Other Charges

¶The Office considered, but ultimately opted against, bringing other charges. One potential charge was 18 U.S.C. § 2383, sometimes referred to as the Insurrection Act, which provides that "[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States."¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 2383. Section 2383 originated during the Civil War, as part of the Second Confiscation Act of 1862. See Act of July 17, 1862, ch. 195, § 2, Pub. L. No. 37-160,¹²¹² See ECF No. 252 at 14 & nn.52-53; see also, e.g., SCO-0082936 l at 17 (HSC Tr.) (state legislator told Mr. Trump that "he primarily lost Michigan because of two counties that are routinely Republican counties ... and more specifically he underperformed with educated females"); SCO-11509450 at 25 (Int. Tr.) (state legislator told Mr. Trump that state officials had not seen evidence of widespread fraud); SCO-04953053 (Joint Statement l l/20/2020) (state legislators' statement that they are unaware of"any information that would change the outcome of the election in Michigan" and noting legislative review of the state's elections process); SCO-04952823 (Statement 12/04/2020) (state legislator citing U.S. Attorney General's statement that he had not seen outcome-detenninative election fraud); SCO-06730226 (Letter to Maricopa County Voters 11/17/2020) (noting "no evidence of fraud or misconduct or malfunction" in the over two million ballots cast); SCO-00614161 at 1335 (Tweets 12/01/2020) (describing Arizona election security measures, including poll ID and hand-conducted signature review); SCO-04957281 (Georgia Secretary of State News Release 10/23/2020) (refuting that electronic ballot marking is particularly vulnerable to cyberattack); SCO-04957309 (Georgia Secretary of State News Release 11/05/2020) (noting ballot count progress and listing voting security measures); SCO-12876768 (Video of Georgia Secretary of State Press Conference 11/06/2020) (giving numbers of rejected ballots from unregistered and non-citizen voters, and partially counted ballots from out-of-precinct voters); SCO-12876769 (Video of Georgia Secretary of State Press Conference l l/09/2020) (refuting allegations about ballot counting at State Farm Arena, software malfunctions, more votes than voters, and ballot harvesting, among others); SCO-1287677 l (Video of Georgia Secretary of State Press Conference 11/12/2020) (addressing decision to conduct risk-limiting audit, explaining under-voting in presidential race, refuting allegations that computers and software flipped votes); SCO-04957154 (Georgia Secretary of State News Release l l/18/2020) ( explaining that 2020 election absentee ballot rejection rate was equivalent to that in the 2018 general election); SCO-04957157 (Georgia Secretary of State News Release 11/19/2020) (risk-limiting audit results confirmed machine ballot count results); SCO-04957179 (Georgia Secretary of State News Release 12/07/2020) (hand recount and formal recount requested by Mr. Trump's campaign confirmed original election results; Co-Conspirator 3's lawsuit dismissed); SCO-04976277 (Video of Georgia Secretary of State Press Conference l 2/07/2020) (refuting allegations about vote-switching algorithms and "secret suitcases" of ballots at State Farm Arena and noting that in-person voting always requires identification); SCO-12896570 (Video of Georgia Secretary of State Press Conference 12/16/2020) (stating that hand vote count confirmed machine count, signature matching was performed, "there were no votes flipped," and full video of vote counting at State Fann Arena confirmed no wrongdoing); SCO-04957276 (Georgia Secretary of State News Release 12/29/2020) (recounts and signature audit confirmed original Georgia election results, and signature matching in Cobb County found no fraudulent ballots); SCO-04976281 (Video of Interview 0 l/02/2021) (election audit and full recount confirmed that Mr. Trump lost in Alan Feuer, Special Counsel Is Said to Be Planning to Pursue Trump Cases Past the Election, N.Y. Times (July 2, 2024), https://wv.w.nytimes.com/2024/07 /02/us/politics/jack-smith-trump-charges.html. Stat. 589,590.

¶Cases interpreting Section 2383 are scarce and arose in contexts that provided little guidance regarding its potential application in this case. See, e.g., United States v. Greathouse,²⁶²⁶ See ECF No. 252 at 19 & n.81; SCO-00767550 at 10-12, 15-16 (HSC Tr.); SCO-00715584 (Arizona House Speaker News Release 12/04/2020) ("I and my fellow legislators swore an oath to support the U.S. Constitution and the constitution and laws of the state of Arizona. It would violate that oath, the basic principles of republican government, and the rule of law if we attempted to nullify the people's vote based on unsupported theories of fraud."). (HSC Tr.). F. Cas. 18,²³²³ See ECF No. 252 at 16; SCO-12733339 at 3-5 (Int. Rep.); SCO-02296394 at 6 (Presidential Daily Diary I 1/09/2020); SCO-00829361 at 9-10 (HSC Tr.); SCO-00767550 at 9-12, 18 (HSC Tr.); SCO-02295943 at 3 (Presidential Daily Diary 11/22/2020); SCO-02301680 at 3 (Presidential Daily Diary 12/08/2020); SCO-11509251 at 38-39, 43 (Int. Tr.); SCO-12998394 (Tr. of Georgia Secretary of State Call O1/02/2021). (C.C.N.D. Cal. 1863) (construing the original version of the act to encompass treason, consisting of arming a vessel to commit hostilities against United States vessels, in the context of the rebellion by the confederate states); United States v. Cathcart,²⁵²⁵ See ECF No. 252 at 19 & n.80; SCO-00767550 at 15-16 (HSC Tr.). F. Cas. 344, 345 (C.C.S.D. Ohio 1864) (rejecting legal argument that treason against the United States was legally impossible in the context of the rebellion by the confederate states); In re Grand Jury,⁶²⁶² See, e.g., ECF No. 252 at 158-159; SCO-04957448 at 139-140 (SJC Tr.); SCO-00775937 at 59-63, 106-108 (HSC Tr.); SCO-12263324 at 5-12 (Handwritten notes 12/27/2020); SCO-00764172 at 18-19 (HSC Tr.). F. 834,⁸³⁸³ See, e.g., ECF No. 252 at 62 & nn.332-333, 63 & n.338, 65 & nn.349-350, 71 & nn.394-395; SCO-00014655 at 157-182; SCO-00014442 at 29-43 (Pence, So Help Me God pp. 441-455); SCO-04982330 (Handwritten notes 01/04/2021); SCO-04982320 at 2 (Handwritten notes 01/06/2021) (noting "I don't have the authority"). 7-83 8 (S .D. Cal. 1894) (grand jury charge describing offense in the context of a labor dispute involving interference with transportation of the mail); In re Charge to Grand Jury,⁶²⁶² See, e.g., ECF No. 252 at 158-159; SCO-04957448 at 139-140 (SJC Tr.); SCO-00775937 at 59-63, 106-108 (HSC Tr.); SCO-12263324 at 5-12 (Handwritten notes 12/27/2020); SCO-00764172 at 18-19 (HSC Tr.). F. 828, 829-830 (N.D. Ill. 1894) (grand jury charged that "[i]nsurrection is a rising against civil or political authority" and requires "such a number of persons as would constitute a general uprising in that particular locality" in the context of offense of obstructing the mails). It does not appear that any defendant has been charged with violating the statute in more than 100 years.

¶To establish a violation of Section 2383, the Office would first have had to prove that the violence at the Capitol on January 6, 2021, constituted an "insurrection against the authority of the United States or the laws thereof," and then prove that Mr. Trump "incite[d]" or "assist[ed]" the insurrection, or "g[ave] aid or comfort thereto."¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 2383.

¶Courts have found or described the attack on the Capitol as an insurrection. In Anderson v. Griswold, 543 P.3d 283, 329 (Colo. 2023), rev 'd on other grounds sub nom. Trump v. Anderson, 601 U.S.¹⁰⁰¹⁰⁰ America Rally 01/06/2021). (2024) (per curiam), the Colorado Supreme Court found that Mr. Trump engaged in an insurrection as that term is used in Section Three of the Fourteenth Amendment. Federal courts in the District of Columbia have also used the term "insurrection" to describe the attack on the Capitol, but did so in cases where there was no criminal charge under Section 2383.

¶See, e.g., United States v. Chwiesiuk, No. 21-cr-536, 2023 WL 3002493, at *3 (D.D.C. Apr. 19, 2023) ("As this Court and other courts in the United States District Court for the District of Columbia have stated previously, what occurred on January 6, 2021 was in fact an insurrection and involved insurrectionists and, therefore, the terms to which Defendants object are accurate descriptors."); United States v. Carpenter, No. 21-cr-305, 2023 WL 1860978, at *4 (D.D.C. Feb. 9, 2023) ("What occurred on January 6 was in fact a riot and an insurrection, and it did in fact involve a mob."); see also United States v. Afunchel, 991 F.3d 1273, 1279, 1281 (D.C. Cir. 2021) (using the term "insurrection" in a case that did not involve Section 2383). These cases, however, did not require the courts to resolve the issue of how to define insurrection for purposes of Section 2383, or apply that definition to the conduct of a criminal defendant in the context of January 6.

¶The Office recognized why courts described the attack on the Capitol as an "insurrection," but it was also aware of the litigation risk that would be presented by employing this long-dormant statute. As to the first element under Section 2383-proving an "insurrection against the authority of the United States or the laws thereof'-the cases the Office reviewed provided no guidance on what proof would be required to establish an insurrection, or to distinguish an insurrection from a riot. Generally speaking, an "[i]nsurrection is a rising against civil or political authority[]-the open and active opposition of a number of persons to the execution of law in a city or state." In re Charge to Grand Jury,⁶²⁶² See, e.g., ECF No. 252 at 158-159; SCO-04957448 at 139-140 (SJC Tr.); SCO-00775937 at 59-63, 106-108 (HSC Tr.); SCO-12263324 at 5-12 (Handwritten notes 12/27/2020); SCO-00764172 at 18-19 (HSC Tr.). F. at 830; see also Insurrection, MERRIAM-WEBSTER 649 (11th ed. 2020) ("an act or instance of revolting against civil authority or an established government"); Insurrection, AMERICAN HERITAGE DICTIONARY 909 (4th ed. 2000) ("The act or an instance of open revolt against civil authority or a constituted government."); Insurrection,⁷⁷ See, e.g., ECF No. 252 at 10; SCO-02244118 at 11-12, 14-19 (Remarks by Mr. Trump at Save America Rally 01/06/2021); SCO-04949418 at 04:15:22-04:31:46 (Video of Save America Rally O1/06/2021); SCO-04976462 at 18:34-19:12 (Video of Speech at White House 12/02/2020); SCO-00455939 (Donald J. Trump Tweet I 1/19/2020); SCO-04976283 at 01:00:43-01:14:24 (Video of Dalton, GA speech 01/04/2021); SCO-04976275 at 22:00-22:40 (Video of Valdosta, GA speech 12/05/2020); SCO-00455041 (Donald J. Trump Tweet O1/02/2021); SCO-00456153 (Donald J. Trump Tweet 11/12/2020); SCO-00456144 (Donald J. Trump Tweet 11/13/2020); SCO-00456102 (Donald J. Trump Tweet I 1/14/2020); SCO-00456066 (Donald J. Trump Tweet 11/15/2020); SCO-00455969 (Donald J. Trump Tweet 11/18/2020); SCO-04976266 at 20:10-37:50 (Video of Thanksgiving Call to Troops 11/26/2020). The Future of the Independent Counsel Act: Hearings before the S. Comm. on Governmental Affairs, THE OXFORD ENGLISH DICTIONARY 1060 (2nd ed. 1989) ("The action of rising in arms or open resistance against established authority or governmental restraint[.]"). Some sources distinguish an "insurrection" from a '"rout, riot, [or] offense connected with mob violence by the fact that in insurrection there is an organized and armed uprising against authority or operations of government, while crimes growing out of mob violence, however serious they may be and however numerous the participants, are simply unlawful acts in disturbance of the peace which do not threaten the stability of the government or the existence of political society."' BLACK'S LAW DICTIONARY (12th ed. 2024) (quoting 77 C.J.S. Riot; Insurrection § 29, at 579 (1994 )); see also Anderson, 543 P.3d at 329-336 (noting Mr. Trump's argument that "an insurrection is more than a riot but less than a rebellion" and agreeing that "an insurrection falls along a spectrum of related conduct").

¶In case law interpreting "insurrection" in another context, one court has observed that an insurrection typically involves overthrowing a sitting government, rather than maintaining power, which could pose another challenge to proving beyond a reasonable doubt that Mr. Trump's conduct on January 6 qualified as an insurrection given that he was the sitting President at that time. Cf CITGO Petroleum Corp. v. Starstone Ins. SE, No. 21-cv-389, 2023 WL 2525651, at *13 (S.D.N.Y. Mar. 15, 2023) ("[I]n every case over the course of over sixty years to find the existence of an insurrection within the meaning of an insurance policy, the insurrection has occurred against-not by-the established, effective and de facto government.") (citation and quotations omitted); Pan Am World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1017 (2d Cir. 1974) ("The district court held that the word insurrection means (1) a violent uprising by a group or movement (2) acting for the specific purpose of overthrowing the constituted government and seizing its powers.") (citation and quotations omitted); accord, e.g., Home Ins. Co. of New York v. Davila,²¹²²¹² See ECF No. 1 at if 113; see ECF No. 252 at 81 & n.466; SCO-12876211 (Video of Capitol Riot 01/06/2021). F.2d 731,738 (1st Cir. 1954) (noting that if Puerto

¶Rican extremists had a "maximum objective" to "overthrow of the insular government" on the island, that group's uprising would constitute insurrection); Hartford Fire Ins. Co. v. W Union Co., 630 F. Supp. 3d 431, 435-437 (S.D.N.Y. 2022) (a Russian-backed separatist group's attack on a plane in service of overthrowing the current government in eastern Ukraine was an insurrectionary act); Younis Bros. & Co., Inc. v. CIGNA Worldwide Ins. Co.,⁹¹⁹¹ See ECF No. 252 at 68 & n.371; SCO-02235176 at 3 (Remarks by Mr. Trump at Victory Rally in Dalton, GA 01/04/2021); SCO-04976283 at 10:56-11:15 (Video of Dalton, GA speech 01/04/2021). F.3d 13, 14-15 (3d Cir. 1996) (applying Davila in finding that, where individuals outside of the Liberian government "led their respective armies in a violent uprising" "against the Liberian government," damage to properties fell within an insurance contract's insurrection clause). The Office did not find any case in which a criminal defendant was charged with insurrection for acting within the government to maintain power, as opposed to overthrowing it or thwarting it from the outside. Applying Section 2383 in this way would have been a first, which further weighed against charging it, given the other available charges, even if there were reasonable arguments that it might apply.

¶As to the second element under Section 2383, there does not appear to have ever been a prosecution under the statute for inciting, assisting, or giving aid or comfort to rebellion or insurrection. The few relevant cases that exist appear to be based on a defendant directly engaging in rebellion or insurrection, but the Office's proof did not include evidence that Mr. Trump directly engaged in insurrection himself. Thus, however strong the proof that he incited or gave aid and comfort to those who attacked the Capitol, application of those theories of liability would also have been a first. See Alexander Tsesis, Incitement to Insurrection and the First Amendment,⁵⁷⁵⁷ See ECF No. 252 at 58 & n.312; SCO-05390160 (Text message from Co-Conspirator 6 to Co-Conspirator 5 and Campaign staffer 12/12/2020); SCO-00309946 (Email from Co-Conspirator 5 to Co-Conspirator 1 12/13/2020). WAKE FOREST L. REV. 971, 973 & n.6 (2022) ("The likelihood of conviction under the federal incitement to insurrection statute,¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 2383 ... is fraught with uncertainty because no federal court has interpreted it.").

¶The Office determined that there were reasonable arguments to be made that Mr. Trump's Ellipse Speech incited the violence at the Capitol on January 6 and could satisfy the Supreme Court's standard for "incitement" under Brandenburg v. Ohio, 395 U.S. 444,447 (1969) (holding that the First Amendment does not protect advocacy "directed to inciting or producing imminent lawless action and ... likely to incite or produce such action"), particularly when the speech is viewed in the context of Mr. Trump's lengthy and deceitful voter-fraud narrative that came before it. For example, the evidence established that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay. But the Office did not develop direct evidence-such as an explicit admission or communication with co-conspirators-of Mr. Trump's subjective intent to cause the full scope of the violence that occurred on January 6. Therefore, in light of the other powerful charges available, and because the Office recognized that the Brandenburg standard is a rigorous one, see, e.g., NA.A.CF v. Claiborne Hardware Co., 458 U.S. 886, 902, 927-929 (1982) (speech delivered in "passionate atmosphere" that referenced "possibility that necks would be broken" and violators of boycott would be "disciplined" did not satisfy Brandenburg standard); Brandenburg, 395 U.S. at 446-447 (reversing conviction where Ku Klux Klan leader threatened "revengeance" for "suppression" of the white race), it concluded that pursuing an incitement to insurrection charge was unnecessary.

¶By comparison, the statutes that the Office did charge had been interpreted and analyzed in various contexts over many years. The Office had a solid basis for using Sections 371, 1512, and 241 to address the conduct presented in this case, and it concluded that introducing relatively untested legal theories surrounding Section 2383 would create unwarranted litigation risk.

¶Importantly, the charges the Office brought fully addressed Mr. Trump's criminal conduct, and pursuing a charge under Section 2383 would not have added to or otherwise strengthened the Office's evidentiary presentation at trial. For all of these reasons, the Office elected not to pursue charges under Section 2383.¹⁹³¹⁹³ The Office also considered, but decided not to pursue, charges under certain other federal criminal statutes, including 18 U.S.C. § 2101 (the Anti-Riot Act) and 18 U.S.C. § 372 (Conspiracy to Impede or Injure an Officer of the United States). The Office was aware that courts have struck down and limited various prongs of the Anti-Riot Act, see United States v. Rundo, 990 F.3 d 709, 716-717 (9th Cir. 2021) (per curiam); United States v. Miselis, 972 F.3d 518, 535-539 (4th Cir. 2020). And as to Section 372, the Office had strong evidence that Mr. Trump and his co conspirators agreed to use deceit to defeat the government function of collecting, counting, and certifying the results of the election, to obstruct the certification, and to injure the right of citizens to vote and have their votes counted. Further, as explained above, the Office also had strong evidence that the violence that occurred on January 6 was foreseeable to Mr. Trump, that he caused it, and that he and his co-conspirators leveraged it to carry out their conspiracies. But because the investigation did not develop proof beyond a reasonable doubt that the conspirators specifically agreed to threaten force or intimidation against federal officers, the Office did not pursue a charge under Section 372. After considering the facts, the law, and the Principles of Federal Prosecution, the Office concluded that the charges ultimately pursued would fully address Mr. Trump's criminal conduct, allow the Office to present the full scope of that conduct to a jury, and avoid unnecessary litigation. As a result, the Office decided not to seek any of these other potential charges.

Co-Conspirator Liability

¶As described in the factual recitation above, Mr. Trump was charged with participating in crimes with at least six co-conspirators, and the Office's investigation uncovered evidence that some individuals shared criminal culpability with Mr. Trump. Following the original indictment on August 1, 2023, the Office continued to investigate whether any other participant in the conspiracies should be charged with crimes. In addition, the Office referred to a United States Attorney's Office for further investigation evidence that an investigative subject may have committed unrelated crimes.

¶Before the Department concluded that this case must be dismissed, the Office had made a preliminary determination that the admissible evidence could justify seeking charges against certain co-conspirators. The Office had also begun to evaluate how to proceed, including whether any potential charged case should be joined with Mr. Trump's or brought separately.

¶Because the Office reached no final conclusions and did not seek indictments against anyone other than Mr. Trump-the head of the criminal conspiracies and their intended beneficiary-this Report does not elaborate further on the investigation and preliminary assessment of uncharged individuals. This Report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.

THE PRINCIPLES OF FEDERAL PROSECUTION

¶As set forth above, the Office concluded that Mr. Trump's conduct violated several federal criminal statutes and that the admissible evidence would be sufficient to obtain and sustain a conviction. Therefore, under the longstanding Principles of Federal Prosecution, the Office considered whether: (1) the prosecution would serve a substantial federal interest; (2) Mr. Trump was subject to effective prosecution in another jurisdiction; or (3) there existed an adequate non-criminal alternative to prosecution. U.S. Department of Justice, Justice Manual § 9-27.220. As described below, multiple substantial federal interests were served by Mr. Trump's prosecution, he was not subject to effective prosecution in another jurisdiction, and there was no adequate non-criminal alternative to prosecution. The Supreme Court's decision on presidential immunity, handed down after the initial decision to prosecute and analyzed below in Section V.D.2 did not alter the Office's view that the Principles of Federal Prosecution compelled prosecuting Mr. Trump; although that decision prevented use of certain evidence uncovered regarding Mr. Trump's misuse of presidential power, he also engaged in non-immune criminal conduct that is set forth in the superseding indictment. Accordingly, this section discusses only evidence that was not immunized-either because it involved Mr. Trump's private conduct or because the Office would have rebutted any presumption of immunity.