Conspiracy to Defraud the United States (18 U.S.C. § 371)

¶The defraud clause of the general conspiracy statute makes it a crime "[i]f two or more persons conspire ... to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy."¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 371. The defraud clause applies not just to schemes to cheat the government out of money or property, but also to schemes "to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest." Hammerschmidt v. United States,²⁶⁵²⁶⁵ See SCO-12921102, SCO-11545866 at 2 (Letters from Trump Attorney to Witness Counsel). U.S. 182,¹⁸⁸¹⁸⁸ 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. (1924). Under longstanding, established precedent, the government must prove the following elements to establish a violation of the defraud clause: (1) the defendant "entered into an agreement, (2) to obstruct a lawful function of the government or an agency of the government, (3) by deceitful or dishonest means, and (4) at least one overt act was taken in furtherance of that conspiracy." United States v. Concord Mgmt. & Consulting LLC, 347 F. Supp. 3d 38,⁴⁶⁴⁶ See ECF No. 252 at 51 & n.268; SCO-00310140 (Email from Co-Conspirator 6 12/09/2020); SCO-03660557 (Email from Co-Conspirator 6 to others, including Co-Conspirator l and Co-Conspirator 5 12/10/2020); SCO-00039412 (Email from Co-Conspirator 5 to others, including Co-Conspirator 1 and Co-Conspirator 6 12/10/2020); SCO-0539013l-SCO-05390136 (Text messages between Co-Conspirator 6, Co-Conspirator 5, and Campaign staffer 12/11/2020); SCO-00430180 (Text messages between Co-Conspirator 6 and Campaign staffer 12/11/2020); SCO-00309359 (Email to Co-Conspirator 1 and Co-Conspirator 6 12/14/2020); SCO-00405057 (Email among Campaign staff 12/15/2020); SCO-06452193 (Email among Campaign staff 12/12/2020); SCO-00312444 (Text messages among Co-Conspirator 1, Co-Conspirator 6, and others 12/12/2020); SCO-12185268 (Email from Co-Conspirator 6 to Co-Conspirator l and others 12/13/2020); SCO-03656456 (Email from Co-Conspirator 5 to Campaign staffer 01/05/2021); SCO-00039215 (Email to Co-Conspirator 5 01/05/2021); SCO-04022107 (Email to Co-Conspirator 5 01/05/2021); SCO-04022176 (Text messages from Co-Conspirator 5 01/05/2021); SCO-12804411 (Text messages from Co-Conspirator 5 0 l /06/2021 ); SCO-12804414 (Text messages between Co-Conspirator 5 and Campaign staffer 01/05/2021); SCO-03666178 (Email from Co-Conspirator 5 01/05/2021); SCO-00038522, SCO-00038523, SCO-00038527 (Email with attachments 01/07/2021).Show full note (D.D.C. 2018) (citation and quotations omitted); see also Hammerschmidt,²⁶⁵²⁶⁵ See SCO-12921102, SCO-11545866 at 2 (Letters from Trump Attorney to Witness Counsel). U.S. at 188; United States v. Dean,⁵⁵⁵⁵ See ECF No. 252 at 56 & n.301; SCO-02341381 (Fraudulent "Arizona's Electoral Votes for President and Vice President"); SCO-02341386 (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-0234 I 449 (Fraudulent "Wisconsin's Electoral Votes for President and Vice President"); SCO-00405057 (Email to Campaign staff 12/15/2020).Show full note F.3d 640,647 (D.C. Cir. 1995). The Office concluded that Mr. Trump's conduct satisfied each of these established elements of a defraud-clause offense.

¶The process of selecting and certifying the President, as described above and prescribed by the Constitution and federal law, is plainly a lawful function of the federal government. Cf Ray v. Blair, 343 U.S. 214,224 (1952) (noting that "[t]he presidential electors exercise a federal function"); Burroughs v. United States, 290 U.S. 534, 545 (1934) (stating that electors "exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States"); United States v. Brock,⁹⁴⁹⁴ See ECF No. 252 at 136 & nn.631-632, 139-140 & nn.642-645; SCO-00454954, SCO-12987365 (Donald J. Trump Tweet 01/05/2021); SCO-00455147, SCO-12987408 (Donald J. Trump Tweet 12/26/2020); SCO-00455067, SCO-12987392 (Donald J. Trump Tweet 01/01/2021); SCO-00454979, SCO-12987370 (Donald J. Trump Tweet 01/04/2021). F.4th 39,⁵¹⁵¹ SC0-11531008 at 10, 79 (Int. Tr.). (D.C. Cir. 2024) (noting the "unique congressional function of certifying electoral college votes"). Indeed, Mr. Trump never challenged the indictment on that basis, though he filed more than 100 pages in support of dismissal motions. As the court of appeals found in the context of the immunity litigation in this case, "[f]ormer President Trump's alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government." United States v. Trump,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.4th 1173, 1199 (D.C. Cir. 2024), vacated and remanded on other grounds, 603 U.S. 593 (2024). Mr. Trump also sought to obstruct the certification; his sole objective was to ensure that no one other than himself was certified as the President. Nor is there any doubt that Mr. Trump conspired with others to achieve his goal, and that at least one overt act was committed.

¶With three of the four elements of a Section 371 violation established, the Office anticipated that a central dispute at trial would be whether Mr. Trump pursued his obstructive purpose by "deceit, craft or trickery, or at least by means that are dishonest." Hammerschmidt,²⁶⁵²⁶⁵ See SCO-12921102, SCO-11545866 at 2 (Letters from Trump Attorney to Witness Counsel). U.S. at 188. The Office concluded that the evidence established beyond a reasonable doubt that he did.

¶The core of Mr. Trump's obstructive scheme was a false narrative of outcome determinative voter fraud, which he and his surrogates frequently repeated and widely disseminated over the course of two months. Crucially, not only was Mr. Trump's voter-fraud narrative objectively false-he knew that it was false. Mr. Trump's false claims were repeatedly debunked, often directly to him by the very people best positioned to ascertain their truth. Campaign personnel told Mr. Trump his claims were unfounded; so did state officials, a White

¶House official who engaged with Mr. Trump in his capacity as a candidate, and even his own

¶° running mate.¹⁴¹⁴ See, e.g., ECF No. 252 at 15 & nn.55-59 (Arizona); id. at 21 & n.96, 30 & n.142, 122-123 & n.592 (Georgia). For Arizona, see, e.g., SCO-04976384 at 20:47 (Common Sense episode 89 11/25/2020) ("36,000"); SCO-04976459 at 02:06:23-02:07:00 (Video of Arizona State Hearing 11/30/2020) ("a few hundred thousand"); SCO-06628641 at 18:52-19:42 (War Room episode 608 12/24/2020) ("about 250,000"); SCO-06628646 at 35:19-35:45 (War Room episode 625 01/02/2021) ("32,000"); SCO-02244118 at 17 (Remarks by Mr. Trump at Save America Rally 01/06/2021) ("36,000"). Additional examples are discussed below. See, e.g., infra at nn.155-158 (Georgia). ECF No. 252, United States v. Trump, No. 23 Cr. 257 (D.D.C. Oct. 2, 2024).Show full note For example, Mr. Trump's Campaign Manager informed him that a claim that had been circulating-that a substantial number of non-citizens had voted in Arizona-was false.¹⁴¹¹⁴¹ See ECF No. 226 at ,r 18; ECF No. 252 at 17-18 & n.69; SCO-00016750 at 58-63. State officials issued public statements dispelling Mr. Trump's claims of widespread election fraud.¹⁴²¹⁴² See ECF No. 226 at ,r 13; ECF No. 252 at 14 & nn.52-53; see also supra at n.12. Georgia's Secretary of State refuted multiple false claims of election fraud directly to Mr. Trump, including the false allegation that 5,000 dead people had voted in Georgia.¹⁴³¹⁴³ See ECF No. 252 at 29-30 & nn.136-144; SCO-12998394 at 4, 6-10 (Tr. of Georgia Secretary of State Call 01/02/2021). When Mr. Trump raised various fraud allegations with Michigan's Senate Majority Leader, he was told that he had lost because he had underperformed with educated females.¹⁴⁴¹⁴⁴ See ECF No. 252 at 32-33 & nn.159-160; SCO-00829361 at 15-17 (HSC Tr.). Vice President Pence told Mr. Trump that he had seen no evidence of outcome-determinative fraud in the election.¹⁴⁵¹⁴⁵ See ECF No. 252 at 12 & n.40; SCO-00014655 at 38-44. And, tellingly, a Senior Advisor reiterated to Mr. Trump that Co Conspirator 1 would be unable to prove his false fraud allegations in court, to which Mr. Trump responded, "The details don't matter."¹⁴⁶¹⁴⁶ See ECF No. 252 at 11-12 & nn.34-35; SCO-00006256 at 46-49; SCO-12920242 at I, 4 (Int. Rep.).

¶Courts in which Mr. Trump brought numerous lawsuits all rebuffed his claims, which in some instances prompted him to issue public rebukes acknowledging those decisions.¹⁴⁷¹⁴⁷ See ECF No. 252 at 36 & nn.181-182, 41 & nn.208-210, 44-45 & nn.225-230; see also, e.g., Law v. Whitmer, No. Still other federal and state officials-some appointed by Mr. Trump, and others who publicly supported and voted for him-publicly debunked allegations of outcome-determinative voter fraud.¹⁴⁸¹⁴⁸ See ECF No. 252 at 14 & nn.52-53, 20 & nn.86-87, 23 & n.106, 33 & n.165, 38 & n.192, 42 & n.212, 42-43 & n.216, 46 & nn.238-239; see also supra at n.12; SCO-04976277 (Video of Georgia Secretary of State Press Conference l 2/07/2020); SCO-11509450 at 103-104 (Int. Tr.); SCO-03036930 (Joint Statement on Election Security 11/12/2020); SCO-04952679 (Tweet 11/17/2020); SCO-07167983 (Email from GOP Comms Alert circulating Associated Press article titled "Barr: No evidence of fraud that'd change election outcome" 12/01/2020). See ECF No. 252 at 15 & nn.55-59; SCO-04976384 at 20:46-21:05 (Common Sense episode 89 11/25/2020);Show full note Mr. Trump did not reach out to an:y of these officials to ask relevant questions about the election because he was not seeking honest answers. This was a pattern revealed throughout the investigation: Mr. Trump unquestioningly accepted at face value and amplified election fraud claims that benefited his quest to retain power. Conversely, he avoided consulting informed sources, such as state election officials, who possessed evidence that could debunk his claims. The Office concluded that this consistent pattern would constitute powerful proof at trial that Mr. Trump knew the claims he was making were false.

¶Mr. Trump's false claims were often divergent from one day to the next and otherwise internally inconsistent.¹⁴⁹¹⁴⁹ SCO-04976459 at 02:06:23-02:07:00 (Video of Arizona State Hearing 11/30/2020); SCO-06628641 at 18:52-19:42 (War Room episode 608 12/24/2020); SCO-06628646 at 35:19-35:45 (War Room episode 625 0l/02/2021). For example, in Arizona, the conspirators started with the allegation that 36,000 non-citizens voted in that state;¹⁵⁰¹⁵⁰ See ECF No. 252 at 15 & n.55; SCO-04976384 at 20:46-21:05 (Common Sense episode 89 l l/25/2020). five days later, it was "beyond credulity that a few hundred thousand didn't vote";¹⁵¹¹⁵¹ See ECF No. 252 at 15 & n.56; SCO-04976459 at 02:06:23-02:07:00 (Video of Arizona State Hearing l l/30/2020). three weeks later, "the bare minimum [was] 40 or 50,000. The reality is about 250,000";¹⁵²¹⁵² See ECF No. 252 at 15 & n.57; SCO-06628641 at 18:52-19:42 (War Room episode 608 12/24/2020). days after that, the assertion was 32,000;¹⁵³¹⁵³ See ECF No. 252 at 15 & n.58; SCO-06628646 at 35:19-35:45 (War Room episode 625 01/02/2021). and ultimately, the

¶Trump v. Eiden, 394 Wis. 2d 629, 633 (Wis. 2020); SCO-00455197, SCO-00455196, SCO-00455195, SCO-12987423, SCO-12987422, SCO-1298742 l (Donald J. Trump Tweets 12/21/2020).

¶conspirators landed back where they started, at 36,000-a false figure that they never verified or corroborated.¹⁵⁴¹⁵⁴ See ECF No. 252 at 15 & n.59; SCO-04976283 at 0 1:04:04-01:04: 13 (Video of Dalton, GA speech 0 1/04/202 l); SCO-02244118 at 17 (Remarks by Mr. Trump at Save America Rally 01/06/2021). And in Georgia, the conspirators initially suggested that a large enough number of dead voters had cast ballots to overcome Mr. Trump's losing margin of about 12,000 voters;¹⁵⁵¹⁵⁵ See ECF No. 252 at 21 & n.96; SCO-04976323 at 22:43-23:51 (Video of Trump Interview 11/29/2020). one month later, the number was 10,315;¹⁵⁶¹⁵⁶ SCO-04976407 at 03:29:00-03:29:34 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/30/2020). three days after that, the assertion was "close to 5,000 people";¹⁵⁷¹⁵⁷ See ECF No. 252 at 30 & n.142; SCO-12998394 at 3 (Tr. of Georgia Secretary of State Call 01/02/2021). and then two days later, the number bounced back to 10,315.¹⁵⁸¹⁵⁸ See ECF No. 252 at 122-123 & n.592; SCO-04976283 at 53:25-53:59 (Video of Dalton, GA speech 01/04/2021). Mr. Trump bears legal responsibility for each of these false claims because they were made by him and his co-conspirators in furtherance of the conspiracy that he led. See Salinas v. United States, 522 U.S. 52, 63-64 (1997) ("The partners in the criminal plan must agree to pursue the same criminal objective and may divide up the work, yet each is responsible for the acts of each other."); see also Fed. R. Evid. 80l(d)(2)(E) (statement by an opposing party's "conspirator during and in furtherance of the conspiracy" is admissible against that party); United States v. Brockenborrugh, 575 F.3d 726, 735 (D.C. Cir. 2009); United States v. Tarantino, 846 F.2d 1384, 1411-1412 (D.C. Cir. 1988).

¶The Office developed further evidence of Mr. Trump's knowledge that his claims were untrue from witnesses who reported that he planned to use fraud claims before the election had even happened. For instance, in advance of the election, advisors told Mr. Trump that the election would be close and that initial returns might be misleading, showing an early lead for Mr. Trump that would diminish as mail-in ballots were counted. In response, Mr. Trump suggested that if that prediction were true-which it ultimately was-he would simply declare victory before all ballots were counted and a winner was projected.¹⁵⁹¹⁵⁹ See ECF No. 252 at 5 & nn.2-4; SCO-11621981 at 74-83, 92-93 (Int. Tr.); SCO-00016750 at 14-18, 27-30; SCO-00006819 at 9-12, 19-20; SCO-00003548 at 8-29; SCO-00016118 at 144-145. He also made repeated public statements in the lead-up to election day in which he sowed public doubt in the election results, setting the stage for his later fraud claims.¹⁶⁰¹⁶⁰ See ECF No. 252 at 6 & nn.5-10; SCO-00712149 at 37:20 (Video of Trump Interview on Fox News 07/19/2020); SCO-12998418 (Donald J. Trump Tweet 07/30/2020); SCO-12992141 at 57:33 (Video of Oshkosh, WI Rally 08/17/2020); SCO-12992142 at 22:08 (Video of Trump Speech 08/24/2020); SCO-12992143 at 03:11-03:28 (Video of Trump Statement 10/27/2020). And Mr. Trump made his first statement claiming fraud in the election only hours after polls closed-when no investigations had begun, much less concluded.¹⁶¹¹⁶¹ See ECF No. 252 at 7-8 & n. 16; SCO-04976258 (Video of White House Speech 11/04/2020).

¶Mr. Trump's intent in spreading knowing falsehoods was further evidenced by statements he made to those around him. In private-in contrast with his public false claims-Mr. Trump made admissions that reflected his understanding that he had lost. In a private moment, Mr. Trump confessed to his family members that "it doesn't matter if you won or lost the election. You still have to fight like hell."¹⁶²¹⁶² See ECF No. 252 at 14-15 & n.54; SCO-00009250 at 156; SCO-11529771 at 99-102 (Int. Tr.). When President-elect Biden appeared on television in November, Mr. Trump said to a staffer, "can you believe I lost to this f'ing guy?"¹⁶³¹⁶³ SCO-11521307 at 88 (Int. Tr.). And when his own Vice President declined to join the conspiracy, Mr. Trump berated him for being "too honest."¹⁶⁴¹⁶⁴ See ECF No. 252 at 63 & n.338; SCO-00014442 at 34 (Pence, So Help Me Godp. 446).

¶Because the evidence showed that Mr. Trump knew his claims were false, it amply satisfied the mens rea standard for a Section 371 charge, which would be satisfied by evidence that Mr. Trump either knew his fraud claims were false or that he acted with deliberate disregard for their truth or falsity. The concept of deliberate disregard-sometimes referred to as reckless disregard, or reckless or deliberate indifference-has deep roots in the law of fraud. See US. ex rel. Schutte v. Super Valu Inc., 598 U.S. 739, 750-752 (2023);¹¹ This section of the Report summarizes the evidence uncovered by the Office's investigation, and therefore includes conduct for which the Supreme Court later held Mr. Trump to be immune from prosecution, see Trump v. United States, 603 U.S. 593, 597 (2024). That conduct is not included in the superseding indictment that the Office obtained after the Supreme Court's decision, see ECF No. 226, nor is that conduct included in the discussion below regarding why the evidence warranted criminal charges under the Principles of Federal Prosecution. Unless otherwise noted, all ECF citations in this Volume of the Report are to the docket in United States v. Trump, No. 23-cr-257 (D.D.C.). 2 SC0-00701211 at 7 (Federal Election Commission, Election Results for 2020 Federal Elections).Show full note J. Story, Commentaries on Equity Jurisprudence § 193 (10th ed. 1870) ("Whether the party, thus misrepresenting a material fact, knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial; for the affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false."). That concept is reflected in case law and jury instructions for the District of Columbia, as well as precedent from every other circuit. See, e.g., United States v. Philip Morris USA Inc., 566 F.3d 1095, 1121 (D.C. Cir. 2009);¹¹ This section of the Report summarizes the evidence uncovered by the Office's investigation, and therefore includes conduct for which the Supreme Court later held Mr. Trump to be immune from prosecution, see Trump v. United States, 603 U.S. 593, 597 (2024). That conduct is not included in the superseding indictment that the Office obtained after the Supreme Court's decision, see ECF No. 226, nor is that conduct included in the discussion below regarding why the evidence warranted criminal charges under the Principles of Federal Prosecution. Unless otherwise noted, all ECF citations in this Volume of the Report are to the docket in United States v. Trump, No. 23-cr-257 (D.D.C.). 2 SC0-00701211 at 7 (Federal Election Commission, Election Results for 2020 Federal Elections).Show full note Criminal Jury Instructions for the District of Columbia 5.200 (2024).¹⁶⁵¹⁶⁵ See also, e.g., United States v. Correia, 55 F.4th 12, 26 (1st Cir. 2022); Knickerbocker Merchandising Co. v. United States, 13 F.2d 544, 546 (2d Cir. 1926); United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995); United States v. Hester, 880 F.2d 799, 803 (4th Cir. 1989); United States v. Dillman, 15 F.3d 384, 392-393 (5th Cir. 1994); United States v. Kennedy, 714 F.3d 951,958 (6th Cir. 2013); United States v. Schwartz, 787 F.2d 257,265 (7th Cir. 1986); United States v. Marley, 549 F.2d 561, 563-564 (8th Cir. 1977) ("It must also be noted that the courts have long recognized that scienter may be established where reckless disregard of truth or falsity is present."); United States v. Dearing, 504 F.3d 897,903 (9th Cir. 2007); United States v. Cochran, 109 F.3d 660,665 (10th Cir. 1997); United States v. Clay, 832 F.3d 1259, 1311 (I Ith Cir. 2016).Show full note Here, the evidence showed that Mr. Trump decided, even before the election, that he would allege outcome-determinative fraud, whether it occurred or not, if he were not declared the winner, and he adhered to that plan-repeating false claims that he knew to be untrue.

¶Although Mr. Trump's conduct fell comfortably within the established elements of a defraud-clause offense, the Office noted that the Supreme Court has in several recent decisions limited the reach of other federal fraud and obstruction statutes. See, e.g., Ciminelli v. United States, 598 U.S. 306 (2023) (reversing conviction of construction contractor for wire fraud,¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 1343, for scheming with public official to tailor bid requirements for government contracts to favor himself because the government did not prove the defendant deprived the victim of a traditional property interest); Kelly v. United States, 590 U.S. 391 (2020) (reversing convictions for wire fraud,¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 1343, and federal program fraud,¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 666, where defendants aimed to inflict political retribution on mayor by closing lanes of a bridge that served the mayor's city because the object of the scheme was not to obtain money or property); Skilling v. United States, 561 U.S. 358 (2010) (paring back honest-services fraud statute,¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 1346, to reach only core bribery and kickbacks and reversing conviction of executive who was convicted of making false statements to inflate his company's value but was not alleged to have taken bribes or kickbacks for his efforts); Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) (requiring showing of knowingly corrupt conduct under obstruction of justice statute,¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 1512(b)(2), and reversing conviction of accounting firm convicted of shredding documents in advance of an SEC investigatory demand based on failure of jury instructions to convey the requisite consciousness of wrongdoing). Given these decisions restricting the reach of other fraud and corruption statutes, the Office considered whether the Supreme Court might also adopt a new construction of the defraud clause in Section 371, such as one that would for the first time limit it to money or property fraud.

¶The Office concluded, however, that the creation of such a new rule would not be supported in the law given that the well-established elements of a defraud-clause offense are firmly grounded in the statute's text, history, and longstanding judicial precedent. For more than a hundred years, the Supreme Court has "stated repeatedly that the fraud covered by the statute reaches any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of Government" and that this branch of liability is distinct from money-or property limitations in other areas of fraud law. Tanner v. United States, 483 U.S. 107,¹²⁸¹²⁸ 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). (1987) (citation and quotations omitted); see Dennis v. United States, 384 U.S. 855, 861 (1966) ("It has long been established that this statutory language is not confined to fraud as that term has been defined in the common law. It reaches any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.") (citation and quotations omitted); Glasser v. United States, 315 U.S. 60,⁶⁶⁶⁶ SCO-00775937 at 58 (HSC Tr.); SCO-12263324 at 8 (Handwritten notes 12/27/2020). (1942) (upholding prosecution of a federal prosecutor for conspiring to receive bribes to influence his official duties; no financial fraud against the United States alleged: "The indictment charges that the United States was defrauded by depriving it of its lawful governmental functions by dishonest means; it is settled that this is a 'defrauding' within the meaning of Section 37 of the Criminal Code," the predecessor to Section 371); Hammerschmidt,²⁶⁵²⁶⁵ See SCO-12921102, SCO-11545866 at 2 (Letters from Trump Attorney to Witness Counsel). U.S. at 188 ("To conspire to defraud the United States . . . also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane, or the overreaching of those charged with carrying out the governmental intention."); Haas v. Henkel, 216 U.S. 462, 479 (1910) ("[I]t is not essential that such a conspiracy shall contemplate a financial loss or that one shall result. The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.").

¶Against the backdrop of that Supreme Court precedent, Congress has reenacted-and indeed expanded the scope of-the defraud clause, reflecting congressional ratification of the Court's construction of it. See, e.g., Forest Grove Sch. Dist. v. TA., 557 U.S. 230, 239-240 (2009) ("Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.") (citation and quotations omitted). In 1948, for instance, when Congress codified the general conspiracy statute,¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 371, where the defraud clause currently resides, see Pub. L. No. 80-772,⁶²⁶² 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.).

¶Stat. 701, it was already "settled" that "defraud[ing]" the United States "by depriving it of its lawful governmental functions by dishonest means ... is a 'defrauding' within the meaning of" the defraud clause, Glasser, 315 U.S. at 66, and at that time, Congress added the words "or any agency thereof' in the defraud clause after "United States." Pub. L. No. 80-772,⁶²⁶² 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.). Stat. 701. The House Report from the Judiciary Committee accompanying the pertinent bill specifically stated that the amendment was designed "[t]o reflect the construction placed upon [the predecessor statute] by the courts." H.R. Rep. No. 80-304, at A28 (1947). And it has consistently been the Department's position in litigation that the defraud clause proscribes conspiracies to obstruct a lawful function of the federal government through deceit. See, e.g., Gas Pipe, Inc. v. United States, No. 21-183, 2021 WL 5193105, Brief in Opp'n (U.S. Oct. 8, 2021) (stating petitioners' contention that defraud clause is limited to money and property schemes is "inconsistent with over a century of [Supreme Court] precedent"); Flynn v. United States, No. 20-1129, 2021 WL 7210413, Brief in Opp'n (U.S. May 19, 2021) (stating defraud clause is not unconstitutionally vague in part because of the Supreme Court's longstanding interpretation that interference or obstruction must be by deceit or dishonest means); Coplan v. United States, No. 12-1299, 2013 WL 3324197, Brief in Opp'n (U.S. July 1, 2013) (explaining that petitioner's claim that the decisions in mail- and wire-fraud cases like McNally v. United States, 483 U.S. 350 (1987), and Skilling undermine "longstanding, congressionally adopted construction of the defraud clause" is erroneous and misplaced, and "disregards important limitations inherent in the defraud clause," including the requirement that "a conspiracy under the defraud clause must be deceptive or deceitful").¹⁶⁶¹⁶⁶ The Supreme Court denied certiorari in each of these cases. See Gas Pipe, Inc. v. United States, 142 S. Ct. 484 Accordingly, the Office concluded that

¶Mr. Trump's conduct fell within the scope of Section 371 given the statute's longstanding, congressionally ratified construction, and its historic use by the Justice Department.

¶The Office also recognized various limiting principles in the application of Section 371 that separate Mr. Trump's conduct from mere hardscrabble politics. A defraud-clause violation, as honed by years of judicial decisions, including repeated applications by the Supreme Court, requires not only an agreement among co-conspirators, but identification of a specific function of the federal government, the intent to obstruct that function through deceit, and an overt act. See, e.g., United States v. Johnson, 383 U.S. 169, 172, 184-185 (1966) (in exchange for undisclosed "campaign contributions" and "legal fees," congressman conspired to defeat the lawful functions of the Department of Justice by urging dismissal of pending indictments). First, a defraud clause conspiracy must be targeted at a lawful function of the United States or any agency thereof. See, e.g., United States v. Haldeman, 559 F.2d 31,¹²¹¹²¹ See ECF No. 252 at 141 & n.653; SCO-00006256 at 163-166; SCO-00015002 at 37-38; SCO-00686662 at 117- (D.C. Cir. 1976) ("The unlawful agreement to attempt to use the CIA to interfere with the investigation of the Watergate break-in was thus fairly charged in Count 1 of the indictment as one of the means by which the defendants intended to accomplish one of the principal objects of their conspiracy defrauding the United States of its right to have its officials and agencies transact their business honestly, impartially, and free from corruption or undue influence or obstruction."). In contrast, a conspiracy targeted at a private party or at a state or local government does not suffice, even if the entity receives federal funds or "serve[s] as an intermediary performing official functions on behalf of the Federal Government." Tanner, 483 U.S. at 130-131. Second, obstruction of the governmental function must be "a purpose or object of the conspiracy, and not merely a foreseeable consequence of the conspiratorial scheme." United States v. Goldberg,¹⁰⁵¹⁰⁵ See ECF No. 252 at 77-78 & nn.432-443; SCO-02244118 at 22 (Remarks by Mr. Trump at Save America Rally 01/06/2021). F.3d 770, 773 (1st Cir. 1997) (emphasis (2021); Flynnv. United States,¹⁴¹¹⁴¹ See ECF No. 226 at ,r 18; ECF No. 252 at 17-18 & n.69; SCO-00016750 at 58-63. S. Ct. 2853 (2021); Coplanv. United States, 571 U.S. 819 (2013).

¶m original) (citing Dennis, 384 U.S. at 861). Thus, for example, financial cnmes do not "automatically become federal conspiracies to defraud the IRS," simply because the crime may have foreseeable tax implications. Id. And this requirement means that the conspiracy must be aimed at defeating and obstructing the government function, rather than simply participating in it. Third, the defraud clause "is limited only to wrongs done 'by deceit, craft or trickery, or at least by means that are dishonest." Hammerschmidt,²⁶⁵²⁶⁵ See SCO-12921102, SCO-11545866 at 2 (Letters from Trump Attorney to Witness Counsel). U.S. at 188. Fourth, the overt-act requirement provides another limitation, the function of which is "to manifest that the conspiracy is at work, and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence." Yates v. United States, 354 U.S. 298, 334 (1957) (citation and quotations omitted), overruled on other grounds by Burks v. United States, 437 U.S.¹¹ This section of the Report summarizes the evidence uncovered by the Office's investigation, and therefore includes conduct for which the Supreme Court later held Mr. Trump to be immune from prosecution, see Trump v. United States, 603 U.S. 593, 597 (2024). That conduct is not included in the superseding indictment that the Office obtained after the Supreme Court's decision, see ECF No. 226, nor is that conduct included in the discussion below regarding why the evidence warranted criminal charges under the Principles of Federal Prosecution. Unless otherwise noted, all ECF citations in this Volume of the Report are to the docket in United States v. Trump, No. 23-cr-257 (D.D.C.). 2 SC0-00701211 at 7 (Federal Election Commission, Election Results for 2020 Federal Elections).Show full note (1978). Finally, while a court in the District of Columbia has stated that materiality is not an element of a defraud-clause conspiracy, see Concord Mgmt. & Consulting LLC,³⁴³⁴ See ECF No. 252 at 17 & n.66; SCO-12733339 at 14 (Int. Rep.). 7 F. Supp. 3d at 50 n.5, the Office was prepared to prove the materiality of Mr. Trump's deceptive statements and to offer a materiality instruction as another limitation on the scope of Section 371. Under that limitation, even conspirators who make knowingly false statements with an obstructive intent will not violate the defraud clause unless their statements are material.

¶All of these requirements for establishing a conspiracy to defraud under Section 371, taken collectively, ensure that common political conduct or political speech does not fall within the scope of the defraud clause. The evidence collected during the investigation met these requirements as to Mr. Trump's conduct.

B. Obstruction and Conspiracy to Obstruct (18 U.S.C. § 1512(k) and (c)(2)) The federal statute prohibiting obstruction of an official proceeding makes it a crime to

¶"corruptly (1) alter[], destroy[], mutilate[], or conceal[] a record, document, or other object, or attempt[] to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or (2) otherwise obstruct[], influence[], or impede[] any official proceeding, or attempt(] to do so."¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 1512(c). A separate provision defines the term "official proceeding" to include a "proceeding before the Congress."¹⁸¹⁸ U.S. CONST. art. II, § 1. U.S.C. § 1515(a)(l)(B).

¶In Fischer v. United States, 603 U.S. 480 (2024), decided during the pendency of Mr. Trump's immunity appeal, the Supreme Court clarified the scope of an obstruction offense under Section 1512(c)(2), holding that the statute applies only when a defendant impairs (or attempts to impair) "the availability or integrity for use in an official proceeding of records, documents, objects, or ... other things used in the proceeding." Id. at 498. In language that applies directly to the allegations in the superseding indictment, the Supreme Court explained that Section 1512(c)(2)'s criminal prohibition includes "creating false evidence." Id. at 491. Before seeking the original indictment-which, like the superseding indictment, alleged that one component of Mr. Trump's and his co-conspirators' obstruction involved replacing valid elector certificates from the contested states with false ones they had manufactured-the Office anticipated the possibility of such a result in Fischer and confirmed that the evidence would prove Mr. Trump's guilt beyond a reasonable doubt even under a narrow interpretation of Section 1512(c)(2). See ECF No. 139 at 20-21. In construing Section 1512(c)(2) to reach impairing or attempting to impair the integrity or availability of records, documents, or other objects through "creating false evidence," the Supreme Court cited United States v. Reich, 479 F.3d 179, 183, 185-187 (2d Cir. 2007) (Sotomayor, J.), in which a defendant was convicted under Section 1512(c)(2) after he forged a court order and sent it to an opposing party intending to cause that party to withdraw a mandamus petition then pending before an appellate court. Just as the defendant in Reich violated Section 1512(c)(2) by "inject[ing] a false order into ongoing litigation to which he was a party," id. at 186, the evidence showed that the co-conspirators created fraudulent electoral certificates that they intended to introduce into the congressional certification proceeding on

¶January 6 to obstruct it.¹⁶⁷¹⁶⁷ See ECF No. 252 at 48-49 & nn.251-254, 51-52 & n.274, 56-57 & nn.302-307, 58 & n.312, 65 & n.352; SCO-02341381 (Fraudulent "Arizona's Electoral Votes for President and Vice President"); SCO-02341386 (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"); SCO-00310626 (Co-Conspirator 5 memo 12/06/2020); SCO-00039408 (Email from Co-Conspirator 5 12/08/2020); SCO-00309946 (Email from Co-Conspirator 5 to Co-Conspirator 1 12/13/2020); SCO-12184337, SCO-12184338 (Email from Co-Conspirator 2 to Co-Conspirator 5 and Co-Conspirator 6, with attachment 12/23/2020) (memo); SCO-12101300, SCO-12101301 (Email from Co-Conspirator 2 to Co-Conspirator 6, with attachment O1/03/2021) (memo).Show full note

¶The Office was also prepared to prove that Mr. Trump willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to cause the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates.¹⁶⁸¹⁶⁸ See ECF No. 252 at 72- 73 & nn.405-407, 74 & nn.411-414, 75 & n.422, 76-78 & nn.428-444, 80 & n.462; see also, e.g., SCO-00455253, SCO-12987427 (Donald J. Trump Tweet 12/19/2020); SCO-00455068, SCO-12987393 (Donald J. Trump Tweet Ol /01/2021 ); SCO-02244118 (Remarks by Mr. Trump at Save America Rally O1/06/2021). See 18 U.S.C. § 2(b) (making a defendant criminally liable for "willfully caus[ing] an act to be done which if directly performed by him or another would be" a federal offense); United States v. Hsia,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.). F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001). The Supreme Court's opinion in Fischer therefore did not undermine the viability of the Section 1512 counts.

¶Much of the evidence that supports the Section 371 conspiracy to defraud likewise proves that Mr. Trump and co-conspirators violated Section 1512(k) and Section 1512(c)(2). To demonstrate a violation of Section 1512(c)(2) following Fischer, the government must prove (1) the defendant obstructed, influenced, or impeded an official proceeding, or attempted to do so, (2) in the course of doing so, the defendant committed or attempted to commit an act that impaired the integrity or rendered unavailable records, documents, objects, or other things for use in the official proceeding, (3) the defendant intended to impair the integrity of or render unavailable such records, documents, objects, or other things for use in the official proceeding, and (4) the defendant acted corruptly. See United States v. Baez, No. 21-cr-507, ECF No. 106 at 8 (D.D.C. Sept. 23, 2024) (describing elements required to establish a violation of Section 1512(c)(2) following Fischer).

¶Mr. Trump's conduct establishes each of these elements beyond a reasonable doubt. The congressional certification proceeding was an official proceeding for purposes of Section 1512, as every district court judge in the District of Columbia to have considered this question has concluded, see United States v. Bingert, 605 F. Supp. 3d 111,¹²⁰¹²⁰ See ECF No. 252 at 79 & n.453; SCO-12881998 at 01:04-01:25 (Video of Senate Wing Door CCTV 01/06/2021); SCO-12945145 at 44:16-44:36 (Video of Senate Floor 01/06/2021). (D.D.C. 2022), and as the D.C. Circuit has agreed, see Fischer,⁶⁴⁶⁴ SCO-00775937 at 62, 107 (HSC Tr.); SCO-04957448 at 46-51 (SJC Tr.); SCO-11522446 at 23-24 (Int. Rep.); SCO-11511407 at 177-183 (Int. Tr.); SCO-11542142 at 90-98 (Int. Tr.); SCO-115173 80 at 96-99 (Int. Tr.). F.4th at 342-343 (D.C. Cir. 2023), vacated and remanded on other grounds, 603 U.S. 480 (2024). The evidence described above supporting the Section 371 charge also establishes Mr. Trump's knowingly obstructive conduct. And as described above, Mr. Trump willfully caused others to attempt to obstruct the certification proceeding on January 6.

¶Finally, the Government was prepared to prove Mr. Trump's corrupt intent-under any definition-beyond a reasonable doubt. To act "corruptly" means (1) acting dishonestly, (2) intending the use of unlawful means, (3) violating a legal duty or causing or seeking to cause someone else to violate a legal duty, or (4) seeking an unlawful or improper benefit or advantage. Acting corruptly also means acting with consciousness of wrongdoing. See United States v. Robertson,⁸⁶⁸⁶ See ECF No. 252 at 64 & nn.344-345, 65 & n.353; SCO-11618747 at 156-158, 166-169 (Text messages from Co-Conspirator 601/02/2021-01/05/2021); SCO-02301015 at 4 (Presidential Daily Diary 01/04/2021). F.4th 355, 368-369 (D.C. Cir. 2023); United States v. !Yforrison,⁹⁸⁹⁸ See ECF No. 252 at 74 & n.412, 140 & n.648; SCO-00013901 at 59-60; SCO-02241925 (Save America Rally Draft Speech 01/06/2021); SCO-00017298 at 135-139; SCO-00842413 at 163-165 (HSC Tr.); SCO-02343119 (Email among Speechwriting staff 01/06/2021); SCO-02343413 (Email from Speechwriter 01/06/2021); SCO-00006256 at 160; SCO-11522446 at 26 (Int. Rep.). F.3d 619, 630 (D.C. Cir. 1996); Arthur Andersen LLP, 544 U.S. at 706-707 (2005). Mr. Trump and co-conspirators used deceptive and dishonest means; he intended the use of independently criminal means to obstruct the congressional certification proceeding; he and co-conspirators plainly sought to cause state and federal officials to violate a legal duty; and Mr. Trump acted "with an intent to procure an unlawful benefit either for oneself or for some other person." Fischer,⁶⁴⁶⁴ SCO-00775937 at 62, 107 (HSC Tr.); SCO-04957448 at 46-51 (SJC Tr.); SCO-11522446 at 23-24 (Int. Rep.); SCO-11511407 at 177-183 (Int. Tr.); SCO-11542142 at 90-98 (Int. Tr.); SCO-115173 80 at 96-99 (Int. Tr.). F.4th at 352 (Walker, J., concurring) (citation and quotations omitted). Most basically, Mr. Trump sought "unlawfully [to] secure a professional advantage-the presidency," id. at 356 n.5-to which he was not lawfully entitled.