Conspiracy Against Rights (18 U.S.C. § 241)

¶Section 241 makes it unlawful for two or more persons to "conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States." A violation of Section 241 requires proof of three elements: (1) Mr. Trump entered into a conspiracy, (2) to willfully injure, oppress, threaten, or intimidate a person in the United States, (3) in the exercise or enjoyment of a right secured by the Constitution or federal law.¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 241; see, e.g., United States v. Epley,⁵²⁵² See ECF No. 252 at 53 & n.283; SCO- I 2876963 at 03:15-05:09 (Audio of Interview 12/ I 6/2020); SCO-1 I 572270 (Email from Co-Conspirator 6 12/09/2020). F.3d 571, 575-576 (6th Cir. 1995).

¶Mr. Trump's conduct meets each element.¹⁶⁹¹⁶⁹ The Office further set forth its position on the applicability of Section 241 in response to Mr. Trump's motion to dismiss the charge in the district court. See ECF No. 139 at 22-25. The right to vote for President-based on the determination by state legislatures to appoint electors based on their constituents' votes-is "fundamental." Bush v. Gore, 531 U.S. 98,¹⁰⁴¹⁰⁴ See ECF No. 252 at 77-78 & nn.432-443; SCO-02244118 at 5, 6, 9, 22 (Remarks by Mr. Trump at Save America Rally 01/06/2021). (2000); cf Burdick v. Takushi, 504 U.S. 428, 441 ( 1992) ("the right to vote is the right to participate in an electoral process that is necessarily structured to maintain the integrity of the democratic system"); United States v. Robinson, 813 F.3d 251, 255-256 (6th Cir. 2016) (Section 241 "prohibits interference with a voter's right to cast a ballot for his or her preferred candidate ... and prohibits interference with the right of voters to have their votes free from dilution by unlawfully procured votes."). It is a right rooted in the principles of accountability to and consent by the governed, which has distinguished this nation from its founding. As the Supreme Court has recognized, "[t]he right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555 (1964); see also Yick Wo v. Hopkins,¹¹⁸¹¹⁸ See ECF No. 252 at 79 & n.452; SCO-00783547 at 36-39 (HSC Tr.); SCO-00015613 at 180. U.S. 357, 370 (1886) (voting is "regarded as a fundamental political right, because [it is] preservative of all rights"); Wesberry v. Sanders, 376 U.S. 1,¹⁷¹⁷ See ECF No. 1 at ,r 83. (1964) ("No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.").

¶Mr. Trump acknowledged that voting in a presidential election is a fundamental right under the Constitution. See ECF No. 163 at 23 (arguing that "urging States or Congress to use their power to select or to count electors does not affect the 'fundamental' right to vote because it does not arbitrarily 'value one person's vote over that of another,' Bush, 531 U.S. at 104-105, or restrict the exercise of that right; rather, it encourages the States and Congress to exercise their constitutional prerogatives a certain way"). Indeed, given that all states have made the popular vote an integral means of appointing electors, the right to vote in a presidential election is among the most precious federal rights protected by the Constitution. Cf United States v. Classic, 313 U.S.²² (Congressional Record 01/06/2021). 99, 314 (1941) (when a state makes a primary election "an integral part of the procedure for the popular choice of a Congressman," it becomes "a right established and guaranteed by the Constitution"); see also Trump v. Anderson, 601 U.S. 100, 115-116 (2024) (per curiam) (noting the "uniquely important national interest" in "a Presidential election" because "the President ... represents all the voters in the Nation") (citation, quotations, and emphasis omitted).

¶This history of the Section 241 offense with which Mr. Trump was charged, along with courts' universal and longstanding recognition of the voting rights protected by that statute, confirm that protecting the right to vote is critical to the existence of the right. Section 241 's predecessor statute was passed as part of the Enforcement Act of 1870, a Reconstruction-era law to address the "continued denial of rights" to Black citizens, "sometimes accompanied by violent assaults." United States v. Price, 383 U.S. 787, 801-802 (1966). That Act sought to combat widespread anti-Reconstruction violence, which included acts of terror aimed at disenfranchising Black voters. The same year as the Act's passage, Congress established the U.S. Department of Justice, and the Department zealously pursued its mission to enforce voting rights in the Reconstruction Era. Through the application and interpretation of Section 241 and its predecessor statute, courts have repeatedly underscored the importance of the right to vote. Courts have held that the right encompasses the ability to cast a vote, Ex parte Yarbrough (The Ku-Klux Cases),¹¹⁰¹¹⁰ SCO-00029113, SCO-12738292, SCO-12806977 at 04:30 (Videos of Capitol Riot 01/06/2021); see also SCO-11506096 at 61-63 (Int. Tr.). U.S. 651, 657-658 (1884) (protecting right of an emancipated person to vote), and to have that vote counted, United States v. Afosley,²³⁸²³⁸ See ECF No. 252 at 69-70 & n.385; SCO-04976350 at 01:26:01-01:26:32 (Video ofHSC Testimony). U.S. 383, 386 (1915) ("We regard it as equally unquestionable that the right to have one's vote counted is as open to protection by Congress as the right to put a ballot in a box."). They have further confirmed that one's vote cannot lawfully be denied, destroyed, or diluted. See, e.g., Classic, 313 U.S. at 321- 322 (holding that Section 241 's predecessor statute applied to conspiracies to prevent the official counting of ballots in a primary election); United States v. Saylor, 322 U.S. 385 (1944) (Section 241 applies to prohibit conspiracies to dilute legitimate votes by stuffing the ballot box); United States v. Pleva,⁶⁶⁶⁶ SCO-00775937 at 58 (HSC Tr.); SCO-12263324 at 8 (Handwritten notes 12/27/2020). F.2d 529, 530 (2d Cir. 1933) (board of elections inspectors charged with falsely tabulating ballots to favor certain candidates; convictions reversed on separate jury grounds); United States v. Skurla,¹²⁶¹²⁶ See ECF No. 252 at 81 & n.465, 141 & n.658; SCO-00029459 (Video of Pence Evacuation 01/06/2021). F. Supp. 713, 715 (W.D. Pa. 1954) (defendants charged for casting and causing to be cast false and forged ballots, causing an incorrect vote tally, and using unqualified individuals to impersonate lawful voters); United States v. Townsley, 843 F.2d 1070, 1073-1075 (8th Cir. 1988) (scheme to discard certain absentee ballots).

¶Mr. Trump and co-conspirators sought to deprive-that is, injure or oppress-citizens of their constitutional right to have their presidential election votes counted. The words "injure or oppress" in Section 241 are not used in any technical sense, but cover a variety of conduct intended to prevent, harm, inhibit, hinder, frustrate, obstruct, or interfere with the free exercise and enjoyment of a right. See United States v. Handy, No. 22-cr-96, 2023 WL 6199084, at *3 (D.D.C. Sept. 22, 2023); United States v. Mackey, 652 F. Supp. 3d 309, 336-337 (E.D.N.Y. 2023). Although they were not in a backroom altering the vote tallies in a local election, or stuffing falsified ballots into the ballot boxes, as alleged in prior cases charged under this statute, Mr. Trump and co-conspirators nonetheless sought the same result: to effectively cast aside legitimate votes in a manner that would have deprived citizens of their right to vote and have their votes counted. As Co-Conspirator 1 admitted, their primary objective was to "just flat out change the vote, deduct that number of votes from the - declare those votes, 300,000 votes in Philadelphia, illegal, unlawful. Reduce the number by 300,000."¹⁷⁰¹⁷⁰ SCO-06628582 at 13:07-13:22 (War Room episode 491 11/11/2020). Mr. Trump attempted to carry out this objective in multiple ways. He urged state officials to disregard the legitimate majority of votes for Mr. Biden and pressured and threatened Georgia's Secretary of State to "find" more than 11,000 votes to dilute Mr. Biden's vote count in the state.¹⁷¹¹⁷¹ See ECF No. 252 at 29 & n.137; SCO-12998394 at 12 (Tr. of Georgia Secretary of State Call 01/02/2021). And he urged Mr. Pence to discard the legitimate electoral certificates that reflected millions of citizens' votes in the targeted states.¹⁷²¹⁷² See ECF No. 252 at 66-67 & nn.361-365, 71 & nn.392-399; SCO-00014655 at 198-200. The evidence collected showed that Mr. Trump targeted this voting right with precision: he centered his false claims of election fraud on select states, or cities and counties within those states, with large numbers of voters who had not chosen to reelect him.

D. Defenses Before presenting the original indictment to the grand jury, the Office considered Mr.

¶Trump's potential defenses to these charges, including a good faith defense, an advice of counsel defense, and constitutional defenses. The Office concluded that each of the defenses was legally or factually flawed and thus would not prevail.

¶First, it was expected that Mr. Trump would argue that he acted in good faith when he sought to stop the transfer of presidential power because he genuinely believed that outcome determinative fraud had undermined the election's integrity and caused him to lose. As set forth above in Section II.A, the Office developed strong proof that Mr. Trump knew that his election fraud claims were false. For example, Mr. Trump made persistent claims of a large number of dead voters in Georgia-including in his speech at the Ellipse on January 6-even though his Senior Campaign Advisor and Georgia's Secretary of State had told him that the claims were untrue.¹⁷³¹⁷³ See ECF No. 252 at 21 & n.95, 30 & n.142; SCO-02244118 at 16 (Remarks by Mr. Trump at Save America Rally 01/06/2021); SCO-00011882 at 33-37; SCO-12998394 at 6 (Tr. of Georgia Secretary of State Call 01/02/2021). He spread lies-including in his Ellipse speech-of sinister, fraudulent "vote dumps" in Michigan, even after Michigan's Senate Majority Leader told him that nothing suspicious had occurred.¹⁷⁴¹⁷⁴ See ECF No. 252 at 32-33 & n.160; SCO-02244118 at 18 (Remarks by Mr. Trump at Save America Rally 01/06/2021); SCO-11545470 at 62-64 (Int. Tr.); SCO-00829361 at 16-17 (HSC Tr.). And Mr. Trump repeatedly made provably false allegations about fraud in

¶Pennsylvania, despite having been told by the Chairman of the state Republican Party that the vote count was occurring as expected.¹⁷⁵¹⁷⁵ See ECF No. 252 at 37-38 & nn.187-190; SCO-02244118 at 11-12 (Remarks by Mr. Trump at Save America Rally 01/06/2021); SCO-00016926 at 20-24.

¶Even if Mr. Trump maintained that he sincerely believed he won the election (a conclusion unsupported by the evidence collected in the investigation), it would not provide a defense to the Section 371 charge. A defendant may not use deceit to obstruct a government function even if he believes the function itself to be unconstitutional because "a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit." Dennis, 384 U.S. at 867. "One who elects such a course as a means of self help may not escape the consequences by urging that his conduct be excused because the statute which he sought to evade is unconstitutional." Id There are "appropriate and inappropriate ways to challenge" perceived illegalities. Id. Just as the president of a company may be guilty of fraud for using knowingly false statements of fact to defraud investors even if he subjectively believes that his company will eventually succeed, see, e.g., United States v. Arif, 897 F.3d 1, 9- 10 & n.9 (1st Cir. 2018); United States v. Kennedy, 714 F.3d 951, 958 (6th Cir. 2013); United States v. Chavis, 461 F.3d 1201, 1209 (10th Cir. 2006), Mr. Trump could be convicted of using deceit to obstruct the government function by which the results of the presidential election are collected, counted, and certified, even if he established that he subjectively believed that he had reason to do so because of his claims that the election was "rigged."

¶It bears emphasis that Mr. Trump's knowing deceit was pervasive throughout the charged conspiracies. This was not a case in which Mr. Trump merely misstated a fact or two in a handful of isolated instances. On a repeated basis, he and co-conspirators used specific and knowingly false claims of election fraud in his calls and meetings with state officials, in an effort to induce them to overturn the results of the election in their states;¹⁷⁶¹⁷⁶ See ECF No. 252 at 17 & nn.67-68, I 8 & n.72, 29-30 & nn.139-144, 32 & n.159; SCO- 12733339 at 4 (Int. Rep.); SCO-00767550 at 10-11 (HSC Tr.); SCO-11509251 at 41-42 (Int. Tr.); SCO-12998394 at 1-3 (Tr. of Georgia Secretary of State Call O1/02/2021); SCO-00829361 at 16-17 (HSC Tr.). to his own Vice President, to induce Mr. Pence to violate his duty during the congressional certification proceeding;¹⁷⁷¹⁷⁷ See ECF No. 252 at 67 & n.365; SCO-00014655 at 155-158, 170-171; SCO-04982309 (Handwritten notes 12/29/2020); SCO-049823 30 at I (Handwritten notes OI /04/2021 ). See ECF No. 252 at 75-76 & nn.423-428; SCO-02244118 at 6, 12-22 (Remarks by Mr. Trump at Save America and on January 6, as a call to action to the angry crowd he had gathered at the Ellipse and sent to the Capitol to disrupt the certification proceeding.¹⁷⁸¹⁷⁸ Rally O1/06/2021). Mr. Trump and co-conspirators used other forms of deceit as well-including when they falsely represented that the fraudulent electoral votes would be used only if Mr. Trump prevailed in pending contests in their states,¹⁷⁹¹⁷⁹ See ECF No. 252 at 50 & n.260, 53 & n.282; SCO-00009955 at 8-11; SCO-12949797 at 82-83 (Int. Tr.); SCO-00016926 at 48-50; SCO-00009540 at 15-19. and when they caused the fraudulent electors to falsely swear that they were duly certified and send those false certifications to Congress.¹⁸⁰¹⁸⁰ See ECF No. 252 at 56 & n.30 I; SCO-02341381 (Fraudulent "Arizona's Electoral Votes for President and Vice President"); SCO-023413 86 (Fraudulent "Georgia's Electoral Votes for President and Vice President"); SCO-02341398 (Fraudulent "Michigan's Electoral Votes for President and Vice President"); SCO-02341415 (Fraudulent "Nevada's Electoral Votes for President and Vice President"); SCO-02341409 (Fraudulent "New Mexico's Electoral Votes for President and Vice President"); SCO-02341435 (Fraudulent "Pennsylvania's Electoral Votes for President and Vice President"); SCO-02341449 (Fraudulent "Wisconsin's Electoral Votes for President and Vice President"). Even in Pennsylvania and New Mexico, where the fraudulent certificates contained future contingent language, the cover memoranda and envelopes sent to Congress represented that the documents were the state's "Electoral Votes for President and Vice President."Show full note Regardless of any claim that Mr. Trump subjectively believed the outcome of the election was unfair or "rigged," the Office concluded that these knowingly deceitful statements and acts would overcome any good faith defense.

¶The Office also expected that Mr. Trump might claim that his consultation with attorneys-several of whom were co-conspirators-should negate a finding that he acted with a criminal state of mind. In pretrial litigation, the Court granted the Government's motion that Mr. Trump should be required to declare whether he intended to employ such a defense and, if he did, to produce the discovery required by the attendant waiver of Mr. Trump's attorney-client privilege. ECF No. 147. A defendant's claim that he relied in good faith on his attorney's advice is "not an affirmative defense that defeats liability even if the jury accepts the government's allegations as true," but functions instead as "evidence that, if believed, can raise a reasonable doubt in the minds of the jurors about whether the government has proved the required element of the offense that the defendant had an 'unlawful intent."' United States v. Scully, 877 F.3d 464, 476 (2d Cir. 2017) (quoting United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1194 (2d Cir. 1989)). Under D.C. Circuit law, an advice-of-counsel defense consists of two elements: the defendant (1) "'relied in good faith on the counsel's advice that his course of conduct was legal"' and (2) "'made full disclosure of all material facts to his attorney before receiving the advice at issue."' United States v. Gray-Burriss, 920 F.3d 61,⁶⁶⁶⁶ SCO-00775937 at 58 (HSC Tr.); SCO-12263324 at 8 (Handwritten notes 12/27/2020). (D.C. Cir. 2019) (quoting United States v. DeFries, 129 F.3d 1293, 1308 (D.C. Cir. 1997)).

¶The Office concluded that if Mr. Trump chose to raise such a defense, it would fail because an advice-of-counsel defense is not available "where counsel acts as an accomplice to the crime." United States v. West, 392 F.3d 450, 457 (D.C. Cir. 2004) (Roberts, J.). The evidence showed that the central attorneys on whom Mr. Trump may have relied for such a defense, such as Co-Conspirator 1 or Co-Conspirator 2, were "partner[s] in a venture," with the result that any advice-of-counsel defense necessarily would fail. Id. (citing United States v. Carr, 740 F.2d 339,347 (5th Cir. 1984)); cf United States v. Cintolo, 818 F.2d 980,990 (1st Cir. 1987) ("A criminal lawyer has no license to act as a lawyer-criminal."). Co-Conspirator 1 assisted Mr. Trump in using knowingly false claims of election fraud in furtherance of the charged conspiracies. At press conferences,¹⁸¹¹⁸¹ Conference 11/07/2020); SCO-04976264 (Video of RNC Press Conference 11/19/2020). at hearings before legislatures in the targeted states,¹⁸²¹⁸² See ECF No. 252 at 19-20 & nn.83-85, 21 & n.97, 25 & nn. l 19-120, 39 & nn.195-197; SCO-04976265 at 15:52- 30:00 (Video of Pennsylvania Hotel Hearing 11/25/2020); SCO-04976459 at 02:06:23-02:07:00 (Video of Arizona State Hearing 11/30/2020); SCO-04976326 at 25:00-31:05 (Video of Michigan House Committee Meeting 12/02/2020); SCO-04976332 at 0 1:04:50-01:10:25 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/03/2020). See ECF No. 252 at 19 & nn.77-82, 33 & nn.163-164, 34 & nn.168-169; SCO-11545470 at 53 (Int. Tr.);Show full note and directly with officials in the targeted states,¹⁸³¹⁸³ SCO-00829361 at 20-22 (HSC Tr.); SCO-00312350 (Text messages from Co-Conspirator 1 12/07/2020); SCO-05390337-05390346 (Text messages 12/08/2020); SCO-11508370 at 62-64 (Int. Tr.). Co-Conspirator 1 made a wide range of specific (though ever-changing) false claims of election fraud. Co-Conspirator 1 continued to do so after his lies were publicly or directly debunked.¹⁸⁴¹⁸⁴ See ECF No. 252 at 14 & n.53, 23 & nn.105-106; see also, e.g., SCO-04976279 at 01:36:58-02:01:58 (Video of Georgia House Committee Hearing 12/10/2020); SCO-04952956 (Tweet 12/04/2020); SCO-04976277 at 08:44- 09: l 0 (Video of Georgia Secretary of State Press Conference 12/07/2020); supra at n. 12. Co-Conspirator l's involvement spanned from his insistence that Mr. Trump declare victory on election night 185 to the voicemails 186 that Co-Conspirator 1 left for Senators on the night of January 6, using false claims of election fraud to ask that the legislators further delay the certification. Co-Conspirator 2 was instrumental in Mr. Trump's efforts to organize his electors to cast fraudulent votes and send them to the Vice President, and then to pressure the Vice President to use the fraudulent electoral certificates to overturn the election results. Throughout his involvement in Mr. Trump's conspiracies, Co-Conspirator 2 conceded privately to other attorneys (both private attorneys and those responsible for advising Mr. Trump and the Vice President) that his plans violated federal law and would not withstand scrutiny in court.¹⁸⁷¹⁸⁷ SCO-02248764 at 3 (Email from Co-Conspirator 2 01/06/21 ); SCO-12245492 (Email from Co-Conspirator 2

¶See ECF No. 252 at 43 & nn.217-2 I 8; see, e.g., SCO-04976260 (Video of Four Seasons Total Landscaping Press

¶Furthermore, Mr. Trump could not have succeeded in showing that he relied in good faith on legal advice from these attorneys. The evidence showed that Mr. Trump was not looking to Co-Conspirator 1 or Co-Conspirator 2 for legal advice; instead, Mr. Trump was the head of a conspiracy who sought legal cover from his co-conspirators. As Co-Conspirator 1 acted repeatedly in furtherance of the conspiracies, multiple advisors to Mr. Trump warned him that Co-Conspirator 1 would not successfully challenge the election results and was not acting in Mr. Trump's best interest; Mr. Trump ignored them all because he was not relying on Co-Conspirator 1 as an attorney.¹⁸⁸¹⁸⁸ See ECF No. 252 at 11-12 & nn.32-35; SCO-12920242 at 1, 4, 7 (Int. Rep.); SCO-00006256 at 44-52; SCO-12945 I 95 (Email ll/28/2020); SCO-00764172 at 26-27 (HSC Tr.); SCO-11532925 at 70-71 (Int. Tr.); SCO-00014655 at 68-73. Similarly, Co-Conspirator 2's willingness to advocate for actions that he knew and even privately conceded were unlawful demonstrates that both he and Mr. Trump understood his role was not that of an attorney offering legal advice on which Mr. Trump was acting.¹⁸⁹¹⁸⁹ See ECF No. 252 at 61 & nn.324-326, 63 & n.336, 66-67 & nn.356-364, 69-70 nn.382-385; see, e.g., SCO-12245107 at 1-2 (Draft Letter from Co-Conspirator 2); SCO-00280481 at 2 (Memo from Co-Conspirator 2 to Co-Conspirator 6 12/23/2020); SCO-00006256 at 130-135; SCO-00007167 at 50-53, 60-63; SCO-00016118 at 72- 80; SCO-00014442 at 38-39 (Pence, So Help Me God pp. 450-45 l); SCO-04982330 (Handwritten notes 01/04/2021); Trump v. Kemp, No. 20-cv-5310, ECF No. 21 at 27-29 (N.D. Ga. Jan. 5, 2021) (Transcript of Motions Hearing); SCO-04976350 at 56:53-57:36, 01:05:59-01:07:02, 01:19:12-1:27:28 (Video of HSC Testimony); SCO-04094748 (Handwritten notes 01/05/2021); SCO-00794788 at 108-115 (HSC Tr.).Show full note For instance, in a lawsuit in Georgia, Co-Conspirator 2 filed a false certification by Mr. Trump after having written to other attorneys in an email that both he and Mr. Trump knew some of the allegations incorporated in the filing were inaccurate.¹⁹⁰¹⁹⁰ See ECF No. 252 at 27 & nn.127-130; Kemp, No. 20-cv-5310, ECF No.lat 33-34 (N.D. Ga. Dec. 31, 2020) (Complaint); SCO-00006256 at 205-206; SCO-00282435 at l (Email from Co-Conspirator 2 12/31/2020). And Co-Conspirator 2's decision to advocate to the Vice President's counsel and chief of staff on January 5, 2021, that the Vice President should unlawfully reject legitimate electoral certificates-an act that Co-Conspirator 2 had previously recognized was not supported by the Constitution or federal 12/29/2020); SCO-00039087 (Text messages among Co-Conspirator 2, Co-Conspirator 5, and Co-Conspirator 6 12/28/2020).

¶law 191-was a sharp reversal from his position just one day earlier and happened only because

¶Mr. Trump had made clear that it was his preferred strategy.¹⁹²¹⁹² See ECF No. 252 at 66-67 & nn.361-364, 69 & nn.382-384; SCO-00007167 at 51, 60-61; SCO-04976350 at 01:19: 12-01:21 :30 (Video of HSC Testimony); SCO-04094 748 (Handwritten notes 01/05/2021). The Office was otherwise confident that it would be able to demonstrate that with respect to all attorneys, Mr. Trump could not meet the elements of the defense, such as the requirement that he make full disclosure to any attorneys of all relevant facts and then rely faithfully on their advice. See Gray-Burriss, 920 F.3d at 66.

¶Finally, the Office anticipated that Mr. Trump would claim that his conduct was protected by the First Amendment. As the district court recognized, "the First Amendment 'embodies our profound national commitment to the free exchange of ideas," and it bars the government from '"restrict[ing] expression because of its message, its ideas, its subject matter, or its content.'" ECF No. 171 at 31 (quoting Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564, 573 (2002), and United States v. Stevens, 559 U.S. 460,468 (2010)). At the same time, "it is well established that the First Amendment does not protect speech that is used as an instrument of a crime." Id. '"Many long established' criminal laws permissibly 'criminalize speech that is intended to induce or commence illegal activities,' United States v. Williams, 553 U.S. 285, 298 (2008), such as fraud, bribery, perjury, extortion, threats, incitement, solicitation, and blackmail, see, e.g., Stevens, 559 U.S. at 468-469 (fraud); Williams, 553 U.S. at 298 (incitement, solicitation); Citizens United v. Fed. Election Comm 'n, 558 U.S. 310, 356 (2010) (bribery); Rice v. Paladin Enters., Inc.,¹²⁸¹²⁸ See ECF No. 252 at 81 & n.466; SCO-12876211, SCO-12738313, SCO-12738317, SCO-12738306, SCO-12738312 at 00:59-01:40 (Videos of Capitol Riot 01/06/2021). F.3d 233, 244 (4th Cir. 1997) (extortion, threats, blackmail, perjury)." ECF No. 171 at 31-32 (ellipsis omitted). "Prosecutions for conspiring, directing, and aiding and abetting do not run afoul of the Constitution when those offenses are 'carried out through speech."' Id. at 32 (quoting Nat'! Org. for Women v. Operation Rescue,³⁷³⁷ See ECF No. 252 at 37-38 & nn.187-190; SCO-00016926 at 10-11, 19-23; SCO-02300357 at 3-4 (Presidential Daily Diary 11/06/2020). F.3d 646, 655-656 (D.C. Cir. 1994), and citing Williams, 553 U.S. at 298).

¶Consistent with that precedent, the original and superseding indictments recognized that Mr. Trump "had a right, like every American, to speak publicly about the [2020 presidential] election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won." ECF No. 1 at ,r 3; ECF No. 226 at ,r 3. They charged Mr. Trump, however, with using knowingly false statements to defeat a government function, injure the right to vote, and obstruct an official proceeding. That is, he made "dozens of specific claims that there had been substantial fraud in certain states, such as 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 to votes for Biden." ECF No. 1 at ,r 11; ECF No. 226 at ,r 12. Those were factual claims that were verifiably false, and Mr. Trump knew that they were false. See id. Mr. Trump then used those lies as the instruments of his four criminal offenses. Because he used those knowingly false statements regarding specific facts to commit the crimes charged in the superseding indictment, they were not protected by the First Amendment. See Stevens, 559 U.S. at 468-469 (including "fraud" in the list of "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem") (citation and quotations omitted); United States v. Nordean, 579 F. Supp. 3d 28, 53-54 (D.D.C. 2021) ("[B]y focusing on 'corrupt' actions, [Section 1512(c)(2)] does not even reach free speech."); see also United States v. Alvarez, 567 U.S. 709, 719-721 (2012) (plurality opinion) (explaining that while "falsity alone may not suffice to bring the speech outside the First Amendment," the First Amendment permits criminal laws that proscribe knowing or reckless falsehoods in connection with some "other legally cognizable harm," including "protect[ing] the integrity of Government processes").

¶In pretrial motions, Mr. Trump moved to dismiss the original indictment based on the First Amendment. See ECF No. 113 at 4-18. The Office filed an opposition brief, ECF No. 139 at 29-34, and the district court denied the motion, finding that the indictment "properly alleges Defendant's statements were made in furtherance of a criminal scheme," ECF No. 171 at 33. As the court explained, Mr. Trump was "not being prosecuted for his 'view' on a political dispute; he [was] being prosecuted for acts constituting criminal conspiracy and obstruction of the electoral process," id at 34, and the fact that his "alleged criminal conduct involved speech does not render the Indictment unconstitutional," id at 32. Because he was "not being prosecuted simply for making false statements, but rather for knowingly making false statements in furtherance of a criminal conspiracy and obstructing the electoral process," there was "no danger of a slippery slope in which inadvertent false statements alone are alleged to be the basis for criminal prosecution." Id. at 36 (citation omitted); see generally id. at 32-37 (rejecting other First Amendment claims).