The defendant first publicly turned his sights toward January 6 in the early morning hours of December 19. At 1:42 a.m., the defendant posted on Twitter a copy of a report falsely alleging fraud and wrote, “… Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!” When CHEESBORO learned about the Tweet, he sent a link about it to another of the Wisconsin attorneys who had met with the defendant in the Oval Office on December 16 and wrote, “Wow. Based on 3 days ago, I think we have unique understanding of this.” Later on December 19, the defendant called Pence and told him of plans for a rally on January 6 and said that he thought it would be a big day” and good to have lots of their supporters in town.

The defendant and his co-conspirators recognized that Pence, by virtue of his ministerial role presiding over the January 6 congressional certification, would need to be a key part of their plan to obstruct the certification proceeding. On December 23, in a memorandum drafted with CHEESBORO assistance, JOHNEASTMAN outlined a plan for Pence to “gavel” in the defendant as the winner of the election based on the false claim that “7 states have transmitted dual slates of electors to the President of the Senate,” and proposed that Pence announce that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.” JOHNEASTMAN emphasized concealment, writing that the main thing here” was that Pence act without “asking for permission either from a vote of the Joint Session or from the Court.”

JOHNEASTMAN memorandum stood in stark contrast to concessions he had previously made about the Vice President’s lack of authority in the certification proceeding. Two months earlier, on October 11, he had written to a colleague that neither the Constitution nor the ECA provided the Vice President with discretion in the counting of electoral votes or permitted him to “make the determination on his own.” And just one day earlier, on December 22, when asked by other private attorneys to provide views on a daft complaint that would, if filed, have raised the issue of the Vice President’s authority on January 6, JOHNEASTMAN had recommended that the complaint not be filed. He wrote that “the risk of getting a court ruling that Pence has no authority to reject the Biden-certified ballots [is] very high.”

On the evening of December 23, after GIULIANI shared JOHNEASTMAN and CHEESBORO plan with the defendant, the defendant publicly re-tweeted a document called “Operation Pence Card,” which, like JOHNEASTMAN memorandum, advocated that Pence block the lawful certification of the legitimate electoral votes. Also on December 23, JOHNEASTMAN emailed MOLLYMICHAEL asking to speak to the defendant to update hin on our overall strategic thinking.” The following day, December 24, the defendant called JOHNEASTMAN and they spoke for forty minutes. Then on December 25, CHEESBORO proposed in a text message to JOHNEASTMAN and BORISEPSHTEYN that Pence permit an unlimited filibuster of the certification, in violation of the ECA, and ultimately gavel in the defendant as president. When JOHNEASTMAN asked, “Is Pence really likely to be on board with this?” BORISEPSHTEYN responded, “Let’s keep this off text for now.”

From that point on, the conspirators plotted to manipulate Pence. GIULIANI JOHNEASTMAN BORISEPSHTEYN and STEVEBANNON worked in concert to enlist Pence to act unlawfully, and to rachet up public pressure from the defendant’s supporters that he do so. The defendant began to directly and repeatedly pressure Pence at the same time that he continued summoning his supporters to amass in Washington, D.C., on the day of the congressional certification. On December 25, when Pence called the defendant to wish him a Merry Christmas, the defendant raised the certification and told Pence that he had discretion in his role as President of the Senate. Pence emphatically responded, “You know I don’t think I have the authority to change the outcome.” The next day, the defendant tweeted, Never give up. See everyone in D.C. on January 6^th.” He also tweeted false fraud claims: Time for Republican Senators to step up and fight for the Presidency, like the Democrats would do if they had actually won. The proof is irrefutable! Massive late night mail- in ballot drops in swing states, stuffing the ballot boxes (on video), double voters, dead voters, fake signatures, illegal immigrant voters, banned Republican vote watchers, MORE VOTES THAN ACTUAL VOTERS (check out Detroit & Philadelphia), and much more. The numbers are far greater than what is necessary to win the individual swing states, and cannot even be contested. Courts are bad, the FBI and Justice’ didn’t do their job, and the United States Election System looks like that of a third world country. Freedom of the press has been gone for a long time, it is Fake News, and now we have Big Tech (with Section 230) to deal with. But when it is all over, and this period of time becomes just another ugly chapter in our Country’s history, WE WILL WIN!!!”

On December 28, JOHNEASTMAN CHEESBORO and BORISEPSHTEYN exchanged text messages in which JOHNEASTMAN expressed concern that Golmert v. Pence-a lawsuit filed the day before that asserted that Pence had discretion to choose electoral votes during the certification proceeding-would prompt a federal court to publicly reject, and thus preclude, the plan that the conspirators were advancing in private. Thereafter, at 11:00 a.m. on January 1, the defendant called Pence to berate him because he had learned that Pence had filed a brief opposing the relief sought in Golhmert. When Pence explained, as he had before, that he did not believe that he had the power under the Constitution to decide which votes to accept, the defendant told him that “hundreds of thousands of people “are gonna hate your guts” and “people are gonna think you’re stupid,” and berated him pointedly, You’re too honest.” Immediately before the call, the defendant had spoken separately to GIULIANI (from 10:06 a.m. to 10:14 a.m.) and STEVEBANNON (from 10:36 a.m. to 10:46 a.m.), and late that afternoon, the defendant spoke separately with STEVEBANNON JOHNEASTMAN and GIULIANI. Within hours of the call with Pence, the defendant reminded supporters to travel to Washington for the certification proceeding, tweeting, “The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!”

The next day, on January 2, GIULIANI JOHNEASTMAN and BORISEPSHTEYN appeared on STEVEBANNON podcast. When STEVEBANNON asked whether the January 6 certification would be “a climactic battle,” JOHNEASTMAN responded that “a lot of that depends on the courage and the spine of the individuals involved.” The defendant spoke to GIULIANI shortly after his appearance on the podcast. That afternoon, BORISEPSHTEYN worked to arrange a meeting among the defendant, JOHNEASTMAN and Pence in order to enlist Pence to misuse his role as President of the Senate at the certification proceeding. When BORISEPSHTEYN texted STEVEBANNON about the meeting STEVEBANNON who had just finished a phone call with the defendant-reiterated that the defendant wanted Pence “briefed” by JOHNEASTMAN immediately. Thereafter, the defendant called Pence, informing him that he had spent the day speaking to a secretary of state, state legislators, and members of Congress.” (As described supra pp. 29-3 1, the defendant spoke with Georgia Secretary of State RAFFENSPERGER the same day.)  On the call with Pence, the defendant said he had learned that a U.S. Senator was going to propose a ten-day delay in the certification proceeding, and told Pence, “you can make the decision” to delay the count for ten days. The defendant then referred Pence to JOHNEASTMAN for the first time and asked if Pence would meet with him.

On January 3, the defendant again told Pence that at the certification proceeding, Pence had the absolute right to reject electoral votes and the ability to overturn the election. Pence responded that he had no such authority and that a federal appeals court had rejected a lawsuit making that claim the previous day. Then, the defendant took to Twitter to again falsely claim that fraud had permeated the election: “Sorry, but the number of votes in the Swing States that we are talking about is VERY LARGE and totally OUTCOME DETERMINATIVE! Only the Democrats and some RINO’S would dare dispute this – even though they know it is true!” The same day, JOHNEASTMAN circulated a second memorandum that included a new plan under which, in violation of the ECA, the Vice President would send the elector slates to the state legislatures to determine which slate to count.

The meeting that BORISEPSHTEYN had organized so that the defendant and JOHNEASTMAN could enlist Pence to reject Biden’s legitimate electoral votes was scheduled late in the afternoon of January 4. In advance of the meeting, GIULIANI JOHNEASTMAN BORISEPSHTEYN and STEVEBANNON gathered at the Willard Hotel near the White House, and from there, GIULIANI called and spoke with the defendant. When JOHNEASTMAN arrived at the White House for the meeting, ERICHERSHMANN confronted JOHNEASTMAN about the legal basis for his proposal. ERICHERSHMANN went line by line through JOHNEASTMAN ‘s second memo, and JOHNEASTMAN conceded that no court would support it; in response, ERICHERSHMANN warned JOHNEASTMAN that pressing his admittedly unlawful plan would cause “riots in the streets.” then spoke to the defendant, telling him that the theory that JOHNEASTMAN and others were promoting would not work, and that JOHNEASTMAN had acknowledged that it was “not going to work”; the defendant responded, “other people disagree” but did not identify those other people. ERICHERSHMANN also pointed out to the defendant that JOHNEASTMAN s theory regarding a strategic Democratic plan to subvert the election was inconsistent with other allegations that had been floating around about DOMINIONVOTING and foreign interference.

The meeting among the defendant, JOHNEASTMAN Pence, and Pence staffers MARCSHORT and GREGJACOB began around 4:45 p.m. No one from the defendant’s White House Counsel’s Office attended. During the meeting, the defendant asked JOHNEASTMAN to explain his plan to Pence. JOHNEASTMAN presented two options: Pence could unilaterally decide objections to electors, or alternatively, in the plan that JOHNEASTMAN had devised the prior day, Pence could send the elector slates to the targeted states’ legislatures to determine which electors’ votes should be counted. In the defendant’s presence, in response to Pence’s questioning, JOHNEASTMAN admitted that the ECA forbade what he proposed and that no one had tested JOHNEASTMAN new plan to send elector slates to state legislatures for review. Nonetheless, the defendant repeatedly expressed a preference that Pence unilaterally reject valid elector slates.

Throughout the meeting, the defendant repeated his knowingly false fraud claims as a purported basis for Pence to act illegally. Pence’s five pages of contemporaneous notes from the meeting reflect that the defendant said, when there’s fraud the rules get changed”; “bottom line – won every state by 100,000s of votes”; this whole thing is up to MP”; “has to do you – you can be bold”; and r[igh]t to do whatever you want to do.” The meeting concluded with Pence- firm and cleartelling the defendant I’m not seeing this argument working.” Nonetheless, the defendant requested that Pence’s staff meet with JOHNEASTMAN again to discuss further, and Pence agreed.

The conspirators were undeterred. Immediately after leaving the White House, JOHNEASTMAN gathered with BORISEPSHTEYN and STEVEBANNON back at the Willard Hotel. Over the days that followed. these conspirators strategized on how JOHNEASTMAN could influence Pence through the Vice President’s counsel, and normalized the unlawful plan by discussing it on STEVEBANNON podcast. Meanwhile, the defendant continued to pressure Pence publicly.

For his part, immediately upon leaving the meeting with Pence, the defendant traveled to Dalton, Georgia, to speak at a political rally at the invitation of two U.S. Senators engaged in un- off elections there. During his political speech, the defendant promoted many of the same falsehoods that he previously had been informed were untrue. He said, they’re not taking the White House. We’re gonna fight like hell, I’Il tell you right now,” and remarked, “I hope Mike Pence comes through for us, I have to tell you. I hope that our great Vice President, our great Vice President comes through for us … Of course, if he doesn’t come through, I won’t like him quite as much.” He also used the Dalton Campaign speech as a call to action to his own supporters, telling the crowd that “i]f you don’t fight to save your country with everything you have, you’re not going to have a country left,” and demanded that his supporters take action to prevent what he falsely called the outright stealing of elections, like they’re trying to do with us,” emphasizing, “we can’t let that happen.”

The next morning, on January 5, the defendant spoke on the phone with STEVEBANNON Less than two hours later, on his podcast, STEVEBANNON said in anticipation of the January 6 certification proceeding, “All Hell is going to break loose tomorrow.”

Also on the morning of January 5, JOHNEASTMAN participated in a federal court hearing in Trump v. Kemp, the Georgia lawsuit against BRIANKEMP and RAFFENSPERGER in which the defendant had signed a false verification days earlier. JOHNEASTMAN on the defendant’s behalf, asked the federal court to decertify the presidential election in Georgia and declare that the state legislature may choose the state’s electors.9 During the hearing, the federal court denied the relief requested.

Immediately following the federal court’s rejection of the legal basis for the conspirators plan, JOHNEASTMAN went to the meeting that the defendant had requested that Pence’s staff, GREGJACOB and MARCSHORT take. At the outset, JOHNEASTMAN changed his tack and advocated that Pence simply reject the Biden electors outright. This was contrary to his primary recommendation the day before for Pence to send the slates to the state legislatures, but consistent with the preference the defendant had expressed. JOHNEASTMAN made additional concessions during this meeting. For example, JOHNEASTMAN agreed that the Supreme Court would unanimously reject his proposed action, consistent historical practice since the Founding was that the Vice President never asserted authority to reject electors, no  reasonable person would want the Constitution read that way because the office would never switch political parties, no state legislature appeared poised to try to change its electors, and if Democrats were to claim the same authority. JOHNEASTMAN would not credit it. GREGJACOB expressed to JOHNEASTMAN that the defendant’s plan would result in a “disastrous situation” where the election might have to be decided in the streets. Having failed to enlist GREGJACOB in the criminal conspiracy, JOHNEASTMAN told him that the “team” was going to be “really disappointed.” The “team,” in fact, was disappointed: after JOHNEASTMAN updated GIULIANI on the meeting. BORISEPSHTEYN confirmed to STEVEBANNON that the Pence lawyer”-that is, GREGJACOB was totally against us,” prompting STEVEBANNON to respond, Fuck his lawyer.” That same day. JOHNEASTMAN received an email confirming what he already had admitted to GREGJACOB no chamber of any legislature in any state, including Arizona, Georgia, Pennsylvania, and Wisconsin, was requesting that its electoral votes be retuned to the state for review.

Meanwhile, CHEESBORO who had traveled to Washington as directed by the defendant’s public messages, obtained duplicate originals of the fraudulent certificates signed by the defendant’s fraudulent electors in Michigan and Wisconsin, which they believed had not been delivered by mail to the President of the Senate or Archivist. CHEESBORO received these duplicates from Campaign staff and surrogates, who flew them to Washington at private expense. He then hand-delivered them to staffers for a U.S. Representative at the Capitol as part of a plan to deliver them to Pence for use in the certification proceeding.

The defendant did not leave the pressure campaign to his co-conspirators; he redoubled his own efforts. On January 5 at 11:06 a.m., shortly before JOHNEASTMAN meeting with GREGJACOB the defendant tweeted, “The Vice President has the power to reject fraudulently chosen electors”  and designate the defendant as the winner of the electoral college vote. That afternoon, the defendant met privately with Pence in the Oval Office. During the meeting, the defendant once again told Pence, I think you have the power to decertify.” When Pence was unmoved, the defendant threatened to criticize him publicly (I’m gonna have to say you did a great disservice”); this concerned MARCSHORT to whom Pence had relayed the defendant’s threat, to the point that he alerted Pence’s Secret Service detail. Next still, the defendant initiated a phone call with Pence, MARCSHORT GREGJACOB JOHNEASTMAN and one or two other private attorneys-likely including GIULIANI and again raised the scenario of the Vice President sending the elector slates to state legislatures. GREGJACOB again pointed out that such a strategy violated the ECA, and Pence reaffirmed that he did not believe he had the authority to do so. Shortly after the call that evening, at 5:43 p.m., the defendant tweeted, “I will be speaking at the SAVE AMERICA RALLY tomorrow on the Ellipse at 11AM Easten. Arive early – doors open at 7AM Eastern. BIG CROWDS!”

The defendant continued his pressure campaign on Pence that evening. After a New York Times article that night detailed the afternoon’s private conversation in which Pence had rejected the defendant’s demand to act unlawfully, the defendant directed JASONMILLER to issue a statement rebutting it and approved the statement at 9:28 p.m. Minutes later, the defendant called Pence and told him, you gotta be tough tomorrow.” After concluding the call with Pence, the defendant sequentially spoke to STEVEBANNON followed by JOHNEASTMAN. Then, at around 10:00 p.m. that night, the defendant issued the public statement, which read “the Vice President and I are in total agreement that the Vice President has the power to act” a statement that the defendant knew was a lie from Pence’s repeated and firm rejections of his efforts, but that gave false hope to the defendant’s supporters arriving in the city at the defendant’s request, and maximized pressure on Pence.