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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. DONALD J. TRUMP, Defendant. * * * * * * * * CRIMINAL NO. 23-cr-257 (TSC) GOVERNMENT'S MOTION FOR IMMUNITY DETERMINATIONS The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so. Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted—a function in which the defendant, as President, had no official role. In Trump v. United States, 144 S. Ct. 2312 (2024), the Supreme Court held that presidents are immune from prosecution for certain official conduct— including the defendant's use of the Justice Department in furtherance of his scheme, as was alleged in the original indictment—and remanded to this Court to determine whether the remaining allegations against the defendant are immunized. The answer to that question is no. This motion provides a comprehensive account of the defendant's private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none of the defendant's charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted; and requests the relief the Government seeks, which is, at bottom, this: that the Court determine that the defendant must stand trial for his private crimes as would any other citizen. Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 1 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
-2-This motion provides the framework for conducting the “necessarily factbound” immunity analysis required by the Supreme Court's remand order. Trump, 144 S. Ct. at 2340. It proceeds in four parts. Section I provides a detailed statement of the case that the Government intends to prove at trial. This includes the conduct alleged in the superseding indictment, as well as other categories of evidence that the Government intends to present in its case-in-chief. This detailed statement reflects the Supreme Court's ruling that presidential immunity contains an evidentiary component, id., which should be “addressed at the outset of a proceeding,” id. at 2334. Section II sets forth the legal principles governing claims of presidential immunity. It explains that, for each category of conduct that the Supreme Court has not yet addressed, this Court should first determine whether it was official or unofficial by analyzing the relevant “content, form, and context,” id. at 2340, to determine whether the defendant was acting in his official capacity or instead “in his capacity as a candidate for re-election. ” Blassingame v. Trump, 87 F. 4th 1, 17 (D. C. Cir. 2023). Where the defendant was acting “as office-seeker, not office-holder,” no immunity attaches. Id. (emphasis in original). For any conduct deemed official, the Court should next determine whether the presumption of immunity is rebutted, which requires the Government to show that “applying a criminal prohibition to that act would pose no 'dangers of intrusion on the authority and functions of the Executive Branch. '” Trump, 144 S. Ct. at 2331-32 (quoting Nixon v. Fitzgerald, 457 U. S. 731, 754 (1982)). Section III then applies those legal principles to the defendant's conduct and establishes that nothing the Government intends to present to the jury is protected by presidential immunity. Although the defendant's discussions with the Vice President about “their official responsibilities” qualify as official, see Trump, 144 S. Ct. at 2336, the Government rebuts the presumption of Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 2 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
-3-immunity. And all of the defendant's remaining conduct was unofficial: as content, form, and context show, the defendant was acting in his capacity as a candidate for reelection, not in his capacity as President. In the alternative, if any of this conduct were deemed official, the Government could rebut the presumption of immunity. Finally, Section IV explains the relief sought by the Government and specifies the findings the Court should make in a single order—namely, that the defendant's conduct set forth in Section I is not immunized, and that as a result, the defendant must stand trial on the superseding indictment and the Government is not prohibited at trial from using evidence of the conduct described in Section I. I. Factual Proffer When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office. With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the “targeted states”). His efforts included lying to state officials in order to induce them to ignore true vote counts; manufacturing fraudulent electoral votes in the targeted states; attempting to enlist Vice President Michael R. Pence, in his role as President of the Senate, to obstruct Congress's certification of the election by using the defendant's fraudulent electoral votes; and when all else had failed, on January 6, 2021, directing an angry crowd of supporters to the United States Capitol to obstruct the congressional certification. The throughline of these efforts was deceit: the defendant's and co-conspirators' knowingly false claims of election fraud. They used these lies in furtherance of three conspiracies: 1) a conspiracy to interfere with the federal government function by which the nation collects and counts election results, which is set forth in the Constitution and the Electoral Count Act (ECA); 2) a conspiracy to obstruct the official proceeding in which Congress certifies the legitimate results Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 3 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
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-6-claimed that mail-in ballots were inherently fraudulent, and asserted that only votes counted by election day were valid. For instance: In an interview on July 19, 2020, when asked repeatedly if he would accept the results of the election, the defendant said he would “have to see” and “it depends. ”5 On July 30, despite having voted by mail himself earlier that year, the defendant suggested that widespread mail-in voting provided cause for delaying the election, tweeting, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”6 In an interview on August 2, the defendant claimed, without any basis, that “[t]here is no way you can go through a mail-in vote without massive cheating. ”7 At a campaign event in Wisconsin on August 17, the defendant told his supporters, “[t]he only way we're going to lose this election is if the election is rigged, remember that. It's the only way we're going to lose this election, so we have to be very careful. ”8 In his acceptance speech at the Republican National Convention on August 24, the defendant said that “[t]he only way they can take this election away from us is if this is a rigged election. ”9 On October 27, during remarks regarding his campaign, the defendant said, “[i]t would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don't believe that that's by our laws. I don't believe that. So we'll see what happens. ”10The defendant said this despite—or perhaps because—his private advisors had informed him that it was unlikely that the winner of the election would be declared on November3. 5GA1968 at 37:20 (Video of Trump Interview with Chris Wallace 07/19/2020). 6See https://x. com/real Donald Trump/status/1288818160389558273 (Donald J. Trump Tweet 07/30/2020). 7See Donald Trump Interview Transcript with Jonathan Swan of Axios on HBO, Rev (Aug. 3, 2020) https://www. rev. com/blog/transcripts/donald-trump-interview-transcript-with-axios-on-hbo. 8GA 1943 at 57:33 (Video of Oshkosh Rally 08/17/2020). 9GA1951 at 22:08 (Video of RNC Speech 08/24/2020). 10GA 1927 at 3:11-3:28 (Video of Donald J. Trump Statement 10/27/2020). Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 6 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
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-16-election fraud in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin that had been publicly, or directly, debunked. 61The defendant used these lies to inflameand motivate the large and angry crowd of his supporters to march to the Capitol and disrupt the certification proceeding. 62 C. The Defendant Aimed Deceit at the Targeted States to Alter Their Ascertainment and Appointment of Electors Shortly after election day, the defendant began to target the electoral process at the state level by attempting to deceive state officials and to prevent or overturn the legitimate ascertainment and appointment of Biden's electors. As President, the defendant had no official responsibilities related to the states' administration of the election or the appointment of their electors, and instead contacted state officials in his capacity as a candidate. Tellingly, the defendant contacted only state officials who were in his political party and were his political supporters, and only in states he had lost. The defendant's attempts to use deceit to target the states' electoral process played out in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, as well as across these and other states that used certain voting machines. In addition to the following evidence of the defendant's conduct during the charged conspiracies, at trial the Government will elicit testimony from election officials from the targeted states to establish the objective falsity—and often, impossibility—of the defendant's fraud claims. Notably, although these election officials would have been the best sources of information to determine whether there was any merit to specific allegations of election fraud in their states, the defendant never contacted any of them to ask. 61GA 1126-1129, GA 1131-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021). 62GA 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021). Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 16 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
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-80-Fox News's coverage of events at the Capitol included, at about 2:12 p. m., reports of the Capitol being on lockdown and showed video footage of large crowds within the restricted area surrounding the Capitol; much of the crowd was wearing clothing and carrying flags evidencing their allegiance to the defendant. 458At about 2:20 p. m., video of crowds on the Capitol lawn and West Terrace were shown alongside a chyron stating, “CERTIFICATION VOTE PAUSED AS PROTESTS ERUPT ON CAPITOL HILL. ”459 At 2:21 p. m., an on-the-street reporter interviewed an individual marching from the Ellipse to the Capitol who claimed to have come to Washington “because President Trump told us we had something big to look forward to, and I believed that Vice President Pence was going to certify the electorial [sic] votes and, or not certify them, but I guess that's just changed, correct? And it's a very big disappointment. I think there's several hundred thousand people here who are very disappointed. But I still believe President Trump has something else left. ”460And at approximately 2:24 p. m., Fox News reported that a police officer may have been injured and that “protestors... have made their way inside the Capitol. ”461 At 2:24 p. m., Trump was alone in his dining room when he issued a Tweet attacking Pence and fueling the ongoing riot: “Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”462 That afternoon, at the Capitol, a rioter used a bullhorn to read the defendant's Tweet about the Vice President aloud to the crowd trying to gain entry to the 458 GA 1931 at 12:12 (Video of Fox News Coverage 01/06/2021). 459 GA 1931 at 20:11 (Video of Fox News Coverage 01/06/2021). 460 GA 1931 at 21:47 (Video of Fox News Coverage 01/06/2021). 461 GA 1931 at 24:05-24:17 (Video of Fox News Coverage 01/06/2021). 462 GA 946-947 (Donald J. Trump Tweet 01/06/2021); GA 546 ( ). Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 80 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
-81-building. 463 The defendant issued the incendiary Tweet about Pence despite knowing—as he would later admit in an interview in 2023—that his supporters “listen to [him] like no one else. ”464 One minute later, at 2:25 p. m., the Secret Service was forced to evacuate Pence to a secure location. 465 At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”466; “Where is Pence? Bring him out!”467; and “Traitor Pence!”468Several rioters in those chanting crowds wore hats and carried flags evidencing their allegiance to the defendant. In the years since January 6, the defendant has refused to take responsibility for putting Pence in danger, instead blaming Pence. On March 13, 2023, he said, “Had Mike Pence sent the votes back to the legislatures, they wouldn't have had a problem with Jan. 6, so in many ways you can blame him for Jan. 6. Had he sent them back to Pennsylvania, Georgia, Arizona, the states, I believe, number one, you would have had a different outcome. But I also believe you wouldn't have had 'Jan. 6' as we call it. ”469 Rioters—again, many bearing pro-Trump paraphernalia indicating their allegiance— breached the Senate chamber,470 rifled through the papers on the Senators' desks,471and stood on the dais where Pence had been presiding just minutes earlier. 472 On the House side, rioters watched 463 GA 1922 (Video of Capitol Riot 01/06/2021). 464 GA 1693 (Transcript of CNN Town Hall 05/10/2023). 465 GA 1944 (Video of Pence Evacuation 01/06/2021). 466 GA 1914 (Video of Capitol Riot 01/06/2021). 467 GA 1911 (Video of Capitol Riot 01/06/2021). 468 GA 1910 (Video of Capitol Riot 01/06/2021). 469 Isaac Arnsdorf and Maeve Reston, Trump claims violence he inspired on Jan. 6 was Pence's fault, Wash. Post, (Mar. 13, 2023, 8:09 p. m. ), https://www. washingtonpost. com/politics/2023/03/13/trump-pence-iowa/. 470 GA 1956 (Video of Senate Gallery Doors CCTV 01/06/2021). 471 GA 1955 at 16:20 (Video of Senate Floor 01/06/2021). 472 GA 1955 at 29:15 (Video of Senate Floor 01/06/2021). Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 81 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
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-86-which the President has no immunity. Id. at 2327, 2331-32. With respect to the first category of core official conduct, when the President's authority to act is “'conclusive and preclusive,'” Congress may not regulate his actions, and the President has absolute immunity from criminal prosecution. Id. at 2327 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 638 (1952) (Jackson, J., concurring)). Applying those principles to the original indictment, the Supreme Court concluded that the defendant is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials” and his “threatened removal of the Acting Attorney General. ” Id. at 2335. The superseding indictment omits those allegations, and the Supreme Court did not find that any other conduct alleged in the original indictment implicated “conclusive and preclusive” presidential authority. See id. at 2335-40. The threshold question here, then, is whether the defendant can carry his burden to establish that his acts were official and thus subject to presumptive immunity. Id. at 2332; see Dennis v. Sparks, 449 U. S. 24, 29 (1980) (noting that for immunity doctrines, “the burden is on the official claiming immunity to demonstrate his entitlement”). Official conduct includes acts taken within the “'outer perimeter' of the President's official responsibilities, covering actions so long as they are 'not manifestly or palpably beyond [his] authority. '” Trump, 144 S. Ct. at 2333 (quoting Blassingame, 87 F. 4th at 13). But consistent with the D. C. Circuit's opinion in Blassingame, the Supreme Court suggested that a President who speaks “as a candidate for office or party leader”— as the defendant did here—does not act in his official, presidential capacity. Id. at 2340. As the D. C. Circuit explained, a President acting as a “candidate for re-election” is, to that extent, not carrying out an official responsibility. Blassingame, 87 F. 4th at 17; accord id. at 5 (“When a sitting President running for re-election speaks in a campaign ad or in accepting his political party's nomination at the party convention, he typically speaks on matters of public concern. Yet he does Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 86 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
-87-so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity. ”) (emphasis in original). To assess whether a presidential action constitutes an “official” act, courts must apply an “objective analysis” that focuses on the “'content, form, and context'” of the conduct in question. Trump, 144 S. Ct. at 2340 (quoting Snyder v. Phelps, 562 U. S. 443, 453 (2011)). A President's motives for undertaking the conduct and the fact that the conduct is alleged to have violated a generally applicable law are not relevant considerations. Id. at 2333-34. If a President's actions constitute non-core official presidential conduct, he is at least presumptively immune from criminal prosecution for that conduct. 144 S. Ct. at 2328, 2331; id. at 2332 (reserving whether “this immunity is presumptive or absolute... [b]ecause we need not decide that question today”). The Government can overcome that presumptive immunity by demonstrating that “applying a criminal prohibition to that act would pose no 'dangers of intrusion on the authority and functions of the Executive Branch. '” Id. at 2331-32 (quoting Fitzgerald, 457 U. S. at 754). Just as the inquiry into whether conduct is official or unofficial is “necessarily factbound,” Trump, 144 S. Ct. at 2340, with “[t]he necessary analysis [being]... fact specific,” id. at 2339, so too should be the inquiry into whether any “presumption of immunity is rebutted under the circumstances,” id. at 2337. The analysis should first identify the specific alleged act at issue, and then determine whether criminal liability for the act intrudes on a relevant Executive Branch authority or function, taking care not to “conceive[] of the inquiry at too high a level of generality. ” Banneker Ventures, LLC v. Graham, 798 F. 3d 1119, 1141 (D. C. Cir. 2015) (reversing district court in civil immunity case). Such an approach recognizes that Executive authority has limits—boundaries imposed by constitutional text, the separation of powers, and precedent—and that application of criminal law to the President's official conduct does not per seintrude Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 87 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
-88-impermissibly on Executive Branch authority and functions. Cf. Trump, 144 S. Ct. at 2327 (“If the President claims authority to act but in fact exercises mere 'individual will' and 'authority without law,' the courts may say so. ”) (quoting Youngstown, 343 U. S. at 655 (Jackson, J., concurring)). These principles for assessing whether the conduct alleged in the superseding indictment is immune apply equally to evidence. The Government may not introduce evidence of immunized official conduct against a former President at a trial, even to prove that the former President committed a crime predicated on unofficial conduct. Id. at 2340-41. III. None of the Allegations or Evidence Is Protected by Presidential Immunity At its core, the defendant's scheme was a private one; he extensively used private actors and his Campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office. To the limited extent that the superseding indictment and proffered evidence reflect official conduct, however, the Government can rebut the presumption of immunity because relying on that conduct in this prosecution will not pose adanger of intrusion on the authority or functions of the Executive Branch. Below, the Government categorizes the conduct outlined in Section I and provides “content, form, and context” for this Court to determine that the defendant's conduct was private or that, in the alternative, any presumptive immunity is rebutted “under the circumstances. ” Trump, 144 S. Ct. at 2337. This analysis is necessarily fact-intensive, and all of the Government's analysis below is based on the unique facts and circumstances of this case. This section first addresses the defendant's interactions with Pence, because in Trump, the Supreme Court held that when the defendant conversed with Pence about “their official responsibilities,” the conduct was official. 144 S. Ct. at 2336. Accordingly, the Government explains below why any presumptive immunity as to the defendant's official conduct regarding Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 88 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
-89-Pence is rebutted. Other than the specific official conduct related to Pence that the Supreme Court held to be official, none of the defendant's other actions were official. This section categorizes that conduct and provides the “content, form, and context” that establishes its unofficial nature. These categories are: a) the defendant's interactions, as a candidate, with state officials; b) the defendant's efforts, as a candidate, to organize fraudulent electors; c) the defendant's public speeches, Tweets, and other public statements as a candidate; d) the defendant's interactions, as a candidate, with White House staff; and e) other evidence of the defendant's knowledge and intent. Lastly, even if these categories of conduct and evidence were to be deemed official, the Government can rebut the attendant presumption of immunity as described below. A. The Defendant's Interactions with Pence The only conduct alleged in the original indictment that the Supreme Court held was official, and subject to at least a rebuttable presumption of immunity, was the defendant's attempts to lie to and pressure Vice President Pence to misuse his role as President of the Senate at the congressional certification. The Supreme Court stated that “[w]henever the President and Vice President discuss their official responsibilities, they engage in official conduct,” and further explained that because Pence's role at the certification was “a constitutional and statutory duty of the Vice President,” the defendant was “at least presumptively immune from prosecution for such conduct. ” 144 S. Ct. at 2336. Accordingly, unlike all of the other threshold determinations that the Court will have to make about whether the defendant's conduct alleged in the superseding indictment was official, with respect to the defendant's conversations with Pence about Pence's official role at the certification proceeding, the Court can skip to the second step: whether the Government can rebut the presumption of immunity that the Supreme Court held applies to such conversations. Because the Executive Branch has no role in the certification proceeding—and indeed, the President was purposely excluded from itby design—prosecuting the defendant for his Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 89 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
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-91-a rebuttable presumption of immunity, because they involved “the President and the Vice President discuss[ing] their official responsibilities. ” Id. at 2336. Those discussions qualify as official because “[p]residing over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. ” See id. at 2336; U. S. Const. Art. I, § 3, cl. 4. The discussions at issue did not pertain to Pence's role as President of the Senate writ large, however, but instead focused only on his discrete duties in presiding over the certification proceeding—a process in which the Executive Branch, by design, plays no direct role. Trump, 144 S. Ct. at 2337. A prosecution involving the defendant's efforts to influence Pence in the discharge of this particular duty, housed in the Legislative Branch, would not “pose any dangers of intrusion on the authority and functions of the Executive Branch. ” Id. The Executive Branch has no authority or function to choose the next President. Blassingame, 87 F. 4th at 17. To the contrary, the Constitution provides that the States will appoint electors to vote for the President and Vice President. U. S. Const. Art. II, § 1, cl. 2. And all States have chosen to make such appointments based on the ballots cast by the people in their respective states. See Chiafalo v. Washington, 591 U. S. 578, 581 (2020). “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes,” U. S. Const. Art. II, § 1, cl. 4, but the Executive Branch has no direct role in that process. The next step in the process established by the Constitution similarly provides no role for the Executive Branch: the House and Senate meet in joint session, with the President of the Senate present to “open all the certificates” of the state-appointed electors in the presence of the House and Senate, for them to be counted. U. S. Const. Amend. XII. “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed. ” Id. Only if the state-appointed electors have failed to make a choice, i. e., no candidate Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 91 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
-92-has such a majority, does the choice fall to the House of Representatives, who, voting by state delegation, “choose immediately, by ballot,” from the three presidential candidates receiving the most electoral votes. Id. There, too, the Executive Branch plays no role in the process. The exclusion of the Executive Branch reflects fundamental constitutional principles. The “executive Power” is “vested in a President” only for “the Term of four Years,” U. S. Const. Art. II, § 1, cl. 1, and it transfers to his successor, by operation of law, “at noon on the 20th day of January,” U. S. Const. Amend. XX. Permitting the incumbent President to choose his own successor—or, worse still, to perpetuate himself in power—would contradict the entire constitutional system that the Framers created. “In free Governments,” Benjamin Franklin explained, “the rulers are the servants, and the people their superiors [and] sovereigns. ” 2 The Records of the Federal Convention of 1787, at 120 (Max Farrand ed., 1911). A government could not be considered a “genuine republic,” Madison argued, unless “the persons administering it,” including the President, “be appointed, either directly or indirectly, by the people; and that they hold their appointments” for a “definite period. ” The Federalist No. 39 (J. Madison). Thus, while the Framers recognized “the necessity of an energetic Executive,” they justified and checked his power by ensuring that he always retained “a due dependence on the people. ” The Federalist No. 70 (A. Hamilton); see Seila Law LLC v. CFPB, 591 U. S. 197, 223-24 (2020). The Framers further recognized that while regular elections would serve as “the primary control on the government,” “experience has taught mankind the necessity of auxiliary precautions” as well. The Federalist No. 51 (J. Madison). Some of those precautions are reflected in the design of the Electoral College itself. “[W]ary of 'cabal, intrigue, and corruption,'” the Framers “specifically excluded from service as electors 'all those who from situation might be suspected of too great devotion to the president in Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 92 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
-93-office. '” Trump, 144 S. Ct. at 2339 (quoting The Federalist No. 68 (A. Hamilton)). They were keenly aware, as Justice Story later explained, that “an ambitious candidate” could hold out “the rewards of office, or other sources of patronage,” in an effort “to influence a majority of votes; and, thus, by his own bold and unprincipled conduct, to secure a choice, to the exclusion of the highest, and purest, and most enlightened men in the country. ” Joseph Story, 3 Commentaries on the Constitution of the United States § 1450, at 314 (1833 ed. ). To guard against that possibility, Article II provides that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. ” U. S. Const. Art. II, § 1, cl. 2. As a leading early American commentator observed, these limitations serve “to prevent the person in office, at the time of the election, from having any improper influence on his re-election, by his ordinary agency in the government. ” See 1 James Kent, Commentaries on American Law *276 (8th ed. 1854). The Constitution's structure further reflects the Framers' considered choice to exclude the incumbent President from playing a role in choosing the next President. The Constitution reflects an abiding concern that governmental “power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it,” not least to protect against “the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate. ” The Federalist No. 48 (J. Madison); see Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 273 (1991) (“The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive. ”). The Framers therefore designed a system of separated powers in part to ensure that “[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. ” The Federalist No. 10 (J. Madison). Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 93 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
-94-The defendant's charged conduct directly contravenes these foundational principles. He sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people. As such, applying a criminal prohibition to the defendant's conduct would not pose any danger of intrusion on the authority and functions of the Executive Branch; rather, it would advance the Constitution's structural design to prevent one Branch from usurping or impairing the performance of the constitutional responsibilities of another Branch. See Clinton v. Jones, 520 U. S. 681, 699-702 (1997). History confirms that presidents have never understood their wide-ranging duties to encompass any direct role in the function of collecting, counting, and certifying the results of a presidential election. As President Lincoln explained in 1864, “[b]y the Constitution and laws the President is charged with no duty in the conduct of a presidential election in any State,” and “[i]f any election shall be held, and any votes shall be cast in the State of Tennessee for President and Vice President of the United States, it will belong, not to the military agents, nor yet to the Executive Department, but exclusively to another department of the Government, to determine whether they are entitled to be counted, in conformity with the Constitution and laws of the United States. ” 8 Collected Works of Abraham Lincoln, 71-72 (1953). When Congress later sent to Lincoln for his signature a “Joint resolution declaring certain States not entitled to representation in the electoral college,” Lincoln signed the resolution “in deference to the view of Congress implied in its passage and presentation to him,” but “disclaim[ed] all right of the Executive to interfere in any way in the matter of canvassing or counting electoral votes. ” House Special Committee, Counting Electoral Votes, H. R. Misc. Doc. No. 44-13, at 229-230 (1877). The Governmentis aware of no contrary evidence, includingof any President, other than the defendant, Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 94 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
-95-seeking to influence his Vice President in the discharge of his duties as President of the Senate in presiding over the joint session. The absence of any such historical tradition is reinforced by the fact that in 22 of the 59 certification proceedings the Vice President has not presided at all. See Joel K. Goldstein, The Ministerial Role of the President of the Senate in Counting Electoral Votes: A Post-January 6 Perspective, 21 U. N. H. L. REV. 369, 402 & App'x 1 (2023). When it comes to the certification proceeding specifically, not only has the President been deliberately excluded from the process, but the Vice President's role, as President of the Senate, is highly circumscribed and ministerial in nature. The Twelfth Amendment gives the President of the Senate no substantive role in determining how to count the votes of the electors appointed by the states. Rather, it provides only that he “shall, in the presence of the Senate and House of Representatives, open all the certificates,” and then shifts to the passive voice: “and the votes shall then be counted. ” Nothing in the Constitution remotely suggests that the single individual serving as President of the Senate would have the momentous responsibility to decide which votes to count and how they should be counted. Indeed, as Pence himself explained on January 6, 2021, giving the President of the Senate such a role “would be entirely antithetical to the [Constitution's] design. ”497And, removing any possible doubt, “Congress has legislated extensively to define the Vice President's role in the counting of the electoral votes,” Trump, 144 S. Ct. at 2337 (citing 3 U. S. C. § 15), and it has never provided any substantive role for the Vice President, instead assigning the resolution of disputes to the two Houses of Congress. 498 Moreover, Congress has 497 GA 1685 (Pence Dear Colleague Letter01/06/2021). 498 Legislation confirming the ministerial nature of that role dates to the Electoral Count Act of 1887, Pub. L. 49-90, 24 Stat. 373 (1887). See 3 U. S. C. §§ 15-18 (2020 ed. ) (assigning all power to resolve vote-counting disputes to the two Houses of Congress, while assigning to the President of the Senate only the ministerial duties of “presiding,” “preserv[ing] order,” “open[ing]... the certificates,” “call[ing] for objections,” and “announc[ing] the state of the vote” after receiving the results from the tellers). Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 95 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
-96-now made explicit—echoing and reaffirming constitutional tradition and practice—that, with limited exceptions of no relevance to this case, “the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties,” 3 U. S. C. § 15(b)(1). He “shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors. ” Id. § 15(b)(2). 499 Because the Vice President's role is and has always been ministerial, rather than substantive or discretionary, it is difficult to imagine an occasion in which a President would have any valid reason to try to influence it. As such, criminalizing a President's efforts to affect the Vice President's role as the President of the Senate overseeing the certification of Electoral College results would not jeopardize an Executive Branch function or authority. Critically, applying a criminal prohibition to the discrete and distinctive category of official interactions between the President and Vice President alleged in this case would have no effect— chilling or otherwise—on the President's other interactions with the Vice President that implicate Executive Branch interests. The President would still be free to direct the Vice President in the discharge of his Executive Branch functions, such as “presid[ing] over... cabinet meetings,” engaging in “diplomacy and negotiation,” or performing any other presidential duties that the President chooses to delegate. See Trump, 144 S. Ct. at 2336 (internal quotation marks omitted). The President would likewise still be free to advise the Vice President on how to “advance the 499 Section 15 of Title 3 was amended in the Electoral Count Reform Act of 2022, Pub. L. 117-328, 136 Stat. 4459, 5237-40 (2022), in response to the defendant's conduct here, to eliminate any doubt that the President of the Senate's role at the joint session is ministerial. And because the rebuttal analysis is necessarily prospective in nature, the current version of Section 15 supplies the relevant measure, in this context, of “the Vice President's role in the counting of electoral votes,” Trump, 144 S. Ct. at 2337. Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 96 of 165 | gov.uscourts.dcd_.258148.252.0.pdf |
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