Mr. Trump's Conduct Had No Historical Analogue

¶During pretrial litigation, Mr. Trump contended that his conduct was materially indistinguishable from that of other actors throughout American history-including past Presidents and Vice Presidents-who had either claimed that an election was tainted by fraud or presided over a certification proceeding at the joint session where electoral votes were in dispute. Mr. Trump further argued that because those actors had not been prosecuted for their purportedly similar conduct, it would be unconstitutional to prosecute him for his conduct, because doing so would either violate his right to fair notice, see ECF No. 113 at 25-31; ECF No. 114 at 28-31, or result in selective or vindictive prosecution, see ECF No. 116 at 6-8. That is, even accepting that

¶Mr. Trump engaged in the conduct alleged in the indictment, and that such conduct violated the charged statutes, he maintained that prosecution was improper because it conflicted with historical practice.

¶The historical episodes that Mr. Trump invoked-arising from elections in 1800, 1824, 1876, 1960, 2000, 2004, and 2016-did not involve similar conduct and did not supply a valid reason to decline to bring charges here. In litigation, the Office addressed each historical episode he cited and explained why none was meaningfully similar to the charged conduct. See ECF No. 139 at 40-47; ECF No. 141 at 6-9. Taken together, those episodes showed that "[t]here have been times, as in 1800, 1876, and 1960, when genuine questions have arisen over which slate of electors from a particular state has been duly appointed"; "[t]here have also been times, as in 1824, when the failure of any candidate to obtain a majority of electoral votes has thrown the election to the House of Representatives"; and "there have been times, as in 2000, 2004, and 2016, when those dissatisfied with the results have sought to raise objections to the electoral vote count, resulting in either the objections being overruled or, in one case, a brief adjournment designed as an Ohio-focused protest vote without 'the hope or even the hint of overturning the victory of the President."' ECF No. 139 at 46-47 (quoting 151 CONG. REC.¹⁹⁹¹⁹⁹ See ECF No. 252 at 18 & nn.73-76, 20 & n.88, 26-27 & nn.123-126, 28 & n.132, 31 & n.146, 40 & n.206; see, e.g., SCO-00456209, SCO-00715415 (Donald J. Trump Tweet 11/11/2020); SCO-00455691, SCO-12858431 (Donald J. Trump Retweet 11/30/2020); SCO-00455690, SCO-12987528 (Donald J. Trump Tweet 11/30/2020); SCO-00455536, SCO-12858636 (Donald J. Trump Retweet 12/06/2020). (Jan. 6, 2005)). But none of the historical episodes at issue involved "any attempt by any person to use fraud and deceit to obstruct or defeat the governmental function that would result in the certification of the lawful winner of a presidential election." Id. at 40-47; see ECF No. 141 at 6-9.

¶The district court found that there were no historical analogues to Mr. Trump's alleged criminal conduct. When Mr. Trump filed a motion to dismiss the indictment on a claim that he was being selectively prosecuted because of a historical "track record of similar, unprosecuted, efforts" to challenge elections, see ECF No. 116 at 6, the district court rejected it, explaining that

¶Mr. Trump was "not being prosecuted for publicly contesting the results of the election; he is being prosecuted for knowingly making false statements in furtherance of a criminal conspiracy and for obstruction of election certification proceedings." ECF No. 198 at 5-7. Likewise, in its opinion denying Mr. Trump's immunity motion, the district court found that "none of the contested elections" Mr. Trump "invokes is analogous to this case," as none involved "any allegation that any official engaged in criminal conduct to obstruct the electoral process." ECF No. 171 at 47.

INVESTIGATIVE PROCEDURE AND POLICY

¶Upon appointing the Special Counsel, the Attorney General explained that the appointment "underscores the Department's commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors and agents to continue their work expeditiously, and to make decisions indisputably guided only by the facts and the law." See Press Release, Office of Public Affairs, Department of Justice, Appointment of a Special Counsel (Nov. 18, 2022), https://www.justice.gov/opa/pr/appointment-special-counsel-O. The Attorney General also noted that, "[a]lthough the Special Counsel will not be subject to the day-to-day supervision of any official of the Department, he must comply with the regulations, procedures, and policies of the Department." Id. The Office conducted its work accordingly.