that she had consulted with her
attorney and that she could not be involved in a meeting with legislators because it could be
perceived as lobbying.!°° After ZO made the first contact, on November 18, the defendant
reached out to and fieexmmm to extend an invitation.°! The same day that he contacted
49 GA 1172-1173 (Tr. of REM Call 01/02/2021).

147 GA 925 Tweet 01/03/2021).
148 GA 555-557, 565 neem wt~‘“‘<‘CWR
6
150 GA 330-337 ).
-3]-
and the defendant issued a false Tweet: “In Detroit, there are FAR MORE
VOTES THAN PEOPLE. Nothing can be done to cure that giant scam. I win Michigan!”!°?
When the defendant called and fe @tuM to invite them to the White House, he did
not provide the topic of the meeting, but he did ask about allegations of fraud in the election in
Michigan.'*? The legislators told him that they and the Michigan legislature were examining the
allegations.!°* Both and ei assumed that the defendant wanted to see them to
discuss claims of election fraud, and they wanted to be firm that they had not seen evidence that
would change the outcome of the election.? For this reason, and to avoid talking only about
election fraud, they prepared materials to raise regarding COVID-19, and planned in advance to
release a statement once the meeting was over that said that the legislators were unaware of
information that would change the outcome of the election. !°°
Over the course of the meeting, the defendant dialed in both J ZEME —despite her request
not to participate—and Je 157 was present for some, but not all, of the meeting. !°
After some small talk with the legislators in the Oval Office, the defendant raised various fraud
claims, including that he had lost Michigan because of fraud or misconduct in Wayne County,
where Detroit is located.!°? corrected the defendant and told him that he had lost primarily
because in two routinely Republican counties, the defendant had underperformed with educated
194 GA 558
159 GA 74-78
156 GA 75
7 GA 330-337
561
158 GA 361-362
159 GA 562-564
-32-
females, and if he had received the same number of votes there as the two winning local sheriffs,
he likely would have won Michigan. could tell by the defendant’s body language that
he was not happy to hear i Za assessment.!*! Notably, the defendant only raised fraud claims
to the extent that they affected the outcome in his own race, not those for other offices in
Michigan.!”
COR participation came after the legislators assured the defendant that they were
looking into fraud claims; the defendant dialed [ into the meeting and said, ‘@@@@ tell them
what’s going on.” then launched into a fraud monologue.'® Finally, interrupted
and asked, “So when are you going to file a lawsuit in Michigan?”—a question that
ignored and did not answer.'TM
Immediately after the meeting, and fe@xemmm released a public statement in which
they stated that they had “not yet been made aware of any information that would change the
outcome of the election in Michigan.”!© On November 21, the defendant acknowledged JE
and i *tummm statement when he tweeted, “This is true, but much different than reported by the
media” and implicitly conceded that he had not provided evidence of fraud yet when he added,
“We will show massive and unprecedented fraud!”!®° Days later, the defendant’s Campaign
160 GA 564
161 GA 563-565 ).
162 GA 560-571 ); GA 70-94
163 GA 575 ); GA 567-569
164 GA 569
16° GA 1040 Joint Statement 11/20/2020); GA 94-95
).
-33-
declined to request a state-wide recount in Michigan, for which it would have had to pay unless
the recount succeeded in changing the outcome of the election. !®
Despite failing to establish any valid fraud claims, followed up with and
and attempted to pressure them to use the Michigan legislature to overturn the valid
election results. On December 4, RQQGMi sent a message my P38 claiming that Georgia was
poised to do so (based on em and oo false advocacy there in the December 3 hearing)
and asked ER for help: “Looks like Georgia may well hold some factual hearings and change
the certification under ArtII sec 1 cl 2 of the Constitution. As CC2 explained they
don’t just have the right to do it but the obligation. . . Help me get this done in Michigan.”!®* On
December 7, attempted to send a message (though failed because he typed the
wrong number into his phone): “So I need you to pass a joint resolution from the Michigan
legislature that states that, * the election is in dispute, * there’s an ongoing investigation by the
Legislature, and * the Electors sent by Governor Whitmer are not the official Electors of the State
of Michigan and do not fall within the Safe Harbor deadline of Dec 8 under Michigan law.”!®
Campaign operative was involved in the drafting of this message with the assistance of
P41 who was associated with the defendant’s Campaign efforts in Michigan.'’° The
following day, shared the draft with the defendant, sending it to his executive assistant,
167 GA 49-53 ); GA 15-19 ).

168 GA 1175 ).
169 GA 1177 ); GA 1178-
1187 ).
179 GA 1188 ).
These efforts failed. On December 14, the day that duly-appointed electors across the
country met and cast their electoral votes, and issued public statements
confirming that the defendant had lost Michigan and the legislators still had not received evidence
of outcome-determinative fraud in their state. !”* public statement included, “[W]e have
not received evidence of fraud on a scale that would change the outcome of the election in
Michigan.”!”? BSR stated, in part:
We've diligently examined these reports of fraud to the best of our ability. . . I
fought hard for President Trump. Nobody wanted him to win more than me. I
think he’s done an incredible job. But I love our republic, too. I can’t fathom
risking our norms, traditions and institutions to pass a resolution retroactively
changing the electors for Trump, simply because some think there may have been
enough widespread fraud to give him the win. That’s unprecedented for good
reason. And that’s why there is not enough support in the House to cast a new slate
of electors. I fear we’d lose our country forever. This truly would bring mutually
assured destruction for every future election in regards to the Electoral College.
And I can’t stand for that. I won’t.!”4
On January 3, the defendant’s Campaign publicly posted phone number, and
attempted to post (but erred by one digit), in a Tweet urging, “Contact Speaker ||
ete & Senate Majority Leader | P37 ial received four thousand text
messages in two hours, forcing him to get a new phone number. !”°
4. Nevada
On November 17, in Law v. Whitmer, agents of the defendant in Nevada filed suit, claiming
“substantial irregularities, improprieties, and fraud” in the presidential election, including based
'? GA 1190-1192 (BB Press Releases 12/14/2020).

13 GA 1191 Press Releases 12/14/2020).
4 GA 1192 Press Releases 12/14/2020).
> GA 917 (Team Trump Tweet 01/03/2021); GA 918 (Team Trump Tweet 01/03/2021).
-35-
on machines used in ballot signature matching and votes by non-resident and dead voters.!’’ The
defendant approved a press conference by his surrogates announcing the suit.!”
On November 19, P43 the RNC Chief Counsel, sent an email to Him
po an RNC spokesperson, warning about inaccuracies in the suit: “Just FYI that I don’t
believe the claims in the contest regarding dead voters, those voting from out-of-state, etc. are
substantiated. We are working with the campaign on a data matching project and those numbers
are going to be a lot lower than what the NV people have come up with. They are also targeting
our military voters. To be frank, the contest has little chance of succeeding. Happy to discuss this
stuff if you want more info.”!”? ame then sent a copy of email from her personal
email account to the personal email account o P45 one of the defendant’s White House
staffers who also volunteered for the Campaign. !*°
Notwithstanding the RNC Chief Counsel’s warning, the defendant re-tweeted and
amplified news of the lawsuit on November 24, calling it “Big News!” that a Nevada Court had
agreed to hear it.'*! But the defendant did not similarly promote the fact that within two weeks,
on December 4, the Nevada District Court dismissed Law v. Whitmer, finding in a detailed opinion
that “there is no credible or reliable evidence that the 2020 General Election in Nevada was
affected by fraud,” including through the signature-match machines, and that Biden won the
election in the state.'8? Four days later, on December 8, Nevada’s Supreme Court unanimously
177 Complaint at 1, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Nov. 17, 2020) available
at: https://electioncases.osu.edu/wp-content/uploads/2020/11/Law-v-Gloria-Complaint.pdf; GA
1963 (Video of Trump Campaign Press Conference 11/17/2020).
178 GA 1193-1194
179 GA 1195
180 GA 1196-1197, 1195
182 Order at 13-24, 28-34, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Dec. 4, 2020)
- 36-
affirmed the District Court’s decision, noting that despite its “earlier order asking appellants to
identify specific findings with which they take issue, appellants have not pointed to any
unsupported factual findings, and we have identified none.”!®? Later, in his Ellipse speech on
January 6, the defendant repeated multiple claims explicitly rejected by Nevada courts. !*4
On December 18, the Nevada Secretary of State’s Office released a “Facts vs. Myths”
document to combat disinformation that the defendant and others were propagating about the
election, including false claims that the Secretary of State’s Office had not investigated claims of
fraud even though it had “been presented with evidence of wide-spread fraud”—to which the
Office responded, ““While we are pursuing action in a number of isolated cases, we have yet to see
any evidence of wide-spread fraud.”

!®° The “Facts vs. Myths” document also stated publicly that
courts had universally rejected fraud claims: “Four separate cases were heard by Nevada judges
including the NV Supreme Court. After examining records presented, each case was discounted
7186
due to a lack of evidence.
5. Pennsylvania
Two days after the election, on November 6, the defendant called the
Chairman of the Pennsylvania Republican Party—the entity responsible for supporting Republican
available at: _https://electioncases.osu.edu/wp-content/uploads/2020/1 1/Law-v-Gloria-Order-

Granting-Motion-to-Dismiss.pdf.
183 Taw v. Whitmer, 136 Nev. 840 (Nev. 2020).
184 Compare Order at 18-20, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Dec. 4, 2020)
available at: _https://electioncases.osu.edu/wp-content/uploads/2020/1 1/Law-v-Gloria-Order-
Granting-Motion-to-Dismiss.pdf (finding no support for claims of double ballots, non-resident,
and deceased voters) with GA 1134-1135 (Ellipse Rally Speech Draft Tr. 01/06/2021) (‘There
were also more than 42,000 double votes in Nevada”; “1,500 ballots were cast by individuals
whose names and dates of birth match Nevada residents who died in 2020 prior to November 3rd
election. More than 8,000 votes were cast by individuals who had no address and probably didn’t
live there.”’).
189 GA 1198 (Nevada Facts vs. Myths 12/18/2020).
186 GA 1199 (Nevada Facts vs. Myths 12/18/2020).
-37-
candidates in the commonwealth at the federal, state, and local level.!®’ had a prior
relationship with the defendant, including having represented him in litigation in
Pennsylvania after the 2016 presidential election.'** The defendant asked igi how, without
fraud, he had gone from winning Pennsylvania on election day to trailing in the days
afterward.'®? Consistent with what Campaign staff already had told the defendant,
confirmed that it was not fraud; it was that there were roughly 1,750,000 mail-in ballots still
being counted in Pennsylvania, which were expected to be eighty percent for Biden.!?° Over the
following two months, the defendant spread false claims of fraud in Pennsylvania anyway.
In early November, in a Campaign meeting, when the defendant suggested that more
people in Pennsylvania voted than had checked in to vote, Deputy Campaign Manager
corrected him.!?! Around the same time, Philadelphia City Commissioner Jad appeared
on television and stated that there was no evidence of widespread fraud in Philadelphia.!*? After
seeing the interview, the defendant targeted tweeting, “A guy named a
Philadelphia Commissioner and so-called Republican (RINO), is being used big time by the Fake
News Media to explain how honest things were with respect to the Election in Philadelphia. He
refuses to look at a mountain of corruption & dishonesty. We win!”!? As a result of the
defendant’s attack, threats that already was receiving became more targeted and
detailed—and included his address and the names of his family members.!**
87 GA 618-619 ); GA 723-724 is).
189 GA 619-620 ).
1 GA 1953 at 2:20-4:13 (Video of MME Interview with CNN 11/11/2020).

-38
-
On the defendant’s behalf, RQ@Q@EE too spread patently false claims about Pennsylvania.
On November 25, RG@QMH and HM attended an unofficial hearing with Republican state
legislators in a Gettysburg hotel conference room.!®? The defendant called in, claimed to have
been watching, and demanded that the election in Pennsylvania “has to be tumed around.”!”°
During the event, falsely stated that Pennsylvania issued 1.8 million absentee ballots and
received 2.5 million in return.!°’ The claim was rooted in an obvious error—the comparison of
the number of ballots sent out in the primary election to the number of ballots received in the
general election. After seeing make this claim, the RNC’s Chief Counsel,
tweeted publicly, “This is not true.”!*® In the following days, Campaign staff internally confirmed
that MIS@@ER was lying: when one Campaign staffer wrote in an email that Coe claim was
“Just wrong” and “[t]here’s no way to defend it,” ey responded, “We have been saying this for
awhile. It’s very frustrating.”!”? Likewise, in late November or December, | PO informed
the defendant directly that a claim (ey was spreading, that “Pennsylvania received 700,000
more mail-in ballots than were mailed out,” was “bullshit” and explained the error.?”
followed up on his public Tweet in a private email on November 28 to Ramu
the RNC spokesperson, expressing his concern about em and U4 spread of disinformation:
“T’m really not trying to give you a hard time but what [@@§ and are doing is a joke and
they are getting laughed out of court. It’s setting us back in our fight for election integrity and
199 GA 1945 (Video of Pennsylvania Hotel Hearing 11/25/2020).

196 GA 1945 at 2:06:23—2:07:23 (Video of Pennsylvania Hotel Hearing 11/25/2020).
197 GA 1945 at 2:21:30—2:21:53 (Video of Pennsylvania Hotel Hearing 11/25/2020).
198 GA 819 Tweet 11/25/2020).
199 GA 1203-1206
2 GA 791 )
): GA 1207-1208 a
).
-39-
they are misleading millions of people who have wishful thinking that the president is going to
somehow win this thing.”?°! When learned of Mea Tweet and email. on November
28, he called MBAS and left a threatening voicemail, stating, “I really do need an explanation for
what you said today because if there isn’t a good one, you should resign. Got it? So call me or
T’ll call the boss and get you to resign. Call me. It’d be better for you if you do.””” also
contacted RNC Chairwoman EE to demand that be fired, and thereafter 22 was
relieved of his duties as RNC Chief Counsel.”
On December 3, four Republican leaders of the Pennsylvania legislature issued a public
letter stating that the General Assembly lacked the authority to overturn the popular vote and
appoint its own slate of electors, and that doing so would violate the state Election Code and
Constitution.?% P48 —an agent of the defendant who worked closely with | CCl &
issued a Tweet showing the four legislators’ names and signatures and wrote, “These are the four
cowardice Pennsylvania legislators that intend to allow the Democrat machine to #StealtheVote!
#Cowards #Liars #Traitors” while linking to the legislators’ Twitter accounts.?? On Sunday
December 6, at 12:56 a.m., from the White House residence—having just returned froma political
rally in Valdosta, Georgia—the defendant re-tweeted and amplified RM post.7°6
201 GA 1209 ).
203 GA 1210-1214
1215
204 GA 1222-1223 (Letter from Pennsylvania Legislators 12/03/2020); GA 173 (i

).
205 GA 849 GR Tweet 12/04/2020).
206 GA 856, 858 (Donald J. Trump Tweet 12/06/2020).
- 40
-
6. Wisconsin
On November 29, a recount that the defendant’s Campaign had petitioned and paid for
confirmed that Biden had won in Wisconsin—and increased the defendant’s margin of defeat.7°”
On December 14, the Wisconsin Supreme Court rejected the Campaign’s election lawsuit there.7°%
As a result, on December 21, Wisconsin’s Governor signed a certificate of final determination
confirming the prior certificate of ascertaiment that established Biden’s electors as the valid
electors for the state.2°?
In response, the defendant issued a series of Tweets attacking P49 the
Wisconsin Supreme Court Justice who had written the majority opinion rejecting his Campaign’s
lawsuit and advocating that the Wisconsin legislature overturn the valid election results:
Two years ago, the great people of Wisconsin asked me to endorse a man named
P49 for State Supreme Court Justice, when he was getting destroyed in
the Polls against a tough Democrat Candidate who had no chance of losing. After
my endorsement, easily won! WOW, he just voted against me in a Big
Court Decision on voter fraud (of which there was much!), despite many pages of
dissent from three highly respected Justices. One thing has nothing to do with
another, but we ended up losing 4-3 in a really incorrect ruling! Great Republicans
in Wisconsin should take these 3 strong decisions to their State Legislators and
overturn this ridiculous State Election. We won in a LANDSLIDE!”!?
After the defendant’s Tweet, the state marshals responsible for iEMeg safety arranged
to provide eam with additional police protection based on social media traffic and other
threatening communications.7!!
207 GA 1224-1225 (Wisconsin Order for Recount 11/19/2020); GA 1226 (Wisconsin Statement of
Canvass 11/30/2020); Trump v. Biden, 394 Wis. 2d 629, 633 (Wis. 2020).
208 Trump v. Biden, 394 Wis. 2d 629, 633 (Wis. 2020).
209 GA 1235 (Wisconsin Certificate of Ascertainment 11/03/2020).
210 GA 875, GA 876, GA 877, GA 880, GA 879, and GA 878 (Donald J. Trump Tweets
12/21/2020).
*! GA 184-186, GA 188-189 i
-4]
-
7. Voting Machines in Multiple States
Throughout the post-election period, the defendant and co-conspirators repeatedly made
claims about the security and accuracy of voting machines across multiple states, despite the fact
that they were on notice that the claims were false. As early as November 12, for instance, the
National Association of Secretaries of State, the National Association of State Election Directors,
and other coordinated federal, state, and private entities issued a public statement declaring that
the 2020 election was “the most secure in American history” and that there was “no evidence that
any voting system deleted or lost votes, changed votes, or was in any way compromised.”7!2
On November 14, in the Tweet announcing that I@@GMi was to lead his Campaign legal
efforts, the defendant also named (M@@4Mi a private attorney who was fixated on voting machine
claims, and another private attorney.7/*> Two days later, on November 16, on the
defendant’s behalf, executive assistant JZ sent PS@SH and other private attorneys an email,
titled “From POTUS,” attaching a document containing bullet points critical of
P| a company that manufactured voting machines used in certain states, and writing, “See
attached — Please include as is, or almost as is, in lawsuit.”?!* responded nine minutes later,
writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD
CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDEin those states and
machines impounded for non-partisan professional inspection.”?!°
On November 17, the director of the Department of Homeland Security’s
Cybersecurity and Infrastructure Security Agency (CISA), publicly tweeted that a group of private
212 GA 1236 (Election Security Joint Statement 11/12/2020).

214 GA 1238-1239 ).
215 GA 1240 ).
-42-
election security experts concluded that claims of computer-based election fraud “either have been
unsubstantiated or are technically incoherent.”7!°
Two days later, on November 19, and others held a press
conference at the RNC headquarters, on behalf of the defendant and his Campaign.”’’ During it,
made false and factually impossible claims regarding and the integrity of the
country’s election infrastructure.*!* That night, Fox News television personality
stated on air that because of| incendiary comments about voting machines, he had invited
her on his television program. He further stated, “[b]ut she never sent us any evidence, despite a
lot of requests, polite requests. Not a page. When we kept pressing, she got angry and told us to
stop contacting her. When we checked with others around the Trump Campaign, people in
positions of authority, they told us has never given them any evidence either . . . she never
demonstrated that a single actual vote was moved illegitimately by software from one candidate
to another. Not one.”7!?
The defendant saw his private attorneys’ RNC press conference and discussion
of QQ and he acknowledged to that had appeared “unhinged” in the press
conference.?”? On November 20, the day after the press conference, the defendant made a similar
comment to and two White House staffers who also volunteered for his
Campaign.””! In casual conversation after another meeting had ended, the defendant told
216 GA 790 Tweet 11/17/2020).

17 GA 1950 (Video of RNC Press Conference 11/19/2020).
218 GA 1950 at 38:58—52:34 (Video of RNC Press Conference 11/19/2020).
219 GA 1972 at 9:18-10:02 (Video of Show 11/19/2020).
220 GA 391-392
and RS that M3 had “eviscerated” or “destroyed” | CC3 fag The defendant then had a
call with B@@SM on speakerphone, while i and listened in, and mentioned the
segment to | CC3 fag While [Sey responded, the defendant placed the call on mute and to
and a mocked and laughed at called her claims “crazy,” and made a reference to
the science fiction series Star Trek when describing her allegations.** In the same time period,
when | PD told the defendant that claims were unreliable and should not be
included in lawsuits, the defendant agreed that he had not seen anything to substantiate
allegations.’”°
On November 22, notwithstanding the defendant’s Tweet from eight days prior announcing
involvement, issued a statement on behalf of the Campaign distancing the
defendant from om 5 CCB is practicing law on her own. She is not a member of the
Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”?°
Nonetheless, the defendant continued to support and publicize knowingly false claims.
For example, within days of statement, the defendant promoted a lawsuit that
was about to file, tweeting on November 24, “BREAKING NEWS: CC3 says her
lawsuit in Georgia could be filed as soon as tomorrow and says there’s no way there was anything
but widespread election fraud. #MAGA #AmericaFirst #Dobbs.”??’ Q@&H filed a lawsuit the next
day against the Governor of Georgia falsely alleging “massive election fraud” accomplished
222 GA 258-259 ).
224 GA 258-260 ).
226 GA 1241 (Trump Campaign Statement 11/22/2020).

-44-
through election software and hardware.””* The defendant again promoted the lawsuit
in a Tweet.”?? The lawsuit was dismissed within two weeks, on December 7.7°°
On November 29, who was no longer the CISA Director, appeared on the television
program 60 Minutes.?! stated that he was confident that the election had been secure and
“that there was no manipulation of the vote on the machine count side.””*? In response, the
defendant tweeted publicly about appearance: “@60Muinutes never asked us for a
comment about their ridiculous, one sided story on election security, which is an international joke.
Our 2020 Election, from poorly rated to a Country FLOODED with unaccounted for
Mail-In ballots, was probably our least secure EVER!””? A few days later, MR@WUM appeared
on a radio program as the defendant’s agent and said that because Si P50 comments to promote
confidence in the security of the election infrastructure, “should be drawn and quartered.
Taken out at dawn and shot.””** Thereafter, was subjected to death threats.?*? In a press
conference on December 1 that the defendant acknowledged watching,” a Georgia
election official, decried P10 and the defendant’s public statements spreading
disinformation and said that if they did not stop, “someone is going to get killed.”??”
28 Complaint at 2, Pearson v. Kemp, No. 1:20-cv-4809 (N.D. Ga. Nov. 25, 2020), ECF No. 1.
230 Transcript of Mots. Hr’g at 41-44, Pearson v. Kemp, (N.D. Ga. Dec. 7, 2020), ECF No. 79.
231 GA 1940 (Video of YI on 60 Minutes 11/29/2020).
232 GA 1940 at 4:14-4:19 (Video of QI on 60 Minutes 11/29/2020).
234 GA 1887 (Audio ofMH on 11/30/2020).

237 GA 196] at 3:32-3:55 (Video of QRH Press Conference 12/01/2020).
-45-
On December 1, Attorney General i stated publicly that the Justice Department
had not seen evidence of fraud sufficient to change the election results.?** With respect to voting
machines, he said, “There’s been one assertion that would be systemic fraud and that would be the
claim that machines were programmed essentially to skew the election results. And the DHS and
DOJ have looked into that, and so far, we haven’t seen anything to substantiate that.””??
and immediately issued a formal Campaign statement attacking 8% and the Justice
Department, writing, “With all due respect to the Attorney General, there hasn’t been any
semblance of a Department of Justice Investigation . . . his opinion appears to be without any
knowledge or investigation of the substantial irregularities and evidence of systemic fraud.”7*°
In mid-December, the defendant spoke with RNC Chairwoman 249M and asked her to
publicize and promote a private report that had been released on December 13 that purported to
identify flaws in the use of machines in Antrim County, Michigan.**! P39
refused, telling the defendant that she already had discussed the report with RE Michigan’s
Speaker of the House, who had told her that the report was inaccurate.7*? HBSS conveyed to
the defendant MRSZ3ME exact assessment: the report was “fucking nuts.”?”
On January 2, during the defendant’s call with Georgia Secretary of State P33
P| said of false claims regarding voting machines, “I don’t believe that you’re really
questioning the machines. Because we did a hand re-tally, a 100 percent re-tally of all
the ballots, and compared them to what the machines said and came up with virtually the same
239 GA 1242-1243 (Email from Comms Alert 12/01/2020).

240 GA 1244 (Trump Campaign Press Release 12/01/2020).
243 Td.
- 46
-
result. Then we did the recount, and we got virtually the same result. So I guess we can probably
take that off the table.”*** In response, the defendant falsely claimed that “in other states, we think
we found tremendous corruption with ea machines, but we’ll have to see.””4°
At the Ellipse on January 6, the defendant and co-conspirators who spoke at the rally
continued to make unsubstantiated and false claims about HS machines. claimed
that in the U.S. Senate run-off election in Georgia the day before, “the votes were deliberately
changed by the same algorithm that was used in cheating President Trump and Vice President
Pence.” 4° continued the false attack: “We now know because we caught it live last time
in real time, how the machines contributed to that fraud. ... They put those ballots in a secret
folder in the machines sitting there waiting, until they know how many they need. And then the
machine after the close of polls, we now know who’s voted. And we know who hasn’t. And I can
now in that machine match those unvoted ballots with an unvoted voter and put them together in
the machine. ... We saw it happen in real time last night and it happened on November 3rd as
well.”4” In his own speech, the defendant again raised the false specter of “the highly troubling
matter of and lied about machines flipping votes from the defendant
to Biden and an “astronomical and astounding” error rate in the machines’ ballot scanning.7**
D. The Defendant Organized and Caused His Electors to Submit Fraudulent

Certificates Creating the False Appearance That States Submitted Competing
Electoral Slates
By late November 2020, every effort—both legitimate and illegitimate—that the defendant
had made to challenge the results of the election had been unsuccessful. The defendant, his
244 GA 1889 at 15:58-16:27 (Audio of Trump P33 Call 01/02/2021).

45 GA 1889 at 16:32-17:26 (Audio of Trump P33 Call 01/02/2021).
246 GA 1928 at 2:22:41—2:23:07 (Video of Ellipse Rally 01/06/2021).
47 GA 1928 at 2:25:25—22:26:56 (Video of Ellipse Rally 01/06/2021).
48 GA 1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).
-47-
Campaign, and their allies had lost or withdrawn one election lawsuit after another in the seven
targeted states. And the defendant and co-conspirators’ efforts to overturn the legitimate vote
count through a pressure campaign on state officials, and through false claims made directly to
state legislators in formal or pseudo-hearings, continued to fail. So in early December, the
defendant and his co-conspirators developed a new plan regarding the targeted states that the
defendant had lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and
Wisconsin): to organize the people who would have served as the defendant’s electors had he won
the popular vote, and cause them to sign and send to Pence, as President of the Senate, certifications
in which they falsely represented themselves as legitimate electors who had cast electoral votes
for the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulent
electoral votes—mere pieces of paper without the lawful imprimatur of a state executive—to
falsely claim that in his ministerial role presiding over the January 6 certification, Pence had the
authority to choose the fraudulent slates over the legitimate ones, or to send the purportedly
“dueling” slates to the state legislatures for consideration anew.
The fraudulent elector plan’s arc and obstructive purpose is reflected in a series of
memoranda drafted in late November and early December by an attorney who
volunteered to assist the defendant’s Campaign in lawsuits challenging the election i
Wisconsin.” Beginning with a memorandum drafted on November 18, advocated that
the defendant’s elector nominees in Wisconsin meet and cast votes on the date required by the
ECA (in 2020, December 14) in the event that an ongoing recount in the state reversed the
defendant’s loss there.2°° But this course of action—which Hae Wisconsin memorandum
249 GA 1245-1246 ); GA 1247-1248 Gi
290 GA 1249-1255 memo 11/18/2020).
- 48
-
presented as a contingency plan to preserve the possibility that the defendant’s electors’ votes be
counted at the January 6 certification proceeding if he prevailed in the Wisconsin litigation and
won the state—quickly transformed into a corrupt strategy to overturn the legitimate election
results.7>! revealed this obstructive plan in two additional memoranda, dated December
67°? and December 9,”°? which proposed that the defendant’s elector nominees in six of the targeted
states—all but New Mexico, a state the defendant lost by more than ten percent of the popular
vote, sparsely referenced in his false claims of voter fraud, and did not envision challenging at the
inception of the elector scheme? 4__meet on December 14, sign fraudulent certifications, and send
them to the Vice President to manufacture a fake controversy during the January 6 congressional
certification.
The defendant personally set the fraudulent elector plan in motion in early December,
ensured that it was carried out by co-conspirators and Campaign agents 1n the targeted states, and
monitored its progress. By December 5, the defendant was starting to think about Congress’s role
in the election process; for the first time, he mentioned to Pence the possibility of challenging the
election results in the House of Representatives.°° In the same call, Pence told the defendant that
the Georgia Bureau of Investigation was investigating their race.?°°
251 GA 1256-1259
232 GA 1260-1265 memo 12/06/2020).
293 GA 1266-1270 memo 12/09/2020).

294 GA 1271 - GA 1272 (New Mexico
Certificate of Ascertainment); GA 1273-1282
i).
255 GA 1283-1284 ); GA 236-437 Gi
; GA 1019 (Pence, So Help Me God, p. 433).
).
- 49
-
On December 6, the same day that put the plan on paper,”’ the defendant and
called RNC Chairwoman ZO out of the blue.”°® did not know ea
and the defendant introduced him to by saying that he was a professor and lawyer;
thereafter, was the primary speaker during the conversation.” told He
that he and the defendant wanted the RNC “to help the campaign assemble the electors in the states
where we had legal challenges, or litigation that was ongoing . . . in case any of that litigation
changed the result of a state so that it would meet the constitutional requirement of electors
meeting.””©° When the call ended, immediately called one of the defendant’s
deputy Campaign managers, and relayed her conversation with the defendant and | CC2 fa
After assured JE that the Campaign was “on i oe called the defendant back
and told him so.*©* On the same day, from his personal email account, forwarded to
Campaign staff Ce November 18 memorandum and wrote, “We just need to have someone
coordinating the electors for states.”*°? And the following day, on the evening of December 7,
sent a text message stating in part, “I have lawyers assigned in each state
working on Dec 14 electors meeting and what they need. I will send you a list.”7%
The defendant’s co-conspirators worked with his Campaign staff, and used his pre-election
Campaign apparatus, to execute the fraudulent elector plan.“ The defendant communicated with
257 GA 1260-1265 memo 12/06/2020).

258 GA 323-325 ).
299 GA 324-325 )
260 GA 325 ).
261 GA 325-327 ).
26 GA 326-327 ).
263 GA 1285 ).
264 GA 1286-1287 ).
265 GA 1288-1290 ):; GA 1247 Gi
).
-50-
COR and MOC about the plan,?TM and they in tum communicated with and
CCS fi Ultimately, | P19 | and other Campaign staff and agents helped carry out
COs plans.
On December 8, spoke on the phone with P53 269 4 private attorney
whom Ge and eam had identified as a contact for the plan in Arizona.”° Following the
call, recounted the conversation in an email:
I just talked to the gentleman who did that memo, | CCS His idea is
basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes
(even though the votes aren’t legal under federal law — because they’re not signed
by Governor); so that members of Congress can fight about whether they should be
counted on January 6". (They could potentially argue that they’re not bound by
federal law because they’re Congress and make the law, etc.) Kind of wild/creative
—I’m happy to discuss. My comment to him is that I guess there’s no harm in it,
(legally at least) — i.e. we would just be sending in “fake” electoral votes to Pence
so that “someone” in Congress can make an objection when they start counting
votes, and start arguing that the “fake” votes should be counted.7”
On December om CC6 contacted EE for assistance with a request from Ce
for “a list of our electors in each state and copies of the certificates sent in 4 years ago.”?””
Se responded that Campaign employees were already assisting in the effort and referred
to | P3 The next day, at #@@! direction, generated directions to the
266 GA 1291-1295
767 GA 1296-1299 - GA 1300-1309
268 GA 1312-1317 ); GA 1318-

y; GA 1321-1324
269 GA 1296-1299
270 GA 1325 ).
271 GA 1296-1299 ,
272 GA 1326-1327 ).
electors in all of the targeted states except for Wisconsin (which had already received his memos)
and New Mexico (which he had not yet been asked to do) on how best to mimic the manner in
which valid electors were required by state law to gather and vote, along with fraudulent
certificates of vote for the defendant’s electors to sign.*”4
The day before the defendant’s electors were scheduled to meet and sign fraudulent
certificates of vote, the defendant asked Campaign advisor fa for an update on the elector plan
and directed Mm to issue a statement, and asked to participate in a messaging
conference call.?” discussed these developments in a text thread with
Campaign Staffer ii Se and After J proposed a communications plan
for the Campaign on the elector vote, | PO wrote to “Tl call soon and we’ll talk
with boss.”?’° The participants then discussed to whom a Campaign statement could be attributed.
iim wrote, “Here’s the thing the way this has morphed it’s a crazy play so I don’t know who
wants to put their name on it.”?’” SRAM then shared with those on the text thread the invitees to
the call H@@El was convening (ee and fete
| Bd derogatorily referred to them as the “Star Wars bar,” meaning a motley assortment of
characters, and in this case specifically ones whose professional competence gaa doubted and
274 GA 1328
> GA 1310-1311 (
); GA 1321-1324 (
); GA 1334-1335 (
; GA 1339-1341 (
to ; GA 1342-1344 (
GA 1345-1346 (
2 GA 1300
GA 394-395
276 GA 1301
277 GA 1304
whom he personally would not choose to hire.?” | PO responded, “Certifying illegal
votes.””” Thereafter, the text participants collectively agreed that no message would go out under
their names because they “can’t stand by it.”?°° In the midst of these text messages,
and (28mm had a nineteen-minute phone call with the defendant.”*!
In practice, the fraudulent elector plan played out somewhat differently in each targeted
state. In general, the co-conspirators deceived the defendant’s elector nominees in the same way
that the defendant and (oom deceived ZOE by falsely claiming that their electoral votes
would be used only if ongoing litigation were resolved in the defendant’s favor.7®? A select few
of the defendant’s agents and elector nominees, however, had insight into the ultimate plan to use
the fraudulent elector certificates to disrupt the congressional certification on January 6.78 In
several states, the defendant, his co-conspirators, and agents were unable to convince all of the
defendant’s elector nominees to participate.?** for instance, a former U.S.
Representative and U.S. Attorney and one of the defendant’s elector nominees in Pennsylvania
who opted out of the plan, told the state party vice chair trying to organize the defendant’s electors
278 GA 1305-1306
); GA 396-397
277 GA 1306
280 GA 1308
281 GA 744
82 GA 1347-1349
1350-1356
GA 517-518
283 GA 1888 at 3:15-4:32 2020); GA 1296-1299
.2., GA 625-633 ); GA 320-321 );

GA 265 ); GA 1362-1365 (Fraudulent “Georgia’s Electoral Votes for
President and Vice President”); GA 1372-1373 (Fraudulent “Michigan’s Electoral Votes for
President and Vice President”); GA 1383-1389 (Fraudulent “Pennsylvania’s Electoral Votes for
President and Vice President’’).
that he would not participate because the plan did not follow the proper process and was illegal.”
When electors like declined, the conspirators and agents had to recruit substitutes willing
to go along with the plan.78° Other electors who participated based on the conspirators’ false
assurances that their votes were only a contingency were later surprised to learn that they were
used on January 6—and would not have agreed to participate if the conspirators had been truthful
about their plan.7%’
In Pennsylvania, the defendant’s elector nominees’ concern about the propriety of the plan
presented a problem for the conspirators. In text messages that and MRG@@ORE exchanged
on December 11 into the early morning hours of December 12, rl CCO | that
the state Republican Party Chairman whom the defendant had called shortly after the election’**—
“is winding up the electors. Telling them if the[y] sign the petition they could be prosecuted.
Need a counter argument or someone has to call him and tell him to stop.”7®? responded,
“Have someone who knows him call him to tell him to stop.”?”° replied, “That’s the plan.
PA is squishy right now. Going to need a call with tomorrow.”?”!
On December 12, and others held a conference call
organized by the Campaign to placate the defendant’s Pennsylvania electors.7”” falsely
285 GA 320-321 ).
286 GA 519-520 024).
287 GA 164-165 ); GA 522-523 I): GA 48s-
495 ).
—_—
GA 618-619 (ne): GA 723-724, GA 726 (a
).
291 Td.
292 GA 1394-1398 ); GA 1399

).
-54-
assured them that their certificates of vote would be used only if the defendant succeeded in
litigation.27? During the call, some of the defendant’s conspirators and agents exchanged text
messages expressing frustration at the electors’ concerns.7”4 wrote, “Whoever selected
this slate should be shot.” [¥@4 responded, “These people are making this so much more
complicated than it needs to be omg” and “We couldn’t have found 20 people better than this???”
agreed, writing, “We need good substitutes.””?? When the possibility arose that the
electors’ certificates of vote include conditional language making clear that they were not yet the
duly-appointed electors, ZS wrote, “The other States are signing what prepared -
if it gets out we changed the language for PA it could snowball.”?%°
On December 13, the eve of when the electors were to meet, the defendant was preoccupied
with preventing the certification of the electoral vote. He tweeted: “Swing States that have found
massive VOTER FRAUD, which is all of them, CANNOT LEGALLY CERTIFY these votes as
complete & correct without committing a severely punishable crime. Everybody knows that dead
people, below age people, illegal immigrants, fake signatures, prisoners, and many others voted
illegally. Also, machine ‘glitches’ (another word for FRAUD), ballot harvesting, non-resident
voters, fake ballots, ‘stuffing the ballot box’, votes for pay, roughed up Republican Poll Watchers,
and sometimes even more votes than people voting, took place in Detroit, Philadelphia,
Milwaukee, Atlanta, Pittsburgh, and elsewhere. In all Swing State cases, there are far more votes
293 GA 743 ) 6A 1400 IT ca. 621

294 GA 1407
a.
299 GA 1407-1408
).
296 GA 1408
a).
than are necessary to win the State, and the Election itself. Therefore, VOTES CANNOT BE
CERTIFIED. THIS ELECTION IS UNDER PROTEST!”
Ultimately, the Pennsylvania electors insisted upon using conditional language in their
elector certificates to avoid falsely certifying that they were duly-appointed electors.*”* And in
New Mexico—the state that Z@@Q¥MI’s memoranda did not even address*””—the defendant’
s
Campaign filed a pretextual lawsuit just minutes before the fraudulent electors met so that there
was litigation pending at the time of the vote.*°° Notwithstanding obstacles, the defendant and his
co-conspirators successfully organized his elector nominees and substitutes to gather on December
14 in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulent
votes to Washington, D.C., in order to falsely claim at the congressional certification that certain
states had sent competing slates of electors.*°!
When possible, the defendant and co-conspirators tried to have the fake electoral votes
appear to be in compliance with state law governing how legitimate electors vote.*** For example,
2°1 GA 867-872 (Donald J. Trump Tweets 12/13/2020).

298 GA 1407-1408
WN); GA 1409-1410
); GA 1411-1412 ); GA 1413-1415 Ga
); GA 622-625 ).
2 GA 1416 ); GA 1273-1282 xa
).
200 GA 1417-1419 (I
ee.
3°! GA 1420-1424 (Fraudulent “Arizona’s Electoral Votes for President and Vice President”); GA
1357-1368 (Fraudulent “Georgia’s Electoral Votes for President and Vice President”); GA 1369-
1379 (Fraudulent “Michigan’s Electoral Votes for President and Vice President”); GA 1425-1444
(Fraudulent “Nevada’s Electoral Votes for President and Vice President’); GA 1445-1450
(Fraudulent “New Mexico’s Electoral Votes for President and Vice President”); GA 1380-1393
(Fraudulent “Pennsylvania’s Electoral Votes for President and Vice President”); GA 1451-1457
(Fraudulent “Wisconsin’s Electoral Votes for President and Vice President’); GA 1458-1472
FT
302 GA 1266-1270 memo 12/09/2020).
- 56-
the co-conspirators knew that some states required that the duly-appointed electors meet and cast
their votes in the state capitol building.*” To make it seem like they had complied with this
requirement, state officials were enlisted to provide the fraudulent electors with access to state
capitol buildings so that they could gather and vote there.*°* In many cases, however, the
conspirators and fraudulent electors were unable to comply with state law for legitimate electors.*”
For example, Pennsylvania law required the Governor to give notice whenever an elector was
substituted, but the conspirators could not arrange for the Governor to give notice when and
others opted out and had to be replaced.* Thereafter, MRQ@3MM and others brainstormed fake
excuses for their failure to follow state law, writing, “maybe we can use Covid19 as an excuse for
the Governor not giving notice.”?°”
Then, on December 14—the date that duly-appointed electors across the country met to
cast their votes, and when the defendant’s fraudulent electors in seven states mimicked them—
Se followed up with the defendant.*° When she received an internal RNC email titled
“Electors Recap - Final,” which summarized the day’s activities with respect to electors and
included a list of six “contested” states in which the defendant’s electors voted, she forwarded it
to the defendant’s executive assistant, who responded, “It’s in front of him!
303 GA 1268-1270 memo 12/09/2020).

304 GA 1473-1475 ; GA 1458-1472
305 GA 1458-1472
306 GA 1270 memo 12/09/2020); GA 1390 (Fraudulent “Pennsylvania’s Electoral Votes
for President and Vice President’’).
308 GA 328-329 ).
309 Td: see also GA 1483-1484 ).
-57-
63m also called the defendant to tell him that she had sent him the update,*!° and she spoke
rm] CCl | shortly before [Sy spoke to the defendant.?!!
At the same time that the defendant’s fraudulent electors were preparing to gather and cast
fraudulent votes, the defendant’s co-conspirators began planning how to use the fraudulent votes
to overturn the election results at the January 6 certification. On December 13, sent
CORE 2 memorandum that envisioned a scenario in which Pence would use the fraudulent slates
as a pretext to claim that there were dueling slates of electors from the targeted states and negotiate
a solution to defeat Biden.*!* On the same day, the defendant resumed almost daily direct contact
with who maintained a podcast that disseminated the defendant’s false fraud claims.?°
On December 14, podcast focused on spreading lies about the defendant’s fraudulent
electors—including the false claim that their votes were merely a contingency in the event the
defendant won legal challenges in the targeted states.?!4
On December 16, traveled to Washington with a group of private attorneys who
had done work for the defendant’s Campaign in Wisconsin for a photo opportunity with the
defendant in the Oval Office.*!? During the encounter, the defendant complained about Wisconsin
310 GA 329 ).
312 GA 1486 ); GA 1487-1493

).
314 GA 1979
315 GA 1494 ); GA. 1495
- GA 1498-1500
Supreme Court Justice who two days earlier had cast the deciding vote in rejecting the
defendant’s election challenge in the state.*’° As the group was leaving, the defendant spoke
directly—and privately—to 317
As late as early January, the conspirators attempted to keep the full nature of the fraudulent
elector plan secret. On January 3, for instance, in a private text message exchange, MAG@aE wrote
to “Careful with your texts on text groups. No reason to text things about electors to
anyone but MA@C@#MM and me.” PR@@SME responded, “K,” and followed up, “I’m
probably a bit paranoid haha.” FRQ@@S¥i wrote, “A valuable trait!”>1®
E. The Defendant Attempted to Persuade Pence to Reject Votes Cast by Duly-

Appointed Electors and Choose the Defendant’s Fraudulent Ones
As the defendant’s various attempts to target the states failed, and the January 6
congressional certification approached, the defendant and co-conspirators tumed their attention to
Pence, who as President of the Senate presided over the certification proceeding. In service of a
new plan—to enlist Pence to use his role to fraudulently alter the election results at the January 6
certification proceeding—the defendant and his co-conspirators again used deceit. They lied to
Pence, telling him that there was substantial election fraud and concealing their orchestration of
the plan to manufacture fraudulent elector slates, as well as their intention to use the fake slates to
attempt to obstruct the congressional certification. And they lied to the public, falsely claiming
that Pence had the authority during the certification proceeding to reject electoral votes, send them
316 GA 497-498
317 GA 498-500 ).
318 GA 1501-1502 ).
- 59
-
back to the states, or overturn the election—and that Pence agreed he had these boundless powers.
With these lies, the defendant created the tinderbox that he purposely ignited on January 6.
The defendant first publicly turned his sights toward January 6 in the early morning hours
of December 19. At 1:42 a.m., the defendant posted on Twitter a copy of a report falsely alleging
fraud and wrote, ““. . . Statistically impossible to have lost the 2020 Election. Big protest in D.C.
on January 6th. Be there, will be wild!”?!9 When S@@SM learned about the Tweet, he sent a
link about it to another of the Wisconsin attorneys who had met with the defendant in the Oval
Office on December 16 and wrote, “Wow. Based on 3 days ago, I think we have unique
understanding of this.”*?° Later on December 19, the defendant called Pence and told him of plans
for a rally on January 6 and said that he thought it would be a “big day” and good to have lots of
their supporters in town.?”!
The defendant and his co-conspirators recognized that Pence, by virtue of his ministerial
role presiding over the January 6 congressional certification, would need to be a key part of their
plan to obstruct the certification proceeding. On December 23, in a memorandum drafted with
assistance, Cea outlined a plan for Pence to “gavel” in the defendant as the winner
of the election based on the false claim that “7 states have transmitted dual slates of electors to the
President of the Senate,” and proposed that Pence announce that “because of the ongoing disputes
in the 7 States, there are no electors that can be deemed validly appointed in those States.”???
321 GA 440-441 ( ); GA 1020 (Pence, So Help Me God p. 437).

322 GA 1506-1508 (
; GA 1510-1512 (
); GA 1513-1515 (
emphasized concealment, writing that “the main thing here” was that Pence act without
“asking for permission—either from a vote of the Joint Session or from the Court.”?”
COA memorandum stood in stark contrast to concessions he had previously made
about the Vice President’s lack of authority in the certification proceeding. Two months earlier,
on October 11, he had written to a colleague that neither the Constitution nor the ECA provided
the Vice President with discretion in the counting of electoral votes or permitted him to “make the
determination on his own.”?2* And just one day earlier, on December 22, when asked by other
private attorneys to provide views on a draft complaint that would, if filed, have raised the issue
of the Vice President’s authority on January 6, had recommended that the complaint not
be filed.*”? He wrote that “the risk of getting a court ruling that Pence has no authority to reject
the Biden-certified ballots [is] very high.”?°
On the evening of December 23, after shared FC and plan with
the defendant, the defendant publicly re-tweeted a document called “Operation Pence Card,”
which, like memorandum, advocated that Pence block the lawful certification of the
legitimate electoral votes.**’ Also on December 23, emailed fi g4mm asking to speak to
the defendant “to update him on our overall strategic thinking.”*7* The following day, December
324 GA 1517 ).
329 GA 1521 ).
326 Td.
327 GA 1005 ; GA_ 752, 754

> GA 1523
); GA 883 (Donald J. Trump Tweet 12/23/2020); GA 449
GA 1022-1023 (Pence, So Help Me God p. 439-40); see also GA 1524-1527
a).
-6l-
24, the defendant called and they spoke for forty minutes.*”? Then on December 25,
CORE proposed in a text message to and that Pence permit an unlimited
filibuster of the certification, in violation of the ECA, and ultimately gavel in the defendant as
president.*7° When asked, “Is Pence really likely to be on board with this?”
responded, “Let’s keep this off text for now.”??!
From that point on, the conspirators plotted to manipulate Pence.
and worked in concert to enlist Pence to act unlawfully, and to rachet up public
pressure from the defendant’s supporters that he do so. The defendant began to directly and
repeatedly pressure Pence at the same time that he continued summoning his supporters to amass
in Washington, D.C., on the day of the congressional certification. On December 25, when Pence
called the defendant to wish him a Merry Christmas, the defendant raised the certification and told
Pence that he had discretion in his role as President of the Senate.**” Pence emphatically
responded, “You know I don’t think I have the authority to change the outcome.”’*?? The next day,
the defendant tweeted, “Never give up. See everyone in D.C. on January 6".”?34 He also tweeted
false fraud claims: “Time for Republican Senators to step up and fight for the Presidency, like the
Democrats would do if they had actually won. The proof is irrefutable! Massive late night mail-
in ballot drops in swing states, stuffing the ballot boxes (on video), double voters, dead voters,
fake signatures, illegal immigrant voters, banned Republican vote watchers, MORE VOTES
THAN ACTUAL VOTERS (check out Detroit & Philadelphia), and much more. The numbers
329 GA 755 ).
330 GA 1529 ).
331 Td.
32 Ga 450-452 QR). GA. 1024-1025 (Pence, So Help Me God p. 441-42).

333 Td.
-62-
are far greater than what is necessary to win the individual swing states, and cannot even be
contested. Courts are bad, the FBI and ‘Justice’ didn’t do their job, and the United States Election
System looks like that of a third world country. Freedom of the press has been gone for a long
time, it is Fake News, and now we have Big Tech (with Section 230) to deal with. But when it is
all over, and this period of time becomes just another ugly chapter in our Country’s history, WE
WILL WIN!!!3°
On December 28, and MRG@GE exchanged text messages in which
expressed concern that Gohmert v. Pence—a lawsuit filed the day before that asserted
that Pence had discretion to choose electoral votes during the certification proceeding—would
prompt a federal court to publicly reject, and thus preclude, the plan that the conspirators were
advancing in private.**° Thereafter, at 11:00 a.m. on January 1, the defendant called Pence to
berate him because he had learned that Pence had filed a brief opposing the relief sought in
Gohmert.*?’ When Pence explained, as he had before, that he did not believe that he had the power
under the Constitution to decide which votes to accept, the defendant told him that “hundreds of
thousands” of people “are gonna hate your guts” and “people are gonna think you’re stupid,” and
berated him pointedly, “You’re too honest.”?78 Immediately before the call, the defendant had
spoken separately to (from 10:06 a.m. to 10:14 a.m.) and (from 10:36 a.m. to
10:46 a.m.), and late that afternoon, the defendant spoke separately with CC2 Eid
).
337 GA 453 : GA 1026-1027 (Pence, So Help Me God p. 446-47); GA

758 )-
338 GA 1026 (Pence, So Help Me God p. 446).
- 63
-
Cee? Within hours of the call with Pence, the defendant reminded supporters to travel to
Washington for the certification proceeding, tweeting, “The BIG Protest Rally in Washington,
D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!”*°
The next day, on January 2, and MSGR appeared on
podcast.*#! When ia asked whether the January 6 certification would be “a climactic battle,”
responded that “a lot of that depends on the courage and the spine of the individuals
involved.”3* The defendant spoke im CCl shortly after his appearance on the podcast.**? That
afternoon, worked to arrange a meeting among the defendant, and Pence in
order to enlist Pence to misuse his role as President of the Senate at the certification proceeding.*4
When texted HRM about the meeting, | Pl RG had just finished a phone call
with the defendant—treiterated that the defendant wanted Pence “briefed” by
immediately.**? Thereafter, the defendant called Pence, informing him “that he had spent the day
speaking to a secretary of state, state legislators, and members of Congress.”*4° (As described
supra pp. 29-31, the defendant spoke with Georgia Secretary of State P33 the same day.)
On the call with Pence, the defendant said he had learned that a U.S. Senator was going to propose
a ten-day delay in the certification proceeding, and told Pence, “you can make the decision” to
342 GA 1981 at 24:56-25:40

343 GA 761-762
344 GA 1006-1008, 1011-1014 ).
349 GA 763
).
346 GA 1027 (Pence, So Help Me God p. 447); GA 1532-1533 iy
Gq
a.
- 64
-
delay the count for ten days.**’” The defendant then referred Pence to MRQ@Q#4Ml for the first time
and asked if Pence would meet with him.***
On January 3, the defendant again told Pence that at the certification proceeding, Pence
had the absolute right to reject electoral votes and the ability to overturn the election.**? Pence
responded that he had no such authority, and that a federal appeals court had rejected a lawsuit
making that claim the previous day.*°° Then, the defendant took to Twitter to again falsely claim
that fraud had permeated the election: “Sorry, but the number of votes in the Swing States that we
are talking about is VERY LARGE and totally OUTCOME DETERMINATIVE! Only the
Democrats and some RINO’S would dare dispute this - even though they know it is true!”??! The
same day, circulated a second memorandum that included a new plan under which, in
violation of the ECA, the Vice President would send the elector slates to the state legislatures to
determine which slate to count.?>”
The meeting that had organized so that the defendant and (eo could enlist
Pence to reject Biden’s legitimate electoral votes was scheduled late in the afternoon of January
4.3°3 In advance of the meeting, and gathered at the Willard
Hotel near the White House, and from there, called and spoke with the defendant.**
347 Td.
348 Td.
a.
350 Td.

392 GA 1537-1543
3°93 GA 1007-1012 ); GA 766
394 GA 1904 at row 909 - GA 1011

); GA 765
1544-1546 ); GA 1547-1548
-65-
When Qe arrived at the White House for the meeting, I confronted CO about
the legal basis for his proposal.**> JEQEI went line by line through ZG’ s second memo,
and §@@~MH conceded that no court would support it; in response, I warned Coo
that pressing his admittedly unlawful plan would cause “riots in the streets.”°*° JM then
spoke to the defendant, telling him that the theory that coo and others were promoting would
not work, and that had acknowledged that it was “not going to work”; the defendant
responded, “other people disagree” but did not identify those other people.*°’ JR also
pointed out to the defendant that ZG’ s theory regarding a strategic Democratic plan to subvert
the election was inconsistent with other allegations that had been floating around about al
and foreign interference.**®
The meeting among the defendant, IZ@@WMH, Pence, and Pence staffers JR and
GE began around 4:45 p.m.*°? No one from the defendant’s White House Counsel’s Office
attended.**’ During the meeting, the defendant asked to explain his plan to Pence.**!
presented two options: Pence could unilaterally decide objections to electors, or
alternatively, in the plan that had devised the prior day, Pence could send the elector
slates to the targeted states’ legislatures to determine which electors’ votes should be counted.>©
In the defendant’s presence, in response to Pence’s questioning, admitted that the ECA
355 GA 215-22] IE). GA 1901 atrow 5745

ry —“=‘—SsSsSCs@
SGA 215-215
7 GA 219-223 TS
GA 224 TS
9 CA 16 IS: CA 274-275 a
© GA 120-17 TT
GA 276-27 SE; CA 579-580 rs
GA 21627 IE: CA 580-535 a
- 66
-
forbade what he proposed and that no one had tested CO new plan to send elector slates to
state legislatures for review.** Nonetheless, the defendant repeatedly expressed a preference that
Pence unilaterally reject valid elector slates.*TM
Throughout the meeting, the defendant repeated his knowingly false fraud claims as a
purported basis for Pence to act illegally. Pence’s five pages of contemporaneous notes from the
meeting reflect that the defendant said, “when there’s fraud the rules get changed”; “bottom line —
won every state by 100,000s of votes”; “this whole thing is up to MP”; “has to do w/you — you can
be bold”; and “t[igh]t to do whatever you want to do.”°® The meeting concluded with Pence—
firm and clear—telling the defendant “I’m not seeing this argument working.”*®° Nonetheless, the
defendant requested that Pence’s staff meet with again to discuss further, and Pence
agreed.*°”
The conspirators were undeterred. Immediately after leaving the White House,
gathered with and back at the Willard Hotel.*°® Over the days that followed,
these conspirators strategized on how ea could influence Pence through the Vice President’s
counsel, and normalized the unlawful plan by discussing it oy Pl podcast.*® Meanwhile,
the defendant continued to pressure Pence publicly.
363 GA 1028-1029 (Pence, So Help Me God

p. 450-51); GA 278-279 a
364 GA 277 ); GA 582-584
36° GA 1549-1553 ).
367 GA 1028-1029 (Pence, So Help Me God p. 450-51).
36° GA 766 ; GA 1011-1014
; GA 1983 at 36:55—-37:43 ); GA 1984 at 9:09-9:55

For his part, immediately upon leaving the meeting with Pence, the defendant traveled to
Dalton, Georgia, to speak at a political rally at the invitation of two U.S. Senators engaged in run-
off elections there.*’”° During his political speech, the defendant promoted many of the same
falsehoods that he previously had been informed were untrue. He said, “they’re not taking the
White House. We’re gonna fight like hell, I'll tell you right now,” and remarked, “I hope Mike
Pence comes through for us, I have to tell you. I hope that our great Vice President, our great Vice
President comes through for us . . . Of course, if he doesn’t come through, I won’t like him quite
as much.”?”! He also used the Dalton Campaign speech as a call to action to his own supporters,
telling the crowd that “[i]f you don’t fight to save your country with everything you have, you’re
ft 22372
not going to have a country le and demanded that his supporters take action to prevent what
he falsely called “the outright stealing of elections, like they’re trying to do with us,”?”
emphasizing, we “can’t let that happen.”?”
The next morning, on January 5, the defendant spoke on the phone with | Pl i Less
than two hours later, on his podcast, said in anticipation of the January 6 certification
proceeding, “All Hell is going to break loose tomorrow.”?7°
Also on the morning of January mm CCQ participated in a federal court hearing in 7rump
v. Kemp,*” the Georgia lawsuit against and in which the defendant had
0 GA 767 GS). GA 930-931 (Donald J. Trump Tweet

01/04/2021).
371 GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).
379 GA 768 ).
378 GA 1984 at 29:00-29:50 ).
377 Transcript of Mots. Hr’g, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021), ECF No.
21.
- 68 -
signed a false verification days earlier.*”® on the defendant’s behalf, asked the federal
court to decertify the presidential election in Georgia and declare that the state legislature may
choose the state’s electors.*’”” During the hearing, the federal court denied the relief requested.*®°
Immediately following the federal court’s rejection of the legal basis for the conspirators’
plan, went to the meeting that the defendant had requested that Pence’s staff, Baska and
| PS | take.**! At the outset, changed his tack and advocated that Pence simply reject the
Biden electors outright.*** This was contrary to his primary recommendation the day before for
Pence to send the slates to the state legislatures, but consistent with the preference the defendant
had expressed.?®? made additional concessions during this meeting. For example,
agreed that the Supreme Court would unanimously reject his proposed action, consistent
historical practice since the Founding was that the Vice President never asserted authority to reject
electors, no reasonable person would want the Constitution read that way because the office would
never switch political parties, no state legislature appeared poised to try to change its electors, and
if Democrats were to claim the same authority, MR@@4Ml would not credit it.**4 expressed
to that the defendant’s plan would result in a “disastrous situation” where the election
378 Complaint at 33-34, Trump v. Kem , No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1;
GA 1152
379 Transcript of Mots. Hr’g at 29-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021),
ECF No. 21.
380 Transcript of Mots. Hr’g at 55-56, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021),
ECF No. 21.
381 GA 1563
382 GA 283-284 ); GA 1939 at 1:20:00—1:21:30 (Video of Select
Committee Testimony 06/16/2022); GA 1564 ).
383 GA 283-284 ); GA_ 1939 at _1:20:00—1:21:30 (Video of Select

Committee Testimony 06/16/2022); GA 1564 ).
384 GA 1939 at 56:53-57:36, 1:05:59-1:07:02, 1:21:55—1:29:50 (Video of Select Committee
Testimony 06/16/2022); GA 267-272 ).
might “have to be decided in the streets.”*®° Having failed to enlist M4 in the criminal
conspiracy, told him that the “team” was going to be “really disappointed.”*8° The
“team,” in fact, was disappointed; after updated on the meeting,
confirmed fm?) Pl | that the “Pence lawyer’”—that is, | P58 ES “totally against us,” prompting
to respond, “Fuck his lawyer.”°8’ That same day, received an email confirming
what he already had admitted to no chamber of any legislature in any state, including
Arizona, Georgia, Pennsylvania, and Wisconsin, was requesting that its electoral votes be returned
to the state for review.**®
Meanwhile, who had traveled to Washington as directed by the defendant’s
public messages, obtained duplicate originals of the fraudulent certificates signed by the
defendant’s fraudulent electors in Michigan and Wisconsin, which they believed had not been
delivered by mail to the President of the Senate or Archivist.?®? received these duplicates
from Campaign staff and surrogates, who flew them to Washington at private expense.*”° He then
389 GA 1939 at 1:26:01—1:26:32 (Video of Select Committee Testimony 06/16/2022).

386 GA 289-290 ).
387 GA 1014
388 GA 1565-1567
°° GA 1568-1574 ; GA 1575
GA_ 1581-1582 GA 1583-1585

); GA 1586-1589
~ GA 1590-1593
); GA 1595-1596
399 GA 1601-1607 ); GA 1608 Ga

).
-70-
hand-delivered them to staffers for a U.S. Representative at the Capitol as part of a plan to deliver
them to Pence for use in the certification proceeding.*”!
The defendant did not leave the pressure campaign to his co-conspirators; he redoubled his
own efforts. On January 5 at 11:06 a.m., shortly before meeting with eee the
defendant tweeted, “The Vice President has the power to reject fraudulently chosen electors”?””
and designate the defendant as the winner of the electoral college vote. That afternoon, the
defendant met privately with Pence in the Oval Office.*?? During the meeting, the defendant once
again told Pence, “I think you have the power to decertify.”?°* When Pence was unmoved, the
defendant threatened to criticize him publicly (“I’m gonna have to say you did a great
disservice”);*”° this concerned | P8 to whom Pence had relayed the defendant’s threat, to the
point that he alerted Pence’s Secret Service detail.*°° Next still, the defendant initiated a phone
call with Pence, | PS | and one or two other private attorneys—likely including
CCl and again raised the scenario of the Vice President sending the elector slates to state
legislatures.?8 again pointed out that such a strategy violated the ECA, and Pence
reaffirmed that he did not believe he had the authority to do so.*”? Shortly after the call that
391 GA 1583-1585 :
1586-1589 ; GA 1595-
1596

33 GA 461-462 QM); GA 1031-1032 (Pence, So Help Me God p. 453-54).
394 GA 461, 463 - GA 1031-1032 (Pence, So Help Me God p. 453-54);
GA 1656 ).
39° GA 461, 463-470 : GA 1031-1032 (Pence, So Help Me God p. 453-
54); GA 1656
396 GA 586-587 ).
GM). GA 1659 ).
399 Td.
-7]-
evening, at 5:43 p.m., the defendant tweeted, “I will be speaking at the SAVE AMERICA RALLY
tomorrow on the Ellipse at 11AM Eastern. Arrive early — doors open at 7AM Eastern. BIG
CROWDs!74
The defendant continued his pressure campaign on Pence that evening. After a New York
Times article that night detailed the afternoon’s private conversation in which Pence had rejected
the defendant’s demand to act unlawfully, the defendant directed gag to issue a statement
rebutting it and approved the statement at 9:28 p.m.*°! Minutes later, the defendant called Pence
and told him, “you gotta be tough tomorrow.’*°? After concluding the call with Pence, the
defendant sequentially spoke to followed by om Then, at around 10:00 p.m. that
night, the defendant issued the public statement, which read “the Vice President and I are in total
agreement that the Vice President has the power to act”**—a statement that the defendant knew
was a lie from Pence’s repeated and firm rejections of his efforts, but that gave false hope to the
defendant’s supporters arriving in the city at the defendant’s request, and maximized pressure on
Pence.
F. The Defendant Caused Unlawful Conduct on January 6 and Tried to Take

Advantage of the Riot that Ensued
The defendant continued his intense pressure campaign against the Vice President into the
early morning hours of January 6. Around 1:00 a.m., the defendant tweeted, falsely: “If Vice
President @Mike Pence comes through for us, we will win the Presidency. Many States want to

401 GA 769 ; GA_ 1660-1661
; GA 1662 ); GA 384-386
).
402 GA 770 ); GA 1033 (Pence, So Help Me God p. 455).
404 GA 1663 (Donald J. Trump Campaign Statement 01/05/2021).
-72-
decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process
NOT approved by their State Legislatures (which it must be). Mike can send it back!”*” At
8:17 a.m., as the supporters he had summoned to the city gathered near the White House,*°° the
defendant again falsely tweeted about the certification: “States want to correct their votes, which
they now know were based on irregularities and fraud, plus corrupt process never received
legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN.
Do it, Mike, this is a time for extreme courage!”*°’
Later that morming, @@3 worked with another attorney for the defendant, who
contacted a U.S. Senator to ask him to obtain the fraudulent Wisconsin and Michigan documents
from the U.S. Representative’s office and hand-deliver them to the Vice President 408 When one
of the U.S. Senator’s staffers contacted a Pence staffer by text message to arrange for delivery of
what the U.S. Senator’s staffer had been told were “[a]lternate slate[s] of electors for MI and WI
because [the] archivist didn’t receive them,” Pence’s staffer rejected them.*”
At 11:15 am., shortly before traveling to the Ellipse to speak to his supporters, the
defendant called Pence and made one last attempt to induce him to act unlawfully in the upcoming
session.*!° When Pence again refused, and told the defendant that he intended to make a statement
to Congress before the certification proceeding confirming that he lacked the authority to do what

406 GA 1929 at 02:16:45 (Video of Ellipse Rally 01/06/2021).
408 GA 1664 ); GA 55-56
; GA 102-103 GA 262-263
).
409 GA 1665-1666 ); GA 1667 Gl
410 GA 359
-
- 73
the defendant wanted, the defendant was incensed.*!! He decided to re-insert into his Campaign
speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the
certification.*!* And the defendant set into motion the last plan in furtherance of his conspiracies:
if Pence would not do as he asked, the defendant needed to find another way to prevent the
certification of Biden as president. So on January 6, the defendant sent to the Capitol a crowd of
angry supporters, whom the defendant had called to the city 413 and inundated with false claims of
outcome-determinative election fraud, to induce Pence not to certify the legitimate electoral votes
and to obstruct the certification.*!*
At the Ellipse Campaign rally, and SAQ@@4E spoke just before the defendant. In
his rally speech, sought to cloak the conspiracies in an air of legitimacy, assuring the
defendant’s supporters that “every single thing that has been outlined as the plan for today is
perfectly legal,”*!° and introducing JCC as a “preeminent constitutional scholar[]” who would
further explain this plan.*!© He falsely claimed that legislatures in five states were “begging” to
have their electoral ballots returned.*!” then asserted that Pence could “decide on the
411 GA 371-373 ); GA 227-228 );

GA 471-472 “GA 1668-1669 ;
412 GA 405-406 - GA 1670

- GA 638-642 ; GA 1680
: ).
413 See, e.g, GA 886-887 (Donald J. Trump Tweet 12/26/2020); GA 897-898 (Donald J. Trump
Tweet 12/27/2020); GA 899-900 (Donald J. Trump Tweet 12/30/2020); GA 905-906 (Donald J.
Trump Tweet 01/01/2021); GA 907-908 (Donald J. Trump Tweet 01/01/2021); GA 913-914, GA
1891 (Donald J. Trump Tweet 01/01/2021); GA 928-929 (Donald J. Trump Tweet 01/04/2021):
GA 932-933 (Donald J. Trump Tweet 01/05/2021); GA 938-939 (Donald J. Trump Tweet
01/05/2021).
414 See GA 1928 (Video of Ellipse Rally 01/06/2021).
41° GA 1928 at 2:19:27 (Video ofEllipse Rally 01/06/2021).
-74-
validity of these crooked ballots”! and told the crowd, “[IJet’s have trial by combat.””419
in his speech, claimed that Pence must send electoral votes to state legislatures for “the American
22420
people [to] know whether we have control of the direction of our government or not, and
decried that “[w]e no longer live in a self-governing republic if we can’t get the answer to this
question.””47!
When the defendant took the stage at the Ellipse rally to speak to the supporters who had
gathered there at his urging, he knew that Pence had refused, once and for all, to use the defendant’s
fraudulent electors’ certificates. The defendant also knew that he had only one last hope to prevent
Biden’s certification as President: the large and angry crowd standing in front of him. So for more
than an hour, the defendant delivered a speech designed to inflame his supporters and motivate
them to march to the Capitol.*””
The defendant told his crowd many of the same lies he had been telling for months—
publicly and privately, including to the officials in the targeted states—and that he knew were not
true. In Arizona, he claimed, more than 36,000 ballots had been cast by non-citizens.*? Regarding
Georgia, the defendant repeated the falsehood that more than 10,300 dead people voted,** and he
raised the publicly disproven claims about fraud by election workers at State Farm Arena.*”? He
made baseless allegations of dead voters in Nevada and Michigan and false claims about illegally

419 Td.

422 GA 1928 at 3:31:20-4:42:50 (Video of Ellipse Rally 01/06/2021).
424 GA 1133-1134 (Ellipse Rally Speech Draft Tr. 01/06/2021).
-75-
counted votes in Wisconsin.*2° And in Pennsylvania, he claimed that there were hundreds of
thousands more ballots counted than there had been voters. *?’
The defendant also lied to his rally supporters when he claimed that certain states wanted
to reconsider or recertify their duly appointed electors. For instance, he said, “By the way,
Pennsylvania has now seen all of this. They didn’t know because it was so quick. They had a
vote. They voted. But now they see all this stuff, it’s all come to light. Doesn’t happen that fast.
And they want to recertify their votes. They want to recertify. But the only way that can happen
is if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.”4”® In response
to this lie about Pennsylvania, the defendant’s crowd began to chant, “Send it back! Send it
back!?42?
The defendant gave his supporters false hope that Pence would take action to change the
results of the election and claimed that Pence had the authority to do so. He falsely told the crowd
that Pence could still “do the right thing’*°° and halt the certification, and he extemporized lines
about the Vice President through the speech, including the indirect threat, “Mike Pence, I hope
you’re gonna stand up for the good of our Constitution and for the good of our country. And if
you’
re not, I’m gonna be very disappointed in you. I will tell you right now. I’m not hearing good
stories.”43!

#27 GA 1127, 1137 (Ellipse Rally Speech Draft Tr. 01/06/2021).
2° GA 1896 at 5:10 (Rallygoer Video 01/06/2021).
431 Compare GA 1133 (Ellipse Rally Speech Draft Tr. 01/06/2021) with GA 1683 (Ellipse Rally
teleprompter speech excerpt).
- 76 -
The defendant galvanized his supporters by painting the stakes as critical and assuring them
that “history [was] going to be made.”**” He made clear that he expected his supporters to take
action, telling them regarding his loss of the election that “we’re not going to let that happen,”**?
calling on them to “fight”*** and to “take back”**° their country through strength, while suggesting
that legal means were antiquated or insufficient to remedy the purported fraud, because “[w]hen
you catch somebody in a fraud, you’re allowed to go by very different rules.”“7° Throughout the
speech—from as early as about fifteen minutes into it and twice in its final lines—the defendant
directed his supporters to go to the Capitol and suggested that he would go with them.**”
The overall impact of the defendant’s speech—aparticularly in light of months of statements
and Tweets falsely claiming election fraud and following on the heels of and ee
speeches—was to fuel the crowd’s anger. For instance, when the defendant told his supporters
that “[w]e will not let them silence your voices. We’re not going to let it happen, 438 the crowd
chanted, “Fight for Trump,” in response.**? When the defendant soon after told supporters that
“we're going to walk down to the Capitol,”*° that they would “never take back our country with

*3 GA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021).
434 See, e.g., GA 1120, 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021).
435 Td.

37 GA 1120, 1140, 1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).
43° GA 1897 at 3:18 (Rallygoer Video 01/06/2021).
-77-
weakness,”“*! and that they had “to show strength and [had] to be strong,”*** members of the
crowd shouted, “Invade the Capitol building!” and, “Take the Capitol!”*”
Thousands of the defendant’s supporters obeyed his directive and marched to the
Capitol,** where the certification proceeding began around 1:00 p.m.** Minutes earlier, Pence
had issued a public statement explaining that his role as President of the Senate did not include
“\nilateral authority to determine which electoral votes should be counted and which should
not.”“© On the floor of the House of Representatives, Pence opened the certificates of vote and
certificate of ascertainment from Arizona, consistent with the ECA. After an objection from a
Senator and Representative, the House and Senate retired to their separate chambers to debate it.**”
Outside of the Capitol building, a mass of people—including those who had traveled to
Washington and the Capitol at the defendant’s direction—broke through barriers cordoning off the
Capitol grounds and advanced on the building.

*** Among these was who had attended
the defendant’s speech from the Washington Monument, marched with the crowd to the Capitol,
and breached the restricted area surrounding the building.**? A large portion of the crowd at the
Capitol—including rioters who violently attacked law enforcement officers trying to secure the
“8 Td.
442 Td.
443 GA 1898 at 00:19 (Rallygoer Video 01/06/2021).
444 See, e.g, GA 1930 at 1:09:30 (Video of Ellipse Rally 01/06/2021); GA 1942 (Video of March
to Capitol 01/06/2021); GA 1941 at 02:10—2:33 (Video of March to Capitol 01/06/2021).
“4° GA 1937 at 20:47 (Video of House Floor 01/06/2021).
446 GA 1685 (Pence Dear Colleague Letter 01/06/2021).
447 GA 1937 at 26:24 (Video of House Floor 01/06/2021).
448 See, e.g., GA 1915 at 3:25 (Video of Capitol Riot 01/06/2021).
44° GA 1687 ( ; GA 1688 (
N; GA 1690 (
); GA 1583-1585 (
-78
-
building—wore clothing and carried items bearing the defendant’s name and Campaign slogans,
leaving no doubt that they were there on his behalf and at his direction.*°°
Beginning at about 1:30 p.m., the defendant settled in the dining room off of the Oval
Office. He spent the afternoon there reviewing Twitter on his phone,*?! while the dining room
television played Fox News’ contemporaneous coverage of events at the Capitol.*”
At 2:13 p.m., the crowd at the Capitol broke into the building, and forced the Senate to
recess.*°? Within minutes, staffers fled the Senate chamber carrying the legitimate electors’
physical certificates of vote and certificates of ascertainment.*°* Next to the Senate chamber, a
group of rioters chased a U.S. Capitol Police officer up a flight of stairs to within forty feet of
where Pence was sheltering with his family.*? As they did so, the rioters shouted at the officer,
in search of public officials, “Where the fuck they at? Where the fuck they counting the votes at?
Why are you protecting them? You're a fucking traitor.”*°° On the other side of the Capitol, the
House was also forced to recess.*”
490 GA 1912 at 56:56 (Video of Capitol Riot 01/06/2021); GA 1924 at 38:48 (Video of Capitol
Riot 01/06/2021); GA 1918 (Video of Capitol Riot 01/06/2021); GA 1919 (Video of Capitol Riot
—GA 1921 at 04:30 (Video of Capitol Riot 01/06/2021); see also GA 2-3 =
=on 168-169 ); GA 292-293

3 GA 1957 at 1:04-1:25 (Video of Senate Wing Door CCTV 01/06/2021); GA 1954 at oe
GA 540, 541-544 ); GA 232, 236
(Video of Senate Floor 01/06/2021).

454 United States v. Hale-Cusanelli, No. 21-cr-37, ECF No. 93 at 38-39 (D.D.C. June 3, 2022)
(Trial Tr. 05/24/2022).
455 GA 1923 (Video of Capitol Riot 01/06/2021); GA 177-178
GA 1916 at 00:50 (Video of Capitol Riot 01/06/2021).

497 GA 1937 at 1:34:00 (Video of House Floor 01/06/2021).
-79-
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.*°* At about 2:20 p.m., video of crowds on the Capitol lawn and
West Terrace were shown alongside a chyron stating, “CERTIFICATION VOTE PAUSED AS
PROTESTS ERUPT ON CAPITOL HILL.”* At 2:21 p.m., an on-the-street reporter interviewed
an individual marching from the Ellipse to the Capitol who claimed to have come to Washington
“because President Trump told us we had something big to look forward to, and I believed that
Vice President Pence was going to certify the electorial [sic] votes and, or not certify them, but I
guess that’s just changed, correct? And it’s a very big disappointment. I think there’s several
hundred thousand people here who are very disappointed. But I still believe President Trump has
something else left.”*°° 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.”4°!
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!”*°* 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
48 GA 1931 at 12:12 (Video of Fox News Coverage 01/06/2021).

4° 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 i).
- 80-
building.*° 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.”4
One minute later, at 2:25 p.m., the Secret Service was forced to evacuate Pence to a secure
location.*©° At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike
Pence!”*°°: “Where is Pence? Bring him out!”*°’; and “Traitor Pence!”*°* Several rioters in those
chanting crowds wore hats and carried flags evidencing their allegiance to the defendant. In the
years since January 6, the defendant has refused to take responsibility for putting Pence in danger,
instead blaming Pence. On March 13, 2023, he said, “Had Mike Pence sent the votes back to the
legislatures, they wouldn’t have had a problem with Jan. 6, so in many ways you can blame him
for Jan. 6. Had he sent them back to Pennsylvania, Georgia, Arizona, the states, I believe, number
one, you would have had a different outcome. But I also believe you wouldn’t have had ‘Jan. 6’
as we call it.” 4°
Rioters—again, many bearing pro-Trump paraphernalia indicating their allegiance—
breached the Senate chamber,*”’ rifled through the papers on the Senators’ desks,*”! 47] and stood on
the dais where Pence had been presiding just minutes earlier.*”” On the House side, rioters watched
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).
46° Tsaac Arnsdorf and Maeve Reston, 7rump 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).
*”2 GA 1955 at 29:15 (Video of Senate Floor 01/06/2021).
-8]
-
as police evacuated lawmakers from the House chamber, smashing glass windows surrounding a
locked door that stood between them and the fleeing Members and staffers.47* At least one rioter
recorded video showing Members being evacuated while the growing crowd screamed at the
Capitol Police officers guarding the locked door to the House Speaker’s Lobby.*”4
Some of the worst violence of the day took place outside of the Capitol on the Lower West
Terrace—the side of the building facing the Ellipse where the defendant had given his speech.
There, scaffolding placed in anticipation of the January 20 Inauguration created a tunnel leading
to a set of double glass doors into the center of the Capitol building. After rioters had forced their
way onto restricted Capitol grounds and past the temporary barriers, including layers of snow
fencing and bike racks, they attacked the law enforcement officers trying to protect the building
with flag poles, bear spray, stolen police riot shields, and other improvised weapons.*”> Of his
time defending the Capitol, one Metropolitan Police Department Officer said:
I feared for my life from the moment I got into that—we were walking into the
crowd, when the Capitol Police officer was leading us into the front line. And
especially when I got sprayed in the middle of the crowd. I—at that point, honestly,
I thought, this is it. Yeah, multiple times . . . You know, you’re getting pushed,
kicked, you know, people are throwing metal bats at you and all that stuff. I was
like, yeah, this is fucking it.4”°
The officer described that the rioters he encountered at the Capitol were wearing both “tactical
gear” and “Trump paraphernalia” and appeared to be acting out of “pure, sheer anger.”47”
473 GA 1938 at 00:05 (Video of House Floor 01/06/2021); GA 1905 (Video inside Capitol Building
01/06/2021).
474 GA 1936 at 06:18 (Video of House Chamber Doors 01/06/2021).
475 GA 1920 (Video of Capitol Riot 01/06/2021); GA 1917 at 54:30 (Video of Capitol Riot
01/06/2021).
Cs 5-6 Ts
OC as
- 82-
In the years after January 6, the defendant has reiterated his support for and allegiance to
39478 99479
rioters who broke into the Capitol, calling them “patriots”’’’ and “hostages,”"’” providing them
financial assistance,‘*° and reminiscing about January 6 as “a beautiful day.”**! Ata rally in Waco,
Texas, on March 25, 2023, the defendant started a tradition he has repeated several times—opening
the event with a song called “Justice for All,” recorded by a group of charged—and in many cases,
convicted—January 6 offenders known as the “January 6 Choir” and who, because of their
dangerousness, are held at the District of Columbia jail.4*? At the Waco Rally, of the January 6
Choir, the defendant said, “our people love those people, they love those people.”“*? The defendant
has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.**4
On the evening of January 6, the defendant and Z@@{¥Mj attempted to exploit the violence
and chaos at the Capitol by having [ee call Senators and attempt to get them to further delay
the certification.** At around 7:00 p.m., placed calls to five U.S. Senators and one U.S.
Representative.**° attempted to confirm phone numbers for Members of Congress whom
478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at
Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).
479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).
480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022).
481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town
Hall 05/10/2023).
482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert
Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United
States v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222
(D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).
483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).
484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).
“SGA 1904 at ow 133 I): CA 169; rs
486 GA 1697 ); GA 1401-1406 x); GA
1698-1701 ).
- §3-
the defendant had directed RQ@QHMi to call.4®’ Ina voicemail that (@@GM intended for one Senator,
said, “I’m calling you because I want to discuss with you how they’re trying to rush this
hearing and how we need you, our Republican friends, to try to just slow it down so we can get
these legislatures to get more information to you. And I know they’re reconvening at eight tonight,
but the only strategy we can follow is to object to numerous states and raise issues so that we can
get ourselves into tomorrow— ideally until the end of tomorrow.”*** He then asked the Senator to
“object to every state” to “give us the opportunity to get the legislators who are very, very close to
pulling their votes.” This concession—that legislatures had not yet asked to review their slates—
stood in contrast to JA@@EE and the defendant’s lies at the Ellipse that they already had.*®? Next,
in a voicemail intended for another Senator, told more lies.*°° He falsely claimed that
Pence’s decision not to use the defendant’s fraudulent electors’ certificates had been surprising,
and that in light of the surprise, “we could usea little time so that the state legislatures can prepare
even more to come to you and say, ‘Please give this back to us for a while so we can fix it.’”4!
then repeated knowingly false claims of election fraud, including that non-citizens had
voted in Arizona and an outcome-determinative number of underage voters had cast ballots in
Georgia.*?”
Although the attack on the Capitol successfully delayed the certification for approximately
six hours, the House and Senate resumed the Joint Session at 11:35 p.m.*”? But the conspirators
487 GA 1702 ).
489 GA 1928 at 2:20:13, 3:37:54 (Video ofEllipse Rally 01/06/2021).
491 77
492 Tq
493 GA 1703 (Congressional Record 01/06/2021).
-84-
were not done. Within ten minutes, at 11:44 p.m., | CC2 fate earlier that day wrote to
that “[t]he ‘siege’ is because YOU and your boss did not do what was necessary” —emailed [REY
again and urged him to convince Pence to violate the law, writing, “I implore you to consider one
more relatively minor violation [of the ECA] and adjourn for 10 days to allow the legislatures to
finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal
activity that has occurred here.”’44
At 3:41 a.m. on January 7, as President of the Senate, Pence announced the certified results
of the 2020 presidential election in favor of Biden.*”
IL. Legal Framework
In Trump, the Supreme Court held that former presidents are immune from prosecution for
core official acts, enjoy at least a rebuttable presumption of immunity for other official acts, and
have no immunity for unofficial acts, and remanded to this Court for further proceedings consistent
with its holding. 144 S. Ct. at 2327, 2332, 2347. This section sets forth the applicable legal
principles and then Section III applies them to the categories of conduct that the superseding
indictment alleges and that the Government intends to prove at trial in order to demonstrate that
none of the defendant’s conduct is immunized.
In Zrump, the Supreme Court announced the principles that govern a former President’s
claim of constitutional immunity from federal criminal prosecution. The Supreme Court divided
presidential acts into three categories: (1) core presidential conduct that Congress has no power to
regulate and for which a former President has absolute immunity; (2) other official presidential
acts for which the President has at least presumptive immunity; and (3) unofficial conduct for
499 GA 1925 at 19:14, 20:34 (Video of Congress Joint Session 01/06/2021); GA 1704 at 41
(Congressional Record 01/06/2021).
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which the President has no immunity. /d. 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. /d. 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.” /d. 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. /d. 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. /d. 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
‘ 999
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. /d. 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.’” /d. 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. /d. 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 1s
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 7rump, 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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corrupt efforts regarding Pence poses no danger to the Executive Branch’s authority or
functioning.
As described below, the Government also intends to introduce at trial evidence regarding
conversations between the defendant and Pence in which they did not discuss Pence’s official
responsibilities as President of the Senate and instead acted in their private capacities as running
mates. And the Government intends to elicit at trial evidence about a Pence staffer’s conversations
with co-conspirator QCM Those conversations were unofficial and therefore not immune.
1. The defendant’s interactions with Pence as the President of the Senate were
official, but the rebuttable presumption of immunity is overcome
The superseding indictment and the Government’s trial evidence include the defendant’s
attempts to influence Pence’s “oversight of the certification proceeding in his capacity as President
of the Senate.” Trump, 144 S. Ct. at2337. These conversations included one-on-one conversations
between the defendant and Pence (see, e.g., supra pp. 49, 63-65, 72-74, describing conversations
on December 5 and 25, 2020, and January 1, 3, 5, and 6, 20214%°), as well as conversations in
which the defendant included private actors, such as co-conspirator in his attempts to
convince Pence to participate in the conspiracies (see, e.g., supra pp. 66-67 and 71-72, describing
conversations on January 4 and 5, 2021).
The Supreme Court held that discussions between the defendant and Pence conceming
Pence’s role at the certification proceeding qualify as official conduct, and therefore are subject to
496 The Government’s factual proffer also describes a conversation between the defendant and
Pence on December 19—the same day that the defendant issued his “will be wild!” Tweet calling
supporters to Washington—in which the defendant told Pence that it would be good to have lots
of their supporters in town on January 6. See supra pp. 60. At trial, the Government intends to
use this unofficial portion of the conversation, held between running mates, but not Pence’s
response, which included a reference to the certification proceeding on January 6. GA 440-441
es GA 1020 (Pence, So Help Me God p. 437). See infra p. 145-146.
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a rebuttable presumption of immunity, because they involved “the President and the Vice President
discuss[ing] their official responsibilities.” /d. 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.” Jd.
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.” Jd. 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. /d. 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.
“TW ary of ‘cabal, intrigue, and corruption,’” the Framers “specifically excluded from service as
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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 IT 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. I, § 1, cl. 2. Asa
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.”*?’ 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.*”? Moreover, Congress has
97 GA 1685 (Pence Dear Colleague Letter 01/06/2021).

8 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
99 66.
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.” Jd. § 15(b)(2).*”? 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
49° 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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President’s agenda in Congress,” by casting tiebreaking votes on legislation or nominations. Jd.
at 2337. None of these legitimate Executive Branch functions would be chilled or affected at all.
Lastly, the fact that the defendant regularly included other private actors, such as his private
attorney and co-conspirator in some conversations to attempt to pressure Pence
(Superseding Indictment, ECF No. 226 §§ 75-76; supra pp. 66-67, 71-72) strengthens the
conclusion that prosecuting the defendant for his actions using to help recruit Pence into
the conspiracies does not infringe on any Executive Branch authority or function. As set forth in
Section I, private co-conspirators worked to schedule the January 4 meeting at which
attempted to pressure Pence. Although White House Counsel was invited to the
meeting, when he arrived to attend, the defendant explicitly excluded him from it—meaning that
the only attorney attending the meeting for the defendant was his privately-retained
counsel. In telling, when arrived at the Oval Office for the meeting, the
defendant “said words . . . indicating he didn’t want me at the meeting.” It is hard to imagine
stronger evidence that conduct is private than when the President excludes his White House
Counsel and only wishes to have his private counsel present.
Next, the phone call on January 5 that the defendant and made to Pence,
and iy was the result of the private co-conspirators’ failure to convince and | PS | to do
as urged in the meeting on the morning of January 5 that and [23m took at the
defendant’s request. The defendant’s decision to include private actors in the conversations with
Pence about his role at the certification makes even more clear that there is no danger to the
Executive Branch’s functions and authority, because the oom conversations had no bearing on
any Executive Branch prerogative. Instead, all of this conduct objectively benefitted the defendant
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in his private capacity as a candidate. The Court should therefore find the presumption of
immunity to be rebutted. And because the presumption is rebutted, any participant in the meeting
or phone call—including Pence, and feel can testify about it at trial.
2. The defendant’s interactions with Pence as a running mate were unofficial
At trial, as indicated supra pp. 12-14, the Government intends to introduce evidence of
private phone calls or in-person meetings (which occasionally included Campaign staff) that the
defendant had with Pence in their unofficial capacities, as running mates in the post-election
period. These conversations were not described in the original indictment nor analyzed by the
Supreme Court in its opinion, nor are they described in the superseding indictment. In these
conversations, the defendant and Pence discussed their electoral prospects, election-related
litigation, and the possibility of the defendant running again in 2024 if his legal challenges failed.
For example, Pence “tried to encourage” the defendant “‘as a friend,’ when news networks
projected Biden as the winner of the election; on other occasions, softly suggested the defendant
“recognize [the] process is over” even if he was unwilling to concede; and encouraged the
defendant to consider running for election again in 2024. Although the defendant and Pence
naturally may have touched upon arguably official responsibilities that were tangential to their
election prospects—for instance, whether the federal government should begin its logistical
transition to prepare for a different Administration®®'—the overall context and content of the
conversations demonstrate that they were primarily frank exchanges between two candidates on a
shared ticket, and the Government does not intend to elicit testimony about any peripheral
discussion of arguably official responsibilities. See Blassingame, 87 F.4th at 17 (“[A] President
Yo See GA 1018 (Pence, So Help Me God p. 432).

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acts in a private, unofficial capacity when engaged in re-election campaign activity.”); see also
United States v. Helstoski, 442 U.S. 477, 488 n. 7 (1979) (in the Speech or Debate context, when
an act contains both protected legislative components and non-protected components, the correct
course is to “excis[e] references to legislative acts, so that the remainder of the evidence would be
admissible”). Together, these discussions show the defendant and Pence considering advice from
their shared Campaign advisors, weighing electoral strategies, and grappling with their loss. Both
men had something to gain by winning re-election, making more notable the persistence of Pence’s
suggestions on how to accept the results of the election without losing face.
Even if the Court determines that these conversations were official, however, the
Government can rebut the presumption of immunity because the use of this evidence poses no risk
to Executive Branch prerogatives. The content of the conversations at issue—the defendant and
Pence’s joint electoral fate and how to accept the election results—have no bearing on any function
of the Executive Branch. See Blassingame, 87 F.4th at 4 (“The Office of the Presidency as an
institution is agnostic about who will occupy it next.”).
3. BSE one-on-one interactions with were unofficial
Pence staffer also participated in a January 5 meeting with and | PS |
(Superseding Indictment, ECF No. 226 § 78a; supra pp. 69-70) and on January 6 engaged in a
lengthy email exchange with (ee (Superseding Indictment, ECF No. 226 § 99; supra p. 85).
These interactions were outside of the defendant’s presence, and the latter was a series of emails.
These conversations were not official, within the meaning of 7rwmp, since the defendant was not
involved and did not otherwise direct MBM actions, and because of the other information above
describing inherently private role.
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B. The Defendant’s Interactions, in his Capacity as a Candidate, with Officials in the

Targeted States
1. The interactions at issue were unofficial
At trial, the Government will introduce evidence that the defendant, in his capacity as a
candidate, contacted state elected officials to use false claims of election fraud to induce their
assistance with the charged conspiracies at the point in the electoral process in which the states
ascertain electors. These communications included calls to MR@U@M the Governor of Arizona; a
meeting with Michigan legislators at the White House; a call oT the Speaker of the Arizona
State House; a call to the Attorney General of Georgia: and a call to P33 the
Georgia Secretary of State. The contacts, sometimes in person and sometimes by phone, were part
of a single course of conduct aimed at lying to and influencing these state officials to alter the
results of the election in the defendant’s favor. In each conversation, the defendant raised false
claims of election fraud when pressing the state officials, often asking them to take steps to prevent
or overturn the ascertainment of Biden’s legitimate electors. And in each case, the state officials
informed the defendant that they had not seen the fraud he was claiming had occurred in their state.
Notably, all of these elected officials were the defendant’s fellow Republicans; he made no efforts
to contact the equivalent individuals holding the same offices in Nevada, New Mexico,
Pennsylvania, or Wisconsin, all of whom were Democrats. Most importantly, as with the
defendant’s plan regarding the fraudulent elector slates, as President, he had no official role in the
process by which states appointed and ascertained their presidential electors. See 144 S. Ct. at
2353 (Barrett, J., concurring) (“The President has no authority over state legislatures or their
leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the
Arizona House Speaker would unconstitutionally intrude on executive power.”). The content,
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form, and context of the defendant’s interactions with these state officials firmly establish that his
conduct was unofficial.
a. Calls to (supra pp. 17-18)
The defendant called then the Governor of Arizona, on or about November 9.°°”
The defendant’s call ry P16 was unofficial and undertaken as a candidate. Throughout the call,
the defendant was engaged in partisan electioneering. His comments focused on the vote count in
Arizona in his particular race, and on the margins and allegations of fraud that could potentially
benefit him personally as a candidate. in turn, responded by giving the defendant his
assessment of the defendant’s electoral prospects in Arizona—prospects that were dim.°°? The
defendant did not ask about the vote counts for, or claim fraud existed in, any race other than his
own. And he raised fraud claims in this context—about whether he could still win Arizona—not
in the larger context of election integrity. The defendant claimed that he would deliver evidence
of election fraud to MSSM then did not.° The call was a surprise to and unusually short
and to the point for the defendant, who usually liked to chat.°” In contrast, according to
this call contained little conversation or pleasantries and was solely focused on the vote count in
506
the Presidential race and the defendant’s fraud claims.
This call must also be considered in the context of the conspirators’ additional pressure
campaign on #283 On other occasions, tried to reach STE but BBL declined to
902 GA 656-658
93 See GA 656-658 . See also GA 667
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accept the calls.°?’ And on November 30, the day | P16 | signed the certificate of ascertainment
declaring Biden’s electors the legitimate ones for Arizona, the defendant (joined by Pence) again
called Hit again raised fraud claims, and again failed to substantiate them.°°? When
failed to do as the defendant demanded, after the call, the defendant attacked publicly
through Twitter.°”?
Each of these communications with Ry was unofficial. The defendant engaged in them
all in his capacity as a candidate, in an attempt to elicit | P16 support in re-installing him as
president.
b. Meeting with Michigan legislators (Superseding Indictment, ECF No. 226

{| 36; supra pp. 31-34)
The defendant’s November 20 Oval Office meeting with Michigan state legislators was
private in nature. During the meeting, the defendant raised claims of election fraud in the state
related specifically and only to his own election, and the legislators explained that the defendant
had lost not because of fraud but because he had underperformed with educated female voters.°!°
Although the meeting took place in the Oval Office—as did many unofficial Campaign meetings
in which the defendant participated in the post-election period’’'—a close examination of all of
the other circumstances surrounding the meeting makes clear that it was a Campaign meeting.
°°7 GA 661 ).
°°8 GA 658-659, 667-668 )
°° GA 831-834 (Donald J. Trump Tweet 11/30/2020); GA 835-836, GA 1892 (Donald J. Trump
Tweet 11/30/2020).
“11 See, e.g., GA 723, 725 ; GA 728-730

; GA 737-738
; GA_ 739-740
The defendant originally initiated the meeting through RNC Chairwoman
a private and partisan actor, and then followed up himself with and [Rei —both
fellow Republicans and strong political supporters of the defendant.?!? Cf Trump, 144 S. Ct.
at 2340 (suggesting the President acts in an unofficial capacity when acting as “party leader’).
Although the defendant did not specify the topic of the meeting in advance, both 4M and
SiMe assumed—correctly—that the defendant wanted to see them to discuss claims of
election fraud related to his own race.?!? Notably, the defendant did not include in the meeting
invitation other Michigan officials who held positions more relevant to the election and
certification—the Governor and Secretary of State—but who were not Republicans.?!4
At the time, public interest and alarm were piqued by news that the defendant was meeting
with legislators from a state where there were pending election disputes and where the Governor
had not yet signed a certificate of ascertainment, and the White House declined to state the topic
of the meeting.°!” During a press conference on the morning of November 20, White House Press
Secretary was asked about the meeting and claimed, “This is not an advocacy
meeting. There will be no one from the Campaign there. He routinely meets with lawmakers from
all across the country.”°!°
| P60 | claim was false. Over the course of the meeting, the defendant dialed in both
BR ZOE despite her request not to participate—and | CCl § 17 The defendant’s Chief of
°12 GA 69-71
913 GA 556-559 ).
514 GA 559-561 mewn ——“‘<‘i‘«‘aR
=
19 GA 1712 (Email from the White House Press Office 11/20/2020).
>16 Td. (Email from the White House Press Office 11/20/2020).
561 ).
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Staff, was present for at least part of the meeting.°!* But besides who
separate from his Chief of Staff duties assisted the defendant with Campaign-related logistics,°!®
no other Executive Branch staff joined the meeting; in fact, according to he and
White House Counsel S34 wanted no part of it.°?° As and had expected,
the defendant was focused on his own vote count in Michigan and on claims of fraud that related
only to him.>”! a private Campaign attorney, then dominated the rest of the meeting with
a monologue of false fraud claims.°”
The only reason that there were topics of conversation other than the defendant’s claims of
election fraud in his race was because the legislators, on their own initiative, brought them up,
including presenting the defendant with a letter on COVID that they had prepared specifically to
have something to talk about other than the defendant’s unsupported election fraud claims®?—an
official portion of the meeting about which the Government does not intend to elicit testimony at
trial. The legislators then took photos with the defendant, and the meeting ended; afterward,
AGE took the group on a tour of the White House.°”*
As planned, after the meeting, and wz released their statement that publicly
disclaimed evidence of outcome-determinative fraud in the election in Michigan.°” The statement
also specified that and Ea had raised with the defendant issues related to Michigan’s
518 GA 560
19 GA 348-358 ).
520 GA 560
°2I GA 560-571 6A 7-5

°?2 GA 567-569 ).
29 GA 75, ll —s GA 1040 (Joint Statement 11/20/2020).

)
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need for federal funds to fight COVID.°”° When the defendant responded to the legislators’ public
statement in a Tweet, the private nature of that message, sent as a candidate seeking to overturn
the results of his own election—“We will show massive and unprecedented fraud!”—further
¢
demonstrates the private nature of the meeting it concemed.°”’ In addition, it was one of six
retweets and replies the defendant sent over an approximately thirteen-minute period, all of which
were focused on allegations of election fraud in his own race.°?® Notably, the defendant did not
conduct similar meetings in this period with legislators in states where he had won or even where
he had lost by large margins, nor did he seek a meeting with the Michigan officials—the Governor
and Secretary of State—who could have provided him with information about the integrity of the
election.°”?
As further context establishing the private nature of this meeting, it was the opening volley
of a larger pressure campaign on the same Michigan legislators by the defendant, his co-
conspirators, and his Campaign. For example, days after this meeting, sent text messages
intended to urge and to help overturn the results in Michigan.*° In the same
time period, the Campaign publicized contact information for and Za (although the
number published for Ee was wrong) and encouraged the defendant’s supporters to flood
their phone lines with complaints.°?
926 Td. (Joint Statement 11/20/2020).

°27 GA 799-800 (Donald J. Trump Tweet 11/21/2020).
°28 GA 801-802 (Donald J. Trump Tweet 11/22/2020); GA 803-804 (Donald J. Trump Tweet
11/22/2020); GA 805-806 (Donald J. Trump Tweet 11/22/2020); GA 807-808 (Donald J. Trump
Trump Tweet 11/22/2020)).
29 GA 559-561 ); GA 71-74
930 GA 1175 ); GA 1177
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-
c. Call with i (Superseding Indictment, ECF No. 226 4 19; supra

p. 19)
The defendant’s call to | P18 | on November 22, 2020, also was unofficial.*?” Along with
his private attorney, the defendant made the call in his capacity as a candidate and pressured
on electoral matters over which neither the defendant—nor even i @&had an official
role.
The context of the call makes its unofficial nature clear. The defendant placed the call to
| P18 | along with @@iG his lead Campaign attorney, and no White House officials participated
in the call.°?? In fact, did most of the talking.°*4 The defendant and HI@@aH were
singularly focused on fraud claims that affected only the defendant, and did not raise any other
races in Arizona.»*° And the content of the call confirmed it was unofficial: the defendant and his
private attorney asked | PIS the defendant’s political ally, to take steps to replace Arizona’s
legitimate electors with illegitimate ones for the defendant—a step that necessarily only affected
the defendant’s race, out of all the races on the same ballot.**°
The call must also be viewed in the larger context of the pressure campaign the defendant
and his co-conspirators put on P18 and other Arizona officials. Immediately after speaking to
the defendant and HIQ@QEM spoke to Arizona State Senate President | Pol A
week later, during the “hotel hearing,” iq and iy failed to bring the promised evidence and
instead admitted “[w]e don’t have the evidence, but we have lots of theories.”°*8 See supra p. 19.
932 GA 735
933 GA 21-22 ).
934 GA 22-31 ).
535 Td.
337 GA 735
538 GA 36 ).
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When | PIB | publicly announced that he would not take extralegal action on the defendant’s
behalf, | P19 and the defendant attacked on Twitter.°°? Then, days before January 6,
made another attempt to convince to act in contravention of the law and his
principles.°*? And just as was done with the Michigan legislators, the defendant’s Campaign and
publicized contact information for and in an attempt to pressure them to
undertake the same actions the defendant and co-conspirators had asked them privately to
perform.TM*! | P18 like others who publicly opposed the defendant’s efforts, was harassed and
threatened.°*
d. Call my P26 (supra pp. 23-24)
The defendant’s call on December 8 to the Georgia Attorney General, also was
private. He undertook it to speak with Bg about Texas v. Pennsylvania, a lawsuit filed by the
Texas Attorney General against Pennsylvania, Georgia, Michigan, and Wisconsin seeking to
prevent those states from certifying their election results in favor of Biden based on a claim that
the manner in which those states had administered their elections had violated the Constitution.°7
The defendant’s interest in Texas v. Pennsylvania was personal and private; the lawsuit
dealt only with the election for the offices of President and Vice President, not the myriad other
races on the same ballots. Indeed, the day after his call with Bg the defendant—uin his personal
capacity and with the assistance of co-conspirator JC as his private attormey—intervened in

12/06/2020).
6a 7 TT
41 GA 915 (Team Trump Facebook Post 01/02/2021); GA 916 (Team Trump Tweet 01/02/2021);
GA 1982 at 22:00 ); see also GA 1713-1715
942 GA 45-47
43 GA 61-64 ); Mot. for Leave to File Bill of Complaint, Texas v.
Pennsylvania, No. 22-O-155 (S. Ct. Dec. 7, 2020).
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the suit®“4 and in so doing “affirmatively communicated to the Supreme Court (and the public) that
he was acting and speaking in that matter in his ‘personal capacity’ as a candidate for reelection.”
Blassingame, 87 F .4th at 16.
The defendant initiated the call with hg after a political intermediary laid the groundwork
for it, and immediately raised the lawsuit, which was the principal topic of conversation on the
call.**° Based on [J's estimate and the Presidential Daily Diary, the call lasted about ten minutes
and the defendant placed it at night from his private residence in the White House.**° In fact,
shortly before speaking with RW, the defendant had spoken with ZO. the Texas Attorney
General who had filed the lawsuit,*’ and immediately after speaking with RJ, the defendant
called RMN. the Missouri Attorney General who authored an amicus brief supporting the
lawsuit that sixteen other state attorneys general joined.°®
The speed of the filing of the defendant’s intervention brief the following day echoed what
he told RB: he was “running out of time,”**” presumably because landmark dates in the electoral
process, like December 14 and January 6, were fast approaching. Lastly, the defendant and Pay
also spoke about the importance of their fellow Republican party members, Senators and
MEPL. winning their pending election—further making clear this call was unofficial.*°°
44 Mot. to Intervene, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 9, 2020).
SCA 6 a
a fu
47 GA 742 ); Mot. for Leave to File Bill of Complaint, Texas
v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 7, 2020).
48 GA 742 ); Brief of Missouri et al. as Amici Curiae
Supporting Plaintiff, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 9, 2020).
CA 6 a
°C; 6] a
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-
e. Call to (Superseding Indictment, ECF No. 226 4 33;

supra pp. 28-31)
The defendant’s January 2 call to P33 was unofficial and is not subject to
immunity; its content, form, and context make clear that the defendant undertook it as a candidate
and plaintiff in a private lawsuit in which Zea was a defendant.
has said that the purpose of the call was to discuss the lawsuit,°?! and he acted
accordingly during it. At the outset of the call a made introductions of all the participants
on the defendant’s behalf ea and (ZUR S°?—ai of whom were affiliated with
the Campaign’s litigation efforts, which the defendant brought in his capacity as a candidate for
President of the United States.°°?
Throughout the call, the defendant and his advisors approached the conversation through
his role as a candidate and with a focus on his private lawsuit. For instance, in an apparent
reference to individuals retained for his private lawsuit, the defendant claimed, “We’re going to
have an accurate number over the next two days with certified accountants. But an accurate
number will be given, but it’s, it’s in the fifties of thousands, and that’s people that went to vote
and they were told they can’t vote because they’ve already been voted for.”°°* Some of his false
claims of fraud paralleled claims made in Campaign lawsuits, such as that of a substantial number
of dead and non-resident voters—for example, in 7rump v. Raffensperger, a state court case whose
complaint was appended to the federal suit Trump v. Kemp, the defendant’s complaint asserted
that 4,926 out-of-state voters had cast ballots, while on the call the defendant cited the number
°°? GA 1154 (Tr. of Call 01/02/2021).

°3 Complaint at 1, Zrump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.
°°4 GA 1154 (Tr. of Call 01/02/2021).
- 109
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4,925.>°°> And he deferred to his private attorneys at multiple points throughout the conversation.
For instance, after JRE told the defendant, “the challenge that you have is the data you
have is wrong,” the defendant turned to and asked, “Well, [EZ¥§, how do you respond to
that?”>°° At one point, interjected and invoked the Campaign’s litigation, asking
99557
whether “we can find some kind of agreement . . . to find a path forward that’s less litigious.
And near the end of the call, WM, the defendant’s lead counsel in the lawsuit against
P33 requested “to sit down with your office, and we can do it through purposes of
compromise just like this phone call” to review data.°TM® P33 counsel, (Ea.
responded that [Ws cited numbers were inaccurate, but agreed to meet with him.°°’
The defendant’s call to P33 was purely a private one, which he undertook as a
candidate and the plaintiff in a lawsuit. Indeed, a federal district court has concluded that the
P33 call was a Campaign call rather than official business; when I @4Gl sought
removal to federal court of his criminal case in Fulton County, Georgia, a court in the Northern
District of Georgia issued an order declining to assume jurisdiction because had failed
to meet his burden of showing that his role in the call was official rather than unofficial. See
Georgia v. Meadows, 692 F. Supp. 3d 1310, 1332 (N.D. Ga. 2023), aff'd 88 F. 4th 1331, 1349
(11th Cir. 2023) (petition for cert. filed) (Es participation in the call reflected a clear
attempt to further Trump’s private litigation interests . . . .”) (emphasis in original)); see also
Arizona v. Meadows, No. CV-24-02063-PHX-JJT, 2024 WL 4198384, at *7 (D. Ariz. Sept. 16,
°°> Complaint at 19, Trump v. Raffensperger, No. 2020CV343255 (Ga. Super. Ct. Dec. 4, 2020)
available at: Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1-1 at 12-79.
556 GA 1159 (Tr. of Call 01/02/2021).
57 GA 1157 (Tr. of Call 01/02/2021).
38 GA 1170 (Tr. of Call 01/02/2021).
559 GA 1170-1171 (Tr. of Call 01/02/2021).
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2024) (similarly denying P| notice of removal to federal court of a criminal case in
Arizona related to the defendant’s fraudulent elector plan on the basis that P| conduct in
furtherance of the plan charged by the State “is unrelated to PF 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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in a manner that promotes the President’s view of the public good.” 144 S. Ct. at 2338. The
President remains free, for instance, to urge state officials to mstitute measures to combat a
pandemic or make arrangements to provide emergency relief. This case does not remotely
implicate such official conduct. What neither the President nor any other candidate may do is
further his private campaign for office by using fraudulent means to have state officials certify him
as winner of a presidential election despite the will of the voters. Accordingly, applying criminal
penalties to that conduct will not intrude on any Executive Branch authority or function.
C. The defendant’s efforts, as a candidate, to organize fraudulent electors
1. The conduct at issue was unofficial
The defendant’s conduct with respect to the elector scheme is inherently private, and not
subject to immunity. See 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part) (“Sorting private
from official conduct sometimes will be difficult—but not always. Take the President’s alleged
attempt to organize alternative slates of electors. In my view, that conduct is private and therefore
not entitled to protection.”). The President of the United States has no official responsibilities
related to the organization or voting of electors in the various states—by virtue of the Constitution,
that process takes place in the states according to the laws and procedures set forth by each state.
See U.S Const., Art. IT, § 1, cl. 2. At oral argument before the Supreme Court, the defendant
initially conceded that the plan to submit fraudulent electors directed by the defendant and
was not official. Tr. of Oral Argument at 29-30; Trump, 144 S. Ct. at 2338. The Government
nonetheless sets forth here the context, form, and content of the defendant’s private contacts with
RNC Chairwoman in furtherance of the fraudulent elector plan because the defendant
conversely suggested in the same oral argument that he will argue that those efforts were official.
See 144 S. Ct. at 2338.
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The defendant had two relevant contacts with first, he and co-conspirator
called on December 6 to ask her to ensure that the effort was properly
coordinated (Superseding Indictment, ECF No. 226 § 53; supra p. 50), and second, on the evening
of December 14, Hse emailed the defendant through his executive assistant, ig 42 Ee
inform him that the fraudulent electors had cast votes as he had directed (Superseding Indictment,
ECF No. 226 § 66; supra p. 57).
The defendant and coe call to on December 6 was private. The defendant
placed the call along with a private attorney and co-conspirator, to Mk the
Chairwoman of a political organization whose objective was to elect a broad set of Republicans at
the federal and state level, including the defendant and other allied candidates. #RQQMi was
acting in his capacity as a private attorney for the defendant; on the same day, emailed
with several other private attorneys and wrote, “This is huge — and hugely important. Let’s make
sure the various state electors are aware of the absolute necessity of meeting on the 14", casting
their votes, and otherwise complying with the transmittal requirements of federal law.”°*! Finally,
the content of the call was likewise unofficial. The defendant and HRQ@QM asked to
work with the Campaign, to ensure that the fraudulent electors were properly organized, which she
agreed to do—and did, as is clear from her further contacts with MI@QGMl and HR@G@e recarding
the plan.°
P39 email to the defendant on December 14 was likewise a private communication;
See simply forwarded the defendant an RNC communication summarizing the electoral vote
561 GA 1716-1717
98? GA 323-325 ); GA 1286-1287
; GA 1326-1327
); GA 1288-1290
to inform him that the private task the defendant had given her was complete, and
confirmed that she had relayed the message by writing, “It’s in front of him!”°? As discussed
infra pp. 145-147, when a White House staffer facilitates unofficial conduct by relaying private,
political communications, the private action is not converted to an official one simply because an
Executive Branch aide helps carry it out.
2. Even if the conduct were deemed official, the Government could rebut the
presumption of immunity
In any event, even if the defendant’s efforts to convene fraudulent electors could be
considered official, the presumption would be rebutted because “a President has no legal
authority—and thus no official capacity—to influence how the States appoint their electors,” and
accordingly, there is “no plausible argument for barring prosecution of that alleged conduct.”
Trump, 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part). “[W]hile Congress has a limited
role [in the appointment of Presidential electors], the President has none.” Jd. Accordingly,
applying the criminal law to the defendant’s “alleged attempt to organize alternative slates of
electors,” while properly viewed as prosecution for private conduct, see id., umplicates no authority
or functions of the Executive Branch—and therefore including such conduct in the defendant’s
prosecution poses no danger of intruding on Executive Branch authority or functions. No federal
executive function is impaired by applying criminal law to the alleged conduct of privately
organizing fraudulent slates of electors.
ae.
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Sr all 5 a oe
eee! ges,fafb ob ser, ePan te — feet er y,

‘ oat Pint
ne! Hy
aks Le Sa
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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i. Dalton, Georgia, on January 4, 2021 (supra p. 68)
In his capacity as a candidate, the defendant traveled to Dalton, Georgia, on January 4 at
the invitation of two Republican U.S. Senators who were competing in a run-off election the
following day to retain their seats. The RNC paid for the event.°TM
The White House’s records, including the trip binder that White House staff prepared for
the event and that includes a schedule and manifests, further confirm the private nature of the
Dalton speech.°© The defendant was the only Executive Branch participant in the event—other
attendees were federal and state elected officials, the Chairman of the Georgia Republican Party,
and the founder of Bikers for Trump.*© The trip binder included a Hatch Act disclaimer stating
that “employees of the Federal Government may not use their official title or position when
participating in a political event.”°*’ Its description of the “event” to which the defendant was
traveling was “Remarks at Victory Rally.”°® Similarly, the Presidential Daily Diary from that day
describes that “[t]he President made remarks at the Georgia Senate Victory Rally.”°® This
nomenclature—the use of the phrase “Victory Rally”—is significant. “Victory” necessitates one
political candidate or party defeating another, and rallies are the kinds of events that candidates
hold to excite their supporters and garner votes.
564 GA 1718-1724 ( ); GA 1725-1729

- GA 1730-1732 ( - GA 1733-1736
°® GA 1751-1755 (
567 Td.
568 Td.
-116-
Moreover, the defendant’s Campaign sent numerous fundraising emails before, during, and
after the speech, confirming the event’s private nature. In a January 4 email around 3:00 p.m., the
Campaign sent a fundraising email with the subject line “EPIC Rally in 6 HOURS,” that began,
“President Trump is heading to GEORGIA for a RALLY with Senators evel P27 |
GB. This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU,
are fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff
Election is TOMORROW, and it’s going to take the support of Patriots from all around the Nation
if we’re going to WIN BIG and SAVE America from the Radical Left.”°”° Later, at 9:21 p.m., the
Campaign sent a fundraising email (in the name of the defendant’s son) that began, “My father is
on stage RIGHT NOW in Georgia rallying with Senators and to
DEFEND our Senate Republican Majority. Are YOU watching?’*"' The email reminded voters
that “The Senate Runoff Election is TOMORROW and YOU are the only one who can stop [“the
Left”] from taking over.”°’* Another email at 10:41 p.m. (sent in the name of the defendant) began,
“I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators
GE onc A. The energy of the American People was UNMATCHED and Iknow
we’re going to WIN BIG tomorrow.”
970 See, e.g, GA 1759-1762 (Campaign Fundraising email 01/04/2021); GA 1763-1765

(Campaign Fundraising email 01/04/2021); GA 1766-1767
GE); GA 1768-1771 (Campaign Fundraising email 01/04/2021).
ME); GA 1781-1784 (Campaign Fundraising email 01/04/2021).
572 Id.

WE); GA 1794-1797 (Campaign Fundraising email 01/04/2021).
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Finally, the content of the Dalton speech confirms its unofficial nature. The defendant
began by telling the crowd, “Tomorrow, each of you is going to vote in one of the most important
runoff elections in the history of our country. ... You’re going to get everyone you know. You’re
going to show up to the polls in record numbers. You got to swamp them, and together, we’re
going to defeat the Democrat extremists and deliver a thundering victory to P27
And someone that has really been a star in Washington, P28 °74 He also used the
speech to pressure Pence.*”? Much of the speech then veered into the defendant’s principal claims
of fraud and irregularities in the presidential election, but he occasionally returned to the theme of
the following day’s election, including discussion of the Democratic candidates.°”°
li. The Ellipse on January 6, 2021 (Superseding Indictment, ECF No. 226
{| 86; supra pp. 75-78)
The “content and context” of the Ellipse rally, including the people involved in “organizing
the rally,” Trump, 144 S. Ct. at 2340, demonstrate that it too consisted of non-official conduct.
The Ellipse rally—named the Save America Rally or the March for Trump—was planned and
executed by private political supporters, including Women For America First (WFAF), a 501(c)(4)
organization that advocated for the defendant’s reelection in advance of election day in 2020 and
throughout the post-election time period.?’’? Cf Trump, 144 S. Ct. at 2340 (“Knowing . . . who
was involved in . . . organizing the rally[] could be relevant to the classification” of the Ellipse
speech as official or unofficial.). The Ellipse rally was originally planned to take place at Freedom
Plaza, but after WFAF began to plan the rally independent of the defendant, P64 a
°74 GA 1089 (Dalton Rally Speech Draft Tr. 01/04/2021).

7° GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).
°7° GA 1091 (Dalton Rally Speech Draft Tr. 01/04/2021).
77 GA 299-300 ); GA 485-486 :GA
); GA 1801-1802
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private fundraiser for the defendant, contacted WFAF to discuss moving the event to the Ellipse
and featuring the defendant as a guest.?” The organizers and planners of the event were almost
exclusively private individuals, with minimal involvement by White House advance staff. The
United States Secret Service, which is charged with the President’s protection at all times, even
2579
during unofficial events, considered the rally to be “a campaign event. The rally was
completely funded by a $2.1 million private donation by P65 a grocery chain heiress.?*°
This private funding, while not dispositive, is a strong indicator that the event was unofficial.
P66 the rally organizer who had the most direct contact with the defendant, was an
employee of the defendant’s Campaign until December 31, 2020, and after that, a private citizen."
And in public statements since leaving office, the defendant has said repeatedly that he “had
nothing to do with” the rally “other than they asked me to make a speech. I showed up for a
speech.”°®?
For weeks leading up to the event, the defendant promoted it on Twitter using the word
“rally’—a word that the defendant, on his Twitter account, reserved almost exclusively for
political and Campaign events. As with the trip binder for the Dalton remarks, the defendant’s trip
binder for the Ellipse speech also reinforces the private nature of the event. Although it does not
78 GA 301-302
°79 GA 399-403
of the Washington Field Office of the Secret Service, ela orated that the defendant’s protective
detail “wasn’t getting information [about the rally] from their counterparts at the White House staff
because this was not a staff-driven event. This was a campaign driven event.” GA 399.
580 GA 645-652 -GA 1142
); GA 1805-1818
GA 1819-1822
>® Riley Hoffman, Read: Harris-Trump presidential debate transcript (Sept. 10, 2024, 11:58 PM),
available at https://abcnews.go.com/Politics/harris-trump-presidential-debate-transcript/
story?id=1 13560542; see also GA 1692 (Transcript of CNN Town Hall 05/10/2023).
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include the same Hatch Act disclaimer—perhaps because the event, in contrast to the Dalton rally,
was not for the benefit of another political candidate—it describes the event as the defendant’s
“Remarks at the Save America Rally’—using a word, “rally,” that reflected an unofficial,
Campaign-related event.°°?
The defendant’s White House employees understood the rally and the defendant’s speech
at it to be a private, unofficial exercise and acted accordingly. Consistent with the Hatch Act’s
requirement that officials within the Executive Branch (other than the President or Vice President)
must refrain from using their official authority for partisan political purposes, see 5 U.S.C.
§ 7323(a)(1), on the morning of the rally, an email from White House photographer
P| on which was copied, provided “[a] reminder today is a political event.”?*4
Likewise, the defendant’s White House speechwriting staff understood that the speech was a
political, unofficial one and used their personal devices and personal email accounts to do most of
the drafting and fact-checking for the defendant’s Ellipse speech, though some last revisions to the
speech on the morning of January 6 occurred over White House email.°®° And officials in the
White House Counsel’s Office who customarily reviewed the defendant’s official remarks
pointedly did not review the Ellipse speech because it was an unofficial Campaign speech.?®°
Similarly, the White House website in the moments after the defendant’s speech at the rally made
no mention of it—instead, the official webpage touted official accomplishments like COVID
ee
83 GA 1827-1832 ).
84 GA 1833 ); GA 539
985 See GA 636 : GA 191-192 :
_—— ); GA 1681
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vaccines and peace in the Middle East.°®’ By contrast, the speech was advertised heavily by the
defendant’s Campaign Twitter account, which also repeatedly posted clips of the event in progress
and afterward.°°8
The day-of logistics of the Save America Rally further indicate its private nature. No other
Executive Branch officials spoke. Instead, other speakers included WFAF officials, the
defendant’s political allies, two U.S. Representatives, and the defendant’s co-conspirators and
private attorneys, pies CC2 fag
Moreover, the defendant’s appearance was consistent with a Campaign rally, not an official
event. The crowd at the rally consisted of the defendant’s political supporters, who held signs and
wore clothing bearing the defendant’s Campaign slogans.*?? And the manner in which the
defendant took the stage at the rally was also consistent with his Campaign rallies: instead of
entering as a military band played Hail to the Chief, as he might at an official presidential event,
the defendant entered and exited the Ellipse speech to the songs he had used throughout his
Campaign (Lee Greenwood’s “God Bless the U.S.A.” and the Village People’s “Y.M.C.A.”°??).
°87 See The White House Home Page (screenshot), WHITEHOUSE.GOV (Jan. 6, 2021)
https://web.archive.org/web/20210106154456/https:/www.whitehouse.gov/.
88 GA 954 (Team Trump Facebook Post 01/06/2021); GA 955 (Team Trump Facebook Post
01/06/2021); GA 956 (Team Trump Facebook Post 01/06/2021): GA 957 (Team Trump Tweet
01/06/2021); GA 958 (Team Trump Tweet 01/06/2021); GA 959 (Team Trump Tweet
01/06/2021).
89 GA 1928 (Video of Ellipse Rally 01/06/2021).

90 See GA 1913 (Video of Ellipse Rally 01/06/2021); GA 1908 (Video of Ellipse Rally
01/06/2021).
°°! Compare KJRH-TV Tulsa, President Trump arrives at White House, YouTube
https://www.youtube.com/watch?v=j7uSobMdl8A with GA 1928 at 3:28:50 and 4:42:55 (Video
of Ellipse Rally 01/06/2021).
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Tellingly, the significant similarities with the defendant’s Dalton Campaign speech?”
confirm that the Ellipse speech?”?—delivered just two days later—was private, partisan
electioneering. The defendant covered many of the same topics and told many of the same lies
about fraud in only his election—in some cases, using the exact same words. For instance:
e The defendant, as a candidate, falsely claimed he had won the election (Dalton at GA 1102:
“T ran two elections. I won both of them. Second one, much more successful than the
first.” Ellipse at GA 1115: “I’ve been in two elections; I won them both, and the second
one I won much bigger than the first.”’).
e The defendant, as a candidate and the leader of a political party, implored political
supporters to pressure Pence (Dalton at GA 1090: “I hope Mike Pence comes through for
us, I have to tell you. I hope that our great Vice President, our great Vice President comes
through for us. He’s a great guy. Of course, if he doesn’t come through, I won’t like him
quite as much.” Ellipse at GA 1116: “I hope Mike is going to do the nght thing. I hope
so. [hope so. Because if Mike Pence does the right thing, we win the election.”).
e The defendant, as a candidate and the leader of a political party, attacked a fellow party
member who had been insufficiently subservient (Dalton at GA 1104: Georgia Governor
P17 was an “incompetent governor.” Ellipse at GA 1125: MMi was “one of the
dumbest governors in the United States.”).
e The defendant, who in his capacity as a candidate had suffered personal legal defeats in his
private, election-related litigation at the Supreme Court, attacked it (Dalton at GA 1095:
“T’m not happy with the Supreme Court. They are not stepping up to the plate. They’re
not stepping up.” Ellipse at GA 1125: “I’m not happy with the Supreme Court. They love
to rule against me.”).
e The defendant, as a candidate, made myriad false claims regarding fraud in the presidential
election, including:
o Arizona
= Non-citizens cast 36,000 votes (Dalton at GA 1106: “In Arizona, more than
36,000 votes were cast by non-citizens.” Ellipse at GA 1134: “Over 36,000
ballots were illegally cast by non-citizens.”); and
2 See GA 1088 (Dalton Rally Speech Draft Tr. 01/04/2021).

°°3 See GA 1114 (Ellipse Rally Speech Draft Tr. 01/06/2021).
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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
did a lot of work. I paid a lot of money to a lot of people. I can tell you
that.” Ellipse at GA 1134: “More than 2,500 ballots were cast by
individuals whose names and dates of birth match incarcerated felons in
Georgia prison—people who are not allowed to vote.”);
Thousands of unregistered people voted (Dalton at GA 1103: “4,502 illegal

ballots were cast by individuals who do not appear on the state’s voter
rolls.” Ellipse at GA 1134: “More than 4,500 illegal ballots were cast by
individuals who do not appear on the state’s own voter rolls.”);
More than 18,000 voters used vacant addresses (Dalton at GA 1103:

“18,325 illegal ballots were cast by individuals who registered to vote using
an address listed as vacant according to the postal service.” Ellipse at GA
1134: “Over 18,000 illegal ballots were cast by individuals who registered
to vote using an address listed as ‘vacant,’ according to the Postal
Service.”);
At least 88,000 ballots were illegally backdated (Dalton at GA 1103: “At

least 86,880 ballots were cast by people whose registrations were illegally
backdated.” Ellipse at GA 1134: “At least 88,000 ballots in Georgia were
cast by people whose registrations were illegally backdated.”);
Underage voters cast 66,000 ballots (Dalton at GA 1103: “66,000 votes in

Georgia were cast by people under the legal voting age.” Ellipse at GA
1134: “66,000 votes—each one of these is far more than we need. 66,000
votes in Georgia were cast by individuals under the legal voting age.”); and
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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
alot 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.>”*
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.°”? He claimed his “election
victory” was “stolen,” that he would not “concede,” and that “with only three of the seven states
in question, we win the presidency of the United States.”°”° He framed the claims of election fraud
in terms of his own election and the margin of victory in his own race, and he spoke to his political
supporters using the pronoun “we’—showing that he was speaking not to all citizens, but only to
his own voters.°’’ Finally, the defendant repeatedly aimed accusations at Biden, his principal
598
opponent in the election contest, as would a candidate.
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,
4 GA 1118-1119 (Ellipse Rally Speech Draft Tr. 01/06/2021).

°° GA 1122, 1126-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).
°° GA 1115, 1122 (Ellipse Rally Speech Draft Tr. 01/06/2021).
°°7 GA 1115, 1132-1133, 1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).
8 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.°”? 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.°°° 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!’”°"!
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 7rump—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
GA 525.521 A 55
600 GA 411 ); see https://x.com/realDonaldTrump/status/
753965070003 109888 ?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).
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content matter. Simply because a Tweet relates to a matter of public concer does not
automatically transform it into an official communication. In Blassingame, 87 F.4th at 20, the
D.C. Circuit rejected the defendant’s contention that any and all of the President’s communications
are immune official acts whenever they involve a matter of public concern. The D.C. Circuit
recognized that the “integrity of the 2020 election” was a matter of public concer, but if the
defendant spoke about that issue “in his personal capacity as a candidate for reelection rather than
in his official capacity as President,” it was unofficial speech not shielded by immunity. Jd. Thus,
when a court consults “content and context” to inform the official-act inquiry, see Trump, 144 S.
Ct. at 2340, a claim that all Tweets concerning election integrity were official must fail.
An analysis of the @realDonaldTrump account during the time period of the charged
conspiracies demonstrates that the defendant frequently used the account to advance his unofficial
objectives as a candidate. Of the more than 1,200 Tweets, the vast majority were related to the
2020 presidential election. For example, he announced over Twitter that HR@@@Mj and others were
taking over his Campaign legal team, and he repeatedly used the platform to espouse false claims
of election fraud and promote political rallies on his behalf.” the defendant’s Deputy
Chief of Staff and the only person other than the defendant with control over the
@realDonaldTrump Twitter account, acknowledged that he sometimes consulted with Campaign
personnel about material he was going to post on the account, that he worked as a volunteer for
the defendant’s Campaign at the same time that he served as Deputy Chief of Staff, and that he did
Trump Tweet 01/01/2021); GA 938-939 (Donald J. Trump Tweet 01/05/2021).
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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. °°
A review of the defendant’s official @POTUS4S 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.°°* None of them include the defendant’s
election-related claims or his election challenges.° 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.°°° 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 @POTUS4S5 account archive does not include the defendant’s Twitter pressure campaign
against Pence, such as the 2:24 p.m. Tweet on January 6.°”
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.
"C2653 TT
6° GA 1899 (Spreadsheet of @POTUS45 Tweets).
6° Td. (Spreadsheet of @POTUS45 Tweets).
6% Td. (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!
@DeptotDefense @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.
°°” Compare id. (Spreadsheet of @POTUS45 Tweets) with GA 946-947 (Donald J. Trump Tweet
01/06/2021).
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i. Tweets, as candidate, casting doubt on election integrity
As described in Section I, the defendant attempted to discourage mail-in voting and
undermine confidence in the election results to prepare to declare victory even if he lost. See, e.g.,
supra p. 6. Just as his public statements casting doubt on the election were unofficial, so too were
the analogous Tweets that the defendant posted in his capacity as a candidate. The context of these
Tweets confirms this conclusion. The defendant issued the Tweets in advance of election day, in
the midst of his campaign for re-election; furthermore, he made them while his own Campaign
advisors were warning him that Biden supporters were much more likely to use mail-in voting, the
very method the defendant attempted to discourage. In addition, the Tweets’ content further
reinforces their private nature; they show the defendant taking a partisan electioneering position
on an issue rather than proposing any official measures to address a problem that the defendant
claimed existed.
ii. Tweets making false claims of election fraud
The superseding indictment alleges that the defendant repeated and widely disseminated
false claims of election fraud. See, e.g., Superseding Indictment, ECF No. 226 99 12, 14. One of
the ways that he did so was by Tweet, constantly, day in and day out. Examples of the kinds of
Tweets that the Government intends to use at trial are set forth throughout Section I, in which the
defendant falsely claimed victory and outcome-determinative election fraud in targeted states. See,
é.g., Supra pp. 22-23, 32, 45, 55-56, 62-63.
These kinds of Tweets all shared common internal characteristics that establish their
unofficial nature. The defendant used the language of a candidate when he spoke in terms of his
personal electoral victory (“I win!” or “We win!”).°°8 He divided his audience between personal
608 See, e.g., GA 772-773 (Donald J. Trump Tweet 11/05/2020); GA 774-775 (Donald J. Trump
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allies who supported his election challenges and enemies who did not, dismissing the latter as
“RINOs” (shorthand for Republicans in Name Only) or “the Democrats.”©” And he focused only
on fraud claims that would affect his own election and was fixated on his own margin of victory
>») 610
(“far more votes than are necessary to win
iii. Tweets and re-Iweets attacking those speaking the truth about the
election
On multiple occasions, the defendant issued a Tweet, or re-tweeted an agent’s Tweet, in
order to attack individuals who had spoken out publicly to defend the integrity of the 2020
presidential election and reassure the public that there had not been outcome-determinative fraud.
These instances include: on November 11, the defendant attacked Philadelphia City Commissioner
after he dispelled fraud claims in a television interview that the defendant saw; °!! on
November 29, the defendant issued a Tweet attacking when he appeared on 60 Minutes;°!*
on December 6, the defendant re-tweeted a post by his agent, attacking Arizona House
Speaker for a public announcement that the defendant had not presented Arizona
legislators with any evidence of outcome-determinative fraud and that the Arizona legislature
could not overturn election results based on unsupported theories of fraud;°!? again on December
6, the defendant re-tweeted a post by his agent, labeling four Republican state legislators

Trump Tweet 12/05/2020).
609 See, e.g, GA 777-778 (Donald J. Trump Tweet 11/11/2020); GA 860-861 (Donald J. Trump
Trump Tweet 11/17/2020); GA 881-882 (Donald J. Trump Tweet 12/22/2020).
01/01/2021).
611 GA 1953 at 2:20-4:13 (Video of Interview with CNN 11/11/2020); GA 777-778 (Donald J.
Trump Tweet 11/11/2020).
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“cowards” after they issued a public announcement that they could not overturn the popular vote
and appoint their own electors;°'* and on December 21, the defendant attacked Wisconsin Supreme
Court Justice ZO for ruling against him.*®!°
(a) (Superseding Indictment, ECF No. 226 4 41; supra
p- 38)
After then a Philadelphia City Commissioner, gave a television interview on
November 11 and made clear that he had not seen evidence of fraud there, the defendant issued a
Tweet attacking in partisan terms. The defendant called a “so called Republican
(RINO)” and finished the Tweet with “We win!”°!® In so doing, the defendant was acting as a
candidate frustrated that a member of his political party refused to perpetuate the lies the defendant
was promoting to advance his personal political interests.
(>) REE (supra pp. 45)

On November 29, when 60 Minutes aired an interview with formerly the CISA
director, defending the integrity of the election, the defendant tweeted an attack on the television
program ad and claimed that the 2020 election was “probably our
least secure EVER!”°!’ These complaints about and mail-in ballots echoed others
which the defendant was making regularly as a candidate only in states in which he had lost the
election.°!® He also issued the Tweet between two other Tweets in which he was speaking as a
candidate. Thirty minutes before the Tweet, the defendant used his @realDonaldTrump
account to discuss Campaign litigation—specifically, he wrote, “We have some big things
°!4 GA 856, 858 (Donald J. Trump Tweet 12/06/2020).

619 GA 875-880 (Donald J. Trump Tweets 12/21/2021).
618 See, e.g, GA 867-872 (Donald J. Trump Tweets 12/13/2020).
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happening in our various litigations on the Election Hoax. Everybody knows it was Rigged. They
know Biden didn’t get more votes from the Black community than Obama, & certainly didn’t get
80,000,000 votes. Look what happened in Detroit, Philadelphia, plus!”°!? And within twenty
minutes of the fF Tweet, the defendant issued another Tweet about 60 Minutes, this time asking
whether the “Fake News” program was paying attention to a Tweet that the defendant then linked
to by P68 then a private citizen—who in turn was publicizing what he characterized
as a Campaign litigation victory on the defendant’s behalf by co-conspirator CEM in litigation
in Georgia.*°
The defendant’s Tweet regarding 60 Minutes and was unofficial. The Campaign
litigation-focused Tweets surrounding it demonstrate that the “us” whom the defendant claims 60
Minutes never consulted was the defendant’s Campaign, not his Administration.
(c) P| and Pennsylvania legislators (Superseding

Indictment, ECF No. 226 4 21, 43; supra pp. 20, 40)
In the early morning hours on December 6, upon returning from a Campaign speech in
Valdosta, Georgia, the defendant re-tweeted a December 4 Tweet from | P19 Ta was working
with the Campaign and to overturn the election results®*!—attacking Arizona House
Speaker EM after ER released a public statement that he had not seen evidence of election
fraud and could not take action to overturn the election results in Arizona.” Just four minutes

620 GA 827-828 (Donald J. Trump Tweet 11/29/2020). A week later, the court dismissed the
lawsuit, stating that the plaintiffs “essentially ask the Court for perhaps the most extraordinary
relief ever sought in any Federal Court in connection with an election. They want this Court to
substitute its judgment for that of two-and-a-half million Georgia voters who voted for Joe Biden,
and this I am unwilling to do.” Pearson v. Kemp, 1:20-cv-4809, ECF No. 79 at 43 (N.D. Ga.) (Tr.
of 12/7/2020 Hrg.).
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earlier, the defendant had written “Thank you | PIS fie while re-tweeting another of| P19 |
Tweets that read, “President Trump is back on the campaign trail today!!! America is the best
country on earth and @realDonaldTrump is the greatest President!”
On the same day, December 6, the defendant also re-tweeted a Tweet by an agent
of the defendant who was working closely with | CCl fig Tweet attacked four
Pennsylvania legislators who, like had issued a public statement that they could not
overturn the valid election results. The defendant re-tweeted FGM post without comment.*°°
Both of the defendant’s re-tweets on December 6 were unofficial. At the time, both B®
and Pay were, at a minimum, private agents of the defendant who were working to overturn the
election results in his favor. and i @iam original Tweets were in service of that objective—
they were attempting to pressure state officials to take extralegal actions to replace their states’
duly-ascertained electors with the defendant’s fraudulent ones. The defendant’s re-posting of these
private Tweets was similarly private.
(d) (Superseding Indictment, ECF No. 226 4 46; supra
p. 41)
On December 21, when Wisconsin’s Governor signed a certificate of final determination
confirming that Biden had won the state based on the resolution by the Wisconsin Supreme Court
of a lawsuit in Biden’s favor, the defendant took to Twitter to attack Justice who had
written the majority opinion that ruled against him.°*’ The defendant claimed—falsely—that he

64 Td. (Donald J. Trump Tweet 12/06/2020).
5 GA 856, 858 (Donald J. Trump Tweet 12/06/2020). See, e.g., GA 1851-1852 Ga
_— ih
627 GA 1233-1235 (Wisconsin Certificate of Ascertainment 11/30/2020 and Certificate of Final
Determination 12/21/2020); Trump v. Biden, 394 Wis. 2d 629 (Wis. 2020); GA 875-880 (Donald
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had endorsed in his election for the Wisconsin Supreme Court, and implied that the
endorsement had caused to win.*® The defendant then encouraged “Republicans in
Wisconsin” to go “to their State Legislators and overturn this ridiculous State Election. We won
ina LANDSLIDE!”®”’ The entire context of the defendant’s Tweet about BOE including
his fictitious endorsement of his encouragement of Wisconsin Republicans to lobby
their legislators, and his claim at the end that “We won”—demonstrates that the Tweet as a whole
was partisan, personal, and unofficial.
Throughout the post-election period, the defendant used his status and power as the head
of a political party to bring political pressure to bear on fellow Republicans, including Arizona
Governor Georgia Governor and Georgia Secretary of State P33 In the
Tweets, the defendant assailed the three elected officials because they refused to take extralegal
actions to benefit him personally, suggested that they would suffer politically if they did not do as
he asked, and repeatedly suggested that they were “RINOs” and not real Republicans. The
defendant launched these public attacks both as “‘a candidate for office” and as “a party leader,”
Trump, 144 S. Ct. at 2340, and they were thus unofficial.
J. Trump Tweets 12/21/2020).

628 Td. (Donald J. Trump Tweets 12/21/2020); GA_ 187-188 ).
Although the defendant did not endorse Justice MBSeaN as he claimed, he did endorse a
congressional candidate with the surname (gas rom another midwestern state. See
https://x.com/realDonaldTrump/status/1292879824210595842.
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iv. Tweets exhorting individuals to travel to Washington, D.C., for the Save
America Rally (Superseding Indictment, ECF No. 226 4 68, 72, 79(b);
supra pp. 60, 64, 71-73)
Beginning on December 19, and continuing through early January, the defendant used the
@realDonaldTrump account to promote the private, campaign-style Ellipse rally at which he spoke
on the morning of January 6. Indeed, some of the defendant’s Tweets from this account were re-
tweeted and amplified by the defendant’s Campaign Twitter account.”° The defendant’s multiple
Tweets on this topic®! included his initial message that there would be a “[b]ig protest in D.C. on
January 6th. Be there, will be wild!”® In turn, that Tweet linked to a document drafted by P69
P| that had nothing to do with ae official duties as a White House trade advisor, but
rather constituted unofficial political activity by a Campaign volunteer who the Office of Special
Counsel already had determined to have violated the Hatch Act on numerous occasions by
attacking the defendant’s opponent during the lead up to the 2020 presidential election.©? For the
reasons described supra pp. 118-126 that make clear that the Ellipse rally was a private event, and
the defendant’s remarks there unofficial, his Tweets as a candidate promoting the event were
unofficial.
$30 See, e.g., GA 896 (Team Trump Retweet of Donald J. Trump Tweet 12/26/2020); GA 901
(Team Trump Retweet of Donald J. Trump Tweet 12/30/2020); GA 902 (Team Trump Retweet of
Donald J. Trump Tweet 12/30/2020); GA 534 ).
Tweet 01/01/2021); GA 905-906 (Donald J. Trump Tweet 01/01/2021); GA 913-914, 1891
(Donald J. Trump Tweet 01/01/2021); GA 921-922 (Donald J. Trump Tweet 01/03/2021); GA
923-924 (Donald J. Trump Tweet 01/03/2021); GA 928-929 (Donald J. Trump Tweet 01/04/2021):
GA 932-933 (Donald J. Trump Tweet 01/05/2021); GA 938-939 (Donald J. Trump Tweet
01/05/2021).
633 Jd (Donald J. Trump Tweet 12/19/2020); GA 1853-1865 (Report of Prohibited Political
Activity Under the Hatch Act 11/18/2020).
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v. Tweets regarding Pence’s role on January 6 (Superseding Indictment,

ECF No. 226 4¥ 69, 79(a), 82; supra pp. 61, 71-73)
As the defendant set his sights on using Pence’s role as President of the Senate to overturn
the election results at the January 6 certification proceeding, concurrent with his direct efforts to
pressure Pence, the defendant began to issue Tweets falsely claiming that Pence could use his
ministerial position to benefit the defendant as a candidate. For instance, on December 23, the
defendant re-tweeted a Tweet by a Campaign surrogate named who had posted a
facially fake White House memorandum titled “Operation ‘PENCE’ CARD,” which falsely
claimed that Pence could unilaterally disqualify legitimate electors.°** The defendant issued
similar Tweets as the certification grew closer, including posting on January 5 that “[t]he Vice
President has the power to reject fraudulently chosen electors.”®° And twice on the morning of
January 6, before his speech at the Ellipse rally, the defendant tweeted again about Pence. First,
at 1:00 a.m., the defendant wrote, “[i]f Vice President @Mike Pence comes through for us, we
will win the Presidency. Many States want to decertify the mistake they made in certifying
incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which
it must be). Mike can send it back!”° He again focused on Pence’s role in the certification at
8:17 a.m. when he wrote, “States want to correct their votes, which they now know were based on
irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence
has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme
122637
courage
634 GA 883 (Donald J. Trump Tweet 12/23/2020); GA 449 ; GA 1022-
—,
1023 (Pence, So Help Me God p. 439-40); see also GA 1524-1527
63° GA 934-395 (Donald J. Trump Tweet 01/05/2021).

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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.”°8
The private and Campaign nature of the Tweets is further confirmed when viewed in the
context of the defendant’s increasing desperation as even his unlawful path to remain in power
narrowed. When the defendant re-tweeted the “Operation Pence Card” Tweet on December 23,
the defendant knew that he had lost the legitimate electoral college vote and had begun summoning
supporters to Washington for the Ellipse rally on January 6.°°? When he tweeted on January 5 that
Pence had the power to reject fraudulent electors, Pence already had “told him many times” that
Pence did not believe he had such power—including as recently as the day before.“° 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 Td.; GA 940-941 (Donald J. Trump Tweet 01/06/2021).

“A476
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personal desperation was at its zenith: he was only hours from the certification proceeding that
spelled the end.
vi. The defendant’s 2:24 p.m. Tweet on January 6 (Superseding

Indictment, ECF No. 226 ¢ 94; supra pp. 80-81)
The defendant’s 2:24 p.m. Tweet aimed at Vice President Pence was unofficial. The
defendant personally posted the Tweet on the afternoon of January 6 at a point when he already
understood that the Capitol had been breached, writing: “Mike Pence didn’t have the courage to
do what should have been done to protect our Country and our Constitution, giving States a chance
to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to
previously certify. USA demands the truth!”%!
The defendant’s actions and knowledge in the hours leading up to this Tweet provide
helpful context. First, the evening before, on January 5, the defendant had dictated a Tweet to
as he listened to the angry crowd gathered outside the White House.” That Tweet shows
that the defendant understood that his gathering supporters, who were angry and believed his false
claims that the election had been stolen, were a powder keg. At 5:05 p.m., he tweeted:
“Washington is being inundated with people who don’t want to see an election victory stolen by
emboldened Radical Left Democrats. Our Country has had enough, they won’t take it anymore!
We hear you (and love you) from the Oval Office. MAKE AMERICA GREAT AGAIN!
Thereafter, the defendant continued to fixate on preventing the certification proceeding.
As described above, he tweeted about it at 1:00 a.m. on January 6 and again at 8:17 am.TM After

01/06/2021).
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the 8:17 a.m. Tweet, the defendant worked on his remarks for the Ellipse and planned to include
language explicitly putting pressure on Pence regarding the certification until advisors prevailed
on him not to. At 11:15 a.m., the defendant called Pence and tried one last-ditch effort to
convince him to fraudulently reject or return Biden’s legitimate electors.“° Pence was resolute
and unmoved, and the defendant was furious.©” Immediately after the call, the defendant directed
that the original language targeting Pence be reinserted in his prepared remarks for the Ellipse
rally.°**
The defendant then went to the Ellipse and delivered a falsehood-laden speech to his angry
supporters. He purposely singled out Pence by claiming that Pence had the power to overturn the
election results and—though the defendant stood at the podium with full knowledge that Pence
would not do so—gave the crowd false hope that Pence might exercise that power.TM? The
defendant told the crowd to act, stating, we “can’t let it happen” and then directed his supporters,
who were angry and motivated by his speech, to march to the Capitol.®°
Instead of marching with his supporters as he said he would, the defendant returned to the
White House.®! He went to the dining room next to the Oval Office and began to watch television
| 652
coverage of the events at the Capitol.°°~ Although the Government does not intend to use at trial
645 GA 1680
646 GA 471-472
647 _GA_ 471-472 - GA _ 1668-1669
GE). GA 225-230 ).
GA 1670-1679 ).
649 See GA 1114-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).
6°90 See GA 1140-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).
—
CA 1366 i): cic:
“Ga 541-544 I: Ga 252, ca 236 a
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evidence of the defendant’s discussions with White House staff during this tume period, it provides
necessary context: when news broke that rioters had breached the Capitol, the defendant’s
advisors—including Deputy White House Counsel and
urged the defendant to issue a calming message and make efforts to stop the riot.”* The defendant
refused, responding that the people at the Capitol were angry because the election had been
stolen.°* Eventually, all of the defendant’s staffers left him alone in the dining room.©° Fox
News continued to report on the growing crisis at the Capitol.®°
It was at that point—alone, watching news in real time, and with knowledge that rioters
had breached the Capitol building—that the defendant issued the 2:24 p.m. Tweet attacking Pence
for refusing the defendant’s entreaties to join the conspiracy and help overturn the results of the
election.©°’ One minute later, the Secret Service was forced to evacuate Pence to a secure location
in the Capitol.©® This was roughly ninety minutes after Pence had announced publicly that he
would not act unlawfully to overturn the election;°” the certification proceeding was underway;
and the first breach of the Capitol building had occurred minutes before, at 2:12 p.m.%! At that
6°93 GA 479 ) (advisors told the defendant that t}here’s a riot, and there
are people inside the Capitol Building”); GA 122
the defendant “that someone’s
); GA 168-169
4 GA 547-548 ; GA 232-234 ); GA
123
°° GA 1931 (Video of Fox News Coverage 01/06/2021).
698 GA a CUlC(<é‘“ OQ GA 1944 (Video of Pence Evacuation 01/06/2021).

°7 GA 546 ); GA 946-947 (Donald J. Trump Tweet 01/06/2021).
$59 GA 1684-1686 a Dear Colleague Letter 01/06/2021); GA 1867-1868 Ga

).
6° GA 1937 (Video of House Floor 01/06/2021); GA 1954 (Video of Senate Floor 01/06/2021).
661 GA 1957 at 00:40—1:25 (Video of Senate Wing Door CCTV 01/06/2021); GA 1909 at 00:15—
1:10 (Video of Capitol Riot 01/06/2021).
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point, the defendant’s only hope to disrupt the certification proceeding and retain power was
through his angry supporters. The defendant further revealed the private nature of his desperate
conduct as a candidate, rather than a President, in an exchange (that the Government does not plan
to use at trial) he had with aide shortly after the 2:24 p.m. Tweet. Upon receiving a phone
call alerting him that Pence had been taken to a secure location, rushed to the dining room to
inform the defendant in hopes that the defendant would take action to ensure Pence’s safety.
Instead, after RI delivered the news, the defendant looked at him and said only, “So what?”°”
The private, unofficial nature of the 2:24 p.m. Tweet contrasts with two other Tweets the
defendant sent during the following hour and a video message he sent two hours later, and which
the Government does not intend to introduce at trial. Only after advisors had again urged the
defendant to calm matters at the Capitol,° the defendant at 2:38 p.m. posted, “Please support our
Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”
As the violence at the Capitol nonetheless escalated, the defendant at 3:13 p.m. posted, “I am
asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the
Party of Law & Order—respect the Law and our great men and women in Blue. Thank you!”°®
And after those Tweets failed to disperse the rioters, and after still more demands from his staff
663 GA 124-125 ) both and I went down and told him

ou got to tell eople get out of the Capitol, the people who were breaching the Capitol”); GA 232
“And I said, we need to tell everyone to get the fuck out of the
Capitol, right now.”); GA 237 “argued
... to the president, you have to tell people to get out, mght now, as well. orthe first time
I’d ever heard him raise his voice, yelled at the president. .. He said, you need to tell them now;
you're destroying your legacy; you’re destroying everything anyone’s ever worked for; you’ve got
to tell these people to get out of the Capitol, immediately.”); GA 480 rr ttTM~SSCS
(“I think we were probably, at that point, encouraging the President that he needed to come out
and say something, he needed to condemn this and say something about it.”’).
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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.”°°
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!”

°°
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.”®* 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).

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.” /d. 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
-144-
(supra pp. 7-8), and the defendant’s telephonic endorsement of false allegations at the
Gettysburg “hotel hearing” (supra p. 39).
Each of the defendant’s cited public statements was made in his capacity as a candidate.
His pre-election statements, for instance, were made in contexts like the Republican National
Convention or in the midst of statements about political polling.’ His election night remarks
were made to a room of his supporters and were about his status as a candidate in the pending
election.°”? And his contribution to the Gettysburg “hotel hearing” was to call in by dialing one
of his private attorneys, who broadcast his personal message by holding her phone to the
microphone so that he could make statements supporting those of his private attorneys.°’’ In sum,
the defendant made all of these comments as a candidate for office, and was speaking about his
own election. They were unofficial.
2. In the alternative, any official portions of the defendant’s public speeches,

Tweets, or statements should be excised
Alternatively, if segregable portions of the speeches, Tweets, or statements are found to be
presumptively immune official conduct, the first alternative would be to excise them from the
speeches, allowing the Government to rely on the unofficial statements in those speeches.
The D.C. Circuit has long recognized that district courts have “discretionary power to
delete objectionable portions” of evidence “where appropriate,” United States v. Lemonakis, 485
F.2d 941, 949 (D.C. Cir. 1973), and the Supreme Court has approved of that practice in the context
of statements that contain protected legislative acts along with unprotected acts under the
Constitution’s Speech or Debate Clause, see United States v. Helstoski, 442 U.S. 477, 488 n.7
66° GA 1951 at 22:08—-22:18 (Video of RNC Speech 08/24/2020); GA 1927 at 2:50-3:28 (Video
of Donald J. Trump Statement 10/27/2020).
670 GA 1974 (Video of White House Speech 11/04/2020).
671 GA 1945 at 2:06:23-2:07:23 (Video of Pennsylvania Hotel Hearing 11/25/2020).
-
- 145
(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.”); /n 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 7rump.
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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-
E. The Defendant’s Interactions, in his Capacity as a Candidate, with White House

Staff
1. The interactions at issue were unofficial
White House staffers witnessed or engaged in private, unofficial communications with the
defendant. These staffers included i 2 the White House Senior Advisor who acted as a
conduit between the defendant and the Campaign; and (2M who both volunteered for
the Campaign while working in the White House; a staffer who witnessed a pertinent private
remark by the defendant; and ie the defendant’s executive assistant.
Federal law confirms that the defendant’s Campaign-related conversations with these
White House staffers were unofficial. The Hatch Act permits certain White House staffers to
engage in political activity while on duty, see 5 U.S.C. § 7324(a)(1), but prohibits them from using
their “official authority or influence for the purpose of interfering with or affecting the result of an
election,” 5 U.S.C. § 7323(a)(1). These staffers can thus wear two hats. They can work in their
private capacity to advance the interests of a political candidate, including while on official duty,
or they can work in their official capacity to carry out Executive Branch responsibilities—but they
may not wear both hats at the same time. Accordingly, when the defendant’s White House staff
participated in political activity on his behalf as a candidate, they were not exercising their official
authority or carrying out official responsibilities. And when the President, acting as a candidate,
engaged in Campaign-related activities with these officials or in their presence, he too was not
engaging in official presidential conduct.°”
Precedent from the D.C. Circuit further confirms that the defendant was not engaging in
official presidential conduct when he spoke with White House staffers about Campaign matters.
672 Indeed, at least two of the witnesses and f/?emeconsulted with the White
House Counsel’s Office about their ability to engage with the Campaign, demonstrating that they
understood their roles with respect to the Campaign were distinct from their White House roles.
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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. Jd. 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. J/d. 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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From August 2020 through the end of the defendant’s administration, | PO was an
Assistant to the President without a defined portfolio.°” More importantly for the Court’s
purposes, during the charged conspiracies, | PD served as a conduit of information from
the Campaign to the defendant and discussed Campaign matters with the defendant. These actions
were, consistent with Jn re Lindsey, unofficial.
As part of its immunity analysis, the Court should consider multiple different interactions
involving | PO none of which bear on his official White House responsibilities: (1) a
November 13 phone call in which the defendant told i he was going to put I@@aM in
charge of the Campaign’s legal efforts under an agreement where the defendant only would pay if
were successful, and i guaranteed the defendant he never would have to pay
(supra pp. 11-12); (2) a November conversation with the defendant regarding (supra
p. 44); (3) an undated conversation in which he told the defendant that fraud allegations
could never be proved in court and the defendant responded, “the details don’t matter” (supra
pp. 12-13); (4) a November or December 2020 conversation in which i explained to
the defendant why one of his fraud claims was “bullshit” (supra p. 13); (5) a late December
exchange with the defendant regarding the verification CO wanted him to sign in 7rump v.
Kemp (supra p. 27); (6) a January 4, 2021, conversation | PD had with (ECF
No. 226 § 77; supra p. 66), after which Herschman reported to the defendant that HRQ@@4Mi had
admitted his plan was “not going to work” (supra p. 66); and (7) a variety of occasions on which
reported to the defendant that his Campaign and its hired experts had found various
election fraud claims to be unsupported (szpra p. 12).
- 149
-
Section I also includes actions vy iii that do not reflect any presidential conduct
because the defendant was not involved. These include December 3 text messages that
exchanged with regarding false fraud claims at a Georgia
legislative hearing (ECF No. 226 § 26(a); supra pp. 21-22), and December 13 text messages
| PD exchanged with Campaign personnel regarding the fraudulent elector scheme (ECF
No. 226 4 60; supra pp. 52-53).
The content of each of | PD communications with the defendant enumerated
above involve the defendant’s Campaign, including the status and viability of the defendant’s fraud
claims, the quality of the advice the defendant was receiving from his Campaign advisors, his
litigation and electoral prospects, and the legality and practicality of RQ@@4HME proposal that Pence
reject Biden’s legitimate electors at the certification proceeding. None of the communications
pertain to general election policy issues or considerations, Justice Department criminal
investigations, Executive Branch functions, or any other presidential responsibilities.
As context for all these communications, the Court should consider | PD
relationship with the defendant, his role in the White House, and his interactions with the
Campaign. | PD relationship with the defendant and his family pre-existed his position
in the White House, and | PO represented the defendant in his impeachment trial.
did not have a defined portfolio, and worked on matters related to the Justice
Department, including the Portland riots and Section 230 of the Communications Decency Act, as
674
well as Middle East issues and pardons. The Government does not intend to elicit specific
information about communications | PD had with the defendant regarding his official
duties.
- 150
-
| PD was not acting in an official capacity during the conversations enumerated
above, but as a conduit for information from the Campaign. | PD contact with the
Campaign began in October 2020, when he asked Campaign staffers MUMM— and P72
for a tutorial on campaign basics and operations.*”” He continued to talk to and az
leading up to the election to understand different electoral college win/loss scenarios.°’° Shortly
thereafter, in early November 2020 | PO asked | P77 who handled ethics issues in
the White House Counsel’s Office, for permission to engage with the Campaign, and thereafter
began frequent contact with Campaign staff.°’’ Several days after the election,
| PO went to the Campaign headquarters in Virginia for the first time, while
and $4 were there too.°’® As discussed supra
p. 9, on November 7—likely the same day he went to the Campaign headquarters
joined Campaign staffers, including and fitsaam at the White House to discuss with
the defendant the fact that networks that morning had projected Biden as the winner of the
election.°” The Campaign staff and | PO told the defendant his chance of victory was
slim.°°° | PD also participated in various Oval Office meetings with the defendant, Pence,
White House staff, Campaign officials, and | P39 ie
The defendant heard and mentioned, to | PO and others, various fraud allegations
throughout the post-election period, sometimes from his outside attorneys like oy CC3 |
675 GA 671-672 ).
676 GA 672-673 ).
677 GA 673, 686 ).
678 GA 673 ).
680 GA 196-197 ).
Consistent with this, | PD asked MSIE and RM@Z4M if certain fraud allegations were
accurate, so that he could challenge information provided to the defendant by people like [i
CC3 Beg P12 ae also began interacting on a near-daily basis with a
Campaign staffer who told he could trust.°%? The Campaign, in turn,
hired two outside firms—{fay and | C2 investigate fraud allegations. | PD
told the defendant that people external to the Campaign were hired to look into fraud allegations.
Overall, | PO served as a conduit of day-to-day information between SZ and
the defendant during the post-election period. testified that around the time that
was named to lead legal efforts, “I was introduced to p PD . . . and I started
predominately reporting to | PO He elaborated that | PO “started to call
me more and more. It would be, you know, once every couple of days that then it was kind of
every day for a period of time that I was talking to oe’ With this information,
on a daily basis, attempted to debunk the false fraud allegations in the White House.
For example, after watching P74 testify in a December 10, 2020, hearing in
Georgia reached out im? P22 fe Through this channel, | PD learned about
and ie uniform findings—that no substantial fraud allegations were supported—
essentially in real time. | PO also participated in calls with MQM and had the number
—.
682 GA 673 GA 710
).
684 GA 715
686 GA 58 ).
687 GA 59 ).
688 GA 719
- 152
-
of one of its managing directors, P75 in his cell phone; some of those calls occurred at
the White House.

°° | PD directly passed the information to the defendant.°”’
had other contact regarding initiatives by the Campaign or its outside
attorneys. For example, | PO was on a call with the defendant and HA@@4Ml on December
9 regarding the defendant’s motion, in his capacity as a candidate, to intervene in Texas v.
Pennsylvania.®”” Separately, ae spoke to the defendant about the lawsuit, and explained
how the legal system worked and that the Campaign—not the Justice Department or FBI—was
responsible for filing election challenge lawsuits.
Throughout these conversations, even if | PO could be understood to have been
acting in an official capacity—which he was not—rather than a Campaign one, the defendant was
himself acting in his private capacity as a candidate. The defendant was asking for ii
view on various strategic decisions he was making regarding his Campaign and his private
attorneys, and he was getting reports from on information related to actual and
potential election challenges important to his candidacy and private Campaign. All of this context
establishes both that i wore two hats—one official, one private—and that the defendant
interacted with | PD in these conversations as a candidate rather than as President. The
interactions between the defendant and i that the Government intends to introduce at
trial were thus all private.
690 GA 719, 721

691 GA 717-718
© GA 687 }
692 GA 713
- 153
-
b. P45
served as Assistant to the President and White House Deputy Chief of Staff.°"* He
also volunteered his time for Campaign work, including traveling to political rallies with the
defendant and posting pictures and videos.** The Government will elicit from RZS¥%j at trial
that he was the only person other than the defendant with the ability to post to the defendant’s
Twitter account, that he sent tweets only at the defendant’s express direction, and that Zo did
not send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021.°° He also will
generally describe the defendant’s Twitter knowledge and habits, including that the defendant was
“very active on his Twitter account,” “paid attention to how his tweets played with his followers,”
39 66
“was very engaged in watching the news,” and “knew how to read the replies and see all the replies
of what people were saying and doing which . . . led to where he would retweet things,” and that
any Tweet sent “between 5 or 6 a.m. until 9 or 10 a.m.” and after “9 or 10 p.m.” generally was the
defendant personally sending out the Tweet, as opposed to having do it. None of this
proposed testimony on iZSHH’s part constitutes evidence of an official act. General information
about access to the defendant’s Twitter account, as well as QZRHM’s testimony that RRM did
or did not issue a particular Tweet, is unrelated to any particular official act by the defendant.
c.
was an Assistant to the President and a volunteer for the Campaign.®” She will
testify about two specific sets of conversations: (1) a handful of conversations in which the
defendant, in advance of the election, said that he would simply declare victory (supra p. 5); and
“CA 5); a
°5 GA 528-529 a
won fox if
GA 241-245
- 154-
(2) an unprompted statement in which the defendant remarked, in a private moment, that
claims were “crazy” (supra p. 44).
Regarding the pre-election conversations, a has testified that COVID’s expected effect
on the election, and in particular the anticipated phenomenon that the defendant would take an
early lead in some states based on the election day vote that would dissipate as mail-in ballots were
counted, was discussed among Campaign personnel and dual-hat White House staffers who
simultaneously volunteered for the Campaign.°”® In that context, the defendant told and
others words to the effect of, “We’ll just declare victory.”®? Regarding the defendant’s statement
about Em. will testify about a November 20 phone call in which the defendant mocked
In all of these interactions, the defendant was interacting as a candidate with ia not as
President. With respect to his pre-election comments about declaring victory, the context of the
conversations indicates that the defendant was responding in real time to information that
Campaign staff provided him on private matters. Similarly, the November 20 conversation among
the defendant, HRM and HS regarding was also a Campaign conversation.
and Sea two staffers who volunteered for the Campaign while working in the White House,
were informally discussing with the defendant developments in his Campaign—namely that one
of his private attorneys had been a source of public embarrassment. The defendant then dialed his
private attorney, and made the comment about her claims with her on the muted phone
line. The defendant was not seeking advice from White House staffers; he was making fun of his
private attorney in the presence of Campaign volunteers.
69 GA 250-253
700 GA 258
- 155
-
c. P15
was an Assistant to the President and Director of Oval Office Operations.’ At trial,
the Government will elicit from ZRy that he witnessed an unprompted comment that the defendant
made to his family members in which the defendant suggested that he would fight to remain in
power regardless of whether he had won the election. Specifically, following the 2020 election
while aboard Marine One, the defendant told his wife, daughter P14 and son-in-law
P13 “Tt doesn’t matter if you won or lost the election. You still have to fight like hell.”
See supra p. 14-15.’ happened to overhear this comment, but was not participating in the
conversation.
This statement is plainly private. It was exclusively about the election and the defendant’s
determination, as a candidate, to remain in power whether he won or lost. The defendant made
the comment to his family members, who campaigned on his behalf and served as private advisors
(in addition to any official role they may have played). The fact that it was overheard by a
White House staffer, does not convert it to an official communication.
d. P42
To a limited extent, the allegations in the superseding indictment and the Government’s
evidence involve the defendant’s executive assistant in the White House. Section I
describes multiple instances in which received emails intended for the defendant or sent
emails on the defendant’s behalf. These instances include: sending to a group of private
attorneys, including an email with the subject “From POTUS” directing the private
attorneys to include material critical of in private lawsuits (see supra
701 GA 307 a
702 GA 308 ).
703 GA 309 ).
- 156-
pp. 42); receiving from an email for the defendant providing a copy of the
message JIC had drafted to exert pressure on Michigan Senate Majority Leader (see
supra p. 34); receiving from ZO the RNC’s “Elector Recap” email to put in front
of the defendant (see supra p. 57); and receiving an email from on December 23
asking to update the defendant on “overall strategic thinking” on the defendant’s status as a
candidate (see supra p. 61).
None of these actions by in which she was merely facilitating communications
between the defendant and his private attorneys or private political allies, constitute the
defendant’s official conduct. regularly facilitated the defendant’s purely private matters,
including communications with his children about his Thanksgiving travel.’°* The defendant’s
reliance on Ze to pass messages to and from personal advisors, friends, and family does not
render the underlying private communications official. See Lindsey, 158 F.3d at 1281-82.
2. Even if this evidence were deemed official, the Government could rebut any
Even if an “official” gloss were applied to the defendant’s conversations with White House
staff pertaining solely to the President’s chances as a candidate to successfully challenge the
election results, the use of such evidence would not intrude on Executive Branch functions or
authority. “The Office of the Presidency as an institution is agnostic about who will occupy it
next.” Blassingame, 87 F.4th at 4. Whatever blurring of the lines might exist between candidate
conduct and official conduct in conversations that the President may conduct with his immediate
14 GA 1904 at row 1151 ) (11/17/2020, “Hi

dad is going to stay in DC for thanksgiving - just wanted to let you know!” from
), row 1765, 1153 (11/16/2020, “Has DJT solidified his Thanksgiving plans” from
im) P42 | she responded, “As of earlier today, FLOTUS wants to stay up here and POTUS
is on board, as of now’’).
- 157-
staff, introducing evidence of conversations with dual-hat White House staff members—those who
function in both a Campaign-related capacity and an official advisory capacity—when they are
speaking to the President in his capacity as a candidate or in their Campaign-related capacity does
not impede decision-making on matters entrusted to the Executive Branch. The Supreme Court
required that its rebuttal analysis focus on Executive Branch authority and functions—not merely
on anything that the President might say or do while at the White House. Here, the Executive
Branch has no authority or function in the certification of the next President. Accordingly, the use
of evidence of White House staffers’ Campaign-capacity discussions with the President about how
to challenge state election results—challenges brought in his capacity as a candidate—does not
risk impairing the constitutional role of the Executive Branch.
F. Other Evidence of the Defendant’s Knowledge and Intent
The Government intends to introduce at trial additional evidence to prove the defendant’s
knowledge and intent. These include (1) public statements by federal officials that the defendant
did not direct be made (specifically, public statements by Attorney General §¥% and CISA
Director about the lack of election fraud and foreign interference); (2) evidence that the
defendant was reviewing Twitter and watching television throughout the afternoon of January 6;
and (3) the defendant’s post-Admunistration statements. None of this evidence will involve
testimony from the defendant’s Executive Branch staff about his official actions.
1. The evidence at issue was unofficial
a. Statements by federal officials
In a public statement issued on December 1, 2020, Attorney General said that the
Department of Justice had not seen evidence of fraud sufficient to change the election results, and
- 158
-
that claims that voting machines had skewed election results were unsubstantiated. °° [8% decided
to make his statement without informing the defendant in advance.’°° He prepared the statement
because he had been watching the defendant repeat claims of election fraud publicly despite direct
knowledge, from and others, that they were false, and was growing more and more
frustrated by the defendant’s actions.’°’ On November 29, saw the defendant appear on the
Maria Bartiromo Show and claim, among other false things, that the Justice Department was
“missing in action” and had ignored evidence of fraud.’ decided it was time to speak
publicly in contravention of the defendant’s false claims, set up a lunch with a reporter for the
Associated Press, and made his statement—all without informing or seeking permission from the
defendant. The same day, on behalf of the Campaign, and issued a statement
attacking for his comments.’”? In the days that followed, | PL | acknowledged and
criticized YM statement during his podcast, asking rhetorically “is reading the same
things we’re reading?” and prompting guest to comment that “the DOJ has not been
following up on these leads as far as we know right now. That statement seemed to be very
premature. ... [T]here’s no way one can look at this election in these states and say that it was
done properly.”’!°
statement is not an official act by the defendant. 7rump treats only the defendant’s
own acts as potentially immune, see, e.g., 144 S. Ct. at 2338, consistent with the “justifying
purposes of the immunity”—“to ensure that the President can undertake his constitutionally
<
79 GA 1242-1243 (Email from Comms Alert 12/01/2020).
127 GA 8-10 ).
78 GA 10 ).
709 GA 1244 (Trump Campaign Press Release 12/01/2020).
70 GA 1978 at 11:56-12:04, 32:06-33:16 i).
- 159
-
designated functions effectively, free from undue pressures or distortions,” id. at 2332 (internal
quotation marks omitted). The immunity that the Supreme Court recognized thus does not imply
that acts by other government officials can qualify as presidential acts. More to the point,
statement does not reveal any official action by the defendant because did not give his public
statement at the defendant’s direction or even with his knowledge. To the contrary, if the defendant
had been aware of what intended to do he undoubtedly would have instructed not to
make the statement; when the defendant learned of ZMH statement, he was so angry that
tendered his resignation and, momentarily, the defendant accepted—until and
|)Be prevailed upon the defendant to calm down and convinced REY to delay his departure. ’"!
The Government does not intend to introduce evidence that implies that EW or his deputies refuted
the defendant’s fraud claims to him directly; instead, the Government intends to introduce
statement and ie Campaign response to it, as well as | Pl recognition and repetition
Oy P52 | statement.
ii. (supra pp. 42-43)
On November 17, CISA Director tweeted a link to an open letter by 59 election
security experts and touted it in an effort to promote public confidence in the election’s
infrastructure.’!2_ This was similar to what had done five days earlier on November 12,
when he had publicized the joint statement CISA issued with the National Association of
Secretaries of State, the National Association of State Election Directors, and other organizations
declaring the 2020 election to be “the most secure in American history” and that there was “no
evidence that any voting system deleted or lost votes, changed votes, or was in any way
12 GA 790 (Tweet 11/17/2020).
- 160
-
compromised.”’!3 On November 17, promoted the expert report on his own initiative and,
as he later learned, contrary to the defendant’s wishes: the defendant promptly fired Hig@lUM the
same day, by Tweet.’'* The Government does not intend to introduce any evidence about the
defendant’s removal of BUM Rather, as with public statement, public Tweets
were not official actions by the defendant and thus are not protected by presidential immunity.
b. The defendant’s use of Twitter and television on January 6 (Superseding

Indictment, ECF No. 226 ¥ 92; supra p. 79)
Forensic evidence from the defendant’s iPhone and observations by witnesses otherwise
testifying about unofficial acts will establish that upon his return from the Ellipse, throughout the
afternoon on January 6, the defendant sat in the dining room by the Oval Office, where he used his
phone to review Twitter and watched the television, which was tumed on and displaying news
coverage of the riot at the Capitol.’!°
As explained in the Government’s expert notice, ECF No. 183, an FBI Computer Analysis
Response Team forensic examiner can testify as to the news and social media applications
downloaded on the defendant’s phone,’!® and can describe the activity occurring on the phone
throughout the afternoon of January 6.7!” The phone’s activity logs show that the defendant was
using his phone, and in particular, using the Twitter application, consistently throughout the day
after he returned from the Ellipse speech.

7!®
73 GA 779 (Tweet 11/12/2020); GA 1236-1237 (Election Security Joint Statement 11/12/2020).

16 GA 1900
Phone.);
- 161
-
In addition, | PO | P1S and a each of whom are, as described
supra pp. 147-154, 156, otherwise expected to testify about the defendant’s unofficial acts—will
offer the objective observation that during the afternoon of January 6, the television in the
defendant’s dining room, where he spent the day, was on and tuned into news programs that were
covering in real time the ongoing events at the Capitol. In turn, the Government will introduce the
authenticated coverage showing what Fox News was playing in real time while the defendant sat
in the room with the television on. This evidence is particularly relevant to the defendant’s
knowledge at the time he issued the 2:24 p.m. Tweet, which, as described above, was unofficial.
None of this evidence involves testimony about an act by the defendant at all, and it shows
what social media and news the defendant privately reviewed in service of issuing a private Tweet.
The Government will not elicit testimony from the defendant’s staffers about his official
deliberations, reactions to social media or television, or official actions taken in response. The
defendant’s review of social media and television news—under these particular circumstances—
was no different from that of any other citizen or candidate and therefore was unofficial.
c. The defendant’s post-Administration statements (supra pp. 81, 83)
As the Government identified in its Rule 404(b) notice, ECF No. 174-1 at 8-9, the
Government will introduce some of the defendant’s numerous statements that post-date his time
as President in which he has blamed Pence and approved of the actions of his supporters who
breached the Capitol and obstructed the certification proceeding, ’”” thus providing evidence of his
intent on January 6.
719 GA 232-236 ).
720 GA 318 ).
2 See, e.g., GA 1970 at 17:37 (Video of Trump Interview 07/10/2021); GA 1926 at 1:15:30
- 162
-
The defendant’s endorsement of the violent actions of his supporters on January 6, and his
sentiment that they were justified in threatening Pence—all made while the defendant was a private
citizen after the end of his term in office—are probative of his intent during the charged
conspiracies. The Government intends to offer them as evidence of the defendant’s intent on
January 6, not as evidence of his official acts.
2. Even if this evidence were deemed official, the Government could rebut any
The use of the evidence regarding former Attorney General and CISA Director
would not intrude on Executive Branch authority or functions because the federal officials’
statements reflected those officials’ positions, knowledge, and expertise—not presidential acts or
direction. The President is the “the only person who alone composes a branch of government,”
Trump, 144 S. Ct. at 2329 (citation omitted), but Congress structures the Executive Branch and
assigns manifold specific duties to subordinate officers who in tur execute the law. The President
is responsible to take care that the laws be faithfully executed, see U.S. Const. Art. 2, § 3, but that
does not mean that every executive official is at all times performing presidential acts. Allowing
the Government to introduce evidence of these independent actions and public statements of
subordinate officials in the Executive Branch, not taken at the direction of the President, does not
intrude on the authority or functions of the Executive Branch. Nothing in 7rwmp dictates such an
(Video of Conroe Rally 01/29/2022); GA 1971 at 15:51, 16:42 (Video of Trump Interview
02/01/2022): GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA
1966 at 09:30 (Video of Trump Interview 09/01/2022); GA 1973 at 43:07 (Video of Waco Rally
03/25/2023): GA 1694 (Transcript of CNN Town Hall 05/10/2023); GA 1964 (Video of Trump
Campaign Statement 2024); GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1965
at 56:10, 57:11 (Video of Trump Interview on Meet the Press 09/17/2023); GA 1935 at 35:50,
01:16:16 (Video of Greensboro Rally 03/02/2024); GA 967 (Donald J. Trump Truth Social Post
03/11/2024): Isaac Arnsdorf and Maeve Reston, 7rump 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/.
-
- 163
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 4¥ 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.
- 164
-
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
- 165
-

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Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 1 of 165

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA

GOVERNMENT’S MOTION FOR IMMUNITY DETERMINATIONS

would any other citizen.

id., which should be “addressed at the outset of a proceeding,” id. at 2334.

Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982)).

Government could rebut the presumption of immunity.

and have their votes counted.

with private co-conspirators, including private attorneys

P| and iC and private political operatives CC6 and

volunteers, like Campaign Manager Deputy Campaign Manager

Senior Campaign Advisor ii and Campaign operative

outcome-determinative fraud in the election as he persistently claimed; and his increasingly

reasons set forth in Section III.

A. Formation of the Conspiracies

Campaign advisors, including i (then a private citizen) and (the defendant’s

Privately, the defendant told advisors—including | PO | Campaign personnel,

3 GA 501-512 ); GA 591-599 ); GA 246-

election day were valid. For instance:

to declare himself a winner.”

were continuing to tabulate votes. For example, on November 4, | PS Campaign employee,

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

assessment, the defendant had lost the election.

As the defendant placed alternating phone calls to and $RG@@Re throughout

November 13,” informed | CC F another private Campaign advisor, of the change,

22 GA 774-775. —Ss (Donald ~—sdJ. —s Trump -_ Tweet 11/06/2020); GA _ 776,

B. The Defendant Knew that His Claims of Outcome-Determinative Fraud Were

relationship with the defendant began before | PO worked for him

in the White House. | PO had known the defendant’s son-in-law, since

Examples of these instances include:

would be unable to prove his allegations in a courtroom.** In a separate private

even if it meant they lost. These conversations included:

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

Ultimately, the defendant’s steady stream of disinformation in the post-election period

culminated in the speech he gave at a privately-funded, privately-organized rally at the Ellipse on

(Wisconsin Elections Commission web page 11/05/2020); GA 1077-1081 (Wisconsin Elections

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

The defendant and R@@&Mi continued to try to influence For example,

publicly attacked ST (as well as Georgia Governor J) on Twitter, re-tweeting posts

fraudulent election results in Arizona that disenfranchised millions of Republicans?””°

Arizona House of Representatives.

we’re all kind of Republicans and we need to be working together.”

CORE to provide evidence supporting his fraud claims.*! never did.*

a “hotel hearing’—an unofficial meeting with Republican legislators—during which they

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

attorneys and a co-conspirator—called JEM and counsel, and urged

the valid election results.

In the post-election period, MQM was harassed; on several occasions, individuals

Four days later, on December 3, RQQMM orchestrated a presentation to a Judiciary

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

| PO exchanged text messages on their personal phones confirming that a Campaign

hearing—encouraged the Georgia legislators to decertify the state’s legitimate electors.!”

°° ECF No. 226 § 26(a); GA 1146

conduct depicted in the closed-circuit camera footage and stating:

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

105 GA 848 Tweet 12/04/2020).

defendant—uin his private capacity as a candidate for president—intervened in support of Texas v.

Pennsylvania; his attorney for that matter was Ce M7

two election workers 2 and her mother, | P30 baselessly

CORE to provide evidence supporting his fraud claims.! never did.

country’s election infrastructure.! That night, Fox News television personality