The defendant called DOUGDUCEY then the Governor of Arizona, on or about November 9. The defendant’s call to DOUGDUCEY was unofficial and undertaken as a candidate. Throughout the call, the defendant was engaged in partisan electioneering. His comments focused on the vote count in Arizona in his particular race, and on the margins and allegations of fraud that could potentially benefit him personally as a candidate. DOUGDUCEY in turn, responded by giving the defendant his assessment of the defendant’s electoral prospects in Arizona prospects that were dim. The defendant did not ask about the vote counts for, or claim fraud existed in, any race other than his own. And he raised fraud claims in this context about whether he could still win Arizona not in the larger context of election integrity. The defendant claimed that he would deliver evidence of election fraud to DOUGDUCEY then did not. The call was a surprise to DOUGDUCEY and unusually short and to the point for the defendant, who usually liked to chat. In contrast, according to DOUGDUCEY this call contained little conversation or pleasantries and was solely focused on the vote count in the Presidential race and the defendant’s fraud claims.

This call must also be considered in the context of the conspirators additional pressure campaign on DOUGDUCEY. On other occasions, GIULIANI tried to reach DOUGDUCEY but DOUGDUCEY declined to accept the calls. And on November 30, the day DOUGDUCEY signed the certificate of ascertainment declaring Biden’s electors the legitimate ones for Arizona, the defendant (joined by Pence) again called DOUGDUCEY again raised fraud claims, and again failed to substantiate them. When DOUGDUCEY failed to do as the defendant demanded, after the call, the defendant attacked DOUGDUCEY publicly through Twitter.

Each of these communications with DOUGDUCEY was unofficial. The defendant engaged in them all in his capacity as a candidate, in an attempt to elicit DOUGDUCEY support in re-installing him as president.

b. Meeting with Michigan legislators (Superseding Indictment, ECF No. 226 36; supra pp. 31-34)

The defendant’s November 20 Oval Office meeting with Michigan state legislators was private in nature. During the meeting, the defendant raised claims of election fraud in the state related specifically and only to his own election, and the legislators explained that the defendant had lost not because of fraud but because he had underperformed with educated female voters. Although the meeting took place in the Oval Office as did many unofficial Campaign meetings in which the defendant participated in the post-election period a close examination of all of the other circumstances surrounding the meeting makes clear that it was a Campaign meeting.

The defendant originally initiated the meeting through RNC Chairwoman RONNAMCDANIEL a private and partisan actor, and then followed up himself with MIKESHIRKEY and LEECHATFIELD both fellow Republicans and strong political supporters of the defendant. Cf Trump, 144 S. Ct. at 2340 (suggesting the President acts in an unofficial capacity when acting as “party leader) Although the defendant did not specify the topic of the meeting in advance, both MIKESHIRKEY and LEECHATFIELD assumed-correctly-that the defendant wanted to see them to discuss claims of election fraud related to his own race. Notably, the defendant did not include in the meeting invitation other Michigan officials who held positions more relevant to the election and certification the Governor and Secretary of State but who were not Republicans.

At the time, public interest and alarm were piqued by news that the defendant was meeting with legislators from a state where there were pending election disputes and where the Governor had not yet signed a certificate of ascertainment, and the White House declined to state the topic of the meeting. During a press conference on the morning of November 20, KAYLEIGHMCENANY White House Press Secretary was asked about the meeting and claimed, “This is not an advocacy meeting. There will be no one from the Campaign there. He routinely meets with lawmakers from all across the country. “

KAYLEIGHMCENANY claim was false. Over the course of the meeting, the defendant dialed in both RONNAMCDANIEL despite her request not to participate and GIULIANI . The defendant’s Chief of Staff, MARKMEADOWS was present for at least part of the meeting. But besides MARKMEADOWS who separate from his Chief of Staff duties assisted the defendant with Campaign-related logistics, no other Executive Branch staff joined the meeting: in fact, according to ERICHERSHMANN he and White House Counsel PATCIPOLLONE wanted no part of it. As MIKESHIRKEY and LEECHATFIELD had expected,  the defendant was focused on his own vote count in Michigan and on claims of fraud that related only to him GIULIANI a private Campaign attorney, then dominated the rest of the meeting with a monologue of false fraud claims.

The only reason that there were topics of conversation other than the defendant’s claims of election fraud in his race was because the legislators, on their own initiative, brought them up. including presenting the defendant with a letter on COVID that they had prepared specifically to have something to talk about other than the defendant’s unsupported election fraud claims -an official portion of the meeting about which the Government does not intend to elicit testimony at trial. The legislators then took photos with the defendant, and the meeting ended: afterward, MARKMEADOWS took the group on a tour of the White House.

As planned, after the meeting. MIKESHIRKEY and LEECHATFIELD released their statement that publicly disclaimed evidence of outcome-determinative fraud in the election in Michigan. The statement also specified that MIKESHIRKEY and LEECHATFIELD had raised with the defendant issues related to Michigan’s need for federal funds to fight COVID. When the defendant responded to the legislators’ public statement in a Tweet, the private nature of that message, sent as a candidate seeking to overturn the results of his own election *We will show massive and unprecedented fraud!” further demonstrates the private nature of the meeting it concerned. In addition, it was one of six retweets and replies the defendant sent over an approximately thirteen-minute period, all of which were focused on allegations of election fraud in his own race. Notably, the defendant did not conduct similar meetings in this period with legislators in states where he had won or even where he had lost by large margins, nor did he seek a meeting with the Michigan officials -the Governor and Secretary of State-who could have provided him with information about the integrity of the election.

As further context establishing the private nature of this meeting, it was the opening volley of a larger pressure campaign on the same Michigan legislators by the defendant, his co-conspirators, and his Campaign. For example, days after this meeting, GIULIANI sent text messages intended to urge MIKESHIRKEY and LEECHATFIELD to help overturn the results in Michigan. In the same time period, the Campaign publicized contact information for MIKESHIRKEY and LEECHATFIELD (although the number published for LEECHATFIELD was wrong) and encouraged the defendant’s supporters to flood their phone lines with complaints.

c. Call with RUSTYBOWERS (Superseding Indictment, ECF No. 22619; supra p. 19)

The defendant’s call to RUSTYBOWERS on November 22, 2020, also was unofficial. Along with his private attorney, the defendant made the call in his capacity as a candidate and pressured RUSTYBOWERS on electoral matters over which neither the defendant nor even RUSTYBOWERS had an official-role.

The context of the call makes its unofficial nature clear. The defendant placed the call to RUSTYBOWERS along with GIULIANI his lead Campaign attorney, and no White House officials participated in the call. In fact GIULIANI did most of the talking. The defendant and GIULIANI were singularly focused on fraud claims that affected only the defendant, and did not raise any other races in Arizona. And the content of the call confirmed it was unofficial: the defendant and his private attorney asked RUSTYBOWERS the defendant’s political ally, to take steps to replace Arizona’s legitimate electors with illegitimate ones for the defendant a step that necessarily only affected the defendant’s race, out of all the races on the same ballot.

The call must also be viewed in the larger context of the pressure campaign the defendant and his co-conspirators put on RUSTYBOWERS and other Arizona officials. Immediately after speaking to RUSTYBOWERS the defendant and GIULIANI spoke to Arizona State Senate President KARENFANN. A week later, during the “hotel hearing”, Giuliani and JENNAELLIS failed to bring the promised evidence and instead admitted [w]e don’t have the evidence, but we have lots of theories.” See supra p. 19,

When RUSTYBOWERS publicly announced that he would not take extralegal action on the defendant’s behalf, CHRISTINABOBB and the defendant attacked RUSTYBOWERS on Twitter. Then, days before January 6, JOHNEASTMAN made another attempt to convince RUSTYBOWERS to act in contravention of the law and his principles.” And just as was done with the Michigan legislators, the defendant’s Campaign and STEVE BANNON publicized contact information for RUSTYBOWERS  and KARENFANN in an attempt to pressure them to undertake the same actions the defendant and co-conspirators had asked them privately to perform. RUSTYBOWERS like others who publicly opposed the defendant’s efforts, was harassed and threatened.

d. Call to CHRISCARR (supra pp. 23-24)

The defendant’s call on December 8 to CHRISCARR the Georgia Attorney General, also was private. He undertook it to speak with CHRISCARR about Texas v. Pennsylvania, a lawsuit filed by the Texas Attorney General against Pennsylvania, Georgia, Michigan, and Wisconsin seeking to prevent those states from certifying their election results in favor of Biden based on a claim that the manner in which those states had administered their elections had violated the Constitution.

The defendant’s interest in Texas v. Pennsylvania was personal and private; the lawsuit dealt only with the election for the offices of President and Vice President, not the myriad other races on the same ballots. Indeed, the day after his call with CHRISCARR the defendant in his personal capacity and with the assistance of co-conspirator JOHNEASTMAN as his private attorney-intervened in the suit and in so doing “affirmatively communicated to the Supreme Court (and the public) that he was acting and speaking in that matter in his ‘personal capacity’ as a candidate for reelection.” Blassingame, 87 F.4th at 16.

The defendant initiated the call with CHRISCARR after a political intermediary laid the groundwork for it, and immediately raised the lawsuit, which was the principal topic of conversation on the call. Based on CHRISCARR’s estimate and the Presidential Daily Diary, the call lasted about ten minutes and the defendant placed it at night from his private residence in the White House. In fact, shortly before speaking with CHRISCARR, the defendant had spoken with KENPAXTON, the Texas Attorney General who had filed the lawsuit, and immediately after speaking with CHRISCARR, the defendant called ERICSCHMITT the Missouri Attorney General who authored an amicus brief supporting the lawsuit that sixteen other state attorneys general joined.

The speed of the filing of the defendant’s intervention brief the following day echoed what he told CHRISCARR: he was running out of time,” presumably because landmark dates in the electoral process, like December 14 and January 6, were fast approaching. Lastly, the defendant and CHRISCARR also spoke about the importance of their fellow Republican party members, Senators DAVIDPERDUE and KELLYLOEFFLER, winning their pending election further making clear this call was unofficial.

e. Call to RAFFENSBERGER (Superseding Indictment, ECF No. 226, 33; supra pp. 28-31)

The defendant’s January 2 call to RAFFENSBERGER was unofficial and is not subject to immunity; its content, form, and context make clear that the defendant undertook it as a candidate and plaintiff in a private lawsuit in which RAFFENSBERGER was a defendant.

MARKMEADOWS has said that the purpose of the call was to discuss the lawsuit, and he acted accordingly during it. At the outset of the call, MARKMEADOWS made introductions of all the participants on the defendant’s behalf, KURTHILBERT, ALEXKAUFMAN and CLETAMITCHELL -all of whom were affiliated with the Campaign’s litigation efforts, which the defendant brought in his capacity as a candidate for President of the United States.

Throughout the call, the defendant and his advisors approached the conversation through his role as a candidate and with a focus on his private lawsuit. For instance, in an apparent reference to individuals retained for his private lawsuit, the defendant claimed, “We’re going to have an accurate number over the next two days with certified accountants. But an accurate number will be given, but it’s, it’s in the fifties of thousands, and that’s people that went to vote and they were told they can’t vote because they’ve already been voted for. “Some of his false claims of fraud paralleled claims made in Campaign lawsuits, such as that of a substantial number of dead and non-resident voters-for example, in Trump v. Raffensperger, a state court case whose complaint was appended to the federal suit Trump v. Kemp, the defendant’s complaint asserted that 4,926 out-of-state voters had cast ballots, while on the call the defendant cited the number 4,925. And he deferred to his private attorneys at multiple points throughout the  conversation. For instance, after RAFFENSBERGER told the defendant, the challenge that you have is the data you have is wrong,” the defendant turned to CLETAMITCHELL and asked, *Well, CLETAMITCHELL, how do you respond to that?” At one point, MARKMEADOWS interjected and invoked the Campaign’s litigation, asking whether we can find some kind of agreement… to find a path forward that’s less litigious.” And near the end of the call, KURTHILBERT the defendant’s lead counsel in the lawsuit against RAFFENSBERGER requested “to sit down with your office, and we can do it through purposes of compromise just like this phone call” to review data. RAFFENSBERGER counsel. RYANGERMANY responded that KURTHILBERT s cited numbers were inaccurate, but agreed to meet with him.

The defendant’s call to RAFFENSBERGER was purely a private one, which he undertook as a candidate and the plaintiff in a lawsuit. Indeed, a federal district court has concluded that the RAFFENSBERGER call was a Campaign call rather than official business; when MARKMEADOWS sought removal to federal court of his criminal case in Fulton County, Georgia, a court in the Northern District of Georgia issued an order declining to assume jurisdiction because MARKMEADOWS had failed to meet his burden of showing that his role in the call was official rather than unofficial. See Georgia v. Meadows, 692 F. Supp. 3d 1310, 1332 (N.D. Ga. 2023), affd 88 F. 4th 1331, 1349 (11th Cir. 2023) (petition for cert. filed) ((Redacted) s participation in the call reflected a clear attempt to further Trump’s private litigation interests . . .”) (emphasis in original)); see also Arizona v. Meadows, No. CV-24-02063-PHX-JJT, 2024 WIL 4198384, at *7 (D. Ariz. Sept. 16, 2024) (similarly denying (Redacted) notice of removal to federal court of a criminal case in Arizona related to the defendant’s fraudulent elector plan on the basis that (Redacted) conduct in furtherance of the plan charged by the State “is unrelated to (Redacted) official duties”).

2. Even if the defendant’s contacts with state officials were official, the Government can rebut the presumption of immunity

Although the Supreme Court did not resolve the issue in Trump, it described the basis for concluding that using the defendant’s conduct of lying to and pressuring state officials to change the legitimate vote in a criminal prosecution would not intrude on Executive Branch functions or authority:

Indeed, the Constitution commits to the States the power to “appoint” Presidential electors in such Manner as the Legislature thereof may direct.” Art. II, § 1, cl. 2; see Burroughs v. United States, 290 U.S. 534, 544 (1934). “Article II, § l’s appointments power,” we have said, “gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.”” Chiafalo v. Washington, 591 U.S. 578, 588-589 (2020). By contrast, the Federal Government’s role in appointing electors is limited. Congress may prescribe when the state-appointed electors shall meet, and it counts and certifies their votes. Art. II, § 1, cls. 3, 4. The President, meanwhile, plays no direct role in the process, nor does he have authority to control the state officials who do. And the Framers, wary of “cabal, intrigue and corruption,” specifically excluded from service as electors “all those who from situation might be suspected of too great devotion to the president in office.” The Federalist No. 68, at 459 (A. Hamilton); see Art. II, § 1, cl. 2.

144 S. Ct. at 2339. Under the Constitution, the Executive Branch has no constitutionally assigned role in the state-electoral process. To the contrary, the constitutional framework excludes the President from that process to protect against electoral abuses. See supra p. 93. Accordingly, applying federal criminal law to the defendant’s use of fraud to interfere with electoral processes carried out by the states does not intrude on Executive Branch authority or functions. Rather, it ensures that the President’s conduct remains consistent with the Constitution’s allocation of that authority to the States, while in no way impairing his ability to encourage [state officials] to act in a manner that promotes the President’s view of the public good.” 144 S. Ct. at 2338. The President remains free, for instance, to urge state officials to institute measures to combat a pandemic or make arrangements to provide emergency relief. This case does not remotely implicate such official conduct. What neither the President nor any other candidate may do is further his private campaign for office by using fraudulent means to have state officials certify him as winner of a presidential election despite the will of the voters. Accordingly, applying criminal penalties to that conduct will not intrude on any Executive Branch authority or function.ST