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 it by design—prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the Executive Branch’s authority or functioning.

As described below, the Government also intends to introduce at trial evidence regarding conversations between the defendant and Pence in which they did not discuss Pence’s official responsibilities as President of the Senate and instead acted in their private capacities as running mates. Additionally, the Government intends to elicit at trial evidence about a Pence staffer’s conversations with co-conspirator JOHNEASTMAN. Those conversations were unofficial and therefore not immune.