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

Layout 2
​D. The Defendant Organized and Caused His Electors to Submit Fraudulent Certificates Creating the False Appearance That States Submitted Competing Electoral Slates
By late November 2020, every effort—both legitimate and illegitimate—that the defendant had made to challenge the results of the election had been unsuccessful. The defendant, his ​Campaign, and their allies had lost or withdrawn one election lawsuit after another in the seven targeted states. And the defendant and co-conspirators' efforts to overturn the legitimate vote count through a pressure campaign on state officials, and through false claims made directly to state legislators in formal or pseudo-hearings, continued to fail. So in early December, the defendant and his co-conspirators developed a new plan regarding the targeted states that the defendant had lost (Arizona, Georgia, Nevada, New Mexico, Pennsylvania, and Wisconsin): to organize the people who would have served as the defendant's electors had he won the popular vote, and cause them to sign and send to Pence, as President of the Senate, certifications in which they falsely represented themselves as legitimate electors who had cast electoral votes for the defendant. Ultimately, the defendant and his co-conspirators would use these fraudulent electoral votes—mere pieces of paper without the lawful imprimatur of a state executive—to falsely claim that in his ministerial role presiding over the January 6 certification, Pence had the authority to choose the fraudulent states over the legitimate ones, or to send the purportedly "dueling" states to the state legislatures for consideration anew.
The fraudulent elector plan's arc and obstructive purpose is reflected in a series of memoranda drafted in late November and early December by CC5 an attorney who volunteered to assist the defendant's Campaign in lawsuits challenging the election in Wisconsin. Beginning with a memorandum drafted on November 18, CC5 advocated that the defendant's elector nominees in Wisconsin meet and cast votes on the date required by the ECA (in 2020, December 14) in the event that an ongoing recount in the state reversed the defendant's loss there. But this course of action—which CC5 Wisconsin memorandum ​presented as a contingency plan to preserve the possibility that the defendant's electors' votes be counted at the January 6th certification proceeding if he prevailed in the Wisconsin litigation and won the state—quickly transformed into a corrupt strategy to overturn the legitimate election results. CC5 revealed this obstructive plan in two additional memoranda, dated December 6 and December 9, which proposed that the defendant's elector nominees in six of the targeted states—all but New Mexico, a state the defendant lost by more than ten percent of the popular vote, sparsely referenced in his false claims of voter fraud, and did not envision challenging at the inception of the elector scheme—meet on December 14, sign fraudulent certifications, and send them to the Vice President to manufacture a fake controversy during the January 6 congressional certification.
The defendant personally set the fraudulent elector plan in motion in early December, ensured that it was carried out by co-conspirators and Campaign agents in the targeted states, and monitored its progress. By December 5, the defendant was starting to think about Congress's role in the election process; for the first time, he mentioned to Pence the possibility of challenging the election results in the House of Representatives. In the same call, Pence told the defendant that the Georgia Bureau of Investigation was investigating their race.
​On December 6, the same day that CC5 put the plan on paper, the defendant and CC2 called RNC Chairwoman P39 out of the blue. P39 did not know CC2 and the defendant introduced him to P39 by saying that he was a professor and a lawyer, thereafter, P39 was the primary speaker during the conversation. CC2 told P39 that he and the defendant wanted the RNC "to help the campaign assemble the electors in the states where we had legal challenges, or litigation that was ongoing. . .in case any of that litigation changed the result of a state so that it would meet the constitutional requirement of electors meeting." When the call ended, P39 immediately called P3 one of the defendant's deputy Campaign managers, and relayed her conversation with defendant and CC2 After P3 assured P39 that the Camapign was "on it," P39 called the defendant back and told him so. On the same day, from his personal email account, P21 forwarded to Campaign staff CC5 November 18 memorandum and wrote, "We just need to have someone coordinating the electors for states." And the following day, on the evening of December 7, CC1 sent P39 a text message stating in part, "I have lawyers assigned in each state working on Dec 14 electors meeting and what they need. I will send you a list."
The defendant's co-conspirators worked with his Campaign staff, and used his pre-election Campaign apparatus, to execute the fraudulent elector plan. The defendant communicated with ​ CC1 and CC2 about the plan, and they in turn communicated with CC6 and CC5 Ultimately, P5 P19 and other Campaign staff and agents helped carry out CC5 plans.
On December 8, CC5 spoke on the phone with P53 a private attorney whom CC1 and CC6 had identified as a contact for the plan in Arizona. Following the call, P53 recounted the conversation in an email:
I just talked to the gentleman who did that memo, CC5 . His idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren't legal under federal law—because they're not signed by Governor); so that members of Congress can fight about whether they should be counted on January 6th. (They could potentially argue that they're not bound by federal law because they're Congress and make the law, etc.) Kind of wild/creative—I'm happy to discuss. My comment to him is that I guess there's no harm in it, (legally at least)—i.e. we would just be sending in "fake" electoral votes to Pence so that "someone" is Congress can make an objection when they start counting votes, and start arguing that the "fake" votes should be counted.
On December 9, CC6 contacted P39 for assistance with a request from CC5 for "a list of our electors in each state and copies of the certificates sent in 4 years ago." P39 responded that Campaign employees were already assisting in the effort and referred CC6 to P3 The next day, at CC1 direction, CC5 generated directions to the ​electors in all of the targeted states except for Wisconsin (which had already received his memos) and New Mexico (which he had not yet been asked to do) on how best to mimic the manner in which valid electors were required by state law to gather and vote, along with fraudulent certificates of vote for the defendant's electors to sign.
The day before the defendant's electors were scheduled to meet and sign fraudulent certificates of vote, the defendant asked Campaign advisor P4 for an update on the elector plan and directed P4 to issue a statement, and CC1 asked P4 to participate in a messaging conference call. P4 dicussed these developments in a text thread with P3 Campaign Staffer P54 and P9 After P4 proposed a communications plan for the Campaign on the elector vote, P9 wrote to P3 "I'll call soon and we'll talk with boss." The participants then discussed to whom a Campaign statement could be attributed. P3 wrote, "Here's the thing the way this has morphed it's a crazy play so I don't know who wants to put their name on it." P4 then shared with those on the text thread the invites to the call CC1 was convening— CC1 CC6 P12 P19 P55 and P56 and derogatorily referred to them as the "Star Wars bar," meaning a motley assortment of characters, and in this case specifically one whose professional competence P4 doubted and ​whom he personally would not choose to hire. P9 responded, "Certifying illegal votes." Thereafter, the text participants collectively agreed that no message would go out under their names because they "can't stand by it." In the midst of these text messages, P9 P4 and P3 had a nineteen-minute phone call with the defendant.
In practice, the fraudulent elector plan played out somewhat differently in each targeted state. In general, the co-conspirators deceived the defendant's elector nominees in the same way that the defendant and CC2 deceived P39 by falsely claiming that their electoral votes would be used only if ongoing litigation were resolved in the defendant's favor. A select few of the defendant's agents and elector nominees, however, had insight into the ultimate plan to use the fraudulent elector certificates to disrupt the congressional certification on January 6. In several states, the defendant, his co-conspirators, and agents were unable to convince all of the defendant's elector nominees to participate. P57 for instance, a former U.S. Representative and U.S. Attorney and one of the defendant's elector nominees in Pennsylvania who opted out of the plan, told the state party vice chair trying to organize the defendant's electors ​that he would not participate because the plan did not follow the proper process and was illegal. When electors like P57 declined, the conspirators and agents had to recruit substitutes willing to go along with the plan. Other electors who participated based on the conspirators' false assurances that their votes were only a contingency were later surprised to learn that they were used on January 6—and would not have agreed to participate if the conspirators had been truthful about their plan.
In Pennsylvania, the defendant's elector nominees' concern about the propriety of the plan presented a problem for the conspirators. In text messages that P5 and CC6 exchanged on December 11 into the early morning hours of December 12, P5 told CC6 that P46 the state Republican Party Chairman whom the defendant had called shortly after the election—"is winding up the electors. Telling them if the[y] sign the petition they could be prosecuted. Need a counter argument or someone has to call him and tell him to stop." CC6 responded, "Have someone who knows him call him to tell him to stop." P5 replied, "That's the plan. PA is squishy right now. Going to need a call with CC1 tomorrow."
On December 12, CC1 CC5 CC6 and others held a conference call organized by the Campaign to placate the defendant's Pennsylvania electors. CC1 falsely ​assured them that their certificates of vote would be used only if the defendant succeeded in litigation. During the call, some of the defendant's conspirators and agents exchanged text messages expressing frustration at the electors' concerns. P5 wrote, "Whoever selected this slate should be shot." P12 responded, "These people are making this so much more complicated than it needs to be omg" and "We couldn't have found 20 people better than this???" P5 agreed, writing, "We need good substitutes." When the possibility arose than the electors' certificates of vote include conditional language making clear they were not yet the duly-appointed electors, P5 wrote, "The other States are signing what CC5 prepared - if it gets out we changed the language for PA it could snowball."
On December 13, the eve of when the electors were to meet, the defendant was preoccupied with preventing the certification of the electoral vote. He tweeted: "Swing States that have found massive VOTER FRAUD, which is all of them CANNOT LEGALLY CERTIFY these votes as complete & correct without committing a severely punishable crime. Everybody knows that dead people, below age people, illegal immigrants, fake signatures, prisoners, and many others voted illegally. Also, machine 'glitches' (another word for FRAUD), ballot harvesting, non-resident voters, fake ballots, 'stuffing the ballot box', votes for pay, roughed up Republican Poll Watchers, and sometimes even more votes than people voting, took place in Detroit, Philadelphia, Milwaukee, Atlanta, Pittsburgh, and elsewhere. In all Swing State cases, there are far more votes ​than are necessary to win the State, and the Election itself. Therefore, VOTES CANNOT BE CERTIFIED. THIS ELECTION IS UNDER PROTEST!"
Ultimately, the Pennsylvania electors insisted upon using conditional language in their elector certificates to avoid falsely certifying that they were duly-appointed electors. And in New Mexico—the state that CC5 's memoranda did not even address—the defendant's Campaign filed a pretextual lawsuit just minutes before the fraudulent electors met so that there was litigation pending at the time of the vote. Notwithstanding obstacles, the defendant and his co-conspirators successfully organized his elector nominees and substitutes to gather on December 14 in the targeted states, cast fraudulent electoral votes on his behalf, and send those fraudulent votes to Washington, D.C., in order to falsely claim at the congressional certification that certain states had sent competing slates of electors.
When possible, the defendant and co-conspirators tried to have the fake electoral votes appear to be in compliance with state law governing how legitimate electors vote. For example, ​the co-conspirators knew that some states required that the duly-appointed electors meet and cast their votes in the state capitol building. To make it seem like they had complied with this requirement, state officials were enlisted to provide the fraudulent electors with access to state capitol buildings so that they could gather and vote there. In many cases, however, the conspirators and fraudulent electors were unable to comply with state law for legitimate electors. For example, Pennsylvania law required the Governor to give notice whenever an elector was substituted, but the conspirators could not arrange for the Governor to give notice when P46 and others opted out and had to be replaced. Thereafter, CC5 and others brainstormed fake excuses for their failure to follow state law, writing, "maybe we can use Covid19 as an excuse for the Governor not giving notice."
Then, on December 14—the date that duly-appointed electors across the country met to cast their votes, and when the defendant's fraudulent electors in seven states mimicked them— P39 followed up with the defendant. When she received an internal RNC email titled "Electors Recap - Final," which summarized the day's activities with respect to electors and included a list of six "contested" states in which the defendant's electors voted, she forwarded it to the defendant's executive assistant, P42 who responded, "It's in front of him!" ​ P39 also called the defendant to tell him that she had sent him the update, and she spoke to CC1 shortly before CC1 spoke to the defendant.
At the same time that the defendant's fraudulent electors were preparing to gather and cast fraudulent votes, the defendant's co-conspirators began planning how to use the fraudulent votes to overturn the election results at the January 6 certification. On December 13, CC5 sent CC1 a memorandum that envisioned a scenario in which Pence would use the fraudulent slates as a pretext to claim that there were dueling slates of electors from the targeted states and negotiate a solution to defeated Biden. On the same day, the defendant resumed almost daily direct contact with P1 who maintained a podcast that disseminated the defendant's false fraud claims. On December 14, P1 podcast focused on spreading lies about the defendant's fraudulent electors—including the false claim that their votes were merely a contingency in the event the defendant won legal challenges in the targeted states.
On December 16, CC5 traveled to Washington with a group of private attorneys who had done work for the defendant's Campaign in Wisconsin for a photo opportunity with the defendant in the Oval Office. During the encounter, the defendant complained about Wisconsin ​Supreme Court Justice P49 who two days earlier had cast the deciding vote in rejecting the defendant's election challenge in the state. As the group was leaving, the defendant spoke directly—and privately—to CC5
As late as early January, the conspirators attempted to keep the full nature of the fraudulent elector plan secret. On January 3, for instance, in a private text message exchange, CC6 wrote to CC5 "Careful with your texts on text groups. No reason to text things about electors to anyone but CC2 and me." CC5 responded, "K," and CC6 followed up, "I'm probably a bit paranoid haha." CC5 wrote, "A valuable trait!"
* ↑ GA 1245-1246 ( ); GA 1247-1248 ( ).
* ↑ GA 1249-1255 ( CC5 memo 11/18/2020).
* ↑ GA 1256-1259 9 ).
* ↑ GA 1260-1265 ( CC5 memo 12/06/2020).
* ↑ GA 1266-1270 ( CC5 memo 12/09/2020).
* ↑ GA 1271 ( ; GA 1272 (New Mexico Certificate of Ascertainment); GA 1273-1282 ( ).
* ↑ GA 1283-1284 ( ); GA 436-437 ( ; GA 1019 (Pence, So Help Me God, p. 433).
* ↑ GA 1283-1284 ( ); GA 438-439 ( ).
* ↑ GA 1260-1265 ( P50 memo 12/06/2020).
* ↑ GA 323*325 ( ).
* ↑ GA 324-325 ( ).
* ↑ GA 325 ( ).
* ↑ GA 325-327 ( ).
* ↑ GA 326-327 ( ).
* ↑ GA 1285 ( ).
* ↑ GA 1286-1287 ( ).
* ↑ GA 1288-1290 ( ); GA 1247 ( ).
* ↑ GA 1291-1295 ( ).
* ↑ GA 1296-1299 ( ); GA 1300-1309 ( ).
* ↑ GA 1312-1317 ( ; GA 1318-1320 ( ); GA 1321-1324 ( ).
* ↑ GA 1296-1299 ( ).
* ↑ GA 1325 ( ).
* ↑ GA 1296-1299 ( ).
* ↑ GA 1326-1327 ( ).
* ↑ GA 1288-1290 ( ).
* ↑ GA 1328 ( ); GA 1310-1311 ( ); GA 1334-1335 ( ); GA 1336-1338 ( to ); GA 1342-1344 ( ); GA 1345-1346 ( ).
* ↑ GA 1300 ( ); GA 394-395 ( ).
* ↑ GA 1301 ( ).
* ↑ GA 1304 ( ).
* ↑ GA 1305-1306 ( ); GA 396-397 ( ).
* ↑ GA 1306 ( ).
* ↑ GA 1308 ( ).
* ↑ GA 744 ( ).
* ↑ GA 1347-1349 ( ); GA 1350-1356 ( 2020); GA 97-98 ({{redact|24); GA 517-518 ( ).
* ↑ GA 1888 at 3:15-4:32 ( 2020); GA 1296-1299 ( ).
* ↑ See, e.g., GA 625-633 ( ); GA 320-321 ( ); GA 265 ( ); GA 1362-1365 (Fraudulent "Georgia's Electoral Votes for President and Vice President"); GA 1372-1373 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); GA 1383-1389 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President").
* ↑ GA 320-321 ( ).
* ↑ GA 519-520 ( 024).
* ↑ GA 164-165 ( ); GA 522-523 ( ); GA 488-495 ( ).
* ↑ GA 618-619 ( ); GA 723-724, GA 726 ( ).
* ↑ GA 1318 ( ).
* ↑ GA 1319 ( ).
* ↑ Id.
* ↑ GA 1394-1398 ( ); GA 1399 ( ).
* ↑ GA 743 ( ); GA 1400 ( ); GA 621 ( ).
* ↑ GA 1407 ( ).
* ↑ GA 1407-1408 ( ).
* ↑ GA 1408 ( ).
* ↑ GA 867-872 (Donald J. Trump Tweets 12/13/2020).
* ↑ GA 1407-1408 ( ); GA 1409-1410 ( ); GA 1411-1412 ( ); GA 1413-1415 ( ); GA 622-625 ( ).
* ↑ GA 1416 ( ); GA 1273-1282 ( ).
* ↑ GA 1417-1419 ( ).
* ↑ GA 1420-1424 (Fraudulent "Arizona's Electoral Votes for President and Vice President"); GA 1357-1368 (Fraudulent "Georgia's Electoral Votes for President and Vice President"); GA 1369-1379 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); GA 1425-1444 (Fraudulent "Nevada's Electoral Votes for President and Vice President"); GA 1445-1450 (Fraudulent "New Mexico's Electoral Votes for President and Vice President"); GA 1380-1393 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President"); GA 1451-1457 (Fraudulent "Wisconsin's Electoral Votes for President and Vice President" ).
* ↑ GA 1266-1270 ( CC5 memo 12/09/2020).
* ↑ GA 1268-1270 ( CC5 memo 12/09/2020).
* ↑ GA 1473-1475 ( ); GA 1458-1472 ( ); GA 1476 ( ).
* ↑ GA 1458-1472 ( ).
* ↑ GA 1270 ( CC5 memo 12/09/2020); GA 1390 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President").
* ↑ GA 1477-1482 ( ).
* ↑ GA 328-329 ( ).
* ↑ Id; see also GA 1438-1484 ( ).
* ↑ GA 329 ( ).
* ↑ GA 745 ( ); GA 1485 ( ).
* ↑ GA 1486 ( ); GA 1487-1493 ( ).
* ↑ See, e.g., GA 744 ( ); GA 749 ( ); GA 750 ( ); GA 751 ( ); GA 753 ( ); GA 756 ( ); GA 758-759 ( ); GA 763 ( ); GA 764 ( ); GA 765 ( ); GA 768, 770 ( ); GA 771 ( ).
* ↑ GA 1979 ( ).
* ↑ GA 1494 ( ); GA 1495 ( ); GA 1498-1500  ); GA 746 ( ); GA 747-748 ( ); GA 100-101 ( ).
* ↑ GA 497-498 ( ).
* ↑ GA 498-500 ( ).
* ↑ GA 1501-1502 ( ).