Trump's actions under the immunity spotlight

On July 1, the U. S. Supreme Court ruled that Donald J. Trump was immune from prosecution for official acts, but not for unofficial acts, and remanded the action for further proceedings. Trump v. United States, 144 S. Ct. 2312, 2340 (2024).

On Oct. 2, 2024, the United States filed in the U.S. District Court in Washington, D.C. its Motion for Immunity Determination to establish Trump's unofficial actions, which he took as a candidate for office and for which Trump is not immune.

Goal of the motion

The 165-page Motion seeks to establish Trump's unofficial acts and rebut any presumption of immunity for certain official acts. [Page 1.] This article summarizes the facts which the Government maintains are unofficial acts for which Trump can be prosecuted and additional facts which provide the context for those unofficial acts. It also summarizes the Government's arguments that Trump's acts were not immune under the Supreme Court's decision in Trump v. U.S.

August 2020 - "Massive cheating"

On August 7, 2020, during the pandemic Trump claimed without any evidence that "there is no way you can go through a mail-in vote without massive cheating." In his acceptance speech of the presidential nomination at the Republican National Convention on August 24, 2020, Trump stated, "The only way they can take this election away from us is if this is a rigged election." [Page 6.]

November 2020 - "The details don't matter"

On Nov. 4, 2020, the day after the election and while the vote counting was proceeding, Trump stated, "This is fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election." [Page 8.]

However, on Nov. 7, 2020, campaign staff told Trump he had only a slim chance of winning. On Nov. 13, 2020, Trump's campaign staff conceded its litigation in Arizona that he had lost the election. [Page 9.]

Trump's close advisors acting in a private campaign capacity told him that his fraud claims were not true. [Page 10.]

Also, in November 2020 another advisor told Trump that he would be unable to prove his fraud allegations in court. In response, Trump said, "The details don't matter." [Page 12.]

Vice President Mike Pence also told Trump that he had seen no evidence of outcome determinative fraud in the election. [Page 12.]

Shortly after the election, Trump contacted Republican election officials only in the states he had lost, Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. [Page 16.] On Nov. 9, 2020, Trump called the Arizona Governor claiming election fraud. The Governor asked for supporting evidence. Trump responded, "We're packaging it up." He never sent it. [Page 17.]

On Nov. 13, 2020, a campaign manager told Trump that the claim that a substantial number of non-citizens voted in Arizona was false. [Pages 17-18.] On Nov. 22, 2020, Trump tweeted that the Governor of Arizona had "just certified fraudulent election results in Arizona that disenfranchised millions of Republicans." [Page 18.]

But, on Nov. 17, 2020, Homeland Security, Cyber Security tweeted that private election security experts concluded that claims of computer-based fraud "either have been unsubstantiated or are technically incoherent." [Page 43.] On Nov. 29, 2020, a recount requested by Trump in Wisconsin confirmed that Biden had won and increased Trump's margin of defeat. [Page 41.]

December 2020 - "Will be wild"

On Dec. 1, 2020, the Attorney General stated that the Department of Justice had not seen evidence of fraud sufficient to change election results. [Page 46.] On Dec. 3, 2020, a campaign attorney verified that the claim that more than 10,000 dead people voted in Georgia was false. The actual number was about 12. [Page 20.]

On Dec. 7, 2020, Trump's Georgia lawsuit was dismissed. [Page 45.] On Dec. 8, 2020, one of Trump's advisors stated regarding the lack of supporting evidence of voter fraud, "You can see why we are 0-32 in our cases." [Page 25.]

On Dec. 14, 2020, a Michigan elected official wrote in a public statement, "I can't fathom risking our norms, traditions, and institutions to pass a resolution retroactively changing the electors for Trump simply because some think there may have been enough widespread fraud to give him the win." [Page 35.]

On Dec. 19, 2020, Trump tweeted, "Statistically impossible to have lost the 2020 Election. - Big protest in D.C. on Jan. 6, 2021. Be there, will be wild." [Page 60.]

January 2021 - "The truth will come out"

On Jan. 2, 2021, the Georgia Secretary of State appeared on Fox News and said that rumors of election fraud were false, and that Trump had lost in Georgia. [Page 28.] That same day, Trump called the Georgia Secretary of State and said," I just want to find 11,780 votes." [Page 29.]

When Trump claimed that 5,000 dead people had voted, the Georgia Secretary of State responded," The data you have is wrong...The actual number is two." [Page 30.] The next day in response to a tweet from Trump, the Georgia Secretary of State responded, "Respectfully, President Trump, what you're saying is not true. The truth will come out." [Page 32.]

Plan to use the fake electors

A memorandum dated Dec. 6 and 9, 2020, proposed Trump electors in six of the target states meet on Dec. 14, 2020, sign fraudulent certifications, and send them to Vice President Pence to manufacture a fake controversy during the Jan. 6, 2021, congressional certification of the vote of the electoral college. [Page 49.]

On Dec. 4, 2020, Trump and his co-conspirators organized his elector nominees in the targeted states, cast fraudulent electoral votes on his behalf, and planned to send those votes to Washington, D.C. in order to claim at the congressional certification that certain states had sent competing slates of electors. [Page 56.]

According to a Dec. 23, 2020, memorandum by the co-conspirators, the plan was for the Vice President to announce that there were no validly appointed electors in the targeted seven states because of the dual slates of electors. The Vice President would then gavel Trump as the winner. [Page 60.] Trump tweeted on Dec. 23, 2020, that Pence should block the certification of the legitimate electoral votes. [Page 61.]

On Dec. 25, 2020, Pence told Trump, "You know I don't think I have the authority to change the outcome." [Page 62.] Trump tweeted later that day, "The BIG Protest Rally in Washington, D.C. will take place at 11 a.m. on January 6^th. Location details to follow. Stop the Steal." [Page 64.]

On Jan. 6, 2021, at 8:17 a.m. Trump tweeted, "All Mike Pence has to do is send them back to the states, AND WE WIN. Do it Mike. This is a time for extreme courage." [Page 73.]

Since Pence would not do as Trump wanted, on Jan. 6, 2021, Trump sent a crowd of angry supporters to the Capitol to induce Pence not to certify the electoral votes. [Page 74.]

Jan. 6, 2021 - "Trial by combat".

Trump told the crowd at the Jan. 6, 2021, rally, "Let's have trial by combat." [Page 75.] He told them, "We're not going to let this happen." He told them to "fight" and to "take back" their country through strength. "When you catch somebody in a fraud, you're allowed to go by different rules." The crowd responded, "Fight for Trump." [Page 71.] The crowd also shouted, "Invade the capitol building." [Page 78.]

A large portion of the crowd at the Capitol - including the rioters who violently attacked law enforcement officers - wore clothing and carried items bearing Trump's name and campaign slogans. [Pages 78-79.]

Some of the rioters who invaded the Capitol shouted, "Where the fuck are they counting the votes at?"

At 2:24 p.m. on Jan. 6, 2021, Trump tweeted," Mike Pence didn't have the courage to do what should have been done to protect our country." A rioter read the tweet to the crowd with a bullhorn. [Page 80.] Trump knew that his supporters "listen to [him] like no one else." [Page 81.]

Trump has since called the rioters "patriots" and "hostages" and called Jan. 6, 2021 "a beautiful day." He also said if re-elected he will pardon the individuals convicted of crimes for their actions on Jan. 6, 2021. [Page 83.]

On Jan. 7, 2021, at 3:41 a.m. Pence announced the certified results of the 2020 election in favor of Biden. [Page 85.]

Immunity

In Trump v. U.S., at pages 2327, 2331-32, the U.S. Supreme Court divided presidential acts into 1. Conduct which Congress has no power to regulate and for which there is absolute immunity; 2. Other official presidential acts for which there is presumptive immunity; and 3. unofficial conduct for which there is no immunity. [Pages 85-86.]

Candidate for office

For immunity "The burden is on the official claiming the immunity to demonstrate his entitlement." Dennis v. Sparks¸449 U.S. 24, 29 (1980). In Trump, page 2340 the Court ruled that official conduct includes acts taken within the "outer perimeter" of the President's official responsibilities covering actions as long as they are "not manifestly or palpably beyond [his] authority." A president who speaks "as a candidate for office," did not act in his official capacity. [Page 86.]

The Government can overcome a claim of presumptive immunity by demonstrating that applying criminal prohibition to that act could pose no danger of intrusion of the authority of the Executive Branch. Trump, page 2331-32. [Page 87.]

No immunity

The Government maintains that Trump's scheme was a private one. He used private actors and his campaign infrastructure to try to overturn the election in his private capacity as a candidate. [Page 88.]

The Executive Branch has no role in the certifying of an election and the President was excluded. Prosecuting Trump for his efforts regarding Pence poses no danger to the Executive Branch. [Page 90.] Permitting the President to perpetuate himself in power would contradict the entire constitutional system. [Page 92.]

"[N]o man is allowed to be a judge of his own case." Federalist Papers, No. 10. (Madison). [Page 93.]

The Twelfth Amendment gives [the vice president] the President of the Senate no substantive role in determining how to count the votes of the electors appointed by the states. [Page 95.] Criminalizing the President's efforts to affect the Vice President's role overseeing certification would not jeopardize the Executive Branch's function. [Page 96.] As further evidence of Trump's unofficial conduct, in a Jan. 4, 2021, meeting regarding the fake electors, Trump excluded the White House Counsel and only had his private counsel present. [Page 97.]

Trump's many contacts with state officials with claims of election fraud and his plan for fraudulent electors were in his unofficial capacity as a candidate. [Page 100.] Further, Trump did not seek meetings with legislators in states where he had won or had lost by large margins. [Page 105.]

In Texas v. Pennsylvania, an action to challenge the 2020 election in Pennsylvania, Trump intervened and stated to the Supreme Court that he was acting in his "personal capacity" as a candidate for re-election. [Pages 107-108.]

"While Congress has a limited role [in the appointment of presidential electors], the President has none." Trump, page 2353, note 2. [Page 114.]

The Ellipse Rally of Jan. 6, 2021, was planned by private supporters. [Page 118.] There was minimal involvement by White House staff. The Rally was completely funded by a $2.1 million private donation. Trump for weeks promoted it as a "rally." [Page 119.] Trump stated at that Rally, "I am not happy with the Supreme Court. They love to rule against me." [Page 122.]

Tweets

Trump used his personal Twitter account on many occasions to spread falsehoods about the election and attack those who disagree with him. [Pages 130-135.] He also used his private Twitter account to promote the Jan. 6, 2021, Rally [Pages 136-37] and to urge Pence to corrupt the electoral certification. [Pages 140, 144.]

Trump's phone logs show he was using his personal cell phone and the Twitter application on it consistently throughout Jan. 6, 2021, after he returned from the Ellipse. [Page 116.]

Comment

We can anticipate that Trump will file his Opposition to the Motion, and it is likely that the Government will file its Reply. It is unclear when the Motion will be argued to the U.S. District Court and when the Court will rule on the Motion.

The Motion actually is to determine which of Trump's acts are not immune and are subject to prosecution. We can anticipate that Judge Chutkan in the U.S. District Court in Washington, D.C. will make clear and enumerated findings of which acts are not immune and the basis for each finding.

We can further anticipate that her findings will be appealed to the D.C. Circuit Court and then to the U.S. Supreme Court. It is a virtual certainty that this process will not be complete before Jan. 20, 2025, the inauguration of the next president. (See the article in the Daily Journal, July 9, 2024, for the analysis of Trump v. U.S.)