1. Other Evidence of the Defendant’s Knowledge and Intent

The Government intends to introduce at trial additional evidence to prove the defendant’s knowledge and intent. These include (1) public statements by federal officials that the defendant did not direct be made (specifically, public statements by Attorney General WILLIAMBARR and CISA Director CHRISKREBS about the lack of election fraud and foreign interference): (2) evidence that the defendant was reviewing Twitter and watching television throughout the afternoon of January 6: and (3) the defendant’s post-Administration statements. None of this evidence will involve testimony from the defendant’s Executive Branch staff about his official actions.

1. The evidence at issue was unofficial
2.  a.Statements by federal officials
3. i. WILLIAMBARR (supra p. 46)

In a public statement issued on December 1, 2020, Attorney General WILLIAMBARR said that the Department of Justice had not seen evidence of fraud sufficient to change the election results, and that claims that voting machines had skewed election results were unsubstantiated. WILLIAMBARR decided to make his statement without informing the defendant in advance. He prepared the statement because he had been watching the defendant repeat claims of election fraud publicly despite direct knowledge, from WILLIAMBARR and others, that they were false, and WILLIAMBARR was growing more and more frustrated by the defendant’s actions. On November 29, WILLIAMBARR saw the defendant appear on the Maria Bartiromo Show and claim, among other false things, that the Justice Department was “missing in action” and had ignored evidence of fraud. WILLIAMBARR decided it was time to speak publicly in contravention of the defendant’s false claims, set up a lunch with a reporter for the Associated Press, and made his statement all without informing or seeking permission from the defendant. The same day, on behalf of the Campaign, GIULIANI and JENNAELLIS issued a statement attacking WILLIAMBARR for his comments. In the days that followed, P1 acknowledged and criticized WILLIAMBARR statement during his podcast, asking rhetorically is WILLIAMBARR reading the same things we’re reading?” and prompting guest CC6 to comment that the DOJ has not been following up on these leads as far as we know right now. That statement seemed to be very premature. … [T]here’s no way one can look at this election in these states and say that it was done properly.”

WILLIAMBARR statement is not an official act by the defendant. Trump treats only the defendant’s own acts as potentially immune, see, e.g., 144 S. Ct. at 2338, consistent with the justifying purposes of the immunity” to ensure that the President can undertake his constitutionally designated functions effectively, free from undue pressures or distortions,” id. at 2332 (internal quotation marks omitted). The immunity that the Supreme Court recognized thus does not imply that acts by other government officials can qualify as presidential acts. More to the point, WILLIAMBARR statement does not reveal any official action by the defendant because WILLIAMBARR did not give his public statement at the defendant’s direction or even with his knowledge. To the contrary, if the defendant had been aware of what WILLIAMBARR intended to do he undoubtedly would have instructed WILLIAMBARR not to make the statement: when the defendant learned of WILLIAMBARR statement, he was so angry that WILLIAMBARR tendered his resignation and, momentarily, the defendant accepted until ERICHERSHMANN and PATCIPOLLONE prevailed upon the defendant to calm down and convinced WILLIAMBARR to delay his departure. The Government does not intend to introduce evidence that implies that WILLIAMBARR or his deputies refuted the defendant’s fraud claims to him directly: instead, the Government intends to introduce WILLIAMBARR statement and GIULIANI Campaign response to it, as well as STEVEBANNON recognition and repetition of WILLIAMBARR statement.

1. CHRISKREBS (Supra pp. 42-43)

On November 17, CISA Director CHRISKREBS tweeted a link to an open letter by 59 election security experts and touted it in an effort to promote public confidence in the election’s infrastructure. This was similar to what CHRISKREBS had done five days earlier on November 12, when he had publicized the joint statement CISA issued with the National Association of Secretaries of State, the National Association of State Election Directors, and other organizations declaring the 2020 election to be the most secure in Anerican history” and that there was “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” On November 17, CHRISKREBS promoted the expert report on his own initiative and. as he later learned, contrary to the defendant’s wishes; the defendant promptly fired CHRISKREBS the same day, by Tweet. The Government does not intend to introduce any evidence about the defendant’s removal of CHRISKREBS Rather, as with WILLIAMBARR public statement, CHRISKREBS public Tweets were not official actions by the defendant and thus are not protected by presidential immunity.

1. The defendant’s use of Twitter and television on January 6 (Superseding Indictment, ECF No. 226 92; supra p. 79)

Forensic evidence from the defendant’s iPhone and observations by witnesses otherwise testifying about unofficial acts will establish that upon his return from the Ellipse, throughout the afternoon on January 6, the defendant sat in the dining room by the Oval Office, where he used hisphone to review Twitter and watched the television, which was turned on and displaying news coverage of the riot at the Capitol.”

As explained in the Government’s expert notice, ECF No. 183, an FBI Computer Analysis Response Team forensic examiner can testify as to the news and social media applications downloaded on the defendant’s phone, and can describe the activity occurring on the phone throughout the afternoon of January 6. The phone’s activity logs show that the defendant was using his phone, and in particular, using the Twitter application, consistently throughout the day after he returned from the Ellipse speech.

In addition, ERICHERSHMANN, NICKLUNA and DANSCAVINO, each of whom are, as described supra pp. 147-154, 156, otherwise expected to testify about the defendant’s unofficial acts will offer the objective observation that during the afternoon of January 6, the television in the defendant’s dining room, where he spent the day, was on and tuned into news programs that were covering in real time the ongoing events at the Capitol. In turn, the Government will introduce the authenticated coverage showing what Fox News was playing in real time while the defendant sat in the room with the television on. This evidence is particularly relevant to the defendant’s knowledge at the time he issued the 2:24 p.m. Tweet, which, as described above, was unofficial.

None of this evidence involves testimony about an act by the defendant at all, and it shows what social media and news the defendant privately reviewed in service of issuing a private Tweet. The Government will not elicit testimony from the defendant’s staffers about his official deliberations, reactions to social media or television, or official actions taken in response. The defendant’s review of social media and television news under these particular circumstances – was no different from that of any other citizen or candidate and therefore was unofficial.

1. The defendant’s post-Administration statements (supra pp. 81, 83)

As the Government identified in its Rule 404(b) notice, ECF No. 174-1 at 8-9, the Government will introduce some of the defendant’s numerous statements that post-date his time as President in which he has blamed Pence and approved of the actions of his supporters who breached the Capitol and obstructed the certification proceeding, thus providing evidence of his intent on January 6.

The defendant’s endorsement of the violent actions of his supporters on January 6, and his sentiment that they were justified in threatening Pence all made while the defendant was a private citizen after the end of his term in office are probative of his intent during the charged conspiracies. The Government intends to offer them as evidence of the defendant’s intent on January 6, not as evidence of his official acts.

2. Even if this evidence were deemed official, the Government could rebut any presumption of immunity

The use of the evidence regarding former Attorney General WILLIAMBARR and CISA Director CHRISKREBS would not intrude on Executive Branch authority or functions because the federal officials’ statements reflected those officials’ positions, knowledge, and expertise not presidential acts or direction. The President is “the only person who alone composes a branch of government,” Trump, 144 S. Ct. at 2329 (citation omitted), but Congress structures the Executive Branch and assigns manifold specific duties to subordinate officers who in turn execute the law. The President is responsible to take care that the laws be faithfully executed, see U.S. Const. Art. 2, § 3, but that does not mean that every executive official is at all times performing presidential acts. Allowing the Government to introduce evidence of these independent actions and public statements of subordinate officials in the Executive Branch, not taken at the direction of the President, does not intrude on the authority or functions of the Executive Branch. Nothing in Trump dictates such an outcome that would effectively bar any Executive Branch employee from providing evidence against a President who committed crimes in his private capacity. Put concretely, allowing these independent acts of Executive Branch officials to be used in the prosecution would not chill any Presidential conduct, and thus any presumption of immunity is overcome.

The same is true for testimony by White House staff about the President’s review of Twitter or his watching public events on television. Assuming for the moment that the President sometimes acts in an official capacity when watching television or reviewing Twitter, no statute or constitutional provision addresses the matter, and using evidence of his activity that virtually all citizens engage in i.e., checking their social-media feeds and watching television-does not intrude on any authority or functions of the Executive Branch.