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 a danger of intrusion on the authority or functions of the Executive Branch. Below, the Government categorizes the conduct outlined in Section I and provides content, form, and context for this Court to determine that the defendant’s conduct was private or that, in the alternative, any presumptive immunity is rebutted “under the circumstances.” 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 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:

1. 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.