# United States of America v. Donald J. Trump - Government's Motion for Immunity Determinations/Section 3A

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​A. The Defendant's Interactions with Pence
The only conduct alleged in the original indictment that the Supreme Court held was official, and subject to at least a rebuttable presumption of immunity, was the defendant's attempts to lie to and pressure Vice President Pence to misuse his role as President of the Senate at the congressional certification. The Supreme Court stated that "[w]henever the President and Vice President discuss their official responsibilities, they engage in official conduct," and further explained that because Pence's role at the certification was "a constitutional and statutory duty of the Vice President," the defendant was "at least presumptively immune from prosecution for such conduct." 144 S. Ct. at 2336. Accordingly, unlike all of the other threshold determinations that the Court will have to make about whether the defendant's conduct alleged in the superseding indictment was official, with respect to the defendant's conversations with Pence about Pence's official role at the certification proceeding, the Court can skip to the second step: whether the Government can rebut the presumption of immunity that the Supreme Court held applies to such conversations. Because the Executive Branch has no role in the certification proceeding—and indeed, the President was purposely excluded from it by design—prosecuting the defendant for his ​corrupt efforts regarding Pence poses no danger to the Executive Branch's authority or functioning.
As described below, the Government also intends to introduce at trial evidence regarding conversations between the defendant and Pence in which they did not discuss Pence's official responsibilities as President of the Senate and instead acted in their private capacities as running mates. And the Government intends to elicit at trial evidence about a Pence staffer's conversations with co-conspirator CC2 Those conversations were unofficial and therefore not immune.
    1. The defendant's interactions with Pence as the President of the Senate were official, but the rebuttable presumption of immunity is overcome
The superseding indictment and the Government's trial evidence include the defendant's attempts to influence Pence's "oversight of the certification proceeding in his capacity as President of the Senate." Trump, 144 S. Ct. at 2337. These conversations included one-on-one conversations between the defendant and Pence (see, e.g., supra pp. 49, 63-65, 72-74, describing conversations on December 5 and 25, 2020, and January 1, 3, 5, and 6, 2021), as well as conversations in which the defendant included private actors, such as co-conspirator CC2 in his attempts to convince Pence to participate in the conspiracies (see, e.g., supra pp. 66-67 and 71-72, describing conversations on January 4 and 5, 2021).
The Supreme Court held that discussions between the defendant and Pence concerning Pence's role at the certification proceeding qualify as official conduct, and therefore are subject to ​a rebuttable presumption of immunity, because they involved "the President and the Vice President discuss[ing] their official responsibilities." Id. at 2336. Those discussions qualify as official because "[p]residing over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President." See id. at 2336; U.S. Const. Art. I, § 3, cl. 4. The discussions at issue did not pertain to Pence's role as President of the Senate writ large, however, but instead focused only on his discrete duties in presiding over the certification proceeding—a process in which the Executive Branch, by design, plays no direct role. Trump, 144 S. Ct. at 2337. A prosecution involving the defendant's efforts to influence Pence in the discharge of this particular duty, housed in the Legislative Branch, would not "pose any dangers of intrusion on the authority and functions of the Executive Branch." Id.
The Executive Branch has no authority or function to choose the next President. Blassingame, 87 F.4th at 17. To the contrary, the Constitution provides that the States will appoint electors to vote for the President and Vice President. U.S. Const. Art. II, § 1, cl. 2. And all States have chosen to make such appointments based on the ballots cast by the people in their respective states. See Chiafalo v. Washington, 591 U.S. 578, 581 (2020). "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes," U.S. Const. Art. II, § 1, cl. 4, but the Executive Branch has no direct role in that process. The next step in the process established by the Constitution similarly provides no role for the Executive Branch: the House and Senate meet in joint session, with the President of the Senate present to "open all the certificates" of the state-appointed electors in the presence of the House and Senate, for them to be counted. U.S. Const. Amend. XII. "The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed." Id. Only if the state-appointed electors have failed to make a choice, i.e., no candidate ​has such a majority, does the choice fall to the House of Representatives, who, voting by state delegation, "choose immediately, by ballot," from the three presidential candidates receiving the most electoral votes. Id. There, too, the Executive Branch plays no role in the process.
The exclusion of the Executive Branch reflects fundamental constitutional principles. The "executive Power" is "vested in a President" only for "the Term of four Years," U.S. Const. Art. II, § 1, cl. 1, and it transfers to his successor, by operation of law, "at noon on the 20th day of January," U.S. Const. Amend. XX. Permitting the incumbent President to choose his own successor—or, worse still, to perpetuate himself in power—would contradict the entire constitutional system that the Framers created. "In free Governments," Benjamin Franklin explained, "the rulers are the servants, and the people their superiors [and] sovereigns." 2 The Records of the Federal Convention of 1787, at 120 (Max Farrand ed., 1911). A government could not be considered a "genuine republic," Madison argued, unless "the persons administering it," including the President, "be appointed, either directly or indirectly, by the people; and that they hold their appointments" for a "definite period." The Federalist No. 39 (J. Madison). Thus, while the Framers recognized "the necessity of an energetic Executive," they justified and checked his power by ensuring that he always retained "a due dependence on the people." The Federalist No. 70 (A. Hamilton); see Seila Law LLC v. CFPB, 591 U.S. 197, 223-24 (2020). The Framers further recognized that while regular elections would serve as "the primary control on the government," "experience has taught mankind the necessity of auxiliary precautions" as well. The Federalist No. 51 (J. Madison).
Some of those precautions are reflected in the design of the Electoral College itself. "[W]ary of 'cabal, intrigue, and corruption,'" the Framers "specifically excluded from service as electors 'all those who from situation might be suspected of too great devotion to the president in ​office.'" Trump, 144 S. Ct. at 2339 (quoting The Federalist No. 68 (A. Hamilton)). They were keenly aware, as Justice Story later explained, that "an ambitious candidate" could hold out "the rewards of office, or other sources of patronage," in an effort "to influence a majority of votes; and, thus, by his own bold and unprincipled conduct, to secure a choice, to the exclusion of the highest, and purest, and most enlightened men in the country." Joseph Story, 3 Commentaries on the Constitution of the United States § 1450, at 314 (1833 ed.). To guard against that possibility, Article II provides that "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." U.S. Const. Art. II, § 1, cl. 2. As a leading early American commentator observed, these limitations serve "to prevent the person in office, at the time of the election, from having any improper influence on his re-election, by his ordinary agency in the government." See 1 James Kent, Commentaries on American Law *276 (8th ed. 1854).
The Constitution’s structure further reflects the Framers' considered choice to exclude the incumbent President from playing a role in choosing the next President. The Constitution reflects an abiding concern that governmental "power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it," not least to protect against "the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate." The Federalist No. 48 (J. Madison); see Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) ("The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive."). The Framers therefore designed a system of separated powers in part to ensure that "[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity." The Federalist No. 10 (J. Madison).
​The defendant's charged conduct directly contravenes these foundational principles. He sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people. As such, applying a criminal prohibition to the defendant’s conduct would not pose any danger of intrusion on the authority and functions of the Executive Branch; rather, it would advance the Constitution’s structural design to prevent one Branch from usurping or impairing the performance of the constitutional responsibilities of another Branch. See Clinton v. Jones, 520 U.S. 681, 699702 (1997).
History confirms that presidents have never understood their wide-ranging duties to encompass any direct role in the function of collecting, counting, and certifying the results of a presidential election. As President Lincoln explained in 1864, "[b]y the Constitution and laws the President is charged with no duty in the conduct of a presidential election in any State," and "[i]f any election shall be held, and any votes shall be cast in the State of Tennessee for President and Vice President of the United States, it will belong, not to the military agents, nor yet to the Executive Department, but exclusively to another department of the Government, to determine whether they are entitled to be counted, in conformity with the Constitution and laws of the United States." 8 Collected Works of Abraham Lincoln, 71-72 (1953). When Congress later sent to Lincoln for his signature a "Joint resolution declaring certain States not entitled to representation in the electoral college," Lincoln signed the resolution "in deference to the view of Congress implied in its passage and presentation to him," but "disclaim[ed] all right of the Executive to interfere in any way in the matter of canvassing or counting electoral votes." House Special Committee, Counting Electoral Votes, H.R. Misc. Doc. No. 44-13, at 229-230 (1877). The Government is aware of no contrary evidence, including of any President, other than the defendant, ​seeking to influence his Vice President in the discharge of his duties as President of the Senate in presiding over the joint session. The absence of any such historical tradition is reinforced by the fact that in 22 of the 59 certification proceedings the Vice President has not presided at all. See Joel K. Goldstein, The Ministerial Role of the President of the Senate in Counting Electoral Votes: A Post-January 6 Perspective, 21 U. N.H. L. Rev. 369, 402 & App'x 1 (2023).
When it comes to the certification proceeding specifically, not only has the President been deliberately excluded from the process, but the Vice President's role, as President of the Senate, is highly circumscribed and ministerial in nature. The Twelfth Amendment gives the President of the Senate no substantive role in determining how to count the votes of the electors appointed by the states. Rather, it provides only that he "shall, in the presence of the Senate and House of Representatives, open all the certificates," and then shifts to the passive voice: "and the votes shall then be counted." Nothing in the Constitution remotely suggests that the single individual serving as President of the Senate would have the momentous responsibility to decide which votes to count and how they should be counted. Indeed, as Pence himself explained on January 6, 2021, giving the President of the Senate such a role "would be entirely antithetical to the [Constitution's] design." And, removing any possible doubt, "Congress has legislated extensively to define the Vice President's role in the counting of the electoral votes," Trump, 144 S. Ct. at 2337 (citing 3 U.S.C. § 15), and it has never provided any substantive role for the Vice President, instead assigning the resolution of disputes to the two Houses of Congress. Moreover, Congress has ​now made explicit—echoing and reaffirming constitutional tradition and practice—that, with limited exceptions of no relevance to this case, "the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties," 3 U.S.C. § 15(b)(1). He "shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors." Id. § 15(b)(2). Because the Vice President's role is and has always been ministerial, rather than substantive or discretionary, it is difficult to imagine an occasion in which a President would have any valid reason to try to influence it. As such, criminalizing a President's efforts to affect the Vice President's role as the President of the Senate overseeing the certification of Electoral College results would not jeopardize an Executive Branch function or authority.
Critically, applying a criminal prohibition to the discrete and distinctive category of official interactions between the President and Vice President alleged in this case would have no effect—chilling or otherwise—on the President's other interactions with the Vice President that implicate Executive Branch interests. The President would still be free to direct the Vice President in the discharge of his Executive Branch functions, such as "presid[ing] over. . .cabinet meetings," engaging in "diplomacy and negotiation," or performing any other presidential duties that the President chooses to delegate. See Trump, 144 S. Ct. at 2336 (internal quotation marks omitted). The President would likewise still be free to advise the Vice President on how to "advance the ​President's agenda in Congress," by casting tiebreaking votes on legislation or nominations. Id. at 2337. None of these legitimate Executive Branch functions would be chilled or affected at all.
Lastly, the fact that the defendant regularly included other private actors, such as his private attorney and co-conspirator CC2 in some conversations to attempt to pressure Pence (Superseding Indictment, ECF No. 226 ¶¶ 75-76; supra pp. 66-67, 71-72) strengthens the conclusion that prosecuting the defendant for his actions using CC2 to help recruit Pence into the conspiracies does not infringe on any Executive Branch authority or function. As set forth in Section I, private co-conspirators worked to schedule the January 4 meeting at which CC2 attempted to pressure Pence. Although White House Counsel P59 was invited to the meeting, when he arrived to attend, the defendant explicitly excluded him from it—meaning that the only attorney attending the meeting for the defendant was CC2 his privately-retained counsel. In P59 telling, when P59 arrived at the Oval Office for the meeting, the defendant "said words. . .indicating he didn't want me at the meeting." It is hard to imagine stronger evidence that conduct is private than when the Presient excludes his White House Counsel and only wishes to have his private counsel present.
Next, the phone call on January 5 that the defendant and CC2 made to Pence, P58 and P8 was the result of the private co-conspirators' failure to convince P58 and P8 to do as CC2 urged in the meeting on the morning of January 5 that P58 and P8 took at the defendant's request. The defendant's decision to include private actors in the conversations with Pence about his role at the certification makes even more clear that there is no danger to the Executive Branch's functions and authority, because the CC2 conversations had no bearing on any Executive Branch prerogative. Instead, all of this conduct objectively benefitted the defendant ​in his private capacity as a candidate. The Court should therefore find the presumption of immunity to be rebutted. And because the presumption is rebutted, any participant in the meeting or phone call—including Pence, P58 and P8 can testify about it at trial.
    2. The defendant's interactions with Pence as a running mate were unofficial
At trial, as indicated supra pp. 12-14, the Government intends to introduce evidence of private phone calls or in-person meetings (which occasionally included Campaign staff) that the defendant had with Pence in their unofficial capacities, as running mates in the post-election period. These conversations were not described in the original indictment nor analyzed by the Supreme Court in its opinion, nor are they described in the superseding indictment. In these conversations, the defendant and Pence discussed their electoral prospects, election-related litigation, and the possibility of the defendant running again in 2024 if his legal challenges failed. For example, Pence "tried to encourage" the defendant "as a friend," when news networks projected Biden as the winner of the election; on other occasions, softly suggested the defendant "recognize [the] process is over" even if he was unwilling to concede; and encouraged the defendant to consider running for election again in 2024. Although the defendant and Pence naturally may have touched upon arguably official responsibilities that were tangential to their election prospects—for instance, whether the federal government should begin its logistical transition to prepare for a different Administration—the overall context and content of the conversations demonstrate that they were primarily frank exchanges between two candidates on a shared ticket, and the Government does not intend to elicit testimony about any peripheral discussion of arguably official responsibilities. See Blassingame, 87 F.4th at 17 ("[A] President ​acts in private, unofficial capacity when engaged in re-election campaign activity."); see also United States v. Helstoski, 442 U.S. 477, 488 n. 7 (1979) (in the Speech or Debate context, when an act contains both protected legislative components and non-protected components, the correct course is to "excis[e] references to legislative acts, so that the remainder of the evidence would be admissible"). Together, these discussions show the defendant and Pence considering advice from their shared Campaign advisors, weighing electoral strategies, and grappling with their loss. Both men had something to gain by winning re-election, making more notable the persistence of Pence's suggestions on how to accept the results of the election without losing face.
Even if the Court determines that these conversations were official, however, the Government can rebut the presumption of immunity because the use of this evidence poses no risk to Executive Branch prerogatives. The content of the conversations at issue—the defendant and Pence's joint electoral fate and how to accept the election results—have no bearing on any function of the Executive Branch. See Blassingame, 87 F.4th at 4 ("The Office of the Presidency as an institution is agnostic about who will occupy it next.").
3. P58 one-on-one interactions with CC2 were unofficial.
Pence staffer P58 also participated in a January 5 meeting with CC2 and P8 (Superseding Indictment, ECF No. 226 ¶ 78a; supra pp. 69-70) and on January 6 engaged in a lengthy email exchange with CC2 (Superseding Indictment, ECF No. 226 ¶ 99; supra p. 85). These interactions were outside of the defendant's presence, and the latter was a series of emails. These conversations were not official, within the meaning of Trump, since the defendant was not involved and did not otherwise direct P58 actions, and because of the other information above describing CC2 inherently private role.
* ↑ The Government's factual proffer also describes a conversation between the defendant and Pence on December 19—the same day that the defendant issued his "will be wild!" Tweet calling supporters to Washington—in which the defendant told Pence that it would be good to have lots of their supporters in town on January 6. See supra pp. 60. At trial, the Government intends to use this unofficial portion of the conversation, held between running mates, but not Pence's response, which included a reference to the certification proceeding on January 6. GA 440-441 ( ); GA 1020 (Pence, So Help Me God p. 437). See infra p. 145-146.
* ↑ GA 1685 (Pence Dear Colleague Letter 01/06/2021).
* ↑ Legislation confirming the ministerial nature of that role dates to the Electoral Count Act of 1887, Pub. L. 49-90, 24 Stat. 373 (1887). See 3 U.S.C. §§ 15-18 (2020 ed.) (assigning all power to resolve vote-counting disputes to the two Houses of Congress, while assigning to the President of the Senate only the ministerial duties of "presiding," "preserv[ing] order," "open[ing]. . .the certificates," "call[ing] for objections," and "announc[ing] the state of the vote" after receiving the results from the tellers).
* ↑ Section 15 of Title 3 was amended in the Electoral Count Reform Act of 2022, Pub. L. 117-328, 136 Stat. 4459, 5237-40 (2022), in response to the defendant’s conduct here, to eliminate any doubt that the President of the Senate’s role at the joint session is ministerial. And because the rebuttal analysis is necessarily prospective in nature, the current version of Section 15 supplies the relevant measure, in this context, of "the Vice President's role in the counting of electoral votes," Trump, 144 S. Ct. at 2337.
* ↑ GA 120-121 ( ).
* ↑ See, e.g., GA 1037 ( ); GA 425-426 ( ). See GA 1018 (Pence, So Help Me God p. 432).