Based on a “factbound analysis,” for the reasons explained above, the Court should determine that the conduct described in the factual proffer of Section I of this motion is not subject to presidential immunity.

The Court should make the following determinations in a single order:

1. That the Government has rebutted the presumption of immunity attached to the defendant’s official communications with the Vice President (see supra pp. 49, 63-67, 77-74; ECF No. 226 4 11(c), 67, 70-78, 80, 82, and 84);
2. That the remaining conduct described in Section I (that is, conduct other than the official communications with the Vice President) was not official, and, in the alternative, that the Government has rebutted any presumptive immunity for any of the remaining conduct that the Court finds to be official.

The Government requests alternative rulings regarding rebuttal for all conduct the Court finds to be unofficial, to buttress the Court’s record, ensure thorough and efficient appellate review, and minimize the risk of successive rounds of interlocutory appeal.

As part of this determination, the Court should specify four additional points. Furthermore, based on the determination that all the conduct described in Section I is not immune from prosecution, and because Section I encompasses all the allegations in the superseding indictment, the Court should further specify:

1. That the defendant is subject to trial on the superseding indictment; and
2. That the Government is not prohibited at trial from using evidence of the conduct described in Section I, subject at a later date to non-immunity based objections and this Court’s admissibility rulings under the Federal Rules of Evidence.

Respectfully submitted,

JACK SMITH
Special Counsel

Is/ Molly Gaston
Molly Gaston
Thomas P. Windom
Senior Assistant Special Counsels

950 Pennsylvania Avenue NW
Room B-206
Washington, D.C. 20530