At the motion to dismiss stage, the court assumes the truth of the Indictment’s allegations. Defendant contends that the charges in the Indictment are based on his “public statements and tweets about the federal election and certification,” “communications with the U.S. Department of Justice about investigating elections crimes and possibly appointing a new Acting Attorney General,” “communications with state officials about the federal election and the exercise of their official duties with respect to the election,” “communications with the Vice President and Members of Congress about the exercise of their official duties in the election-certification proceedings,” and “organizing slates of electors as part of the attempt to convince legislators not to certify the election against defendant.” Those generalized descriptions fail to properly portray the conduct with which he has been charged. Accordingly, the court will briefly review the central allegations as set forth in the Indictment.
Defendant “was the forty-fifth President of the United States and a candidate for re-election in 2020.” “Despite having lost” that election, he “was determined to remain in power,” so “for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won.” He “knew that [those claims] were false,” but “repeatedly and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.” “In fact, the Defendant was notified repeatedly that his claims were untrue—often by the people on whom he relied for candid advice on important matters, and who were best positioned to know the facts and he deliberately disregarded the truth.” Those people included the Vice President, “senior leaders of the Justice Department,” the Director of National Intelligence, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, “Senior White House attorneys,” “Senior staffers on the Defendant’s 2020 re-election campaign,” state legislators and officials, and state and federal judges.
“Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results.” Specifically, he “targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election.” The Indictment describes that process:
The Constitution provided that individuals called electors select the president, and that each state determine for itself how to appoint the electors apportioned to it. Through state laws, each of the fifty states and the District of Columbia chose to select their electors based on the popular vote in the state. After election day, the [Electoral Count Act (“ECA”)] required each state to formally determine—or ‘ascertain’—the electors who would represent the state’s voters by casting electoral votes on behalf of the candidate who had won the popular vote, and required the executive of each state to certify to the federal government the identities of those electors. Then, on a date set by the ECA, each state’s ascertained electors were required to meet and collect the results of the presidential election—that is, to cast electoral votes based on their state’s popular vote, and to send their electoral votes, along with the state executive’s certification that they were the state’s legitimate electors, to the United States Congress to be counted and certified in an official proceeding. Finally, the Constitution and ECA required that on the sixth of January following election day, the Congress meet in a Joint Session for a certification proceeding, presided over by the Vice President as President of the Senate, to count the electoral votes, resolve any objections, and announce the result—thus certifying the winner of the presidential election as president-elect.
Defendant, along with at least six co-conspirators, undertook efforts “to impair, obstruct, and defeat [that process] through dishonesty, fraud, and deceit.” Those efforts took five alleged forms:
First, they “used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant.” Id. ¶ 10(a). “That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant.”
Second, they “organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws.” “This included causing the fraudulent electors to meet on the day appointed by federal law on which legitimate electors were to gather and cast their votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they were legitimate electors.” They “then caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6,” 2021.
Third, they “attempted to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome; that sought to advance the Defendant’s fraudulent elector plan by using the Justice Department’s authority to falsely present the fraudulent electors as a valid alternative to the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states’ legislatures to convene to create the opportunity to choose the fraudulent electors over the legitimate electors.”
Fourth, “using knowingly false claims of election fraud,” they “attempted to convince the Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them.” “When that failed, on the morning of January 6,” they “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.”
Fifth, “on the afternoon of January 6,” once “a large and angry crowd—including many individuals whom the Defendant had deceived into believing the Vice President could and might change the election results—violently attacked the Capitol and halted the proceeding,” they “exploited the disruption by redoubling efforts to levy false claims of election fraud and convince members of Congress to further delay the certification based on those claims.”
Based on this conduct, the Indictment charges Defendant with four counts: Conspiracy to Defraud the United States; Conspiracy to Obstruct an Official Proceeding; Obstruction of, and Attempt to Obstruct, an Official Proceeding; and Conspiracy Against Rights.
