In his 165-page superseding indictment for United States v. Donald J. Trump, Special Counsel Jack Smith describes how Donald Trump had arrived at a fairly unique strategy for the 2020 election. Three days before election day, Steve Bannon, “a private political advisor” who had worked for Trump’s 2016 election and had recently rejoined the reelection campaign, described Trump’s plan this way: “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.”
Here is a partial transcript of Trump campaign advisor Steve Bannon’s remark on “The War Room” on Halloween 2020:
I began my discussion of Smith’s argument that his indictment can survive the Supreme Court’s interpretation of presidential immunity in “It doesn’t matter if you won or lost.”
Smith makes clear that Trump had been thinking about his denial strategy for a while, many times repeating the claim that he couldn’t possibly lose unless the election was stolen from him. Smith writes:
At one point long after the defendant had begun spreading false fraud claims, a White House staffer traveling with the defendant, overheard him tell family members that ‘it doesn’t matter if you won or lost the election. You still have to fight like hell.’ (Emphasis added.)
Let’s pick up with Smith’s account of how “The Defendant Aimed Deceit at the Targeted States to Alter Their Ascertainment and Appointment of Electors”:
Shortly after election day, the defendant began to target the electoral process at the state level by attempting to deceive state officials and to prevent or overturn the legitimate ascertainment and appointment of Biden’s electors. As President, the defendant had no official responsibilities related to the states’ administration of the election or the appointment of their electors, and instead contacted state officials in his capacity as a candidate … (Emphasis added.)
Smith details how the defendant and his co-conspirators worked to deny the real results in “Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, as well as across these and other states that used certain voting machines.” Then they schemed to provide fraudulent electors. Smith quotes a politician who refused to call the Arizona legislature into session to comply with the conspiracy:
On December 4, [P18 blacked out] released a public statement in which he explained that he did not have the authority to use the legislature ‘to reverse the results of the election’ and that doing so would constitute an attempt ‘to nullify the people’s vote based on unsupported theories of fraud.’ [P18 blacked out] made clear that he was disappointed with the legitimate election results because he ‘voted for President Trump and worked hard to reelect him’ but would not ‘violate current law to change the outcome of a certified election.’ (Emphasis added.)
Bowers’ determination to adhere to the law was met with sustained abuse:
In the post-election period, [P18 blacked out] was harassed; on several occasions, individuals gathered outside [P18 blacked out]’s home with bullhorns and screamed and honked their vehicle horns to create noise. Once, an individual in visible possession of a pistol and wearing a t-shirt in support of a militia group came onto [P18 blacked out]’s property and screamed at him. At the time of these events, [P18 blacked out]’s daughter was at home and was very ill …
[In Georgia,] the conspirators also set in motion a sensational and dangerous lie about election workers at State Farm Arena that would result in the defendant’s supporters harassing and threatening those workers. First, [P23 blacked out] one of the defendant’s private attorneys, claimed that more than 10,000 dead people had voted in Georgia. Next, [P24 blacked out], an agent of the defendant, played misleading excerpts of closed-circuit camera footage from State Farm Arena and insinuated that it showed election workers committing misconduct — counting ‘suitcases’ of illegal ballots.
Lastly, based on the false fraud allegations, [CC2 blacked out] who had already been engaged as a private lawyer for the defendant but did not disclose that at the hearing — encouraged the Georgia legislators to decertify the state’s legitimate electors. While the hearing was ongoing, the defendant simultaneously amplified the misinformation about the State Farm Arena election workers, falsely tweeting, ‘Wow! Blockbuster testimony taking place right now in Georgia. Ballot stuffing by Dems when Republicans were forced to leave the large counting room. Plenty more coming, but this alone leads to an easy win of the State!’ He did this just after re-tweeting two of his Campaign account’s Tweets that promoted the false claim about election workers at State Farm Arena.
Smith continues:
On December 10, however, [CC1 blacked out] further perpetuated the false State Farm Arena claim when he appeared … before the Georgia House of Representatives’ Government Affairs Committee. During it, he displayed some of the same footage as had been used in the December 3 hearing that had been debunked in the interim by Georgia officials, and nonetheless claimed that it showed ‘voter fraud right in front of people’s eyes.’ He then named two election workers [P29 blacked out] and mother [P30 blacked out], accused them of ‘quite obviously surreptitiously passing around USB ports as if they are vials of heroin or cocaine,’ and suggested that they were criminals whose ‘places of work, their homes, should have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter fraud.’ As these false claims about [P30 blacked out] and [P29 blacked out] spread, the women were barraged by racist death threats …
Indeed, to this day, the defendant has never stopped falsely attacking [P30 blacked out] and [P29 blacked out]. Although none of the false claims against them were ever corroborated, the defendant has continued to levy them on social media, including when the defendant attacked [P30 blacked out] January 2023 just after their testimony to congressional investigators was made public.
Throughout the post-election period, the defendant used Twitter to publicly attack Georgia Governor [P17 blacked out] with particular aggression; in the thirty-five days between November 30, 2020 and January 3, 2021, the defendant tweeted critically about [P17 blacked out] by name or title, more than forty times … ‘I will easily & quickly win Georgia if Governor @[P17 blacked out] or the Secretary of State permit a simple signature verification. Has not been done and will show large scale discrepancies. Why are these two ‘Republicans’ saying no? If we win Georgia, everything else falls in place!’ …‘How does Governor@[P17 blacked out] allow certification of votes without verifying signatures and despite the recently released tape of ballots being stuffed? His poll numbers have dropped like a rock. He is finished as governor!’ (Emphasis added.)
Smith recounts how on January 2, Georgia Secretary of State [P33 blacked out] was interviewed on FOX News and declared “that various rumors of election fraud were false, and the defendant had lost in Georgia’:
Our office has been very busy with what I call the rumor whack-a-mole. Every day, a rumor will pop up and then we whack it down. What we do is, we basically whack it down with the truth. And people can’t handle the truth sometimes because they’re very disappointed in the results. And I get that. I voted for President Trump also, but at the end of the day, we did everything we could. We did an audit of the race; President Trump still lost. Then we did a full recount; President Trump still lost … we had a safe, secure process.
Smith continues:
Shortly after seeing the interview, the defendant set up a call with [P33 blacked out] to discuss his pending private lawsuit, Trump v. Kemp, in which [P33 blacked out] was a named defendant. For this reason, [P33 blacked out] at first hoped to avoid speaking with the defendant but ultimately acquiesced because the defendant was persistent … Also because of the pending lawsuit [P33 blacked out] arranged for general counsel [P35 blacked out] to participate. Joining the defendant on the call were Chief of Staff [P21 blacked out] and three private attorneys – [P32 blacked out] and [P36 blacked out] counsel of record in Trump v Kemp and attorneys whom [CC2 blacked out] had emailed about the defendant’s false verification and [P31 blacked out] whom [P21 blacked out] introduced on the call as someone ‘who is not attorney of record but who has been involved.’
Yes, Donald Trump told the Secretary of State of Georgia, “I just want to find 11,780 votes.” Smith continues:
The defendant raised multiple false claims of election fraud, each of which [P33 blacked out] refuted in turn. When the defendant attacked [P30 blacked out], called her ‘a professional vote scammer and hustler’ and mentioned her dozens of times throughout the call, [P33 blacked out] said ‘You’re talking about the State Farm video. And I think it’s extremely unfortunate that [CC1 blacked out] or his people, they sliced and diced that video and took it out of context’ …
When the defendant claimed that 5.000 dead people had voted in Georgia, [P33 blacked out] said: ‘Well, Mr. President, the challenge you have is the data you have is wrong … The actual number were two. Two. Two people that were dead that voted. And so that’s wrong, that was two.’ When the defendant claimed that thousands of out-of-state voters had cast ballots, [P33 blacked out] counsel [P35 blacked out] responded, ‘We’ve been going through each of those as well, and those numbers that we got, that Ms. [P31 blacked out] was just saying, they’re not accurate.’
At one point, the defendant became frustrated after both [P33 blacked out] and [P35 blacked out] explained repeatedly that his claims had been investigated and were not true and stated, ‘And you’re gonna to find that they are — which is totally illegal — it’s, it’s, it’s more illegal for you than it is for them because, you know what they did and you’re not reporting it. That’s a criminal, you know, that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you and to your lawyer. That’s a big risk.’ (Emphasis added.)
As for Michigan:
On November 20, three days before Michigan’s Governor signed a certificate of ascertainment appointing Biden’s electors based on the popular vote, the defendant met with [P37 blacked out] and [P38 blacked out], Michigan’s Senate Majority Leader and Speaker of the House, at the Oval Office … The same day that he contacted [P37 blacked out] and [P38 blacked out], the defendant issued a false Tweet: ‘In Detroit, there are FAR MORE VOTES THAN PEOPLE. Nothing can be done to cure that giant scam. I win Michigan!’ … Both [P37 blacked out] and [P38 blacked out] assumed that the defendant wanted to see them to discuss claims of election fraud, and they wanted to be firm that they had not seen evidence that would change the outcome of the election …
After some small talk with the legislators in the Oval Office, the defendant raised various fraud claims, including that he had lost Michigan because of fraud or misconduct in Wayne County, where Detroit is located. [P37 blacked out] corrected the defendant and told him that he had lost primarily because in two routinely Republican counties, the defendant had underperformed with educated females, and if he had received the same number of votes there as the two winning local sheriffs, he likely would have won Michigan … the defendant dialed [CC1 blacked out] into the meeting and said ‘[CC1 blacked out] tell them what’s going on.’ [CC1 blacked out] then launched into a fraud monologue. Finally, [P37 blacked out] interrupted and asked, ‘So when are you going to file a lawsuit in Michigan?’— a question that [CC1 blacked out] ignored and did not answer.
Immediately after the meeting. [P37 blacked out] and [P38 blacked out] released a public statement in which they stated that they had ‘not yet been made aware of any information that would change the outcome of the election in Michigan.’ On November 21. the defendant acknowledged [P37 blacked out] and [P38 blacked out]’s statement when he tweeted. ‘This is true, but much different than reported by the media’ and implicitly conceded that he had not provided evidence of fraud yet when he added, ‘We will show massive and unprecedented fraud!’ Days later, the defendant’s Campaign declined to request a state-wide recount in Michigan, for which it would have had to pay unless the recount succeeded in changing the outcome of the election.
Despite failing to establish any valid fraud claims, [CC1 blacked out] followed up with [P37 blacked out] and [P38 blacked out] and attempted to pressure them to use the Michigan legislature to overturn the valid election results. On December 4, [CC1 blacked out] sent a message … ‘Looks like Georgia may well hold some factual hearings and change the certification under Art l sec 1 cl 2 of the Constitution. As [CC2 blacked out] explained they don’t just have the right to do it but the obligation. … Help me get this done in Michigan … I need you to pass a joint resolution from the Michigan legislature that states that, * the election is in dispute, * there’s an ongoing investigation by the Legislature, and * the Electors sent by Governor Whitmer are not the official Electors of the State of Michigan and do not fall within the Safe Harbor deadline of Dec 8 under Michigan law.’ Campaign operative [P5 blacked out] was involved in the drafting of this message with the assistance of [P41 blacked out] who was associated with the defendant’s Campaign efforts in Michigan. The following day [CC1 blacked out] shared the draft with the defendant, sending it to his executive assistant, [P42 blacked out] by email. These efforts failed. On December 14, the day that duly-appointed electors across the country met and cast their electoral votes. (Emphasis added.)
As for Nevada:
On November 17, in Law v. Whitmer, agents of the defendant in Nevada filed suit, claiming ‘substantial irregularities, improprieties, and fraud’ in the presidential election, including based on machines used in ballot signature matching and votes by non-resident and dead voters. The defendant approved a press conference by his surrogates announcing the suit.
On November 19, [P43 blacked out] the RNC Chief Counsel, sent an email to [P44 blacked out] an RNC spokesperson, warning about inaccuracies in the suit: ‘Just FYI that I don’t believe the claims in the contest regarding dead voters, those voting from out-of-state, etc. are substantiated. We are working with the campaign on a data matching project and those numbers are going to be a lot lower than what the NV people have come up with. They are also targeting our military voters. To be frank, the contest has little chance of succeeding.’ …
Notwithstanding the RNC Chief Counsel’s warning, the defendant re-tweeted and amplified news of the lawsuit on November 24, calling it ‘Big News!’ that a Nevada Court had agreed to hear it. But the defendant did not similarly promote the fact that within two weeks, on December 4, the Nevada District Court dismissed Law v. Whitmer, finding in a detailed opinion that ‘there is no credible or reliable evidence that the 2020 General Election in Nevada was affected by fraud,’ including through the signature-match machines, and that Biden won the election in the state.
Smith goes on to note, “Later, in his Ellipse speech on January 6, the defendant repeated multiple claims explicitly rejected by Nevada courts.”
As for Pennsylvania:
Two days after the election, on November 6, the defendant called [P46 blacked out] the Chairman of the Pennsylvania Republican Party … The defendant asked [P46 blacked out] how, without fraud, he had gone from winning Pennsylvania on election day to trailing in the days afterward. Consistent with what Campaign staff already had told the defendant, [P46 blacked out] confirmed that it was not fraud; it was that there were roughly 1,750,000 mail-in ballots still being counted in Pennsylvania, which were expected to be eighty percent for Biden. Over the following two months, the defendant spread false claims of fraud in Pennsylvania anyway.
In early November, in a Campaign meeting, when the defendant suggested that more people in Pennsylvania voted than had checked in to vote. Deputy Campaign Manager [P3 blacked out] corrected him. Around the same time. Philadelphia City Commissioner [P47 blacked out] appeared on television and stated that there was no evidence of widespread fraud in Philadelphia. After seeing the interview, the defendant targeted [P47 blacked out] tweeting. ‘A guy named [P47 blacked out] a Philadelphia Commissioner and so-called Republican (RINO), is being used big time by the Fake News Media to explain how honest things were with respect to the Election in Philadelphia. He refuses to look at a mountain of comiption & dishonesty. We win!’ As a result of the defendant’s attack, threats that [P47 blacked out] already was receiving became more targeted and detailed — and included his address and the names of his family members.
On the defendant’s behalf, [CC1 blacked out] too spread patently false claims about Pennsylvania. [CC1 blacked out] and [P12 blacked out] attended an unofficial hearing with Republican state legislators in a Gettysburg hotel conference room. The defendant called in, claimed to have been watching, and demanded that the election in Pennsylvania ‘has to be turned around.’ During the event [CC1 blacked out] falsely stated that Pennsylvania issued 1.8 million absentee ballots and received 2.5 million in return. The claim was rooted in an obvious error — the comparison of the number of ballots sent out in the primary election to the number of ballots received in the general election. After seeing [CC1 blacked out] make this claim, [P43 blacked out] the RNC’s Chief Counsel, tweeted publicly, ‘This is not true.’ In the following days. Campaign staff internally confirmed that [CC1 blacked out] was lying; when one Campaign staffer wrote in an email that [CC1 blacked out]’s claim was ‘just wrong’ and ‘there’s no way to defend it,’ [P3 blacked out] responded ‘We have been saying this for a while. It’s very frustrating.’ Likewise, in late November or December, [P9 blacked out] informed the defendant directly that a claim [CC1 blacked out] was spreading, that ‘Pennsylvania received 700,000 more mail-in ballots than were mailed out,’ was ‘bullshit’ and explained the error.
[P43 blacked out] followed up on his public Tweet in a private email on November 28 to [P44 blacked out], the RNC spokesperson, expressing his concern about [CC1 blacked out] and [P12 blacked out]’s spread of disinformation: I’m really not trying to give you a hard time but what [CC1 blacked out] and [P12 blacked out] are doing is a joke and they are getting laughed out of court. It’s setting us back in our fight for election integrity and they are misleading millions of people who have wishful thinking that the president is going to somehow win this thing.
When [CC1 blacked out] learned of [P43 blacked out]’s tweet and email, on November28, he called [P43 blacked out] and left a threatening voicemail, stating, ‘I really do need an explanation for what you said today because if there isn’t a good one, you should resign. Got it? So call me or I’ll call the boss and get you to resign. Call me. It’d be better for you if you do.’
[CC1 blacked out] also contacted RNC Chairwoman [P39 blacked out] to demand that [P43 blacked out] be fired and thereafter [P43 blacked out] was relieved of his duties as RNC Chief Counsel.
On December 3, four Republican leaders of the Pennsylvania legislature issued a public letter stating that the General Assembly lacked the authority to overturn the popular vote and appoint its own slate of electors, and that doing so would violate the state Election Code and Constitution. [P48 blacked out], an agent of the defendant who worked closely with [CC1 blacked out] —issued a Tweet showing the four legislators’ names and signatures and wrote, ‘These are the four cowardice Pennsylvania legislators that intend to allow the Democrat machine to #StealtheVote!# Cowards# Liars# Traitors#’ while linking to the legislators’ Twitter accounts. On Sunday December 6, at 12:56 a.m., from the White House residence — having just returned from a political rally in Valdosta, Georgia — the defendant re-tweeted and amplified! [P48 blacked out]’s post. (Emphasis added.)
As for Wisconsin:
On November 29, a recount that the defendant’s Campaign had petitioned and paid for confirmed that Biden had won in Wisconsin — and increased the defendant’s margin of defeat. On December 14, the Wisconsin Supreme Court rejected the Campaign’s election lawsuit there. As a result, on December 21, Wisconsin’s Governor signed a certificate of final determination confirming the prior certificate of ascertainment that established Biden’s electors as the valid electors for the state.
In response, the defendant issued a series of Tweets attacking [P49 blacked out], the Wisconsin Supreme Court Justice who had written the majority opinion …
Two years ago, the great people of Wisconsin asked me to endorse a man named [P49 blacked out] for State Supreme Court Justice, when he was getting destroyed in the Polls against a tough Democrat Candidate who had no chance of losing. After my endorsement, [P49 blacked out] easily won! WOW, he just voted against me in a Big Court Decision on voter fraud (of which there was much!), despite many pages of dissent from three highly respected Justices. One thing has nothing to do with another, but we ended up losing 4-3 in a really incorrect ruling! Great Republicans in Wisconsin should take these 3 strong decisions to their State Legislators and overturn this ridiculous State Election. We won in a LANDSLIDE!
After the defendant’s Tweet, the state marshals responsible for [P49 blacked out]’s safety arranged to provide [P49 blacked out] with additional police protection based on social media traffic and other threatening communications. (Emphasis added.)
As for voting machines in multiple states:
Throughout the post-election period, the defendant and co-conspirators repeatedly made claims about the security and accuracy of voting machines across multiple states, despite the fact that they were on notice that the claims were false.
On November 14, in the Tweet announcing that [CC1 blacked out] was to lead his Campaign’s legal efforts, the defendant also named [CC3 blacked out], a private attorney who was fixated on voting machine claims, and [P10 blacked out], another private attorney. Two days later, on November 16. on the defendant’s behalf, executive assistant [P42 blacked out] sent [CC3 blacked out] and other private attorneys an email, titled ‘From POTUS,’ attaching a document containing bullet points critical of company [C3 blacked out] that manufactured voting machines used in certain states, and writing, ‘See attached – Please include as is, or almost as is, in lawsuit.’ [CC3 blacked out] responded nine minutes later, writing, ‘IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.’
On November 17. [P50 blacked out] the director of the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA), publicly tweeted that a group of private election security experts concluded that claims of computer-based election fraud ‘either have been unsubstantiated or are technically incoherent.’
Two days later, on November 19, [CC1 blacked out], [CC3 blacked out], [P10 blacked out] and others held a press conference at the RNC headquarters, on behalf of the defendant and his Campaign. During it, [CC3 blacked out] made false and factually impossible claims regarding [C3 blacked out] and the integrity of the country’s election infrastructure. That night, Fox News television personality [P51 blacked out] stated on air that because of [CC3 blacked out]’s incendiary comments about voting machines, he had invited her on his television program. He further stated, ‘[b]ut she never sent us any evidence, despite a lot of requests, polite requests. Not a page. When we kept pressing, she got angry and told us to stop contacting her. When we checked with others around the Trump Campaign, people in positions of authority, they told us [CC3 blacked out] has never given them any evidence either … she never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.’
The defendant saw his private attorneys’ RNC press conference and [P51 blacked out]’s discussion of [CC3 blacked out] and he acknowledged to [P4 blacked out] that [CC3 blacked out] had appeared ‘unhinged’ in the press conference … In casual conversation after another meeting had ended, the defendant told [P7 blacked out] and [P45 blacked out] that [P51 blacked out] had ‘eviscerated’ or ‘destroyed’ [CC3 lacked out] … In the same time period, when [P9 blacked out] told the defendant that [CC3 blacked out]’s claims were unreliable and should not be included in lawsuits, the defendant agreed that he had not seen anything to substantiate [CC3 blacked out]’s allegations.
On November 22, notwithstanding the defendant’s Tweet from eight days prior announcing [CC3 blacked out]’s involvement, [CC1 blacked out] issued a statement on behalf of the Campaign distancing the defendant from [CC3 blacked out]. ‘[CC3 blacked out] is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.’ (Emphasis added.)
Smith continues:
Nonetheless, the defendant continued to support and publicize [CC3 blacked out]’s knowingly false claims. For example, within days of [CC1 blacked out]’s statement, the defendant promoted a lawsuit that [CC3 blacked out] was about to file, tweeting on November 24: ‘BREAKING NEWS: says @[CC3 blacked out] says her lawsuit in Georgia could be filed as soon as tomorrow and says there’s no way there was anything but widespread election fraud. #MAGA #AmericaFirst #Dobbs.’ [CC3 blacked out] filed a lawsuit the next day against the Governor of Georgia falsely alleging ‘massive election fraud’ accomplished through [C3 blacked out] election software and hardware. The defendant again promoted the lawsuit in a Tweet. The lawsuit was dismissed within two weeks, on December 7.
On November 29, [P50 blacked out] who was no longer the CISA Director, appeared on the television program 60 Minutes. [P50 blacked out] stated that he was confident that the election had been secure and ‘that there was no manipulation of the vote on the machine count side.’ In response, the defendant tweeted publicly about [P50 blacked out]’s appearance: ‘@60Minutes never asked us for a comment about then ridiculous, one sided story on election security, which is an international joke. Our 2020 Election, from poorly rated [C3 blacked out] to a Country FLOODED with unaccounted for Mail-In ballots, was probably our least secure EVER!’
A few days later, [P10 blacked out] appeared on a radio program as the defendant’s agent and said that because of [P50 blacked out]’s comments to promote confidence in the security of the election infrastructure, [P50 blacked out] ‘should be drawn and quartered. Taken out at dawn and shot.’ Thereafter, [P50 blacked out] was subjected to death threats. In a press conference on December 1 that the defendant acknowledged watching, [P25 blacked out] a Georgia election official decried [P10 blacked out] and the defendant’s public statements spreading disinformation and said that if they did not stop, ‘someone is going to get killed.’
On December 1, Attorney General [P52 blacked out] stated publicly that the Justice Department had not seen evidence of fraud sufficient to change the election results. With respect to voting machines, he said, ‘There’s been one assertion that would be systemic fraud and that would be the claim that machines were programmed essentially to skew the election results. And the DHS and DOJ have looked into that, and so far, we haven’t seen anything to substantiate that.’ …
In mid-December, the defendant spoke with RNC Chairwoman [P39 blacked out] and asked her to publicize and promote a private report that had been released on December 13 that purported to identify flaws in the use of [C3 blacked out] machines m Antrim County. Michigan. [P39 blacked out] refused, telling the defendant that she already had discussed the report with [P38 blacked out] Michigan’s Speaker of the House, who had told her that the report was inaccurate. [P39 blacked out] conveyed to the defendant [P38 blacked out]’s exact assessment: the report was fucking nuts.
On January 2, during the defendant’s call with Georgia Secretary of State [P33 blacked out], [P33 blacked out] said of false claims regarding voting machines, ‘I don’t believe that you’re really questioning the [C3 blacked out] machines. Because we did a hand re-tally, a 100 percent re-tally of all the ballots, and compared them to what the machines said and came up with virtually the same result. Then we did the recount, and we got virtually the same result. So I guess we can probably take that off the table.’ In response, the defendant falsely claimed that ‘in other states, we think we found tremendous corruption with [C3 blacked out] machines, but we’ll have to see.’
At the Ellipse on January 6, the defendant and co-conspirators who spoke at the rally continued to make unsubstantiated and false claims about [C3 blacked out] machines. [CC1 blacked out] claimed that in the U.S. Senate run-off election in Georgia the day before, ‘the votes were deliberately changed by the same algorithm that was used in cheating President Tramp and Vice President Pence.’ [CC2 blacked out] continued the false attack: ‘We now know because we caught it live last time in real time, how the machines contributed to that fraud … They put those ballots in a secret folder in the machines sitting there waiting, until they know how many they need. And then the machine after the close of polls, we now know who’s voted. And we know who hasn’t. And I can now in that machine match those unvoted ballots with an unvoted voter and put them together in the machine … We saw it happen in real time last night and it happened on November 3rd as well.’
In his own speech, the defendant again raised the false specter of ‘the highly troubling matter of [C3 blacked out]’ and lied about machines flipping votes from the defendant to Biden and an ‘astronomical and astounding’ error rate in the machines’ ballot scanning.
D. The Defendant Organized and Caused His Electors to Submit Fraudulent Certificates Creating the False Appearance That States Submitted Competing Electoral Slates
By late November 2020, every effort — both legitimate and illegitimate — that the defendant had made to challenge the results of the election had been unsuccessful. The defendant, his Campaign, and their allies had lost or withdrawn one election lawsuit after another in the seven targeted states. And the defendant and co-conspirators’ efforts to overturn the legitimate vote count through a pressure campaign on state officials, and through false claims made directly to state legislators in formal or pseudo-hearings, continued to fail. So in early December, the defendant and his co-conspirators developed a new plan regarding the targeted states that the defendant had lost (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin): to organize the people who would have served as the defendant’s electors had he won the popular vote, and cause them to sign and send to Pence, as President of the Senate, certifications in which they falsely represented themselves as legitimate electors who had cast electoral votes for the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulent electoral votes — mere pieces of paper without the lawful imprimatur of a state executive — to falsely claim that in his ministerial role presiding over the January 6 certification, Pence had the authority to choose the fraudulent slates over the legitimate ones, or to send the purportedly ‘dueling’ slates to the state legislatures for consideration anew.
The fraudulent elector plan’s arc and obstructive purpose is reflected in a series of memoranda drafted in late November and early December by [CC5 blacked out] an attorney who volunteered to assist the defendant’s Campaign in lawsuits challenging the election in Wisconsin. Beginning with a memorandum drafted on November 18. [CC5 blacked out] advocated that the defendant’s elector nominees in Wisconsin meet and cast votes on the date required by the ECA (in 2020, December 14) in the event that an ongoing recount in the state reversed the defendant’s loss there. But this course of action … quickly transformed into a corrupt strategy to overturn the legitimate election results. [CC5 blocked out] revealed this obstructive plan in two additional memoranda, dated December 6 and December 9, which proposed that the defendant’s elector nominees in six of the targeted states … meet on December 14, sign fraudulent certifications, and send them to the Vice President to manufacture a fake controversy during the January 6 congressional certification.
The defendant personally set the fraudulent elector plan in motion in early December, ensured that it was carried out by co-conspirators and Campaign agents in the targeted states, and monitored its progress. By December 5, the defendant was starting to think about Congress’s role in the election process; for the first time, he mentioned to Pence the possibility of challenging the election results in the House of Representatives. In the same call, Pence told the defendant that the Georgia Bureau of Investigation was investigating their race.
On December 6, the same day that [CC5 blacked out], the defendant and [CC2 blacked out] called RNC Chairwoman [P39 blacked out] out of the blue … [CC2 blacked out] told [P39 blacked out] that he and the defendant wanted the RNC ‘to help the campaign assemble the electors in the states where we had legal challenges, or litigation that was ongoing … in case any of that litigation changed the result of a state so that it would meet the constitutional requirement of electors meeting. When the call ended [P39 blacked out] immediately called [P3 blacked out] one of the defendant’s deputy Campaign managers, and relayed her conversation with the defendant and [CC2 blacked out]. After [P3 blacked out] assured [P39 blacked out] that the Campaign was ‘on it,’ [P39 blacked out] called the defendant back and told him so. On the same day, from his personal email account [P21 blacked out] forwarded to Campaign staff [CC5 blacked out]’s November 18 memorandum and wrote, ‘We just need to have someone coordinating the electors for states.’ And the following day, on the evening of December 7, [CC1 blacked out] sent [P39 blacked out] a text message stating in part, ‘I have lawyers assigned in each state working on Dec 14 electors meeting and what they need. I will send you a list.’
The defendant’s co-conspirators worked with his Campaign staff, and used his pre-election Campaign apparatus, to execute the fraudulent elector plan. The defendant communicated with [CC1 blacked out] and [CC2 blacked out] about the plan, and they in turn communicated with [CC6 blacked out] and [CC5 blacked out] Ultimately, [P5 blacked out], [P19 blacked out] and other Campaign staff and agents helped carry out [CC5 blacked out]’s plans.
On December 8 [CC5 blacked out] spoke on the phone with [P53 blacked out] a private attorney whom [CC1 blacked out] and [CC6 blacked out] had identified as a contact for the plan m Arizona. Following the call, [P53 blacked out] recounted the conversation in an email:
I just talked to the gentleman who did that memo, [CC5 blacked out] His idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren’t legal under federal law – because they’re not signed by Governor); so that members of Congress can fight about whether they should be counted on January 6*. (They could potentially argue that they’re not bound by federal law because they’re Congress and make the law, etc.) Kind of wild/creative — I’m happy to discuss. My comment to him is that I guess there’s no harm in it, (legally at least) — i.e. we would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted …
The day before the defendant’s electors were scheduled to meet and sign fraudulent certificates of vote, the defendant asked Campaign advisor [P4 blacked out] for an update on the elector plan and directed [P4 blacked out] to issue a statement … After [P4 blacked out] proposed a communication plan for the Campaign on the elector vote, [P9 blacked out] wrote to [P4 blacked out] ‘I’ll call soon and we’ll talk with boss.’ The participants then discussed to whom a Campaign statement could be attributed. [P3 blacked out] wrote: ‘Here’s the thing, the way this has morphed it’s a crazy play so I don’t know who wants to put their name on it.’ [P4 blacked out] then shared with those on the text thread the invitees to the call [CC1 blacked out] was convening: [CC1 blacked out], [CC6 blacked out], [P12 blacked out], [P19 blacked out], [P55 blacked out], [P56 blacked out], and derogatorily referred to them as the ‘Star Wars bar,’ meaning a motley assortment of characters, and in this case specifically ones whose professional competence [P4 blacked out] doubted and whom he personally would not choose to hire. [P9 blacked out] responded ‘Certifying illegal votes.’ Thereafter, the text participants collectively agreed that no message would go out under their names because they ‘can’t stand by it.’ In the midst of these text messages, [P9 blacked out] [P4 blacked out] [P3 blacked out] had a nineteen minute call with the defendant.
In practice, the fraudulent elector plan played out somewhat differently in each targeted state. In general, the co-conspirators deceived the defendant’s elector nominees in the same way that the defendant and [CC2 blacked out] deceived [P39 blacked out] by falsely claiming that their electoral votes would be used only if ongoing litigation were resolved in the defendant’s favor. A select few of the defendant’s agents and elector nominees, however, had insight into the ultimate plan to use the fraudulent elector certificates to disrupt the congressional certification on January 6. In several states, the defendant, his co-conspirators, and agents were unable to convince all of the defendant’s elector nominees to participate. [P57 blacked out], for instance, a former U.S. Representative and U.S. Attorney and one of the defendant’s elector nominees in Pennsylvania who opted out of the plan, told the state party vice chair trying to organize the defendant’s electors that he would not participate because the plan did not follow the proper process and was illegal.
When electors like [P57 blacked out] declined, the conspirators and agents had to recruit substitutes willing to go along with the plan. Other electors who participated based on the conspirators’ false assurances that their votes were only a contingency were later surprised to learn that they were used on January 6 — and would not have agreed to participate if the conspirators had been truthful about their plan.
In Pennsylvania, the defendant’s elector nominees’ concern about the propriety of the plan presented a problem for the conspirators. In text messages that [P5 blacked out] and [CC6 blacked out] exchanged on December 11 into the early morning hours of December 12, [P5 blacked out] told [CC6 blacked out] the state Republican Party Chairman whom the defendant had called shortly after the election — ‘is winding up the electors. Telling them if the[y] sign the petition they could be prosecuted. Need a counter argument or someone has to call him and tell him to stop.’ …
On December 12, [CC1 blacked out], [CC blacked out], [CC6 blacked out] and others held a conference call organized by the Campaign to placate the defendant’s Pennsylvania electors. [CC1 blacked out] falsely assured them that their certificates of vote would be used only if the defendant succeeded in litigation. During the call, some of the defendant’s conspirators and agents exchanged text messages expressing frustration at the electors’ concerns. [P5 blacked out] wrote, ‘Whoever selected this slate should be shot.’ [P12 blacked out] responded ‘These people are making this so much more complicated than it needs to be omg’ and ‘We couldn’t have found 20 people better than this??? [P5 blacked out] agreed, writing, ‘We need good substitutes.’ When the possibility arose that the electors’ certificates of vote include conditional language making clear that they were not yet the duly-appointed electors. wrote. ‘The other States are signing what prepared – if it gets out we changed the language for PA it could snowball.’
On December 13, the eve of when the electors were to meet, the defendant was preoccupied with preventing the certification of the electoral vote. He tweeted: ‘Swing States that have found massive VOTER FRAUD, which is all of them, CANNOT LEGALLY CERTIFY these votes as complete & correct without committing a severely punishable crime. Everybody knows that dead people, below age people, illegal immigrants, fake signatures, prisoners, and many others voted illegally. Also, machine ‘glitches’ (another word for FRAUD), ballot harvesting, non-resident voters, fake ballots, ‘stuffing the ballot box’, votes for pay, roughed up Republican Poll Watchers, and sometimes even more votes than people voting, took place in Detroit, Philadelphia, Milwaukee, Atlanta, Pittsburgh, and elsewhere, in all Swing State cases, there are far more votes than are necessary to win the State, and the Election itself. Therefore, VOTES CANNOT BE CERTIFIED. THIS ELECTION IS UNDER PROTEST!’
Ultimately, the Pennsylvania electors insisted upon using conditional language in their elector certificates to avoid falsely certifying that they were duly-appointed electors … Notwithstanding obstacles, the defendant and his co-conspirators successfully organized his elector nominees and substitutes to gather on December 14 in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulent votes to Washington, D.C., in order to falsely claim at the congressional certification that certain states had sent competing slates of electors.
When possible, the defendant and co-conspirators tried to have the fake electoral votes appear to be in compliance with state law governing how legitimate electors vote. For example, the co-conspirators knew that some states required that the duly-appointed electors meet and cast their votes in the state capitol building. To make it seem like they had complied with this requirement, state officials were enlisted to provide the fraudulent electors with access to state capitol buildings so that they could gather and vote there. In many cases, however, the conspirators and fraudulent electors were unable to comply with state law for legitimate electors. For example, Pennsylvania law required the Governor to give notice whenever an elector was substituted, but the conspirators could not arrange for the Governor to give notice when [P46 blacked out] and others opted out and had to be replaced. Thereafter [CC5 blacked out] and others brainstormed fake excuses for their failure to follow state law, writing, ‘maybe we can use Covidl9 as an excuse for the Governor not giving notice.’
Then, on December 14 — the date that duly-appointed electors across the country met to cast their votes, and when the defendant’s fraudulent electors in seven states mimicked them — [P39 blacked out] followed up with the defendant. When she received an internal RNC email titled ‘Electors Recap – Final,’ which summarized the day’s activities with respect to electors and included a list of six ‘contested’ states in which the defendant’s electors voted, she forwarded it to the defendant’s executive assistant [P42 blacked out], who responded, ‘It’s in front of him!’ …
At the same time that the defendant’s fraudulent electors were preparing to gather and cast fraudulent votes, the defendant’s co-conspirators began planning how to use the fraudulent votes to overturn the election results at the January 6 certification. On December 13, [CC5 blacked out] sent [CC1 blacked out] a memorandum that envisioned a scenario in which Pence would use the fraudulent slates as a pretext to claim that there were dueling slates of electors from the targeted states and negotiate a solution to defeat Biden. On the same day, the defendant resumed almost daily direct contact with [P1 blacked out] who maintained a podcast that disseminated the defendant’s false fraud claims. On December 14 [P1 blacked out]’s podcast focused on spreading lies about the defendant’s fraudulent electors —including the false claim that their votes were merely a contingency in the event the defendant won legal challenges in the targeted states.
On December 16, [CC5 blacked out] traveled to Washington with a group of private attorneys who had done work for the defendant’s Campaign in Wisconsin for a photo opportunity with the defendant in the Oval Office. During the encounter, the defendant complained about Wisconsin Supreme Court Justice [P49 blacked out] who two days earlier had cast the deciding vote in rejecting the defendant’s election challenge in the state. As the group was leaving, the defendant spoke directly — and privately — to [CC5 blacked out].
As late as early January, the conspirators attempted to keep the full nature of the fraudulent elector plan secret. On January 3, for instance, in a private text message exchange, [CC6 blacked out] wrote to [CC5 blacked out] ‘Careful with your texts on text groups. No reason to text things about electors to anyone but [CC2 blacked out] and me.’ [CC5 blacked out] responded ‘K’ and [CC6 blacked out] followed up ‘I’m probably a bit paranoid haha.’ [CC5 blacked out] wrote, ‘A valuable trait!’ (Emphasis added.)
Jack Smith reveals the extraordinary ways candidate Donald Trump and those working on his campaign broke multiple laws in their efforts to win, as well as the many times they threatened those state and local officials who refused to go along with their conspiracy, who instead did their best to uphold those laws. Next time, the pressure on Vice President Mike Pence.
It is so very disappointing how little in-depth analysis these exceptionally disturbing revelations have received in the national press. Now, the question is whether Judge Chutkan, and ultimately the Supreme Court, will accept the clear case Smith makes that none of this behavior in any way reflects the official conduct we expect from an honest and responsible President.