Jack - Reading the Annotated Immunity Brief | Part 2

Episode Date: October 8, 2024

Sit back and enjoy smooth legal writing of Jack Smith as read by Allison Gill.This is episode 2 of 3 –The Michigan Pressure CampaignThank 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! Welcome to Jack, the podcast about all things special counsel. My name is Alison Gill, and this is part two of the audio version of Jack Smith's immunity brief. We are still in section one, the factual proffer, and today we're going to go over Trump's pressure campaign on state officials in Michigan, which begins on page 31. Michigan.

On November 20th, three days before Michigan's governor signed a certificate of ascertainment appointing Biden's electors based on the popular vote, the defendant met with Shirky and Chatfield, Michigan Senate Majority Leader and Speaker of the House, at the Oval Office. The defendant initiated the meeting by asking RNC Chairwoman Ronna McDaniel to reach out to Chatfield and gauge his receptivity to a meeting. The defendant also asked McDaniel to participate in the meeting, but McDaniel told him that she had consulted with her lawyer and she couldn't be involved in a meeting with legislators because it could be perceived as lobbying.

After Ronna McDaniel made the first contact on November 18th, the defendant reached out to Shirky and Chatfield to extend an invitation. The same day that he contacted Shirky and Chatfield, the defendant issued a false tweet, quote, in Detroit, there are far more votes than people. Nothing can be done to cure that giant scam. I win Michigan, unquote. When the defendant called Shirky and Chatfield to invite them to the White House, he did not provide the topic of the meeting, but did ask about allegations of fraud in the election in Michigan. The legislators told him that they and the Michigan legislature were examining the allegations. Both Shirky and Chatfield assumed the defendant wanted to see them to discuss claims of election

fraud and they wanted to be firm that they had not seen the evidence that would change the outcome of the election. For this reason, and to avoid talking only about election fraud, they actually prepared materials to raise regarding COVID-19 and planned in advance to release a statement after the meeting was over that said the legislators were unaware of information that would change the outcome of the election. Over the course of the meeting, the defendant dialed in both Ronna McDaniel, despite her request not to participate, and Rudy Giuliani and Mark Meadows were present for some, but not all of the meeting.

After some small talk with the legislators in the Oval Office, the defendant raised various fraud claims, including that he had lost Michigan because of fraud or misconduct in Wayne County, where Detroit is located. Shirky corrected the defendant and told him that he had lost primarily because in two routinely Republican counties, Trump had underperformed with educated females. And if he had received the same number of votes there as the two winning local sheriffs, he likely would have won Michigan. Shirky could tell by the defendant's body language that he was not happy to hear that assessment. Notably, the defendant only raised language that he was not happy to hear that assessment.

Notably, the defendant only raised fraud claims to the extent they affected the outcome of his own race, not for those other offices in Michigan. Rudy Giuliani's participation came after the legislators assured the defendant that they were looking into fraud claims. The defendant dialed Giuliani into the meeting and said, Giuliani, tell them what's going on. Rudy then launched into a fraud monologue. Finally, Shirky interrupted and asked, so when are you going to file a lawsuit in Michigan?

A question that Rudy Giuliani ignored and did not answer. Immediately after the meeting, Shirky and Schaffield released that public statement in which they had stated they had not yet been made aware of any information that would change the outcome of the election in Michigan. On November 21st, the defendant acknowledged Shirky and Chatfield's statement when he tweeted, this is true, but much different than reported by the media and implicitly conceded that he had not provided evidence of fraud when he added, quote, we will show massive and unprecedented fraud. Days later, the defendant's campaign declined to request a statewide recount in Michigan for which it would have had to

pay unless the recount succeeded in changing the outcome of the election. Despite failing to establish any valid fraud claims, Giuliani followed up with Shirky and Chatfield and attempted to pressure them to use Michigan legislature to overturn the valid election results. On December 4th, Giuliani sent a message to Chatfield claiming that Georgia was poised to do so based on Rudy and Eastman's false advocacy there in December 3rd hearings and asked Chatfield for help, quote, looks like Georgia may well hold some factual hearings and change the certification under Article 2, Section 1, Clause 2 of the Constitution. As Eastman explained, they don't

just have the right to do it, but the obligation helped me get this done in Michigan. On December 7th, Giuliani attempted to send Shirky a message, though it failed because he typed in the wrong number, quote, so I need you to pass a joint resolution from the Michigan legislature that states that quote, the election is in dispute, unquote. There's an ongoing investigation by the legislature and quote, the electors sent by Governor Whitmer are not the official electors of the state of Michigan and do not fall within the safe harbor deadline of December 8th under Michigan law. Campaign operative Mike Roman was involved in the drafting of this message with the assistance of a Michigan campaign associate who was associated with the defendant's campaign.

The following day, Rudy Giuliani shared the draft with the defendant, sending it to his executive assistant by email. These efforts failed. On December 14th, the day that duly appointed electors across the country meet and cast their electoral votes, Shirky and Chatfield issued public statements confirming that the defendant had lost Michigan and the legislators still had not received evidence of outcome determinative fraud in their state. Shirky's public statement included, quote, we have not received evidence of fraud on

a scale that would change the outcome of the election in Michigan. Chatfield stated in part, quote, we've diligently examined these reports of fraud to the best of our ability. I fought hard for President Trump. Nobody wanted him to win more than me. I think he's done an incredible job, but I love our republic too. I can't fathom risking our norms, traditions and institutions to pass a resolution retroactively changing the electors for Trump, simply because some think there might have been enough widespread fraud to give them the win.

That's unprecedented and for good reason. And that's why there is not enough support in the House to cast a new slate of electors. I fear we'd lose our country forever. This truly would bring mutually assured destruction for every future election in regards to the electoral college and I can't stand for that. I won't. On January 3rd, the defendants campaign publicly posted Shirky's phone number and attempted to post chat fields, but aired by one digit in a tweet urging, quote,

contact Speaker Chatfield and Senate Majority Leader Shirky. Shirky received 4,000 text messages in two hours, forcing him to get a new phone number. Nevada. On November 17th, in Law v. Whitmer, agents of the defendant in Nevada filed suit claiming, quote, substantial irregularities, improprieties, and fraud in the presidential election, including based on machines used in ballot signature matching and votes by nonresidents and dead voters. The defendant approved a press conference by his surrogates announcing the suit. On November 19th, Reamer, the RNC chief counsel, that's the lawyer for the Republican National Committee, sent an email to an RNC spokesperson warning

about inaccuracies in the lawsuit. Quote, just FYI, I don't believe the claims in the contest regarding dead voters. Those voting from out of state, et cetera, are substantiated. We're working with the campaign on data matching projects, and those numbers are going to be a lot lower than what the Nevada people have come up with. They're also targeting our military voters. To be frank, the contest has little chance of succeeding. Happy to discuss this stuff if you want more info.

That spokesperson then sent a copy of Reamer's email from a personal email account to the personal account of another one of the defendant's White House staffers who also volunteered for the campaign. Notwithstanding the RNC chief counsel's warning, the defendant retweeted and amplified news of the lawsuit on November 24th, calling it big news that a Nevada court had agreed to hear it. But the defendant did not similarly promote the fact that within two weeks on December

4th, the Nevada District Court dismissed the lawsuit, Law v. Whitmer, finding in a detailed opinion that, quote, there is no credible or reliable evidence that the 2020 general election in Nevada was affected by fraud, including through the signature match machines, and that Biden had won the election in the state. Four days later on December 8th, Nevada Supreme Court unanimously affirmed that decision, noting that despite, quote, its earlier order asking appellates to identify specific findings in which they take issue, appellants have not pointed to any unsupported factual findings and we have identified none. Later in his ellipse speech on January 6th,

the defendant repeated multiple claims explicitly rejected by Nevada courts. On December 18th, the Nevada Secretary of State's office released, quote, Facts v. Myths, a document to combat disinformation that the defendant and others were propagating about the election, including false claims that the Secretary of State's office had not investigated claims of fraud, even though it had, quote, been presented with evidence of widespread fraud, unquote, to which the office responded, quote, while we are pursuing action in a number of isolated cases, we have yet to see any evidence of widespread fraud. The Facts v. Myths document also stated publicly that the courts had universally rejected fraud

claims. Quote, four separate cases were heard by Nevada judges, including the Nevada Supreme Court. After examining records presented, each case was discounted due to lack of evidence, unquote. Pennsylvania. Two days after the election, on November 6th, the defendant called Thomas, the chairman of the Pennsylvania Republican Party, the chairman of the Pennsylvania Republican Party, the entity responsible for supporting Republican candidates in the Commonwealth at the federal, state and local level.

Thomas had prior relationships with the defendant, including having represented him in litigation in Pennsylvania after the 2016 presidential election. The defendant asked Thomas how, without fraud, he had gone from winning Pennsylvania on election day to trailing in the days afterward. Consistent with what campaign staff had already told the defendant, Thomas confirmed that it was not fraud. It was that there were roughly 1.75 million mail-in ballots still being counted in Pennsylvania, which were expected to be 80% for Biden.

Over the following two months, the defendant spread false claims of fraud in Pennsylvania anyway. In early November, in a campaign meeting where the defendant suggested that more people in Pennsylvania voted than had checked in to vote, deputy campaign manager Justin Clark corrected him. And around that same time, Philadelphia City Commissioner Schmidt appeared on television and stated there was no evidence of widespread fraud in Philadelphia. After seeing the interview, the defendant targeted Schmidt tweeting, quote, a guy named Schmidt, a Philadelphia commissioner and so-called Republican rhino is being used big time by

the fake news media to explain how honest things were with respect to the election in Philadelphia. He refuses to look at the mountain of corruption and dishonesty. We win." As a result of the defendant's attack, threats that Schmidt already was receiving became more targeted and detailed and included his address and the names of his family members. On the defendant's behalf, Rudy Giuliani too spread patently false claims about Pennsylvania. On November 25th, Rudy and Jenna Ellis attended an unofficial hearing with Republican state legislators in Gettysburg Hotel conference rooms. The defendant called in, claimed to have been watching, and demanded that the election in Pennsylvania, quote,

had to be turned around. During the event, Rudy Giuliani falsely stated that Pennsylvania issued 1.8 million absentee ballots and received 2.5 million in return. That claim was rooted in an obvious error. The comparison of the number of ballots sent out in the primary election to the number of ballots received in the general election. After seeing Rudy Giuliani make this claim, Reemer, the RNC chief counsel, tweeted publicly, this is not true. In the following days, the campaign staff internally confirmed that Rudy Giuliani was lying when one campaign staffer wrote in an email that Rudy's claim was just wrong and quote

there'd be no way to defend it. Justin Clark responded, we've been saying this for a while, it's very frustrating. to defend it. Justin Clark responded, we've been saying this for a while. It's very frustrating. Likewise, in late November or December, Hirschman informed the defendant directly that the claim Rudy was spreading that Pennsylvania received 700,000 more mail-in ballots that were mailed out was bullshit and explained the error. Reamer followed up on his public tweet in a private email on November 28th to an RNC spokesperson expressing his concern about Rudy and Ellis and their spread of disinformation. Quote, I'm really not trying to give you a hard time, but what Giuliani and Ellis are

doing is a joke and they're getting laughed out of court. It's setting us back in our fight for election integrity and they're misleading millions of people who have wishful thinking that the president is going to somehow win this thing." When Rudy learned of Reamer's tweet and email on November 28th, he called Reamer and left a threatening voicemail. I really do need an explanation for what you said today because if there isn't a good one, you should resign. Got it? So call me or I'll call the boss and get you to resign. Call me. It'd be better for you if you do." Unquote. Giuliani also contacted Ronna McDaniel to demand that Reamer be fired. And thereafter, Reamer was relieved of his duties as the RNC chief counsel.

On December 3rd, four Republican leaders of the Pennsylvania legislature issued a public letter stating that the General Assembly lacked the authority to overturn the popular vote and appoint its own slate of electors and that doing so would violate the state election code and the constitution. Bernie Carrick, an agent of the defendant who worked closely with Rudy Giuliani, issued a tweet showing the four legislators' names and signatures and wrote, these are the four cowardest Pennsylvania legislators that intend to allow the Democrat machine to steal the vote. Cowards, liars, traitors. While linking, by the way, to the legislators' Twitter accounts. On Sunday, December 6th at 1256 in the morning, from the White House residence, having just

returned from a political rally in Valdosta, Georgia, the defendant retweeted an amplified Carrick's post. All right. That wraps up the section on Pennsylvania. We'll be right back with the Wisconsin pressure campaign on the top of page 41. Stick around. We'll be right back. Wisconsin On November 29th, a recount that the defendant's

campaign had petitioned and paid for confirmed that Biden had won in Wisconsin and increased the defendant's margin had petitioned and paid for, confirmed that Biden had won in Wisconsin and increased the defendant's margin of defeat. On December 14th, the Wisconsin Supreme Court rejected the campaign's election lawsuit there. And as a result, on December 21st, Wisconsin's governor signed a certificate and final determination confirming the prior certificate of ascertainment that established Biden's electors as the valid electors for the state. In response, the defendant issued a series of tweets attacking Brian Hagadorn, the Wisconsin Supreme Court justice who had written the majority opinion, rejecting his campaign's lawsuit and advocating that the Wisconsin legislature overturn the valid election results. Quote, two years ago,

the great people of Wisconsin asked me to endorse a man named Hagedorn for state Supreme Court justice when he was getting destroyed in the polls against a tough Democrat candidate who had no chance of losing. After my endorsement, Hagedorn easily won. Wow, he just voted against me in a big court decision on voter fraud, of which there was much, despite many pages of dissent from three highly respected justices. One thing has nothing to do with another, but we ended up losing four to three in a really incorrect ruling. Great Republicans in Wisconsin should take these three strong decisions to their state legislators and overturn this ridiculous state election. We won in

a landslide." After that tweet, the state marshals responsible for Hagedorn's safety arranged to provide him with additional police protection based on social media traffic and other threatening communications. Voting Machines in Multiple States. Throughout the post-election period, the defendant and co-conspirators repeatedly made claims about the security and accuracy of voting machines across multiple states, despite the fact that they were on notice that the claims were false. As early as November 12th, for instance, the National Association of Secretaries of State, the National Association of State Election Directors, and other coordinated federal,

state, and private entities issued a public statement declaring the 2020 election was quote the most secure in American history unquote, and that there was quote, no evidence that any voting system deleted or lost votes changed votes or was in any way compromised unquote. On November 14th, in a tweet announcing that Rudy Giuliani was to lead his campaign legal efforts, the defendant also named Sidney Powell, a private attorney who was fixated on voting machine claims and Joe DiGenova, another private attorney. Two days later on November 16th, on the defendant's behalf, executive assistant Molly Michael sent Sydney Powell, another private attorney, an email titled From POTUS Attaching a Document

Containing Bullet Points Critical of Dominion, a company that manufactured voting machines used in certain states and writing quote, see attached, please include as is or almost as is in lawsuit. Powell responded nine minutes later writing quote, it must go in all suits in Georgia and Pennsylvania immediately with a fraud claim that requires the entire election to be set aside in those states and machines impounded for nonpartisan professional inspection, in all caps." On November 17th, Chris Krebs, the director of the DHS Department of Homeland Security's Cybersecurity and Infrastructure Security Agency, CISA, publicly tweeted that a group of private election security experts concluded that claims of computer based election fraud, quote, either have been unsubstantiated or are technically incoherent,

unquote. Two days later, November 19th, Rudy Giuliani, Sidney Powell, and Joe DiGenova and others held a press conference at the RNC headquarters on behalf of the defendant in his campaign. During it, Sidney Powell made false and factually impossible claims regarding Dominion and the integrity of the county's election infrastructure. That night, Fox News television personality Tucker Carlson stated on air that because of Sidney Powell's incendiary comments about voting machines, he had invited her on the television program.

He further stated, quote, but she never sent us any evidence despite a lot of requests, polite requests, not a page. When we kept pressing, she got angry and told us to stop contacting her. When we checked with others around the Trump campaign, people in positions of authority, they told us Powell has never given them any evidence either. She never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another, not one." The defendant saw his private attorney's RNC press conference and Tucker Carlson's discussion of Powell, and he acknowledged to Jason Miller that Sidney Powell had appeared unhinged in

the press conference. On November 20th, the day after the press conference, the defendant made a similar comment to a White House staffer and volunteer, and Dan Scavino, who volunteered for his campaign. In a casual conversation, after another meeting had ended, the defendant told another White House staffer and volunteer Scavino that Tucker Carlson had, quote, eviscerated or destroyed Sidney Powell. The defendant then had a chat and a call with Sidney Powell on speakerphone while the White House staffer in Scavino listened in and mentioned the Tucker Carlson segment to Sidney Powell. While Powell responded, the defendant placed the call on mute and to the staffer and Scavino

mocked and laughed at her calling her crazy and made reference to the science fiction series Star Trek when describing her allegations. In the same time period when Hirschman told the defendant that Sidney Powell's claims were unreliable and should not be included in lawsuits, the defendant agreed that he had not seen anything to substantiate Sidney Powell's allegations. On November 22nd, notwithstanding the defendant's tweet from eight days prior announcing Sidney Powell's involvement, Giuliani issued a statement on behalf of the campaign distancing the defendant from Sidney Powell.

Sidney Powell is practicing law on her own. She is not a member of the Trump legal team. She is also not a lawyer for the president in her personal capacity." Unquote. Nonetheless, the defendant continued to support and publicize Powell's knowingly false claims. For example, within days of Rudy Giuliani's statement, the defendant promoted a lawsuit that Sidney Powell was about to file, tweeting on November 24th, quote, breaking news, Sidney Powell says her lawsuit in Georgia could be filed as soon as tomorrow and says there's

no way there was anything but widespread election fraud. MAGA, America First, hashtag Dobbs. Powell filed a lawsuit the next day against the governor of Georgia, falsely alleging massive election fraud accomplished through dominion election software and hardware. The defendant again promoted the lawsuit in a tweet and the lawsuit was later dismissed within two weeks on December 7th. On November 29th, Chris Krebs, who was no longer the CISA director, appeared on 60 Minutes. Krebs stated that he was confident that the election had been secure and that there was no manipulation of the vote on the machine count side.

In response, the defendant tweeted publicly about Krebs' appearance, quote, at 60 Minutes never asked us for a comment about their ridiculous one-sided story on election security, which is an international joke. Our 2020 election, from poorly rated dominion to a country flooded with unaccounted for mail and ballots, was probably our least secure ever. A few days later, Joe DiGenova appeared on a radio program as the defendant's agent and said that because of Chris Krebs comments to promote confidence in the security of the election infrastructure, Krebs quote, should be drawn and quartered, taken out at dawn and shot unquote. Thereafter, Krebs was subjected to death threats. In a press conference on December 1st that the defendant acknowledged watching, Gabriel Sterling, the Georgia election official, decried Joe

DiGenova and the defendant's public statements spreading disinformation and said that if they didn't stop, quote, someone is going to get killed. On December 1st, Attorney General Bill Barr stated publicly that the DOJ had not seen evidence of fraud sufficient to change the election results. With respect to voting machines, he said, quote, there's been one assertion that would be systemic fraud, and that would be the claim that machines were programmed essentially to skew the election results. And the DHS and DOJ have looked into that. And so far, we haven't seen anything to substantiate that. Rudy Giuliani and Jenna Ellis immediately issued a formal campaign statement attacking Bil Barr in the Justice Department, writing, quote, with all due respect to the attorney general,

there hasn't been any semblance of a Department of Justice investigation. His opinion appears to be without any knowledge or investigation of the substantial irregularities and evidence of systemic fraud, unquote. In mid-December, the defendant spoke with the RNC chairwoman, Ronna McDaniel, and asked her to publicize and promote a private report that had been released on December 13th that purported to identify flaws in the use of Dominion machines in Antrim County, Michigan. McDaniel refused, telling Trump that she already had discussed the report with Chatfield, Michigan's Speaker of the House, who told her the report was inaccurate. McDaniel conveyed to the defendant Chatfield's House, who told her the report was inaccurate. McDaniel

conveyed to the defendant Chatfield's exact assessment, quote, the report was fucking nuts, unquote. On January 2nd, during the defendant's call with Georgia Secretary of State Raffensperger, he said of false claims regarding voting machines, quote, I don't believe that you are really questioning the Dominion machines because we did a hand retally, a 100% retally of all the ballots and compared them to what the machines said they came up with and we came up with virtually the same result. Then we did the recount and we got virtually the same result. So I guess we can probably take that off the table. In response, the defendant falsely claimed that, quote, in other states, we think we found tremendous corruption with Dominion machines, but we'll have to see, unquote.

At the ellipse on January 6th, the defendant and co-conspirators who spoke at the rally continued to make unsubstantiated and false claims about Sidney Powell's voting machines. Rudy Giuliani claimed that in the US Senate runoff election in Georgia the day before, quote, the votes were deliberately changed by the same algorithm that was used in cheating President Trump and Vice President Pence. John Eastman continued the false attack saying we know because we caught it live last time in real time, how the machines contributed to that fraud. They put those ballots in a secret folder and the machines sitting there waiting until they know how many they needed. And then the machine, after the close of the polls, we now know who's voted and we know who hasn't. And I

can now in that machine match those unvoted ballots with an unvoted voter and put them together in the machine. We saw it happen in real time last night and it happened on November 3rd as well. In his own speech, the defendant raised the false specter of the highly troubling matter of Dominion voting systems and lied about machines flipping votes from the defendant to Biden as an astronomical and astounding error rate in the machine's ballot scanning. Everybody will be right back with more. Stick around. The defendant organized and caused his electors to submit fraudulent certificates creating the false

appearance that states submitted competing electoral slates. By late November 2020 every effort both legitimate and illegitimate, that the defendant had made to challenge the results of the election had been unsuccessful. The defendant, his campaign, and their allies had lost or withdrawn one election lawsuit after another in the seven targeted states. And the defendant and co-conspirators' efforts to overturn the legitimate vote count through a pressure campaign on state officials and through false claims made directly to state legislatures in formal or pseudo hearings continued to fail.

So in early December, the defendant and his co-conspirators developed a new plan regarding the targeted states that the defendant had lost. And this was to organize the people who would have served as the defendant's electors had he won the popular vote and caused them to sign and send to Mike Pence as president of the Senate certifications in which they falsely represented themselves as legitimate electors who had cast their electoral votes for the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulent electoral votes

mere pieces of paper without the lawful imprimatur of state or executive power to falsely claim that in his ministerial role presiding over the January 6th certification, Pence had the authority to choose the fraudulent slates over the legitimate ones or to send the purportedly dueling slates to the state legislatures for consideration anew. The fraudulent elector plan arc and obstructive purpose is reflected in a series of memoranda drafted in late November and early December by Kenneth Chesbrough, an attorney who volunteered to assist the defendant's campaign in lawsuits challenging the election in Wisconsin.

Beginning with a memorandum drafted November 18th, Chesbrough advocated that the defendant's electoral nominees in Wisconsin meet and cast votes on the date required by the Electoral Count Act, December 14th, in the event that an ongoing recount in the state reversed the defendant's loss there. But this course of action, which Chesbrough's Wisconsin memorandum presented as a contingency plan to preserve the possibility that the defendant's electors' votes be counted at the January 6th certification proceeding if he prevailed in the Wisconsin litigation and won the state, quickly transformed into a corrupt strategy to overturn the legitimate election results. Chesbro revealed this obstructive plan in two additional memoranda dated December 6th

and December 9th, which proposed that the defendant's elector nominees in six of the targeted states, all but New Mexico, a state the defendant lost by more than 10% of the popular vote, sparsely referenced in his false claims of voter fraud and did not envision challenging the inception of the elector scheme, that they meet on December 14th, sign fraudulent certificates, and send them to the vice president to manufacture a fake controversy during the January 6th congressional certification. The defendant personally set the fraudulent electoral plan in motion in early December,

ensured that it was carried out by co-conspirators and campaign agents in targeted states, and monitored its progress. By December 5th, the defendant was starting to think about Congress's role in the election process for the first time. He mentioned to Pence the possibility of challenging the election results in the House of Representatives. In that same call, Pence told the defendant that the Georgia Bureau of Investigation was investigating their race. On December 6th, the same day that Chesbro put the plan on paper, the defendant and John Eastman called Ronna McDaniel, the RNC chairwoman, out of the blue. McDaniel didn't

know John Eastman and the defendant introduced him to McDaniel by saying he was a professor and a lawyer. Thereafter, Eastman was the primary speaker during the conversation. Eastman told Ronna McDaniel that he and the defendant wanted the RNC, quote, to help the campaign assemble the electors in the states where we have legal challenges or litigation that's ongoing in case any of that litigation changed the result of the state so that it would meet the constitutional requirements of electors. When the call ended, McDaniel immediately called Clark, one of the defendant's deputy campaign managers, Justin Clark, and relayed her conversation with the defendant and Eastman. After Justin Clark assured Ron and McDaniel the campaign was on it, McDaniel called the

defendant back and told him so. On the same day, from his personal email account, Mark Meadows forwarded to campaign staff Ken Shesbrough's November 18th memorandum and wrote, we just need to have someone coordinating the electors for states. The following day, the evening of December 7th, Rudy Giuliani texted Rhonda McDaniel stating, I have lawyers assigned in each state working on December 14th electors meetings and what they need and I'll send you a list. The defendants co-conspirators worked with his campaign staff and used his pre-election

campaign apparatus to execute the fraudulent elector plan. The defendant communicated with Rudy Giuliani and John Eastman about the plan and they in turn communicated with Boris Epstein and John Eastman about the plan, and they in turn communicated with Boris Epstein and Ken Chesbrough. Ultimately, Mike Roman and Christina Bob and other campaign staff and agents helped carry out Chesbrough's plans. On December 8th, Chesbrough spoke on the phone with Willenschick, a private attorney who Rudy and Epstein had identified as a contact for the plan in Arizona. Following the call, Will and Chuck recounted the conversation in an email, quote, I just

talked to the gentleman who did that memo, Chesbro. His idea is basically that all of us, Georgia, Wisconsin, Arizona, Pennsylvania, et cetera, we all have our electors send in their votes, even though the votes aren't legal under federal law, because they're not signed by the governor. But we send them in so the members of Congress can fight about whether they should be counted on January 6th. They could potentially argue that they're not bound by federal law because they're Congress

and make the law, et cetera. Kind of wild and creative, happy to discuss. My comment to him is that I guess there's no harm in it, legally maybe, i.e. we would just want to be sending in fake elector votes to Pence so that someone in Congress can make an objection when they start counting the votes and start arguing that the fake votes should be counted." On December 9th, Boris Epstein contacted Ronna McDaniel for assistance with a request from Ken Chesbrough for, quote, a list of our electors in each state and copies of the certificates sent in four years ago.

McDaniel responded that campaign employees were already assisting in the effort and referred Epstein to Justin Clark. The next day, at Rudy Giuliani's direction, Ken Chesbrough generated directions to the electors in all of the targeted states except Wisconsin, which had already received his memos, and New Mexico, which he had not yet been asked to do, on how to best mimic the manner in which valid electors were required by state law to gather and vote, along with fraudulent certificates of vote for the defendant's electors to sign. The day before the defendant's electors were scheduled to meet and sign fraudulent certificates of vote for the defendant's electors to sign.

The day before the defendant's electors were scheduled to meet and sign fraudulent certificates of vote, the defendant asked campaign advisor Jason Miller for an update on the elector plan and directed Miller to issue a statement. And Rudy Giuliani asked Miller to participate in messaging on a conference call. Miller discussed these developments in a text thread with Justin Clark and a campaign staffer and Hirshman. After Miller proposed a communications plan for the campaign on the electoral vote, Hirshman wrote to Justin Clark, quote, I'll call soon and we'll talk with the boss. The participants then discussed

to whom a campaign statement could be attributed. Justin Clark wrote, here's the thing, the way this has morphed, it's a crazy play, so I don't know who wants to put their name on it, unquote. Miller then shared with those on the text thread, the invitees to the call that Rudy was convening, Rudy Giuliani, Boris Epstein, Jenna Ellis, Christina Bob, and a couple of other campaign lawyers, they all derogatorily referred to them as the Star Wars bar, meaning a motley assortment of characters, and in this case, specifically ones whose professional competence Jason Miller doubted and whom he personally would not choose to hire. Hirschman responded, certifying illegal

votes. Thereafter, the text participants collectively agreed no message would go out under their names because they can't stand by it. And in the midst of these text messages, Hirschman, Miller, and Clark had 19 minute phone calls with the defendant. In practice, the fraudulent electoral plan played out somewhat differently in each targeted state. In general, the co-conspirators deceived the defendant's electoral nominees in the same way that the defendant and Eastman deceived Ron and McDaniel by falsely claiming that their electoral votes would be used only if ongoing litigations were resolved in the defendant's favor. A select few of the defendant's agents and electoral

nominees, however, had insight into the ultimate plan to use the fraudulent elector certificates to disrupt the congressional certification on January 6th. In several states, the defendant, his co-conspirators and agents were unable to convince all of the defendant's electoral nominees to participate. Marino, for instance, a former US representative and US attorney and one of the defendant's elector nominees in Pennsylvania, who opted out of the plan, told the state party vice chair trying to organize the defendants' electors that he would not participate because the plan didn't follow the proper process and was illegal. When electors like Moreno declined, the conspirators and agents had to recruit

substitutes willing to go along with the plan. Other electors who participated based on the conspirators false assurances that the votes were only a contingency were later surprised to learn that they were used on January 6th and would not have agreed to participate if the conspirators had been truthful about their plan. In Pennsylvania, the defendants' electoral nominees' concern about the propriety of the plan, presented a problem for the conspirators. In a text message that Mike Roman and Boris Epstein exchanged on December 11th into the early morning hours of December 12th, Roman told Epstein that Thomas, the state Republican party chairman, whom the defendant had called

shortly after the election, quote, is winding up the electors, telling them if they sign the petition, they could be prosecuted, need a counter argument or someone has to call them and tell them to stop. Boris Epstein responded, quote, have someone who knows him call them and tell them to stop. Roman replied, that's the plan. Pennsylvania is squishy right now. Going to need a call with Rudy tomorrow." On December 12th, Rudy, Chesbro, and Epstein and others held a conference call organized by the campaign to placate the defendant's Pennsylvania electors. Rudy falsely assured them that their certificates of vote would be used only if the defendant succeeded in litigation. During the call, some of the defendant's conspirators and agents exchanged text messages expressing frustration at the electors' concerns.

Mike Roman wrote, quote, whoever selected this slate should be shot. Ellis responded, quote, these people are making this so much more complicated than it needs to be, OMG. We couldn't have found 20 people better than this. Mike Roman agreed, writing, we need good substitutes. When the possibility arose that the elector certificates of vote include conditional language, making clear they were not yet the duly appointed electors, Mike

Roman wrote, quote, the other states are signing what Chesbro prepared prepared, if it gets out we change the language for Pennsylvania, it could snowball. On December 13th, the eve of when the electors were to meet, the defendant was preoccupied with preventing the certification of the electoral vote. He tweeted, quote, swing states that have found massive voter fraud, which is all of them, cannot legally certify these votes as complete and correct without committing a severely punishable crime. Everybody knows that dead people, below-age people, illegal immigrants, fake signatures, prisoners, and many others voted illegally. Also machine glitches, another word for fraud, ballot harvesting, non-resident voters, fake ballots, stuffing

the ballot box, votes for pay, roughed up Republican poll watchers, and sometimes even more votes than people voting took place in Detroit, Philadelphia, Milwaukee, Atlanta, Pittsburgh, and elsewhere. In all swing states, there are far more votes than necessary to win the state and the election itself. Therefore, votes cannot be certified. This election is under protest." Ultimately, the Pennsylvania electors insisted upon conditional language in their electoral certificates to avoid falsely certifying that they were duly appointed electors. And in New Mexico, the

state that Chesbrough's memoranda did not even address, the defendant's campaign filed a pretextual lawsuit just minutes before the fraudulent electors met so that there was litigation pending at the time of the vote. Notwithstanding obstacles, the defendant and his co-conspirators successfully organized his elector nominees and substitutes to gather on December 14th in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulent votes to Washington, D.C. in order to falsely claim at the congressional certification that certain states had sent competing slates of electors.

When possible, the defendant and co-conspirators tried to have fake electoral votes appear to be in compliance with state law governing how legitimate electors vote. For example, the co-conspirators knew that some states required that duly appointed electors meet and cast their votes in the state Capitol building. To make it seem like they had complied with this requirement, state officials were enlisted to provide the fraudulent electors with access to the state capitol building so they could gather and vote there. In many cases however, the conspirators and fraudulent electors were unable to comply with state law for legitimate electors. For example, Pennsylvania law required the governor to give notice

when an elector was substituted, but the conspirators couldn't arrange for the governor to give notice when Thomas and others opted out and had to be replaced. Therefore, Chesbro and others brainstormed fake excuses for their failure to follow state law, writing, quote, maybe we can use COVID-19 as an excuse for the governor not giving notice, unquote. Then on December 14th, the date that duly appointed electors across the country meet to cast their votes and when the defendants fraudulent electors in seven states mimicked them, Ronna McDaniel followed up with Trump. When she received an internal RNC email titled Electors Recap Final, which summarized the day's activities with respect to electors and included a list of six contested states in which the defendants electors voted, she forwarded it to the defendant's executive assistant,

Molly Michael, who responded, it is in front of him, unquote. Ronna McDaniel also called the defendant to tell him she had sent him the update and she spoke to Rudy Giuliani shortly before Giuliani spoke to the defendant. At the same time, the defendant's fraudulent electors were preparing to gather and cast fraudulent votes, the defendant's co-conspirators began planning how to use the fraudulent votes to overturn the election results at the January 6 certification. On December 13, Chesbrough sent Rudy a memorandum that envisioned a scenario in which Pence would use the fraudulent slates as a pretext

to claim there were dueling slates of electors from the targeted states and negotiate a solution to defeat Biden. On the same day, the defendant resumed almost daily direct contact with Steve Bannon, who maintained a podcast that disseminated the defendant's false fraud claims. On December 14th, Bannon's podcast focused on spreading lies about the defendant's fraudulent electors, including the false claim that their votes were merely a contingency in the event of a defendant winning the legal challenges in the targeted states. On December 16th, Chesbro traveled to Washington with a group of private attorneys who had done work for the defendant's campaign in Wisconsin for a photo op with the defendant

in the Oval Office. During the encounter, the defendant complained about Wisconsin Supreme Court Justice Hagadorn, who two days earlier had cast the deciding vote in rejecting Trump's election challenge in the state. As the group was leaving, the defendant spoke directly and privately to Ken Chesbrough. As late as early January, the conspirators attempted to keep the full nature of the fraudulent electoral plan a secret. On January 3rd, for instance, in a private text message exchange, Boris Epstein wrote to Ken Chesbrough, careful with your texts on text groups. No reason to text things about electors to anyone but

John Eastman and me." Chesbrough responded, K. Then Epstein followed up, I'm probably a bit paranoid, haha. And Chesbrough wrote, a valuable trait. Everybody will be right back with more, stick around. The defendant attempted to persuade Pence to reject votes cast by duly appointed electors and choose the defendant's fraudulent ones. As the defendant's various attempts to target the states failed and the January 6th Congressional Certification approached, the defendant and co-conspirators turned their attention to Pence who as president of the Senate presided over the certification proceeding.

In service of a new plan to enlist Pence to use his role to fraudulently alter the election results at the January 6th certification proceeding, the defendant and his co-conspirators again used deceit. They lied to Pence, telling him that there was substantial election fraud and concealing their orchestration of their plan to manufacture fraudulent elector slates, as well as their intention to use the fake slates to attempt to obstruct the congressional certification. And they lied to the public, falsely claiming that Pence had the authority during the certification proceeding to reject electoral votes, send them back to the states, or overturn the election,

and that Pence agreed he had these boundless powers. With these lies, the defendant created the tinderbox that he purposely ignited on January 6th. The defendant first publicly turned his sights toward January 6th in the early morning hours of December 19th. At 1.42 a.m., the defendant posted on Twitter a copy of a report falsely alleging fraud and wrote, quote, statistically impossible to have lost the 2020 election. Big protest in DC on January 6th. Be there.

We'll be wild, unquote. When Chesbro learned about the tweet, he sent a link about it to another one of Wisconsin's attorneys who had met with the defendant in the Oval Office on December 16th and said, wow, based on three days ago, I think we have unique understanding of this. Later on December 19th, the defendant called Pence and told him of plans for a rally on January 6th and said he thought it would be a big day and good to have lots of their supporters in town. The defendant and his co-conspirators recognized that Pence, by virtue of his ministerial role

presiding over the January 6th Congressional Certification, would need to be a key part of their plan to obstruct the certification proceeding. On December 23rd, in a memorandum drafted with Chesbrough's assistance, John Eastman outlined a plan for Pence to quote gavel in the defendant as the winner of the election based on the false claim that quote seven states have transmitted dual slates of electors to the president of the Senate and proposed that Pence announced that because of the ongoing disputes in the seven states there are no electors that can be deemed validly appointed in those states. John Eastman emphasized concealment, writing that quote, the main thing here was that Pence act without asking for permission, either

from a vote of the joint session or from the court, unquote. The Eastman memorandum stood in stark contrast to concessions he had previously made about the vice president's lack of authority in the certification proceeding. Two months earlier, on October 11th, he had written to a colleague that neither the Constitution nor the Electoral Count Act provided the vice president with discretion on the counting of electoral votes or permitted him to make the determination on his own. And just one day earlier, on December 22, when asked by other private attorneys to provide

views on a draft complaint that would, if filed, have raised the issue of the vice president's authority on January 6, John Eastman recommended that the complaint not be filed. He wrote, quote, the risk of getting a court ruling that Pence has no authority to reject the Biden certified ballots is very high, unquote. On the evening of December 23rd, after Giuliani shared Eastman and Chesbrough's plan with Donald Trump, Trump publicly retweeted a document called Operation Pence Card, which like John Eastman's memorandum, advocated that Pence block the lawful certification of legitimate electoral votes. Also on December 23rd, John Eastman emailed Molly Michael asking to speak

to the defendant to update him on our overall strategic thinking. The following day, December 24th, the defendant called John Eastman and they spoke for 40 minutes. Then on December 25th, Ken Chesbrough proposed in a text message to Eastman and Epstein that Pence permit an unlimited filibuster of the certification in violation of the Electoral Account Act and ultimately gavel in the defendant as president. When John Eastman asked, is Pence really likely to be on board with this, Boris Epstein said, let's keep this off text for now. From that point on, the conspirators plotted to manipulate Mike Pence. Rudy Giuliani, John Eastman, Boris Epstein, and Steve Bannon worked in concert to enlist Pence to act unlawfully

and to ratchet up public pressure from the defendant's supporters that he do so. The defendant began to directly and repeatedly pressure Pence at the same time he continued summoning his supporters to a mass in D.C. on the day of the congressional certification. On December 25th, when Pence called the defendant to wish him a Merry Christmas, the defendant raised the certification and told Pence that he had discretion in his role as president of the Senate Pence emphatically responded. You know, I don't think I have the authority to change the outcome The next day the defendant tweeted never give up. See everyone in DC on January 6th He also tweeted false fraud claims.

Time for Republican senators to step up and fight for the presidency like the Democrats would if they had actually won. The proof is irrefutable. Massive late night mail-in ballot drops in swing states, stuffing the ballot boxes on video. Double voters, dead voters, fake signatures, illegal immigrant voters, banned Republican vote watchers,

more votes than actual voters. Check out Detroit and Philadelphia, and much more. The numbers are far greater than what is necessary to win the individual swing states and cannot even be contested. Courts are bad. The FBI and justice didn't do their job. And the United States election system looks like that of a third world country. Freedom of the press has been gone for a long time. It is fake news. And now we have big tech with Section 230 to deal with. But when it is all over and this period of time becomes just another ugly chapter in our country's history, we will win." On December 28th, Eastman, Chesbrough and Epstein exchanged text messages in which Eastman expressed concern that the Gohmert v. Pence lawsuit, a lawsuit filed the day

before that asserted Pence had discretion to choose electoral votes during the certification proceeding, would prompt a federal court to publicly reject and thus preclude the plan that the conspirators were advancing in private. Thereafter, at 11 a.m. on January 1st, the defendant called Pence to berate him because he had learned that Pence had filed a brief opposing the relief sought in the Gohmert lawsuit. When Pence explained, as he had before, that he did not believe he had the power under the Constitution to decide which votes to accept. The defendant told him that hundreds of thousands of people are going to hate your guts and people are going to think you're stupid and berated him pointedly. You're too honest.

Immediately before the call, the defendant had spoken separately to Giuliani from 10.06 to 10.14 a.m. and Steve Bannon from 10.36 am. to 1046 a.m. and late that afternoon the defendant spoke separately with Steve Bannon, John Eastman and Rudy Giuliani. Within hours of the call with Pence, the defendant reminded supporters to travel to Washington for the certification proceeding tweeting, the big protest rally in Washington D.C. will take place at 11 a.m. January 6th. Location details to follow stop the steal. The next day on January 2nd, Giuliani, Eastman and Epstein appeared on Steve Bannon's podcast. When Bannon asked whether the January 6th certification would be a climactic battle,

John Eastman responded, a lot of that depends on the courage and the spine of the individuals involved. The defendant spoke to Rudy Giuliani shortly after his appearance on the podcast. That afternoon, Epstein worked to arrange a meeting among the defendant, John Eastman and Mike Pence, in order to enlist Pence to misuse his role as the president of the Senate at the certification proceeding. When Boris Epstein texted Steve Bannon about the meeting, Bannon, who had just finished a phone call with Trump, reiterated that Trump wanted Pence briefed by John Eastman immediately. Thereafter the defendant called Pence, informing him they had spent the day speaking to the Secretary of State, state legislators, and members of Congress.

As described up top in page 29 through 31. The defendant spoke with Raffensperger that same day. On that call with Pence, Trump said he learned that a US Senator was going to propose a 10-day delay in the certification proceeding and told Pence, you can make the decision to delay the count for 10 days. The defendant then referred Pence to John Eastman for the first time and asked if Pence would meet with him. On January 3rd, the defendant told Pence again that at the certification proceeding, Pence had the absolute right to reject electoral votes and the ability to overturn the election. Pence responded that he had no such authority and that a federal appeals court had rejected

a lawsuit making that claim the previous day. Then the defendant took to Twitter to again falsely claim that fraud had permeated the election. Quote, sorry, but the number of votes in swing states that we are talking about is very large and totally outcome determinative. Only Democrats and some rhinos would dare dispute this, even though they know it's true. The same day Eastman circulated a second memorandum that included a new plan under which violation of the ECA, the president would send the elector-slates to the state legislators to determine which slate to count. The meeting that Boris Epstein had organized

so that the defendant and John Eastman could enlist Pence to reject Biden's legitimate electoral votes was scheduled late in the afternoon on January 4th. In advance of the meeting, Giuliani, Eastman, Epstein, and Steve Bannon gathered at the Willard Hotel near the White House, and from there Rudy Giuliani called and spoke with Trump. When Eastman arrived at the White House for the meeting, Hirschman confronted him about the legal basis of his proposal. Hirschman went line by line through the Eastman memo, and Eastman conceded that no court would support it. In response, Hirshman warned Eastman

that pressing his admittedly unlawful plan would cause riots in the streets. Hirshman then spoke to Trump, telling him that the theory that Eastman and others were promoting would not work, and that Eastman had acknowledged that it was not going to work. The defendant responded, other people disagree, but did not identify those other people. Hirschman also pointed out to the defendant that Eastman's theory regarding a strategic democratic plan to subvert the election was inconsistent with other allegations that had

been floating around about Sidney Powell, Dominion, and foreign interference. The meeting among the defendant, Eastman, Pence, and Pence staffers, Short and Jacob, began around 4.45 p.m. No one from the defendant's White House counsel's office attended. During the meeting, the defendant asked Eastman to explain his plan to Mike Pence. Eastman presented two options. Pence could unilaterally decide objections to electors or alternatively, in the plan Eastman had devised the prior day, Pence could send the electorate's slates to the targeted state legislatures to determine which electors' votes should be counted. In the defendant's presence, in response

to Pence's questioning, John Eastman admitted that the Electoral Count Act forbade what he proposed and that no one had tested Eastman's new plan to send elector slates to state legislatures for review. Nonetheless, the defendant repeatedly expressed a preference that Pence unilaterally reject valid elector slates. Throughout that meeting, the defendant repeated his knowingly false fraud claims as a purported basis for Pence to act illegally. Pence's five pages of contemporaneous notes from the meeting reflect that the defendant said, quote, where there's fraud, the rules get changed. Bottom line,

one every state by hundreds of thousands of votes. This whole thing is up to MP. Has to do with you. You can be bold and right to do whatever you want to do. The meeting concluded with Pence, firm and clear, telling Trump, I'm not seeing this argument working. Nonetheless, the defendant requested that Pence's staff meet with John Eastman again to discuss further and Pence agreed. The conspirators were undeterred. Immediately after leaving the White House, Eastman gathered with Boris Epstein and Steve Bannon back at the Willard.

Over the days that followed, these conspirators strategized on how John Eastman could influence Pence through the vice president's counsel and normalize the unlawful plan by discussing it on Steve Bannon's podcast. Meanwhile, the defendant continued to pressure Pence publicly. For his part, immediately upon leaving the meeting with Pence, Trump traveled to Dalton, Georgia to speak at a political rally at the invitation of two US senators engaged in runoff elections there. During his speech, the defendant promoted many of the same falsehoods that he had previously been informed were untrue. He said, they're not taking the White House.

We're going to fight like hell. I'll tell you right now. And remarked, I hope Mike Pence comes through for us. I have to tell you, I hope that our great vice president comes through for us. I have to tell you I hope that our great vice president our great vice president comes through for us Of course, if he doesn't come through I won't like him quite as much unquote He also used the Dalton campaign speech As a call to action to his own supporters telling the crowd if you don't fight to save your country with everything you have You're not going to have a country left

And he demanded his supporters take action to prevent what he falsely called the outright stealing of elections, like they're trying to do with us, emphasizing we cannot let that happen. Next morning, January 5th, Trump spoke on the phone with Steve Bannon. Less than two hours later on his podcast, Bannon said in anticipation of the January 6th certification proceeding, all hell is going to break loose tomorrow. Also on the morning of January 5th, John Eastman participated in a federal court hearing in Trump v. Kemp. That's the Georgia lawsuit against Governor Kemp and Brad Raffensperger, in which Trump

had signed a false verification days earlier. John Eastman, on the defendant's behalf, asked the federal court to decertify the presidential election in Georgia and declare that the state legislature may choose the state's electors. During the hearing, the federal court denied the relief requested. Immediately following the federal court's rejection of the legal basis for the conspirators plan, John Eastman went to the meeting that the defendant had requested that Pence's staff, Jacob and Short, take place with. At the outset, Eastman changed his tack and advocated Pence just reject the Biden electors outright. That was contrary to his primary recommendation the day before for Pence to send the Slates back to the state legislatures, but consistent with the preference

that Trump had expressed. John Eastman made additional concessions during this meeting. For example, Eastman agreed Supreme Court would unanimously reject his proposed action. Consistent historical practice since the founding was that the vice president never asserted authority to reject electors. No reasonable person would want the Constitution read that way because the office would never switch political parties. No state legislature appeared poised to try to change its electors. And if Democrats were to claim the same authority, Eastman would not credit it. Jacob expressed to Eastman that the

defendant's plan would result in a disastrous situation where the election might have to be decided in the streets. Having failed to enlist Jacob in the criminal conspiracy, Eastman told him that the team was going to be really disappointed. The team in fact was disappointed. After Eastman updated Rudy Giuliani on the meeting, Boris Epstein confirmed to Steve Bannon that the Pence lawyer, that's Jacob, was totally against us, prompting Bannon to respond, fuck him. That same day, Eastman received an email confirming what he had already admitted to Jacob. No chamber of any legislature in any state, including Arizona, Georgia, Pennsylvania, and Wisconsin, was requesting that its electoral votes be

returned to the state for review. Meanwhile, Chesbro, who traveled to DC as directed by the defendant's public messages, obtained duplicate originals of the fraudulent certificates signed by the defendant's fraudulent electors in Michigan and Wisconsin, which they believed had not been delivered by mail to the president of the Senate or the archivist. Chesbrough received these duplicates from a campaign staff and surrogates who flew them to DC at a private expense. He then hand delivered them to staffers for a U.S. representative at the Capitol as part of a plan to deliver them to Pence for use in the certification. The defendant did not leave the pressure campaign to his co-conspirators, though he redoubled

his own efforts. On January 5th at 1106, shortly before Eastman's meeting with Jacob, the defendant tweeted, the vice president has the power to reject fraudulently chosen electors and designated the defendant as the winner of the electoral college vote. That afternoon, the defendant met privately with Pence in the Oval Office. During the meeting, the defendant once again told Pence, I think you have the power to decertify. When Pence was unmoved, the defendant threatened to criticize him publicly, I'm going to have to say you did a great disservice.

This concerned Mark Short, to whom Pence had relayed the defendant's threat to the point that he alerted Pence's secret service detail. Next still, the defendant initiated a phone call with Pence, Short, Jacob, and Eastman, and one or two other private attorneys, likely including Rudy, and again raised the scenario of Pence sending the elector slates to state legislatures. Jacob again pointed out that such a strategy violated the Electoral Count Act and Pence reaffirmed he did not believe he had the authority. Shortly after the call, that evening at 543, Trump tweeted, I will be speaking at the Save America

rally tomorrow on the ellipse at 11 a.m. Arrive early, doors open at seven, big crowds. The defendant continued his pressure campaign on Pence that evening. After a New York Times article that night detailed the afternoon's private conversation in which Pence had rejected the defendant's demand to act unlawfully, the defendant directed Jason Miller to issue a statement rebutting it and approved that statement at 9.28 PM. Minutes later, the defendant called Pence and told him, you got to be tough tomorrow. After concluding the call with Pence, the defendant sequentially spoke to Steve Bannon, followed by John Eastman. Then around 10 PM.m. that night, the defendant issued a public statement, which read,

The vice president and I are in total agreement that the vice president has the power to act. A statement that the defendant knew was a lie from Pence's repeated and firm rejections of his efforts, but gave the false hope to the defendant's supporters arriving in the city at the defendant's request and maximized pressure on Pence. And that brings us up to the attack on the Capitol, which we will cover in episode three of the audio version of Jack Smith's immunity brief, which will come out tomorrow. Thanks so much for listening and we'll see you then. MSW Media. We'll see you then.