Jack Smith’s Special Counsel Report
U.S. Department of Justice
Jack Smith
Special Counsel
January 7, 2025
DELIVERY BY HAND
The Honorable Merrick B. Garland
Attorney General of the United States
Robert F. Kennedy Department of Justice Building
950 Pennsylvania Avenue NW
Washington, D.C. 20530
Re: Final Report of the Special Counsel Under 28 C.F.R. § 600.8
Dear Mr. Attorney General:
In the fall of2022, former President Donald J. Trump was a subject of two separate criminal
investigations by the Department ofJustice. The first was an investigation into whether any person
violated the law in connection with efforts to interfere with the lawful transfer of power following
the 2020 presidential election. The second investigation focused on the possession of highly
classified documents at Mr. Trump's Mar-a-Lago social club following his presidency.
On November 15, 2022, Mr. Trump declared his candidacy to unseat President Joseph R.
Biden, Jr., who had previously stated his intention to stand for reelection. Mr. Trump's
announcement created a highly unusual situation, in which the Department, an agency within the
Executive Branch headed by President Biden, was conducting criminal investigations regarding
his newly declared challenger. Based on a longstanding recognition that "in certain extraordinary
cases, it is in the public interest to appoint a special prosecutor to independently manage an
investigation and prosecution," you, as the Attorney General, promptly did so here to "underscore[]
the Department's commitment to both independence and accountability in particularly sensitive
matters." Attorney General Merrick 8. Garland, Remarks on the Appointment of a Special
Counsel, Washington, D.C. (Nov. 18, 2022).
On the day that I was appointed, I pledged that I would exercise independent judgment,
follow the best traditions of the Department of Justice, and conduct my work expeditiously and
thoroughly to reach whatever outcome the facts and law dictated. With the aid of an outstanding
team, that is what I did. Upon my appointment, I organized a staff of experienced career federal
prosecutors, and together we conducted the investigations and subsequent prosecutions under our
mandate, consistent with the Department's traditions of integrity and nonpartisanship that have
guided all of us throughout our careers.
Attorney General Edward H. Levi, who assumed the Department's helm in the wake of
Watergate, summed up those traditions best:
[O]ne paramount concern must always guide our way. This is the keeping of the
faith in the essential decency and even-handedness in the law, a faith which is the
strength of the law and which must be continually renewed or else it is lost. In a
society that too easily accepts the notion that everything can be manipulated, it is
important to make clear that the administration of federal justice seeks to be
impartial and fair ....
Address to the Los Angeles County Bar Association, Los Angeles, CA (Nov. 18, 1976). Attorney
General Levi's remarks, shared 46 years to the day before my appointment, ring as true now as
they did then.
I have been a career prosecutor in local, national, and international settings over the last
three decades, working shoulder to shoulder with hundreds of prosecutors in that time. The
prosecutors and staff of the Special Counsel's Office are, in my estimation, without peer in terms
of accomplishment, capability, judgment, and work ethic. More importantly in my book, they are
people of great decency and the highest personal integrity. The intense public scrutiny of our
Office, threats to their safety, and relentless unfounded attacks on their character and integrity did
not deter them from fulfilling their oaths and professional obligations. These are intensely good
people who did hard things well. I will not forget the sacrifices they made and the personal
resilience they and their families have shown over the last two years. Our country owes them a
debt of gratitude for their unwavering service and dedication to the rule of law. Without pause
they have upheld the Department's commitment to the impartial and independent pursuit ofjustice.
For that, I am grateful-as I know you are as well.
Staffed by some of the most experienced prosecutors in the Department, my Office
operated under the same Department policies and procedures that guide all federal prosecutors.
The regulations under which I was appointed required that we do so, see 28 C.F.R. § 600.7(a), and
our work benefited from those processes. The Department has long recognized that proceeding
with "uniformity of policy ... is necessary to the prestige of federal law." Robert H. Jackson,
"The Federal Prosecutor" (April 1, 1940). As a result, throughout our work we regularly consulted
the Justice Manual, the Department's publicly available guidebook on policies and procedures,
and adhered to its requirements.
Our work rested upon the fundamental value of our democracy that we exist as "a
government of laws, and not of men." John Adams, Novanglus, No. VII at 84 (Mar. 6, 1775). In
making decisions as Special Counsel, I considered as a first principle whether our actions would
contribute to upholding the rule of law, and acted accordingly. Our committed adherence to the
rule of law is why we not only followed Department policies and procedures, but strictly observed
legal requirements and dutifully respected the judicial decisions and precedents our prosecutions
prompted. That is also why, in my decision-making, I heeded the imperative that "[n]o man in this
country is so high that he is above the law," UnUed States v. Lee, I 06 U.S. 196,220 (1882). Simply
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put: the Department of Justice's guiding mandate, which my Office strove to uphold, is that power,
politics, influence, status, wealth, fear, and favor should not impede justice under the law.
When I assumed responsibility for the matters you assigned to me, I came to the work with
no preconceived notion of what the just outcome of the investigations would be. I was not yet
familiar with all ofthe relevant facts and had not yet researched the relevant law. Depending upon
what the investigations revealed, I was equally comfortable closing the investigations or moving
forward with prosecutions in one or both of the matters, having done both in high profile matters
throughout my career.
To make prosecutorial determinations, my Office gathered relevant evidence and examined
whether that evidence established violations of federal criminal law. In doing so I was guided by
the Principles of Federal Prosecution, a series of considerations designed to promote the fair and
evenhanded application of the law. As set forth in my Report, after conducting thorough
investigations, I found that, with respect to both Mr. Trump's unprecedented efforts to unlawfully
retain power after losing the 2020 election and his unlawful retention of classified documents after
leaving office, the Principles compelled prosecution. Indeed, Mr. Trump's cases represented ones
"in which the offense [was] the most flagrant, the public haim the greatest, and the proof the most
certain." Jackson, "The Federal Prosecutor."
As directed by the Principles, I made my decision in these cases without regard to Mr.
Trump's "political association, activities, or beliefs," or the possible personal or professional
consequences of a prosecution for me or any member of my Office. Justice Manual § 9-27.260.
"[T]he likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because
of the overwhelming popularity of the defendant or his cause," or the converse, were not factors
in my prosecutive decisions. Id. § 9-27.220 (Comment). My Office also adhered at all times to
the Department's policy against interfering in elections. As a former Chief of the Department's
Public Integrity Section, it was important to me, as it is to you, that we adhere to both the letter
and spirit ofthis policy. I can assure you that neither l nor the prosecutors on my team would have
tolerated or taken part in any action by our Office for partisan political purposes. Throughout my
service as Special Counsel, seeking to influence the election one way or the other, or seeking to
interfere in its outcome, played no role in our work. My Office had one north star: to follow the
facts and law wherever they led. Nothing more and nothing less.
While I relied greatly on the counsel, judgment, and advice of our team, I want it to be
clear that the ultimate decision to bring charges against Mr. Trump was mine. It is a decision I
stand behind fully. To have done otherwise on the facts developed during our work would have
been to shirk my duties as a prosecutor and a public servant. After nearly 30 years of public
service, that is a choice I could not abide.
It is equally important for me to make clear that nobody within the Department of Justice
ever sought to interfere with, or improperly influence, my prosecutorial decision making. The
regulations under which I was appointed provided you with the authority to countermand my
decisions, 28 C.F.R. § 600.7, but you did not do so. Nor did you, the Deputy Attorney General, or
members of your staff ever attempt to improperly influence my decision as to whether to bring
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charges against Mr. Trump. And to all who know me well, the claim from Mr. Trump that my
decisions as a prosecutor were influenced or directed by the Biden administration or other political
actors is, in a word, laughable.
While we were not able to bring the cases we charged to trial, I believe the fact that our
team stood up for the rule of law matters. I believe the example our team set for others to fight for
justice without regard for the personal costs matters. The facts, as we uncovered them in our
investigation and as set forth in my Report, matter. Experienced prosecutors know that you cannot
control outcomes, you can only do your job the right way for the right reasons. I conclude our
work confident that we have done so, and that we have met fully our obligations to the Department
and to our country.
Accompanying this letter, I am providing you "a confidential report explaining the
prosecution or declination decisions reached by the Special Counsel." 28 C.F.R. § 600.8. The
Report consists of two volumes: Volume One addresses the Election Case, and Volume Two
addresses the Classified Documents Case. I understand that you are considering whether all or
part of my Report can be made public, consistent with applicable legal restrictions. See 28 C.F.R.
§ 600.9(c). Both volumes minimize the identification of witnesses and co-conspirators, consistent
with accepted Department practice, and we have provided a redacted version of Volume Two that
identifies certain information that remains under seal or is restricted from public disclosure by
Federal Rule of Criminal Procedure 6(e). Because Volume Two discusses the conduct of Mr.
Trump's alleged co-conspirators in the Classified Documents Case, Waltine Nauta and Carlos De
Oliveira, consistent with Department policy, Volume Two should not be publicly released while
their case remains pending.
Though not required, prior to finalizing the Report, my Office provided an opportunity for
counsel for Mr. Trump to review both volumes, and for counsel for his former co-defendants in
the Classified Documents Case, Mr. Nauta and Mr. De Oliveira, to review Volume Two. After
their review, counsel for Mr. Trump wrote a letter to you, and we have provided a written response
to you, both of which you will find as an Addendum to the Report.
With this Report, my service and the service of my staff is complete. I thank you for the
trust you placed in me and my team and for affording us the independence necessary to conduct
our work. Public service is a privilege, and we deeply appreciate the opportunity to serve our
Nation in seeking to uphold the rule of law.
Since¼
t(;_SMITH
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FINAL REPORT ON THE SPECIAL COUNSEL'S
INVESTIGATIONS AND PROSECUTIONS
VOLUME ONE: THE ELECTION CASE
REPORT ON EFFORTS TO INTERFERE WITH THE LAWFUL TRANSFER
OF POWER FOLLOWING THE 2020 PRESIDENTIAL ELECTION OR
THE CERTIFICATION OF THE ELECTORAL COLLEGE VOTE
HELD ON JANUARY 6, 2021
Special Counsel Jack Smith
Submitted Pursuant to 28 C.F.R. § 600.8(c)
Washington, D.C.
January 7, 2025
TABLE OF CONTENTS
VOLUME ONE: THE ELECTION CASE ..................................................................................... 1
I. THE RESULTS OF THE INVESTIGATION ..................................................................... 2
A. Mr. Trump's Pressure on State Officials ................................................................. 8
B. Mr. Trump's Fraudulent Elector Plan .................................................................... 11
C. Mr. Trump's Misuse of Official Power Through the Justice Department.. ........... 16
D. Mr. Trump's Pressure on the Vice President.. ....................................................... 20
E. Mr. Trump's Supporters Attack the United States Capitol.. .................................. 23
II. THE LAW ......................................................................................................................... 33
A. Conspiracy to Defraud the United States (18 U.S.C. § 371) ................................ 34
B. Obstruction and Conspiracy to Obstruct (18 U.S.C. § 1512(k) and (c)(2)) .......... 45
C. Conspiracy Against Rights (18 U.S.C. § 241) ...................................................... 49
D. Defenses ................................................................................................................ 53
E. Other Charges ....................................................................................................... 61
F. Co-Conspirator Liability ....................................................................................... 67
III. THE PRINCIPLES OF FEDERAL PROSECUTION ...................................................... 68
A. Prosecuting Mr. Trump Served Multiple Substantial Federal Interests ................ 69
1. The substantial federal interest in protecting the integrity of the
electoral process and the peaceful transfer of power was served by
Mr. Trump's prosecution ........................................................................... 69
2. The substantial federal interest in counting every citizen's vote was
served by Mr. Trump's prosecution .......................................................... 74
3. The substantial federal interest in protecting election officials and
other government officials from violence was served by Mr.
Trump's prosecution ................................................................................. 75
4. The substantial federal interest in the evenhanded administration of
the law was served by Mr. Trump's prosecution ....................................... 83
IV. V. B. Mr. Trump Was Not Subject to Effective Prosecution in Another
Jurisdiction ............................................................................................................ 87
C. There Was No Adequate Non-Criminal Alternative to Prosecution ..................... 88
D. Mr. Trump's Conduct Had No Historical Analogue ............................................. 90
INVESTIGATIVE PROCEDURE AND POLICY ........................................................... 92
A. The Investigative Process ..................................................................................... 92
B. Investigative and Prosecutive Procedures in an Election Year ............................. 95
1. The Department's Election Year Sensitivities Policy ............................... 96
2. Pre-Indictment Procedures ........................................................................ 99
3. Post-Indictment Procedures .................................................................... 100
INVESTIGATIVE CHALLENGES AND LITIGATION ISSUES ................................ 107
A. Pre-Indictment Litigation with Third Parties ...................................................... 108
1. The Twitter/X Search Warrant ................................................................ 108
2. Legislative Privilege Under the Speech or Debate Clause ...................... 110
B. Threats and Harassment ofWitnesses .................................................................. 112
C. Mr. Trump's Claims of Executive Privilege ........................................................ 116
D. Presidential Immunity ......................................................................................... 122
1. Prosecutorial Decisions During the Charging Stage ............................... 123
2. Immunity Litigation ................................................................................ 126
3. Unresolved Issues Regarding Presidential Immunity ............................. 132
VI. CONCLUSION ............................................................................................................... 136
APPENDIX: KEY FILINGS IN SIGNIFICANT LITIGATION ................................................ 138
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VOLUME ONE: THE ELECTION CASE
On November 18, 2022, the Attorney General appointed the Special Counsel to oversee
an ongoing investigation into "whether any person or entity violated the law in connection with
efforts to interfere with the lawful transfer of power following the 2020 presidential election or
the certification of the Electoral College vote held on or about January 6, 2021." See Office of
the Attorney General, Order No. 5559-2022, Appointment ofJohn L. Smith as Special Counsel
(Nov. 18, 2022). As a result of that investigation, on August 1, 2023, a federal grand jury in the
District of Columbia charged Donald J. Trump with four felony offenses arising from his efforts
to unlawfully retain power by using fraud and deceit to overturn the 2020 election results. After
the Supreme Court held last summer that Mr. Trump was immune from prosecution for certain
misuse of official power alleged in the indictment, a second grand jury found probable cause to
return a superseding indictment charging the same offenses based on his non-immunized
conduct. Mr. Trump was thereafter reelected as President of the United States, and as a result, on
November 25, 2024, the Special Counsel moved to dismiss the case against Mr. Trump because
of the Department of Justice's longstanding position that the Constitution forbids the federal
indictment and prosecution of a sitting President.
This Volume focuses on the Election Case against Mr. Trump and, consistent with the
applicable regulations, provides an explanation of the prosecution decisions reached by the
Special Counsel. See 28 C.F.R. § 600.8(c). The first section of this Volume sets forth a summary
of key facts gleaned from the investigation, a vast majority of which are already a matter of
public record through the litigation that occurred before the district court. The second section
discusses the statutes that Mr. Trump was charged with violating, applying the facts developed
during the investigation to the law as the Special Counsel's Office (the Office) understood it.
This section also addresses other charges that the Office considered but did not pursue, and the
defenses that the Office expected Mr. Trump to raise at trial. The third section explains why the
Special Counsel's decision to prosecute Mr. Trump was fully consistent with and indeed was
compelled by the Principles of Federal Prosecution. The fourth section describes the Office's
investigative procedures and policies. Finally, the fifth section of this Volume discusses a series
of investigative and prosecutive issues that the Office confronted in the Election Case.
I. THE RESULTS OF THE INVESTIGATION 1
In 2020, then-President Donald J. Trump ran for reelection against Joseph R. Biden, Jr.
Mr. Trump lost. 2 As alleged in the original and superseding indictments, substantial evidence
demonstrates that Mr. Trump then engaged in an unprecedented criminal effort to overturn the
legitimate results of the election in order to retain power. 3 Although he did so primarily in his
private capacity as a candidate, and with the assistance of multiple private co-conspirators, Mr.
Trump also attempted to use the power and authority of the United States Government in
furtherance of his scheme.
As set forth in the original and superseding indictments, when it became clear that Mr.
Trump had lost the election and that lawful means of challenging the election results had failed,
he reso1ied to a series of criminal efforts to retain power. This included attempts to induce state
1 This section of the Report summarizes the evidence uncovered by the Office's investigation, and therefore includes
conduct for which the Supreme Court later held Mr. Trump to be immune from prosecution, see Trump v. United
States, 603 U.S. 593, 597 (2024). That conduct is not included in the superseding indictment that the Office
obtained after the Supreme Court's decision, see ECF No. 226, nor is that conduct included in the discussion below
regarding why the evidence warranted criminal charges under the Principles of Federal Prosecution. Unless
otherwise noted, all ECF citations in this Volume of the Report are to the docket in United States v. Trump, No.
23-cr-257 (D.D.C.).
2 SC0-00701211 at 7 (Federal Election Commission, Election Results for 2020 Federal Elections).
3 An indictment is an allegation, not a verdict; a person accused of a crime is presumed innocent until proven guilty
beyond a reasonable doubt. The Office was prepared to present the evidence of Mr. Trump's alleged crimes in a
public adversarial trial and to accept any verdicts rendered by a jury of his peers. As explained below, the Office
commenced prosecution of Mr. Trump in the Election Case under both the original and superseding indictments
because it concluded that the admissible evidence would be sufficient to obtain and sustain a conviction. See Justice
Manual § 9-27 .220 and infra at Section III.
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officials to ignore true vote counts; to manufacture fraudulent slates of presidential electors in
seven states that he had lost; to force Justice Department officials and his own Vice President,
Michael R. Pence, to act in contravention of their oaths and to instead advance Mr. Trump's
personal interests; and, on January 6, 2021, to direct an angry mob to the United States Capitol to
obstruct the congressional certification of the presidential election and then leverage rioters'
violence to further delay it. 4 In service of these efforts, Mr. Trump worked with other people to
achieve a common plan: to overturn the election results and perpetuate himself in office. These
individuals included Co-Conspirator 1, a private attorney who was willing to spread knowingly
false claims and pursue strategies that Mr. Trump's Campaign attorneys would not;
Co-Conspirator 2, a private attorney who devised and attempted to implement a strategy to
leverage the Vice President's ministerial role in the certification proceeding to obstruct the
certification; Co-Conspirator 3, a private attorney whose unfounded claims of election fraud Mr.
Trump privately acknowledged were "crazy," but which he embraced and publicly amplified
nonetheless; Co-Conspirator 4, a Justice Department official who worked on civil matters and
who, with Mr. Trump, attempted to use the Justice Department to open sham election crime
investigations and influence state legislatures with knowingly false claims of election fraud;
Co-Conspirator 5, a private attorney who assisted in devising and attempting to implement a plan
to submit fraudulent slates of presidential electors to obstruct the certification proceeding; and
Co-Conspirator 6, a private political consultant who helped implement a plan to submit
fraudulent slates of presidential electors to obstruct the certification proceeding. 5 The
throughline of all of Mr. Trump's criminal efforts was deceit-knowingly false claims of election
4 ECF No. l at 110; ECF No. 226 at 1 11; see ECF No. 252 at 3.
5 ECF No. l at 18; ECF No. 226 at 19; see ECF No. 252 at 4.
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fraud-and the evidence shows that Mr. Trump used these lies as a weapon to defeat a federal
government function foundational to the United States' democratic process. 6
Mr. Trump's false claims included dozens of specific claims regarding certain states, such
as that large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters had cast
ballots, or that voting machines had changed votes for Mr. Trump to votes against him. 7 These
claims were demonstrably and, in many cases, obviously false. 8 The Office investigated whether
Mr. Trump believed the claims he made. Evidence from a variety of sources established that Mr.
Trump knew that there was no outcome-determinative fraud in the 2020 election, that many of
the specific claims he made were untrue, and that he had lost the election. He knew this because
some of the highest-ranking officials in his own Administration, including the Vice President,
told him directly that there was no evidence to support his claims.9 Mr. Trump's private
6 See ECF No. I; ECF No. 226. Mr. Trump's conduct with Co-Conspirator 4 was charged in the original indictment,
ECF No. I, but not in the superseding indictment, ECF No. 226, because the Supreme Court held in the interim that
Mr. Trump's conduct regarding the Department of Justice was immunized. Trump, 603 U.S. at 597.
7 See, e.g., ECF No. 252 at 10; SCO-02244118 at 11-12, 14-19 (Remarks by Mr. Trump at Save America Rally
01/06/2021); SCO-04949418 at 04: 15:22-04:31:46 (Video of Save America Rally O1/06/2021); SCO-04976462 at
18:34-19: 12 (Video of Speech at White House 12/02/2020); SCO-00455939 (Donald J. Trump Tweet I 1/19/2020);
SCO-04976283 at 01:00:43-01:14:24 (Video of Dalton, GA speech 01/04/2021); SCO-04976275 at 22:00-22:40
(Video of Valdosta, GA speech 12/05/2020); SCO-00455041 (Donald J. Trump Tweet O1/02/2021); SCO-00456153
(Donald J. Trump Tweet 11/12/2020); SCO-00456144 (Donald J. Trump Tweet 11/13/2020); SCO-00456102
(Donald J. Trump Tweet I 1/14/2020); SCO-00456066 (Donald J. Trump Tweet 11/15/2020); SCO-00455969
(Donald J. Trump Tweet 11/18/2020); SCO-04976266 at 20: 10-37:50 (Video of Thanksgiving Call to Troops
11/26/2020).
8 Compare SCO-02244118 at 11, 19 (Remarks by Mr. Trump at Save America Rally Ol/06/202 I) (Mr. Trump
asserting on January 6 that there were 205,000 more votes than voters in Pennsylvania) with SCO-00709557 at 156
(SJC Tr.) (stating that Mr. Trump was told on January 3 that the allegation that there were more votes than voters in
Pennsylvania was untrue); see also SCO-04976459 at 02:06:23-02:07:00 (Video of Arizona State Hearing
11/30/2020) (Co-Conspirator I stating that there could have been "five million illegal aliens in Arizona," and "a few
hundred thousand" of those who fraudulently voted, even though the state had a total population of approximately
7.4 million).
9 See, e.g., ECF No. I at ,r 11; see ECF No. 252 at 10-14 & nn.29-53; SCO-00014655 at 37-44; SCO-00689680
(Michael Balsamo, Disputing Trump, Barr says no widespread election fraud, ASSOCIATED PRESS, Dec. l, 2020);
SCO-00764172 at 21-25 (HSC Tr.); SCO-11506911 at 96-97, 116, 125 (Int. Tr.); SCO-04957448 at 28-31 (SJC Tr.);
SCO-00775937 at 57-64 (HSC Tr.); SCO-04952679 (Tweet l l/17/2020); SCO-12929351 (Tweet 11/12/2020); SCO-
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advisors, both within and outside of his Campaign, told him the same. 10 On November 13, his
own Campaign conceded its litigation in Arizona, a state pivotal to his reelection prospects. 11
State officials and legislators whom Mr. Trump pressured to change vote tallies or stop
certifications of results rebuffed him and informed him that his fraud claims were wrong, both
privately and through public statements. 12 Mr. Trump also monitored legal developments
03036930 (Joint Statement on Election Security 11/12/2020); SCO-00003294 at 37, 39-43; SCO-00015002 at 22-24;
SCO-12920242 at 1-7 (Int. Rep.); SCO-00006256 at 46-47, 59, 74-76.
10 See, e.g., ECF No. 252 at 9-14 & nn.29-53, 17-18 & n.69, 21 & n.95, 25; SCO-12920242 at 1-7 (Int. Rep.).
11 See ECF No. 252 at 9 & n.24; Donald J. Trump for President, Inc. v. Hobbs, No. CV 2020-014248, Transcript of
Proceedings (Maricopa County, Az. Super. Ct. Nov. 13, 2020); Hobbs, No. CV 2020-014248, Docket Code 042
(Maricopa County, Az. Super. Ct. Nov. 13, 2020).
12 See ECF No. 252 at 14 & nn.52-53; see also, e.g., SCO-0082936 l at 17 (HSC Tr.) (state legislator told Mr. Trump
that "he primarily lost Michigan because of two counties that are routinely Republican counties ... and more
specifically he underperformed with educated females"); SCO-11509450 at 25 (Int. Tr.) (state legislator told Mr.
Trump that state officials had not seen evidence of widespread fraud); SCO-04953053 (Joint Statement l l/20/2020)
(state legislators' statement that they are unaware of"any information that would change the outcome of the election
in Michigan" and noting legislative review of the state's elections process); SCO-04952823 (Statement 12/04/2020)
(state legislator citing U.S. Attorney General's statement that he had not seen outcome-detenninative election fraud);
SCO-06730226 (Letter to Maricopa County Voters 11/17/2020) (noting "no evidence of fraud or misconduct or
malfunction" in the over two million ballots cast); SCO-00614161 at 1335 (Tweets 12/01/2020) (describing Arizona
election security measures, including poll ID and hand-conducted signature review); SCO-04957281 (Georgia
Secretary of State News Release 10/23/2020) (refuting that electronic ballot marking is particularly vulnerable to
cyberattack); SCO-04957309 (Georgia Secretary of State News Release 11/05/2020) (noting ballot count progress
and listing voting security measures); SCO-12876768 (Video of Georgia Secretary of State Press Conference
11/06/2020) (giving numbers of rejected ballots from unregistered and non-citizen voters, and partially counted
ballots from out-of-precinct voters); SCO-12876769 (Video of Georgia Secretary of State Press Conference
l l/09/2020) (refuting allegations about ballot counting at State Farm Arena, software malfunctions, more votes than
voters, and ballot harvesting, among others); SCO-1287677 l (Video of Georgia Secretary of State Press Conference
11/12/2020) (addressing decision to conduct risk-limiting audit, explaining under-voting in presidential race,
refuting allegations that computers and software flipped votes); SCO-04957154 (Georgia Secretary of State News
Release l l/18/2020) ( explaining that 2020 election absentee ballot rejection rate was equivalent to that in the 2018
general election); SCO-04957157 (Georgia Secretary of State News Release 11/19/2020) (risk-limiting audit results
confirmed machine ballot count results); SCO-04957179 (Georgia Secretary of State News Release 12/07/2020)
(hand recount and formal recount requested by Mr. Trump's campaign confirmed original election results;
Co-Conspirator 3's lawsuit dismissed); SCO-04976277 (Video of Georgia Secretary of State Press Conference
l 2/07/2020) (refuting allegations about vote-switching algorithms and "secret suitcases" of ballots at State Farm
Arena and noting that in-person voting always requires identification); SCO-12896570 (Video of Georgia Secretary
of State Press Conference 12/16/2020) (stating that hand vote count confirmed machine count, signature matching
was performed, "there were no votes flipped," and full video of vote counting at State Fann Arena confirmed no
wrongdoing); SCO-04957276 (Georgia Secretary of State News Release 12/29/2020) (recounts and signature audit
confirmed original Georgia election results, and signature matching in Cobb County found no fraudulent ballots);
SCO-04976281 (Video of Interview 0 l/02/2021) ( election audit and full recount confirmed that Mr. Trump lost in
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regarding the election and was on notice that state and federal courts rejected every post-election
lawsuit that Mr. Trump and his allies filed claiming outcome-determinative election fraud. 13 Mr.
Trump and co-conspirators could not have believed the specific fraud claims that they were
Georgia election); SCO-12998394 (Tr. of Georgia Secretary of State Call O 1/02/2021); SCO-04976282 (Video of
Georgia Secretary of State Press Conference O1/04/2021) (among other issues, refuting specific allegations about:
Dominion voting machines; State Farm Arena ballot counting; convicted felons voting-74 at most, not 2,506;
underage voters-zero, not 66,248; unregistered voters-zero, not 2,423; voting past the registration deadlinezero,
not 4,926); SCO-04955691 (Michigan Secretary of State web page 11/06/2020) (voting machine software did
not malfunction, no ballots were backdated); SCO-12876350 (Michigan Secretary of State web page 12/08/2020)
(noting that Antrim County reporting error was accidental human error and citing U.S. Attorney General, FBI, and
CISA view that 2020 election was "the most secure election in our nation's history and, despite unprecedented
scrutiny, there has been no evidence of widespread fraud identified whatsoever"); SCO-02243762 (Michigan
Attorney General and Secretary of State News Release 12/14/2020) (affirming that the "general election in Michigan
and across the country was the most secure in the nation's history"); SCO-04957382 (Michigan Secretary of State
web page 12/17/2020) (hand audit confirmed Antrim County election results and showed Dominion machines
accurately calculated results); SCO-12839140 (Michigan Secretary of State web page 12/18/2020) (stating that final
numbers from "Antrim County hand-tallied audit yesterday continue to affirm the accuracy of the Nov. 3 general
election certified results"); SCO-02963078 (Video of Statement by City Clerk in Rochester Hills, Michigan) (stating
that "[t]here were no missing ballots" and "[t]he accusation that 2,000 ballots were found is categorically false");
SCO-04957413 (New Mexico Secretary of State News Release 12/14/2020) (announcing that New Mexico's
electoral votes went to Mr. Biden and that the 2020 election was "the most secure in American history"); SCO-
12876770 (Video of Interview of Philadelphia City Commissioner with CNN 11/11/2020) (stating that there were no
dead voters and no provisional ballots cast by ineligible voters and confirming that "[w]e just had the most
transparent and secure election in the history of Philadelphia"); SCO-12929345 (Tweet 11/27/2020) (Philadelphia
City Commissioner responding to Mr. Trump's 11/27/2020 Tweet and confinning, "Not only is there no evidence of
'massive' voter fraud in Philadelphia, but there haven't been *any* documented instances in the many lawsuits filed
in Pennsylvania"); SCO-04956023 (Pennsylvania Department of State Public Response Statement 12/29/2020)
(refuting misinformation in letter from Republican lawmakers that state data was contradicted by county-level data
and explaining the state's risk-limiting audit to ensure accurate vote counts); SCO-12837952 (Wisconsin Elections
Commission web page 11/05/2020) (impossible to have more votes than voters, and no absentee ballots were found
in the middle of the night); SCO-12848641 (Wisconsin Elections Commission web page 11/10/2020) (no credible
evidence to undermine unofficial election results or support allegations of widespread election issues, only
registered voters can request absentee ballots, and ballot signatures can never be added by poll workers); SCO-
12838580 (Wisconsin Elections Commission web page 12/16/2020) (Dominion machines did not flip votes, 200,000
people did not illegally vote without identification, and absentee ballots were not issued without a ballot
application); SCO-12845421 (Nevada Secretary of State Facts vs. Myths Release 12/18/2020) ("we have yet to see
any evidence of wide-spread fraud"; "we have not been presented with evidence of non-citizens voting in the 2020
election").
13 See, e.g., ECF No. 252 at 18, 36-37 & nn.181-183, 41 & nn.207-208, 44-45 & nn.227-230; SCO-00455873,
SCO- I 2987569 (Donald J. Trump Tweet I 1/21/2020) (about failed Pennsylvania lawsuit); SCO-00455356,
SCO-12858834 (Donald J. Trump Tweet 12/12/2020) (about failed Supreme Court lawsuit); SCO-00455197,
SCO-00455196, SCO-00455195, SCO-12987423, SCO-12987422, SCO-12987421 (Donald J. Trump Tweets
12/21/2020) (about failed Wisconsin lawsuit); SCO-00790949 at 170-171 (HSC Tr.) (Senior Advisor noting that, in
Mr. Trump's presence, he challenged Co-Conspirator 3 about losing lawsuits across the country); SCO-00014205 at
7-8,
6
making because the numbers they touted-for instance, of dead voters in a particular statefrequently
vacillated wildly from day to day or were objectively impossible, 14 including, for
example, Co-Conspirator 3 's claims about voting machines that Mr. Trump privately
acknowledged sounded "crazy" 15 before he publicly amplified them. 16 Finally, at times, Mr.
Trump made comments implicitly acknowledging that he knew he had lost the election. For
example, in a January 3, 2021 Oval Office meeting regarding a national security matter, Mr.
Trump stated in part, "[I]t's too late for us. We're going to give that to the next guy," meaning
President-elect Biden. 17
Mr. Trump aimed his deceit at the United States' process of collecting, counting, and
certifying votes, which flows from the Constitution and a federal law enacted in 1887 called the
Electoral Count Act (ECA). The Constitution provides that the United States President is
selected through the votes of individuals called electors and that each state determines how to
appoint its electors. 18 Through state laws, all fifty states and the District of Columbia have
chosen to select electors based on the popular vote. 19 Therefore, after election day, pursuant to
14 See, e.g., ECF No. 252 at 15 & nn.55-59 (Arizona); id. at 21 & n.96, 30 & n.142, 122-123 & n.592 (Georgia). For
Arizona, see, e.g., SCO-04976384 at 20:47 (Common Sense episode 89 11/25/2020) ("36,000"); SCO-04976459 at
02:06:23-02:07:00 (Video of Arizona State Hearing 11/30/2020) ("a few hundred thousand"); SCO-06628641 at
18:52-19:42 (War Room episode 608 12/24/2020) ("about 250,000"); SCO-06628646 at 35:19-35:45 (War Room
episode 625 01/02/2021) ("32,000"); SCO-02244118 at 17 (Remarks by Mr. Trump at Save America Rally
01/06/2021) ("36,000"). Additional examples are discussed below. See, e.g., infra at nn.155-158 (Georgia).
15 See ECF No. 252 at 44 & n.224; SCO-115234 77 at 94-103 (Int. Tr.).
16 See ECF No. 252 at 44-45 & nn.227-229; SCO-00455825 (Donald J. Trump Retweet 11/24/2020);
SCO-12858284 (Tweet 11/24/2020) (showing Donald J. Trump Retweet); SCO-00455769, SCO-12858342 (Donald
J. Trump Retweet 11/26/2020); SCO-04949395 at 3 (Remarks by Mr. Trump on the Presidential Election
12/02/2020); SCO-02244118 at 18-19 (Remarks by Mr. Trump at Save America Rally O1/06/2021).
17 See ECF No. 1 at ,r 83.
18 U.S. CONST. art. II, § 1.
19 ECF No. I at if 9; ECF No. 226 at ,r 10; see ECF No. 252 at 4; About the Electors, NATIONAL ARCHIVES,
https://www.archives.gov/electoral-college/electors; see also Chiafalo v. Washington, 591 U.S. 578, 581, 584-85 &
n. l (2020).
7
the ECA, each state formally determines-or "ascertains"-its electors based on the popular
vote; the ascertained electors meet on a day determined by the ECA and cast their votes based on
their state's popular vote; and the ascertained electors mail their electoral votes, along with a
certification from the state executive that they are the state's legitimate electors, to the United
States Congress to be counted and certified in an official proceeding. 20 The Constitution and
ECA provide that on the sixth of January following election day, the Congress meets for that
certification proceeding, which is presided over by the Vice President as President of the Senate;
the legitimate electors' votes are opened and counted; and the winner is certified. 21 Until Mr.
Trump obstructed it, this democratic process had operated in a peaceful and orderly manner for
more than 130 years.
A. Mr. Trump's Pressure on State Officials
One of Mr. Trump's efforts to change the results of the election involved targeting the
electoral process at the state level through politically aligned state officials. Mr. Trump
contacted state legislators and executives, pressured them with false claims of election fraud in
their states, and urged them to take action to ignore the vote counts and change the results. 22
Significantly, he made election claims only to state legislators and executives who shared his
political affiliation and were his political supporters, and only in states that he had lost. 23
20 Electoral Count Act, 3 U.S.C. §§ 5-11.
21 U.S. CONST. amend. XII; Electoral Count Act, 3 U.S.C. § 15.
22 See ECF No. 252 at I 6-35; see, e.g., SCO- I 2733339 at 3-6, I 3- I 5 (Int. Rep.); SCO-00767550 at I 0-18 (HSC Tr.);
SCO- I 29983 94 (Tr. of Georgia Secretary of State Call O1/02/2021); SCO-0082936 I at 8- I I, I 5-24 (HSC Tr.).
23 See ECF No. 252 at 16; SCO-12733339 at 3-5 (Int. Rep.); SCO-02296394 at 6 (Presidential Daily Diary
I 1/09/2020); SCO-00829361 at 9-10 (HSC Tr.); SCO-00767550 at 9-12, 18 (HSC Tr.); SCO-02295943 at 3
(Presidential Daily Diary 11/22/2020); SCO-02301680 at 3 (Presidential Daily Diary 12/08/2020); SCO-11509251
at 38-39, 43 (Int. Tr.); SCO-12998394 (Tr. of Georgia Secretary of State Call O 1/02/2021).
8
For instance, Mr. Trump and Co-Conspirator 1 called the Speaker of the Arizona House
of Representatives on November 22 and used false fraud claims to try to convince the Speaker to
call the state legislature into session and replace Arizona's legitimate electors with Mr. Trump's
illegitimate ones. 24 Co-Conspirator 1 tried to coerce the Arizona Speaker, including by telling
him, "we're all kind of Republicans and we need to be working together." 25 The Arizona
Speaker refused to do what he was asked and requested that Co-Conspirator 1 provide evidence
to support his fraud claims. 26 Co-Conspirator 1 not only failed to ever provide such evidence,
but he conceded to the Arizona Speaker at an in-person meeting a week later that "[w]e don't
have the evidence, but we have lots of theories." 27 Despite this lack of fraud evidence, Mr.
Trump and others continued to pressure the Arizona Speaker to overturn the election results. 28
Mr. Trump similarly leaned on other state officials-always those of the same political
party. On January 2, 2021, just days before the election results were to be certified, he called
Georgia's Secretary of State and pressed him to "find 11,780 votes"-Mr. Biden's margin of
victory in the state. 29 When the Secretary of State refuted Mr. Trump's false fraud claims, Mr.
Trump issued a threat, stating that because the Secretary of State knew "what they did and you're
24 See ECF No. 252 at 19 & nn.77-79; SCO-02295943 at 3 (Presidential Daily Diary 11/22/2020); SCO-00767550 at
9-12, 18 (HSC Tr.).
25 See ECF No. 252 at 19 & n.80; SCO-00767550 at 15-16 (HSC Tr.).
26 See ECF No. 252 at 19 & n.81; SCO-00767550 at 10-12, 15-16 (HSC Tr.); SCO-00715584 (Arizona House
Speaker News Release 12/04/2020) ("I and my fellow legislators swore an oath to support the U.S. Constitution and
the constitution and laws of the state of Arizona. It would violate that oath, the basic principles of republican
government, and the rule of law if we attempted to nullify the people's vote based on unsupported theories of
fraud.").
27 See ECF No. 252 at 19 & nn.82, 84; SCO-00767550 at 12-13, 35-36 (HSC Tr.).
28 See ECF No. 252 at 20-21 & nn.88-91; SCO-00455536, SCO-12987478 (Donald J. Trump Retweet 12/06/2020);
SCO-00455538, SCO-12858634 (Donald J. Trump Tweet 12/06/2020); SCO-00767550 at 43-49 (HSC Tr.);
SCO-11540788 at 51-53 (Int. Tr.).
29 See ECF No. 252 at 29 & nn.134, 137; SCO-00825967 at 105-107, 123-124 (HSC Tr.); SCO-12998394 at 12 (Tr.
of Georgia Secretary of State Call 01/02/2021).
9
not reporting it ... that's a criminal offense. And you know, you can't let that happen. That's a
big risk to you ....
"30 Mr. Trump also pressed state legislators in Michigan by inviting them to
the White House on November 20, raising false claims of election fraud, and bringing
Co-Conspirator 1 into the meeting by phone. 31 Michigan's Senate Majority Leader told Mr.
Trump that he had lost the election not because of fraud, but because he had underperformed
with educated females-an assessment that displeased Mr. Trump. 32
Mr. Trump engaged in these efforts even though trusted state and party officials had told
him from the outset that there was no evidence of fraud in the election. In Arizona, Mr. Trump
called the Governor on November 9-a week after election day, and after both Fox News and the
Associated Press had projected that Mr. Trump had lost the state. 33 Using a baseball metaphor,
the Governor told Mr. Trump that "it was the ninth inning, two outs and he was several runs
down." 34 During the call, Mr. Trump raised false claims of election fraud; the Governor asked
Mr. Trump to send evidence of the alleged fraud, and Mr. Trump suggested he would do so. 35
He never did. 36 In Pennsylvania, just two days after the election, the Chairman of the state's
Republican Party, who had represented Mr. Trump in previous election litigation, refuted Mr.
30 See ECF No. 252 at 30 & n.144; SCO-12998394 at 12 (Tr. of Georgia Secretary of State Call 01/02/2021).
31 See ECF No. 252 at 32 & nn.157-159; SCO-11532925 at 53-56 (Int. Tr.); SCO-00829361 at 15-24 (HSC Tr.).
32 See ECF No. 252 at 32-33 & nn.160-161; SCO-00829361 at 16-18 (HSC Tr.).
33 See ECF No. 252 at 17 & n.63; SCO-12733339 at 3-5 (Int. Rep.); SCO-02296394 at 6 (Presidential Daily Diary
11/09/2020); see also Democrats flip Arizona as Eiden, Kelly score key election wins, Fox NEWS (Nov. 3, 2020),
https://www.foxnews.com/video/6206934979001; Jonathan J. Cooper and Anita Snow, Eiden wins Arizona, flips
longtime Republican stronghold, APNEWS.COM (Nov. 4, 2020), https://apnews.com/article/election-2020-joe-bidendonald-trump-race-and-ethnicity-legislature-218ad4d596e87c6b
1 a223fl 9f8 l 7776e.
34 See ECF No. 252 at 17 & n.66; SCO-12733339 at 14 (Int. Rep.).
35 See ECF No. 252 at 17 & nn.67-68; SCO-12733339 at 4 (Int. Rep.).
36 See ECF No. 252 at 17 & n.68; SCO-12733339 at 4 (Int. Rep.).
Trump's claim that it was suspicious that his early lead was slipping away. 37 The Chairman
explained that there were still roughly 1,750,000 mail-in ballots being counted, which were
expected to weigh heavily in Mr. Biden's favor. 38 In the course of conversations like these, state
officials-better positioned than Mr. Trump to know the facts in their states-repeatedly told Mr.
Trump that his fraud claims were unfounded and that there was no evidence of substantial
election fraud in their states. And apart from Georgia's Secretary of State, Mr. Trump never
contacted other election officials to determine whether there was merit to any specific allegation
of election fraud in their states-even though they would have been the best sources to confirm
or refute such claims.
B. Mr. Trump's Fraudulent Elector Plan
As December 14-the date the ECA required each state's electors to vote and send their
certificates of vote to Congress-approached, Mr. Trump and co-conspirators launched another
plan. Under this plan, they would organize the people who would have served as Mr. Trump's
electors, had he won the popular vote, in seven states that Mr. Trump had lost-Arizona,
Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin-and cause them to
sign and send to Washington false certifications claiming to be the legitimate electors. 39
Ultimately, as explained below, Mr. Trump and co-conspirators used the fraudulent certificates to
37 See ECF No. 252 at 37-38 & nn.187-190; SCO-00016926 at 10-11, 19-23; SCO-02300357 at 3-4 (Presidential
Daily Diary 11/06/2020).
38 See ECF No. 252 at 3 8 & n.190; SCO-00016926 at 21.
39 See ECF No. 252 at 48, 56 & n.301; SCO-02341381 (Fraudulent "Arizona's Electoral Votes for President and
Vice President"); SCO-02341386 (Fraudulent "Georgia's Electoral Votes for President and Vice President");
SCO-02341398 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); SCO-02341415
(Fraudulent "Nevada's Electoral Votes for President and Vice President"); SCO-02341409 (Fraudulent "New
Mexico's Electoral Votes for President and Vice President"); SCO-02341435 (Fraudulent "Pennsylvania's Electoral
Votes for President and Vice President"); SCO-02341449 (Fraudulent "Wisconsin's Electoral Votes for President and
Vice President").
11
try to obstruct the congressional certification proceeding. The fraudulent elector plan's arc is
reflected in a series of memoranda drafted in late November and early December by
Co-Conspirator 5, who initially portrayed it as a contingency to preserve the possibility that Mr.
Trump's electors' votes would be counted on January 6 if he prevailed in ongoing election
litigation. 40 But as described below, the plan quickly transformed into a corrupt strategy to
obstruct the certification proceeding and overturn the valid election results. 41
Mr. Trump set the fraudulent elector plan into motion in early December, ensured that it
was carried out by co-conspirators and Campaign agents in the targeted states, and monitored its
progress. On December 6, for instance, Mr. Trump and Co-Conspirator 2 called the Chairwoman
of the Republican National Committee and told her that it was important for the RNC to help
organize Mr. Trump's elector nominees in the targeted states. 42 During the call,
Co-Conspirator 2 told a lie that the co-conspirators would use to induce the cooperation of many
of the fraudulent electors: that Mr. Trump's electors' votes would be used only if ongoing
litigation in their state proved successful for Mr. Trump. 43 From that point on, Mr. Trump
communicated with Co-Conspirators 1 and 2 about the plan, and they in tum communicated with
Co-Conspirators 5 and 6. 44 At Co-Conspirator 1 's direction, Co-Conspirator 5 generated and
40 See ECF No. 252 at 48-49 & nn.250-253; SCO-00310619 (Co-Conspirator 5 memo 11/18/2020); SCO-00310626
(Co-Conspirator 5 memo 12/06/2020); SCO-00039311 (Co-Conspirator 5 memo 12/09/2020).
41 See ECF No. 252 at 48-49 & nn.250-253; SCO-00310626 (Co-Conspirator 5 memo 12/06/2020); SCO-00039311
(Co-Conspirator 5 memo 12/09/2020); SCO-00039408 (Email from Co-Conspirator 5 12/08/2020).
42 See ECF No. 252 at 50 & nn.258-260; SCO-00009955 at 8-1 0; SCO-00806514 at 7-10 (HSC Tr.).
43 See ECF No. 252 at 50 & nn.258-260; SCO-00009955 at 10; SCO-00806514 at 9-10 (HSC Tr.).
44 See ECF No. 252 at 50-51 & nn.266-267, 64 & nn.344-345, 65 & n.353; SCO-00245354 (Email among Campaign
staff 12/14/2020); SCO-11572270 (Email from Co-Conspirator 6 12/09/2020); SCO-04858082 (Text messages
between Campaign staff and Senior Advisor 12/13/2020); SCO-03661463 (Email from Co-Conspirator 5
12/11/2020); SCO-00039102 (Email from Co-Conspirator 6 to Co-Conspirator 5 12/10/2020); SCO-00039461
(Email from Co-Conspirator 5 to Co-Conspirator 6 and others 12/11/2020); SCO-00309939 (Email from
12
sent directions to the Trump electors in each targeted state on how best to mimic the manner in
which the state required valid electors to gather and vote, 45 and Campaign staff and agents
helped carry out Co-Conspirator 5 's plans. 46
For the most part, the co-conspirators deceived Mr. Trump's elector nominees in the
targeted states by falsely claiming that their electoral votes would be used only if ongoing
litigation were resolved in Mr. Trump's favor. 47 Indeed, the co-conspirators deliberately
Co-Conspirator 5 to Co-Conspirator 1 12/13/2020); SCO-02296764 (Presidential Daily Diary 12/23/2020);
SCO-02296763 at 7 (Presidential Daily Diary, Flight Manifest 12/23/2020); SCO-11618747 at 115, 156-158, 166-
169 (Text messages including Co-Conspirator 6); SCO-0230 l 0 15 at 4 (Presidential Daily Diary 0 1/04/2021).
45 See ECF No. 252 at 51-52 & n.274; SCO-000393 I l (Co-Conspirator 5 memo 12/09/2020); SCO-03660671
(Email from Co-Conspirator 6 to Co-Conspirator 5 12/11/2020); SCO-03661463 (Email from Co-Conspirator 5
12/11/2020); SCO-00039412 (Email from Co-Conspirator 5 to others, including Co-Conspirator l and
Co-Conspirator 6 12/10/2020); SCO-00310094 (Email from Co-Conspirator 5 to Co-Conspirator l 12/10/2020);
SCO-00039381 (Email from Co-Conspirator 5 12/10/2020); SCO-03660648 (Email from Co-Conspirator 5
12/10/2020); SCO-03660731 (Email from Co-Conspirator 5 12/10/2020); SCO-00039442 (Email from
Co-Conspirator 5 12/10/2020); SCO-05396682 (Text message from Co-Conspirator 6 12/13/2020);
SCO-05389962-SCO-05389971 (Text messages between Campaign staffer and Co-Conspirator 5 12/13/2020).
46 See ECF No. 252 at 51 & n.268; SCO-00310140 (Email from Co-Conspirator 6 12/09/2020); SCO-03660557
(Email from Co-Conspirator 6 to others, including Co-Conspirator l and Co-Conspirator 5 12/10/2020);
SCO-00039412 (Email from Co-Conspirator 5 to others, including Co-Conspirator 1 and Co-Conspirator 6
12/10/2020); SCO-0539013l-SCO-05390136 (Text messages between Co-Conspirator 6, Co-Conspirator 5, and
Campaign staffer 12/11/2020); SCO-00430180 (Text messages between Co-Conspirator 6 and Campaign staffer
12/11/2020); SCO-00309359 (Email to Co-Conspirator 1 and Co-Conspirator 6 12/14/2020); SCO-00405057 (Email
among Campaign staff 12/15/2020); SCO-06452193 (Email among Campaign staff 12/12/2020); SCO-00312444
(Text messages among Co-Conspirator 1, Co-Conspirator 6, and others 12/12/2020); SCO-12185268 (Email from
Co-Conspirator 6 to Co-Conspirator l and others 12/13/2020); SCO-03656456 (Email from Co-Conspirator 5 to
Campaign staffer 01/05/2021); SCO-00039215 (Email to Co-Conspirator 5 01/05/2021); SCO-04022107 (Email to
Co-Conspirator 5 01/05/2021); SCO-04022176 (Text messages from Co-Conspirator 5 01/05/2021); SCO-12804411
(Text messages from Co-Conspirator 5 0 l /06/2021 ); SCO-12804414 (Text messages between Co-Conspirator 5 and
Campaign staffer 0 1/05/2021); SCO-03666178 (Email from Co-Conspirator 5 01/05/2021); SCO-00038522,
SCO-00038523, SCO-00038527 (Email with attachments 01/07/2021).
47 See, e.g., ECF No. 252 at 53 & n.282; see, e.g., SCO-12949797 at 82-83 (Int. Tr.); SCO-11547433 at 4, 6 (Int.
Rep.); SCO-00009540 at 15-16; SCO-00017495 at 42-45; SCO-11551879 at 51-55 (Int. Tr.); SCO-00017100 at 53-
55; SCO-11548772 at 75-85 (Int. Tr.); SCO-11568208 at 107-109; SCO-11514688 at 6-7 (Int. Tr.); SCO-12832045
at 75-78 (Int. Tr.); SCO-12808771 at 24-30, 40-41 (Int. Tr.); SCO-11523905 at 153-154 (Int. Tr.); SCO-12741405
(Email from Co-Conspirator 5 12/14/2020); see also SCO-00310647 (Email to Co-Conspirator 1, Co-Conspirator 5,
Co-Conspirator 6, and others 12/11/2020).
13
withheld from the elector nommees information showing otherwise. 48 This deception was
crucial to the conspiracy, as many who participated as fraudulent electors would not have done
so had they known the true extent of the co-conspirators' plans. 49 Not all of Mr. Trump's elector
nominees were persuaded, forcing the co-conspirators to recruit substitutes in some of the
targeted states. 5° For example, one Trump elector nominee in Pennsylvania recognized the plan
as "illegal" and an attempt "to overthrow the Government," and he declined to participate. 51
Conversely, a select few of Mr. Trump's agents and elector nominees had insight into the
48 See ECF No. 252 at 53 & n.282; SCO-03660393 (Email from Co-Conspirator 5 to Campaign staff 12/10/2020);
SCO-03660734 (Co-Conspirator 5 streamlined memo 12/10/2020); SCO-11509937 at 257-260 (Int. Tr.).
49 See, e.g., SCO-12949797 at 121 (Int. Tr.) (Trump Elector: "Nobody-nobody suggested, hey, you know what,
let's just get this signed because we're gonna put pressure on ... Pence on the 6th. Cause if I had known that was
the plan, I wouldn't have signed a contingent on it."); SCO-00017495 at 57-58; SCO-11551879 at 89-90 (Int. Tr.)
("Q: [W]ould you have agreed to this plan if you knew that the forms you were signing might be used to delay or
prevent the certification of the election on January 6, [2021]? Trump Elector: Nobody told me, and I don't
remember anything, so no. And I would not agree for-if somebody else use this ... for some other reasons. Q:
And ... did anyone ever inform you that the documents you were signing on December 14, 2020 might be used as a
reason not to count Georgia's electoral votes during the certification of the election on January 6, 2021? A: No,
nobody told me. Q: Would you have agreed to that? Trump Elector: No."); SCO-00017100 at 54-55;
SCO-11548772 at 79 (Int. Tr.) (Trump Elector: "[M]y expectation was that the electoral votes that were cast were,
were in the event that President Trump won New Mexico ... and not to be used for any other purpose.");
SCO-11568208 at 108; SCO-12832045 at 75 (Int. Tr.) ("Q: [W]ould you have wanted to know, before you cast that
vote, if somebody else intended to use your vote to delay the certification, regardless of the outcome of the
certification? Trump Elector: I never thought about that. Q: Is that something that would've mattered to you when
you were deciding whether or not to cast the vote if, if they were gonna use it that way? Trump Elector: Yes, it
would've mattered. . . . Because that's unethical. Q: Okay. And would it have mattered to you if somebody was
going to try to convince Vice President Pence that he could just pick between these things, regardless of litigation?
Would you have wanted to know that before you cast your vote? Trump Elector: ... I hadn't thought of something
that high up, quite frankly. But my vote was not cast to be used for anything that was unethical, illegal, immoral, or
not justified."); SCO-12808771 at 29, 40 (Int. Tr.) (Q: "[The certificates] were only to be used in the case that ...
something actually changed the outcome of the election in New Mexico? Trump Elector: That's correct. Q: And
that was important to you? Trump Elector: Yes. . . . Q: And were you surprised by [how the certificates were used
on January 6th]? Trump Elector: Extremely surprised.").
50 See, e.g., SCO-00016926 at 61-69; SCO-11531008 at 9- 10 (Int. Tr.); SCO-11524990 at 14 (Int. Tr.);
SCO-00312444 (Text messages among Co-Conspirator 1, Co-Conspirator 6, and others 12/12/2020); see also
SCO-023413 86 at 6-9 (Fraudulent "Georgia's Electoral Votes for President and Vice President") (noting substitute
"electors"); SCO-02341398 at 4-5 (Fraudulent "Michigan's Electoral Votes for President and Vice President")
(same); SCO-02341435 at 4- 10 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President")
(same).
51 SC0-11531008 at 10, 79 (Int. Tr.).
14
ultimate plan to use the fraudulent elector certificates to disrupt the congressional certification on
January 6 and willingly assisted. 52 On December 9, after a phone call with Co-Conspirator 5,
one of the Campaign's agents wrote in an email that Co-Conspirator S's plan for the electors to
"send[] in 'fake' electoral votes to Pence" was "[k]ind ofwild/creative."53 Two and a half hours
later, he replied to his own email and, as cover, wrote that "'alternative' votes is probably a better
term than 'fake' votes" and that he agreed with a suggestion "to keep [the plan] under wraps until
Congress counts the vote on Jan. 6th."54 In each of the targeted states, Mr. Trump and his coconspirators
successfully organized enough elector nominees and substitutes to gather on
December 14, cast fraudulent electoral votes on his behalf, and send them to Washington, D.C.,
for the congressional certification 55-a fact that the RNC Chairwoman relayed to Mr. Trump on
the evening of December 14. 56
At the same time that Mr. Trump's elector nominees in the targeted states were preparing
to gather and cast fraudulent votes, his co-conspirators were planning to use them to overturn the
election results at the January 6 certification. On December 13, Co-Conspirator 5 sent
Co-Conspirator 1 a memorandum that envisioned a scenario in which the Vice President would
use the fraudulent slates to claim that there were dueling slates of electors from the targeted
52 See ECF No. 252 at 53 & n.283; SCO- I 2876963 at 03: 15-05 :09 (Audio of Interview 12/ I 6/2020); SCO-1 I 572270
(Email from Co-Conspirator 6 12/09/2020).
53 SCO- I1572270 at 2 (Email to Co-Conspirator 6 12/08/2020).
54 Id. at 1.
55 See ECF No. 252 at 56 & n.301; SCO-02341381 (Fraudulent "Arizona's Electoral Votes for President and Vice
President"); SCO-02341386 (Fraudulent "Georgia's Electoral Votes for President and Vice President");
SCO-02341398 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); SCO-02341415
(Fraudulent "Nevada's Electoral Votes for President and Vice President"); SCO-02341409 (Fraudulent "New
Mexico's Electoral Votes for President and Vice President"); SCO-02341435 (Fraudulent "Pennsylvania's Electoral
Votes for President and Vice President"); SCO-0234 I 449 (Fraudulent "Wisconsin's Electoral Votes for President and
Vice President"); SCO-00405057 (Email to Campaign staff 12/15/2020).
56 See ECF No. 252 at 57-58 & nn.308-310; SCO-00009955 at 64-66; SCO-00806514 at 18 (HSC Tr.);
SCO-02270392 (Emails between RNC Chairwoman and Trump Executive Assistant 12/14/2020).
15
states and negotiate a solution for Mr. Trump to seize power. 57 And on December 16,
Co-Conspirator 5 traveled to Washington with a group of private attorneys who had done work
for Mr. Trump's Campaign in Wisconsin for a meet-and-greet with Mr. Trump in the Oval
Office; 58 as the group left, Co-Conspirator 5 had a direct, private conversation with Mr. Trump. 59
Days later, on December 19, Mr. Trump publicly posted a Tweet demonstrating his own
focus on the certification proceeding and directing his supporters to gather in Washington, D.C.,
to oppose it. At 1 :42 a.m., he posted a copy of a report falsely alleging outcome-determinative
election fraud and wrote, "Statistically impossible to have lost the 2020 Election. Big protest in
D.C. on January 6th. Be there, will be wild!" 60 That same day, Co-Conspirator 5 notified
another attendee of the December 16 Oval Office meeting of Mr. Trump's Tweet, and he
indicated that Mr. Trump had privately foreshadowed his plans for January 6, writing, "Wow.
Based on 3 days ago, I think we have unique understanding of this." 61
C. Mr. Trump's Misuse of Official Power Through the Justice Department
As his efforts to directly pressure state officials to discount legitimate votes failed and the
fraudulent elector plan unfolded, Mr. Trump also tried another tack: he attempted to wield federal
power to perpetuate his fraud claims and retain office. Mr. Trump was frustrated with the Justice
57 See ECF No. 252 at 58 & n.312; SCO-05390160 (Text message from Co-Conspirator 6 to Co-Conspirator 5 and
Campaign staffer 12/12/2020); SCO-00309946 (Email from Co-Conspirator 5 to Co-Conspirator 1 12/13/2020).
58 See ECF No. 252 at 58 & n.315; SCO-00039255 (Email to Co-Conspirator 5 and others 12/15/2020);
SCO-02337874, SCO-02337893, SCO-02337993 (Photographs of Oval Office Meeting 12/16/2020);
SCO-02297155 at 2 (Presidential Daily Diary 12/16/2020); SCO-02297163 at 12-13 (Presidential Daily Diary
12/16/2020); SCO-115 I 0314 at 86-90 (Int. Tr.).
59 See ECF No. 252 at 59 & n.317; SCO-11621981 at 48-52 (Int. Tr.).
60 See ECF No. 252 at 60 & n.319, 136 & n.632; SCO-00455253, SCO-12987427 (Donald J. Trump Tweet
12/19/2020).
61 See ECF No. 252 at 60 & n.320; SCO-12982941 at 2 (Text messages from Co-Conspirator 5 12/19/2020).
16
Department because its criminal investigations had identified no evidence of substantial fraud 62
and the Attorney General had publicly acknowledged this fact in an interview on December 1 by
saying, among other things, "to date, we have not seen fraud on a scale that could have effected a
different outcome in the election." 63 As a result, Mr. Trump considered appointing
Co-Conspirator 4-a Justice Department attorney who worked on civil matters-to be the Acting
Attorney General, because as described below, Co-Conspirator 4 was willing to use the Justice
Department to spread Mr. Trump's lies and pressure targeted states to overturn election results. 64
Throughout the post-election period, Justice Department officials reviewed Mr. Trump's
claims of election fraud, found no support for any of them, and informed him of such. 65 In one
such discussion, when the Acting Attorney General advised Mr. Trump that the Justice
Department could not just "snap its fingers" and change the election outcome, 66 Mr. Trump told
the Acting Attorney General and Acting Deputy Attorney General that they should "just say that
the election was corrupt and leave the rest to me and the Republican congressmen." 67 In the
same call, alluding to replacing Justice Department leadership if they did not do as he directed,
Mr. Trump also said, "people tell me [Co-Conspirator 4] is great. I should put him in." 68 Mr.
Trump knew about Co-Conspirator 4 because he had been introduced to Co-Conspirator 4 by a
62 See, e.g., ECF No. 252 at 158-159; SCO-04957448 at 139-140 (SJC Tr.); SCO-00775937 at 59-63, 106-108 (HSC
Tr.); SCO-12263324 at 5-12 (Handwritten notes 12/27/2020); SCO-00764172 at 18-19 (HSC Tr.).
63 See ECF No. 252 at 158-159 & n.705; SCO-00689680 at 2 (Michael Balsamo, Disputing Trump, Barr says no
widespread election fraud, ASSOCIATED PRESS, Dec. 1, 2020).
64 SCO-00775937 at 62, 107 (HSC Tr.); SCO-04957448 at 46-51 (SJC Tr.); SCO-11522446 at 23-24 (Int. Rep.);
SCO-11511407 at 177-183 (Int. Tr.); SCO-11542142 at 90-98 (Int. Tr.); SCO-115173 80 at 96-99 (Int. Tr.).
65 See, e.g., SCO-00775937 at 47-58 (HSC Tr.); SCO-00764172 at 18-19 (HSC Tr.).
66 SCO-00775937 at 58 (HSC Tr.); SCO-12263324 at 8 (Handwritten notes 12/27/2020).
67 SCO-00775937 at 58 (HSC Tr.); SCO-12263324 at 9 (Handwritten notes 12/27/2020).
68 SCO-12264603 at 88 (SJC Tr.); see also SCO-0077593 7 at 62 (HSC Tr.).
17
Member of Congress and had been secretly engaging with Co-Conspirator 4, who was
communicating with Mr. Trump in contravention of policies designed to protect the
independence of the Justice Department. 69
On December 28, as his secret communications with Mr. Trump continued,
Co-Conspirator 4 emailed the Acting Attorney General and Acting Deputy Attorney General a
proposed letter that falsely claimed that the Justice Department had "identified significant
concerns that may have impacted the outcome of the election in multiple States" and
recommended that those state legislatures convene in special session to reconsider certification
of their electoral votes. 7 ° Co-Conspirator 4 proposed to "send it to the Governor, Speaker, and
President pro temp of each relevant state to indicate that in light of time urgency and sworn
evidence of election irregularities presented to courts and to legislative committees, the
legislatures thereof should each assemble and make a decision about elector appointment in light
of their deliberations." 71 Within about an hour of receiving the draft letter, the Acting Deputy
Attorney General pointedly rejected Co-Conspirator 4's proposal, writing, '"I know of nothing
that would support the statement, 'we have identified significant concerns that may have
impacted the outcome of the election in multiple states."' 72 He also observed that the Justice
Department had no role in states' administration of their own elections, writing, "I cannot
imagine a scenario in which the Department would recommend that a State assemble its
69 SCO-02270007 (Email from Co-Conspirator 4 12/22/2020) (coordinating arrival); SCO-04957448 at 84-86 (SJC
Tr.); SCO-12420899, SCO-12420900 (Email with attachment 11/11/2020) (memo regarding White House
communications); SCO-00827266 at 54-58 (HSC Tr.); SCO-12941569 (Signal messages between Co-Conspirator 4
and Member of Congress 12/21/20); SCO-12947964 (Signal messages between Co-Conspirator 4 and Member of
Congress 12/22/20); SCO-12947874, SCO-12947878 (Signal messages between Co-Conspirator 4 and Member of
Congress, with attachment 12/21/20).
70 SCO-12481890, SCO-12481891 (Email from Co-Conspirator 4, with attachment 12/28/2020).
11 Id.
72 SCO-12392895 (Email to Co-Conspirator 4 12/28/2020).
18
legislature to determine whether already-certified election results should somehow be overridden
by legislative action." 73
Nonetheless, Mr. Trump continued to circumvent Justice Department leadership and
engage directly with Co-Conspirator 4. With Mr. Trump's intervention, Co-Conspirator 4
obtained a highly classified briefing on foreign interference in the 2020 election on January 2,
2021-a briefing that yielded nothing to support the conspirators' allegations, as demonstrated
by contemporaneous electronic messages between Co-Conspirator 4 and the same Member of
Congress who had introduced Co-Conspirator 4 to Mr. Trump. 74 Yet the following day, Mr.
Trump attempted to install Co-Conspirator 4 as the Acting Attorney General. On January 3, after
Mr. Trump offered the position to Co-Conspirator 4 and Co-Conspirator 4 informed Justice
Department senior leadership that he was accepting it, 75 Mr. Trump, Co-Conspirator 4, and
senior officials from the Justice Department and White House Counsel's Office gathered for a
hastily scheduled meeting in the Oval Office. 76 Mr. Trump made clear that he wanted to appoint
Co-Conspirator 4 because Co-Conspirator 4 would cause the Justice Department to send to the
targeted states the false letter that the Acting Attorney General and the Acting Deputy Attorney
General had rejected as inaccurate and improper. 77 Mr. Trump ultimately did not do so only
because he was informed that if he did, mass resignations within the Justice Department and the
73 Id.
74 SCO-12946533 at 2 (Signal messages between Co-Conspirator 4 and Member of Congress 01/02/2021) ("Bottom
line is there is nothing helpful to P.").
75 SCO-04957448 at 157-159 (SJC Tr.).
76 SCO-12264603 at 47-48 (SJC Tr.); SCO-04957448 at 46-48 (SJC Tr.); SCO-11522446 at 23-24 (Int. Rep.);
SCO-11542142 at 95 (Int. Tr.).
77 SCO-12264603 at 49, 152-153 (SJC Tr.); SCO-04957448 at 48-52 (SJC Tr.); SCO-11542142 at 97- 100 (Int. Tr.).
19
White House would result in Co-Conspirator 4 "leading a graveyard." 78 Near the end of the
meeting, when Co-Conspirator 4 raised the idea of the Justice Department opining on the Vice
President's role during the congressional certification, Mr. Trump told all those assembled that
no one other than him should be talking to the Vice President. 79
D. Mr. Trump's Pressure on the Vice President
Mr. Trump wanted no one else speaking with Vice President Pence because he and
co-conspirators were already implementing a secret plan to use Mr. Pence's ministerial role as
President of the Senate to Mr. Trump's advantage. Co-Conspirator 2, with assistance from
Co-Conspirators 5 and 6, spearheaded the execution of a strategy-which Co-Conspirator 2 had
recently conceded was not supported by the Constitution or federal law80-for Mr. Pence to
decline to count the legitimate electoral certificates in the targeted states where Mr. Trump's
electors had signed fraudulent ones. 81 In the weeks before the certification, Mr. Trump began
pressuring Mr. Pence to cooperate, both directly and by mobilizing Mr. Trump's supporters.
In repeated conversations, day after day, Mr. Trump pressed Mr. Pence to use his
ministerial position as President of the Senate to change the election outcome, often by citing
false claims of election fraud as justification; he even falsely told Mr. Pence that the "Justice
Department [was] finding major infractions." 82 When Mr. Pence repeatedly refused to act as Mr.
78 SCO-00709557 at 159 (SJC Tr.); SCO-11542142 at 99 (Int. Tr.); see also SCO-0077593 7 at 125 (HSC Tr.).
79 SCO-11517380 at l 0 1- I04 (Int. Tr.).
80 See ECF No. 252 at 61 & n.324; SCO-01576281 at 2, SCO-01576283 at 2 (Email from Co-Conspirator 2, with
attachment l 0/16/2020); SCO-1298630 I.
81 See ECF No. 252 at 65 & n.352; SCO-12184337, SCO-12184338 (Email and memo from Co-Conspirator 2 to
Co-Conspirator 5 and Co-Conspirator 6 12/23/2020); SCO-12101300, SCO-12101301 (Email and memo from
Co-Conspirator 2 to Co-Conspirator 6 01/03/2021).
81 See, e.g., ECF No. 1 at~ 90; see ECF No. 252 at 62-74; see, e.g., SCO-00014655 at 157-182; SCO-00014442 at
29-43 (Pence, So Help Me God pp. 441-455); SCO-04982306 (Handwritten notes 12/25/2020); SCO-04982309
20
Trump wanted, 83 Mr. Trump told him that "hundreds of thousands" of people would "hate his
guts" and think he was "stupid," and that Mr. Pence was "too honest." 84 Surrounding these
communications, Mr. Trump frequently took to Twitter to exhort supporters to travel to
Washington for January 6, such as when he tweeted on January 1, "The BIG Protest Rally in
Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow.
StopTheSteal!" 85
On January 4, two days before the certification proceeding, Mr. Trump arranged for Mr.
Pence to meet with Co-Conspirator 2 in the Oval Office, in hopes that Co-Conspirator 2 could
convince Mr. Pence to accede. 86 During the meeting, Co-Conspirator 2 outlined two ways that
he claimed Mr. Pence could affect the election outcome using his role in the certification: he
could reject the legitimate electors outright-denying Mr. Biden an electoral majority and likely
sending the selection of the President to the House of Representatives, where fellow Republicans
controlled the majority of state delegations-or he could send the elector slates to targeted states'
legislatures for them to choose which electoral votes should be counted-affording Republicancontrolled
legislatures the opportunity to reject Mr. Biden's electors and replace them with Mr.
Trump's. 87 In response to Mr. Pence's questioning, Co-Conspirator 2 admitted that both
(Handwritten notes 12/29/2020); SCO-049823 13 (Handwritten notes 0 l /02/2021 ); SCO-04982315 (Handwritten
notes 0 1/03/2021); SCO-04982330 (Handwritten notes 0 1/04/2021).
83 See, e.g., ECF No. 252 at 62 & nn.332-333, 63 & n.338, 65 & nn.349-350, 71 & nn.394-395; SCO-00014655 at
157-182; SCO-00014442 at 29-43 (Pence, So Help Me God pp. 441-455); SCO-04982330 (Handwritten notes
01/04/2021); SCO-04982320 at 2 (Handwritten notes 0 1/06/2021) (noting "I don't have the authority").
84 See ECF No. 252 at 63 & n.338; SCO-00014442 at 34 (Pence, So Help Me Godp. 446).
85 See, e.g., ECF No. 252 at 64 & n.340; SCO-00455068, SCO-12987393 (Donald J. Trump Tweet 01/01/2021); see
also, e.g., SCO-00455147, SCO-12987408 (Donald J. Trump Tweet 12/26/2020).
86 See ECF No. 252 at 64 & nn.344-345, 65 & n.353; SCO-11618747 at 156-158, 166-169 (Text messages from
Co-Conspirator 601/02/2021-01/05/2021); SCO-02301015 at 4 (Presidential Daily Diary 0 1/04/2021).
87 See ECF No. 252 at 66 & n.362; SCO-00007167 at 50-51; SCO-11527024 at 187-189 (Int. Tr.); SCO-00016118 at
73-74; SCO-00014442 at 38-39 (Pence, So Help Me God pp. 450-451 ).
21
proposals violated the ECA and were untested. 88 When Mr. Pence turned to Mr. Trump and
pointed out that even "[Mr. Trump's] lawyer," Co-Conspirator 2, did not think Mr. Pence had the
authority to return electoral votes to the states, Mr. Trump responded that he "like[d] the other
thing better," which Mr. Pence understood to mean Mr. Pence simply rejecting the electoral votes
outright. 89 In the end, Mr. Pence again stated that he did not believe he could do what he was
being asked. 90
That night, Mr. Trump used a speech in Dalton, Georgia, to focus the crowd on the idea
that Mr. Pence could change the results of the election, saying, "I hope Mike Pence comes
through for us, I have to tell you. I hope that our great Vice President, our great Vice President
comes through for us. . . . Of course, if he doesn't come through, I won't like him quite as
much." 91 The next day, on January 5, when Mr. Trump again failed to make headway with Mr.
Pence in a private conversation, Mr. Trump warned that he would have to publicly criticize Mr.
Pence. 92 Mr. Trump then (in response to a New York Times report on the conversation between
Mr. Trump and Mr. Pence) issued a false statement claiming, "The Vice President and I are in
total agreement that the Vice President has the power to act." 93
88 See ECF No. 252 at 67 & n.363; SCO-00014442 at 38-39 (Pence, So Help Me God pp. 450-451); SCO-00007167
at 52-53; SCO-00016118 at 75-76.
89 See ECF No. 252 at 67 & n.364; SCO-00014442 at 39 (Pence, So Help Me God p. 451); SCO-00007167 at 51;
SCO-00016118 at 74-78.
90 See ECF No. 252 at 67 & n.366; SCO-00014442 at 39 (Pence, So Help 1\;fe Godp. 451); SCO-00007167 at 55-56.
91 See ECF No. 252 at 68 & n.371; SCO-02235176 at 3 (Remarks by Mr. Trump at Victory Rally in Dalton, GA
01/04/2021); SCO-04976283 at 10:56-11: 15 (Video of Dalton, GA speech 0 1/04/2021).
92 See ECF No. 252 at 71 & nn.392-396; SCO-00016118 at 107-110; SCO-00014655 at 189, 193-200;
SCO-00014442 at 41-42 (Pence, So Help 1v!e God pp. 453-454); SCO-04982319 (Handwritten notes 0 1/05/2021).
93 See ECF No. 252 at 72 & n.404; SCO-00444946 (Donald J. Trump Campaign Statement 0 1/05/2021);
SCO-00016118 at 134-136; SCO-11545613 at 152-153 (Int. Tr.); SCO-00829440 at 222-225 (HSC Tr.); SCO-
00810832 at 172-177 (HSC Tr.).
22
E. Mr. Trump's Supporters Attack the United States Capitol
Mr. Trump's efforts to remain in power converged and culminated on January 6, the day
that Mr. Biden was to be certified President. That day, Mr. Trump was scheduled to speak at the
Ellipse to the crowd of supporters he had summoned to Washington with false claims of election
fraud. 94 At around 1 :00 a.m. on the morning of January 6, Mr. Trump tweeted: "If Vice President
@Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify
the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT
approved by their State Legislatures (which it must be). Mike can send it back!" 95 Just before
he left the White House to give his speech at the Ellipse, Mr. Trump phoned Mr. Pence one last
time; 96 when Mr. Pence told Mr. Trump that he planned to issue a public statement making clear
that he lacked the authority to do what Mr. Trump wanted, Mr. Trump expressed anger at him. 97
He then directed staffers to re-insert into his planned Ellipse speech some language that he had
drafted earlier targeting Mr. Pence. 98
94 See ECF No. 252 at 136 & nn.631-632, 139-140 & nn.642-645; SCO-00454954, SCO-12987365 (Donald J.
Trump Tweet 01/05/2021); SCO-00455147, SCO-12987408 (Donald J. Trump Tweet 12/26/2020); SCO-00455067,
SCO-12987392 (Donald J. Trump Tweet 01/01/2021); SCO-00454979, SCO-12987370 (Donald J. Trump Tweet
01/04/2021).
95 See ECF No. 252 at 72-73 & n.405, 137 & n.636; SCO-00454942, SCO-12987357 (Donald J. Trump Tweet
01/06/2021).
96 See ECF No. 252 at 73 & n.410, 140 & n.646; SCO-00014442 at 47-48 (Pence, So Help Me God pp. 459-460);
SCO-11532623 at 203 (Int. Tr.); SCO-11534332 at 211 (Int. Tr.).
97 See ECF No. 252 at 73-74 & n.411, 140 & n.647; SCO-11522446 at 25 (Int. Rep.); SCO-00014655 at 206-207;
SCO-00014442 at 47-48 (Pence, So Help Me God pp. 459-460); SCO-04982320 (Handwritten notes 0 1/06/2021).
98 See ECF No. 252 at 74 & n.412, 140 & n.648; SCO-00013901 at 59-60; SCO-02241925 (Save America Rally
Draft Speech 01/06/2021); SCO-00017298 at 135-139; SCO-00842413 at 163-165 (HSC Tr.); SCO-02343119
(Email among Speechwriting staff 01/06/2021); SCO-02343413 (Email from Speechwriter 01/06/2021);
SCO-00006256 at 160; SCO-11522446 at 26 (Int. Rep.).
23
During his speech at the Ellipse, 99 Mr. Trump made one more attempt to retain power. In
his remarks, Mr. Trump repeated many of the same lies he had been telling for monthsregarding
dead voters, non-citizen voters, and vote dumps-and he told newer ones: lies that
targeted states wanted to change their electors and that Mr. Pence had the authority, and might be
persuaded, to change the election results. 100 The lie regarding Mr. Pence was particularly
deceptive because Mr. Trump knew what his supporters in the crowd did not: that Mr. Pence had
just told him in no uncertain terms that he would not do what Mr. Trump was demanding.
Mr. Trump told the crowd-a crowd of his supporters that he had remarked to advisors
the night before was "angry" 101-that the election had been stolen and the country would no
longer exist if this purported crime were not stopped; and that the discovery of "fraud" licensed
them to "go by very different rules." 102 Although Mr. Trump at one point also told his supporters
to "peacefully and patriotically make [their] voices heard," 103 he used the word "fight" more than
ten times in the speech before concluding by directing his supporters to march to the Capitol to
give allied Members of Congress "the kind of pride and boldness they need to take back our
99 Mr. Trump's speech at the Ellipse on January 6, 2021, was a Campaign event. The rally at which Mr. Trump
spoke was planned and executed by private political supporters, and it was completely funded by a $2.1 million
private donation. Mr. Trump promoted the event using the word "rally," a word connoting a private political effort,
and Mr. Trump's White House staff recognized the event to be a private, unofficial exercise. Finally, the speech
itself used campaign language and closely resembled Mr. Trump's other campaign speeches, including one he had
given in Dalton, Georgia, for the Senate runoff election just two days earlier. See ECF No. 252 at 118-126 &
nn.577-598.
100 See ECF No. 252 at 75-76 & nn.423-428; SCO-02244118 at 3, 6, 11-12, 16-17 (Remarks by Mr. Trump at Save
America Rally 0 1/06/2021).
101 See ECF No. 1 at~ 98; SCO-00015613 at 155-156.
102 See ECF No. 252 at 77 & nn.432-436; SCO-02244118 at 19-20 (Remarks by Mr. Trump at Save America Rally
01/06/2021).
103 See SCO-02244118 at 6 (Remarks by Mr. Trump at Save America Rally 0 1/06/2021).
24
country." 104 He also told the angry crowd that "if you don't fight like hell, you're not going to
have a country anymore." 105 Throughout the speech, Mr. Trump gave his supporters false hope
that through such action, they could cause Mr. Pence to overturn the election results, even
improvising new lines directed at Mr. Pence as the speech went on. 106
At Mr. Trump's urging, thousands of his supporters marched from the Ellipse to the
Capitol building. 107 There, Mr. Pence began the certification at around 1 :00 p.m. 108 Outside the
building, the crowd swelled and broke through barriers cordoning off the grounds. 109 The crowd
that attacked the Capitol was filled with Mr. Trump's supporters, as made clear by their Trump
shirts, signs, and flags. 110 As described in detail below, the crowd violently attacked the law
enforcement officers attempting to secure the building. 111
104 See ECF No. 252 at 77-78 & nn.432-443; SCO-02244118 at 5, 6, 9, 22 (Remarks by Mr. Trump at Save America
Rally 0 1/06/2021).
105 See ECF No. 252 at 77-78 & nn.432-443; SCO-02244118 at 22 (Remarks by Mr. Trump at Save America Rally
01/06/2021).
106 See ECF No. 252 at 76 & nn.430-431; SCO-02244118 at 3 (Remarks by Mr. Trump at Save America Rally
0 l /06/2021 ); compare SCO-02244118 at 16 (Remarks by Mr. Trump at Save America Rally 0 1/06/2021) with SCO-
00745151 at 12 (Save America Rally teleprompter speech 01/06/2021).
107 See ECF No. 252 at 78 & n.444; see also, e.g., SCO-11506080 at 01:09:30 (Video of Save America Rally
01/06/2021); SCO-12918852 (Video of March to Capitol 01/06/2021); SCO-12919559 at 01:30-02:52 (Video of
March to Capitol 0 1/06/2021); SCO-066146 I 9 at 21: 13-22:07 (Video ofFox News Coverage 0 1/06/2021).
108 See ECF No. 252 at 78 & n.445; SCO-12945127 at 20:47 (Video of House Floor 01/06/2021); SCO-03666330 at
2 (Congressional Record 0 1/06/2021).
109 See ECF No. 252 at 78 & n.448; see also, e.g., SCO-12876233 at 02:20-03:50 (Video of Capitol Riot
01/06/2021).
110 See ECF No. 252 at 78-79 & n.450, 82 & n.477; SCO-12806961 at 56:56, SCO-12919902 at 38:59,
SCO-00029113, SCO-12738292, SCO-12806977 at 04:30 (Videos of Capitol Riot 01/06/2021); see also
SCO-11506096 at 61-63 (Int. Tr.).
111 See ECF No. 252 at 82 & nn.475-477; see also, e.g., SCO-12919902 at 38:48, SCO-12738292, SCO-12806977 at
04:30, SCO-12738332, SCO-12919680 at 54:30 (Videos of Capitol Riot 01/06/2021).
25
Photograph of the Capitol on January 6 2021 (John Manchillo/AP) 112
Photograph of the Capitol on January 6, 2021 (Ken Cedeno/UPI) 113
112 Perry Stein, Aaron C. Davis, Spencer S. Hsu, and Tom Jackman, FBI did not hm·e undercol-·er agents at Jan. 6
riots, watchdog says, WASH. POST (Dec. 12, 2024), https://v., -ww.washingtonpost.com/nationalsecurity/2024/
12/12/fbi-jan-6-report/.
113 Doug Cunningham, Jan. 6 rioters face criminal penalties as sentences, cor,victions mount. UNITED PRESS
INTERNATIONAL, INC. (June 2. 2023). https://www.upi.com/Top_News/US/2023/06/02/Jan-6-rioters-sentencesconvictions/
115168 5561006/.
26
Photograph of the Capitol on January 6, 2021 (Shannon Stapleton/Reuters) 114
Photograph ofthe Capitol on January 6, 2021 (Lev Radin/Pacific
Press/LightRocket/Getty Images) 115
114 Hanvwing scenes fivm tl,e Jan 6 U S. Capitol attack. REUTER.s (Oct. 13, 2022),
https://\vv-lw.reuters.com/news/picture/harwwing-scenes-from-the-jan-6-rn;-capit-idUSRTSC60V8/.
115 Aaron Blake, More Republicans now coll Jan. 6 a 'legitimate protest ' than a 'riot, ' WASH. POST (July 7, 2022).
https://www.washingtonpost.com/politic.s/2022/07 /07 /many-republicans-no-louger-call-jan-6-an-insurrection-oreven-riot/.
27
Photograph of the Capitol on January 6, 2021 (David Butow/Redux:) 116
Photograph of the Capitol on January 6, 202 l (Roberto Schmidt/ AFP via Getty Images) 117
116 Statement from Leaders, Updated: 'Our Children Aie Watching': Nonprofit and Foundation Leaders Respond to
Capitol Hill Viole.nee, lHE CHRONICLE OF PHil..ANTHR.OPY (Jan. 7, 2021), https://v,-ww.philanthropy.com/article/ho1, vnonprofit-and-foundation-leaders-are-responding-to-capitol-hill-violence.
117 Eric Westervelt, Off-Duty Police Officers Investigated. Charged With Participating In Capitol Riot, NPR (Ja.n.
l S, 2021 ). https://www.npr.org/202 l/O l/ l S/956896923/police-officers-across-nation-face-federal-charges-forinvolvement-i.n-capitol-ri.
28
After his speech, Mr. Trump returned to the White House and, at around 1 :30 p.m.,
settled in the dining room off of the Oval Office. 118 There, he watched television news coverage
of events at the Capitol and reviewed Twitter on his phone. 119 When the angry crowd advanced
on the Capitol building and breached it at around 2: 13 p.m., forcing the Senate to recess, 120
several of Mr. Trump's advisors rushed to the dining room and told him that a riot had started at
the Capitol and that rioters were in the building. 121 Over the course of the afternoon, they
forcefully urged Mr. Trump to issue calming messages to his supporters. 122 Mr. Trump resisted,
repeatedly remarking that the people at the Capitol were angry because the election had been
stolen. 123
Just before 2:24 p.m., the news channel playing on the television in the dining room
where Mr. Trump was sitting aired an interview with an individual marching from the Ellipse to
the Capitol, who expressed his anger at Mr. Pence and stated, "But I still believe President
118 See ECF No. 252 at 79 & n.452; SCO-00783547 at 36-39 (HSC Tr.); SCO-00015613 at 180.
119 See ECF No. 252 at 79 & nn.451-452; SCO-00783547 at 38-39 (HSC Tr.); SCO-11528445 at 52-53 (Int. Tr.);
SCO-00015613 at 183-185; SCO-00006256 at 164, 168; SCO-11522446 at 26 (Int. Rep.); SCO-00481112
(Spreadsheet of Data from Mr. Trump's White House Phone).
120 See ECF No. 252 at 79 & n.453; SCO-12881998 at 01:04-01:25 (Video of Senate Wing Door CCTV
01/06/2021); SCO-12945145 at 44: 16-44:36 (Video of Senate Floor 0 1/06/2021).
121 See ECF No. 252 at 141 & n.653; SCO-00006256 at 163-166; SCO-00015002 at 37-38; SCO-00686662 at 117-
119 (HSC Tr.) (recalling entering the dining room with Mr. Trump and conveying "this was a situation now out of
control" while they were "all fixated on the television set"); SCO-11532623 at 222-228, 235 (Int. Tr.) (recalling Mr.
Trump being told about riot at Capitol); SCO-00003294 at 114.
122 See, e.g., ECF No. 252 at 141-142 & nn.653, 663; SCO-00015613 at 194-201; SCO-00003294 at 115-116, 121-
123, 131-132; SCO-11511407 at 227-228 (Int. Tr.); SCO-00006256 at 164-166, 174; SCO-11522446 at 26 (Int.
Rep.) (recalling presenting Mr. Trump with draft language for a statement that was never published); SCO-00015002
at 38; SCO-11542142 at 134-135 (Int. Tr.) ("I thought that the President had to issue a strong statement, quickly,
telling everybody to leave the Capitol, and condemning what was going on there."); SCO-11532623 at 240, 262-265
(Int. Tr.) (recalling a staffer entering the dining room and telling Mr. Trump to "call for calm" and asking Mr.
Trump's daughter to "come in to help advocate with the President").
123 See ECF No. 252 at 141 & n.654; SCO-00006256 at 164-166; SCO-00015613 at 189, 202-203; SCO-00011109
at 179-182; SCO-11534332 at 193-194 (Int. Tr.) (recalling Mr. Trump commenting to House Minority Leader that
"a lot of these people are upset with the election ... they felt like it was stolen from him" and that "maybe these
people are more upset about the election results than you are").
29
Trump has something else left." 124 Then, at 2:24 p.m., sitting alone, Mr. Trump issued a Tweet
attacking Mr. Pence and fueling the riot: "Mike Pence didn't have the courage to do what should
have been done to protect our Country and our Constitution, giving States a chance to certify a
corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously
certify. USA demands the truth!" 125 One minute later, the United States Secret Service was
forced to evacuate Mr. Pence to a secure location at the Capitol. 126 When an advisor at the White
House learned this, he rushed to the dining room and informed Mr. Trump, who replied
"So what?" 127
The rioters at the Capitol had been motivated and directed by Mr. Trump, and he
continued to resist advisors' requests to direct them to leave. Throughout the afternoon, crowds
at the Capitol hunted for Mr. Pence and other lawmakers, with some chanting, "Hang Mike
Pence!" 128 At 2:38 p.m. and 3:30 p.m., Mr. Trump issued two Tweets falsely suggesting that
events at the Capitol were "peaceful" and asking individuals there (whom he termed "WE") to
remain that way: "Please support our Capitol Police and Law Enforcement. They are truly on the
side of our Country. Stay Peaceful!" and, "I am asking for everyone at the U.S. Capitol to
remain peaceful. No violence! Remember, WE are the Party of Law & Order-respect the Law
124 See ECF No. 252 at 79-80 & nn.452, 460; SCO-06614619 at 21:45-22:42 (Video of Fox News Coverage
01/06/2021).
125 See ECF No. 252 at 80 & n.462, 141 & nn.655, 657; SCO-00456476, SCO-12987690 (Donald J. Trump Tweet
01/06/2021); SCO-00015613 at 188-189, 196-198; SCO-00011109 at 160-I61.
126 See ECF No. 252 at 81 & n.465, 141 & n.658; SCO-00029459 (Video of Pence Evacuation 01/06/2021).
127 See ECF No. 252 at 142 & n.662; SCO-00009250 at 214-220.
128 See ECF No. 252 at 81 & n.466; SCO-12876211, SCO-12738313, SCO-12738317, SCO-12738306,
SCO-12738312 at 00:59-01:40 (Videos of Capitol Riot 01/06/2021).
30
and our great men and women in Blue. Thank you!" 129 At 4: 17 p.m., he tweeted a video
message in which he for the first time asked his supporters to leave the Capitol-while at the
same time falsely claiming that "[w]e had an election that was stolen from us ... a landslide
election," and embracing the people who had attacked the Capitol, telling them "we love you,
you're very special." 130 And at 6:01 p.m., he tweeted, "These are the things and events that
happen when a sacred landslide election victory is so unceremoniously & viciously stripped
away from great patriots who have been badly & unfairly treated for so long. Go home with love
& in peace. Remember this day forever!" 131
At around the same time as he issued his 6:01 p.m. Tweet, Mr. Trump tried to reach two
United States Senators, and he also directed Co-Conspirator 1 to call Members of Congress and
attempt to enlist them to further delay the certification. 132 When Mr. Trump's White House
Counsel called him at around 7:00 p.m. and asked him to withdraw any objections to the
certification, Mr. Trump refused. 133 Nonetheless, the certification resumed late in the evening of
119 See ECF No. 252 at 142 & nn.664-665; SCO-00454933, SCO-04963517, SCO-00454932, SCO-04963518
(Donald J. Trump Tweets O1/06/2021).
130 See ECF No. 252 at 143 & n.666; SCO-00456473 (Video of Rose Garden Speech 01/06/2021); SCO-12876968
(Draft Tr. of Rose Garden Speech O1/06/2021).
131 See ECF No. 252 at 143 & n.667; SCO-00456472, SCO-12987689 (Donald J. Trump Tweet 01/06/2021).
132 See ECF No. 226 at 1 97(c) and (d); ECF No. 252 at 83-84 & nn.485-492; SCO- 12706940 at row 1383
(Spreadsheet of Executive Assistant's text messages); SCO-02131850 at 2392 (Toll Records O 1/06/2021);
SCO-00009250 at 234-235; SCO-11616952 (Email from Executive Assistant 01/06/2021); SCO-00404535 (Text
Message from Co-Conspirator 6 01/06/2021); SCO-11520423 ( Co-Conspirator 1 Toll Analysis O1/06/2021);
SCO-02035182 at 5396-5397 (Co-Conspirator I Toll Records 01/06/2021); SCO-02054919 at 71 (Co-Conspirator I
Toll Records 01/06/2021); SCO-04134777 (Voicemail from Co-Conspirator 1 01/06/2021) (telling Senator, "We
need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information
to you. And I know they're reconvening at eight tonight but the only strategy we can follow is to object to numerous
states and raise issues so that we get ourselves into tomorrow-ideally until the end of tomorrow."); SCO-06475675
(Voicemail from Co-Conspirator 1 01/06/2021) (asking Senator to "object to every state and kind of spread this out a
little bit like a filibuster").
133 See ECF No. I at 1 120; SCO-00003294 at 141-143; SCO-02301375 at 4 (Presidential Daily Diary 01/06/2021).
31
January 6 and, at 3:41 a.m. on January 7, Mr. Pence announced the certified results of the 2020
presidential election in favor of Mr. Biden. 134
As he did in his 4:17 p.m. and 6:01 p.m. Tweets on January 6, Mr. Trump has provided
additional evidence of his intent by continuing to support and ally himself with the people who
attacked the Capitol. He has called them "patriots" 135 and "hostaoes " 136 reminisced about
b '
January 6 as a "beautiful day," 137 and championed the "January 6 Choir," 138 a group of January 6
defendants who, because of their dangerousness, are detained at the District of Columbia jail. 139
134 See ECF No. 252 at 85 & n.495; SCO-04955950 at 19:14-20:34 (Video of Congress Joint Session 01/06/2021);
SCO-03666330 at 41 (Congressional Record 0 1/06/2021).
135 See ECF No. 252 at 83 & n.478; SCO-04976301 at 16:52-17:02 (Video of Waco Rally 03/25/2023);
SCO-04976442 at 48:29-48:44 (Video of Mr. Trump at Faith and Freedom Coalition 06/17/2022); SCO-04976291 at
16:42-16:58 (Video ofTrump Interview 02/01/2022).
136 See ECF No. 252 at 83 & n.479; SCO-12982756 at 35:50-36:22 (Video of Greensboro Rally 03/02/2024).
137 See ECF No. 252 at 83 & n.481; SCO-12851309 at 45:18-45:40 (Video of Trump Interview 08/23/2023);
SCO-04958191 at7 (CNN Town Hall Tr. 05/10/2023).
138 See ECF No. 252 at 83 & nn.482-483; SCO-04976301 at 03:00-05:35 (Video of Waco Rally 03/25/2023);
SCO-12982756 at 35:50-36:21 (Video of Greensboro Rally 03/02/2024).
139 See United States v. Nichols, No. 21-mj-29, ECF No. 9 (E.D. Tex. Jan. 25, 2021) (ordering pretrial detention in
prosecution of defendant who later became a member of the "January 6 choir"); United States v. Nichols, No. 2 l-cr-
117, ECF No. 75 (D.D.C. Dec. 23, 2021) (denying defendant's motion for pretrial release); id, ECF No. 307 at 27
n. IO, 35-36 (D.D.C. Apr. 30, 2024) (government sentencing memorandum referencing defendant's involvement in
"January 6 choir"); see also United States v. Mink, No. 21-mj-105, ECF No. 19 (W.D. Pa. Jan. 29, 2021) (in
prosecution of defendant who later became a member of the "January 6 choir," ordering defendant's pretrial
detention); United States v. 1vfink, No. 21-cr-25, ECF No. 45 (D.D.C. Dec. 13, 2021) (court order denying
defendant's motion to revoke pretrial detention); United States v. Sandlin, No. 21-mj-110, ECF No. 8 (D. Nev. Feb.
3, 2021) (ordering pretrial detention in prosecution of defendant who later became a member of the "January 6
choir"); United States v. Sandlin, No. 2 l-cr-88, ECF No. 31 (D.D.C. Apr. 13, 2021) (denying defendant's motion for
release on bond); id., ECF Nos. 44, 44-1 (D.D.C. Aug. 31, 2021) (mandate return following denial of defendant's
appeal of pretrial detention order); United States v. Shively, No. 21-cr-151, ECF No. 42 (D.D.C. May 9, 2022) (in
prosecution of defendant who later became a member of the "January 6 choir," revoking conditions of release and
ordering pretrial detention); United States v. Khater, No. 21-cr-222, ECF No. 25 (D.D.C. May 12, 2021) (in
prosecution of defendant who later became a member of the "January 6 choir," denying defendant's motion for
release from custody); United States v. McGrew, No. 21-cr-398, ECF No. 40 (D.D.C. Nov. 2, 2021) (order of
detention pending trial in prosecution of defendant who later became a member of the "January 6 choir").
32
II. THE LAW
Based on the above facts, and after analyzing the relevant criminal statutes, the Office
sought, and a grand jury found probable cause for, an indictment of Mr. Trump on four federal
charges: conspiring to obstruct the governmental function of selecting and certifying the
President of the United States, in violation of 18 U.S.C. § 371; obstructing and attempting to
obstruct the official proceeding on January 6, 2021, in violation of 18 U.S.C. § 1512(c)(2);
conspiring to obstruct the official proceeding, in violation of 18 U.S.C. § 1512(k); and conspiring
to violate the federal rights of citizens to vote and have their votes counted, in violation of 18
U.S.C. § 241. Because of the unprecedented facts and the variety of legal issues that would be
litigated in this case, the Office was aware that the case would involve litigation risks, as would
any case of this scope and complexity. However, after an exhaustive and detailed review of the
law, the Office concluded that the charges were well supported and would survive any legal
challenges absent a change in the law as it existed at the time of indictment.
As set forth in Section VD below, after the original indictment was returned, the Supreme
Court ruled in Trump v. United States, 603 U.S. 593 (2024), that Mr. Trump had absolute
immunity for core presidential conduct, enjoyed a rebuttable presumption of immunity for other
official presidential acts, and had no immunity for unofficial conduct. Id. at 606, 609, 614-615.
The Supreme Court's decision required the Office to reanalyze the evidence it had
collected. The original indictment alleged that Mr. Trump, as the incumbent President, used all
available tools and powers, both private and official, to overturn the legitimate results of the
election despite notice, including from official advisors, that his fraud claims were false and he
had lost the election. Given the Supreme Court's ruling, the Office reevaluated the evidence and
assessed whether Mr. Trump's non-immune conduct-either his private conduct as a candidate or
official conduct for which the Office could rebut the presumption of immunity-violated federal
33
law. The Office concluded that it did. After doing so, the Office sought, and a new grand jury
issued, a superseding indictment with identical charges but based only on conduct that was not
immune because it was either unofficial or any presumptive immunity could be rebutted. This
section reviews the federal laws violated by Mr. Trump's non-immunized conduct.
A. Conspiracy to Defraud the United States (18 U.S.C. § 371)
The defraud clause of the general conspiracy statute makes it a crime "[i]f two or more
persons conspire ... to defraud the United States, or any agency thereof in any manner or for any
purpose, and one or more of such persons do any act to effect the object of the conspiracy." 18
U.S.C. § 371. The defraud clause applies not just to schemes to cheat the government out of
money or property, but also to schemes "to interfere with or obstruct one of its lawful
governmental functions by deceit, craft or trickery, or at least by means that are dishonest."
Hammerschmidt v. United States, 265 U.S. 182, 188 (1924). Under longstanding, established
precedent, the government must prove the following elements to establish a violation of the
defraud clause: (1) the defendant "entered into an agreement, (2) to obstruct a lawful function of
the government or an agency of the government, (3) by deceitful or dishonest means, and ( 4) at
least one overt act was taken in furtherance of that conspiracy." United States v. Concord Mgmt.
& Consulting LLC, 347 F. Supp. 3d 38, 46 (D.D.C. 2018) (citation and quotations omitted); see
also Hammerschmidt, 265 U.S. at 188; United States v. Dean, 55 F.3d 640,647 (D.C. Cir. 1995).
The Office concluded that Mr. Trump's conduct satisfied each of these established elements of a
defraud-clause offense.
The process of selecting and certifying the President, as described above and prescribed
by the Constitution and federal law, is plainly a lawful function of the federal government. Cf
Ray v. Blair, 343 U.S. 214,224 (1952) (noting that "[t]he presidential electors exercise a federal
function"); Burroughs v. United States, 290 U.S. 534, 545 (1934) (stating that electors "exercise
34
federal functions under, and discharge duties in virtue of authority conferred by, the Constitution
of the United States"); United States v. Brock, 94 F.4th 39, 51 (D.C. Cir. 2024) (noting the
"unique congressional function of certifying electoral college votes"). Indeed, Mr. Trump never
challenged the indictment on that basis, though he filed more than 100 pages in support of
dismissal motions. As the court of appeals found in the context of the immunity litigation in this
case, "[f]ormer President Trump's alleged efforts to remain in power despite losing the 2020
election were, if proven, an unprecedented assault on the structure of our government." United
States v. Trump, 91 F.4th 1173, 1199 (D.C. Cir. 2024), vacated and remanded on other grounds,
603 U.S. 593 (2024). Mr. Trump also sought to obstruct the certification; his sole objective was
to ensure that no one other than himself was certified as the President. Nor is there any doubt
that Mr. Trump conspired with others to achieve his goal, and that at least one overt act was
committed.
With three of the four elements of a Section 371 violation established, the Office
anticipated that a central dispute at trial would be whether Mr. Trump pursued his obstructive
purpose by "deceit, craft or trickery, or at least by means that are dishonest." Hammerschmidt,
265 U.S. at 188. The Office concluded that the evidence established beyond a reasonable doubt
that he did.
The core of Mr. Trump's obstructive scheme was a false narrative of outcomedeterminative
voter fraud, which he and his surrogates frequently repeated and widely
disseminated over the course of two months. Crucially, not only was Mr. Trump's voter-fraud
narrative objectively false-he knew that it was false. Mr. Trump's false claims were repeatedly
debunked, often directly to him by the very people best positioned to ascertain their truth.
Campaign personnel told Mr. Trump his claims were unfounded; so did state officials, a White
35
House official who engaged with Mr. Trump in his capacity as a candidate, and even his own
running mate. 14 ° For example, Mr. Trump's Campaign Manager informed him that a claim that
had been circulating-that a substantial number of non-citizens had voted in Arizona-was
false. 141 State officials issued public statements dispelling Mr. Trump's claims of widespread
election fraud. 142 Georgia's Secretary of State refuted multiple false claims of election fraud
directly to Mr. Trump, including the false allegation that 5,000 dead people had voted in
Georgia. 143 When Mr. Trump raised various fraud allegations with Michigan's Senate Majority
Leader, he was told that he had lost because he had underperformed with educated females. 144
Vice President Pence told Mr. Trump that he had seen no evidence of outcome-determinative
fraud in the election. 145 And, tellingly, a Senior Advisor reiterated to Mr. Trump that CoConspirator
1 would be unable to prove his false fraud allegations in court, to which Mr. Trump
responded, "The details don't matter." 146
Courts in which Mr. Trump brought numerous lawsuits all rebuffed his claims, which in
some instances prompted him to issue public rebukes acknowledging those decisions. 147 Still
140 See ECF No. 252 at 11-12 & nn.34-40, 13-14 & nn.45-51, 17-18 & n.69, 24 & nn.112-113, 29-30 & nn.136-144,
32-33 & nn.159-160, 38 & nn.189-191, 39 & n.200, 46-47 & nn.241-244; see also SCO-00006256 at 46-50, 70-77;
SCO-12920242 at 1-7 (Int. Rep.); SCO-00014655 at 38-44, 63-66, 91-96, 98-102; SCO-00016750 at 58-63;
SCO-11509251 at 40-42 (Int. Tr.); SCO-12998394 at 4, 6-10 (Tr. of Georgia Secretary of State Call 01/02/2021);
SCO-00829361 at 15-17 (HSC Tr.); SCO-00016926 at 20-22; SCO-00003548 at 171; SCO-00009955 at 109-112.
141 See ECF No. 226 at ,r 18; ECF No. 252 at 17-18 & n.69; SCO-00016750 at 58-63.
142 See ECF No. 226 at ,r 13; ECF No. 252 at 14 & nn.52-53; see also supra at n.12.
143 See ECF No. 252 at 29-30 & nn.136-144; SCO-12998394 at 4, 6-10 (Tr. of Georgia Secretary of State Call
01/02/2021).
144 See ECF No. 252 at 32-33 & nn.159-160; SCO-00829361 at 15-17 (HSC Tr.).
145 See ECF No. 252 at 12 & n.40; SCO-00014655 at 38-44.
146 See ECF No. 252 at 11-12 & nn.34-35; SCO-00006256 at 46-49; SCO-12920242 at I, 4 (Int. Rep.).
147 See ECF No. 252 at 36 & nn.181-182, 41 & nn.208-210, 44-45 & nn.225-230; see also, e.g., Law v. Whitmer, No.
20OC00163 IB, Order at 13-24, 28-34 (Nev. Dist. Ct. Dec. 4, 2020), https://electioncases.osu.edu/wpcontent/uploads/2020/11/Law-v-Gloria-Order-Granting-Motion-to-Dismiss.pdf
[https://perma.cc/32U2-BTA6];
36
other federal and state officials-some appointed by Mr. Trump, and others who publicly
supported and voted for him-publicly debunked allegations of outcome-determinative voter
fraud. 148 Mr. Trump did not reach out to an:y of these officials to ask relevant questions about the
election because he was not seeking honest answers. This was a pattern revealed throughout the
investigation: Mr. Trump unquestioningly accepted at face value and amplified election fraud
claims that benefited his quest to retain power. Conversely, he avoided consulting informed
sources, such as state election officials, who possessed evidence that could debunk his claims.
The Office concluded that this consistent pattern would constitute powerful proof at trial that Mr.
Trump knew the claims he was making were false.
Mr. Trump's false claims were often divergent from one day to the next and otherwise
internally inconsistent. 149 For example, in Arizona, the conspirators started with the allegation
that 36,000 non-citizens voted in that state; 150 five days later, it was "beyond credulity that a few
hundred thousand didn't vote"; 151 three weeks later, "the bare minimum [was] 40 or 50,000. The
reality is about 250,000"; 152 days after that, the assertion was 32,000; 153 and ultimately, the
Trump v. Eiden, 394 Wis. 2d 629, 633 (Wis. 2020); SCO-00455197, SCO-00455196, SCO-00455195,
SCO-12987423, SCO-12987422, SCO-1298742 l (Donald J. Trump Tweets 12/21/2020).
148 See ECF No. 252 at 14 & nn.52-53, 20 & nn.86-87, 23 & n.106, 33 & n.165, 38 & n.192, 42 & n.212, 42-43 &
n.216, 46 & nn.238-239; see also supra at n.12; SCO-04976277 (Video of Georgia Secretary of State Press
Conference l 2/07/2020); SCO-11509450 at 103-104 (Int. Tr.); SCO-03036930 (Joint Statement on Election Security
11/12/2020); SCO-04952679 (Tweet 11/17/2020); SCO-07167983 (Email from GOP Comms Alert circulating
Associated Press article titled "Barr: No evidence of fraud that'd change election outcome" 12/01/2020).
149 See ECF No. 252 at 15 & nn.55-59; SCO-04976384 at 20:46-21 :05 (Common Sense episode 89 11/25/2020);
SCO-04976459 at 02:06:23-02:07:00 (Video of Arizona State Hearing 11/30/2020); SCO-06628641 at 18:52-19:42
(War Room episode 608 12/24/2020); SCO-06628646 at 35:19-35:45 (War Room episode 625 0l/02/2021).
150 See ECF No. 252 at 15 & n.55; SCO-04976384 at 20:46-21 :05 (Common Sense episode 89 l l/25/2020).
151 See ECF No. 252 at 15 & n.56; SCO-04976459 at 02:06:23-02:07:00 (Video of Arizona State Hearing
l l/30/2020).
152 See ECF No. 252 at 15 & n.57; SCO-06628641 at 18:52-19:42 (War Room episode 608 12/24/2020).
153 See ECF No. 252 at 15 & n.58; SCO-06628646 at 35: 19-35:45 (War Room episode 625 01/02/2021).
37
conspirators landed back where they started, at 36,000-a false figure that they never verified or
corroborated. 154 And in Georgia, the conspirators initially suggested that a large enough number
of dead voters had cast ballots to overcome Mr. Trump's losing margin of about 12,000 voters; 155
one month later, the number was 10,315; 156 three days after that, the assertion was "close to
5,000 people"; 157 and then two days later, the number bounced back to 10,315. 158 Mr. Trump
bears legal responsibility for each of these false claims because they were made by him and his
co-conspirators in furtherance of the conspiracy that he led. See Salinas v. United States, 522
U.S. 52, 63-64 (1997) ("The partners in the criminal plan must agree to pursue the same criminal
objective and may divide up the work, yet each is responsible for the acts of each other."); see
also Fed. R. Evid. 80l(d)(2)(E) (statement by an opposing party's "conspirator during and in
furtherance of the conspiracy" is admissible against that party); United States v. Brockenborrugh,
575 F.3d 726, 735 (D.C. Cir. 2009); United States v. Tarantino, 846 F.2d 1384, 1411-1412 (D.C.
Cir. 1988).
The Office developed further evidence of Mr. Trump's knowledge that his claims were
untrue from witnesses who reported that he planned to use fraud claims before the election had
even happened. For instance, in advance of the election, advisors told Mr. Trump that the
election would be close and that initial returns might be misleading, showing an early lead for
Mr. Trump that would diminish as mail-in ballots were counted. In response, Mr. Trump
suggested that if that prediction were true-which it ultimately was-he would simply declare
154 See ECF No. 252 at 15 & n.59; SCO-04976283 at 0 1:04:04-01 :04: 13 (Video of Dalton, GA speech 0 1/04/202 l);
SCO-02244118 at 17 (Remarks by Mr. Trump at Save America Rally 0 1/06/2021).
155 See ECF No. 252 at 21 & n.96; SCO-04976323 at 22:43-23:51 (Video of Trump Interview 11/29/2020).
156 SCO-04976407 at 03:29:00-03:29:34 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/30/2020).
157 See ECF No. 252 at 30 & n.142; SCO-12998394 at 3 (Tr. of Georgia Secretary of State Call 0 1/02/2021).
158 See ECF No. 252 at 122-123 & n.592; SCO-04976283 at 53 :25-53 :59 (Video of Dalton, GA speech 0 1/04/2021).
38
victory before all ballots were counted and a winner was projected. 159 He also made repeated
public statements in the lead-up to election day in which he sowed public doubt in the election
results, setting the stage for his later fraud claims. 160 And Mr. Trump made his first statement
claiming fraud in the election only hours after polls closed-when no investigations had begun,
much less concluded. 161
Mr. Trump's intent in spreading knowing falsehoods was further evidenced by statements
he made to those around him. In private-in contrast with his public false claims-Mr. Trump
made admissions that reflected his understanding that he had lost. In a private moment, Mr.
Trump confessed to his family members that "it doesn't matter if you won or lost the election.
You still have to fight like hell." 162 When President-elect Biden appeared on television in
November, Mr. Trump said to a staffer, "can you believe I lost to this f'ing guy?" 163 And when
his own Vice President declined to join the conspiracy, Mr. Trump berated him for being "too
honest." 164
Because the evidence showed that Mr. Trump knew his claims were false, it amply
satisfied the mens rea standard for a Section 371 charge, which would be satisfied by evidence
that Mr. Trump either knew his fraud claims were false or that he acted with deliberate disregard
for their truth or falsity. The concept of deliberate disregard-sometimes referred to as reckless
159 See ECF No. 252 at 5 & nn.2-4; SCO-11621981 at 74-83, 92-93 (Int. Tr.); SCO-00016750 at 14-18, 27-30;
SCO-00006819 at 9-12, 19-20; SCO-00003548 at 8-29; SCO-00016118 at 144-145.
160 See ECF No. 252 at 6 & nn.5-10; SCO-00712149 at 37:20 (Video of Trump Interview on Fox News 07/19/2020);
SCO-12998418 (Donald J. Trump Tweet 07/30/2020); SCO-12992141 at 57:33 (Video of Oshkosh, WI Rally
08/17/2020); SCO-12992142 at 22:08 (Video of Trump Speech 08/24/2020); SCO-12992143 at 03: 11-03:28 (Video
of Trump Statement 10/27/2020).
161 See ECF No. 252 at 7-8 & n. 16; SCO-04976258 (Video of White House Speech 11/04/2020).
162 See ECF No. 252 at 14-15 & n.54; SCO-00009250 at 156; SCO-11529771 at 99-102 (Int. Tr.).
163 SCO-11521307 at 88 (Int. Tr.).
164 See ECF No. 252 at 63 & n.338; SCO-00014442 at 34 (Pence, So Help Me Godp. 446).
39
disregard, or reckless or deliberate indifference-has deep roots in the law of fraud. See US. ex
rel. Schutte v. Super Valu Inc., 598 U.S. 739, 750-752 (2023); 1 J. Story, Commentaries on Equity
Jurisprudence § 193 (10th ed. 1870) ("Whether the party, thus misrepresenting a material fact,
knew it to be false, or made the assertion without knowing whether it were true or false, is
wholly immaterial; for the affirmation of what one does not know or believe to be true is equally,
in morals and law, as unjustifiable as the affirmation of what is known to be positively false.").
That concept is reflected in case law and jury instructions for the District of Columbia, as well as
precedent from every other circuit. See, e.g., United States v. Philip Morris USA Inc., 566 F.3d
1095, 1121 (D.C. Cir. 2009); 1 Criminal Jury Instructions for the District of Columbia 5.200
(2024). 165 Here, the evidence showed that Mr. Trump decided, even before the election, that he
would allege outcome-determinative fraud, whether it occurred or not, if he were not declared
the winner, and he adhered to that plan-repeating false claims that he knew to be untrue.
Although Mr. Trump's conduct fell comfortably within the established elements of a
defraud-clause offense, the Office noted that the Supreme Court has in several recent decisions
limited the reach of other federal fraud and obstruction statutes. See, e.g., Ciminelli v. United
States, 598 U.S. 306 (2023) (reversing conviction of construction contractor for wire fraud, 18
U.S.C. § 1343, for scheming with public official to tailor bid requirements for government
contracts to favor himself because the government did not prove the defendant deprived the
victim of a traditional property interest); Kelly v. United States, 590 U.S. 391 (2020) (reversing
165 See also, e.g., United States v. Correia, 55 F.4th 12, 26 (1st Cir. 2022); Knickerbocker Merchandising Co. v.
United States, 13 F.2d 544, 546 (2d Cir. 1926); United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995); United
States v. Hester, 880 F.2d 799, 803 (4th Cir. 1989); United States v. Dillman, 15 F.3d 384, 392-393 (5th Cir. 1994);
United States v. Kennedy, 714 F.3d 951,958 (6th Cir. 2013); United States v. Schwartz, 787 F.2d 257,265 (7th Cir.
1986); United States v. Marley, 549 F.2d 561, 563-564 (8th Cir. 1977) ("It must also be noted that the courts have
long recognized that scienter may be established where reckless disregard of truth or falsity is present."); United
States v. Dearing, 504 F.3d 897,903 (9th Cir. 2007); United States v. Cochran, 109 F.3d 660,665 (10th Cir. 1997);
United States v. Clay, 832 F.3d 1259, 1311 (I Ith Cir. 2016).
40
convictions for wire fraud, 18 U.S.C. § 1343, and federal program fraud, 18 U.S.C. § 666, where
defendants aimed to inflict political retribution on mayor by closing lanes of a bridge that served
the mayor's city because the object of the scheme was not to obtain money or property); Skilling
v. United States, 561 U.S. 358 (2010) (paring back honest-services fraud statute, 18 U.S.C.
§ 1346, to reach only core bribery and kickbacks and reversing conviction of executive who was
convicted of making false statements to inflate his company's value but was not alleged to have
taken bribes or kickbacks for his efforts); Arthur Andersen LLP v. United States, 544 U.S. 696
(2005) (requiring showing of knowingly corrupt conduct under obstruction of justice statute, 18
U.S.C. § 1512(b)(2), and reversing conviction of accounting firm convicted of shredding
documents in advance of an SEC investigatory demand based on failure of jury instructions to
convey the requisite consciousness of wrongdoing). Given these decisions restricting the reach
of other fraud and corruption statutes, the Office considered whether the Supreme Court might
also adopt a new construction of the defraud clause in Section 3 71, such as one that would for
the first time limit it to money or property fraud.
The Office concluded, however, that the creation of such a new rule would not be
supported in the law given that the well-established elements of a defraud-clause offense are
firmly grounded in the statute's text, history, and longstanding judicial precedent. For more than
a hundred years, the Supreme Court has "stated repeatedly that the fraud covered by the statute
reaches any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function
of any department of Government" and that this branch of liability is distinct from money-orproperty
limitations in other areas of fraud law. Tanner v. United States, 483 U.S. 107, 128
(1987) (citation and quotations omitted); see Dennis v. United States, 384 U.S. 855, 861 (1966)
("It has long been established that this statutory language is not confined to fraud as that term has
41
been defined in the common law. It reaches any conspiracy for the purpose of impairing,
obstructing, or defeating the lawful function of any department of government.") ( citation and
quotations omitted); Glasser v. United States, 315 U.S. 60, 66 (1942) (upholding prosecution of a
federal prosecutor for conspiring to receive bribes to influence his official duties; no financial
fraud against the United States alleged: "The indictment charges that the United States was
defrauded by depriving it of its lawful governmental functions by dishonest means; it is settled
that this is a 'defrauding' within the meaning of Section 37 of the Criminal Code," the
predecessor to Section 371); Hammerschmidt, 265 U.S. at 188 ("To conspire to defraud the
United States . . . also means to interfere with or obstruct one of its lawful governmental
functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary
that the government shall be subjected to property or pecuniary loss by the fraud, but only that its
legitimate official action and purpose shall be defeated by misrepresentation, chicane, or the
overreaching of those charged with carrying out the governmental intention."); Haas v. Henkel,
216 U.S. 462, 479 (1910) ("[I]t is not essential that such a conspiracy shall contemplate a
financial loss or that one shall result. The statute is broad enough in its terms to include any
conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any
department of government.").
Against the backdrop of that Supreme Court precedent, Congress has reenacted-and
indeed expanded the scope of-the defraud clause, reflecting congressional ratification of the
Court's construction of it. See, e.g., Forest Grove Sch. Dist. v. TA., 557 U.S. 230, 239-240
(2009) ("Congress is presumed to be aware of an administrative or judicial interpretation of a
statute and to adopt that interpretation when it re-enacts a statute without change.") ( citation and
quotations omitted). In 1948, for instance, when Congress codified the general conspiracy
42
statute, 18 U.S.C. § 371, where the defraud clause currently resides, see Pub. L. No. 80-772, 62
Stat. 701, it was already "settled" that "defraud[ing]" the United States "by depriving it of its
lawful governmental functions by dishonest means ... is a 'defrauding' within the meaning of"
the defraud clause, Glasser, 315 U.S. at 66, and at that time, Congress added the words "or any
agency thereof' in the defraud clause after "United States." Pub. L. No. 80-772, 62 Stat. 701.
The House Report from the Judiciary Committee accompanying the pertinent bill specifically
stated that the amendment was designed "[t]o reflect the construction placed upon [the
predecessor statute] by the courts." H.R. Rep. No. 80-304, at A28 (1947). And it has
consistently been the Department's position in litigation that the defraud clause proscribes
conspiracies to obstruct a lawful function of the federal government through deceit. See, e.g.,
Gas Pipe, Inc. v. United States, No. 21-183, 2021 WL 5193105, Brief in Opp'n (U.S. Oct. 8,
2021) (stating petitioners' contention that defraud clause is limited to money and property
schemes is "inconsistent with over a century of [Supreme Court] precedent"); Flynn v. United
States, No. 20-1129, 2021 WL 7210413, Brief in Opp'n (U.S. May 19, 2021) (stating defraud
clause is not unconstitutionally vague in part because of the Supreme Court's longstanding
interpretation that interference or obstruction must be by deceit or dishonest means); Coplan v.
United States, No. 12-1299, 2013 WL 3324197, Brief in Opp'n (U.S. July 1, 2013) (explaining
that petitioner's claim that the decisions in mail- and wire-fraud cases like McNally v. United
States, 483 U.S. 350 (1987), and Skilling undermine "longstanding, congressionally adopted
construction of the defraud clause" is erroneous and misplaced, and "disregards important
limitations inherent in the defraud clause," including the requirement that "a conspiracy under
the defraud clause must be deceptive or deceitful"). 166 Accordingly, the Office concluded that
166 The Supreme Court denied certiorari in each of these cases. See Gas Pipe, Inc. v. United States, 142 S. Ct. 484
43
Mr. Trump's conduct fell within the scope of Section 371 given the statute's longstanding,
congressionally ratified construction, and its historic use by the Justice Department.
The Office also recognized various limiting principles in the application of Section 371
that separate Mr. Trump's conduct from mere hardscrabble politics. A defraud-clause violation,
as honed by years of judicial decisions, including repeated applications by the Supreme Court,
requires not only an agreement among co-conspirators, but identification of a specific function of
the federal government, the intent to obstruct that function through deceit, and an overt act. See,
e.g., United States v. Johnson, 383 U.S. 169, 172, 184-185 (1966) (in exchange for undisclosed
"campaign contributions" and "legal fees," congressman conspired to defeat the lawful functions
of the Department of Justice by urging dismissal of pending indictments). First, a defraud clause
conspiracy must be targeted at a lawful function of the United States or any agency thereof. See,
e.g., United States v. Haldeman, 559 F.2d 31, 121 (D.C. Cir. 1976) ("The unlawful agreement to
attempt to use the CIA to interfere with the investigation of the Watergate break-in was thus
fairly charged in Count 1 of the indictment as one of the means by which the defendants intended
to accomplish one of the principal objects of their conspiracy defrauding the United States of its
right to have its officials and agencies transact their business honestly, impartially, and free from
corruption or undue influence or obstruction."). In contrast, a conspiracy targeted at a private
party or at a state or local government does not suffice, even if the entity receives federal funds
or "serve[s] as an intermediary performing official functions on behalf of the Federal
Government." Tanner, 483 U.S. at 130-131. Second, obstruction of the governmental function
must be "a purpose or object of the conspiracy, and not merely a foreseeable consequence of the
conspiratorial scheme." United States v. Goldberg, 105 F.3d 770, 773 (1st Cir. 1997) (emphasis
(2021); Flynnv. United States, 141 S. Ct. 2853 (2021); Coplanv. United States, 571 U.S. 819 (2013).
44
m original) (citing Dennis, 384 U.S. at 861). Thus, for example, financial cnmes do not
"automatically become federal conspiracies to defraud the IRS," simply because the crime may
have foreseeable tax implications. Id. And this requirement means that the conspiracy must be
aimed at defeating and obstructing the government function, rather than simply participating in
it. Third, the defraud clause "is limited only to wrongs done 'by deceit, craft or trickery, or at
least by means that are dishonest." Hammerschmidt, 265 U.S. at 188. Fourth, the overt-act
requirement provides another limitation, the function of which is "to manifest that the conspiracy
is at work, and is neither a project still resting solely in the minds of the conspirators nor a fully
completed operation no longer in existence." Yates v. United States, 354 U.S. 298, 334 (1957)
(citation and quotations omitted), overruled on other grounds by Burks v. United States, 437 U.S.
1 (1978). Finally, while a court in the District of Columbia has stated that materiality is not an
element of a defraud-clause conspiracy, see Concord Mgmt. & Consulting LLC, 34 7 F. Supp. 3d
at 50 n.5, the Office was prepared to prove the materiality of Mr. Trump's deceptive statements
and to offer a materiality instruction as another limitation on the scope of Section 371. Under
that limitation, even conspirators who make knowingly false statements with an obstructive
intent will not violate the defraud clause unless their statements are material.
All of these requirements for establishing a conspiracy to defraud under Section 371,
taken collectively, ensure that common political conduct or political speech does not fall within
the scope of the defraud clause. The evidence collected during the investigation met these
requirements as to Mr. Trump's conduct.
B. Obstruction and Conspiracy to Obstruct (18 U.S.C. § 1512(k) and (c)(2))
The federal statute prohibiting obstruction of an official proceeding makes it a crime to
"corruptly (1) alter[], destroy[], mutilate[], or conceal[] a record, document, or other object, or
attempt[] to do so, with the intent to impair the object's integrity or availability for use in an
45
official proceeding; or (2) otherwise obstruct[], influence[], or impede[] any official proceeding,
or attempt(] to do so." 18 U.S.C. § 1512(c). A separate provision defines the term "official
proceeding" to include a "proceeding before the Congress." 18 U.S.C. § 1515(a)(l)(B).
In Fischer v. United States, 603 U.S. 480 (2024), decided during the pendency of Mr.
Trump's immunity appeal, the Supreme Court clarified the scope of an obstruction offense under
Section 1512( c )(2), holding that the statute applies only when a defendant impairs ( or attempts to
impair) "the availability or integrity for use in an official proceeding of records, documents,
objects, or ... other things used in the proceeding." Id. at 498. In language that applies directly
to the allegations in the superseding indictment, the Supreme Court explained that Section
1512(c)(2)'s criminal prohibition includes "creating false evidence." Id. at 491. Before seeking
the original indictment-which, like the superseding indictment, alleged that one component of
Mr. Trump's and his co-conspirators' obstruction involved replacing valid elector certificates
from the contested states with false ones they had manufactured-the Office anticipated the
possibility of such a result in Fischer and confirmed that the evidence would prove Mr. Trump's
guilt beyond a reasonable doubt even under a narrow interpretation of Section 1512( c )(2). See
ECF No. 139 at 20-21. In construing Section 1512(c)(2) to reach impairing or attempting to
impair the integrity or availability of records, documents, or other objects through "creating false
evidence," the Supreme Court cited United States v. Reich, 479 F.3d 179, 183, 185-187 (2d Cir.
2007) (Sotomayor, J.), in which a defendant was convicted under Section 1512( c )(2) after he
forged a court order and sent it to an opposing party intending to cause that party to withdraw a
mandamus petition then pending before an appellate court. Just as the defendant in Reich
violated Section 1512( c )(2) by "inject[ing] a false order into ongoing litigation to which he was a
party," id. at 186, the evidence showed that the co-conspirators created fraudulent electoral
46
certificates that they intended to introduce into the congressional certification proceeding on
January 6 to obstruct it. 167
The Office was also prepared to prove that Mr. Trump willfully caused his supporters to
obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and
then directing them to march to the Capitol to cause the Vice President and legislators to reject
the legitimate certificates and instead rely on the fraudulent electoral certificates. 168 See 18
U.S.C. § 2(b) (making a defendant criminally liable for "willfully caus[ing] an act to be done
which if directly performed by him or another would be" a federal offense); United States v.
Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a
violation of 18 U.S.C. § 1001). The Supreme Court's opinion in Fischer therefore did not
undermine the viability of the Section 1512 counts.
Much of the evidence that supports the Section 3 71 conspiracy to defraud likewise proves
that Mr. Trump and co-conspirators violated Section 1512(k) and Section 1512(c)(2). To
demonstrate a violation of Section 1512( c )(2) following Fischer, the government must prove (1)
the defendant obstructed, influenced, or impeded an official proceeding, or attempted to do so,
(2) in the course of doing so, the defendant committed or attempted to commit an act that
167 See ECF No. 252 at 48-49 & nn.251-254, 51-52 & n.274, 56-57 & nn.302-307, 58 & n.312, 65 & n.352;
SCO-02341381 (Fraudulent "Arizona's Electoral Votes for President and Vice President"); SCO-02341386
(Fraudulent "Georgia's Electoral Votes for President and Vice President"); SCO-02341398 (Fraudulent "Michigan's
Electoral Votes for President and Vice President"); SCO-02341415 (Fraudulent "Nevada's Electoral Votes for
President and Vice President"); SCO-02341409 (Fraudulent "New Mexico's Electoral Votes for President and Vice
President"); SCO-02341435 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President");
SCO-02341449 (Fraudulent "Wisconsin's Electoral Votes for President and Vice President"); SCO-00310626
(Co-Conspirator 5 memo 12/06/2020); SCO-00039408 (Email from Co-Conspirator 5 12/08/2020); SCO-00309946
(Email from Co-Conspirator 5 to Co-Conspirator 1 12/13/2020); SCO-12184337, SCO-12184338 (Email from
Co-Conspirator 2 to Co-Conspirator 5 and Co-Conspirator 6, with attachment 12/23/2020) (memo); SCO-12101300,
SCO-12101301 (Email from Co-Conspirator 2 to Co-Conspirator 6, with attachment O1/03/2021) (memo).
168 See ECF No. 252 at 72-73 & nn.405-407, 74 & nn.411-414, 75 & n.422, 76-78 & nn.428-444, 80 & n.462; see
also, e.g., SCO-00455253, SCO-12987427 (Donald J. Trump Tweet 12/19/2020); SCO-00455068, SCO-12987393
(Donald J. Trump Tweet Ol /01/2021 ); SCO-02244118 (Remarks by Mr. Trump at Save America Rally O 1/06/2021).
47
impaired the integrity or rendered unavailable records, documents, objects, or other things for
use in the official proceeding, (3) the defendant intended to impair the integrity of or render
unavailable such records, documents, objects, or other things for use in the official proceeding,
and (4) the defendant acted corruptly. See United States v. Baez, No. 21-cr-507, ECF No. 106 at
8 (D.D.C. Sept. 23, 2024) (describing elements required to establish a violation of Section
1512( c )(2) following Fischer).
Mr. Trump's conduct establishes each of these elements beyond a reasonable doubt. The
congressional certification proceeding was an official proceeding for purposes of Section 1512,
as every district court judge in the District of Columbia to have considered this question has
concluded, see United States v. Bingert, 605 F. Supp. 3d 111, 120 (D.D.C. 2022), and as the D.C.
Circuit has agreed, see Fischer, 64 F.4th at 342-343 (D.C. Cir. 2023), vacated and remanded on
other grounds, 603 U.S. 480 (2024). The evidence described above supporting the Section 371
charge also establishes Mr. Trump's knowingly obstructive conduct. And as described above,
Mr. Trump willfully caused others to attempt to obstruct the certification proceeding on
January 6.
Finally, the Government was prepared to prove Mr. Trump's corrupt intent-under any
definition-beyond a reasonable doubt. To act "corruptly" means (1) acting dishonestly, (2)
intending the use of unlawful means, (3) violating a legal duty or causing or seeking to cause
someone else to violate a legal duty, or ( 4) seeking an unlawful or improper benefit or advantage.
Acting corruptly also means acting with consciousness of wrongdoing. See United States v.
Robertson, 86 F.4th 355, 368-369 (D.C. Cir. 2023); United States v. !Yforrison, 98 F.3d 619, 630
(D.C. Cir. 1996); Arthur Andersen LLP, 544 U.S. at 706-707 (2005). Mr. Trump and
co-conspirators used deceptive and dishonest means; he intended the use of independently
48
criminal means to obstruct the congressional certification proceeding; he and co-conspirators
plainly sought to cause state and federal officials to violate a legal duty; and Mr. Trump acted
"with an intent to procure an unlawful benefit either for oneself or for some other person."
Fischer, 64 F.4th at 352 (Walker, J., concurring) (citation and quotations omitted). Most
basically, Mr. Trump sought "unlawfully [to] secure a professional advantage-the presidency,"
id. at 356 n.5-to which he was not lawfully entitled.
C. Conspiracy Against Rights (18 U.S.C. § 241)
Section 241 makes it unlawful for two or more persons to "conspire to injure, oppress,
threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District
in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or
laws of the United States." A violation of Section 241 requires proof of three elements: (1) Mr.
Trump entered into a conspiracy, (2) to willfully injure, oppress, threaten, or intimidate a person
in the United States, (3) in the exercise or enjoyment of a right secured by the Constitution or
federal law. 18 U.S.C. § 241; see, e.g., United States v. Epley, 52 F.3d 571, 575-576 (6th Cir.
1995).
Mr. Trump's conduct meets each element. 169 The right to vote for President-based on
the determination by state legislatures to appoint electors based on their constituents' votes-is
"fundamental." Bush v. Gore, 531 U.S. 98, 104 (2000); cf Burdick v. Takushi, 504 U.S. 428, 441
( 1992) ("the right to vote is the right to participate in an electoral process that is necessarily
structured to maintain the integrity of the democratic system"); United States v. Robinson, 813
F.3d 251, 255-256 (6th Cir. 2016) (Section 241 "prohibits interference with a voter's right to cast
169 The Office further set forth its position on the applicability of Section 241 in response to Mr. Trump's motion to
dismiss the charge in the district court. See ECF No. 139 at 22-25.
49
a ballot for his or her preferred candidate ... and prohibits interference with the right of voters to
have their votes free from dilution by unlawfully procured votes."). It is a right rooted in the
principles of accountability to and consent by the governed, which has distinguished this nation
from its founding. As the Supreme Court has recognized, "[t]he right to vote freely for the
candidate of one's choice is of the essence of a democratic society, and any restrictions on that
right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555
(1964); see also Yick Wo v. Hopkins, 118 U.S. 357, 370 (1886) (voting is "regarded as a
fundamental political right, because [it is] preservative of all rights"); Wesberry v. Sanders, 376
U.S. 1, 17 (1964) ("No right is more precious in a free country than that of having a voice in the
election of those who make the laws under which, as good citizens, we must live. Other rights,
even the most basic, are illusory if the right to vote is undermined.").
Mr. Trump acknowledged that voting in a presidential election is a fundamental right
under the Constitution. See ECF No. 163 at 23 (arguing that "urging States or Congress to use
their power to select or to count electors does not affect the 'fundamental' right to vote because it
does not arbitrarily 'value one person's vote over that of another,' Bush, 531 U.S. at 104-105, or
restrict the exercise of that right; rather, it encourages the States and Congress to exercise their
constitutional prerogatives a certain way"). Indeed, given that all states have made the popular
vote an integral means of appointing electors, the right to vote in a presidential election is among
the most precious federal rights protected by the Constitution. Cf United States v. Classic, 313
U.S. 2 99, 314 (1941) ( when a state makes a primary election "an integral part of the procedure
for the popular choice of a Congressman," it becomes "a right established and guaranteed by the
Constitution"); see also Trump v. Anderson, 601 U.S. 100, 115-116 (2024) (per curiam) (noting
50
the "uniquely important national interest" in "a Presidential election" because "the President ...
represents all the voters in the Nation") ( citation, quotations, and emphasis omitted).
This history of the Section 241 offense with which Mr. Trump was charged, along with
courts' universal and longstanding recognition of the voting rights protected by that statute,
confirm that protecting the right to vote is critical to the existence of the right. Section 241 's
predecessor statute was passed as part of the Enforcement Act of 1870, a Reconstruction-era law
to address the "continued denial of rights" to Black citizens, "sometimes accompanied by violent
assaults." United States v. Price, 383 U.S. 787, 801-802 (1966). That Act sought to combat
widespread anti-Reconstruction violence, which included acts of terror aimed at disenfranchising
Black voters. The same year as the Act's passage, Congress established the U.S. Department of
Justice, and the Department zealously pursued its mission to enforce voting rights in the
Reconstruction Era. Through the application and interpretation of Section 241 and its
predecessor statute, courts have repeatedly underscored the importance of the right to vote.
Courts have held that the right encompasses the ability to cast a vote, Ex parte Yarbrough (The
Ku-Klux Cases), 110 U.S. 651, 657-658 (1884) (protecting right of an emancipated person to
vote), and to have that vote counted, United States v. Afosley, 238 U.S. 383, 386 (1915) ("We
regard it as equally unquestionable that the right to have one's vote counted is as open to
protection by Congress as the right to put a ballot in a box."). They have further confirmed that
one's vote cannot lawfully be denied, destroyed, or diluted. See, e.g., Classic, 313 U.S. at 321-
322 (holding that Section 241 's predecessor statute applied to conspiracies to prevent the official
counting of ballots in a primary election); United States v. Saylor, 322 U.S. 385 (1944) (Section
241 applies to prohibit conspiracies to dilute legitimate votes by stuffing the ballot box); United
States v. Pleva, 66 F.2d 529, 530 (2d Cir. 1933) (board of elections inspectors charged with
51
falsely tabulating ballots to favor certain candidates; convictions reversed on separate jury
grounds); United States v. Skurla, 126 F. Supp. 713, 715 (W.D. Pa. 1954) (defendants charged for
casting and causing to be cast false and forged ballots, causing an incorrect vote tally, and using
unqualified individuals to impersonate lawful voters); United States v. Townsley, 843 F.2d 1070,
1073-1075 (8th Cir. 1988) (scheme to discard certain absentee ballots).
Mr. Trump and co-conspirators sought to deprive-that is, injure or oppress-citizens of
their constitutional right to have their presidential election votes counted. The words "injure or
oppress" in Section 241 are not used in any technical sense, but cover a variety of conduct
intended to prevent, harm, inhibit, hinder, frustrate, obstruct, or interfere with the free exercise
and enjoyment of a right. See United States v. Handy, No. 22-cr-96, 2023 WL 6199084, at *3
(D.D.C. Sept. 22, 2023); United States v. Mackey, 652 F. Supp. 3d 309, 336-337 (E.D.N.Y.
2023). Although they were not in a backroom altering the vote tallies in a local election, or
stuffing falsified ballots into the ballot boxes, as alleged in prior cases charged under this statute,
Mr. Trump and co-conspirators nonetheless sought the same result: to effectively cast aside
legitimate votes in a manner that would have deprived citizens of their right to vote and have
their votes counted. As Co-Conspirator 1 admitted, their primary objective was to "just flat out
change the vote, deduct that number of votes from the - declare those votes, 300,000 votes in
Philadelphia, illegal, unlawful. Reduce the number by 300,000." 170 Mr. Trump attempted to
carry out this objective in multiple ways. He urged state officials to disregard the legitimate
majority of votes for Mr. Biden and pressured and threatened Georgia's Secretary of State to
"find" more than 11,000 votes to dilute Mr. Biden's vote count in the state. 171 And he urged Mr.
170 SCO-06628582 at 13:07-13:22 (War Room episode 491 11/11/2020).
171 See ECF No. 252 at 29 & n.137; SCO-12998394 at 12 (Tr. of Georgia Secretary of State Call 01/02/2021).
52
Pence to discard the legitimate electoral certificates that reflected millions of citizens' votes in
the targeted states. 172 The evidence collected showed that Mr. Trump targeted this voting right
with precision: he centered his false claims of election fraud on select states, or cities and
counties within those states, with large numbers of voters who had not chosen to reelect him.
D. Defenses
Before presenting the original indictment to the grand jury, the Office considered Mr.
Trump's potential defenses to these charges, including a good faith defense, an advice of counsel
defense, and constitutional defenses. The Office concluded that each of the defenses was legally
or factually flawed and thus would not prevail.
First, it was expected that Mr. Trump would argue that he acted in good faith when he
sought to stop the transfer of presidential power because he genuinely believed that outcomedeterminative
fraud had undermined the election's integrity and caused him to lose. As set forth
above in Section II.A, the Office developed strong proof that Mr. Trump knew that his election
fraud claims were false. For example, Mr. Trump made persistent claims of a large number of
dead voters in Georgia-including in his speech at the Ellipse on January 6-even though his
Senior Campaign Advisor and Georgia's Secretary of State had told him that the claims were
untrue. 173 He spread lies-including in his Ellipse speech-of sinister, fraudulent "vote dumps"
in Michigan, even after Michigan's Senate Majority Leader told him that nothing suspicious had
occurred. 174 And Mr. Trump repeatedly made provably false allegations about fraud in
172 See ECF No. 252 at 66-67 & nn.361-365, 71 & nn.392-399; SCO-00014655 at 198-200.
173 See ECF No. 252 at 21 & n.95, 30 & n.142; SCO-02244118 at 16 (Remarks by Mr. Trump at Save America Rally
01/06/2021); SCO-00011882 at 33-37; SCO-12998394 at 6 (Tr. of Georgia Secretary of State Call 01/02/2021).
174 See ECF No. 252 at 32-33 & n.160; SCO-02244118 at 18 (Remarks by Mr. Trump at Save America Rally
01/06/2021); SCO-11545470 at 62-64 (Int. Tr.); SCO-00829361 at 16-17 (HSC Tr.).
53
Pennsylvania, despite having been told by the Chairman of the state Republican Party that the
vote count was occurring as expected. 175
Even if Mr. Trump maintained that he sincerely believed he won the election (a
conclusion unsupported by the evidence collected in the investigation), it would not provide a
defense to the Section 371 charge. A defendant may not use deceit to obstruct a government
function even if he believes the function itself to be unconstitutional because "a claim of
unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of
fraud and deceit." Dennis, 384 U.S. at 867. "One who elects such a course as a means of selfhelp
may not escape the consequences by urging that his conduct be excused because the statute
which he sought to evade is unconstitutional." Id There are "appropriate and inappropriate
ways to challenge" perceived illegalities. Id. Just as the president of a company may be guilty
of fraud for using knowingly false statements of fact to defraud investors even if he subjectively
believes that his company will eventually succeed, see, e.g., United States v. Arif, 897 F.3d 1, 9-
10 & n.9 (1st Cir. 2018); United States v. Kennedy, 714 F.3d 951, 958 (6th Cir. 2013); United
States v. Chavis, 461 F.3d 1201, 1209 (10th Cir. 2006), Mr. Trump could be convicted of using
deceit to obstruct the government function by which the results of the presidential election are
collected, counted, and certified, even if he established that he subjectively believed that he had
reason to do so because ofhis claims that the election was "rigged."
It bears emphasis that Mr. Trump's knowing deceit was pervasive throughout the charged
conspiracies. This was not a case in which Mr. Trump merely misstated a fact or two in a
handful of isolated instances. On a repeated basis, he and co-conspirators used specific and
175 See ECF No. 252 at 37-38 & nn.187-190; SCO-02244118 at 11-12 (Remarks by Mr. Trump at Save America
Rally 0 1/06/2021); SCO-00016926 at 20-24.
54
knowingly false claims of election fraud in his calls and meetings with state officials, in an effort
to induce them to overturn the results of the election in their states; 176 to his own Vice President,
to induce Mr. Pence to violate his duty during the congressional certification proceeding; 177 and
on January 6, as a call to action to the angry crowd he had gathered at the Ellipse and sent to the
Capitol to disrupt the certification proceeding. 178 Mr. Trump and co-conspirators used other
forms of deceit as well-including when they falsely represented that the fraudulent electoral
votes would be used only if Mr. Trump prevailed in pending contests in their states, 179 and when
they caused the fraudulent electors to falsely swear that they were duly certified and send those
false certifications to Congress. 180 Regardless of any claim that Mr. Trump subjectively believed
the outcome of the election was unfair or "rigged," the Office concluded that these knowingly
deceitful statements and acts would overcome any good faith defense.
The Office also expected that Mr. Trump might claim that his consultation with
attorneys-several of whom were co-conspirators-should negate a finding that he acted with a
176 See ECF No. 252 at 17 & nn.67-68, I 8 & n.72, 29-30 & nn.139-144, 32 & n.159; SCO- 12733339 at 4 (Int. Rep.);
SCO-00767550 at 10-11 (HSC Tr.); SCO-11509251 at 41-42 (Int. Tr.); SCO-12998394 at 1-3 (Tr. of Georgia
Secretary of State Call O1/02/2021); SCO-00829361 at 16-17 (HSC Tr.).
177 See ECF No. 252 at 67 & n.365; SCO-00014655 at 155-158, 170-171; SCO-04982309 (Handwritten notes
12/29/2020); SCO-049823 30 at I (Handwritten notes OI /04/2021 ).
178 See ECF No. 252 at 75-76 & nn.423-428; SCO-02244118 at 6, 12-22 (Remarks by Mr. Trump at Save America
Rally O1/06/2021).
179 See ECF No. 252 at 50 & n.260, 53 & n.282; SCO-00009955 at 8-11; SCO-12949797 at 82-83 (Int. Tr.);
SCO-00016926 at 48-50; SCO-00009540 at 15-19.
180 See ECF No. 252 at 56 & n.30 I; SCO-02341381 (Fraudulent "Arizona's Electoral Votes for President and Vice
President"); SCO-023413 86 (Fraudulent "Georgia's Electoral Votes for President and Vice President");
SCO-02341398 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); SCO-02341415
(Fraudulent "Nevada's Electoral Votes for President and Vice President"); SCO-02341409 (Fraudulent "New
Mexico's Electoral Votes for President and Vice President"); SCO-02341435 (Fraudulent "Pennsylvania's Electoral
Votes for President and Vice President"); SCO-02341449 (Fraudulent "Wisconsin's Electoral Votes for President and
Vice President"). Even in Pennsylvania and New Mexico, where the fraudulent certificates contained future
contingent language, the cover memoranda and envelopes sent to Congress represented that the documents were the
state's "Electoral Votes for President and Vice President."
55
criminal state of mind. In pretrial litigation, the Court granted the Government's motion that Mr.
Trump should be required to declare whether he intended to employ such a defense and, if he
did, to produce the discovery required by the attendant waiver of Mr. Trump's attorney-client
privilege. ECF No. 147. A defendant's claim that he relied in good faith on his attorney's advice
is "not an affirmative defense that defeats liability even if the jury accepts the government's
allegations as true," but functions instead as "evidence that, if believed, can raise a reasonable
doubt in the minds of the jurors about whether the government has proved the required element
of the offense that the defendant had an 'unlawful intent."' United States v. Scully, 877 F.3d 464,
476 (2d Cir. 2017) (quoting United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1194 (2d
Cir. 1989)). Under D.C. Circuit law, an advice-of-counsel defense consists of two elements: the
defendant (1) "'relied in good faith on the counsel's advice that his course of conduct was legal"'
and (2) "'made full disclosure of all material facts to his attorney before receiving the advice at
issue."' United States v. Gray-Burriss, 920 F.3d 61, 66 (D.C. Cir. 2019) (quoting United States v.
DeFries, 129 F.3d 1293, 1308 (D.C. Cir. 1997)).
The Office concluded that if Mr. Trump chose to raise such a defense, it would fail
because an advice-of-counsel defense is not available "where counsel acts as an accomplice to
the crime." United States v. West, 392 F.3d 450, 457 (D.C. Cir. 2004) (Roberts, J.). The
evidence showed that the central attorneys on whom Mr. Trump may have relied for such a
defense, such as Co-Conspirator 1 or Co-Conspirator 2, were "partner[s] in a venture," with the
result that any advice-of-counsel defense necessarily would fail. Id. ( citing United States v.
Carr, 740 F.2d 339,347 (5th Cir. 1984)); cf United States v. Cintolo, 818 F.2d 980,990 (1st Cir.
1987) ("A criminal lawyer has no license to act as a lawyer-criminal."). Co-Conspirator 1
assisted Mr. Trump in using knowingly false claims of election fraud in furtherance of the
56
charged conspiracies. At press conferences, 181 at hearings before legislatures in the targeted
states, 182 and directly with officials in the targeted states, 183 Co-Conspirator 1 made a wide range
of specific (though ever-changing) false claims of election fraud. Co-Conspirator 1 continued to
do so after his lies were publicly or directly debunked. 184 Co-Conspirator l's involvement
spanned from his insistence that Mr. Trump declare victory on election night 185 to the
voicemails 186 that Co-Conspirator 1 left for Senators on the night of January 6, using false claims
of election fraud to ask that the legislators further delay the certification. Co-Conspirator 2 was
instrumental in Mr. Trump's efforts to organize his electors to cast fraudulent votes and send
them to the Vice President, and then to pressure the Vice President to use the fraudulent electoral
certificates to overturn the election results. Throughout his involvement in Mr. Trump's
conspiracies, Co-Conspirator 2 conceded privately to other attorneys (both private attorneys and
those responsible for advising Mr. Trump and the Vice President) that his plans violated federal
law and would not withstand scrutiny in court. 187
181 See ECF No. 252 at 43 & nn.217-2 I 8; see, e.g., SCO-04976260 (Video of Four Seasons Total Landscaping Press
Conference 11/07/2020); SCO-04976264 (Video of RNC Press Conference 11/19/2020).
182 See ECF No. 252 at 19-20 & nn.83-85, 21 & n.97, 25 & nn. l 19-120, 39 & nn.195-197; SCO-04976265 at 15 :52-
30:00 (Video of Pennsylvania Hotel Hearing 11/25/2020); SCO-04976459 at 02:06:23-02:07:00 (Video of Arizona
State Hearing 11/30/2020); SCO-04976326 at 25:00-31 :05 (Video of Michigan House Committee Meeting
12/02/2020); SCO-04976332 at 0 1:04:50-01:10:25 (Video of Georgia Senate Judiciary Subcommittee Hearing
12/03/2020).
183 See ECF No. 252 at 19 & nn.77-82, 33 & nn.163-164, 34 & nn.168-169; SCO-11545470 at 53 (Int. Tr.);
SCO-00829361 at 20-22 (HSC Tr.); SCO-00312350 (Text messages from Co-Conspirator 1 12/07/2020);
SCO-05390337-05390346 (Text messages 12/08/2020); SCO-11508370 at 62-64 (Int. Tr.).
184 See ECF No. 252 at 14 & n.53, 23 & nn.105-106; see also, e.g., SCO-04976279 at 01:36:58-02:01:58 (Video of
Georgia House Committee Hearing 12/10/2020); SCO-04952956 (Tweet 12/04/2020); SCO-04976277 at 08:44-
09: l 0 (Video of Georgia Secretary of State Press Conference 12/07/2020); supra at n. 12.
185 See ECF No. 252 at 7 & n.15; SCO-00003548 at 61-62; SCO-00016750 at 31-35.
186 See ECF No. 252 at 84 & nn.488-492; SCO-04134777 (Voicemail from Co-Conspirator 1 01/06/2021);
SCO-064 75675 (Voicemail from Co-Conspirator l 0 1/06/2021).
187 See ECF No. 252 at 61 & nn.324-326, 63 & n.336, 66 & n.356, 69 & n.384; SCO-00007167 at 66;
SCO-02248764 at 3 (Email from Co-Conspirator 2 01/06/21 ); SCO-12245492 (Email from Co-Conspirator 2
57
Furthermore, Mr. Trump could not have succeeded in showing that he relied in good faith
on legal advice from these attorneys. The evidence showed that Mr. Trump was not looking to
Co-Conspirator 1 or Co-Conspirator 2 for legal advice; instead, Mr. Trump was the head of a
conspiracy who sought legal cover from his co-conspirators. As Co-Conspirator 1 acted
repeatedly in furtherance of the conspiracies, multiple advisors to Mr. Trump warned him that
Co-Conspirator 1 would not successfully challenge the election results and was not acting in Mr.
Trump's best interest; Mr. Trump ignored them all because he was not relying on Co-Conspirator
1 as an attorney. 188 Similarly, Co-Conspirator 2's willingness to advocate for actions that he
knew and even privately conceded were unlawful demonstrates that both he and Mr. Trump
understood his role was not that of an attorney offering legal advice on which Mr. Trump was
acting. 189 For instance, in a lawsuit in Georgia, Co-Conspirator 2 filed a false certification by
Mr. Trump after having written to other attorneys in an email that both he and Mr. Trump knew
some of the allegations incorporated in the filing were inaccurate. 190 And Co-Conspirator 2's
decision to advocate to the Vice President's counsel and chief of staff on January 5, 2021, that
the Vice President should unlawfully reject legitimate electoral certificates-an act that
Co-Conspirator 2 had previously recognized was not supported by the Constitution or federal
12/29/2020); SCO-00039087 (Text messages among Co-Conspirator 2, Co-Conspirator 5, and Co-Conspirator 6
12/28/2020).
188 See ECF No. 252 at 11-12 & nn.32-35; SCO-12920242 at 1, 4, 7 (Int. Rep.); SCO-00006256 at 44-52;
SCO-12945 I 95 (Email ll/28/2020); SCO-00764172 at 26-27 (HSC Tr.); SCO-11532925 at 70-71 (Int. Tr.);
SCO-00014655 at 68-73.
189 See ECF No. 252 at 61 & nn.324-326, 63 & n.336, 66-67 & nn.356-364, 69-70 nn.382-385; see, e.g.,
SCO-12245107 at 1-2 (Draft Letter from Co-Conspirator 2); SCO-00280481 at 2 (Memo from Co-Conspirator 2 to
Co-Conspirator 6 12/23/2020); SCO-00006256 at 130-135; SCO-00007167 at 50-53, 60-63; SCO-00016118 at 72-
80; SCO-00014442 at 38-39 (Pence, So Help Me God pp. 450-45 l); SCO-04982330 (Handwritten notes
01/04/2021); Trump v. Kemp, No. 20-cv-5310, ECF No. 21 at 27-29 (N.D. Ga. Jan. 5, 2021) (Transcript of Motions
Hearing); SCO-04976350 at 56:53-57:36, 01:05:59-01:07:02, 01:19:12-1:27:28 (Video of HSC Testimony);
SCO-04094748 (Handwritten notes 01/05/2021); SCO-00794788 at 108-115 (HSC Tr.).
190 See ECF No. 252 at 27 & nn.127-130; Kemp, No. 20-cv-5310, ECF No.lat 33-34 (N.D. Ga. Dec. 31, 2020)
(Complaint); SCO-00006256 at 205-206; SCO-00282435 at l (Email from Co-Conspirator 2 12/31/2020).
58
law 191-was a sharp reversal from his position just one day earlier and happened only because
Mr. Trump had made clear that it was his preferred strategy. 192 The Office was otherwise
confident that it would be able to demonstrate that with respect to all attorneys, Mr. Trump could
not meet the elements of the defense, such as the requirement that he make full disclosure to any
attorneys of all relevant facts and then rely faithfully on their advice. See Gray-Burriss, 920 F.3d
at 66.
Finally, the Office anticipated that Mr. Trump would claim that his conduct was protected
by the First Amendment. As the district court recognized, "the First Amendment 'embodies our
profound national commitment to the free exchange of ideas," and it bars the government from
'"restrict[ing] expression because of its message, its ideas, its subject matter, or its content.'"
ECF No. 171 at 31 (quoting Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564, 573 (2002), and
United States v. Stevens, 559 U.S. 460,468 (2010)). At the same time, "it is well established that
the First Amendment does not protect speech that is used as an instrument of a crime." Id.
'"Many long established' criminal laws permissibly 'criminalize speech that is intended to
induce or commence illegal activities,' United States v. Williams, 553 U.S. 285, 298 (2008), such
as fraud, bribery, perjury, extortion, threats, incitement, solicitation, and blackmail, see, e.g.,
Stevens, 559 U.S. at 468-469 (fraud); Williams, 553 U.S. at 298 (incitement, solicitation);
Citizens United v. Fed. Election Comm 'n, 558 U.S. 310, 356 (2010) (bribery); Rice v. Paladin
Enters., Inc., 128 F.3d 233, 244 (4th Cir. 1997) (extortion, threats, blackmail, perjury)." ECF
No. 171 at 31-32 (ellipsis omitted). "Prosecutions for conspiring, directing, and aiding and
abetting do not run afoul of the Constitution when those offenses are 'carried out through
191 See ECF No. 252 at 61 & nn.324-326; SCO-12245107 at 1-2 (Draft Letter from Co-Conspirator 2).
192 See ECF No. 252 at 66-67 & nn.361-364, 69 & nn.382-384; SCO-00007167 at 51, 60-61; SCO-04976350 at
01: 19: 12-01:21 :30 (Video of HSC Testimony); SCO-04094 7 48 (Handwritten notes 0 1/05/2021).
59
speech."' Id. at 32 (quoting Nat'! Org. for Women v. Operation Rescue, 37 F.3d 646, 655-656
(D.C. Cir. 1994), and citing Williams, 553 U.S. at 298).
Consistent with that precedent, the original and superseding indictments recognized that
Mr. Trump "had a right, like every American, to speak publicly about the [2020 presidential]
election and even to claim, falsely, that there had been outcome-determinative fraud during the
election and that he had won." ECF No. 1 at ,r 3; ECF No. 226 at ,r 3. They charged Mr. Trump,
however, with using knowingly false statements to defeat a government function, injure the right
to vote, and obstruct an official proceeding. That is, he made "dozens of specific claims that
there had been substantial fraud in certain states, such as that large numbers of dead, nonresident,
non-citizen, or otherwise ineligible voters had cast ballots, or that voting machines had
changed votes for the Defendant to votes for Biden." ECF No. 1 at ,r 11; ECF No. 226 at ,r 12.
Those were factual claims that were verifiably false, and Mr. Trump knew that they were false.
See id. Mr. Trump then used those lies as the instruments of his four criminal offenses. Because
he used those knowingly false statements regarding specific facts to commit the crimes charged
in the superseding indictment, they were not protected by the First Amendment. See Stevens,
559 U.S. at 468-469 (including "fraud" in the list of "well-defined and narrowly limited classes
of speech, the prevention and punishment of which have never been thought to raise any
Constitutional problem") ( citation and quotations omitted); United States v. Nordean, 579 F.
Supp. 3d 28, 53-54 (D.D.C. 2021) ("[B]y focusing on 'corrupt' actions, [Section 1512(c)(2)]
does not even reach free speech."); see also United States v. Alvarez, 567 U.S. 709, 719-721
(2012) (plurality opinion) ( explaining that while "falsity alone may not suffice to bring the
speech outside the First Amendment," the First Amendment permits criminal laws that proscribe
60
knowing or reckless falsehoods in connection with some "other legally cognizable harm,"
including "protect[ing] the integrity of Government processes").
In pretrial motions, Mr. Trump moved to dismiss the original indictment based on the
First Amendment. See ECF No. 113 at 4-18. The Office filed an opposition brief, ECF No. 139
at 29-34, and the district court denied the motion, finding that the indictment "properly alleges
Defendant's statements were made in furtherance of a criminal scheme," ECF No. 171 at 33. As
the court explained, Mr. Trump was "not being prosecuted for his 'view' on a political dispute;
he [was] being prosecuted for acts constituting criminal conspiracy and obstruction of the
electoral process," id at 34, and the fact that his "alleged criminal conduct involved speech does
not render the Indictment unconstitutional," id at 32. Because he was "not being prosecuted
simply for making false statements, but rather for knowingly making false statements in
furtherance of a criminal conspiracy and obstructing the electoral process," there was "no danger
of a slippery slope in which inadvertent false statements alone are alleged to be the basis for
criminal prosecution." Id. at 36 (citation omitted); see generally id. at 32-37 (rejecting other
First Amendment claims).
E. Other Charges
The Office considered, but ultimately opted against, bringing other charges. One
potential charge was 18 U.S.C. § 2383, sometimes referred to as the Insurrection Act, which
provides that "[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection
against the authority of the United States or the laws thereof, or gives aid or comfort thereto,
shall be fined under this title or imprisoned not more than ten years, or both; and shall be
incapable of holding any office under the United States." 18 U.S.C. § 2383. Section 2383
originated during the Civil War, as part of the Second Confiscation Act of 1862. See Act of July
17, 1862, ch. 195, § 2, Pub. L. No. 37-160, 12 Stat. 589,590.
61
Cases interpreting Section 2383 are scarce and arose in contexts that provided little
guidance regarding its potential application in this case. See, e.g., United States v. Greathouse,
26 F. Cas. 18, 23 (C.C.N.D. Cal. 1863) ( construing the original version of the act to encompass
treason, consisting of arming a vessel to commit hostilities against United States vessels, in the
context of the rebellion by the confederate states); United States v. Cathcart, 25 F. Cas. 344, 345
(C.C.S.D. Ohio 1864) (rejecting legal argument that treason against the United States was legally
impossible in the context of the rebellion by the confederate states); In re Grand Jury, 62 F. 834,
83 7-83 8 (S .D. Cal. 1894) (grand jury charge describing offense in the context of a labor dispute
involving interference with transportation of the mail); In re Charge to Grand Jury, 62 F. 828,
829-830 (N.D. Ill. 1894) (grand jury charged that "[i]nsurrection is a rising against civil or
political authority" and requires "such a number of persons as would constitute a general
uprising in that particular locality" in the context of offense of obstructing the mails). It does not
appear that any defendant has been charged with violating the statute in more than 100 years.
To establish a violation of Section 2383, the Office would first have had to prove that the
violence at the Capitol on January 6, 2021, constituted an "insurrection against the authority of
the United States or the laws thereof," and then prove that Mr. Trump "incite[d]" or "assist[ed]"
the insurrection, or "g[ave] aid or comfort thereto." 18 U.S.C. § 2383.
Courts have found or described the attack on the Capitol as an insurrection. In Anderson
v. Griswold, 543 P.3d 283, 329 (Colo. 2023), rev 'd on other grounds sub nom. Trump v.
Anderson, 601 U.S. 100 (2024) (per curiam), the Colorado Supreme Court found that Mr. Trump
engaged in an insurrection as that term is used in Section Three of the Fourteenth Amendment.
Federal courts in the District of Columbia have also used the term "insurrection" to describe the
attack on the Capitol, but did so in cases where there was no criminal charge under Section 2383.
62
See, e.g., United States v. Chwiesiuk, No. 21-cr-536, 2023 WL 3002493, at *3 (D.D.C. Apr. 19,
2023) ("As this Court and other courts in the United States District Court for the District of
Columbia have stated previously, what occurred on January 6, 2021 was in fact an insurrection
and involved insurrectionists and, therefore, the terms to which Defendants object are accurate
descriptors."); United States v. Carpenter, No. 21-cr-305, 2023 WL 1860978, at *4 (D.D.C. Feb.
9, 2023) ("What occurred on January 6 was in fact a riot and an insurrection, and it did in fact
involve a mob."); see also United States v. Afunchel, 991 F.3d 1273, 1279, 1281 (D.C. Cir. 2021)
(using the term "insurrection" in a case that did not involve Section 2383). These cases,
however, did not require the courts to resolve the issue of how to define insurrection for purposes
of Section 2383, or apply that definition to the conduct of a criminal defendant in the context of
January 6.
The Office recognized why courts described the attack on the Capitol as an
"insurrection," but it was also aware of the litigation risk that would be presented by employing
this long-dormant statute. As to the first element under Section 2383-proving an "insurrection
against the authority of the United States or the laws thereof'-the cases the Office reviewed
provided no guidance on what proof would be required to establish an insurrection, or to
distinguish an insurrection from a riot. Generally speaking, an "[i]nsurrection is a rising against
civil or political authority[]-the open and active opposition of a number of persons to the
execution of law in a city or state." In re Charge to Grand Jury, 62 F. at 830; see also
Insurrection, MERRIAM-WEBSTER 649 (11th ed. 2020) ("an act or instance of revolting against
civil authority or an established government"); Insurrection, AMERICAN HERITAGE DICTIONARY
909 (4th ed. 2000) ("The act or an instance of open revolt against civil authority or a constituted
government."); Insurrection, 7 THE OXFORD ENGLISH DICTIONARY 1060 (2nd ed. 1989) ("The
63
action of rising in arms or open resistance against established authority or governmental
restraint[.]"). Some sources distinguish an "insurrection" from a '"rout, riot, [or] offense
connected with mob violence by the fact that in insurrection there is an organized and armed
uprising against authority or operations of government, while crimes growing out of mob
violence, however serious they may be and however numerous the participants, are simply
unlawful acts in disturbance of the peace which do not threaten the stability of the government or
the existence of political society."' BLACK'S LAW DICTIONARY (12th ed. 2024) ( quoting 77
C.J.S. Riot; Insurrection § 29, at 579 (1994 )); see also Anderson, 543 P.3d at 329-336 (noting
Mr. Trump's argument that "an insurrection is more than a riot but less than a rebellion" and
agreeing that "an insurrection falls along a spectrum of related conduct").
In case law interpreting "insurrection" in another context, one court has observed that an
insurrection typically involves overthrowing a sitting government, rather than maintaining
power, which could pose another challenge to proving beyond a reasonable doubt that Mr.
Trump's conduct on January 6 qualified as an insurrection given that he was the sitting President
at that time. Cf CITGO Petroleum Corp. v. Starstone Ins. SE, No. 21-cv-389, 2023 WL
2525651, at *13 (S.D.N.Y. Mar. 15, 2023) ("[I]n every case over the course of over sixty years to
find the existence of an insurrection within the meaning of an insurance policy, the insurrection
has occurred against-not by-the established, effective and de facto government.") (citation
and quotations omitted); Pan Am World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989,
1017 (2d Cir. 197 4) ("The district court held that the word insurrection means (1) a violent
uprising by a group or movement (2) acting for the specific purpose of overthrowing the
constituted government and seizing its powers.") ( citation and quotations omitted); accord, e.g.,
Home Ins. Co. of New York v. Davila, 212 F.2d 731,738 (1st Cir. 1954) (noting that if Puerto
64
Rican extremists had a "maximum objective" to "overthrow of the insular government" on the
island, that group's uprising would constitute insurrection); Hartford Fire Ins. Co. v. W Union
Co., 630 F. Supp. 3d 431, 435-437 (S.D.N.Y. 2022) (a Russian-backed separatist group's attack
on a plane in service of overthrowing the current government in eastern Ukraine was an
insurrectionary act); Younis Bros. & Co., Inc. v. CIGNA Worldwide Ins. Co., 91 F.3d 13, 14-15
(3d Cir. 1996) ( applying Davila in finding that, where individuals outside of the Liberian
government "led their respective armies in a violent uprising" "against the Liberian
government," damage to properties fell within an insurance contract's insurrection clause). The
Office did not find any case in which a criminal defendant was charged with insurrection for
acting within the government to maintain power, as opposed to overthrowing it or thwarting it
from the outside. Applying Section 2383 in this way would have been a first, which further
weighed against charging it, given the other available charges, even if there were reasonable
arguments that it might apply.
As to the second element under Section 2383, there does not appear to have ever been a
prosecution under the statute for inciting, assisting, or giving aid or comfort to rebellion or
insurrection. The few relevant cases that exist appear to be based on a defendant directly
engaging in rebellion or insurrection, but the Office's proof did not include evidence that Mr.
Trump directly engaged in insurrection himself. Thus, however strong the proof that he incited
or gave aid and comfort to those who attacked the Capitol, application of those theories of
liability would also have been a first. See Alexander Tsesis, Incitement to Insurrection and the
First Amendment, 57 WAKE FOREST L. REV. 971, 973 & n.6 (2022) ("The likelihood of
conviction under the federal incitement to insurrection statute, 18 U.S.C. § 2383 ... is fraught
with uncertainty because no federal court has interpreted it.").
65
The Office determined that there were reasonable arguments to be made that Mr. Trump's
Ellipse Speech incited the violence at the Capitol on January 6 and could satisfy the Supreme
Court's standard for "incitement" under Brandenburg v. Ohio, 395 U.S. 444,447 (1969) (holding
that the First Amendment does not protect advocacy "directed to inciting or producing imminent
lawless action and ... likely to incite or produce such action"), particularly when the speech is
viewed in the context of Mr. Trump's lengthy and deceitful voter-fraud narrative that came
before it. For example, the evidence established that the violence was foreseeable to Mr. Trump,
that he caused it, that it was beneficial to his plan to interfere with the certification, and that
when it occurred, he made a conscious choice not to stop it and instead to leverage it for more
delay. But the Office did not develop direct evidence-such as an explicit admission or
communication with co-conspirators-of Mr. Trump's subjective intent to cause the full scope of
the violence that occurred on January 6. Therefore, in light of the other powerful charges
available, and because the Office recognized that the Brandenburg standard is a rigorous one,
see, e.g., NA.A.CF v. Claiborne Hardware Co., 458 U.S. 886, 902, 927-929 (1982) (speech
delivered in "passionate atmosphere" that referenced "possibility that necks would be broken"
and violators of boycott would be "disciplined" did not satisfy Brandenburg standard);
Brandenburg, 395 U.S. at 446-447 (reversing conviction where Ku Klux Klan leader threatened
"revengeance" for "suppression" of the white race), it concluded that pursuing an incitement to
insurrection charge was unnecessary.
By comparison, the statutes that the Office did charge had been interpreted and analyzed
in various contexts over many years. The Office had a solid basis for using Sections 3 71, 1512,
and 241 to address the conduct presented in this case, and it concluded that introducing relatively
untested legal theories surrounding Section 2383 would create unwarranted litigation risk.
66
Importantly, the charges the Office brought fully addressed Mr. Trump's criminal conduct, and
pursuing a charge under Section 2383 would not have added to or otherwise strengthened the
Office's evidentiary presentation at trial. For all of these reasons, the Office elected not to
pursue charges under Section 2383. 193
F. Co-Conspirator Liability
As described in the factual recitation above, Mr. Trump was charged with participating in
crimes with at least six co-conspirators, and the Office's investigation uncovered evidence that
some individuals shared criminal culpability with Mr. Trump. Following the original indictment
on August 1, 2023, the Office continued to investigate whether any other participant in the
conspiracies should be charged with crimes. In addition, the Office referred to a United States
Attorney's Office for further investigation evidence that an investigative subject may have
committed unrelated crimes.
Before the Department concluded that this case must be dismissed, the Office had made a
preliminary determination that the admissible evidence could justify seeking charges against
certain co-conspirators. The Office had also begun to evaluate how to proceed, including
whether any potential charged case should be joined with Mr. Trump's or brought separately.
193 The Office also considered, but decided not to pursue, charges under certain other federal criminal statutes,
including 18 U.S.C. § 2101 (the Anti-Riot Act) and 18 U.S.C. § 372 (Conspiracy to Impede or Injure an Officer of
the United States). The Office was aware that courts have struck down and limited various prongs of the Anti-Riot
Act, see United States v. Rundo, 990 F.3 d 709, 716-717 (9th Cir. 2021) (per curiam); United States v. Miselis, 972
F.3d 518, 535-539 (4th Cir. 2020). And as to Section 372, the Office had strong evidence that Mr. Trump and his coconspirators
agreed to use deceit to defeat the government function of collecting, counting, and certifying the results
of the election, to obstruct the certification, and to injure the right of citizens to vote and have their votes counted.
Further, as explained above, the Office also had strong evidence that the violence that occurred on January 6 was
foreseeable to Mr. Trump, that he caused it, and that he and his co-conspirators leveraged it to carry out their
conspiracies. But because the investigation did not develop proof beyond a reasonable doubt that the conspirators
specifically agreed to threaten force or intimidation against federal officers, the Office did not pursue a charge under
Section 372. After considering the facts, the law, and the Principles of Federal Prosecution, the Office concluded
that the charges ultimately pursued would fully address Mr. Trump's criminal conduct, allow the Office to present
the full scope of that conduct to a jury, and avoid unnecessary litigation. As a result, the Office decided not to seek
any of these other potential charges.
67
Because the Office reached no final conclusions and did not seek indictments against anyone
other than Mr. Trump-the head of the criminal conspiracies and their intended beneficiary-this
Report does not elaborate further on the investigation and preliminary assessment of uncharged
individuals. This Report should not be read to allege that any particular person other than Mr.
Trump committed a crime, nor should it be read to exonerate any particular person.
III. THE PRINCIPLES OF FEDERAL PROSECUTION
As set forth above, the Office concluded that Mr. Trump's conduct violated several
federal criminal statutes and that the admissible evidence would be sufficient to obtain and
sustain a conviction. Therefore, under the longstanding Principles of Federal Prosecution, the
Office considered whether: (1) the prosecution would serve a substantial federal interest; (2) Mr.
Trump was subject to effective prosecution in another jurisdiction; or (3) there existed an
adequate non-criminal alternative to prosecution. U.S. Department of Justice, Justice Manual
§ 9-27.220. As described below, multiple substantial federal interests were served by Mr.
Trump's prosecution, he was not subject to effective prosecution in another jurisdiction, and
there was no adequate non-criminal alternative to prosecution. The Supreme Court's decision on
presidential immunity, handed down after the initial decision to prosecute and analyzed below in
Section V.D.2 did not alter the Office's view that the Principles of Federal Prosecution compelled
prosecuting Mr. Trump; although that decision prevented use of certain evidence uncovered
regarding Mr. Trump's misuse of presidential power, he also engaged in non-immune criminal
conduct that is set forth in the superseding indictment. Accordingly, this section discusses only
evidence that was not immunized-either because it involved Mr. Trump's private conduct or
because the Office would have rebutted any presumption of immunity.
68
A. Prosecuting Mr. Trump Served Multiple Substantial Federal Interests
Mr. Trump's prosecution served multiple federal interests, including the federal interest in
the integrity of the United States' process for collecting, counting, and certifying presidential
elections, and in a peaceful and orderly transition of presidential power; the federal interest in
ensuring that every citizen's vote is counted; the federal interest in protecting public officials and
government workers from violence; and the federal interest in the fair and even-handed
enforcement of the law. All of these federal interests, which are rooted in the law, the
Constitution, and our basic democratic values, are substantial and command protection from Mr.
Trump's criminal design to subvert them.
1. The substantial federal interest in protecting the integrity of the electoral
process and the peaceful transfer of power was served by Mr. Trump's
prosecution.
As set forth above, the investigation revealed that Mr. Trump and others conspired to use
false claims of election fraud to attempt to disrupt the United States' electoral process and
obstruct the congressional certification of the 2020 presidential election results. Prosecution for
that conduct thus vindicated abiding federal interests in protecting the electoral process and the
previously unbroken tradition-before Mr. Trump's charged conduct-of a peaceful transition of
presidential power from one administration to the next. These federal interests are fundamental
to our system of government, favoring no particular administration or political party. Indeed,
electoral processes like selecting the president are "necessarily structured to maintain the
integrity of the democratic system." Burdick, 504 U.S. at 441. "Preserving the integrity of the
electoral process" and "preventing corruption ... are interests of the highest importance." First
Nat. Bank ofBoston v. Bellotti, 435 U.S. 765, 788-789 (1978).
69
The Office was cognizant of Mr. Trump's free speech rights during the investigation and
would not have brought a prosecution if the evidence indicated he had engaged in mere political
exaggeration or rough-and-tumble politics. See supra at Section II.D (First Amendment defense
discussion); Robert Jackson, The Federal Prosecutor, Address Delivered at the Second Annual
Conference of United States Attorneys (April 1, 1940) ("In the enforcement of laws that protect
our national integrity and existence, we should prosecute any and every act of violation, but only
overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning
of congress, or dissemination of news or opinions.") ( emphasis in original). As set forth in the
original and superseding indictments, Mr. Trump had "a right, like every American, to speak
publicly about the election and even to claim, falsely, that there had been outcome-determinative
fraud in the election and that he had won." ECF No. 1 at ,r 3; ECF No. 226 at ,r 3. He also had
lawful recourse to challenge the election results, including through lawsuits, recounts, and audits.
In fact, Mr. Trump and his allies vigorously pursued these methods of contesting the election
results, but they were unsuccessful.
After election day, Mr. Trump or his Campaign were plaintiffs or intervenors in at least
sixteen lawsuits seeking to change the outcome of the election, 194 and Mr. Trump's supporters
194 In re Enforcement ofElection Laws and Securing Ballots Cast or Received after 7:00 p.m. on Nov. 3, 2020, No.
SPCV20-00982 (Chatham County, Ga. Super. Ct.); Donald J Trump for President Inc. v. Boockvar,
No. 602-md-2020 (Pa. Commw. Ct.); Aguilera v. Fontes, No. 20-cv-14083 (Maricopa County, Az. Super. Ct.);
Donald J. Trump for President Inc. v. Benson, No. 20-000225-MZ (Mich. Ct. Cl.); Donald J Trump for President
Inc. v. Philadelphia County Bd. of Elections, No. 20-cv-5533 (E.D. Pa.); Donald J. Trump for President Inc. v.
Montgomery County Bd. ofElections, No. 2020-18680 (Montgomery County, Pa. Ct. Com. Pis.); Donald J Trump
for President Inc. v. Hobbs, No. 2020-cv-0 I 4248 (Maricopa County Ariz. Super. Ct.); Donald J. Trump for President
Inc. v. Boockvar, No. 20-cv-02078 (M.D. Pa.); Donald J. Trump for President Inc. v. Benson, No. 20-cv- l 083 (W.D.
Mich.); Trump v. Evers, No. 2020-AP- l 97 l (Wis. Sup. Ct.); Trump v. Wisconsin Election Commission,
No. 20-cv-1785 (E.D. Wis.); Trump v. Eiden, No. 2020-cv-7092, No. 2020-cv-2514 (Cir. Ct. Wis.); Donald J. Trump
for President Inc. v. Rajfensperger, No. 2020-cv-343255 (Fulton County, Ga. Super. Ct.); Texas v. Pennsylvania, 141
S. Ct. 1230 (2020); Donald J. Trump for President Inc. v. Toulouse-Oliver, No. 20-cv-0 1289-MV (D.N.M.); Kemp,
No. 20-cv-5310 (N.D. Ga.).
70
filed dozens of other such lawsuits, 195 but all of these failed to change the outcome in any state.
Mr. Trump pursued recounts in only two states-a statewide machine recount in Georgia and a
recount in Wisconsin's Milwaukee and Dane Counties-and both served only to confirm the
previously reported result (in Wisconsin, the recount increased Mr. Trump's margin of loss). 196
Following public requests, Secretaries of State in Georgia and Michigan ordered additional
audits and recounts-in Georgia, a statewide hand recount and an audit in Cobb County, and in
Michigan, a statewide audit and a hand recount in Antrim County, where Mr. Trump seized on
claims of a clerk's temporary clerical error-but all merely confirmed previously reported
results. 197
The conduct of Mr. Trump and co-conspirators, however, went well beyond speaking
their minds or contesting the election results though our legal system. Instead, Mr. Trump
targeted a key federal government function-the process by which the United States collects,
counts, and ce1iifies the results of the presidential election-and sought to obstruct or defeat it
through fraud and deceit. He did so using knowingly false claims of election fraud to attempt to
induce state officials to reject citizens' votes and instead appoint Mr. Trump's electors; when he
deceived his electors and caused them to falsify electoral certificates and submit them to
Congress; when he attempted to enlist Mr. Pence with false claims of election fraud and pressure;
195 See, e.g., Costantino v. City of Detroit, No. 20-14780 (Wayne County, Mich. Cir. Ct.); Republican Party of
Arizona v. Fontes, No. 2020-cv-0 14553 (Maricopa County, Az. Super. Ct.); Law v. Whitmer, 20 OC 00163188 (First
Jud. Ct. Carson City, Nev.); Ward v. Jackson, No. 2020-cv-015285 (Maricopa County, Az. Super. Ct.); Pearson v.
Kemp, No. 18-cv-04809 (N.D. Ga.); Kingv. Whitmer, No. 20-cv-13134 (E.D. Mich.).
196 See ECF No. 252 at 28 & n.131, 33-34 & n.167, 41 & n.207; SCO-12847178 (Georgia Secretary of State News
Release 12/29/2020); SCO-03656876 (Wisconsin Order for Recount 11/19/2020); SCO-06613715 (Wisconsin
Statement of Canvass 11/30/2020); Trump v. Eiden, 394 Wis.2d 629, 633 (Wis. 2020).
197 See ECF No. 252 at 12 & n.39, 28 & n.131, 46 & nn.241-243; SCO-04976281 at 03:22-04:16 (Video of
Interview 01/02/2021); SCO-12847178 (Georgia Secretary of State News Release 12/29/2020); SCO-04957382
(Michigan Secretary of State News Release 12/17/2020); SCO-04952782 at 33 (Michigan Bureau of Elections,
Audits of the November 3, 2020 General Election 04/21/2021).
71
and when he used, and attempted to leverage, an angry crowd of his supporters-fueled by Mr.
Trump's lies-to stop the certification proceeding.
Mr. Trump did this in contravention of the Framers' intent to prevent a sitting President
from perpetuating himself in power. "In free Governments," Benjamin Franklin explained, "the
rulers are the servants, and the people their superiors & sovereigns." 2 The Records of the
Federal Convention of 1787, at 120 (Max Farrand ed., 1911). Although the Framers recognized
"the necessity of an energetic Executive," they justified and checked his power by ensuring that
he always retained "a due dependence on the people." THE FEDERALIST No. 70 (A. Hamilton);
see Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197, 223-224 (2020). As
the Supreme Court noted in Trump, "[t]he President ... plays no direct role in the process [of
appointing electors], 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."' 603 U.S. at 627-628 (quoting THE FEDERALIST No. 68, at 459 (A. Hamilton) (J. Cooke
ed., 1961)). Accordingly, Article II of the U.S. Constitution provides that "no Senator or
Representative, or Person holding an Office of Trust or Profit under the United States, shall be
appointed an Elector." U.S. CONST. art. II, § 1, cl. 2. The considerable federal interest in
protecting the integrity of the United States' electoral process weighed in favor of proceeding
with Mr. Trump's prosecution.
So too did the federal interest m defending from future harm the United States'
exceptional tradition of peaceful transitions of presidential power. That tradition was initiated by
George Washington when he announced in his September 1796 Farewell Address that he would
decline to seek a third term, followed by John Adams when he relinquished the power of the
72
presidency to his political rival Thomas Jefferson after the election of 1800, and continued by
every sitting President until 2020-even through the turbulent Civil War and Reconstruction
eras. And Congress and the courts have also recognized the federal interest in orderly
presidential transitions. See, e.g., Presidential Transition Act of 1963, Pub. L. 88-277, 78 Stat.
153, 153-154, § 2 (legislation "to promote the orderly transfer of the executive power" because
"[a]ny disruption occasioned by the transfer of the executive power could produce results
detrimental to the safety and well-being of the United States and its people"); Trump v.
Thompson, 20 F.4th 10, 16-17 (D.C. Cir. 2021) (recognizing Congress's "unique legislative
need" for documents "directly relevant to the ... inquiry into an attack on the Legislative Branch
and its constitutional role in the peaceful transfer of power"); United States v. Tarrio, 605 F.
Supp. 3d 73, 78 (D.D.C. 2022) (when assessing "very serious" nature and circumstances of a
January 6-related offense, court observed that "[t]hey involve, among other things, an alleged
conspiracy to obstruct the certification of the Electoral College vote and thus to interfere with the
peaceful transfer of power, one of our Nation's crown jewels").
In his first inaugural address, President Ronald Reagan remarked on the country's
tradition of a peaceful transition of presidential power:
To a few of us here today this is a solemn and most momentous occasion, and yet
in the history of our nation it is a commonplace occurrence. The orderly transfer
of authority as called for in the Constitution routinely takes place, as it has for
almost two centuries, and few of us stop to think how unique we really are. In the
eyes of many in the world, this every-4-year ceremony we accept as normal is
nothing less than a miracle.
Inaugural Address (1981 ). In connection with preserving that tradition, Vice Presidents have
presided over the certification of their own election losses. In 1961, then-Vice President Richard
M. Nixon fulfilled his role as President of the Senate at the January 6 certification proceeding,
73
announcing that John F. Kennedy had won the presidency. In so announcing his own defeat,
Nixon stated,
This is the first time in 100 years that a candidate for the Presidency announced
the result of an election in which he was defeated and announced the victory of
his opponent. I do not think we could have a more striking and eloquent example
of the stability of our constitutional system and of the proud tradition of the
American people of developing, respecting, and honoring institutions of selfgovernment.
107 CONG. REC. 291 (Jan. 6, 1961). And in 2001, after a hard-fought legal dispute over the 2000
presidential election, Vice President Albert Gore Jr. similarly presided over the certification of
his opponent, George W. Bush, as President-elect. See 147 CONG. REC. 101 (Jan. 6, 2001).
Protecting the well-established American tradition of a peaceful transfer of power weighed in
favor of prosecution.
2. The substantial federal interest in counting every citizen's vote was served
by Mr. Trump's prosecution.
Few federal interests are stronger in our representative democracy than that of protecting
every eligible citizen's right to vote and to have that vote counted. The evidence establishes that
in contravention of that right, Mr. Trump urged state officials to disregard the legitimate majority
of votes for Mr. Biden and instead appoint Mr. Trump's electors; pressured and threatened
Georgia's Secretary of State to "find" more than 11,000 votes to dilute the legitimate vote count
and allow Mr. Trump to be declared the winner of the state; and urged Mr. Pence to discard the
legitimate electoral certificates that reflected millions of citizens' votes in the targeted states. 198
An additional factor meriting Mr. Trump's prosecution therefore was the need to vindicate and
protect the voting rights of these and all future voters.
198 See ECF No. 252 at 19 & nn.77-82, 29 & n.137, 65 & n.349, 67 & n.364, 71 & nn.392-398, 73-74 & nn.410-411;
supra at Section l; see also, e.g., SCO-02295943 at 3 (Presidential Daily Diary 11/22/2020); SCO-00767550 at 9- 12
(HSC Tr.); SCO-12998394 at 12 (Tr. of Georgia Secretary of State Call 0 1/02/2021).
74
The strength of the federal interest in protecting the right to vote is plain from the history
of suffrage in America, as chronicled in the Constitution-which has been amended not fewer
than five times to extend and protect the franchise for all adult citizens regardless of race, sex,
age, and education, see U.S. CONST. amend. XIV, § 2 (providing that if a state failed to ensure all
eligible citizens the right to vote, the state's proportional representation would be reduced);
amend. XV, § 1 ("The right ... to vote shall not be denied or abridged ... on account of race,
color, or previous condition of servitude."); amend. XIX (same "on account of sex"); amend.
XXIV, § 1 (same "by reason of failure to pay any poll tax or other tax"); amend. XXVI,
§ 1 (same for citizens "who are eighteen years of age or older ... on account of age")-and a
consistent line of court decisions maintaining that suffrage "can neither be denied outright, nor
destroyed by alteration of ballots," Reynolds v. Sims, 377 U.S. 533, 555 (1964) (citations
omitted). The strength of the federal interest is further reflected by the history of the Section 241
offense with which Mr. Trump was charged, and, as set forth in Section II.C above, by courts'
universal and longstanding recognition of the right protected by that statute. In attempting to
disenfranchise voters who did not choose to reelect him, Trump targeted a bedrock fundamental
right that the government has a strong interest in protecting.
,..,
_). The substantial federal interest in protecting election officials and other
government officials from violence was served by Mr. Trump's
prosecution.
Another federal interest that merited Mr. Trump's prosecution was addressing his resort,
throughout the charged criminal conspiracies, to threats and encouragement of violence against
his perceived opponents. Consistently, when elected officials refused to take improper actions
that Mr. Trump urged, like discarding legitimate votes or appointing fraudulent electors, Mr.
Trump attacked them publicly on Twitter, a social media application on which he had more than
75
80 million followers. 199 Inevitably, threats and intimidation to these officials followed. 20 ° For
instance, after Mr. Trump targeted a Philadelphia City Commissioner in a Tweet criticizing the
Commissioner for stating that there was no evidence of widespread election fraud in
Philadelphia,201 threats against the Commissioner grew more targeted, more detailed, and more
graphic. 202 These threats extended to include highly personal information like the names and
ages of the Commissioner's family members, as well as photos or the address of his home. 203
Fulton County, Georgia, election officials similarly reported receiving threats-including death
threats-following Mr. Trump's false public accusations against Fulton County election
workers. 204
Mr. Trump also targeted private citizens who served as election workers. He took
particular aim at a mother and daughter who worked at Atlanta's State Farm Arena counting
ballots on election day; he and his co-conspirators spread pernicious false claims that these
election workers had committed misconduct. 205 Although the lies were promptly and publicly
199 See ECF No. 252 at 18 & nn.73-76, 20 & n.88, 26-27 & nn.123-126, 28 & n.132, 31 & n.146, 40 & n.206; see,
e.g., SCO-00456209, SCO-00715415 (Donald J. Trump Tweet 11/11/2020); SCO-00455691, SCO-12858431
(Donald J. Trump Retweet 11/30/2020); SCO-00455690, SCO-12987528 (Donald J. Trump Tweet 11/30/2020);
SCO-00455536, SCO-12858636 (Donald J. Trump Retweet 12/06/2020).
200 See ECF No. 252 at 21 & nn.92-93, 38 & nn.192-194; SCO-11545129 at 86-88 (Int. Tr.); SCO-00767550 at 52-
54 (HSC Tr.).
201 See ECF No. 252 at 38 & n.193; SCO-12876770 at 02:20-04: 13 (Video of Interview with CNN 11/11/2020);
SCO-00456209, SCO-12987659 (Donald J. Trump Tweet 11/11/2020).
202 See ECF No. 252 at 38 & n.194; SCO-11545129 at 87 (Int. Tr.); SCO-04976349 at 02:03: 17-02:04: 10 (Video of
HSC Hearing).
203 See ECF No. 252 at 38 & n.194; SCO-11545129 at 87 (Int. Tr.); SCO-04976349 at 02:03:17-02:04:10 (Video of
HSC Hearing).
204 SCO-11507432 at 46-50, 57-62 (Int. Tr.); SCO-11528118 at 54-62 (Int. Tr.).
205 See ECF No. 252 at 25-26 & nn.119-122; SCO-04976332 at 33:30-01:04:37 (Video of Georgia Senate Judiciary
Subcommittee Hearing 12/03/2020); SCO-00455601, SCO-12987506 (Donald J. Trump Tweet 12/03/2020);
SCO-04976279 at 0 1 :36:58-02:0 l :58 (Video of Georgia House Committee Hearing 12/10/2020).
76
debunked, 206 Mr. Trump continued to repeat them, 207 and the election workers were subjected to
vile threats. As one of the women explained, "when someone as powerful as the President of the
United States eggs on a mob, that mob will come. They came for us with their cruelty, their
threats, their racism, and their hats. They haven't stopped even today." 208 Mr. Trump persisted
in publicly spreading false and harmful social media posts about the same election workers into
2023. 209 In 2024, Co-Conspirator 1 conceded in a defamation lawsuit filed by the election
workers that his statements about them were "defamatory per se" and "false," and a jury awarded
them damages of more than $145 million. 210
Mr. Trump took aim at Mr. Pence when Mr. Pence repeatedly informed Mr. Trump that he
could not in good conscience do as Mr. Trump asked. On January 6, this included Mr. Trump's
retributive targeting of Mr. Pence during his Ellipse speech and the 2:24 p.m. Tweet attacking
Mr. Pence that Mr. Trump issued even though he knew that the riot was ongoing at the Capitol.
Taken together, these actions resulted in rioters at the Capitol on January 6 singling out Mr.
Pence for their ire and chanting, "Where is Pence? Bring Him Out!" 211 and, "Hang Mike
Pence!" 212
206 SCO-04952956 (Tweet 12/04/2020); SCO-04976277 at 08:44-09: 10 (Video of Georgia Secretary of State Press
Conference 12/07/2020).
207 See ECF No. 252 at 26 & n.122; SCO-12998394 at 2 (Tr. of Georgia Secretary of State Call 0 1/02/2021).
208 See ECF No. 252 at 25-26 & n. 121; SCO-00783640 at 8 (HSC Tr.).
209 See ECF No. 252 at 26 & n.122; SCO-04963742 (Donald J. Trump Truth Social Post 0 1/02/2023);
SCO-04963743 (Donald J. Trump Truth Social Post 01/03/2023).
21°Freeman v. Giuliani, No. 21-cv-3354, ECF No. 90 at 1-2 (D.D.C. Aug. 8, 2023) (Def. Stipulation), ECF No. 142
(D.D.C. Dec. 18, 2023) (Final Judgment).
211 See ECF No. 1 at ,r 113; see ECF No. 252 at 81 & n.467; SCO-12738318 (Video of Capitol Riot 01/06/2021).
212 See ECF No. 1 at if 113; see ECF No. 252 at 81 & n.466; SCO-12876211 (Video of Capitol Riot 01/06/2021).
77
In addition to prompting these threats against the targets of Mr. Trump's criticisms, Mr.
Trump's words inspired his supporters to commit acts of physical violence. On January 6, Mr.
Trump used his Ellipse speech to direct his supporters to "go[] to the Capitol" and "fight like
hell." 213 He explicitly licensed them, not long after Co-Conspirator 1 had exhorted the crowd to
engage in "trial by combat," 214 to operate under "very different rules" 215 because fraud was
allegedly involved. And he told them they were "not going to let it happen," 216 urging them to
stop the election certification proceeding that was about to begin.
The people who took Mr. Trump at his word formed a massive crowd that broke onto
restricted Capitol grounds and into the building, violently attacking law enforcement officers
protecting the Capitol and those inside. Officers have described being assaulted by rioters
wielding bear spray, metal bats and flag poles, and other improvised weapons. 217 A Metropolitan
Police Department (MPD) commander recounted that the scene was "a non-stop barrage of just
strikes, with weapons and things being thrown, and pepper spray, and you name it. Everything
being hurled at these [officers]. You could hear them yelling. You could hear them, screams and
moans, and everything else." 218 Multiple officers stated that they feared for their lives when
among the rioters that day. One MPD officer put that fear at "a hundred percent" from the
moment he entered the crowd, and he explained that he thought he might die: "You know, you're
213 See ECF No. 252 at 77 & nn.437, 440; SCO-02244118 at 22 (Remarks by Mr. Trump at Save America Rally
01/06/2021).
rn SCO-04949418 at 02:22:07 (Video of Save America Rally O1/06/2021).
215 SCO-02244118 at 20 (Remarks by Mr. Trump at Save America Rally O l /06/2021 ).
216 !d. at 2.
217 See ECF No. 252 at 82 & nn.475-476; SCO-11506096 at 125-126 (Int. Tr.); SCO-11506269 at 38-39 (Int. Tr.);
SCO-12808448 at 127-128 (Int. Tr.); SCO-11520948 at 95-97 (Int. Tr.); SCO-12997436 at 64 (United States v. Irwin
& Richter, No. 21-cr-589, Trial Day I Tr. 01/22/2024).
218 SCO-11529214 at 98 (Int. Tr.).
78
getting pushed, kicked, you know, people are throwing metal bats at you and all that stuff. I was
like, yeah, this is fucking it." 219 A U.S. Capitol Police officer similarly recalled thinking, "I
think I might die today." 220 And in one instance, an MPD officer recounted that rioters dragged
him into the crowd, where they beat and tased him while yelling things like, "I got one!" and,
"Kill him with his gun!"221
The January 6 rioters assaulted at least 140 law enforcement officers that day, and at least
123 defendants have been charged with using a deadly or dangerous weapon or causing serious
bodily injury to law enforcement. 222 This violence took a lasting toll. In addition to the
significant physical injuries inflicted that day, 223 officers suffered "unseen injuries," including
depression and other forms of psychological trauma. 224
219 See ECF No. 252 at 82 & nn.475-476; SCO-11506096 at 126 (Int. Tr.).
220 SCO-12 807 683 at 106-107 (Int. Tr.).
221 SCO-12919375 at 0 1: 12:28-01: 13:50 (Video of Interview from HBO's Four Hours at the Capitol, 10/20/2021).
222 Press Release, U.S. Attorney's Office for the District of Columbia, Three Years Since the Jan. 6 Attack on the
Capitol (Jan. 5, 2024), https://www.justice.gov/usao-dc/36-months-jan-6-attack-capitol-O.
223 SCO-1 l 506096 at 96-99, 134-135 (Int. Tr.) (MPD officer recounting knee injury and concussion from defending
against rioters on January 6); SCO-12875808 at 228-230 ( United States v. McCaughey, No. 2 l-cr-40, Trial Day l Tr.
08/29/2022) (MPD sergeant describing being "bruised, abrased," and "covered in chemical munitions" from January
6); id. at 229 (50 percent of sergeant's 30-person platoon injured); SCO-12997205 at l 0 l (United States v. Sparks,
No. 2 l-cr-87, Trial Tr. 02/29/2024) (Capitol Police officer describing concern on January 6 for fellow officers he
saw "still irritated from the tear gas, people still coughing, people limping, battered, bruised, bloody," and learning
that a fellow officer "had passed away"); SCO-12997436 at 63-64 ( United States v. Irwin & Richter, No. 2 l-cr-589,
Trial Day 1 Tr. 01/22/2024) (Capitol Police Deputy Chief listing officers' injuries from rioters, including a "serious
concussion" and a "near-career-ending leg injury"); SCO-12807683 at 124-125 (Int. Tr.) (Capitol Police officer
describing jaw injury and concussion from rioter assault); id. at 135 (Capitol Police officer detailing lingering effects
of Capitol siege injuries, including persistent migraines, fainting, and imbalance).
m SCO-12876218 at 08:53-09:45 (Video of Impact Statement) (MPD officer recounting that "there [were] a lot of
unseen injuries," that MPD "has put a lot of effort and resources into getting these officers the help that they need
for some of these emotional injuries," and that the events of January 6 had "definitely taken a toll on a lot of the
officers over there that day"); SCO-11529214 at 116 (Int. Tr.) (MPD officer stating there were "some people that
went through, like, you know, some depression and, like, really some soul-searching"); SCO-12807683 at 16 (Int.
Tr.) (Capitol Police officer describing "survivor's guilt" and engaging in officer peer support program); id. at 143
(describing officer reactions to January 6, including "shell-shock" and inability to move on from that day);
SCO-12919375 at 01 :28:00-01 :28:20 (Video of MPD Officer's Interview from HBO's Four Hours at the Capitol,
10/20/2021) (MPD officer describing that he had a mild heart attack and traumatic brain injury from rioter assaults
79
Officers at the Capitol understood that if the rioters reached the lawmakers and other staff
inside the building violence would have been done to them as well. 225 Only through the heroism
of the law enforcement officers who defended the Capitol were lawmakers and their staff
protected from harm. 226 Many Members of Congress feared for their lives. Once the rioters
breached the Capitol building, "elected representatives, congressional staff, and members of the
press hid in terror from the mob" in barricaded offices or unmarked rooms as rioters roamed the
hallways. United States v. Chrestman, 525 F. Supp. 3d 14, 19 (D.D.C. 2021 ). 227 For instance, in
detailing his efforts to evacuate a U.S. Senator and her staff from an unmarked hiding spot, one
on January 6, but what he "most struggle[s] with is, you know, kind of, some of the emotional after-effects, or
psychological trauma" of that day).
225 SCO-11506096 at l 07-108 (Int. Tr.) (MPD officer describing effort to keep rioters from entering the Capitol
because, for staff inside, that would mean "possible death. People are getting killed, maimed," and adding that
while officers "have gear on" and weapons, "someone who just showed up this morning to go to work, who was like
a clerk or something, walked in their office ... they're not ready for that, you know? And if one of these [rioters]
get their hands on them, it's over with."); SCO-11529214 at 78-80 (Int. Tr.) (MPD officer describing seeing rioters
"trying to beat [officers] up with such ferocity," and wondering, "What are they going to do to somebody else that's
in here, that's maybe a staff or a congressman or somebody with the press? How are-what are they going to do to
them? You know, like, we can take the beating. And I don't know if these other people can take the beating, too.'');
SCO-11544684 at 7 (Int. Rep.) (Capitol Police officer recalling that the rioters turned on Vice President Pence and
being concerned for Pence's safety inside the Capitol if rioters breached the police line); see also SCO-12738295
(Video of Capitol Riot 01/06/2021) (rioters inside the Capitol yelling, "Where are the fucking traitors? Drag 'em out
by their fucking hair!" and "Who's first?"); SCO-12738313 (Video of Capitol Riot 01/06/2021) (rioter yelling,
"Bring Mitch out! Bring Pelosi out! Bring Schumer out!"); SCO-127383 I 7 (Video of Capitol Riot O 1/06/2021)
(rioters chanting, "Pence is a traitor!" and, "Traitor Pence! Traitor Pence!"); SCO-12738306 (Video of Capitol Riot
01/06/2021) (rioter yelling, "We're coming for you, Nancy!"); SCO-12738312 at 00:59-0 I :40 (Video of Capitol Riot
01/06/2021) (rioter inside the Capitol yelling, "Nancy Pelosi! Where you at, Nancy?" and, "Nancy! Where are you,
Nancy? We're looking for you!").
226 See 167 CONG. RECORD S5686 (daily ed. Aug. 3, 2021) (statement of Sen. Klobuchar) ("The insurrection at the
Capitol was more than an assault on democracy. . . . [I]t was also an actual life-or-death situation for the many brave
law enforcement officers who show up here to do their work every day."); id. at S5687 (statement of Sen. Blunt) ("I
am incredibly grateful for the heroic actions we saw that day [January 6] from the Capitol Police, from the
Metropolitan Police, who ... were here within 10 or 12 minutes of being called."); 167 CONG. RECORD H2790 (June
I5, 2021) (statement of Rep. McHenry) ("[T]he brave men and women who stood and faced danger on January 6
deserve to be recognized for their actions. Without their courageous work and their dedication, many of us here
today could have been seriously injured or worse.").
227 See also SCO-12919375 at 29:44-30:52, 41:45-43:15 (Video of Interview from HBO's Four Hours at the
Capitol, I 0/20/2021) (Congressional staffer describing hiding under a table from rioters who had breached the
Capitol building, hearing rioters banging on the door to the room in which she was barricaded, and fearing she
would die that day).
80
U.S. Capitol Police officer described the Senator as "afraid for her life," "shaking," and "very,
very-she was scared." 228 He added that the Senator later relayed to him that what the rioters
did on January 6 had "scared and frightened everybody" and had "put a lot of people's lives in
danger." 229
The violence of January 6 was foreseeable to Mr. Trump, who had remarked just the
evening before that his supporters were "angry" 230 and who-to cheers of, "Invade the Capitol
building!" and, "Take the Capitol!" 231-had told those supporters during his Ellipse speech to
"show strength" and to "be strong." 232 When he told them "we're not going to let it happen," the
crowd chanted, "Fight for Trump!" 233 And when he warned his gathered supporters that "if you
don't fight like hell, you're not going to have a country anymore," 234 the crowd marched to the
Capitol in response. Indeed, officials and advisors close to Mr. Trump recognized and voiced
their concerns over this high potential for election-related violence. On January 4, a Senior
Advisor explicitly warned Co-Conspirator 2 that if Mr. Pence unilaterally rejected legitimate
electoral votes, it would cause "riots in the streets." 235 Co-Conspirator 2 replied that there had
previously been points in the nation's history where violence was necessary to protect the
228 SCO-11520948 at 150-152 (Int. Tr.).
229 Id at 151.
230 See ECF No. 1 at i! 98; SCO-00015613 at 155-156.
231 See ECF No. 252 at 77-78 & n.443; SCO-12876144 at 00:28-00:43 (Rallygoer video 01/06/2021).
232 See ECF No. 252 at 77-78 & n.442; SCO-02244118 at 6 (Remarks by Mr. Trump at Save America Rally
01/06/2021).
233 See ECF No. 252 at 77 & nn.438-439; SCO-02244118 at 2 (Remarks by Mr. Trump at Save America Rally
01/06/2021).
234 SCO-02244118 at 22 (Remarks by Mr. Trump at Save America Rally O l /06/2021 ).
235 See ECF No. 252 at 66 & n.356; SCO-00006256 at 130-133; SCO-11522446 at 6 (Int. Rep.); SCO-00790949 at
26 (HSC Tr.).
81
republic. 236 On January 5, after Mr. Trump told Mr. Pence that he would have to publicly
criticize him, Mr. Pence's Chief of Staff was sufficiently concerned for Mr. Pence's safety that he
alerted the head of the Vice President's protective detail. 237 And a Counsel to the Vice President
issued a prescient warning to Co-Conspirator 2 the same day, when he warned that the
conspirators' plan would result in a "disastrous situation" where the election might "have to be
decided in the streets." 238 Indeed, as the riot at the Capitol unfolded on January 6, the Vice
President's Counsel chided Co-Conspirator 2 that "whipping large numbers of people into a
frenzy over something with no chance of ever attaining legal force through actual process of law,
has led us to where we are." 239
There is unquestionably a public interest in ensuring that elected officials and election
workers can carry out their duties without fear of threats and retaliation. See, e.g., Memorandum
from Lisa Monaco, Deputy Attorney General, Guidance Regarding Threats Against Election
Workers (June 25, 2021) ("The right to vote is the cornerstone of our democracy, the right from
which all other rights ultimately flow. For this vital right to be effective, election officials must
be permitted to do their jobs free from improper partisan influence, physical threats, or any other
conduct designed to intimidate."). Accordingly, the need to promote this federal interest weighed
in favor of proceeding against Mr. Trump.
236 See SCO-00006256 at 133; SCO-11522446 at 6 (Int. Rep.); SCO-00790949 at 26 (HSC Tr.).
237 SCO-11545613 at 165-171 (Int. Tr.).
238 See ECF No. 252 at 69-70 & n.385; SCO-04976350 at 01:26:01-01:26:32 (Video ofHSC Testimony).
239 SCO-00256421 at 2 (Email to Co-Conspirator 201/06/2021 ).
82
4. The substantial federal interest in the evenhanded administration of the
law was served by Mr. Trump's prosecution.
There is a substantial federal interest in ensuring the evenhanded administration of the
law with respect to accountability for the events of January 6, 2021, and the Office determined
that interest would not be satisfied absent Mr. Trump's prosecution for his role. Multiple district
court judges have recognized Mr. Trump's role in the events of January 6. See United States v.
Laios, No. 21-cr-242, ECF No. 37 at 55-56 (D.D.C. Nov. 19, 2021) (Transcript of Sentencing)
(Court stating that Jan. 6 defendant was "called to Washington, D.C. by an election official; he
was prompted to walk to the Capitol by an elected official" and telling defendant, "I think you
were a pawn, you were a pawn in a game that was played and directed by people who should
have known better"); United States v. Peterson, No. 21-cr-309, ECF No. 32 at 23 (D.D.C. Dec. 1,
2021) (Transcript of Sentencing) (Court stating that "incendiary" statements at the Ellipse rally
"absolutely, quite clearly and deliberately, stoked the flames of fear and discontent and explicitly
encouraged those at the rally to go to the Capitol and fight for one reason and one reason only, to
make sure the certification did not happen"); United States v. Barnard, No. 21-cr-235, ECF No.
53 at 28 (D.D.C. Feb. 24, 2022) (Transcript of Sentencing) ("The events of January 6th involved
a rather unprecedented confluence of events spurred by then President Trump and a number of
his prominent allies who bear much responsibility for what occurred on that date."). To date,
more than 1,500 people have been criminally charged for their roles in the January 6 attack on
the United States Capitol. With that in mind, Mr. Trump's relative culpability weighed heavily in
favor of charging him, as the individual most responsible for what occurred at the Capitol on
January 6. See Justice Manual § 9-27.230.4 (requiring prosecutors to assess the "degree of the
person's culpability in connection with the offense, both in the abstract and in comparison with
any others involved in the offense").
83
Rioters have cited Mr. Trump as the reason they traveled to Washington, D.C., and went
to the Capitol that day. In the weeks before January 6, Mr. Trump issued several Tweets calling
his supporters to Washington, D.C., for his rally at the Ellipse, and they answered the call. In the
days after Mr. Trump's December 19 Tweet promising that the rally would be "wild," for
instance, Kelly Meggs-a member of the Oath Keepers group who was later convicted of
seditious conspiracy among other charges-messaged associates that "[i]t's going to be wild.
[Trump] wants us to make it wild. That's what he's saying." United States v. Rhodes,
No. 22-cr-15, ECF No. 815 at 61 (D.D.C. Feb. 21, 2024) (Motion Hearing Tr.). Meggs added,
"He called us all to the Capitol, ... and he wants us to make it wild." Id. at 61-62. Rioter David
Kuntz-a member of the Three Percenters militia group who would later plead guilty to charges
related to breaching the Capitol building-planned travel to Washington, D.C., on January 6 in
direct response to the December 19 Tweet. United States v. Wilson, No. 23-cr-427, ECF No. 47
at 6-7 (D.D.C. Apr. 17, 2024) (Superseding Indictment). Kuntz later shared Trump's December
27 Tweet, which told supporters, "See you in Washington DC, on January 6th. Don't miss it.
Information to follow!" Kuntz commented, "He is asking us to be there," and, "Good he does
need us im [sic] going armed period." Id. at 11; see also Wilson, No. 23-cr-427, ECF No. 95 at 8
(D.D.C. Dec. 2, 2024) (Statement of Offense).
In his Ellipse speech, Mr. Trump explicitly directed his supporters to march on the
Capitol. At one point, in reply to a line in his speech that "[w]e will not let them silence your
voices; we're not going to let it happen," a portion of the rally crowd chanted, "Fight for Trump!
Fight for Trump!" 240 When he repeatedly exhorted his supporters to "walk down" 241 to the U.S.
240 See ECF No. 252 at 77 & nn.438-439; SCO-02244118 at 2 (Remarks by Mr. Trump at Save America Rally
01/06/2021); SCO-00747921 at 03: 18-03:47 (Rallygoer video 01/06/202 I).
84
Capitol to help prevent Congress's planned certification, they listened. Law enforcement
witnesses at and near the Capitol on January 6 describe large crowds descending upon Capitol
grounds from the direction of the Ellipse rally. 242 And video and photographic evidence shows
that hundreds of individuals in attendance at the Ellipse rally were later participants in the
Capitol siege and in some cases were among the most violent of the rioters. 243
During the siege, Mr. Trump's supporters continued to heed his words. Video evidence
from that afternoon shows rioters, in real time, crediting Mr. Trump for their presence and
conduct at the Capitol. For example, as the crowd sought to push past officers protecting the
Capitol's East Front, one rioter shouted: "We were invited here! We were invited by the
President of the United States!" 244 Inside, another rioter yelled at officers to "stand down.
You're outnumbered. There's a fucking million of us out there. And we're listening to Trump-
241 See ECF No. 252 at 77 & n.440; SCO-02244 I 18 at 6, 22 (Remarks by Mr. Trump at Save America Rally
01/06/2021).
242 SCO-11506096 at 59-62 (Int. Tr.); SCO-11520948 at 71-74 (Int. Tr.).
243 See, e.g., SCO-12919600 at 27:22-27:26 (Video of Rioter 1 at the Save America Rally 01/06/2021);
SCO-12919284 at 03: 17-03: 18 (Video of Rioter 1 at the Save America Rally O1/06/2021); SCO-12807276 at 03:08-
03: 14 (Video of Rioter I on Capitol Grounds 01/06/2021); SCO-12919212 at 03:17-03:21 (Video of Rioter 1 on
Capitol Grounds 01/06/2021); SCO-12919384 at 08:20-08:34 (Video of Rioter 2 in the Capitol Rotunda
01/06/2021); SCO-12919401 at 04:06-04: 14 (Video of Rioter 2 walking down Pennsylvania Avenue from the Save
America Rally 01/06/2021); SCO-12918732 at 04:29-04:31 (Photograph of Rioter 2 in the Capitol Rotunda
01/06/2021); SCO-12918900 at 00:01-00:07 (Video of Rioter 2 inside the Capitol 01/06/2021); SCO-12919421 at
00:00-00:02 (Video of Rioter 3 in the crowd at the Save America Rally O1/06/202 I); SCO-12807145 (Photograph of
Rioter 3 on Capitol Grounds 01/06/2021); SCO-12919066 at 02:07-02:10 (Video of Rioter 3 at the Save America
Rally 01/06/2021); SCO-12919977 at 23:06-23:10 (Video of Rioter 4 at the Save America Rally 01/06/2021);
SCO-12918777 (Photograph of Rioter 4 on Capitol Grounds 01/06/2021); SCO-12807279 at 01:09:28-01:09:55,
01:10:05-01:10:37, 01:10:40-01:11:09 (Video of Rioter 4 on Capitol Grounds 01/06/2021); SCO-12919375 at
01:13:17-01:13:22 (Video of Rioter 4 on Capitol Grounds from HBO's Four Hours at the Capitol 01/06/2021);
SCO-12916307 at 24:16-25:50 (Video of Rioter 4 inside Capitol Tunnel 01/06/2021); SCO-12918918 at 00:11-
00: 12 (Video of Rioter 5 at the Save America Rally O 1/06/2021); SCO-12919079 (Photograph of Rioter 5 on Capitol
Grounds 01/06/2021); SCO-12919419 at 00:33-00:38 (Video of Rioter 5 on Capitol Grounds); SCO-12738292 at
00:24-00:32 (Video of Rioter 5 at the Capitol); SCO-12733719 at 35: 17-35:22 (Video of Rioter 5 at the Capitol);
SCO-12807327 at 00:00-00:01 (Video of Rioter 6 at the Save America Rally O1/06/2021); SCO-12807375 at 00:49-
00:51 (Photograph of Rioter 6 at the Capitol O 1/06/2021); SCO-12916338 at 03 :00:21-03 :00:55 (Video of Rioter 6
at the Capitol O1/06/2021).
244 SCO-1273 8326 at 00:03-00: 18 (Video of Capitol Riot O 1/06/2021).
85
your boss." 245 United States v. Harris, No. 21-cr-189, ECF No. 84 at 5 (D.D.C. Oct. 20, 2023).
That rioter was later convicted of obstruction and of assaulting an officer, among other
violations. Id. at 11. As the day wore on, rioters continued to obey Mr. Trump's commands. At
4:25 p.m.-just eight minutes after Mr. Trump's video Tweet telling supporters that they were
"very special" but should "go home now"-rioter Edward Vallejo, a member of the Oath
Keepers, posted to a group Signal chat that "our commander in chief has just ordered us to go
home." Rhodes, ECF No. 822 at 55 (Sentencing Hearing Tr.). Another rioter, Jacob Chansley,
played that video Tweet to a crowd at the Capitol and announced that "Donald Trump has asked
everybody to go home."246 Chansley left the Capitol at that point-having earlier breached the
Senate chamber, taken a seat at the dais, and declared Vice President Pence to be "a fucking
traitor." United States v. Chansley, No. 21-cr-3, ECF No. 81 at 10-11 (D.D.C. Nov. 9, 2021)
(Gov't Sentencing Memorandum). 247
After January 6, when rioters began to face accountability for their unlawful acts at the
Capitol, many pointed to Mr. Trump in an attempt to excuse or mitigate their conduct. For
example, following his arrest on charges stemming from the Capitol siege, rioter Alex Harkrider
sought release from pretrial detention by arguing that "[l]ike thousands of others [at the Capitol],
Mr. Harkrider was responding to the entreaties of the then Commander-in-Chief, former
President Donald Trump." United States v. Harkrider, No. 21-cr-117, ECF No. 16 at 14 (D.D.C.
Apr. 1, 2021) (Def.'s Motion to Revoke Order of Detention); see also, e.g., United States v.
245 SCO-12876131 at 02:26-02:33 (Video of Capitol Riot 01/06/2021).
246 SCO-12918754 at 24:47-27:22 (Video of Capitol Riot 01/06/2021); id at 28:00-28:08 (rioter announcing that he
was "going to do as Donald Trump has asked and [he was] going to go home"); SCO-12919861 at 01:55:29-
01 :55:45 (Video of Capitol Riot 0 1/06/2021); id at 0 l :57:20-01 :57:34 (rioter announcing that "Donald Trump asked
everybody to go home. So what are we gonna do? We're going to obey our President; we're gonna do as he asked;
and we're gonna go home."); SCO-12876155 (Video outside Capitol 01/06/2021).
247 See also SCO-12916465 (Video of Senate Chamber 0 1/06/2021).
86
Hale-Cusanelli, No. 21-cr-37, ECF No. 13 at 17 (D.D.C. Mar. 2, 2021) (Def.'s Motion for
Modification of Bond) (requesting pretrial release in part because defendant "was responding to
the entreaties of the then commander in chief, President Trump"); Chansley, No. 21-cr-3, ECF
No. 12 at 10 (D.D.C. Feb. 23, 2021) (Motion of Def. for Pretrial Release) (arguing that Chansley
was "incited" by Mr. Trump and noting his unsuccessful request for a presidential pardon). In
closing argument at trial on seditious conspiracy and other charges related to January 6, defense
counsel unsuccessfully asked the jury to acquit Proud Boys leader Enrique Tarrio because, in
part, "[i]t was [Mr. Trump's] anger that caused what occurred on January 6th" and "[i]t was not
Enrique Tarrio." United States v. Nordean et al., No. 21-cr-175, Trial Tr. at 19991 (D.D.C. Apr.
25, 2023). And, at sentencing in January 6 cases, many rioter defendants-whether expressing
remorse or not-have sought leniency by blaming Mr. Trump both for their presence at the
Capitol and their underlying belief "that the [2020 presidential] election was fraudulent and that
they must take action to stop the transition of the presidency." United States v. Palmer,
No. 21-cr-328, ECF No. 31 at 8 (D.D.C. Dec. 13, 2021) (Sentencing Memorandum and Motion
for Downward Variance); see also, e.g., United States v. lvfcCaughey, 2 l-cr-40, ECF No. 528 at 2
(D.D.C. Feb. 17, 2023) (Def. David Mehaffie's Sentencing Statement); United States v. Gruppo,
No. 21-cr-391, ECF No. 28-2 at 2 (D.D.C. Oct. 19, 2021) (Def.'s Letter) (citing language of
Ellipse rally speech and stating, "I trusted the President and that was a big mistake").
B. Mr. Trump Was Not Subject to Effective Prosecution in Another Jurisdiction
The next consideration, under the Principles of Federal Prosecution, is whether Mr.
Trump was subject to effective prosecution in another jurisdiction. The Office concluded that a
prosecution carried out by a single local authority could not effectively hold him accountable for
his efforts targeting the only election for national office. Although Mr. Trump was theoretically
subject to state criminal charges for his conduct, based on the scope and magnitude of Mr.
87
Trump's alleged crimes, no local prosecution could effectively hold Mr. Trump accountable for
his attempts to overturn the valid results of the election, obstruct the congressional certification,
and disenfranchise millions of voters. Indeed, all citizens, not just the citizens in the seven
contested states that he targeted with his criminal plan, suffered the impact of Mr. Trump's
crimes, warranting a federal prosecution accounting for all his conduct and the federal interests it
implicated.
In addition, when the Office was making its charging decision in the summer of 2023, no
other jurisdiction had initiated charges against Mr. Trump or co-conspirators. After the grand
jury returned the original indictment against Mr. Trump in this case, however, he subsequently
was also charged with a racketeering conspiracy in Georgia, Georgia v. Trump, 23sc 18894 7,
Indictment (Fulton County, Ga. Super. Ct. Aug. 14, 2023) (19-defendant case pending since
August 2023 in Fulton County Superior Court). Although the forty-count indictment in Fulton
County encompasses some of the same core conduct for which Mr. Trump was charged federally
in the District of Columbia, its focus is on a conspiracy to commit fraud-that is, to change the
outcome of the election-including through false statements to Georgia state legislators and
other high-ranking state officials. See id. at 16-17. It does not fully address Mr. Trump's alleged
criminal conduct in furtherance of a conspiracy to obstruct the January 6 certification proceeding
or a conspiracy against voters' rights. As described above, there are strong federal interests in
protecting the integrity of the certification proceeding and the right to vote and have one's vote
counted.
C. There Was No Adequate Non-Criminal Alternative to Prosecution
Given the strong federal interests in holding Mr. Trump accountable described above, the
Office could not identify any adequate non-criminal alternative to prosecution. To be sure,
because he was President at the time of his alleged offenses, Mr. Trump was subject to
88
impeachment and was in fact impeached (though he was not convicted). Impeachment, however,
was never intended to be a substitute for criminal prosecution. "[T]he Framers recognized that
most likely there would be two sets of proceedings for individuals who commit impeachable
offenses-the impeachment trial and a separate criminal trial." Nixon v. United States, 506 U.S.
224, 234 (1993). The Impeachment Judgment Clause itself expressly contemplates separate
proceedings, stating that the punishment for impeachment and conviction "shall not extend
further than to removal from Office, and disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment, according to Law." U.S. CONST. art. I,
§ 3, cl. 7.
Not only are impeachment and prosecution separate and distinct proceedings, they apply
different standards and pursue different objectives. When Congress decides whether a President
should be impeached and convicted, that process does not depend on rigorously adjudicating
facts and applying law, or on finding a criminal violation. Instead, the impeachment process is,
by design, an inherently political remedy for the dangers to governance posed by an office holder
who has committed "Treason, Bribery, or other high Crimes and Misdemeanors." U.S. CONST.
art. II, § 4. Congress may decide not to impeach or convict for reasons that have little or no
connection to the nature of the evidence of the officer's culpable conduct. For example, the
political alignment of Congress may prevent impeachment and conviction, without regard to the
officer's conduct. Indeed, prior to 2020, no Senator had ever voted to convict an impeached
President of the same political party. And in cases like this one, where the President has left
office by the time an impeachment trial occurs, Senators may question their authority to convict
89
regardless of the egregiousness of the conduct at issue. See, e.g., 167 CONG. REc. S736 ( daily
ed. Feb. 13, 2021) (statement of Sen. McConnell).
During Mr. Trump's impeachment trial, his counsel insisted that the outcome of the
proceeding would have no bearing on any future criminal prosecution, stating, "Clearly, a former
civil officer who is not impeached is subject to" criminal prosecution. 167 CONG. REC. S607
( daily ed. Feb. 9, 2021 ); see id. at S601 (noting that if a President "committed a criminal offense"
then "[a]fter he is out of office, you go and arrest him," adding, "[t]he Department of Justice
does know what to do with such people"). Senators who voted to acquit Mr. Trump expressed a
similar view. See, e.g., 167 CONG. REc. S736 (daily ed. Feb. 13, 2021) (statement of Sen.
McConnell) (stating that Mr. Trump "is still liable for everything he did while he was in office,
as an ordinary citizen," and noting that "[w]e have a criminal justice system in this country").
Thus, even if Mr. Trump had been convicted by the Senate, political accountability, in the form
of impeachment, would not have been an adequate alternative for criminal accountability,
especially considering the scope of Mr. Trump's offenses and the substantial federal interests
they targeted.
D. Mr. Trump's Conduct Had No Historical Analogue
During pretrial litigation, Mr. Trump contended that his conduct was materially
indistinguishable from that of other actors throughout American history-including past
Presidents and Vice Presidents-who had either claimed that an election was tainted by fraud or
presided over a certification proceeding at the joint session where electoral votes were in dispute.
Mr. Trump further argued that because those actors had not been prosecuted for their purportedly
similar conduct, it would be unconstitutional to prosecute him for his conduct, because doing so
would either violate his right to fair notice, see ECF No. 113 at 25-31; ECF No. 114 at 28-31, or
result in selective or vindictive prosecution, see ECF No. 116 at 6-8. That is, even accepting that
90
Mr. Trump engaged in the conduct alleged in the indictment, and that such conduct violated the
charged statutes, he maintained that prosecution was improper because it conflicted with
historical practice.
The historical episodes that Mr. Trump invoked-arising from elections in 1800, 1824,
1876, 1960, 2000, 2004, and 2016-did not involve similar conduct and did not supply a valid
reason to decline to bring charges here. In litigation, the Office addressed each historical episode
he cited and explained why none was meaningfully similar to the charged conduct. See ECF No.
139 at 40-47; ECF No. 141 at 6-9. Taken together, those episodes showed that "[t]here have
been times, as in 1800, 1876, and 1960, when genuine questions have arisen over which slate of
electors from a particular state has been duly appointed"; "[t]here have also been times, as in
1824, when the failure of any candidate to obtain a majority of electoral votes has thrown the
election to the House of Representatives"; and "there have been times, as in 2000, 2004, and
2016, when those dissatisfied with the results have sought to raise objections to the electoral vote
count, resulting in either the objections being overruled or, in one case, a brief adjournment
designed as an Ohio-focused protest vote without 'the hope or even the hint of overturning the
victory of the President."' ECF No. 139 at 46-47 (quoting 151 CONG. REC. 199 (Jan. 6, 2005)).
But none of the historical episodes at issue involved "any attempt by any person to use fraud and
deceit to obstruct or defeat the governmental function that would result in the certification of the
lawful winner of a presidential election." Id. at 40-47; see ECF No. 141 at 6-9.
The district court found that there were no historical analogues to Mr. Trump's alleged
criminal conduct. When Mr. Trump filed a motion to dismiss the indictment on a claim that he
was being selectively prosecuted because of a historical "track record of similar, unprosecuted,
efforts" to challenge elections, see ECF No. 116 at 6, the district court rejected it, explaining that
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Mr. Trump was "not being prosecuted for publicly contesting the results of the election; he is
being prosecuted for knowingly making false statements in furtherance of a criminal conspiracy
and for obstruction of election certification proceedings." ECF No. 198 at 5-7. Likewise, in its
opinion denying Mr. Trump's immunity motion, the district court found that "none of the
contested elections" Mr. Trump "invokes is analogous to this case," as none involved "any
allegation that any official engaged in criminal conduct to obstruct the electoral process." ECF
No. 171 at 47.
IV. INVESTIGATIVE PROCEDURE AND POLICY
Upon appointing the Special Counsel, the Attorney General explained that the
appointment "underscores the Department's commitment to both independence and
accountability in particularly sensitive matters. It also allows prosecutors and agents to continue
their work expeditiously, and to make decisions indisputably guided only by the facts and the
law." See Press Release, Office of Public Affairs, Department of Justice, Appointment of a
Special Counsel (Nov. 18, 2022), https://www.justice.gov/opa/pr/appointment-special-counsel-O.
The Attorney General also noted that, "[a]lthough the Special Counsel will not be subject to the
day-to-day supervision of any official of the Department, he must comply with the regulations,
procedures, and policies ofthe Department." Id. The Office conducted its work accordingly.
A. The Investigative Process248
Employing traditional investigative tools, including voluntary interviews, grand jury
subpoenas, and search warrants-and subject to the same legal requirements binding on all
federal prosecutors-the Office, spanning the period predating the Special Counsel's
248 The Appendix to this Report lists public information about key documents from significant litigation undertaken
in the course of the investigation and prosecution.
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appointment to the completion of its work, developed a thorough record of independently
verified facts on which it based its prosecutive decisions in the Election Case. The investigative
record comprised voluntary witness interviews and grand jury testimony from numerous
individuals, 249 as well as voluminous records such as emails, text messages, encrypted messages,
memoranda, and other documents. These records were obtained through both voluntary
productions by dozens of witnesses and through compulsory process and court orders, including
grand jury subpoenas directed to witnesses and entities, court orders for non-content information
(such as sender, recipient, date, and time) from electronic communications accounts, and search
warrants to obtain evidence from physical sources and/or locations, electronic devices, and email
and iCloud accounts. 250 The Office also obtained records from other components of the
Department of Justice, including the U.S. Attorney's Office for the District of Columbia, and
other federal agencies, including the National Archives, Depmiment of Homeland Security,
Department of Defense, and Office of the Director of National Intelligence. 251 Further, the
249 This record, including the period predating the Special Counsel's appointment, encompasses voluntary interviews
of more than 250 individuals and grand jury testimony from more than 55 witnesses.
250 Search warrants for electronic devices and accounts, as well as applications to obtain records of electronic
communications, must be approved by a federal magistrate or district judge and are held to well-established
standards of proof. To obtain a search warrant, for instance, the government must establish that there is probable
cause to believe that the location, device, or account to be searched contains evidence of a crime. See U.S. CONST.
amend. IV (search warrants require "probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized"). Other court orders-for instance, those that give
the government access to the non-content information described above regarding electronic communicationsrequire
a showing that there are reasonable grounds to believe that the information sought is relevant and material to
an ongoing criminal investigation. See 18 U.S.C. § 2703(d).
251 The Office's investigation included consideration of the report issued on December 22, 2022, by the U.S. House
of Representatives' Select Committee to Investigate the January 6th Attack on the United States Capitol, as well as
certain materials received from the Committee. Those materials comprised a small part of the Office's investigative
record, and any facts on which the Office relied to make a prosecution decision were developed or verified through
independent interviews and other investigative steps. During the prosecution of the Election Case, Mr. Trump
alleged that the Select Committee and Special Counsel's Office were one and the same and sought additional
discovery about the Select Committee's work. The district court rejected the claim. See ECF No. 263 at 47
(concluding that Mr. Trump has "not supplied an adequate basis to consider the January 6 Select Committee part of
the prosecution team"). Regardless, the Office provided or otherwise made available to Mr. Trump in discovery all
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Office collected more than one terabyte of data from publicly available sources such as social
media postings and websites. All discoverable material was provided or made available to Mr.
Trump in discovery during the prosecution of the Election Case.
Throughout its work, the Office complied with "the rules, regulations, procedures,
practices and policies of the Department of Justice," 28 C.F.R. § 600.7(a), including consulting
the Justice Manual, the Department's publicly available guidebook on policies and procedures,
and consulting or obtaining requisite approvals from other Department components. For
example, as required under the Justice Manual, the Office obtained approvals from the Criminal
Division's Office of Enforcement Operations, which provides legal guidance on the use of
sensitive law enforcement tools, such as certain subpoenas and search warrants involving
attorneys. And as discussed more below, the Office consulted the Criminal Division's Public
Integrity Section (PIN), which oversees the investigation and prosecution of federal crimes
affecting government integrity, pursuant to Justice Manual requirements pertaining to the service
of subpoenas and other process on Members of Congress, the use of election fraud charges, and
the Department's Election Year Sensitivities Policy, a longstanding Department policy regarding
the conduct of sensitive investigations during an election year.
Even when not required, in accordance with the best traditions of the Department, the
Office actively sought advice and guidance from subject matter experts throughout the
Department. For example, the Office requested assistance from the Civil Division and Office of
Information Policy (OIP) on civil litigation for public access to investigative and prosecutive
materials. And the Office conferred with the Office of the Solicitor General (OSG), which is
materials received from the Select Committee. See ECF No. 263 at 47 ("the Government states that it has already
produced all the records it received from the Committee").
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responsible for supervising and conducting government litigation in the United States Supreme
Court, the Office of Legal Counsel (OLC), which provides binding legal advice to the Executive
Branch, and the Criminal Division's Appellate Section, which conducts and oversees the
Department's criminal appellate litigation, on complex statutory, constitutional, and other legal
issues-including regarding charging decisions in the original and superseding indictments, see
supra at Section II, Mr. Trump's challenge to the district court's order on extrajudicial
statements, see infra at Section VB, Mr. Trump's executive privilege claims, see infra at Section
VC, and Mr. Trump's immunity challenge to the indictment, see infra at Section VD.
B. Investigative and Prosecutive Procedures in an Election Year
Mr. Trump's announcement of his candidacy for President while two federal criminal
investigations were ongoing presented an unprecedented challenge for the Department of Justice
and the courts. Given the timing and circumstances of the Special Counsel's appointment and
the Office's work, it was unavoidable that the regular processes of the criminal law and the
judicial system would run parallel to the election campaign. Mr. Trump's position was that
when the judicial process conflicted with his election campaign, the courts should always yield;
as discussed below, the courts did not agree. Under these unique circumstances, the
Department's actions would be criticized by one constituency or another, regardless of which
path the investigations took. Accordingly, the Office leaned on established Department policy,
practice, and wisdom, and focused on doing its job promptly and thoroughly.
From the outset and throughout its work, the Office recognized the weighty issues
presented by the matters under its mandate and operated on the principle that the best interests of
the Department and the nation required prompt investigation and decision-making. The Office's
exceptional working pace ensured that its investigative work could be completed, charging
decisions could be made, and any necessary indictments could be returned by the summer of
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2023, long before the election. The Office had no interest in affecting the presidential election,
and it complied fully with the letter and spirit of the Department's policy regarding election year
sensitivities. It did so through fundamentally sound practices: moving its investigations swiftly,
making charging decisions and returning indictments well before the election, litigating its cases
on the timetables set by the courts, and consulting with PIN.
1. The Department's Election Year Sensitivities Policy
The staff of the Office was deeply familiar with and committed to the Department's
election year sensitivities policy, as it included fraud and public corruption prosecutors with
many years of experience working in and leading PIN. The Special Counsel himself and one of
his Counselors had served as Chief of PIN, two of the attorneys had been deputy chiefs in PIN,
and two other attorneys in the Office had been trial attorneys in PIN. Collectively, prosecutors in
the Office had many years of experience providing training, advice, and guidance to prosecutors
and law enforcement agents throughout the Depmiment on how to comply with the Department's
election-related policies. In fact, the Counselor in the Office who had previously served as Chief
of PIN was one of the drafters of the first election year sensitivities memorandum issued to
Department attorneys.
The Depaiiment's policy regarding elections has two overlapping components. The first
is focused on the prosecutor's purpose: it prohibits prosecutors from taking any action or timing
any action for the purpose of affecting an election. Justice Manual § 9-27.260 and § 9-85.500.
That flat prohibition applies to all actions by prosecutors and at all times during an investigation
or prosecution. The second and overlapping component focuses on safeguarding the
Department's reputation for fairness and nonpartisanship, requmng that prosecutors take
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particular care in an election year and consult with PIN when an action is "likely to raise an issue
or the perception of an issue." Justice Manual § 9-85.500. 252
These policies are well-established within the Department. In 2008, in the wake of
allegations and investigations concerning politicization in the Department, 253 and recognizing
that there was uncertainty regarding the terms of the Department's policies and practices in
election years, the Criminal Division and PIN evaluated the feasibility of establishing a specific
and definitive set of rules regarding the duty to avoid interference with elections in the run-up to
an election. While prosecutors had long been advised to exercise particular care in politically
sensitive cases in the two or three months immediately prior to an election, the Department had
never had a formal 60-day or 90-day rule that governed such situations. 254 As part of its
evaluation in 2008, the Department considered whether to codify a particular rule, but ultimately
concluded that the best course was, instead, to provide guidance in the form of an Attorney
General Memorandum addressing the need for particular care to protect the Department's
reputation for impartiality in an election year, and setting forth in writing the core principle that
prosecutors and agents may not act for a political purpose.
252 The Department's election-related policies were first developed in the context of investigations involving ballot
fraud, where PIN's Election Crimes Branch has for decades maintained a written non-interference policy that
applies only in the context of ballot fraud investigations. See Federal Prosecution of Election Offenses (8th ed.
2017) at 84-85. That policy, which precludes certain investigative actions in a ballot fraud investigation until after
the election to which the investigation relates is completed and certified, was codified in the Justice Manual in
August 2022. See Justice Manual § 9-85.300. Because the 2020 presidential election had been completed and
certified before our investigation began, the ballot fraud policy had no application to the Office's work.
253 See Joint Report of the Department of Justice, Office of Professional Responsibility and Office of the Inspector
General, An Investigation ofAllegations ofPoliticized Hiring by Monica Goodling and Other Staff in the Office of
the Attorney General (July 28, 2008), https://oig.justice.gov/sites/default/files/legacy/special/s0807 /final.pdf.
254 The background regarding the election year sensitivities policy and the so-called "60-day rule" was reviewed by
the Department of Justice Office of the Inspector General in its June 2018 report, A Review of Various Actions by the
Federal Bureau of Investigation and the Department of Justice in Advance of the 2016 Election, at 16-18,
https:/ /oig.j ustice .gov Is ites/default/files/reports/ 18-04. pdf.
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On March 5, 2008, Attorney General Michael Mukasey issued the first Election Year
Sensitivities Memorandum setting forth this guidance. In relevant part, the Attorney General
Memorandum stated:
Department of Justice employees are entrusted with the authority to enforce the
laws of the United States and with the responsibility to do so in a neutral and
impartial manner. This is particularly important in an election year. Now that the
election season is upon us, I want to remind you of the Department's existing
policies with respect to political activities.
The Department of Justice has a strong interest in the prosecution of election
fraud and other election-related crimes, such as those involving federal and state
campaign finance laws, federal patronage laws, and corruption of the election
process. As Department employees, however, we must be particularly sensitive to
safeguarding the Department's reputation for fairness, neutrality and
nonpartisanship.
Simply put, politics must play no role in the decisions of federal investigators or
prosecutors regarding any investigations or criminal charges. Law enforcement
officers and prosecutors may never select the timing of investigative steps or
criminal charges for the purpose of affecting any election, or for the purpose of
giving an advantage or disadvantage to any candidate or political party. Such a
purpose is inconsistent with the Department's mission and with the Principles of
Federal Prosecution.
If you are faced with a question regarding the timing of charges or overt
investigative steps near the time of a primary or general election, please contact
the Public Integrity Section of the Criminal Division for further guidance.
Memorandum from Michael Mukasey, Attorney General, Election Year Sensitivities (Mar. 5,
2008).
Since 2008, Attorneys General have issued memoranda containing substantially the same
guidance to prosecutors and agents in each election year. 255 In August 2022, just three months
255 See Memorandum from William Barr, Attorney General, Election Year Sensitivities (May 15, 2020) (adding
language to the Election Year Sensitivities memorandum to make clear that the policy applied not only to
investigative and charging actions, but also to public statements by prosecutors and law enforcement agents).
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before the Attorney General appointed the Special Counsel, the Department codified its election
year policies in the Justice Manual:
Federal prosecutors and agents may never select the timing of any action,
including investigative steps, criminal charges, or statements, for the purpose of
affecting any election, or for the purpose of giving an advantage or disadvantage
to any candidate or political party. Such a purpose is inconsistent with the
Department's mission and with the Principles of Federal Prosecution. See
§ 9-27.260. Any action likely to raise an issue or the perception of an issue under
this provision requires consultation with the Public Integrity Section, and such
action shall not be taken if the Public Integrity Section advises that further
consultation is required with the Deputy Attorney General or Attorney General.
Justice Manual § 9-85.500; see also id. § 9-27.260 (adding the election year sensitivities policy
to the Principles of Federal Prosecution).
Implementation of the election year sensitivities policy can raise challenging questions.
Taking action may be viewed as hurting a candidate, while refraining from action may be viewed
as helping that candidate. This challenging landscape counsels in favor of structuring and timing
investigations in a manner that enables prosecutors and agents to avoid these issues as much as
possible and do what they do best: focus on the needs of the case. Consistent with that, PIN
often counsels prosecutors to move their investigations along promptly and avoid unnecessary
delay that could needlessly place them in the position of deciding whether to take overt action or
bring charges in the period immediately before an election. Because of the Office's deep
familiarity and experience with these policies, it focused on completing both of its investigations
promptly and making timely charging decisions, long before the election.
2. Pre-Indictment Procedures
During the investigation and prosecution of this case, the Office consulted regularly with
PIN. For example, because the Election Case involved election fraud charges under 18 U.S.C.
§§ 241 and 371, the Office consulted with PIN and its Election Crimes Branch prior to returning
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the Election Case indictment in the District of Columbia, as required by Justice Manual § 9-
85.210 (Violations of Campaign Financing Laws, Federal Patronage Laws, and Corruption of
Elections-Consultation Requirement). In addition, the Office consulted with PIN regarding
investigative steps that involved gathering evidence connected to congressional staff, pursuant to
Justice Manual § 9-85 .110 (Investigations Involving Members of Congress). As discussed below
in Section V.A.2, the Office also consulted PIN regarding issues that arose in litigation involving
the Speech or Debate Clause, U.S. CONST. art. I, § 6, cl. 1, a unique constitutional protection that
provides a form of immunity to legislative acts by Member of Congress and their staff. See, e.g.,
In re Press Application for Access to Judicial Records Ancillary to Certain Grand Jury Proc.
Concerning Former Vice President Jvfike Pence, No. 23-mc-35, ECF No. 11-5 at 19 (D.D.C.
June 9, 2023) (publicly released Mar. 27, 2023, Memorandum Opinion) (application of Speech
or Debate privilege to Vice President when acting as President of the Senate); In re Sealed Case,
80 F.4th 355 (D.C. Cir. 2023) (application of Speech or Debate privilege to search of
congressman's cell phone). However, because the Office proceeded expeditiously with its
investigations and charging decisions, no election year sensitivities consultation with PIN was
required prior to returning the original indictment in either the Classified Documents Case in
June of 2023 or the Election Case in August of 2023.
3. Post-Indictment Procedures
The two components of the Department's election year sensitivities policy play out
differently in the context of post-indictment litigation. First, the bedrock principle that
prosecutors may not take any action for the purpose of affecting an election or providing an
advantage or disadvantage to any candidate or party applies fully during post-indictment
litigation. On this score, the Office did not take a single action at any time for any such purpose;
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rather, the Office's m1ss10n was at all times to uphold the law and carefully follow the
requirements of the criminal justice process.
Unlike the purpose-focused component of Department policy, the component that focuses
on the Department's reputation for impartiality stands on a different footing with respect to preindictment
and post-indictment activity. This component of the policy applies fully to the timing
of actions by prosecutors prior to indictment-bringing charges, taking overt investigative steps,
and making public statements. Justice Manual § 9-85.500. For such actions, prosecutors must
take election year sensitivities into account, and they are required to consult with PIN. Id.
However, once the case is charged, this component of the policy does not limit the ability to
litigate according to the schedule set down by the court and does not require consultation with
PIN for such litigation. Whether it is during an election year or any other time, the duty of
prosecutors after indictment is to litigate their cases fully and zealously, consistent with the
Constitution, United States Code, Federal Rules of Criminal Procedure, rules of professional
responsibility, and dictates of the calendar set forth by the court. See CNN This J\lforning,
Garland Comments on Trump Case, CNN.COM - TRANSCRIPTS (Jan. 19, 2024),
https://transcripts.cnn.com/show/ctmo/date/2024-01-19/segment/02 [https://perma.cc/HD2R-
6U8Y] (the "[p ]rosecutor has urged speedy trials, with which I agree. And it's now in the hands
of the judicial system, not in our hands."). Once a case is charged, no policy of the Department
limits the ability of prosecutors to litigate effectively on the schedule set by the court, and that is
what the Office did.
Consistent with the Department's policy, after indictment, the Office litigated the
Election Case according to the schedules set down by the district court, the D.C. Circuit, and the
101
Supreme Court. 256 Given the gravity of the issues presented by the charges, the Office sought to
move the case forward expeditiously for two central reasons unrelated to the election. First, the
Speedy Trial Act mandates expeditious resolution of criminal cases, and it does so not only for
the benefit of the accused, but in the best interest of the public. See Zedner v. United States, 547
U.S. 489, 501 (2006) ("[T]he [Speedy Trial] Act was designed with the public interest firmly in
mind."); Strunk v. United States, 412 U.S. 434, 439 n.2 (1973) ("The public interest in a broad
sense, as well as the constitutional guarantee, commands prompt disposition of criminal
charges."); Cobbledick v. United States, 309 U.S. 323, 325 (1940) ("[E]ncouragement of delay is
fatal to the vindication of the criminal law."). Second, those fundamental interests were
heightened in this case, which raised matters of utmost gravity, urgency, and national concern,
charging the former President with conspiring to thwart the peaceful transfer of power through
lies that undermined the democratic process and ultimately fueled a violent attack on the United
States Capitol. These criminal charges warranted prompt and fair disposition, and that is what
the Office sought to achieve.
Both during the investigation and after the case was charged, however, Mr. Trump sought
to delay the proceedings, taking the position that when the judicial process conflicted with his
election campaign, the courts should always yield. See, e.g., ECF No. 30 at 11 (proposing April
256 The Office did the same in the Classified Documents Case in the Southern District of Florida, litigating the case
according to the calendar set by the court. Trial had been set for May 20, 2024, but in late February, the court
ordered the parties to submit proposals for a new schedule and held a conference to discuss them, including
proposals fornew trial dates. See United States v. Trump, No. 23-cr-80101, ECF No. 338 (S.D. Fla. Feb. 27, 2024);
Trump, No. 23-cr-80 l OI, ECF No. 369 (S.D. Fla. Mar. l, 2024). Before responding to the court, the Office
confinned with PIN its own understanding that the election year sensitivities policy did not apply to post-indictment
litigation or require an election year sensitivities consultation before requesting a new trial date. The Office then
proposed a trial date of July 8, 2024, while Mr. Trump proposed August 12, 2024. But the court never set a new trial
date. See id., ECF Nos. 356 & 357 (S.D. Fla. Feb. 29, 2024). PIN later advised the Office that prosecutors who
request a trial date closer in time to an election than the July date that the Office proposed could be required to
consult with PIN. In any event, the Office consulted regularly with PIN, and PIN agrees that the Office complied
fully with the election year sensitivities policy in both of its cases.
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2026 trial date, emphasizing that "[n]o major party presidential candidate has ever been charged
while in the middle of a campaign"); ECF No. 103 at 20 (Mr. Trump's counsel arguing, "The
easiest solution to all of this is an obvious one.... and that is to adjourn the case after the
presidential election. That's the solution."); ECF No. 242 at 7-8 (asking court to reconsider
scheduling order, emphasizing that "President Trump is the leading candidate in the Presidential
election, which is just weeks away").
The courts did not agree. They consistently rejected Mr. Trump's efforts to delay or stop
the proceedings. The comis' words and actions throughout the litigation reflected their
fundamental commitment to the operation of the judicial process, notwithstanding the election
campaign. See, e.g., ECF No. 38 at 53 ("the public has a right to a prompt and efficient
resolution of this matter"); ECF No. 29 at 41 ("the fact that the defendant is engaged in a
political campaign is not going to allow him any greater or lesser latitude than any defendant in a
criminal case"); id. at 15 ("And so what the defendant is currently doing-you know, the fact
that he's running a political campaign currently has to yield to the orderly administration of
justice."); id. at 19 ("I cannot, and I will not, factor into my decisions the effect it's going to have
on a political campaign for either side."); United States v. Trump, 88 F.4th 990, 1018 (D.C. Cir.
2023) ("Delaying the trial date until after the election, as Mr. Trump proposes, would be
counterproductive, create perverse incentives, and unreasonably burden the judicial process.");
id. at 1016 ("But there is another fundamental constitutional interest at stake here. The existence
of a political campaign or political speech does not alter the court's historical commitment or
obligation to ensure the fair administration of justice in criminal cases. A trial participant's
engagement in political speech cannot degrade or diminish that essential judicial function.");
Trump, No. 23-3228, Per Curiam Order (D.C. Cir. Dec. 13, 2023) ( expediting briefing and oral
103
argument); Trump, No. 23-3228, Judgment (D.C. Cir. Feb. 6, 2024) (accelerating the schedule
for Mr. Trump to seek any further review).
The Office also sought to move the Election Case forward expeditiously in the Supreme
Court based upon the public interest in a prompt resolution of the case and the precedent set by
the Watergate Special Prosecutor in United States v. Nixon, 418 U.S. 683 (1974) (Nixon), where
the Court "granted both the United States' petition for certiorari before judgment (No. 73-1766),
and also the President's cross-petition for certiorari before judgment (No. 73-1834), because of
the public importance of the issues presented and the need for their prompt resolution ...." Id.
at 686-687 ( citations omitted). The Office filed a petition for certiorari before judgment, which
would have moved the Election Case directly to the Supreme Court from the district court, and
argued that the Court should follow the Nixon model. The Supreme Court did not grant the
Office's petition for certiorari before judgment. However, like the D.C. Circuit, the Supreme
Court ultimately expedited its consideration of the case, further confirming the Office's emphasis
on the strong public interest in a prompt resolution. 257
Following the Supreme Court's immunity decision, the Office again proceeded in a
manner that was fully consistent with the letter and spirit of the Department's election year
257 After the D.C. Circuit issued its opinion affirming the district court, Mr. Trump filed a motion in the Supreme
Court to stay the Circuit's issuance of its mandate until he could file, and the Supreme Court could resolve, a
petition for certiorari that he intended to file in the Supreme Court. See Trump v. United States, No. 23A 745,
Application for a Stay of the D.C. Circuit's Mandate Pending the Filing of a Petition for Writ of Certiorari (U.S.
Feb. 12, 2024). In response to that motion, the Office again pointed to the significant public interest in a prompt
resolution of the case, and argued that the Supreme Court should either deny the stay or, as an alternative manner of
moving the case promptly, treat Mr. Trump's motion as a petition for certiorari, grant the petition, and set the case
for expedited briefing and argument. See Trump, No. 23A 745, Resp. in Opp'n to Application for a Stay of the
Mandate of the United States Court of Appeals for the D.C. Circuit (U.S. Feb. 14, 2024). The Supreme Court
adopted the Office's alternative proposal and set an argument and briefing schedule to complete the litigation in the
October Term, which ended on July 1, 2024. See Trump, No. 23-939, Order Granting Petition (U.S. Feb. 28, 2024).
Briefing was completed by April 15, 2024, the Supreme Court held oral argument on April 25, 2024, and the
Supreme Court issued its immunity opinion remanding for further proceedings on July I, 2024. See Trump, 603
U.S. at 642.
104
sensitivities policy: litigating the case according to the schedule established by the district court,
taking action based upon the law and the best interests of the case, and consulting with PIN.
Upon receiving the decision, the Office immediately began a multi-faceted process to determine
the best way forward, including (1) a thorough evaluation of the opinion itself; (2) an exhaustive
and detailed review of the evidence and the allegations in the original indictment to determine
whether there was sufficient non-immune evidence to support the charges in light of the opinion;
(3) once the Office determined that there was sufficient non-immunized evidence, an evaluation
of whether to litigate the case based on the existing grand jury record and indictment or instead,
seek a superseding indictment that would be presented to a grand jury that had not heard any
immunized evidence; and ( 4) given the timing, evaluate whether all of the necessary steps could
be undertaken consistent with the election year sensitivities policy. The Office determined that
that there was sufficient non-immunized evidence to support the charges and that the best course
of action for the case was to obtain a superseding indictment that implemented the Supreme
Court's holding in Trump, and present that new indictment to a grand jury that had not heard
evidence of immunized conduct. See ECF No. 228 (Notice of Superseding Indictment). Before
doing so, the Office consulted with PIN for two purposes: (1) to obtain PIN's concurrence
regarding the proposed election fraud charges under 18 U.S.C. §§ 241 and 371, as required by
Justice Manual § 9-85.300; and (2) given the timing of the superseding indictment, to consult
with PIN regarding election year sensitivities, pursuant to Justice Manual § 9-85.500 and the
Attorney General's Election Year Sensitivities Memorandum. PIN concurred with the return of
the superseding indictment, which was returned by the grand jury on August 27, 2024.
Following the superseding indictment, and consistent with the district court's
instructions, on August 30, 2024, the parties submitted their positions regarding the schedule for
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pretrial proceedings. ECF No. 229. The Office proposed that it file an opening brief regarding
immunity in which it would provide detailed information without which the court could not
undertake the factbound analysis that was required by the Supreme Court's remand. The Office
argued that its filing would include the information that the defense would need to address and
that the district court would need to make its immunity determinations-regarding both the
allegations in the superseding indictment and the evidence that the Office would introduce at
trial-in a manner that would avoid the prospect of multiple interlocutory appeals. Id. at 2-3.
Were the defense to file first on remand, it would leave a large gap in the analysis that the district
court was required to undertake because only the Office could identify all of the evidence upon
which the charges were based and upon which it would rely at trial. See ECF No. 232 at 12-15
(Transcript of Hearing). The Office did not propose a particular date for filing its immunity brief
or a schedule for conducting the immunity litigation. It left those matters to the court's
discretion. Mr. Trump proposed that the immunity litigation should not begin until December
2024.
The district court issued an order setting a new schedule for pretrial litigation and
directing the Office to file its opening immunity brief on September 26, 2024. See ECF No. 233.
Prior to filing its immunity brief, the Office again confirmed with PIN that the election year
sensitivities policy did not apply to conducting such post-indictment litigation according to the
court's schedule and that the Justice Manual did not require consultation with PIN regarding
such litigation. And after the Office filed its immunity brief and Mr. Trump attempted to delay
its public disclosure, the district court again rejected his attempt to conflate the election and the
criminal justice process:
In addition to the assertions discussed above, Defendant's oppos1t10n brief
repeatedly accuses the Government of bad-faith partisan bias. See Def.'s Opp'n
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at 2, 5-6. These accusations, for which Defendant provides no support, continue a
pattern of defense filings focusing on political rhetoric rather than addressing the
legal issues at hand. See Oversized Brief Order at 2-3 (identifying two recent
instances of this pattern). Not only is that focus unresponsive and unhelpful to the
court, but it is also unbefitting of experienced defense counsel and undermining of
the judicial proceedings in this case.
ECF No. 251 at 7. 258
Throughout its work, the Office was focused entirely on its mandate to uphold the law,
and nothing more. The career prosecutors in the Office conducted its investigation and
prosecution in a manner that complied fully with the Department's policies regarding election
year sensitivities.
V. INVESTIGATIVE CHALLENGES AND LITIGATION ISSUES
In a corruption or conspiracy investigation, it is not unusual for a subject or target of the
investigation to continue to wield significant influence over, or command strong loyalty from,
potential witnesses, often complicating the ability of prosecutors to obtain evidence. That
dynamic was amplified in this case given Mr. Trump's political and financial status, and the
prospect of his future election to the presidency. As described below, one company resisted a
lawful court order issued during the Office's investigation, and important witnesses made the
choice to assert privileges against providing evidence based on their own official positions in the
government. In addition, after his indictment, Mr. Trump used his considerable social media
presence to make extrajudicial comments-sometimes of a threatening nature-about the case,
and the Office was forced to pursue litigation to preserve the integrity of the proceeding and
258 On October 17, 2024, Mr. Trump filed a motion, ECF No. 264, to delay public disclosure of the Office's
appendix to its immunity brief until after Mr. Trump had filed his own appendix on November 14, nine days after
the 2024 presidential election, such that both appendices would be released publicly simultaneously. Because Mr.
Trump filed his motion before obtaining the Office's position, the Office emailed the district court's chambers,
copying defense counsel, to inform the court that the Office did not object to that procedure.
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prevent witness intimidation. Mr. Trump also was able to raise claims of executive privilege and
presidential immunity. This section discusses each of those challenges and how the Office
addressed them.
A. Pre-Indictment Litigation with Third Parties
1. The Twitter/X Search Warrant
Mr. Trump's public statements-and specifically, his posts on the social media
application Twitter-constituted important potential evidence of his criminal conduct and intent.
Accordingly, on January 17, 2023, the Office applied for, and the district court authorized, a
search warrant requiring Twitter to provide certain information regarding Mr. Trump's Twitter
account. In re Twitter Search Warrant, No. 23-sc-31, ECF No. 32 at 1-2 & n. l, 5 (D.D.C. Mar.
3, 2023) (Twitter Decision). At the same time, as is common in non-public criminal
investigations to prevent individuals under investigation from destroying evidence or otherwise
hampering the process, the Office asked the district court to issue a non-disclosure order (NDO),
which would direct Twitter that it could not inform Mr. Trump that the Office was seeking
information regarding his account. Id. at 6. The district court granted the request and issued the
NDO. Id.
The search warrant required Twitter's compliance within ten days of its issuance, but the
day before that deadline, its Senior Director of Legal informed the Office that "it would not
comply with the Warrant by the next day." Id. at 7-9. Shortly thereafter, Twitter's Senior
Director of Legal further informed the Office that it would not comply with the warrant "without
changes to the NDO" permitting Twitter to notify Mr. Trump of the warrant. Id. at 9. Twitter
claimed that the NDO impinged on its First Amendment interests in communicating with the
former President, which, according to Twitter, were heightened because the warrant purportedly
could implicate issues of executive privilege though it conceded that it had no standing to raise
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any privilege issues. Id. at 24. The district court later described Twitter's actions as
"extraordinary" and noted that its resistance to the NDO appeared to be a first in the company's
history. Id. at 1 ("For what appears to be the first time in their nearly seventeen-year existence as
a company . . . [Twitter] seeks to vacate or modify an order, issued under the Stored
Communications Act . . . commanding that the company not disclose the existence of a search
warrant for a user's Twitter account, and further seeks to condition any compliance by the
company with that search warrant on the user (or user's representatives) first being notified about
the warrant and given an opportunity to stop or otherwise intervene in execution of the
warrant.").
The Office promptly moved in district court to have Twitter show cause why it should not
be held in contempt of court, asking the district court to impose a penalty that doubled with each
day of non-compliance, starting at $50,000. Id. at 9, 12. In rejecting Twitter's basis for refusing
to comply with the warrant, the district court emphasized that the search warrant and NDO had
been "issued by this Court after being apprised of extensive reasons sufficient to establish
probable cause for issuance of the warrant and to meet the statutory requirements for an NDO, to
which reasons Twitter is neither privy nor entitled to be privy." Id. at 2. The district court
rejected Twitter's contentions, finding that there existed compelling government interests to
maintain the NDO to preserve the integrity of the investigation, id. at 17-26, and that as a
practical matter, "[i]f accepted, Twitter's argument would invite repeated litigation by Twitter
and other [ electronic communication services] providers to challenge NDOs in order to alert
users to [Stored Communications Act] orders, particularly for high profile, highly placed users,
such as current or former government officials, with whom the providers might want to curry
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favor, with concomitant and inevitable delays in execution of [Stored Communications Act]
orders and resultant frustration in expeditiously conducting criminal investigations," id. at 11.
The district court ultimately held that the NDO lawfully prohibited Twitter from notifying
Mr. Trump about the warrant and fined Twitter $350,000 for failing to comply with the courtordered
search warrant in a timely fashion, finding that Twitter failed to show good faith and
substantial compliance in response to the warrant. Id. at 30-34. The sanction and NDO were
both upheld by the D.C. Circuit, and the Supreme Court declined to review the case. In re
Sealed Case, 77 F.4th 815, 830 (D.C. Cir. 2023), cert. denied sub nom. X Corp. v. United States,
2024 WL 4426628 (U.S. Oct. 7, 2024) (upholding NDO where the order was narrowly tailored
and "the district court specifically found reason to believe that disclosure of the warrant would
jeopardize the criminal investigation"); id. at 836 (holding that the "sanction ultimately imposed
was not unreasonable, given Twitter's $40-billion valuation and the court's goal of coercing
Twitter's compliance").
2. Legislative Privilege Under the Speech or Debate Clause
The Speech or Debate Clause provides that "for any Speech or Debate in either House,
[Senators and Representatives] shall not be questioned in any other Place." U.S. CONST. art. I,
§ 6, cl. 1. The Clause affords members of Congress a number of distinct protections, including a
testimonial privilege that guarantees that a member "may not be made to answer" questions
about his or her legislative acts. Gravel v. United States, 408 U.S. 606, 616 (1972). During the
investigation, former Vice President Pence (in his capacity as President of the Senate) invoked
his privilege under the Speech or Debate Clause. Through litigation over the scope and
applicability of the claimed privilege, the Office obtained important evidence.
After the grand jury subpoenaed Mr. Pence to testify about Mr. Trump's alleged efforts to
overturn the results of the 2020 election, Mr. Pence moved to quash the subpoena, invoking the
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Speech or Debate Clause. In re Press Application, No. 23-mc-35, ECF No. 11-1 at 1 (D.D.C.
June 9, 2023). Mr. Pence argued that the Vice President should receive the protections of the
Speech or Debate Clause when acting in his constitutional capacity as President of the Senate, as
he did while presiding over the joint session of Congress on January 6, 2021. Id. at 2.
According to Mr. Pence, the Speech or Debate Clause therefore foreclosed questioning before
the grand jury about his legislative acts relating to the joint session. Id. at 2-3.
The Chief Judge of the United States District Court for the District of Columbia, who
presides over grand jury matters in that district, denied "in large part" Mr. Pence's motion to
quash. Id., ECF No. 11-5 at 19. The court held "that, while the Clause does apply to the Vice
President, it does not cover the vast majority of what the Special Counsel seeks to ask him
about." Id. at 1. The court determined that although the Speech or Debate Clause foreclosed
questioning about Mr. Pence's legislative acts, much of the conduct the Office sought to question
Mr. Pence about did not qualify as legislative acts under the Speech or Debate Clause, including,
for example, Mr. Trump's "conversations exhorting Pence to reject electors on January 6th." Id.
at 16. The court concluded that the Speech or Debate Clause precluded government questioning
in two subject areas: (1) Mr. Pence's drafting and recitation of the statement he made on the floor
of the Senate on January 6; and (2) internal advice from Mr. Pence's staff about the scope of his
authority on January 6. Id. at 18-19. Neither the Office nor Mr. Pence appealed the district
court's ruling. 259
259 The Government also litigated Speech or Debate Clause issues against a Member of Congress. In August 2022,
before the Special Counsel was appointed, based on judicial findings of probable cause that evidence of crimes
would be found on the personal cell phone of Representative Scott Perry, the Government obtained warrants to seize
and search the cell phone of Representative Perry. See In re Sealed Case, 80 F.4th at 360. Because of United States
v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007), a case in which the D.C. Circuit held that the Speech
or Debate Clause required the government to allow a Member of Congress to review and assert claims of privilege
over materials seized from his office before it could access and review the materials, the Government gave
111
B. Threats and Harassment of Witnesses
A significant challenge that the Office faced after Mr. Trump's indictment was his ability
and willingness to use his influence and following on social media to target witnesses, courts,
and Department employees, which required the Office to engage in time-consuming litigation to
protect witnesses from threats and harassment.
Mr. Trump's resort to intimidation and harassment during the investigation was not new,
as demonstrated by his actions during the charged conspiracies. A fundamental component of
Mr. Trump's conduct underlying the charges in the Election Case was his pattern of using social
media-at the time, Twitter-to publicly attack and seek to influence state and federal officials,
judges, and election workers who refused to support false claims that the election had been stolen
or who otherwise resisted complicity in Mr. Trump's scheme. After Mr. Trump publicly assailed
these individuals, threats and harassment from his followers inevitably followed. See ECF No.
57 at 3 (one witness identifying Mr. Trump's Tweets about him as the cause of specific and
graphic threats about his family, and a public official providing testimony that after Mr. Trump's
Tweets, he required additional police protection). In the context o_f the attack on the Capitol on
January 6, Mr. Trump acknowledged that his supporters "listen to [him] like no one else." 260
Representative Perry a copy of the contents of his phone so that he had an opportunity to claim the Speech or Debate
privilege over the materials before the Government accessed them. Id. After Representative Perry did so, and after
litigation in both the district court and the D.C. Circuit, see generally id.; see also In re Sealed Case, No. 23-3001,
Doc. 2031508 (D.C. Cir. Dec. 14, 2023), and In re Scott Peny Cell Phone Search Warrant, No. 22-sc-2144,
Memorandum Opinion at 1 (D.D.C. Dec. 19, 2023), https://www.dcd.uscourts.gov/sites/dcd/files/22-sc-2 l44%20-
%200pinion.pdf (https://perma.cc/5PPD-JH68], the Government obtained records-including encrypted messages
between Representative Perry and Co-Conspirator 4-that it intended to use at trial prior to the Supreme Court's
decision on presidential immunity. See, e.g., SCO-12946533 (Signal messages between Co-Conspirator 4 and Perry
01/02/2021). Irrespective of that decision, the records would have been admissible in a trial of Mr. Trump's coconspirators.
260 SCO-04958191 at 7 (CNN Town Hall Tr. 05/10/2023); SCO-04976309 at 13:28-14:35 (CNN Town Hall Video
05/10/2023).
112
The same pattern transpired after Mr. Trump's indictment in the Election Case. As the
D.C. Circuit later found, Mr. Trump "repeatedly attacked those involved in th[e] case through
threatening public statements, as well as messaging daggered at likely witnesses and their
testimony," Trump, 88 F.4th at 1010. Those attacks had "real-time, real-world consequences,"
exposing "those on the receiving end" to "a torrent of threats and intimidation" and turning their
lives "upside down." Id at 1011-1012. The day after his arraignment, for example, Mr. Trump
posted on the social media application Truth Social, "IF YOU GO AFTER ME, I'M COMING
AFTER YOU!" Id. at 998. The next day, "one of his supporters called the district court judge's
chambers and said: 'Hey you stupid slave n[****]r[.] ***If Trump doesn't get elected in 2024,
we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally,
publicly, your family, all of it."' Id. 261 Mr. Trump also "took aim at potential witnesses named
in the indictment," id. at 998-999, and "lashed out at government officials closely involved in the
criminal proceeding," as well as members oftheir families, id. at 1010-1011.
To protect the integrity of the proceedings, on September 5, 2023, the Office filed a
motion seeking an order pursuant to the district court's rules restricting certain out-of-court
statements by either party. See ECF No. 57; D.D.C. LCrR 57.7(c). The district court heard
argument and granted the Office's motion, finding that Mr. Trump's public attacks "pose a
significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly
influenced by the prospect of being themselves targeted for harassment or threats; and (2)
attorneys, public servants, and other court staff will themselves become targets for threats and
harassment." ECF No. 105 at 2. Because no "alternative means" could adequately address these
261 See also United States v. Shry, 23-cr-413 (S.D. Tex.) (threats made against the district court judge presiding over
the Election Case).
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"grave threats to the integrity of these proceedings," the court prohibited the parties and their
counsel from making public statements that "target (1) the Special Counsel prosecuting this case
or his staff; (2) defense counsel or their staff; (3) any of this court's staff or other supporting
personnel; or (4) any reasonably foreseeable witness or the substance of their testimony." Id
at 3. The court emphasized, however, that Mr. Trump remained free to make "statements
criticizing the government generally, including the current administration or the Department of
Justice; statements asserting that [he] is innocent of the charges against him, or that his
prosecution is politically motivated; or statements criticizing the campaign platforms or policies
of[his] current political rivals." Id. at 3.
Mr. Trump appealed, and the D.C. Circuit affirmed in large part, finding that Mr. Trump's
attacks on witnesses in this case posed "a significant and imminent threat to individuals'
willingness to participate fully and candidly in the process, to the content of their testimony and
evidence, and to the trial's essential truth-finding function," with "the undertow generated by
such statements" likely to "influence other witnesses" and deter those "not yet publicly
identified" out of "fear that, if they come forward, they may well be the next target." Trump, 88
F.4th at 1012-1013. Likewise, "certain speech about counsel and staff working on the case poses
a significant and imminent risk of impeding the adjudication of th[e] case," since "[ m ]essages
designed to generate alarm and dread; and to trigger extraordinary safety precautions, will
necessarily hinder the trial process and slow the administration ofjustice." Id at 1014.
The court of appeals explained that the district court's order "involve[ d] the confluence of
two paramount constitutional interests: the freedom of speech guaranteed by the First
Amendment and the federal courts' vital Article III duty to ensure the fair and orderly
administration of justice in criminal cases." Id at 996. Balancing these interests, the court
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explained, required consideration of three related questions: "(l) whether the Order is justified
by a sufficiently serious risk of prejudice to an ongoing judicial proceeding; (2) whether less
restrictive alternatives would adequately address that risk; and (3) whether the Order is narrowly
tailored, including whether the Order effectively addresses the potential prejudice." Id. at 1007.
Because "the record amply support[ed]" the district court's finding that, "'when [Mr. Trump] has
publicly attacked individuals including on matters related to this case, those individuals are
consequently threatened and harassed,"' id at 1012 (quoting ECF No. 105 at 2), and because
"[ n ]o less-speech-restrictive alternative could viably protect against the imminent threat to the
participation of witnesses, trial participants, and staff in this criminal matter, or the full, fair, and
unobstructed receipt of relevant evidence," id. at 1017, the court affirmed the decision to
"impose[] some limitation on trial participants' speech," id at 1016. Indeed, "[g]iven the record
in this case, the [ district] court had a duty to act proactively to prevent the creation of an
atmosphere of fear or intimidation aimed at preventing trial participants and staff from
performing their functions within the trial process." Id at 1014. The court of appeals therefore
affirmed the district court's order to the extent that it prohibited parties and their counsel from
making "public statements about known or reasonably foreseeable witnesses concerning their
potential participation in the investigation or in this criminal proceeding," or "public statements
about-(1) counsel in the case other than the Special Counsel, (2) members of the court's staff
and counsel's staffs, or (3) the family members of any counsel or staff member-if those
statements are made with the intent to materially interfere with, or to cause others to materially
interfere with, counsel's or staff's work in this criminal case, or with the knowledge that such
interference is highly likely to result." Id. at 1027-1028. To ensure that going forward the order
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was as narrowly tailored as possible, the court vacated the district court order "to the extent it
cover[ed] speech beyond those specified categories." Id. at 1028.
C. Mr. Trump's Claims of Executive Privilege
A time-consuming investigative challenge that the Office faced was Mr. Trump's broad
invocation of executive privilege to try to prevent witnesses from providing evidence on a wide
variety of topics. Mr. Trump asserted a form of executive privilege known as the presidentialcommunications
privilege-a special privilege belonging to Presidents that the Supreme Court
has found derives from the Constitution's design of the Executive Branch and separation of
powers, see Nixon v. GSA, 433 U.S. 425, 446-447 (1977) (GSA); Nixon, 418 U.S. at 708-with
respect to fourteen Executive Branch officials. Mr. Trump's repeated assertion of the
presidential-communications privilege as a basis to withhold evidence required extensive preindictment
litigation that delayed the Office's receipt of important testimony and other evidence,
including testimony from senior White House staff and Executive Branch officials about topics
such as Mr. Trump's knowledge that he had lost the election and the pressure campaign Mr.
Trump waged against the Vice President to convince him to reject legitimate elector slates at the
January 6 certification proceeding.
The courts uniformly rejected Mr. Trump's privilege assertions seeking to deny the grand
jury from hearing evidence from Executive Branch employees, see Media Access ECF No. 32-2
(No. 22-gj-25, Memorandum Opinion, Sept. 28, 2022); 262 Media Access ECF No. 32-6
(Memorandum Opinion, Nov. 19, 2022); Media Access ECF No. 32-11 (No. 22-gj-39,
Memorandum Opinion, Dec. 9, 2022); Media Access ECF No. 32-15 (No. 23-gj-12,
262 "Media Access ECF" refers to previously sealed documents that were made public in redacted fonn in In re
Application ofthe New York Times, 22-mc- I 00 (D.D.C.), litigation brought by the media for access to materials from
the executive-privilege litigation.
116
Memorandum Opinion, Mar. 15, 2023); Media Access ECF No. 32-17 (No. 23-gj-13,
Memorandum Opinion, Mar. 25, 2023), finding that the evidence was "directly relevant,
important, and essential" to the Office's investigation, as well as unavailable elsewhere, e.g.,
Media Access ECF No. 32-15 at 33, 45. In each instance, the courts determined that the
"importance and unavailability" of that "vital" evidence "outweigh[ ed]" the qualified privilege
for presidential communications and ordered that it be produced promptly to the grand jury.
Media Access ECF No. 32-2 at 30. And when Mr. Trump tried to delay the investigation even
further by seeking to stay orders denying his executive privilege claims pending appeal, district
and appellate courts rejected all of them. In so doing, one court held that Mr. Trump was
engaging in an "obvious" effort to delay the investigation and impede the grand jury from
carrying out its constitutional responsibilities, Media Access ECF No. 32-4 at 6-8 (No. 22-gj-25,
Memorandum Opinion, Oct. 6, 2022), and separately observed that staying proceedings risked
indefinite delay, see Media Access ECF No. 32-8 at 9 (No. 22-gj-33, Memorandum Opinion,
Dec. 18, 2022) ("The Court thus declines to further pause the grand jury's constitutionally
protected work, particularly in the absence of any reassurance that the former president's delay
tactics will cease."). Another court concluded that Mr. Trump's claim that the impact of delay on
the investigation would be "nominal" was a "vast understatement," noting instead that it "would
be ... serious and deleterious" and would "harm[] the public interest." Media Access ECF No.
32-16 at 34 (No. 23-gj-12, Hearing Transcript, Apr. 3, 2023).
The presidential-communications privilege covers evidence "that reflect[s] presidential
decisionmaking and deliberations and that the President believes should remain confidential." In
re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). The law on the presidentialcommunications
privilege derives from the Supreme Court's decision in Nixon. There, the Court
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recognized a "presumptive privilege for Presidential communications," which it described as
"fundamental to the operation of Government and inextricably rooted in the separation of powers
under the Constitution." 418 U.S. at 708. But the Court held that the privilege is qualified, not
absolute, id. at 706-707, emphasizing "our historic commitment to the rule of law," which is
"nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is
that guilt shall not escape or innocence suffer," id. at 708-709 ( citation, quotations, and
alterations omitted). Specifically, the Court "weigh[ ed] the importance of the general privilege
of confidentiality of Presidential communications in performance of the President's
responsibilities against the inroads of such a privilege on the fair administration of criminal
justice," id. at 711-712, and it concluded that "[t]he generalized assertion of privilege must yield
to the demonstrated, specific need for evidence in a pending criminal trial," id. at 713. The D.C.
Circuit has applied the same general standard to grand jury subpoenas. See In re Sealed Case,
121 F.3d at 756.
Most of the executive privilege litigation in this case took place in five sealed
proceedings between August 2022 and March 2023 concerning the testimony of fourteen
witnesses in total. See Media Access ECF No. 32 (notice attaching district court orders and
memorandum opinions). In August 2022, before the Special Counsel was appointed, the
Government began to seek evidence from two former Executive Branch employees of Mr.
Trump's, including by issuing subpoenas for testimony before the grand jury. See Media Access
ECF No. 32-2. Although the Government believed it unlikely that the information that it sought
from these witnesses was subject to the presidential-communications privilege because it did not
concern presidential decision-making, in an abundance of caution given the unprecedented
118
circumstance of investigating the former President, the Government made certain notifications to
determine whether executive privilege would be a contested issue.
Specifically, with the district court's permission, the Government notified Mr. Trump and
the incumbent President about the subpoenas to ascertain whether either would assert executive
privilege and identified certain potential topics of investigative inquiry. 263 The Government
chose to notify both the sitting and former Presidents even though it was unsettled under GSA
whether a former President's view about potential harm to Executive Branch confidentiality
interests could supersede the sitting President's. See GSA, 433 U.S. at 449. The incumbent
President responded through the White House Counsel's Office that he did not intend to assert
executive privilege. 264 Mr. Trump instructed the two witnesses that they should not provide
testimony about any privileged communications, and he specifically identified the presidentialcommunications
privilege. See Media Access ECF No. 32-2 at 9-10. 265
After the witnesses withheld testimony pursuant to Mr. Trump's instruction, the
Government filed a motion to compel with the Chief Judge of the United States District Court for
the District of Columbia. Given that the investigation focused largely on Mr. Trump's activities
as a candidate seeking office, not his official activities as President, the Government believed
that it was likely that many if not all the communications at issue were not subject to the
presidential-communications privilege because they were not made in the process of arriving at
263 See, e.g., SCO-11533730 (Letter to Trump Attorney) (identifying topics covering, among other things, potential
fraud or irregularities regarding the 2020 presidential election, the January 6 rally at the Ellipse, the congressional
certification on January 6, and co-conspirators).
264 See SCO-00007123 at 2 (Letter from the White House Counsel's Office to U.S. Attorney for the District of
Columbia 06/27/2022). Throughout its existence, the Office conducted its work in full compliance with the
Department's Policy on Communications with the White House. See, e.g., Memorandum from Merrick Garland,
Attorney General, Department ofJustice Communications with the White House (July 21, 2021 ).
265 See SCO-12921102, SCO-11545866 at 2 (Letters from Trump Attorney to Witness Counsel).
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presidential decisions. See Media Access ECF No. 32-2 at 17. As the Supreme Court has
explained, the presidential-communications privilege "is limited to communications in
performance of a President's responsibilities of his office and made in the process of shaping
policies and making decisions." GSA, 433 U.S. at 449 (citation, quotations, and alterations
omitted). But the Government's position was that the district court did not have to decide
whether the communications at issue were subject to the privilege and instead could assume that
the communications were privileged and find that the Government had overcome any privilege
that would apply to presidential communications because it had made the showing of need for
the evidence required under N;xon. Under D.C. Circuit precedent, to make the required showing
of need, the Government had to establish that the testimony withheld by the witnesses likely
contained important evidence that was not available to the grand jury with due diligence
elsewhere. In re Sealed Case, 121 F.3d at 754.
After briefing and argument, the district court granted the Government's motion to
compel. See Media Access ECF No. 32-1 (Order, Sept. 28, 2022). The court found that the
witnesses possessed "unique and inimitable evidence," Media Access ECF No. 32-2 at 28-29,
that was "important and relevant to the grand jury's investigation," Media Access ECF No. 32-1
at 2. The court concluded that the witnesses possessed "vital evidence for the grand jury, the
importance and unavailability of which outweigh the presidential-communications privilege in
this case." Id. at 30. The district court subsequently denied a motion by Mr. Trump for a stay
pending appeal. Media Access ECF No. 32-4 at 6-8 (No. 22-gj-25, Memorandum Opinion, Oct.
6, 2022); see Media Access ECF No. 32-3 (No. 22-gj-25, Order, Oct. 6, 2022). The court of
appeals also denied a stay pending appeal and later dismissed the appeal as moot. See Docket, In
re Sealed Case, No. 22-3073 (D.C. Cir. 2023).
120
In the following months, the Government filed two more motions to compel testimony
from three additional witnesses. See Media Access No. 32-6 (No. 22-gj-33, Memorandum
Opinion, Nov. 19, 2022); Media Access No. 32-11 (No. 22-gj-39, Memorandum Opinion, Dec. 9,
2022). The district court granted the motions, making findings with respect to each witness that
the Government had made a showing of need to overcome the qualified privilege for presidential
communications. See Media Access ECF Nos. 32-5, 32-6 (No. 22-gj-33, Order and
Memorandum Opinion, Nov. 19, 2022); Media Access ECF Nos. 32-10, 32-11 (No. 22-gj-39,
Order and Memorandum Opinion, Dec. 9, 2022). The district court also denied stays pending
appeals. See Media Access ECF Nos. 32-7, 32-8 (No. 22-gj-33, Order and Memorandum
Opinion, Dec. 18, 2022); Media Access ECF Nos. 32-12, 32-13 (No. 22-gj-29, Order and
Memorandum Opinion, Jan. 10, 2023).
After the appointment of the Special Counsel, it became clear-given the scope of the
grand jury's investigation and the need to obtain evidence from a number of former Executive
Branch officials-that seeking to compel testimony from one or two witnesses at a time would
be inefficient and would unduly delay the investigation. The Office therefore decided to
consolidate the proceedings to the extent possible and filed two additional motions to compel
that covered the remaining eight Executive Branch officials who had communicated through
their attorneys that they would withhold testimony from the grand jury based on executive
privilege. The district court granted the motions, making findings with respect to each individual
witness that, as noted above, they "possess[ ed] vital evidence for the grand jury, the importance
and unavailability of which outweigh[ed] the presidential communications privilege." Media
Access ECF No. 32-15 at 45; Media Access ECF No. 32-17 (No. 23-gj-13, Memorandum
Opinion, Mar. 25, 2023). The district court also denied stays pending appeals. See Media
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Access ECF No. 32-16; Media Access ECF No. 32-18 (23-gj-13, Transcript of Hearing, Apr. 10,
2023). Subsequently, the court of appeals denied stays pending appeals in both cases, dismissed
one of the appeals as moot, and granted Mr. Trump's motion to voluntarily dismiss the other
appeal. See Docket, In re Sealed Case, No. 23-3043 (D.C. Cir. 2023); Docket, In re Sealed Case,
No. 23-3049 (D.C. Cir. 2023).
D. Presidential Immunity
Before this case, no court had ever found that Presidents are immune from criminal
responsibility for their official acts, and no text in the Constitution explicitly confers such
criminal immunity on the President. As set forth below, prior criminal investigations by the
Department of Justice, whether conducted through special prosecutors, independent counsels, or
special counsels, had examined whether Presidents had violated federal criminal law through use
of their official powers, and none of those investigations had regarded former Presidents as
immune from criminal liability for their official acts. The Office proceeded from the same
premise.
Soon after the original indictment issued in the Election Case, Mr. Trump raised a claim
of immunity in a motion to dismiss the indictment. The district court denied the immunity
motion, and the court of appeals affirmed. The Supreme Court, however, vacated the court of
appeals' judgment based on its conclusion that Presidents have absolute immunity for core
official conduct that Congress lacks power to regulate; at least presumptive immunity for other
official presidential acts; and no immunity for unofficial conduct. The Court then applied that
test to hold that certain conduct alleged in the indictment was immune, while remanding for
application of its legal framework to the remaining allegations. Trump, 603 U.S. at 593. The
Office responded by obtaining a superseding indictment to comply with the Court's decision and
122
by seeking district court rulings that the charged conduct and expected evidence at trial was not
shielded by immunity.
This section summarizes the chronology of the immunity litigation and key findings of
the courts throughout. Because the immunity litigation unfolded on the public record, this
discussion provides an overview; the Office's briefs and judicial decisions contain more detailed
analysis.
1. Prosecutorial Decisions During the Charging Stage
This Office conducted its investigation against the background of the Department's prior
legal determinations with respect to the potential criminal liability of a former President for
official acts. The longstanding view of the Department was that the Constitution's separation of
powers precludes prosecution of a sitting President for official or unofficial acts. See
Memorandum from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, A
Sitting Presidents Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222 (Oct.
16, 2000) (2000 OLC Opinion); Memorandum from Robert G. Dixon, Jr., Assistant Attorney
General, Office of Legal Counsel, Amenability of the President, Vice President and other Civil
Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973) (1973 OLC Opinion).
But that same legal conclusion recognizes that former Presidents could be held criminally liable
for conduct undertaken while in office. 2000 OLC Opinion at 255 & n.32, 257. The
Department's constitutional analysis of the "temporary" immunity of a sitting President, id,
drew no distinction between official acts and unofficial conduct.
Consistent with that analysis, former Department of Justice prosecutors had historically
investigated presidential conduct based on the understanding that no criminal immunity would
bar prosecution if the President had used his official powers to violate federal criminal law.
Significantly, no President whose conduct was investigated ( other than Mr. Trump) ever claimed
123
absolute criminal immunity for all official acts. During the Watergate investigation, for example,
prosecutors examined whether President Nixon was liable for the obstruction-of-justice
conspiracy charged against the Watergate conspirators. Although President Nixon was not
indicted, the grand jury named him as a co-conspirator, United States v. Nixon, 418 U.S. 683,687
(197 4 ), and in the Supreme Court, President Nixon acknowledged his exposure to prosecution
after leaving office, see United States v. Nixon, Nos. 73-1766, 73-1834, 1974 WL 174855, Resp.
Brief at *98 (U.S. June 21, 1974) ("While out of necessity an incumbent President must not be
subject to indictment in order for our constitutional system to operate, he is not removed from
the sanction of the law. He can be indicted after he leaves office at the end of his term or after
being 'convicted' by the Senate in an impeachment proceeding."). Similarly, President Ford's
pardon of President Nixon rested on both Presidents' understanding that President Nixon was
exposed to criminal liability. See Trump v. United States, No. 23-939, 2024 WL 1592669, Brief
for the United States at 15-16 (U.S. Apr. 8, 2024) (Gov't Sup. Ct. Brief) (collecting sources).
Later, Independent Counsel Lawrence Walsh and Special Counsel Robert S. Mueller III
conducted investigations into presidential conduct. I Lawrence E. Walsh, Final Report Of The
Independent Counsel For Iran/Contra Matters: Investigations and Prosecutions, ch. 27 (Aug.
1993); 2 Robert S. Mueller III, Special Counsel, Report On The Investigation Into Russian
Interference In The 2016 Presidential Election (Mar. 2019) (Mueller Report). Neither
investigation reflected the view that presidents, after leaving office, were immune from
prosecution for their official acts. See Mueller Report at 168-181 ( analyzing constitutional
separation-of-powers issues and statutory clear-statement issues before concluding that the
President was not categorically exempt from criminal law for his official acts); see also Gov't
Sup. Ct. Brief at 17 ( quoting Walsh Report: "a past President" can be "subject to prosecution in
124
appropriate cases"). And counsel for former President Trump stated at his second Senate
impeachment trial that declining to convict him on the article of impeachment alleging conduct
related to January 6 would not place him in "any way above the law" because a former President
"is like any other citizen and can be tried in a court of law." 2 Proceedings of the U.S. Senate in
the Impeachment Trial of Donald John Trump, S. Doc. No.117-2, at 144 (2021 ); 167 CONG. REC.
S667, S693 (daily ed. Feb. 12, 2021) ("[T]he text of the Constitution ... makes very clear that a
former President is subject to criminal sanction after his Presidency for any illegal acts he
commits."). This Office made its investigative and prosecutorial decisions based on the same
understanding.
The conduct at issue in the Election Case involved both unofficial and official conduct.
Much of the former President's alleged conduct involved actions in his private capacity as a
defeated candidate for reelection seeking to overturn the result-e.g., his coordinated conduct
with his personal attorneys, campaign staff, and other private advisors. Such private conduct
does not implicate constitutional functions of the presidency. Other alleged conduct, however,
did involve the former President's misuse of official authority-including using the power of the
presidency directly by exercising his authority over agencies and personnel in the Executive
Branch. In determining to bring charges in the Election Case, the Office therefore examined the
former President's amenability to prosecution for that conduct through the lens of two doctrines:
the separation of powers under the Constitution and clear-statement principles that limit the
application of criminal statutes to presidential conduct in certain circumstances. The Office
125
concluded that neither the separation of powers nor clear-statement principles barred prosecution
for the limited instances of official conduct at issue. 266
That determination was consistent with similar conclusions reached by Special Counsel
Mueller after detailed constitutional and statutory analysis; his report concluded that "Congress
can validly regulate the President's exercise of official duties to prohibit actions motivated by a
corrupt purpose" and that clear-statement principles of statutory interpretation did not apply to
preclude application of criminal obstruction statutes to corrupt presidential conduct. Mueller
Report at 168-181. Based on the same principles and legal frameworks, the Office's analysis
determined that the potential charges-conspiracy to defraud the United States, conspiracy and
substantive obstruction-of-justice offenses, and conspiracy to deprive citizens of voting rightswould
not entail application of the statutes in a manner that burdened presidential prerogatives,
and thus that the application of criminal law triggered neither clear-statement principles nor
separation-of-powers concerns.
2. Immunity Litigation
On October 5, 2023, Mr. Trump filed a motion to dismiss the indictment based upon a
sweeping claim of presidential immunity for all official conduct during his presidency. ECF No.
74. After briefing, on December 1, 2023, the district court rejected Mr. Trump's claim of
immunity, concluding that "[t ]he Constitution's text, structure, and history" do not support the
contention that the President is absolutely immune from prosecution for criminal acts performed
within his official responsibilities and that "[n]o court-or any other branch of government-has
ever accepted" such a contention. United States v. Trump, 704 F. Supp. 3d 196, 206 (D.D.C.
266 The Office addressed separation of powers and clear-statement principles in the district court, see ECF No. I09 at
32-34, and the Supreme Court, see Trump, No. 23-939, Brief for the United States at 26-31. Neither the district
court nor the majority opinion in the Supreme Cou1t addressed the application of clear-statement principles to the
charges in the case.
126
2024). The court held that a former President "may be subject to federal investigation,
indictment, prosecution, conviction and punishment for any criminal acts undertaken while in
office," id., that "[e ]xempting former Presidents from the ordinary operation of the criminal
justice system" would "undermine the foundation of the rule of law," id. at 217, and that Mr.
Trump's "four-year service as Commander in Chief did not bestow on him the divine right of
kings to evade the criminal responsibility that governs his fellow citizens," id. at 219.
The district court reasoned that the prospect of federal criminal liability for a former
President did not impair the Executive's ability to perform its constitutionally mandated
functions, "either by imposing unacceptable risks of vexatious litigation or otherwise chilling the
Executive's decision-making process," and that "it is likely that a President who knows that their
actions may one day be held to criminal account will be motivated to take greater care that the
laws are faithfully executed." Id. at 210. With respect to the possible chilling effect that
criminal liability might have on a President, the court concluded that "the possibility of future
criminal liability might encourage the kind of sober reflection that would reinforce rather than
defeat important constitutional values. If the specter of subsequent prosecution encourages a
sitting President to reconsider before deciding to act with criminal intent, that is a benefit, not a
defect." Id. at 213.
Mr. Trump appealed the district court's ruling. The D.C. Circuit heard oral argument on
January 9, 2024. In a telling exchange, counsel for Mr. Trump acknowledged that, under his
theory of immunity, a President could not be criminally prosecuted for ordering SEAL Team Six
to assassinate a political rival unless Congress had first impeached and convicted that President
for the same conduct. See Sup. Ct. J.A. 131-132. Less than a month after argument, the court of
appeals affirmed the district court's decision, stating, "We cannot accept that the office of the
127
Presidency places its former occupants above the law for all time thereafter." Trump, 91 F.4th at
1200. In a unanimous opinion, the court stated that "our analysis is 'guided by the Constitution,
federal statutes and history,' as well as 'concerns of public policy."' Id. at 1189 (quoting Nixon v.
Fitzgerald, 457 U.S. 731, 747 (1982) (Fitzgerald)). "Relying on these sources," the court
rejected each of Mr. Trump's "potential bases for immunity both as a categorical defense to
federal criminal prosecutions of former Presidents and as applied to this case in particular." Id.
With respect to the case before it, the court stated that "former President Trump's alleged efforts
to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on
the structure of our government." Id. at 1199. As such, it "would be a striking paradox if the
President, who alone is vested with the constitutional duty to 'take Care that the Laws be
faithfully executed,' were the sole officer capable of defying those laws with impunity." Id. at
1198 (quoting U.S. CONST. art II,§ 3, cl. 1).
Like the district court, the court of appeals found that "the risk of criminal liability
chilling Presidential action appears to be low" and that "[i]nstead of inhibiting the President's
lawful discretionary action, the prospect of federal criminal liability might serve as a structural
benefit to deter possible abuses of power and criminal behavior." Id. at 1196 ( citing with
approval the district court's observation that "[ e ]very President will face difficult decisions;
whether to intentionally commit a federal crime should not be one of them"). Based on the
safeguards in place to prevent baseless indictments applicable to all citizens, the court similarly
found that "the risk that former Presidents will be unduly harassed by meritless criminal
prosecutions appears slight." Id. at 1197.
More broadly, the court of appeals' evaluation of our system of separated powers led it to
conclude "that there is no functional justification for immunizing fo1mer Presidents from federal
128
prosecution in general or for immunizing former President Trump from the specific charges in
the Indictment." Id. at 1200. Because it concluded that Mr. Trump did not have immunity for
the crimes or conduct charged in the case, the court of appeals did not decide whether every
allegation in the indictment constituted an official act. However, the court noted that "because
the President has no official role in the certification of the Electoral College vote, much of the
misconduct alleged in the Indictment reasonably can be viewed as that of an office-seekerincluding
allegedly organizing alternative slates of electors and attempting to pressure the Vice
President and Members of the Congress to accept those electors in the certification proceeding."
Id. at 1205 n.14 ( emphasis in original). The court therefore found it "doubtful that all five types
of conduct alleged in the indictment constitute official acts." Id.
In a divided decision, the Supreme Court vacated the court of appeals' judgment and
remanded the case for further proceedings. Trump, 603 U.S. at 642. 267 The Supreme Court
weighed the competing constitutional considerations differently than the lower courts. While the
lower courts and the dissenting Justices placed greater emphasis on rule of law considerations,
the majority found that the need for Presidents to act "boldly and fearlessly" in executing their
duties of office was of paramount importance. Id. at 640.
267 Justice Sotomayor, who authored a dissenting opinion joined by Justices Kagan and Jackson, described the
majority opinion as follows:
The Court effectively creates a law-free zone around the President, upsetting the status quo that
has existed since the Founding. This new official-acts immunity now "lies about like a loaded
weapon" for any President that wishes to place his own interests, his own political survival, or his
own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U.S. 214,
246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful
person in the country, and possibly the world. When he uses his official powers in any way, under
the majority's reasoning, he now will be insulated from criminal prosecution. Orders the Navy's
Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto
power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
Trump, 603 U.S. at 684-685 (Sotomayor, J., dissenting).
129
The Court reasoned that there "'exists the greatest public interest' in providing the
President with 'the maximum ability to deal fearlessly and impartially with the duties of his
office,"' "free from undue pressures and distortions." Id. at 610, 615 ( citation and quotations
omitted). The Court found that "[ c ]riminally prosecuting a President for official conduct
undoubtedly poses a far greater threat of intrusion on the authority and functions of the
Executive Branch than simply seeking evidence in his possession" and that the threat of a
criminal prosecution was "plainly more likely to distort Presidential decisionmaking" than a civil
suit. Id. at 613. In responding to the dissenting Justices' concerns that the vast immunity that the
Court provided opened the door to lawless behavior by Presidents in violation of their duty to
faithfully execute the law, the Court assessed that a President who uses official power to violate
the law was a less likely "prospect" than "an Executive Branch that cannibalizes itself, with each
successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry
out his duties for fear that he may be next." Id. at 640.
The Court rejected the lower courts' view that established safeguards such as the
Department of Justice's "longstanding commitment to the impartial enforcement of law," a
neutral grand jury, the requirement in criminal law that the Government must prove its case
beyond a reasonable doubt, courts enforcing "existing principles of statutory construction and asapplied
constitutional challenges," and certain President-specific defenses like the "publicauthority
defense or the advice of the Attorney General," would adequately protect a former
President charged with criminal wrongdoing. Id. at 635-63 7. Instead, the Court placed greater
weight on the risk to the administration of government from excessive caution by a President
who might face criminal accountability for official acts, reasoning that "[ w ]ithout immunity,
such types of prosecutions of ex-Presidents," for example over claims of insufficient
130
enforcement of federal law, "could quickly become routine," thus "enfeebling" the presidency
through "such a cycle of factional strife." Id at 640.
In conducting its balancing, the majority placed greater weight than did the dissents or
the lower courts on the importance of protecting the independence and fearlessness of the
President as opposed to the risk that immunity would encourage lawless behavior. Contrast id.
at 614 ("Such an immunity is required to safeguard the independence and effective functioning
of the Executive Branch, and to enable the President to carry out his constitutional duties without
undue caution.") with 91 F.4th at 1198 ("The risks of chilling Presidential action or permitting
meritless, harassing prosecutions are unlikely, unsupported by history and 'too remote and
shadowy to shape the course ofjustice."' (citing Clark v. United States, 289 U.S. 1, 16 (1933)))
and 704 F. Supp 3d at 213 ("Consequently, to the extent that there are any cognizable 'chilling
effects' on Presidential decision-making from the prospect of criminal liability, they raise far
lesser concerns than those discussed in the civil context of Fitzgerald. Every President will face
difficult decisions; whether to intentionally commit a federal crime should not be one of them.").
Ultimately, the Supreme Cou1i ruled that for official powers entrusted exclusively to the
President, a President is entitled to absolute criminal immunity and that for other acts "within the
outer perimeter of his official responsibility" he is entitled to at least presumptive immunity. Id
at 613-614. Specifically, the 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. Id
at 606, 642. Applying those principles to the original indictment, the Supreme Court concluded
that Mr. Trump is "absolutely immune from prosecution for the alleged conduct involving his
131
discussions with Justice Department officials" and involving his "threatened removal of the
Acting Attorney General." Id. at 620-621. The Court also concluded that several conversations
between Mr. Trump and the Vice President constituted official conduct, but remanded for
consideration of whether the Office could rebut the presumption of immunity. Id. at 624-625.
As to several other allegations-involving interactions with state officials, private parties, and
the public-the Court remanded for the lower courts to determine whether the conduct was
undertaken in an official capacity or, alternatively, constituted a private scheme with private
actors, as the Office contended. Id. at 625-627.
The Court also added an evidentiary rule to its immunity framework: official conduct for
which the President is immune may not be used as evidence in a prosecution for non-immune
conduct. Id. at 630-632. The Court was concerned that "jurors' deliberations will be prejudiced
by their views of the President's policies and performance while in office." Id. at 631. Justice
Barrett joined the dissenters in disagreeing with that rule, noting, 'The Constitution does not
require blinding juries to the circumstances surrounding conduct for which Presidents can be
held liable." Id. at 655 (emphasis in original) (Barrett, J., concurring in part). Standard
evidentiary rules, she explained, "are equipped to handle that concern [about prejudice from
admitting evidence of a President's official acts] on a case-by case-basis." Id. at 656. "I see no
need," she wrote, "to depart from that familiar and time-tested procedure here." Id.
Unresolved Issues Regarding Presidential Immunity
The Supreme Court's decision raises several issues about the scope of presidential
immunity that the lower courts, and ultimately the Supreme Court, would likely have had to
address before the prosecution could have proceeded to trial. The following discussion
illustrates some of the issues that the Court's immunity decision left open and that remam
unresolved given the required dismissal of the superseding indictment.
132
First, while the Court determined that certain core exercises of presidential power are
absolutely immune and gave several examples, see 603 U.S. at 608-609 (pardon power; power to
remove presidential appointees; power to recognize foreign nations), 620-621 (supervision of
criminal investigations and prosecutions), it left undefined the full scope of that category.
Compare id. at 620 (relying in part on the President's responsibility to "take Care that the Laws
be faithfully executed" (U.S. CONST. art II, § 3) to find that his investigative and prosecutorial
decision-making, and threats to remove the Acting Attorney General, were absolutely immune)
with id. at 651 n. l (Barrett, J., concurring) ("I do not understand the Court to hold that all
exercises of the Take Care power fall within the core executive power"). The Office's position
was that none of the allegations in the superseding indictment implicated core presidential
powers.
Second, the Court's decision accorded at least presumptive immunity to all non-core
official presidential conduct. 603 U.S. at 614-615. That holding left unresolved whether, at
some future point, the Court will determine that absolute immunity is required for that category
of official acts as well. It also left unresolved the manner of applying its test for overcoming
presumptive immunity: i.e., that the government must "show 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 615 (quoting Fitzgerald, 457 U.S. at 754); cf 603 U.S. at 667 (Sotomayor, J.,
dissenting) ("According to the majority, however, any incursion on Executive power is too much.
When presumptive immunity is this conclusive, the majority's indecision as to 'whether [ officialacts]
immunity must be absolute' or whether, instead, 'presumptive immunity is sufficient,'
hardly matters.") ( citation omitted). In its one concrete discussion of that test, the Court
described competing arguments about communications between the President and the Vice
133
President about the certification proceeding, noting that the Vice President presides as President
of the Senate, not in any Executive Branch capacity, and that the President has "no direct
constitutional or statutory role" in the certification proceeding. See id. at 622-625. But the Court
stopped short of deciding whether any Executive Branch functions were in danger of potential
intrusion in that setting and, if so, the nature of such functions. It also did not address whether de
minimis intrusions would preclude rebutting the presumption, and how courts should make
predictive judgments about potential intrusions (for example, by looking to history, speculating
about future presidential behavior, or relying solely on legal materials).
Following the remand to the district court, the Office argued that, with respect to the
presumptive immunity test, "[t]he 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."' ECF No. 252 at 87 ( quoting Banneker Ventures, LLC v. Graham, 798 F.3d 1119,
1141 (D.C. Cir. 2015) (reversing district court in civil immunity case)). The Office's brief
emphasized that this 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." Id. at 87-88. With regard to the communications
between the President and the Vice President, the Office submitted that "[b ]ecause 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." Id. at 89-90.
134
Third, in discussing the process of separating official from unofficial conduct, the Court
wrote that the analysis is "fact specific and may prove to be challenging." 603 U.S. at 629. The
Court's discussion of a President's public communications illustrates those challenges. The
Court directed that the status of a President's public communications should be assessed through
an "objective analysis of 'content, form, and context."' Id. (quoting Snyder v. Phelps, 562 U.S.
443, 453 (2011)). It also cautioned that "most of a President's public communications are likely
to fall comfortably within the outer perimeter of his official responsibilities" while stating that
there "may" be contexts in which a President "speaks in an unofficial capacity-perhaps as a
candidate for office or party leader." Id. The Court's analysis recognized that, in principle, there
is a line between a President's official and nonofficial communications, but the Court gave little
detail about when an incumbent President crosses the line between his official role and his
candidate role. Cf 603 U.S. at 667 (Sotomayor, J., dissenting) ("In fact, the majority's dividing
line between 'official' and 'unofficial' conduct narrows the conduct considered 'unofficial'
almost to a nullity."). Upon remand, the Office argued that "[a]t its core, the defendant's scheme
was a private one," ECF No. 252 at 88, and that in proving the case the Office would rely on
"public Campaign speeches, Tweets, and other public statements and comments" that Mr. Trump
made "not as President but as a candidate for office." Id. at 115.
Finally, as noted, the Court's decision that presidential immunity precludes the
introduction of evidence of immune official acts even in a prosecution for unofficial conduct left
open substantive and procedural questions. 603 U.S. at 630-632. In responding to Justice
Barrett's disagreement with the Court's evidentiary holding, in which she highlighted her
concern about excluding official act evidence in, for example, a bribery prosecution, id. at 655-
656 (Barrett, J., concurring in part), the Court wrote in a footnote that in a bribery prosecution,
135
"of course the prosecutor may point to the public record to show the fact that the President
performed the official act." Id. at 632 n.3 (majority opinion). "What the prosecutor may not do,
however, is admit testimony or private records of the President or his advisors probing the
official act itself." Id. Those statements create uncertainty regarding which types of evidence of
official acts can be used and which cannot. A further procedural issue involved the scope of any
interlocutory appeal from the district court's rulings on immunity. The Supreme Court had
emphasized that immunity issues should be "addressed at the outset of a proceeding," 603 U.S. at
636, and presupposed that "a district court's denial of immunity would be appealable before
trial," id. at 635. While the parties and the district court agreed that whether the superseding
indictment states an offense based on non-immune conduct would be subject to a pretrial
interlocutory appeal, the evidentiary component of the Court's immunity ruling left open the
question of whether evidentiary determinations regarding potentially immune evidence could be
appealed before trial. Further proceedings on remand likely would have provided guidance on
this and the other issues described above.
VI. CONCLUSION
On remand from the Supreme Comi's decision in Trump, the district court set a litigation
schedule whereby the parties would submit briefs regarding whether any material in the
superseding indictment was subject to presidential immunity. ECF No. 233. The parties were in
the middle of that process when the results of the presidential election made clear that Mr. Trump
would be inaugurated as President of the United States on January 20, 2025. As described
above, it has long been the Department's interpretation that the Constitution forbids the federal
indictment and prosecution of a sitting President, but the election results raised for the first time
the question of the lawful course when a private citizen who has already been indicted is then
elected President. The Department detem1ined that the case must be dismissed without prejudice
136
before Mr. Trump takes office, and the Office therefore moved to dismiss the indictment on
November 25, 2024. See ECF No. 281. The district court granted the motion the same day.
ECF No. 283.
The Department's view that the Constitution prohibits the continued indictment and
prosecution of a President is categorical and does not tum on the gravity of the crimes charged,
the strength of the Government's proof, or the merits of the prosecution, which the Office stands
fully behind. Indeed, but for Mr. Trump's election and imminent return to the Presidency, the
Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at
trial.
137
APPENDIX: KEY FILINGS IN SIGNIFICANT LITIGATION
DISTRICT COURT CRIMINAL LITIGATION
ECFNo. Date
1 8/1/2023
10 8/4/2023
12 8/5/2023
15 8/7/2023
16
8/3/2023
23 8/10/2023
26 8/10/2023
28 8/11/2023
29
8/11/2023
32 8/21/2023
38
8/28/2023
39
8/28/2023
54 9/14/2023
57
61
64
65
66
82 10/6/2023
97
United States v. Donald J. Trump, Case No. 23-cr-257 (D.D.C.)
Document Descri:gtion
Indictment
9/15/2023
9/2712023
9/29/2023
10/2/2023
10/2/2023
10/10/2023
Government's Motion for Protective Order
Government's Opposition to Defendant's Motion for Extension of
Time
Government's Reply in Support of Motion for Protective Order
Transcript of Initial Appearance (issued 8/8/2023)
Government's Response to Court's August 3, 2023 Minute Order
(Proposed Trial Date)
Government's Response in Opposition to Defendant's Motion for
Exclusion of Time Under Speedy Trial Act
Court Protective Order Governing Discovery and Authorizing
Disclosure of Grand Jury Testimony
Transcript of Hearing on Protective Order
Government's Reply to Defendant's Response in Opposition to
Government's Proposed Trial Calendar
Transcript of Status Hearing
Court Pretrial Order
Government's Response in Opposition to Defendant's Motion for
Recusal of District Judge Pursuant to 28 U.S.C. Section 455(a)
Government's Opposed Motion to Ensure that Extrajudicial
Statements Do Not Prejudice These Proceedings
Court Memorandum Opinion & Order (Defendant's Motion for
Recusal of District Judge)
Government's Reply in Support of Opposed Motion to Ensure that
Extrajudicial Statements Do Not Prejudice These Proceedings
Government's Opposition to Defendant's Motion for Access to CIPA
Section 4 Filing and an Adjournment of the CIPA Section 5 Deadline
Government's Response in Opposition to Defendant's Motion for
Extension of Time to File Pretrial Motions
Court Opinion & Order (Defendant's Motion for Access to CIPA
Section 4 Filing and an Adjournment of the CIPA Section 5
Deadline)
Government's Opposed Motion for Fair and Protective Jury
Procedures
138
United States v. Donald J. Trump, Case No. 23-cr-257 (D.D.C.)
ECF No. Date Document DescriQtion
Government's Motion for Formal Pretrial Notice of the Defendant's
98 10/10/2023 Intent to Rely on Advice-of-Counsel Defense
Transcript of Hearing (Government's Motion on Extrajudicial
103 10/16/2023 Statements)
Court Opinion & Order (Government's Motion to Ensure that
105 10/17/2023 Extrajudicial Statements Do Not Prejudice These Proceedings)
Government's Opposition to Second Defense Motion for Access to
108 10/18/2023 CIPA Section 4 Filing
Government's Response in Opposition to Defendant's Motion to
109 10/19/2023 Dismiss on Presidential Immunity Grounds
Government's Reply in Support of Motion for Fair and Protective
117 10/25/2023 Jury Procedures
Government's Reply in Support of Motion for Formal Pretrial
118 10/25/2023 Notice of the Defendant's Intent to Rely on Advice-of-Counsel
Defense
Government's Opposition to Defendant's Motion for Pre-Trial Rule
119 10/25/2023 17(c) Subpoenas
Government's Response in Opposition to Defendant's Motion to
120 10/25/2023 Stay
124 126 10/29/2023 Court Opinion & Order (Denying Defendant's Motion to Stay)
11/1/2023 Court Opinion & Order (CIPA Section 4 Motions)
Court Order (Government's Motion for Fair and Protective Jury
130 11/2/2023 Procedures)
Government's Opposition to Defendant's Motion for Extension of
137 11/3/2023 Time to File Pretrial Motions Related to Discovery and Subpoenas
Government's Omnibus Opposition to Defendant's Motions to
139 11/6/2023 Dismiss the Indictment on Statutory and Constitutional Grounds
Government's Opposition to Defendant's Motion to Strike
140 11/6/2023 Inflammatory Allegations from the Indictment
Government's Opposition to Defendant's Motion to Dismiss for
141 11/6/2023 Selective and Vindictive Prosecution
Government's Opposition to Defendant's Motion to Stay Case
142 11/6/2023 Pending Resolution of Motion to Dismiss Based on Presidential
Immunity
Court Opinion & Order (Defendant's Motion for Extension of Time
146 11/7/2023
to File Pretrial Motions Related to Discovery and Subpoenas)
Court Opinion & Order (Government's Motion for Formal Pretrial
147 11/8/2023 Notice ofAdvice of Counsel Defense)
139
United States v. Donald J. Trump, Case No. 23-cr-257 (D.D.C.)
ECFNo. Date Document DescriQtion
Government's Opposition to Defendant's Motion for Extension of
151 11/13/2023 Time to File Reply Briefs
Court Order (Defendant's Motion for Extension of Time to File
152 11/13/2023 Reply Briefs)
158 11/17/2023 Court Opinion & Order (Defendant's Motion to Strike)
Court Opinion & Order (Defendant's Motion for Pretrial Rule 17(c)
165 11/27/2023 Subpoenas)
Court Memorandum Opinion & Order (Defendant's Motions to
171,172 12/1/2023 Dismiss Based on Presidential Immunity and Constitutional
Grounds)
176 12/5/2023 Government's Notice Pursuant to Federal Rule of Evidence 404(b)
181 12/9/2023 Government's Opposition to Defendant's Discovery Motions
Government's Opposition to Defendant's Motion to Stay
182 12/10/2023 Proceedings Pending Appeal
183 12/11/2023 Government's Summary ofAnticipated Expert Testimony
Court Opinion & Order (Defendant's Motion to Stay Proceedings
186 12/13/2023 Pending Appeal)
188 12/18/2023 Government's Notice of Service (Government's Draft Exhibit List)
191 12/27/2023 Government's Motion in Limine
Government's Opposition to Defendant's Motion for Order to Show
193 1/5/2024 Cause
195 1/18/2024 Court Opinion & Order (Defendant's Motion to Show Cause)
Court Memorandum Opinion & Order (Defendant's Motion to
198, 199 8/3/2024 Dismiss for Selective and Vindictive Prosecution)
226 8/27/2024 Superseding Indictment
228 8/27/2024 Government's Notice of Superseding Indictment
229 8/30/2024 Joint Status Report (Pretrial Schedule)
232 9/5/2024 Transcript ofArraignment and Status Conference
2,.,,.,
.) .) 9/5/2024 Court Order (Pretrial Schedule)
Government's Motion for Leave to File Unredacted Motion Under
246 9/27/2024 Seal, and to File Redacted Motion on Public Docket
249 10/1/2024 Government's Sur-Reply to Defendant's Discovery Motions
Court Opinion & Order (Government's Motion for Leave to File
251 10/2/2024 Unredacted Motion Under Seal, and to File Redacted Motion on
Public Docket)
252 10/2/2024 Government's Motion for Immunity Determinations
140
United States v. Donald J. Trump, Case No. 23-cr-257 (D.D.C.)
ECF No. Date Document Descri:gtion
Government's Response in Opposition to the Defendant's
262 10/16/2024 Supplement to His Motion to Dismiss on Statutory Grounds
Court Memorandum Opinion & Order (Defendant's Motions to
263 10/16/2024 Compel Discovery and for an Order Regarding the Scope of
Prosecution Team)
Court Opinion & Order (Defendant's Motion to Continue Stay of
265 10/17/2024 Order)
266 10/18/2024 Government Appendix to Motion for Immunity Determinations
Government's Response in Opposition to the Defendant's Proposed
277 10/31/2024 Motion to Dismiss and for Injunctive Relief Based on the
Appointments and Appropriations Clauses
278 11/8/2024 Government's Unopposed Motion to Vacate Briefing Schedule
281 11/25/2024 Government's Motion to Dismiss Without Prejudice
Court Opinion & Order (Government's Motion to Dismiss Without
282,283 11/25/2024 Prejudice)
PRESIDENTIAL IMlvfUNITY APPELLATE LITIGATION
United States v. Trump, No. 23-3228 (D.C. Cir.)
Doc. No. Date Document Descrigtion
2030867 12/11/2023 Government's Opposed Motion for Expedited Appellate Review
Government's Reply in Support of Motion for Expedited Appellate
2031335 12/13/2023 Review
2031419 12/13/2023 Court Order (Expediting Appeal and Setting Briefing Schedule)
2033810 12/30/2023 Government's Answering Brief (Presidential Immunity)
2034942 1/9/2024 Oral Argument 268
2038999, 2/6/2024 Court Judgment & Opinion 269
2039001
268 Oral Argument Recordings Archive, United States Court of Appeals for the District of Columbia Circuit (Jan. 9,
2024 ), https:/ /media.cadc.uscourts .gov /recordings/bydate/2024/ 1 [https:/ /penna.cc/9 523-TRZ9].
269 See United States v. Trump, 91 F.4th 1173 (D. C. Cir. 2024).
141
Doc. No. Date
1 12/11/2023
2 12/11/2023
3 12/11/2023
7 12/21/2023
8 12/22/2023
United States v. Trump, No. 23-624 (U.S.)
Document Descri12tion
Government's Petition for a Writ of Certiorari Before Judgment
(Presidential Immunity)
Government's Motion to Expedite Briefing on the Petition for a Writ
of Certiorari Before Judgment and for Expedited Merits Briefing If
the Court Grants the Petition
Court Order (Government's Motion to Expedite)
Government's Reply Brief in Support of Motion to Expedite
(Presidential Immunity)
Court Order (Petition for a Writ of Certiorari Before Judgment)
Doc. No. Date
6 2/14/2024
15, 16 2/28/2024
47 4/8/2024
65 4/25/2024
66,67 7/1/2024
Trump v. United States, No. 23-939 (U.S.)
Document Descri12tion
Government Response in Opposition to Application for a Stay of
the Mandate of the United States Court ofAppeals for the District
of Columbia Circuit (Presidential Immunity) ( originally filed in
Trump v. United States, No. 23A745 (U.S.))
Court Order (Application for Stay/Petition for Certiorari)
(originally filed in Trump v. United States, No. 23A745 (U.S.))
Government's Brief (Presidential Immunity)
Oral Argument270
Court Opinion & Judgment (Presidential Immunity) 271
RULE 57. 7(c) APPELLATE LITIGATION
United States v. Trump, No. 23-3190 (D.C. Cir.)
Doc. No. Date Document Descri12tion
2026922 11/14/2023 Government's Answering Brief (Rule 57.7(c))
2027866 11/20/2023 Oral Argument272
270 Transcript of Oral Argument in Case No. 23-939, Supreme Court of the United States (Apr. 25, 2024),
http:/ /www.supremecourt.gov/oral_ arguments/argument_ transcripts/2023 /23-93 9 _ 3 fb4. pdf [https:/ /perma. cc/X Q7NE33
J].
271 See Trump v. United States, 603 U.S. 593 (2024).
272 Oral Argument Recordings Archive, United States Court of Appeals for the District of Columbia Circuit (Nov. 20,
2023 ), https://media.cadc. uscourts.gov/recordings/bydate/2023/ 11 [https ://perma.cc/5J2E-PDT6].
142
United States v. Trump, No. 23-3190 (D.C. Cir.)
Doc. No. Date Document Descrigtion
2032665 12/20/2023 Court Public Opinion (Rule 57.7(c)) (decided 12/8/2023) 273
2033815 12/31/2023 Government's Response in Opposition to Rehearing
2037003 1/23/2024 Court Order (Petition for Rehearing)
SELECTED GRAND JURY LITIGATION
(PARTIALLY UNSEALEDJ 274
Case No. Case Name
No. 22-gj-25 (D.D.C.) No. 22-3073 (D.C. Cir.) No. 22-gj-33 (D.D.C.) No. 23-3002 (D.C. Cir.) No. 22-gj-39 (D.D.C.) No. 23-3003 (D.C. Cir.) No. 23-gj-12 (D.D.C.) No. 23-3043 (D.C. Cir.) No. 23-gj-13 (D.D.C.) No. 23-3049 (D.C. Cir.) In re Grand Jury Subpoenas
In re Sealed Case
In re Grand Jury Subpoenas
In re Sealed Case
In re Grand Jury Subpoena
In re Sealed Case
In re Grand Jury Subpoenas
In re Sealed Case
In re Grand Jury Subpoena
In re Sealed Case
273 See United States v. Trump, 88 F.4th 990, 1018 (D.C. Cir. 2023).
274 As of the date of this Report, certain documents from selected grand jury litigation have been made available to
the public through related litigation. See In re Application of the New York Times, No. 22-mc-100, ECF No. 32
(D.D.C.); In re Press Application, No. 23-mc-35, ECF No. 11 (D.D.C.); see also Former Vice President 1vfichael R.
Pence s 1'vfotion to Quash Subpoena, United States District Court for the District of Columbia (Mar. 3, 2023),
https://www.dcd.uscourts.gov/sites/dcd/files/ Attachment%20 l .pdf [https://perma.cc/5LNK-72DG]; Governments
Opposition to Former Vice President Pence s Motion to Quash Subpoena, United States District Court for the
District of Columbia (Mar. 10, 2023 ), https://www.dcd.uscourts.gov/sites/dcd/files/ Attachment%202.pdf
[https://perma.cc/C8VM-E2PV]; Former Vice President Michael R. Pence s Reply in Support of His Motion to
Quash Subpoena, United States District Court for the District of Columbia (Mar. 17, 2023),
https://www.dcd.uscourts.gov/sites/dcd/files/ Attachment%203 .pdf [https://perma.cc/Z5DJ-7Y2K]; Order, United
States District Court for the District of Columbia (Mar. 27, 2023);
https ://www.dcd.uscourts.gov/s ites/ dcd/fi !es/ Attachment%204. pdf [https :/ /perma.cc/L 7TS-L6AQ]; Memorandum
Opinion, United States District Court for the District of Columbia (Mar. 27, 2023),
https://www.dcd.uscourts.gov/sites/ dcd/files/ A ttachment%20 5.pdf [https://perma.cc/FR8G-S3 SJ]; Sealed
Proceeding Before the Honorable James E. Boasberg, United States District Court for the District of Columbia
(Mar. 23, 2023 ), https://www.dcd.uscourts.gov/sites/dcd/files/ Attachment%206. pdf [https://perma.cc/J2C6-K35S].
143
PERRY SEARCH WARRANT LITIGATION
In re Scott Perry Cell Phone Search Warrant, No. 22-sc-2144 (D.D.C.)
(Partially Unsealed) 275
ECFNo. Date
Document Descrigtion
41276 11/4/2022
Court Memorandum Opinion & Order (Applicability of the Speech
or Debate Clause)
42 43 277
' 12/28/2022
Court Memorandum Opinion & Order (Perry's Motion for Non-
Disclosure to the Government)
44278 1/4/2023
Court Memorandum Opinion & Order (Perry's Emergency Motion
to Stay)
45279 2/24/2023
Court Memorandum & Order (Unsealing)
Court Memorandum Opinion & Order (Applicability of the Speech
Sealed280 12/19/2023
or Debate Clause)
Doc. No. Date
2031508
(Att. 2) 1/9/2023
1983102 1/25/2023
In re Sealed Case, No. 23-3001 (D.C. Cir.)
Document Descrigtion
Government's Opposition to Emergency Motion for Stay
Pending Appeal
Court Order (Perry's Motion for Stay Pending Appeal)
275 Additional filings in this matter have been made publicly available in In re Sealed Case, No. 23-300 I (D.C. Cir.),
Doc. No. 2031508, Attachment 10 (Joint Appendix).
276 kfemorandum Opinion and Order, United States District Court for the District of Columbia (Nov. 4, 2022),
http://www.dcd.uscourts.gov/sites/dcd/files/Redacted%20November%204%2C%202022%20Memorandum%200pi
nion%20and%20Order.pdf [https ://perma.cc/6CLJ-BETZ].
277 1vfemorandum Opinion, United States District Court for the District of Columbia (Dec. 28, 2022),
https://www.dcd.uscourts.gov/sites/dcd/files/Redacted%20December%2028%2C%202022%20Memorandum%200
pinion%2C%20ECF%20No%2043.pdf [https://perma.cc/7Z37-SRA4]; Order, United States District Court for the
District of Columbia (Dec. 28, 2022), https://www.dcd.uscourts.gov/sites/dcd/files/Redacted%20December
%2028%2C%202022%20Order%2C%20ECF%20N 0%2042.pdf [https://perma.cc/ AYF7-ECBD].
278 Memorandum Opinion and Order, United States District Court for the District of Columbia (Jan. 4, 2023),
https://www.dcd.uscourts.gov/sites/dcd/files/Redacted%20January%204%2C%202023%20Memorandum%200pini
on%20and%20Order%2C%20ECF%20N 0%2044. pdf [https ://perma.cc/3 8NW-EXV3].
279 Memorandum and Order, United States District Court for the District of Columbia (Feb. 4, 2023),
https://www.dcd.uscourts.gov/sites/dcd/files/Memorandum%20and%200rder%20February%2024%2C%202023.pdf
[https ://perma.cc/7PZQ-NZK6].
280 Memorandum Opinion, United States District Court for the District of Columbia (Dec. 19, 2023),
https ://www .dcd.uscourts.gov/s ites/ dcd/files/22-sc-2 l 44%20-%20Opinion.pdf [https://perma.cc/5 PPD-JH68];
Order, United States District Court for the District of Columbia (Dec. I 9, 2023 ),
https://www.dcd.uscourts.gov/s ites/ dcd/files/22-sc-2144 %20-%20Order. pdf [https://perma.cc/C3 E5-JQXK].
144
In re Sealed Case, No. 23-3001 (D.C. Cir.)
Doc. No. Date Document DescriQtion
2031508 2/16/2023 Government's Brief
(Att. 12)
---
2/23/2023 Oral Argument281
2015233 9/5/2023 Court Judgment
2016705 9/13/2023 Court Opinion (decided 9/5/2023)282
TWITTER SEARCH WARRANT LITIGATION
In re Twitter Search Warrant, No. 23-sc-31 (D.D.C.)
ECFNo. Date Document DescriQtion
Government's Motion for an Order to Show Cause Why Twitter Inc.
5 2/2/2023 Should Not Be Held in Contempt for Failure to Comply with a
Search Warrant
Government's Reply in Further Support of Motion for an Order to
11 2/6/2023 Show Cause Why Twitter Inc. Should Not Be Held in Contempt for
Failure to Comply with a Search Warrant
Transcript of Hearing (Government's Motion for an Order to Show
50 2/7/2023 Cause)
Court Minute Order Granting Government's Motion for Order to
---
2/7/2023 Show Cause and Directing Twitter to Comply
50 2/9/2023 Transcript of Hearing (Twitter's Non-Compliance with Warrant)
19 2/13/2023 Government's Notice Regarding Accrued Sanction
Government's Opposition to Twitter Inc. 's Motion to Vacate or
50 2/16/2023 Modify Non-Disclosure Order and Stay Twitter's Compliance with
Search Warrant
Court Memorandum Opinion & Order (Twitter's Motion to Vacate
29,32 3/3/2023
or Modify and Stay)
36 39
3/9/2023
Government's Opposition to Motion for Stay Pending Appeal
3/10/2023 Court Opinion & Order (Twitter's Motion for a Stay)
50 8/15/2023 Court Order (Unsealing)
281 Oral Argument Recordings Archive, United States Court ofAppeals for the District of Columbia Circuit (Feb. 23,
2023), https://media.cadc.uscourts.gov/recordings/bydate/2023/2 [https://perma.ccNS57-HMYW].
282 See In re Sealed Case, 80 F.4th 355 (D.C. Cir. 2023).
145
In re Sealed Case, No. 23-5044 (D.C. Cir.)
Doc. No. Date Document DescriQtion
1989703 2017103 3/10/2023 Government's Response in Opposition to Twitter's Motion for Stay
1991524 3/23/2023 Court Order (Twitter's Motion for Stay)
4/21/2023 Government's Answering Brief (filed with redactions on 9/15/2023)
---
5/19/2023 Oral Argument 283
2011549 2018981 8/9/2023 Court Amended Redacted Opinion ( decided 7/18/2023) 284
9/26/2023 Government's Response in Opposition to Rehearing En Banc
2035679 1/16/2024 Court Order (Petition for Rehearing)
X Corp. v. United States, No. 23-1264 (U.S.)
Doc. No. Date Document DescriQtion
5 7/3/2024 Government's Opposition (Petition for Writ of Certiorari)
9 10/7/2024 Court Order (Petition for Writ of Certiorari) 285
283 Oral Argument Recordings Archive, United States Court ofAppeals for the District of Columbia Circuit (May 19,
2023 ), https://med ia.cadc. uscourts.gov /recordings/bydate/2023/5 [https://penna. cc/S R2Z-G L5 B].
28-1 See In re Sealed Case, 77F.4th815, 830 (D.C. Cir. 2023).
285 See X Corp. v. United States, 2024 WL 4426628 (U.S. Oct. 7, 2024).
146
·,
,
I
ADDENDUM
IBIIBlanche
Law
PLL C
TODD BLANCHE
ToddB lanche@blanchelaw.com
(212) 716-1250
January 6, 2025
Via Email
The Honorable Merrick Garland
Attorney General of the United States
c/o Brad Weinsheimer
Associate Deputy Attorney General
Re: Draft "Final Report" By Jack Smith
Dear Attorney General Garland:
We write on behalf of President Trump to demand that Smith terminate all efforts toward the
preparation and release of this report (the "Draft Report").
1
As you know, Courts in Florida and the District of Columbia have now dismissed both of Jack
Smith's failed cases against President Trump. Rather than acknowledging, as he must, President Trump's
complete exoneration, Smith now seeks to disseminate an extrajudicial "Final Report" to perpetuate his
false and discredited accusations. Consistent with the bad-faith crusade that Smith executed on behalf of
the Biden-Harris Administration from the moment he was appointed, we were only permitted to review
the Draft Report in person in the District of Columbia, including prohibitions on the use of any outside
electronic devices in the room where the Draft Report was made available. Smith's team likewise
demanded, in advance of any review, that we delete prior discovery productions, preventing us from
reviewing any of those underlying documents cited in the Draft Report. Nevertheless, it is clear, as has
been the case with so many of the other actions of Smith and his staff, that the Draft Repo11 merely
continues Smith's politically-motivated attack, and that his continued preparation ofthe Report and efforts
to release it would be both imprudent and unlawful.
First, Smith lacks authority under our Constitution to issue a report because he was not validly
appointed, and the plain terms of the permanent indefinite appropriation that he has pillaged for more than
$20 million clearly do not apply to his politically-motivated work. The preparation and release ofa report,
therefore, would extend and perpetuate Smith's violations of the Appointments Clause and the
Appropriations Clause.
Second, the Draft Repo11 violates fundamental norms regarding the presumption of innocence,
including with respect to third parties unnecessarily impugned by Smith' s false claims. Releasing the
report to the public without significant redactions (that would render its release meaningless) would
violate prohibitions on extrajudicial statements by prosecutors and Rule 6(e). This is particularly
problematic with respect to ongoing proceedings relating to Waltine Nauta and Carlos De Oliveira, as
well as others who Smith and his staff falsely characterize as co-conspirators in the Draft Report.
1 Should these demands be improperly rejected, contrary to law, we respectfully request that this letter
be appended to and addressed in any report by Smith that is issued to the public.
January 6, 2025
Page 2
Third, preparing a report and releasing it to the public would violate the Presidential Transition
Act and the Presidential immunity doctrine. The Act prohibits all officers and those acting as such,
including the Attorney General and Smith, at least in his own view of himself, from interfering with the
ongoing transition process. Presidential immunity, which Smith conceded required pre-inauguration
dismissal of his prosecutions, likewise prohibits criminal processes, including disclosures of any
prosecutorial reports or statements, that would exacerbate stigma and public opprobrium surrounding the
Chief Executive and otherwise divert from the time and attention that is necessary to complete the
transition and run the County. Accordingly, releasing a report regarding Smith's failed and abandoned
election-interference efforts would violate the Act and Presidential immunity.
Finally, the release of any confidential report prepared by this out-of-control private citizen
unconstitutionally posing as a prosecutor would be nothing more than a lawless political stunt, designed
to politically harm President Trump and justify the huge sums oftaxpayer money Smith unconstitutionally
spent on his failed and dismissed cases. Under such circumstances, releasing Smith's report is obviously
not in the public interest-particularly in light of President Trump's commanding victory in the election
and the sensitive nature of the ongoing transition process.
Accordingly, because Smith has proposed an unlawful course of action, you must countermand
his plan and remove him promptly. If Smith is not removed, then the handling of his report should be
deferred to President Trump's incoming attorney general, consistent with the expressed will of the People.
Finally, should you disagree with the positions set forth below, we respectfully request notice of that
decision prior to the unlawful release of any report so that we can pursue injunctive and other relief to
protect the rights of President Trump, others unfairly implicated by Smith's work, and the people of this
great Nation who elected President Trump to run the government and put an end to the weaponization of
the justice system.
L Background
You are no doubt familiar with the history of the unethical election-interference and lawfare by
the Special Counsel's Office, as you have publicly commented on some of those efforts while they were
ongoing. This letter concerns Smith's most recent improper activities.
During the week of December 9, 2024, we learned from members of the media that Smith was
preparing a report, which would include a purported analysis relating to classified information at issue in
the dismissed Florida prosecution. We were surprised to learn of such a plan because, among other
reasons, Smith had insisted up to that point that his work was not concluded, Smith and his Office refused
to disclose details regarding this alleged analysis prior to the dismissal of his Florida prosecution against
President Trump, and the Biden-Harris Administration has suggested that they wish to facilitate an orderly
and collegial transition process.
On December 11, 2024, we contacted a supervisor with the Special Counsel's Office to express
concerns about reports we were hearing from the press. We asked whether the Office was preparing a
report and, if so, whether we would be allowed to review it prior to completion. Initially, Smith's position
was that: (1) we would only be permitted to access a draft of the report in Washington, D.C. between
December 23 and December 29, 2024, the week of Christmas; (2) we would only be permitted to take
handwritten notes during our review; and (3) any comments or objections to the draft would have to be
Blanche Law PLLC
99 Wall Street, Suite 4460 \ New York, NY 10005
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January 6, 2025
Page 3
submitted in writing by the close of business on December 29, 2024. Aside from all counsel living outside
D.C. and planning on spending time with family that week, as Smith and his team knew, Smith's proposal
afforded zero oppo1iunity for President Trump to assist counsel in reviewing and preparing any response
to the report, given the irrational conditions imposed. Apparently working under a self-imposed deadline,
Smith's team informed us, implausibly, that permitting defense review of Smith's unlawful Draft Report
during the first week ofJanuary 2025 would be "too late to allow us to complete our work." Subsequently
Smith walked back those now clearly false claims and permitted defense counsel to review the two-volume
Draft Report in a conference room at Smith's office between January 3 and January 6, 2025, without
allowing counsel to access the Internet or use their own electronic devices while in the room with
supposedly sensitive documents that the press has known about for weeks by virtue of Smith's leaks.
II. Preparation And Release Of A Report Would Violate Existing Law
Preparation and public release of a report by Smith would violate the Constitution and existing
law, including the Appropriations and Appointments Clauses, the Special Counsel Regulations, the
Presidential Transition Act, and the Presidential immunity doctrine. Collectively, these considerations
distinguish the circumstances surrounding the release of reports by prior Special Counsels. Here, release
of an unlawful report would not "comply with applicable legal restrictions" or "be in the public interest."
28 C.F.R. § 600.9(c); see also id. § 600.7(a) ("A Special Counsel shall comply with the rules, regulations,
procedures, practices and policies of the Department of Justice."). Therefore, you must countermand
Smith's proposed course of action, id. § 600.7(b ), and he should be removed for "dereliction of duty" and
"good cause,"§ 600. 7(d).
Smith was not validly appointed, and Congress did not provide funding for his improper mission.
No statute authorized you to deploy a private attorney against President Trump and others, and Smith
functioned as a principal officer acting without the necessary Senate confirmation. In addition, the DOJ
permanent indefinite appropriation Smith relied upon was-and still is-inapplicable. The only judge to
have examined the particulars of Smith's appointment reached these conclusions in an extremely thorough
and well-reasoned opinion. See generally United States v. Trump, 2024 WL 3404555, at *46 (S.D. Fla.
July 15, 2024). On appeal, Smith's prosecutors failed to identify any meritorious reason for questioning
Judge Cannon's treatment of these issues, and then abandoned the appeal as to President Trump.
Therefore, Smith lacks • authority to issue a report regarding his activities while masquerading as a
prosecutor, and his Office lacks authority to expend any public funds in furtherance ofpreparing or issuing
such a report. Indeed, because Smith abandoned the 11th Circuit appeal as to President Trump, Judge
Cannon's decision is a final judgment with issue-preclusive effect on these issues. See, e.g., BravoFernandez
v. United States, 580 U.S. 5, 7-8 (2016) (cleaned up) ("In criminal prosecutions, as in civil
litigation, the issue-preclusion principle means that when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again be litigated between the same parties in
any future lawsuit."); Bobby v. Bies, 556 U.S. 825, 834 (2009) (same).
Preparation and release of a report would also be improper under the Special Counsel Regulations.
Those Regulations only call for "Closing documentation," in the form of a "confidential report," to be
prepared "[a]t the conclusion of the Special Counsel's work." 28 C.F.R. § 600.8(c) (emphasis added). In
light of the violations of the Appointments Clause and the Appropriations Clause, Smith has no lawful
"work" to conclude. Moreover, by Smith's own repeated admission, Smith has not concluded his mission.
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99 Wall Street, Suite 4460 I New York, NY 10005
(212) 716-1250 www.BlancheLaw.comI
January 6, 2025
Page 4
Rather, Presidential immunity based on the national mandate ansmg from President Trump's
overwhelming victory in the election has made it impossible for Smith to proceed, and rightly so.
Smith's representations in the District of Columbia regarding his dismissed prosecution of
President Trump reinforce these points and make clear that no "Closing documentation" is warranted. 28
C.F.R. § 600.8(c). Smith wrongly relied on the claim that Presidential immunity is "temporary," which
is not the case, to ask that the charges against President Trump only be dismissed "without prejudice."2
The plain implication of Smith's position, which Judge Chutkan adopted, is that he does not believe his
work targeting President Trump has reached its "conclusion." 28 C.F.R. § 600.8(c). Thus, taking a
contrary position in order to justify preparation of one last long-winded, inaccurate, and unlawful smear
of the President-elect and others would violate the Special Counsel Regulations.
Public release of a report by Smith would also disrupt the ongoing transition process and violate
the Presidential Transition Act. "[T]he orderly transfer ofthe executive power is one ofthe most important
public objectives in a democratic society. The transition period insures that the candidate will be able to
perform effectively the important functions of his or her new office as expeditiously as possible."
Memorandum from Randolph D. Moss, Assistant Attorney General, OLC, Definition of "Candidate"
Under 18 USC. §207(;), 2000 WL 33716979, at *4 (Nov. 6, 2000) (cleaned up). "One ofthe top priorities
of any presidential administration is to protect the country from foreign and domestic threats. While a
challenge at all times, the country is especially vulnerable during the time ofpresidential transitions ....
"3
Thus, the transition process is "an integral part of the presidential administration," in the "national
interest," and part of President Trump's "public function," as he prepares to govern. Memorandum from
Randolph D. Moss, Assistant Attorney General, OLC, Reimbursing Transition-Related Expenses Incurred
Before The Administrator Of General Services Ascertained Who Were The Apparent Successfitl
Candidates For The Office OfPresident And Vice President, 2001 WL 34058234, at *3 (Jan. 17, 2001).
Congress passed the Presidential Transition Act to protect these critical functions. The purpose of
the Act is "to promote the orderly transfer of the executive power in connection with the expiration of the
term of office of a President and the inauguration of a new President." 3 U.S.C. § 102 note, § 2. "Any
disruption" of the transition "could produce results detrimental to the safety and well-being of the United
States and its people." Id Consequently, under the Act, "all officers of the Government"-including the
Attorney General and, according to his claims, Smith-are required to "conduct the affairs of the
Government for which they exercise responsibility and authority" in a manner that "promote[s] orderly
transitions in the office of President." Id. This includes, inter alia, "tak[ing] appropriate lawful steps to
avoid or minimize disruptions that might be occasioned by the transfer of the executive power." Id
Creating and releasing a prejudicial report to the public would violate these commands by giving
rise to a media storm of false and unfair criticism that President Trump would be required to address while
preparing to assume his Article II responsibilities. Equally problematic and inappropriate are the draft's
2 ECF No. 281 at 6, United States v. Trump, No. 23 Cr. 257 (D.D.C. Nov. 25, 2024).
3 Center for Presidential Transition, Presidential Transitions are a Perilous Moment for National Security
( Aug. 16, 2023 ), https ://presidential transi tion.org/reports-publications/presidential-transi tions-are-aperilous-moment-for-national-security.
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baseless attacks on other anticipated members of President Trump's incoming administration, which are
an obvious effort to interfere with upcoming confirmation hearings, and Smith's pathetically transparent
tirade about good-faith efforts by X to protect civil liberties, which in a myriad other contexts you have
claimed are paramount.
A one-sided, improper report by Smith, particularly if publicly released, would also violate the
Presidential immunity principles that Smith has conceded foreclose him from proceeding against President
Trump. Indeed, footnote 1 of "Volume 1" of the Draft Report concedes that Smith has brazenly included
"conduct for which the Supreme Court later held [President] Trump to be immune from prosecution," and
subsequently further highlights the incredible hubris that has clouded the judgment of Smith and his staff
from the outset by falsely claiming that the Supreme Court's decision is ambiguous with respect to
holdings and reasoning that Smith simply does not like. Based on guidance from OLC-which Smith's
staff subsequently informed us that the Office improperly failed to document in any way, in violation of,
inter alia, DOJ policy regarding the handling of exculpatory information-Smith has acknowledged that
Presidential immunity is "categorical," and that it applies while President Trump is the President-elect
prior to his inauguration.4 A public report by Smith would unnecessarily and unjustly add to the
inappropriate "peculiar public opprobrium" that has resulted from Smith's unlawful activities thus far.
Trump v. United States, 603 U.S. 593, 613 (2024). OLC explained previously that such "public stigma
and opprobrium" could "compromise the President's ability to fulfill his constitutionally contemplated
leadership role with respect to foreign and domestic affairs." Memorandum from Randolph D. Moss,
Assistant Attorney General, OLC, A Sitting President's Amenability to Indictment and Criminal
Prosecution, 2000 WL 33711291, at *19 (Oct. 16, 2000). "[T]he stigma arising ... from the need to
respond to such charges through the judicial process would seriously interfere with [the President's] ability
to carry out his constitutionally assigned functions." Id. at *22. The release of a report would also pose
an unconstitutional risk of diverting President Trump's "personal time and energy, and [ would] inevitably
entail a considerable if not overwhelming degree of mental preoccupation." Id. at *25 ( emphasis in
original). A "single prosecutor" such as Smith should not, and must not, be afforded "the practical power
to interfere with the ability of a popularly elected President to carry out his constitutional functions." Id.
at *19. "The Framers' design of the Presidency did not envision such counterproductive burdens on the
vigor and energy of the Executive." Trump, 603 U.S. at 614 (cleaned up).
In sum, the same legal principles and logic that required Smith to dismiss his prosecutions of
President Trump require that his activities be terminated without further action. Preparation and release
of "Closing documentation" would violate the Constitution and existing law, harm the activities of the
transition, and weaken the federal government that you have sworn an oath to support. The collective
application of these circumstances make this situation entirely unlike any prior Special Counsel report.
Preparation and release of a report is therefore not "in the public interest." 28 C.F.R. § 600.9(c). To the
contrary, the course of action Smith proposes would further solidify the well-founded perception of
partisanship created by Smith's violation of DOJ policies in connection with decisions based on his
ultimately failed attempt to influence the outcome of the 2024 Presidential election. For all of these
reasons, you must countermand Smith's proposed course of action, remove him, and stop the preparation
and/or dissemination of the Draft Report.
4 ECF No. 281 at 6, United States v. Trump, No. 23 Cr. 257 (D.D.C. Nov. 25, 2024) ("[T]he Department's
position is that the Constitution requires that this case be dismissed before the defendant is inaugurated.").
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III. Smith's Report Violates The Presumption of Innocence
The presumption of innocence is "the undoubted law, axiomatic and elementary." Coffin v. United
States, 156 U.S. 432, 453 (1895). It is "vital and fundamental" to our Constitutional system, id. at 460,
and "its enforcement lies at the foundation of the administration of our criminal law," id. at 453; see also
Cool v. United States, 409 U.S. 100, 104 (1972) (holding violation of defendant' s "constitutionally rooted
presumption of innocence" required reversal).
"The presumption serves as a reminder to the jury that the prosecution has the burden of proving
every element of the offense beyond a reasonable doubt," United States v. Starks, 34 F.4th 1142, 1158
(10th Cir. 2022), and thus, may be "extinguished only upon the jury 's determination that guilt has been
established beyond a reasonable doubt," Mahorney v. Wallman, 917 F.2d 469, 471 n.2 (10th Cir. 1990)
(emphasis in original) (collecting cases).
Consistent with these bedrock principles, the Justice Manual prohibits prosecutors from publicly
declaring a defendant's guilt prior to a jury verdict, or otherwise disseminating statements inconsistent
with the presumption of innocence. Justice Manual§§ 1.7.500; 1-7.600; 28 C.F.R. § 600.7(a) ("A Special
Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of
Justice."). Rather, prosecutors must limit their statements to "[t]he substance of the charge, as contained
in the complaint, indictment, information, or other public documents" and any "release issued before a
finding of guilt should state that the charge is merely an accusation, and the defendant is presumed
innocent until proven guilty." Justice Manual § 1.7.500. Moreover, "DOJ personnel should refrain from
disclosing" inter alia,
"[a]ny opinion as to [a] defendant' s guilt" or any other "[o]bservations about a
defendant' s or party' s character" "except as appropriate in the proceeding or in an announcement after a
finding ofguilt." Justice Manual § 1-7.610 (emphasis added).
These restrictions ensure that the Department's statements do not "prejudice the rights of a
defendant; or unfairly damage the reputation of a person." Justice Manual § 1-7.100; see also 32 C.F.R.
§ 776.47 ("Except for statements that are necessary to inform the public of the nature and extent of the
trial counsel' s actions and that serve a legitimate law enforcement purpose, refrain from making
extrajudicial comments that have a substantial likelihood of heightening public condemnation of the
accused."); D.C. Bar Rule 3.8 (same).
The Draft Report violates every one of these core requirements. Despite Smith' s decision to
dismiss his cases against President Trump, and his complete failure to obtain a "jury 's determination that
guilt has been established beyond a reasonable doubt," Afahorney, 917 F.2d at 471 n.2 (emphasis in
original), his Draft Report repeatedly, and falsely, claims that President Trump, Carlos De Oliveria,
Waltine Nauta, and others have committed crimes and otherwise engaged in purported "criminal conduct."
For example, Volume I of the Draft Report falsely asserts, without any jury determination, that President
Trump and others "engaged in an unprecedented criminal effort," was "the head of the criminal
conspiracies," and harbored a "criminal design." Draft Report, Vol. I at 2, 68, 69. These false accusations
of criminality, which Smith again utterly failed to prove in Court, repeat throughout Volume I. See, e.g. ,
id. at 3, 52, 60, 64, 67, 88, 108. Likewise, Volume II asserts, without any supporting verdict, "that Mr.
Trump violated multiple federal criminal laws," and that he and others engaged in "criminal conduct."
Vol. II at 60, 88 ; see also, e.g., id. at 89, 121. Moreover, the Draft Report makes these allegations despite
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the ongoing prosecutions of DeOliveira and Nauta, which would cause gravely unconstitutional prejudice
if released.
Neither the Constitution nor applicable regulations or ethical rules allow Smith to make public,
extrajudicial claims that purport to reflect conclusive determinations of guilt backed by the imprimatur of
DOJ. It is the role of the jury, not the Special Counsel, to weigh the facts and determine guilt. Other
Special Counsels have recognized this foundational fact. For example, Special Counsel Hur carefully
cabined his observations to what some "jurors could," "might," "may well," or, at most, "would likely"
conclude. See, e.g., Hur Report at 4, 5, 9, 10,204, 206-211, 214,216,218,220,233,235, 240-42, 246-
47. At all points, Hur's focus was on whether 'jurors assessing Mr. Biden's guilt and intent w[ould] be
persuaded," id. at 241, and not on the Special Counsel's unilateral views or opinions regarding Biden's
obvious guilt.
Likewise, Special Counsel Mueller expressly declined to "apply an approach" to his report "that
could potentially result in a judgment that the President committed crimes," where, as here, "no charges
c[ould] be brought." Mueller Report, Vol. II at 2. In Special Counsel Mueller's view, "[f]aimess concerns
counseled against" any kind of public accusation because:
[t]he ordinary means for an individual to respond to an accusation is through a speedy and public
trial, with all the procedural protections that sun-ound a criminal case. An individual who believes
he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor's
judgment that crimes were committed, but that no charges will be brought, affords no such
adversarial opportunity for public name-clearing before an impartial adjudicator.
Id. Moreover, Special Counsel Mueller warned that a public disclosure of a prosecutor's unilateral
judgment would only heighten these dangers. Id. ("[T]he possibility of the report's public disclosure and
the absence of a neutral adjudicatory forum to review its findings counseled against potentially
determining 'that the person's conduct constitutes a federal offense.' Justice Manual§ 9-27.220."). For
these reasons, Special Counsel Mueller's report "did not draw ultimate conclusions about the President's
conduct," id. at 182, but "[i]nstead for each of the relevant actions investigated, ... set[] out evidence on
both sides of the question ...." Ltr. from Attorney General William Ban- at 3 (Mar. 24, 2019).
To the extent Special Counsel Smith possesses any authority to draft a report (and he does not) he
should have applied the same principles as Special Counsels Hur and Mueller, which the Constitution, the
Justice Manual, and applicable regulations and ethical rules all require. That is-providing a dispassionate
description of the relevant facts, free of any gratuitous commentary regarding President Trump's conduct,
let alone direct accusations ofguilt. Smith failed to do so. Instead, he chose to construct the Draft Report
as a partisan weapon, designed to "unfairly damage the reputation" of President Trump, Justice Manual §
1-7.100, in a manner calculated to "heighten[] public condemnation," 32 C.F.R. § 776.47, while providing
"no ... adversarial opportunity for public name-clearing before an impartial adjudicator," Mueller Report,
Vol. II at 2. Accordingly, the Department should not, under any circumstances, permit Smith to complete
or submit the Draft Report in this form or otherwise disseminate it to the public.
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IV. Preparation And Release Of A Report Would Serve No Valid Purpose
There are many practical and prudential reasons to obey the law here. Preparation and release of
a report by Smith would not "be in the public interest." 28 C.F.R. § 600.9(c).
In 2023, Smith and his Office levied extremely serious, and entirely false, allegations against
President Trump in two separate cases. Smith has now been forced by the rule of law to dismiss both of
those cases. It would be highly improper and contrary to the public interest-as well as inconsistent with
the reconciliation and public healing process that is necessary following divisive and unconstitutional
actions by Smith-to allow him to create and disseminate yet another document recycling politically
motived and inaccurate claims that the law has forced him to abandon. Indeed, "no legitimate
governmental interest is served by an official public smear of an individual when that individual has not
been provided a forum in which to vindicate his rights." In re Smith, 656 F .2d 1101, 1106 ( 5th Cir. 1981 ).
Smith lacks the credibility that is necessary for such a report to be reliable or valuable to anyone, as his
biased and unlawful approach to these cases has been widely-criticized and discredited from the outset.5
Quite appropriately, he is the subject of an ongoing investigation by the Office of Professional
Responsibility, further diminishing any value from a report.6 Smith's unlawful plan would reinforce the
"likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to
prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be
next." Trump, 603 U.S. at 640. "The enfeebling of the Presidency and our Government that would result
from such a cycle of factional strife is exactly what the Framers intended to avoid." Id.
At 1999 hearings relating to the Independent Counsel Act, Ted Olson argued that "the final report
... has turned into an excuse to file long exhaustive expositions which rationalize the investigation," as
well as "offer opinions regarding and/or pronounce judgments on the individuals investigated, and
generally make the Independent Counsel look good."7 Attorney General Janet Reno pointed out, more
succinctly, that "the price of the final report is often too high."8 Deputy Attorney General Eric Holder
5 WSJ Editorial Board, Jack Smith Loses in the People's Court, WSJ (Nov. 7, 2024, 5:52 PM),
https://vvww.wsj.com/opinion/donald-trump-prosecutions-jack-smith-fani-willis-alvin-bragg-juanmerchan-lc68f640;
Jonathan Turley, Opinion: Donald Trump just won the greatest jury verdict in
American history, The Hill (Nov. 6, 2024, 10:56 AM), https://thehill.com/opinion/campaign/4976533-
trump-prosecutions-lawfare-end; Elie Honig, So What Happens With All the Cases Against Trump Now?,
N.Y. Mag. (Nov. 8, 2024), https://nymag.com/intelligencer/aiiicle/what-will-happen-with-the-chargesagainst-trump.html.
6 Letter from Chairman Jim Jordan to Jeffrey Ragsdale, DOJ OPR (Dec. 4, 2024)
https://www.scribd.com/document/800789357/Judiciary-toDOJ?secret_password=vphCtDdh3lHj7mTM5Ib8.
7 The Future ofthe Independent Counsel Act: Hearings before the S. Comm. on Governmental Affairs,
106th Cong. 231 (1999) (prepared statement of Theodore B. Olson).
8 The Future of the Independent Counsel Act: Hearings before the S. Comm. on Governmental Affairs,
106th Cong. 252 (1999) (prepared statement of Attorney General Janet Reno).
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added: "the reporting requirement goes directly against most traditions and practices of law enforcement
and American ideals. "9 Based on this feedback, Congress permitted the Independent Counsel Act to
expire, and DOJ promulgated a reporting regulation that was much more restrictive than its statutory
predecessor. 10
For the quarter century that DOJ has operated under these Regulations, DOJ has not released a
single Special Counsel report concerning any individual who has mounted a successful defense in court,
as President Trump has done with respect to Presidential immunity. For good reason: the Special Counsel
Regulations state that the purpose of a report is to "explain[] the prosecution or declination decisions." 28
C.F.R. § 600.8(c). When filing and resolving a case in Court, that information, together with the defense's
responses, becomes part of the public record. An additional, one-sided report, would only sow confusion
and undermine the judicial process.
Here, Smith has explained himself, and sought unsuccessfully to justify his actions, ad nauseum.
This has included routinely leaking sensitive details regarding the actions of Smith's Office to the media
in violation of DOJ policy. In October 2024, it was leaked that Smith planned to "pursue his two cases
against Mr. Trump for as long as he has the legal authority to do so-including during the period between
Election Day and the inauguration, when Mr. Trump, if he prevails, would be president-elect."11 A similar
July 2024 report cited "a person familiar with Mr. Smith's thinking." 12 As another example, we first
learned from the media, rather than Smith's Office, that they were considering dismissing the prosecutions
of President Trump. 13 And we learned for the first time via private outreach from media sources, rather
than Smith's Office, that Smith is working on a report.
9 Reauthorization of the Independent Counsel Statute, Part I: Hearings Before the H Comm. on the
Judiciary, l 06th Cong. 86 (1999) (prepared statement of Deputy Attorney General Eric Holder)
°
1
Compare 28 U.S.C. § 594(h)(l)(B) (calling for a "final report ... setting forth fully and completely a
description of the work of the independent counsel, including the disposition of all cases brought"), with
28 C.F.R. § 600.8(c) (calling for "a confidential report explaining the prosecution or declination decisions
reached by the Special Counsel").
11 Maggie Haberman et al., Trump Says He'll Fire Jack Smith, Special Counsel Who Indicted Him, ifHe
Wins Again, N.Y. Times (Oct. 24, 2024), https://www.nytimes.com/2024/10/24/us/politics/trump-jacksmith.html.
12 Alan Feuer, Special Counsel Is Said to Be Planning to Pursue Trump Cases Past the Election, N.Y.
Times (July 2, 2024), https://wv.w.nytimes.com/2024/07 /02/us/politics/jack-smith-trump-charges.html.
13 Pierre Thomas et al., Special counsel Jack Smith expected to wind down Trump prosecutions: Sources,
ABC News (Nov. 6, 2024, 3 :26 PM), https://abcnews.go.com/Politics/special-counsel-jack-smithexpected-wind-trump-prosecutions/story?id=l
15571646; Devlin Barrett, Jack Smith Assesses How to
Wind Down Trump's Federal Cases, Official Says, N.Y. Times (Nov. 6, 2024),
https://www.nytimes.com/2024/l l/06/us/politics/doj-trump-federal-cases.html.
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In addition to the leaks, Smith filed four gratuitous speaking indictments, held a lawless press
conference before the national media, and filed hundreds of pages of briefing in two district courts, two
Courts of Appeals, and the Supreme Court. Smith's inappropriate 165-page "Motion For Immunity
Determinations," accompanied by a 1,885-page "Appendix," is an especially egregious example of
Smith's proclivity to seize all available opportunities to issue lengthy diatribes attacking President Trump
based on Smith's biased view of the law and evidence.14 Smith insisted on the filing, which even Judge
Chutkan characterized as "atypical,"15 to further publicize his narrative in the lead-up to the Presidential
election. Smith's tome was not responsive to a defense motion, had no basis in the Federal Rules of
Criminal Procedure, and violated DOJ's election-interference policies and practices. See, e.g., Justice
Manual § 9-85.500. 16 Having previously insisted on highly restrictive protective orders that prevented
dissemination ofdiscovery, based in part on histrionic, unsupported claims about witness identities, Smith
abandoned those arguments and released the contents of protected reports, grand jury material, and
accounts from thinly-veiled witnesses whom the media immediately identified.
Under these circumstances, there is no legitimate need for an additional "report" to "explain
[Smith's] prosecution or declination decisions." 28 C.F.R. § 600.8(c). His baseless rationales for
prosecution are already fully public. So too is the selective description that his Office prepared ofthe legal
basis for the motions to dismiss, which Smith's Office caused OLC not to further memorialize in violation
of the Brady doctrine and DOJ policy. Moreover, the Draft Report goes far beyond merely explaining
Smith's "prosecution or declination decisions," deviating instead into extensive and irrelevant discussions
on purported "litigation issues," including post-indictment immunity litigation and Smith's violation of
the Department's political non-interference policies. See Draft Report Vol. I at 107-37. Although Smith
may wish to air his baseless and politically motivated grievances regarding the Constitutional importance
of immunity, and otherwise provide feeble and transparent excuses for his plainly political motivations,
that is not the purpose of a Special Counsel report under 28 C.F.R. § 600.8(c). A report must simply
"explain[]" a Special Counsel's "prosecution or declination decisions" and nothing more. The Draft
Report violates this core principle.
The issuance of such a report, in violation of the Constitution, the Transition Act, Presidential
immunity, and DOJ's own regulations, would exacerbate the irreparable damage that Smith has already
inflicted on DOJ's reputation for non-partisanship through his repeated violations of DOJ policies about
election interference. As we noted one year ago in opposing Smith's failed attempt to obtain certiorari
before judgment on Presidential immunity, which the Supreme Court rejected, Smith's actions "create[]
the compelling appearance of a partisan motivation: To ensure that President Trump ... will face a
months-long criminal trial at the height of his presidential campaign." Br. in Opp. to Pet'n for Writ of
14 ECF No. 252, United States v. Trump, No. 23 Cr. 257 (D.D.C. Oct. 2, 2024).
15 ECF No. 243 at 2, United States v. Trump, No. 23 Cr. 257 (D.D.C. Sept. 24, 2024).
16 See also A Review ofVarious Actions by the Federal Bureau oflnvestigation and Department ofJustice
in Advance of the 2016 Election, U.S. Dep't ofJustice Office of Inspector General (June 2018) at 18 ("[I]n
general, the practice has been not to take actions that might have an impact on an election, even if it's not
an election case or something like that."), available at
https://s3 .documentcloud.org/documents/4515 884/DOJ-OI G-2016-Electio_n-Final-Report.pdf.
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Certiorari Before Judgment in United States v. Trump, No. 23-624, at 21 (filed Dec. 20, 2024). Smith's
nakedly partisan, election-interference motivation was obvious to commentators across the political
spectrum. See id. (citing many sources). "[T]he best traditions of the U.S. Department of Justice ... call
for prosecutors to avoid the appearance of election interference in the prosecution of political candidates."
Id. at 23 (emphasis in original). "[F]ederal prosecutors ... may never make a decision regarding an
investigation or prosecution, or select the timing of investigative steps or criminal charges, for the purpose
of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or
political party." Id (citing Justice Manual§ 9-27.260). Smith's latest illegal plan to launch yet another
partisan attack against President Trump, De Oliveira, and Nauta will have the same injurious effect on
DOJ' s reputation if not stopped in its tracks.
Further, preparing and releasing a report would be improper for the additional reason that Smith
has relied on numerous legal theories that are unprecedented and incorrect as a matter of law. Many of
those issues were the subject of ongoing litigation at the time Smith dismissed the cases. To name a few,
these issues include the lack of statutory authority for Smith's appointment; Smith's reliance on officialacts
allegations in both cases in violation of the Presidential immunity doctrine17; Smith's unlawful theory
under 18 U.S.C. § 1512(c)(2) in violation of Fischer v. United States, 603 U.S. 480 (2024); equal
protection violations, based on selective and vindictive prosecution theories 18; the unprecedented and
unlawful raid at Mar-a-Lago; and violations of the Presidential Records Act and NARA's longstanding
practices under that Act. 19 There were also numerous discovery disputes in both cases, including
unresolved motions in the Southern District of Florida regarding Brady obligations, the scope of the
prosecution team, and Intelligence Community holdings, which further call into question the reliability of
Smith's theories.20 Smith's Draft Report presents a selective and inaccurate response to only some of
these issues, and then proceeds as if his theories are well-founded and undisputed. Nothing could be
further from the truth.
Finally, given the status of Smith and his team as the inauguration approaches, using additional
taxpayer resources to prepare, review, and disseminate a report is not a legitimate use of taxpayer fundseven
ifthere were a valid appropriation here, which there is not. "The Special Counsel's office has spent
tens of millions of dollars since November 2022, all drawn unconstitutionally from the Indefinite
Appropriation." United States v. Trump, 2024 WL 3404555, at *46 (S.D. Fla. July 15, 2024). For the
period preceding March 31, 2024, Smith's Office had used $20 million from a permanent indefinite
appropriation and an additional $16 million from other unspecified "DOJ components. "21 The costs of
Smith's activities since March 2024 have not yet been released. It is clear, however, that the total figure
17 ECF No. 324, United States v. Trump, No. 23 Cr. 80101 (S.D. Fla. Feb. 22, 2024).
18 ECF No. 328, United States v. Trump, No. 23 Cr. 80101 (S.D. Fla. Feb. 22, 2024).
19 ECF No. 327, United States v. Trump, No. 23 Cr. 80101 (S.D. Fla. Feb. 22, 2024).
20 ECF No. 262, United States v. Trump, No. 23 Cr. 80101 (S.D. Fla. Jan. 16, 2024).
21 Special Counsel's Office, DOJ, Statements of Expenditures, https://www.justice.gov/sco-smith.
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will greatly exceed-by an extraordinarily wide margin-what all of this lawfare was actually worth to
the public, the operations of the government, and the Country as a whole.
* * *
Smith's proposed plan for releasing a report is unlawful, undertaken in bad faith, and contrary to
the public interest. Smith's conduct also raises grave concerns under Article II because it unlawfully
encroaches on the Executive authority of the incoming Administration of President Trump to resolve the
issues surrounding Smith's Office in accordance with President Trump's commanding national mandate
from the voters. The time has come to put an end to this weaponization of the justice system and move
forward constructively. No report should be prepared or released, and Smith should be removed, including
for even suggesting that course of action given his obvious political motivations and desire to lawlessly
undermine the transition. If you elect to proceed with Smith's plan, we again respectfully request
(I) notice of such decision prior to any publication of the Draft Report, allowing us to take appropriate
legal action, and (2) that this letter and Smith's meritless responses to the legal arguments set forth herein
be incorporated into the Report.
Respectfully Submitted,
Isl Todd Blanche I Emil Bove
Todd Blanche
Emil Bove
Blanche Law PLLC
Isl John Lauro I Gregorv Singer
John Lauro
Gregory Singer
Lauro & Singer
Attorneys for President Donald J Trump
Cc: Jack Smith, Special Counsel
JP Cooney, Deputy Special Counsel
(Via Email)
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U.S. Department of Justice
Jack Smith
Special Counsel
January 7, 2025
DELIVERY BY HAND
The Honorable Merrick B. Garland
Attorney General of the United States
Robert F. Kennedy Department of Justice Building
950 Pennsylvania Avenue NW
Washington, D.C. 20530
Re: Letter from Counsel to Donald J. Trump of January 6, 2025
Dear Mr. Attorney General:
As you know, my Office provided counsel to Mr. Trump, Mr. Nauta, and Mr. De Oliveira
an opportunity to review a draft of my confidential Report and to provide any response in writing
by 2 p.m. on January 6, 2025, so that my Office could consider any issues that counsel identified
in the final Report before officially transmitting it to you. Only Mr. Trump's counsel chose to
provide a written response, in the form ofa letter to you. That response fails to identify any specific
factual objections to the draft. Instead, Mr. Trump principally objects to public release of the
Report, and in service of that objection makes a variety of false, misleading, or otherwise
unfounded claims. While the determination as to whether to publicly release the Report, consistent
with applicable legal restrictions, is yours as Attorney General, see 28 C.F.R. § 600.9(c), I felt it
necessary to address below certain inaccuracies set forth in Mr. Trump's letter.
As an initial matter, the Office extended Mr. Trump a special accommodation by allowing
his counsel to review a draft of the Report. Such an accommodation is not required under the law
or regulations. Nonetheless, the Office elected to provide Mr. Trump's counsel access to the draft
Report through what it understood to be a process similar to that employed by Special Counsel
Robert K. Hur: by allowing counsel to review the draft in person over the course of four days, in
the Office's workspace, without contemporaneous access to personal electronics but with the
ability to take notes, including the use of government laptops on which to draft a response.
Specifically, on December 11, 2024, Mr. Trump's counsel requested an opportunity to review the
Report before it was submitted to the Attorney General. On December 15, 2024, the Office
informed Mr. Trump's counsel that it would make arrangements for counsel to review the draft
Report and provided a range of dates when the review could occur. After Mr. Trump's attorneys
complained that the initial review dates that the Office offered conflicted with their vacation
schedules, the next day the Office changed the schedule to provide the dates they requested. It
was thus surprising and disappointing to see Mr. Trump's grievances about these accommodations
in his letter, see Trump Letter at 2-3, especially after Mr. Trump's counsel explicitly stated their
"genuine" and "personal appreciation" to the Office for the new dates in a phone call on December
16, 2024.
Mr. Trump's other cnt1c1sms of the review process are similarly disingenuous. For
instance, he complains that he was prevented from reviewing the underlying documents cited in
the draft Report, id. at 1, but over the four days Mr. Trump's attorneys were given to review the
Report, they never requested access to a single underlying document, despite the fact that the
Office had attorneys on hand specifically assigned to respond to any questions counsel might have.
Relatedly, Mr. Trump insinuates that the Office improperly "demanded" that counsel delete
discovery productions prior to their review of the draft Report, when in fact that deletion was
required by the protective orders that federal judges entered in both of Mr. Trump's criminal cases.
See United States v. Trump, No. 23-cr-80101 , ECF No. 27 at 3 (S.D. Fla. June 19, 2023); United
States v. Trump , No. 23-cr-257, ECF No. 28 at 2-3 (D.D.C. Aug. 11, 2023). In sum, Mr. Trump's
counsel had a full opportunity to review the draft Report, and only came to the Office to review it
on the first two of the four days available. Upon completing that review, Mr. Trump has not
contested a single factual representation in the Report, instead objecting only to its public release.
Other complaints by Mr. Trump are addressed and rebutted by the Report and court
decisions. For instance, Mr. Trump recycles his baseless allegation that the Office's work
constituted a partisan attack, a claim flatly rejected by the only court to have ruled on it. See United
States v. Trump, No. 23-cr-257, ECF No 198 (D.D.C. Aug. 3, 2024) (denying Mr. Trump's motion
to dismiss indictment based on selective and vindictive prosecution, "finding no evidence of
discriminatory purpose," "no evidence demonstrating a likelihood of vindictiveness," and "no
evidence that would lead the court to infer that [prosecutorial] discretion has been abused")
(internal quotation omitted). The Report explains in detail the Office's steadfast adherence to
neutral and evenhanded application of the law and to the Department's Election Year Sensitivities
policy. Mr. Trump also persists in his challenge to the Attorney General's authority to appoint a
Special Counsel, which is the subject of a pending appeal in the Eleventh Circuit. See United
States v. Nauta et al., No. 24-12311 (11th Cir.). As explained in my Report, the Office is confident
that the Department has strong arguments to prevail on that issue.
Finally, Mr. Trump's letter claims that dismissal of his criminal cases signifies Mr. Trump's
"complete exoneration." That is false. As the Office explained in its dismissal motions and in the
Report, the Department's view that the Constitution prohibits Mr. Trump's indictment and
prosecution while he is in office is categorical and does not turn on the gravity of the crimes
charged, the strength of the Government's proof, or the merits of the prosecution-all of which the
Office stands fully behind.
Sincerely yours,
2i!::
2
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