In a court filing unsealed on Wednesday, federal prosecutors argue that Donald Trump is not immune from prosecution over the January 6 riots because he acted in a private capacity, and took advice from private advisers.
The indictment seeks to make this case – that Trump acted in his private capacity, rather than his official one – because of a US supreme court ruling in July that former presidents have broad immunity from criminal prosecution for official actions taken as president.
It also reveals further details about Trump’s alleged mood and actions (or lack of action) on the day, building on evidence that was provided in earlier briefs.
In response to the new filing, the Trump campaign spokesperson Steven Cheung called the brief “falsehood-ridden” and “unconstitutional”. On Truth Social, Trump, writing in all-caps, called it “complete and total election interference.”
Here are some key points made in the filing:
‘Fundamentally a private’ scheme
The new court filing, in which Trump is referred to as “the defendant”, alleges that Trump’s plan that day was “fundamentally a private one”, and therefore not related to his duties as president but instead as a candidate for office.
It reads: “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.
“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.”
The filing looks back to election day for Trump’s use of private advisers: “As election day turned to November 4, the contest was too close to project a winner, and in discussions about what the defendant should say publicly regarding the election, senior advisors suggested that the defendant should show restraint while counting continued. Two private advisors, however, advocated a different course: [name redacted] and [name redacted] suggested that the defendant just declare victory. And at about 2.20am, the defendant gave televised remarks to a crowd of his campaign supporters in which he falsely claimed, without evidence or specificity, that there had been fraud in the election and that he had won.”
On 4 January, the filing says, a White House counsel was excluded from a meeting during which Trump sought to pressure Pence to help overturn the election result. Only a private attorney was present, the filing says: “It is hard to imagine stronger evidence” than this that Trump’s conduct was private.
A presidential candidate alone in a dining room with Twitter and Fox News
Trump’s day on 6 January started at 1am, with a tweet pressuring Pence to obstruct the certification of the results. Seven hours later, at 8.17am, Trump tweeted about it again. Shortly before his speech at the Ellipse, Trump called Pence and again pressured him to “induce him to act unlawfully in the upcoming session”, where Pence would be certifying the election results. Pence refused.
At this point, according to the filing, Trump “decided to re-insert into his campaign speech at the Ellipse remarks targeting Pence for his refusal to misuse his role in the certification”.
Trump gave his speech, and at 1pm, the certification process began at the Capitol.
Trump, meanwhile, “settled in the dining room off of the Oval Office. He spent the afternoon there reviewing Twitter on his phone, while the dining room television played Fox News’ contemporaneous coverage of events at the Capitol.”
It was from the dining room that Trump watched a crowd of his supporters march towards the Capitol. He had been there less than an hour when, at “approximately 2.24pm, Fox News reported that a police officer may have been injured and that ‘protestors ... have made their way inside the Capitol.’
“At 2.24pm, Trump tweeted, writing, ‘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!’”
The filing reads: “The content of the 2.24pm tweet was not a message sent to address a matter of public concern and ease unrest; it was the message of an angry candidate upon the realization that he would lose power.”
A minute later, the Secret Service evacuated Pence to a secure location.
Trump, when told Pence had been evacuated, said: ‘So what?’
The filing states that Trump said: “So what?” after being told that Pence had subsequently been taken to a secure location.
The indictment notes that the government does not intend to use the exchange at trial. It argues, however, that the tweet itself was “unofficial”.
The filing states that Pence “tried to encourage” Trump “as a friend” when news networks forecast a Biden win on 7 November. This again goes to the assertion that Trump acted in a private capacity.
Pence allegedly told Trump: “You took a dying political party and gave it a new lease on life”.
‘Fight like hell’ regardless
The filing states Trump was overheard telling family members, amid his efforts to overturn the election results: “It doesn’t matter if you lose ... you have to fight like hell.”
“At one point long after the defendant had begun spreading false fraud claims, [name redacted] a White House staffer traveling with the defendant, overheard him tell family members: ‘It doesn’t matter if you won or lost the election. You still have to fight like hell.’”
Trump knew his claims were false
The filing states: “The evidence demonstrates that the defendant knew his fraud claims were false because he continued to make those claims even after his close advisors – acting not in an official capacity but in a private or campaign-related capacity – told them they were not true.”
Among these advisers was a person referred to as P9, a White House staffer who had been one of several attorneys who represented Trump in his first impeachment trial in the Senate in 2019 and 2020, according to the filing.
In one private conversation, “when P9 reiterated to the defendant that [name redacted] would be unable to prove his false fraud allegations in court, the defendant responded, ‘The details don’t matter.’”
P9 at one point after the election told Trump “that the campaign was looking into his fraud claims, and had even hired external experts to do so, but could find no support for them.
He told the defendant that if the Campaign took these claims to court, they would get slaughtered, because the claims are all ‘bullshit’.”
