These haven’t been the best of times for what I do, for complex storytelling, or at least trying to bring some light to what is really happening to us. It is made worse by the horrifying rise of ignorance and abandonment of complexity by so much of mainstream media. Some outlets like FOX have completely replaced reporting with outright propaganda. And The Washington Post has opted for silence about who their editorial board believes would best serve as president. Unspoken is the obvious capitulation to Donald Trump’s increasing virulent promises to prosecute those he perceives as his enemies within, especially those he regards as fake-newsers.
As for me, when I am not experiencing PTSD on behalf of my blacklisted father and the consequences of my own political past, I find myself profoundly moved by the growing united front against tyranny: the bravery of Liz Cheney, a woman who was so very easy for me to dislike. I am also grateful to the generals I demonstrated against for warning us of Trump’s embrace of fascism. And I am continually impressed by Jack Smith’s unwavering commitment in working to uphold the still transcendent American notion that no man is above the law. I know I am offering probably more detail than most commentators these days, but the arguments Smith provides have become ever more necessary to make the case the MAGA Supreme Court doesn’t want you to hear. But because Smith and his team provide comprehensive evidence of how Donald Trump and his conspirators tried to take away our sacred right to determine our leaders, I believe they need to be studied and appreciated by all.
At the crux of the Supreme Court’s ruling on immunity in Trump v. United States is whether the actions Donald Trump took to contest the results of the 2020 election were official presidential acts or the acts of a candidate running for reelection. Especially critical is the highly significant communication with and unrelenting pressure put on Vice President Mike Pence to influence the counting of votes. Let’s start with a reminder of those days when Donald Trump and Mike Pence were campaign mates and united in a desire to win another term, a time when Mike Pence hadn’t yet imagined his president might encourage a mob to hang him.
In my recent columns “It doesn’t matter if you won or lost,” “Just declare victory,” and “Hang Mike Pence!,” I have been looking at Special Counsel Jack Smith’s argument that his superseding indictment of Donald Trump can survive the nation-changing decision of the Supreme Court.
Smith acknowledges they dropped the charges the Court clearly designated as qualifying for immunity:
The Supreme Court divided presidential acts into three categories: (1) core presidential conduct that Congress has no power to regulate and for which a former President has absolute immunity; (2) other official presidential acts for which the President has at least presumptive immunity; and (3) unofficial conduct for which the President has no immunity … With respect to the first category of core official conduct, when the President’s authority to act is ‘conclusive and preclusive,’ Congress may not regulate his actions, and the President has absolute immunity from criminal prosecution … Applying those principles to the original indictment, the Supreme Court concluded that the defendant is ‘absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials’ and his ‘threatened removal of the Acting Attorney General.’ Id. at 2335. The superseding indictment omits those allegations, and the Supreme Court did not find that any other conduct alleged in the original indictment implicated ‘conclusive and preclusive’ presidential authority. See id. at 2335-40. [Emphasis added.]
The threshold question here, then, is whether the defendant can carry his burden to establish that his acts were official and thus subject to presumptive immunity. Id. at 2332; see Dennis v. Sparks, 449 U.S. 24, 29 (1980) (noting that for immunity doctrines, ‘the burden is on the official claiming immunity to demonstrate his entitlement’). [Emphasis added.] Official conduct includes acts taken within the ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond [his] authority.’ Trump, 144 S. Ct. at 2333 (quoting Blassingame, 87 F.4th at 13). But consistent with the D.C. Circuit’s opinion in Blassingame, the Supreme Court suggested that a President who speaks ‘as a candidate for office or party leader’ — as the defendant did here — does not act in his official, presidential capacity. Id. at 2340. As the D.C. Circuit explained, a President acting as a ‘candidate for re-election’ is, to that extent, not carrying out an official responsibility. Blassingame, 87 F.4th at 17; accord id. at 5 (‘When a sitting President running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern. Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity.’) [Emphasis in original.] To assess whether a presidential action constitutes an ‘official’ act, courts must apply an ‘objective analysis’ that focuses on the ‘content, form, and context’ of the conduct in question. Trump, 144 S. Ct. at 2340 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). A President’s motives for undertaking the conduct and the fact that the conduct is alleged to have violated a generally applicable law are not relevant considerations. Id. at 2333-34.
If a President’s actions constitute non-core official presidential conduct, he is at least presumptively immune from criminal prosecution for that conduct. 144 S. Ct. at 2328, 2331; id.at 2332 (reserving whether ‘this immunity is presumptive or absolute … [b]ecause we need not decide that question today’). The Government can overcome that presumptive immunity by demonstrating that ‘applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.”’ Id. at 2331 -32 (quoting Fitzgerald, 457 U.S. at 754). Just as the inquiry into whether conduct is official or unofficial is ‘necessarily factbound,’ Trump, 144 S. Ct. at 2340, with ‘[t]he necessary analysis [being] . . . fact specific,’ id. at 2339, so too should be the inquiry into whether any ‘presumption of immunity is rebutted under the circumstances,’ id. at 2337. The analysis should first identify the specific alleged act at issue, and then determine whether criminal liability for the act intrudes on a relevant Executive Branch authority or function, taking care not to ‘conceive[] of the inquiry at too high a level of generality.’ Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1141 (D.C. Cir. 2015) (reversing district court in civil immunity case). Such an approach recognizes that Executive authority has limits — boundaries imposed by constitutional text, the separation of powers, and precedent — and that application of criminal law to the President’s official conduct does not per se intrude impermissibly on Executive Branch authority and functions. Cf. Trump, 144 S. Ct. at 2327 (‘If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so.’) (quoting Youngstown, 343 U.S. at 655 (Jackson, J., concurring)).
These principles for assessing whether the conduct alleged in the superseding indictment is immune apply equally to evidence. The Government may not introduce evidence of immunized official conduct against a former President at a trial, even to prove that the former President committed a crime predicated on unofficial conduct. Id. at 2340-41. [Emphasis added.]
What seems clear to me is the ever-increasing gap between what ordinary citizens might consider a legitimate “intrusion on the authority and functions of the Executive Branch” and how the Supreme Court might rule on those issues. I am betting almost no ordinary citizen would have awarded any kind of immunity to an out-of-control president intent on sabotaging a free and fair election. Nor would they have regarded any of those actions as a proper exercise of presidential authority.
Notwithstanding the limitations and obstacles imposed by the Court, and playing by their rules, Jack Smith nonetheless declares:
None of the Allegations or Evidence Is Protected by Presidential Immunity … At its core, the defendant’s scheme was a private one; he extensively used private actors and his Campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office. To the limited extent that the superseding indictment and proffered evidence reflect official conduct, however, the Government can rebut the presumption of immunity because relying on that conduct in this prosecution will not pose a danger of intrusion on the authority or functions of the Executive Branch … and provides ‘content, form, and context’ for this Court to determine that the defendant’s conduct was private or that, in the alternative, any presumptive immunity is rebutted ‘under the circumstances.’ Trump, 144 S. Ct. at 2337 … [Emphasis added.]
Smith continues:
This section first addresses the defendant’s interactions with Pence, because in Trump, the Supreme Court held that when the defendant conversed with Pence about ‘their official responsibilities,’ the conduct was official. 144 S. Ct. at 2336. Accordingly, the Government explains below why any presumptive immunity as to the defendant’s official conduct regarding Pence is rebutted. Other than the specific official conduct related to Pence that the Supreme Court held to be official, none of the defendant’s other actions were official …
A. The Defendant’s Interactions with Pence …
The Supreme Court stated that ‘[w]henever the President and Vice President discuss their official responsibilities, they engage in official conduct,’ and further explained that because Pence’s role at the certification was ‘a constitutional and statutory duty of the Vice President,’ the defendant was ‘at least presumptively immune from prosecution for such conduct.’ 144 S. Ct. at 2336. Accordingly, … the Court can skip to the second step: whether the Government can rebut the presumption of immunity that the Supreme Court held applies to such conversations. Because the Executive Branch has no role in the certification proceeding — and indeed, the President was purposely excluded from it by design — prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the Executive Branch’s authority or functioning.
As described below, the Government also intends to introduce at trial evidence regarding conversations between the defendant and Pence in which they did not discuss Pence’s official responsibilities as President of the Senate and instead acted in their private capacities as running mates …
1. The defendant’s interactions with Pence as the President of the Senate were official, but the rebuttable presumption of immunity is overcome
The superseding indictment and the Government’s trial evidence include the defendant’s attempts to influence Pence’s ‘oversight of the certification proceeding in his capacity as President of the Senate.’ Trump, 144 S. Ct. at 2337. These conversations included one-on-one conversations between the defendant and Pence … as well as conversations in which the defendant included private actors, such as co-conspirator [CC2 blacked out] in his attempts to convince Pence to participate in the conspiracies … The discussions at issue did not pertain to Pence’s role as President of the Senate writ large, however, but instead focused only on his discrete duties in presiding over the certification proceeding — a process in which the Executive Branch, by design, plays no direct role. Trump, 144 S. Ct. at 2337. A prosecution involving the defendant’s efforts to influence Pence in the discharge of this particular duty, housed in the Legislative Branch, would not ‘pose any dangers of intrusion on the authority and functions of the Executive Branch.’ Id.
The Executive Branch has no authority or function to choose the next President. Blassingame, 87 F.4th at 17. To the contrary, the Constitution provides that the States will appoint electors to vote for the President and Vice President. U.S. Const. Art. II, § 1, cl. 2. And all States have chosen to make such appointments based on the ballots cast by the people in their respective states. See Chiafalo v. Washington, 591 U.S. 578, 581 (2020). ‘The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes,’ U.S. Const. Art. II, § 1, cl. 4, but the Executive Branch has no direct role in that process. The next step in the process established by the Constitution similarly provides no role for the Executive Branch: the House and Senate meet in joint session, with the President of the Senate present to ‘open all the certificates’ of the state-appointed electors in the presence of the House and Senate, for them to be counted. U.S. Const. Amend. XII. ‘The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.’ Id. Only if the state-appointed electors have failed to make a choice, i. e., no candidate has such a majority, does the choice fall to the House of Representatives, who, voting by state delegation, ‘choose immediately, by ballot,’ from the three presidential candidates receiving the most electoral votes. Id. There, too, the Executive Branch plays no role in the process.
[Emphasis added.]
Smith goes on:
The exclusion of the Executive Branch reflects fundamental constitutional principles. The ‘executive Power’ is ‘vested in a President’ only for ‘the Term of four Years,’ U.S. Const. Art. II, § 1, cl. 1, and it transfers to his successor, by operation of law, ‘at noon on the 20th day of January,’ U.S. Const. Amend. XX. Permitting the incumbent President to choose his own successor — or, worse still, to perpetuate himself in power — would contradict the entire constitutional system that the Framers created. ‘In free Governments,’ Benjamin Franklin explained, ‘the rulers are the servants, and the people their superiors [and] sovereigns.’ The Records of the Federal Convention of 1787, at 120 (Max Farrand ed., 1911 … The Framers further recognized that while regular elections would serve as ‘the primary control on the government,’ ‘experience has taught mankind the necessity of auxiliary precautions’ as well. The Federalist No. 51 (J. Madison).
Some of those precautions are reflected in the design of the Electoral College itself. ‘[W]ary of “cabal, intrigue, and corruption,” the Framers ‘specifically excluded from service as electors “all those who from situation might be suspected of too great devotion to the president in office.”’ Trump, 144 S. Ct. at 2339 (quoting The Federalist No. 68 (A. Hamilton)). They were keenly aware, as Justice Story later explained, that ‘an ambitious candidate’ could hold out ‘the rewards of office, or other sources of patronage,’ in an effort ‘to influence a majority of votes; and, thus, by his own bold and unprincipled conduct, to secure a choice, to the exclusion of the highest, and purest, and most enlightened men in the country.’ Joseph Story, Commentaries on the Constitution of the United States § 1450, at 314 (1833 ed.) …
The Constitution’s structure further reflects the Framers’ considered choice to exclude the incumbent President from playing a role in choosing the next President. The Constitution reflects an abiding concern that governmental ‘power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it,’ not least to protect against ‘the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.’ The Federalist No. 48 (J. Madison); see Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) (‘The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive.’). The Framers therefore designed a system of separated powers in part to ensure that ‘[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.’ The Federalist No. 10 (J. Madison).
The defendant’s charged conduct directly contravenes these foundational principles. He sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people. As such, applying a criminal prohibition to the defendant’s conduct would not pose any danger of intrusion on the authority and functions of the Executive Branch; rather, it would advance the Constitution’s structural design to prevent one Branch from usurping or impairing the performance of the constitutional responsibilities of another Branch. See Clinton v. Jones, 520 U.S. 681, 699- 702 (1997). …
As President Lincoln explained in 1864, ‘[b]y the Constitution and laws the President is charged with no duty in the conduct of a presidential election in any State,’ and ‘[i]f any election shall be held, and any votes shall be cast in the State of Tennessee for President and Vice President of the United States, it will belong, not to the military agents, nor yet to the Executive Department, but exclusively to another department of the Government, to determine whether they are entitled to be counted, in conformity with the Constitution and laws of the United States.’ Collected Works of Abraham Lincoln, 71-72 (1953 … The Government is aware of no contrary evidence, including of any President, other than the defendant, seeking to influence his Vice President in the discharge of his duties as President of the Senate in presiding over the joint session. The absence of any such historical tradition is reinforced by the fact that in 22 of the 59 certification proceedings the Vice President has not presided at all …
When it conies to the certification proceeding specifically, not only has the President been deliberately excluded from the process, but the Vice President’s role, as President of the Senate, is highly circumscribed and ministerial in nature. The Twelfth Amendment gives the President of the Senate no substantive role in determining how to count the votes of the electors appointed by the states. Rather, it provides only that he ‘shall, in the presence of the Senate and House of Representatives, open all the certificates,’ and then shifts to the passive voice: ‘and the votes shall then be counted.’ Nothing in the Constitution remotely suggests that the single individual serving as President of the Senate would have the momentous responsibility to decide which votes to count and how they should be counted. Indeed, as Pence himself explained on January 6, 2021, giving the President of the Senate such a role ‘would be entirely antithetical to the [Constitution’s] design.’ 497 And, removing any possible doubt, ‘Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes,’ Trump, 144 S. Ct. at 2337 (citing 3 U.S.C. § 15), and it has never provided any substantive role for the Vice President … 3 U.S.C. § 15(b)(1). He ‘shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.’ Id. § 15(b)(2). Because the Vice President’s role is and has always been ministerial, rather than substantive or discretionary, it is difficult to imagine an occasion in which a President would have any valid reason to try to influence it. As such, criminalizing a President’s efforts to affect the Vice President’s role as the President of the Senate overseeing the certification of Electoral College results would not jeopardize an Executive Branch function or authority.
[Emphasis added.]
As Vice President Pence himself acknowledged in the letter he sent to his colleagues on the morning of January 6, 2021: “It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”
Smith continues:
Critically, applying a criminal prohibition to the discrete and distinctive category of official interactions between the President and Vice President alleged in this case would have no effect — chilling or otherwise — on the President’s other interactions with the Vice President that implicate Executive Branch interests. The President would still be free to direct the Vice President in the discharge of his Executive Branch functions, such as ‘presiding] over . . . cabinet meetings,’ engaging in ‘diplomacy and negotiation,’ or performing any other presidential duties that the President chooses to delegate. See Trump, 144 S. Ct. at 2336 (internal quotation marks omitted). The President would likewise still be free to advise the Vice President on how to ‘advance the President’s agenda in Congress,’ by casting tiebreaking votes on legislation or nominations. Id.at 2337. None of these legitimate Executive Branch functions would be chilled or affected at all. Lastly, the fact that the defendant regularly included other private actors, such as his private attorney and co-conspirator [CC2 blacked out] in some conversations to attempt to pressure Pence (Superseding Indictment, ECF No. 226 ff 75-76; supra pp. 66-67, 71-72) strengthens the conclusion that prosecuting the defendant for his actions using [CC2 blacked out] to help recruit Pence into the conspiracies does not infringe on any Executive Branch authority or function. As set forth in Section I, private co-conspirators worked to schedule the January 4 meeting at which [CC2 blacked out] attempted to pressure Pence. Although White House Counsel [P59 blacked out] was invited to the meeting, when he arrived to attend, the defendant explicitly excluded him from it — meaning that the only attorney attending the meeting for the defendant was [CC2 blacked out] his privately-retained counsel … It is hard to imagine stronger evidence that conduct is private than when the President excludes his White House Counsel and only wishes to have his private counsel present …
The defendant’s decision to include private actors in the conversations with Pence about his role at the certification makes even more clear that there is no danger to the Executive Branch’s functions and authority… Instead, all of this conduct objectively benefitted the defendant in his private capacity as a candidate. The Court should therefore find the presumption of immunity to be rebutted. And because the presumption is rebutted, any participant in the meeting or phone call — including Pence and [P59 blacked out] and [P8 blacked out] can testify about it at trial.
2. The defendant’s interactions with Pence as a running mate were unofficial
At trial, as indicated supra pp. 12-14, the Government intends to introduce evidence of private phone calls or in-person meetings (which occasionally included Campaign staff) that the defendant had with Pence in their unofficial capacities, as running mates in the post-election period. These conversations were not described in the original indictment nor analyzed by the Supreme Court in its opinion, nor are they described in the superseding indictment. In these conversations, the defendant and Pence discussed their electoral prospects, election-related litigation, and the possibility of the defendant running again in 2024 if his legal challenges failed. For example, Pence ‘tried to encourage’ the defendant ‘as a friend,’ when news networks projected Biden as the winner of the election; on other occasions, softly suggested the defendant ‘recognize [the] process is over’ even if he was unwilling to concede; and encouraged the defendant to consider running for election again in 2024. Although the defendant and Pence naturally may have touched upon arguably official responsibilities that were tangential to their election prospects — for instance, whether the federal government should begin its logistical transition to prepare for a different Administration — the overall context and content of the conversations demonstrate that they were primarily frank exchanges between two candidates on a shared ticket, and the Government does not intend to elicit testimony about any peripheral discussion of arguably official responsibilities. See Blassingame, 87 F.4th at 17 (‘[A] President acts in a private, unofficial capacity when engaged in re-election campaign activity.’); … Together, these discussions show the defendant and Pence considering advice from their shared Campaign advisors, weighing electoral strategies, and grappling with their loss. Both men had something to gain by winning re-election, making more notable the persistence of Pence’s suggestions on how to accept the results of the election without losing face.
Even if the Court determines that these conversations were official, however, the Government can rebut the presumption of immunity because the use of this evidence poses no risk to Executive Branch prerogatives. The content of the conversations at issue — the defendant and Pence’s joint electoral fate and how to accept the election results — have no bearing on any function of the Executive Branch. See Blassingame, 87 F.4th at 4 (‘The Office of the Presidency as an institution is agnostic about who will occupy it next.’) …
B. The Defendant’s Interactions, in his Capacity as a Candidate, with Officials in the Targeted States
1. The interactions at issue were unofficial
At trial, the Government will introduce evidence that the defendant, in his capacity as a candidate, contacted state elected officials to use false claims of election fraud to induce their assistance with the charged conspiracies at the point in the electoral process in which the states ascertain electors. These communications included calls to [P16 blacked out], the Governor of Arizona; a meeting with Michigan legislators at the White House; a call to [P18 blacked out], the Speaker of the Arizona State House; a call to [P26 blacked out], the Attorney General of Georgia; and a call to [P33 blacked out], the Georgia Secretary of State. The contacts, sometimes in person and sometimes by phone, were part of a single course of conduct aimed at lying to and influencing these state officials to alter the results of the election in the defendant’s favor. In each conversation, the defendant raised false claims of election fraud when pressing the state officials, often asking them to take steps to prevent or overturn the ascertainment of Biden’s legitimate electors. And in each case, the state officials informed the defendant that they had not seen the fraud he was claiming had occurred in their state … Most importantly, as with the defendant’s plan regarding the fraudulent elector slates, as President, he had no official role in the process by which states appointed and ascertained then presidential electors. See 144 S. Ct. at 2353 (Barrett, J., concurring) (‘The President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.’). The content, form, and context of the defendant’s interactions with these state officials firmly establish that his conduct was unofficial.
a. Calls to [P16 blacked out] (supra pp. 17-18)
The defendant called [P16 blacked out], then the Governor of Arizona on or about November 9. The defendant’s call to [P16 blacked out] was unofficial and undertaken as a candidate. Throughout the call, the defendant was engaged in partisan electioneering. His comments focused on the vote count in Arizona in his particular race, and on the margins and allegations of fraud that could potentially benefit him personally as a candidate. [P16 blacked out], in turn, responded by giving the defendant his assessment of the defendant’s electoral prospects in Arizona — prospects that were dim. The defendant did not ask about the vote counts for, or claim fraud existed in, any race other than his own. And he raised fraud claims in this context —about whether he could still win Arizona — not in the larger context of election integrity. The defendant claimed that he would deliver evidence of election fraud to [P16 blacked out] then did not …
This call must also be considered in the context of the conspirators’ additional pressure on [P16 blacked out]. On other occasions [CC1 blacked out] tried to reach [P16 blacked out] but [P16 blacked out] declined to accept the calls. And on November 30, the day [P16 blacked out] signed the certificate of ascertainment declaring Biden’s electors the legitimate ones for Arizona, the defendant (joined by Pence) again called [P16 blacked out], again raised fraud claims, and again failed to substantiate them. When [P16 blacked out] failed to do as the defendant demanded, after the call, the defendant attacked [P16 blacked out] publicly through Twitter. Each of these communications with [P16 blacked out] was unofficial. The defendant engaged in them all in his capacity as a candidate, in an attempt to elicit [P16 blacked out]’s support in re-installing him as president.
b. Meeting with Michigan legislators (Superseding Indictment, ECF No. 22636; supra pp. 31-34)
The defendant’s November 20 Oval Office meeting with Michigan state legislators was private in nature. During the meeting, the defendant raised claims of election fraud in the state related specifically and only to his own election, and the legislators explained that the defendant had lost not because of fraud but because he had underperformed with educated female voters. Although the meeting took place in the Oval Office — as did many unofficial Campaign meetings in which the defendant participated in the post-election period — a close examination of all of the other circumstances surrounding the meeting makes clear that it was a Campaign meeting.
The defendant originally initiated the meeting through RNC Chairwoman [P39 blacked out], a private and partisan actor, and then followed up himself with [P37 blacked out] and [P38 blacked out] — both fellow Republicans and strong political supporters of the defendant … Notably, the defendant did not include in the meeting invitation other Michigan officials who held positions more relevant to the election and certification — the Governor and Secretary of State — but who were not Republicans …
Over the course of the meeting, the defendant dialed in both [P39 blacked out] despite her request not to participate – and [CC1 blacked out]. The defendant’s Chief of Staff [P21 blacked out] was present for at least part of the meeting. But beside [P21 blacked out] who separate from his Chief of Staff duties assisted the defendant with Campaign-related logistics, no other Executive Branch staff joined the meeting: in fact, according to [P9 blacked out] he and White House Counsel [P59 blacked out] wanted no part of it. As [P37 blacked out] and [P38 blacked out] had expected the defendant was focused on his own vote count in Michigan and on claims of fraud that related only to him. [CC1 blacked out] a private Campaign attorney, then dominated the rest of the meeting with a monologue of false fraud claims.
The only reason that there were topics of conversation other than the defendant’s claims of election fraud in his race was because the legislators, on their own initiative, brought them up … specifically to have something to talk about other than the defendant’s unsupported election fraud claims … As planned, after the meeting, [P37 blacked out] and [P38 blacked out] released their statement that publicly disclaimed evidence of outcome-determinative fraud in the election in Michigan. The statement also specified that [P37 blacked out] and [P38 blacked out] had raised with the defendant issues related to Michigan’s need for federal funds to fight COVID …When the defendant responded to the legislators’ public statement in a Tweet, the private nature of that message, sent as a candidate seeking to overturn the results of his own election — “We will show massive and unprecedented fraud!” — further demonstrates the private nature of the meeting it concerned …Notably, the defendant did not conduct similar meetings in this period with legislators in states where he had won or even where he had lost by large margins, nor did he seek a meeting with the Michigan officials — the Governor and Secretary of State — who could have provided him with information about the integrity of the election.
As further context establishing the private nature of this meeting, it was the opening volley of a larger pressure campaign on the same Michigan legislators by the defendant, his co-conspirators. and his Campaign. For example, days after this meeting [CC1 blacked out] sent text messages to [P37 blacked out] and [P38 blacked out] to help overturn the results in Michigan. In the same time period, the Campaign publicized contact information for [P37 blacked out] and [P38 blacked out] (although the contact information for [P38 blacked out] was wrong) and encouraged the defendant’s supporters to flood their phone lines with complaints.
c. Call with [P18 blacked out] (Superseding Indictment, ECF No. 226 f 19; supra P-19)
The defendant’s call on November 22, 2020, with [P18 blacked out] also was unofficial. Along with his private attorney, the defendant made the call in his capacity as a candidate and pressured [P18 blacked out] on electoral matters over which neither the defendant – nor even [P18 blacked out] had an official role … The defendant placed the call to [P18 blacked out] along with [CC1 blacked out] his lead Campaign attorney, and no White House officials participated in the call … The defendant and [CC1 blacked out] were singularly focused on fraud claims that affected only the defendant, and did not raise any other races in Arizona. And the content of the call confirmed it was unofficial: the defendant and his private attorney asked [P18 blacked out], the defendant’s political ally, to take steps to replace Arizona’s legitimate electors with illegitimate ones for the defendant — a step that necessarily only affected the defendant’s race, out of all the races on the same ballot …
A week later … [CC1 blacked out] and [P12 blacked out] failed to bring the promised evidence and instead admitted ‘[w]e don’t have the evidence, but we have lots of theories.’ See supra p. 19. When [P18 blacked out] publicly announced that he would not take extralegal action on the defendant’s behalf [P19 blacked out] and the defendant attacked [P18 blacked out] on Twitter … [P18 blacked out] like others who publicly opposed the defendant’s efforts, was harassed and threatened.
d. Call to [P26 black out] (supra pp. 23-24)
The defendant’s call on December 8 to [P26 blacked out], the Georgia Attorney General, also was private. He undertook it to speak with [P26 black out] about Texas v. Pennsylvania, a lawsuit filed by the Texas Attorney General against Pennsylvania, Georgia, Michigan, and Wisconsin seeking to prevent those states from certifying their election results in favor of Biden based on a claim that the manner in which those states had administered their elections had violated the Constitution.
The defendant’s interest in Texas v. Pennsylvania was personal and private; the lawsuit dealt only with the election for the offices of President and Vice President, not the myriad other races on the same ballots. Indeed, the day after his call with [P26 black out], the defendant — in his personal capacity and with the assistance of co-conspirator [CC2 blacked out] as his private attorney — intervened in the suit and in so doing ‘affirmatively communicated to the Supreme Court (and the public) that he was acting and speaking in that matter in his “personal capacity” as a candidate for reelection.’ Blassingame, 87 F.4th at 16.
The defendant initiated the call with [P26 black out] … and immediately raised the lawsuit, which was the principal topic of conversation on the call … In fact, shortly before speaking with [P26 black out] the defendant had spoken with [P62 blacked out], the Texas Attorney General who had filed the lawsuit, and immediately after speaking with [P26 black out], the defendant called [P63 blacked out], the Missouri Attorney General who authored an amicus brief supporting the lawsuit that sixteen other state attorneys general joined.
The speed of the filing of the defendant’s intervention brief the following day echoed what he told [P26 black out]: he was ‘running out of time,’ presumably because landmark dates in the electoral process, like December 14 and January 6, were fast approaching …
[Emphasis added.]
On to Georgia, and Brad Raffensberger:
e. Call to [P33 blacked out] (Superseding Indictment, ECF No. 226 f 33; supra pp. 28-31)
The defendant’s January 2 call to [P33 blacked out] was unofficial and is not subject to immunity; its content, form, and context make clear that the defendant undertook it as a candidate and plaintiff in a private lawsuit in which [P33 blacked out] was a defendant.
[P21 blacked out] has said that the purpose of the call was to discuss the lawsuit and he acted accordingly during it. At the outset of the call, [P21 blacked out] made introductions of all the participants on the defendant’s behalf – [P32 blacked out], [P36 blacked out], and [P31 blacked out] all of whom were affiliated with the Campaign’s litigation efforts, which the defendant brought in his capacity as a candidate for President of the United States.
Throughout the call, the defendant and his advisors approached the conversation through his role as a candidate and with a focus on his private lawsuit. For instance, in an apparent reference to individuals retained for his private lawsuit, the defendant claimed, ‘We’re going to have an accurate number over the next two days with certified accountants. But an accurate number will be given, but it’s, it’s in the fifties of thousands, and that’s people that went to vote and they were told they can’t vote because they’ve already been voted for.’ Some of his false claims of fraud paralleled claims made in Campaign lawsuits, such as that of a substantial number of dead and non-resident voters — for example, in Trump v. Raffensperger, a state court case whose complaint was appended to the federal suit Trump v. Kemp, the defendant’s complaint asserted that 4,926 out-of-state voters had cast ballots, while on the call the defendant cited the number 4,925. And he deferred to his private attorneys at multiple points throughout the conversation.
For instance, after [P33 blacked out] told the defendant, ‘the challenge that you have is the data you have is wrong,’ the defendant turned to [P31 blacked out] and asked, ‘Well [P31 blacked out], how do you respond to that?’ At one point, [P21 blacked out] interjected and invoked the Campaign’s litigation, asking whether ‘we can find some kind of agreement … to find a path forward that’s less litigious. And near the end of the call, [P32 blacked out], the defendant’s lead counsel in the lawsuit against [P33 blacked out] requested ‘to sit down with your office, and we can do it through purposes of compromise just like this phone call’ to review data. [P33 blacked out], counsel [P35 blacked out] responded that [P32 blacked out]’s cited numbers were inaccurate, but agreed to meet with him.
The defendant’s call to [P33 blacked out] was purely a private one, which he undertook as a candidate and the plaintiff in a lawsuit. Indeed, a federal district court has concluded that the [P33 blacked out] call was a Campaign call rather than official business; when [P21 blacked out] sought removal to federal court of his criminal case in Fulton County, Georgia, a court in the Northern District of Georgia issued an order declining to assume jurisdiction because [P21 blacked out] had failed to meet his burden of showing that his role in the call was official rather than unofficial. See Georgia v. Meadows, 692 F. Supp. 3d 1310, 1332 (N.D. Ga. 2023), aff’d 88 F. 4th 1331, 1349 (11th Cir. 2023) (petition for cert, filed) …
2. Even if the defendant’s contacts with state officials were official, the Government can rebut the presumption of immunity.
Although the Supreme Court did not resolve the issue in Trump, it described the basis for concluding that using the defendant’s conduct of lying to and pressuring state officials to change the legitimate vote in a criminal prosecution would not intrude on Executive Branch functions or authority:
Indeed, the Constitution commits to the States the power to ‘appoint’ Presidential electors ‘in such Manner as the Legislature thereof may direct.’ Art. II, § 1, cl. 2; see Burroughs v. United States, 290 U.S. 534, 544 (1934). ‘Article II, § l’s appointments power,’ we have said, ‘gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.’ Chiafalo v. Washington, 591 U.S. 578, 588-589 (2020). By contrast, the Federal Government’s role in appointing electors is limited. Congress may prescribe when the state-appointed electors shall meet, and it counts and certifies their votes. Art. II, § 1, els. 3, 4. The President, meanwhile, plays no direct role in the process, nor does he have authority to control the state officials who do. And the Framers, wary of ‘cabal, intrigue and corruption,’ specifically excluded from service as electors ‘all those who from situation might be suspected of too great devotion to the president in office.’ The Federalist No. 68, at 459 (A. Hamilton); see Art. II, § 1, cl. 2.
144 S. Ct. at 2339. Under the Constitution, the Executive Branch has no constitutionally assigned role in the state-electoral process. To the contrary, the constitutional framework excludes the President from that process to protect against electoral abuses. See supra p. 93. Accordingly, applying federal criminal law to the defendant’s use of fraud to interfere with electoral processes carried out by the states does not intrude on Executive Branch authority or functions. Rather, it ensures that the President’s conduct remains consistent with the Constitution’s allocation of that authority to the States, while in no way impairing his ability to ‘encourage [state officials] to act in a manner that promotes the President’s view of the public good.’ 144 S. Ct. at 2338. The President remains free, for instance, to urge state officials to institute measures to combat a pandemic or make arrangements to provide emergency relief. This case does not remotely implicate such official conduct. What neither the President nor any other candidate may do is further his private campaign for office by using fraudulent means to have state officials certify him as winner of a presidential election despite the will of the voters. Accordingly, applying criminal penalties to that conduct will not intrude on any Executive Branch authority or function.
C. The defendant’s efforts, as a candidate, to organize fraudulent electors
1. The conduct at issue was unofficial
The defendant’s conduct with respect to the elector scheme is inherently private, and not subject to immunity. See 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part) (‘Sorting private from official conduct sometimes will be difficult — but not always. Take the President’s alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection.’). The President of the United States has no official responsibilities related to the organization or voting of electors in the various states — by virtue of the Constitution, that process takes place in the states according to the laws and procedures set forth by each state. See U.S Const., Art. II, § 1, cl. 2. At oral argument before the Supreme Court, the defendant initially conceded that the plan to submit fraudulent electors directed by the defendant and [CC1 blacked out] was not official. Tr. of Oral Argument at 29-30; Trump, 144 S. Ct. at 2338. The Government nonetheless sets forth here the context, form, and content of the defendant’s private contacts with RNC Chairwoman [P39 blacked out] in furtherance of the fraudulent elector plan because the defendant conversely suggested in the same oral argument that he will argue that those efforts were official. See 144 S. Ct. at 2338.
The defendant had two relevant contacts with [P39 blacked out]: first, he and co-conspirator [CC2 blacked out] called [P39 blacked out] on December 6 to ask her to ensure that the effort was properly coordinated (Superseding Indictment, ECF No. 226 If 53; supra p. 50), and second, on the evening of December 14 [P39 blacked out] emailed the defendant through his executive assistant [P42 blacked out] to inform him that the fraudulent electors had cast votes as he had directed (Superseding Indictment, ECF No. 226 )[ 66; supra p. 57].
The defendant and [CC2 blacked out]’s call to [P39 blacked out] on December 6 was private. The defendant placed the call along with [CC2 blacked out], a private attorney and co-conspirator, to [P39 blacked out], the Chairwoman of a political organization whose objective was to elect a broad set of Republicans at the federal and state level, including the defendant and other allied candidates. [CC2 blacked out] was acting in his capacity as a private attorney for the defendant; on the same day, [CC2 blacked out] emailed with several other private attorneys and wrote, ‘This is huge — and hugely important. Let’s make sure the various state electors are aware of the absolute necessity of meeting on the 14th, casting their votes, and otherwise complying with the transmittal requirements of federal law.’ Finally, the content of the call was likewise unofficial. The defendant and [CC2 blacked out] asked [P39 blacked out] to work with the Campaign, to ensure that the fraudulent electors were properly organized, which she agreed to do — and did. as is clear from her further contacts with [CC1 blacked out] and [CC6 blacked out] regarding the plan. [P39 blacked out]’s email to the defendant on December 14 was likewise a private communication; [P39 blacked out] simply forwarded the defendant an RNC communication summarizing the electoral vote. to inform him that the private task the defendant had given her was complete, and [P42 blacked out] confirmed that she had relayed the message by writing, ‘It’s in front of him!’ As discussed infra pp. 145-147, when a White House staffer facilitates unofficial conduct by relaying private, political communications, the private action is not converted to an official one simply because an Executive Branch aide helps carry it out.
2. Even if the conduct were deemed official, the Government could rebut the presumption of immunity
In any event, even if the defendant’s efforts to convene fraudulent electors could be considered official, the presumption would be rebutted because ‘a President has no legal authority — and thus no official capacity — to influence how the States appoint then electors,’ and accordingly, there is ‘no plausible argument for barring prosecution of that alleged conduct.’ Trump, 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part …
D. The Defendant’s Public Speeches, Tweets, and Other Public Statements as a Candidate
1. The statements at issue were unofficial
Merely because the President is speaking to the public — even on ‘matters of public concern’ —does not automatically render the communication official. Blassingame, 87 F.4th at 19-20. Instead, what matters is ‘whether the President is speaking (or engaging in conduct) in an official capacity as office-holder or instead in an unofficial capacity as officer-seeker,’ id. at 19, as determined by ‘content, form, and context,’ Trump, 144 S. Ct. at 2340…
a. Speeches
The defendant made a number of speeches as a candidate, rather than as an office-holder. See 144 S. Ct. at 2339-40 (‘There may … be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader.’ …
ii. The Ellipse on January 6, 2021 (Superseding Indictment, ECF No. 22686; supra pp. 75-78)
The Ellipse rally — named the Save America Rally or the March for Trump — was planned and executed by private political supporters, including Women For America First (WFAF), a 501(c)(4) organization that advocated for the defendant’s reelection in advance of election day in 2020 and throughout the post-election time period. Cf. Trump, 144 S. Ct. at 2340 (‘Knowing … who was involved in … organizing the rally[] could be relevant to the classification’ of the Ellipse speech as official or unofficial … [P64 blacked out], a private fundraiser for the defendant, contacted WFAF to discuss moving the event to the Ellipse and featuring the defendant as a guest. The organizers and planners of the event were almost exclusively private individuals, with minimal involvement by White House advance staff. The United States Secret Service, which is charged with the President’s protection at all times, even dining unofficial events, considered the rally to be ‘a campaign event.’ The rally was completely funded by a $2.1 million private donation by [P65 blacked out] a grocery chain heiress … [P66 blacked out], the rally organizer who had the most direct contact with the defendant, was an employee of the defendant’s Campaign until December 31,2020, and after that, a private citizen …
For weeks leading up to the event, the defendant promoted it on Twitter using the word ‘rally’ — a word that the defendant, on his Twitter account, reserved almost exclusively for political and Campaign events … on the morning of the rally, an email from White House photographer [P67 blacked out] on which [P45 blacked out] was copied provided ‘[a] reminder today is a political event.’ – Likewise, the defendant’s White House speechwriting staff understood that the speech was a political, unofficial one and used then-personal devices and personal email accounts to do most of the drafting and fact-checking for the defendant’s Ellipse speech, though some last revisions to the speech on the morning of January 6 occurred over White House email. And officials in the White House Counsel’s Office who customarily reviewed the defendant’s official remarks pointedly did not review the Ellipse speech because it was an unofficial Campaign speech …
The crowd at the rally consisted of the defendant’s political supporters, who held signs and wore clothing bearing the defendant’s Campaign slogans. And the manner in which the defendant took the stage at the rally was also consistent with his Campaign rallies: instead of entering as a military band played Hail to the Chief, as he might at an official presidential event, the defendant entered and exited the Ellipse speech to the songs he had used throughout his Campaign (Lee Greenwood’s ‘God Bless the U.S.A.’ and the Village People’s ‘Y.M.C.A.’).
The defendant, as a candidate, made myriad false claims regarding fraud in the presidential election … The defendant’s language throughout the speech was that of a candidate focused on his re-election. He claimed that he would not concede, that he received more votes than he had four years earlier … Significantly, he made many of these statements at the beginning of the speech, framing the themes for the rest of the speech.
In addition, although countless federal, state, and local races also were on the same ballots as the defendant on election day — including those of every sitting member of the House of Representatives, even those on whom the defendant was counting to object at the congressional proceeding — the defendant focused only on his own race, the election for President, and only on allegations favoring him as a candidate in targeted states he had lost. He claimed his ‘election victory’ was ‘stolen,’ that he would not ‘concede,’ and that ‘with only three of the seven states in question, we win the presidency of the United States.’ He framed the claims of election fraud in terms of his own election and the margin of victory in his own race, and he spoke to his political supporters using the pronoun ‘we’ — showing that he was speaking not to all citizens, but only to his own voters. Finally, the defendant repeatedly aimed accusations at Biden, his principal opponent in the election contest, as would a candidate.
[Emphasis added.]
Jack Smith is following in the footsteps of our Founders, who, despite their significant imperfections, their willingness to accept slavery and the slaughter of those native to America, and their inability to appreciate the obvious equality of women, nonetheless fought and won a revolution that empowered the transition from the unchecked power of the monarch to a constitutional republic.
On November 5, 2024, we will either throw away centuries of progress and revert to the unchecked impulses of a tyrant or re-embrace a commitment to the rule of law. I am hoping Jack Smith can continue his work without interference to make the case against the conspiracy to undo the 2020 election.
