# United States of America v. Donald J. Trump - Government's Motion for Immunity Determinations/Section 1F

Layout 2
​F. The Defendant Caused Unlawful Conduct on January 6 and Tried to Take Advantage of the Riot that Ensued
The defendant continued his intense pressure campaign against the Vice President into the early morning hours of January 6. Around 1:00 a.m., the defendant tweeted, falsely: "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!" At 8:17 a.m., as the supporters he had summoned to the city gathered near the White House, the defendant again falsely tweeted about the certification: "States want to correct their votes, which they now know where 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!"
Later that morning, CC5 worked with another attorney for the defendant, who contacted a U.S. Senator to ask him to obtain the fraudulent Wisconsin and Michigan documents from the U.S. Representative's office and hand-deliver them to the Vice President. When one of the U.S. Senator's staffers contacted a Pence staffer by text message to arrange for delivery of what the U.S. Senator's staffer had been told were "[a]lternate slate[s] of electors for MI and WI because [the] archivist didn't receive them," Pence's staffer rejected them.
At 11:15 a.m., shortly before traveling to the Ellipse to speak to his supporters, the defendant called Pence and made one last attempt to induce him to act unlawfully in the upcoming session. When Pence again refused, and told the defendant that he intended to make a statement to Congress before the certification proceeding confirming that he lacked the authority to do what ​the defendant wanted, the defendant was incensed. He decided to re-insert into his Campaign speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in his certification. And the defendant set into motion the last plan in furtherance of his conspiracies: if Pence would not do as he asked, the defendant needed to find another way to prevent the certification of Biden as president. So on January 6, the defendant sent to the Capitol a crowd of angry supporters, whom the defendant had called to the city. and inundated with false claims of outcome-determinative election fraud, to induce Pence not to certify the legitimate electoral votes and to obstruct the certification.
At the Ellipse Campaign rally, CC1 and CC2 spoke just before the defendant. In his rally speech, CC1 sought to cloak the conspiracies in an air of legitimacy, assuring the defendant's supporters that "every single thing that has been outlines as the plan for today is perfectly legal," and introducing CC2 as a "preeminent constitutional scholar" who would further explain this plan. He falsely claimed that legislatures in five states were "begging" to have their electoral ballots returned. CC1 then asserted that Pence could "decide on the ​validity of these crooked ballots" and told the crowd, "[l]et's have trial by combat." CC2 in his speech, claimed that Pence must send electoral votes to state legislatures for "the American people [to] know whether we have control of the direction of our government or not," and decried that "[w]e no longer live in a self-governing republic if we can't get the answer to this question."
When the defendant took the stage at the Ellipse rally to speak to the supporters who had gathered there at his urging, he knew that Pence had refused, once and for all, to use the defendant's fraudulent electors' certificates. The defendant also knew that he had only one last hope to prevent Biden's certification as President: the large and angry crowd standing in front of him. So for more than an hour, the defendant delivered a speech designed to inflame his supporters and motivate them to march to the Capitol.
The defendant told his crowd many of the same lies he had been telling for months—publicly and privately, including to the officials in the targeted states—and that he knew were not true. In Arizona, he claimed, more than 36,000 ballots had been cast by non-citizens. Regarding Georgia, the defendant repeated the falsehood that more than 10,300 dead people voted, and he raised the publicly disproven claims about fraud by election workers at State Farm Arena. He made baseless allegations of dead voters in Nevada and Michigan and false claims about illegally ​counted votes in Wisconsin. And in Pennsylvania, he claimed that there were hundreds of thousands more ballots counted than there had been voters.
The defendant also lied to his rally supporters when he claimed that certain states wanted to reconsider or recertify their duly appointed electors. For instance, he said, "By the way, Pennsylvania has now seen all of this. They didn't know because it was so quick. They had a vote. They voted. But now they see all this stuff, it's all come to light. Doesn't happen that fast. And they want to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back. Mike Pence has to agree to send it back." In response to this lie about Pennsylvania, the defendant's crowd began to chant, "Send it back! Send it back!"
The defendant gave his supporters false hope that Pence would take action to change the results of the election and claimed that Pence had the authority to do so. He falsely told the crowd that Pence could still "do the right thing" and halt the certification, and he extemporized lines about the Vice President through the speech, including the indirect threat, "Mike Pence, I hope you're gonna stand up for the good of our Constitution and for the good of our country. And if you're not, I'm gonna be very disappointed in you. I will tell you right now. I'm not hearing good stories."
​The defendant galvanized his supporters by painting the stakes as critical and assuring them that "history [was] going to be made." He made clear that he expected his supporters to take action, telling them regarding his loss of the election that "we're not going to let that happen," calling on them to "fight" and to "take back" their country through strength, while suggesting that legal means were antiquated or insufficient to remedy the purported fraud, because "[w]hen you catch somebody in a fraud, you're allowed to go by very different rules." Throughout the speech—from as early as about fifteen minutes into it and twice in its final lines—the defendant directed his supporters to go to the Capitol and suggested that he would go with them.
The overall impact of the defendant's speech—particularly in light of months of statements and Tweets falsely claiming election fraud and following on the heels of CC1 and CC2 speeches—was to fuel the crowd's anger. For instance, when the defendant told his supporters that "[w]e will not let them silence your voices. We're not going to let it happen," the crowd chanted, "Fight for Trump," in response. When the defendant soon after told supporters that "we're going to walk down to the Capitol," that they would "never take back our country with ​weakness," and that they had "to show strength and [had] to be strong," members of the crowd shouted, "Invade the Capitol building!" and, "Take the Capitol!"
Thousands of the defendant's supporters obeyed his directive and marched to the Capitol, where the certification proceeding began around 1:00 p.m. Minutes earlier, Pence had issued a public statement explaining that his role as President of the Senate did not include "unilateral authority to determine which electoral votes should be counted and which should not." On the floor of the House of Representatives, Pence opened the certificates of vote and certificate of ascertainment from Arizona, consistent with the ECA. After an objection from a Senator and Representative, the House and Senate retired to their separate chambers to debate it.
Outside of the Capitol building, a mass of people—including those who had traveled to Washington and the Capitol at the defendant's direction—broke through barriers cordoning off the Capitol grounds and advanced on the building. Among these was CC5 who had attended the defendant's speech from the Washington Monument, marched with the crowd to the Capitol, and breached the restricted area surrounding the building. A large portion of the crowd at the Capitol—including rioters who violently attacked law enforcement officers trying to secure the ​buildin—wore clothing and carried items bearing the defendant's name and Campaign slogans, leaving no doubt that they were there on his behalf and at his direction.
Beginning at about 1:30 p.m., the defendant settled in the dining room off of the Oval Office. He spent the afternoon there reviewing Twitter on his phone, while the dining room television played Fox News' contemporaneous coverage of events at the Capitol.
At 2:13 p.m., the crowd at the Capitol broke into the building, and forced the Senate to recess. Within minutes, staffers fled the Senate chamber carrying the legitimate electors' physical certificates of vote and certificates of ascertainment. Next to the Senate chamber, a group of rioters chased a U.S. Capitol Police officer up a flight of stairs to within forty feet of where Pence was sheltering with his family. As they did so, the rioters shouted at the officer, in search of public officials, "Where the fuck they at? Where the fuck they counting the votes at? Why are you protecting them? You're a fucking traitor." On the other side of the Capitol, the House was also forced to recess.
​Fox New's coverage of events at the Capitol included, at about 2:12 p.m., reports of the Capitol being on lockdown and showed video footage of large crowds within the restricted area surrounding the Capitol; much of the crowd was wearing clothing and carrying flags evidencing their allegiance to the defendant. At about 2:20 p.m., video of crowds on the Capitol lawn and West Terrace were shown alongside a chyron stating, "CERTIFICATION VOTE PAUSED AS PROTESTS ERUPT ON CAPITOL HILL." At 2:21 p.m., an on-the-street reporter interviewed an individual marching from the Ellipse to the Capitol who claimed to have come to Washington "because President Trump told us we had something big to look forward to, and I believed that Vice President Pence was going to certify the electorial [sic] votes and, or not certify them, but I guess that's just changed, correct? And it's a very big disappointment. I think there's several hundred thousand people here who are very disappointed. But I still believe President Trump has something else left." And at approximately 2:24 p.m., Fox News reported that a police officer may have been injured and that "protestors. . .have made their way inside the Capitol."
At 2:24 p.m., Trump was alone in his dining room when he issued a Tweet attacking Pence and fueling the ongoing riot: "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!" That afternoon, at the Capitol, a rioter used a bullhorn to read the defendant's Tweet about the Vice President aloud to the crowd trying to gain entry to the ​building. The defendant issued the incendiary Tweet about Pence despite knowing—as he would later admit in an interview in 2023—that his supporters "listen to [him] like no one else."
One minute later, at 2:25 p.m., the Secret Service was forced to evacuate Pence to a secure location. At the Capitol, throughout the afternoon, members of the crowd chanted, "Hang Mike Pence!"; "Where is Pence? Bring him out!"; and "Traitor Pence!" Several rioters in those chanting crowds wore hats and carried flags evidencing their allegiance to the defendant. In the years since January 6, the defendant has refused to take responsibility for putting Pence in danger, instead blaming Pence. On March 13, 2023, he said, "Had Mike Pence sent the votes back to the legislatures, they wouldn't have had a problem with Jan. 6, so in many ways you can blame him for Jan. 6. Had he sent them back to Pennsylvania, Georgia, Arizona, the states, I believe, number one, you would have had a different outcome. But I also believe you wouldn't have had 'Jan. 6' as we call it."
Rioters—again, many bearing pro-Trump paraphernalia indicating their allegiance—breached the Senate chamber, rifled through the papers on the Senators' desks, and stood on the dais where Pence had been presiding just minutes earlier. On the House side, rioters watched ​as police evacuated lawmakers from the House chamber, smashing glass windows surrounding a locked door that stood between them and the fleeing Members and staffers. At least one rioter recorded video showing Members being evacuated while the growing crowd screamed at the Capitol Police officers guarding the locked door to the House Speaker's Lobby.
Some of the worst violence of the day took place outside the Capitol on the Lower West Terrace—the side of the building facing the Ellipse where the defendant had given his speech. There, scaffolding placed in anticipation of the January 20 Inauguration created a tunnel leading to a set of double glass doors into the center of the Capitol building. After rioters had forced their way onto restricted Capitol grounds and past the temporary barriers, including layers of snow fencing and bike racks, they attacked the law enforcement officers trying to protect the building with flag poles, bear spray, stolen police riot shields, and other improvised weapons. Of his time defending the Capitol, one Metropolitan Police Department Officer said:
I feared for my life from the moment I got into that—we were walking into the crowd, when the Capitol Police officer was leading us into the front line. And especially when I got sprayed in the middle of the crowd. I—at that point, honestly, I thought, this is it. Yeah, multiple times. . .You know, you're getting pushed, kicked, you know, people are throwing metal bats at you and all that stuff. I was like, yeah, this is fucking it.
The officer described that the rioters he encountered at the Capitol were wearing both "tactical gear" and "Trump paraphernalia" and appeared to be acting out of "pure, sheer anger."
​In the years after January 6, the defendant has reiterated his support for an allegiance to rioters who broke into the Capitol, calling them "patriots" and "hostages," providing them financial assistance, and reminiscing about January 6 as "a beautiful day." At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times—opening the event with a song called "Justice for All," recorded by a group of charged—and in many cases, convicted—January 6 offenders known as the "January 6 Choir" and who, because of their dangerousness, are held at the District of Columbia jail. At the Waco Rally, of the January 6 Choir, the defendant said, "our people love those people, they love those people." The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.
On the evening of January 6, the defendant and CC1 attempted to exploit the violence and chaos at the Capitol by having CC1 call Senators and attempt to get them to further delay the certification. At around 7:00 p.m., CC1 placed calls to five U.S. Senators and one U.S. Representative. CC6 attempted to confirm phone numbers for Members of Congress whom ​the defendant had directed CC1 to call. In a voicemail that CC1 intended for one Senator, CC1 said, "I'm calling you because I want to discuss with you how they're trying to rush this hearing and how we need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they're reconvening at eight tonight, but the only strategy we can follow is to object to numerous states and raise issues so that we can get ourselves into tomorrow—ideally until the end of tomorrow." He then asked the Senator to "object to every state" to "give us the opportunity to get the legislators who are very, very close to pulling their votes." This concession—that legislatures had not yet asked to review their slates—stood in contrast to CC1 and the defendant's lies at the Ellipse that they already had. Next, in a voicemail intended for another Senator, CC1 told more lies. He falsely claimed that Pence's decision not to use the defendant's fraudulent electors' certificates had been surprising, and that in light of the surprise, "we could use a little time so that the state legislatures can prepare even more to come to you and say, "Please give this back to us for a while so we can fix it."" CC1 then repeated knowingly false claims of election fraud, including that non-citizens had voted in Arizona and an outcome-determinative number of underage voters had cast ballots in Georgia.
Although the attack on the Capitol successfully delayed the certification for approximately six hours, the House and Senate resumed the Joint Session at 11:35 p.m. But the conspirators ​were not done. Within ten minutes, at 11:44 p.m., CC2 who earlier that day wrote to P58 that "[t]he 'siege' is because YOU and your boss did not do what was necessary"—emailed P58 again and urged him to convince Pence to violate the law, writing, "I implore you to consider one more relatively minor violation [of the ECA] and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here."
At 3:41 a.m. on January 7, as President of the Senate, Pence announced the certified results of the 2020 presidential election in favor of Biden.
* ↑ GA 940-941 (Donald J. Trump Tweet 01/06/2021).
* ↑ GA 1929 at 02:16:45 (Video of Ellipse Rally 01/06/2021).
* ↑ GA 942-943 (Donald J. Trump Tweet 01/06/2021).
* ↑ GA 1664 ( ); GA 55-56 ( ); GA 102-103 ( ); GA 262-263 ( ).
* ↑ GA 1665-1666 ( ); GA 1667 ({{redact|50).
* ↑ GA 359 ( ).
* ↑ GA 371-373 ( ); GA 227-228 ( ); GA 471-472 ( ); GA 1668-1669 ( ).
* ↑ GA 405-406 ( ); GA 1670 ( ); GA 638-642 ( ); GA 1680 ( ); GA 1681 ( ); GA 231 ( ); GA 371 ( ).
* ↑ See, e.g., GA 886-887 (Donald J. Trump Tweet 12/26/2020); GA 897-898 (Donald J. Trump Tweet 12/27/2020); GA 899-900 (Donald J. Trump Tweet 12/30/2020; GA 905-906 (Donald J. Trump Tweet 01/01/2021); GA 907-908 (Donald J. Trump Tweet 01/01/2021); GA 913-914, GA 1891 (Donald J. Trump Tweet 01/01/2021); GA 928-929 (Donald J. Trump Tweet 01/04/2021); GA 932-933 (Donald J. Trump Tweet 01/05/2021).
* ↑ See GA 1928 (Video of Ellipse Rally 01/06/2021).
* ↑ GA 1928 at 2:19:27 (Video of Ellipse Rally 01/06/2021).
* ↑ GA 1928 at 2:19:40 (Video of Ellipse Rally 01/06/2021).
* ↑ GA 1928 at 2:20:13 (Video of Ellipse Rally 01/06/2021).
* ↑ GA 1928 at 2:22:10 (Video of Ellipse Rally 01/06/2021).
* ↑ Id.
* ↑ GA 1928 at 2:27:08 (Video of Ellipse Rally 01/06/2021).
* ↑ GA 1928 at 2:27:21 (Video of Ellipse Rally 01/06/2021).
* ↑ GA 1928 at 3:31:20-4:42:50 (Video of Ellipse Rally 01/06/2021).
* ↑ GA 1134 (Ellipse Rally Speech Draft Tr. 01/06/2021).
* ↑ GA 1133-1134 (Ellipse Rally Speech Draft Tr. 01/06/2021).
* ↑ GA 1134 (Ellipse Rally Speech Draft Tr. 01/06/2021).
* ↑ GA 1131 (Ellipse Rally Speech Draft Tr. 01/06/2021).
* ↑ GA 1127, 1131 (Ellipse Rally Speech Draft Tr. 01/06/2021).
* ↑ GA 1128 (Ellipse Rally Speech Draft Tr. 01/06/2021).
* ↑ GA 1896 at 5:10 (Rallygoer Video 01/06/2021).
* ↑ GA 1116 (Ellipse Rally Speech Draft Tr. 01/06/2021).
* ↑ Compare GA 1133 (Ellipse Rally Speech Draft Tr. 01/06/2021) with GA 1683 (Ellipse Rally teleprompter speech excerpt.)
* ↑ GA 1122 (Ellipse Rally Speech Draft Tr. 01//06/2021).
* ↑ GA 1116 (Ellipse Rally Speech Draft Tr. 01//06/2021).
* ↑ See, e.g., GA 1120, 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021).
* ↑ Id.
* ↑ GA 1137 (Ellipse Rally Speech Draft Tr. 01//06/2021).
* ↑ GA 1120, 1140, 1141 (Ellipse Rally Speech Draft Tr. 01//06/2021).
* ↑ GA 1116 (Ellipse Rally Speech Draft Tr. 01//06/2021).
* ↑ GA 1897 at 3:18 (Rallygoer Video 01/06/2021).
* ↑ GA 1120 (Ellipse Rally Speech Draft Tr. 01//06/2021).
* ↑ Id.
* ↑ Id.
* ↑ GA 1898 at 00:19 (Rallygoer Video 01/06/2021).
* ↑ See, e.g., GA 1930 at 1:09:30 (Video of Ellipse Rally 01/06/2021); GA 1942 (Video of March to Capitol 01/06/2021); GA 1941 at 02:10-2:33 (Video of March to Capitol 01/06/2021).
* ↑ GA 1937 at 20:47 (Video of House Floor 01/06/2021).
* ↑ GA 1685 (Pence Dear Colleague Letter 01/06/2021).
* ↑ GA 1937 at 26:24 (Video of House Floor 01/06/2021).
* ↑ See, e.g., GA 1915 at 3:25 (Video of Capitol Riot 01/06/2021).
* ↑ GA 1687 ( ); GA 1688 ( ); GA 1689 ( ; GA 1690 ( ); GA 1583-1585 ( ).
* ↑ GA 1912 at 56:56 (Video of Capitol Riot 01/06/2021); GA 1924 at 38:48 (Video of Capitol Riot 01/06/2021); GA 1918 (Video of Capitol Riot 01/06/2021); GA 1919 (Video of Capitol Riot 01/06/2021); GA 1921 at 04:30 (Video of Capitol Riot 01/06/2021); see also GA 2-3 ( ).
* ↑ GA 1902 (
* ↑ GA 168-169 ( ); GA 292-293 ( ); GA 540, 541-544 ( ); GA 232, 236 ( ).
* ↑ GA 1957 at 1:04-1:25 (Video of Senate Wing Door CCTV 01/06/2021); GA 1954 at 44:16 (Video of Senate Floor 01/06/2021).
* ↑ United States v. Hale-Cusanelli, No. 21-cr-37, ECF No. 93 at 38-39 (D.D.C. June 3, 2022) (Trial Tr. 05/24/2022).
* ↑ GA 1923 (Video of Capitol Riot 01/06/2021); GA 177-178 ( ).
* ↑ GA 175 ( ); see also GA 176, 179 ( ); GA 1916 at 00:50 (Video of Capitol Riot 01/06/2021).
* ↑ GA 1937 at 1:34:00 (Video of House Floor 01/06/2021).
* ↑ GA 1931 at 12:12 (Video of Fox News Coverage 01/06/2021).
* ↑ GA 1931 at 20:11 (Video of Fox News Coverage 01/06/2021).
* ↑ GA 1931 at 21:47 (Video of Fox News Coverage 01/06/2021).
* ↑ GA 1931 at 24:05-24:14 (Video of Fox News Coverage 01/06/2021).
* ↑ GA 946-947 (Donald J. Trump Tweet 01/06/2021); GA 546 ( ).
* ↑ GA 1922 (Video of Capitol Riot 01/06/2021).
* ↑ GA 1693 (Transcript of CNN Town Hall 05/10/2023).
* ↑ GA 1944 (Video of Pence Evacuation 01/06/2021).
* ↑ GA 1914 (Video of Capitol Riot 01/06/2021).
* ↑ GA 1911 (Video of Capitol Riot 01/06/2021).
* ↑ GA 1910 (Video of Capitol Riot 01/06/2021).
* ↑ Isaac Arnsdorf and Maeve Reston, Trump claims violence he inspired on Jan. 6 was Pence’s fault, Wash. Post, (Mar. 13, 2023, 8:09 p.m.), https://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/.
* ↑ GA 1956 (Video of Senate Gallery Doors CCTV 01/06/2021).
* ↑ GA 1955 at 16:20 (Video of Senate Floor 01/06/2021).
* ↑ GA 1955 at 29:15 (Video of Senate Floor 01/06/2021).
* ↑ GA 1938 at 00:05 (Video of House Floor 01/06/2021); GA 1905 (Video inside Capitol Building 01/06/2021).
* ↑ GA 1936 at 06:18 (Video of House Chamber Doors 01/06/2021).
* ↑ GA 1920 (Video of Capitol Riot 01/06/2021); GA 1917 at 54:30 (Video of Capitol Riot 01/06/2021).
* ↑ GA 5-6 ( ).
* ↑ GA 4 ( ).
* ↑ GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).
* ↑ GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).
* ↑ GA 1966 at 09:30 (Video of Trump Interview 09/01/2022}.
* ↑ GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023).
* ↑ GA 1973 at 3:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v, Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).
* ↑ GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).
* ↑ GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).
* ↑ GA 1904 at row 1383 ( ); GA 1696 ( ).
* ↑ GA 1697 ( ); GA 1401-1406 ( ); GA 1698-1701 ( ).
* ↑ GA 1702 ( ).
* ↑ GA 1977 ( ).
* ↑ GA 2928 at 2:20:13, 3:37:54 (Video of Ellipse Rally 01/06/2021).
* ↑ GA 1975 ( ).
* ↑ Id.
* ↑ Id.
* ↑ GA 1703 (Congressional Record 01/06/2021).
* ↑ GA 1705-1709 ( ).
* ↑ GA 1925 at 19:14, 20:34 (Video of Congress Joint Session 01/06/2021); GA 1704 at 41 (Congressional Record 01/06/2021).