I began this series in the belief that the detailed story Special Counsel Jack Smith tells in his superseding indictment about the attempts Donald Trump and his co-conspirators made to interfere in the 2020 election needed to be told. Smith had the responsibility to prove that these were the actions of a candidate and not the official acts of a president. Now that Donald Trump has won the 2024 election and will soon pardon himself and disappear this disreputable recent history, it is probably even more important to finish.
Preparations had begun weeks before January 6. Central to the plan was manipulating Mike Pence to transform a Trump loss into a victory:
As the defendant set his sights on using Pence’s role as President of the Senate to overturn the election results at the January 6 certification proceeding, concurrent with his direct efforts to pressure Pence, the defendant began to issue Tweets falsely claiming that Pence could use his ministerial position to benefit the defendant as a candidate:
The Vice President has the power to reject fraudulently chosen electors.
— Donald J. Trump (@realDonaldTrump) January 5, 2021
And twice on the morning of January 6, before his speech at the Ellipse rally, the defendant tweeted again about Pence:
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
He again focused on Pence’s role in the certification at 8:17 a.m. when he wrote:
States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!
— Donald J. Trump (@realDonaldTrump) January 6, 2021
Smith continues:
The context and content of these Tweets establish that they were unofficial. Through the Tweets, the defendant was using the political pressure of his supporters and social media followers to convince Pence to take an action to benefit the defendant as a candidate and help him overturn the results of the election … the defendant played no official role in the congressional certification proceeding and was not using his Tweets about Pence’s role to advance any Executive Branch or governmental interest. Likewise, the defendant had no role in whether state legislatures might take action regarding their own electoral slates (though his claim that these legislatures were poised to do so was also false). And the defendant’s language throughout the Tweets is that of a candidate seeking to win an election … [Emphasis added.]
The private and Campaign nature of the Tweets is further confirmed when viewed in the context of the defendant’s increasing desperation as even his unlawful path to remain in power narrowed … on December 23, the defendant knew that he had lost the legitimate electoral college vote and had begun summoning supporters to Washington for the Ellipse rally on January 6.
When he tweeted on January 5 that Pence had the power to reject fraudulent electors, Pence already had ‘told him many times’ that Pence did not believe he had such power … And in the early morning hours of January 6, when the defendant again tweeted publicly that Pence should exceed his authority as President of the Senate when counting electoral votes, the defendant’s personal desperation was at its zenith: he was only hours from the certification proceeding that spelled the end.
vi. The defendant’s 2:24 p.m. Tweet on January 6 …
The defendant’s 2:24 p.m. Tweet aimed at Vice President Pence was unofficial. The defendant personally posted the Tweet on the afternoon of January 6 at a point when he already understood that the Capitol had been breached, writing:
To provide context, Smith reminds us about what Donald Trump had said on January 5:
First, the evening before, on January 5, the defendant had dictated a Tweet to [P45 blacked out] as he listened to the angry crowd gathered outside the White House. That Tweet shows that the defendant understood that his gathering supporters, who were angry and believed his false claims that the election had been stolen, were a powder keg. [Emphasis added.] At 5:05 p.m., he tweeted:
Washington is being inundated with people who don’t want to see an election victory stolen by emboldened Radical Left Democrats. Our Country has had enough, they won’t take it anymore! We hear you (and love you) from the Oval Office. MAKE AMERICA GREAT AGAIN!
— Donald J. Trump (@realDonaldTrump) January 5, 2021
Smith continues:
Thereafter, the defendant continued to fixate on preventing the certification proceeding … After the 8:17 a.m. Tweet, the defendant worked on his remarks for the Ellipse and planned to include language explicitly putting pressure on Pence regarding the certification until advisors prevailed on him not to. At 11:15 a.m., the defendant called Pence and tried one last-ditch effort to convince him to fraudulently reject or return Biden’s legitimate electors. Pence was resolute and unmoved, and the defendant was furious. Immediately after the call, the defendant directed that the original language targeting Pence be reinserted in his prepared remarks for the Ellipse rally.
The defendant then went to the Ellipse and delivered a falsehood-laden speech to his angry supporters. He purposely singled out Pence by claiming that Pence had the power to overturn the election results and – though the defendant stood at the podium with full knowledge that Pence would not do so — gave the crowd false hope that Pence might exercise that power. The defendant told the crowd to act, stating, we ‘can’t let it happen’ and then directed his supporters, who were angry and motivated by his speech, to march to the Capitol.
[Emphasis added.]
Smith goes on:
Instead of marching with his supporters as he said he would, the defendant returned to the White House. He went to the dining room next to the Oval Office and began to watch television coverage of the events at the Capitol. Although the Government does not intend to use at trial evidence of the defendant’s discussions with White House staff during this time period, it provides necessary context: when news broke that rioters had breached the Capitol, the defendant’s advisors – including [P59 blacked out] Deputy White House Counsel [P71 blacked out] and [P9 blacked out] urged the defendant to issue a calming message and make efforts to stop the riot. The defendant refused, responding that the people at the Capitol were angry because the election had been stolen. Eventually, all of the defendant’s staffers left him alone in the dining room. Fox News continued to report on the growing crisis at the Capitol.
It was at that point — alone, watching news in real time, and with knowledge that rioters had breached the Capitol building — that the defendant issued the 2:24 p.m. Tweet attacking Pence for refusing the defendant’s entreaties to join the conspiracy and help overturn the results of the election. One minute later, the Secret Service was forced to evacuate Pence to a secure location in the Capitol.
[Emphasis added.]
Smith explains the timeline:
the certification proceeding was underway; and the first breach of the Capitol building had occurred minutes before, at 2:12 p.m. At that point, the defendant’s only hope to disrupt the certification proceeding and retain power was through his angry supporters. The defendant further revealed the private nature of his desperate conduct as a candidate, rather than a President, in an exchange (that the Government does not plan to use at trial) he had with aide [P15 blacked out] shortly after the 2:24 p.m. Tweet. Upon receiving a phone call alerting him that Pence had been taken to a secure location [P15 blacked out] rushed to the dining room to inform the defendant in hopes that the defendant would take action to ensure Pence’s safety. Instead, after| [P15 blacked out] delivered the news, the defendant looked at him and said only, ‘So what?’ [Emphasis added.]
The private, unofficial nature of the 2:24 p.m. Tweet contrasts with two other Tweets the defendant sent during the following hour and a video message he sent two hours later, and which the Government does not intend to introduce at trial. Only after advisors had again urged the defendant to calm matters at the Capitol the defendant at 2:38 p.m. posted:
Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!
— Donald J. Trump (@realDonaldTrump) January 6, 2021
Smith’s footnote adds context:
[blacked out] both [P71 blacked out] and I went down and told him you got to tell people get out of the Capitol, the people who were breaching the Capitol’); GA 232 [blacked out] (‘And I said, we need to tell everyone to get the fuck out of the Capitol, right now’); GA 237 [blacked out], [P71 blacked out] and [P59 blacked out] ‘argued … to the president, you have to tell people to get out, right now, as well [P71 blacked out] for the first time I’d ever heard him raise his voice, yelled at the president … He said, you need to tell them now; you’re destroying your legacy; you’re destroying everything anyone’s ever worked for, you’ve got to tell these people to get out of the Capitol immediately’ GA 480 [blacked out] (‘I think we were probably, at that point, encouraging the President that he needed to come out and say something, he needed to condemn this and say something about it.’)] [Emphasis added.]
Smith continues:
As the violence at the Capitol nonetheless escalated, the defendant at 3:13 p.m. posted:
I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!
— Donald J. Trump (@realDonaldTrump) January 6, 2021
Smith explains:
And after those Tweets failed to disperse the rioters, and after still more demands from his staff that he do more to stop the riot, the defendant at 4:17 p.m. tweeted a video message in which he finally asked those at the Capitol — whom he described as ‘very special’ people that he ‘love[d]’ — to leave the Capitol, while also claiming that ‘[w]e had an election that was stolen from us.’ [Emphasis added.] He sent a Tweet at 6:01 p.m.:
Smith writes:
The defendant at least has an argument — though he issued the 2:38 p.m. and 3:13 p.m. Tweets only after being harangued by his staff while he adamantly refused to do anything at all — that he was addressing a matter of public safety as President (the riot at the Capitol). Likewise, in the 4:17 p.m. message, the defendant, while still focused on his election loss, asked rioters to evacuate the breached Capitol, and foreshadowed the sentiment in his 6:01 p.m. Tweet when he said to ‘[g]o home with love & in peace.’
In this footnote, Smith claims:
There are, however, strong arguments that all of these Tweets were unofficial. For example, in some of them, the defendant misleadingly suggested that the already-violent crowd should ‘[s]tay’ or ‘remain’ ‘peaceful’ while failing to urge or direct those unlawfully at the Capitol to leave … He also used the messages to recognize the rioters at the Capitol as his own supporters, calling them ‘WE’ and telling them that they were ‘very special’ and that he loved them. And even as early as the afternoon of January 6, when violence still raged at the Capitol, the defendant justified and revered the rioters’ lawless actions on his behalf when he tweeted that ‘[t]hese are the things and events that happen’ and to ‘[r]emember this day forever!’
Smith continues:
By contrast, in the 2:24 p.m. Tweet, the defendant focused solely on the Vice President’s role in the certification of the presidential election results — a matter of intense personal concern to the defendant as a candidate for office. Even assuming that topic constituted a ‘matter of public concern,’ Blassingame, 87 F.4th at 14, the defendant’s 2:24 p.m. Tweet reflected speech made ‘in an unofficial, private capacity as office-seeker, not an official capacity as office-holder.’ Id. at 5 … When the defendant sent it, he knew that what he had asked Pence to do, and that he claimed would ‘protect our Country and our Constitution,’ was contrary to the ECA; that no state was poised to ‘certify a corrected set of facts;’ that a large crowd of his political supporters had gathered in Washington at his urging; that these supporters were angry and believed his false claims that the election had been stolen; that he had called them to action through his Ellipse speech, in which he told them that Pence might still do as he wished and directed these supporters to march to the Capitol; and that his supporters had done so and had breached the Capitol building.
The defendant also knew what his advisors were forcefully urging him to do as President: issue a message to quell the emergency at the Capitol. Instead, the defendant refused repeatedly until his advisors gave up and left him alone in the dining room. It was then that the defendant issued the 2:24 p.m. Tweet, as a candidate communicating to his angry supporters that Pence had let him — and them — down. The content of the 2:24 p.m. Tweet was not a message sent to address a matter of public concern and ease unrest; it was the message of an angry candidate upon the realization that he would lose power …
c. Other public statements
By virtue of his status as a candidate for re-election, the defendant occasionally made public statements — whether in response to questions or otherwise. Examples of such statements set forth in Section I are the defendant’s statements in advance of the election to seed public doubt in the outcome (supra p. 6), the defendant’s televised election night remarks to his supporters (supra pp. 7-8). and the defendant’s telephonic endorsement of [CC1 blacked out]’s false allegations at the Gettysburg ‘hotel hearing’ (supra p. 39) …
2. In the alternative, any official portions of the defendant’s public speeches, Tweets, or statements should be excised
Alternatively, if segregable portions of the speeches, Tweets, or statements are found to be presumptively immune official conduct, the first alternative would be to excise them from the speeches, allowing the Government to rely on the unofficial statements in those speeches.
The D.C. Circuit has long recognized that district courts have ‘discretionary power to delete objectionable portions’ of evidence ‘where appropriate,’ United States v. Lemonakis, 485 F.2d941, 949 (D.C. Cir. 1973), and the Supreme Court has approved of that practice in the context of statements that contain protected legislative acts along with unprotected acts under the Constitution’s Speech or Debate Clause, see United States v. Helstoski, 442 U.S. 477, 488 n.7 (1979) (approving practice of ‘excising references to legislative acts, so that the remainder of the evidence would be admissible’ … This is a familiar practice across a range of legal contexts … Redaction of any statements ultimately found to be immune, while admitting the significant remaining unofficial content, would resolve any constitutional questions under Trump.
To the extent that excision does not resolve any arguable immunity claim, then even if the defendant’s conduct in these speeches, Tweets, and statements can be nudged across the line from Campaign conduct to official action, it is so heavily intertwined with Campaign-related conduct that prosecuting it does not pose a danger to any Executive Branch function or authority. Because the defendant bears the burden in the first instance of proving that conduct was official so as to qualify for presumptive immunity, the Government in its reply brief will address any specific arguments the defense makes regarding the speeches, Tweets, and statements discussed here.
E. The Defendant’s Interactions, in his Capacity as a Candidate, with White House Staff
1. The interactions at issue were unofficial
White House staffers witnessed or engaged in private, unofficial communications with the defendant. These staffers included [P9 blacked out], the White House Senior Advisor who acted as a conduit between the defendant and the Campaign; [P45 blacked out] and [P7 blacked out] who both volunteered for the Campaign while working in the White House; [P15 blacked out], a staffer who witnessed a pertinent private remark by the defendant; and [P42 blacked out] the defendant executive assistant.
Federal law confirms that the defendant’s Campaign-related conversations with these White House staffers were unofficial. The Hatch Act permits certain White House staffers to engage in political activity while on duty, see 5 U.S.C. § 7324(a)(1), but prohibits them from using their ‘official authority or influence for the purpose of interfering with or affecting the result of an election,’ 5 U.S.C. § 7323(a)(1). These staffers can thus wear-two hats. They can work in their private capacity to advance the interests of a political candidate, including while on official duty, or they can work in their official capacity to carry out Executive Branch responsibilities — but they may not wear both hats at the same time. Accordingly, when the defendant’s White House staff participated in political activity on his behalf as a candidate, they were not exercising their official authority or carrying out official responsibilities. And when the President, acting as a candidate, engaged in Campaign-related activities with these officials or in then presence, he too was not engaging in official presidential conduct.
Precedent from the D.C. Circuit further confirms that the defendant was not engaging in official presidential conduct when he spoke with White House staffers about Campaign matters. In In re Lindsey, 158 F.3d 1263, 1278-79 (D.C. Cir. 1998), the D.C. Circuit recognized that senior White House personnel may serve as the President’s agents in a personal capacity to act as a conduit for unofficial information from a private party. The D.C. Circuit held that while the President’s communications with his personal attorney are ‘fully protected by the absolute attorney-client privilege,’ id. at 1283, a White House lawyer ‘cannot rely on a government attorney-client privilege to shield evidence from the grand jury,’ id. at 1281. But a White House lawyer may invoke the President’s personal attorney-client privilege when he acts as ‘an intermediary’; to convey unofficial information from the President to his personal attorney. Id. As the court explained, a President must often ‘rely on aides’ to communicate with personal advisors, such as his personal attorneys, and the involvement of those aides does not alter the personal nature of the underlying communication. Id. at 1281-82. Similarly in this case, the transmission of a private Campaign communication by or to the defendant through a White House employee serving as an intermediary did not render that communication official and thereby shield it from use in a criminal trial against the defendant.
In sum, just as the President can at times act ‘in an unofficial capacity’—including as ‘a candidate for office or party leader,’ Trump, 144 S. Ct. at 2340 — so too can the Executive Branch staff around him. Simply because a staffer holds a title in the Executive Branch and interacts with the President does not mean that the interaction is necessarily official. See Blassingame, 87 F.4th at 14 (noting ‘the settled understanding that immunity is based on “the nature of the function performed, not the identity of the actor who performed it.”’ (quoting Clinton, 520 U.S. at 695)). When the individuals listed below interacted with the defendant in the circumstances described in Section I, those conversations were unofficial.
a. [P9 blacked out]
From August 2020 through the end of the defendant’s administration [P9 blacked out] was an Assistant to the President without a defined portfolio. More importantly for the Court’s purposes, during the charged conspiracies, [P9 blacked out] served as a conduit of information from the Campaign to the defendant and discussed Campaign matters with the defendant. These actions were, consistent with In re Lindsey, unofficial.
As part of its immunity analysis, the Court should consider multiple different interactions involving [P9 blacked out], none of which bear on his official White House responsibilities: (1) a November 13 phone call in which the defendant told [P9 blacked out] he was going to put [CC1 blacked out] in charge of the Campaign’s legal efforts under an agreement where the defendant would only pay if [CC1 blacked out] were successful and [P9 blacked out] guaranteed the defendant he never would have to pay (supra pp. 11-12); (2) a November conversation with the defendant regarding [CC3 blacked out] (supra p. 44): (3) an undated conversation in which he told the defendant that [CC1 blacked out]’s fraud allegations could never be proved in court and the defendant responded, ‘the details don’t matter’ (supra pp. 12-13): (4) a November or December 2020 conversation in which [P9 blacked out] explained to the defendant why one of his fraud claims was ‘bullshit’ (supra p. 13); (5) a late December exchange with the defendant regarding the verification [CC2 blacked out] wanted him to sign in Trump v .Kemp (supra p. 27): (6) a January 4. 2021 conversation [P9 blacked out] had with [CC2 blacked out] (ECF No. 226 ¶ 77; supra p. 66), after which Herschman reported to the defendant that with [CC2 blacked out] admitted his plan was ‘not going to work’ (supra p. 66); and (7) a variety of occasions on which [PP9 blacked out] reported to the defendant that his Campaign and its hired experts had found various election fraud claims to be unsupported (supra p. 12).
Section I also includes actions by [P9 blacked out] that do not reflect any presidential conduct because the defendant was not involved. These include December 3 text messages that [P9 blacked out] exchanged with [P21 blacked out] regarding [CC1 blacked out]’s false fraud claims at a Georgia legislative hearing (ECF No. 226 ¶ 26(a); supra pp. 21-22), and December 13 text messages [P9 blacked out] exchanged with Campaign personnel regarding the fraudulent elector scheme (ECF No. 226 ¶60; supra pp. 52-53).
The content of each of [P9 blacked out]’s communications with the defendant enumerated above involve the defendant’s Campaign, including the status and viability of the defendant’s fraud claims, the quality of the advice the defendant was receiving from his Campaign advisors, his litigation and electoral prospects, and the legality and practicality of [CC2 blacked out]’s proposal that Pence reject Biden’s legitimate electors at the certification proceeding. None of the communications pertain to general election policy issues or considerations, Justice Department criminal investigations, Executive Branch functions, or any other presidential responsibilities … The Government does not intend to elicit specific information about communications [P9 blacked out] had with the defendant regarding his official duties.
[P9 blacked out] was not acting in an official capacity during the conversations enumerated above, but as a conduit for information from the Campaign. [P9 blacked out]’s contact with the Campaign began in October 2020, when he asked Campaign staffers [P3 blacked out] and [P72 blacked out] for a tutorial on campaign basics and operations. He continued to talk to [P3 blacked out] and [P72 blacked out] leading up to the election to understand different electoral college win/loss scenarios. Shortly thereafter, in early November 2020 [P9 blacked out] asked [P77 blacked out] who handled ethics issues in the White House Counsel’s Office, for permission to engage with the Campaign, and thereafter [P9 blacked out] began frequent contact with Campaign staff. Several days after the election, [P9 blacked out] went to the Campaign headquarters in Virginia for the first time, while [P2 blacked out], [CC1 blacked out], [P56 blacked out], [CC3 blacked out], [P10 blacked out], [P48 blacked out] and [P12 blacked out] were there too. As discussed supra p. 9, on November 7 — likely the same day he went to the Campaign headquarters, [P9 blacked out] joined Campaign staffers, including [P2 blacked out], [P3 blacked out], and [P4 blacked out], at the White House to discuss with the defendant the fact that networks that morning had projected Biden as the winner of the election. The Campaign staff and [P9 blacked out] told the defendant his chance of victory was slim. [P9 blacked out] also participated in various Oval Office meetings with the defendant, Pence. White House staff, Campaign officials, and [P39 blacked out].
The defendant heard and mentioned to [P9 blacked out] and others various fraud allegations throughout the post-election period, sometimes from his outside attorneys like [CC1 blacked out] or [CC3 blacked out]. Consistent with this, [P9 blacked out] asked [CC3 blacked out] and [P72 blacked out] if certain fraud allegations were accurate, so that he could challenge information provided to the defendant by people like [CC1 blacked out], [CC3 blacked out] and [P12 blacked out]. [P9 blacked out] also began interacting on a near-daily basis with [P22 blacked out], a Campaign staffer who [P73 blacked out] told [P9 blacked out] he could trust. The Campaign, in turn, hired two outside firms [CC1 blacked out] and [CC2 blacked] to investigate fraud allegations. [P9 blacked out] told the defendant that people external to the Campaign were hired to look into fraud allegations.
Overall, [P9 blacked out] served as a conduit of day-to-day information between [P22 blacked out] and the defendant during the post-election period. [P22 blacked out] testified that around the time that [CC1 was named to lead legal efforts ‘I was introduced to [P9 blacked out] and I started predominantly reporting to [P9 blacked out].’ He elaborated that [P9 blacked out] ‘started to call me more and more. It would be, you know, once every couple of days that then it was kind of every day for a period of time that I was talking to [P9 blacked out].’ With this information on a daily basis [P9 blacked out] attempted to debunk the false fraud allegations in the White House … [P9 blacked out] directly passed the information to the defendant.
[P9 blacked out] had other contact regarding initiatives by the Campaign or its outside attorneys. For example, [P9 blacked out] was on a call with the defendant and [CC2 blacked out] on December 9 regarding the defendant’s motion, in his capacity as a candidate, to intervene in Texas v. Pennsylvania. Separately, [P9 blacked out] spoke to the defendant about the lawsuit, and explained how the legal system worked and that the Campaign — not the Justice Department or FBI — was responsible for filing election challenge lawsuits.
Throughout these conversations, even if [P9 blacked out] could be understood to have been acting in an official capacity — which he was not — rather than a Campaign one, the defendant was himself acting in his private capacity as a candidate. The defendant was asking for [P9 blacked out]’s view on various strategic decisions he was making regarding his Campaign and his private attorneys, and he was getting reports from [P9 blacked out] on information related to actual and potential election challenges important to his candidacy and private Campaign. All of this context establishes both that [P9 blacked out] wore two hats — one official, one private —and that the defendant interacted with [P9 blacked out] in these conversations as a candidate rather than as President …
b. [P45 blacked out]
[P45 blacked out] served as Assistant to the President and White House Deputy Chief of Staff. He also volunteered his time for Campaign work, including traveling to political rallies with the defendant and posting pictures and videos. The Government will elicit from [P45 blacked out] at trial that he was the only person other than the defendant with the ability to post to the defendant’s Twitter account, that he sent tweets only at the defendant’s express direction, and that [P45 blacked out] did not send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021. He also will generally describe the defendant’s Twitter knowledge and habits, including that the defendant was ‘very active on his Twitter account,’ ‘paid attention to how his tweets played with his followers,’ ‘was very engaged in watching the news,’ and ‘knew how to read the replies and see all the replies of what people were saying and doing which … led to where he would retweet things,’ and that any Tweet sent ‘between 5 or 6 a.m. until 9 or 10 a.m.’ and after ‘9 or 10 p.m.’ generally was the defendant personally sending out the Tweet, as opposed to having [P45 blacked out] do it. None of this proposed testimony on [P45 blacked out]’s part constitutes evidence of an official act …
c. [P7 blacked out]
[P7 blacked out] was an Assistant to the President and a volunteer for the Campaign. She will testify about two specific sets of conversations: (1) a handful of conversations in which the defendant, in advance of the election, said that he would simply declare victory (supra p. 5); and (2) an unprompted statement in which the defendant remarked, in a private moment, that [CC3 blacked out] claims were ‘crazy’ [supra p. 44].
Regarding the pre-election conversations [P7 blacked out] has testified that COVID’s expected effect on the election, and in particular the anticipated phenomenon that the defendant would take an early lead in some states based on the election day vote that would dissipate as mail-in ballots were counted, was discussed among Campaign personnel and dual-hat White House staffers who simultaneously volunteered for the Campaign. In that context, the defendant told [P7 blacked out] and others words to the effect of, ‘We’ll just declare victory.’ Regarding the defendant’s statement about [CC3 blacked out], [P7 blacked out] will testify about a November 20 phone call in which the defendant mocked and laughed at [CC3 blacked out], and called her allegations — that he adopted and amplified — ‘crazy.’
In all of these interactions, the defendant was interacting as a candidate with [P7 blacked out] not as President. With respect to his pre-election comments about declaring victory, the context of the conversations indicates that the defendant was responding in real time to information that Campaign staff provided him on private matters. Similarly, the November 20 conversation among the defendant, [P7 blacked out] and [P45 blacked out] regarding [CC3 blacked out] was also a Campaign conversation. [P7 blacked out] and [P45 blacked out], two staffers who volunteered for the Campaign while working in the White House, were informally discussing with the defendant developments in his Campaign — namely that one of his private attorneys had been a source of public embarrassment. The defendant then dialed his private attorney, [CC3 blacked out] and made the comment about her claims with her on the muted phone line. The defendant was not seeking advice from White House staffers; he was making fun of his private attorney in the presence of Campaign volunteers.
c. [P15 blacked out]
[P15 blacked out] was an Assistant to the President and Director of Oval Office Operations. At trial, the Government will elicit from ‘[P15 blacked out] that he witnessed an unprompted comment that the defendant made to his family members in which the defendant suggested that he would fight to remain in power regardless of whether he had won the election. Specifically, following the 2020 election while aboard Marine One, the defendant told his wife, daughter [P14 blacked out] and son-in-law [P13 blacked out]. ‘It doesn’t matter if you won or lost the election. You still have to fight like hell.’ See supra p. 14-15 … This statement is plainly private. It was exclusively about the election and the defendant’s determination, as a candidate, to remain in power whether he won or lost …
d. [P42 blacked out]
To a limited extent, the allegations in the superseding indictment and the Government’s evidence involve [P42 blacked out], the defendant’s executive assistant in the White House. Section I describes multiple instances in which [P42 blacked out] received emails intended for the defendant or sent emails on the defendant’s behalf. These instances include [P42 blacked out] sending to a group of private attorneys, including [CC3 blacked out] an email with the subject ‘From POTUS’ directing the private attorneys to include material critical of [CC3 blacked out] in private lawsuits (see supra pp. 42); [P42 blacked out] receiving from [CC1 blacked out] an email for the defendant providing a copy of the message [CC1 blacked out] had drafted to exert pressure on Michigan Senate Majority Leader [P37 blacked out] (see supra p. 34); [P42 blacked out] receiving from [P39 blacked out] the RNC’s ‘Elector Recap’ email to put in front of the defendant [see supra p. 57]: and [P42 blacked out] receiving an email from [CC2 blacked out] on December 2 asking to update the defendant on ‘overall strategic thinking’ on the defendant’s status as a candidate (see supra p. 61) …
[P42 blacked out] regularly facilitated the defendant’s purely private matters, including communications with his children about his Thanksgiving travel. The defendant’s reliance on [P42 blacked out]to pass messages to and from personal advisors, friends, and family does not render the underlying private communications official. See Lindsey, 158 F.3d at 1281-82.
2. Even if this evidence were deemed official, the Government could rebut any presumption of immunity
Even if an ‘official’ gloss were applied to the defendant’s conversations with White House staff pertaining solely to the President’s chances as a candidate to successfully challenge the election results, the use of such evidence would not intrude on Executive Branch functions or authority. ‘The Office of the Presidency as an institution is agnostic about who will occupy it next.’ Blassingame, 87 F.4th at 4. Whatever blurring of the lines might exist between candidate conduct and official conduct in conversations that the President may conduct with his immediate staff, introducing evidence of conversations with dual-hat White House staff members — those who function in both a Campaign-related capacity and an official advisory capacity — when they are speaking to the President in his capacity as a candidate or in their Campaign-related capacity does not impede decision-making on matters entrusted to the Executive Branch. The Supreme Court required that its rebuttal analysis focus on Executive Branch authority and functions — not merely on anything that the President might say or do while at the White House. Here, the Executive Branch has no authority or function in the certification of the next President. Accordingly, the use of evidence of White House staffers’ Campaign-capacity discussions with the President about how to challenge state election results — challenges brought in his capacity as a candidate — does not risk impairing the constitutional role of the Executive Branch.
F. Other Evidence of the Defendant’s Knowledge and Intent
The Government intends to introduce at trial additional evidence to prove the defendant’s knowledge and intent. These include (1) public statements by federal officials that the defendant did not direct be made (specifically, public statements by Attorney General [P52 blacked out] and CISA Director [P50 blacked out] about the lack of election fraud and foreign interference); (2) evidence that the defendant was reviewing Twitter and watching television throughout the afternoon of January 6; and (3) the defendant’s post-Administration statements. None of this evidence will involve testimony from the defendant’s Executive Branch staff about his official actions.
In a public statement issued on December 1, 2020, Attorney General [P52 blacked out] said that the Department of Justice had not seen evidence of fraud sufficient to change the election results, and that claims that voting machines had skewed election results were unsubstantiated. [P52 blacked out] decided to make his statement without informing the defendant in advance. He prepared the statement because he had been watching the defendant repeat claims of election fraud publicly despite direct knowledge, from [P52 blacked out] and others, that they were false, and [P52 blacked out] was growing more and more frustrated by the defendant’s actions. On November 29, [P52 blacked out] saw the defendant appear on the Maria Bartiromo Show and claim, among other false things, that the Justice Department was ‘missing in action’ and had ignored evidence of fraud. [P52 blacked out] decided it was time to speak publicly in contravention of the defendant’s false claims … all without informing or seeking permission from the defendant. The same day, on behalf of the Campaign, [CC1 blacked out] and [P12 blacked out] issued a statement attacking [P52 blacked out] for his comments …
[P52 blacked out]’s statement is not an official act by the defendant. Trump treats only the defendant’s own acts as potentially immune, see, e.g., 144 S. Ct. at 2338, consistent with the ‘justifying purposes of the immunity’ — ‘to ensure that the President can undertake his constitutionally designated functions effectively, free from undue pressures or distortions,’ id. at 2332 (internal quotation marks omitted). The immunity that the Supreme Court recognized thus does not imply that acts by other government officials can qualify as presidential acts. More to the point [P52 blacked out]’s statement does not reveal any official action by the defendant because [P52 blacked out] did not give his public statement at the defendant’s direction or even with his knowledge. To the contrary, if the defendant had been aware of what [P52 blacked out] intended to do he undoubtedly would have instructed [P52 blacked out] not to make the statement; when the defendant learned of [P52 blacked out]’s statement he was so angry that tendered his resignation and. momentarily, the defendant accepted — until [P9 blacked out] and [P59 blacked out] prevailed upon the defendant to calm down and convinced [P52 blacked out] to delay his departure …
On November 17, CISA Director [P50 blacked out] tweeted a link to an open letter by 59 election security experts and touted it in an effort to promote public confidence in the election’s infrastructure. This was similar to what [P50 blacked out] had done five days earlier on November 12, when he had publicized the joint statement CISA issued with the National Association of Secretaries of State, the National Association of State Election Directors, and other organizations declaring the 2020 election to be ‘the most secure in American history’ and that there was ‘no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.’ On November 17, [P50 blacked out] promoted the expert report on his own initiative and.as he later learned, contrary to the defendant’s wishes; the defendant promptly fired [P50 blacked out] the same day, by Tweet …
Forensic evidence from the defendant’s iPhone and observations by witnesses otherwise testifying about unofficial acts will establish that upon his return from the Ellipse, throughout the afternoon on January 6, the defendant sat in the dining room by the Oval Office, where he used his phone to review Twitter and watched the television, which was turned on and displaying news coverage of the riot at the Capitol …
[Emphasis added.]
Smith continues:
In addition, [P9 blacked out], [P15 blacked out], and [P45 blacked out] each of whom are, as described supra pp. 147-154, 156, otherwise expected to testify about the defendant’s unofficial acts — will offer the objective observation that during the afternoon of January 6, the television in the defendant’s dining room, where he spent the day, was on and timed into news programs that were covering in real time the ongoing events at the Capitol. In turn, the Government will introduce the authenticated coverage showing what Fox News was playing in real time while the defendant sat in the room with the television on. This evidence is particularly relevant to the defendant’s knowledge at the time he issued the 2:24 p.m. Tweet, which, as described above, was unofficial.
None of this evidence involves testimony about an act by the defendant at all, and it shows what social media and news the defendant privately reviewed in service of issuing a private Tweet. The Government will not elicit testimony from the defendant’s staffers about his official deliberations, reactions to social media or television, or official actions taken in response. The defendant’s review of social media and television news — under these particular circumstances — was no different from that of any other citizen or candidate and therefore was unofficial …
As the Government identified in its Rule 404(b) notice, ECF No. 174-1 at 8-9, the Government will introduce some of the defendant’s numerous statements that post-date his time as President in which he has blamed Pence and approved of the actions of his supporters who breached the Capitol and obstructed the certification proceeding, thus providing evidence of his intent on January 6.
The defendant’s endorsement of the violent actions of his supporters on January 6, and his sentiment that they were justified in threatening Pence — all made while the defendant was a private citizen after the end of his term in office — are probative of his intent during the charged conspiracies. The Government intends to offer them as evidence of the defendant’s intent on January 6, not as evidence of his official acts.
2. Even if this evidence were deemed official, the Government could rebut any presumption of immunity
The use of the evidence regarding former Attorney General [P52 blacked out] and CISA Director [P50 blacked out] would not intrude on Executive Branch authority or functions because the federal officials’ statements reflected those officials’ positions, knowledge, and expertise — not presidential acts or direction. The President is the ‘the only person who alone composes a branch of government,’ Trump, 144 S. Ct. at 2329 (citation omitted), but Congress structures the Executive Branch and assigns manifold specific duties to subordinate officers who in turn execute the law. The President is responsible to take care that the laws be faithfully executed, see U.S. Const. Art. 2, § 3, but that does not mean that every executive official is at all times performing presidential acts. Allowing the Government to introduce evidence of these independent actions and public statements of subordinate officials in the Executive Branch, not taken at the direction of the President, does not intrude on the authority or functions of the Executive Branch. Nothing in Trump dictates such an outcome that would effectively bar any Executive Branch employee from providing evidence against a President who committed crimes in his private capacity. Put concretely, allowing these independent acts of Executive Branch officials to be used in the prosecution would not chill any Presidential conduct, and thus any presumption of immunity is overcome …
IV. Conclusion
Based on a ‘factbound analysis,’ for the reasons explained above, the Court should determine that the conduct described in the factual proffer of Section I of this motion is not subject to presidential immunity. As part of this determination, the Court should specify four determinations, and do so in a single order: (1) that the Government has rebutted the presumption of immunity attached to the defendant’s official communications with the Vice President (see supra pp. 49, 63-67, 77-74; ECF No. 226 ¶11(c), 67, 70-78, 80, 82, and 84); and (2) that the remaining conduct described in Section I (that is, conduct other than the official communications with the Vice President) was not official, and, in the alternative, that the Government has rebutted any presumptive immunity for any of the remaining conduct that the Court finds to be official. The Government requests alternative rulings regarding rebuttal for all conduct the Court finds to be unofficial, to buttress the Court’s record, ensure thorough and efficient appellate review, and minimize the risk of successive rounds of interlocutory appeal.
Furthermore, based on the determination that all the conduct described in Section I is not immune from prosecution, and because Section I encompasses all the allegations in the superseding indictment, the Court should further specify: (3) that the defendant is subject to trial on the superseding indictment; and (4) that the Government is not prohibited at trial from using evidence of the conduct described in Section I, subject at a later date to non-immunity based objections and this Court’s admissibility rulings under the Federal Rules of Evidence.
[Emphasis added.]
In the face of what conservative Judge Luttig, he of the Federalist Society, called the abominable decision in Trump v. United States, Jack Smith convened a new grand jury, dispensed with some important testimony, and rewrote his superseding indictment in the Trump election interference case. This new grand jury voted out his indictment. And so 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,” then to “Hang Mike Pence,” and, most recently, “Presidential immunity—or the lack thereof.”
Together with “January 6, 2021”, it is clear to me what a compelling case Jack Smith has offered Judge Chutkan, and ultimately the Supreme Court showing that the acts committed by Donald Trump were all about his efforts as a candidate to remain in power and, therefore, not entitled to the immunity the Supreme Court has bestowed upon him. Instead, as Jack Smith maintains, the Court should require him to sit before a jury of his peers and hear and rebut if he can the evidence presented against him.
Clearly, everything has changed with Donald Trump’s return to power. We already know he considers Jack Smith one of the enemies of his people. The question is whether or not all of this great work he has done is in vain, and whether or not enough Americans still believe in the rule of law.
I am glad I have done this work and hope against hope that we can prevent the worst excesses of Project 2025. I hope we can prevent them from destroying the Department of Education, banning all the books that challenge them, and wiping out the many inconveniences of our history. And I hope that some people will be able look back at and study the evidence Jack Smith assembled to prosecute the crimes of those who attempted to hijack the 2020 election.
