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

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​E. The Defendant's Interactions, in his Capacity as a Candidate, with White House Staff
    1. The interactions at issue were unofficial
White House staffers witnessed or engaged in private, unofficial communications with the defendant. These staffers included P9 the White House Senior Advisor who acted as a conduit between the defendant and the Campaign; P45 and P7 who both volunteered for the Campaign while working in the White House; P15 a staffer who witnessed a pertinent private remark by the defendant; and P42 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.
       a. P9
From August 2020 through the end of the defendant's administration, P9 was an Assistant to the President without a defined portfolio. More importantly for the Court’s purposes, during the charged conspiracies, P9 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 P9 none of which bear on his official White House responsibilities: (1) a November 13 phone call in which the defendant told P9 he was going to put CC1 in charge of the Campaign's legal efforts under an agreement where the defendant only would pay if were CC1 successful, and P9 guaranteed the defendant he never would have to pay (supra pp. 11-12); (2) a November conversation with the defendant regarding CC3 (supra p- 44); (3) an undated conversation in which he told the defendant that CC1 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 P9 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 CC2 wanted him to sign in Trump v. Kemp (supra p. 27); (6) a January 4, 2021, conversation P9 had with CC2 (ECF No. 226 ¶ 77; supra p. 66), after which reported to the defendant that CC2 had admitted his plan was "not going to work" (supra p. 66); and (7) a variety of occasions on which P9 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 P9 that do not reflect any presidential conduct because the defendant was not involved. These include December 3 text messages that P9 exchanged with P21 regarding CC1 false fraud claims at a Georgia legislative hearing (ECF No. 226 ¶ 26(a); supra pp. 21-22), and December 13 text messages P9 exchanged with Campaign personnel regarding the fraudulent elector scheme (ECF No. 226 ¶ 60; supra pp. 52-53).
The content of each of P9 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 CC2 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.
​ P9 was not acting in an official capacity during the conversations enumerated above, but as a conduit for information from the Campaign. P9 contact with the Campaign began in October 2020, when he asked Campaign staffers P3 and P72 for a tutorial on campaign basics and operations. He continued to talk to P3 and P72 leading up to the election to understand different electoral college win/loss scenarios. Shortly thereafter, in early November 2020 P9 asked P77 , who handled ethics issues in the White House Counsel's Office, for permission to engage with the Campaign, and thereafter P9 began frequent contact with Campaign staff. Several days after the election, P9 went to the Campaign headquarters in Virginia for the first time, while P2 CC1 P56 CC3 P10 P48 and P12 were there too. As discussed supra p. 9, on November 7—likely the same day he went to the Campaign headquarters— P9 joined Campaign staffers, including P2 P3 and P4 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 P9 told the defendant his chance of victory was slim. P9 also participated in various Oval Office meetings with the defendant, Pence, White House staff, Campaign officials, and P39
The defendant heard and mentioned, to P9 and others, various fraud allegations throughout the post-election period, sometimes from his outside attorneys like CC1 or CC3 ​Consistent with this, P9 asked P3 and P72 if certain fraud allegations were accurate, so that he could challenge information provided to the defendant by people like CC1 CC3 and P12 P9 also began interacting on a near-daily basis with P22 a Campaign staffer who P73 told P9 he could trust. The Campaign, in turn, hired two outside firms—C1 and C2 to investigate fraud allegations. P9 told the defendant that people external to the Campaign were hired to look into fraud allegations.
Overall, P9 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 CC1 was named to lead legal efforts, "I was introduced to P9 . . . and I started predominately reporting to P9 He elaborated that P9 "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 P9 With this information, on a daily basis, P9 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, P9 reached out to P22 Through this channel, P9 learned about C1 and C2 uniform findings—that no substantial fraud allegations were supported—essentially in real time. P9 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. P9 directly passed the information to the defendant.
P9 had other contact regarding initiatives by the Campaign or its outside attorneys. For example, P9 was on a call with the defendant and CC2 on December 9 regarding the defendant's motion, in his capacity as a candidate, to intervene in Texas v. Pennsylvania. Separately, P9 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 P9 could be understood to have been acting in 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 P9 view on various strategic decisions he was making regarding his Campaign and his private attorneys, and he was getting reports from P9 on information related to actual and potential election challenges important to his candidacy and private Campaign. All of this context establishes both that P9 wore two hats—one official, one private—and that the defendant interacted with P9 in these conversations as a candidate rather than as President. The interactions between the defendant and P9 that the Government intends to introduce at trial were thus all private.
       b. P45
P45 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 P45 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 P45 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. or until 9 or 10 p.m." generally was the defendant personally sending out the Tweet, as opposed to having P45 do it. None of this proposed testimony on P45 's part constitutes evidence of an official act. General information about access to the defendant's Twitter account, as well as P45 's testimony that P45 did or did not issue a particular Tweet, is unrelated to any particular official act by the defendant.
       c. P7
P7 was an Assistant to the President and a volunteer for the Campaign. She will testify about two specific sets of conversations: (1) 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 CC3 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 CC3 , P7 will testify about a November 20 phone call in which the defendant mocked and laughed at CC3 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 P45 regarding CC3 was also a Campaign conversation. P7 and P45 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, CC3 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.
       c. P15
P15 was an Assistant to the President and Director of Oval Office Operations. At trial, the Government will elicit from P15 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 P14 and son-in-law P13 "It doesn’t matter if you won or lost the election. You still have to fight like hell." See supra p. 14-15. P15 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 P15 a White House staffer, does not convert it to an official communication.
       d. P42
To a limited extent, the allegations in the superseding indictment and the Government's evidence involve P42 the defendant's executive assistant in the White House. Section I describes multiple instances in which P42 received emails intended for the defendant or sent emails on the defendant's behalf. These instances include: P42 sending to a group of private attorneys, including CC3 an email with the subject "From POTUS" directing the private attorneys to include material critical of C3 in private lawsuits (see supra ​pp. 42); P42 receiving from CC1 an email for the defendant providing a copy of the message CC1 had drafted to exert pressure on Michigan Senate Majority Leader P37 (see supra p. 34); P42 receiving from P39 the RNC's "Elector Recap" email to put in front of the defendant (see supra p. 57); and P42 receiving an email from CC2 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 P42 in which she was merely facilitating communications between the defendant and his private attorneys or private political allies, constitute the defendant’s official conduct. P42 regularly facilitated the defendant's purely private matters, including communications with his children about his Thanksgiving travel. The defendant’s reliance on P42 to pass messages to and from personal advisors, friends, and family does not render the underlying private communications official. See Lindsey, 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 or in their Campaign-related capacity 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.
* ↑ Indeed, at least two of the witnesses— P9 and P45 consulted with the White House Counsel's Office about their ability to engage with the Campaign, demonstrating that they understood their roles with respect to the Campaign were distinct from their White House roles.
* ↑ GA 671 ( )
* ↑ GA 671, 697 ( ); GA 700 ( ).
* ↑ GA 671-672 ( ).
* ↑ GA 672-673 ( ).
* ↑ GA 673, 686 ( ).
* ↑ GA 673 ( ).
* ↑ GA 194-195 ( ).
* ↑ GA 196-197 ( ).
* ↑ See, e.g., GA 683-684 ( ).
* ↑ GA 673 ( ); GA 710 ( ).
* ↑ GA 704 ( ); GA 715 ( ).
* ↑ GA 715 ( ).
* ↑ GA 716 ( ).
* ↑ GA 58 ( ).
* ↑ GA 59
* ↑ GA 719 ( ).
* ↑ GA 715, 719 ( ).
* ↑ GA 719, 721 ( ).
* ↑ GA 717-718 ( ).
* ↑ GA 713 ( ).
* ↑ GA 687 ( ).
* ↑ GA 526 ( ).
* ↑ GA 528-529 ( ).
* ↑ GA 527 ( ); GA 545 ( ).
* ↑ GA 241-244 ( ).
* ↑ GA 246-249 ( )
* ↑ GA 250-253 ( )
* ↑ GA 258 ( )
* ↑ GA 307 ( ); GA 304-305 ( ).
* ↑ GA 308 ( ).
* ↑ GA 309 ( ).
* ↑ GA 1904 at row 1151 ( ) (11/17/2020, "Hi ! Your dad is going to stay in DC for thanksgiving - just wanted to let you know!" from P42 to 16) row 1765, 1153 (11/16/2020, "Has DJT solidified his Thanksgiving plans" from P73 to P42 she responded, "As of earlier today, FLOTUS wants to stay up here and POTUS is on board, as of now").