A pause before I continue on with Special Counsel Jack Smith’s argument that his superseding indictment of Donald Trump convincingly navigates the nearly impossible roadblocks thrown his way by the Supreme Court.
I am no longer surprised by anything Donald Trump, J.D. Vance, or their MAGA collaborators have to say, but I have to respond to their latest attempt to lie about the 2020 election and the horrific events of January 6, 2021.
J.D. Vance couldn’t halt his inevitable slide into the MAGA depths, surrendering any remaining semblance of integrity to finally declare, in his typically weasel way, that he now believes Trump won the election: “On the election of 2020, I have answered this question directly a million times: No. I think there were serious problems in 2020. So did Donald Trump lose the election? Not by the words that I would use …”
This is one of those times I wish I had chosen law school. But without legal expertise, and instead a reliance on common sense, it seems to me that Donald Trump has, in his own words, recently helped to make Jack Smith’s case before Judge Chutkan, and ultimately the Supreme Court. He has admitted, in effect, that he was acting on January 6, 2021, as a candidate for president and not as an executive taking “actions within his conclusive and preclusive constitutional authority” as the Supreme Court has held in Trump v. United States, entitled, as the Court mandates, “to at least presumptive immunity from prosecution for all his official acts.” Rather as they write, he deserves “no immunity for unofficial acts.”
Why do I believe that? Well, at a Town Hall meeting hosted by Univision Television on Wednesday, October 16, 2024, Donald Trump was asked a question by Ramiro Gonzalez. Gonzalez, although he had voted for Donald Trump in 2020, now wasn’t sure this time. One concern Gonzalez expressed was about “what happened during January 6th and the fact that [Trump] waited so long to take action while [his] supporters were attacking the Capitol.”
Donald Trump’s answer clearly betrayed his motivation and signaled where his allegiance lay:
Very importantly, you had hundreds of thousands of people come to Washington. They didn’t come because of me. They came because of the election. They thought the election was a rigged election and that’s why they came. Some of those people went down to the Capitol, I said, peacefully and patriotically, nothing done wrong at all. Nothing done wrong. And action was taken, strong action. Ashli Babbitt was killed. Nobody was killed. There were no guns down there. We didn’t have guns. The others had guns, but we didn’t have guns. And when I say ‘we’ these are people that walk down, this was a tiny percentage of the overall, which nobody sees and nobody shows. But that was a day of love from the standpoint of the millions, it’s like hundreds of thousands. It could have been the largest group I’ve ever spoken before. They asked me to speak. I went and I spoke and I used the term peacefully and patriotically. (Emphasis added.)
These are obvious lies. Cassidy Hutchinson has testified under oath before the January 6 Select Committee that Donald Trump insisted that the Secret Service remove the metal detectors at the Ellipse because they were actively keeping some of his armed supporters from entering. Add the actual radio traffic from the Secret Service and FBI warning that there were members of the mob who were carrying AR-15s and Glocks.
But again, one of the most significant things about Donald Trump’s answer is that he so clearly aligns himself with the insurrectionist mob and not the Capitol and D.C. Police—all agents of local and federal law enforcement agencies. “We” (those marching to the Capitol) “didn’t have guns.” As he claims, “the others had guns.”
So, how in the world can Donald Trump assert the actions he took on January 6, 2021, and his inaction to protect our police, members of Congress, and his own vice president were a fulfillment of his core presidential duties, his official responsibilities as a member of the executive branch of the United States government? It was, in fact, the members of our police forces who actually fulfilled their official duties at the cost of life and limb. And the injuries and deaths they suffered came at the hands of the members of Donald Trump’s “We.”
And here is yet another reminder from the Encyclopedia Britannica that Donald Trump’s day of love was, for many members of our government, a day of horror and destruction:
Even before Trump finished his address shortly after 1:00 PM, and just as the joint session of Congress was being convened, a mob of his supporters—including members of right-wing extremist organizations, such as the Proud Boys, the Oath Keepers, and the Three Percenters, as well as self-identified adherents of the QAnon conspiracy theory — pushed through fences at the western perimeter of the Capitol grounds, forcing Capitol Police officers to retreat to additional barricades closer to the building … The mob grew larger as ever more people arrived from the rally at which Trump had spoken. Capitol Police officers, along with reinforcements from the Metropolitan Police Department of the District of Columbia, were overwhelmed. Many officers were brutally beaten with deadly weapons (bats, pipes, and flag poles), sprayed with chemical irritants, or crushed and trampled by the surging crowd. As the rioting continued outside, the joint session was temporarily adjourned to allow the House and Senate to separately debate a Republican challenge to the Democratic slate of electors from Arizona. By about 2:00 PM the rioters had breached the last barrier on the west side of the building and were running up the Capitol steps and scaling the walls of the West Terrace. Another mob also had broken through barriers on the east side of the Capitol.
Finally, these memories from Congressman Benny Thompson, chair of the House Select Committee on January 6, 2021:
I may be wrong imagining that what Donald Trump told Univision and millions of Americans is a statement admitting or acknowledging all facts necessary for conviction of a crime. But it does reveal how morally bankrupt, if not judicially incompetent, Chief Justice John Roberts and those who voted with him in Trump v. United States have revealed themselves to be. Somehow, they managed to distort Special Counsel Jack Smith’s detailed indictment of Donald Trump’s multi-faceted conspiracy to deny the results of a free and fair election into a theoretical and imaginary attempt by Smith and the Department of Justice to infringe upon the ability of an honest and responsible president’s ability to preserve and protect the Constitution. In several uncensored moments, Donald Trump put the lie to their nonsensical construct. “We,” he told us, the insurrectionists, didn’t have guns. “They,” the others, the government of the United States, had guns.
Allow me to imagine that some of them still possess the ability to be embarrassed. And if Chief Justice John Roberts and those who enabled his nonsense actually watch Trump’s Univision confession, they will renounce their attempt to exempt Donald Trump from any accountability a jury of his peers might vote to exact. And, as we have seen over the past few years, ordinary citizens serving on several grand juries across the nation are far more willing than the Justices of our Supreme Court to ensure that no one is above the law in America.
Anyway, while I await their reconsideration, let me continue my efforts to detail Jack Smith’s admirable attempt to bring justice to the man who, with the Court’s help, imagines himself a king among pawns.
Unfortunately, far too few Americans have taken the journey Special Counsel Jack Smith has been forced to take through the manufactured maze created by our out-of-control Supreme Court.
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I began my look at Smith’s brief with “It doesn’t matter if you won or lost” then moved on in “Just declare victory.” Now I want to share how Smith meticulously reveals how Donald Trump set up his own vice president to be hung by the mob:
The Defendant Attempted to Persuade Pence to Reject Votes Cast by Duly-Appointed Electors and Choose the Defendant’s Fraudulent Ones: As the defendant’s various attempts to target the states failed, and the January 6 congressional certification approached, the defendant and co-conspirators turned their attention to Pence, who as President of the Senate presided over the certification proceeding. In service of a new plan — to enlist Pence to use his role to fraudulently alter the election results at the January 6 certification proceeding — the defendant and his co-conspirators again used deceit. They lied to Pence, telling him that there was substantial election fraud and concealing their orchestration of the plan to manufacture fraudulent elector slates, as well as their intention to use the fake slates to attempt to obstruct the congressional certification. And they lied to the public, falsely claiming that Pence had the authority during the certification proceeding to reject electoral votes, send them back to the states, or overturn the election — and that Pence agreed he had these boundless powers. With these lies, the defendant created the tinderbox that he purposely ignited on January 6.
The defendant first publicly turned his sights toward January 6 in the early morning hours of December 19. At 1:42 a.m., the defendant posted on Twitter a copy of a report falsely alleging fraud and wrote … (Emphasis added.)
Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump https://t.co/D8KrMHnFdK. A great report by Peter. Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!
— Donald J. Trump (@realDonaldTrump) December 19, 2020
Smith continues:
The defendant and his co-conspirators recognized that Pence, by virtue of his ministerial role presiding over the January 6 congressional certification, would need to be a key part of their plan to obstruct the certification proceeding. On December 23, in a memorandum drafted with [CC5 blacked out]’s assistance. [CC2 blacked out] outlined a plan for Pence to ‘gavel’ in the defendant as the winner of the election based on the false claim that ‘7 states have transmitted dual slates of electors to the President of the Senate,’ and proposed that Pence announce that ‘because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.’
[CC2 blacked out] 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 … Two months earlier, on October 11, he had written to a colleague that neither the Constitution nor the ECA provided the Vice President with discretion in the counting of electoral votes or permitted him to ‘make the determination on his own.’ And just one day earlier, on December 22, when asked by other private attorneys to provide views on a draft complaint that would, if filed, have raised the issue of the Vice President’s authority on January 6, [CC2 blacked out] had recommended that the complaint not be filed. He wrote that ‘the risk of getting a court ruling that Pence has no authority to reject the Biden-certified ballots [is] very high.’ …
[And] on December 23, [CC2 blacked out] emailed [P42 blacked out] asking to speak to the defendant ‘to update him on our overall strategic thinking.’ The following day, December 24, the defendant called [CC2 blacked out] and they spoke for forty minutes. Then on December 25, [CC5 blacked out] proposed in a text message to [CC2 blacked out] and [CC6 blacked out] that Pence permit an unlimited filibuster of the certification, in violation of the ECA, and ultimately gavel in the defendant as president. When [CC2 blacked out] asked, ‘Is Pence really likely to be on board with this?’ [CC6 blacked out] responded, ‘Let’s keep this off text for now.’
From that point on, the conspirators plotted to manipulate Pence. [CC1 blacked out], [CC2 blacked out], [CC6 blacked out] and [P1 blacked out] worked in concert to enlist Pence to act unlawfully, and to rachet up public pressure from the defendant’s supporters that he do so. The defendant began to directly and repeatedly pressure Pence at the same time that he continued summoning his supporters to amass in Washington, D.C., on the day of the congressional certification. On December 25, when Pence called the defendant to wish him a Merry Christmas, the defendant raised the certification and told Pence that he had discretion in his role as President of the Senate. Pence emphatically responded, ‘You know I don’t think I have the authority to change the outcome.’ The next day, the defendant tweeted, ‘Never give up. See everyone in D.C. on January 6th.” He also tweeted false fraud claims: “Time for Republican Senators to step up and fight for the Presidency, like the Democrats would do if they had actually won. The proof is irrefutable! Massive late night mail-in ballot chops in swing states, stuffing the ballot boxes (on video), double voters, dead voters, fake signatures, illegal immigrant voters, banned Republican vote watchers, MORE VOTES THAN ACTUAL VOTERS (check out Detroit & Philadelphia), and much more. The numbers are far greater than what is necessary to win the individual swing states, and cannot even be contested. Courts are bad, the FBI and ‘Justice’ didn’t do their job, and the United States Election System looks like that of a third world country. Freedom of the press has been gone for a long time, it is Fake News, and now we have Big Tech (with Section 230) to deal with. But when it is all over, and this period of time becomes just another ugly chapter in our Country’s history, WE WILL WIN!!! (Emphasis added.)
Clearly, some on the Trump team were worried about the illegitimate elector plan. They were concerned about what might happen if/when the plan to offer false electors, to create conflict and chaos before the Senate, then to rely on Mike Pence’s refusal to certify the election made it before a federal court. Not only would they expose their plan to public scrutiny, but the court would almost certainly reject and disqualify their plan before it ever got before Mike Pence.
Smith explains:
Within hours of the call with Pence, the defendant reminded supporters to travel to Washington for the certification proceeding, tweeting, ‘The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!’
[On January 2,] the defendant called Pence, informing him ‘that he had spent the day speaking to a secretary of state, state legislators, and members of Congress’ … he had learned that a U.S. Senator was going to propose a ten-day delay in the certification proceeding, and told Pence, ‘you can make the decision’ to delay the count for ten days …
On January 3, the defendant again told Pence that at the certification proceeding, Pence had the absolute right to reject electoral votes and the ability to overturn the election. Pence responded that he had no such authority, and that a federal appeals court had rejected a lawsuit making that claim the previous day. Then, the defendant took to Twitter to again falsely claim that fraud had permeated the election … The same day, [CC2 blacked out] circulated a second memorandum that included a new plan under which, in violation of the ECA, the Vice President would send the elector slates to the state legislatures to determine which slate to count.
The meeting that [CC6 blacked out] had organized so that the defendant and [CC2 blacked out] could enlist Pence to reject Biden’s legitimate electoral votes was scheduled late in the afternoon of January 4th. In advance of the meeting [CC1 blacked out], [CC2 blacked out], [CC6 blacked out], and [P1 blacked out] gathered at the Willard Hotel near the White House, and from there, [CC1 blacked out] called and spoke to the defendant. When [CC2 blacked out] arrived at the White House for the meeting, [P9 blacked out] went line by line through [CC2 blacked out]’s second memo, and [CC2 blacked out] concluded that no court would support it. In response [P9 blacked out] warned [CC2 blacked out] that by pressing his admittedly unlawful plan would cause ‘riots in the streets.’ [P9 blacked out] then spoke to the defendant, telling him that the theory that [CC2 blacked out] and others were promoting would not work, and that [CC2 blacked out] had acknowledged that it ‘was not going to work’; the defendant responded, ‘other people disagree’ but did not identify those other people …
The meeting among the defendant, [CC2 blacked out], Pence, Pence staffers [P8 blacked out] and [P58 blacked out] began around 4:45 p.m. No one from the defendant’s White House Counsel’s Office attended. During the meeting, the defendant asked [CC2 blacked out] to explain his plan to Pence. [CC2 blacked out] presented two options: Pence could unilaterally decide objections to electors, or alternatively, in the plan that [CC2 blacked out] had devised the prior day, Pence could send the elector slates to the targeted states’ legislatures to determine which electors’ votes should be counted. In the defendant’s presence, in response to Pence’s questioning, [CC2 blacked out] admitted that the ECA forbade what lie proposed and that no one had tested [CC2 blacked out]’s plan to send elector slates to state legislatures for review. Nonetheless, the defendant repeatedly expressed a preference that Pence unilaterally reject valid elector slates.
Throughout the meeting, the defendant repeated his knowingly false fraud claims as a purported basis for Pence to act illegally. Pence’s five pages of contemporaneous notes from the meeting reflect that the defendant said, ‘when there’s fraud the rules get changed’; ‘bottom line — won every state by 100,000s of votes’; ‘this whole thing is up to MP’; ‘has to do w/you — you can be bold’; and ‘r[igh]t to do whatever you want to do.’ The meeting concluded with Pence — firm and clear — telling the defendant ‘I’m not seeing this argument working.’ Nonetheless, the defendant requested that Pence’s staff meet with [CC2 blacked out] again to discuss further and Pence agreed.
The conspirators were undeterred. Immediately after leaving the White House, [CC2 blacked out] gathered with [CC 6 blacked out] and [P1 blacked out] back at the Willard Hotel. Over the days that followed these conspirators strategized on how [CC2 blacked out] could influence Pence through the Vice President’s counsel, and normalized the unlawful plan by discussing it on [P1 blacked out]’s podcast. Meanwhile, the defendant continued to pressure Pence publicly.
For his part, immediately upon leaving the meeting with Pence, the defendant traveled to Dalton, Georgia, to speak at a political rally at the invitation of two U.S. Senators engaged in run-off elections there. Dining his political speech, the defendant promoted many of the same falsehoods that he previously had been informed were untrue. He said, ‘they’re not taking the White House. We’re gonna fight like hell. I’ll tell you right now,’ and remarked, ‘I hope Mike Pence comes through for us, I have to tell you. I hope that our great Vice President, our great Vice President comes through for us … Of course, if he doesn’t come through, I won’t like him quite as much.’ He also used the Dalton Campaign speech as a call to action to his own supporters, telling the crowd that ‘[i]f you don’t fight to save your country with everything you have, you’re not going to have a country left,’ and demanded that his supporters take action to prevent what he falsely called ‘the outright stealing of elections, like they’re trying to do with us,’ emphasizing, we /can’t let that happen.’
The next morning, on January 5, the defendant spoke on the phone with [P1 blacked] less than two hours later, on his podcast [P1 blacked out] said in anticipation of the January 6 certification proceeding, ‘All Hell is going to break loose tomorrow.’
Also on the morning of January 5, [CC2 blacked out] participated in a federal court hearing in Trump v Kemp, the Georgia lawsuit against [P17 blacked out] and [P33 blacked out] in which the defendant had signed a false verification days earlier. [CC2 blacked out] on the defendant’s behalf asked the federal court to decertify the presidential election in Georgia and declare that the state legislature may choose the state’s electors. During the hearing, the federal court denied the relief requested. Immediately following the federal court’s rejection of the legal basis for the conspirators’ plan, [CC2 blacked out] went to the meeting that the defendant had requested that Pence’s staff, [P58 blacked out] and [P8 blacked out] take. At the outset [CC2 blacked] changed his tack and advocated that Pence simply reject the Biden electors outright … [CC2 blacked out] made additional concessions during this meeting. For example, [CC2 blacked out] agreed that the Supreme Court would unanimously reject his proposed action, consistent historical practice since the Founding was that the Vice President never asserted authority to reject electors … [P58 blacked out] expressed to [CC2 blacked out] that the defendant’s plan would result in a ‘disastrous situation’ where the election might ‘have to be decided in the streets.’ Having failed to enlist [P58 blacked out] in the criminal conspiracy [CC2 blacked out] told him that the ‘team’ was going to be ‘really disappointed.’ The ‘team,’ in fact, was disappointed; after [CC2 blacked out] updated [CC1 blacked out] on the meeting. [CC6 blacked out] confirmed to [P1 blacked out] that the ‘Pence lawyer’ – that is [P58 blacked out] was ‘totally against us’ prompting [P1 blacked out] to respond ‘Fuck his lawyer.’ That same day, [CC2 blacked out] received an email confirming what he already had admitted to [P58 blacked out] no chamber of any legislature in any state, including Arizona, Georgia, Pennsylvania, and Wisconsin, was requesting that its electoral votes be returned to the state for review.
Meanwhile, [CC5 blacked out] who had traveled to Washington as directed by the defendant’s public messages, obtained duplicate originals of the fraudulent certificates signed by the defendant’s fraudulent electors in Michigan and Wisconsin, which they believed had not been delivered by mail to the President of the Senate or Archivist. [CC5 blacked out] received these duplicates from Campaign staff and surrogates, who flew them to Washington at private expense. He then hand-delivered them to staffers for a U.S. Representative at the Capitol as part of a plan to deliver them to Pence for use in the certification proceeding.
The defendant did not leave the pressure campaign to his co-conspirators; he redoubled his own efforts. On January 5 at 11:06 a.m. shortly before [CC2 blacked out]’s meeting with [P58 blacked out] the defendant tweeted, ‘The Vice President has the power to reject fraudulently chosen electors’ and designate the defendant as the winner of the electoral college vote. That afternoon, the defendant met privately with Pence in the Oval Office. During the meeting, the defendant once again told Pence, ‘I think you have the power to decertify.’ When Pence was unmoved, the defendant threatened to criticize him publicly (‘I’m gonna have to say you did a great disservice’); this concerned [P8 blacked out] to whom Pence had relayed the defendant’s threat, to the point that he alerted Pence’s Secret Service detail. Next still, the defendant initiated a phone call with Pence, [P8 blacked out], [P58 blacked out], [CC2 blacked out] and one or two other private attorneys — likely including [CC1 blacked out] and again raised the scenario of the Vice President sending the elector slates to state legislatures. [P58 blacked out] again pointed out that such a strategy violated the ECA, and Pence reaffirmed that he did not believe he had the authority to do so. Shortly after the call that evening, at 5:43 p.m., the defendant tweeted, ‘I will be speaking at the SAVE AMERICA RALLY tomorrow on the Ellipse at 11AM Eastern. Arrive early — doors open at 7AM Eastern. BIG CROWDS!’
The defendant continued his pressure campaign on Pence that evening. After a New York Times article that night detailed the afternoon’s private conversation in which Pence had rejected the defendant’s demand to act unlawfully, the defendant directed [P4 blacked out] to issue a statement rebutting it and approved the statement at 9:28 p.m. Minutes later, the defendant called Pence and told him, ‘you gotta be tough tomorrow.’ After concluding the call with Pence, the defendant sequentially spoke to [P1 blacked out] and [CC2 blacked out]. Then, at around 10:00 p.m. that night, the defendant issued the public statement, which read “the Vice President and I are in total agreement that the Vice President has the power to act” — a statement that the defendant knew was a lie from Pence’s repeated and firm rejections of his efforts, but that gave false hope to the defendant’s supporters arriving in the city at the defendant’s request, and maximized pressure on Pence.
F. The Defendant Caused Unlawful Conduct on January 6 and Tried to Take Advantage of the Riot that Ensued: The defendant continued his intense pressure campaign against the Vice President into the early morning horns of January 6. Around 1:00 a.m., the defendant tweeted, falsely:
If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!
— Donald J. Trump (@realDonaldTrump) January 6, 2021
At 8:17 a.m., as the supporters he had summoned to the city gathered near the White House,406 the defendant again falsely tweeted about the certification:
States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!
— Donald J. Trump (@realDonaldTrump) January 6, 2021
Later that morning, [CC5 blacked out] worked with another attorney for the defendant, who contacted a U.S. Senator to ask him to obtain the fraudulent Wisconsin and Michigan documents from the U.S. Representative’s office and hand-deliver them to the Vice President. When one of the U.S. Senator’s staffers contacted a Pence staffer by text message to arrange for delivery of what the U.S. Senator’s staffer had been told were ‘[alternate slate[s] of electors for MI and WI because [the] archivist didn’t receive them,’ Pence’s staffer rejected them.
At 11:15 a.m., shortly before traveling to the Ellipse to speak to his supporters, the defendant called Pence and made one last attempt to induce him to act unlawfully in the upcoming session. When Pence again refused, and told the defendant that he intended to make a statement to Congress before the certification proceeding confirming that he lacked the authority to do what the defendant wanted, the defendant was incensed. He decided to re-insert into his Campaign speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the certification. And the defendant set into motion the last plan in furtherance of his conspiracies: if Pence would not do as he asked, the defendant needed to find another way to prevent the certification of Biden as president. So on January 6, the defendant sent to the Capitol a crowd of angry supporters, whom the defendant had called to the city and inundated with false claims of outcome-determinative election fraud, to induce Pence not to certify the legitimate electoral votes and to obstruct the certification.
In his rally speech, [CC1 blacked out] sought to cloak the conspiracies in an air of legitimacy, assuring the defendant’s supporters that ‘every single thing that has been outlined as the plan for today is perfectly legal’ and introducing [CC2 blacked out] as a ‘preeminent constitutional scholar’ who would further explain this plan. He falsely claimed that legislatures in five states were ‘begging’ to have their electoral ballots returned. [CC1 blacked out] then asserted that Pence could ‘decide on the validity of these crooked ballots’ and told the crowd, ‘[l]et’s have trial by combat.’ [CC2 blacked out] in his speech, claimed that Pence must send electoral votes to state legislatures for ‘the American people [to] know whether we have control of the direction of our government or not,’ and decried that ‘[w]e no longer live in a self-governing republic if we can’t get the answer to this question.’
When the defendant took the stage at the Ellipse rally to speak to the supporters who had gathered there at his urging, he knew that Pence had refused, once and for all, to use the defendant’s fraudulent electors’ certificates. The defendant also knew that he had only one last hope to prevent Biden’s certification as President: the large and angry crowd standing in front of him. So for more than an hour, the defendant delivered a speech designed to inflame his supporters and motivate them to march to the Capitol.
The defendant told his crowd many of the same lies he had been telling for months … In Arizona, he claimed, more than 36,000 ballots had been cast by non-citizens. Regarding Georgia, the defendant repeated the falsehood that more than 10,300 dead people voted, and he raised the publicly disproven claims about fraud by election workers at State Farm Arena. He made baseless allegations of dead voters in Nevada and Michigan and false claims about illegally counted votes in Wisconsin. And in Pennsylvania, he claimed that there were hundreds of thousands more ballots counted than there had been voters. The defendant also lied to his rally supporters when he claimed that certain states wanted to reconsider or recertify their duly appointed electors. For instance, he said, ‘By the way, Pennsylvania has now seen all of this. They didn’t know because it was so quick. They had a vote. They voted. But now they see all this stuff, it’s all come to light. Doesn’t happen that fast. And they want to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.’ In response to this lie about Pennsylvania, the defendant’s crowd began to chant, ‘Send it back! Send it back!’
He falsely told the crowd that Pence could still ‘do the right thing’ and halt the certification, and he extemporized lines about the Vice President through the speech, including the indirect threat, ‘Mike Pence, I hope you’re gonna stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m gonna be very disappointed in you. I will tell you right now. I’m not hearing good stories.’
The defendant galvanized his supporters by painting the stakes as critical and assuring them that ‘history [was] going to be made.’ He made clear that he expected his supporters to take action, telling them regarding his loss of the election that ‘we’re not going to let that happen,’ calling on them to ‘fight’ and to ‘take back’ their country through strength, while suggesting that legal means were antiquated or insufficient to remedy the purported fraud, because ‘[w]hen you catch somebody in a fraud, you’re allowed to go by very different rules.’ Throughout the speech … the defendant directed his supporters to go to the Capitol and suggested that he would go with them.
The overall impact of the defendant’s speech … was to fuel the crowd’s anger. For instance, when the defendant told his supporters that [w]e will not let them silence your voices. We’re not going to let it happen,’ the crowd chanted, ‘Fight for Trump,” in response. When the defendant soon after told supporters that ‘we’re going to walk down to the Capitol,’ that they would ‘never take back our country with weakness,’ and that they had ‘to show strength and [had] to be strong,’ members of the crowd shouted, ‘Invade the Capitol building!’ and, ‘Take the Capitol!’
Thousands of the defendant’s supporters obeyed his directive and marched to the Capitol, where the certification proceeding began around 1:00 p.m. Minutes earlier, Pence had issued a public statement explaining that his role as President of the Senate did not include ‘unilateral authority to determine which electoral votes should be counted and which should not.’ On the floor of the House of Representatives, Pence opened the certificates of vote and certificate of ascertainment from Arizona, consistent with the ECA. After an objection from a Senator and Representative, the House and Senate retired to their separate chambers to debate it.
Outside of the Capitol building, a mass of people — including those who had traveled to Washington and the Capitol at the defendant’s direction — broke through barriers cordoning off the Capitol grounds and advanced on the building. Among these were [CC5 blacked out] who had attended the defendant’s speech from the Washington Monument, marched with the crowd to the Capitol, and breached the restricted area surrounding the building.
A large portion of the crowd at the Capitol — including rioters who violently attacked law enforcement officers trying to secure the building — wore clothing and carried items bearing the defendant’s name and Campaign slogans, leaving no doubt that they were there on his behalf and at his direction.
Beginning at about 1:30 p.m., the defendant settled in the dining room off of the Oval Office. He spent the afternoon there reviewing Twitter on his phone, while the dining room television played Fox News’ contemporaneous coverage of events at the Capitol. At 2:13 p.m., the crowd at the Capitol broke into the building, and forced the Senate to recess. Within minutes, staffers fled the Senate chamber carrying the legitimate electors’ physical certificates of vote and certificates of ascertainment. Next to the Senate chamber, a group of rioters chased a U.S. Capitol Police officer up a flight of stairs to within forty feet of where Pence was sheltering with his family. As they did so, the rioters shouted at the officer, in search of public officials, “Where the fuck they at? Where the fuck they counting the votes at? Why are you protecting them? You’re a fucking traitor.” On the other side of the Capitol, the House was also forced to recess …
At about 2:20 p.m., video of crowds on the Capitol lawn and West Terrace were shown alongside a chyron stating, ‘CERTIFICATION VOTE PAUSED AS PROTESTS ERUPT ON CAPITOL HILL’ At 2:21 p.m., an on-the-street reporter interviewed an individual marching from the Ellipse to the Capitol who claimed to have come to Washington ‘because President Trump told us we had something big to look forward to, and I believed that Vice President Pence was going to certify the electorial [sic] votes and, or not certify them, but I guess that’s just changed, correct? And it’s a very big disappointment. I think there’s several hundred thousand people here who are very disappointed. But I still believe President Trump has something else left.’ And at approximately 2:24 p.m., Fox News reported that a police officer may have been injured and that ‘protestors . . . have made their way inside the Capitol.’
At 2:24 p.m., Trump was alone in his dining room when he issued a Tweet attacking Pence and fueling the ongoing riot:
That afternoon, at the Capitol, a rioter used a bullhorn to read the defendant’s Tweet about the Vice President aloud to the crowd trying to gain entry to the building. The defendant issued the incendiary Tweet about Pence despite knowing — as he would later admit in an interview in 2023 — that his supporters ‘listen to [him] like no one else.’ One minute later, at 2:25 p.m., the Secret Service was forced to evacuate Pence to a secure location. At the Capitol, throughout the afternoon, members of the crowd chanted, ‘Hang Mike Pence!’; ‘Where is Pence? Bring him out’; and ‘Traitor Pence!’ Several rioters in those chanting crowds wore hats and carried flags evidencing their allegiance to the defendant. In the years since January 6, the defendant has refused to take responsibility for putting Pence in danger, instead blaming Pence. On March 13, 2023, he said, ‘Had Mike Pence sent the votes back to the legislatures, they wouldn’t have had a problem with Jan. 6, so in many ways you can blame him for Jan. 6. Had he sent them back to Pennsylvania, Georgia, Arizona, the states, I believe, number one, you would have had a different outcome. But I also believe you wouldn’t have had ‘Jan. 6’ as we call it.
Rioters — again, many bearing pro-Trump paraphernalia indicating their allegiance — breached the Senate chamber, rifled through the papers on the Senators’ desks, and stood on the dais where Pence had been presiding just minutes earlier. On the House side, rioters watched as police evacuated lawmakers from the House chamber, smashing glass windows surrounding a locked door that stood between them and the fleeing Members and staffers. At least one rioter recorded video showing Members being evacuated while the growing crowd screamed at the Capitol Police officers guarding the locked door to the House Speaker’s Lobby. Some of the worst violence of the day took place outside of the Capitol on the Lower West Terrace — the side of the building facing the Ellipse where the defendant had given his speech. There, scaffolding placed in anticipation of the January 20 Inauguration created a tunnel leading to a set of double glass doors into the center of the Capitol building. After rioters had forced their way onto restricted Capitol grounds and past the temporary barriers, including layers of snow fencing and bike racks, they attacked the law enforcement officers trying to protect the building with flag poles, bear spray, stolen police riot shields, and other improvised weapons. Of his time defending the Capitol, one Metropolitan Police Department Officer said:
I feared for my life from the moment I got into that—we were walking into the crowd, when the Capitol Police officer was leading us into the front line. And especially when I got sprayed in the middle of the crowd. I — at that point, honestly, I thought, this is it. Yeah, multiple times … You know, you’re getting pushed, kicked, you know, people are throwing metal bats at you and all that stuff. I was like, yeah, this is fucking it.
The officer described that the rioters he encountered at the Capitol were wearing both ‘tactical gear’ and ‘Trump paraphernalia’ and appeared to be acting out of ‘pure, sheer anger. In the years after January 6, the defendant has reiterated his support for and allegiance to rioters who broke into the Capitol, calling them ‘patriots’ and ‘hostages,’ providing them financial assistance, and reminiscing about January 6 as ‘a beautiful day.’ At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times — opening the event with a song called ‘Justice for All,’ recorded by a group of charged — and in many cases, convicted —January 6 offenders known as the ‘January 6 Choir’ and who, because of their dangerousness, are held at the District of Columbia jail. At the Waco Rally, of the January 6 Choir, the defendant said, ‘our people love those people, they love those people.’ The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.
On the evening of January 6, the defendant and [CC1 blacked out] attempted to exploit the violence and chaos at the Capitol by having [CC1 blacked out] call Senators and attempt to get them to further delay the certification. At around 7:00 p.m., [CC1 blacked out] placed calls to five U.S. Senators and one U.S. Representative. [CC6 blacked out] tried to phone numbers for Members of Congress whom the defendant had directed [CC1 blacked out] to call. In a voicemail that [CC1 blacked out] intended for one Senator [CC1 blacked out] said, ‘I’m calling you because I want to discuss with you how they’re trying to rush this hearing and how we need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they’re reconvening at eight tonight, but the only strategy we can follow is to object to numerous states and raise issues so that we can get ourselves into tomorrow — ideally until the end of tomorrow.’ He then asked the Senator to ‘object to every state’ to ‘give us the opportunity to get the legislators who are very, very close to pulling their votes.’ This concession — that legislatures had not yet asked to review their slates – stood in contrast to [CC1 blacked out]’s and the defendant’s lies at the Ellipse that they already had …
Although the attack on the Capitol successfully delayed the certification for approximately six hours, the House and Senate resumed the Joint Session at 11:35 p.m. But the conspirators were not done. Within ten minutes, at 11:44 p.m. [CC2 blacked out] who earlier that day wrote to [P58 blacked out] that ‘[t]he “siege” is because YOU and your boss did not do what was necessary’ —emailed [P58 blacked out] again and urged him to convince Pence to violate the law, writing, ‘I implore you to consider one more relatively minor violation [of the ECA] and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here.’
At 3:41 a.m. on January 7, as President of the Senate, Pence announced the certified results of the 2020 presidential election in favor of Biden.
(Emphasis added.)
Lest we forget, Jack Smith reminds us that January 6, 2021, was an exhausting day and night for Vice President Mike Pence. The New York Times shows what the insurrectionists had planned for him:
And as the internal surveillance video the January 6 House Select Committee showed us all, the Secret Service barely got Mike Pence and his family to safety.
The Supreme Court has offered us a universe in which presidential acts fall into three categories: (1) core presidential conduct that Congress has no power to regulate and for which a former president has absolute immunity; (2) other official presidential acts for which the president has at least presumptive immunity; and (3) unofficial conduct for which the president has no immunity.
Theirs is a world that bears no resemblance to the real world in which the president, knowing full well he lost a free and fair election, fomented an insurrection to enable him to remain in power, sitting idly by as his supporters mercilessly beat our law enforcement officers, hunted down duly elected members of Congress, and hoped to hang Mike Pence.
Somehow, only a Court that has burdened us with Dobbs could imagine all this despicable and treasonous behavior falling into the faithful execution of the president’s duty to preserve, protect, and defend the Constitution of the United States.
