Jack - Part 4 | Reading the Annotated Immunity Brief

Episode Date: October 10, 2024

Sit back and enjoy smooth legal writing of Jack Smith as read by Allison Gill.Part 4Thank you to Adam Klasfeld for filling in the redacted names.Who's Who in Jack Smith's Immunity Brief Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ  AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to know:Rule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

MSW Media. I signed an order appointing Jack Smith. And nobody knows you. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. What law have I broken? The events leading up to and on January 6th, classified documents and other presidential records.

You understand what prison is? Send me to jail! Hello and welcome to Jack, the podcast about all things special counsel. My name is Allison Gill, and we've had a lot of folks write in asking if there was an audio version of the special counsel's immunity brief because it's a lot to read. Well, ask and ye shall receive. This is the audio version of the immunity brief, and I'll be reading it with the known redacted names as provided by our friend Adam Klassfeld at Just Security.

This audio version will be split up into multiple episodes that will be released daily. Thanks for listening and please subscribe to the Jack podcast for free wherever you get your podcasts. All right. So in the last episode, in part three, we ended by going through every single phone call with the state officials between the officials and Donald Trump and some of his private campaign lawyers, sometimes the chief of staff Mark Meadows, but only in his private capacity as assisting with Donald Trump's campaign. We went through all of those calls and the arguments in section three as to why Jack Smith believes that they are not immune.

Now where we pick up, we're starting on page 111, close to the top, and we're going to talk about the even if, meaning even if the court decides that any of those conversations with the state officials were somehow official in nature, the presumption of immunity is rebutted. The section is called, even if the defendant's contacts with state officials were official, the government can rebut the presumption of immunity. Although the Supreme Court did not resolve the issue in Trump, it describes the basis for concluding that using the defendant's conduct of lying to and pressuring state officials to change the legitimate vote in a criminal prosecution would not intrude

on executive branch functions or authority. Quote, indeed, the Constitution commits to the states the power to appoint presidential electors in such a manner as the legislature thereof may direct. Article 2, Section 1, Clause 2, C, boroughs, V, United States. Article 2, Section 1, appointment powers, we have said, quote, gives the states far-reaching authority over presidential electors absent some other constitutional constraint. By contrast, the federal government's role in appointing electors is limited. Congress may prescribe when the state-appointed electors shall meet, and it counts and certifies their votes. That's Article

2, Section 1, Clause 3 and 4. The president, meanwhile, plays no direct role in the process, nor does he have authority to control the state officials who do. And the framers, wary of quote, cabal intrigue and corruption, unquote, specifically excluded from service as electors, all those who from situation might be suspected of too great devotion to the president in office. That is Federalist number 68 by Hamilton and Article 2, Section 1, Clause 2 of the Constitution. 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. Accordingly, applying federal criminal law to the defendant's use of fraud to interfere with electoral processes carried out by the states does not intrude on executive branch authority or functions. Rather, it ensures that the president's conduct remains consistent with the Constitution's allocation of that authority to the states, while in no way impairing his ability to, quote, encourage state officials to act in a manner that promotes the president's view of the public good, unquote. The president remains free, for instance, to urge state

officials to institute measures to combat a pandemic or make arrangements to provide emergency relief. This case does not remotely implicate such official conduct. What neither the president nor any other candidate may do is further his private campaign for office by using fraudulent means to have state officials certify him as the winner of a presidential election despite the will of the voters. Accordingly, applying criminal penalties to that conduct will not intrude on any executive branch authority or function. Next, the defendant's efforts as a candidate to organize fraudulent electors. The conduct at issue was unofficial.

The defendant's conduct with respect to the elector scheme is inherently private and not subject to immunity. C. Barrett J., concurring in part, quote, sorting private from official conduct sometimes will be difficult, but not always. Take the president's alleged attempt to organize alternative slates of electors. In my view, that conduct is private and therefore not entitled to protection. The President of the United States has no official responsibilities related to the organization or voting of electors in the various states by virtue of the Constitution.

That process takes place in the states according to the laws and procedures set forth by each state. See U.S. Constitution Article 2, Section 1, Clause 2. At oral argument before the Supreme Court, the defendant initially conceded that the plan to submit fraudulent electors directed by the defendant and Rudy Giuliani was not official. The government nonetheless sets forth here the context, form, and content of the defendant's private contacts with RNC Chairwoman McDaniel 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. The defendant had two relevant contacts with McDaniel. First, he and co-conspirator John Eastman called Ronna McDaniel on December 6th to ask her to ensure that the effort was properly coordinated. And second, on the evening of December 14th, Ronna McDaniel emailed the defendant through his executive assistant, Molly Michael, to inform him that the fraudulent electors had cast the votes he had directed. The defendant and John Eastman's call to Ronna McDaniel on December 6th was private. The defendant placed the call, along with John Eastman, a private attorney and co-conspirator, to Ronna McDaniel, the chairwoman of a political organization whose objective was to elect a broad set of Republicans at the federal and state level including the defendant and other allied candidates.

John Eastman was acting in his capacity as a private attorney for the defendant. On the same day John Eastman emailed with several other private attorneys and wrote quote this is huge and hugely important. Let's make sure the various state electors are aware of the absolute necessity of meeting on the 14th, casting their votes, and otherwise complying with the transmittal requirements of federal law. Finally, the content of the call was likewise unofficial. The defendant and John Eastman asked Rhonda McDaniel to work with the campaign to ensure that the fraudulent

electors were properly organized, which she agreed to do and did, as is clear from her further contacts with Rudy Giuliani and Boris Epstein regarding the plan. Rhonda McDaniel's email to the defendant on December 14th was likewise a private communication. Rhonda McDaniel simply forwarding the defendant an RNC communication, summarizing the electoral vote to inform him that the private task the defendant had given her was complete. And Molly Michael confirmed that she had relayed that message by writing, quote, it's in front of him, unquote. As discussed, 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. The next section, even if the conduct were deemed official, the government could rebut the presumption of immunity. In any event, even if the defendant's efforts to convene fraudulent electors could be considered official, the presumption would be rebutted because, quote, a president has no legal authority and thus no official capacity to influence how the states appoint their electors. And accordingly, there is is quote, no plausible argument

for barring prosecution of that alleged conduct. That's a quote from the Trump immunity case from Barrett, concurring, quote, while Congress has a limited role in the appointment of presidential electors, the president has none, unquote. 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 implicates no authority or function 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. Next section, the defendant's public speeches, tweets, and other public statements as a candidate. The statements at issue were unofficial. Merely because the president is speaking to the public, even on quote matters of public concern unquote, does not automatically render the communication official that is quoting Blossingame. Instead, what matters is, quote, whether the president is speaking or engaging in conduct in an official capacity as office holder, or instead in an unofficial capacity

as office seeker, unquote, as determined by content, form and context, as stated in the Trump immunity decision. Starting before the election and lasting until January 6th, the defendant at various times communicated publicly, not as president, but as a candidate for office. These communications included public campaign speeches, tweets, and other public statements and comments. The defendant's communications that the government has alleged in the superseding indictment and described in section one were all made in his capacity as a candidate and are not official. Let's look at the speeches.

The defendant made a number of speeches as a candidate rather than as an office holder. Quote, there may be contexts in which the president, not withstanding the prominence of his position, speaks in an unofficial capacity, perhaps as a candidate for office or a party leader, unquote. The superseding indictment cites and the government plans to use at trial two speeches. Number one, the defendant's campaign speech at a political rally in Dalton, Georgia on January 4th, 2021, and his campaign speech at a political rally on the ellipse on January 6th, 2021. Let's start with Dalton, Georgia, January 4th, 2021.

In his capacity as a candidate, the defendant traveled to Dalton, Georgia on January 4th at the invitation of two Republican U.S. senators who were competing in a runoff election the following day to retain their seats. The RNC paid for the event. The White House's records, including the trip binder that the White House staff prepared for the event and that includes a schedule and manifest, further confirmed the private nature of the Dalton speech. The defendant was the only executive branch participant at the event. Other attendees were federal and state elected officials,

the chairman of the Georgia Republican Party, and the founder of Bikers for Trump. The trip binder included a Hatch Act disclaimer, stating that, quote, employees of the federal government may not use their official title or position when participating in a political event, unquote. Its description of the event to which the defendant was traveling was, quote, remarks at victory rally, unquote.

Similarly, the presidential daily diary from that day describes that, quote, the president made remarks at the Georgia Senate victory rally, unquote. This nomenclature, the use of the phrase victory rally, is significant. Victory necessitates one political candidate or party defeating another, and rallies are the kinds of events that candidates hold to excite their supporters and garner votes. Moreover, a defendant's campaign sent numerous fundraising emails before, during, and after the speech confirming the event's private nature. In a January 4th email around 3 p.m., the campaign sent a fundraising email with the subject line, rally in six hours that began quote, President Trump is heading to Georgia for a rally with senators Kelly Loeffler

and David Perdue. This rally is going to be epic and it will show the nation that real Americans like you are fired up and ready to fight to keep our Republican Senate majority. The Senate runoff election is tomorrow and it's gonna take the support of patriots from all around the nation if we're gonna win big and save America from the radical left. Later at 921 p.m. the campaign sent a fundraising email in the name of the defendant's son that began my father is on stage right now in Georgia, rallying with Senators Loeffler and

Perdue to defend our Senate Republican majority. Are you watching? The email reminded voters that, quote, the Senate runoff election is tomorrow, and you are the only one who could stop the left from taking over. Another email at 1041 PM sent in the name of the defendant began, I just stepped off stage after speaking at an epic victory rally in Georgia with Senators Loeffler and Perdue. The energy of the American people is unmatched and I know we're going to win big tomorrow. Finally, the content of the Dalton speech confirms its unofficial nature. The defendant began by telling the crowd, tomorrow each of you is going to vote in one of the most important runoff elections in the history of our country.

You're going to get everyone you know. You're going to show up to the polls in record numbers. You're going to swamp them. And together we're going to defeat the Democratic extremists and deliver a thundering victory to David Perdue and someone that has really been a star in Washington, Kelly Loeffler. He also used the speech to pressure Mike Pence. 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 discussions of the Democratic candidates. We're going to talk about the speech at the ellipse on January 6th, but we have to take a quick break. Stick around. We'll be right back.

All right. Welcome back. Now that we've covered the speech in Dalton, Georgia, we're on to the ellipse on January 6th, 2021. The content and context of the ellipse rally, including the people involved in organizing the rally, demonstrate that it too consisted of non-official conduct. The ellipse rally, named the Save America Rally or the March for Trump, was planned and executed by private political supporters including Women for America First, WFAF, a 501c4

organization that advocated for the defendant's re-election in advance of Election Day in 2020 and throughout the post-election time period. And quoting the immunity decision in Trump, quote, knowing who was involved in organizing the rally could be relevant for the classification of the ellipse speech as official or unofficial, unquote. The ellipse rally was originally planned to take place at Freedom Plaza, but after WFAF began to plan the rally independent of the defendant, Caroline Wren, a private fundraiser for the defendant, contacted WFAF to discuss moving the event to the ellipse and featuring the defendant as a guest. The organizers and planners of

the event were almost exclusively private individuals with minimal involvement by White House advanced staff. The United States Secret Service, which is charged with the president's protection at all times, even during unofficial events, considered the rally to be, quote, a campaign event, unquote. The rally was completely funded by a $2.1 million private donation by Julie Fancelli,

a grocery chain heiress. This private funding, while not dispositive, is a strong indicator that the event was unofficial. One of the rally organizers who had the most direct contact with Trump was an employee of the Defendants' campaign until December 31st, 2020, and after that, a private citizen. And in public statements since leaving office, the defendant has said repeatedly that he quote, had nothing to do with the rally other than they asked me to make a speech. I showed up for a speech.

For weeks leading up to the event, the defendant promoted it on Twitter using the word rally, a word that the defendant on his Twitter account reserved almost exclusively for political and campaign events. As with the trip binder for the Dalton remarks, the defendant's trip binder for the ellipse speech also reinforces the private nature of the event. Although it does not include the same Hatch Act disclaimer, perhaps because the event in contrast to the Dalton rally was not for the benefit of another political candidate, it describes the event as the defendant's remarks at the Save America rally using the word rally that reflects unofficial campaign related events. The

defendant's White House employees understood the rally and the defendant's speech at it to be private unofficial exercise and acted accordingly. Consistent with the Hatch Act's requirements that officials within the executive branch other than the president or vice president must refrain from using their official authority for partisan political purposes on the morning of the rally an email from White House photographer Sheila Craighead, on which Dan Scavino was copied, provided, quote, a reminder, today is a political event, unquote. Likewise, the defendant's White House speechwriting staff understood the speech was a political,

unofficial one and used their personal devices and personal email accounts to do most of the drafting and fact checking for the defendant's ellipse speech, though some last revisions to the speech on the morning of January 6th occurred over White House email. And officials in the White House Counsel's Office, who customarily reviewed the defendant's official remarks, pointedly did not review the ellipse speech because it was unofficial. Similarly, the White House website in the moments after the defendant's speech at the rally made no mention of it. Instead, the official webpage touted the official accomplishments like COVID vaccines and peace in the Middle East.

By contrast, the speech was advertised heavily by the defendant's campaign Twitter account, which also repeatedly posted clips of the event in progress and afterwards. The day of logistics of the Save America rally further indicate its private nature. No other executive branch official spoke. Instead, other speakers included WFAF officials, the Defendants' political allies, two U.S. representatives, and the Defendants' co-conspirators and private attorneys, Rudy Giuliani and John Eastman. Moreover, the Defendants' appearance was consistent with a campaign rally, not an official

event. The crowd and the rally consisted of the defendant's political supporters who held signs and wore clothing bearing the defendant's campaign slogans. And the manner in which the defendant took the stage at the rally was also consistent with his campaign rallies. Instead of entering as a military band played hail to the chief, as he might at an official presidential event, the defendant entered and exited the ellipse speech to the songs he had used throughout his campaign, Lee Greenwood's God Bless the USA and the village people's YMCA. Tellingly, the significant similarities with the defendant's

Dalton campaign speech confirm that the ellipse speech delivered just two days later was private partisan electioneering. The defendant covered many of the same topics and told many of the same lies about fraud in only his election, in some cases using the exact same words. For instance, the defendant as a candidate falsely claimed he had won the election, that's Dalton, Georgia, 1102, quote, I ran two elections, I won both of them, second one much more successful than the first. At

the ellipse, he said, I've been in two elections, I won them both, and the second I won much bigger than the first, unquote. The defendant as a candidate and the leader of a political party implored political supporters to pressure Pence. In Dalton, Georgia, he said, quote, I hope Mike Pence comes through for us. I have to tell you, I hope that our great vice president comes

through for us. He's a great guy. Of course, if he doesn't come through, I won't like him quite as much." At the ellipse, he said, quote, I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win this election, unquote. The defendant as a candidate and the leader of a political party attacked a fellow party member who had been insufficiently subservient. In Dalton, Georgia, he says, Georgia Governor Kemp was an incompetent governor. And at the ellipse, he said, Kemp was one of the dumbest governors in the United States."

Unquote. The defendant, who in his capacity as a candidate had suffered personal legal defeats in his private election related litigation at the Supreme Court, attacked it. In Dalton, Georgia, he said, I'm not happy with the Supreme Court. They're not stepping up to the plate. They're not stepping up. And at the ellipse, he said, I'm not happy with the Supreme Court. They love to rule against me. The defendant as a candidate made myriad false claims regarding fraud in the presidential election, including Arizona. Non-citizens cast 36,000 votes. In Dalton, Georgia, he said, in Arizona, more than 36,000 votes were cast by non-citizens. At the ellipse, he said, over 36,000 ballots

were illegally cast by non-citizens. And there were more ballots than voters. In Dalton, Georgia, he said, quote, there were 11,000 more ballots than there were voters. And at the ellipse, he said, 11,600 more ballots and votes were counted more than there were actual voters, unquote. Georgia, there were more than 10,000 dead voters. At the Dalton speech, he said, quote, we were up 10,315 ballots were cast by individuals whose name and date of birth matches a Georgia resident who died in 2020 prior to the election. Then your wacky secretary of state said two people, two people. At the ellipse, he said, over 10,300 ballots in Georgia were cast by individuals whose names and dates of birth matched Georgia residents who died in 2020 and prior to the election. More than 2,500 ineligible felons voted. In

Dalton, Trump said, 2,506 ballots were cast by individuals whose name and date of birth matches an incarcerated felon in a Georgia prison. Maybe they aren't all there, but they did a lot of work. I paid a lot of money to a lot of people. I can tell you that. At the ellipse, he said, more than 2,500 ballots were cast by individuals whose names and dates of birth match incarcerated felons in Georgia prison, people who are not allowed to vote. Thousands of unregistered people voted. In his Dalton speech, he said 4,502 illegal ballots were cast by individuals who do not

appear on the state's voter rolls. At the ellipse, he said more than 4,500 illegal ballots were cast by individuals who do not appear on the state's own voter rolls. He also said more than 18,000 voters used vacant addresses. He told the Dalton, Georgia folks, 18,325 illegal ballots were cast by individuals who registered to vote using an address listed as vacant according to the Postal Service. At the ellipse rally, he said over 18,000 illegal ballots were cast by individuals who registered to vote using an address listed as vacant according to the Postal Service.

He also said that at least 88,000 ballots were illegally backdated. He told the folks at Dalton, quote, at least 86,880 ballots were cast by people whose registrations were illegally backdated. At the ellipse, he said at least 88,000 ballots in Georgia were cast by people whose registrations were illegally backdated. He also said underage voters cast 66,000 ballots. He told Dalton Georgia, 66,000 votes in Georgia were cast by people under the legal voting age. At the ellipse, he said, 66,000 votes, each one of those is far more than we need. 66,000 votes in Georgia were cast by individuals under

the legal voting age. And he talked about 15,000 voters that had moved out of state before the election. He said at the Dalton speech, at least 15,000 voters that had moved out of state before the election. He said at the Dalton speech, at least 15,000 ballots were cast by individuals who moved out of the state prior to November 3rd's election, or maybe they moved back in. At the ellipse, he said, and at least 15,000 ballots were cast by individuals who moved out of the state prior to November 3rd election.

They say they moved right back. They moved right back. Oh, they moved out. They moved right back. Okay. They miss Georgia that much. I do. I love Georgia. But it's a corrupt system. He lied about Michigan saying 17,000 ballots were cast by dead people in both speeches. In Dalton, he said, quote, an estimated 17,000 ballots were cast by dead people, unquote. At the ellipse, he said, quote, more than 17,000 Michigan ballots were cast by dead people." At the ellipse, he said, quote, more than 17,000 Michigan ballots were cast by individuals whose names and dates of birth match people who were deceased, unquote. Nevada. Signature verification matches were flawed. He said this at both speeches. In

Dalton, he said, quote, in Clark County, Nevada, over 130,000 ballots, this is far, just so you know, all of these numbers, this is far more than we need, were processed on machines where the signature matching threshold was intentionally lowered to a level that you could sign your name Santa Claus and it wouldn't pick it up. At the ellipse, he said, quote, in Clark County, Nevada, the accuracy settings on the signature verification machines were purposely lowered before they were used to count over 130,000 ballots. He also said there were tens of thousands of double votes in Nevada. He told the folks at Dalton, Georgia, more than 42,000 people in Nevada double voted at the ellipse. He said, there were also more than 42,000 double votes in Nevada. He lied about Pennsylvania. He said the Commonwealth had more votes than voters. He told the people of Dalton, Georgia, quote, In Pennsylvania, there were 205,000 more ballots cast than there were voters. He said at the ellipse, quote, So in Pennsylvania, you had 205,000

more votes than you had voters. He said 8,000 dead people voted in Pennsylvania. He told the folks at Dalton, quote, Pennsylvania also had an estimated 8,000 dead voters. At the ellipse, he said over 8,000 ballots in Pennsylvania were cast by people whose names and dates of birth match individuals who died in 2020 and prior to the election. He talked about 14,000 out-of-state voters in Pennsylvania. He said to the people in Dalton, quote, 14,000 ballots illegally cast by out-of-state voters. And at the ellipse, he said, over 14,000 ballots were cast by out of state voters. So these are voters that don't live in this state. 400,000 absentee ballots appearing after the election. He told the folks of Dalton, Georgia, quote, there's an unexplained 400,000 vote discrepancy between the number of mail in

ballots in Pennsylvania sent out reported on November 2nd, 2020, and the number reported on November 4th. They can't explain it. 400,000 previously unreported mail-in ballots magically appeared. They couldn't explain it. And all of a sudden, they just happened to find 400,000. That's a lot of people. At the ellipse, he said, quote, the day before the election, the state of Pennsylvania reported the number of absentee ballots that had been sent out, yet the number was suddenly and drastically increased by 400,000 people. It was increased, nobody knows where it came from, by 400,000 ballots one day after the election. And he also said of Pennsylvania that tens of thousands of ballots were received back before they were

mailed out. He told the people of Dalton, quote, 55,000 ballots received back before they were even sent. And he told the people at the ellipse and more than 60,000 ballots in Pennsylvania were reported received back. They got back before they were ever supposedly mailed out. In other words, you got the ballot back before you mailed it, which is also logically and logistically impossible, right? And then in Wisconsin, he said hundreds of illegal drop boxes were used.

He told the people of Dalton, quote, in Wisconsin, over 90,000 ballots were illegally harvested, can't do that, not allowed to, through so-called human drop boxes, and over 500 illegal unmanned drop boxes were put out statewide. And he told the people at the Ellipse that, quote, in Wisconsin, corrupt Democrat-run cities deployed more than 500 illegal, unmanned, unsecured drop boxes, which collected a minimum of 91,000 unlawful votes. And finally, he said about Wisconsin that 170,000 invalid absentee votes were counted.

He told the people at Dalton, quote, over 170,000 absentee votes were counted that are blatantly illegal under Wisconsin law and should never have been included in the tally. At the ellipse, he said, quote, over 170,000 absentee ballots were counted in Wisconsin without a valid absentee ballot application. So they had a vote, but they had no application, and that's illegal in Wisconsin. The defendant's language throughout the speech was that of a candidate focused on his reelection. He claimed he would not concede, that he received more votes

than he had four years earlier, that the election was over by 10 PM on election night, and that he wanted to go back eight weeks to fix the election results. Significantly, he made many of these statements at the beginning of the speech, framing the themes for the rest of the speech. In addition, although countless federal and state and local races were also on the

same ballots as the defendant on election day, including those of every sinning member of the House of Representatives, even those on whom the defendant was counting to object at the congressional proceeding, the defendant focused only on his own race, the election for president, and only on allegations favoring him as a candidate in targeted states he lost. He claimed his own race, the election for president, and only on allegations favoring him as a candidate in targeted states he lost. He claimed his, quote, election victory was, quote, stolen, and that he would not concede, and that, quote, with only three of the seven states in question,

we win the presidency of the United States, unquote. He framed the claims of election fraud in terms of his own election and the margin of victory in his own race, and he spoke to his political supporters using the pronoun we showing that he was speaking not to all citizens, but only to his own voters. And finally, the defendant repeatedly aimed accusations of Biden, his principal opponent in the election contest, as would a candidate. All right, we'll be back to talk about the tweets in evidence. Stay with us. All right, welcome back.

We've gone over the speeches. Let's go over the tweets. One of the tools the defendant used for partisan political advantage and in furtherance of charged conspiracies was his personal Twitter account. He used his Twitter account to undermine public confidence in the electoral system, spread false claims of election fraud, attack those speaking the truth that the defendant had lost the election, exhorts supporters to travel to Washington for the certification proceeding, and marshal his supporters' anger at and

pressure on Mike Pence. As described below, an objective analysis of content, form, and context establishes that the select tweets that the government intends to offer at trial were unofficial. As an initial matter, the defendant sent or directed the sending of all tweets and retweets from atrealDonaldTrump, the personal Twitter account that the defendant started long before assuming the presidency. The defendant began tweeting from atrealreal Donald Trump in May of 2009. Throughout his campaign for the presidency in 2016, the defendant used this Twitter account for electioneering purposes.

He even announced the selection of Pence as his vice presidential nominee over Twitter. Since the end of his term in office, the defendant again has used the account for private purposes. During his presidential term, the defendant sometimes used the at real Donald Trump account to tweet about official business, including regarding COVID relief and vaccines, legislation in Congress and executive branch business. But he also regularly used the account to post on unambiguously private matters. For example, when he posted a picture of himself golfing with Jack Nicklaus and Tiger Woods at the Trump National Golf Club in Jupiter, Florida, and retweeted a Trump organization

post about the Trump New York Hotel being, quote, named the number one best hotel in the world, unquote. The Supreme Court's decision in Linke v. Freed confirms that a public official's personal social media account can be used for both personal and public business and consistent with the Trump immunity decision 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 Blosingame, the DC Circuit rejected the

defendant's contention that any and all of the president's communications are immune official acts whenever they involve a matter of public concern. The DC Circuit recognized that, quote, the integrity of the 2020 election, unquote, 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, for re-election, rather than in his official capacity as president, it was unofficial speech, not shielded by immunity. Thus, when a court consults context and content

to inform the official act inquiry, a claim that all tweets concerning election integrity were official must fail. An analysis of the at-real Donald Trump account during the time period of the charged conspiracies demonstrates that the defendant frequently used the account to advance his unofficial objectives as candidate. Of the more than 1200 tweets, the vast majority were related to the 2020 presidential election. For example, he announced over Twitter that Rudy Giuliani and others

were taking over his campaign legal team, and he repeatedly used the platform to espouse false claims of election fraud and promote political rallies on his behalf. Dan Scavino, the defendant's deputy chief of staff and the only person other than the defendant with control over the at real Donald Trump Twitter account, acknowledged that he sometimes consulted with campaign personnel about material he was going to post on the account, that he worked as a volunteer for the defendant's campaign at the same time that he served as deputy chief of staff and that he did not differentiate between his official and campaign duties and

when he would send tweets on the account for campaign purposes as a campaign volunteer. A review of the defendant's official at POTUS 45 account presents a relevant contrast. The defendant used this institutional account primarily to retweet other accounts like the atrealDonaldTrump account as well as the at White House account. There were 74 tweets from at POTUS 45 during the charged conspiracies. None of them include the defendant's election related claims or his election challenges. The last four tweets in the account, which the government cites here to show context, were retweets of tweets from at real Donald Trump regarding January 6th. These include two tweets that the defendant issued on the afternoon of January 6th,

purportedly asking individuals to support law enforcement and stay peaceful. Notably, the at POTUS 45 account archive does not include the defendant's Twitter pressure campaign against Pence, such as the 2 24 p.m. tweet on January 6th. Below, the government analyzes the content, form, and context of various categories of the defendant's tweets. All of these categories consist of unofficial tweets. Tweets as a candidate casting doubt on election integrity. As described in section one, the defendant attempted to discourage mail-in voting and

undermine confidence in the election results to prepare to declare victory even if he lost. Just as his public statements casting doubt on the election were unofficial, so too were the analogous tweets that the defendant posted in his capacity as a candidate. The context of these tweets confirms this conclusion. The defendant issued the tweets in advance of election day in the midst of his campaign for reelection. Furthermore, he made them while his own campaign advisors were warning him that Biden supporters

were much more likely to use mail-in voting, the very method the defendant attempted to discourage. In addition, the tweet's content further reinforces their private nature. They show the defendant taking a partisan electioneering position on an issue, rather than proposing any official measures to address a problem that the defendant claimed existed. Tweets Making False C of election fraud. The superseding indictment alleges that the defendant repeatedly and widely disseminated false claims of election fraud. One of the ways he did so was by tweet, constantly, day in and day out. Examples of the kinds of tweets

the government intends to use at trial are set forth throughout Section 1, in which the defendant falsely claimed victory and outcome-determinative election fraud in targeted states. These kinds of tweets all shared common internal characteristics that established their unofficial nature. The defendant used the language of a candidate when he spoke in terms of his personal electoral victory, quote, I win or quote, we win. He divided his audience between personal allies who supported his election challenges and enemies who did not dismissing the latter as rhinos, shorthand for Republicans in name

only, or quote quote the Democrats. And he focused only on fraud claims that would affect his own election and was fixated on his own margin of victory. Quote far more votes than are necessary to win unquote. Next section, tweets and retweets attacking those speaking the truth about the election. On multiple occasions, the defendant issued a tweet or retweeted an agent's tweet in order to attack individuals who had spoken out publicly to defend the integrity of the 2020 presidential election and reassure the public that there had not been outcome-determinative fraud. These instances include, on November 11th, the defendant attacked Philadelphia City Commissioner Schmidt after he dispelled fraud claims in a television interview that

the defendant saw. On November 29th, the defendant issued a tweet attacking Chris Krebs when he appeared on 60 Minutes. On December 6th, the defendant retweeted a post by his agent Christina Bob attacking Arizona House Speaker Rusty Bowers for a public announcement that the defendant had not presented Arizona legislators with any evidence of outcome-determinative fraud and that the Arizona legislature could not overturn the election results based on unsupported theories of fraud. Again on December 6th, the defendant retweeted a post by his agent, Bernie Carrick, labeling four Republican state legislators cowards after they issued a public announcement that they could not overturn the popular vote and appoint their own electors. And on December 21st, the defendant attacked Wisconsin Supreme Court Justice Hagadorn for

ruling against him. Now we're going to go through each one of those instances, but first we have to take a quick break. Stick around. We'll be right back. All right, everybody. Welcome back. Let's go over these individual tweets.

First one, Al Schmidt. After Schmidt, then a Philadelphia city commissioner, gave a television interview on November 11th and made clear he had not seen evidence of fraud there, the defendant issued a tweet attacking Schmidt in partisan terms. The defendant called Schmidt a quote, so-called Republican, rhino, and finished the tweet with, we win. In so doing, the defendant was acting as a candidate frustrated that a member of his political party refused to perpetuate the lies the defendant was promoting to advance his personal political interests.

Let's talk about Chris Krebs. On November 29th, when 60 Minutes aired an interview with Krebs, formerly the CISA director, defending the integrity of the election, the defendant tweeted an attack on the television program and Dominion voting systems, and claimed that the 2020 election was quote, probably our least secure ever. These complaints about Dominion and mail-in ballots echoed others, which the defendant was making regularly as a candidate only in states in which he had lost the election. He also issued the tweet between two other tweets in which he was speaking as a candidate. 30 minutes before the Chris Krebs tweet, the defendant used at real Donald Trump to discuss campaign litigation. Specifically, he wrote, quote, we have some big things happening in our various litigations on the election hoax.

Everybody knows it was rigged. They know Biden didn't get more votes from the black community than Obama and certainly didn't get 80 million votes. Look what happened in Detroit, Philadelphia plus. And within 20 minutes of the Chris Krebs tweet, the defendant issued another tweet about 60 minutes, this time asking whether the quote, fake news program was paying attention to a tweet that the defendant then linked by Mike Flynn, then a private citizen who in turn was publicizing what he characterized as a campaign litigation victory on the defendant's behalf by co-conspirator Sydney Powell in

litigation in Georgia. The defendant's tweet regarding the 60 Minutes program and Chris Krebs was unofficial. The campaign litigation-focused tweets surrounding it demonstrates that the us, whom the defendant claims 60 Minutes never consulted, was the defendant's campaign, not his administration. Rusty Bowers. In the early morning hours on December 6th, upon returning from a campaign speech in Valdosta, Georgia, the defendant retweeted a December 4th tweet from Christina Bob, who was working with the campaign and Boris Epstein to overturn the election results, attacking Arizona House Speaker Rusty Bowers,

after Bowers released a public statement that he had not seen any evidence of election fraud and could not take action to overturn the election results in Arizona. Just four minutes earlier, the defendant had written, thank you, Christina Bob, while retweeting another one of Christina's tweets that read, quote, President Trump is back on the campaign trail today. America is the best country on earth and at real Donald Trump is the greatest president. On the same day, December 6th, the defendant also retweeted a tweet by Bernie Kerrick, an agent of the defendant who was working closely with Rudy Giuliani. Bernie Kerrick, his tweet attacked four Pennsylvania legislators who, like Rusty

Bowers, had issued public statements that they could not overturn the valid election results. The defendant retweeted Carrick's post without comment. Both of the defendants' retweets on December 6th were unofficial. At the time, both Christina Bob and Bernie Carrick were, at a minimum, private agents of the defendant who were working to overturn the election results in his favor. Bob and Carrick's original tweets were in service of that objective. They were attempting to pressure state officials to take extra legal actions to replace their state's duly ascertained electors with the defendants' fraudulent ones. The defendants' reposting of these private tweets was similarly private. Brian Hagadorn On December 21st, when Wisconsin's governor signed a certificate of final determination

confirming that Biden had won the state based on the resolution by the Wisconsin Supreme Court of a lawsuit in Biden's favor, the defendant took to Twitter to attack Justice Hagadorn, who had written the majority opinion that ruled against him. The defendant claimed falsely that he had endorsed Hagedorn in his election for the Wisconsin Supreme Court and implied the endorsement had caused Hagedorn to win his election. The defendant then encouraged Republicans in Wisconsin to go to their state legislators and overturn this ridiculous state election. We won in a landslide. The entire context of the defendant's tweet about Hagedorn, including his fictitious endorsement of Hagedorn, his encouragement

of Wisconsin Republicans to lobby their legislators, and his claim that we won demonstrates the tweet as a whole was partisan, personal, and unofficial. Doug Ducey and Brian Kemp and Secretary of State Ravensburger. Throughout the post-election period, the defendant used his status and power as the head of a political party to bring political pressure to bear on fellow Republicans, including Arizona Governor Doug Ducey, Georgia Governor Brian Kemp, and Georgia Secretary of State Brad Ravensburger. In the tweets, the defendant assailed the three elected officials because they refused to take extra legal actions to benefit him personally, suggested that they would suffer

politically if they did not do as he asked, and repeatedly suggested that they were rhinos and not real Republicans. The defendant launched these public attacks both, quote, as a candidate for office and as a party leader and thus were unofficial. Tweets exhorting individuals traveling to Washington DC for the Save America Rally. Beginning on December 19th and continuing through early January, the defendant used at real Donald Trump to promote the private campaign style ellipse rally at which he spoke on the morning of January 6th.

Indeed, some of the defendant's tweets from this account were retweeted and amplified by the defendant's campaign Twitter account. The defendant's multiple tweets of this topic included his initial message that there would quote be a big protest in DC on January 6th, be there, will be wild. In turn, that tweet linked to a document drafted by Pete Navarro that had nothing to do with Navarro's official duties as the White House trade advisor, but rather constituted unofficial political activity by a campaign volunteer who the Office of Special Counsel already had determined to have violated the Hatch Act on numerous occasions by attacking the defendant's opponent during the lead-up

to the 2020 presidential election. For the reasons described that make clear the ellipse rally was a private event and the defendant's remarks they are unofficial, his tweets as candidate promoting the event are unofficial. Tweets regarding Pence's role on January 6th. As the defendant set his sights on using Pence's role as president of the Senate to overturn the election results at the January 6th certification proceeding, concurrent with his direct efforts to pressure Pence, the defendant began to issue tweets falsely claiming that Pence could use his ministerial position to benefit the

defendant as a candidate. For instance, on December 23rd, the defendant retweeted a tweet by a campaign surrogate named Ivan Raiklin, who had posted a facially fake White House memorandum titled Operation Pence Card, which falsely claimed that Pence could unilaterally disqualify legitimate electors. The defendant issued similar tweets as the certification grew closer, including posting on January 5th that, quote, the vice president has the power to reject fraudulently chosen electors, unquote. And twice on the morning of January 6th, before his speech at the ellipse rally, the defendant

tweeted again about Pence. First at 1 a.m., the defendant wrote, quote, if Vice President Pence comes through for us, we will win the presidency. Many states want to decertify the mistake they made in certifying incorrect and even fraudulent numbers in a process not approved by their state legislatures, which it must be. Mike can send it back." He again focused on Pence's role in the certification at 817 a.m. when he wrote, quote, states want to correct their votes, which they now know were based on irregularities and fraud. Plus corrupt

process never received legislative approval. All Mike Pence has to do is send them back to the states and we win. Do it, Mike. This is a time for extreme courage." The context and content of these tweets established that they were unofficial. Through the tweets, the defendant was using the political pressure of his supporters and social media followers to convince Pence to take an action to benefit the defendant as a candidate and help him overturn the result of an election. As discussed, the defendant played no official role in the congressional certification proceeding and was not using his tweets about Pence's role to advance any executive branch or governmental interest. Likewise, the defendant had no role in whether state legislatures might take action

regarding their own electoral slates, though his claim that these legislatures were poised to do so was also false. And the defendant's language throughout the tweets is that of a candidate seeking to win an election, including stating to his political supporters that if Pence, quote, comes through for us, we will win the presidency, unquote. And quote, all Mike Pence has to do is send them back to the states and we win, unquote. 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 retweeted the quote, Operation Pence Card tweet on December 23rd, 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 6th. When he tweeted on January 5th that Pence had the power to reject fraudulent electors, Pence already told him many times that he didn't have the power, including as recently as the day before.

And in the early morning hours of January 6th, 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. The defendant's 2.24 PM tweet on January 6th. The defendant's 2.24 PM tweet aimed at the Vice President was unofficial. The defendant personally posted the tweet on the afternoon of January 6th at a point when he already

understood that the Capitol had been breached, writing, quote, 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." The defendant's actions and knowledge in the hours leading up to this tweet provide helpful context. First, the evening before on January 5th, the defendant had dictated a tweet to Dan Scavino as he listened to the angry crowd gathered outside the White House. That tweet shows that the defendant understood that his gathering supporters who were angry and believed his false claims that the election had been stolen were a powder keg. At 5.05 p.m., he

tweeted, quote, Washington is being inundated with people who don't want to see an election victory stolen by an emboldened radical left Democrat. Our country has had enough. They won't take it anymore. We hear you and love you from the Oval Office. Make America great again. Thereafter, the defendant continued to fixate on preventing the certification proceeding. As described above, he tweeted about it at 1 a.m. on January 6th and again at 8 17 a.m. After the 8 17 a.m. tweet, the defendant worked on his remarks for the ellipse and planned to include language explicitly putting pressure on Pence regarding

the certification until advisors prevailed on him not to. At 11 15 a.m. the defendant called Pence and tried one last ditch effort to convince him to fraudulently reject or return Biden's legitimate electors. Pence was resolute and unmoved, and the defendant was furious. Immediately after the call, the defendant directed that the original language targeting Pence be reinserted in his prepared remarks for the ellipse rally. The defendant then went to the ellipse and delivered a falsehood-laden speech to his angry supporters. He purposely singled out Pence by claiming Pence had the power to overturn the election

results and, though the defendant stood at the podium with full knowledge that Pence would not do so, gave the crowd false hope that Pence might exercise that power. The defendant told the crowd to act, stating we can't let it happen, and then directed his supporters, who were angry and motivated by his speech, to march to the Capitol. Instead of marching with his supporters as he said he would, the defendant returned to the White House. He went to the dining room next to the Oval Office and began to watch television coverage of the events at the Capitol. Although the government does not intend to use at trial evidence of the defendant's discussions with White House staff during this time period,

it provides necessary context. When news broke that rioters had breached the Capitol, the defendant's advisors, including Pat Cipollone, Deputy White House Counsel Philbin, and Hirshman, urged the defendant to issue calming messages and make efforts to stop the riot. The defendant refused, responding that people at the Capitol were angry because the election had been stolen. Eventually, all of the defendant's staffers left him alone in the dining room. Fox News continued to report on the growing crisis at the Capitol. It was at that point alone, watching the news in real time, and with knowledge that rioters had breached the Capitol building, that the defendant issued the 2.24 p.m. tweet attacking Pence for refusing the defendants and treaties to join the conspiracy and help overturn the

results of the election. One minute later, the Secret Service was forced to evacuate Pence to a secure location in the Capitol. This was roughly 90 minutes after Pence had announced publicly that he would not act unlawfully to overturn the election. The certification proceeding was underway, and the first breach of the Capitol building had occurred minutes before at 2.12 p.m. At that point, the defendant's only hope to disrupt the certification proceeding and retain

power was through his angry supporters. The defendant further revealed the private nature of his desperate conduct as a candidate rather than a president, and in exchange that the government does not plan to use at trial that he had with Nick Luna shortly after the 2.24 p.m. tweet. Upon receiving a phone call alerting him that Pence had been taken to a secure location, Nick Luna rushed to the dining room to inform the defendant in hopes that the defendant would take action to ensure Pence's safety. Instead, after Nick Luna delivered the news, the defendant looked at him and said only, so what? The

private unofficial nature of the 2.24 PM tweet contrasts with two other tweets the defendant sent during the following hour and a video message he sent two hours later and which the government does not intend to introduce at trial. Only after advisors had again urged the defendant to calm matters at the Capitol. The defendant at 238 posted, quote, please support our Capitol police and law enforcement. They are truly on the side of our country. Stay peaceful, unquote. As the violence at the Capitol nonetheless escalated, the defendant at 313 posted, quote, I am asking for everyone at the US Capitol to remain peaceful. No violence. Remember, we are the party of law and order.

Respect the law and our great men and women in blue. Thank you." And after those tweets failed to disperse the rioters and after still more demands from his staff that he do more to stop the riot, the defendant at 417 PM tweeted a video message in which he finally asked those at the Capitol, whom he described as very special people that he loved, to leave the Capitol while also claiming, quote, that we had an election that was stolen from us. He sent a tweet at 6.01 p.m. that conveyed a similar sentiment, quote, these are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots

who have been badly and unfairly treated for so long, go home with love and in peace and remember this day forever. The defendant at least has an argument, though he issued the 2.38 p.m. and 3.13 p.m. tweets only after being harangued by his staff, while he adamantly refused to do anything at all, that he was addressing a matter of public safety as president. Likewise, in the 417 p.m. message, the defendant, while still focused on his election loss, asked rioters to evacuate the breached Capitol and foreshadowed the sentiment in his 6.01 p.m. tweet when he said, go home with love

and in peace. By contrast, the 2 24 p.m. tweet, the defendant focused solely on the vice president's role in the certification of the presidential election results, a matter of intense personal concern to the defendant as a candidate for office. Even assuming that the topic constituted a matter of public concern, the defendant's 2.24 p.m. tweet reflected a speech made, quote, in an unofficial private capacity as office seeker, not an official capacity as office holder. Given all this context, the 2.24 p.m. tweet was unofficial. When the defendant sent it, he knew that what he had asked Pence to do and that he claimed would protect our country and constitution was contrary to the Electoral Count Act, that no state was poised to certify a corrected state of

facts, that a large crowd of his political supporters had gathered in Washington at his urging, that these supporters were angry and believed his false claims that the election had been stolen, that he had called them to action through his ellipse speech in which he told them that Pence might still do as he wished and directed these supporters to march to the Capitol, and that his supporters had done so and had breached the Capitol building. The defendant also knew what his advisors were forcefully urging him to do as president, issue a message to quell the emergency at the Capitol. Instead, the defendant refused repeatedly until his advisors gave up and left him alone in the dining room.

It was then that the defendant issued the 2.24 p.m. tweet as a candidate communicating to his angry supporters that Pence had let him and them down. The content of the 2.24 p.m. tweet was not a message sent to address a matter of public concern and ease and unrest. It was the message of an angry candidate upon the realization that he would lose power. And unlike the defendants later tweets that day, the defendant was not asking the individuals at the Capitol to remain peaceful, leave the building, or go home. All right, everybody, we'll be back tomorrow and we'll talk about how other public statements

that the defendant Donald Trump made are not subject to immunity. Thanks for listening to the Jack podcast and thanks for listening to our audio reading of the immunity brief by special counsel. We'll see you tomorrow. MSW Media.