On February2, 2024, Judge Tanya Chutkan said she would not schedule a trial until the DC Circuit Court of Appeals decided whether Trump was immune from prosecution.[7] After that court unanimously ruled that Trump was not immune,[8] Trump appealed to the U.S. Supreme Court,[9][10] which ruled on July 1 that former presidents have "some immunity from criminal prosecution" for their "official acts" made during their presidency.[11] As a result, on August 27, the special counsel issued a superseding indictment that maintained the same four charges but omitted some specific allegations.[12][13]
Following Trump's election in November 2024, Smith filed a motion to dismiss the case without prejudice, citing the DOJ's policy of not prosecuting sitting Presidents.[14] Smith reportedly plans to step down before Trump takes office.[15] On November 25, 2024, Judge Chutkan approved the request and dismissed the charges.[16]
Accusations of electoral fraud and attempts to overturn the election
Throughout his 2016 presidential campaign, Trump repeatedly sowed doubt on the election certification process. Campaigning in Colorado, Trump claimed without evidence that the Democratic Party "[rigged] the election at polling booths".[17] In October 2016, Trump claimed through a series of tweets that widespread voter fraud would occur in the 2016 presidential election. These statements were echoed by Rudy Giuliani, Trump's legal advisor.[18] Trump continued expressing these sentiments into the 2020 presidential election; for months, he prepared arguments in the event of his loss, primarily relating to mail-in ballots.[19] As early as August 2020, he enlisted conservative activist and lawyer Cleta Mitchell to help overturn the election.[20] The Department of Homeland Security warned that Russia was amplifying claims of fraud occurring in mail-in voting to intentionally sow distrust in the voting process as a whole.[21] Two days before Election Day, Trump told reporters that he would be "going in with [his] lawyers" as soon as the election was over.[22]
Bolstered by pro-Trump pundits and perceived strong turnouts at rallies, the Trump campaign was confident that they were going to win the election. On Election Day, preliminary surveys at polling places showed Trump in the lead as his supporters were more likely to turn out in person amid the COVID-19 pandemic, but his lead diminished as mail-in ballots were counted. Following Trump's final campaign event in Grand Rapids, Michigan, Trump's son Eric wagered that he would win at least 322 electoral votes.[23] At the behest of Giuliani, Trump declared in a 2 a.m. election night speech in the East Room that he had won the election and that the counts being reported were fraudulent.[24] As ballots were being counted, campaign data expert Matt Oczkowski bluntly informed Trump that he was going to lose the election. White House Counsel Pat Cipollone told him that invalidating the results of the election would be a "murder-suicide pact".[25] Under then-attorney general William Barr, the Department of Justice failed to find widespread voter fraud in the election.[26] Former speaker of the House Newt Gingrich predicted that Trump voters would erupt in "rage",[27] a sentiment shared by House Republican leader Kevin McCarthy, who told Laura Ingraham on The Ingraham Angle that Republicans should not "be silent about this".[28]
Trump and several co-conspirators repeatedly sought to overturn the results of the election. The Department of Justice investigation into these attempts focused on the implementation of the Trump fake electors plot, in which Trump and his allies would draft allegedly fraudulent certificates of ascertainment affirming Trump as the winner. The effort to write these documents and persuade Republican officials to sign them was performed by Trump's lawyers, including Giuliani and John Eastman, who claimed that irregularities in the election had occurred and proposed that an "alternate" slate of electors should be established while they gathered evidence. Although dozens of these electors were installed and affirmed Trump as the winner, the seven state legislatures targeted in the plot – Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin – certified Biden's victory, although Pennsylvania and New Mexico agreed to consider Trump the winner if he succeeded in the many lawsuits challenging the election. The scheme involved sending the fake electoral slates to vice president Mike Pence, pressuring him to count the fake votes. Alternatively, Trump allies posited that Pence could consider the election "defective" under the Electoral Count Act and allow the House of Representatives to decide the outcome.[29]
During the two months following the election, Trump made multiple phone calls to Republican officials in states that had narrowly been won by Biden, asking them to reverse the results and give the victory to him. One such call was to Georgia secretary of state Brad Raffensperger, asking him to "find 11,780 votes". Raffensperger recorded the call and subsequently released it to the public.[30] Both Trump and Giuliani called Rusty Bowers, the speaker of the Arizona House of Representatives, asking him to look into claims of fraud, but he declined to do so without evidence. John Eastman also called Bowers on January 4 asking him to undo the state's certification of Biden's win, but he refused.[31] Trump and his attorneys, as well as Republican members of Congress, also called or met with state officials in Michigan and Pennsylvania, urging them to report that Trump had actually won their states.[32]
On December 19, 2020, six weeks following his election loss, Trump urged his followers on Twitter to protest in Washington, D.C., on January 6, the day Congress was set to certify the results of the election, writing, "Be there, will be wild!" Over the course of the following weeks, Trump would repeat the January 6 date. The Proud Boys worked out where in DC to meet, and how to get to the United States Capitol.[33] The Red-State Secession[who?] Facebook page encouraged its followers to post the addresses of its "enemies" including federal judges.[33] Trump continued to repeat false claims about the election in multiple states leading up to January 6, including Georgia, Pennsylvania, Michigan, Nevada, and Arizona.[34] On the morning of January 6, Trump gave a speech in the Ellipse, a park near the White House, and encouraged his followers to walk down to Pennsylvania Avenue to incite within Republicans lawmakers the "kind of pride and boldness that they need to take back our country". Provoked by Trump, the mob of Trump supporters stormed the Capitol.[33]
The January 6 Capitol attack resulted in hundreds of criminal proceedings.[35] The House of Representatives voted to impeach Trump for a second time on January 13.[36] He was acquitted by the Senate on February 13.[37] The House of Representatives voted to create a select committee to investigate the attack in June 2021.[38] Ahead of its final report, the committee voted to accuse Trump of the four charges.[39] and referred him to the Department of Justice.[40] Two of the four charges brought by the Select Committee were brought against him in the indictment, with the charges of "inciting or assisting those in an insurrection" (18 U.S.C. § 2383) notably not in the indictment nor "Conspiracy to Make a False Statement" (18 U.S.C. §§ 371, 1001). In a CNN interview in January 2022, deputy attorney general Lisa Monaco stated that the Department of Justice would investigate the Trump fake electors plot.[41] By March 2022, the Department of Justice had opened an investigation into the events of January 6 and Trump's attempts to overturn the election.[42] The Department of Justice began obtaining White House phone records in April in connection with the January 6 investigation,[43] and a federal grand jury issued subpoenas to Trump's lawyers in connection with the fake electors plot in May.[44]The Washington Post reported in July that the Department of Justice was investigating Trump's actions on January 6.[45]
The January 6 investigation was overseen by Thomas Windom, an obscure federal prosecutor.[46] On November 18, 2022, attorney general Merrick Garland appointed Jack Smith to serve as special counsel for the January 6 investigation and the FBI investigation into Donald Trump's handling of government documents.[47] Smith intensified both investigations ahead of increased efforts by Trump to focus on his 2024 presidential campaign.[48] In June 2023, Trump was indicted in connection with the classified documents investigation.[49] Leading up to Trump's indictment in the January 6 investigation, prosecutors continued investigating several strands, including through hundreds of documents provided by former New York Police Department commissioner Bernard Kerik.[50] On July 18, Trump was given a target letter.[51] The following week, his lawyers met with prosecutors, signaling the investigation was nearly complete.[52]
Original indictment and arraignment
The original indictmentSpecial Counsel Jack Smith delivers remarks announcing the indictment
According to the indictment, on December8, 2020, a senior campaign advisor admitted that "our research and campaign legal team can't back up any of the claims... It's tough to own any of this when it's all just conspiracy shit beamed down from the mothership."[56] On January 1, Trump learned that Mike Pence did not believe the vice president could reject electoral votes. Trump called Pence and told him, "You're too honest."[57] On January3, it is alleged that White House deputy counsel Patrick F. Philbin privately said that if Trump held onto power, there would be "riots in every major city in the United States", to which "Co-conspirator No.4" (likely Jeffrey Clark) replied "That's why there's an Insurrection Act",[58] implying that Trump could command the military to keep himself in power.[59] The indictment also described a previously unreported discussion between Trump and White House Counsel Pat Cipollone, in which Cipollone advised Trump, hours after the Capitol riot started, to drop his objections to the election. Trump refused.[53]
On August 27, 2024, the special counsel issued a superseding indictment that maintained the same four charges but omitted some specific allegations.[13]
Attorney General Merrick Garland has maintained that issuing the superseding indictment did not violate any election-related Justice Department rules. The Justice Department has a policy not to overtly investigate any candidate within 60 days before an election; the superseding indictment was issued 70 days before the November 5 election. Further, Garland said, the Justice Department issued the new indictment "to respond to the direct instructions of the Supreme Court".[62] Though Trump's team argued that the superseding indictment should be invalid due to its timing so close to an election, Judge Chutkan said she would not consider this argument.[63]
On September 3, Trump submitted a court filing in which he once again pleaded not guilty. He waived his right to appear at his second arraignment[64] and did not attend. He was represented at the hearing by Lauro, Blanche, and Emil Bove.[65] As of his second arraignment on September 5, 2024[update], he has not yet appeared in person before Judge Chutkan.[66]
At the September 5 hearing, Trump's lawyers argued that they were dealing with a new indictment. Judge Chutkan disagreed, observing that the four charges remained the same and that the related allegations had been reduced: "It's not more stuff, it's less."[67]
Statements in the indictment
The original and superseding indictments are similar. The original contains 130 numbered statements, and the superseding contains 106.
Allegations and statements
Statement
Orig.
Sup.
Trump lost the 2020 election.
1
1
Change: The original indictment identifies Trump as the 45th President who was running for re-election, whereas the superseding identifies him only as "a candidate for President of the United States in 2020."
Following election day on November 3, 2020, Trump was "determined to remain in power." Trump spread false claims that he had won and that voter fraud had taken the victory away from him. He knew this wasn't true.
2
2
Change: The superseding indictment adds that he was the "incumbent President" at this time and "used his Campaign" to spread these lies.
He legally challenged the results including through recounts and audits, which all failed to prove his point.
3
3
He "perpetrated three criminal conspiracies" to illegally subvert the election results: conspiracy to defraud the US, conspiracy to corruptly obstruct the vote certification on January 6, 2021, and conspiracy against the right to vote and have one's vote counted.
4
4
Trump "tried – but failed – to enlist the Vice President," Mike Pence, who was his running mate, and who according to the Constitution would have "a ceremonial role in the January 6 certification proceeding."
5
Change: This entire statement is new to the superseding indictment.
Count One: Conspiracy to defraud the United States
Trump is charged under 18 U.S.C. § 371.
Count
Orig.
Sup.
Trump "did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government."
5–7
6–8
Change: The original indictment puts the start date of the conspiracy as November 14, but the superseding indictment says November 13.
Further allegations and statements
Statement
Orig.
Sup.
His co-conspirators included four "private attorneys" (Co-Conspirators 1, 2, 3, and 5) and a "private political consultant" (Co-Conspirator 6).
8
9
Change: The word "private" was added in the superseding indictment. The original indictment also identified a "Justice Department official" as Co-Conspirator 4; this person was omitted from the superseding indictment.
As established in the Constitution and an 1887 federal law called the Electoral Count Act, the federal government collects, counts, and certifies the votes for president. "Until 2021," this process "had operated in a peaceful and orderly manner for more than 130 years."
9
10
Trump and his co-conspirators:
Lied to pressure "state legislators and election officials" to change votes from Biden to Trump.
Organized fake electors in seven states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin) who sent their fake certificates "to the Vice President".
"Attempted to use the power and authority of the Justice Department" to launch fake investigations, send warning letters to the seven states, promote the fake electors as valid, and pressure the states' legislatures to convene to formally choose the fake electors over the real ones.
To enlist Mike Pence to change the election results. After Pence resisted their pressure, Trump and co-conspirators urged a mob to march to the Capitol to continue pressuring Pence.
On January 6, the mob "violently attacked the Capitol and halted the proceeding." Trump and co-conspirators "exploited the disruption" by continuing to lie about election fraud and to pressure congressional leaders to delay the vote certification.
10
11
Change: The superseding indictment adds that Pence's relevant role at the January 6 proceeding was as "President of the Senate," that is, his ceremonial role. It omits the statement about the Justice Department. The original indictment says that Trump and his co-conspirators wanted Pence "to use his ceremonial role" on January 6; the superseding indictment reiterates that Pence would be "in his ceremonial role as President of the Senate" that day.
False claims included that "large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes for the Defendant [Trump] to votes for Biden." People who "repeatedly" told him these claims were false included the Vice President, Justice Department senior leaders, the Director of National Intelligence, the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency, senior White House attorneys, senior staffers on Trump's 2020 re-election campaign, state legislators and officials, and state and federal courts. Trump "deliberately disregarded the truth."
11
12
Change: The superseding indictment omits the list of people who advised Trump that the claims were false. It includes a new sentence: "These false claims were unsupported, objectively unreasonable, and ever-changing, and the Defendant and co-conspirators repeated them even after they were publicly disproven."
Among Trump's lies (the original indictment paraphrases them): "more than ten thousand dead voters had voted in Georgia", "there had been 205,000 more votes than voters in Pennsylvania", "there had been a suspicious vote dump in Detroit, Michigan", "there had been tens of thousands of double votes and other fraud in Nevada", "more than 30,000 non-citizens had voted in Arizona", "voting machines in various contested states had switched votes from the Defendant [Trump] to Biden."
12
Trump was advised that he had lost the election "by those most invested in his re-election, including his own running mate and his campaign staff." "Federal and state courts" rejected all his lawsuits, and "state officials" publicly rejected his claims. Further, "on November 12, the National Association of Secretaries of State, the National Association of State Election Directors, and other organizations" publicly stated that there had been no fraud. Trump tweeted lies. While he "sometimes used his Twitter account to communicate with the public, as President, about official actions and policies, he also regularly used it for personal purposes". Personal purposes here include lying about election fraud, encouraging his supporters to come to Washington on January 6, pressuring Pence "to misuse his ceremonial role", and attempting "to unlawfully retain power." On January 6, Trump "gave a Campaign speech at a privately-funded, privately-organized political rally held on the Ellipse in Washington, D.C.", repeating the "same unsupported, objectively unreasonable, and publicly disproven lies" to encourage his supporters to march to the Capitol.
13–15
Trump and his co-conspirators committed one or more of the following acts.
16
On November 13, Trump's campaign attorneys conceded the election. That day (as clarified in the superseding indictment), Trump "turned to" Giuliani. The next day, Trump announced that Giuliani would lead a challenge of his election loss.
13
17
Change: The superseding indictment adds this context: "The Defendant had no official responsibilities related to any state's certification of the election results."
Arizona: On November 13, Trump's campaign manager advised him that a claim about Arizona voter fraud was false. On November 22, Trump and Giuliani lied to the Arizona House Speaker that there had been fraud, asked him to convene a hearing, then asked him to use the legislature to replace electors for Biden with electors for Trump. On December 1, Giuliani told the Arizona House Speaker: "We don't have the evidence, but we have lots of theories." On December 4, the Arizona House Speaker publicly stated that he would not illegally attempt "to change the outcome" of the election. On January 4, Eastman pressured him to decertify the election. On January 6, Trump publicly repeated his lie about election fraud in Arizona.
14–19
18–23
Georgia: On November 16, Trump's assistant sent a document to Powell containing criticism of a voting machine company. Trump tweeted to promote a forthcoming lawsuit. Powell sued Georgia on November 25, but the lawsuit was dismissed two weeks later. On December 3, Giuliani and Eastman urged a Georgia state senate subcommittee to decertify the election results (based in part on false claims about ballot counting at State Farm Arena), while Trump tweeted to promote their "blockbuster testimony" and amplify their lie about "ballot stuffing by Dems". On December 4 and 7, an official for the Georgia Secretary of State debunked the claims. On December 8, Trump called the Georgia Attorney General to pressure him to support another state's attorney general's lawsuit in the Supreme Court. The Georgia Attorney General refused. An unnamed senior campaign advisor said in an email: "our research and campaign legal team can't back up any of the claims [made by Giuliani]...it's tough to own any of this when it's all just conspiracy shit beamed down from the mothership." On December 10, Giuliani repeated the false claims to a Georgia state house committee and made allegations against a mother and daughter, Ruby Freeman and Wandrea' ArShaye Moss, who were election workers. The original indictment said that, on December 15 and 27, two Justice Department officials – the incoming acting attorney general and incoming acting deputy attorney general – told Trump that the State Farm Arena allegations were false. It also said that Trump's chief of staff told him that state election officials were "exemplary", but a day later, on December 23, Trump tweeted that they were "[t]errible people!" On December 31, Trump signed a statement of false election fraud claims to be filed in a lawsuit against Georgia; Eastman acknowledged that Trump knew it was false, and yet Eastman "caused [it] ... to be filed nonetheless." On January 2, Trump called the Georgia Secretary of State, who addressed Trump's claims of fraud with evidence to the contrary. Trump said he did not want to view the Secretary of State's evidence that the election was fair, threatened him with criminal prosecution, and demanded that he "find" 11,780 votes in his favor. The next day, Trump publicly lied that the Secretary of State had been "unwilling, or unable, to answer questions". On January 6, Trump publicly repeated his lie about election fraud in Georgia.
20–33
24–35
Change: The superseding indictment begins with new context: Trump's senior campaign advisor had warned Trump, "as early as mid-November," that his claims of voter fraud in Georgia were false. It clarifies that the purpose of a state attorney general's lawsuit in the Supreme Court was "to invalidate election results in certain targeted states like Pennsylvania." It adds that, on December 9, Trump "not as President but in his capacity as a candidate for office", represented by Eastman, moved to join the lawsuit, but the Supreme Court denied the lawsuit two days later. The superseding indictment omits the statements about the two Justice Department officials and Trump's chief of staff telling him there had been no fraud. It clarifies that the people who joined Trump on the January 2 call included Trump's chief of staff, "who sometimes handled private and Campaign-related logistics", and "private attorneys involved in the lawsuit against Georgia's Secretary of State".
Michigan: On November 20, Trump met with the Michigan House Speaker and the Michigan Senate Majority Leader. This followed outreach by RNC chair Ronna McDaniel, who briefly joined in by call. Giuliani called in too. The two Michigan leaders issued a public statement saying they did not have "any information that would change the outcome of the election in Michigan." On December 4, Giuliani asked the Michigan House Speaker to revoke the Biden electors: "Help me get this done in Michigan." He made a similar request on December 7 of the Michigan Senate Majority Leader. On December 14, the two Michigan leaders refused to decertify the election results or the electors. The Michigan Senate Majority Leader publicly stated that they had no "evidence of fraud on a scale that would change the outcome". The Michigan House Speaker publicly stated: "This truly would bring mutually assured destruction for every future election...I won't." On January 6, Trump publicly repeated his lie about election fraud in Michigan.
34–41
36–40
Change: The original indictment referred to a voter fraud allegation Trump made on November 5; this was removed from the superseding indictment. The naming of Ronna McDaniel and Giuliani in the November 20 meeting is new to the superseding indictment. The original indictment said that, on December 1, the Attorney General told Trump there was no evidence of voter fraud in Detroit and that the next day Trump nevertheless falsely alleged this; this was removed from the superseding indictment.
Pennsylvania: On November 11, Trump publicly maligned a Philadelphia city commissioner for saying there was no evidence of local voter fraud. On November 25, Giuliani made false claims of voter fraud to state legislators at a Gettysburg event he organized. Internally, a campaign staffer said there was "no way to defend" Giuliani's claims, and the deputy campaign manager agreed: "We have been saying this for a while. It's very frustrating." On December 6, Trump tweeted that the state legislators were cowards for refusing to overturn the election results. On December 31 and January 3, the acting attorney general Jeffrey Rosen and acting deputy attorney general Richard Donoghue told Trump that his claims of voter fraud in Pennsylvania were false. On January 6, Trump publicly repeated his lie about election fraud in Pennsylvania.
42–46
41–44
Change: The superseding indictment corrected the date of the tweet from December 4 to December 6. The superseding indictment omits mention of Rosen and Donoghue.
Wisconsin: On November 29, a Wisconsin recount that Trump's campaign had paid for increased his margin of defeat. The next day, the Wisconsin governor certified Biden's electors. On December 14, the Wisconsin Supreme Court rejected Trump's challenge, saying there was no "legitimate doubt", and on December 21, the Wisconsin governor certified that the state Supreme Court had resolved the matter in favor of Biden – in response to which Trump tweeted a demand that the Wisconsin legislature overturn the election. On December 27, Rosen and Donoghue told Trump that his claims of voter fraud in Wisconsin were false. On January 6, Trump publicly repeated his lie about election fraud in Wisconsin.
47–52
45–49
Change: The superseding indictment omits mention of Rosen and Donoghue.
Beginning in early December 2020, Trump and co-conspirators came up with the fake electors plot, intending to "create a fake controversy at the certification proceeding". They targeted the five states mentioned above plus Nevada and New Mexico.
53
50
Change: The superseding indictment adds this context: "The Defendant had no official responsibilities related to the convening of legitimate electors or their signing and mailing of their certificates of vote."
Chesebro's three memos on November 18 ("Wisconsin Memo"), December 6 ("Fraudulent Elector Memo") and December 9 ("Fraudulent Elector Instructions") together laid out "a corrupt plan to subvert the federal government function" of certifying Biden's victory.
54
51
On December 6, Trump's chief of staff sent the Wisconsin Memo to campaign staff, explaining: "We just need to have someone coordinating the electors for states." The campaign went on to apply the idea in the Wisconsin memo "to any state that the Defendant [Trump] claimed was 'contested'—even New Mexico, which the Defendant had lost by more than ten percent of the popular vote."
55
52
On December 6, Trump and Eastman told Ronna McDaniel that the RNC should help find electors in the states they were targeting. They lied to her that these alternative slates of electors were intended as a backup plan to be used only if a court were to rule that Trump, not Biden, had won a state's election. McDaniel reported back to Trump that electors were being gathered.
56
53
On December 7, Giuliani received the Wisconsin Memo and the Fraudulent Elector Memo. He asked Co-conspirator No. 6 for attorneys who could help with the fake elector plot, and Co-conspirator No. 6 named attorneys in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin.
57
54
On December 8, Chesebro called the Arizona attorney whom Co-Conspirator 6 had named. The attorney wrote up his notes from the call: "His idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren't legal under federal law—because they're not signed by the Governor); so that members of Congress can fight about whether they should be counted on January 6th. (They could potentially argue that they're not bound by federal law because they're Congress and make the law, etc.) Kind of wild/creative—I'm happy to discuss. My comment to him was that I guess there's no harm in it, (legally at least)—i.e. we would just be sending in 'fake' electoral votes to Pence so that "someone" in Congress can make an objection when they start counting votes, and start arguing that the 'fake' votes should be counted."
58
55
On December 10, Chesebro (as directed by Giuliani) sent a version of the Wisconsin Memo, the Fraudulent Elector Instructions, and fake elector certificates to the targeted states (except Wisconsin, which had already received them).
59
56
On December 11, Giuliani (through Chesebro) suggested that the Arizona lawyer file a case with the Supreme Court so he could claim there was pending litigation. Chesebro said that a state official and state provisional elector had allegedly told Giuliani that "it could appear treasonous for the AZ electors to vote" without a pending court case.
60
57
On December 12, Giuliani, Chesebro and Co-Conspirator 6 were on a call organized by the Trump campaign. When the fake electors in Pennsylvania said they were worried about falsely representing themselves as the real electors, Giuliani lied to them, saying that their certificates would be used only if a court said that Trump had won. Co-Conspirator 6 later proposed disclaimer language for the fake elector certificates in Pennsylvania. Another Trump campaign official said not to offer this disclaimer language to any more states. Some fake electors refused to participate.
61
58
On December 13, Chesebro emailed Giuliani with a plan to present the fake elector slates at the Congressional certification proceeding regardless of whether any court were to rule that Trump had won a state election.
62
59
On December 13, Trump asked for a statement about the electors to be put out by his senior campaign advisor, who was then invited to a conference call with Giuliani and Co-Conspirator 6. The deputy campaign advisor sent a group text: "the way this has morphed[,] it's a crazy play so I don't know who wants to put their name on it"; a senior advisor to Trump replied, characterizing the plan as "[c]ertifying illegal votes." The senior campaign advisor (who was supposed to put out the statement) and a campaign staffer were included on these texts. None of them wanted their names on the statement.
63
60
On December 13, Chesebro drafted and sent fake elector certificates for New Mexico. The Trump campaign had not previously targeted this state and had no pending court case there. The next day, the campaign filed a lawsuit six minutes before the noon deadline to meet the requirement for having pending litigation when the fake electors voted.
64
61
On December 14, all real electors met in their home states to cast their votes. In the seven states that the Trump campaign targeted, the real electors voted for Biden. In those states, the fake electors convened their own fake proceeding and declared that they would vote for Trump. In some of these states, the fake electors partially satisfied legal requirements by meeting in the state capitol building, while in other states, the fake electors were unable to meet requirements. Certificates for all seven slates of fake electors were mailed to the President of the Senate, the Archivist of the United States, and others, following Chesebro's plan in his Fraudulent Elector Instructions. Before being mailed, the legitimate electors' certificates were attached to the state executives' certificates of ascertainment; the fake electors' certificates were not. That evening, Ronna McDaniel forwarded Trump an email saying that in six of the contested states (all except NM), the fake electors for Trump had cast their votes alongside the legitimate electors for Biden. Trump's executive assistant confirmed that Trump received the email.
65–69
62–66
This section about the Justice Department was entirely removed from the superseding indictment. In late December 2020, Trump "attempted to use the Justice Department" to lie about election fraud, "thus giving the Defendant's lies the backing of the federal government". On December 22, Jeffrey Clark went to the White House to meet with Trump without telling the Justice Department he was doing so, violating a Justice Department policy meant "to guard against improper political influence." On December 26, Clark lied to the acting attorney general Jeffrey Rosen, saying his meeting with Trump had been unplanned and promising not to do it again. The next morning, Clark had a three-minute phone call with Trump. In the afternoon, Trump called Rosen and acting deputy attorney general Richard Donoghue, making claims of election fraud (which they refuted) and suggesting that he install Clark. Rosen told Trump that the Justice Department would not change the election outcome. Trump replied: "Just say that the election was corrupt and leave the rest to me and the Republican congressmen." On December 28, Clark proposed that Rosen and Donoghue sign a letter to state officials in Georgia and other targeted states. The draft letter contained false claims that the Justice Department had "concerns" about events that may have "impacted the outcome of the election in multiple States", including that the fake Trump electors who had voted on December 14 in some targeted states were valid electors. It urged the state legislature to convene a special session to choose the fake electors. Donoghue told Clark that "we have not seen" any such fraud, and together with Rosen, he again told Clark to avoid unauthorized communications with the White House. On December 31, Trump summoned Rosen and Donoghue to repeat his false claims of fraud and threaten to replace Justice Department leadership. On January 2, Clark pressured Rosen and Donoghue to sign the letter, saying that Trump was likely to offer him Rosen's position but that Clark would decline the offer if Rosen and Donoghue would comply. They did not. The next morning, Clark sent a revised draft to a Justice Department colleague, changing "concerns" to "evidence of significant irregularities". Without informing Justice Department leadership, he went to the White House and accepted Trump's offer to become acting attorney general. That afternoon, Clark spoke to deputy White House counsel Patrick Philbin. Philbin had previously told Trump that he had to "leave the White House [o]n January 20th" and now told Clark not to assume the role of acting attorney general. Philbin warned of "riots" if Trump did not leave office; Clark replied that authorities could use the Insurrection Act to silence any protests. Separately, Clark informed Rosen (his superior) that he was replacing him. Rosen objected and scheduled a meeting with Trump. On the evening of January 3, the Chairman of the Joint Chiefs of Staff recommended that Trump take no action on "an overseas national security issue" so close to the inauguration, and Trump agreed: "Yeah, you're right, it's too late for us. We're going to give that to the next guy." Trump then went to the meeting that Rosen had requested. Clark, Donoghue, Steven Engel, and others — White House counsel, deputy White House counsel, and a senior advisor — attended. Though Trump expressed frustration that Rosen would not overturn the election result, he agreed not to replace Rosen with Clark upon being warned that many at the Justice Department and his White House counsel would resign in protest. Clark suggested that the Justice Department could issue an opinion that Pence could change the election outcome; Engel said the Justice Department should not do this. Trump said that he alone would contact Pence, and he ended the meeting.
70–85
Trump sought to enlist Pence "to use his ceremonial role at the certification" (original) or "to use his role as President of the Senate" (superseding) to overturn the election results. Later, he would gather a "crowd of supporters" in Washington to pressure Pence.
86
67
Change: The superseding indictment clarifies that Trump "had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election."
On December 19, Trump tweeted: "Big protest in D.C. on January 6th. Be there, will be wild!" In late December and early January, Trump urged his supporters to attend.
87
68
Change: The superseding indictment added "and early January".
On December 23, Trump retweeted a memo titled "Operation 'PENCE' CARD" that falsely claimed Pence could, on his own, disqualify legitimate electors from six targeted states. Eastman, reversing his own position he had expressed on October 11, circulated a memo about how Pence could declare Trump the winner.
88–89
69–70
Change: The original indictment includes two sentences describing this memo; the superseding indictment omits them.
On December 25, when Pence called Trump to wish him Merry Christmas, Trump asked him to reject electoral votes on January 6, to which Pence replied: "You know I don't think I have the authority to change the outcome."
90
71
On December 29, Trump lied to Pence that the Justice Department was "finding major infractions."
90
On January 1, Trump berated Pence for objecting to seeking a court determination about whether the vice president may reject electoral votes. Pence believed he simply did not have that authority. Trump told him: "You're too honest." Trump tweeted to remind his supporters to come to Washington on January 6 to "StopTheSteal!"
90
72
On January 3, Trump again told Pence that he had the right to reject electoral votes. Pence again replied that he did not, observing that, the previous day, "a federal appeals court had rejected the lawsuit making that claim".
90
73
On January 3, Eastman circulated a second memo stating that — "contrary to the ECA," as the indictment observes — Pence could ask the state legislatures to decide which slate of electors to use.
91
74
On January 4, Trump met with Eastman, Pence, Pence's chief of staff, and Pence's counsel. During the meeting, Trump said (as recorded in Pence's notes): "Bottom line—won every state by 100,000s of votes" and "We won every state." Trump and Eastman again pressured Pence. When Pence asked Eastman to justify why he should be allowed to send votes back to the states, Eastman said: "Well, nobody's tested it before." Pence complained to Trump: "Even your own counsel is not saying I have that authority." Trump replied that he anyway "prefer[red] the other suggestion" of the Pence rejecting the electors unilaterally.
92–93
75–76
Change: The original indictment says that the purpose of the January 4 meeting was to pressure Pence to outright reject electoral votes for Biden or at least send them back to the targeted states for possible rejection, and it notes that Trump "deliberately excluded his White House Counsel from the meeting" for having previously "pushed back" on his lies about the election. The superseding indictment omits those claims, saying only that Trump's White House Counsel did not attend the meeting. Additionally, the original indictment reflects a specific claim he made about Pennsylvania, which the night before Justice Department officials had reminded him was false; the superseding indictment omits that claim.
On January 4, Trump's senior advisor warned Eastman that the plan would “cause riots in the streets.” Eastman replied that violence is sometimes necessary.
94
77
Change: The original indictment said the senior advisor informed Trump that Eastman admitted that the plan was going to fail; this was omitted from the superseding indictment.
On the morning of January 5, at Trump's direction, Pence's chief of staff and Pence's counsel met again with Eastman. Eastman pushed Trump's preference that Pence unilaterally reject electors from the targeted states. Eastman told Pence's counsel that he knew the Supreme Court would unanimously reject his proposal and thus he hoped the question would not be submitted to a court to decide. Pence's counsel warned him that the plan would cause a “disastrous situation” of the election being “decided in the streets.” Trump encouraged supporters to travel to Washington on January 6, setting the false expectation that Pence could legitimately use his ceremonial role [superseding indictment clarifies: “as President of the Senate”] to overturn the election result. Trump tweeted: "The Vice President has the power to reject fraudulently chosen electors” and “I will be speaking at the SAVE AMERICA RALLY tomorrow”, including the time and place.
95–96
78–79
Change: The original indictment said that Trump tweeted that his supporters were “inundat[ing]” Washington because they “don’t want to see an election victory stolen .... Our Country has had enough, they won’t take it anymore! We hear you (and love you) from the Oval Office.” This tweet was omitted from the superseding indictment.
On January 5, Trump and Pence met privately. Pence again refused to comply with the request [the superseding indictment clarifies that he was being asked to "use his position as President of the Senate" to obstruct the proceeding], and Trump threatened to publicly criticize him. Pence's chief of staff learned of this threat and alerted the head of Pence's Secret Service detail.
97
80
This statement was omitted from the superseding indictment: "As crowds began to gather in Washington and were audible from the Oval Office, the Defendant remarked to advisors that the crowd the following day on January 6 was going to be 'angry.'"
98
On the evening of January 5, at Trump's direction, his campaign issued a statement he knew to be false: “The Vice President and I are in total agreement that the Vice President has the power to act.”
99
81
From the early morning of January 6, Trump was lying to pressure Pence to fraudulently declare him the victor, and he raised a public expectation that Pence might determine the victor. Trump tweeted at 1 a.m.: "If Vice President@Mike_Pence comes through for us, we will win the Presidency.” Shortly after 8 a.m., he tweeted: "States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. 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!"
100
82
On the morning of January 6, an agent for Trump, on the understanding that the fake elector certificates for MI and WI had not been successfully mailed to Pence or the Archivist, asked a U.S. Senator to hand-deliver them to Pence. The agent gave the documents to the Senator's staffer, saying they were ”[a]lternate slate[s] of electors for MI and WI because archivist didn't receive them”. The Senator's staffer offered them to Pence's staffer, but Pence's staffer rejected the delivery.
101
83
At 11:15 a.m., Trump called Pence to pressure him. Pence refused. Anticipating making a speech within the hour, Trump decided to lie to the crowd that Pence had authority to send the electoral votes back to the states — language that his advisors had told him to remove.
102
84
At Trump's request, Giuliani and Eastman gave their own public remarks first, intensifying pressure on Pence based on election claims they knew were false. Giuliani told the crowd that Pence could "cast [the Electoral Count Act] aside" and unilaterally "decide on the validity of these crooked ballots". He lied that they had "letters from five legislatures begging us" to send the elector slates back to the legislatures, and he called for "trial by combat." Eastman told the crowd that Pence must "let the legislatures of the state look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not. We no longer live in a self governing republic if we can’t get the answer to this question."
103
85
Once Trump began speaking at 11:56 a.m., he lied repeatedly. What he said was "integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others’ right to vote and have their votes counted." He "repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification." Trump lied that "the states got defrauded" and "now they want to recertify." He said that Pence could change the election outcome. After Trump said "the only way that can happen is if Mike Pence agrees to send it back," the crowd began to chant, "Send it back." Trump said, “When you catch somebody in a fraud, you’re allowed to go by very different rules.” He told the crowd that "if you don't fight like hell, you’re not going to have a country anymore," and told them to march to the Capitol, implying that he would accompany them, and told them to meet Members of Congress with "pride and boldness…to take back our country."
104
86
Change: The superseding indictment clarifies that Trump was asking Pence to "use his position as President of the Senate". Regarding Trump's statement that "you're allowed to go by very different rules," the superseding indictment adds that Trump “specifically referenced the process by which electoral votes are counted during the proceeding, including by stating, "We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated."
Thousands of people began marching to the Capitol.
105
87
Shortly before 1 p.m., Pence issued a public statement that his role as President of the Senate at the certification proceeding did not authorize him "to determine which electoral votes should be counted and which should not." The original indictment specifies that the certification proceeding "was about to begin"; the superseding indictment omits that.
106
88
While Trump spoke, a crowd gathered at the Capitol. Trump supporters who had come to Washington at his direction "broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it."
107
89–91
Change: The superseding indictment adds this context: "On the floor of the House of Representatives, the Vice President, in his role as President of the Senate, began the certification proceeding. At approximately 1:11 p.m., the Vice President opened the certificates of vote and certificates of ascertainment that the legitimate electors for the state of Arizona had mailed to Washington, consistent with the ECA. After a Congressman and Senator lodged an objection to Arizona's certificates, the House and Senate retired to their separate chambers to debate the objection."
After Trump finished speaking, he returned to the White House, watching TV and reading Twitter.
108
92
Change: The superseding indictment clarifies that he returned around 1:30 p.m. The original indictment says he "watched events at the Capitol unfold on the television in the dining room next to the Oval Office." The superseding indictment says: "He spent much of the afternoon reviewing Twitter on his phone, while the television in the dining room showed live events at the Capitol."
Following over "an hour of steady, violent advancement, the crowd at the Capitol broke into the building." At approximately 2:20 p.m., the official proceeding having been interrupted, staffers evacuating from the Senate carried with them the legitimate electors' certificates of vote and their governors' certificates of ascertainment. The House also was forced to recess."
109
93
Change: The superseding indictment adds that the break-in "forced the Senate to recess."
Upon learning of the Capitol breach,Trump's advisors informed him of the situation. They advised him to make a statement that would calm the rioters, but he refused, repeatedly saying that they were angry because the election had been stolen.
110
Intending to “further delay and obstruct the certification”, Trump tweeted that "Mike Pence didn't have the courage to do what should have been done". One minute later, the Secret Service evacuated Pence to a secure location. The crowd at the Capitol chanted, "Hang Mike Pence!"; "Where is Pence? Bring him out!"; and "Traitor Pence!"
111–113
94–96
Change: The original indictment says Trump sent this tweet “after advisors had left [him] alone in his dining room", whereas the superseding indictment says he sent it “personally, without assistance”.
Despite the urging of senior advisors including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a senior advisor, Trump would not send a message asking rioters to leave the Capitol. Instead, he tweeted false suggestions that the crowd was already peaceful, including: “Stay peaceful!” And “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order…” He spoke by phone with House Minority Leader Kevin McCarthy, telling him that the crowd was apparently more upset about the election than McCarthy was. In the Rose Garden, he taped a video in which he lied that the election had been “stolen from us,” telling supporters that they were “very special” and that “we love you", but asking them to leave the Capitol. This video was posted to Twitter. He then watched the attack on the Capitol on television, saying: “See, this is what happens when they try to steal an election. These people are angry.” In the evening, he tweeted: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”
114–118
On the evening of January 6, Trump and Giuliani tried to exploit the Capitol riot. From 6:59 p.m. to 7:22 p.m., Giuliani called five U.S. senators and one U.S. representative. Co-Conspirator 6 attempted to confirm phone numbers for six U.S. senators whom Trump had told Giuliani to call. For one senator, Giuliani left a voicemail: "We need you, our Republican friends, to try to just slow it down...ideally until the end of tomorrow." For another, Giuliani repeated lies about fraud, including that governors had certified the vote counts knowing they were incorrect; that substantial numbers of ineligible people (non-citizens and minors) had voted; that Pence's actions were surprising; and that the senator should "object to every state and kind of spread this out a little bit like a filibuster".
119
97
Change: Original indictment says Trump and Giuliani tried to exploit the riot "by calling lawmakers to convince them...to delay the certification" while continuing to lie about election fraud. The superseding indictment says more specifically that the two of them had Giuliani make those calls, and it clarifies that Trump "had no official role" in the certification "proceeding". The original indictment says that Trump tried to reach two U.S. senators through White House aides; the superseding indictment omits this. The original indictment had said Giuliani's calls ended at 7:18 p.m. The superseding indictment corrects this to 7:22 p.m.
While Giuliani was making these calls, the White House Counsel called Trump to ask him to allow the certification. Trump refused.
120
"The attack on the Capitol obstructed and delayed the certification for approximately six hours, until the Senate and House of Representatives came back into session separately at 8:06 p.m. and 9:02 p.m., respectively, and came together in a Joint Session at 11:35 p.m."
121
98
At 11:44 p.m., Eastman emailed Pence's counsel, asking for Pence to prompt a 10-day delay. Eastman referred to his illegal proposal as "one more relatively minor violation" of the Electoral Count Act. In Eastman's words, this would give an opportunity for "the legislatures to finish their investigations" and to have "a full forensic audit of the massive amount of illegal activity that has occurred".
122
99
At 3:41 a.m. on January 7, as President of the Senate, Pence announced Biden as the victor.
123
100
Trump and his co-conspirators committed one or more of the acts described in: 13, 15–16, 18–22, 24, 26, 28, 30–33, 35, 37–39, 41, 43–44, 46, 50, 52, 54, 56, 57–64, 67, 71–75, 78–82, 84, 85, 87–97, 99–100, 102–104, 111, 114, 116, 118–119, and 122.
124
Count Two: Conspiracy to obstruct an official proceeding
Trump is charged under 18 U.S.C. § 1512(k).
Count
Orig.
Sup.
Trump "did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote".
125–126
101–102
Count Three: Obstruction of an official proceeding
Trump is charged under 18 U.S.C. §§ 1512(c)(2), 2.
Count
Orig.
Sup.
Trump "attempted to, and did, corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote."
127–128
103–104
Count Four: Conspiracy against rights
Trump is charged under 18 U.S.C. § 241.
Count
Orig.
Sup.
Trump "did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States—that is, the right to vote, and to have one’s vote counted."
129–130
105–106
Co-conspirators
The original indictment referenced six co-conspirators. Although they were not named in the indictment, news agencies reported their likely identities based on public information. The indictment did not charge them.[68]
Co-conspirator No. 1: Trump lawyer Rudy Giuliani, as confirmed by his lawyer, Robert Costello, who claimed the indictment "eviscerates the First Amendment".[53]
Co-conspirator No. 2: Trump lawyer John Eastman, as confirmed by his lawyer, Harvey Silverglate, who claimed Eastman would be exonerated.[69]
Co-conspirator No.3: Trump lawyer Sidney Powell. CNN noted that the dates of a "lawsuit against the Governor of Georgia" mentioned in the indictment align with a lawsuit filed by Powell.[70] On October 19, Powell pleaded guilty in the Georgia election racketeering prosecution (in which Trump is named as a co-defendant) in an agreement with prosecutors to testify against other defendants in future trials.[71][72]
Co-conspirator No.4: Trump lawyer Jeffrey Clark. CNN matched quotes of an email in the indictment with quotes from a Senate report.[70] Clark was omitted from the superseding indictment in August 2024.[73]
Co-conspirator No. 6: A "political consultant" who allegedly named attorneys in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin "who could assist in the fraudulent elector effort". On December 13, 2020, this person joined a phone call with Rudy Giuliani and a senior campaign advisor for Trump.[77]
Later, the superseding indictment clarified that Co-conspirator Nos. 1, 2, 3, and 5 were "private attorney[s]" and that Co-conspirator No.6 was a "private political consultant". It omitted Co-conspirator No.4 entirely.
In August 2023, Chutkan set trial for March 4, 2024.[78] This was close to federal prosecutors' proposal of January 2, 2024, whereas Trump's team had suggested April 2026.[79]
On October 10, acknowledging that the screening of potential jurors would involve revealing jurors' identities to the legal teams, prosecutors recommended prohibiting attorneys from "friending" or "following" the social media accounts of potential jurors.[83] On November 2, Chutkan ruled that jury selection would begin on February 9 (aligned with the prosecution's request of early February) and ordered that the parties not share any jury pool research with any other legal entity (such as Trump's presidential campaign) or publicly disclose the identities of prospective jurors.[84][85]
However, Chutkan paused deadlines in the case after Trump asked the DC Circuit Court of Appeals on December 7 to decide whether he is immune from prosecution.[86] On February 2, 2024, one week before jury selection would have begun, Chutkan issued an order acknowledging that the trial would have to be postponed.[7] (Over the previous week, she had already scheduled other trials for March and April.)[86] She said she would not set a new date for Trump's trial until the question of presidential immunity was resolved.[7] On February 6, the appeals court ruled that Trump was not immune.[8] Trump then appealed to the Supreme Court,[87] which scheduled oral arguments for April 25[10] and did not rule until the end of the court's term on July 1.[88]
Post-immunity timetable
At Trump's second arraignment on September 5, 2024, Judge Chutkan first addressed the immunity issue.[89] She maintained that the Supreme Court had given her discretion to decide whether evidence regarding Mike Pence is admissible[90] and that, even if she decides it is inadmissible, she is not required to toss out the entire indictment.[91]
She next addressed the timetable. The old deadlines for witnesses and evidence had "long since passed", she noted, because the case had been stayed while Trump appealed.[92] She said that "we are hardly sprinting to the finish line" and insisted that "there needs to be some forward motion in this case."[93] She said any remaining discovery should proceed promptly.[94]
Hours after the hearing ended, she set new deadlines for court filings, including:
Prosecutors must file their initial brief on the immunity question by September 26 (which they did). They had asked for this extra time.[95] Trump must file his reply by October 17[96] (later extended to November 7).[97]
Prosecutors' response to the immunity question by October 29 (later extended to November 21). The deadline for Trump's reply was later extended to December 5.[97]
November 7: Trump's final brief on the legality of the special counsel's appointment.
No hearings were yet included in the schedule. Chutkan did not set a trial date,[98] acknowledging that the case would return to the Supreme Court before going to trial. She said: "We all know that whatever my decision on immunity is is going to be appealed."[93][99]
Immediately following Trump's election in November 2024, it was reported that the Justice Department was considering how to wind down the case.[100] On November 25, Smith filed a motion to drop all charges against Trump, citing the DOJ's policy of not prosecuting sitting Presidents,[14][101] and Chutkan approved the request the same day.[16]
On August 4 and 5, the special counsel filed motions asking the court to restrict Trump from making public statements about the case and to impose a protective order on Trump and his attorneys to prevent them from revealing evidence (as they noted Trump has done in other cases). In particular, they cited social media posts on August 4 and 5 in which Trump threatened to retaliate against anyone who "comes after" him and called Pence "delusional". The Trump campaign characterized this as political speech that should be allowable.[103][104] When Chutkan would not grant the Trump team's request for an extra three days to respond, Trump attacked her on social media, demanding that she be removed from the case and that the case be moved out of the District of Columbia.[105] On August 7, Trump's attorneys requested a less restrictive order that would "shield only genuinely sensitive materials from public view", to which prosecutors replied that Trump sought "to try this case in the media rather than in the courtroom".[106] Chutkan scheduled a hearing for August 11.[107]
On August 8, Trump insisted he would continue to speak publicly about the case.[108] On August 10, Chutkan was spotted with the protection of U.S. Marshals, revealing an apparently increased level of security.[109] A Texas woman was charged the next week with leaving Chutkan a voicemail with racial and gender slurs in which she threatened: "Hey you stupid slave nigger... If Trump doesn't get elected in 2024, we are coming to kill you, so tread lightly, bitch... You will be targeted personally, publicly, your family, all of it."[110][111][a] At the August 11 hearing, Chutkan issued a less broad protective order than what was sought by prosecutors, who wanted to lock down all evidence turned over in discovery. The protective order allowed Trump to access certain non-sensitive information. She admonished Trump's attorneys that inflammatory public remarks by the former president would cause her to take measures to expedite the trial and prevent potential witness tampering and jury pool tainting. She emphasized that Trump's status as a criminal defendant had priority over his free speech as a political candidate.[114][115][116]
Chutkan ruled Trump could review materials alone, but only if his attorneys ensured he did not have any device that could copy them. A prosecutor told the court that once the protective order was in place, the special counsel expected to provide the defense about 11.6 million pages or files of materials by the end of August.[117] Court documents released on September 15 showed the special counsel previously asked Judge Chutkan in sealed briefs to impose a "narrowly tailored" gag order on Trump, asserting that since his indictment he "has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the court, prosecutors and prospective witnesses."[118] Smith filed another brief on September 29 regarding more recent derogatory remarks Trump had made about Brad Raffensperger, William Barr, and former chairman of the Joint Chiefs of StaffMark Milley, all of whom were identified as witnesses in the Trump indictment. Trump had on September 22 suggested that Milley should be executed for treason. The brief asserted, "No other criminal defendant would be permitted to issue public statements insinuating that a known witness in his case should be executed. This defendant should not be, either."[119][120]
On October 16, following a hearing, Chutkan granted a limited gag order.[121][122][123] The gag order prohibits all parties from making public statements targeting Jack Smith or his staff, the defense counsel or their staff, the judge or court personnel, and any potential witnesses or the substance of witness testimony with smears, intimidation, or harassment.[124][125][126] The gag order does not prohibit Trump from making statements criticizing the Biden administration, the Justice Department, the District of Columbia, other presidential candidates and their political platforms, and the conduct of the trial as being unfair or politically motivated.[124][125][126][123] Trump's attorneys filed an appeal of the gag order the next day that claimed that the order violated the Freedom of Speech Clause of the 1st Amendment,[127][128] and Chutkan issued a stay of the order on October 20.[129][130][131] On October 25, the prosecution filed a reply to the stay order that urged that the gag order be reinstated.[132][133] On the same day, the American Civil Liberties Union filed an amicus brief against the gag order that argued that it violated the 1st Amendment.[134]
Chutkan granted the prosecution's request on October 29, stating in her ruling that "First Amendment rights of participants in criminal proceedings ... yield, when necessary, to the orderly administration of justice – a principle reflected in Supreme Court precedent", and citing Gentile v. State Bar of Nevada (1991), that "contrary to Defendant's argument, the right to a fair trial is not his alone, but belongs also to the government and the public."[135][136][137]
On November 2, Trump's attorneys appealed Chutkan's reinstatement of the gag order, asking the U.S. District of Columbia Circuit Court of Appeals to stay the gag order during the appeal.[138][139] The next day, the court granted the pause and scheduled a hearing.[140] On November 14, the prosecution's filing urged that the gag order be upheld.[141] At the November 20 hearing, a three-judge panel (with Brad Garcia, Patricia Millett, and Cornelia Pillard presiding) suggested that it might limit the scope of the gag order. It noted Supreme Court precedent suggesting that, in balancing the rights to freedom of speech and a fair trial, protecting the integrity of criminal procedure outweighs free speech rights.[142][143][144] On November 23, the prosecution's filing urged reinstatement of the gag order, citing a document that compiled hundreds of voicemails containing threats and harassment of presiding New York State Unified Court System Judge Arthur Engoron in the New York civil investigation of The Trump Organization;[145] the next day, the defense replied, claiming that the evidence the prosecution cited was irrelevant.[146]
On December 8, the three-judge panel on the appeals court mostly upheld the gag order. The court ruled that Trump cannot speak about prosecutors, court staff or their families. However, Trump may speak about witnesses as long as he doesn't speak specifically about their participation in the court case. He's also free to speak about special counsel Jack Smith, President Joe Biden, and the Justice Department, and he's allowed to say that the charges are "politically motivated".[147] On December 18, Trump asked the court to reconsider its decision;[148] on January 23, the full 11-member court said it would not.[149] (Trump may still appeal to the U.S. Supreme Court, as previously indicated.)[138]
On January 7, 2024, Chutkan's home was swatted (i.e., someone called in a false report of a violent crime to prompt a police response).[150]
Other pre-trial motions
On September 11, 2023, Trump asked Chutkan to recuse herself accusing her of "prejudging the facts pertinent to the case and his culpability".[151] On September 17, he repeated the request.[152] Chutkan denied the request ten days later.[153]
Also on October 5, a consortium of media organizations filed a request with Chutkan to allow live broadcasting of the trial's proceedings.[154]
In an October 10 court filing, prosecutors said that Trump and his legal team had "repeatedly and publicly announced" that they would employ an "advice of counsel" defense, i.e., shifting blame to certain lawyers for advising Trump wrongly. Prosecutors asked Chutkan to order Trump to disclose by December 18 whether he intended to use this defense. This defense would require Trump to reveal communications and evidence related to his current and former attorneys, and he would thereby forfeit his assertions of attorney-client privilege. Prosecutors noted in the motion that at least 25 witnesses had asserted attorney-client privilege during the course of their investigation.[155]
On October 23, Trump's attorneys filed three motions to dismiss the indictment on the grounds that it violates the Freedom of Speech Clause, violates the Double Jeopardy Clause and the Due Process Clause of the 5th Amendment (with the former being cited due to Trump's acquittal in his second impeachment trial), that the indictment fails to state an offense, and that the indictment is a selective prosecution, as well as a motion to strike the allegations related to the January 6 Capitol attack as prejudicial and inflammatory.[158][159] On November 3, the prosecution filed a reply to the October 5 media consortium request urging that Chutkan reject it in accordance with Rule 53 of the Federal Rules of Criminal Procedure.[160][161][162] On November 6, the prosecution filed a reply to the October 23 motions to dismiss arguing that they were without merit.[163][164] On November 10, Trump's attorneys filed a reply in support of the October 5 media consortium request,[165][166] to which the prosecution replied in opposition on November 13.[167][168] On November 17, Chutkan ruled that the defense had failed to demonstrate that the language in the indictment was prejudicial or inflammatory in rejection of the October 23 motion to strike.[169][170] On November 27, Chutkan rejected the October 11 motion for discovery filed by Trump's attorneys.[171][172]
On November 28, Trump's attorneys submitted a motion to compel discovery in two separate filings with 59 separate requests for evidence from the prosecution related to vote fraud in the election, actual or attempted foreign interference with election infrastructure during the election, political bias in U.S. Intelligence Community assessments of foreign interference, the existence of any potential undercover government operatives or informants at the January 6 Capitol attack, and communications or coordination between the Justice Department with the Biden administration or Biden family (including Hunter Biden).[173][174][175][176]
On December 27, the special counsel asked the court to prohibit Trump from presenting "irrelevant disinformation", such as Trump's accusations that the mayor of Washington, D.C., the National Guard, and the Capitol Police failed to prevent the attack. Smith argued: "A bank robber cannot defend himself by blaming the bank's security guard for failing to stop him."[177]
On October 16, 2024, the special counsel argued in a court filing that the case should not be dismissed. Trump had argued that it should be dismissed. The Supreme Court had ruled earlier that year that charges in January 6 cases for obstruction can be brought for presenting fake documents in the Electoral College certification proceeding (as Trump had indeed been charged), though not for rioting.[178]
On October 5, 2023, Trump's attorneys filed a motion to dismiss the indictment, cited presidential immunity under Nixon v. Fitzgerald.[179][180][181]
On December 1, 2023, Chutkan rejected the October 5 motion to dismiss under presidential immunity and the October 23 motion to dismiss under the Freedom of Speech Clause, the Double Jeopardy Clause, and the Due Process Clause.[182][183]
On December 7, 2023, Trump filed notice that he planned to appeal Chutkan's ruling.[184]
On December 13, 2023, Chutkan paused all deadlines in the case, including the upcoming trial itself, so the immunity dispute could be resolved first. The gag order remained in effect.[185] After Chutkan stayed the case, prosecutors provided public notice that they would file discovery material, although they no longer had an immediate deadline to do so.[186]
On January 4, 2024, Trump's team asked Chutkan to reject these filings and hold prosecutors in contempt.[187] Prosecutors replied the next day saying that Trump hadn't been burdened by "the mere receipt" of documents ahead of deadline, especially as he had no deadline to reply to it.[186]
On January 9, 2024, the U.S. Court of Appeals for the District of Columbia Circuit heard arguments in the immunity dispute. Trump attended the hearing in person.[188] In response to a hypothetical question posed by Judge Pan about whether a U.S. president could order SEAL Team Six to assassinate a political rival, Sauer argued that unless the president were subsequently impeached and convicted for said unlawful order, the president could not be criminally prosecuted.[189]
On February 6, 2024, the Circuit Court of Appeals panel unanimously affirmed the District Court ruling, concluding that Trump's alleged actions "lacked any lawful discretionary authority ... and he is answerable in court for his conduct" because "former President Trump has become citizen Trump ... [and] any executive immunity that may have protected him while he served as President no longer protects him against this prosecution."[8][190][191] The panel held further that former Presidents have no immunity for "allegedly violat[ing] generally applicable criminal laws" while in office, and specifically "to commit crimes that would neutralize the most fundamental check on executive power – the recognition and implementation of election results".[190][191]
On February 12, 2024, Trump's attorneys filed a motion requesting that the Supreme Court block the appeals court ruling.[87]
On February 28, 2024, the Supreme Court granted a writ of certiorari for Trump's appeal.[192][193] The Supreme Court heard oral arguments on April 25.[194][195]
On July 1, 2024, the Supreme Court ruled that, regarding a president's behavior during their presidency, former presidents have "some immunity from criminal prosecution" for their "official acts" but have "no immunity" for their "unofficial acts".[11]
Proceedings resulting from the immunity decision
The Supreme Court decision directed Chutkan to apply the former's ruling to determine what parts of the indictment may proceed,[196] specifically to determine whether each act was official or private conduct; whether or not the official acts are part of core constitutional duties; and whether prosecuting the non-core official acts would have any "dangers of intrusion on the authority and functions of the Executive." Under Supreme Court rules, the prosecutors were given one month to ask the justices to reconsider their ruling, with the case returning to Chutkan on August 2, 2024.[197][198] Smith could have petitioned to shorten this period, but chose not to.[199]
After the case was returned to Chutkan following resolution of his immunity argument, she asked all parties to propose schedules for further pretrial proceedings by August 9, 2024,[200] and she set an August 16 hearing to determine how to proceed with the case.[201] She also denied an October motion by Trump to dismiss the case on statutory grounds.[202] The special counsel requested a deadline extension to August 30; Trump did not object.[203] (Both parties went on to meet this deadline.)[204] The hearing for which the report was needed was postponed to September 5.[205]
The special counsel filed a superseding indictment on August 27, 2024. It omitted mention of some of Trump's alleged activities, including his attempts to involve the Justice Department in his claims of election fraud,[b] as such "official acts" can no longer be used as evidence following the Supreme Court's decision on immunity.[citation needed] Nonetheless, the four original charges were not dropped. The superseding indictment had been presented to a new grand jury that had not previously heard evidence in the case.[12]
On September 5, Judge Chutkan held the first hearing in the case since the immunity decision. The purpose of the hearing was to decide whether the trial can proceed, to begin to set a trial schedule, and to decide whether prosecutors can call Pence and others as witnesses.[206] She set a September 26 deadline for the prosecution to file its initial brief that would include previously unseen evidence such as grand jury transcripts; Trump attorneys had sought to delay the filing until after the November election.[98] Although filings typically cannot be longer than 45 pages, Chutkan gave Smith permission to file up to 180 pages.[207] He filed a 165-page brief under seal.[208] Trump asked for more redactions.[209][98] On October 2, Chutkan publicly released the brief.[210] She also planned to release the prosecution's redacted exhibits related to the brief, but on October 10, she gave Trump one week to appeal the release.[211] He did not appeal, and the redacted exhibits were released.[212]
The first section of Smith's brief summarizes evidence and describes the prosecutors' argument; the second discusses what constitutes an "official" act; the third applies the principles to Trump's case; the fourth urges Chutkan to rule that Trump does not have immunity for these actions and that he be brought to trial.[210]
On October 24, ABC News and The Guardian reported that anonymous sources have stated that Trump administration White House Chief of StaffMark Meadows has received legal immunity from Jack Smith in exchange for testimony under oath and has testified before the grand jury.[214][215] The next day, CBS News reported that anonymous sources have stated that Meadows is cooperating with prosecutors and has testified before the grand jury but did not state that Meadows has received legal immunity, while Meadows' attorney stated to CBS News that the ABC News report was "largely inaccurate."[216] In their October 25 reply to the gag order stay ruling, the prosecution did not address the veracity of the ABC News report and referred to Trump's October 24 Truth Socialpost about the news report as "an unmistakable and threatening message to a foreseeable witness in this case."[132][133]
On December 5, 2023, the government alleged in a court filing that Trump had "sent" his supporters to the Capitol. The government said it would submit evidence to demonstrate Trump's "post-conspiracy embrace of particularly violent and notorious rioters", indicating his "motive and intent."[217][218]
In a December 5 court filing, Smith prosecutors asserted they had evidence in election day text messages between a Trump campaign employee, who is an unindicted co-conspirator in the case, and a campaign attorney in Detroit. Prosecutors asserted that Trump and his co-conspirators knew Biden was taking the lead in Michigan results and sought to subvert them, with the campaign employee encouraging "rioting and other methods of obstruction." Prosecutors alleged that at the time of the text messages, "a large number of untrained individuals flooded the Detroit [ballot counting facility] and began making illegitimate and aggressive challenges to the vote count."[219]
On December 11, the special counsel filed a brief indicating he would present an expert witness at trial who had extracted and examined data from Trump's phone from the weeks while he attempted to subvert the election. The data had been obtained from Twitter under a January 2023 search warrant.[220][221]
On October 18, 2024, Smith released nearly 2,000 pages of evidence. Most pages were entirely redacted. The first volume contained excerpts of interviews by the House select committee on January 6; the second, social media posts; the third, photos of the signed fake elector certificates and a transcript of the Trump–Raffensperger call; the fourth, John Eastman's memos for a plan for Pence to reject the certification, plus public statements and fundraising emails.[222]
Defense
During "full Ginsburg" interviews on August 7, 2023, new Trump attorney John Lauro asserted "a technical violation of the Constitution is not a violation of criminal law", so it was "just plain wrong" that Trump had pressured Pence to violate the law. Pence had said four days earlier that Trump and his advisers had pressured him "essentially to overturn the election".[223][224]
In two court filings in late November 2023, Trump's lawyers presented possible defenses. They blamed foreign governments, arguing that "President Trump and others acted in good faith" based on falsehoods in "covert foreign disinformation campaigns relating to the 2020 election". They asked the court to consider the U.S. attorney's office in Washington, D.C., as well as other agencies, as part of the prosecution team. (Doing so would slow down the case by requiring those agencies to submit information to the court and portray the indictment as politically motivated.) Trump's team further complained that some witnesses for the prosecution may have anti-Trump "political bias".[225]
Reactions
Defendant
The Trump campaign responded to the indictment with a press release, accusing President Joe Biden of political persecution and claiming that it was election interference.[226] The Trump campaign issued a statement calling the indictment "reminiscent of Nazi Germany".
In an interview that Fox News aired on September 1, 2024, Trump said: "Whoever heard you get indicted for interfering with a presidential election where you have every right to do it." He added that "my poll numbers go up" because of being indicted for the interference.[227] Two weeks before Trump won the 2024 presidential election,[228] he said in a radio interview that, were he to take office, "I would fire him [Jack Smith] within two seconds."[229]
Republicans in support of the indictment
Mike Pence, who was Trump's vice president and, at the time, was also running for the Republican nomination in the 2024 presidential election, issued a statement strongly condemning Trump, stating that this indictment was "an important reminder [that] anyone who puts himself over the Constitution should never be president of the United States".[230] In an interview with reporters at the Indiana State Fair the next day, he expanded on his comments, stating that he could not have overturned the election results as vice president.[231]
Former U.S. attorney general William Barr said the case against Trump was legitimate and that he will testify if he is called.[232]
Adam Kinzinger, a member of the January 6 Committee and a former Illinois representative, tweeted that "Today is the beginning of justice" and added that Trump is "a cancer on our democracy".[233]
Former New Jersey governor Chris Christie, who was running for the 2024 presidential Republican nomination at the time, said Trump "swore an oath to the Constitution, violated his oath & brought shame to his presidency."[234]
Former Arkansas governor Asa Hutchinson, who was running for the 2024 presidential Republican nomination at the time, said "Trump has disqualified himself from ever holding our nation's highest office again."[235]
On August 14, 2023, nearly a dozen former judges and federal legal officials, all appointed by Republicans, submitted an amicus brief saying they agreed with Jack Smith's proposed trial date of January 2, 2024.[236] The brief states "There is no more important issue facing America and the American people—and to the very functioning of democracy—than whether the former president is guilty of criminally undermining America's elections and American democracy in order to remain in power [...]".[236]
Republicans opposed to the indictment
Ron DeSantis, the governor of Florida who was also running for the 2024 presidential Republican nomination, tweeted that he would "end the weaponization of government, replace the FBI director, and ensure a single standard of justice for all Americans" if elected. He also voiced agreement with the defendant's claim that the charges were politically motivated. In addition, DeSantis has previously expressed his intention to pardon Trump if he were to win the presidency.[237]
Then-Speaker of the House Kevin McCarthy wrote on Twitter that House Republicans would "continue to uncover the truth about Biden Inc. and the two-tiered system of justice."[238]
With a looming September30 deadline to fund the government for the coming fiscal year starting October1, some House Republicans had proposed leveraging their power of the purse to try to stop the federal and state prosecutions of Trump, though a federal shutdown would not affect the prosecutions.[239]
Democrats in support of the indictment
Senate Majority Leader Chuck Schumer in a joint statement with House Democratic Leader Hakeem Jeffries said "No one is above the law – including Donald Trump".[238]
Bowden, Mark; Teague, Matthew (2022). The Steal: The Attempt to Overturn the 2020 Election and the People Who Stopped It. New York City: Grove Press. ISBN978-0-802-15996-0.
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