1. The interactions at issue were unofficial

White House staffers witnessed or engaged in private, unofficial communications with the defendant. These staffers included ERICHERSHMANN the White House Senior Advisor who acted as a conduit between the defendant and the Campaign: DANSCAVINO and P7 who both volunteered for the Campaign while working in the White House: NICKLUNA a staffer who witnessed a pertinent private remark by the defendant; and MOLLYMICHAEL the defendant’s executive assistant.

Federal law confirms that the defendant’s Campaign-related conversations with these White House staffers were unofficial. The Hatch Act permits certain White House staffers to engage in political activity while on duty, see 5 U.S.C. § 7324(a)(1), but prohibits them from using their “official authority or influence for the purpose of interfering with or affecting the result of an election,” 5 U.S.C. § 7323(a)(1). These staffers can thus wear two hats. They can work in their private capacity to advance the interests of a political candidate, including while on official duty, or they can work in their official capacity to carry out Executive Branch responsibilities-but they may not wear both hats at the same time. Accordingly, when the defendant’s White House staff participated in political activity on his behalf as a candidate, they were not exercising their official authority or carrying out official responsibilities. And when the President, acting as a candidate, engaged in Campaign-related activities with these officials or in their presence, he too was not engaging in official presidential conduct.

Precedent from the D.C. Circuit further confirms that the defendant was not engaging in official presidential conduct when he spoke with White House staffers about Campaign matters. In In re Lindsey, 158 F.3d 1263, 1278-79 (D.C. Cir. 1998), the D.C. Circuit recognized that senior White House personnel may serve as the President’s agents in a personal capacity to act as a conduit for unofficial information from a private party. The D.C. Circuit held that while the President’s communications with his personal attorney are “fully protected by the absolute attorney-client privilege,” id. at 1283, a White House lawyer “cannot rely on a government attorney-client privilege to shield evidence from the grand jury,” id. at 1281. But a White House lawyer may invoke the President’s personal attorney-client privilege when he acts as “an intermediary” to convey unofficial information from the President to his personal attorney. Id. As the court explained, a President must often rely on aides to communicate with personal advisors, such as his personal attorneys, and the involvement of those aides does not alter the personal nature of the underlying communication. Id. at 1281-82. Similarly, in this case, the transmission of a private Campaign communication by or to the defendant through a White House employee serving as an intermediary did not render that communication official and thereby shield it from use in a criminal trial against the defendant.

In sum, just as the President can at times act “in an unofficial capacity,” including as “a candidate for office or party leader,” Trump, 144 S. Ct. at 2340, so too can the Executive Branch staff around him. Simply because a staffer holds a title in the Executive Branch and interacts with the President does not mean that the interaction is necessarily official. See Blassingame, 87 F.4th at 14 (noting “the settled understanding that immunity is based on the nature of the function performed, not the identity of the actor who performed it” (quoting Clinton, 520 U.S. at 695)). When the individuals listed below interacted with the defendant in the circumstances described in Section I, those conversations were unofficial.

ERICHERSHMANN

From August 2020 through the end of the defendant’s administration, ERICHERSHMANN was an Assistant to the President without a defined portfolio. More importantly for the Court’s purposes, during the charged conspiracies, ERICHERSHMANN served as a conduit of information from the Campaign to the defendant and discussed Campaign matters with the defendant. These actions were, consistent with In re Lindsey, unofficial.

As part of its immunity analysis, the Court should consider multiple different interactions involving ERICHERSHMANN none of which bear on his official White House responsibilities: (1) a November 13 phone call in which the defendant told ERICHERSHMANN he was going to put GIULIANI in charge of the Campaign’s legal efforts under an agreement where the defendant only would pay if GIULIANI were successful, and ERICHERSHMANN guaranteed the defendant he never would have to pay (supra pp. 11-12): (2) a November conversation with the defendant regarding GIULIANI (supra p. 44): (3) an undated conversation in which he told the defendant that GIULIANI fraud allegations could never be proved in court and the defendant responded, “the details don’t matter” (supra pp. 12-13): (4) a November or December 2020 conversation in which ERICHERSHMANN explained to the defendant why one of his fraud claims was “bullshit” (supra p. 13); (5) a late December exchange with the defendant regarding the verification JOHNEASTMAN wanted him to sign in Trump v. Kemp (supra p. 27): (6) a January 4, 2021, conversation ERICHERSHMANN had with JOHNEASTMAN (ECF No. 226 77; supra p. 66), after which Herschman reported to the defendant that JOHNEASTMAN had admitted his plan was “not going to work” (supra p. 66); and (7) a variety of occasions on which ERICHERSHMANN reported to the defendant that his Campaign and its hired experts had found various election fraud claims to be unsupported (supra p. 12).

Section I also includes actions by ERICHERSHMANN that do not reflect any presidential conduct because the defendant was not involved. These include December 3 text messages that ERICHERSHMANN exchanged with MARKMEADOWS regarding GIULIANI false fraud claims at a Georgia legislative hearing (ECF No. 226 26(a): supra pp. 21-22), and December 13 text messages ERICHERSHMANN exchanged with Campaign personnel regarding the fraudulent elector scheme (ECF  No. 226 60; supra pp. 52-53).
The content of each of ERICHERSHMANN communications with the defendant enumerated above involve the defendant’s Campaign, including the status and viability of the defendant’s fraud claims, the quality of the advice the defendant was receiving from his Campaign advisors, his litigation and electoral prospects, and the legality and practicality of JOHNEASTMAN proposal that Pence reject Biden’s legitimate electors at the certification proceeding. None of the communications pertain to general election policy issues or considerations, Justice Department criminal investigations, Executive Branch functions, or any other presidential responsibilities.

As context for all these communications, the Court should consider ERICHERSHMANN relationship with the defendant, his role in the White House, and his interactions with the Campaign. ERICHERSHMANN relationship with the defendant and his family pre-existed his position in the White House, and ERICHERSHMANN represented the defendant in his impeachment trial. ERICHERSHMANN did not have a defined portfolio, and worked on matters related to the Justice Department, including the Portland riots and Section 230 of the Communications Decency Act, as well as Middle East issues and pardons. The Government does not intend to elicit specific information about communications ERICHERSHMANN had with the defendant regarding his official duties.

ERICHERSHMANN was not acting in an official capacity during the conversations enumerated above, but as a conduit for information from the Campaign. ERICHERSHMANN contact with the Campaign began in October 2020, when he asked Campaign staffers JUSTINCLARK and P72 for a tutorial on campaign basics and operations. He continued to talk to JUSTINCLARK and P72 leading up to the election to understand different electoral college win/loss scenarios. Shortly thereafter, in early November 2020 ERICHERSHMANN asked P77, who handled ethics issues in the White House Counsel’s Office, for permission to engage with the Campaign, and thereafter ERICHERSHMANN began frequent contact with Campaign staff: Several days after the election, ERICHERSHMANN went to the Campaign headquarters in Virginia for the first time, while P2, GIULIANI, P56, SYDNEYPOWELL, JOSEPHDIGENOVA, BERNIEKERIK and JENNAELLIS were there too. As discussed supra p. 9, on November 7 — likely the same day he went to the Campaign headquarters- ERICHERSHMANN joined Campaign staffers, including P2, JUSTINCLARK and JASONMILLER at the White House to discuss with the defendant the fact that networks that morning had projected Biden as the winner of the election. The Campaign staff and ERICHERSHMANN told the defendant his chance of victory was slim. ERICHERSHMANN also participated in various Oval Office meetings with the defendant, Pence, White House staff, Campaign officials, and RONNAMCDANIEL.

The defendant heard and mentioned, to ERICHERSHMANN and others, various fraud allegations throughout the post-election period, sometimes from his outside attorneys like GIULIANI or SYDNEYPOWELL

Consistent with this, ERICHERSHMANN asked JUSTINCLARK and JENNAELLIS if certain fraud allegations were accurate, so that he could challenge information provided to the defendant by people like GIULIANI, SYDNEYPOWELL, and JENNAELLIS. ERICHERSHMANN also began interacting on a near-daily basis with P22, a Campaign staffer who P73 told ERICHERSHMANN he could trust. The Campaign, in turn, hired two outside firms C1 and C2 to investigate fraud allegations. ERICHERSHMANN told the defendant that people external to the Campaign were hired to look into fraud allegations.

Overall, ERICHERSHMANN served as a conduit of day-to-day information between P22 and the defendant during the post-election period. P22 testified that around the time that GIULIANI was named to lead legal efforts, “I was introduced to ERICHERSHMANN…and I started predominately reporting to ERICHERSHMANN. He elaborated that ERICHERSHMANN” started to call me more and more. It would be, you know, once every couple of days that then it was kind of every day for a period of time that I was talking to ERICHERSHMANN. With this information, on a daily basis, ERICHERSHMANN attempted to debunk the false fraud allegations in the White House. For example, after watching P74 testify in a December 10, 2020, hearing in Georgia, ERICHERSHMANN reached out to P22. Through this channel, ERICHERSHMANN learned about C1 and C2 uniform findings-that no substantial fraud allegations were supported essentially in real time. ERICHERSHMANN also participated in calls with C1 and had the number of one of its managing directors, P75 in his cell phone: some of those calls occurred at the White House. ERICHERSHMANN directly passed the information to the defendant.

ERICHERSHMANN had other contact regarding initiatives by the Campaign or its outside attorneys. For example, ERICHERSHMANN was on a call with the defendant and JOHNEASTMAN on December 9 regarding the defendant’s motion, in his capacity as a candidate, to intervene in Texas v. Pennsylvania. Separately, ERICHERSHMANN spoke to the defendant about the lawsuit, and explained how the legal system worked and that the Campaign not the Justice Department or FBI-was responsible for filing election challenge lawsuits.

Throughout these conversations, even if ERICHERSHMANN could be understood to have been

acting in an official capacity which he was not-rather than a Campaign one, the defendant was himself acting in his private capacity as a candidate. The defendant was asking for ERICHERSHMANN view on various strategic decisions he was making regarding his Campaign and his private attorneys, and he was getting reports from ERICHERSHMANN on information related to actual and potential election challenges important to his candidacy and private Campaign. All of this context establishes both that ERICHERSHMANN wore two hats-one official, one private-and that the defendant interacted with ERICHERSHMANN in these conversations as a candidate rather than as President. The interactions between the defendant and ERICHERSHMANN that the Government intends to introduce at trial were thus all private.

DANSCAVINO

DANSCAVINO served as Assistant to the President and White House Deputy Chief of Staff. He also volunteered his time for Campaign work, including traveling to political rallies with the defendant and posting pictures and videos. The Government will elicit from DANSCAVINO at trial that he was the only person other than the defendant with the ability to post to the defendant’s Twitter account, that he sent tweets only at the defendant’s express direction, and that DANSCAVINO did not send certain specific Tweets, including one at 2:24 p.m. on January 6, 2021.  He also will generally describe the defendant’s Twitter knowledge and habits, including that the defendant was *very active on his Twitter account,” “paid attention to how his tweets played with his followers,” “was very engaged in watching the news, ” and” knew how to read the replies and see all the replies of what people were saying and doing which… led to where he would retweet things,” and that any Tweet sent “between 5 or 6 a.m. until 9 or 10 a.m.” and after “9 or 10 p.m.” generally was the defendant personally sending out the Tweet, as opposed to having DANSCAVINO do it. None of this proposed testimony on DANSCAVINO’s part constitutes evidence of an official act. General information about access to the defendant’s Twitter account, as well as DANSCAVINO’s testimony that DANSCAVINO did or did not issue a particular Tweet, is unrelated to any particular official act by the defendant.

P7

P7 was an Assistant to the President and a volunteer for the Campaign. She will testify about two specific sets of conversations: (1l) a handful of conversations in which the defendant, in advance of the election, said that he would simply declare victory (supra p. 5); and (2) an unprompted statement in which the defendant remarked, in a private moment, that GIULIANI claims were crazy’ (supra p. 44).

Regarding the pre-election conversations. P7 has testified that COVID’s expected effect on the election, and in particular the anticipated phenomenon that the defendant would take an early lead in some states based on the election day vote that would dissipate as mail-in ballots were counted, was discussed among Campaign personnel and dual-hat White House staffers who simultaneously volunteered for the Campaign. In that context, the defendant told P7 and others words to the effect of, “We’ll just declare victory.” Regarding the defendant’s statement about SYDNEYPOWELL. P7 will testify about a November 20 phone call in which the defendant mocked and laughed at GIULIANI and called her allegations that he adopted and amplified “crazy.”

In all of these interactions, the defendant was interacting as a candidate with P7 not as President. With respect to his pre-election comments about declaring victory, the context of the conversations indicates that the defendant was responding in real time to information that Campaign staff provided him on private matters.

Similarly, the November 20 conversation among the defendant, P7 and DANSCAVINO regarding GIULIANI was also a Campaign conversation. P7 and DANSCAVINO two staffers who volunteered for the Campaign while working in the White House, were informally discussing with the defendant developments in his Campaign namely that one of his private attorneys had been a source of public embarrassment. The defendant then dialed his private attorney, GIULIANI and made the comment about her claims with her on the muted phone line. The defendant was not seeking advice from White House staffers: he was making fun of his private attorney in the presence of Campaign volunteers.

NICKLUNA

NICKLUNA was an Assistant to the President and Director of Oval Office Operations. At trial, the Government will elicit from NICKLUNA that he witnessed an unprompted comment that the defendant made to his family members in which the defendant suggested that he would fight to remain in power regardless of whether he had won the election. Specifically, following the 2020 election while aboard Marine One, the defendant told his wife, daughter IVANKATRUMP and son-in-law JAREDKUSHNER, “It doesn’t matter if you won or lost the election. You still have to fight like hell.” See supra p. 14-15.02 PI5 happened to overhear this comment, but was not participating in the conversation.

This statement is plainly private. It was exclusively about the election and the defendant’s determination, as a candidate, to remain in power whether he won or lost. The defendant made the comment to his family members, who campaigned on his behalf and served as private advisors (in addition to any official role they may have played). The fact that it was overheard by NICKLUNA a White House staffer, does not convert it to an official communication.

MOLLYMICHAEL

To a limited extent, the allegations in the superseding indictment and the Government’s evidence involve MOLLYMICHAEL the defendant’s executive assistant in the White House. Section I describes multiple instances in which MOLLYMICHAEL received emals intended for the defendant or sent emails on the defendant’s behalf. These instances include: MOLLYMICHAEL sending to a group of private attorneys, including GIULIANI an email with the subject From POTUS” directing the private attorneys to include material critical of DOMINIONVOTING in private lawsuits (see supra PP 42): MOLLYMICHAEL receiving from GIULIANI an email for the defendant providing a copy of the message GIULIANI had drafted to exert pressure on Michigan Senate Majority Leader MIKESHIRKEY (see supra p. 34): MOLLYMICHAEL receiving from RONNAMCDANIEL the RNC’s “Elector Recap” email to put in front of the defendant (see supra p. 57); and MOLLYMICHAEL receiving an email from JOHNEASTMAN on December 23 asking to update the defendant on “overall strategic thinking” on the defendant’s status as a candidate (see supra p. 61).

None of these actions by MOLLYMICHAEL in which she was merely facilitating communications between the defendant and his private attorneys or private political allies, constitute the defendant’s official conduct. MOLLYMICHAEL regularly facilitated the defendant’s purely private matters, including communications with his children about his Thanksgiving travel. The defendant’s reliance on MOLLYMICHAEL to pass messages to and from personal advisors, friends, and family does not render the underlying private communications official. See Lindsev, 158 F.3d at 1281-82.

2. Even if this evidence were deemed official, the Government could rebut any presumption of immunity

Even if an “official” gloss were applied to the defendant’s conversations with White House staff pertaining solely to the President’s chances as a candidate to successfully challenge the election results, the use of such evidence would not intrude on Executive Branch functions or authority. “The Office of the Presidency as an institution is agnostic about who will occupy it next.” Blassingame, 87 F.4th at 4. Whatever blurring of the lines might exist between candidate conduct and official conduct in conversations that the President may conduct with his immediate staff, introducing evidence of conversations with dual-hat White House staff members—those who function in both a Campaign-related capacity and an official advisory capacity when they are speaking to the President in his capacity as a candidate—does not impede decision-making on matters entrusted to the Executive Branch. The Supreme Court required that its rebuttal analysis focus on Executive Branch authority and functions, not merely on anything that the President might say or do while at the White House. Here, the Executive Branch has no authority or function in the certification of the next President. Accordingly, the use of evidence of White House staffers’ Campaign-capacity discussions with the President about how to challenge state election results—challenges brought in his capacity as a candidate—does not risk impairing the constitutional role of the Executive Branch.