IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
DONALD J. TRUMP,
Defendant.
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CRIMINAL NO. 23-cr-257 (TSC)


GOVERNMENT’S MOTION FOR IMMUNITY DETERMINATIONS
The defendant asserts that he is immune from prosecution for his criminal scheme to
overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so.
Although the defendant was the incumbent President during the charged conspiracies, his scheme
was fundamentally a private one. Working with a team of private co-conspirators, the defendant
acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit,
the government function by which votes are collected and counted—a function in which the
defendant, as President, had no official role. In Trump v. United States, 144 S. Ct. 2312 (2024),
the Supreme Court held that presidents are immune from prosecution for certain official conduct—
including the defendant’s use of the Justice Department in furtherance of his scheme, as was
alleged in the original indictment—and remanded to this Court to determine whether the remaining
allegations against the defendant are immunized. The answer to that question is no. This motion
provides a comprehensive account of the defendant’s private criminal conduct; sets forth the legal
framework created by Trump for resolving immunity claims; applies that framework to establish
that none of the defendant’s charged conduct is immunized because it either was unofficial or any
presumptive immunity is rebutted; and requests the relief the Government seeks, which is, at
bottom, this: that the Court determine that the defendant must stand trial for his private crimes as
would any other citizen.
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This motion provides the framework for conducting the “necessarily factbound” immunity
analysis required by the Supreme Court’s remand order. Trump, 144 S. Ct. at 2340. It proceeds
in four parts.
Section I provides a detailed statement of the case that the Government intends to prove at
trial. This includes the conduct alleged in the superseding indictment, as well as other categories
of evidence that the Government intends to present in its case-in-chief. This detailed statement
reflects the Supreme Court’s ruling that presidential immunity contains an evidentiary component,
id., which should be “addressed at the outset of a proceeding,” id. at 2334.
Section II sets forth the legal principles governing claims of presidential immunity. It
explains that, for each category of conduct that the Supreme Court has not yet addressed, this Court
should first determine whether it was official or unofficial by analyzing the relevant “content,
form, and context,” id. at 2340, to determine whether the defendant was acting in his official
capacity or instead “in his capacity as a candidate for re-election.” Blassingame v. Trump, 87 F.4th
1, 17 (D.C. Cir. 2023). Where the defendant was acting “as office-seeker, not office-holder,” no
immunity attaches. Id. (emphasis in original). For any conduct deemed official, the Court should
next determine whether the presumption of immunity is rebutted, which requires the Government
to show that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion on
the authority and functions of the Executive Branch.’” Trump, 144 S. Ct. at 2331-32 (quoting
Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982)).
Section III then applies those legal principles to the defendant’s conduct and establishes
that nothing the Government intends to present to the jury is protected by presidential immunity.
Although the defendant’s discussions with the Vice President about “their official responsibilities”
qualify as official, see Trump, 144 S. Ct. at 2336, the Government rebuts the presumption of
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immunity. And all of the defendant’s remaining conduct was unofficial: as content, form, and
context show, the defendant was acting in his capacity as a candidate for reelection, not in his
capacity as President. In the alternative, if any of this conduct were deemed official, the
Government could rebut the presumption of immunity.
Finally, Section IV explains the relief sought by the Government and specifies the findings
the Court should make in a single order—namely, that the defendant’s conduct set forth in Section
I is not immunized, and that as a result, the defendant must stand trial on the superseding
indictment and the Government is not prohibited at trial from using evidence of the conduct
described in Section I.
I.
Factual Proffer
When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay
in office. With private co-conspirators, the defendant launched a series of increasingly desperate
plans to overturn the legitimate election results in seven states that he had lost—Arizona, Georgia,
Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the “targeted states”). His efforts
included lying to state officials in order to induce them to ignore true vote counts; manufacturing
fraudulent electoral votes in the targeted states; attempting to enlist Vice President Michael R.
Pence, in his role as President of the Senate, to obstruct Congress’s certification of the election by
using the defendant’s fraudulent electoral votes; and when all else had failed, on January 6, 2021,
directing an angry crowd of supporters to the United States Capitol to obstruct the congressional
certification. The throughline of these efforts was deceit: the defendant’s and co-conspirators’
knowingly false claims of election fraud. They used these lies in furtherance of three conspiracies:
1) a conspiracy to interfere with the federal government function by which the nation collects and
counts election results, which is set forth in the Constitution and the Electoral Count Act (ECA);
2) a conspiracy to obstruct the official proceeding in which Congress certifies the legitimate results
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claimed that mail-in ballots were inherently fraudulent, and asserted that only votes counted by
election day were valid. For instance:
In an interview on July 19, 2020, when asked repeatedly if he would accept the results
of the election, the defendant said he would “have to see” and “it depends.”5
On July 30, despite having voted by mail himself earlier that year, the defendant
suggested that widespread mail-in voting provided cause for delaying the election,
tweeting, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020
will be the most INACCURATE & FRAUDULENT Election in history. It will be a
great embarrassment to the USA. Delay the Election until people can properly, securely
and safely vote???”6
In an interview on August 2, the defendant claimed, without any basis, that “[t]here is
no way you can go through a mail-in vote without massive cheating.”7
At a campaign event in Wisconsin on August 17, the defendant told his supporters,
“[t]he only way we’re going to lose this election is if the election is rigged, remember
that. It’s the only way we’re going to lose this election, so we have to be very careful.”8
In his acceptance speech at the Republican National Convention on August 24, the
defendant said that “[t]he only way they can take this election away from us is if this is
a rigged election.”9
On October 27, during remarks regarding his campaign, the defendant said, “[i]t would
be very, very proper and very nice if a winner were declared on November 3rd, instead
of counting ballots for two weeks, which is totally inappropriate, and I don’t believe
that that’s by our laws. I don’t believe that. So we’ll see what happens.”10 The
defendant said this despite—or perhaps because—his private advisors had informed
him that it was unlikely that the winner of the election would be declared on
November 3.

5 GA 1968 at 37:20 (Video of Trump Interview with Chris Wallace 07/19/2020).
6 See https://x.com/realDonaldTrump/status/1288818160389558273 (Donald J. Trump Tweet
07/30/2020).
7 See Donald Trump Interview Transcript with Jonathan Swan of Axios on HBO, Rev (Aug. 3,
2020)
https://www.rev.com/blog/transcripts/donald-trump-interview-transcript-with-axios-on-
hbo.
8 GA 1943 at 57:33 (Video of Oshkosh Rally 08/17/2020).
9 GA 1951 at 22:08 (Video of RNC Speech 08/24/2020).
10 GA 1927 at 3:11-3:28 (Video of Donald J. Trump Statement 10/27/2020).
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election fraud in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin that had been
publicly, or directly, debunked.61 The defendant used these lies to inflame and motivate the large
and angry crowd of his supporters to march to the Capitol and disrupt the certification
proceeding.62
C. The Defendant Aimed Deceit at the Targeted States to Alter Their Ascertainment
and Appointment of Electors
Shortly after election day, the defendant began to target the electoral process at the state
level by attempting to deceive state officials and to prevent or overturn the legitimate ascertainment
and appointment of Biden’s electors. As President, the defendant had no official responsibilities
related to the states’ administration of the election or the appointment of their electors, and instead
contacted state officials in his capacity as a candidate. Tellingly, the defendant contacted only
state officials who were in his political party and were his political supporters, and only in states
he had lost. The defendant’s attempts to use deceit to target the states’ electoral process played
out in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, as well as across these
and other states that used certain voting machines. In addition to the following evidence of the
defendant’s conduct during the charged conspiracies, at trial the Government will elicit testimony
from election officials from the targeted states to establish the objective falsity—and often,
impossibility—of the defendant’s fraud claims. Notably, although these election officials would
have been the best sources of information to determine whether there was any merit to specific
allegations of election fraud in their states, the defendant never contacted any of them to ask.

61 GA 1126-1129, GA 1131-1136 (Ellipse Rally Speech Draft Tr. 01/06/2021).
62 GA 1140 (Ellipse Rally Speech Draft Tr. 01/06/2021).
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Fox News’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.458 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.”459 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.”460 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.”461
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!”462 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

458 GA 1931 at 12:12 (Video of Fox News Coverage 01/06/2021).
459 GA 1931 at 20:11 (Video of Fox News Coverage 01/06/2021).
460 GA 1931 at 21:47 (Video of Fox News Coverage 01/06/2021).
461 GA 1931 at 24:05–24:17 (Video of Fox News Coverage 01/06/2021).
462 GA 946-947 (Donald J. Trump Tweet 01/06/2021); GA 546 (
).
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building.463 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.”464
One minute later, at 2:25 p.m., the Secret Service was forced to evacuate Pence to a secure
location.465 At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike
Pence!”466; “Where is Pence? Bring him out!”467; and “Traitor Pence!”468 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.” 469
Rioters—again, many bearing pro-Trump paraphernalia indicating their allegiance—
breached the Senate chamber,470 rifled through the papers on the Senators’ desks,471 and stood on
the dais where Pence had been presiding just minutes earlier.472 On the House side, rioters watched

463 GA 1922 (Video of Capitol Riot 01/06/2021).
464 GA 1693 (Transcript of CNN Town Hall 05/10/2023).
465 GA 1944 (Video of Pence Evacuation 01/06/2021).
466 GA 1914 (Video of Capitol Riot 01/06/2021).
467 GA 1911 (Video of Capitol Riot 01/06/2021).
468 GA 1910 (Video of Capitol Riot 01/06/2021).
469 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/.
470 GA 1956 (Video of Senate Gallery Doors CCTV 01/06/2021).
471 GA 1955 at 16:20 (Video of Senate Floor 01/06/2021).
472 GA 1955 at 29:15 (Video of Senate Floor 01/06/2021).
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which the President has no immunity. Id. at 2327, 2331-32. With respect to the first category of
core official conduct, when the President’s authority to act is “‘conclusive and preclusive,’”
Congress may not regulate his actions, and the President has absolute immunity from criminal
prosecution. Id. at 2327 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638
(1952) (Jackson, J., concurring)). Applying those principles to the original indictment, the
Supreme Court concluded that the defendant is “absolutely immune from prosecution for the
alleged conduct involving his discussions with Justice Department officials” and his “threatened
removal of the Acting Attorney General.” Id. at 2335. The superseding indictment omits those
allegations, and the Supreme Court did not find that any other conduct alleged in the original
indictment implicated “conclusive and preclusive” presidential authority. See id. at 2335-40.
The threshold question here, then, is whether the defendant can carry his burden to establish
that his acts were official and thus subject to presumptive immunity. Id. at 2332; see Dennis v.
Sparks, 449 U.S. 24, 29 (1980) (noting that for immunity doctrines, “the burden is on the official
claiming immunity to demonstrate his entitlement”). Official conduct includes acts taken within
the “‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they
are ‘not manifestly or palpably beyond [his] authority.’” Trump, 144 S. Ct. at 2333 (quoting
Blassingame, 87 F.4th at 13). But consistent with the D.C. Circuit’s opinion in Blassingame, the
Supreme Court suggested that a President who speaks “as a candidate for office or party leader”—
as the defendant did here—does not act in his official, presidential capacity. Id. at 2340. As the
D.C. Circuit explained, a President acting as a “candidate for re-election” is, to that extent, not
carrying out an official responsibility. Blassingame, 87 F.4th at 17; accord id. at 5 (“When a
sitting President running for re-election speaks in a campaign ad or in accepting his political party’s
nomination at the party convention, he typically speaks on matters of public concern. Yet he does
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so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And
actions taken in an unofficial capacity cannot qualify for official-act immunity.”) (emphasis in
original). To assess whether a presidential action constitutes an “official” act, courts must apply
an “objective analysis” that focuses on the “‘content, form, and context’” of the conduct in
question. Trump, 144 S. Ct. at 2340 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). A
President’s motives for undertaking the conduct and the fact that the conduct is alleged to have
violated a generally applicable law are not relevant considerations. Id. at 2333-34.
If a President’s actions constitute non-core official presidential conduct, he is at least
presumptively immune from criminal prosecution for that conduct. 144 S. Ct. at 2328, 2331; id.
at 2332 (reserving whether “this immunity is presumptive or absolute . . . [b]ecause we need not
decide that question today”). The Government can overcome that presumptive immunity by
demonstrating that “applying a criminal prohibition to that act would pose no ‘dangers of intrusion
on the authority and functions of the Executive Branch.’” Id. at 2331-32 (quoting Fitzgerald, 457
U.S. at 754). Just as the inquiry into whether conduct is official or unofficial is “necessarily
factbound,” Trump, 144 S. Ct. at 2340, with “[t]he necessary analysis [being] . . . fact specific,”
id. at 2339, so too should be the inquiry into whether any “presumption of immunity is rebutted
under the circumstances,” id. at 2337. The analysis should first identify the specific alleged act at
issue, and then determine whether criminal liability for the act intrudes on a relevant Executive
Branch authority or function, taking care not to “conceive[] of the inquiry at too high a level of
generality.” Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1141 (D.C. Cir. 2015) (reversing
district court in civil immunity case). Such an approach recognizes that Executive authority has
limits—boundaries imposed by constitutional text, the separation of powers, and precedent—and
that application of criminal law to the President’s official conduct does not per se intrude
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impermissibly on Executive Branch authority and functions. Cf. Trump, 144 S. Ct. at 2327 (“If
the President claims authority to act but in fact exercises mere ‘individual will’ and ‘authority
without law,’ the courts may say so.”) (quoting Youngstown, 343 U.S. at 655 (Jackson, J.,
concurring)).
These principles for assessing whether the conduct alleged in the superseding indictment
is immune apply equally to evidence. The Government may not introduce evidence of immunized
official conduct against a former President at a trial, even to prove that the former President
committed a crime predicated on unofficial conduct. Id. at 2340-41.
III.
None of the Allegations or Evidence Is Protected by Presidential Immunity
At its core, the defendant’s scheme was a private one; he extensively used private actors
and his Campaign infrastructure to attempt to overturn the election results and operated in a private
capacity as a candidate for office. To the limited extent that the superseding indictment and
proffered evidence reflect official conduct, however, the Government can rebut the presumption
of immunity because relying on that conduct in this prosecution will not pose a danger of intrusion
on the authority or functions of the Executive Branch. Below, the Government categorizes the
conduct outlined in Section I and provides “content, form, and context” for this Court to determine
that the defendant’s conduct was private or that, in the alternative, any presumptive immunity is
rebutted “under the circumstances.” Trump, 144 S. Ct. at 2337. This analysis is necessarily fact-
intensive, and all of the Government’s analysis below is based on the unique facts and
circumstances of this case.
This section first addresses the defendant’s interactions with Pence, because in Trump, the
Supreme Court held that when the defendant conversed with Pence about “their official
responsibilities,” the conduct was official. 144 S. Ct. at 2336. Accordingly, the Government
explains below why any presumptive immunity as to the defendant’s official conduct regarding
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Pence is rebutted. Other than the specific official conduct related to Pence that the Supreme Court
held to be official, none of the defendant’s other actions were official. This section categorizes
that conduct and provides the “content, form, and context” that establishes its unofficial nature.
These categories are: a) the defendant’s interactions, as a candidate, with state officials; b) the
defendant’s efforts, as a candidate, to organize fraudulent electors; c) the defendant’s public
speeches, Tweets, and other public statements as a candidate; d) the defendant’s interactions, as a
candidate, with White House staff; and e) other evidence of the defendant’s knowledge and intent.
Lastly, even if these categories of conduct and evidence were to be deemed official, the
Government can rebut the attendant presumption of immunity as described below.
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
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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
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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
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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).
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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, 699-
702 (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,
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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.”497 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.498 Moreover, Congress has

497 GA 1685 (Pence Dear Colleague Letter 01/06/2021).
498 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).
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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).499 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

499 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.
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