Read the Special Counsel’s Newly Unsealed Evidence Against Trump (2024)

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 1 of 165IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIAUNITED STATES OF AMERICAV.DONALD J. TRUMP,Defendant.***CRIMINAL NO. 23-cr-257 (TSC)*****GOVERNMENT'S MOTION FOR IMMUNITY DETERMINATIONSThe defendant asserts that he is immune from prosecution for his criminal scheme tooverturn 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 schemewas fundamentally a private one. Working with a team of private co-conspirators, the defendantacted 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 thedefendant, 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 wasalleged in the original indictment—and remanded to this Court to determine whether the remainingallegations against the defendant are immunized. The answer to that question is no. This motionprovides a comprehensive account of the defendant's private criminal conduct; sets forth the legalframework created by Trump for resolving immunity claims; applies that framework to establishthat none of the defendant's charged conduct is immunized because it either was unofficial or anypresumptive immunity is rebutted; and requests the relief the Government seeks, which is, atbottom, this: that the Court determine that the defendant must stand trial for his private crimes aswould any other citizen.

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 2 of 165This motion provides the framework for conducting the “necessarily factbound” immunityanalysis required by the Supreme Court's remand order. Trump, 144 S. Ct. at 2340. It proceedsin four parts.Section I provides a detailed statement of the case that the Government intends to prove attrial. This includes the conduct alleged in the superseding indictment, as well as other categoriesof evidence that the Government intends to present in its case-in-chief. This detailed statementreflects 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. Itexplains that, for each category of conduct that the Supreme Court has not yet addressed, this Courtshould 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 officialcapacity or instead “in his capacity as a candidate for re-election.” Blassingame v. Trump, 87 F.4th1, 17 (D.C. Cir. 2023). Where the defendant was acting “as office-seeker, not office-holder," noimmunity attaches. Id. (emphasis in original). For any conduct deemed official, the Court shouldnext determine whether the presumption of immunity is rebutted, which requires the Governmentto show that "applying a criminal prohibition to that act would pose no ‘dangers of intrusion onthe authority and functions of the Executive Branch."" Trump, 144 S. Ct. at 2331-32 (quotingNixon v. Fitzgerald, 457 U.S. 731, 754 (1982)).Section III then applies those legal principles to the defendant's conduct and establishesthat 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-2-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 3 of 165immunity. And all of the defendant's remaining conduct was unofficial: as content, form, andcontext show, the defendant was acting in his capacity as a candidate for reelection, not in hiscapacity as President. In the alternative, if any of this conduct were deemed official, theGovernment could rebut the presumption of immunity.Finally, Section IV explains the relief sought by the Government and specifies the findingsthe Court should make in a single order—namely, that the defendant's conduct set forth in SectionI is not immunized, and that as a result, the defendant must stand trial on the supersedingindictment and the Government is not prohibited at trial from using evidence of the conductdescribed in Section I.I.Factual ProfferWhen the defendant lost the 2020 presidential election, he resorted to crimes to try to stayin office. With private co-conspirators, the defendant launched a series of increasingly desperateplans 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 effortsincluded lying to state officials in order to induce them to ignore true vote counts; manufacturingfraudulent 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 byusing 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 congressionalcertification. The throughline of these efforts was deceit: the defendant's and co-conspirators'knowingly false claims of election fraud. They used these lies in furtherance of three conspiracies:1) a conspiracy to interfere with the federal government function by which the nation collects andcounts election results, which is set forth in the Constitution and the Electoral Count Act (ECA);2) a conspiracy to obstruct the official proceeding in which Congress certifies the legitimate results- 3-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 4 of 165of the presidential election; and 3) a conspiracy against the rights of millions of Americans to voteand have their votes counted.At its core, the defendant's scheme was a private criminal effort. In his capacity as acandidate, the defendant used deceit to target every stage of the electoral process, which throughthe Constitution, ECA, and state laws includes the states' notification to the federal governmentof the selection of their representative electors based on the popular vote in the state; the meetingof those electors to cast their votes consistent with the popular vote; and Congress's counting ofthe electors' votes at a certification proceeding. As set forth in detail below, the defendant workedwith private co-conspirators, including private attorneysCC1CC2CC3andCC5and private political operativesCC6andP1The defendant also relied heavily on private agents, such as his Campaign employees andvolunteers, like Campaign ManagerP2Senior Campaign Advisor P4Deputy Campaign Managerand Campaign operativeP3P5In this section, the Government sets forth detailed facts supporting the charges against thedefendant,¹ before addressing in the next section why none of this conduct is subject to immunityunder the Supreme Court's decision in Trump. The conduct set forth below includes thedefendant's formation of the conspiracies leading up to and immediately following the 2020presidential election; certain information regarding his knowledge that there had not beenoutcome-determinative fraud in the election as he persistently claimed; and his increasinglydesperate efforts to use knowingly false claims of election fraud to disrupt the electoral process.1 Section I represents the Government's efforts to provide the Court and the defendant with all ofthe categories of evidence that it may offer in its case-in-chief at trial. It does not include citationsto every potential exhibit, nor does it account for any additional evidence that may be developedbefore trial.-4-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 5 of 165The Government does not consider any of the following conduct to be subject to immunity for thereasons set forth in Section III.A. Formation of the ConspiraciesAlthough his multiple conspiracies began after election day in 2020, the defendant laid theP6groundwork for his crimes well before then. Leading into the election, the defendant's private andCampaign advisors, including(then a private citizen) and P2 (the defendant'sCampaign manager), informed him that it would be a close contest and that it was unlikely to befinalized on election day—in part because of the time needed to process large numbers of mail-inballots prompted by the COVID-19 pandemic.² They also told the defendant that the initial returnson election night might be misleading—that is, that he might take an early lead in the vote countthat would diminish as mail-in ballots were counted because his own supporters favored in-personvoting, while supporters of his opponent, Joseph R. Biden, favored mail-in ballots.³Privately, the defendant told advisors—includingP6P8Campaign personnel, P7(the Vice President's(a White House staffer and Campaign volunteer), andChief of Staff)—that in such a scenario, he would simply declare victory before all the ballots werecounted and any winner was projected.4 Publicly, the defendant began to plant the seeds for thatfalse declaration. In the months leading up to the election, he refused to say whether he wouldaccept the election results, insisted that he could lose the election only because of fraud, falsely2 GA 501-510247D; GA 591-599); GA 246-); GA 591-599); GA 250-255========3GA 501-5122494 GA 505-507); GA 132-153); GA 246-); GA 588-589-5-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 6 of 165claimed that mail-in ballots were inherently fraudulent, and asserted that only votes counted byelection day were valid. For instance:•••In an interview on July 19, 2020, when asked repeatedly if he would accept the resultsof the election, the defendant said he would "have to see" and "it depends."5On July 30, despite having voted by mail himself earlier that year, the defendantsuggested that widespread mail-in voting provided cause for delaying the election,tweeting, "With Universal Mail-In Voting (not Absentee Voting, which is good), 2020will be the most INACCURATE & FRAUDULENT Election in history. It will be agreat embarrassment to the USA. Delay the Election until people can properly, securelyand safely vote???"6In an interview on August 2, the defendant claimed, without any basis, that “[t]here isno way you can go through a mail-in vote without massive cheating."997At 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, rememberthat. It's the only way we're going to lose this election, so we have to be very careful."8In his acceptance speech at the Republican National Convention on August 24, thedefendant said that “[t]he only way they can take this election away from us is if this isa rigged election.”⁹On October 27, during remarks regarding his campaign, the defendant said, “[i]t wouldbe very, very proper and very nice if a winner were declared on November 3rd, insteadof counting ballots for two weeks, which is totally inappropriate, and I don't believethat that's by our laws. I don't believe that. So we'll see what happens.”10 Thedefendant said this despite or perhaps because his private advisors had informedhim that it was unlikely that the winner of the election would be declared onNovember 3.5 GA 1968 at 37:20 (Video of Trump Interview with Chris Wallace 07/19/2020).6 See https://x.com/realDonaldTrump/status/1288818160389558273 (Donald J. Trump Tweet07/30/2020).7 See Donald Trump Interview Transcript with Jonathan Swan of Axios on HBO, Rev (Aug. 3,2020)hbo.https://www.rev.com/blog/transcripts/donald-trump-interview-transcript-with-axios-on-8 GA 1943 at 57:33 (Video of Oshkosh Rally 08/17/2020).9 GA 1951 at 22:08 (Video of RNC Speech 08/24/2020).10 GA 1927 at 3:11-3:28 (Video of Donald J. Trump Statement 10/27/2020).-6-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 7 of 165By October 2020, P1a private political advisor who had worked for the defendant's2016 presidential campaign, began to assist with the defendant's re-election effort. Three daysbefore election day, P1 described the defendant's plan to a private gathering of supporters:"And what Trump's going to do is just declare victory. Right? He's going to declare victory.That doesn't mean he's the winner, he's just going to say he's the winner.”11 After explaining thatBiden's supporters favored voting by mail, P1stated further, “And so they're going to havea natural disadvantage and Trump's going to take advantage of it—that's our strategy. He's goingto declare himself a winner.""1213Immediately following election day on November 3, the defendant did exactly that. As hisprivate and Campaign advisors had predicted to him, in certain states, the defendant took an earlylead on election day that began to erode. At approximately 11:20 p.m., Fox News projected thatBiden would prevail in the state of Arizona, and according to Campaign advisor P4 he and thedefendant were shocked and angry at this development. ¹³ As election day turned to November 4,the contest was too close to project a winner, and in discussions about what the defendant shouldsay publicly regarding the election, senior advisors suggested that the defendant should showrestraint while counting continued. 14 Two private advisors, however, advocated a different course:CC1 and CC6 suggested that the defendant just declare victory. 15 And at about 2:20 a.m.,the defendant gave televised remarks to a crowd of his campaign supporters in which he falsely11GA 1886 at 0:0012 Id. at 0:2013 GA 376-380 at 70-74 (14 GA 600-602); GA 610-614); GA 380-383); GA 128-130 (); GA 161; GA 37015 GA 154); GA 600; GA 181-182-7-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 8 of 165claimed, without evidence or specificity, that there had been fraud in the election and that he hadwon: “This is a fraud on the American public. This is an embarrassment to our country. We weregetting ready to win this election. Frankly, we did win this election. We did win this election.”16In 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 stateswere continuing to tabulate votes. For example, on November 4, P5 -a Campaign employee,agent, and co-conspirator of the defendant―tried to sow confusion when the ongoing vote countat the TCF Center in Detroit, Michigan, looked unfavorable for the defendant. There, when acolleague at the TCF Center toldP5"We think [a batch of votes heavily in Biden's favor is]right,"17P5 responded, “find a reason it isnt,” “give me options to file litigation,” and “evenif itbis [sic].”18 When the colleague suggested that there was about to be unrest reminiscent of theBrooks Brothers Riot, 19 a violent effort to stop the vote count in Florida after the 2000 presidentialelection, P5 responded, "Make them riot” and “Do it!!!"20 The defendant's Campaignoperatives and supporters used similar tactics at other tabulation centers, including in Philadelphia,Pennsylvania, 2¹ and the defendant sometimes used the resulting confrontations to falsely claim21GA 1974 at 7:44 (Video of White House Speech 11/04/2020).1617GA 968-99618 Id.19 Id.20 Id.21 GA 997-999-8-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 9 of 165that his election observers were being denied proper access, thus serving as a predicate to thedefendant's claim that fraud must have occurred in the observers' absence. 22Contrary 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 Campaignmeeting that included P2 P3 P4 and White House stafferP9who cameto serve as a conduit for information from the Campaign to the defendant, Campaign staff told thedefendant that he had only a slim chance of prevailing in the election, and that any potential successwas contingent on the defendant winning all ongoing vote counts or litigation in Arizona, Georgia,and Wisconsin. 23 Within a week of that assessment, on November 13, the defendant's Campaignconceded its litigation in Arizona²4—meaning that based on his Campaign advisors' previousassessment, the defendant had lost the election.That same day, in an implicit acknowledgment that he had no lawful way to prevail, thedefendant sidelined the existing Campaign staff responsible for mounting his legal electionchallenges. From P2 P3 and others who were telling the defendant the truth that he didnot want to hear-that he had lost the defendant turned to CC1a private attorney who waswilling to falsely claim victory and spread knowingly false claims of election fraud.As the defendant placed alternating phone calls to P3 and CC1 throughoutNovember 13,25 P1 informed CC6another private Campaign advisor, of the change,writing, "Close hold don't tell anyone Trump just firedP3and put CC1 in charge” and22 GA 774-775 (Donald J. Trump Tweethttps://x.com/realDonaldTrump/status/132519470944308019211/07/2020).11/06/2020);(Donald J.TrumpGA 776,Tweet23 GA 155-15824 OGA 1001 (Donald J. Trump for President, Inc. v. Hobbs Hearing Transcript 11/13/2020); GA1002-1003 (Minute entry and order dismissing Donald J. Trump for President, Inc. v. Hobbs).25 GA 731-734-9-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 10 of 165“You are to report to CC1 26 When CC6asked if P2 was "gone too?", P1repliedthat "[t]hey all report to CC1 and that P1 had "made a recommendation directly that if CC1was not in charge this thing is over[.] Trump is in to the end.”27 The next day, consistent withP1description, the defendant announced his staff change by Tweet, writing, “I look forwardspearheading the legal effort to defend OUR RIGHT to FREE and FAIRtoCC1ELECTIONS!CC1P10P11CC3and P12a truly great team, added to our other wonderful lawyers and representatives!"28B. The Defendant Knew that His Claims of Outcome-Determinative Fraud WereFalseFollowing election day and throughout the charged conspiracies, the defendant, his co-conspirators, and their agents spread lies that there had been outcome-determinative fraud in theelection and that he had actually won. These lies included dozens of specific claims that there hadbeen 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 votesfor the defendant to votes for Biden. And the defendant and co-conspirators continued to makethese unsupported, objectively unreasonable, and ever-changing claims even after they had beenpublicly 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 hecontinued to make those claims even after his close advisors—acting not in an official capacitybut in a private or Campaign-related capacity—told him they were not true. These advisors26GA 100427 Id.28 GA 784-785 (Donald J. Trump Tweet 11/14/2020).- 10 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 11 of 165includedP9the White House staffer and Campaign conduit, and Pence, the defendant'srunning mate.9P9relationship with the defendant began beforeP9worked for himin the White House.P9had knownP13the defendant's son-in-law, sinceP13was a child, and through P13metP14and then the defendant.29P9was one of several attorneys who represented the defendant in his first impeachmenttrial in the Senate in 2019 and 2020, including presenting argument on the Senate floor on January27, 2020.P9began working in the White House as an Assistant to the President inAugust 2020.30 In October 2020, P9became interested in learning more about thedefendant's Campaign, and in early November 2020, after he began interfacing with Campaignstaff.P9 consulted with the White House Counsel's Office to ensure he complied withany applicable laws regarding Campaign activity.³¹ Thereafter, and throughout the post-electionperiod,P9became a conduit of information from the Campaign to the defendant, andover the course of the conspiracies,P9told the defendant the unvarnished truth abouthis Campaign legal team and the claims of fraud that they and the defendant were making.Examples of these instances include:P9repeatedly gave the defendant his honest assessment that CC1 could notmount successful legal challenges to the election. For instance, when the defendant toldP9that he was going to put CC1 in charge of the Campaign's legal efforts butpay him only if he succeeded, P9 told the defendant he would never have to payCC1 anything; 32 in response, the defendant laughed and said, “we'll see.” Thereafter,in Oval Office meetings with the defendant, CC1 and others, in which CC1 madespeculative claims,that CC1P9toldCC1-in front of the defendant3329 GA 69930 GA 67131GA 672-673; GA 68632 GA 20533 Id.- 11 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 12 of 16534would be unable to prove his allegations in a courtroom. In a separate privateconversation, when P9 reiterated to the defendant that CC1 would be unableto prove his false fraud allegations in court, the defendant responded, "The details don'tmatter."935In the post-election period, P9also took on the role of updating the defendant ona near-daily basis on the Campaign's unsuccessful efforts to support any fraud claims. ³P9told the defendant that the Campaign was looking into his fraud claims, andhad even hired external experts to do so, but could find no support for them. He told thedefendant that if the Campaign took these claims to court, they would get slaughtered,because the claims are all "bullshit.”37 P9 was privy in real time to the findingsof the two expert consulting firms the Campaign retained to investigate fraud claims-C1and C2 -and discussed with the defendant theirdebunkings on all major claims.38 For example,told the defendant thatGeorgia's audit disproved claims thathad altered votes. 39P9C3In the post-election time period, Pence—the defendant's own running mate, who he haddirected to assess fraud allegations—told the defendant that he had seen no evidence of outcome-determinative fraud in the election. 40 This was in one of the many conversations the defendantand Pence had as running mates, in which they discussed their shared electoral interests. Pencegradually 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” claimsof voter fraud in states that they had won together in 2016 to determine whether they couldbring legal challenges as candidates in those states. 41 Pence described the conversation asfollows: “Well, I think, I think it was broadly. It was just look at all of it. Let me knowwhat you think. But he told me that the Campaign was going to fight, was going to go to34GA 198-20435 GA 715, 71836 GA 213-21437 GA 71838 GA 715-72139 GA 211-21240 GA 414-42041 GA 412-413-12-; GA 207-213

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 13 of 165•court and make challenges.... And then he just said we're going to fight this and take alook at it. Let me know what you think.”42A call between the defendant and Pence on November 7, the day that media organizationsbegan to project Biden as the winner of the election. Pence “tried to encourage" thedefendant “as a friend,” reminding him, “you took a dying political party and gave it a newlease on life."43A November 11 meeting among the defendant, Pence, Campaign staff, and some WhiteHouse staff during which Pence asked when most of the lawsuits would be resolved ("whendoes this come to a head?") and the Campaign staff responded, the "week afterThanksgiving."44A November 12 meeting among the defendant, Pence, Campaign staff, and some WhiteHouse staff during which, Pence recalls, the "Campaign lawyers gave a sober andsomewhat pessimistic report on the state of election challenges."45• A private lunch on November 12 in which Pence reiterated a face-saving option for thedefendant: "don't concede but recognize process is over.”••"46A private lunch on November 16 in which Pence tried to encourage the defendant to acceptthe results of the election and run again in 2024, to which the defendant responded, “I don'tknow, 2024 is so far off."47A November 23 phone call in which the defendant told Pence that the defendant's privateattorney,P76was not optimistic about the election challenges.48A December 21 private lunch in which Pence “encouraged” the defendant “not to look atthe election 'as a loss - just an intermission.”” This was followed later in the day by aprivate discussion in the Oval Office in which the defendant asked Pence, “what do youthink we should do?" Pence said, “after we have exhausted every legal process in thecourts and Congress, if we still came up short, [the defendant] should ‘take a bow.4942GA 413-41443GA 42144GA 1036 (45 GA 422-424 (46 GA 103747 GA 425-42648 GA 43049GA 442-448 (). See GA 1016 (Pence, So Help Me God p. 430).); GA 1034-1035). See GA 1017 (Pence, So Help Me God p. 431).See GA 1018 (Pence, So Help Me God p. 432).); GA 736). See GA 1020-1022 (Pence, So Help Me God p. 437-- 13-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 14 of 165P9Discussions in which Pence apprised the defendant of conversations he had had withgovernors in Arizona and Georgia in the context of "election challenges," in which Pencehad called the governors "simply to gather information and share it with the president,”50and in which the governors did not report evidence of fraud in the elections in their statesand explained that they could not take actions to convene their states' legislatures. 51But the defendant disregardedand Pence in the same way that he disregardeddozens of court decisions that unanimously rejected his and his allies' legal claims, and that hedisregarded officials in the targeted states—including those in his own party—who stated publiclythat he had lost and that his specific fraud allegations were false. 52 Election officials, for instance,issued press releases and other public statements to combat the disinformation that the defendantand allies were spreading. 53 At one point long after the defendant had begun spreading false fraud439).50 GA 1039432).51 GA 427-429, GA431-435p. 432).52See GA 1018 (Pence, So Help Me God p.See GA 1018 (Pence, So Help Me GodOGA 1040 (Joint Statement 11/20/2020); GA 1041 (Statement 12/04/2020).53 See, e.g., GA 1043 (Letter to Maricopa County voters 11/17/2020); GA 838 (ArizonaGovernor'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 Secretaryof 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 PressConference 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 (GeorgiaSecretary of State News Release 12/07/2020); GA 1946 (Video of Georgia News Conference12/07/2020); GA 1948 (Video of Georgia Press Conference 12/16/2020); GA 1055-1057 (GeorgiaSecretary of State News Release 12/29/2020); GA 1949 (Video of Georgia Secretary of StateInterview 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 (MichiganLegislators' Joint Statement 11/20/2020); GA 1060-1062 (Michigan Attorney General andSecretary of State News Release 12/14/2020); GA 1063-1064 (Michigan Secretary of State webpage 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); GA1068-1070 (New Mexico Secretary of State News Release 12/14/2020); GA 1953 (Video ofP47 Interview with CNN 11/11/2020); GA 822 P47 Tweet 11/27/2020); GA 1071-1072(Pennsylvania Department of State Public Response Statement 12/29/2020); GA 1073-1076- 14-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 15 of 165claims, P15 a White House staffer traveling with the defendant, overheard him tell familymembers that "it doesn't matter if you won or lost the election. You still have to fight like hell.”54The defendant and his co-conspirators also demonstrated their deliberate disregard for thetruth—and thus their knowledge of falsity—when they repeatedly changed the numbers in theirbaseless fraud allegations from day to day. At trial, the Government will introduce severalinstances of this pattern, in which the defendant and conspirators' lies were proved by the fact thatthey 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 36,000non-citizens voted in Arizona; 55 five days later, it was “beyond credulity that a few hundredthousand didn't vote”; 5 three weeks later, “the bare minimum [was] 40 or 50,000. The reality isabout 250,000";57 days after that, the assertion was 32,000; 58 and ultimately, the conspiratorslanded back where they started, at 36,000—a false figure that they never verified or corroborated. 5956Ultimately, the defendant's steady stream of disinformation in the post-election periodculminated in the speech he gave at a privately-funded, privately-organized rally at the Ellipse onthe morning of January 6, 2021, in advance of the official proceeding in which Congress was tocertify the election in favor of Biden. 60 In his speech, the defendant repeated the same lies about(Wisconsin Elections Commission web page 11/05/2020); GA 1077-1081 (Wisconsin ElectionsCommission web page 11/10/2020); GA 1082-1087 (Wisconsin Elections Commission web page).54 GA 30855OGA 1890 at 20:46 (Common Sense with11/25/2020).56 GA 1906 at 2:06:25 (Video of Arizona Hotel Hearing 11/30/2020).57 GA 1980 at 18:5258 GA 1981 at 35:1959 GA 1106 (Dalton Rally Speech Draft Tr. 01/04/2021); GA 1134 (Ellipse Rally Speech Draft Tr.01/06/2021).60 GA 1114-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021); GA 1142-15-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 16 of 165election fraud in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin that had beenpublicly, or directly, debunked. 61 The defendant used these lies to inflame and motivate the largeand angry crowd of his supporters to march to the Capitol and disrupt the certificationproceeding. 62C. The Defendant Aimed Deceit at the Targeted States to Alter Their Ascertainmentand Appointment of ElectorsShortly after election day, the defendant began to target the electoral process at the statelevel by attempting to deceive state officials and to prevent or overturn the legitimate ascertainmentand appointment of Biden's electors. As President, the defendant had no official responsibilitiesrelated to the states' administration of the election or the appointment of their electors, and insteadcontacted state officials in his capacity as a candidate. Tellingly, the defendant contacted onlystate officials who were in his political party and were his political supporters, and only in stateshe had lost. The defendant's attempts to use deceit to target the states' electoral process playedout in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, as well as across theseand other states that used certain voting machines. In addition to the following evidence of thedefendant's conduct during the charged conspiracies, at trial the Government will elicit testimonyfrom 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 wouldhave been the best sources of information to determine whether there was any merit to specificallegations of election fraud in their states, the defendant never contacted any of them to ask.61 GA 1126-1129, GA 1131-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).62 GA 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021).-16-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 17 of 1651. ArizonaP16to ask himThe defendant was on notice that there was no evidence of widespread election fraud inArizona within a week of the election. On November 9, for instance, two days after news networksprojected that Biden had won, the defendant called Arizona Governorwhat was happening at the state level with the presidential vote count in Arizona. 63 At that point,though Fox News had projected that Biden had won the state, several other news outlets-including ABC, NBC, CNN, and the New York Times-had not yet made a projection.64 P16walked the defendant through the margins and the votes remaining to be counted, which wereprimarily from Pima County, which favored Biden, and Maricopa County, which was split.65P16 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 P16 askedthe defendant to send him supporting evidence. 67 Although the defendant said he would-stating,"we're packaging it up"―he never did. 68 Shortly thereafter, on November 13, Campaign ManagerP2told the defendant directly that a false fraud claim that had been circulating-that a63GA 656-65864); GA 727See, 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 carriesArizona, flipping a longtime Republican stronghold, CNN.COM, Nov. 13, 2020, available athttps://www.cnn.com/2020/11/12/politics/biden-wins-arizona/index.html; Luis Ferré-Sadurni etal., 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 athttps://www.nbcnewyork.com/news/politics/decision-2020/election-latest-biden-talks-to-world-leaders-about-virus/2718671/.65 GA 66766 Id.67 GA 65768 Id.-17-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 18 of 165substantial number of non-citizens had voted in Arizona-was false. 69 The same day, as notedpreviously, Campaign attorneys conceded in court that the remaining election lawsuit in Arizonawas moot.The defendant and CC1 continued to try to influence P16 For example, CC1tried to contact P16 on November 22—the same day the defendant and CC1 reached out tothe Arizona Speaker of the House, as described below. 70 And on November 30, the day P16signed the Arizona certificate of ascertainment formally declaring Biden's electors as thelegitimate electors for Arizona, P16 received a call from the defendant and Pence.7 P16advised them that Arizona had certified the election; when the defendant brought up fraud claims,P16 -eager to see the evidence—again asked the defendant to provide it, but the defendantnever did.72 Instead, later that evening and into the following morning, the defendant repeatedlypublicly attacked P16 (as well as Georgia GovernorP17 ) on Twitter, re-tweeting postsby others, such as "Who needs Democrats when you have Republicans like P17and P1673. "Watching the Arizona hearings and then watching Gov. P16 sign those papers, whybother voting for Republicans if what you get is P16 andran the most corrupt election in American history.'P1774.< P17'My stateP16'Hold my beer,>>75."and "Whyis P16 still pretending he's a member of the Republican Party after he just certifiedfraudulent election results in Arizona that disenfranchised millions of Republicans?”7669 GA 603-60870 GA 66171 GA 65872 GA 658, GA 667-66873 GA 840 (Trump Twitter Archive 11/30/2020).74 GA 833-834 (Donald J. Trump Tweet 11/30/2020).75 GA 831-832 (Donald J. Trump Tweet 11/30/2020).76 GA 839 (Trump Twitter Archive 12/01/2020).- 18-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 19 of 165The defendant and co-conspirators also attempted to use false fraud claims to convincepolitical allies in the Arizona state legislature to ignore the popular vote and appoint illegitimateelectors. On November 22, the defendant and CC1 called P18the Speaker of theArizona House of Representatives.7 77 CC1 did most of the talking.78 During the call, thedefendant and CC1 levied multiple false fraud claims—including of non-citizen, non-resident,and dead voters that affected the defendant's race and asked P18 to use them as a basis tocall the state legislature into session to replace Arizona's legitimate electors with illegitimate onesfor the defendant.79 When P18voiced his deep skepticism, CC1 said, "well, you know,we're all kind of Republicans and we need to be working together.” P18 refused, and askedCC1 to provide evidence supporting his fraud claims.81 CC180never did. 82Indeed, CC1met with P18 in person approximately a week later and still hadnothing to back up his claims. On November 30, CC1 P12 and others arrived in Arizona fora “hotel hearing”—an unofficial meeting with Republican legislators—―during which theypromoted false fraud allegations. 83 In a meeting the day after the hearing, when state legislatorspressed CC1and P12 for evidence to support their claims, CC1 conceded that even on thatlate date, "[w]e don't have the evidence, but we have lots of theories."84 When the legislators werefrustrated that CC1 had no support for his claims and asked him tough questions, CC1expressed surprise at the way he was being treated, stating "Man, I thought we were all77GA 73578See GA 3079GA 22-2480 GA 2881 GA 22-3382GA 25); GA 21-2283 GA 1906 at 56:19 (Video of Arizona Hotel Hearing 11/30/2020).84 GA 36- 19 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 20 of 165Republicans.... [T]his is a little more hostile a reception. I'm amazed at the reception I'm gettinghere."85On December 4, P18 released a public statement in which he explained that he did nothave the authority to use the legislature “to reverse the results of the election" and that doing sowould constitute an attempt "to nullify the people's vote based on unsupported theories of fraud."86P18 made clear that he was disappointed with the legitimate election results because he “voted987P19for President Trump and worked hard to reelect him” but would not “violate current law to changethe outcome of a certified election." On Twitter,a Campaign staffer who workedwith CC6attacked P18 for his statement, writing that P18 “is intentionally misleadingthe people of Arizona to avoid the inevitable.” The defendant re-tweeted P19 false post andpraised her. 88A month later, just two days before January 6, CC2attorneys and a co-conspirator-called P18 and P18-another of the defendant's privatecounsel,P20and urgedP18 one last time to use the legislature to decertify Arizona's legitimate electors and overturnthat there was no evidence of substantialthe valid election results. 89 When P18 told CC2fraud in Arizona, and that he could not legally call the legislature into session, CC2 wasundeterred. He conceded that he “[didn't] know enough about the facts on the ground” regarding85GA 3586 GA 1041-104287GA 104288Statement 12/04/2020).Statement 12/04/2020).GA 854-855 (Donald J. Trump Tweet 12/06/2020); GA 852-853 (Donald J. Trump Tweet12/06/2020).89GA 37-44); GA 408-409-20-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 21 of 165fraud in Arizona, and said that P18 should nonetheless falsely claim that he had the authority990to convene the legislature and “let the courts sort it out.” P18 again refused.⁹1was harassed; on several occasions, individualshome with bullhorns and screamed and honked their vehicle horns toIn the post-election period, P18gathered outside P18create noise. 92 Once, an individual in visible possession of a pistol and wearing a t-shirt in supportof a militia group came onto P18 property and screamed at him.93 At the time of these events,P18daughter was at home and was very ill, and the noise caused her “disruption and angst.”2. Georgia>>94The defendant had early notice that his claims of election fraud in Georgia were false.Around mid-November, Campaign advisor P4 told the defendant that his claim that a largenumber of dead people had voted in Georgia was false. 95 The defendant continued to press theclaim anyway, including in a press appearance on November 29, when he suggested that a largeenough number of dead voters had cast ballots to change the outcome of the election in Georgia.⁹Four days later, on December 3,CC1 orchestrated a presentation to a JudiciarySubcommittee of the Georgia State Senate. 97 In the morning in advance of it, CC1 had spokento the defendant on the phone for almost twenty minutes.98 And at the hearing, CC1 arrangedfor co-conspirators and agents to repeat the false dead voter claim. The claim was so patently false90 GA 114491GA 41-4292 GA 45-4793 GA 46-4794 GA 4795 GA 388-390); GA 3996 GA 1969 at 22:43-23:51 (Video of Trump Interview with Maria Bartiromo 11/29/2020).97 GA 1934 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020).98 GA 739 at 1-21-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 22 of 165P9attorney,P22that everyone around the defendant knew it: during the hearing, Chief of Staff P21exchanged text messages on their personal phones confirming that a Campaignhad verified that CC1 claim of more than 10,000 dead voters wasfalse and that the actual number was around 12 and could not be outcome-determinative.99andDuring the subcommittee hearing, the conspirators also set in motion a sensational anddangerous lie about election workers at State Farm Arena that would result in the defendant'ssupporters harassing and threatening those workers. First, P23 one of the defendant'sprivate attorneys, claimed that more than 10,000 dead people had voted in Georgia. 100 Next, P24an agent of the defendant, played misleading excerpts of closed-circuit camera footage fromState Farm Arena and insinuated that it showed election workers committing misconduct―counting "suitcases” of illegal ballots. 101 Lastly, based on the false fraud allegations, CC2who had already been engaged as a private lawyer for the defendant but did not disclose that at thehearing encouraged the Georgia legislators to decertify the state's legitimate electors. 102While the hearing was ongoing, the defendant simultaneously amplified themisinformation about the State Farm Arena election workers, falsely tweeting, "Wow!Blockbuster testimony taking place right now in Georgia. Ballot stuffing by Dems whenRepublicans were forced to leave the large counting room. Plenty more coming, but this alone99ECF No. 226 ¶ 26(a); GA 1146); see also GA 364-365100 GA 1934 at 30:54 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020); GA1146101 GA 1934 at 34:06 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020);ECF No. 226 ¶ 26(b).102GA 1934 at 4:44:05 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020).-22-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 23 of 165leads to an easy win of the State!”103 He did this just after re-tweeting two of his Campaignaccount's Tweets that promoted the false claim about election workers at State Farm Arena. 104Over the next week, the claim of misconduct at State Farm Arena was disproven publiclythe Chief Operatingas well as directly to the defendant. The day after the hearing,P25Officer of the Georgia Secretary of State's Office, posted a Tweet explaining that Secretary ofState officers had watched the video in its entirety and confirmed that it showed “normal ballotprocessing."105P25 again forcefully debunked the conspirators' claim about the State Farmvideo in a press conference on December 7, explaining at length the election workers' innocentconduct 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 misleadstate senators and the public about what was on that video. I'm quite sure that theywill not characterize the video if they try to enter it into evidence because that's thekind of thing that could lead to sanctions because it is obviously untrue. They knewit was untrue and they continue to do things like this.10106On December 8, the defendant called Georgia Attorney GeneralP26107 P26 hadadvance notice that the topic of the call was Texas v. Pennsylvania, an election lawsuit in whichTexas was suing other states—including Georgia—to attempt to prevent the certification of theelection. 108 U.S. Senator P27 told P26 that the defendant had heard that P26 was"whipping," or lobbying, other state attorneys general against filing amicus briefs in support of103 GA 846-847 (Donald J. Trump Tweet 12/03/2020).104 GA 845, GA 1893 (Donald J. Trump Tweet 12/03/2020); GA 844, GA 1894 (Donald J. TrumpTweet 12/03/2020).105GA 848 P25 Tweet 12/04/2020).106OGA 1933 at 8:43 (Video of Georgia Secretary of State Press Conference 12/07/2020).107GA 742108GA 61-62-23-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 24 of 165Texas.109 P26was not lobbying against the suit, and told P27 P27 asked P26 if he wouldspeak with the defendant about it, and P26 agreed. 110soShortly thereafter, the defendant called P26and immediately raised Texas v. Pennsylvania, saying, “I hope you're not talking to your AGs andencouraging them not to get on the lawsuit."111 P26 told the defendant that he was notaffirmatively calling other state attorneys general, but that if they called him, he was telling themwhat he was seeing in his state—which was something that the defendant probably did not wantto hear: P26 was just not seeing evidence of fraud in Georgia. 112 The defendant nonetheless raisedvarious fraud claims. P26 told him that state authorities had investigated the State Farm Arenaallegations and found no wrongdoing, and that he thought another claim the defendant raised aboutCoffee County, Georgia, had been similarly resolved, but would check. 113 The defendant askedP26 to look at them again “because we're running out of time.” 114 P26 tried to steer the call toan end by thanking the defendant and telling him that he had voted for him twice and appreciatedthe defendant, to which the defendant responded, “Yeah, I did a hell of a job, didn't I?”115 At onepoint, the defendant raised with P26 the impending run-off election for Georgia's U.S. Senateseats and how important it was to re-elect P27 and P28 116 The day after the call, thedefendant-in his private capacity as a candidate for president—intervened in support of Texas v.CC2 117Pennsylvania; his attorney for that matter was109 GA 62110GA 61-62111 GA 64112 Id.113 GA 65-66114 GA 66GA 67115116Id.1172023).Mot. to Intervene, Texas v. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 9, 2020).-24-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 25 of 165On the same day as the defendant's call with P26 the defendant's Campaign staffacknowledged that the State Farm Arena claim was unsupported, emailing one another about thefact that television networks may decline to run Campaign advertisements promoting it. Infrustration regarding the claim and others like it, P4 -who spoke with the defendant on a dailybasis 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 EliteStrike Force Legal Team, you can see why we're 0-32 on our cases. I'll obviously hustle to helpon all fronts, but it's tough to own any of this when it's all just conspiracy shit beamed down fromthe mothership."118On December 10, however, CC1further perpetuated the false State Farm Arena claimwhen 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 beenused in the December 3 hearing that had been debunked in the interim by Georgia officials, andnonetheless claimed that it showed "voter fraud right in front of people's eyes.""119 He then namedtwo election workers-P29and her mother,P30-and baselesslyaccused them of "quite obviously surreptitiously passing around USB ports as if they are vials ofheroin 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 voterfraud."120 As these false claims about P30 and P29 spread, the women were barraged byracist death threats. In the years since, they have spoken about the effect of the defendant and co-conspirators' lies about them; as P30explained in an interview with congressional118 GA 1147119 GA 1932 at 1:37:18-1:48:33 (Video of Georgia House Committee Hearing 12/10/2020).120GA 1932 at 1:57:10-1:58:00 (Video of Georgia House Committee Hearing 12/10/2020).-25-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 26 of 165investigators, "when someone as powerful as the President of the United States eggs on a mob,that mob will come. They came for us with their cruelty, their threats, their racism, and their hats.They haven't stopped even today."121 Indeed, to this day, the defendant has never stopped falselyattacking P30 and P29Although none of the false claims against them were evercorroborated, the defendant has continued to levy them on social media, including when thedefendant attacked P30 in January 2023 just after her testimony to congressional investigatorswas made public. 122Throughout the post-election period, the defendant used Twitter to publicly attack GeorgiaGovernor P17 with particular aggression. In the thirty-five days between November 30, 2020,and January 3, 2021, the defendant tweeted critically about P17 by name or title, more thanforty times. These tweets included the ones also attacking P16 described above, as well asothers particular to P17 like, "Why won't Governor @ P17the hapless Governor ofGeorgia, use his emergency powers, which can be easily done, to overrule his obstinate Secretaryof State, and do a match of signatures on envelopes. It will be a 'goldmine' of fraud, and we willeasily WIN the state”123; “I will easily & quickly win Georgia if Governor @ P17orthe Secretary of State permit a simple signature verification. Has not been done and will showlarge scale discrepancies. Why are these two ‘Republicans' saying no? If we win Georgia,everything else falls in place!"124; "The Republican Governor of Georgia refuses to do signatureverification, which would give us an easy win. What's wrong with this guy? What is he121 GA 171122GA 966 (Donald J. Trump Truth Social Post 01/03/2023); GA 964 (Donald J. Trump TruthSocial Post 01/02/2023); GA 965 (Donald J. Trump Truth Social Post 01/03/2023).123 GA 829-830 (Donald J. Trump Tweet 11/30/2020).124 GA 850-851 (Donald J. Trump Tweet 12/05/2020).-26-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 27 of 165hiding?"125; and "How does Governor @ P17allow certification of votes withoutverifying signatures and despite the recently released tape of ballots being stuffed? His pollnumbers have dropped like a rock. He is finished as governor!"126In the post-election period, the defendant also made false claims in court about fraud inGeorgia-unsuccessfully. For example, in Trump v. Kemp, a federal lawsuit in which thedefendant sued Georgia's Governor and Secretary of State, the defendant signed a verification offraud allegations that he and his attorney on the case,CC2 knew was inaccurate.spoke with the defendant and CC2 in late December regarding the proposed verification. First,he told CC2that they could not have theP9and another private attorney,P31defendant sign it because they could not verify any of the facts.¹127AndP9told thedefendant that any lawyer that signed the complaint that the verification supported would getdisbarred. 128CC2 acknowledged this problem in an email on December 31 to P32lead counsel for the defendant as candidate in Trump v. Kemp, and another private attorney, writingthat in the time since the defendant signed a previous verification in the case, he “had been madeaware 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) wouldnot be accurate." 129 Nonetheless, on December 31, the defendant signed the verification, andcaused it to be filed. 130CC2125 GA 857, GA 859 (Donald J. Trump Tweet 12/07/2020).126GA 864 (Donald J. Trump Tweet 12/10/2020).127 GA 238-239128GA 239129 GA 1152130Complaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.-27-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 28 of 165On January 2, Georgia Secretary of StateP33appeared on Fox News andsaid 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. Everyday, a rumor will pop up and then we whack it down. What we do is, we basicallywhack it down with the truth. And people can't handle the truth sometimes becausethey're very disappointed in the results. And I get that. I voted for President Trumpalso, but at the end of the day, we did everything we could. We did an audit of therace; President Trump still lost. Then we did a full recount; President Trump stilllost... we had a safe, secure process.P33131like P17 had been on the receiving end of the defendant's Tweets. Thesea so-called Republican, allowingincluded: “Why isn't the @GASecofStateP33us to look at signatures on envelopes for verification? We will find tens of thousands of fraudulentand illegal votes”; “RINOS @P17P34& Secretary of State P33will be solely responsible for the potential loss of our two GREAT Senators fromGeorgia, @P27& @ P28Won't call a Special Session or check for SignatureVerification! People are ANGRY!;” and “Georgia, where is signature verification approval? Whatdohaveyou@GaSecofState.”to lose? Must move quickly! @P17P34"132Shortly after seeing the interview, the defendant set up a call withP33to discussP33his pending private lawsuit, Trump v. Kemp, in whichFor this reason,P33was a named defendant.133at first hoped to avoid speaking with the defendant but ultimately131GA 1949 at 3:22 (Video of132P33Interview with Cavuto 01/02/2021).GA 813-814 (Donald J. Trump Tweet 11/24/2020); GA 862-863 (Donald J. Trump Tweet12/08/2020); GA 865-866 (Donald J. Trump Tweet 12/11/2020).133 GA 367-368Complaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.-28-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 29 of 165acquiesced because the defendant was persistent in seeking to set it up.P33arranged for his general counsel,134Also because of theP35to participate."135pending lawsuit,Joining the defendant on the call were Chief of Staff P21 and three private attorneys-andP36P32counsel of record in Trump v. Kemp and the attorneys whom CC2 hademailed about the defendant's false verification, and P31 whom P21 introduced on thecall 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 hadwon the election in Georgia, saying, “Okay, thank you very much. Hello P33 and P35 andeverybody. We appreciate the time and the call. So we've spent a lot of time on this, and if wecould just go over some of the numbers, I think it's pretty clear that we won. We won very136substantially, uh, Georgia.” Throughout the call, the defendant continued to state that he hadwon 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.” He did not reference other137elections on the same ballot. After the defendant's opening salvo,P33stated, "Well, Ilistened to what the President has just said. President Trump, we've had several lawsuits, andwe've had to respond in court to the lawsuits and the contentions. We don't agree that you have"138won.The defendant raised multiple false claims of election fraud, each of whichP33refuted in turn. When the defendant attacked P30called her "a professional vote scammer134GA 514135 GA 514-515136 GA 1154 (Tr. ofP33Call 01/02/2021).137 GA 1165 (Tr. ofP33Call 01/02/2021).138 GA 1157 (Tr. ofP33Call 01/02/2021).-29-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 30 of 165and hustler," 139 and mentioned her dozens of times throughout the call, P33said,"You're talking about the State Farm video. And I think it's extremely unfortunate that CC1"140or his people, they sliced and diced that video and took it out of context." He thenoffered the defendant a link to a video disproving the claim, to which the defendant responded, “Idon't care about a link, I don't need it. I have a much, P33 I have a much better link.”141 Whenthe defendant claimed that 5,000 dead people had voted in Georgia,P33said, "Well,Mr. President, the challenge you have is the data you have is wrong... The actual number weretwo. Two. Two people that were dead that voted. And so that's wrong, that was two.”142 Whenthe defendant claimed that thousands of out-of-state voters had cast ballots,P33counsel, P35responded, "We've been going through each of those as well, and thosenumbers that we got, that Ms. P31was just saying, they're not accurate."143P33and P35At one point, the defendant became frustrated after bothexplained repeatedly that his claims had been investigated and were not true and stated, “Andyou're gonna to find that they are which is totally illegal—it's, it's, it's more illegal for you thanit is for them because, you know what they did and you're not reporting it. That's a criminal, youknow, that's a criminal offense. And you know, you can't let that happen. That's a big risk to youand to P35 your lawyer. That's a big risk."144 The call ended withP35stating that he139GA 1155 (Tr. ofP33Call 01/02/2021).140GA 1160 (Tr. ofP33Call 01/02/2021).141 GA 1161 (Tr. ofP33Call 01/02/2021).142 GA 1159 (Tr. ofP33Call 01/02/2021).143 GA 1162 (Tr. ofP33Call 01/02/2021).144 GA 1165 (Tr. ofP33Call 01/02/2021).-30-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 31 of 165would coordinate with the lawyer representingP33office in the private lawsuit andget together with P32as agreed earlier in the call. 145StateThe day after the call, on January 3, the defendant falsely tweeted, “I spoke to Secretary ofyesterday about Fulton County and voter fraud in Georgia. He wasP33unwilling, or unable, to answer questions such as the ‘ballots under table' scam, ballot destruction,P33out of state 'voters', dead voters, and more. He has no clue!" 146promptlyresponded in a Tweet of his own: "Respectfully, President Trump: What you're saying is not true.The truth will come out.' "1473. MichiganOn November 20, three days before Michigan's Governor signed a certificate ofascertainment appointing Biden's electors based on the popular vote, the defendant met with P37Michigan's Senate Majority Leader and Speaker of the House, at theP39andP38Oval Office. 148 The defendant initiated the meeting by asking RNC Chairwomanto reach out to P38P39and gauge his receptivity to a meeting. 149 The defendant also askedto participate in the meeting, but P39 told him that she had consulted with herattorney and that she could not be involved in a meeting with legislators because it could beP39 made the first contact, on November 18, the defendant150 Afterperceived as lobbying.'reached out to P37andP38to extend an invitation. 151 The same day that he contacted145GA 1172-1173 (Tr. ofP33Call 01/02/2021).146 GA 919-920 (Donald J. Trump Tweet 01/03/2021).147 GA 925P33Tweet 01/03/2021).148 GA 555-557, 565149 GA 70-71150 GA 330-337151 GA 556-557-31-); GA 15

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 32 of 165P37and P38the defendant issued a false Tweet: "In Detroit, there are FAR MOREVOTES THAN PEOPLE. Nothing can be done to cure that giant scam. I win Michigan!"152When the defendant called P37 and P38 to invite them to the White House, he didnot provide the topic of the meeting, but he did ask about allegations of fraud in the election inMichigan. 153 The legislators told him that they and the Michigan legislature were examining theallegations. 154 Both P37 and P38assumed that the defendant wanted to see them todiscuss claims of election fraud, and they wanted to be firm that they had not seen evidence thatwould change the outcome of the election. 155 For this reason, and to avoid talking only aboutelection fraud, they prepared materials to raise regarding COVID-19, and planned in advance torelease a statement once the meeting was over that said that the legislators were unaware ofinformation that would change the outcome of the election. 156P21despite her requestOver the course of the meeting, the defendant dialed in both P39not to participate and CC1 157was present for some, but not all, of the meeting. 158After some small talk with the legislators in the Oval Office, the defendant raised various fraudclaims, including that he had lost Michigan because of fraud or misconduct in Wayne County,where Detroit is located.¹ 159P37 corrected the defendant and told him that he had lost primarilybecause in two routinely Republican counties, the defendant had underperformed with educated152OGA 797-798 (Donald J. Trump Tweet 11/18/2020).153GA 556-557154 GA 558155GA 74-78156GA 75157 GA 330-337561158 GA 361-362159 GA 562-564); GA 82); GA 560--32-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 33 of 165females, and if he had received the same number of votes there as the two winning local sheriffs,P37 could tell by the defendant's body language thathe likely would have won Michigan."160he was not happy to hear P37 assessment. 161 Notably, the defendant only raised fraud claimsto the extent that they affected the outcome in his own race, not those for other offices inMichigan.¹162CC1participation came after the legislators assured the defendant that they werelooking into fraud claims; the defendant dialed CC1 into the meeting and said, CC1 tell themwhat's going on." CC1 then launched into a fraud monologue. 163 Finally, P37 interruptedand asked, "So when are you going to file a lawsuit in Michigan?”—a question that CC1ignored and did not answer.164Immediately after the meeting, P37 and P38released a public statement in whichthey stated that they had “not yet been made aware of any information that would change the"165outcome of the election in Michigan." On November 21, the defendant acknowledged P37and P38 statement when he tweeted, "This is true, but much different than reported by themedia” and implicitly conceded that he had not provided evidence of fraud yet when he added,“We will show massive and unprecedented fraud!”166 Days later, the defendant's Campaign160GA 564161 GA 563-565162 GA 560-571163 GA 575164 GA 569165GA 1040166); GA 70-94); GA 567-569); GA 575 (Joint Statement 11/20/2020); GA 94-95GA 799-800 (Donald J. Trump Tweet 11/21/2020).- 33 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 34 of 165declined to request a state-wide recount in Michigan, for which it would have had to pay unlessthe recount succeeded in changing the outcome of the election. 167P38Despite failing to establish any valid fraud claims, CC1 followed up with P37 andand attempted to pressure them to use the Michigan legislature to overturn the validelection results. On December 4, CC1 sent a message to P38 claiming that Georgia waspoised to do so (based on CC1 andand asked P38CC2false advocacy there in the December 3 hearing)for help: "Looks like Georgia may well hold some factual hearings and changethe certification under ArtII sec 1 cl 2 of the Constitution. AsCC2explained they168 Ondon't just have the right to do it but the obligation. . . . Help me get this done in Michigan.”December 7, CC1 attempted to send P37 a message (though failed because he typed thewrong number into his phone): “So I need you to pass a joint resolution from the Michiganlegislature that states that, * the election is in dispute, * there's an ongoing investigation by theLegislature, and * the Electors sent by Governor Whitmer are not the official Electors of the Stateof Michigan and do not fall within the Safe Harbor deadline of Dec 8 under Michigan law.”Campaign operative P5 was involved in the drafting of this message with the assistance ofP41170who was associated with the defendant's Campaign efforts in Michigan.following day, CC1 shared the draft with the defendant, sending it to his executive assistant,169TheP42by email. 171167 GA 49-53168 GA 1175GA 11771691187170 GA 1188171 GA 1189); GA 15-19); GA 1178--34-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 35 of 165These efforts failed. On December 14, the day that duly-appointed electors across thecountry met and cast their electoral votes, P37 and P38issued public statementsconfirming that the defendant had lost Michigan and the legislators still had not received evidenceof outcome-determinative fraud in their state. 172 P37public statement included, “[W]e havenot received evidence of fraud on a scale that would change the outcome of the election inMichigan.'"173P38stated, in part:We've diligently examined these reports of fraud to the best of our ability. . . Ifought hard for President Trump. Nobody wanted him to win more than me. Ithink he's done an incredible job. But I love our republic, too. I can't fathomrisking our norms, traditions and institutions to pass a resolution retroactivelychanging the electors for Trump, simply because some think there may have beenenough widespread fraud to give him the win. That's unprecedented for goodreason. And that's why there is not enough support in the House to cast a new slateof electors. I fear we'd lose our country forever. This truly would bring mutuallyassured destruction for every future election in regards to the Electoral College.And I can't stand for that. I won't. 174On January 3, the defendant's Campaign publicly posted P37 phone number, andattempted to post P38 (but erred by one digit), in a Tweet urging, “Contact SpeakerP38175ייןP37received four thousand text176P37& Senate Majority Leadermessages in two hours, forcing him to get a new phone number.4. NevadaOn 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 based172GA 1190-1192173 GA 1191Press Releases 12/14/2020).Press Releases 12/14/2020).174 GA 1192175Press Releases 12/14/2020).GA 917 (Team Trump Tweet 01/03/2021); GA 918 (Team Trump Tweet 01/03/2021).176 GA 573-574, 576-577-35-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 36 of 165on machines used in ballot signature matching and votes by non-resident and dead voters.defendant approved a press conference by his surrogates announcing the suit. 178On November 19,P43177 Thethe RNC Chief Counsel, sent an email to P44an RNC spokesperson, warning about inaccuracies in the suit: “Just FYI that I don'tbelieve the claims in the contest regarding dead voters, those voting from out-of-state, etc. aresubstantiated. We are working with the campaign on a data matching project and those numbersare going to be a lot lower than what the NV people have come up with. They are also targetingour military voters. To be frank, the contest has little chance of succeeding. Happy to discuss thisthen sent a copy of P43email from her personalemail account to the personal email account of P45"179P44stuff if you want more info.”staffers who also volunteered for the Campaign.180one of the defendant's White HouseNotwithstanding the RNC Chief Counsel's warning, the defendant re-tweeted andamplified news of the lawsuit on November 24, calling it “Big News!” that a Nevada Court hadagreed to hear it. 181 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 opinionthat "there is no credible or reliable evidence that the 2020 General Election in Nevada wasaffected by fraud,” including through the signature-match machines, and that Biden won theelection in the state. 182 Four days later, on December 8, Nevada's Supreme Court unanimously177 Complaint at 1, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Nov. 17, 2020) availableat: https://electioncases.osu.edu/wp-content/uploads/2020/11/Law-v-Gloria-Complaint.pdf; GA1963 (Video of Trump Campaign Press Conference 11/17/2020).178OGA 1193-1194179 GA 1195180 GA 1196-1197, 1195181 GA 817-818 (Donald J. Trump Tweet 11/24/2020).182Order at 13-24, 28-34, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Dec. 4, 2020)-36-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 37 of 165affirmed the District Court's decision, noting that despite its “earlier order asking appellants toidentify specific findings with which they take issue, appellants have not pointed to anyunsupported factual findings, and we have identified none. Later, in his Ellipse speech on"183January 6, the defendant repeated multiple claims explicitly rejected by Nevada courts. 184On 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 theelection, including false claims that the Secretary of State's Office had not investigated claims offraud even though it had “been presented with evidence of wide-spread fraud”—to which theOffice responded, “While we are pursuing action in a number of isolated cases, we have yet to seeany evidence of wide-spread fraud.” " 185 The "Facts vs. Myths" document also stated publicly thatcourts had universally rejected fraud claims: “Four separate cases were heard by Nevada judgesincluding the NV Supreme Court. After examining records presented, each case was discounteddue to a lack of evidence."1865. PennsylvaniaP46theTwo days after the election, on November 6, the defendant calledChairman of the Pennsylvania Republican Party—the entity responsible for supporting Republicanavailable at:https://electioncases.osu.edu/wp-content/uploads/2020/11/Law-v-Gloria-Order-Granting-Motion-to-Dismiss.pdf.183 Law v. Whitmer, 136 Nev. 840 (Nev. 2020).184Compare Order at 18-20, Law v. Whitmer, No. 200C001631B (Nev. Dist. Ct. Dec. 4, 2020)available at: https://electioncases.osu.edu/wp-content/uploads/2020/11/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) (“Therewere also more than 42,000 double votes in Nevada"; "1,500 ballots were cast by individualswhose names and dates of birth match Nevada residents who died in 2020 prior to November 3rdelection. More than 8,000 votes were cast by individuals who had no address and probably didn'tlive there.").185 GA 1198 (Nevada Facts vs. Myths 12/18/2020).186OGA 1199 (Nevada Facts vs. Myths 12/18/2020).-37-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 38 of 165P46 had a priorcandidates in the commonwealth at the federal, state, and local level. 187relationship with the defendant, including having represented him in litigation inPennsylvania after the 2016 presidential election. 188 The defendant asked P46 how, withoutfraud, he had gone from winning Pennsylvania on election day to trailing in the days189afterward.¹ Consistent with what Campaign staff already had told the defendant, P46confirmed that it was not fraud; it was that there were roughly 1,750,000 mail-in ballots stillbeing counted in Pennsylvania, which were expected to be eighty percent for Biden. 190 Over thefollowing two months, the defendant spread false claims of fraud in Pennsylvania anyway.In early November, in a Campaign meeting, when the defendant suggested that morepeople in Pennsylvania voted than had checked in to vote, Deputy Campaign Manager P3corrected him.191 Around the same time, Philadelphia City CommissionerP47 appeared192AfterP47aon television and stated that there was no evidence of widespread fraud in Philadelphia.seeing the interview, the defendant targeted P47tweeting, "A guy namedPhiladelphia Commissioner and so-called Republican (RINO), is being used big time by the FakeNews Media to explain how honest things were with respect to the Election in Philadelphia. Herefuses to look at a mountain of corruption & dishonesty. We win!" 193 As a result of thedefendant's attack, threats that P47already was receiving became more targeted anddetailed and included his address and the names of his family members. 194187GA 618-619); GA 723-724188 GA 616-617189 GA 619-620190GA 620191 GA 159192 GA 1953 at 2:20-4:13 (Video of P47Interview with CNN 11/11/2020).193 GA 777-778 (Donald J. Trump Tweet 11/11/2020).194GA 550-551-38-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 39 of 165On the defendant's behalf, CC1 too spread patently false claims about Pennsylvania.On November 25, CC1 and P12 attended an unofficial hearing with Republican statelegislators in a Gettysburg hotel conference room. The defendant called in, claimed to have195"196been watching, and demanded that the election in Pennsylvania “has to be turned around.”During the event, CC1 falsely stated that Pennsylvania issued 1.8 million absentee ballots andreceived 2.5 million in return. 197 The claim was rooted in an obvious error-the comparison ofthe number of ballots sent out in the primary election to the number of ballots received in thegeneral election. After seeing CC1 make this claim, P43 the RNC's Chief Counsel,tweeted publicly, “This is not true.”198 In the following days, Campaign staff internally confirmedthat CC1was lying; when one Campaign staffer wrote in an email that CC1 claim was“just wrong” and “[t]here's no way to defend it," P3 responded, “We have been saying this fora while. It's very frustrating."199 Likewise, in late November or December, P9the defendant directly that a claim CC1 was spreading, that "Pennsylvania received 700,000more mail-in ballots than were mailed out,” was “bullshit” and explained the error.200informedP43 followed up on his public Tweet in a private email on November 28 to P44the RNC spokesperson, expressing his concern about CC1 and P12 spread of disinformation:"I'm really not trying to give you a hard time but what CC1 and P12 are doing is a joke andthey are getting laughed out of court. It's setting us back in our fight for election integrity and195GA 1945 (Video of Pennsylvania Hotel Hearing 11/25/2020).196GA 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 P43 Tweet 11/25/2020).199 GA 1203-1206200 GA 721); GA 1207-1208- 39 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 40 of 165they are misleading millions of people who have wishful thinking that the president is going to"201somehow win this thing.” When CC1 learned of P43Tweet and email, on November28, he called P43 and left a threatening voicemail, stating, “I really do need an explanation forwhat you said today because if there isn't a good one, you should resign. Got it? So call me orCC1 alsoI'll call the boss and get you to resign. Call me. It'd be better for you if you do."202contacted RNC ChairwomanP39to demand that P43 be fired, and thereafter P43 wasrelieved of his duties as RNC Chief Counsel.2 203On December 3, four Republican leaders of the Pennsylvania legislature issued a publicletter stating that the General Assembly lacked the authority to overturn the popular vote andappoint its own slate of electors, and that doing so would violate the state Election Code andConstitution.2 204P48-an agent of the defendant who worked closely with CC1issued a Tweet showing the four legislators' names and signatures and wrote, "These are the fourcowardice Pennsylvania legislators that intend to allow the Democrat machine to #StealtheVote!#Cowards #Liars #Traitors” while linking to the legislators' Twitter accounts.205 On SundayDecember 6, at 12:56 a.m., from the White House residence having just returned from a politicalrally in Valdosta, Georgia—the defendant re-tweeted and amplified P48 post. 206201 GA 1209202 GA 1976203OGA 1210-12141215); GA); GA 342-346 (204 GA 1222-1223 (Letter from Pennsylvania Legislators 12/03/2020); GA 173205GA 849Tweet 12/04/2020).206GA 856, 858 (Donald J. Trump Tweet 12/06/2020).-40-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 41 of 1656. WisconsinOn November 29, a recount that the defendant's Campaign had petitioned and paid forconfirmed that Biden had won in Wisconsin—and increased the defendant's margin of defeat. 207On December 14, the Wisconsin Supreme Court rejected the Campaign's election lawsuit there. 208As a result, on December 21, Wisconsin's Governor signed a certificate of final determinationconfirming the prior certificate of ascertainment that established Biden's electors as the validelectors for the state. 209In response, the defendant issued a series of Tweets attackingWisconsin Supreme Court Justice who had written the majority opinion rejecting his Campaign'slawsuit and advocating that the Wisconsin legislature overturn the valid election results:P49theTwo years ago, the great people of Wisconsin asked me to endorse a man namedP49 for State Supreme Court Justice, when he was getting destroyed inthe Polls against a tough Democrat Candidate who had no chance of losing. Aftermy endorsement, P49 easily won! WOW, he just voted against me in a BigCourt Decision on voter fraud (of which there was much!), despite many pages ofdissent from three highly respected Justices. One thing has nothing to do withanother, but we ended up losing 4-3 in a really incorrect ruling! Great Republicansin Wisconsin should take these 3 strong decisions to their State Legislators andoverturn this ridiculous State Election. We won in a LANDSLIDE! 210After the defendant's Tweet, the state marshals responsible for P49safety arrangedto provideP49 with additional police protection based on social media traffic and otherthreatening communications. 211207GA 1224-1225 (Wisconsin Order for Recount 11/19/2020); GA 1226 (Wisconsin Statement ofCanvass 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 Tweets12/21/2020).211 GA 184-186, GA 188-189- 41 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 42 of 1657. Voting Machines in Multiple StatesThroughout the post-election period, the defendant and co-conspirators repeatedly madeclaims about the security and accuracy of voting machines across multiple states, despite the factthat they were on notice that the claims were false. As early as November 12, for instance, theNational 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 thatthe 2020 election was “the most secure in American history” and that there was “no evidence thatany voting system deleted or lost votes, changed votes, or was in any way compromised."212On November 14, in the Tweet announcing that CC1 was to lead his Campaign legalefforts, the defendant also named CC3 a private attorney who was fixated on voting machineclaims, and P10 another private attorney. 213 Two days later, on November 16, on thedefendant's behalf, executive assistant P42 sent CC3 and other private attorneys an email,titled "From POTUS," attaching a document containing bullet points critical ofC3a company that manufactured voting machines used in certain states, and writing, “Seeattached – Please include as is, or almost as is, in lawsuit.”214 CC3 responded nine minutes later,writing, "IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUDCLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states andmachines impounded for non-partisan professional inspection.”215On November 17, P50 the director of the Department of Homeland Security'sCybersecurity and Infrastructure Security Agency (CISA), publicly tweeted that a group of private212 GA 1236 (Election Security Joint Statement 11/12/2020).213 GA 784-785 (Donald J. Trump Tweet 11/14/2020).214 GA 1238-1239215 GA 1240-42-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 43 of 165election security experts concluded that claims of computer-based election fraud “either have beenunsubstantiated or are technically incoherent."216Two days later, on November 19, CC1 CC3P10and others held a pressconference at the RNC headquarters, on behalf of the defendant and his Campaign. 217 During it,CC3 made false and factually impossible claims regarding C3 and the integrity of thecountry's election infrastructure.2218 That night, Fox News television personalityP51stated on air that because of CC3 incendiary comments about voting machines, he had invitedher on his television program. He further stated, “[b]ut she never sent us any evidence, despite alot of requests, polite requests. Not a page. When we kept pressing, she got angry and told us tostop contacting her. When we checked with others around the Trump Campaign, people inpositions of authority, they told us CC3 has never given them any evidence either . . . she neverdemonstrated that a single actual vote was moved illegitimately by software from one candidateto another. Not one.""219The defendant saw his private attorneys' RNC press conference and P51 discussionof CC3 and he acknowledged to P4 that CC3 had appeared “unhinged” in the pressconference. 220 On November 20, the day after the press conference, the defendant made a similarcomment to P7 and P45 two White House staffers who also volunteered for his221Campaign.2 In casual conversation after another meeting had ended, the defendant told P7216 GA 790 P50 Tweet 11/17/2020).217 GA 1950 (Video of RNC Press Conference 11/19/2020).218 GA 1950 at 38:58-52:34 (Video of RNC Press Conference 11/19/2020).219GA 1972 at 9:18-10:02 (Video of P51 Show 11/19/2020).220 GA 391-392221 GA 248-249); GA 528-43-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 44 of 165andP45 that P51had “eviscerated” or “destroyed" CC3 222 The defendant then had acall with CC3 on speakerphone, while P7 and P45 listened in, and mentioned the P51segment to CC3 223 While CC3 responded, the defendant placed the call on mute and to P7and P45 mocked and laughed at CC3 called her claims “crazy,” and made a reference tothe science fiction series Star Trek when describing her allegations. In the same time period,P9told the defendant that CC3 claims were unreliable and should not bewhen224included in lawsuits, the defendant agreed that he had not seen anything to substantiate CC3allegations.2225CC3CC3On November 22, notwithstanding the defendant's Tweet from eight days prior announcinginvolvement, CC1issued a statement on behalf of the Campaign distancing thedefendant from CC3is practicing law on her own. She is not a member of the"226Trump Legal Team. She is also not a lawyer for the President in his personal capacity."Nonetheless, the defendant continued to support and publicize CC3 knowingly false claims.For example, within days of CC1statement, the defendant promoted a lawsuit that CC3was about to file, tweeting on November 24, “BREAKING NEWS: @ CC3says herlawsuit in Georgia could be filed as soon as tomorrow and says there's no way there was anythingbut widespread election fraud. #MAGA #AmericaFirst #Dobbs." 227 CC3 filed a lawsuit the nextday against the Governor of Georgia falsely alleging “massive election fraud” accomplished222 GA 258-259223 GA 256-259224 GA 258-260225GA 206226GA 1241 (Trump Campaign Statement 11/22/2020).227GA 815-816 (Donald J. Trump Tweet 11/24/2020).- 44 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 45 of 165through C3 election software and hardware. 228 The defendant again promoted the lawsuitin a Tweet. 229 The lawsuit was dismissed within two weeks, on December 7.230On November 29, P50 who was no longer the CISA Director, appeared on the televisionprogram 60 Minutes. 231 P50 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."232 In response, thedefendant tweeted publicly about P50appearance: "@60Minutes never asked us for acomment about their ridiculous, one sided story on election security, which is an international joke.C3Our 2020 Election, from poorly ratedto a Country FLOODED with unaccounted forMail-In ballots, was probably our least secure EVER!”233 A few days later, P10 appearedon a radio program as the defendant's agent and said that because of P50 comments to promoteconfidence in the security of the election infrastructure, P50 "should be drawn and quartered."234Taken out at dawn and shot." Thereafter, P50 was subjected to death threats.235In a pressa Georgiaconference on December 1 that the defendant acknowledged watching, 236 P25election official, decried P10 and the defendant's public statements spreadingdisinformation and said that if they did not stop, "someone is going to get killed.”"237228Complaint at 2, Pearson v. Kemp, No. 1:20-cv-4809 (N.D. Ga. Nov. 25, 2020), ECF No. 1.229 GA 820-821 (Donald J. Trump Tweet 11/26/2020).230Transcript of Mots. Hr'g at 41-44, Pearson v. Kemp, (N.D. Ga. Dec. 7, 2020), ECF No. 79.231 GA 1940 (Video of P50 on 60 Minutes 11/29/2020).232 GA 1940 at 4:14-4:19 (Video of P50 on 60 Minutes 11/29/2020).233 GA 825-826 (Donald J. Trump Tweet 11/29/2020).234 GA 1887 (Audio of P10 on235 GA 295-29611/30/2020).236 GA 841-842 (Donald J. Trump Tweet 12/01/2020).237 GA 1961 at 3:32-3:55 (Video of P25 Press Conference 12/01/2020).-45-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 46 of 165On December 1, Attorney General P52stated publicly that the Justice Departmenthad not seen evidence of fraud sufficient to change the election results. 238 With respect to votingmachines, he said, "There's been one assertion that would be systemic fraud and that would be theclaim that machines were programmed essentially to skew the election results. And the DHS andDOJ have looked into that, and so far, we haven't seen anything to substantiate that."239 CC1and P12 immediately issued a formal Campaign statement attacking P52 and the JusticeDepartment, writing, “With all due respect to the Attorney General, there hasn't been anysemblance of a Department of Justice Investigation . . . his opinion appears to be without anyknowledge or investigation of the substantial irregularities and evidence of systemic fraud.”"240In mid-December, the defendant spoke with RNC Chairwoman P39 and asked her topublicize and promote a private report that had been released on December 13 that purported toidentify flaws in the use of C3 machines in Antrim County, Michigan. 241refused, telling the defendant that she already had discussed the report withSpeaker of the House, who had told her that the report was inaccurate.2 P39242P39P38Michigan'sconveyed tothe defendantP38exact assessment: the report was “fucking nuts.”"243On January 2, during the defendant's call with Georgia Secretary of StateP33said of false claims regarding voting machines, “I don't believe that you're reallyquestioning the C3machines. Because we did a hand re-tally, a 100 percent re-tally of allthe ballots, and compared them to what the machines said and came up with virtually the same238 GA 12-13239GA 1242-1243 (Email from Comms Alert 12/01/2020).240 GA 1244 (Trump Campaign Press Release 12/01/2020).241 GA 338-339242 GA 339-341243 Id.-46-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 47 of 165result. Then we did the recount, and we got virtually the same result. So I guess we can probablytake that off the table.”244 In response, the defendant falsely claimed that “in other states, we thinkwe found tremendous corruption with C3machines, but we'll have to see.”"245At the Ellipse on January 6, the defendant and co-conspirators who spoke at the rallycontinued to make unsubstantiated and false claims about C3 machines. CC1 claimedthat in the U.S. Senate run-off election in Georgia the day before, “the votes were deliberatelychanged by the same algorithm that was used in cheating President Trump and Vice PresidentPence."246CC2 continued the false attack: “We now know because we caught it live last timein real time, how the machines contributed to that fraud. . . . They put those ballots in a secretfolder in the machines sitting there waiting, until they know how many they need. And then themachine after the close of polls, we now know who's voted. And we know who hasn't. And I cannow in that machine match those unvoted ballots with an unvoted voter and put them together inthe machine. . . . We saw it happen in real time last night and it happened on November 3rd asIn his own speech, the defendant again raised the false specter of “the highly troublingand lied about machines flipping votes from the defendantwell."247matter ofC3to Biden and an "astronomical and astounding” error rate in the machines' ballot scanning. 248D. The Defendant Organized and Caused His Electors to Submit FraudulentCertificates Creating the False Appearance That States Submitted CompetingElectoral SlatesBy late November 2020, every effort—both legitimate and illegitimate—that the defendanthad made to challenge the results of the election had been unsuccessful. The defendant, his244GA 1889 at 15:58-16:27 (Audio of Trump-P33Call 01/02/2021).245GA 1889 at 16:32-17:26 (Audio of Trump-P33Call 01/02/2021).246GA 1928 at 2:22:41-2:23:07 (Video of Ellipse Rally 01/06/2021).247GA 1928 at 2:25:25-22:26:56 (Video of Ellipse Rally 01/06/2021).248 GA 1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).-47-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 48 of 165Campaign, and their allies had lost or withdrawn one election lawsuit after another in the seventargeted states. And the defendant and co-conspirators' efforts to overturn the legitimate votecount through a pressure campaign on state officials, and through false claims made directly tostate legislators in formal or pseudo-hearings, continued to fail. So in early December, thedefendant and his co-conspirators developed a new plan regarding the targeted states that thedefendant had lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, andWisconsin): to organize the people who would have served as the defendant's electors had he wonthe popular vote, and cause them to sign and send to Pence, as President of the Senate, certificationsin which they falsely represented themselves as legitimate electors who had cast electoral votesfor the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulentelectoral votes mere pieces of paper without the lawful imprimatur of a state executive―tofalsely claim that in his ministerial role presiding over the January 6 certification, Pence had theauthority 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 ofmemoranda drafted in late November and early December by CC5 an attorney whovolunteered to assist the defendant's Campaign in lawsuits challenging the election inWisconsin. 249CC5 advocated thatBeginning with a memorandum drafted on November 18,the defendant's elector nominees in Wisconsin meet and cast votes on the date required by theECA (in 2020, December 14) in the event that an ongoing recount in the state reversed thedefendant's loss there.2250 But this course of action—whichCC5Wisconsin memorandum249 GA 1245-1246250 GA 1249-1255 CC5 memo 11/18/2020).-48-); GA 1247-1248

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 49 of 165CC5presented as a contingency plan to preserve the possibility that the defendant's electors' votes becounted at the January 6 certification proceeding if he prevailed in the Wisconsin litigation andwon the state quickly transformed into a corrupt strategy to overturn the legitimate electionresults. 251revealed this obstructive plan in two additional memoranda, dated December6252 and December 9, 253 which proposed that the defendant's elector nominees in six of the targetedstates—all but New Mexico, a state the defendant lost by more than ten percent of the popularvote, sparsely referenced in his false claims of voter fraud, and did not envision challenging at theinception of the elector scheme²: -meet on December 14, sign fraudulent certifications, and send254them to the Vice President to manufacture a fake controversy during the January 6 congressionalcertification.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 in the targeted states, andmonitored its progress. By December 5, the defendant was starting to think about Congress's rolein the election process; for the first time, he mentioned to Pence the possibility of challenging theelection results in the House of Representatives. 255 In the same call, Pence told the defendant thatthe Georgia Bureau of Investigation was investigating their race.256251GA 1256-1259252 GA 1260-1265 CC5253memo 12/06/2020).GA 1266-1270 CC5 memo 12/09/2020).254 GA 1271; GA 1272 (New MexicoCertificate of Ascertainment); GA 1273-1282S255GA 1283-1284GA 1019 (Pence, So Help Me God, p. 433).256 GA 1283-1284); GA 436-437; GA 438-439- 49 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 50 of 165On December 6, the same day thatCC2 called RNC Chairwoman P39CC5put the plan on paper,257the defendant andout of the blue. 258 P39did not know CC2and the defendant introduced him toP39by saying that he was a professor and lawyer;thereafter, CC2 was the primary speaker during the conversation. 259 CC2 told P39that he and the defendant wanted the RNC "to help the campaign assemble the electors in the stateswhere we had legal challenges, or litigation that was ongoing . . . in case any of that litigationchanged the result of a state so that it would meet the constitutional requirement of electorsP39immediately called P3 one of the defendant'sdeputy Campaign managers, and relayed her conversation with the defendant and"260meeting.' When the call ended,CC2 261After P3 assured P39that the Campaign was “on it,” P39called the defendant backand told him so.262On the same day, from his personal email account,P21forwarded toCampaign staff CC5November 18 memorandum and wrote, “We just need to have someonecoordinating the electors for states.""263 And the following day, on the evening of December 7,CC1 sent P39a text message stating in part, “I have lawyers assigned in each stateworking on Dec 14 electors meeting and what they need. I will send you a list.”264The defendant's co-conspirators worked with his Campaign staff, and used his pre-electionCampaign apparatus, to execute the fraudulent elector plan.257GA 1260-1265 CC5 memo 12/06/2020).258 GA 323-325259GA 324-325260 GA 325261 GA 325-327262 GA 326-327263 GA 1285264 OGA 1286-1287265 GA 1288-1290265 The defendant communicated with); GA 1247- 50 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 51 of 165CC5 267 Ultimately, P5CC1 and CC2 about the plan, ,266 and they in turn communicated with CC6 andP19 and other Campaign staff and agents helped carry outCC5plans.2268On December 8,CC5spoke on the phone withP53269a private attorneywhom CC1 and CC6had identified as a contact for the plan in Arizona. 270 Following thecall,P53 recounted the conversation in an email:CC5His idea isI just talked to the gentleman who did that memo,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 signedby Governor); so that members of Congress can fight about whether they should becounted on January 6th. (They could potentially argue that they're not bound byfederal 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 Penceso that "someone" in Congress can make an objection when they start countingvotes, and start arguing that the “fake” votes should be counted.2271On December 9, CC6 contacted P39 for assistance with a request from CC5"272P39CC6to P3 273 The next day, atfor "a list of our electors in each state and copies of the certificates sent in 4 years ago."responded that Campaign employees were already assisting in the effort and referredCC1 direction, CC5generated directions to the266OGA 1291-1295267 GA 1296-1299268GA 1312-13171320269 GA 1296-1299270 GA 1325271 GA 1296-1299272 GA 1326-1327273 GA 1288-1290-51-; GA 1300-1309); GA 1318-); GA 1321-1324

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 52 of 165electors 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 inwhich valid electors were required by state law to gather and vote, along with fraudulentcertificates of vote for the defendant's electors to sign. 274The day before the defendant's electors were scheduled to meet and sign fraudulentcertificates of vote, the defendant asked Campaign advisor P4 for an update on the elector planand directed P4to issue a statement, and CC1 asked P4 to participate in a messagingconference call. 275Campaign Staffer P54P4discussed these developments in a text thread withP3andP9After P4 proposed a communications planfor the Campaign on the elector vote,P9wrote to P3 “I'll call soon and we'll talkwith boss.”276 The participants then discussed to whom a Campaign statement could be attributed.P3 wrote, "Here's the thing the way this has morphed it's a crazy play so I don't know whowants to put their name on it.”277 P4 then shared with those on the text thread the invitees tothe call CC1 was convening- CC1CC6 P12 P19P55and P56and derogatorily referred to them as the "Star Wars bar,” meaning a motley assortment ofcharacters, and in this case specifically ones whose professional competence P4 doubted and274 GA 1328; GA 1310-1311); GA 1321-1324); GA 1334-1335); GA 1336-1338 (toGA 1345-1346); GA 1339-1341 (); GA 1342-1344 (275 GA 1300GA 394-395276 GA 1301277 GA 1304-52-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 53 of 165whom he personally would not choose to hire. 278 P9Votes."279responded, "Certifying illegalThereafter, the text participants collectively agreed that no message would go out undertheir names because they "can't stand by it."280 In the midst of these text messages,P9P4and P3 had a nineteen-minute phone call with the defendant. 281In practice, the fraudulent elector plan played out somewhat differently in each targetedstate. In general, the co-conspirators deceived the defendant's elector nominees in the same waythat the defendant and CC2 deceived P39 by falsely claiming that their electoral voteswould be used only if ongoing litigation were resolved in the defendant's favor. 282 A select fewof the defendant's agents and elector nominees, however, had insight into the ultimate plan to usethe fraudulent elector certificates to disrupt the congressional certification on January 6.283 Inseveral states, the defendant, his co-conspirators, and agents were unable to convince all of thedefendant's elector nominees to participate.2P57284for instance, a former U.S.Representative and U.S. Attorney and one of the defendant's elector nominees in Pennsylvaniawho opted out of the plan, told the state party vice chair trying to organize the defendant's electors278GA 1305-1306); GA 396-397279GA 1306280GA 1308281GA 744282 GA 1347-13491350-1356GA 517-518283284GA 1888 at 3:15-4:322020); GA 97-98); GAD;2020); GA 1296-1299D;); GA 320-321See, e.g., GA 625-633 (GA 265); GA 1362-1365 (Fraudulent “Georgia's Electoral Votes forPresident and Vice President"); GA 1372-1373 (Fraudulent “Michigan's Electoral Votes forPresident and Vice President"); GA 1383-1389 (Fraudulent “Pennsylvania's Electoral Votes forPresident and Vice President").-53-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 54 of 165285that he would not participate because the plan did not follow the proper process and was illegal.”When electors like P57 declined, the conspirators and agents had to recruit substitutes willingto go along with the plan.² Other electors who participated based on the conspirators' falseassurances that their votes were only a contingency were later surprised to learn that they were286used on January 6—and would not have agreed to participate if the conspirators had been truthfulabout their plan.2287In Pennsylvania, the defendant's elector nominees' concern about the propriety of the planpresented a problem for the conspirators. In text messages that P5 and CC6 exchangedon December 11 into the early morning hours of December 12, P5told CC6 that P46the state Republican Party Chairman whom the defendant had called shortly after the election28"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."289"290288CC6 responded,replied, “That's the plan."Have someone who knows him call him to tell him to stop.' P5PA is squishy right now. Going to need a call withCC1"291tomorrow.On December 12, CC1organized by the Campaign to placate the defendant's Pennsylvania electors. 292CC5CC6and others held a conference callCC1 falsely285 GA 320-321286 GA 519-520024).287 GA 164-165); GA 522-523); GA 488-495); GA 723-724, GA 726288 GA 618-619289 GA 1318290 GA 1319291 Id.292 GA 1394-1398-54-); GA 1399

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 55 of 165294assured them that their certificates of vote would be used only if the defendant succeeded inlitigation. 293During the call, some of the defendant's conspirators and agents exchanged textmessages expressing frustration at the electors' concerns. P5 wrote, "Whoever selectedthis slate should be shot." P12 responded, “These people are making this so much morecomplicated than it needs to be omg” and “We couldn't have found 20 people better than this???”P5 agreed, writing, “We need good substitutes.”295 When the possibility arose that theelectors' certificates of vote include conditional language making clear that they were not yet theduly-appointed electors, P5wrote, “The other States are signing what CC5if it gets out we changed the language for PA it could snowball.”"296prepared -On December 13, the eve of when the electors were to meet, the defendant was preoccupiedwith preventing the certification of the electoral vote. He tweeted: "Swing States that have foundmassive VOTER FRAUD, which is all of them, CANNOT LEGALLY CERTIFY these votes ascomplete & correct without committing a severely punishable crime. Everybody knows that deadpeople, below age people, illegal immigrants, fake signatures, prisoners, and many others votedillegally. Also, machine ‘glitches” (another word for FRAUD), ballot harvesting, non-residentvoters, 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 votes293GA 743294 GA 1407295GA 1407-1408296 GA 1408); GA 1400-55-); GA 621

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 56 of 165than are necessary to win the State, and the Election itself. Therefore, VOTES CANNOT BECERTIFIED. THIS ELECTION IS UNDER PROTEST!" 297Ultimately, the Pennsylvania electors insisted upon using conditional language in theirelector certificates to avoid falsely certifying that they were duly-appointed electors. 298 And inNew Mexico the state that CC5 's memoranda did not even address 299-the defendant'sCampaign filed a pretextual lawsuit just minutes before the fraudulent electors met so that therewas litigation pending at the time of the vote. 300 Notwithstanding obstacles, the defendant and hisco-conspirators successfully organized his elector nominees and substitutes to gather on December14 in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulentvotes to Washington, D.C., in order to falsely claim at the congressional certification that certainstates had sent competing slates of electors. 301When possible, the defendant and co-conspirators tried to have the fake electoral votesappear to be in compliance with state law governing how legitimate electors vote.302 For example,297 GA 867-872 (Donald J. Trump Tweets 12/13/2020).298 GA 1407-1408); GA 1409-1410); GA 1411-1412299GA 1416300OGA 1417-1419); GA 1413-1415); GA 622-625); GA 1273-1282301GA 1420-1424 (Fraudulent “Arizona's Electoral Votes for President and Vice President"); GA1357-1368 (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 1458-1472302GA 1266-1270 CC5 memo 12/09/2020).-56-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 57 of 165the co-conspirators knew that some states required that the duly-appointed electors meet and cast303their votes in the state capitol building.3 To make it seem like they had complied with thisrequirement, state officials were enlisted to provide the fraudulent electors with access to statecapitol buildings so that they could gather and vote there. 304 In many cases, however, theconspirators and fraudulent electors were unable to comply with state law for legitimate electors.³305For example, Pennsylvania law required the Governor to give notice whenever an elector wassubstituted, but the conspirators could not arrange for the Governor to give notice when P46 andothers opted out and had to be replaced. 306 Thereafter, CC5 and others brainstormed fakeexcuses for their failure to follow state law, writing, “maybe we can use Covid19 as an excuse forthe Governor not giving notice."307P39Then, on December 14—the date that duly-appointed electors across the country met tocast their votes, and when the defendant's fraudulent electors in seven states mimicked them—followed up with the defendant. 308 When she received an internal RNC email titled"Electors Recap - Final,” which summarized the day's activities with respect to electors andincluded a list of six "contested" states in which the defendant's electors voted, she forwarded itto the defendant's executive assistant, P42who responded, "It's in front of him!"309303 GA 1268-1270 CC5 memo 12/09/2020).304 GA 1473-1475); GA 1458-1472 (); GA 1476 (305 GA 1458-1472306GA 1270 CC5memo 12/09/2020); GA 1390 (Fraudulent “Pennsylvania's Electoral Votesfor President and Vice President").307 GA 1477-1482308 GA 328-329309Id; see also GA 1483-1484-57-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 58 of 165P39also called the defendant to tell him that she had sent him the update, 310 and she spoketo CC1 shortly before CC1 spoke to the defendant. 311At the same time that the defendant's fraudulent electors were preparing to gather and castfraudulent votes, the defendant's co-conspirators began planning how to use the fraudulent votesto overturn the election results at the January 6 certification. On December 13, CC5 sentCC1 a memorandum that envisioned a scenario in which Pence would use the fraudulent slatesas a pretext to claim that there were dueling slates of electors from the targeted states and negotiatea solution to defeat Biden. 312 On the same day, the defendant resumed almost daily direct contactwith P1 who maintained a podcast that disseminated the defendant's false fraud claims.³On December 14, P1 podcast focused on spreading lies about the defendant's fraudulentelectors—including the false claim that their votes were merely a contingency in the event thedefendant won legal challenges in the targeted states.³314313On December 16, CC5traveled to Washington with a group of private attorneys whohad done work for the defendant's Campaign in Wisconsin for a photo opportunity with theDuring the encounter, the defendant complained about Wisconsindefendant in the Oval Office.³ 315310 GA 329311 GA 745312 GA 1486313 See, e.g., GA 744); GA 750); GA 753D; GA 758-759314GA 1979315 GA 1494; GA 764 (; GA 768, 770); GA 1485-58-D; GA 749); GA 751); GA 756GA 763); GA 765); GA 1498-1500); GA 1487-1493; GA 771GA 1495

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 59 of 165Supreme Court Justice P49 who two days earlier had cast the deciding vote in rejecting thedefendant's election challenge in the state. 316 As the group was leaving, the defendant spokedirectly—and privately-to CC5317As late as early January, the conspirators attempted to keep the full nature of the fraudulentelector plan secret. On January 3, for instance, in a private text message exchange, CC6 wroteto CC5"Careful with your texts on text groups. No reason to text things about electors toanyone butCC2and me."CC5responded, "K," andCC6followed up, "I'mprobably a bit paranoid haha." CC5wrote, "A valuable trait!”318E. The Defendant Attempted to Persuade Pence to Reject Votes Cast by Duly-Appointed Electors and Choose the Defendant's Fraudulent OnesAs the defendant's various attempts to target the states failed, and the January 6congressional certification approached, the defendant and co-conspirators turned their attention toPence, who as President of the Senate presided over the certification proceeding. In service of anew plan—to enlist Pence to use his role to fraudulently alter the election results at the January 6certification proceeding—the defendant and his co-conspirators again used deceit. They lied toPence, telling him that there was substantial election fraud and concealing their orchestration ofthe plan to manufacture fraudulent elector slates, as well as their intention to use the fake slates toattempt to obstruct the congressional certification. And they lied to the public, falsely claimingthat Pence had the authority during the certification proceeding to reject electoral votes, send them); GA 746GA 747-748); GA 100-101316GA 497-498317GA 498-500318 GA 1501-1502-59-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 60 of 165back 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 hoursof December 19. At 1:42 a.m., the defendant posted on Twitter a copy of a report falsely alleging*fraud and wrote, Statistically impossible to have lost the 2020 Election. Big protest in D.C.on January 6th. Be there, will be wild!" 319 When CC5learned about the Tweet, he sent alink about it to another of the Wisconsin attorneys who had met with the defendant in the OvalOffice on December 16 and wrote, “Wow. Based on 3 days ago, I think we have uniqueunderstanding of this.”320 Later on December 19, the defendant called Pence and told him of plansfor a rally on January 6 and said that he thought it would be a “big day” and good to have lots oftheir supporters in town. 321The defendant and his co-conspirators recognized that Pence, by virtue of his ministerialrole presiding over the January 6 congressional certification, would need to be a key part of theirplan to obstruct the certification proceeding. On December 23, in a memorandum drafted withCC5assistance, CC2 outlined a plan for Pence to “gavel" in the defendant as the winnerof the election based on the false claim that "7 states have transmitted dual slates of electors to thePresident of the Senate," and proposed that Pence announce that “because of the ongoing disputesin the 7 States, there are no electors that can be deemed validly appointed in those States.""322319 GA 873-874 (Donald J. Trump Tweet 12/19/2020).320 GA 1504321 GA 440-441322 GA 1506-1508 (); GA 1020 (Pence, So Help Me God p. 437).); GA 1509; GA 1510-1512); GA 1513-1515-60-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 61 of 165CC2 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.”323CC2memorandum stood in stark contrast to concessions he had previously madeabout 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 providedthe Vice President with discretion in the counting of electoral votes or permitted him to “make thedetermination on his own.”324 And just one day earlier, on December 22, when asked by otherprivate attorneys to provide views on a draft complaint that would, if filed, have raised the issueof the Vice President's authority on January 6, CC2 had recommended that the complaint notbe filed.32325 He wrote that “the risk of getting a court ruling that Pence has no authority to rejectthe Biden-certified ballots [is] very high.'"326On the evening of December 23, after CC1 shared CC2 and CC5plan withthe defendant, the defendant publicly re-tweeted a document called "Operation Pence Card,"which, like CC2memorandum, advocated that Pence block the lawful certification of thelegitimate electoral votes. 327 Also on December 23, CC2 emailed P42 asking to speak tothe defendant "to update him on our overall strategic thinking.""328 The following day, December323 GA 1515324 GA 1517325GA 1521326Id.327 GA 1005; GA 1523); GA 883 (Donald J. Trump Tweet 12/23/2020); GA 449GA 1022-1023 (Pence, So Help Me God p. 439-40); see also GA 1524-1527328 GA 1528- 61 -; GA 752, 754);

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 62 of 165CC5and CC624, the defendant called CC2and they spoke for forty minutes. 329 Then on December 25,proposed in a text message to CC2that Pence permit an unlimitedfilibuster of the certification, in violation of the ECA, and ultimately gavel in the defendant aspresident. 330 When CC2 asked, “Is Pence really likely to be on board with this?” CC6responded, "Let's keep this off text for now.'"331CC2From that point on, the conspirators plotted to manipulate Pence. CC1CC6 and P1 worked in concert to enlist Pence to act unlawfully, and to rachet up publicpressure from the defendant's supporters that he do so. The defendant began to directly andrepeatedly pressure Pence at the same time that he continued summoning his supporters to amassin Washington, D.C., on the day of the congressional certification. On December 25, when Pencecalled the defendant to wish him a Merry Christmas, the defendant raised the certification and toldPence that he had discretion in his role as President of the Senate. 332 Pence emphaticallyresponded, “You know I don't think I have the authority to change the outcome.”³33 The next day,the defendant tweeted, “Never give up. See everyone in D.C. on January 6th "334 He also tweetedfalse fraud claims: “Time for Republican Senators to step up and fight for the Presidency, like theDemocrats 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 VOTESTHAN ACTUAL VOTERS (check out Detroit & Philadelphia), and much more. The numbers329 GA 755330 GA 1529331 Id.332 GA 450-452333 Id.); GA 1024-1025 (Pence, So Help Me God p. 441-42).334 GA 886-887 (Donald J. Trump Tweet 12/26/2020).-62-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 63 of 165are far greater than what is necessary to win the individual swing states, and cannot even becontested. Courts are bad, the FBI and 'Justice' didn't do their job, and the United States ElectionSystem looks like that of a third world country. Freedom of the press has been gone for a longtime, it is Fake News, and now we have Big Tech (with Section 230) to deal with. But when it isall over, and this period of time becomes just another ugly chapter in our Country's history, WEWILL WIN!!!”335On December 28, CC2 CC5 and CC6exchanged text messages in whichCC2 expressed concern that Gohmert v. Pence—a lawsuit filed the day before that assertedthat Pence had discretion to choose electoral votes during the certification proceeding—wouldprompt a federal court to publicly reject, and thus preclude, the plan that the conspirators wereadvancing in private. 336 Thereafter, at 11:00 a.m. on January 1, the defendant called Pence toberate him because he had learned that Pence had filed a brief opposing the relief sought inGohmert. 337 When Pence explained, as he had before, that he did not believe that he had the powerunder the Constitution to decide which votes to accept, the defendant told him that “hundreds ofthousands” of people “are gonna hate your guts” and “people are gonna think you're stupid,” andberated him pointedly, “You're too honest.”338 Immediately before the call, the defendant hadspoken separately to CC1 (from 10:06 a.m. to 10:14 a.m.) and P1(from 10:36 a.m. to10:46 a.m.), and late that afternoon, the defendant spoke separately withP1CC2and335GA 888-895 (Donald J. Trump Tweet 12/26/2020).336 GA 1530-1531337 GA 453758); GA 1026-1027 (Pence, So Help Me God p. 446-47); GA338GA 1026 (Pence, So Help Me God p. 446).-63-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 64 of 165CC1 339Within hours of the call with Pence, the defendant reminded supporters to travel toWashington for the certification proceeding, tweeting, “The BIG Protest Rally in Washington,343ThatD.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!"340The next day, on January 2,CC1 CC2 and CC6 appeared on P1podcast. 341 When P1 asked whether the January 6 certification would be “a climactic battle,"CC2 responded that “a lot of that depends on the courage and the spine of the individualsinvolved." "342The defendant spoke to CC1 shortly after his appearance on the podcast.afternoon, CC6 worked to arrange a meeting among the defendant, CC2 and Pence inorder to enlist Pence to misuse his role as President of the Senate at the certification proceeding. 344When CC6 texted Pl about the meeting, P1 who had just finished a phone callwith the defendant—reiterated that the defendant wanted Pence “briefed” by CC2immediately.3 Thereafter, the defendant called Pence, informing him “that he had spent the day345speaking to a secretary of state, state legislators, and members of Congress.""346(As describedP33the same day.)supra pp. 29-31, the defendant spoke with Georgia Secretary of StateOn the call with Pence, the defendant said he had learned that a U.S. Senator was going to proposea ten-day delay in the certification proceeding, and told Pence, "you can make the decision" to339 GA 757-760340 GA 905-906 (Donald J. Trump Tweet 01/01/2021).341 GA 1981342 GA 1981 at 24:56-25:40343 GA 761-762344 GA 1006-1008, 1011-1014345 GA 763); GA 1007346 GA 1027 (Pence, So Help Me God p. 447); GA 1532-1533-64-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 65 of 165delay the count for ten days. 347 The defendant then referred Pence to CC2 for the first timeand asked if Pence would meet with him. 348PenceOn January 3, the defendant again told Pence that at the certification proceeding, Pencehad the absolute right to reject electoral votes and the ability to overturn the election. 349responded that he had no such authority, and that a federal appeals court had rejected a lawsuitmaking that claim the previous day. 350 Then, the defendant took to Twitter to again falsely claimthat fraud had permeated the election: "Sorry, but the number of votes in the Swing States that weare talking about is VERY LARGE and totally OUTCOME DETERMINATIVE! Only theDemocrats and some RINO'S would dare dispute this - even though they know it is true!”351 Thesame day, CC2circulated a second memorandum that included a new plan under which, inviolation of the ECA, the Vice President would send the elector slates to the state legislatures todetermine which slate to count. 352The meeting that CC6had organized so that the defendant and CC2 could enlistPence to reject Biden's legitimate electoral votes was scheduled late in the afternoon of January4.353 In advance of the meeting, CC1 CC2 CC6 and P1gathered at the WillardHotel near the White House, and from there, CC1 called and spoke with the defendant. 354347Id.348 Id.349 GA 454-456350 Id.); GA 1534-1536351 GA 926-927 (Donald J. Trump Tweet 01/03/2021).352 GA 1537-1543353 GA 1007-1012); GA 766354OGA 1904 at row 909); GA 1011 (; GA 765; GA1544-1546); GA 1547-1548-65-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 66 of 165When CC2 arrived at the White House for the meeting, P9confronted CC2 aboutP9's second memo,warned CC2thenthe legal basis for his proposal. 355went line by line through CC2and CC2 conceded that no court would support it; in response,| P9that pressing his admittedly unlawful plan would cause "riots in the streets."356P9alsospoke to the defendant, telling him that the theory that CC2 and others were promoting wouldnot work, and that CC2 had acknowledged that it was "not going to work"; the defendantresponded, "other people disagree” but did not identify those other people. 357 P9pointed out to the defendant that CC2 's theory regarding a strategic Democratic plan to subvertthe election was inconsistent with other allegations that had been floating around about| C3and foreign interference. 358361The meeting among the defendant, CC2, Pence, and Pence staffers P8 and P58began around 4:45 p.m. 359 No one from the defendant's White House Counsel's Officeattended. 360During the meeting, the defendant asked CC2 to explain his plan to Pence. 3CC2 presented two options: Pence could unilaterally decide objections to electors, oralternatively, in the plan that CC2 had devised the prior day, Pence could send the electorslates to the targeted states' legislatures to determine which electors' votes should be counted. 30In the defendant's presence, in response to Pence's questioning, CC2 admitted that the ECA362355 GA 215-221356GA 215-218357 GA 219-223358 GA 224359GA 766); GA 1901 at row 5745); GA 766 (); GA 274-275360 GA 120-121361 GA 276-277); GA 579-580362 GA 276-277); GA 580-585-66-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 67 of 165forbade what he proposed and that no one had testedCC2new plan to send elector slates tostate legislatures for review. 363Nonetheless, the defendant repeatedly expressed a preference thatPence unilaterally reject valid elector slates. 364Throughout the meeting, the defendant repeated his knowingly false fraud claims as apurported basis for Pence to act illegally. Pence's five pages of contemporaneous notes from themeeting 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 canbe bold"; and "r[igh]t to do whatever you want to do.”365 The meeting concluded with Pence—firm and clear―telling the defendant “I'm not seeing this argument working.” Nonetheless, thedefendant requested that Pence's staff meet with CC2 again to discuss further, and Penceagreed.³367"366The conspirators were undeterred. Immediately after leaving the White House, CC2gathered with CC6 and P1 back at the Willard Hotel. 368 Over the days that followed,these conspirators strategized on how CC2 could influence Pence through the Vice President'scounsel, and normalized the unlawful plan by discussing it on P1podcast. 369 Meanwhile,the defendant continued to pressure Pence publicly.363 GA 1028-1029 (Pence, So Help Me God p. 450-51); GA 278-279364 GA 277365 OGA 1549-1553366 GA 280-281); GA 582-584367 GA 1028-1029 (Pence, So Help Me God p. 450-51).368 GA 1011-1013369GA 766); GA 1011-1014); GA 1559 (); GA 1983 at 36:55-37:43); GA 1984 at 9:09–9:55-67-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 68 of 165For his part, immediately upon leaving the meeting with Pence, the defendant traveled toDalton, Georgia, to speak at a political rally at the invitation of two U.S. Senators engaged in run-off elections there. 370During his political speech, the defendant promoted many of the samefalsehoods that he previously had been informed were untrue. He said, “they're not taking theWhite House. We're gonna fight like hell, I'll tell you right now," and remarked, “I hope MikePence comes through for us, I have to tell you. I hope that our great Vice President, our great VicePresident comes through for us... Of course, if he doesn't come through, I won't like him quiteas much."371 He also used the Dalton Campaign speech as a call to action to his own supporters,telling the crowd that “[i]f you don't fight to save your country with everything you have, you'renot going to have a country left,”³72 and demanded that his supporters take action to prevent whathe falsely called “the outright stealing of elections, like they're trying to do with us,”³73emphasizing, we “can't let that happen.”374The next morning, on January 5, the defendant spoke on the phone withP1375 Lesssaid in anticipation of the January 6 certificationthan two hours later, on his podcast, P1proceeding, "All Hell is going to break loose tomorrow."376Also on the morning of January 5, CC2 participated in a federal court hearing in Trumpv. Kemp,3377the Georgia lawsuit against P17 and P33in which the defendant had370 GA 76701/04/2021).371); GA 930-931 (Donald J. Trump TweetGA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).372 GA 1096 (Dalton Rally Speech Draft Tr. 01/04/2021).373 GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).374 GA 1096 (Dalton Rally Speech Draft Tr. 01/04/2021).375 GA 768376OGA 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-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 69 of 165378signed a false verification days earlier.³ CC2 on the defendant's behalf, asked the federalcourt to decertify the presidential election in Georgia and declare that the state legislature maychoose the state's electors. 379 During the hearing, the federal court denied the relief requested. ³Immediately following the federal court's rejection of the legal basis for the conspirators'went to the meeting that the defendant had requested that Pence's staff, P58 andplan, CC2380P8 take.3 381At the outset, CC2 changed his tack and advocated that Pence simply reject theBiden electors outright. 382 This was contrary to his primary recommendation the day before forPence to send the slates to the state legislatures, but consistent with the preference the defendanthad expressed. 383 CC2 made additional concessions during this meeting. For example,CC2 agreed that the Supreme Court would unanimously reject his proposed action, consistenthistorical practice since the Founding was that the Vice President never asserted authority to rejectelectors, no reasonable person would want the Constitution read that way because the office wouldnever switch political parties, no state legislature appeared poised to try to change its electors, andif Democrats were to claim the same authority, CC2 would not credit it. 384 P58 expressedCC2 that the defendant's plan would result in a “disastrous situation” where the electionto378Complaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1;GA 1152379 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 1563382 GA 283-284Committee Testimony 06/16/2022); GA 1564383 GA 283-284); GA 1939 at 1:20:00-1:21:30 (Video of Select); GA 1939 at 1:20:00-1:21:30 (Video of SelectCommittee 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 CommitteeTestimony 06/16/2022); GA 267-272-69-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 70 of 165might "have to be decided in the streets."385 Having failed to enlist P58 in the criminalconspiracy, CC2told him that the “team” was going to be "really disappointed.”“team,” in fact, was disappointed; after CC2 updatedconfirmed to P1that the "Pence lawyer"—that is, P58 was "totally against us,” promptingP1 to respond, "Fuck his lawyer."387 That same day, CC2 received an email confirming"386TheCC1 on the meeting,CC6what he already had admitted to P58 no chamber of any legislature in any state, includingArizona, Georgia, Pennsylvania, and Wisconsin, was requesting that its electoral votes be returnedto the state for review.³388Meanwhile, CC5who had traveled to Washington as directed by the defendant'spublic messages, obtained duplicate originals of the fraudulent certificates signed by thedefendant's fraudulent electors in Michigan and Wisconsin, which they believed had not beendelivered by mail to the President of the Senate or Archivist. 389 CC5 received these duplicatesfrom Campaign staff and surrogates, who flew them to Washington at private expense.390 He then385 GA 1939 at 1:26:01-1:26:32 (Video of Select Committee Testimony 06/16/2022).386GA 289-290387 GA 1014388GA 1565-1567389GA 1568-1574); GA 1575 (); GA 1576-1580 (GA 1581-1582); GA 1595-1596390 GA 1601-1607-70-; GA 1583-1585GA 1586-1589D; GA 1590-1593); GA 1608

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 71 of 165hand-delivered them to staffers for a U.S. Representative at the Capitol as part of a plan to deliver391them to Pence for use in the certification proceeding. 39CC2The defendant did not leave the pressure campaign to his co-conspirators; he redoubled hisown efforts. On January 5 at 11:06 a.m., shortly beforemeeting with P58 thedefendant tweeted, “The Vice President has the power to reject fraudulently chosen electors"³92and designate the defendant as the winner of the electoral college vote. That afternoon, thedefendant met privately with Pence in the Oval Office. 393 During the meeting, the defendant onceagain told Pence, “I think you have the power to decertify.”394 When Pence was unmoved, thedefendant threatened to criticize him publicly ("I'm gonna have to say you did a greatdisservice”); 395 this concerned P8 to whom Pence had relayed the defendant's threat, to thepoint that he alerted Pence's Secret Service detail. 396 Next still, the defendant initiated a phonecall with Pence, P8 P58 CC2and one or two other private attorneys—likely includingCC1 and again raised the scenario of the Vice President sending the elector slates to statelegislatures. 398P58 again pointed out that such a strategy violated the ECA, and Pencereaffirmed that he did not believe he had the authority to do so.391 GA 1583-15851586-15891596392 GA 934-935 (Donald J. Trump Tweet 01/05/2021).393 GA 461-462394 GA 461, 463GA 1656395GA 461, 463-47054); GA 1656396 GA 586-587397 GA 1657); GA 1659398 GA 282-288399 Id.399Shortly after the call thatD; GA); GA 1595-); GA 1031-1032 (Pence, So Help Me God p. 453-54).); GA 1031-1032 (Pence, So Help Me God p. 453-54);); GA 1215); GA 1031-1032 (Pence, So Help Me God p. 453-); GA 1658-71-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 72 of 165evening, at 5:43 p.m., the defendant tweeted, "I will be speaking at the SAVE AMERICA RALLYtomorrow on the Ellipse at 11AM Eastern. Arrive early - doors open at 7AM Eastern. BIGCROWDS!"400The defendant continued his pressure campaign on Pence that evening. After a New YorkTimes article that night detailed the afternoon's private conversation in which Pence had rejectedthe defendant's demand to act unlawfully, the defendant directed P4 to issue a statementrebutting it and approved the statement at 9:28 p.m.4401 Minutes later, the defendant called Penceand told him, "you gotta be tough tomorrow.”402 After concluding the call with Pence, thedefendant sequentially spoke to P1followed by CC2 403 Then, at around 10:00 p.m. thatnight, the defendant issued the public statement, which read "the Vice President and I are in totalagreement that the Vice President has the power to act"404_ -a statement that the defendant knewwas a lie from Pence's repeated and firm rejections of his efforts, but that gave false hope to thedefendant's supporters arriving in the city at the defendant's request, and maximized pressure onPence.F. The Defendant Caused Unlawful Conduct on January 6 and Tried to TakeAdvantage of the Riot that EnsuedThe defendant continued his intense pressure campaign against the Vice President into theearly morning hours of January 6. Around 1:00 a.m., the defendant tweeted, falsely: “If VicePresident @Mike_Pence comes through for us, we will win the Presidency. Many States want to400 GA 938-939 (Donald J. Trump Tweet 01/05/2021).401 GA 769); GA 1662); GA 1660-1661); GA 384-386); GA 1033 (Pence, So Help Me God p. 455).402 GA 770403 GA 770404 GA 1663 (Donald J. Trump Campaign Statement 01/05/2021).-72-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 73 of 165406decertify the mistake they made in certifying incorrect & even fraudulent numbers in a processNOT approved by their State Legislatures (which it must be). Mike can send it back!”405 At8:17 a.m., as the supporters he had summoned to the city gathered near the White House, thedefendant again falsely tweeted about the certification: “States want to correct their votes, whichthey now know were based on irregularities and fraud, plus corrupt process never receivedlegislative 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!"407CC5Later that morning,worked with another attorney for the defendant, whocontacted a U.S. Senator to ask him to obtain the fraudulent Wisconsin and Michigan documentsfrom the U.S. Representative's office and hand-deliver them to the Vice President. 408 When oneof the U.S. Senator's staffers contacted a Pence staffer by text message to arrange for delivery ofwhat the U.S. Senator's staffer had been told were “[a]lternate slate[s] of electors for MI and WIbecause [the] archivist didn't receive them,” Pence's staffer rejected them. 409At 11:15 a.m., shortly before traveling to the Ellipse to speak to his supporters, thedefendant called Pence and made one last attempt to induce him to act unlawfully in the upcomingsession. 410 When Pence again refused, and told the defendant that he intended to make a statementto Congress before the certification proceeding confirming that he lacked the authority to do what405 GA 940-941 (Donald J. Trump Tweet 01/06/2021).406 GA 1929 at 02:16:45 (Video of Ellipse Rally 01/06/2021).407GA 942-943 (Donald J. Trump Tweet 01/06/2021).408 GA 1664409 GA 1665-1666410 GA 359); GA 102-103-73-D; GA 55-56); GA 262-263); GA 1667

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 74 of 165the defendant wanted, the defendant was incensed. 411 He decided to re-insert into his Campaignspeech at the Ellipse remarks targeting Pence for his refusal to misuse his role in thecertification. 412 And the defendant set into motion the last plan in furtherance of his conspiracies:if Pence would not do as he asked, the defendant needed to find another way to prevent thecertification of Biden as president. So on January 6, the defendant sent to the Capitol a crowd ofangry supporters, whom the defendant had called to the city413 and inundated with false claims ofoutcome-determinative election fraud, to induce Pence not to certify the legitimate electoral votesand to obstruct the certification. 414At the Ellipse Campaign rally, CC1 and CC2 spoke just before the defendant. Inhis rally speech, CC1 sought to cloak the conspiracies in an air of legitimacy, assuring thedefendant's supporters that “every single thing that has been outlined as the plan for today is"415perfectly legal," and introducing CC2 as a "preeminent constitutional scholar[]" who wouldfurther explain this plan. 416 He falsely claimed that legislatures in five states were "begging" tohave their electoral ballots returned. 417 CC1 then asserted that Pence could “decide on the411 GA 371-373GA 471-472D; GA 227-228); GA 1668-1669412GA 405-406; GA 1670); GA 638-642D; GA 1680 (; GA 1681D; GA 371 (); GA 231413 See, e.g., GA 886-887 (Donald J. Trump Tweet 12/26/2020); GA 897-898 (Donald J. TrumpTweet 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, GA1891 (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 Tweet01/05/2021).414 See GA 1928 (Video of Ellipse Rally 01/06/2021).415 GA 1928 at 2:19:27 (Video of Ellipse Rally 01/06/2021).416 GA 1928 at 2:19:40 (Video of Ellipse Rally 01/06/2021).417 GA 1928 at 2:20:13 (Video of Ellipse Rally 01/06/2021).-74-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 75 of 165>>418CC2validity of these crooked ballots" and told the crowd, “[1]et's have trial by combat.”419in his speech, claimed that Pence must send electoral votes to state legislatures for “the Americanpeople [to] know whether we have control of the direction of our government or not,” anddecried that “[w]e no longer live in a self-governing republic if we can't get the answer to thisquestion."421"420When the defendant took the stage at the Ellipse rally to speak to the supporters who hadgathered there at his urging, he knew that Pence had refused, once and for all, to use the defendant'sfraudulent electors' certificates. The defendant also knew that he had only one last hope to preventBiden's certification as President: the large and angry crowd standing in front of him. So for morethan an hour, the defendant delivered a speech designed to inflame his supporters and motivatethem to march to the Capitol.42422The 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 nottrue. In Arizona, he claimed, more than 36,000 ballots had been cast by non-citizens. 423Regarding424and heGeorgia, the defendant repeated the falsehood that more than 10,300 dead people voted,raised the publicly disproven claims about fraud by election workers at State Farm Arena. 425 Hemade baseless allegations of dead voters in Nevada and Michigan and false claims about illegally418GA 1928 at 2:22:10 (Video of Ellipse Rally 01/06/2021).419 Id.420 GA 1928 at 2:27:08 (Video of Ellipse Rally 01/06/2021).421 GA 1928 at 2:27:21 (Video of Ellipse Rally 01/06/2021).422 GA 1928 at 3:31:20-4:42:50 (Video of Ellipse Rally 01/06/2021).423 GA 1134 (Ellipse Rally Speech Draft Tr. 01/06/2021).424 GA 1133-1134 (Ellipse Rally Speech Draft Tr. 01/06/2021).425 GA 1133 (Ellipse Rally Speech Draft Tr. 01/06/2021).-75-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 76 of 165counted votes in Wisconsin. 426 And in Pennsylvania, he claimed that there were hundreds ofthousands more ballots counted than there had been voters.427The defendant also lied to his rally supporters when he claimed that certain states wantedto 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 avote. 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 happenis if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.”428 In responseto this lie about Pennsylvania, the defendant's crowd began to chant, "Send it back! Send itback!"429The defendant gave his supporters false hope that Pence would take action to change theresults of the election and claimed that Pence had the authority to do so. He falsely told the crowdthat Pence could still "do the right thing' 430and halt the certification, and he extemporized linesabout the Vice President through the speech, including the indirect threat, “Mike Pence, I hopeyou're gonna stand up for the good of our Constitution and for the good of our country. And ifyou're not, I'm gonna be very disappointed in you. I will tell you right now. I'm not hearing goodstories."431426 GA 1131 (Ellipse Rally Speech Draft Tr. 01/06/2021).427GA 1127, 1137 (Ellipse Rally Speech Draft Tr. 01/06/2021).428 GA 1128 (Ellipse Rally Speech Draft Tr. 01/06/2021).429 GA 1896 at 5:10 (Rallygoer Video 01/06/2021).430 OGA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021).431 Compare GA 1133 (Ellipse Rally Speech Draft Tr. 01/06/2021) with GA 1683 (Ellipse Rallyteleprompter speech excerpt).- 76-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 77 of 165"433The defendant galvanized his supporters by painting the stakes as critical and assuring themthat "history [was] going to be made."432 He made clear that he expected his supporters to takeaction, telling them regarding his loss of the election that “we're not going to let that happen,”calling on them to "fight"434 and to “take back”435 their country through strength, while suggestingthat legal means were antiquated or insufficient to remedy the purported fraud, because “[w]henyou catch somebody in a fraud, you're allowed to go by very different rules.” Throughout thespeech—from as early as about fifteen minutes into it and twice in its final lines—the defendantdirected his supporters to go to the Capitol and suggested that he would go with them.437"436The overall impact of the defendant's speech-particularly in light of months of statementsand Tweets falsely claiming election fraud and following on the heels of CC1 and CC2speeches was to fuel the crowd's anger. For instance, when the defendant told his supportersthat “[w]e will not let them silence your voices. We're not going to let it happen,' the crowd439"438chanted, "Fight for Trump," in response. When the defendant soon after told supporters that"we're going to walk down to the Capitol,',"440 that they would “never take back our country with432 GA 1122 (Ellipse Rally Speech Draft Tr. 01/06/2021).433GA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021).434 See, e.g., GA 1120, 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021).435 Id.436 GA 1137 (Ellipse Rally Speech Draft Tr. 01/06/2021).437 GA 1120, 1140, 1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).438 GA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021).439 GA 1897 at 3:18 (Rallygoer Video 01/06/2021).440 GA 1120 (Ellipse Rally Speech Draft Tr. 01/06/2021).-77-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 78 of 165weakness,"441 and that they had "to show strength and [had] to be strong,'crowd shouted, "Invade the Capitol building!” and, “Take the Capitol!"443>>442 members of theThousands of the defendant's supporters obeyed his directive and marched to theCapitol, 444 where the certification proceeding began around 1:00 p.m.4 Minutes earlier, Pence445had issued a public statement explaining that his role as President of the Senate did not include“unilateral authority to determine which electoral votes should be counted and which should"446not."On the floor of the House of Representatives, Pence opened the certificates of vote andcertificate of ascertainment from Arizona, consistent with the ECA. After an objection from aSenator and Representative, the House and Senate retired to their separate chambers to debate it. 447Outside of the Capitol building, a mass of people—including those who had traveled toWashington and the Capitol at the defendant's direction—broke through barriers cordoning off theCapitol grounds and advanced on the building.4 Among these was CC5 who had attended448449the 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 theCapitol including rioters who violently attacked law enforcement officers trying to secure the441Id.442 Id.443 GA 1898 at 00:19 (Rallygoer Video 01/06/2021).444See, e.g., GA 1930 at 1:09:30 (Video of Ellipse Rally 01/06/2021); GA 1942 (Video of Marchto Capitol 01/06/2021); GA 1941 at 02:10-2:33 (Video of March to Capitol 01/06/2021).445GA 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).449GA 1687); GA 1689; GA 1583-1585; GA 1688D; GA 1690 (-78-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 79 of 165building 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. 450Beginning at about 1:30 p.m., the defendant settled in the dining room off of the OvalOffice. He spent the afternoon there reviewing Twitter on his phone,4451while the dining roomtelevision played Fox News' contemporaneous coverage of events at the Capitol.4recess.452At 2:13 p.m., the crowd at the Capitol broke into the building, and forced the Senate to453Within minutes, staffers fled the Senate chamber carrying the legitimate electors'physical certificates of vote and certificates of ascertainment. 454 Next to the Senate chamber, agroup of rioters chased a U.S. Capitol Police officer up a flight of stairs to within forty feet ofwhere Pence was sheltering with his family. 455 As they did so, the rioters shouted at the officer,in search of public officials, "Where the fuck they at? Where the fuck they counting the votes at?Why are you protecting them? You're a fucking traitor.”456 On the other side of the Capitol, theHouse was also forced to recess."457450 GA 1912 at 56:56 (Video of Capitol Riot 01/06/2021); GA 1924 at 38:48 (Video of CapitolRiot 01/06/2021); GA 1918 (Video of Capitol Riot 01/06/2021); GA 1919 (Video of Capitol Riot01/06/2021); GA 1921 at 04:30 (Video of Capitol Riot 01/06/2021); see also GA 2-3451 GA 1902452 GA 168-169GA 540, 541-544 (); GA 292-293); GA 232, 236 (453 GA 1957 at 1:04-1:25 (Video of Senate Wing Door CCTV 01/06/2021); GA 1954 at 44:16(Video of Senate Floor 01/06/2021).454 United States v. Hale-Cusanelli, No. 21-cr-37, ECF No. 93 at 38-39 (D.D.C. June 3, 2022)(Trial Tr. 05/24/2022).455 GA 1923 (Video of Capitol Riot 01/06/2021); GA 177-178456GA 175); see also GA 176, 179GA 1916 at 00:50 (Video of Capitol Riot 01/06/2021).457GA 1937 at 1:34:00 (Video of House Floor 01/06/2021).- 79 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 80 of 165Fox News's coverage of events at the Capitol included, at about 2:12 p.m., reports of theCapitol being on lockdown and showed video footage of large crowds within the restricted areasurrounding the Capitol; much of the crowd was wearing clothing and carrying flags evidencingtheir allegiance to the defendant. 458 At about 2:20 p.m., video of crowds on the Capitol lawn andWest Terrace were shown alongside a chyron stating, “CERTIFICATION VOTE PAUSED ASPROTESTS ERUPT ON CAPITOL HILL.”459 At 2:21 p.m., an on-the-street reporter interviewedan 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 thatVice President Pence was going to certify the electorial [sic] votes and, or not certify them, but Iguess that's just changed, correct? And it's a very big disappointment. I think there's severalhundred thousand people here who are very disappointed. But I still believe President Trump has99460something else left." And at approximately 2:24 p.m., Fox News reported that a police officermay have been injured and that “protestors . . . have made their way inside the Capitol.”461At 2:24 p.m., Trump was alone in his dining room when he issued a Tweet attacking Penceand fueling the ongoing riot: “Mike Pence didn't have the courage to do what should have beendone to protect our Country and our Constitution, giving States a chance to certify a corrected setof facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USAdemands the truth!”462 That afternoon, at the Capitol, a rioter used a bullhorn to read thedefendant's Tweet about the Vice President aloud to the crowd trying to gain entry to the458 GA 1931 at 12:12 (Video of Fox News Coverage 01/06/2021).459 GA 1931 at 20:11 (Video of Fox News Coverage 01/06/2021).460 GA 1931 at 21:47 (Video of Fox News Coverage 01/06/2021).461GA 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- 80 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 81 of 165building. .463 The defendant issued the incendiary Tweet about Pence despite knowing as hewould later admit in an interview in 2023—that his supporters "listen to [him] like no one else."464One minute later, at 2:25 p.m., the Secret Service was forced to evacuate Pence to a securelocation. 465 At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang MikePence!"466; "Where is Pence? Bring him out!”467; and “Traitor Pence!”468 Several rioters in thosechanting crowds wore hats and carried flags evidencing their allegiance to the defendant. In theyears 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 thelegislatures, they wouldn't have had a problem with Jan. 6, so in many ways you can blame himfor Jan. 6. Had he sent them back to Pennsylvania, Georgia, Arizona, the states, I believe, numberone, you would have had a different outcome. But I also believe you wouldn't have had ‘Jan. 6'as we call it.”"469Rioters again, many bearing pro-Trump paraphernalia indicating their allegiance―breached the Senate chamber, 470 rifled through the papers on the Senators' desks,471 and stood onthe dais where Pence had been presiding just minutes earlier. 472 On the House side, rioters watched463 GA 1922 (Video of Capitol Riot 01/06/2021).464 GA 1693 (Transcript of CNN Town Hall 05/10/2023).465 GA 1944 (Video of Pence Evacuation 01/06/2021).466 GA 1914 (Video of Capitol Riot 01/06/2021).467 GA 1911 (Video of Capitol Riot 01/06/2021).468 GA 1910 (Video of Capitol Riot 01/06/2021).469 Isaac Arnsdorf and Maeve Reston, Trump claims violence he inspired on Jan. 6 was Pence'sfault,Wash.Post,(Mar.13,2023,https://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/.470 GA 1956 (Video of Senate Gallery Doors CCTV 01/06/2021).471 GA 1955 at 16:20 (Video of Senate Floor 01/06/2021).472 GA 1955 at 29:15 (Video of Senate Floor 01/06/2021).8:09p.m.),- 81 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 82 of 165as police evacuated lawmakers from the House chamber, smashing glass windows surrounding alocked door that stood between them and the fleeing Members and staffers. 473 At least one rioterrecorded video showing Members being evacuated while the growing crowd screamed at theCapitol Police officers guarding the locked door to the House Speaker's Lobby.474Some of the worst violence of the day took place outside of the Capitol on the Lower WestTerrace 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 leadingto a set of double glass doors into the center of the Capitol building. After rioters had forced theirway onto restricted Capitol grounds and past the temporary barriers, including layers of snowfencing and bike racks, they attacked the law enforcement officers trying to protect the buildingwith flag poles, bear spray, stolen police riot shields, and other improvised weapons.time defending the Capitol, one Metropolitan Police Department Officer said:475I feared for my life from the moment I got into that—we were walking into thecrowd, when the Capitol Police officer was leading us into the front line. Andespecially 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 waslike, yeah, this is fucking it.476Of hisThe officer described that the rioters he encountered at the Capitol were wearing both "tacticalgear" and "Trump paraphernalia" and appeared to be acting out of "pure, sheer anger.”477473GA 1938 at 00:05 (Video of House Floor 01/06/2021); GA 1905 (Video inside Capitol Building01/06/2021).474GA 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 Riot01/06/2021).476 GA 5-6477 GA 4-82-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 83 of 16599479In the years after January 6, the defendant has reiterated his support for and allegiance torioters who broke into the Capitol, calling them "patriots"478 and "hostages,” providing themfinancial assistance, 480 and reminiscing about January 6 as "a beautiful day.”481 At a rally in Waco,Texas, on March 25, 2023, the defendant started a tradition he has repeated several times-openingthe 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 theirdangerousness, are held at the District of Columbia jail. 482 At the Waco Rally, of the January 6Choir, the defendant said, "our people love those people, they love those people.”483 The defendanthas also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484On the evening of January 6, the defendant and CC1 attempted to exploit the violenceand chaos at the Capitol by having CC1 call Senators and attempt to get them to further delaythe certification. 485 At around 7:00 p.m., CC1 placed calls to five U.S. Senators and one U.S.Representative.4 CC6 attempted to confirm phone numbers for Members of Congress whom486478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump atFaith 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).480GA 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 TownHall 05/10/2023).482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan RobertMink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); UnitedStates 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 OGA 1973 at 06:02 (Video of Waco Rally 03/25/2023).484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).485 OGA 1904 at row 1383486GA 1697); GA 1696); GA 1401-1406; GA1698-1701-83-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 84 of 165the defendant had directed CC1 to call. 487 In a voicemail that CC1 intended for one Senator,CC1 said, "I'm calling you because I want to discuss with you how they're trying to rush thishearing and how we need you, our Republican friends, to try to just slow it down so we can getthese 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 canget ourselves into tomorrow-ideally until the end of tomorrow.""488 He then asked the Senator to“object to every state” to “give us the opportunity to get the legislators who are very, very close topulling their votes.” This concession—that legislatures had not yet asked to review their slates—stood in contrast to CC1 and the defendant's lies at the Ellipse that they already had. 489 Next,in a voicemail intended for another Senator, CC1 told more lies. 490 He falsely claimed thatPence's decision not to use the defendant's fraudulent electors' certificates had been surprising,and that in light of the surprise, “we could use a little time so that the state legislatures can prepareeven more to come to you and say, 'Please give this back to us for a while so we can fix it."">491CC1 then repeated knowingly false claims of election fraud, including that non-citizens hadvoted in Arizona and an outcome-determinative number of underage voters had cast ballots inGeorgia.492Although the attack on the Capitol successfully delayed the certification for approximatelysix hours, the House and Senate resumed the Joint Session at 11:35 p.m. But the conspirators493487GA 1702488 GA 1977489 GA 1928 at 2:20:13, 3:37:54 (Video of Ellipse Rally 01/06/2021).490 GA 1975491Id.492 Id.493 GA 1703 (Congressional Record 01/06/2021).-84-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 85 of 165were not done. Within ten minutes, at 11:44 p.m., CC2 who earlier that day wrote to P58that “[t]he 'siege' is because YOU and your boss did not do what was necessary" emailed P58again and urged him to convince Pence to violate the law, writing, “I implore you to consider onemore relatively minor violation [of the ECA] and adjourn for 10 days to allow the legislatures tofinish their investigations, as well as to allow a full forensic audit of the massive amount of illegalactivity that has occurred here."494At 3:41 a.m. on January 7, as President of the Senate, Pence announced the certified resultsof the 2020 presidential election in favor of Biden. 495II.Legal FrameworkIn Trump, the Supreme Court held that former presidents are immune from prosecution forcore official acts, enjoy at least a rebuttable presumption of immunity for other official acts, andhave no immunity for unofficial acts, and remanded to this Court for further proceedings consistentwith its holding. 144 S. Ct. at 2327, 2332, 2347. This section sets forth the applicable legalprinciples and then Section III applies them to the categories of conduct that the supersedingindictment alleges and that the Government intends to prove at trial in order to demonstrate thatnone of the defendant's conduct is immunized.In Trump, the Supreme Court announced the principles that govern a former President'sclaim of constitutional immunity from federal criminal prosecution. The Supreme Court dividedpresidential acts into three categories: (1) core presidential conduct that Congress has no power toregulate and for which a former President has absolute immunity; (2) other official presidentialacts for which the President has at least presumptive immunity; and (3) unofficial conduct for494 IGA 1705-1709495 GA 1925 at 19:14, 20:34 (Video of Congress Joint Session 01/06/2021); GA 1704 at 41(Congressional Record 01/06/2021).-85-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 86 of 165which the President has no immunity. Id. at 2327, 2331-32. With respect to the first category ofcore 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 criminalprosecution. Id. at 2327 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638(1952) (Jackson, J., concurring)). Applying those principles to the original indictment, theSupreme Court concluded that the defendant is “absolutely immune from prosecution for thealleged conduct involving his discussions with Justice Department officials” and his “threatenedremoval of the Acting Attorney General.” Id. at 2335. The superseding indictment omits thoseallegations, and the Supreme Court did not find that any other conduct alleged in the originalindictment 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 establishthat his acts were official and thus subject to presumptive immunity. Id. at 2332; see Dennis v.Sparks, 449 U.S. 24, 29 (1980) (noting that for immunity doctrines, “the burden is on the officialclaiming immunity to demonstrate his entitlement”). Official conduct includes acts taken withinthe "‘outer perimeter' of the President's official responsibilities, covering actions so long as theyare 'not manifestly or palpably beyond [his] authority."" Trump, 144 S. Ct. at 2333 (quotingBlassingame, 87 F.4th at 13). But consistent with the D.C. Circuit's opinion in Blassingame, theSupreme Court suggested that a President who speaks “as a candidate for office or party leader”-as the defendant did here―does not act in his official, presidential capacity. Id. at 2340. As theD.C. Circuit explained, a President acting as a “candidate for re-election” is, to that extent, notcarrying out an official responsibility. Blassingame, 87 F.4th at 17; accord id. at 5 (“When asitting President running for re-election speaks in a campaign ad or in accepting his political party'snomination at the party convention, he typically speaks on matters of public concern. Yet he does-86-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 87 of 165so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. Andactions taken in an unofficial capacity cannot qualify for official-act immunity.”) (emphasis inoriginal). To assess whether a presidential action constitutes an “official” act, courts must applyan "objective analysis" that focuses on the "content, form, and context"" of the conduct inquestion. Trump, 144 S. Ct. at 2340 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). APresident's motives for undertaking the conduct and the fact that the conduct is alleged to haveviolated a generally applicable law are not relevant considerations. Id. at 2333-34.If a President's actions constitute non-core official presidential conduct, he is at leastpresumptively 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 notdecide that question today”). The Government can overcome that presumptive immunity bydemonstrating that “applying a criminal prohibition to that act would pose no dangers of intrusionon the authority and functions of the Executive Branch."" Id. at 2331-32 (quoting Fitzgerald, 457U.S. at 754). Just as the inquiry into whether conduct is official or unofficial is "necessarilyfactbound," 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 rebuttedunder the circumstances,” id. at 2337. The analysis should first identify the specific alleged act atissue, and then determine whether criminal liability for the act intrudes on a relevant ExecutiveBranch authority or function, taking care not to “conceive[] of the inquiry at too high a level ofgenerality." Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1141 (D.C. Cir. 2015) (reversingdistrict court in civil immunity case). Such an approach recognizes that Executive authority haslimits boundaries imposed by constitutional text, the separation of powers, and precedent—andthat application of criminal law to the President's official conduct does not per se intrude-87-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 88 of 165impermissibly on Executive Branch authority and functions. Cf. Trump, 144 S. Ct. at 2327 (“Ifthe President claims authority to act but in fact exercises mere ‘individual will' and ‘authoritywithout 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 indictmentis immune apply equally to evidence. The Government may not introduce evidence of immunizedofficial conduct against a former President at a trial, even to prove that the former Presidentcommitted a crime predicated on unofficial conduct. Id. at 2340-41.III.None of the Allegations or Evidence Is Protected by Presidential ImmunityAt its core, the defendant's scheme was a private one; he extensively used private actorsand his Campaign infrastructure to attempt to overturn the election results and operated in a privatecapacity as a candidate for office. To the limited extent that the superseding indictment andproffered evidence reflect official conduct, however, the Government can rebut the presumptionof immunity because relying on that conduct in this prosecution will not pose a danger of intrusionon the authority or functions of the Executive Branch. Below, the Government categorizes theconduct outlined in Section I and provides “content, form, and context" for this Court to determinethat the defendant's conduct was private or that, in the alternative, any presumptive immunity isrebutted “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 andcircumstances of this case.This section first addresses the defendant's interactions with Pence, because in Trump, theSupreme Court held that when the defendant conversed with Pence about "their officialresponsibilities,” the conduct was official. 144 S. Ct. at 2336. Accordingly, the Governmentexplains below why any presumptive immunity as to the defendant's official conduct regarding-88-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 89 of 165Pence is rebutted. Other than the specific official conduct related to Pence that the Supreme Courtheld to be official, none of the defendant's other actions were official. This section categorizesthat 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) thedefendant's efforts, as a candidate, to organize fraudulent electors; c) the defendant's publicspeeches, Tweets, and other public statements as a candidate; d) the defendant's interactions, as acandidate, 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, theGovernment can rebut the attendant presumption of immunity as described below.A. The Defendant's Interactions with PenceThe only conduct alleged in the original indictment that the Supreme Court held wasofficial, and subject to at least a rebuttable presumption of immunity, was the defendant's attemptsto lie to and pressure Vice President Pence to misuse his role as President of the Senate at thecongressional certification. The Supreme Court stated that “[w]henever the President and VicePresident discuss their official responsibilities, they engage in official conduct,” and furtherexplained that because Pence's role at the certification was “a constitutional and statutory duty ofthe Vice President,” the defendant was "at least presumptively immune from prosecution for suchconduct." 144 S. Ct. at 2336. Accordingly, unlike all of the other threshold determinations thatthe Court will have to make about whether the defendant's conduct alleged in the supersedingindictment was official, with respect to the defendant's conversations with Pence about Pence'sofficial role at the certification proceeding, the Court can skip to the second step: whether theGovernment can rebut the presumption of immunity that the Supreme Court held applies to suchconversations. Because the Executive Branch has no role in the certification proceeding—andindeed, the President was purposely excluded from it by design—prosecuting the defendant for his- 89 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 90 of 165corrupt efforts regarding Pence poses no danger to the Executive Branch's authority orfunctioning.As described below, the Government also intends to introduce at trial evidence regardingconversations between the defendant and Pence in which they did not discuss Pence's officialresponsibilities as President of the Senate and instead acted in their private capacities as runningmates. And the Government intends to elicit at trial evidence about a Pence staffer's conversationswith co-conspirator CC2 Those conversations were unofficial and therefore not immune.1. The defendant's interactions with Pence as the President of the Senate wereofficial, but the rebuttable presumption of immunity is overcomeThe superseding indictment and the Government's trial evidence include the defendant'sattempts to influence Pence's “oversight of the certification proceeding in his capacity as Presidentof the Senate." Trump, 144 S. Ct. at 2337. These conversations included one-on-one conversationsbetween the defendant and Pence (see, e.g., supra pp. 49, 63-65, 72-74, describing conversationson December 5 and 25, 2020, and January 1, 3, 5, and 6, 2021496), as well as conversations inwhich the defendant included private actors, such as co-conspirator CC2 in his attempts toconvince Pence to participate in the conspiracies (see, e.g., supra pp. 66-67 and 71-72, describingconversations on January 4 and 5, 2021).The Supreme Court held that discussions between the defendant and Pence concerningPence's role at the certification proceeding qualify as official conduct, and therefore are subject to496 The Government's factual proffer also describes a conversation between the defendant andPence on December 19—the same day that the defendant issued his "will be wild!” Tweet callingsupporters to Washington—in which the defendant told Pence that it would be good to have lotsof their supporters in town on January 6. See supra pp. 60. At trial, the Government intends touse this unofficial portion of the conversation, held between running mates, but not Pence'sresponse, which included a reference to the certification proceeding on January 6. GA 440-441); GA 1020 (Pence, So Help Me God p. 437). See infra p. 145-146.-90-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 91 of 165a rebuttable presumption of immunity, because they involved “the President and the Vice Presidentdiscuss[ing] their official responsibilities.” Id. at 2336. Those discussions qualify as officialbecause "[p]residing over the January 6 certification proceeding at which Members of Congresscount the electoral votes is a constitutional and statutory duty of the Vice President." See id. at2336; U.S. Const. Art. I, § 3, cl. 4. The discussions at issue did not pertain to Pence's role asPresident of the Senate writ large, however, but instead focused only on his discrete duties inpresiding 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 effortsto influence Pence in the discharge of this particular duty, housed in the Legislative Branch, wouldnot "pose any dangers of intrusion on the authority and functions of the Executive Branch." Id.The Executive Branch has no authority or function to choose the next President.Blassingame, 87 F.4th at 17. To the contrary, the Constitution provides that the States will appointelectors to vote for the President and Vice President. U.S. Const. Art. II, § 1, cl. 2. And all Stateshave chosen to make such appointments based on the ballots cast by the people in their respectivestates. See Chiafalo v. Washington, 591 U.S. 578, 581 (2020). "The Congress may determine theTime 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 theprocess established by the Constitution similarly provides no role for the Executive Branch: theHouse and Senate meet in joint session, with the President of the Senate present to “open all thecertificates" of the state-appointed electors in the presence of the House and Senate, for them tobe counted. U.S. Const. Amend. XII. “The person having the greatest number of votes forPresident, shall be the President, if such number be a majority of the whole number of Electorsappointed." Id. Only if the state-appointed electors have failed to make a choice, i.e., no candidate- 91 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 92 of 165has such a majority, does the choice fall to the House of Representatives, who, voting by statedelegation, "choose immediately, by ballot," from the three presidential candidates receiving themost electoral votes. Id. There, too, the Executive Branch plays no role in the process.The exclusion of the Executive Branch reflects fundamental constitutional principles. The"executive Power” is “vested in a President” only for "the Term of four Years," U.S. Const. Art.II, § 1, cl. 1, and it transfers to his successor, by operation of law, “at noon on the 20th day ofJanuary," U.S. Const. Amend. XX. Permitting the incumbent President to choose his ownsuccessor -or, worse still, to perpetuate himself in power-would contradict the entireconstitutional system that the Framers created. “In free Governments,” Benjamin Franklinexplained, “the rulers are the servants, and the people their superiors [and] sovereigns.” 2 TheRecords of the Federal Convention of 1787, at 120 (Max Farrand ed., 1911). A government couldnot 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 theyhold their appointments" for a “definite period.” The Federalist No. 39 (J. Madison). Thus, whilethe Framers recognized “the necessity of an energetic Executive," they justified and checked hispower 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 furtherrecognized 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 FederalistNo. 51 (J. Madison).Some of those precautions are reflected in the design of the Electoral College itself."[W]ary of 'cabal, intrigue, and corruption,”” the Framers “specifically excluded from service aselectors 'all those who from situation might be suspected of too great devotion to the president in-92-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 93 of 165office.”” Trump, 144 S. Ct. at 2339 (quoting The Federalist No. 68 (A. Hamilton)). They werekeenly aware, as Justice Story later explained, that “an ambitious candidate" could hold out "therewards 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 thehighest, and purest, and most enlightened men in the country." Joseph Story, 3 Commentaries onthe Constitution of the United States § 1450, at 314 (1833 ed.). To guard against that possibility,Article II provides that “no Senator or Representative, or Person holding an Office of Trust orProfit under the United States, shall be appointed an Elector." U.S. Const. Art. II, § 1, cl. 2. As aleading early American commentator observed, these limitations serve "to prevent the person inoffice, at the time of the election, from having any improper influence on his re-election, by hisordinary 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 theincumbent President from playing a role in choosing the next President. The Constitution reflectsan abiding concern that governmental “power is of an encroaching nature, and that it ought to beeffectually restrained from passing the limits assigned to it,” not least to protect against “the dangerto liberty from the overgrown and all-grasping prerogative of an hereditary magistrate." TheFederalist No. 48 (J. Madison); see Metro. Wash. Airports Auth. v. Citizens for Abatement ofAircraft Noise, Inc., 501 U.S. 252, 273 (1991) ("The abuses by the monarch recounted in theDeclaration of Independence provide dramatic evidence of the threat to liberty posed by a toopowerful executive.”). The Framers therefore designed a system of separated powers in part toensure that "[n]o man is allowed to be a judge in his own cause, because his interest would certainlybias his judgment, and, not improbably, corrupt his integrity." The Federalist No. 10 (J. Madison).-93-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 94 of 165The defendant's charged conduct directly contravenes these foundational principles. Hesought to encroach on powers specifically assigned by the Constitution to other branches, toadvance 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 ofintrusion on the authority and functions of the Executive Branch; rather, it would advance theConstitution's structural design to prevent one Branch from usurping or impairing the performanceof 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 toencompass any direct role in the function of collecting, counting, and certifying the results of apresidential election. As President Lincoln explained in 1864, “[b]y the Constitution and laws thePresident is charged with no duty in the conduct of a presidential election in any State,” and “[i]fany election shall be held, and any votes shall be cast in the State of Tennessee for President andVice President of the United States, it will belong, not to the military agents, nor yet to theExecutive Department, but exclusively to another department of the Government, to determinewhether they are entitled to be counted, in conformity with the Constitution and laws of the UnitedStates." 8 Collected Works of Abraham Lincoln, 71-72 (1953). When Congress later sent toLincoln for his signature a “Joint resolution declaring certain States not entitled to representationin the electoral college," Lincoln signed the resolution “in deference to the view of Congressimplied in its passage and presentation to him,” but “disclaim[ed] all right of the Executive tointerfere in any way in the matter of canvassing or counting electoral votes." House SpecialCommittee, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 229-230 (1877). TheGovernment is aware of no contrary evidence, including of any President, other than the defendant,-94-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 95 of 165seeking to influence his Vice President in the discharge of his duties as President of the Senate inpresiding over the joint session. The absence of any such historical tradition is reinforced by thefact that in 22 of the 59 certification proceedings the Vice President has not presided at all. SeeJoel 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 beendeliberately 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 ofthe Senate no substantive role in determining how to count the votes of the electors appointed bythe states. Rather, it provides only that he “shall, in the presence of the Senate and House ofRepresentatives, open all the certificates," and then shifts to the passive voice: "and the votes shallthen be counted.” Nothing in the Constitution remotely suggests that the single individual servingas President of the Senate would have the momentous responsibility to decide which votes to countand how they should be counted. Indeed, as Pence himself explained on January 6, 2021, givingthe 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 theVice President's role in the counting of the electoral votes," Trump, 144 S. Ct. at 2337 (citing 3U.S.C. § 15), and it has never provided any substantive role for the Vice President, insteadassigning the resolution of disputes to the two Houses of Congress. 498 Moreover, Congress has99497497GA 1685 (Pence Dear Colleague Letter 01/06/2021).498 Legislation confirming the ministerial nature of that role dates to the Electoral Count Act of1887, Pub. L. 49-90, 24 Stat. 373 (1887). See 3 U.S.C. §§ 15-18 (2020 ed.) (assigning all powerto resolve vote-counting disputes to the two Houses of Congress, while assigning to the Presidentof the Senate only the ministerial duties of “presiding,” “preserv[ing] order,” “open[ing] . . . thecertificates,” “call[ing] for objections,” and “announc[ing] the state of the vote” after receiving theresults from the tellers).-95-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 96 of 165now made explicit echoing and reaffirming constitutional tradition and practice that, withlimited exceptions of no relevance to this case, “the role of the President of the Senate whilepresiding 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 orresolve disputes over the proper certificate of ascertainment of appointment of electors, the validityof electors, or the votes of electors." Id. § 15(b)(2). 499 Because the Vice President's role is andhas always been ministerial, rather than substantive or discretionary, it is difficult to imagine anoccasion 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 Senateoverseeing the certification of Electoral College results would not jeopardize an Executive Branchfunction or authority.Critically, applying a criminal prohibition to the discrete and distinctive category of officialinteractions 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 implicateExecutive Branch interests. The President would still be free to direct the Vice President in thedischarge of his Executive Branch functions, such as “presid[ing] over . . . cabinet meetings,"engaging in “diplomacy and negotiation," or performing any other presidential duties that thePresident 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 the499Section 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 anydoubt that the President of the Senate's role at the joint session is ministerial. And because therebuttal analysis is necessarily prospective in nature, the current version of Section 15 supplies therelevant measure, in this context, of "the Vice President's role in the counting of electoral votes,"Trump, 144 S. Ct. at 2337.-96-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 97 of 165President's agenda in Congress,” by casting tiebreaking votes on legislation or nominations. Id.at 2337. None of these legitimate Executive Branch functions would be chilled or affected at all.Lastly, the fact that the defendant regularly included other private actors, such as his privateattorney and co-conspiratorCC2 in some conversations to attempt to pressure Pence(Superseding Indictment, ECF No. 226 ¶¶75-76; supra pp. 66-67, 71-72) strengthens theconclusion that prosecuting the defendant for his actions using CC2 to help recruit Pence intothe conspiracies does not infringe on any Executive Branch authority or function. As set forth inSection I, private co-conspirators worked to schedule the January 4 meeting at which CC2attempted to pressure Pence. Although White House Counsel P59was invited to themeeting, when he arrived to attend, the defendant explicitly excluded him from it—meaning thatthe only attorney attending the meeting for the defendant was CC2 his privately-retainedcounsel. In P59 telling, when P59arrived at the Oval Office for the meeting, thedefendant “said words . . . indicating he didn't want me at the meeting.”500 It is hard to imaginestronger evidence that conduct is private than when the President excludes his White HouseCounsel and only wishes to have his private counsel present.and P8asCC2Next, the phone call on January 5 that the defendant and CC2 made to Pence, P58was the result of the private co-conspirators' failure to convince P58 and P8 to dourged in the meeting on the morning of January 5 that P58 and P8 took at thedefendant's request. The defendant's decision to include private actors in the conversations withPence about his role at the certification makes even more clear that there is no danger to theExecutive Branch's functions and authority, because the CC2 conversations had no bearing onany Executive Branch prerogative. Instead, all of this conduct objectively benefitted the defendant500 GA 120-121-97-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 98 of 165in his private capacity as a candidate. The Court should therefore find the presumption ofimmunity to be rebutted. And because the presumption is rebutted, any participant in the meetingor phone call—including Pence, P58 and P8 can testify about it at trial.2. The defendant's interactions with Pence as a running mate were unofficialAt trial, as indicated supra pp. 12-14, the Government intends to introduce evidence ofprivate phone calls or in-person meetings (which occasionally included Campaign staff) that thedefendant had with Pence in their unofficial capacities, as running mates in the post-electionperiod. These conversations were not described in the original indictment nor analyzed by theSupreme Court in its opinion, nor are they described in the superseding indictment. In theseconversations, the defendant and Pence discussed their electoral prospects, election-relatedlitigation, 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 networksprojected 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 thedefendant to consider running for election again in 2024. Although the defendant and Pencenaturally may have touched upon arguably official responsibilities that were tangential to theirelection prospects—for instance, whether the federal government should begin its logisticaltransition to prepare for a different Administration 50 -the overall context and content of the501conversations demonstrate that they were primarily frank exchanges between two candidates on ashared ticket, and the Government does not intend to elicit testimony about any peripheraldiscussion of arguably official responsibilities. See Blassingame, 87 F.4th at 17 (“[A] President501See, e.g., GA 1037). See GA 1018 (Pence, So Help Me God p. 432).-98-; GA 425-426

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 99 of 165acts in a private, unofficial capacity when engaged in re-election campaign activity."); see alsoUnited States v. Helstoski, 442 U.S. 477, 488 n. 7 (1979) (in the Speech or Debate context, whenan act contains both protected legislative components and non-protected components, the correctcourse is to “excis[e] references to legislative acts, so that the remainder of the evidence would beadmissible"). Together, these discussions show the defendant and Pence considering advice fromtheir shared Campaign advisors, weighing electoral strategies, and grappling with their loss. Bothmen had something to gain by winning re-election, making more notable the persistence of Pence'ssuggestions on how to accept the results of the election without losing face.Even if the Court determines that these conversations were official, however, theGovernment can rebut the presumption of immunity because the use of this evidence poses no riskto Executive Branch prerogatives. The content of the conversations at issue—the defendant andPence's joint electoral fate and how to accept the election results—have no bearing on any functionof the Executive Branch. See Blassingame, 87 F.4th at 4 (“The Office of the Presidency as aninstitution is agnostic about who will occupy it next.”).3. P58 one-on-one interactions with CC2 were unofficialPence staffer P58 also participated in a January 5 meeting with CC2 and P8(Superseding Indictment, ECF No. 226 ¶ 78a; supra pp. 69-70) and on January 6 engaged in alengthy email exchange with CC2 (Superseding Indictment, ECF No. 226 ¶ 99; supra p. 85).These interactions were outside of the defendant's presence, and the latter was a series of emails.These conversations were not official, within the meaning of Trump, since the defendant was notinvolved and did not otherwise direct P58 actions, and because of the other information abovedescribing CC2inherently private role.- 99-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 100 of 165B. The Defendant's Interactions, in his Capacity as a Candidate, with Officials in theTargeted States1. The interactions at issue were unofficialtheAt trial, the Government will introduce evidence that the defendant, in his capacity as acandidate, contacted state elected officials to use false claims of election fraud to induce theirassistance with the charged conspiracies at the point in the electoral process in which the statesascertain electors. These communications included calls to P16 the Governor of Arizona; ameeting with Michigan legislators at the White House; a call to P18 the Speaker of the ArizonaState House; a call to P26 the Attorney General of Georgia; and a call to P33Georgia Secretary of State. The contacts, sometimes in person and sometimes by phone, were partof a single course of conduct aimed at lying to and influencing these state officials to alter theresults of the election in the defendant's favor. In each conversation, the defendant raised falseclaims of election fraud when pressing the state officials, often asking them to take steps to preventor overturn the ascertainment of Biden's legitimate electors. And in each case, the state officialsinformed 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 effortsto contact the equivalent individuals holding the same offices in Nevada, New Mexico,Pennsylvania, or Wisconsin, all of whom were Democrats. Most importantly, as with thedefendant's plan regarding the fraudulent elector slates, as President, he had no official role in theprocess by which states appointed and ascertained their presidential electors. See 144 S. Ct. at2353 (Barrett, J., concurring) (“The President has no authority over state legislatures or theirleadership, so it is hard to see how prosecuting him for crimes committed when dealing with theArizona House Speaker would unconstitutionally intrude on executive power."). The content,- 100 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 101 of 165form, and context of the defendant's interactions with these state officials firmly establish that hisconduct was unofficial.a. Calls toP16(supra pp. 17-18)The defendant called P16 then the Governor of Arizona, on or about November 9.502The defendant's call to 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 inArizona in his particular race, and on the margins and allegations of fraud that could potentiallybenefit him personally as a candidate. P16 in turn, responded by giving the defendant hisassessment of the defendant's electoral prospects in Arizona-prospects that were dim. 503 Thedefendant did not ask about the vote counts for, or claim fraud existed in, any race other than hisown. And he raised fraud claims in this context—about whether he could still win Arizona―notin the larger context of election integrity. The defendant claimed that he would deliver evidenceof election fraud to P16 then did not. 504 The call was a surprise to P16 and unusually shortand to the point for the defendant, who usually liked to chat. 505 In contrast, according to P16this call contained little conversation or pleasantries and was solely focused on the vote count inthe Presidential race and the defendant's fraud claims. 50506This call must also be considered in the context of the conspirators' additional pressurecampaign on P16 On other occasions, CC1 tried to reach P16 but P16 declined to502 GA 656-658503See GA 656-658); GA 727). See also GA 667 (504GA 657505 Id.506 Id.- 101 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 102 of 165accept the calls. 507 And on November 30, the day P16 signed the certificate of ascertainmentdeclaring Biden's electors the legitimate ones for Arizona, the defendant (joined by Pence) againcalled P16 again raised fraud claims, and again failed to substantiate them.5failed to do as the defendant demanded, after the call, the defendant attacked P16 publiclythrough Twitter. 509508When P16Each of these communications with P16 was unofficial. The defendant engaged in themall in his capacity as a candidate, in an attempt to elicit P16support in re-installing him aspresident.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 wasprivate in nature. During the meeting, the defendant raised claims of election fraud in the staterelated specifically and only to his own election, and the legislators explained that the defendanthad lost not because of fraud but because he had underperformed with educated female voters. 510Although the meeting took place in the Oval Office as did many unofficial Campaign meetingsin which the defendant participated in the post-election period ³¹¹—a close examination of all ofthe other circumstances surrounding the meeting makes clear that it was a Campaign meeting.511507GA 661508 GA 658-659, 667-668509 GA 831-834 (Donald J. Trump Tweet 11/30/2020); GA 835-836, GA 1892 (Donald J. TrumpTweet 11/30/2020).510 GA 563-564511See, e.g., GA 723, 725; GA 732); GA 728-730); GA 737-738; GA 739-740; GA 746- 102-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 103 of 165P39-bothThe defendant originally initiated the meeting through RNC Chairwomana private and partisan actor, and then followed up himself with P37 and P38fellow Republicans and strong political supporters of the defendant. 512 Cf. Trump, 144 S. Ct.at 2340 (suggesting the President acts in an unofficial capacity when acting as “party leader”).Although the defendant did not specify the topic of the meeting in advance, both P37 andP38513assumed correctly—that the defendant wanted to see them to discuss claims ofelection fraud related to his own race. Notably, the defendant did not include in the meetinginvitation other Michigan officials who held positions more relevant to the election andcertification the Governor and Secretary of State but who were not Republicans. 514At the time, public interest and alarm were piqued by news that the defendant was meetingwith legislators from a state where there were pending election disputes and where the Governorhad not yet signed a certificate of ascertainment, and the White House declined to state the topicof the meeting. 515 During a press conference on the morning of November 20, White House PressSecretarywas asked about the meeting and claimed, “This is not an advocacymeeting. There will be no one from the Campaign there. He routinely meets with lawmakers fromP60all across the country." "516P39P60claim was false. Over the course of the meeting, the defendant dialed in bothdespite her request not to participate and CC1 517 The defendant's Chief of512 GA 69-71513 GA 556-559514 GA 559-561); GA 555-557GA 71-74515 GA 1712 (Email from the White House Press Office 11/20/2020).516 Id. (Email from the White House Press Office 11/20/2020).517 GA 330-337561); GA 82- 103 -); GA 560-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 104 of 165who519Staff, P21 was present for at least part of the meeting. 518 But besides P21separate from his Chief of Staff duties assisted the defendant with Campaign-related logistics,5no other Executive Branch staff joined the meeting; in fact, according to P9he andWhite House Counsel P59wanted no part of it. 520 As P37 and P38had expected,the defendant was focused on his own vote count in Michigan and on claims of fraud that relatedonly to him. 521 CC1 a private Campaign attorney, then dominated the rest of the meeting with522a monologue of false fraud claims. 52The only reason that there were topics of conversation other than the defendant's claims ofelection 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 tohave something to talk about other than the defendant's unsupported election fraud claims 523‍official portion of the meeting about which the Government does not intend to elicit testimony attrial. The legislators then took photos with the defendant, and the meeting ended; afterward,P21 took the group on a tour of the White House. 524-anAs planned, after the meeting, P37 and P38 released their statement that publiclydisclaimed evidence of outcome-determinative fraud in the election in Michigan. 525 The statementhad raised with the defendant issues related to Michigan'salso specified that P37 and P38); GA 685518 GA 560519GA 348-358520 GA 560521 GA 560-571522 GA 567-569523GA 75, 80-81524 GA 348-358525 GA 75, 94-95D; GA 361-362); GA 348-354); GA 74-84).); GA 559, 561-562); GA 562); GA 1040 (Joint Statement 11/20/2020).- 104 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 105 of 165need for federal funds to fight COVID. 526 When the defendant responded to the legislators' publicstatement in a Tweet, the private nature of that message, sent as a candidate seeking to overturnthe results of his own election-"We will show massive and unprecedented fraud!”—furtherdemonstrates the private nature of the meeting it concerned. 527 In addition, it was one of sixretweets and replies the defendant sent over an approximately thirteen-minute period, all of which528were focused on allegations of election fraud in his own race. Notably, the defendant did notconduct similar meetings in this period with legislators in states where he had won or even wherehe had lost by large margins, nor did he seek a meeting with the Michigan officials—the Governorand Secretary of State—who could have provided him with information about the integrity of theelection. 529sent text messages530 In the sameAs further context establishing the private nature of this meeting, it was the opening volleyof a larger pressure campaign on the same Michigan legislators by the defendant, his co-conspirators, and his Campaign. For example, days after this meeting, CC1intended to urge P37 and P38 to help overturn the results in Michigan.time period, the Campaign publicized contact information for P37 and P38number published for P38 was wrong) and encouraged the defendant's supporters to floodtheir phone lines with complaints. 531(although the526 Id. (Joint Statement 11/20/2020).527 GA 799-800 (Donald J. Trump Tweet 11/21/2020).528GA 801-802 (Donald J. Trump Tweet 11/22/2020); GA 803-804 (Donald J. Trump Tweet11/22/2020); GA 805-806 (Donald J. Trump Tweet 11/22/2020); GA 807-808 (Donald J. TrumpTweet 11/22/2020); GA 809-810 (Donald J. Trump Tweet 11/22/2020); GA 811-812 (Donald J.Trump Tweet 11/22/2020)).529 GA 559-561); GA 71-74530GA 1175531 GA 913-914 (Team Trump Tweet 01/03/2021).- 105 -); GA 1177

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 106 of 165c. Call withp. 19)P18(Superseding Indictment, ECF No. 226 ¶ 19; supraThe defendant's call to P18on November 22, 2020, also was unofficial. 532Along withhis private attorney, the defendant made the call in his capacity as a candidate and pressuredP18on electoral matters over which neither the defendant-nor even P18role.had an officialThe context of the call makes its unofficial nature clear. The defendant placed the call toP18 along with CC1 his lead Campaign attorney, and no White House officials participatedin the call. 533 In fact, CC1 did most of the talking. 534 The defendant and CC1 weresingularly focused on fraud claims that affected only the defendant, and did not raise any otherraces in Arizona. 535 And the content of the call confirmed it was unofficial: the defendant and hisprivate attorney asked P18the defendant's political ally, to take steps to replace Arizona'slegitimate electors with illegitimate ones for the defendant—a step that necessarily only affectedthe defendant's race, out of all the races on the same ballot. 53536P61The call must also be viewed in the larger context of the pressure campaign the defendantand his co-conspirators put on P18 and other Arizona officials. Immediately after speaking toP18 the defendant and CC1 spoke to Arizona State Senate President537 Aweek later, during the "hotel hearing," CC1 and P12 failed to bring the promised evidence andinstead admitted "[w]e don't have the evidence, but we have lots of theories.""538 See supra p. 19.532 GA 735533 GA 21-22534 GA 22-31535Id.536GA 22-25, 32-34537GA 735538 GA 36); GA 21-22- 106-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 107 of 165When P18publicly announced that he would not take extralegal action on the defendant'sbehalf, P19 and the defendant attacked P18on Twitter. 539Then, days before January 6,to act in contravention of the law and hisCC2 made another attempt to convince P18principles. 540 And just as was done with the Michigan legislators, the defendant's Campaign andP1 publicized contact information for P18 and P61 in an attempt to pressure them toundertake the same actions the defendant and co-conspirators had asked them privately toperform. 541 P18 like others who publicly opposed the defendant's efforts, was harassed andthreatened. 542d. Call to P26(supra pp. 23-24)The defendant's call on December 8 to P26 the Georgia Attorney General, also wasprivate. He undertook it to speak with P26 about Texas v. Pennsylvania, a lawsuit filed by theTexas Attorney General against Pennsylvania, Georgia, Michigan, and Wisconsin seeking toprevent those states from certifying their election results in favor of Biden based on a claim thatthe manner in which those states had administered their elections had violated the Constitution. 54543The defendant's interest in Texas v. Pennsylvania was personal and private; the lawsuitdealt only with the election for the offices of President and Vice President, not the myriad otherraces on the same ballots. Indeed, the day after his call with P26 the defendant-in his personalcapacity and with the assistance of co-conspirator CC2 as his private attorney-intervened in539 GA 854-855 (Donald J. Trump Tweet 12/06/2020); GA 852-853 (Donald J. Trump Tweet12/06/2020).540GA 37-44541 GA 915 (Team Trump Facebook Post 01/02/2021); GA 916 (Team Trump Tweet 01/02/2021);); see also GA 1713-1715GA 1982 at 22:00542GA 45-47543 GA 61-64); Mot. for Leave to File Bill of Complaint, Texas v.Pennsylvania, No. 22-O-155 (S. Ct. Dec. 7, 2020).- 107 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 108 of 165the suit 544 and in so doing "affirmatively communicated to the Supreme Court (and the public) thathe 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 P26 after a political intermediary laid the groundworkfor it, and immediately raised the lawsuit, which was the principal topic of conversation on thecall. 545 Based on P26's estimate and the Presidential Daily Diary, the call lasted about ten minutesand the defendant placed it at night from his private residence in the White House. 546 In fact,shortly before speaking with P26, the defendant had spoken with| P62 the Texas AttorneyGeneral who had filed the lawsuit, 547 and immediately after speaking with P26, the defendantcalled P63 the Missouri Attorney General who authored an amicus brief supporting thelawsuit that sixteen other state attorneys general joined.5548,The speed of the filing of the defendant's intervention brief the following day echoed whathe told P26: he was "running out of time,"549 presumably because landmark dates in the electoralprocess, like December 14 and January 6, were fast approaching. Lastly, the defendant and P26also spoke about the importance of their fellow Republican party members, Senators P27andP28winning their pending election-further making clear this call was unofficial.5550544Mot. to Intervene, Texas v. Pennsylvania, No. 22-0-155 (S. Ct. Dec. 9, 2020).545 GA 64546 GA 67547 GA 742); GA 742); Mot. for Leave to File Bill of Complaint, Texas); Brief of Missouri et al. as Amici Curiaev. Pennsylvania, No. 22-O-155 (S. Ct. Dec. 7, 2020).548 GA 742Supporting Plaintiff, Texas v. Pennsylvania, No. 22-0-155 (S. Ct. Dec. 9, 2020).549GA 66550GA 67- 108 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 109 of 165e.Call tosupra pp. 28-31)P33(Superseding Indictment, ECF No. 226 ¶ 33;The defendant's January 2 call toP33was unofficial and is not subject toimmunity; its content, form, and context make clear that the defendant undertook it as a candidateand plaintiff in a private lawsuit in whichP33was a defendant.P21 has said that the purpose of the call was to discuss the lawsuit, 551 and he actedP36and P31accordingly during it. At the outset of the call, P21 made introductions of all the participantson the defendant's behalf- P32552 all of whom were affiliated withthe Campaign's litigation efforts, which the defendant brought in his capacity as a candidate forPresident of the United States. 553Throughout the call, the defendant and his advisors approached the conversation throughhis role as a candidate and with a focus on his private lawsuit. For instance, in an apparentreference to individuals retained for his private lawsuit, the defendant claimed, "We're going tohave an accurate number over the next two days with certified accountants. But an accuratenumber will be given, but it's, it's in the fifties of thousands, and that's people that went to voteand they were told they can't vote because they've already been voted for.”554 Some of his falseclaims of fraud paralleled claims made in Campaign lawsuits, such as that of a substantial numberof dead and non-resident voters-for example, in Trump v. Raffensperger, a state court case whosecomplaint was appended to the federal suit Trump v. Kemp, the defendant's complaint assertedthat 4,926 out-of-state voters had cast ballots, while on the call the defendant cited the number551 GA 367-368552GA 1154 (Tr. of Call 01/02/2021).553 Complaint at 1, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1.554 GA 1154 (Tr. of Call 01/02/2021).- 109 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 110 of 1654,925.5555 And he deferred to his private attorneys at multiple points throughout the conversation.For instance, after P33told the defendant, “the challenge that you have is the data youhave is wrong," the defendant turned to P31 and asked, "Well, P31, how do you respond tothat?"556 At one point, P21 interjected and invoked the Campaign's litigation, askingwhether "we can find some kind of agreement . . to find a path forward that's less litigious."And near the end of the call, P32 the defendant's lead counsel in the lawsuit againstrequested “to sit down with your office, and we can do it through purposes ofP3399557compromise just like this phone call" to review data. 558P33counsel, P35The defendant's call toP33responded that P32 s cited numbers were inaccurate, but agreed to meet with him. 559was purely a private one, which he undertook as acandidate and the plaintiff in a lawsuit. Indeed, a federal district court has concluded that theP33call was a Campaign call rather than official business; when P21 soughtremoval to federal court of his criminal case in Fulton County, Georgia, a court in the NorthernDistrict of Georgia issued an order declining to assume jurisdiction becauseP21 had failedto meet his burden of showing that his role in the call was official rather than unofficial. SeeGeorgia 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) (“attempt to further Trump's private litigation interestss participation in the call reflected a clear.") (emphasis in original)); see alsoArizona v. Meadows, No. CV-24-02063-PHX-JJT, 2024 WL 4198384, at *7 (D. Ariz. Sept. 16,555 Complaint at 19, Trump v. Raffensperger, No. 2020CV343255 (Ga. Super. Ct. Dec. 4, 2020)available at: Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1-1 at 12-79.556 GA 1159 (Tr. of Call 01/02/2021).557GA 1157 (Tr. of Call 01/02/2021).558 GA 1170 (Tr. of Call 01/02/2021).559GA 1170-1171 (Tr. of Call 01/02/2021).- 110-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 111 of 1652024) (similarly denyingnotice of removal to federal court of a criminal case inArizona related to the defendant's fraudulent elector plan on the basis thatfurtherance of the plan charged by the State “is unrelated toconduct inofficial duties").2. Even if the defendant's contacts with state officials were official, theGovernment can rebut the presumption of immunityAlthough the Supreme Court did not resolve the issue in Trump, it described the basis forconcluding that using the defendant's conduct of lying to and pressuring state officials to changethe legitimate vote in a criminal prosecution would not intrude on Executive Branch functions orauthority:Indeed, the Constitution commits to the States the power to "appoint” Presidentialelectors “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’sappointments power,” we have said, “gives the States far-reaching authority overpresidential electors, absent some other constitutional constraint.” Chiafalo v.Washington, 591 U.S. 578, 588-589 (2020). By contrast, the FederalGovernment's role in appointing electors is limited. Congress may prescribe whenthe 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, nordoes he have authority to control the state officials who do. And the Framers, waryof "cabal, intrigue and corruption,” specifically excluded from service as electors"all those who from situation might be suspected of too great devotion to thepresident 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 assignedrole in the state-electoral process. To the contrary, the constitutional framework excludes thePresident 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 processescarried out by the states does not intrude on Executive Branch authority or functions. Rather, itensures that the President's conduct remains consistent with the Constitution's allocation of thatauthority to the States, while in no way impairing his ability to "encourage [state officials] to act- 111 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 112 of 165in a manner that promotes the President's view of the public good." 144 S. Ct. at 2338. ThePresident remains free, for instance, to urge state officials to institute measures to combat apandemic or make arrangements to provide emergency relief. This case does not remotelyimplicate such official conduct. What neither the President nor any other candidate may do isfurther his private campaign for office by using fraudulent means to have state officials certify himas winner of a presidential election despite the will of the voters. Accordingly, applying criminalpenalties to that conduct will not intrude on any Executive Branch authority or function.C. The defendant's efforts, as a candidate, to organize fraudulent electors1. The conduct at issue was unofficialThe defendant's conduct with respect to the elector scheme is inherently private, and notsubject to immunity. See 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part) (“Sorting privatefrom official conduct sometimes will be difficult—but not always. Take the President's allegedattempt to organize alternative slates of electors. In my view, that conduct is private and thereforenot entitled to protection."). The President of the United States has no official responsibilitiesrelated to the organization or voting of electors in the various states-by virtue of the Constitution,that process takes place in the states according to the laws and procedures set forth by each state.See U.S Const., Art. II, § 1, cl. 2. At oral argument before the Supreme Court, the defendantinitially conceded that the plan to submit fraudulent electors directed by the defendant and CC1was not official. Tr. of Oral Argument at 29-30; Trump, 144 S. Ct. at 2338. The Governmentnonetheless sets forth here the context, form, and content of the defendant's private contacts withP39in furtherance of the fraudulent elector plan because the defendantRNC Chairwomanconversely suggested in the same oral argument that he will argue that those efforts were official.See 144 S. Ct. at 2338.- 112 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 113 of 165The defendant had two relevant contacts with P39first, he and co-conspiratorCC2 called P39on December 6 to ask her to ensure that the effort was properlycoordinated (Superseding Indictment, ECF No. 226 ¶ 53; supra p. 50), and second, on the eveningof December 14, P39emailed the defendant through his executive assistant,inform him that the fraudulent electors had cast votes as he had directed (Superseding Indictment,P42toECF No. 22666; supra p. 57).The defendant and CC2CC2call to P39on December 6 was private. The defendantplaced the call along witha private attorney and co-conspirator, to P39 theChairwoman of a political organization whose objective was to elect a broad set of Republicans atthe federal and state level, including the defendant and other allied candidates. 560 CC2 wasacting in his capacity as a private attorney for the defendant; on the same day, CC2 emailedwith several other private attorneys and wrote, “This is huge — and hugely important. Let's makesure the various state electors are aware of the absolute necessity of meeting on the 14th, castingtheir votes, and otherwise complying with the transmittal requirements of federal law.”561Finally,the content of the call was likewise unofficial. The defendant and CC2 asked P39 towork with the Campaign, to ensure that the fraudulent electors were properly organized, which sheagreed to do and did, as is clear from her further contacts with CC1and CC6 regardingthe plan. 562P39P39email to the defendant on December 14 was likewise a private communication;simply forwarded the defendant an RNC communication summarizing the electoral vote560 GA 323-325561 GA 1716-1717562 GA 323-325; GA 1286-1287D; GA 1326-1327); GA 1288-1290- 113 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 114 of 165to inform him that the private task the defendant had given her was complete, and P42confirmed that she had relayed the message by writing, “It's in front of him!”563 As discussedinfra 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 anExecutive Branch aide helps carry it out.2. Even if the conduct were deemed official, the Government could rebut thepresumption of immunityIn any event, even if the defendant's efforts to convene fraudulent electors could beconsidered official, the presumption would be rebutted because “a President has no legalauthority and thus no official capacity—to influence how the States appoint their electors," andaccordingly, 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 limitedrole [in the appointment of Presidential electors], the President has none." Id. Accordingly,applying the criminal law to the defendant's “alleged attempt to organize alternative slates ofelectors,” while properly viewed as prosecution for private conduct, see id., implicates no authorityor functions of the Executive Branch—and therefore including such conduct in the defendant'sprosecution poses no danger of intruding on Executive Branch authority or functions. No federalexecutive function is impaired by applying criminal law to the alleged conduct of privatelyorganizing fraudulent slates of electors.563 GA 328-329); GA 1483-1484- 114 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 115 of 165D. The Defendant's Public Speeches, Tweets, and Other Public Statements as aCandidate1. The statements at issue were unofficialMerely because the President is speaking to the public-even on “matters of publicconcern" does not automatically render the communication official. Blassingame, 87 F.4th at19-20. Instead, what matters is "whether the President is speaking (or engaging in conduct) in anofficial 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 theelection and lasting until January 6, the defendant at various times communicated publicly not asPresident but as a candidate for office. These communications included public Campaignspeeches, Tweets, and other public statements and comments. The defendant's communicationsthat the Government has alleged in the superseding indictment and described in Section I were allmade in his capacity as a candidate and are not official.a. SpeechesThe 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 theprominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office orparty 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, andhis Campaign speech at a political rally on the Ellipse on January 6, 2021.- 115 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 116 of 165i.Dalton, Georgia, on January 4, 2021 (supra p. 68)In his capacity as a candidate, the defendant traveled to Dalton, Georgia, on January 4 atthe invitation of two Republican U.S. Senators who were competing in a run-off election thefollowing day to retain their seats. The RNC paid for the event. 564The White House's records, including the trip binder that White House staff prepared forthe event and that includes a schedule and manifests, further confirm the private nature of theDalton speech.565 The defendant was the only Executive Branch participant in the event—otherattendees were federal and state elected officials, the Chairman of the Georgia Republican Party,and the founder of Bikers for Trump. 566 The trip binder included a Hatch Act disclaimer statingthat “employees of the Federal Government may not use their official title or position whenparticipating in a political event.”567 Its description of the "event" to which the defendant wastraveling was “Remarks at Victory Rally.”568 Similarly, the Presidential Daily Diary from that daydescribes that “[t]he President made remarks at the Georgia Senate Victory Rally." Thisnomenclature the use of the phrase "Victory Rally”—is significant. “Victory” necessitates onepolitical candidate or party defeating another, and rallies are the kinds of events that candidateshold to excite their supporters and garner votes."569564 GA 1718-1724; GA 1730-1732); GA 1743 (); GA 1741); GA 1747); GA 1739565 GA 1751-1755566 GA 1752567Id.568 Id.569 GA 767- 116-); GA 1725-1729D; GA 1733-1736); GA 1744; GA 1745-1746

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 117 of 165Moreover, the defendant's Campaign sent numerous fundraising emails before, during, andafter the speech, confirming the event's private nature. In a January 4 email around 3:00 p.m., theCampaign 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|99570P28and P27theThis 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 RunoffElection is TOMORROW, and it's going to take the support of Patriots from all around the Nationif we're going to WIN BIG and SAVE America from the Radical Left." Later, at 9:21 p.m.,Campaign sent a fundraising email (in the name of the defendant's son) that began, "My father ison stage RIGHT NOW in Georgia rallying with Senators | P28DEFEND our Senate Republican Majority. Are YOU watching?"571 The email reminded votersthat "The Senate Runoff Election is TOMORROW and YOU are the only one who can stop ["theLeft"] from taking over.”99572andP27toAnother 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 P28andP27The energy of the American People was UNMATCHED and I knowwe're going to WIN BIG tomorrow."573570 See, e.g., GA 1759-1762 (Campaign Fundraising email 01/04/2021); GA 1763-1765(Campaign Fundraising email 01/04/2021); GA 1766-1767); GA 1768-1771 (Campaign Fundraising email 01/04/2021).571 See, e.g., GA 1772-1775 (Campaign Fundraising email 01/04/2021); GA 1776-1778(Campaign Fundraising email 01/04/2021); GA 1779-1780572 Id.573|); GA 1781-1784 (Campaign Fundraising email 01/04/2021).See, e.g., GA 1785-1788 (Campaign Fundraising email 01/04/2021); GA 1789-1791(Campaign Fundraising email 01/04/2021); GA 1792-1793|); GA 1794-1797 (Campaign Fundraising email 01/04/2021).- 117-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 118 of 165Finally, the content of the Dalton speech confirms its unofficial nature. The defendantbegan by telling the crowd, “Tomorrow, each of you is going to vote in one of the most importantrunoff elections in the history of our country.... You're going to get everyone you know. You'regoing to show up to the polls in record numbers. You got to swamp them, and together, we'regoing to defeat the Democrat extremists and deliver a thundering victory toAnd someone that has really been a star in Washington,speech to pressure Pence. 5575P28P27574 He also used theMuch of the speech then veered into the defendant's principal claimsof fraud and irregularities in the presidential election, but he occasionally returned to the theme ofthe following day's election, including discussion of the Democratic candidates. 57ii.576The 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 “organizingthe 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 andexecuted 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 andthroughout the post-election time period. 577 Cf. Trump, 144 S. Ct. at 2340 (“Knowing . . . whowas involved in . . . organizing the rally[] could be relevant to the classification" of the Ellipsespeech as official or unofficial.). The Ellipse rally was originally planned to take place at FreedomPlaza, but after WFAF began to plan the rally independent of the defendant,574 GA 1089 (Dalton Rally Speech Draft Tr. 01/04/2021).575 GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).576 GA 1091 (Dalton Rally Speech Draft Tr. 01/04/2021).577GA 299-300 (653P64a); GA 485-486); GA 1801-1802); GA- 118 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 119 of 165private fundraiser for the defendant, contacted WFAF to discuss moving the event to the Ellipse578and featuring the defendant as a guest. The organizers and planners of the event were almostexclusively private individuals, with minimal involvement by White House advance staff. TheUnited States Secret Service, which is charged with the President's protection at all times, evenP6555579580during unofficial events, considered the rally to be "a campaign event.” The rally wascompletely funded by a $2.1 million private donation bya grocery chain heiress.5This private funding, while not dispositive, is a strong indicator that the event was unofficial.P66the rally organizer who had the most direct contact with the defendant, was anemployee of the defendant's Campaign until December 31, 2020, and after that, a private citizen. 581And in public statements since leaving office, the defendant has said repeatedly that he “hadnothing to do with” the rally “other than they asked me to make a speech. I showed up for aspeech."582For 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 forpolitical and Campaign events. As with the trip binder for the Dalton remarks, the defendant's tripbinder for the Ellipse speech also reinforces the private nature of the event. Although it does not578 GA 301-302579 GA 399-403; GA 1804 (then the Special Agent in Chargeof the Washington Field Office of the Secret Service, elaborated that the defendant's protectivedetail “wasn't getting information [about the rally] from their counterparts at the White House staffbecause this was not a staff-driven event. This was a campaign driven event." GA 399.580GA 645-652); GA 1805-1818 (; GA 1142 (); GA 1895GA 1819-1822581 GA 483-484582 Riley Hoffman, Read: Harris-Trump presidential debate transcript (Sept. 10, 2024, 11:58 PM),availablehttps://abcnews.go.com/Politics/harris-trump-presidential-debate-transcript/story?id=113560542; see also GA 1692 (Transcript of CNN Town Hall 05/10/2023).at- 119 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 120 of 165include 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. 583The defendant's White House employees understood the rally and the defendant's speechat it to be a private, unofficial exercise and acted accordingly. Consistent with the Hatch Act'srequirement 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 | P67on which P45was copied, provided “[a] reminder today is a political event.”584Likewise, the defendant's White House speechwriting staff understood that the speech was apolitical, unofficial one and used their personal devices and personal email accounts to do most ofthe drafting and fact-checking for the defendant's Ellipse speech, though some last revisions to thespeech on the morning of January 6 occurred over White House email. 585 And officials in theWhite House Counsel's Office who customarily reviewed the defendant's official remarkspointedly did not review the Ellipse speech because it was an unofficial Campaign speech. 586Similarly, the White House website in the moments after the defendant's speech at the rally madeno mention of it—instead, the official webpage touted official accomplishments like COVID583 GA 1827-1832584 GA 1833585 See GA 636GA 1834-1843586GA 105); GA 539; GA 191-192); GA 1681); GA 476-477-120-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 121 of 165vaccines and peace in the Middle East. 587 By contrast, the speech was advertised heavily by thedefendant's Campaign Twitter account, which also repeatedly posted clips of the event in progressand afterward. 588The day-of logistics of the Save America Rally further indicate its private nature. No otherExecutive Branch officials spoke. Instead, other speakers included WFAF officials, thedefendant's political allies, two U.S. Representatives, and the defendant's co-conspirators andprivate attorneys, CC1 and CC2589Moreover, the defendant's appearance was consistent with a Campaign rally, not an officialevent. The crowd at the rally consisted of the defendant's political supporters, who held signs andwore clothing bearing the defendant's Campaign slogans. 590 And the manner in which thedefendant took the stage at the rally was also consistent with his Campaign rallies: instead ofentering 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 hisCampaign (Lee Greenwood's “"God Bless the U.S.A.” and the Village People's “Y.M.C.A.”591).587 See The White House Home Page (screenshot), WHITEHOUSE.GOV (Jan. 6, 2021)https://web.archive.org/web/20210106154456/https:/www.whitehouse.gov/.588 GA 954 (Team Trump Facebook Post 01/06/2021); GA 955 (Team Trump Facebook Post01/06/2021); GA 956 (Team Trump Facebook Post 01/06/2021); GA 957 (Team Trump Tweet01/06/2021); GA 958 (Team Trump Tweet 01/06/2021); GA 959 (Team Trump Tweet01/06/2021); GA 960 (Team Trump Tweet 01/06/2021); GA 961 (Team Trump Tweet01/06/2021); GA 962 (Team Trump Tweet 01/06/2021); GA 963 (Team Trump Tweet01/06/2021).589 OGA 1928 (Video of Ellipse Rally 01/06/2021).590 See GA 1913 (Video of Ellipse Rally 01/06/2021); GA 1908 (Video of Ellipse Rally01/06/2021).591Compare KJRH-TV Tulsa, President Trump arrives at White House, YouTubehttps://www.youtube.com/watch?v=j7u5obMdl8A with GA 1928 at 3:28:50 and 4:42:55 (Videoof Ellipse Rally 01/06/2021).-121-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 122 of 165592Tellingly, the significant similarities with the defendant's Dalton Campaign speech³confirm that the Ellipse speech 593—delivered just two days later—was private, partisanelectioneering. The defendant covered many of the same topics and told many of the same liesabout fraud in only his election in some cases, using the exact same words. For instance:•The defendant, as a candidate, falsely claimed he had won the election (Dalton at GA 1102:"I ran two elections. I won both of them. Second one, much more successful than thefirst." Ellipse at GA 1115: "I've been in two elections; I won them both, and the secondone I won much bigger than the first.").The defendant, as a candidate and the leader of a political party, implored politicalsupporters to pressure Pence (Dalton at GA 1090: “I hope Mike Pence comes through forus, I have to tell you. I hope that our great Vice President, our great Vice President comesthrough for us. He's a great guy. Of course, if he doesn't come through, I won't like himquite as much.” Ellipse at GA 1116: “I hope Mike is going to do the right thing. I hopeso. I hope so. Because if Mike Pence does the right thing, we win the election.”).The defendant, as a candidate and the leader of a political party, attacked a fellow partymember who had been insufficiently subservient (Dalton at GA 1104: Georgia GovernorP17 was an "incompetent governor." Ellipse at GA 1125: P17 was "one of thedumbest governors in the United States.").The defendant, who in his capacity as a candidate had suffered personal legal defeats in hisprivate, election-related litigation at the Supreme Court, attacked it (Dalton at GA 1095:"I'm not happy with the Supreme Court. They are not stepping up to the plate. They'renot stepping up.” Ellipse at GA 1125: “I'm not happy with the Supreme Court. They loveto rule against me.").• The defendant, as a candidate, made myriad false claims regarding fraud in the presidentialelection, including:o ArizonaNon-citizens cast 36,000 votes (Dalton at GA 1106: “In Arizona, more than36,000 votes were cast by non-citizens." Ellipse at GA 1134: "Over 36,000ballots were illegally cast by non-citizens.”); and592 See GA 1088 (Dalton Rally Speech Draft Tr. 01/04/2021).593See GA 1114 (Ellipse Rally Speech Draft Tr. 01/06/2021).-122-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 123 of 165○ GeorgiaThere were more ballots than voters (Dalton at GA 1106: "There were11,000 more ballots than there were voters." Ellipse at GA 1134: “11,600more ballots and votes were counted, more than there were actual voters.").There were more than 10,000 dead voters (Dalton at GA 1103: "We wereup. 10,315 ballots were cast by individuals whose name and date of birthmatches a Georgia resident who died in 2020 prior to the election. Thenyour wacky secretary of state said two people, two people." Ellipse at GA1133-1134: "Over 10,300 ballots in Georgia were cast by individuals whosenames and dates of birth match Georgia residents who died in 2020 andprior to the election.");More than 2,500 ineligible felons voted (Dalton at GA 1103: “2,506 ballotswere cast by individuals whose name and date of birth matches anincarcerated felon in a Georgia prison. Maybe they aren't all there, but theydid a lot of work. I paid a lot of money to a lot of people. I can tell youthat." Ellipse at GA 1134: “More than 2,500 ballots were cast byindividuals whose names and dates of birth match incarcerated felons inGeorgia prison people who are not allowed to vote.");Thousands of unregistered people voted (Dalton at GA 1103: "4,502 illegalballots were cast by individuals who do not appear on the state's voterrolls." Ellipse at GA 1134: “More than 4,500 illegal ballots were cast byindividuals 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 usingan address listed as vacant according to the postal service." Ellipse at GA1134: “Over 18,000 illegal ballots were cast by individuals who registeredto vote using an address listed as ‘vacant,' according to the PostalService.");At least 88,000 ballots were illegally backdated (Dalton at GA 1103: "Atleast 86,880 ballots were cast by people whose registrations were illegallybackdated." Ellipse at GA 1134: “At least 88,000 ballots in Georgia werecast by people whose registrations were illegally backdated.");Underage voters cast 66,000 ballots (Dalton at GA 1103: "66,000 votes inGeorgia were cast by people under the legal voting age." Ellipse at GA1134: "66,000 votes―each one of these is far more than we need. 66,000votes in Georgia were cast by individuals under the legal voting age."); and-123-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 124 of 16515,000 voters had moved out of the state before the election (Dalton at GA1103: "At least 15,000 ballots were cast by individuals who moved out ofthe 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 individualswho moved out of the state prior to November 3rd election. They say theymoved right back. They moved right back. Oh, they moved out; theymoved right back. Okay. They missed Georgia that much. I do. I loveGeorgia. But it's a corrupt system.”).○ Michigan○Nevada17,000 ballots were cast by dead people (Dalton at GA 1106: “An estimated17,000 ballots were cast by dead people." Ellipse at GA 1135: "More than17,000 Michigan ballots were cast by individuals whose names and dates ofbirth match people who were deceased.").Signature verification machines were flawed (Dalton at GA 1106: "In ClarkCounty, Nevada, over 130,000 ballots, this is far, just so you know, all thesenumbers, these are far more than we need, were processed on machineswhere the signature matching threshold was intentionally lowered to a levelthat 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 onsignature verification machines were purposely lowered before they wereused to count over 130,000 ballots."); andThere were tens of thousands of double votes (Dalton at GA 1106: "Morethan 42,000 people in Nevada double voted." Ellipse at GA 1134: “Therewere also more than 42,000 double votes in Nevada.").○ PennsylvaniaThe Commonwealth had more votes than voters (Dalton at GA 1105: “InPennsylvania, there were 205,000 more ballots cast than there were voters."Ellipse at GA 1127: “So, in Pennsylvania, you had 205,000 more votes thanyou had voters.");8,000 dead people voted (Dalton at GA 1106: “Pennsylvania also had anestimated 8,000 dead voters." Ellipse at GA 1127: “Over 8,000 ballots inPennsylvania were cast by people whose names and dates of birth matchindividuals who died in 2020 and prior to the election.");14,000 out-of-state voters voted (Dalton at GA 1106: "14,000 ballotsillegally cast by out of state voters." Ellipse at GA 1127: "Over 14,000- 124 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 125 of 165○ballots were cast by out-of-state voters. So these are voters that don't livein 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 ofmail-in ballots in Pennsylvania sent out reported on November 2nd, 2020,and the number reported on November 4th. They can't explain it. 400,000previously unreported mail-in ballots, magically appeared. They couldn'texplain it. And all of a sudden they just happened to find 400,000. That'sa lot of people." Ellipse at GA 1128: “The day before the election, the stateof Pennsylvania reported the number of absentee ballots that had been sentout, yet this number was suddenly and drastically increased by 400,000people. It was increased―nobody knows where it came from—by 400,000ballots one day after the election."); andTens of thousands of ballots were received back before they were mailedout (Dalton at GA 1106: “55,000 ballots received back before they wereeven sent.” Ellipse at GA 1128: “And more than 60,000 ballots inPennsylvania were reported received back-they got back-before theywere ever supposedly mailed out. In other words, you got the ballot backbefore you mailed it, which is also logically and logistically impossible.Right?").WisconsinHundreds of illegal drop boxes were used (Dalton at GA 1105: "InWisconsin over 90,000 ballots were illegally harvested. Can't do that. Notallowed to. Through so-called human drop boxes and over 500 illegalunmanned drop boxes were put out statewide." Ellipse at GA 1131: “InWisconsin, corrupt Democrat-run cities deployed more than 500 illegal,unmanned, unsecured drop boxes, which collected a minimum of 91,000unlawful votes."); and170,000 invalid absentee votes were counted (Dalton at GA 1105: “Over170,000 absentee votes were counted that are blatantly illegal underWisconsin law and should never have been included in the tally." Ellipseat GA 1131: "Over 170,000 absentee votes were counted in Wisconsinwithout a valid absentee ballot application. So they had a vote, but they hadno 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 fouryears earlier, that the election was over by 10:00 p.m. on election night, and that he wanted to go-125-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 126 of 165back eight weeks to fix the election result. Significantly, he made many of these statements at thebeginning of the speech, framing the themes for the rest of the speech. 594In addition, although countless federal, state, and local races also were on the same ballotsas the defendant on election day—including those of every sitting member of the House ofRepresentatives, even those on whom the defendant was counting to object at the congressionalproceeding the defendant focused only on his own race, the election for President, and only onallegations favoring him as a candidate in targeted states he had lost. 595 He claimed his "electionvictory" was "stolen," that he would not "concede," and that "with only three of the seven statesin question, we win the presidency of the United States. "596 He framed the claims of election fraudin terms of his own election and the margin of victory in his own race, and he spoke to his politicalsupporters using the pronoun “we”—showing that he was speaking not to all citizens, but only tohis own voters. Finally, the defendant repeatedly aimed accusations at Biden, his principal597opponent in the election contest, as would a candidate. 598b. TweetsOne of the tools the defendant used for partisan political advantage—and in furtherance ofthe charged conspiracies—was his personal Twitter account. He used his Twitter account toundermine public confidence in the electoral system, spread false claims of election fraud, attackthose speaking the truth that the defendant had lost the election, exhort supporters to travel toWashington for the certification proceeding, and marshal his supporters' anger at, and pressure on,594 GA 1118-1119 (Ellipse Rally Speech Draft Tr. 01/06/2021).595 GA 1122, 1126-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).596 GA 1115, 1122 (Ellipse Rally Speech Draft Tr. 01/06/2021).597 GA 1115, 1132-1133, 1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).598GA 1119, 1133, 1135 (Ellipse Rally Speech Draft Tr. 01/06/2021).-126-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 127 of 165Pence. 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-Tweetsfrom @realDonaldTrump, the personal Twitter account that the defendant started long beforeassuming the presidency. 599 The defendant began tweeting from @realDonaldTrump in May2009. Throughout his campaign for the presidency in 2016, the defendant used this Twitteraccount for electioneering purposes; he even announced the selection of Pence as his VicePresidential nominee over Twitter. 600 Since the end of his term in office, the defendant again hasused the account for private purposes. During his presidential term, the defendant sometimes usedthe @realDonaldTrump account to tweet about official business, including regarding COVIDrelief and vaccines, legislation in Congress, and Executive Branch business. But he also regularlyused the account to post on unambiguously private matters-for example, when he posted a pictureof 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 "namedthe #1 'Best Hotel in the World!""601The Supreme Court's decision in Lindke v. Freed, 144 S. Ct. 756, 769 (2024), confirmsthat a public official's personal social-media account can be used for both personal and publicbusiness, and consistent with Trump—that a fact-specific inquiry is required to discern intowhich category a post falls. In conducting the necessary Tweet-by-Tweet analysis, context and599GA 525-527600 GA 411); GA 534D); see https://x.com/realDonaldTrump/status/753965070003109888?lang=en (Donald J. Trump Tweet 07/15/2016).601https://x.com/realDonaldTrump/status/1091760712756744192 (Donald J. Trump Tweet02/02/2019); https://x.com/realdonaldtrump/status/1172353230505938946 (Donald J. TrumpTweet 09/12/2019).-127-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 128 of 165content matter. Simply because a Tweet relates to a matter of public concern does notautomatically transform it into an official communication. In Blassingame, 87 F.4th at 20, theD.C. Circuit rejected the defendant's contention that any and all of the President's communicationsare immune official acts whenever they involve a matter of public concern. The D.C. Circuitrecognized that the "integrity of the 2020 election" was a matter of public concern, but if thedefendant spoke about that issue “in his personal capacity as a candidate for reelection rather thanin his official capacity as President,” it was unofficial speech not shielded by immunity. Id. Thus,when a court consults “content and context” to inform the official-act inquiry, see Trump, 144 S.Ct. at 2340, a claim that all Tweets concerning election integrity were official must fail.An analysis of the @realDonaldTrump account during the time period of the chargedconspiracies demonstrates that the defendant frequently used the account to advance his unofficialobjectives as a candidate. Of the more than 1,200 Tweets, the vast majority were related to the2020 presidential election. For example, he announced over Twitter that CC1 and others weretaking over his Campaign legal team, and he repeatedly used the platform to espouse false claimsof election fraud and promote political rallies on his behalf. 602 P45 the defendant's DeputyChief of Staff and the only person other than the defendant with control over the@realDonaldTrump Twitter account, acknowledged that he sometimes consulted with Campaignpersonnel about material he was going to post on the account, that he worked as a volunteer forthe defendant's Campaign at the same time that he served as Deputy Chief of Staff, and that he did602GA 784-785 (Donald J. Trump Tweet 11/14/2020); GA 786-787 (Donald J. Trump Tweet11/14/2020); GA 944-945 (Donald J. Trump Tweet 01/06/2021); GA 881-882 (Donald J. TrumpTweet 12/22/2020); GA 884-885 (Donald J. Trump Tweet 12/23/2020); GA 905-906 (Donald J.Trump Tweet 01/01/2021); GA 938-939 (Donald J. Trump Tweet 01/05/2021).- 128-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 129 of 165not differentiate between his official and Campaign duties and when he would send Tweets on theaccount for Campaign purposes as a Campaign volunteer. 603A review of the defendant's official @POTUS45 account presents a relevant contrast. Thedefendant used this institutional account primarily to re-tweet other accounts like the@realDonaldTrump account, as well as @White House. There were 74 Tweets from the@POTUS45 account during the charged conspiracies. 604 None of them include the defendant's605election-related claims or his election challenges. The last four Tweets in the account, whichthe Government cites here to show context, were re-Tweets of Tweets from @realDonaldTrumpregarding January 6.606 These include two Tweets that the defendant issued on the afternoon ofJanuary 6 purportedly asking individuals to support law enforcement and “stay” peaceful; notably,the @POTUS45 account archive does not include the defendant's Twitter pressure campaignagainst Pence, such as the 2:24 p.m. Tweet on January 6.60′Below, the Government analyzes the “content, form, and context,” id. at 2340, of variouscategories of the defendant's Tweets. All of these categories consist of unofficial Tweets.603 GA 526-532604 GA 1899 (Spreadsheet of @POTUS45 Tweets).605 Id. (Spreadsheet of @POTUS45 Tweets).606 Id. (Spreadsheet of @POTUS45 Tweets). The four re-Tweets are: on January 5, “Antifa is aTerrorist Organization, stay out of Washington. Law enforcement is watching you very closely!@DeptofDefense @TheJusticeDept @DHSgov @DHS_Wolf @SecBernhardt @SecretService@FBI"; on January 6, “Please support our Capitol Police and Law Enforcement. They are trulyon the side of our Country. Stay Peaceful” and “I am asking for everyone at the U.S. Capitol toremain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Lawand our great men and women in Blue. Thank you!"; and on January 7, a link to a speech thedefendant gave on that date about the events of the previous day.-607 Compare id. (Spreadsheet of @POTUS45 Tweets) with GA 946-947 (Donald J. Trump Tweet01/06/2021).- 129 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 130 of 165i. Tweets, as candidate, casting doubt on election integrityAs described in Section I, the defendant attempted to discourage mail-in voting andundermine 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 werethe analogous Tweets that the defendant posted in his capacity as a candidate. The context of theseTweets confirms this conclusion. The defendant issued the Tweets in advance of election day, inthe midst of his campaign for re-election; furthermore, he made them while his own Campaignadvisors were warning him that Biden supporters were much more likely to use mail-in voting, thevery method the defendant attempted to discourage. In addition, the Tweets' content furtherreinforces their private nature; they show the defendant taking a partisan electioneering positionon an issue rather than proposing any official measures to address a problem that the defendantclaimed existed.ii. Tweets making false claims of election fraudThe superseding indictment alleges that the defendant repeated and widely disseminatedfalse claims of election fraud. See, e.g., Superseding Indictment, ECF No. 226 ¶¶ 12, 14. One ofthe ways that he did so was by Tweet, constantly, day in and day out. Examples of the kinds ofTweets that the Government intends to use at trial are set forth throughout Section I, in which thedefendant falsely claimed victory and outcome-determinative election fraud in targeted states. See,e.g., supra pp. 22-23, 32, 45, 55-56, 62-63.These kinds of Tweets all shared common internal characteristics that establish theirunofficial nature. The defendant used the language of a candidate when he spoke in terms of hispersonal electoral victory ("I win!” or “We win!”)."608 He divided his audience between personal608 See, e.g., GA 772-773 (Donald J. Trump Tweet 11/05/2020); GA 774-775 (Donald J. Trump- 130 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 131 of 165allies who supported his election challenges and enemies who did not, dismissing the latter as"609"RINOS" (shorthand for Republicans in Name Only) or “the Democrats.” And he focused onlyon fraud claims that would affect his own election and was fixated on his own margin of victory("far more votes than are necessary to win”). 610iii.Tweets and re-Tweets attacking those speaking the truth about theelection.612On multiple occasions, the defendant issued a Tweet, or re-tweeted an agent's Tweet, inorder to attack individuals who had spoken out publicly to defend the integrity of the 2020presidential election and reassure the public that there had not been outcome-determinative fraud.These instances include: on November 11, the defendant attacked Philadelphia City CommissionerP47611after he dispelled fraud claims in a television interview that the defendant saw; onNovember 29, the defendant issued a Tweet attacking P50 when he appeared on 60 Minutes; 6on December 6, the defendant re-tweeted a post by his agent, P19 attacking Arizona HouseSpeaker P18for a public announcement that the defendant had not presented Arizonalegislators with any evidence of outcome-determinative fraud and that the Arizona legislaturecould not overturn election results based on unsupported theories of fraud; 613 again on December6, the defendant re-tweeted a post by his agent, P48 labeling four Republican state legislatorsTweet 11/06/2020); GA 797-798 (Donald J. Trump Tweet 11/18/2020); GA 850-851 (Donald J.Trump Tweet 12/05/2020).609 See, e.g., GA 777-778 (Donald J. Trump Tweet 11/11/2020); GA 860-861 (Donald J. TrumpTweet 12/07/2020); GA 782-783 (Donald J. Trump Tweet 11/13/2020); GA 795-796 (Donald J.Trump Tweet 11/17/2020); GA 881-882 (Donald J. Trump Tweet 12/22/2020).610 GA 909-910 (Donald J. Trump Tweet 01/01/2021); GA 911-912 (Donald J. Trump Tweet01/01/2021).611 GA 1953 at 2:20-4:13 (Video of Interview with CNN 11/11/2020); GA 777-778 (Donald J.Trump Tweet 11/11/2020).612 GA 825-826 (Donald J. Trump Tweet 11/29/2020).613 GA 854-855 (Donald J. Trump Tweet 12/06/2020).-131 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 132 of 165"cowards" after they issued a public announcement that they could not overturn the popular voteand appoint their own electors; 614 and on December 21, the defendant attacked Wisconsin SupremeCourt Justice P49for ruling against him.615After P47(a)P47p. 38)(Superseding Indictment, ECF No. 226 ¶ 41; suprathen a Philadelphia City Commissioner, gave a television interview onNovember 11 and made clear that he had not seen evidence of fraud there, the defendant issued aTweet attacking P47 in partisan terms. The defendant called P47 a "so called Republican(RINO)" and finished the Tweet with “We win!”616 In so doing, the defendant was acting as acandidate frustrated that a member of his political party refused to perpetuate the lies the defendantwas promoting to advance his personal political interests.(b) P50(supra pp. 45)On November 29, when 60 Minutes aired an interview with P50 formerly the CISAdirector, defending the integrity of the election, the defendant tweeted an attack on the televisionand claimed that the 2020 election was "probably ourprogram andC3least secure EVER!"617 These complaints about C3 and mail-in ballots echoed otherswhich the defendant was making regularly as a candidate only in states in which he had lost theelection.6 618 He also issued the Tweet between two other Tweets in which he was speaking as acandidate. Thirty minutes before the P50 Tweet, the defendant used his @realDonaldTrumpaccount to discuss Campaign litigation-specifically, he wrote, "We have some big things614 GA 856, 858 (Donald J. Trump Tweet 12/06/2020).615GA 875-880 (Donald J. Trump Tweets 12/21/2021).616 GA 777-778 (Donald J. Trump Tweet 11/11/2020).617 GA 825-826 (Donald J. Trump Tweet 11/29/2020).618See, e.g., GA 867-872 (Donald J. Trump Tweets 12/13/2020).-132-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 133 of 165happening in our various litigations on the Election Hoax. Everybody knows it was Rigged. Theyknow Biden didn't get more votes from the Black community than Obama, & certainly didn't get80,000,000 votes. Look what happened in Detroit, Philadelphia, plus!”619 And within twentyminutes of the P50 Tweet, the defendant issued another Tweet about 60 Minutes, this time askingwhether the “Fake News” program was paying attention to a Tweet that the defendant then linkedto byP68then a private citizen—who in turn was publicizing what he characterizedas a Campaign litigation victory on the defendant's behalf by co-conspirator CC3 in litigationin Georgia.620The defendant's Tweet regarding 60 Minutes and P50 was unofficial. The Campaignlitigation-focused Tweets surrounding it demonstrate that the “us” whom the defendant claims 60Minutes never consulted was the defendant's Campaign, not his Administration.(c) P18andPennsylvanialegislators (SupersedingIndictment, ECF No. 226 ¶¶ 21, 43; supra pp. 20, 40)In the early morning hours on December 6, upon returning from a Campaign speech inValdosta, Georgia, the defendant re-tweeted a December 4 Tweet from P19 who was workingwith the Campaign and CC6 to overturn the election results 621_attacking Arizona HouseSpeaker P18 after P18 released a public statement that he had not seen evidence of electionfraud and could not take action to overturn the election results in Arizona.6 622 Just four minutes619620GA 823-824 (Donald J. Trump Tweet 11/29/2020).GA 827-828 (Donald J. Trump Tweet 11/29/2020). A week later, the court dismissed thelawsuit, stating that the plaintiffs "essentially ask the Court for perhaps the most extraordinaryrelief ever sought in any Federal Court in connection with an election. They want this Court tosubstitute its judgment for that of two-and-a-half million Georgia voters who voted for Joe Biden,and this I am unwilling to do." Pearson v. Kemp, 1:20-cv-4809, ECF No. 79 at 43 (N.D. Ga.) (Tr.of 12/7/2020 Hrg.).621 See generally, e.g., GA 1848-1850622 GA 854-855 (Donald J. Trump Tweet 12/06/2020).- 133 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 134 of 165earlier, the defendant had written "Thank you P19!"623 while re-tweeting another of P19Tweets that read, “President Trump is back on the campaign trail today!!! America is the bestcountry on earth and @realDonaldTrump is the greatest President!"624On the same day, December 6, the defendant also re-tweeted a Tweet by P48 an agentCC1 625of the defendant who was working closely withP48 Tweet attacked fourPennsylvania legislators who, like P18 had issued a public statement that they could notoverturn the valid election results. The defendant re-tweeted P48 post without comment.626Both of the defendant's re-tweets on December 6 were unofficial. At the time, both P19and P48 were, at a minimum, private agents of the defendant who were working to overturn theelection results in his favor. P19 and P48 original Tweets were in service of that objectivethey 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 theseprivate Tweets was similarly private.(d)P49p. 41)(Superseding Indictment, ECF No. 226 ¶ 46; supraOn December 21, when Wisconsin's Governor signed a certificate of final determinationconfirming that Biden had won the state based on the resolution by the Wisconsin Supreme Courtof a lawsuit in Biden's favor, the defendant took to Twitter to attack JusticeP49 who hadwritten the majority opinion that ruled against him.627 The defendant claimed—falsely—that he623 GA 852-853 (Donald J. Trump Tweet 12/06/2020).624Id. (Donald J. Trump Tweet 12/06/2020).625 GA 856, 858 (Donald J. Trump Tweet 12/06/2020). See, e.g., GA 1851-1852626627GA 856, 858 (Donald J. Trump Tweet 12/06/2020).GA 1233-1235 (Wisconsin Certificate of Ascertainment 11/30/2020 and Certificate of FinalDetermination 12/21/2020); Trump v. Biden, 394 Wis. 2d 629 (Wis. 2020); GA 875-880 (Donald- 134 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 135 of 165had endorsed P49in his election for the Wisconsin Supreme Court, and implied that theendorsement had causedP49to win. 6628The defendant then encouraged “Republicans inWisconsin" to go "to their State Legislators and overturn this ridiculous State Election. We wonin a LANDSLIDE!”629 The entire context of the defendant's Tweet about P49 -includinghis fictitious endorsement of P49 his encouragement of Wisconsin Republicans to lobbytheir legislators, and his claim at the end that "We won”-demonstrates that the Tweet as a wholewas partisan, personal, and unofficial.(e) GovernorP16GovernorP17and Secretary ofStateP33(supra pp. 18, 26-31)Throughout the post-election period, the defendant used his status and power as the headP33In theof a political party to bring political pressure to bear on fellow Republicans, including ArizonaGovernor P16 Georgia Governor P17 and Georgia Secretary of StateTweets, the defendant assailed the three elected officials because they refused to take extralegalactions to benefit him personally, suggested that they would suffer politically if they did not do ashe asked, and repeatedly suggested that they were "RINOS” and not real Republicans. Thedefendant 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 Id. (Donald J. Trump Tweets 12/21/2020); GA 187-188Although the defendant did not endorse Justice P49 as he claimed, he did endorse acongressional candidate with the surnameP49 from another midwestern state. Seehttps://x.com/realDonaldTrump/status/1292879824210595842.629GA 877, 880 (Donald J. Trump Tweet 12/21/2020).- 135 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 136 of 165iv.Tweets exhorting individuals to travel to Washington, D.C., for the SaveAmerica Rally (Superseding Indictment, ECF No. 226 ¶¶ 68, 72, 79(b);supra pp. 60, 64, 71-73)Beginning on December 19, and continuing through early January, the defendant used the@realDonaldTrump account to promote the private, campaign-style Ellipse rally at which he spokeon 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. 630 The defendant's multipleTweets on this topic 631 included his initial message that there would be a “[b]ig protest in D.C. onJanuary 6th. Be there, will be wild!”632 In turn, that Tweet linked to a document drafted by P69that had nothing to do with P69 official duties as a White House trade advisor, butrather constituted unofficial political activity by a Campaign volunteer who the Office of SpecialCounsel already had determined to have violated the Hatch Act on numerous occasions byattacking the defendant's opponent during the lead up to the 2020 presidential election. 633 For thereasons described supra pp. 118-126 that make clear that the Ellipse rally was a private event, andthe defendant's remarks there unofficial, his Tweets as a candidate promoting the event wereunofficial.630 See, e.g., GA 896 (Team Trump Retweet of Donald J. Trump Tweet 12/26/2020); GA 901(Team Trump Retweet of Donald J. Trump Tweet 12/30/2020); GA 902 (Team Trump Retweet ofDonald J. Trump Tweet 12/30/2020); GA 534631 GA 886-887 (Donald J. Trump Tweet 12/26/2020); GA 897-898 (Donald J. Trump Tweet12/27/2020); GA 899-900 (Donald J. Trump Tweet 12/30/2020); GA 903-904 (Donald J. TrumpTweet 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); GA923-924 (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 Tweet01/05/2021).632 GA 873-874 (Donald J. Trump Tweet 12/19/2020).633 Id. (Donald J. Trump Tweet 12/19/2020); GA 1853-1865 (Report of Prohibited PoliticalActivity Under the Hatch Act 11/18/2020).- 136-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 137 of 165V.Tweets regarding Pence's role on January 6 (Superseding Indictment,ECF No. 226¶¶ 69, 79(a), 82; supra pp. 61, 71-73)As the defendant set his sights on using Pence's role as President of the Senate to overturnthe election results at the January 6 certification proceeding, concurrent with his direct efforts topressure Pence, the defendant began to issue Tweets falsely claiming that Pence could use hisministerial position to benefit the defendant as a candidate. For instance, on December 23, thedefendant re-tweeted a Tweet by a Campaign surrogate named P70 who had posted afacially fake White House memorandum titled “Operation ‘PENCE' CARD,” which falselyclaimed that Pence could unilaterally disqualify legitimate electors. 634 The defendant issuedsimilar Tweets as the certification grew closer, including posting on January 5 that “[t]he VicePresident has the power to reject fraudulently chosen electors."635 And twice on the morning ofJanuary 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, wewill win the Presidency. Many States want to decertify the mistake they made in certifyingincorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (whichit must be). Mike can send it back!”636 He again focused on Pence's role in the certification at8:17 a.m. when he wrote, "States want to correct their votes, which they now know were based onirregularities and fraud, plus corrupt process never received legislative approval. All Mike Pencehas to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extremecourage!"637634GA 883 (Donald J. Trump Tweet 12/23/2020); GA 4491023 (Pence, So Help Me God p. 439-40); see also GA 1524-1527635 GA 934-395 (Donald J. Trump Tweet 01/05/2021).636637GA 940-941 (Donald J. Trump Tweet 01/06/2021).GA 942-943 (Donald J. Trump Tweet 01/06/2021).); GA 1022--137-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 138 of 165The context and content of these Tweets establish that they were unofficial. Through theTweets, the defendant was using the political pressure of his supporters and social media followersto convince Pence to take an action to benefit the defendant as a candidate and help him overturnthe results of the election. As discussed supra pp. 91-96, the defendant played no official role inthe congressional certification proceeding and was not using his Tweets about Pence's role toadvance any Executive Branch or governmental interest. Likewise, the defendant had no role inwhether state legislatures might take action regarding their own electoral slates (though his claimthat these legislatures were poised to do so was also false). And the defendant's languagethroughout the Tweets is that of a candidate seeking to win an election, including stating to hispolitical supporters that if Pence "comes through for us, we will win the Presidency" and "AllMike Pence has to do is send them back to the States, AND WE WIN."638The private and Campaign nature of the Tweets is further confirmed when viewed in thecontext of the defendant's increasing desperation as even his unlawful path to remain in powernarrowed. 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 summoningsupporters to Washington for the Ellipse rally on January 6.639 When he tweeted on January 5 thatPence had the power to reject fraudulent electors, Pence already had “told him many times” thatPence did not believe he had such power—including as recently as the day before. 640 And in theearly morning hours of January 6, when the defendant again tweeted publicly that Pence shouldexceed his authority as President of the Senate when counting electoral votes, the defendant's638Id.; GA 940-941 (Donald J. Trump Tweet 01/06/2021).639GA 873-874 (Donald J. Trump Tweet 12/19/2020).640 GA 457-460- 138 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 139 of 165personal desperation was at its zenith: he was only hours from the certification proceeding thatspelled the end.vi. The defendant's 2:24 p.m. Tweet on January 6 (SupersedingIndictment, ECF No. 226 ¶ 94; supra pp. 80-81)The defendant's 2:24 p.m. Tweet aimed at Vice President Pence was unofficial. Thedefendant personally posted the Tweet on the afternoon of January 6 at a point when he alreadyunderstood that the Capitol had been breached, writing: “Mike Pence didn't have the courage todo what should have been done to protect our Country and our Constitution, giving States a chanceto certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked topreviously certify. USA demands the truth!"641642The defendant's actions and knowledge in the hours leading up to this Tweet providehelpful context. First, the evening before, on January 5, the defendant had dictated a Tweet toP45as he listened to the angry crowd gathered outside the White House.6 That Tweet showsthat the defendant understood that his gathering supporters, who were angry and believed his falseclaims 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 byemboldened 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!"643Thereafter, the defendant continued to fixate on preventing the certification proceeding.644As described above, he tweeted about it at 1:00 a.m. on January 6 and again at 8:17 a.m. After641 GA 946-947 (Donald J. Trump Tweet 01/06/2021).642 GA 535-538643 GA 936-937 (Donald J. Trump Tweet 01/05/2021).644 GA 940-941 (Donald J. Trump Tweet 01/06/2021); GA 942-943 (Donald J. Trump Tweet01/06/2021).- 139 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 140 of 165the 8:17 a.m. Tweet, the defendant worked on his remarks for the Ellipse and planned to includelanguage explicitly putting pressure on Pence regarding the certification until advisors prevailedon him not to. 645 At 11:15 a.m., the defendant called Pence and tried one last-ditch effort toconvince him to fraudulently reject or return Biden's legitimate electors.6 Pence was resolute646and unmoved, and the defendant was furious. 647 Immediately after the call, the defendant directedthat the original language targeting Pence be reinserted in his prepared remarks for the Ellipserally 648The defendant then went to the Ellipse and delivered a falsehood-laden speech to his angrysupporters. He purposely singled out Pence by claiming that Pence had the power to overturn theelection results and—though the defendant stood at the podium with full knowledge that Pence649 Thewould not do so-gave the crowd false hope that Pence might exercise that power."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.6650Instead of marching with his supporters as he said he would, the defendant returned to theWhite House. 651 He went to the dining room next to the Oval Office and began to watch televisioncoverage of the events at the Capitol. 6652Although the Government does not intend to use at trial645GA 1680646GA 471-472); GA 1668-166647GA 471-472); GA 1668-1669); GA 225-230648GA 1681); GA 405-406); GA 638-642GA 1670-1679 (649 See GA 1114-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).650See GA 1140-1141 (Ellipse Rally Speech Draft Tr. 01/06/2021).651 GA 1866652 GA 541-544); GA 168); GA 232, GA 236- 140-D;

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 141 of 165evidence of the defendant's discussions with White House staff during this time period, it providesnecessary context: when news broke that rioters had breached the Capitol, the defendant'sadvisors including P59 Deputy White House CounselP71andP9urged the defendant to issue a calming message and make efforts to stop the riot. 653 The defendantrefused, responding that the people at the Capitol were angry because the election had beenstolen. 654655Eventually, all of the defendant's staffers left him alone in the dining room. FoxNews continued to report on the growing crisis at the Capitol.656It was at that point—alone, watching news in real time, and with knowledge that riotershad breached the Capitol building—that the defendant issued the 2:24 p.m. Tweet attacking Pencefor refusing the defendant's entreaties to join the conspiracy and help overturn the results of theelection. 657 One minute later, the Secret Service was forced to evacuate Pence to a secure locationin the Capitol.65658This was roughly ninety minutes after Pence had announced publicly that hewould not act unlawfully to overturn the election; 659 the certification proceeding was underway;6and the first breach of the Capitol building had occurred minutes before, at 2:12 p.m. 661 At that660653GA 479) (recalling telling) (advisors told the defendant that “[t]here's a riot, and thereare people inside the Capitol Building"); GA 122the defendant “that someone's gotten into the Capitol”); GA 232-234); GA 168-169654GA 547-548 (); GA 232-234); GA123655GA 546656GA 1931 (Video of Fox News Coverage 01/06/2021).657GA 546); GA 946-947 (Donald J. Trump Tweet 01/06/2021).658 GA 473-474); GA 1944 (Video of Pence Evacuation 01/06/2021).659GA 1684-1686 (Pence Dear Colleague Letter 01/06/2021); GA 1867-1868660661GA 1937 (Video of House Floor 01/06/2021); GA 1954 (Video of Senate Floor 01/06/2021).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).- 141 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 142 of 165point, the defendant's only hope to disrupt the certification proceeding and retain power wasthrough his angry supporters. The defendant further revealed the private nature of his desperateconduct as a candidate, rather than a President, in an exchange (that the Government does not planto use at trial) he had with aide P15 shortly after the 2:24 p.m. Tweet. Upon receiving a phonecall alerting him that Pence had been taken to a secure location, P15 rushed to the dining room toinform the defendant in hopes that the defendant would take action to ensure Pence's safety.Instead, after P15 delivered the news, the defendant looked at him and said only, "So what?""662664The private, unofficial nature of the 2:24 p.m. Tweet contrasts with two other Tweets thedefendant sent during the following hour and a video message he sent two hours later, and whichthe Government does not intend to introduce at trial. Only after advisors had again urged thedefendant to calm matters at the Capitol,663 the defendant at 2:38 p.m. posted, “Please support ourCapitol 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 amasking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are theParty of Law & Order-respect the Law and our great men and women in Blue. Thank you!”665And after those Tweets failed to disperse the rioters, and after still more demands from his staff662GA 310-317663 GA 124-125("both P71and I went down and told himyou got to tell people 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 theP71 and P59 "arguedCapitol, right now.”); GA 237… … … to the president, you have to tell people to get out, right now, as well. P71 for the first timeI'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 gotto tell these people to get out of the Capitol, immediately."); GA 480 (("I think we were probably, at that point, encouraging the President that he needed to come outand say something, he needed to condemn this and say something about it.").664 GA 948-949 (Donald J. Trump Tweet 01/06/2021).665 GA 950-951 (Donald J. Trump Tweet 01/06/2021).- 142 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 143 of 165"666that he do more to stop the riot, the defendant at 4:17 p.m. tweeted a video message in which hefinally 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 eventsthat happen when a sacred landslide election victory is so unceremoniously & viciously strippedaway from great patriots who have been badly & unfairly treated for so long. Go home with love& in peace. Remember this day forever!"667The 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, inthe 4:17 p.m. message, the defendant, while still focused on his election loss, asked rioters toevacuate the breached Capitol, and foreshadowed the sentiment in his 6:01 p.m. Tweet when hesaid to "[g]o home with love & in peace.'.”668 By contrast, in the 2:24 p.m. Tweet, the defendantfocused 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 thattopic constituted a "matter[] of public concern,” Blassingame, 87 F.4th at 14, the defendant's 2:24666 GA 1952 (Video of Rose Garden Speech 01/06/2021); GA 1868 (Rose Garden Speech DraftTr. 01/06/2021).667GA 952-953 (Donald J. Trump Tweet 01/06/2021).668 There are, however, strong arguments that all of these Tweets were unofficial. For example, insome 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, ashis advisors had urged him to do. He also used the messages to recognize the rioters at the Capitolas his own supporters, calling them “WE” and telling them that they were “very special” and thathe loved them. And even as early as the afternoon of January 6, when violence still raged at theCapitol, the defendant justified and revered the rioters' lawless actions on his behalf when hetweeted that "[t]hese are the things and events that happen” and to “[r]emember this day forever!"- 143 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 144 of 165p.m. Tweet reflected speech made “in an unofficial, private capacity as office-seeker, not anofficial capacity as office-holder.” Id. at 5.Given all of this context, the 2:24 p.m. Tweet was unofficial. When the defendant sent it,he knew that what he had asked Pence to do, and that he claimed would “protect our Country andour Constitution,” was contrary to the ECA; that no state was poised to "certify a corrected set offacts;” that a large crowd of his political supporters had gathered in Washington at his urging; thatthese supporters were angry and believed his false claims that the election had been stolen; that hehad called them to action through his Ellipse speech, in which he told them that Pence might stilldo as he wished and directed these supporters to march to the Capitol; and that his supporters haddone 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 repeatedlyuntil his advisors gave up and left him alone in the dining room. It was then that the defendantissued the 2:24 p.m. Tweet, as a candidate communicating to his angry supporters that Pence hadlet him and them-down. The content of the 2:24 p.m. Tweet was not a message sent to addressa matter of public concern and ease unrest; it was the message of an angry candidate upon therealization that he would lose power. And unlike the defendant's later Tweets that day, thedefendant was not asking the individuals at the Capitol to “remain peaceful," leave the building,or "go home."c. Other public statementsBy virtue of his status as a candidate for re-election, the defendant occasionally madepublic statements—whether in response to questions or otherwise. Examples of such statementsset forth in Section I are the defendant's statements in advance of the election to seed public doubtin the outcome (supra p. 6), the defendant's televised election night remarks to his supporters- 144 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 145 of 165(supra pp. 7-8), and the defendant's telephonic endorsement of CC1 false allegations at theGettysburg "hotel hearing" (supra p. 39).669Each 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 NationalConvention or in the midst of statements about political polling. His election night remarkswere made to a room of his supporters and were about his status as a candidate in the pendingelection.6 670 And his contribution to the Gettysburg "hotel hearing” was to call in by dialing oneof his private attorneys, who broadcast his personal message by holding her phone to themicrophone so that he could make statements supporting those of his private attorneys.6 In sum,the defendant made all of these comments as a candidate for office, and was speaking about hisown election. They were unofficial.6712. In the alternative, any official portions of the defendant's public speeches,Tweets, or statements should be excisedAlternatively, if segregable portions of the speeches, Tweets, or statements are found to bepresumptively immune official conduct, the first alternative would be to excise them from thespeeches, 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 todelete objectionable portions” of evidence “where appropriate,” United States v. Lemonakis, 485F.2d 941, 949 (D.C. Cir. 1973), and the Supreme Court has approved of that practice in the contextof statements that contain protected legislative acts along with unprotected acts under theConstitution's Speech or Debate Clause, see United States v. Helstoski, 442 U.S. 477, 488 n.7669GA 1951 at 22:08-22:18 (Video of RNC Speech 08/24/2020); GA 1927 at 2:50-3:28 (Videoof 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 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 146 of 165(1979) (approving practice of “excising references to legislative acts, so that the remainder of theevidence would be admissible"); see also Gov't of Virgin Islands v. Lee, 775 F.2d 514, 523 (3dCir. 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 conversationdeleted"). This is a familiar practice across a range of legal contexts. See, e.g., Samia v. UnitedStates, 599 U.S. 635, 653 (2023) (upholding use of a redacted statement to avoid constitutionalconcerns); Davis v. Washington, 547 U.S. 813, 829 (2006) (“Through in limine procedure, [trialcourts] should redact or exclude the portions of any statement that have become testimonial, asthey do, for example, with unduly prejudicial portions of otherwise admissible evidence.”); In reRail 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, whileadmitting the significant remaining unofficial content, would resolve any constitutional questionsunder Trump.To the extent that excision does not resolve any arguable immunity claim, then even if thedefendant's conduct in these speeches, Tweets, and statements can be nudged across the line fromCampaign conduct to official action, it is so heavily intertwined with Campaign-related conductthat prosecuting it does not pose a danger to any Executive Branch function or authority. Becausethe defendant bears the burden in the first instance of proving that conduct was official so as toqualify for presumptive immunity, the Government in its reply brief will address any specificarguments the defense makes regarding the speeches, Tweets, and statements discussed here.- 146-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 147 of 165E. The Defendant's Interactions, in his Capacity as a Candidate, with White HouseStaff1. The interactions at issue were unofficialdefendant. These staffers includedWhite House staffers witnessed or engaged in private, unofficial communications with theP9the White House Senior Advisor who acted as aconduit between the defendant and the Campaign; P45 and P7 who both volunteered forthe Campaign while working in the White House; P15 a staffer who witnessed a pertinent privateremark by the defendant; and P42 the defendant's executive assistant.Federal law confirms that the defendant's Campaign-related conversations with theseWhite House staffers were unofficial. The Hatch Act permits certain White House staffers toengage in political activity while on duty, see 5 U.S.C. § 7324(a)(1), but prohibits them from usingtheir “official authority or influence for the purpose of interfering with or affecting the result of anelection," 5 U.S.C. § 7323(a)(1). These staffers can thus wear two hats. They can work in theirprivate 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 theymay not wear both hats at the same time. Accordingly, when the defendant's White House staffparticipated in political activity on his behalf as a candidate, they were not exercising their officialauthority 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 notengaging in official presidential conduct. 6672Precedent from the D.C. Circuit further confirms that the defendant was not engaging inofficial presidential conduct when he spoke with White House staffers about Campaign matters.P9672 Indeed, at least two of the witnesses-and P45 consulted with the WhiteHouse Counsel's Office about their ability to engage with the Campaign, demonstrating that theyunderstood their roles with respect to the Campaign were distinct from their White House roles.- 147-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 148 of 165In In re Lindsey, 158 F.3d 1263, 1278-79 (D.C. Cir. 1998), the D.C. Circuit recognized that seniorWhite House personnel may serve as the President's agents in a personal capacity to act as aconduit for unofficial information from a private party. The D.C. Circuit held that while thePresident's communications with his personal attorney are “fully protected by the absoluteattorney-client privilege," id. at 1283, a White House lawyer “cannot rely on a governmentattorney-client privilege to shield evidence from the grand jury,” id. at 1281. But a White Houselawyer may invoke the President's personal attorney-client privilege when he acts as "anintermediary" to convey unofficial information from the President to his personal attorney. Id. Asthe 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 natureof the underlying communication. Id. at 1281-82. Similarly in this case, the transmission of aprivate Campaign communication by or to the defendant through a White House employee servingas an intermediary did not render that communication official and thereby shield it from use in acriminal trial against the defendant.In sum, just as the President can at times act “in an unofficial capacity”—including as “acandidate for office or party leader,” Trump, 144 S. Ct. at 2340—so too can the Executive Branchstaff around him. Simply because a staffer holds a title in the Executive Branch and interacts withthe President does not mean that the interaction is necessarily official. See Blassingame, 87 F.4that 14 (noting "the settled understanding that immunity is based on 'the nature of the functionperformed, 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 inSection I, those conversations were unofficial.- 148 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 149 of 165P9a.From August 2020 through the end of the defendant's administration,P9was anAssistant to the President without a defined portfolio. 673 More importantly for the Court'spurposes, during the charged conspiracies,P9served as a conduit of information fromthe Campaign to the defendant and discussed Campaign matters with the defendant. These actionswere, consistent with In re Lindsey, unofficial.As part of its immunity analysis, the Court should consider multiple different interactionsinvolvingP9none of which bear on his official White House responsibilities: (1) aNovember 13 phone call in which the defendant told P9he was going to put CC1 incharge of the Campaign's legal efforts under an agreement where the defendant only would pay ifCC1 were successful, and P9guaranteed the defendant he never would have to pay(supra pp. 11-12); (2) a November conversation with the defendant regarding CC3 (suprap. 44); (3) an undated conversation in which he told the defendant that CC1 fraud allegationscould never be proved in court and the defendant responded, “the details don't matter" (suprapp. 12-13); (4) a November or December 2020 conversation in which P9explained tothe defendant why one of his fraud claims was “bullshit” (supra p. 13); (5) a late Decemberexchange with the defendant regarding the verification CC2Kemp (supra p. 27); (6) a January 4, 2021, conversationwanted him to sign in Trump v.P9had with CC2 (ECFNo. 22677; supra p. 66), after which Herschman reported to the defendant that CC2 hadadmitted his plan was "not going to work” (supra p. 66); and (7) a variety of occasions on whichP9reported to the defendant that his Campaign and its hired experts had found variouselection fraud claims to be unsupported (supra p. 12).673 GA 671- 149-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 150 of 165Section I also includes actions byP9that do not reflect any presidential conductbecause the defendant was not involved.P9These include December 3 text messages thatexchanged with P21 regarding CC1 false fraud claims at a Georgialegislative hearing (ECF No. 226 ¶ 26(a); supra pp. 21-22), and December 13 text messagesP9exchanged with Campaign personnel regarding the fraudulent elector scheme (ECFNo. 22660; supra pp. 52-53).The content of each ofP9communications with the defendant enumeratedabove involve the defendant's Campaign, including the status and viability of the defendant's fraudclaims, the quality of the advice the defendant was receiving from his Campaign advisors, hislitigation and electoral prospects, and the legality and practicality of CC2proposal that Pencereject Biden's legitimate electors at the certification proceeding. None of the communicationspertain to general election policy issues or considerations, Justice Department criminalinvestigations, Executive Branch functions, or any other presidential responsibilities.P9As context for all these communications, the Court should considerrelationship with the defendant, his role in the White House, and his interactions with therelationship with the defendant and his family pre-existed his positionCampaign.P9in the White House, andP9P9represented the defendant in his impeachment trial.did not have a defined portfolio, and worked on matters related to the JusticeDepartment, including the Portland riots and Section 230 of the Communications Decency Act, aswell as Middle East issues and pardons. 674 The Government does not intend to elicit specifichad with the defendant regarding his officialinformation about communicationsP9duties.); GA 700674 GA 671, 697- 150 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 151 of 165P9was not acting in an official capacity during the conversations enumeratedabove, but as a conduit for information from the Campaign.P9contact with theCampaign began in October 2020, when he asked Campaign staffers P3 and P72for a tutorial on campaign basics and operations. 675 He continued to talk to P3 and P72leading up to the election to understand different electoral college win/loss scenarios. 676 Shortlythereafter, in early November 2020 P9asked P77 who handled ethics issues inthe White House Counsel's Office, for permission to engage with the Campaign, and thereafterP9P9CC1P56CC3P10began frequent contact with Campaign staff. 677 Several days after the election,went to the Campaign headquarters in Virginia for the first time, while P2P48 and P12 were there too. 678 As discussed supraP9p. 9, on November 7—likely the same day he went to the Campaign headquarters-joined Campaign staffers, including P2the defendant the fact that networks that morning had projected Biden as the winner of theP3 and P4 at the White House to discuss withelection. 679 The Campaign staff and P9slim. 680told the defendant his chance of victory wasP9 also participated in various Oval Office meetings with the defendant, Pence,White House staff, Campaign officials, andP39 681P9and others, various fraud allegationsThe defendant heard and mentioned, tothroughout the post-election period, sometimes from his outside attorneys like CC1 CC3ог675 GA 671-672676 GA 672-673677GA 673, 686678 GA 673679GA 194-195680GA 196-197681See, e.g., GA 683-684- 151 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 152 of 165Consistent with this,P9asked P3 and P72if certain fraud allegations wereaccurate, so that he could challenge information provided to the defendant by people like CC1CC3 and P12 682P9also began interacting on a near-daily basis with P22 aCampaign staffer whoP73toldP9 he could trust. 683 The Campaign, in turn,hired two outside firms-C1 and C2to investigate fraud allegations. 684 P9told the defendant that people external to the Campaign were hired to look into fraud allegations. 685Overall, P9 served as a conduit of day-to-day information between P22 andthe defendant during the post-election period. P22 testified that around the time that CC1was named to lead legal efforts, "I was introduced topredominately reporting toP9P9 686 He elaborated that P9and I started“started to callme more and more. It would be, you know, once every couple of days that then it was kind ofevery day for a period of time that I was talking toon a daily basis,P9For example, after watchingP9687 With this information,attempted to debunk the false fraud allegations in the White House.P74Georgia, P9reached out to P22688testify in a December 10, 2020, hearing inThrough this channel, P9learned aboutC1 andC2uniform findings that no substantial fraud allegations were supported-essentially in real time.689P9also participated in calls with C1 and had the number682 GA 673683 GA 704684GA 715685 GA 716686GA 58687 GA 59688 GA 719689GA 715, 719); GA 710); GA 715-152-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 153 of 165of one of its managing directors,P75 in his cell phone; some of those calls occurred atdirectly passed the information to the defendant. 691the White House. 690 P9P9had other contact regarding initiatives by the Campaign or its outsideP9attorneys. For example,was on a call with the defendant and CC2 on December9 regarding the defendant's motion, in his capacity as a candidate, to intervene in Texas v.Pennsylvania. 692 Separately, P9spoke to the defendant about the lawsuit, and explainedhow the legal system worked and that the Campaign—not the Justice Department or FBI—wasresponsible for filing election challenge lawsuits. 693Throughout these conversations, even ifP9could be understood to have beenP9acting in an official capacity—which he was not—rather than a Campaign one, the defendant washimself acting in his private capacity as a candidate. The defendant was asking forview on various strategic decisions he was making regarding his Campaign and his privateattorneys, and he was getting reports from P9potential election challenges important to his candidacy and private Campaign. All of this contextestablishes both that P9on information related to actual andwore two hats one official, one private and that the defendantinteracted with P9interactions between the defendant andin these conversations as a candidate rather than as President. TheP9that the Government intends to introduce attrial were thus all private.690GA 719, 721691GA 717-718692 GA 713693GA 687- 153 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 154 of 165b.P45P45 served as Assistant to the President and White House Deputy Chief of Staff. 694 Healso volunteered his time for Campaign work, including traveling to political rallies with thedefendant and posting pictures and videos. 695 The Government will elicit from■ P45696at trialHe also willthat he was the only person other than the defendant with the ability to post to the defendant'sTwitter account, that he sent tweets only at the defendant's express direction, and that P45 didnot send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021.6generally describe the defendant's Twitter knowledge and habits, including that the defendant was"very active on his Twitter account," "paid attention to how his tweets played with his followers,""was very engaged in watching the news," and "knew how to read the replies and see all the repliesof what people were saying and doing which . . . led to where he would retweet things," and thatany Tweet sent "between 5 or 6 a.m. until 9 or 10 a.m.” and after “9 or 10 p.m." generally was thedefendant personally sending out the Tweet, as opposed to having P45 do it. None of thisproposed testimony on P45 's part constitutes evidence of an official act. General informationabout access to the defendant's Twitter account, as well as P45 's testimony that P45 didor did not issue a particular Tweet, is unrelated to any particular official act by the defendant.P7c.P7was an Assistant to the President and a volunteer for the Campaign. 697 She willtestify about two specific sets of conversations: (1) a handful of conversations in which thedefendant, in advance of the election, said that he would simply declare victory (supra p. 5); and694GA 526695GA 528-529696 GA 527697 GA 241-244); GA 545- 154-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 155 of 165(2) an unprompted statement in which the defendant remarked, in a private moment, that CC3claims were "crazy" (supra p. 44).Regarding the pre-election conversations, P7 has testified that COVID's expected effecton the election, and in particular the anticipated phenomenon that the defendant would take anearly lead in some states based on the election day vote that would dissipate as mail-in ballots werecounted, was discussed among Campaign personnel and dual-hat White House staffers whosimultaneously volunteered for the Campaign. 698 In that context, the defendant told P7 andothers words to the effect of, "We'll just declare victory.”"699 Regarding the defendant's statementabout CC3P7 will testify about a November 20 phone call in which the defendant mockedand laughed at CC3 and called her allegations—that he adopted and amplified—“crazy.""700not asP7In all of these interactions, the defendant was interacting as a candidate with P7President. With respect to his pre-election comments about declaring victory, the context of theconversations indicates that the defendant was responding in real time to information thatCampaign staff provided him on private matters. Similarly, the November 20 conversation amongthe defendant, P7 and P45 regarding CC3 was also a Campaign conversation.and P45 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 oneof his private attorneys had been a source of public embarrassment. The defendant then dialed hisprivate attorney, CC3 and made the comment about her claims with her on the muted phoneline. The defendant was not seeking advice from White House staffers; he was making fun of hisprivate attorney in the presence of Campaign volunteers.698GA 246-249699 GA 250-253700 GA 258- 155 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 156 of 165c.P15P15 was an Assistant to the President and Director of Oval Office Operations. 701 At trial,the Government will elicit from P15 that he witnessed an unprompted comment that the defendantmade to his family members in which the defendant suggested that he would fight to remain inpower regardless of whether he had won the election. Specifically, following the 2020 electionwhile aboard Marine One, the defendant told his wife, daughterP14P13and son-in-law"It doesn't matter if you won or lost the election. You still have to fight like hell.”See supra p. 14-15.702 P15 happened to overhear this comment, but was not participating in theconversation. 703This statement is plainly private. It was exclusively about the election and the defendant'sdetermination, as a candidate, to remain in power whether he won or lost. The defendant madethe 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 P15 aWhite House staffer, does not convert it to an official communication.d.P42To a limited extent, the allegations in the superseding indictment and the Government'sevidence involveP42the defendant's executive assistant in the White House. Section Idescribes multiple instances in which P42 received emails intended for the defendant or sentemails on the defendant's behalf. These instances include: P42 sending to a group of privateattorneys, including CC3 an email with the subject “From POTUS” directing the privatein private lawsuits (see supraattorneys to include material critical ofC3701 GA 307702 GA 308703 GA 309); GA 304-305- 156-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 157 of 165pp. 42);P42receiving from CC1an email for the defendant providing a copy of themessage CC1 had drafted to exert pressure on Michigan Senate Majority Leader P37 (seesupra p. 34); P42 receiving from P39the RNC's "Elector Recap” email to put in frontof the defendant (see supra p. 57); and P42 receiving an email from CC2 on December 23asking to update the defendant on "overall strategic thinking" on the defendant's status as acandidate (see supra p. 61).None of these actions by P42 in which she was merely facilitating communicationsbetween the defendant and his private attorneys or private political allies, constitute thedefendant's official conduct. P42 regularly facilitated the defendant's purely private matters,including communications with his children about his Thanksgiving travel. 704 The defendant'sreliance on P42 to pass messages to and from personal advisors, friends, and family does notrender 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 anypresumption of immunityEven if an "official" gloss were applied to the defendant's conversations with White Housestaff pertaining solely to the President's chances as a candidate to successfully challenge theelection results, the use of such evidence would not intrude on Executive Branch functions orauthority. “The Office of the Presidency as an institution is agnostic about who will occupy itnext." Blassingame, 87 F.4th at 4. Whatever blurring of the lines might exist between candidateconduct and official conduct in conversations that the President may conduct with his immediate(11/17/2020, "Hi! Your704 GA 1904 at row 1151dad is going to stay in DC for thanksgiving - just wanted to let you know!” from P42 to), row 1765, 1153 (11/16/2020, “Has DJT solidified his Thanksgiving plans” from P73to P42 she responded, "As of earlier today, FLOTUS wants to stay up here and POTUSis on board, as of now”).-157 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 158 of 165staff, introducing evidence of conversations with dual-hat White House staff members—those whofunction in both a Campaign-related capacity and an official advisory capacity—when they arespeaking to the President in his capacity as a candidate or in their Campaign-related capacity doesnot impede decision-making on matters entrusted to the Executive Branch. The Supreme Courtrequired that its rebuttal analysis focus on Executive Branch authority and functions—not merelyon anything that the President might say or do while at the White House. Here, the ExecutiveBranch has no authority or function in the certification of the next President. Accordingly, the useof evidence of White House staffers' Campaign-capacity discussions with the President about howto challenge state election results-challenges brought in his capacity as a candidate―does notrisk impairing the constitutional role of the Executive Branch.F. Other Evidence of the Defendant's Knowledge and IntentThe Government intends to introduce at trial additional evidence to prove the defendant'sknowledge and intent. These include (1) public statements by federal officials that the defendantdid not direct be made (specifically, public statements by Attorney General P52 and CISADirector P50 about the lack of election fraud and foreign interference); (2) evidence that thedefendant was reviewing Twitter and watching television throughout the afternoon of January 6;and (3) the defendant's post-Administration statements. None of this evidence will involvetestimony from the defendant's Executive Branch staff about his official actions.1. The evidence at issue was unofficiala. Statements by federal officialsi.P52 (supra p. 46)In a public statement issued on December 1, 2020, Attorney General P52 said that theDepartment of Justice had not seen evidence of fraud sufficient to change the election results, and- 158 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 159 of 165that claims that voting machines had skewed election results were unsubstantiated. 705 P52 decidedto make his statement without informing the defendant in advance. 706 He prepared the statementbecause he had been watching the defendant repeat claims of election fraud publicly despite directknowledge, from P52 and others, that they were false, and P52 was growing more and morefrustrated by the defendant's actions. 707 On November 29, P52 saw the defendant appear on theMaria Bartiromo Show and claim, among other false things, that the Justice Department was"missing in action” and had ignored evidence of fraud. 708 P52 decided it was time to speakpublicly in contravention of the defendant's false claims, set up a lunch with a reporter for theAssociated Press, and made his statement—all without informing or seeking permission from thedefendant. The same day, on behalf of the Campaign, CC1 and P12 issued a statementattacking P52 for his comments. 709 In the days that followed, P1criticized P52 statement during his podcast, asking rhetorically "is P52 reading the samethings we're reading?" and prompting guest CC6 to comment that "the DOJ has not beenfollowing up on these leads as far as we know right now. That statement seemed to be verypremature. . . . [T]here's no way one can look at this election in these states and say that it wasdone properly.”710acknowledged andP52 statement is not an official act by the defendant. Trump treats only the defendant'sown acts as potentially immune, see, e.g., 144 S. Ct. at 2338, consistent with the “justifyingpurposes of the immunity”—“to ensure that the President can undertake his constitutionally705 GA 1242-1243 (Email from Comms Alert 12/01/2020).706 GA 12-13707 GA 8-10708GA 10709 GA 1244 (Trump Campaign Press Release 12/01/2020).710 GA 1978 at 11:56–12:04, 32:06-33:16- 159-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 160 of 165designated functions effectively, free from undue pressures or distortions,” id. at 2332 (internalquotation marks omitted). The immunity that the Supreme Court recognized thus does not implythat acts by other government officials can qualify as presidential acts. More to the point, P52statement does not reveal any official action by the defendant because P52 did not give his publicstatement at the defendant's direction or even with his knowledge. To the contrary, if the defendanthad been aware of what P52 intended to do he undoubtedly would have instructed P52 not tomake the statement; when the defendant learned of P52 statement, he was so angry that P52tendered his resignation and, momentarily, the defendant accepted—untilP59P9and711prevailed upon the defendant to calm down and convinced P52 to delay his departure.The Government does not intend to introduce evidence that implies that P52 or his deputies refutedthe defendant's fraud claims to him directly; instead, the Government intends to introduce P52statement and CC1recognition and repetitionof P52 statement.Campaign response to it, as well as P1ii.P50(supra pp. 42-43)On November 17, CISA Director P50 tweeted a link to an open letter by 59 electionsecurity experts and touted it in an effort to promote public confidence in the election'sinfrastructure. 712 This was similar to what P50 had done five days earlier on November 12,when he had publicized the joint statement CISA issued with the National Association ofSecretaries of State, the National Association of State Election Directors, and other organizationsdeclaring the 2020 election to be "the most secure in American history" and that there was "noevidence that any voting system deleted or lost votes, changed votes, or was in any way711 GA 107-113712 GA 790 (Tweet 11/17/2020).); GA 115-119- 160 -

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 161 of 165compromised."713On November 17, P50 promoted the expert report on his own initiative and,as he later learned, contrary to the defendant's wishes; the defendant promptly fired P50 thesame day, by Tweet. 714 The Government does not intend to introduce any evidence about thedefendant's removal of P50 Rather, as with P52 public statement, P50 public Tweetswere 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 (SupersedingIndictment, ECF No. 226 ¶ 92; supra p. 79)Forensic evidence from the defendant's iPhone and observations by witnesses otherwisetestifying about unofficial acts will establish that upon his return from the Ellipse, throughout theafternoon on January 6, the defendant sat in the dining room by the Oval Office, where he used hisphone to review Twitter and watched the television, which was turned on and displaying newscoverage of the riot at the Capitol. 715As explained in the Government's expert notice, ECF No. 183, an FBI Computer AnalysisResponse Team forensic examiner can testify as to the news and social media applicationsdownloaded on the defendant's phone, 716 and can describe the activity occurring on the phonethroughout the afternoon of January 6.717 The phone's activity logs show that the defendant wasusing his phone, and in particular, using the Twitter application, consistently throughout the dayafter he returned from the Ellipse speech. 718713 GA 779 (Tweet 11/12/2020); GA 1236-1237 (Election Security Joint Statement 11/12/2020).GA 791-794 (Donald J. Trump Tweet 11/17/2020).714715GA 1869-1871716 GA 1900717 GA 1872-1885718 GA 1902Phone.);- 161-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 162 of 165P45In addition,P9 719 P15 720 andeach of whom are, as describedsupra pp. 147-154, 156, otherwise expected to testify about the defendant's unofficial acts—willoffer the objective observation that during the afternoon of January 6, the television in thedefendant's dining room, where he spent the day, was on and tuned into news programs that werecovering in real time the ongoing events at the Capitol. In turn, the Government will introduce theauthenticated coverage showing what Fox News was playing in real time while the defendant satin the room with the television on. This evidence is particularly relevant to the defendant'sknowledge 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 showswhat 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 officialdeliberations, reactions to social media or television, or official actions taken in response. Thedefendant'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, theGovernment will introduce some of the defendant's numerous statements that post-date his timeas President in which he has blamed Pence and approved of the actions of his supporters whobreached the Capitol and obstructed the certification proceeding, 722 thus providing evidence of hisintent on January 6.719 GA 232-236720 GA 318721 GA 541-543722 See, e.g., GA 1970 at 17:37 (Video of Trump Interview 07/10/2021); GA 1926 at 1:15:30-162-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 163 of 165The defendant's endorsement of the violent actions of his supporters on January 6, and hissentiment that they were justified in threatening Pence—all made while the defendant was a privatecitizen after the end of his term in office—are probative of his intent during the chargedconspiracies. The Government intends to offer them as evidence of the defendant's intent onJanuary 6, not as evidence of his official acts.2. Even if this evidence were deemed official, the Government could rebut anypresumption of immunityThe use of the evidence regarding former Attorney General P52 and CISA Director P50would not intrude on Executive Branch authority or functions because the federal officials'statements reflected those officials' positions, knowledge, and expertise not presidential acts ordirection. 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 andassigns manifold specific duties to subordinate officers who in turn execute the law. The Presidentis responsible to take care that the laws be faithfully executed, see U.S. Const. Art. 2, § 3, but thatdoes not mean that every executive official is at all times performing presidential acts. Allowingthe Government to introduce evidence of these independent actions and public statements ofsubordinate officials in the Executive Branch, not taken at the direction of the President, does notintrude on the authority or functions of the Executive Branch. Nothing in Trump dictates such an(Video of Conroe Rally 01/29/2022); GA 1971 at 15:51, 16:42 (Video of Trump Interview02/01/2022); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA1966 at 09:30 (Video of Trump Interview 09/01/2022); GA 1973 at 43:07 (Video of Waco Rally03/25/2023); GA 1694 (Transcript of CNN Town Hall 05/10/2023); GA 1964 (Video of TrumpCampaign Statement 2024); GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1965at 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 Post03/11/2024); Isaac Arnsdorf and Maeve Reston, Trump claims violence he inspired on Jan. 6 wasPence'sPOST, (Mar. 13, 2023,https://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/.fault, WASH.8:09 p.m.),-163-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 164 of 165outcome that would effectively bar any Executive Branch employee from providing evidenceagainst a President who committed crimes in his private capacity. Put concretely, allowing theseindependent acts of Executive Branch officials to be used in the prosecution would not chill anyPresidential 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 Twitteror his watching public events on television. Assuming for the moment that the Presidentsometimes acts in an official capacity when watching television or reviewing Twitter, no statuteor constitutional provision addresses the matter, and using evidence of his activity that virtuallyall citizens engage in—i.e., checking their social-media feeds and watching television—does notintrude on any authority or functions of the Executive Branch.IV.ConclusionBased on a "factbound analysis," for the reasons explained above, the Court shoulddetermine that the conduct described in the factual proffer of Section I of this motion is not subjectto presidential immunity. As part of this determination, the Court should specify fourdeterminations, and do so in a single order: (1) that the Government has rebutted the presumptionof immunity attached to the defendant's official communications with the Vice President (seesupra pp. 49, 63-67, 77-74; ECF No. 226 ¶¶ 11(c), 67, 70-78, 80, 82, and 84); and (2) that theremaining conduct described in Section I (that is, conduct other than the official communicationswith the Vice President) was not official, and, in the alternative, that the Government has rebuttedany 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 tobe unofficial, to buttress the Court's record, ensure thorough and efficient appellate review, andminimize the risk of successive rounds of interlocutory appeal.- 164-

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 165 of 165Furthermore, based on the determination that all the conduct described in Section I is notimmune from prosecution, and because Section I encompasses all the allegations in thesuperseding indictment, the Court should further specify: (3) that the defendant is subject to trialon the superseding indictment; and (4) that the Government is not prohibited at trial from usingevidence of the conduct described in Section I, subject at a later date to non-immunity basedobjections and this Court's admissibility rulings under the Federal Rules of Evidence.Respectfully submitted,JACK SMITHSpecial Counsel/s/ Molly GastonMolly GastonThomas P. WindomSenior Assistant Special Counsels950 Pennsylvania Avenue NWRoom B-206Washington, D.C. 20530- 165-