The Supreme Court held that discussions between the defendant and Pence concerning Pence’s role at the certification proceeding qualify as official conduct, and therefore are subject to a rebuttable presumption of immunity, because they involved “the President and the Vice President discuss[ing] their official responsibilities.” Id. at 2336. Those discussions qualify as official because “presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President.” See id. at 2336; U.S. Const. Art. I, § 3, cl. 4. The discussions at issue did not pertain to Pence’s role as President of the Senate writ large, however, but instead focused only on his discrete duties in presiding over the certification proceeding—a process in which the Executive Branch, by design, plays no direct role. Trump, 144 S. Ct. at 2337. A prosecution involving the defendant’s efforts to influence Pence in the discharge of this particular duty, housed in the Legislative Branch, would not “pose any dangers of intrusion on the authority and functions of the Executive Branch.” Id.

The Executive Branch has no authority or function to choose the next President. Blassingame, 87 F.4th at 17. To the contrary, the Constitution provides that the States will appoint electors to vote for the President and Vice President. U.S. Const. Art. II, § 1, cl. 2. And all States have chosen to make such appointments based on the ballots cast by the people in their respective states. See Chiafalo v. Washington, 591 U.S. 578, 581 (2020). “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes,” U.S. Const. Art. II, § 1, cl. 4, but the Executive Branch has no direct role in that process. The next step in the process established by the Constitution similarly provides no role for the Executive Branch: the House and Senate meet in joint session, with the President of the Senate present to “open all the certificates” of the state-appointed electors in the presence of the House and Senate, for them to be counted. U.S. Const. Amend. XII. “The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of Electors appointed.” Id. Only if the state-appointed electors have failed to make a choice, i.e., no candidate has such a majority, does the choice fall to the House of Representatives, who, voting by state delegation, “choose immediately, by ballot,” from the three presidential candidates receiving the most electoral votes. Id. There, too, the Executive Branch plays no role in the process.

The exclusion of the Executive Branch reflects fundamental constitutional principles. The “executive Power” is “vested in a President only for ‘the Term of four Years,'” U.S. Const. Art. II, § 1, cl. 1, and it transfers to his successor, by operation of law, “at noon on the 20th day of January,” U.S. Const. Amend. XX. Permitting the incumbent President to choose his own successor or, worse still, to perpetuate himself in power would contradict the entire constitutional system that the Framers created. In free governments,” Benjamin Franklin explained, “the rulers are the servants, and the people their superiors [and] sovereigns.” 2 The Records of the Federal Convention of 1787, at 120 (Max Farrand ed., 1911). A government could not be considered a “genuine republic,” Madison argued, unless “the persons administering it,” including the President, “be appointed, either directly or indirectly, by the people; and that they hold their appointments” for a “definite period.” The Federalist No. 39 (J. Madison). Thus, while the Framers recognized “the necessity of an energetic Executive,” they justified and checked his power by ensuring that he always retained “a due dependence on the people.” The Federalist No. 70 (A. Hamilton); see Seila Law LLC v. CFPB, 591 U.S. 197, 223-24 (2020). The Framers further recognized that while regular elections would serve as “the primary control on the government,” “experience has taught mankind the necessity of auxiliary precautions” as well. The Federalist No. 51 (J. Madison).

Some of those precautions are reflected in the design of the Electoral College itself. “[W]ary of ‘cabal, intrigue, and corruption,’” the Framers “specifically excluded from service as electors ‘all those who from situation might be suspected of too great devotion to the president in office.'” Trump, 144 S. Ct. at 2339 (quoting The Federalist No. 68 (A. Hamilton)). They were keenly aware, as Justice Story later explained, that “an ambitious candidate” could hold out “the rewards of office, or other sources of patronage,” in an effort “to influence a majority of votes; and, thus, by his own bold and unprincipled conduct, to secure a choice, to the exclusion of the highest, and purest, and most enlightened men in the country.” Joseph Story, 3 Commentaries on the Constitution of the United States § 1450, at 314 (1833 ed.). To guard against that possibility, Article II provides that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” U.S. Const. Art. II, § 1, cl. 2. As a leading early American commentator observed, these limitations serve “to prevent the person in office, at the time of the election, from having any improper influence on his re-election, by his ordinary agency in the government.” See 1 James Kent, Commentaries on American Law *276 (8th ed. 1854).

The Constitution’s structure further reflects the Framers’ considered choice to exclude the incumbent President from playing a role in choosing the next President. The Constitution reflects an abiding concern that governmental “power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it,” not least to protect against “the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.” The Federalist No. 48 (J. Madison); see Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) (“The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive.”). The Framers therefore designed a system of separated powers in part to ensure that “[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The Federalist No. 10 (J. Madison).

The defendant’s charged conduct directly contravenes these foundational principles. He sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people. As such, applying a criminal prohibition to the defendant’s conduct would not pose any danger of intrusion on the authority and functions of the Executive Branch; rather, it would advance the Constitution’s structural design to prevent one Branch from usurping or impairing the performance of the constitutional responsibilities of another Branch. See Clinton v. Jones, 520 U.S. 681, 699-702 (1997).

History confirms that presidents have never understood their wide-ranging duties to encompass any direct role in the function of collecting, counting, and certifying the results of a presidential election. As President Lincoln explained in 1864, “[b]y the Constitution and laws the President is charged with no duty in the conduct of a presidential election in any State,” and “[i]f any election shall be held, and any votes shall be cast in the State of Tennessee for President and Vice President of the United States, it will belong, not to the military agents, nor yet to the Executive Department, but exclusively to another department of the Government, to determine whether they are entitled to be counted, in conformity with the Constitution and laws of the United States.” 8 Collected Works of Abraham Lincoln, 71-72 (1953).

When Congress later sent to Lincoln for his signature a “Joint resolution declaring certain States not entitled to representation in the electoral college,” Lincoln signed the resolution “in deference to the view of Congress implied in its passage and presentation to him,” but “disclaim[ed] all right of the Executive to interfere in any way in the matter of canvassing or counting electoral votes.” House Special Committee, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 229-230 (1877).

The Government is aware of no contrary evidence, including of any President, other than the defendant, seeking to influence his Vice President in the discharge of his duties as President of the Senate in presiding over the joint session. The absence of any such historical tradition is reinforced by the fact that in 22 of the 59 certification proceedings the Vice President has not presided at all. See Joel K. Goldstein, The Ministerial Role of the President of the Senate in Counting Electoral Votes: A Post-January 6 Perspective, 21 U.N.H. L. REV. 369, 402 & App’x 1 (2023).

When it comes to the certification proceeding specifically, not only has the President been deliberately excluded from the process, but the Vice President’s role, as President of the Senate, is highly circumscribed and ministerial in nature. The Twelfth Amendment gives the President of the Senate no substantive role in determining how to count the votes of the electors appointed by the states. Rather, it provides only that he “shall, in the presence of the Senate and House of Representatives, open all the certificates,” and then shifts to the passive voice: “and the votes shall then be counted.” Nothing in the Constitution remotely suggests that the single individual serving as President of the Senate would have the momentous responsibility to decide which votes to count and how they should be counted.

Indeed, as Pence himself explained on January 6, 2021, giving the President of the Senate such a role “would be entirely antithetical to the [Constitution’s] design.” And, removing any possible doubt, “Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes,” Trump, 144 S. Ct. at 2337 (citing 3 U.S.C. § 15), and it has never provided any substantive role for the Vice President, instead assigning the resolution of disputes to the two Houses of Congress. Moreover, Congress has now made explicit—echoing and reaffirming constitutional tradition and practice—that, with limited exceptions of no relevance to this case, “the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties,” 3 U.S.C. § 15(b)(1). He “shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.” Id. § 15(b)(2).

Because the Vice President’s role is and has always been ministerial, rather than substantive or discretionary, it is difficult to imagine an occasion in which a President would have any valid reason to try to influence it. As such, criminalizing a President’s efforts to affect the Vice President’s role as the President of the Senate overseeing the certification of Electoral College results would not jeopardize an Executive Branch function or authority.

Critically, applying a criminal prohibition to the discrete and distinctive category of official interactions between the President and Vice President alleged in this case would have no effect—chilling or otherwise—on the President’s other interactions with the Vice President that implicate Executive Branch interests. The President would still be free to direct the Vice President in the discharge of his Executive Branch functions, such as “presid[ing] over… cabinet meetings,” engaging in “diplomacy and negotiation,” or performing any other presidential duties that the President chooses to delegate. See Trump, 144 S. Ct. at 2336 (internal quotation marks omitted). The President would likewise still be free to advise the Vice President on how to “advance the President’s agenda in Congress,” by casting tiebreaking votes on legislation or nominations. Id. at 2337. None of these legitimate Executive Branch functions would be chilled or affected at all.

Lastly, the fact that the defendant regularly included other private actors, such as his private attorney and co-conspirator JOHNEASTMAN in some conversations to attempt to pressure Pence (Superseding Indictment, ECF No. 226 1 75-76; supra pp. 66-67, 71-72) strengthens the conclusion that prosecuting the defendant for his actions using JOHNEASTMAN to help recruit Pence into the conspiracies does not infringe on any Executive Branch authority or function. As set forth in Section I, private co-conspirators worked to schedule the January 4 meeting at which JOHNEASTMAN attempted to pressure Pence. Although White House Counsel PATCIPOLLONE was invited to the meeting., when he arrived to attend, the defendant explicitly excluded him from it-meaning that the only attorney attending the meeting for the defendant was JOHNEASTMAN his privately-retained counsel. In PATCIPOLLONE telling, when PATCIPOLLONE arrived at the Oval Office for the meeting, the defendant “said words… indicating he didn’t want me at the meeting.” It is hard to imagine stronger evidence that conduct is private than when the President excludes his White House Counsel and only wishes to have his private counsel present.

Next, the phone call on January 5 that the defendant and JOHNEASTMAN made to Pence. GREGJACOB and MARCSHORT was the result of the private co-conspirators’ failure to convince GREGJACOB and MARCSHORT to do as JOHNEASTMAN urged in the meeting on the morning of January 5 that GREGJACOB and MARCSHORT took at the defendant’s request. The defendant’s decision to include private actors in the conversations with Pence about his role at the certification makes even more clear that there is no danger to the Executive Branch’s functions and authority, because the JOHNEASTMAN conversations had no bearing on any Executive Branch prerogative. Instead, all of this conduct objectively benefitted the defendant in his private capacity as a candidate. The Court should therefore find the presumption of immunity to be rebutted. And because the presumption is rebutted, any participant in the meeting or phone call including Pence. GREGJACOB and MARCSHORT can testify about it at trial.