The Investigative Process

¶Employing traditional investigative tools, including voluntary interviews, grand jury subpoenas, and search warrants-and subject to the same legal requirements binding on all federal prosecutors-the Office, spanning the period predating the Special Counsel's appointment to the completion of its work, developed a thorough record of independently verified facts on which it based its prosecutive decisions in the Election Case. The investigative record comprised voluntary witness interviews and grand jury testimony from numerous individuals,²⁴⁹²⁴⁹ This record, including the period predating the Special Counsel's appointment, encompasses voluntary interviews of more than 250 individuals and grand jury testimony from more than 55 witnesses. as well as voluminous records such as emails, text messages, encrypted messages, memoranda, and other documents. These records were obtained through both voluntary productions by dozens of witnesses and through compulsory process and court orders, including grand jury subpoenas directed to witnesses and entities, court orders for non-content information (such as sender, recipient, date, and time) from electronic communications accounts, and search warrants to obtain evidence from physical sources and/or locations, electronic devices, and email and iCloud accounts.²⁵⁰²⁵⁰ Search warrants for electronic devices and accounts, as well as applications to obtain records of electronic communications, must be approved by a federal magistrate or district judge and are held to well-established standards of proof. To obtain a search warrant, for instance, the government must establish that there is probable cause to believe that the location, device, or account to be searched contains evidence of a crime. See U.S. CONST. amend. IV (search warrants require "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"). Other court orders-for instance, those that give the government access to the non-content information described above regarding electronic communications require a showing that there are reasonable grounds to believe that the information sought is relevant and material to an ongoing criminal investigation. See 18 U.S.C. § 2703(d). The Office also obtained records from other components of the Department of Justice, including the U.S. Attorney's Office for the District of Columbia, and other federal agencies, including the National Archives, Depmiment of Homeland Security, Department of Defense, and Office of the Director of National Intelligence.²⁵¹²⁵¹ The Office's investigation included consideration of the report issued on December 22, 2022, by the U.S. House of Representatives' Select Committee to Investigate the January 6th Attack on the United States Capitol, as well as certain materials received from the Committee. Those materials comprised a small part of the Office's investigative record, and any facts on which the Office relied to make a prosecution decision were developed or verified through independent interviews and other investigative steps. During the prosecution of the Election Case, Mr. Trump alleged that the Select Committee and Special Counsel's Office were one and the same and sought additional discovery about the Select Committee's work. The district court rejected the claim. See ECF No. 263 at 47 (concluding that Mr. Trump has "not supplied an adequate basis to consider the January 6 Select Committee part of the prosecution team"). Regardless, the Office provided or otherwise made available to Mr. Trump in discovery all Further, the

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¶Office collected more than one terabyte of data from publicly available sources such as social media postings and websites. All discoverable material was provided or made available to Mr. Trump in discovery during the prosecution of the Election Case.

¶Throughout its work, the Office complied with "the rules, regulations, procedures, practices and policies of the Department of Justice,"²⁸²⁸ See ECF No. 252 at 20-21 & nn.88-91; SCO-00455536, SCO-12987478 (Donald J. Trump Retweet 12/06/2020); SCO-00455538, SCO-12858634 (Donald J. Trump Tweet 12/06/2020); SCO-00767550 at 43-49 (HSC Tr.); SCO-11540788 at 51-53 (Int. Tr.). C.F.R. § 600.7(a), including consulting the Justice Manual, the Department's publicly available guidebook on policies and procedures, and consulting or obtaining requisite approvals from other Department components. For example, as required under the Justice Manual, the Office obtained approvals from the Criminal Division's Office of Enforcement Operations, which provides legal guidance on the use of sensitive law enforcement tools, such as certain subpoenas and search warrants involving attorneys. And as discussed more below, the Office consulted the Criminal Division's Public Integrity Section (PIN), which oversees the investigation and prosecution of federal crimes affecting government integrity, pursuant to Justice Manual requirements pertaining to the service of subpoenas and other process on Members of Congress, the use of election fraud charges, and the Department's Election Year Sensitivities Policy, a longstanding Department policy regarding the conduct of sensitive investigations during an election year.

¶Even when not required, in accordance with the best traditions of the Department, the Office actively sought advice and guidance from subject matter experts throughout the Department. For example, the Office requested assistance from the Civil Division and Office of Information Policy (OIP) on civil litigation for public access to investigative and prosecutive materials. And the Office conferred with the Office of the Solicitor General (OSG), which is materials received from the Select Committee. See ECF No. 263 at 47 ("the Government states that it has already produced all the records it received from the Committee").

¶responsible for supervising and conducting government litigation in the United States Supreme Court, the Office of Legal Counsel (OLC), which provides binding legal advice to the Executive Branch, and the Criminal Division's Appellate Section, which conducts and oversees the Department's criminal appellate litigation, on complex statutory, constitutional, and other legal issues-including regarding charging decisions in the original and superseding indictments, see supra at Section II, Mr. Trump's challenge to the district court's order on extrajudicial statements, see infra at Section VB, Mr. Trump's executive privilege claims, see infra at Section VC, and Mr. Trump's immunity challenge to the indictment, see infra at Section VD.

Investigative and Prosecutive Procedures in an Election Year

¶Mr. Trump's announcement of his candidacy for President while two federal criminal investigations were ongoing presented an unprecedented challenge for the Department of Justice and the courts. Given the timing and circumstances of the Special Counsel's appointment and the Office's work, it was unavoidable that the regular processes of the criminal law and the judicial system would run parallel to the election campaign. Mr. Trump's position was that when the judicial process conflicted with his election campaign, the courts should always yield; as discussed below, the courts did not agree. Under these unique circumstances, the Department's actions would be criticized by one constituency or another, regardless of which path the investigations took. Accordingly, the Office leaned on established Department policy, practice, and wisdom, and focused on doing its job promptly and thoroughly.

¶From the outset and throughout its work, the Office recognized the weighty issues presented by the matters under its mandate and operated on the principle that the best interests of the Department and the nation required prompt investigation and decision-making. The Office's exceptional working pace ensured that its investigative work could be completed, charging decisions could be made, and any necessary indictments could be returned by the summer of

¶2023, long before the election. The Office had no interest in affecting the presidential election, and it complied fully with the letter and spirit of the Department's policy regarding election year sensitivities. It did so through fundamentally sound practices: moving its investigations swiftly, making charging decisions and returning indictments well before the election, litigating its cases on the timetables set by the courts, and consulting with PIN.