D. The Defendant’s Public Speeches, Tweets, and Other Public Statements as a Candidate

Merely because the President is speaking to the public—even on “matters of public concern”—does not automatically render the communication official. Blassingame, 87 F.4th at 19-20. Instead, what matters is “whether the President is speaking (or engaging in conduct) in an official capacity as office-holder or instead in an unofficial capacity as officer-seeker,” id. at 19, as determined by “content, form, and context,” Trump, 144 S. Ct. at 2340. Starting before the election and lasting until January 6, the defendant at various times communicated publicly not as President but as a candidate for office. These communications included public Campaign speeches, Tweets, and other public statements and comments. The defendant’s communications that the Government has alleged in the superseding indictment and described in Section I were all made in his capacity as a candidate and are not official.

a. SPEECHES

The defendant made a number of speeches as a candidate, rather than as an office-holder. See 144 S. Ct. at 2339-40 (“There may… be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader.”). The superseding indictment cites, and the Government plans to use at trial, two: the defendant’s Campaign speech at a political rally in Dalton, Georgia, on January 4, 2021, and his Campaign speech at a political rally on the Ellipse on January 6, 2021.

i. Dalton, Georgia, on January 4, 2021 (supra p. 68)

In his capacity as a candidate, the defendant traveled to Dalton, Georgia, on January 4 at the invitation of two Republican U.S. Senators who were competing in a run-off election the following day to retain their seats. The RNC paid for the event.

The White House’s records, including the trip binder that White House staff prepared for the event and that includes a schedule and manifests, further confirm the private nature of the Dalton speech. The defendant was the only Executive Branch participant in the event; other attendees were federal and state elected officials, the Chair of the Georgia Republican Party, and the founder of Bikers for Trump. The trip binder included a Hatch Act disclaimer stating that “employees of the Federal Government may not use their official title or position when participating in a political event.” Its description of the event to which the defendant was traveling was “Remarks at Victory Rally.” Similarly, the Presidential Daily Diary from that day describes that “the President made remarks at the Georgia Senate Victory Rally.” This nomenclature—the use of the phrase “Victory Rally”—is significant. “Victory” necessitates one political candidate or party defeating another, and rallies are the kinds of events that candidates hold to excite their supporters and garner votes.

Moreover, the defendant’s Campaign sent numerous fundraising emails before, during, and after the speech, confirming the event’s private nature. In a January 4 email around 3:00 p.m., the Campaign sent a fundraising email with the subject line “EPIC Rally in 6 HOURS,” that began, “President Trump is heading to GEORGIA for a RALLY with Senators KELLYLEOFFLER and DAVIDPERDUE.” This rally is going to be EPIC and will show the Nation that REAL Americans, like YOU, are fired up and ready to FIGHT to keep our Republican Senate Majority. The Senate Runoff Election is TOMORROW, and it’s going to take the support of Patriots from all around the Nation if we’re going to WIN BIG and SAVE America from the Radical Left.” Later, at 9:21 p.m., the Campaign sent a fundraising email (in the name of the defendant’s son) that began, “My father is on stage RIGHT NOW in Georgia rallying with Senators KELLYLEOFFLER and DAVIDPERDUE to DEFEND our Senate Republican Majority. Are YOU watching?” The email reminded voters that “The Senate Runoff Election is TOMORROW and YOU are the only one who can stop [the Left'”] from taking over.” Another email at 10:4 1l p.m. (sent in the name of the defendant) began, “I just stepped off stage after speaking at an EPIC Victory Rally in Georgia with Senators KELLYLEOFFLER and DAVIDPERDUE The energy of the American People was UNMATCHED and I know we’ re going to WIN BIG tomorrow.”

Finally, the content of the Dalton speech confirms its unofficial nature. The defendant began by telling the crowd, “Tomorrow, each of you is going to vote in one of the most important runoff elections in the history of our country.. .. You’re going to get everyone you know. You’re going to show up to the polls in record numbers. You got to swamp them, and together, we’re going to defeat the Democrat extremists and deliver a thundering victory to DAVIDPERDUE …And someone that has really been a star in Washington, KELLYLEOFFLER. He also used the speech to pressure Pence. Much of the speech then veered into the defendant’s principal claims of fraud and irregularities in the presidential election, but he occasionally returned to the theme of the following day’s election, including discussion of the Democratic candidates.

ii. The Ellipse on January 6, 2021 (Superseding Indictment, ECF No. 226 86; supra pp. 75-78)

The “content and context” of the Ellipse rally, including the people involved in “organizing the rally,” Trump, 144 S. Ct. at 2340, demonstrate that it too consisted of non-official conduct. The Ellipse rally, named the Save America Rally or the March for Trump, was planned and executed by private political supporters, including Women For America First (WFAF), a 501(c)(4) organization that advocated for the defendant’s reelection in advance of election day in 2020 and throughout the post-election time period. Id. Trump, 144 S. Ct. at 2340 (“Knowing… who was involved in… organizing the rally[] could be relevant to the classification” of the Ellipse speech as official or unofficial.). The Ellipse rally was originally planned to take place at Freedom Plaza, but after WFAF began to plan the rally independent of the defendant, CAROLINEWREN, a private fundraiser for the defendant, contacted WFAF to discuss moving the event to the Ellipse and featuring the defendant as a guest. The organizers and planners of the event were almost exclusively private individuals, with minimal involvement by White House advance staff. The United States Secret Service, which is charged with the President’s protection at all times, even during unofficial events, considered the rally to be a campaign event. The rally was completely funded by a $2.1 million private donation by JULIEFANCELLI, a grocery chain heiress. This private funding, while not dispositive, is a strong indicator that the event was unofficial. RALLYORGANIZERP66, the rally organizer who had the most direct contact with the defendant, was an employee of the defendant’s Campaign until December 31, 2020, and after that, a private citizen. And in public statements since leaving office, the defendant has said repeatedly that he had “nothing to do with” the rally “other than they asked me to make a speech. I showed up for a Speech.”

For weeks leading up to the event, the defendant promoted it on Twitter, using the word “rally”—a word that the defendant, on his Twitter account, reserved almost exclusively for political and campaign events. As with the trip binder for the Dalton remarks, the defendant’s trip binder for the Ellipse speech also reinforces the private nature of the event. Although it does not include the same Hatch Act disclaimer—perhaps because the event, in contrast to the Dalton rally, was not for the benefit of another political candidate—it describes the event as the defendant’s “Remarks at the Save America Rally,” using a word, “rally,” that reflected an unofficial, campaign-related event.

The defendant’s White House employees understood the rally and the defendant’s speech at it to be a private, unofficial exercise and acted accordingly. Consistent with the Hatch Act’s requirement that officials within the Executive Branch (other than the President or Vice President) must refrain from using their official authority for partisan political purposes, see 5 U.S.C. § 7323(a)(1), on the morning of the rally, an email from White House photographer SHEALAHCRAIGHEAD, on which DANSCAVINO was copied, provided a reminder: “today is a political event.” Likewise, the defendant’s White House speechwriting staff understood that the speech was a political, unofficial one and used their personal devices and personal email accounts to do most of the drafting and fact-checking for the defendant’s Ellipse speech, though some last revisions to the speech on the morning of January 6 occurred over White House email. And officials in the White House Counsel’s Office, who customarily reviewed the defendant’s official remarks, pointedly did not review the Ellipse speech because it was an unofficial campaign speech. Similarly, the White House website in the moments after the defendant’s speech at the rally made no mention of it; instead, the official webpage touted official accomplishments like COVID vaccines and peace in the Middle East. By contrast, the speech was advertised heavily by the defendant’s campaign Twitter account, which also repeatedly posted clips of the event in progress and afterward.

The day-of logistics of the Save America Rally further indicate its private nature. No other Executive Branch officials spoke. Instead, other speakers included WFAF officials, the defendant’s political allies, two U.S. Representatives, and the defendant’s co-conspirators and private attorneys, GIULIANI and JOHNEASTMAN.

Moreover, the defendant’s appearance was consistent with a campaign rally, not an official event. The crowd at the rally consisted of the defendant’s political supporters, who held signs and wore clothing bearing the defendant’s campaign slogans. And the manner in which the defendant took the stage at the rally was also consistent with his campaign rallies: instead of entering as a military band played “Hail to the Chief,” as he might at an official presidential event, the defendant entered and exited the Ellipse speech to the songs he had used throughout his campaign (Lee Greenwood’s “God Bless the U.S.A.” and the Village People’s “Y.M.C.A.”).

Tellingly, the significant similarities with the defendant’s Dalton Campaign speech confirm that the Ellipse speech delivered just two days later-was private, partisan electioneering. The defendant covered many of the same topics and told many of the same lies about fraud in only his election-in some cases, using the exact same words. For instance:

The defendant, as a candidate, falsely claimed he had won the election (Dalton at GA 1102: I ran two elections. I won both of them. Second one, much more successful than the first.” Ellipse at GA 1115: “I’ve been in two elections; I won them both, and the second one I won much bigger than the first.”).
The defendant, as a candidate and the leader of a political party, implored political supporters to pressure Pence (Dalton at GA 1090: 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. He’s a great guy. Of course, if he doesn’t come through, I won’t like him quite as much.” Ellipse at GA 1116: “I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election.”).
The defendant, as a candidate and the leader of a political party, attacked a fellow party member who had been insufficiently subservient (Dalton at GA 1104: Georgia Governor BRIANKEMP was an incompetent governor.” Ellipse at GA 1125: BRIANKEMP was “one of the dumbest governors in the United States.”).
The defendant, who in his capacity as a candidate had suffered personal legal defeats in his private, election-related litigation at the Supreme Court, attacked it (Dalton at GA 1095:
“I’m not happy with the Supreme Court. They are not stepping up to the plate. They’re not stepping up.” Ellipse at GA 1125: “I’m not happy with the Supreme Court. They love to rule against me.”).

The defendant, as a candidate, made myriad false claims regarding fraud in the presidential election, including:

ARIZONA

Non-citizens cast 36,000 votes (Dalton at GA 1106: “In Arizona, more than 36,000 votes were cast by non-citizens.” Ellipse at GA 1134: “Over 36,000 ballots were illegally cast by non-citizens.”); and
There were more ballots than voters (Dalton at GA 1106: “There were 11,000 more ballots than there were voters.” Ellipse at GA 1134: “11,600 more ballots and votes were counted, more than there were actual voters.”).

GEORGIA

There were more than 10,000 dead voters (Dalton at GA 1103: “We were up. 10,315 ballots were cast by individuals whose name and date of birth matches a Georgia resident who died in 2020 prior to the election. Then your wacky secretary of state said two people, two people.” Ellipse at GA 1133-1134: “Over 10,300 ballots in Georgia were cast by individuals whose names and dates of birth match Georgia residents who died in 2020 and prior to the election.”);
More than 2,500 ineligible felons voted (Dalton at GA 1103: “2,506 ballots were cast by individuals whose name and date of birth matches an incarcerated felon in a Georgia prison. Maybe they aren’t all there, but they did a lot of work. I paid a lot of money to a lot of people. I can tell you that.” Ellipse at GA 1134: “More than 2,500 ballots were cast by individuals whose names and dates of birth match incarcerated felons in Georgia prison—people who are not allowed to vote.”);
Thousands of unregistered people voted (Dalton at GA 1103: “4,502 illegal ballots were cast by individuals who do not appear on the state’s voter rolls.” Ellipse at GA 1134: “More than 4,500 illegal ballots were cast by individuals who do not appear on the state’s own voter rolls.”);
More than 18,000 voters used vacant addresses (Dalton at GA 1103: “18,325 illegal ballots were cast by individuals who registered to vote using an address listed as vacant according to the postal service.” Ellipse at GA 1134: “Over 18,000 illegal ballots were cast by individuals who registered to vote using an address listed as vacant, according to the Postal Service.”);
At least 88,000 ballots were illegally backdated (Dalton at GA 1103: “At least 86,880 ballots were cast by people whose registrations were illegally backdated.” Ellipse at GA 1134: “At least 88,000 ballots in Georgia were cast by people whose registrations were illegally backdated.”);
Underage voters cast 66,000 ballots (Dalton at GA 1103: “66,000 votes in Georgia were cast by people under the legal voting age.” Ellipse at GA 1134: “66,000 votes—each one of these is far more than we need. 66,000 votes in Georgia were cast by individuals under the legal voting age.”); and
15,000 voters had moved out of the state before the election (Dalton at GA 1103: “At least 15,000 ballots were cast by individuals who moved out of the state prior to the November 3rd election, or maybe they moved back in.” Ellipse at GA 1134: “And at least 15,000 ballots were cast by individuals who moved out of the state prior to November 3rd election. They say they moved right back. They moved right back. Oh, they moved out; they moved right back. Okay. They missed Georgia that much. I do. I love Georgia. But it’s a corrupt system.”).

MICHIGAN

17,000 ballots were cast by dead people (Dalton at GA 1106: “An estimated 17,000 ballots were cast by dead people.” Ellipse at GA 1135: “More than 17,000 Michigan ballots were cast by individuals whose names and dates of birth match people who were deceased.”).

NEVADA

Signature verification machines were flawed (Dalton at GA 1106: “In Clark County, Nevada, over 130,000 ballots, this is far, just so you know, all these numbers, these are far more than we need, were processed on machines where the signature matching threshold was intentionally lowered to a level that you could sign your name, ‘Santa Claus,’ and it wouldn’t pick it up.” Ellipse at GA 1134: “In Clark County, Nevada, the accuracy settings on signature verification machines were purposely lowered before they were used to count over 130,000 ballots.”);
There were tens of thousands of double votes (Dalton at GA 1106: “More than 42,000 people in Nevada double voted.” Ellipse at GA 1134: “There were also more than 42,000 double votes in Nevada.”).

PENNSYLVANIA

The Commonwealth had more votes than voters (Dalton at GA 1105: “In Pennsylvania, there were 205,000 more ballots cast than there were voters.” Ellipse at GA 1127: “So, in Pennsylvania, you had 205,000 more votes than you had voters.”);
8,000 dead people voted (Dalton at GA 1106: “Pennsylvania also had an estimated 8,000 dead voters.” Ellipse at GA 1127: “Over 8,000 ballots in Pennsylvania were cast by people whose names and dates of birth match individuals who died in 2020 and prior to the election.”);
14,000 out-of-state voters voted (Dalton at GA 1106: “14,000 ballots illegally cast by out of state voters.” Ellipse at GA 1127: “Over 14,000 ballots were cast by out-of-state voters. So these are voters that don’t live in this state.”);
400,000 absentee ballots appeared after the election (Dalton at GA 1106: “There’s an unexplained 400,000 vote discrepancy between the number of mail-in ballots in Pennsylvania sent out reported on November 2nd, 2020, and the number reported on November 4th. They can’t explain it. 400,000 previously unreported mail-in ballots, magically appeared. They couldn’t explain it. And all of a sudden they just happened to find 400,000. That’s a lot of people.” Ellipse at GA 1128: “The day before the election, the state of Pennsylvania reported the number of absentee ballots that had been sent out, yet this number was suddenly and drastically increased by 400,000 people. It was increased nobody knows where it came from by 400,000 ballots one day after the election.”); and
Tens of thousands of ballots were received back before they were mailed out (Dalton at GA 1106: “55,000 ballots received back before they were even sent.” Ellipse at GA 1128: “And more than 60,000 ballots in Pennsylvania were reported received back before they were ever supposedly mailed out. In other words, you got the ballot back before you mailed it, which is also logically and logistically impossible. Right?”).

WISCONSIN

Hundreds of illegal drop boxes were used (Dalton at GA 1105: “In Wisconsin over 90,000 ballots were illegally harvested. Can’t do that. Not allowed to. Through so-called human drop boxes and over 500 illegal unmanned drop boxes were put out statewide.” Ellipse at GA 1131: “In Wisconsin, corrupt Democrat-run cities deployed more than 500 illegal, unmanned, unsecured drop boxes, which collected a minimum of 91,000 unlawful votes.”); and
170,000 invalid absentee votes were counted (Dalton at GA 1105: “Over 170,000 absentee votes were counted that are blatantly illegal under Wisconsin law and should never have been included in the tally.” Ellipse at GA 1131: “Over 170,000 absentee votes were counted in Wisconsin without a valid absentee ballot application. So they had a vote, but they had no application, and that’s illegal in Wisconsin.”).

The defendant’s language throughout the speech was that of a candidate focused on his re-election. He claimed that he would not concede, that he received more votes than he had four years earlier, that the election was over by 10:00 p.m. on election night, and that he wanted to go back eight weeks to fix the election result. Significantly, he made many of these statements at the beginning of the speech, framing the themes for the rest of the speech.

In addition, although countless federal, state, and local races also were on the same ballots as the defendant on election day—including those of every sitting member of the House of Representatives, even those on whom the defendant was counting to object at the congressional proceeding—the defendant focused only on his own race, the election for President, and only on allegations favoring him as a candidate in targeted states he had lost. He claimed his election victory was “stolen,” that he would not “concede,” and that “with only three of the seven states in question, we win the presidency of the United States.” He framed the claims of election fraud in terms of his own election and the margin of victory in his own race, and he spoke to his political supporters using the pronoun “we,” showing that he was speaking not to all citizens, but only to his own voters. Finally, the defendant repeatedly aimed accusations at Biden, his principal opponent in the election contest, as would a candidate.

b. TWEETS

One of the tools the defendant used for partisan political advantage and in furtherance of the charged conspiracies was his personal Twitter account. He used his Twitter account to undermine public confidence in the electoral system, spread false claims of election fraud, attack those speaking the truth that the defendant had lost the election, exhort supporters to travel to Washington for the certification proceeding, and marshal his supporters’ anger at, and pressure on, Pence. As described below, an objective analysis of “content, form, and context,” establishes that the select Tweets that the Government intends to offer at trial were unofficial.

As an initial matter, the defendant sent, or directed the sending of, all Tweets and re-Tweets from @realDonaldTrump, the personal Twitter account that the defendant started long before assuming the presidency. The defendant began tweeting from @realDonaldTrump in May 2009. Throughout his campaign for the presidency in 2016, the defendant used this Twitter account for electioneering purposes; he even announced the selection of Pence as his Vice Presidential nominee over Twitter. Since the end of his term in office, the defendant again has used the account for private purposes. During his presidential term, the defendant sometimes used the @realDonaldTrump account to tweet about official business, including regarding COVID relief and vaccines, legislation in Congress, and Executive Branch business. But he also regularly used the account to post on unambiguously private matters—for example, when he posted a picture of himself golfing with Jack Nicklaus and Tiger Woods at the Trump National Golf Club in Jupiter, Florida, and re-tweeted a Trump Organization post about the Trump New York hotel being named the #1 “Best Hotel in the World!”

The Supreme Court’s decision in Lindke v. Freed, 144 S. Ct. 756, 769 (2024), confirms that a public official’s personal social-media account can be used for both personal and public business, and consistent with Trump that a fact-specific inquiry is required to discern into which category a post falls. In conducting the necessary Tweet-by-Tweet analysis, context and content matter. Simply because a Tweet relates to a matter of public concern does not automatically transform it into an official communication. In Blassingame, 87 F.4th at 20, the D.C. Circuit rejected the defendant’s contention that any and all of the President’s communications are immune official acts whenever they involve a matter of public concern. The D.C. Circuit recognized that the “integrity of the 2020 election” was a matter of public concern, but if the defendant spoke about that issue in his personal capacity as a candidate for reelection rather than in his official capacity as President, it was unofficial speech not shielded by immunity. Id. Thus, when a court consults “content and context” to inform the official-act inquiry, see Trump, 144 S. Ct. at 2340, a claim that all Tweets concerning election integrity were official must fail.

An analysis of the @realDonaldTrunmp account during the time period of the charged conspiracies demonstrates that the defendant frequently used the account to advance his unofficial objectives as a candidate. Of the more than 1,200 Tweets, the vast majority were related to the 2020 presidential election. For example, he announced over Twitter that GIULIANI and others were taking over his Campaign legal team, and he repeatedly used the platform to espouse false claims of election fraud and promote political rallies on his behalf. DANSCAVINO the defendant’s Deputy Chief of Staff and the only person other than the defendant with control over the @realDonaldTrump Twitter account, acknowledged that he sometimes consulted with Campaign personnel about material he was going to post on the account, that he worked as a volunteer for the defendant’s Campaign at the same time that he served as Deputy Chief of Staff, and that he did not differentiate between his official and Campaign duties and when he would send Tweets on the account for Campaign purposes as a Campaign volunteer.

A review of the defendant’s official @POTUS45 account presents a relevant contrast. The defendant used this institutional account primarily to re-tweet other accounts like the @realDonaldTrump account, as well as @WhiteHouse. There were 74 Tweets from the @POTUS45 account during the charged conspiracies. None of them include the defendant’s election-related claims or his election challenges. The last four Tweets in the account, which the Government cites here to show context, were re-Tweets of Tweets from @realDonaldTrump regarding January 6. These include two Tweets that the defendant issued on the afternoon of January 6, purportedly asking individuals to support law enforcement and “stay” peaceful; notably, the @POTUS45 account archive does not include the defendant’s Twitter pressure campaign against Pence, such as the 2:24 p.m. Tweet on January 6.

Below, the Government analyzes the “content, form, and context,” id. at 2340, of various categories of the defendant’s Tweets. AIl of these categories consist of unofficial Tweets.

i. Tweets, as candidate, casting doubt on election integrity

As described in Section I, the defendant attempted to discourage mail-in voting and undermine confidence in the election results to prepare to declare victory even if he lost. See, e.g., supra p. 6. Just as his public statements casting doubt on the election were unofficial, so too were the analogous Tweets that the defendant posted in his capacity as a candidate. The context of these Tweets confirms this conclusion. The defendant issued the Tweets in advance of election day, in the midst of his campaign for re-election; furthermore, he made them while his own Campaign advisors were warning him that Biden supporters were much more likely to use mail-in voting, the very method the defendant attempted to discourage. In addition, the Tweets’ content further reinforces their private nature; they show the defendant taking a partisan electioneering position on an issue rather than proposing any official measures to address a problem that the defendant claimed existed.

ii. Tweets making false claims of election fraud

The superseding indictment alleges that the defendant repeated and widely disseminated false claims of election fraud. See, e.g., Superseding Indictment, ECF No. 226 12, 14. One of the ways that he did so was by Tweeting constantly, day in and day out. Examples of the kinds of Tweets that the Government intends to use at trial are set forth throughout Section I, in which the defendant falsely claimed victory and outcome-determinative election fraud in targeted states. See, e.g., supra pp. 22-23, 32, 45, 55-56, 62-63.

These kinds of Tweets all shared common internal characteristics that establish their unofficial nature. The defendant used the language of a candidate when he spoke in terms of his personal electoral victory (“I win!” or “We win!”). He divided his audience between personal allies who supported his election challenges and enemies who did not, dismissing the latter as “RINOS” (shorthand for Republicans in Name Only) or “the Democrats.” And he focused only on fraud claims that would affect his own election and was fixated on his own margin of victory (“far more votes than are necessary to win”).

iii. Tweets and re-Tweets attacking those speaking the truth about the election

On multiple occasions, the defendant issued a Tweet, or re-tweeted an agent’s Tweet, in order to attack individuals who had spoken out publicly to defend the integrity of the 2020 presidential election and reassure the public that there had not been outcome-determinative fraud. These instances include: on November 11, the defendant attacked Philadelphia City Commissioner ALSCHMIDT after he dispelled fraud claims in a television interview that the defendant saw: on November 29, the defendant issued a Tweet attacking CHRISKREBS when he appeared on 60 Minutes: on December 6, the defendant re-tweeted a post by his agent, CHRISTINABOB attacking Arizona House Speaker RUSTYBOWERS for a public announcement that the defendant had not presented Arizona legislators with any evidence of outcome-determinative fraud and that the Arizona legislature could not overturn election results based on unsupported theories of fraud; again on December 6, the defendant re-tweeted a post by his agent, BERNIEKERIK labeling four Republican state legislators cowards” after they issued a public announcement that they could not overturn the popular vote and appoint their own electors; and on December 21, the defendant attacked Wisconsin Supreme Court Justice BRIANHAGEDORN for ruling against him.

(a ) ALSCHMIDT (Superseding Indictment, ECF No. 226 41; supra p. 38)

After ALSCHMIDT then a Philadelphia City Commissioner, gave a television interview on November 11 and made clear that he had not seen evidence of fraud there, the defendant issued a Tweet attacking ALSCHMIDT in partisan terms. The defendant called ALSCHMIDT (RINO)” and finished the Tweet with We win!” In so doing, the defendant was acting as a candidate frustrated that a member of his political party refused to perpetuate the lies the defendant was promoting to advance his personal political interests. a so called Republican

(b) CHRISKREBS (Supra pp. 45)

On November 29, when 60 Minutes aired an interview with CHRISKREBS formerly the CISA director, defending the integrity of the election, the defendant tweeted an attack on the television program and DOMINIONVOTING and claimed that the 2020 election was “probably our least secure EVER!” These complaints about DOMINIONVOTING and mail-in ballots echoed others which the defendant was making regularly as a candidate only in states in which he had lost the election. He also issued the Tweet between two other Tweets in which he was speaking as a candidate. Thirty minutes before the CHRISKREBS Tweet, the defendant used his @realDonaldTrump account to discuss Campaign litigation specifically, he wrote, We have some big things happening in our various litigations on the Election Hoax. Everybody knows it was Rigged. They know Biden didn’t get more votes from the Black community than Obama, & certainly didn’t get 80,000,000 votes. Look what happened in Detroit, Philadelphia, plus!” And within twenty minutes of the CHRISKREBS Tweet, the defendant issued another Tweet about 60 Minutes, this time asking whether the “Fake News” program was paying attention to a Tweet that the defendant then linked to by MICHAELFLYNN then a private citizen-who in tun was publicizing what he characterized as a Campaign litigation victory on the defendant’s behalf by co-conspirator GIULIANI in litigation in Georgia.

The defendant’s Tweet regarding 60 Minutes and CHRISKREBS was unofficial. The Campaign litigation-focused Tweets surrounding it demonstrate that the us” whom the defendant claims 60 Minutes never consulted was the defendant’s Campaign, not his Administration.

(C) RUSTYBOWERS and Pennsylvania legislators (Superseding Indictment, ECF No. 226 21, 43; supra pp. 20, 40)

In the early morning hours on December 6, upon retuning from a Campaign speech in Valdosta, Georgia, the defendant re-tweeted a December 4 Tweet from CHRISTINABOBB who was working with the Campaign and BORISEPSHTYN to overturn the election results-attacking Arizona House Speaker RUSTYBOWERS after RUSTYBOWERS released a public statement that he had not seen evidence of election fraud and could not take action to overturn the election results in Arizona. Just four minutes earlier, the defendant had written Thank you CHRISTINABOBB while re-tweeting another of CHRISTINABOBB Tweets that read, President Trump is back on the campaign trail today!!! America is the best country on earth and @realDonaldTrump is the greatest President!”

On the same day, December 6, the defendant also re-tweeted a Tweet by BERNIEKERIK an agent of the defendant who was working closely with GIULIANI. BERNIEKERIK Tweet attacked four Pennsylvania legislators who, like RUSTYBOWERS had issued a public statement that they could not overturn the valid election results. The defendant re-tweeted BERNIEKERIK post without comment.

Both of the defendant’s re-tweets on December 6 were unofficial. At the time, both CHRISTINABOBB and BERNIEKERIK were, at a minimum, pIivate agents of the defendant who were working to overturn the election results in his favor. CHRISTINABOBB and BERNIEKERIK original Tweets were in service of that objective- they were attempting to pressure state officials to take extralegal actions to replace their states’ duly-ascertained electors with the defendant’s fraudulent ones. The defendant’s re-posting of these private Tweets was similarly private.

(d) BRIANHAGEDORN (Superseding Indictment, ECF No. 226 46; supra p. 41)

On December 21, when Wisconsin’s Governor signed a certificate of final determination confirming that Biden had won the state based on the resolution by the Wisconsin Supreme Court of a lawsuit in Biden’s favor, the defendant took to Twitter to attack Justice BRIANHAGEDORN who had written the majority opinion that ruled against him. The defendant claimed falsely that he had endorsed BRIANHAGEDORN in his election for the Wisconsin Supreme Court, and implied that the endorsement had caused BRIANHAGEDORN to win. The defendant then encouraged “Republicans in Wisconsin” to go to their State Legislators and overturn this ridiculous State Election. We won in a LANDSLIDE!” The entire context of the defendant’s Tweet about BRIANHAGEDORN including his fictitious endorsement of BRIANHAGEDORN his encouragement of Wisconsin Republicans to lobby their legislators, and his claim at the end that “We won” demonstrates that the Tweet as a whole was partisan, personal, and unofficial.

(e) Governor DOUGDUCEY Governor BRIANKEMP and Secretary of State RAFFENSBERGER (supra pp. 18, 26-31)

Throughout the post-election period, the defendant used his status and power as the head of a political party to bring political pressure to bear on fellow Republicans, including Arizona Governor DOUGDUCEY Georgia Governor BRIANKEMP and Georgia Secretary of State RAFFENSBERGER In the Tweets, the defendant assailed the three elected officials because they refused to take extralegal actions to benefit him personally, suggested that they would suffer politically if they did not do as he asked, and repeatedly suggested that they were “RINOS” and not real Republicans. The defendant launched these public attacks both as a candidate for office” and as “a party leader., Trump, 144 S. Ct. at 2340, and they were thus unofficial.

iv. Tweets exhorting individuals to travel to Washington, D.C., for the Save America Rally (Superseding Indictment, ECF No. 226 68, 72, 79(b); supra pp. 60, 64, 71-73)

Beginning on December 19, and continuing through early January. the defendant used the @realDonaldTrump account to promote the private, campaign-style Ellipse rally at which he spoke on the morning of January 6. Indeed, some of the defendant’s Tweets from this account were re- tweeted and amplified by the defendant’s Campaign Twitter account. The defendant’s multiple Tweets on this topic included his initial message that there would be a [b]ig protest in D.C. on January 6th. Be there, will be wild!” In tum, that Tweet linked to a document drafted by PETERNAVARRO that had nothing to do with PETERNAVARRO official duties as a White House trade advisor, but rather constituted unofficial political activity by a Campaign volunteer who the Office of Special Counsel already had determined to have violated the Hatch Act on numerous occasions by attacking the defendant’s opponent during the lead up to the 2020 presidential election. For the reasons described supra pp. 118-126 that make clear that the Ellipse rally was a private event, and the defendant’s remarks there unofficial, his Tweets as a candidate promoting the event were unofficial.

v. Tweets regarding Pence's role on January 6 (Superseding Indictment, ECF No. 226 4 69, 79(a), 82; supra pp. 61, 71-73)

As the defendant set his sights on using Pence’s role as President of the Senate to overturn the election results at the January 6 certification proceeding, concurrent with his direct efforts to pressure Pence, the defendant began to issue Tweets falsely claiming that Pence could use his ministerial position to benefit the defendant as a candidate. For instance, on December 23, the defendant re-tweeted a Tweet by a Campaign surrogate named IVANRAIKLIN, who had posted a facially fake White House memorandum titled “Operation PENCE’ CARD,” which falsely claimed that Pence could unilaterally disqualify legitimate electors. The defendant issued similar Tweets as the certification grew closer, including posting on January 5 that “[t]he Vice President has the power to reject fraudulently chosen electors.” And twice on the morning of January 6, before his speech at the Ellipse rally, the defendant tweeted again about Pence. First, at 1:00 a.m., the defendant wrote, “If Vice President @Mike Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!” He again focused on Pence’s role in the certification at 8:17 a.m. when he wrote, “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme Courage!”

The context and content of these Tweets establish that they were unofficial. Through the Tweets, the defendant was using the political pressure of his supporters and social media followers to convince Pence to take an action to benefit the defendant as a candidate and help him overturn the results of the election. As discussed supra pp. 91-96, the defendant played no official role in the congressional certification proceeding and was not using his Tweets about Pence’s role to advance any Executive Branch or governmental interest. Likewise, the defendant had no role in whether state legislatures might take action regarding their own electoral slates (though his claim that these legislatures were poised to do so was also false). The defendant’s language throughout the Tweets is that of a candidate seeking to win an election, including stating to his political supporters that if Pence “comes through for us, we will win the Presidency” and “All Mike Pence has to do is send them back to the States, AND WE WIN.”

The private and Campaign nature of the Tweets is further confirmed when viewed in the context of the defendant’s increasing desperation as even his unlawful path to remain in power narrowed. When the defendant re-tweeted the “Operation Pence Card” Tweet on December 23, he knew that he had lost the legitimate electoral college vote and had begun summoning supporters to Washington for the Ellipse rally on January 6. When he tweeted on January 5 that Pence had the power to reject fraudulent electors, Pence had already “told him many times” that he did not believe he had such power—including as recently as the day before. And in the early morning hours of January 6, when the defendant again tweeted publicly that Pence should exceed his authority as President of the Senate when counting electoral votes, the defendant’s personal desperation was at its zenith: he was only hours from the certification proceeding that spelled the end.

vi. The defendant's 2:24 p.m. Tweet on January 6 (Superseding Indictment, ECF No. 226 94; supra pp. 80-81)

The defendant’s 2:24 p.m. Tweet aimed at Vice President Pence was unofficial. The defendant personally posted the Tweet on the afternoon of January6 at a point when he already understood that the Capitol had been breached, writing: Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

The defendant’s actions and knowledge in the hours leading up to this Tweet provide helpful context. First, the evening before, on January 5, the defendant had dictated a Tweet to DANSCAVINO as he listened to the angry crowd gathered outside the White House.o42 That Tweet shows that the defendant understood that his gathering supporters, who were angy and believed his false claims that the election had been stolen, were a powder keg. At 5:05 p.m., he tweeted: Washington is being inundated with people who don’t want to see an election victory stolen by emboldened Radical Left Democrats. Our Country has had enough, they won’t take it anymore! We hear you (and love you) from the Oval Office. MAKE AMERICA GREAT AGAIN”

Thereafter, the defendant continued to fixate on preventing the certification proceeding. As described above, he tweeted about it at 1:00 a.m. on January 6 and again at 8:17 a.m. After the 8:17 a.m. Tweet, the defendant worked on his remarks for the Ellipse and planned to include language explicitly putting pressure on Pence regarding the certification until advisors prevailed on him not to.* At 11:15 a.m., the defendant called Pence and tried one last-ditch effort to convince him to fraudulently reject or return Biden’s legitimate electors.040 Pence was resolute and unmoved, and the defendant was furious,.647 Immediately after the call, the defendant directed that the original language targeting Pence be reinserted in his prepared remarks for the Ellipse rally.

The defendant then went to the Ellipse and delivered a falsehood-laden speech to his angry supporters. He purposely singled out Pence by claiming that Pence had the power to overturn the election results and though the defendant stood at the podium with full knowledge that Pence would not do so, gave the crowd false hope that Pence might exercise that power. The defendant told the crowd to act, stating, we can’t let it happen” and then directed his supporters, who were angry and motivated by his speech, to march to the Capitol.

Instead of marching with his supporters as he said he would, the defendant returned to the White House. He went to the dining room next to the Oval Office and began to watch television coverage of the events at the Capitol. Although the Government does not intend to use at trial evidence of the defendant’s discussions with White House staff during this time period, it provides necessary context: when news broke that rioters had breached the Capitol, the defendant’s advisors—including PATCIPOLLONE Deputy White House Counsel, PATRICKPHILBIN and ERICHERSCHMANN.

others—urged him to issue a calming message and make efforts to stop the riot. The defendant refused, responding that the people at the Capitol were angry because the election had been stolen. Eventually, all of the defendant’s staffers left him alone in the dining room. Fox News continued to report on the growing crisis at the Capitol.

It was at that point—alone, watching news in real time, and with knowledge that rioters had breached the Capitol building—that the defendant issued the 2:24 p.m. Tweet attacking Pence for refusing the defendant’s entreaties to join the conspiracy and help overturn the results of the election. One minute later, the Secret Service was forced to evacuate Pence to a secure location in the Capitol. This was roughly ninety minutes after Pence had announced publicly that he would not act unlawfully to overturn the election; the certification proceeding was underway; and the first breach of the Capitol building had occurred minutes before, at 2:12 p.m. At that point, the defendant’s only hope to disrupt the certification proceeding and retain power was through his angry supporters.

The defendant further revealed the private nature of his desperate conduct as a candidate, rather than a President, in an exchange (that the Government does not plan to use at trial) he had with aide NICKLUNA shortly after the 2:24 p.m. Tweet. Upon receiving a phone call alerting him that Pence had been taken to a secure location, NICKLUNA rushed to the dining room to inform the defendant in hopes that the defendant would take action to ensure Pence’s safety. Instead, after NICKLUNA delivered the news, the defendant looked at him and said only, “So what?”

The private, unofficial nature of the 2:24 p.m. Tweet contrasts with two other Tweets the defendant sent during the following hour and a video message he sent two hours later, which the Government does not intend to introduce at trial. Only after advisors had again urged the defendant to calm matters at the Capitol did the defendant, at 2:38 p.m., post, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” As the violence at the Capitol nonetheless escalated, the defendant at 3:13 p.m. posted, “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order—respect the Law and our great men and women in Blue. Thank you!”

And after those Tweets failed to disperse the rioters, and after still more demands from his staff that he do more to stop the riot, the defendant at 4:17 p.m. tweeted a video message in which he finally asked those at the Capitol—whom he described as “very special” people that he “loved”—to leave the Capitol, while also claiming that “[w]e had an election that was stolen from us.” [i]He sent a Tweet at 6:01 p.m. that conveyed a similar sentiment: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

The defendant at least has an argument—though he issued the 2:38 p.m. and 3:13 p.m. Tweets only after being harangued by his staff while he adamantly refused to do anything at all—that he was addressing a matter of public safety as President (the riot at the Capitol). Likewise, in the 4:17 p.m. message, the defendant, while still focused on his election loss, asked rioters to evacuate the breached Capitol and foreshadowed the sentiment in his 6:01 p.m. Tweet when he said to “go home with love & in peace.” By contrast, in the 2:24 p.m. Tweet, the defendant focused solely on the Vice President’s role in the certification of the presidential election results—a matter of intense personal concern to the defendant as a candidate for office. Even assuming that topic constituted a matter of public concern, Blassingame, 87 F.4th at 14, the defendant’s 2:24 p.m. Tweet reflected speech made in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. Id. at 5.Given all of this context, the 2:24 p.m. Tweet was unofficial. When the defendant sent it, he knew that what he had asked Pence to do, and that he claimed would “protect our Country and our Constitution,” was contrary to the ECA; that no state was poised to certify a corrected set of facts; that a large crowd of his political supporters had gathered in Washington at his urging; that these supporters were angry and believed his false claims that the election had been stolen; that he had called them to action through his Ellipse speech, in which he told them that Pence might still do as he wished and directed these supporters to march to the Capitol; and that his supporters had done so and had breached the Capitol building.

The defendant also knew what his advisors were forcefully urging him to do as President: issue a message to quell the emergency at the Capitol. Instead, the defendant refused repeatedly until his advisors gave up and left him alone in the dining room. It was then that the defendant issued the 2:24 p.m. Tweet, as a candidate communicating to his angry supporters that Pence had let him and them down. The content of the 2:24 p.m. Tweet was not a message sent to address a matter of public concern and ease unrest; it was the message of an angry candidate upon the realization that he would lose power. Unlike the defendant’s later Tweets that day, he was not asking the individuals at the Capitol to “remain peaceful,” “leave the building,” or “go home.”

[i] There are, however, strong arguments that all of these Tweets were unofficial. For example, in some of them, the defendant misleadingly suggested that the already-violent crowd should “stay” or remain “peaceful” while failing to urge or direct those unlawfully at the Capitol to leave, as his advisors had urged him to do. He also used the messages to recognize the rioters at the Capitol as his own supporters, calling them “WE” and telling them that they were “very special” and that he loved them. Even as early as the afternoon of January 6, when violence still raged at the Capitol, the defendant justified and revered the rioters’ lawless actions on his behalf when he tweeted that “[t]hese are the things and events that happen” and to “[r]emember this day forever!”

c. OTHER PUBLIC STATEMENTS

By virtue of his status as a candidate for re-election, the defendant occasionally made public statements—whether in response to questions or otherwise. Examples of such statements set forth in Section I include the defendant’s statements in advance of the election to seed public doubt in the outcome (supra p. 6), his televised election night remarks to his supporters (supra pp. 7-8), and his telephonic endorsement of GIULIANI’s false allegations at the Gettysburg “hotel hearing” (supra p. 39).

Each of the defendant’s cited public statements was made in his capacity as a candidate. His pre-election statements, for instance, were made in contexts like the Republican National Convention or amidst discussions about political polling. His election night remarks were made to a room of his supporters and were focused on his status as a candidate in the pending election. His contribution to the Gettysburg “hotel hearing” was made by calling in through one of his private attorneys, who broadcast his personal message by holding her phone to the microphone so that he could make statements supporting those of his private attorneys. In sum, the defendant made all of these comments as a candidate for office, speaking about his own election. They were unofficial.

2. In the alternative, any official portions of the defendant's public speeches, Tweets, or statements should be excised

Alternatively, if segregable portions of the speeches, Tweets, or statements are found to be presumptively immune official conduct, the first alternative would be to excise them from the speeches, allowing the Government to rely on the unofficial statements in those speeches.

The D.C. Circuit has long recognized that district courts have “discretionary power to delete objectionable portions” of evidence where appropriate. United States v. Lemonakis, 485 F.2d 941, 949 (D.C. Cir. 1973). The Supreme Court has approved of that practice in the context of statements that contain protected legislative acts along with unprotected acts under the Constitution’s Speech or Debate Clause. See United States v. Helstoski, 442 U.S. 477, 488 n.7 (1979) (approving the practice of “excising references to legislative acts, so that the remainder of the evidence would be admissible”); see also Gov’t of Virgin Islands v. Lee, 775 F.2d 514, 523 (3d Cir. 1985) (“even where a conversation includes a discussion of both legislative acts and non-legislative acts, the conversation can be examined and the immunized aspects of the conversation deleted”). This is a familiar practice across a range of legal contexts. See, e.g., Samia v. United States, 599 U.S. 635, 653 (2023) (upholding use of a redacted statement to avoid constitutional concerns); Davis v. Washington, 547 U.S. 813, 829 (2006) (“Through in limine procedure, [trial courts] should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.”); In re Rail Freight Fuel Surcharge Antitrust Litig. – MDL No. 1869, 34 F.4th 1, 13 (D.C. Cir. 2022) (relying on Lemonakis). Redaction of any statements ultimately found to be immune, while admitting the significant remaining unofficial content, would resolve any constitutional questions under Trump.

To the extent that excision does not resolve any arguable immunity claim, then even if the defendant’s conduct in these speeches, Tweets, and statements can be nudged across the line from Campaign conduct to official action, it is so heavily intertwined with Campaign-related conduct that prosecuting it does not pose a danger to any Executive Branch function or authority. Because the defendant bears the burden in the first instance of proving that conduct was official so as to qualify for presumptive immunity, the Government in its reply brief will address any specific arguments the defense makes regarding the speeches, Tweets, and statements discussed here.