>[!SUMMARY] Table of Contents >    - [[Jack Smith Immunity Brief (Jan 6th case), Section III#A quick aside, this part is a gloss by whd, not part of the brief. |A quick aside, this part is a gloss by whd, not part of the brief. ]] >- [[Jack Smith Immunity Brief (Jan 6th case), Section III#Begin Synopsis of Section III (pp88-165)|Begin Synopsis of Section III (pp88-165)]] >    - [[Jack Smith Immunity Brief (Jan 6th case), Section III#A. Defendant's Interactions with Pence (pp89-98) (pc3 47:04 - 50:20)|A. Defendant's Interactions with Pence (pp89-98) (pc3 47:04 - 50:20)]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#1. The defendant's interactions with Pence as the President of the Senate were official, but the rebuttable presumption of immunity is overcome (pp90-98) |1. The defendant's interactions with Pence as the President of the Senate were official, but the rebuttable presumption of immunity is overcome (pp90-98) ]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#2. The Defendant's interactions with Pence as a running mate were unofficial (pp98-99) (pc3 50:20-51:07)|2. The Defendant's interactions with Pence as a running mate were unofficial (pp98-99) (pc3 50:20-51:07)]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#3. Greg Jacob's conversations with John Eastman were unofficial (pp99) (pc3 50:27-)|3. Greg Jacob's conversations with John Eastman were unofficial (pp99) (pc3 50:27-)]] >    - [[Jack Smith Immunity Brief (Jan 6th case), Section III#B. The Defendant's Interactions, in his Capacity as a Candidate, with Officials in the Targeted States (pp100-101)(pc3 51:07-)|B. The Defendant's Interactions, in his Capacity as a Candidate, with Officials in the Targeted States (pp100-101)(pc3 51:07-)]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#The interactions at issue were unofficial (pp100-101)(pc3 51:07-)|The interactions at issue were unofficial (pp100-101)(pc3 51:07-)]] >            - [[Jack Smith Immunity Brief (Jan 6th case), Section III#a. Calls to Doug Doucey (pp101-102) (pc3 53:15-55:25)|a. Calls to Doug Doucey (pp101-102) (pc3 53:15-55:25)]] >            - [[Jack Smith Immunity Brief (Jan 6th case), Section III#b. Meeting with Michigan legislators (pp102-106) (pc3 55:25-1:00:40)|b. Meeting with Michigan legislators (pp102-106) (pc3 55:25-1:00:40)]] >            - [[Jack Smith Immunity Brief (Jan 6th case), Section III#c. Call with Rusty Bowers (pp 106-107) (pc3 1:00:41- 1:02:58) (supra p.19)|c. Call with Rusty Bowers (pp 106-107) (pc3 1:00:41- 1:02:58) (supra p.19)]] >            - [[Jack Smith Immunity Brief (Jan 6th case), Section III#d. Call to Chris Carr (pp 107- 108) (pc3 1:03:03 - 1:05::16)(supra pp 23-24)|d. Call to Chris Carr (pp 107- 108) (pc3 1:03:03 - 1:05::16)(supra pp 23-24)]] >            - [[Jack Smith Immunity Brief (Jan 6th case), Section III#e. Call to Brad Raffensperger (pp 109-111) (pc3 1:00:15 - 1:08:45)(supra pp . 28-31)|e. Call to Brad Raffensperger (pp 109-111) (pc3 1:00:15 - 1:08:45)(supra pp . 28-31)]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III# 2. Even if the defendant's contacts with state officials were official, the Government can rebut the presumption of immunity (pp 111 - 112) (pc4: 2:01 - 5:01)| 2. Even if the defendant's contacts with state officials were official, the Government can rebut the presumption of immunity (pp 111 - 112) (pc4: 2:01 - 5:01)]] >    - [[Jack Smith Immunity Brief (Jan 6th case), Section III#C. The defendant's efforts, as a candidate, to organize fraudulent electors (pp 112- 114) (pc4 5:10 - 9:01)|C. The defendant's efforts, as a candidate, to organize fraudulent electors (pp 112- 114) (pc4 5:10 - 9:01)]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III# 1. The conduct at issue was unofficial| 1. The conduct at issue was unofficial]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#2. Even if the conduct were deemed official, the Government could rebut the presumption of immunity (pp 114 - 115)|2. Even if the conduct were deemed official, the Government could rebut the presumption of immunity (pp 114 - 115)]] >    - [[Jack Smith Immunity Brief (Jan 6th case), Section III#D. The Defendant's Public Speeches, Tweets, and Other Public Statements as a Candidate (pp 115 - 147 ) (pc4 9:01 - )|D. The Defendant's Public Speeches, Tweets, and Other Public Statements as a Candidate (pp 115 - 147 ) (pc4 9:01 - )]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#1. The statements were unofficial (pp 115 - 145) (pc4 9:03-|1. The statements were unofficial (pp 115 - 145) (pc4 9:03-]] >            - [[Jack Smith Immunity Brief (Jan 6th case), Section III#a. Speeches (pp 115-126 ) (pc4 11:35 - end of PC4 @ 45:00)|a. Speeches (pp 115-126 ) (pc4 11:35 - end of PC4 @ 45:00)]] >                - [[Jack Smith Immunity Brief (Jan 6th case), Section III#i. Dalton GA, Jan 4, 2021 (pp 116-118) (pc4 12:15 - 16:04)|i. Dalton GA, Jan 4, 2021 (pp 116-118) (pc4 12:15 - 16:04)]] >                - [[Jack Smith Immunity Brief (Jan 6th case), Section III#ii. The Ellipse, Jan 6, 2021 (pp 118-125) (pc4 16:20 - 45:00, the end of PC4)|ii. The Ellipse, Jan 6, 2021 (pp 118-125) (pc4 16:20 - 45:00, the end of PC4)]] >            - [[Jack Smith Immunity Brief (Jan 6th case), Section III#b. Tweets (pp 126 - 147) (pc4 33:20 - )|b. Tweets (pp 126 - 147) (pc4 33:20 - )]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#In the alternative, any official portions of the defendant's public speeches, Tweets, or statements should be excised (pp 145 - 147)(pc3 3:38 - 6:26)|In the alternative, any official portions of the defendant's public speeches, Tweets, or statements should be excised (pp 145 - 147)(pc3 3:38 - 6:26)]] >    - [[Jack Smith Immunity Brief (Jan 6th case), Section III#The Defendant's Interactions , in his Capacity as a Candidate, with White House Staff (pp 147 - 158 ) (pc5 6:27 - 11:14)|The Defendant's Interactions , in his Capacity as a Candidate, with White House Staff (pp 147 - 158 ) (pc5 6:27 - 11:14)]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#Eric Herschmann (pp149-154) (pc5 11:14 - 30:55)|Eric Herschmann (pp149-154) (pc5 11:14 - 30:55)]] >            - [[Jack Smith Immunity Brief (Jan 6th case), Section III# c. Other public statements. (pp 144-145)| c. Other public statements. (pp 144-145)]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#2. In the alternative, any official portions of the defendant's public speeches, Tweets, or statements should be excised|2. In the alternative, any official portions of the defendant's public speeches, Tweets, or statements should be excised]] >    - [[Jack Smith Immunity Brief (Jan 6th case), Section III#E. Other Evidence of the Defendant's Knowledge and Intent (pp 158 - 165)(pc5 30:55 - )|E. Other Evidence of the Defendant's Knowledge and Intent (pp 158 - 165)(pc5 30:55 - )]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#1. The interactions at issue were unofficial|1. The interactions at issue were unofficial]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#2. Even if this evidence were deemed official, the Government could rebut any presumption of immunity (pp 163-165)|2. Even if this evidence were deemed official, the Government could rebut any presumption of immunity (pp 163-165)]] >    - [[Jack Smith Immunity Brief (Jan 6th case), Section III#F. Other evidence of the Defendant's Knowledge and Intent.|F. Other evidence of the Defendant's Knowledge and Intent.]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#a. Statements by Federal Officials |a. Statements by Federal Officials ]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#b. The defendant's use of Twitter and television on January 6 (Superseding Indictment, ECF No. 226 ¶ 92; supra p. 79) (p161)|b. The defendant's use of Twitter and television on January 6 (Superseding Indictment, ECF No. 226 ¶ 92; supra p. 79) (p161)]] >        - [[Jack Smith Immunity Brief (Jan 6th case), Section III#c. The defendant's post-Administration statements (supra pp. 81, 83)|c. The defendant's post-Administration statements (supra pp. 81, 83)]] >- [[Jack Smith Immunity Brief (Jan 6th case), Section III#Footnotes|Footnotes]] This following **not** part of the brief, instead this is **my** general gloss of this section. The brief itself will start after the '===' sign ## A quick aside, this part is a gloss by whd, not part of the brief. The detailed discussion restarts with 'Defendant's Interactions with Pence' Section III details the legal analysis of why the various elements appearing in Section I (Factual Proffer) are not protected by the immunity ruling in [[United States v Trump]] (hereinafter simply [[United States v Trump|_Trump_]]) As such, there is quite a bit of duplication with that section, because he points to an assertion about the evidence (discussed in _Section I_), reiterating that assertion, and then his arguments as to why that action isn't immune, as given by the analysis given in [[United States v Trump|_Trump_]] and _Section II_ Because of this, I will only touch upon elements in this section, as I believe that the **meat** is in _Section I_. The interested reader can following the links at the top of this article and read the entirety of _Section III_ for themselves, if they with. After explaining the three parts of the SCOTUS ruling in[[United States v Trump|_Trump_]], in which the only type of immunity that could attach for Trump's behavior would be _presumptive_, the brief goes on to make two broad assertions. 1. The only element of the case that could be construed as _official conduct_ are conversations Trump had with [[Mike Pence|Pence]] when discussing his role as President of the Senate during the certification in the Joint Session on Jan 6. Pence's role is in that ceremony is **entirely ministerial** and, importantly, entirely outside of the role of the **president** and the Executive Branch. This is **by the design** of the founders and by statute. Smith justifies his assertions by quoting from the _Constitution of the United State_, the _Federalist Papers_ and commentary by various contemporary or near contemporary commentaries on the makeup of the role of the President and Vice President. Therefore, since the President has no role in the certification of the next inhabitant of the office, attaching a criminal penalty to his interference in that process imposes no burden **on the office of the president**. This is important, because this is one of the criteria set up by [[United States v Trump|_Trump_]]. 2. All of the other conduct is **private**, and therefore not **official**, and, therefore, by [[United States v Trump|_Trump_]] is **not immune**. And even if some act or other could be construed as **official**, it is _presumptive immunity_ and Smith argues the presumption can be rebutted. Again, this is **straight from [[United States v Trump|_Trump_]]**. The redacted 160 page brief [can be read here](https://static01.nyt.com/newsgraphics/documenttools/73357920e3c8d739/8fc8bfd0-full.pdf) The NYTimes article on this brief is [here](https://www.nytimes.com/2024/10/02/us/politics/trump-jan-6-case-jack-smith-evidence.html) The [Podcast _Jack_ has Allison Gill reading an unredacted version of the brief](https://podcasts.apple.com/us/podcast/jack/id1317481380?i=1000672000937). There are 5 segments to the podcast. === Begin Jack Smith's Brief: Section III === # Begin Synopsis of Section III (pp88-165) The first paragraph of this section says... > At its core, the defendant's scheme was a **private** one; he extensively used **private actors** and his **Campaign infrastructure** to attempt to overturn the election results and operated in a **private capacity**[^1] as a candidate for office. To the limited extent that the superseding indictment and proffered evidence reflect _official conduct_, however, the Government can rebut the **presumption of immunity** because relying on that conduct in this prosecution will not pose a danger of intrusion on the authority or functions of the Executive Branch. Below, the Government categorizes the conduct outlined in Section I and provides _“content, form, and context"_ for this Court to determine that the defendant's conduct was private or that, in the alternative, any presumptive immunity is rebutted “under the circumstances .” [[United States v Trump|_Trump_]], 144 S. Ct. at 2337. This analysis is necessarily fact-intensive, and all of the Government's analysis below is based on the unique facts and circumstances of this case. (p88) (emphasis mine) This section first addresses Trump's interactions with [[Mike Pence|Pence]], because discussions between Trump and [[Mike Pence|Pence]] about his role as the _President of the Senate_ while certifying the vote are **official acts**. However, certification of the vote **does not** fall within the _outer perimeter of the President's official acts_, and are therefore have only **presumtive immunity** applies, **which may be rebutted**. This is what the brief will argue. After dealing with these interactions between Pence and Trump when discussing the Joint Session certifying the election, **all other actions** taken by Trump, his co-conspirators and other agents, are the acts of a **private person** seeking office They are, therefore, not immune, as detailed by [[United States v Trump|_Trump_]] ## A. Defendant's Interactions with Pence (pp89-98) (pc3 47:04 - 50:20) Basically, this whole section is a analysis of why Trump's interactions aren't immune from prosecution. The analysis proceeds along the two elements mentioned in _Section II_, namely 1. Trump's acts were those of a private candidate for re-election, and the indicated interactions with Pence fall in that category. 2. Where there is some overlap with official acts which fall outside the perimeter of Presidential _core powers_ (and are thus _presumptively immune_) the Government may rebut claims of _presumptive immunity_ by showing that the President has no role in certifying the election, and therefore prosecuting attempts to obstruct those proceedings will not have a chilling effect on the Presidential power, or, where the claim of _presumptive immunity_ can not be rebutted, the the court may excise any part of the evidence that treats of official acts that are outside _core powers_, but whose prosecution might have a chilling effect, while leaving those parts that are unofficial acts of a candidate which do not. ### 1. The defendant's interactions with Pence as the President of the Senate were official, but the rebuttable presumption of immunity is overcome (pp90-98) Discussions between Trump and Pence which touch upon Pence's role as _President of the Senate_ in the process of certifying the electoral votes are official. However, since the President has **no constitutional role** in certifying the vote, these acts do not fall within the _outer perimeter_ of his **core duties**, under the constitution, and thus only _presumptive immunity_ attaches. _Presumptive immunity_ can be rebutted and can be overcome, because almost all of the conversations were about [[Kenneth Chesebro]]'s and [[John Eastman]]'s plan to have Pence reject the slate of electors from battleground states, both of whom were **private individuals**. Quoting the brief... >These conversations included one-on-one conversations between the defendant and [[Mike Pence|Pence]] (see, e.g., supra pp. 49, 63-65, 72-74, describing conversations on December 5 and 25, 2020, and January 1 , 3, 5, and 6, 2021496), as well as conversations in which the defendant included private actors, such as co-conspirator [[John Eastman]] in his attempts to convince Pence to participate in the conspiracies (see, e.g., supra pp . 66-67 and 71-72, describing conversations on January 4 and 5, 2021).(p90) (**whd**: NB: the designation _supra..._ refers to pages in this =brief=, so if you want to see the evidence for these claims, go to those pages and read the relevant passages. When you read those pages, since those have the names redacted, use the key above to find out who is being described. For example, [[John Eastman]] is the individual designated by **CC2**) Any discussion regarding Pence's role in the certification process in which Trump attempted to influence Pence in the discharge of his **ministerial** duty of **presiding** of the process, which is basically limited to opening the ballots and giving the count, is not immune because the Executive Branch has **no role** in this process. In fact, this is by design. The brief that quotes multiple sources to support this claim, ranging from the text of the constitution, to quoting the Founding Fathers, and the Federalist Papers. These sources include + U.S. Constitution, Article II, section 1, clause 1. + U.S. Constitution, Ammendment XX + Benjamin Franklin + Federalist Papers + 39 (Madison), + 50 (Hamilton) + 51 (Madison), + 68 (Hamilton) It is worthwhile to quote this section in its entirety. > The exclusion of the Executive Branch reflects fundamental constitutional principles . The "executive Power” is “vested in a President” only for "the Term of four Years," U.S. Const. Art. II, § 1 , cl. 1, and it transfers to his successor, by operation of law, “at noon on the 20th day of January," U.S. Const. Amend. XX. Permitting the incumbent President to choose his own successor -or, worse still, to perpetuate himself in power-would contradict the entire constitutional system that the Framers created . “ In free Governments,” Benjamin Franklin explained, “the rulers are the servants, and the people their superiors [and] sovereigns.” 2 The Records of the Federal Convention of 1787, at 120 (Max Farrand ed., 1911). A government could not be considered a “genuine republic," Madison argued, unless “the persons administering it,” including the President, “be appointed, either directly or indirectly, by the people; and that they hold their appointments" for a “definite period.” The Federalist No. 39 (J. Madison). Thus, while 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." TheFederalist No. 70 (A. Hamilton); see Seila Law LLC v. CFPB, 591 U.S. 197, 223-24 (2020). The Framers further recognized that while regular elections would serve as “the primary control on the government,” “experience has taught mankind the necessity of auxiliary precautions” as well. The Federalist No. 51 (J. Madison). > Some of those precautions are reflected in the design of the Electoral College itself. "**[W]ary of 'cabal, intrigue, and corruption**,” the Framers “specifically excluded from service as electors ' all those who from situation might be suspected of too great devotion to the president in office.” Trump, 144 S. Ct. at 2339 (quoting The Federalist No. 68 (A. Hamilton)). They were keenly aware, as Justice Story later explained, that “an ambitious candidate" could hold out "the rewards of office, or other sources of patronage,” in an effort “to influence a majority of votes; and, thus, by his own bold and unprincipled conduct, to secure a choice, to the exclusion of the highest, and purest, and most enlightened men in the country." Joseph Story, 3 Commentaries on the Constitution of the United States § 1450, at 314 (1833 ed.). To guard against that possibility, Article II 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. As a leading early American commentator observed, these limitations serve "to prevent the person in office, at the time of the election, from having any improper influence on his re-election, by his ordinary agency in the government." See 1 James Kent, Comm[^2]entaries on American Law *276 (8th ed. 1854).(p91)(emphasis mine) p(93-94) Further examples, including quotes by Abraham Lincoln, further show that the concept that Presidents have any part in the certification of the electoral votes is foreign to the spirt, design and stated goals of the founding fathers and to the history of the process right up to the present day.[^3] Finally, making Trump's behavior in his attempt to influence Pence to illegally choose Trump's illegal slates of electors would have **no effect, chilling or otherwise -- on the President's interactions with his Vice President**. The Vice President would still be able to carry out all of his constitutional duties even if a criminal prohibition on attempting to influence him or her to overthrow the election were in place; ... > None of these legitimate Executive Branch functions would be chilled or affected at all. In support of the claim that the _presumptive immunity_ has been rebutted in the case of Trump's discussions with Pence about his role in certifying the vote before the Joint Session, the fact that Trump regularly involved **private parties** (his private attorneys, agents and other private actors) in some conversations to convince Pence that he had the power to do what Trump and his co-conspirators wanted. This further strengthens the conclusion that prosecuting the defendant for his actions , for example, in using [[John Eastman|Eastman]] to help recruit Pence into the conspiracies does not infringe on any Executive Branch authority or function. And the fact that some White House executive staff were **explicitly excluded** makes the case even stronger. > Although White House Counsel [[Pat Cipolone]] was invited to the meeting[^4], when he arrived to attend, the defendant explicitly excluded him from it—meaning that the only attorney attending the meeting for the defendant was [[John Eastman|Eastman]] his privately-retained counsel. In [[Pat Cipollone|Cipollone]] telling, when [he] arrived at the Oval Office for the meeting, the defendant “said words . . . indicating he didn't want me at the meeting.” It is hard to imagine stronger evidence that conduct is private than when the President excludes his White House Counsel and only wishes to have his private counsel present . (p96) Similarly, Trump and [[Eastman]]'s Jan 5 phone call to Pence, [[Marc Short]] and [[Greg Jacob]], shows, by including the private attorney [[John Eastman|Eastman]], that this act was the act of a **private, office-seeking citizen** and not an _official act of the President of the United States_.[^5] ### 2. The Defendant's interactions with Pence as a running mate were unofficial (pp98-99) (pc3 50:20-51:07) The title basically says it all. If its unofficial, so the actions can be prosecuted and the evidence generated during those interactions used in that prosecution. Smith goes through many of the meetings and phonecalls detailed in pp 12-14 of _Section I_, showing these were **private** acts. These are conversations where Pence is attempting to _guide_ Trump to the realize that he's lost the election, to 'encourage' him 'as a friend' > softly suggested the defendant “recognize [the] process is over” even if he was unwilling to concede; and encouraged the defendant to consider running for election again in 2024.(p98) Where these conversations touched upon official duties, the proper recourse is to excise those parts from the record, a practice long recognized as legitimate in law, and ... > Government does not intend to elicit testimony about any peripheral discussion of arguably official responsibilities. See Blassingame, 87 F.4th at 17 (“[A] President acts in a private, unofficial capacity when engaged in re-election campaign activity."); see also United States v. Helstoski, 442 U.S. 477, 488 n. 7 (1979) (in the Speech or Debate context, when an act contains both protected legislative components and non-protected components, the correct course is to “excis[e] references to legislative acts, so that the remainder of the evidence would be admissible"). Together, these discussions show the defendant and Pence considering advice from their shared Campaign advisors, weighing electoral strategies, and grappling withtheir loss. Both men had something to gain by winning re-election, making more notable the persistence of Pence's suggestions on how to accept the results of the election without losing face (pp98-99) But, even if the court claims these conversations are _official_, the Government can rebut the _presumptive immunity_ because the use of this evidence poses no risk to the function of the Executive Branch. ### 3. Greg Jacob's conversations with John Eastman were unofficial (pp99) (pc3 50:27-) This is section is about several meetings between [[John Eastman]] and members of [[Mike Pence|Pence]]'s, his Chief of Staff [[Mark Short]] and/or his Chief Counsel [[Greg Jacob]] about [[John Eastman|Eastman]]s [[Fake Electors Scheme]] scheme. On Jan 6th he engaged in a lengthy email thread with Eastman. Since these interactions occurred outside Trump's presence, they are not protected, particularly since the entirety of [[John Eastman]]'s role is an inherently private one. See _Section I_ for a fuller discussion of this meeting. See [Redacted brief](https://static01.nyt.com/newsgraphics/documenttools/73357920e3c8d739/8fc8bfd0-full.pdf), pages 67-69 ## B. The Defendant's Interactions, in his Capacity as a Candidate, with Officials in the Targeted States (pp100-101)(pc3 51:07-) ### The interactions at issue were unofficial (pp100-101)(pc3 51:07-) These are Trump's attempts to influence and induce them to take actions to withdraw the rightly and legally certified electors and substitute electors that fraudulently voted for him. These are the various phone calls to [[Doug Doucey]] (AZ Gov), the two MI legislators, [[Mike Shirkey]] and [[Lee Chatfield]], and phone calls to the GA Attorney General [[Chris Carr]] and Secretary of State [[Brad Raffensperger]]. In each of these exchanges, Trump repeated his false claims of fraud, and the various participants from the states repeated their assertions that they were not seeing this fraud, but inviting Trump and his team to produce evidence for his claims; **which they never did**. In all cases, these interactions were **private** in nature, with Trump acting as a candidate attempting to stay in power and the President has **no authority** over state legislatures. Therefore they are **not immune** from prosecution. The following headings are just hear to mark were in the brief and the podcast these events are discussed. In all cases, see the relevant part of _Section I_ for more details. #### a. Calls to Doug Doucey (pp101-102) (pc3 53:15-55:25) Trump's call about 9 November were **unofficial** and **private**. Throughout the call Trump engaged in electioneering, repeating claims about fraud which [[Doug Doucey|Doucey]] kept contradicting. When Trump offered to send him evidence for his claims. Doucey said he'd be happy to look at it. But Trump never sent him any evidence. #### b. Meeting with Michigan legislators (pp102-106) (pc3 55:25-1:00:40) Again, when Trump met with Michigan legislators [[Mike Shirkey]] and [[Lee Chatfield]] the conversation was **private** and **unofficial**. In the conversation Trump continued to make the same claims about fraud. [[Mike Shirkey|Shirkey]] and [[Lee Chatfield|Chatfield]] explained that he'd lost not because of fraud, but because he underperformed with the educated femail vote. Examination of the _context_ of the meeting makes clear it was a *campaign meeting* NB: White House Press Secretary [[Kayleigh McEnany]] claims this is not an 'advocacy meeting', but just POTUS meeting with state legislators. **A Lie** (pp 103)(pc3 57:27) [[Ronna McDaniel]], [[Rudy Giuliani|Giuliani]] and [[Mark Meadows|Meadows]] were there for part of the meeting. No other Executive staff joined meeting. [[Eric Herschmann]] and White House Counsel [[Pat Cipollone]] wanted nothing to do with it. (p103) As related in _Section I_, Trump made the same baseless claims about fraud, promised to produce evidence, but never did. #### c. Call with [[Rusty Bowers]] (pp 106-107) (pc3 1:00:41- 1:02:58) (supra p.19) Arizona Governor [[Rusty Bowers]] has no official role in certifying the election in AZ Focused entirely on the results for his own election, Trump didn't raise any objection to any other race in AZ. Context shows the call was unofficial, as Trump and Giuliani were requesting that Bower replace the legitimate electors with those who voted for Trump, > a step that necessarily only affected the **defendant's race, out of all the races on the same ballot.** (p 106) Immediately after the call to [[Rusty Bowers|Bowers]], Giuliani called [[Karen Fann]], Arizona State Senate President, and tried to pressure her to replace the legitimate electors with Trump's slate. A week later, during the "hotel hearing" in AZ, Giuliani and Ellis failed to bring the promised evidence and instead admitted > "[w]e don't have the evidence, but we have lots of theories" (p106)(p19) When [[Doug Doucey|Doucey]] publicly announced he wouldn't take any extra-legal actions to overturn the election, [[Christina Bobb]] and [[Jenna Ellis]] attacked Bowers on twitter. Then [[John Eastman]] made one last attempt on 1/6. Again, in yet another act of [#StochasiticTerrorism](https://en.wikipedia.org/wiki/Stochastic_terrorism])(https://en.wikipedia.org/wiki/Stochastic_terrorism) Trump's campaign published Bower's contact information in an attempt to frighten him into cooperating. See _Section I_ for a particularly disgusting example of such attempts at intimidation. #### d. Call to [[Chris Carr]] (pp 107- 108) (pc3 1:03:03 - 1:05::16)(supra pp 23-24) Phone call on 12/8 to Georgia Attorney General [[Chris Carr]]. Call was about _Texas v. Pennsylvania_, a lawsuit brought by the TX AG Ken Paxton to force Pennsylvania to use Trump's fraudulent electors instead of the legitimate ones. Multiple Red State AGs filed Amicii briefs in favor. Trump's interest was entirely personal, as the lawsuit was only about the Presidential election, not any down-ballot races. Indeed, Trump, with the assistance of [[John Eastman]] intervened in the lawsuit, and in doing so > "affirmatively communicated to the Supreme Court (and the public) that he was acting and speaking in that matter in his ' personal capacity' as a candidate for reelection." [[Blassingame v Trump|Blassingame]], 87 F.4th at 16. The case was dismissed by SCOTUS on 12/11 for lack of standing, which is entirely right and proper and as it should be. No one state should be able to challenge the results of another in a Federal system like ours. #### e. Call to [[Brad Raffensperger]] (pp 109-111) (pc3 1:00:15 - 1:08:45)(supra pp . 28-31) Raffensperger's lawyer, a man named Germany, also we present. Trump's call to the Georgia Secretary of State [[Brad Raffensperger]] on 1/2 was taken as a candidate and private citizen and mostly discussed a lawsuit filed by Trump ( [[Trump v Raffensperger]] ) in which Raffensperger was a defendant. [[Mark Meadows]] said the call was to discuss the lawsuit[^6] All of the people on this call were affiliated with the campaign litigation efforts. The only one who could **remotely** be considered a member of the Executive Branch is [[Mark Meadows]], but in this case he was clearly acting for Trump the **office seeker**, and not in an official capacity. Regarding this issue, several court cases treat the matter of Meadows actions. In [[Georgia v Meadows]], where Meadows sought to remove his case to federal court, the state court ruled that > participation in the call reflected a clear attempt to further Trump's **private** litigation interests .") (emphasis in original) (p110) [[Arizona v Meadows]] ruled similarly, declining to remove his case to federal court because his > conduct in furtherance of the plan charged by the State “is unrelated to Mr. official duties") . Once more, with feeling: **The Executive Branch has no role in policing the actions of the states in certifying the election results.** This phone call was recorded by [[Brad Raffensperger]], the transcript is available: [Here’s the full transcript and audio of the call between Trump and Raffensperger](https://www.washingtonpost.com/politics/trump-raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356_story.html) and is the one in which the infamous quote from Trump ("I just want to find 11,780 votes") appears. In summary: Trump was acting as a candidate, and therefore his actions are not protected by immunity. [[Trump v Raffensperger]] was dismissed in Jan 2021 both for **lack of standing** and for **lack of factual evidence**. The dismissal said the claims were speculative and with no evidence that could affect the outcome of the election. This was also the result in the other lawsuit filed by Trump's campaign in the matter of the Georgia results: [[Trump v Kemp]] ### 2. Even if the defendant's contacts with state officials were official, the Government can rebut the presumption of immunity (pp 111 - 112) (pc4: 2:01 - 5:01) The SCOTUS did not directly address Trump's behavior in contacting state officials and pressuring them to change their slates of electors, it did discuss the role of the President in the choice of those elections and said that > In a criminal prosecution would not intrude on Executive Branch functions or authority:(p111) The short answer is that the President has no role in the state's choice of electors, and therefore Trump's attempts to influence those choices can not be considered as **official conduct**. > The President, meanwhile, plays no direct role in the process [of choosing 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.” The Federalist No. 68, at 459 (A. Hamilton) ; see Art. II, § 1 , cl. 2 . 144 S. Ct . at 2339.(interpolation mine) (p111) > Under the Constitution , the Executive Branch has no constitutionally assigned role in the state-electoral process . To the contrary, the constitutional framework excludes the President from that process to protect against electoral abuses. See _supra_ p. 93. (p111)[^7] This sub-section concludes... > Accordingly, applying criminal penalties to that conduct will not intrude on any Executive Branch authority or function. (p112) ## C. The defendant's efforts, as a candidate, to organize fraudulent electors (pp 112- 114) (pc4 5:10 - 9:01) ### 1. The conduct at issue was unofficial This conduct is **inherently** private, and therefore not immune. > See 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part) (“Sorting private from official conduct sometimes will be difficult—but not always. Take the President's alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection."). (p112) > At oral argument before the Supreme Court, the defendant initially **conceded that the plan to submit fraudulent electors directed by the defendant and [[John Eastman]] was not official.** Tr. of Oral Argument at 29-30; Tru[^14]mp, 144 S. Ct. at 2338. (emphasis mine)[^8] > > The Government nonetheless sets forth here the context, form, and content of the defendant's private contacts with RNC Chairwoman [[Sidney Powell]] in furtherance of the fraudulent elector plan because the defendant conversely suggested in the same oral argument that he will argue that those efforts were official. See 144 S. Ct. at 2338. (p112) The brief goes on to discuss several of the other conversations between such actors as [[Rudy Giuliani|Giuliani]], [[John Eastman|Eastman]] and others, and rebuts the claims that 1. they were official 2. any immunity at all attaches. After this, the brief discusses [[Eastman]]'s (and later Trump's) calls to [[Ronna McDaniel]][^13] Then there was an email from [[Ronna McDaniel|McDaniel]] to Trump's executive assistant [[Molly Michael]] saying that the fake elector slates had been signed. All of these communications were **private**, engaging only Trump, his **private attorney** [[John Eastman]] and a member of an outside, political organization. Then there were emails from [[John Eastman|Eastman]] to other private attorney's stressing the importance of having the fake electors conform, as much as possible, to the _form_ of the applicable state l=laws regarding the actions of legitimate electors[^15] and otherwise act as they would. [[John Eastman|Eastman]] asked [[Ronna McDaniel|McDaniel]] to 'work with the campaign' to make sure this was done, and she said she would. As this is a conversation between two **private** citizens, no presidential immunity can attach. Likewise, [[Ronna McDaniel|McDaniel]]'s email to Trump through [[Molly Michael]] was also private, dealing, as it did, with the private effort to get these fake electors organized, an activity not within the scope of Presidential duties. (pp113-114) > As discussed _infra_ pp. 145-147, when a White House staffer facilitates unofficial conduct by relaying private, political communications, the private action is not converted to an official one simply because an Executive Branch aide helps carry it out. (p114) ### 2. Even if the conduct were deemed official, the Government could rebut the presumption of immunity (pp 114 - 115) The same arguments given above in a similarly named section apply here as well. > “ ... a President has no legal authority and thus no official capacity—to influence how the States appoint their electors," and accordingly, there is “no plausible argument for barring prosecution of that alleged conduct." Trump, 144 S. Ct. at 2353 n.2 (Barrett, J., concurring in part). “[W]hile Congress has a limited role [in the appointment of Presidential electors], the President has none." Id. Accordingly, applying the criminal law to the defendant's “alleged attempt to organize alternative slates of electors,”while properly viewed as prosecution for private conduct, see id., implicates no authority or functions of the Executive Branch—and therefore including such conduct in the defendant's prosecution poses no danger of intruding on Executive Branch authority or functions. No federal executive function is impaired by applying criminal law to the alleged conduct of privately organizing fraudulent slates of electors .(p114) (interpolations in original) ## D. The Defendant's Public Speeches, Tweets, and Other Public Statements as a Candidate (pp 115 - 147 ) (pc4 9:01 - ) While it is within the realm of possibility that a President can make statements of policy in a public forum, none of Trump's statements in any of the various public settings he used (interviews, campaign videos, tweets and posts on [[Truth Social]]) are of such a type. ### 1. The statements were unofficial (pp 115 - 145) (pc4 9:03- Even if Trump's speech (used here in the general sense of any communication, including tweets or posts) touches upon official matters, that doesn't necessarily mean the act is **official** > Merely because the President is speaking to the public -- even on “matters of public concern" -- does not automatically render the communication official. [[Blassingame v Trump|Blassingame]], 87 F.4th at 19-20. Instead, what matters is "whether the President is speaking (or engaging in conduct) in an official capacity as office-holder or instead in an unofficial capacity as officer-seeker,” id. at 19, as determined by “ content, form, and context,” [[United States v Trump|_Trump_]], 144 S. Ct. at 2340. (p115) Starting before the election and lasting until Jan 6, Trump made a series of public statements using a variety of means. All of these comments were made as an **office seeker**, and not as an **office holder**, and are therefore _not official_. This conduct as issue can be divided into... #### a. Speeches (pp 115-126 ) (pc4 11:35 - end of PC4 @ 45:00) > The defendant made a number of speeches as a candidate, rather than as an office-holder. See1 44 S.Ct. a t2339-40 (“There may...be contexts in which the President, not with standing the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader.") . (p115) The following speeches will fall firmly into the latter category. ##### i. Dalton GA, Jan 4, 2021 (pp 116-118) (pc4 12:15 - 16:04) In this speech he told the same sets of lies he'd been telling since Nov 5. The important thing here is that everyone, including the Campaign staff and all of the organizers, recognized this event as a **Campaign event**, and therefore **none of the speech is protected**. And the trip binder included a [[Hatch Act]] disclaimer, which said > that “employees of the Federal Government may not use their official title or position when participating in a political event.” (p116) After doing his due dilligence to act as a cheerleader for the two GA Senators up for election in the special runoff[^9] he went back to his standard litany of lies about the election... > Much of the speech then veered into the defendant's principal claims of fraud and irregularities in the presidential election, but he occasionally returned to the theme of the following day's election, including discussion of the Democratic candidates All in all, it's clear that this is a **campaign event**, therefore no comments made at this event can be construed as _official_, and therefore no immunity attaches. ##### ii. The Ellipse, Jan 6, 2021 (pp 118-125) (pc4 16:20 - 45:00, the end of PC4) In _Section I_, the discussion below covered _supra_ pp 75-78[^16] (**whd**: This is a **long** section which goes into lots of detail, particularly with regard to the claims about individual states, as well as the excerpts from the speech and his tweets. I will put up section headers, to give page numbers, but probably leave mostly at that. I invite the reader to go directly to the source, pp 118-125. I will only be giving a brief synopsis) The _content and context_ of the speech at the Ellipse, the people involved in organizing it, even the White House documentation prove that this speech was to a **campaign** event, bearing may points of similarity with the speech in Dalton GA. Therefore, none of the speech at this event can be considered _official_ immune. Trump, for weeks leading up to the Jan 6th speech called it a **rally**. And the trip binder contained the standard [[Hatch Act]] disclaimer The brief goes through the statements of multiple speakers [[Louie Gohmert]] and Trump's **private attorneys** [[Rudy Giuliani]], and [[John Eastman]] and, finally, Trump in great detail. There are 24 individual instances of Trump lying about the election results. In each and every case we know that Trump had been told, **multiple times**, that his claims were false. In particular, the brief points out the numerous similarities between the rally in Dalton GA (which is unquestionably a **campaign** event, and therefore Trump's actions there are as a **private** individual) and his statements at the Ellipse speech. One last detail: In the speech, fully 24 instances of Trump lying about the election are pointed to, running from page 122 to page 125. I won't go into detail, if you want to see the full exposition read pages 118-125 in the brief. The point is, **each and every one of these lies were rebutted directly to Trump**. No rational person can say he didn't know without admitted that Donald Trump is **insane**. #### b. Tweets (pp 126 - 147) (pc4 33:20 - ) Trump used his **personal** account, @realDonaldTrump, on twitter, now[[X]], starting back in 2009, for electioneering through the period from 2015, before the 2016 election, right though 2020. For example, Trump announced his choice of Pence as a running mate on his private account. And although he would occasionally communicate information which might be construed as _official_ on that account, that fact does not prohibit the Government from using tweets that are **clearly** personal in nature. Nevertheless, since there could be tweets from his *private* account might contain **public, and therefore official** statements, a distinction must be made between _private_ and _public, possibly official_ tweets. In this case, this requires > that a **fact-specific inquiry** is required to discern into which category a post falls. In conducting the necessary Tweet-by-Tweet analysis, context and content matter. Simply because a Tweet relates to a matter of public concern does not automatically transform it into an official communication. In Blassingame, 87 F.4th at 20, the(pp 127-128) (emphasis mine) There is a 3 paragraph discussion of why these tweets are not covered by [[United States v Trump|_Trump_]] because they are private in nature and the actions of a **candidate**, not an **official**. For example, to rebut the claim that the integrity of the 2020 election was a _public issue_, the brief cites [[Blassingame v Trump|Blassingame]] and other cases. > The D.C. Circuit recognized that the "integrity of the 2020 election" was a matter of public concern, but if the defendant spoke about that issue “ in his personal capacity as a candidate for reelection rather than in his official capacity as President,” it was unofficial speech not shielded by immunity. Id. Thus , when a court consults “content and context” to inform the official-act inquiry, see Trump, 144 S. Ct. at 2340, a claim that all Tweets concerning election integrity were official must fail.(p128) (**whd**: This is certainly the case here, because the majority of Trump's tweets in his private acccount @realDonaldTrump are him complaining about **fraud** for which he never produces evidence) > An analysis of the @realDonaldTrump account during the time period of the charged conspiracies demonstrates that the defendant frequently used the account to advance his unofficial objectives as a candidate. Of the more than 1,200 Tweets, the vast majority were related to the 2020 presidential election. (p128) The brief also draws a contrast between Trump's **private** account and the **public** White House account for the President, \@POTUS45, showing that the latter is reserved for _official White House business_, while the former has a mixture of personal/private postings about the election and other posts which could legitimately be considered _official_ business. And the \@POTUS45 does not include the 2:24 tweet about Pence not doing the right thing in the certification ceremony[^10] > Below, the Government analyzes the “ content, form, and context,” id. at 2340, of various categories of the defendant's Tweets. All of these categories consist of unofficial Tweets. (p129) (**whd**: from this point on, I'm really going to synopsize everything, giving few quotes. Most of this stuff is covered in _Section I_ in gory detail) Smith breaks down the tweets into 3 categories. 1. Tweets, as candidate, casting doubt on election integrity. (p130) (pc4 39:13) * As discussed in _Section I_, Trump encouraged his followers to vote in person, so that he could set up the dichotomy between his votes, which would be counted on election day, and those of his opponent, which would require one of more days to finish counting. He then declared victory **before all the votes had been counted** and started lying about the results from there.m Just as his **statements** casting doubt were unofficial, so too were his tweets conveying the same information. (_supra_ p6)[^11] 2. Tweets making false claims of election fraud (pp130-131) (pc4 40:23) * Trump lied continually (continuously?) about the election. His statements are **unofficial**, therefore his tweets are too. There's some analysis to confirm the personal nature (the use of 'I' or 'We'), or dividing the world into his supporters and his 'enemies', as well as being fixated on his own margin of victory. See pages 130-131, if you wish to read it. * But really, do we need any proof??? _res ipsa loquitur_ * In any case, see _supra_ pp 22-23, 45, 55-56 and 62-63 3. Tweets and re-Tweets attacking those speaking the truth about the election (p131) (pc4 41;42) * Whenever someone opposed him, he and his minions would immediately attack them. If it was a Trump supporter, or ally (e.g. [[Rudy Giuliani|Giuliani]], [[Jenna Ellis]], [[Sidney Hemby]]), Trump would immediately retweet it, and sometimes amplify the tweet, adding to it. In particular, he and his agents and/or co-conspirators attacked. In this category we have... (pp 131) This section runs between pages 131 - 135 and gives specific instances of Trump's threatening behavior * [[Al Schmidt]] : Philadelphia City Commissioner during 2020 election (Nov 11), after he dispelled claims of fraud in Philadelphia (_supra_ p38) * [[Chris Krebs]], head of [[Cybersecurity and Infrastructure Security Agency - CISA|CISA]] when he said on TV that 2020 was 'the most secure election in hisotry', on 11/29. In Trump's tweet he complains about _60 Minutes_ never consulting **us**, by which he means the campaign, **not** his administration. (_supra_ p 45) * On 12/6 he retweeted [[Christina Bobb]]'s attack on [[Rusty Bowers]] after he made a public statement about election security in AZ. (_supra_ pp 20,40) * Also on 12/6 he retweeted [[Bernie Kerik]]'s attack on 4 Republican legislators in Pennsylvania who wouldn't work to overturn the election in Trump's favor snf eho, like [[Rusty Bowers|Bowers]] had issued public statements that they could not overturn valid election results. Trump retweeted [[Bernie Kerik|Kerik]]'s tweet without comment. (_supra_, pp 20,40) * 12/21 he attacked Wisconsin Supreme Court Justice [[Brian Hagadorn]] for writing a ruling dismissing his case in WI. (_supra_ p41) * Attacks on [Doug Doucey]] (AZ Gov), [[Brian Kemp]] (GA Gov) and [[Brad Rafensberger]] (GA Secretary of State.) In all of these attacks, Trump was working at a _candidate for office_ and as a _party leader_ ([[United States v Trump|_Trump_]], 144 S. Ct. at 2340). They are, therefore, **unofficial** * Tweets attacking Wisconsin's Governor after she signed the certificate confirming Biden won. 4. Tweets exhorting individuals to travel to Washington, D.C., for the [[Save America Rally]] (Superseding Indictment, ECF No. 226 ¶¶ 68, 72, 79(b); supra pp. 60, 64, 71-73) * Beginning 12/19, and continuing through to early January Trump used @realDonaldTrump to promote the **rally**. Trump tweeted a document drafted by [[Pete Navaro]] that had nothing to do with [[Pete Navaro|Navaro]]'s official duties (he worked on trade matters), but was about unofficial political campaign volunteer which the Office of the Special Counsel has already determined violated the [[Hatch Act]] on multiple occasions. As described in _supra_ pp118-126, the rally at the ellipse was an _unofficial event_, therefore his tweets about it were also _unofficial_ 5. Tweets regarding Pence's role on January 6 (Superseding Indictment, ECF No. 226¶¶ 69, 79(a), 82; supra pp. 61, 71-73) * All tweets Trump claiming that Pence had the power to choose which ballots to count and which to reject were **unofficial**, because they were Trump acting as a **candidate**. For example, on 12/23 Trump re-tweeted a 12/16 tweet by [[Ivan Raiklin]] a 'facially fake White House memo titled [[Operation 'PENCE CARD']] which falsely claimed that Pence could disqualify electors.[^17] And as Jan 6 drew closer, he continued to post similar false claims about Pence's powers. These statements about Pence's powers were lies, because ... 1. Trump knew that Pence didn't have that authority, he'd been told multiple times, his principle **private** lawyer [[John Eastman]] had acknowledged that what he and Trump were suggesting was illegal and would lose in the [[Supreme Court of the United States|SCOTUS]] 9 to 0. 2. He **knew** that Pence had no intention of acting to further Trump's goal of staying in power, because Pence had told him multiple times, including at 1am on Jan 6. 3. He **knew**, when he was telling the crowd that he _hoped_ Pence 'did the right thing', that Pence wasn't going to, so saying so to the crowd was raw manipulation, giving them false hope and, therefore, they would be enraged when he didn't (as Trump knew he wouldn't). Therefore, these lies were in furtherance of Trump last move: having the crowd storm the capitol, disrupt the proceedings and stop the transition. We know what his intent was by virtue of his actions after the riot started. At 1:30 he 'settled in' at the White House dining room, turned on [[Fox News]], which was following the riot in real time, and started scrolling through his twitter feed. By this time, the riot was getting started, and he was watching it in real time. 6. The infamous 2:24 pm tweet, sent by him while he was watching the riot on TV, and scrolling through hiw twitter feed. The _context and content_ of these tweets shows that they were **unofficial**. Trump was using the political pressure of his supporters and social media followers to pressure [[Mike Pence|Pence]] to change the results of the election. As discussed in _supra_ 91-96, Trump plays no **official role** in the certification process and was not using these tweets to advance any Executive Branch or governmental interest. > The private and Campaign nature of the Tweets is further confirmed when viewed in the context of the defendant's increasing desperation as even his unlawful path to remain in power narrowed. When the defendant re -tweeted the “ Operation Pence Card" Tweet on December 23, the defendant knew that he had lost the legitimate electoral college vote and had begun summoning supporters to Washington for the Ellipse rally on January 6.639 When he tweeted on January 5 that Pence had the power to reject fraudulent electors, Pence already had “told him many times” that Pence did not believe he had such power—including as recently as the day before. 640 And in the early morning hours of January 6, when the defendant again tweeted publicly that Pence should exceed his authority as President of the Senate when counting electoral votes, the defendant's **personal desperation was at its zenith**: he was only hours from the certification proceeding that spelled the end. (pp 138-139) * The defendant's 2:24 p.m. Tweet on January 6 (Superseding Indictment, ECF No. 226 ¶ 94; supra pp. 80-81) * > 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! * He then did nothing for another 2 1/2 hours while his staff came in an **pleaded** with him to communicate to the crowd. Three hours after the riot started, he finally sent out a message for the rioters to disperse, but even then it didn't end. It wasn't until 8pm that the certification could restart. finally, by 1am Biden had been certified the winner and was declared the President-elect. 2. Context shows that Trump understood his supporters believed his lies and were **angry**. At 5:05 Jan 5 he tweeted: '"Washington is being inundated with people who don't want to see an election victory stolen by emboldened Radical Left Democrats. Our Country has had enough, they won't take it anymore! We heary ou (and love you) from the Oval Office. MAKE AMERICA GREAT AGAIN!"' (p139) 3. He continued to fixate on stopping the certification process, tweeting 1:00 am and 8:17 am, Jan 6. (whd: For more detailed discussion of these categories see pp 132-136.) The brief then discusses Trump's day leading up to his speech, including a last minute call to Pence at 11: 15 where he tried to get Pence to fraudulently reject the legitimate slates and substitute his illegal ones. Thereafter, it discusses Trump working on his speech, then going to the Ellipse and delivering what it terms his 'falsehood-laden speech' to his angry supporters. Trump continued to fill them with false hope that Pence would do as Trump had asked, thereby setting up the conditions for the riot and the reaction to his tweet of 2:24pm. At 1:30pm, after returning from the speech (despite saying that he would go to the Congress with them), he went into the White House dining room, turned on [[Fox News]] , which was following the 'protests' in real time, and started scrolling through his twitter feed. The Government will not be offering Trump's discussions with his aids during this time, they provide context for Trump's actions.[^18] ### In the alternative, any official portions of the defendant's public speeches, Tweets, or statements should be excised (pp 145 - 147)(pc3 3:38 - 6:26) But, even if there are parts of his public communications, the proper remedy is to remove those parts of the communication, leaving those parts that are unofficial and private, and therefore not immune. This approach has a long history in law. ## The Defendant's Interactions , in his Capacity as a Candidate, with White House Staff (pp 147 - 158 ) (pc5 6:27 - 11:14) The basic principle here is that White House Staff and Trump may act in an official capacity, doing the business of the Federal Government, or they may carry out campaign activities, but they may not do both simultaneously. In the brief, they are said to 'wear two hats', or be 'dual-hatters'. And the latter activities are not immune under the [[United States v Trump]] ruling. And even if Trump, or the WH staffer , in the course of, say, a conversation, at some time discuss time official activities, and then change to discussing campaign related matters, there is ample legal precedent that allows for **separating** the two parts, redacting the former while retaining the latter. (see page 147-148 for the citations, most notably rulings _Blassingame_ and _Lindsey_ from the D.C. Circuit.) > Federal law confirms that the defendant's Campaign-related conversations with these White House staffers were unofficial. The [[Hatch Act]] permits certain White House staffers to engage in political activity while on duty, see 5 U.S.C. § 7324(a)(1), but prohibits them from using their “**official authority or influence for the purpose of interfering with or affecting the result of an election,**" 5 U.S.C. § 7323(a)(1). These staffers can thus wear two hats. They can work in their private capacity to advance the interests of a political candidate, including while on official duty, or they can work in their official capacity to carry out Executive Branch responsibilities—but they may not wear both hats at the same time. Accordingly, when the defendant's White House staff participated in political activity on his behalf as a candidate, they were not exercising their official authority or carrying out official responsibilities. And when the President, acting as a candidate, engaged in Campaign-related activities with these officials or in their presence, he too was not engaging in official presidential conduct. ... > In sum, just as the President may act at some times in an official capacity and some times in an unofficial, **personal** capacity as a candidate for office, so too can his staff. (p148)(emphasis mine) Certainly his discussions with his **personal** attorney are fully protected by attorney-client privilege. However, no such privilege attaches to a **White House lawyer**, unless he/she is communicating unofficial information either to, or from a the President's **personal** lawyer. In any circumstance but this, courts have held that the communication is not protected from investigation by a Grand Jury. > Simply because a staffer holds a title in the Executive Branch and interacts with the President does not mean that the interaction is necessarily official. See Blassingame, 87 F.4th at 14 (noting "the settled understanding that immunity is based on 'the nature of the function performed, not the identity of the actor who performed it.”” (quoting Clinton, 520 U.S. at 695)). When the individuals listed below interacted with the defendant in the circumstances described in Section I, **those conversations were unofficial.** (p148)(emphasis mine) ### [[Eric Herschmann]] (pp149-154) (pc5 11:14 - 30:55) Worked with Trump as a private lawyer, acting mostly as a conduit from the campaign out in the field to Trump. (whd: Was a vocal, and exceedingly direct critic of the claims of election fraud, calling it **bullshit**, saying the Giuliani would be **slaughtered** if he tried to present his claims in court and that any lawyer who signed any declaration of fraud would be **disbarred** (a prediction which came true for John Eastman, who knowingly signed just such a false declaration. Similarly for Rudy Giuliani. And Sidney Powell and Jena Ellis are all in danger of the same.) All of his interactions with Trump are unofficial. (in line with _In re Lindsey_) In this section the brief touches on 7 instances of [[Eric Herschmann|Herschmann]]'s interactions with Trump in which Herschmann either informed him -- many times forcefully and in no uncertain language -- that the claims of fraud were false, or the Giuliani was spouting nonsense and/or lies and didn't even believe himself what he was saying or didn't think he'd succeed in his challenges, that John Eastman knew that the declarations of fraud he signed and submitted into evidence were false and that his plan for the fake electors would not work and would lose in the SCOTUS 9-0, as well as the several occasions Herschmann had reported to Trump that his campaign **and** several outside companies hired by the campaign had found no evidence of fraud. See **Part I** for a discussion of the various interactions Herschmann had with Trump, detailing Trump's knowledge of and lack of concern for the falsity of his claims of election fraud (e.g. Trump, after being told that Giuliani wouldn't be able to prove any of his claims, Trump said "the details don't matter"), or where Herschmann reported to Trump that Giuliani had admitted that his plan "was not going to work", or Herschmann reporting to Trump that the campaign had hired outside experts who found various claims of fraud to be unsupported. Additionally, there are some actions which don't involve Trump, and therefore can't be considered Presidential conduct. These include text messages Herschmann had with Mark Meadows regarding the false claims about election fraud Giuliani made at the Georgia legislative hearing, and Dec 13 text messages between himself and Campaign staff about the fraudulent elector scheme. The remainder of this section follows the same pattern: Herschmann's interactions with Trump were about his attempts to overturn the election, either by allowing his surrogates to lie about the evidence, or by allowing them to pursue the fraudulent fake elector scheme, and thus are not **official conduct**. #### c. Other public statements. (pp 144-145) (whd:A short section) By virtue of him being a candidate, Trump made speeches or other public statements, whether in response to questions, or otherwise. See (_supra_ 6), statements to sow public doubt in the election, or televise remarks on election night (_supra_, 7-8) or his telephonic endorsement of [[Rudy Giuliani|Giuliani]]'s false allegations during the latter's [[Gettysburg 'Hotel hearing']][^19] ### 2. In the alternative, any official portions of the defendant's public speeches, Tweets, or statements should be excised As before, if there are parts of Trump's public statements, tweets or other statements that are _official_, they can be excised. Again, this is settled law. See > The D.C. Circuit has long recognized that district courts have "discretionary power to delete objectionable portions” of evidence “where appropriate,” _United States v. Lemonakis_, F.2d 941, 949 (D.C. Cir. 1973), and the Supreme Court has approved of that practice in the context of statements that contain protected legislative acts along with unprotected acts under the Constitution's Speech or Debate Clause, see _United States v. Helstoski_, 442 U.S. 477, 488 n.7 (1979) (approving practice of “excising references to legislative acts, so that the remainder of the evidence would be admissible") ; see also _Gov't of Virgin Islands v. Lee_, 775 F.2d 514, 523 (3d Cir. 1985) ("even where a conversation includes a discussion of both legislative acts and non-legislative acts , the conversation can be examined and the immunized aspects of the conversation deleted"). This is a familiar practice across a range of legal contexts. See, e.g., _Samia v. United States_, 599 U.S. 635, 653 (2023) (upholding use of a redacted statement to avoid constitutional concerns); _Davis v. Washington_, 547 U.S. 813, 829 (2006) (“Through in limine procedure, [trial courts] should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.”); In _re Rail Freight Fuel Surcharge Antitrust Litig._ - MDL No. 1869, 34 F.4th 1, 13 (D.C. Cir. 2022) (relying on _Lemonakis_). Redaction of any statements ultimately found to be immune, while admitting the significant remaining unofficial content , would resolve any constitutional questions under Trump. (pp 145-146) ## E. Other Evidence of the Defendant's Knowledge and Intent (pp 158 - 165)(pc5 30:55 - ) This category willl include statements by officials which Trump **did not** direct to be made, and in several circumstance didn't know were going to be made, but which rebut his claims about ellection fraud. Included in this category are... ### 1. The interactions at issue were unofficial 1. a. [[William Barr]]'s statement on 1 Dec 2020 in which he declared there was no evidence of _outcome determinative fraud_. [[William Barr|Barr]] made this statement because of Trump's claims about the DoJ not doing its job in ferreting out fraud, and the Trump kept making the same statements, despite being informed by others, including [[William Barr|Barr]] of their falsity. He did not inform Trump he was going to make this statement. After he released his statement, [[Rudy Giuliani|Giuliani]] , [[Jenna Ellis]] and [[Steve Bannon]] all attacked him, and repeated the false claims that the 'DOJ was missing in action.' Since this statement was not directed by Trump, it can not be considered a Presidential act, and therefore it is **not immune** 2. b. The statement released 12 Nov, 2020 and 11/27 tweet to a link to that statement, from [[Chris Krebs]] , the director of [[Cybersecurity and Infrastructure Security Agency - CISA|CISA]] , calling the 2020 election "the most secure in history", received especially violent push-back from Team Trump. For the same reason as given for [[William Barr|Barr]] statement, this statement from [[Chris Krebs|Krebs]] goes to Trump's knowledge of the falsehood of his claims about election fraud. 3. c. That Trump was reviewing twitter and television coverage of the riot at the Capitol in real time. The fact that he waited 3+ hours before he acted, the fact that he answerted "so what" when informed that [[Mike Pence]] had been evacuated to a safe location because of danger to his person, and the fact that he answered "maybe our supporters have the right idea" and that "he deserves it" All of these events show Trump's intentions to overthrow the government. ### 2. Even if this evidence were deemed official, the Government could rebut any presumption of immunity (pp 163-165) ## F. Other evidence of the Defendant's Knowledge and Intent. ### a. Statements by Federal Officials + i. [[William Barr|Barr]]'s press release. (_supra_ p46) + ii. [[Chris Krebs]]'s statement about the security of the election (_supra_ 42-43) ### b. The defendant's use of Twitter and television on January 6 (Superseding Indictment, ECF No. 226 ¶ 92; supra p. 79) (p161) ### c. The defendant's post-Administration statements (supra pp. 81, 83) # Footnotes [^1]: Indeed, in several crucial meetings (e.g. the 1/3 meeting between Trump, [[John Eastman]], [[Mike Pence|Pence]], [[Greg Jacob]] and [[Marc Short]] the White House Counsel [[Pat Cipolone]] was **specifically excluded**, showing that the meeting was a *private and personal* meeting. Although this is not covered in this brief (at least I can't find it), there is the **infamous meeting** with [[Rudy Giuliani|Giuliani]], [[Michael Flynn]], [[Sidney Powell]] and former Overstock CEO [[Patrick Byrne]] where various methods of overturning the election were discussed, including declaring martial law and seizing voting machines. Cipollone testified about this meeting before the [[Jan 6th Select Committee]]. See [YouTube1](https://www.youtube.com/watch?v=0fOUUwVj31Y), [YouTube2](https://www.youtube.com/watch?v=ZHWq1H1uOvI), [be.com link 1](be.com/watch?v=0fOUUwVj31Y), [be.com link 2](https://www.youtube.com/watch?v=ZHWq1H1uOvI)). [^2]: Given how nearly Trump succeeded in his illegal plan, I have to say the Framer's design was **only just** equal to the task. [^3]: **Until Donald J. Trump**, that is. I invite the reader to read pages 90-98 [^4]: A meeting scheduled the Jan 4 between [[John Eastman]], [[Mike Pence|Pence]] and, I believe, Pence's staff [[Marc Short]] and [[Greg Jacob]] where Eastman again tried to convince Pence to throw out the lawful ballots and select Trump's ballots -- or --, failing that, declare that he couldn't decide between _competing slates of electors_, so he had to send the matter back to the states to decide. [^5]: A case that will appear repeatedly is [[Blassingame_v Trump]], which ruled that the President is **not immune** from civil liability when acting as a candidate. Among some notable quotes from the ruling in 'The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to _gain_ that office is not an official act _of_ the office' (ibid) [^6]: Isn't such conduct between opposing parties in a lawsuit highly unethical? A plantiff talking *ex parte* with a defendant? [^7]: Any reference to *supra* means "refer to the brief." In this case, *supra 93* means look at page 93 in the brief. That page is in _Section II_ [^8]: Despite this concession, Trump says he will try to argue that those actions **were official**, hence Smith here is going to rebut those claims as if Trump had never made that concession at all. [^9]: [[Kelly Loeffler]] and [[David Purdue]], both of whom **lost** [^10: Which so inflamed his followers who were, at that moment, breaking into the Capitol, mid-riot. [^11]: Again, _supra_ abbreviation gives a page number in **this brief**, so in this case, go to page 6 in the Jack Smith Immunity Brief: https://static01.nyt.com/newsgraphics/documenttools/73357920e3c8d739/8fc8bfd0-full.pdf, p6 [^13]: There was one that was just [[John Eastman|Eastman]] and another with Trump also attending. [^15]: e.g go to where the legitimate electors are required to go (i.e. Michigan electors must sign their documents in the state house) [^16]: This is a **long** section, which I will only summarize [^17]: Making it look like Trump was just _happened upon_ this great idea by Raiklin? We know that this plan had been in the works since 11/18, see _supra_ p48. [^18]: I, however, am not so limited. See [[Trump's interactions with WH staff during Capitol riot]] [^19]: In case you don't want to hie over to the other page, the claims made were the '1.8 million ballots went out, but 2.5 came back' nonsense.