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

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​E. The Defendant Attempted to Persuade Pence to Reject Votes Cast by Duly-Appointed Electors and Choose the Defendant's Fraudulent Ones
As the defendant's various attempts to target the states failed, and the January 6 congressional certification approached, the defendant and co-conspirators turned their attention to Pence, who as President of the Senate presided over the certification proceeding. In service of a new plan—to enlist Pence to use his role to fraudulently alter the election results at the January 6 certification proceeding—the defendant and his co-conspirators again used deceit. They lied to Pence, telling him that there was substantial election fraud and concealing their orchestration of the plan to manufacture fraudulent elector slates, as well as their intention to use the fake slates to attempt to obstruct the congressional certification. And they lied to the public, falsely claiming that Pence had the authority during the certification proceeding to reject electoral votes, send them ​back to the states, or overturn the election—and that Pence agreed he had these boundless powers. With these lies, the defendant created the tinderbox that he purposely ignited on January 6.
The defendant first publicly turned his sights toward January 6 in the early morning hours of December 19. At 1:42 a.m., the defendant posted on Twitter a copy of a report falsely alleging fraud and wrote, ". . .Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!" When CC5 learned about the Tweet, he sent a link about it to another of the Wisconsin attorneys who had met with the defendant in the Oval Office on December 16 and wrote, "Wow. Based on 3 days ago, I think we have unique understanding of this." Later on December 19, the defendant called Pence and told him of plans for a rally on January 6 and said that he thought it would be a "big day" and good to have lots of their supporters in town.
The defendant and his co-conspirators recognized that Pence, by virtue of his ministerial role presiding over the January 6 congressional certification, would need to be a key part of their plan to obstruct the certification proceeding. On December 23, in a memorandum drafted with CC5 assistance, CC2 outlined a plan for Pence to "gavel" in the defendant as the winner of the election based on the false claim that "7 states have transmitted dual slates of electors to the President of the Senate," and proposed that Pence announce that "because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States." ​ CC2 emphasized concealment, writing that "the main thing here" was that Pence act without "asking for permission—either from a vote of the Joint Session or from the Court."
CC2 memorandum stood in stark contrast to concessions he had previously made about the Vice President's lack of authority in the certification proceeding. Two months earlier, on October 11, he had written to a colleague that neither the Constitution nor the ECA provided the Vice President with discretion in the counting of electoral votes or permitted him to "make the determination on his own." And just one day earlier, on December 22, when asked by other private attorneys to provide views on a draft complaint that would, if filed, have raised the issue of the Vice President's authority on January 6, CC2 had recommended that the complaint not be filed. He wrote that "the risk of getting a court ruling that Pence has no authority to reject the Biden-certified ballots [is] very high."
On the evening of December 23, after CC1 shared CC2 and CC5 plan with the defendant, the defendant publicly re-tweeted a document called "Operation Pence Card," which, like CC2 memorandum, advocated that Pence block the lawful certification of the legitimate electoral votes. Also on December 23, CC2 emailed P42 asking to speak to the defendant "to update him on our overall strategic thinking." The following day, December ​24, the defendant called CC2 and they spoke for forty minutes. Then on December 25, CC5 proposed in a text message to CC2 and CC6 that Pence permit an unlimited filibuster of the certification, in violation of the ECA, and ultimately gavel in the defendant as president. When CC2 asked, "Is Pence really likely to be on board with this?" CC6 responded, "Let's keep this off text for now."
From that point on, the conspirators plotted to manipulate Pence. CC1 CC2 CC6 and P1 worked in concert to enlist Pence to act unlawfully, and to ratchet up public pressure from the defendant's supporters that he do so. The defendant began to directly and repeatedly pressure Pence at the same time that he continued summoning his supporters to amass in Washington, D.C., on the day of the congressional certification. On December 25, when Pence called the defendant to wish him a Merry Christmas, the defendant raised the certification and told Pence that he had discretion in his role as President of the Senate. Pence emphatically responded, "You know I don't think I have the authority to change the outcome." The next day, the defendant tweeted, "Never give up. See everyone in D.C. on January 6th." He also tweeted false fraud claims: "Time for Republican Senators to step up and fight for the Presidency, like the Democrats would do if they had actually won. The proof is irrefutable! Massive late night mail-in ballot drops in swing states, stuffing the ballot boxes (on video), double voters, dead voters, fake signatures, illegal immigrant voters, banned Republican vote watchers, MORE VOTES THAN ACTUAL VOTERS (check out Detroit and Philadelphia), and much more. The numbers ​are far greater than what is necessary to win the individual swing states, and cannot even be contested. Courts are bad, the FBI and 'Justice' didn't do their job, and the United States Election System looks like that of a third world country. Freedom of the press has been gone for a long time, it is Fake News, and now we have Big Tech (with Section 230) to deal with. But when it is all over, and this period of time becomes just another ugly chapter in our Country's history, WE WILL WIN!!!"
On December 28, CC2 CC5 and CC6 exchanged text messages in which CC2 expressed concern that Gohmert v. Pence—a lawsuit filed the day before that asserted that Pence had discretion to choose electoral votes during the certification proceeding—would prompt a federal court to publicly reject, and thus preclude, the plan that the conspirators were advancing in private. Thereafter, at 11:00 a.m. on January 1, the defendant called Pence to berate him because he had learned that Pence had filed a brief opposing the relief sought in Gohmert. When Pence explained, as he had before, that he did not believe that he had the power under the Constitution to decide which votes to accept, the defendant told him that "hundreds of thousands" of people "are gonna hate your guts" and "people are gonna think you're stupid," and berated him pointedly, "You're too honest." Immediately before the call, the defendant had spoken separately to CC1 (from 10:06 a.m. to 10:14 a.m.) and P1 (from 10:36 a.m. to 10:46 a.m.), and late that afternoon, the defendant spoke separately with P1 CC2 and ​ CC1 Within hours of the call with Pence, the defendant reminded supporters to travel to Washington for the certification proceeding, tweeting, "The BIG Protest Rally in Washington D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!"
The next day, on January 2, CC1 CC2 and CC6 appeared on P1 podcast. When P1 asked whether the January 6 certification would be "a climactic battle," CC2 responded that "a lot of that depends on the courage and the spine of the individuals involved." The defendant spoke to CC1 shortly after his appearance on the podcast. That afternoon, CC6 worked to arrange a meeting among the defendant, CC2 and Pence in order to enlist Pence to misuse his role as President of the Senate at the certification proceeding. When CC6 texted P1 about the meeting, P1 who had just finished a phone call with the defendant—reiterated that the defendant wanted Pence "briefed" by CC2 immediately. Thereafter, the defendant called Pence, informing him "that he had spent the day speaking to a secretary of state, state legislators, and members of Congress." (As described supra pp.29-31, the defendant spoke with Georgia Secretary of State P33 the same day.) On the call with Pence, the defendant said he had learned that a U.S. Senator was going to propose a ten-day delay in the certification proceeding, and told Pence, "you can make the decision" to ​delay the count for ten days. The defendant then referred Pence to CC2 for the first time and asked if Pence would meet with him.
On January 3, the defendant again told Pence that at the certification proceeding, Pence had the absolute right to reject electoral votes and the ability to overturn the election. Pence responded that he had no such authority, and that a federal appeals court had rejected a lawsuit making that claim the previous day. Then, the defendant took to Twitter to again falsely claim that fraud had permeated the election: "Sorry, but the number of votes in the Swing States that we are talking about is VERY LARGE and totally OUTCOME DETERMINATIVE! Only the Democrats and some RINO'S would dare dispute this - even though they know it is true!" The same day, CC2 circulated a second memorandum that included a new plan under which, in violation of the ECA, the Vice President would send the elector slates to the state legislatures to determine which slate to count.
The meeting that CC6 had organized so that the defendant and CC2 could enlist Pence to reject Biden's legitimate electoral votes was scheduled late in the afternoon of January 4. In advance of the meeting, CC1 CC2 CC6 and P1 gathered at the Willard Hotel near the White House, and from there, CC1 called and spoke with the defendant. ​When CC2 arrived at the White House for the meeting, P9 confronted CC2 about the legal basis for his proposal. P9 went line by line through CC2 's second memo, and CC2 conceded that no court would support it; in response, P9 warned CC2 that pressing his admittedly unlawful plan would cause "riots in the streets." P9 then spoke to the defendant, telling him that the theory that CC2 and others were promoting would not work, and that CC2 had acknowledged that it was "not going to work"; the defendant responded, "other people disagree" but did not identify those other people. P9 also pointed out to the defendant that CC2 's theory regarding a strategic Democratic plan to subvert the election was inconsisten with other allegations that had been floating around about C3 and foreign interference.
The meeting among the defendant, CC2 , Pence, and Pence staffers P8 and P58 began around 4:45 p.m. No one from the defendant's White House Counsel's Office attended. During the meeting, the defendant asked CC2 to explain his plan to Pence. CC2 presented two options: Pence could unilaterally decide objections to electors, or alternatively, in the plan that CC2 had devised the prior day, Pence could send the elector slates to the targeted states' legislatures to determine which electors' votes should be counted. In the defendant's presence, in response to Pence's questioning, CC2 admitted that the ECA ​forbade what he proposed and that no one had tested CC2 new plan to send elector slates to state legislatures for review. Nonetheless, the defendant repeatedly expressed a preference that Pence unilaterally reject valid elector slates.
Throughout the meeting, the defendant repeated his knowingly false fraud claims as a purported basis for Pence to act illegally. Pence's five pages of contemporaneous notes from the meeting reflect that the defendant said, "when there's fraud the rules get changed"; "bottom line—won every state by 100,000s of votes"; "this whole thing is up to MP"; "has to do w/you—you can be bold"; and "r[igh]t to do whatever you want to do." The meeting concluded with Pence—firm and clear—telling the defendant "I'm not seeing this argument working." Nonetheless, the defendant requested that Pence's staff meet with CC2 again to discuss further, and Pence agreed.
The conspirators were undeterred. Immediately after leaving the White House, CC2 gathered with CC6 and P1 back at the Willard Hotel. Over the days that followed, these conspirators strategized on how CC2 could influence Pence through the Vice President's counsel, and normalized the unlawful plan by discussing it on P1 podcast. Meanwhile, the defendant continued to pressure Pence publicly.
​For his part, immediately upon leaving the meeting with Pence, the defendant traveled to Dalton, Georgia, to speak at a political rally at the invitation of two U.S. Senators engaged in run-off elections there. During his political speech, the defendant promoted many of the same falsehoods that he previously had been informed were untrue. He said, "they're not taking the White House. We're gonna fight like hell, I'll tell you right now," and remarked, "I hope Mike Pence comes through for us, I have to tell you. I hope that our great Vice President, our great Vice President comes through for us. . .Of course, if he doesn't come through, I won't like him quite as much." He also used the Dalton Campaign speech as a call to action to his own supporters, telling the crowd that "[i]f you don't fight to save your country with everything you have, you're not going to have a country left," and demanded that his supporters take action to prevent what he falsely called "the outright stealing of elections, like they're trying to do with us," emphasizing, we "can't let that happen."
The next morning, on January 5, the defendant spoke on the phone with P1 Less than two hours later, on his podcast, P1 said in anticipation of the January 6 certification proceeding, "All Hell is going to break loose tomorrow."
Also on the morning of January 5, CC2 participated in a federal court hearing in Trump v. Kemp, the Georgia lawsuit against P17 and P33 in which the defendant had ​signed a false verification days earlier. CC2 on the defendant's behalf, asked the federal court to decertify the presidential election in Georgia and declare that the state legislature may choose the state's electors. During the hearing, the federal court denied the relief requested.
Immediately following the federal court's rejection of the legal basis for the conspirators' plan, CC2 went to the meeting that the defendant had requested that Pence's staff, P58 and P8 take. At the outset, CC2 changed his tack and advocated that Pence simply reject the Biden electors outright. This was contrary to his primary recommendation the day before for Pence to send the slates to the state legislatures, but consistent with the preference the defendant had expressed. CC2 made additional concessions during this meeting. For example, CC2 agreed that the Supreme Court would unanimously reject his proposed action, consistent historical practice since the Founding was that the Vice President never asserted authority to reject electors, no reasonable person would want the Constitution read that way because the office would never switch political parties, no state legislature appeared poised to try to change its electors, and if Democrats were to claim the same authority, CC2 would not credit it. P58 expressed to CC2 that the defendant's plan would result in a "disastrous situation" where the election ​might "have to be decided in the streets." Having failed to enlist P58 in the criminal conspiracy, CC2 told him that the "team" was going to be "really disappointed." The "team," in fact, was disappointed; after CC2 updated CC1 on the meeting, CC6 confirmed to P1 that the "Pence lawyer"—that is, P58 was "totally against us," prompting P1 to respond, "Fuck his lawyer." That same day, CC2 received an email confirming what he already had admitted to P58 no chamber of any legislature in any state, including Arizona, Georgia, Pennsylvania, and Wisconsin, was requesting that its electoral votes be returned to the state for review.
Meanwhile, CC5 who had traveled to Washington as directed by the defendant's public messages, obtained duplicate originals of the fraudulent certificates signed by the defendant's fraudulent electors in Michigan and Wisconsin, which they believed had not been delivered by mail to the President of the Senate or Archivist. CC5 received these duplicates from Campaign staff and surrogates, who flew them to Washington at private expense. He then ​hand-delivered them to staffers for a U.S. Representative at the Capitol as part of a plan to deliver them to Pence for use in the certification proceeding.
The defendant did not leave the pressure campaign to his co-conspirators; he redoubled his own efforts. On January 5 at 11:06 a.m., shortly before CC2 meeting with P58 the defendant tweeted, "The Vice President has the power to reject fraudulently chosen electors" and designate the defendant as the winner of the electoral college vote. That afternoon, the defendant met privately with Pence in the Oval Office. During the meeting, the defendant once again told Pence, "I think you have the power to decertify." When Pence was unmoved, the defendant threatened to criticize him publicly ("I'm gonna have to say you did a great disservice"); this concerned P8 to whom Pence had relayed the defendant's threat, to the point that he alerted Pence's Secret Service detail. Next still, the defendant initiated a phone call with Pence, P8 P58 CC2 and one or two other private attorneys—likely including CC1and again raised the scenario of the Vice President sending the elector slates to state legislatures. P58 again pointed out that such a strategy violated the ECA, and Pence reaffirmed that he did not believe he had the authority to do so. Shortly after the call that ​evening, at 5:43 p.m., the defendant tweeted, "I will be speaking at the SAVE AMERICA RALLY tomorrow on the Ellipse at 11AM Eastern. Arrive early—doors open at 7AM Eastern. BIG CROWDS!"
The defendant continued his pressure campaign on Pence that evening. After a New York Times article that night detailed the afternoon's private conversation in which Pence had rejected the defendant's demand to act unlawfully, the defendant directed P4 to issue a statement rebutting it and approved the statement at 9:28 p.m. Minutes later, the defendant called Pence and told him, "you gotta be tough tomorrow." After concluding the call with Pence, the defendant sequentially spoke to P1 followed by CC2 Then, at around 10:00 p.m. that night, the defendant issued the public statement, which read "the Vice President and I are in total agreement that the Vice President has the power to act"—a statement that the defendant knew was a lie from Pence's repeated and firm rejections of his efforts, but that gave false hope to the defendant's supporters arriving in the city at the defendant's request, and maximized pressure on Pence.
* ↑ GA 873-874 (Donald J. Trump Tweet 12/19/2020).
* ↑ GA 1504 ( ).
* ↑ GA 440-441 ( ); GA 1020 (Pence, So Help Me God p. 437).
* ↑ GA 1506-1508 ( ); GA 1509 ( ); GA 1510-1512 ( ); GA 1513-1515 ( ).
* ↑ GA 1515 ( ).
* ↑ GA 1517 ( ).
* ↑ GA 1521 ( ).
* ↑ Id.
* ↑ GA 1005 ( ); GA 752, 754 ( ); GA 1523 ( ); GA 883 (Donald J. Trump Tweet 12/23/2020); GA 449 ( ); GA 1022-1023 (Pence, So Help Me God p. 439-40); see also GA 1524-1527 ( ).
* ↑ GA 1528 ( ).
* ↑ GA 755 ( ).
* ↑ GA 1529 ( ).
* ↑ Id.
* ↑ GA 450-452 ( ); GA 1024-1025 (Pence, So Help Me God p. 441-42).
* ↑ Id.
* ↑ GA 886-887 (Donald J. Trump Tweet 12/26/2020).
* ↑ GA 888-895 (Donald J. Trump Tweet 12/26/2020).
* ↑ GA 1530-1531 ( ).
* ↑ GA 453 ( ); GA 1026-1027 (Pence, So Help Me God p. 446-47); GA 758 ( ).
* ↑ GA 1026 (Pence, So Help Me God p. 446).
* ↑ GA 757-760 ( ).
* ↑ GA 905-906 (Donald J. Trump Tweet 01/01/2021
* ↑ GA 1981 ( ).
* ↑ GA 1981 at 24:56-25:40 ( ).
* ↑ GA 761-762 ( ).
* ↑ GA 1006-1008, 1011-1014 ( ).
* ↑ GA 763 ( ); GA 1007 ( ).
* ↑ GA 1027 (Pence, So Help Me God p. 447); GA 1532-1533 ( ).
* ↑ Id.
* ↑ Id.
* ↑ GA 454-456 ( ); GA 1534-1536 ( ).
* ↑ Id.
* ↑ GA 926-927 (Donald J. Trump Tweet 01/03/2021).
* ↑ GA 1537-1543 ( ).
* ↑ GA 1007-1012 ( ); GA 766 ( )
* ↑ GA 1904 at row 900 ( ; GA 1011 ( ); GA 765 ( ); GA 1544-1546 ( ); GA 1547-1548 ( ).
* ↑ GA 215-221 ( ); GA 1901 at row 5745 ( ); GA 766 ( ).
* ↑ GA 215-218 ( ).
* ↑ GA 219-223 ( ).
* ↑ GA 224 ( ).
* ↑ GA 766 ( ); GA 274-275 ( ).
* ↑ GA 120-121 ( ).
* ↑ GA 276-277 ( ); GA 579-580 ( ).
* ↑ GA 276-277 ( ); GA 580-585 ( ).
* ↑ GA 1028-1029 (Pence, So Help Me God p. 450-451); GA 278-279 ( ).
* ↑ GA 277 ( ); GA 582-584 ( ).
* ↑ GA 1549-1553 ( ).
* ↑ GA 280-281 ( ).
* ↑ GA 1028-1029 (Pence, So Help Me God p. 450-51).
* ↑ GA 1011-1013 ( ).
* ↑ GA 766 ( ); GA 1011-1014 ( ); GA 1559 ( ); GA 1983 at 36:55-37:43 ( ); GA 1984 at 9:09-9:55 ( ).
* ↑ GA 767 ( ); GA 930-931 (Donald J. Trump Tweet 01/04/2021).
* ↑ GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).
* ↑ GA 1096 (Dalton Rally Speech Draft Tr. 01/04/2021).
* ↑ GA 1090 (Dalton Rally Speech Draft Tr. 01/04/2021).
* ↑ GA 1096 (Dalton Rally Speech Draft Tr. 01/04/2021).
* ↑ GA 767 ( ).
* ↑ GA 1984 at 29:00-29:50 ( ).
* ↑ Transcript of Mots. Hr'g, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021), ECF No. 21.
* ↑ Complaint at 33-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Dec. 31, 2020), ECF No. 1; GA 1152 ( ).
* ↑ Transcript of Mots. Hr'g at 29-34, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021), ECF No. 21.
* ↑ Transcript of Mots. Hr'g at 55-56, Trump v. Kemp, No. 1:20-cv-5310 (N.D. Ga. Jan. 5, 2021), ECF No. 21.
* ↑ GA 1563 ( ).
* ↑ GA 283-284 ( ); GA 1939 at 1:20:00-1:21:30 (Video of Select Committee Testimony 06/16/2022); GA 1564 ( ).
* ↑ GA 283-284 ( ); GA 1939 at 1:20:00-1:21:30 (Video of Select Committee Testimony 06/16/2022); GA 1564 ( ).
* ↑ GA 1939 at 56:53-57:36, 1:05:59-1:07:02, 1:21:55-1:29:50 (Video of Select Committee Testimony 06/16/2022); GA 267-272 ( ).
* ↑ GA 1939 at 1:26:01-1:26:32 (Video of Select Committee Testimony 06/16/2022).
* ↑ GA 289-290 ( ).
* ↑ GA 1014 ( ).
* ↑ GA 1565-1567 ( ).
* ↑ GA 1568-1574 ( ); GA 1575 ( ); GA 1576-1580 ( ); GA 1581-1582 ( );GA 1583-1585 ( ); GA 1586-1589 ( ); GA 1595-1596 ( ).
* ↑ GA 1601-1607 ( ); GA 1608 ( ).
* ↑ GA 1583-1585 ( ); GA 1586-1589 ( ); GA 1595-1596 ( ).
* ↑ GA 934-935 (Donald J. Trump Tweet 01/05/2021).
* ↑ GA 461-462 ( ); GA 1031-1032 (Pence, So Help Me God p. 453-54).
* ↑ GA 461, 463 ( ); GA 1031-1032 (Pence, So Help Me God p. 453-54); GA 1656 ( ).
* ↑ GA 461, 463-470 ( ); GA 1031-1032 (Pence, So Help Me God p. 453-54); GA 1656 ( ).
* ↑ GA 586-587 ( ).
* ↑ GA 1657 ( ); GA 1215 ( ); GA 1658 ( ); GA 1659 ( ).
* ↑ GA 282-288 ( ).
* ↑ Id.
* ↑ GA 938-939 (Donald J. Trump Tweet 01/05/2021).
* ↑ GA 769 ( ); GA 1660-1661 ( ); GA 1662 ( ); GA 384-386 ( ).
* ↑ GA 770 ( ); GA 1033 (Pence, So Help Me God p. 455).
* ↑ GA 770 ( ).
* ↑ GA 1663 (Donald J. Trump Campaign Statement 01/05/2021).