Report of Special Counsel Jack Smith, Volume One: The Election Case
Mr. Trump's Supporters Attack the United States Capitol
Mr. Trump's Supporters Attack the United States Capitol
¶Mr. Trump's efforts to remain in power converged and culminated on January 6, the day that Mr. Biden was to be certified President. That day, Mr. Trump was scheduled to speak at the Ellipse to the crowd of supporters he had summoned to Washington with false claims of election fraud.94 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). At around 1:00 a.m. on the morning of January 6, Mr. Trump tweeted: "If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!"95 See ECF No. 252 at 72-73 & n.405, 137 & n.636; SCO-00454942, SCO-12987357 (Donald J. Trump Tweet 01/06/2021). Just before he left the White House to give his speech at the Ellipse, Mr. Trump phoned Mr. Pence one last time;96 See ECF No. 252 at 73 & n.410, 140 & n.646; SCO-00014442 at 47-48 (Pence, So Help Me God pp. 459-460); SCO-11532623 at 203 (Int. Tr.); SCO-11534332 at 211 (Int. Tr.). when Mr. Pence told Mr. Trump that he planned to issue a public statement making clear that he lacked the authority to do what Mr. Trump wanted, Mr. Trump expressed anger at him.97 See ECF No. 252 at 73-74 & n.411, 140 & n.647; SCO-11522446 at 25 (Int. Rep.); SCO-00014655 at 206-207; SCO-00014442 at 47-48 (Pence, So Help Me God pp. 459-460); SCO-04982320 (Handwritten notes 01/06/2021). He then directed staffers to re-insert into his planned Ellipse speech some language that he had drafted earlier targeting Mr. Pence.98 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.).
24¶During his speech at the Ellipse,99 Mr. Trump's speech at the Ellipse on January 6, 2021, was a Campaign event. The rally at which Mr. Trump spoke was planned and executed by private political supporters, and it was completely funded by a $2.1 million private donation. Mr. Trump promoted the event using the word "rally," a word connoting a private political effort, and Mr. Trump's White House staff recognized the event to be a private, unofficial exercise. Finally, the speech itself used campaign language and closely resembled Mr. Trump's other campaign speeches, including one he had given in Dalton, Georgia, for the Senate runoff election just two days earlier. See ECF No. 252 at 118-126 & nn.577-598. See ECF No. 252 at 75-76 & nn.423-428; SCO-02244118 at 3, 6, 11-12, 16-17 (Remarks by Mr. Trump at Save Mr. Trump made one more attempt to retain power. In his remarks, Mr. Trump repeated many of the same lies he had been telling for months regarding dead voters, non-citizen voters, and vote dumps-and he told newer ones: lies that targeted states wanted to change their electors and that Mr. Pence had the authority, and might be persuaded, to change the election results.100 America Rally 01/06/2021). The lie regarding Mr. Pence was particularly deceptive because Mr. Trump knew what his supporters in the crowd did not: that Mr. Pence had just told him in no uncertain terms that he would not do what Mr. Trump was demanding.
¶Mr. Trump told the crowd-a crowd of his supporters that he had remarked to advisors the night before was "angry"101 See ECF No. 1 at~ 98; SCO-00015613 at 155-156. -that the election had been stolen and the country would no longer exist if this purported crime were not stopped; and that the discovery of "fraud" licensed them to "go by very different rules."102 See ECF No. 252 at 77 & nn.432-436; SCO-02244118 at 19-20 (Remarks by Mr. Trump at Save America Rally 01/06/2021). Although Mr. Trump at one point also told his supporters to "peacefully and patriotically make [their] voices heard,"103 See SCO-02244118 at 6 (Remarks by Mr. Trump at Save America Rally 01/06/2021). he used the word "fight" more than ten times in the speech before concluding by directing his supporters to march to the Capitol to give allied Members of Congress "the kind of pride and boldness they need to take back our country."104 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). He also told the angry crowd that "if you don't fight like hell, you're not going to have a country anymore."105 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). Throughout the speech, Mr. Trump gave his supporters false hope that through such action, they could cause Mr. Pence to overturn the election results, even improvising new lines directed at Mr. Pence as the speech went on.106 See ECF No. 252 at 76 & nn.430-431; SCO-02244118 at 3 (Remarks by Mr. Trump at Save America Rally th Cong. 231 (1999) (prepared statement of Theodore B. Olson). th Cong. 252 (1999) (prepared statement of Attorney General Janet Reno). Blanche Law PLLC 99 Wall Street, Suite 4460 I New York, NY 10005 (212) 716-1250 I www.BlancheLaw.com
25¶At Mr. Trump's urging, thousands of his supporters marched from the Ellipse to the Capitol building.107 See ECF No. 252 at 78 & n.444; see also, e.g., SCO-11506080 at 01:09:30 (Video of Save America Rally 01/06/2021); SCO-12918852 (Video of March to Capitol 01/06/2021); SCO-12919559 at 01:30-02:52 (Video of March to Capitol 01/06/2021); SCO-066146 I 9 at 21:13-22:07 (Video ofFox News Coverage 01/06/2021). There, Mr. Pence began the certification at around 1:00 p.m.108 See ECF No. 252 at 78 & n.445; SCO-12945127 at 20:47 (Video of House Floor 01/06/2021); SCO-03666330 at Outside the building, the crowd swelled and broke through barriers cordoning off the grounds.109 See ECF No. 252 at 78 & n.448; see also, e.g., SCO-12876233 at 02:20-03:50 (Video of Capitol Riot 01/06/2021). See ECF No. 252 at 78-79 & n.450, 82 & n.477; SCO-12806961 at 56:56, SCO-12919902 at 38:59, The crowd that attacked the Capitol was filled with Mr. Trump's supporters, as made clear by their Trump shirts, signs, and flags.110 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.). As described in detail below, the crowd violently attacked the law enforcement officers attempting to secure the building.111 See ECF No. 252 at 82 & nn.475-477; see also, e.g., SCO-12919902 at 38:48, SCO-12738292, SCO-12806977 at 04:30, SCO-12738332, SCO-12919680 at 54:30 (Videos of Capitol Riot 01/06/2021).
26¶Photograph of the Capitol on January 6 2021 (John Manchillo/AP)112 Perry Stein, Aaron C. Davis, Spencer S. Hsu, and Tom Jackman, FBI did not hm·e undercol-·er agents at Jan. 6 riots, watchdog says, WASH. POST (Dec. 12, 2024), https://v.,-ww.washingtonpost.com/national security/2024/ 12/ 12/fbi-jan-6-report/.
¶Photograph of the Capitol on January 6, 2021 (Ken Cedeno/UPI)113 Doug Cunningham, Jan. 6 rioters face criminal penalties as sentences, cor,victions mount. UNITED PRESS INTERNATIONAL, INC. (June 2. 2023). https://www.upi.com/Top_News/US/2023/06/02/Jan-6-rioters-sentences convictions/ 115168 5561006/.
27¶Photograph of the Capitol on January 6, 2021 (Shannon Stapleton/Reuters)114 Hanvwing scenes fivm tl,e Jan 6 U S. Capitol attack. REUTER.s (Oct. 13, 2022), https://\vv-lw.reuters.com/news/picture/harwwing-scenes-from-the-jan-6-rn;-capit-idUSRTSC60V8/.
28Photograph of the Capitol on January 6, 2021 (Lev Radin/Pacific Press/LightRocket/Getty Images)115 Aaron Blake, More Republicans now coll Jan. 6 a 'legitimate protest ' than a 'riot, ' WASH. POST (July 7, 2022). https://www.washingtonpost.com/politic.s/2022/07/07/many-republicans-no-louger-call-jan-6-an-insurrection-or even-riot/.
¶Photograph of the Capitol on January 6, 2021 (David Butow/Redux:)116 Capitol Hill Viole.nee, lHE CHRONICLE OF PHil..ANTHR.OPY (Jan. 7, 2021), https://v,-ww.philanthropy.com/article/ho1,v nonprofit-and-foundation-leaders-are-responding-to-capitol-hill-violence.
¶Photograph of the Capitol on January 6,202 HSC Hearing). See ECF No. 252 at 38 & n.194; SCO-11545129 at 87 (Int. Tr.); SCO-04976349 at 02:03:17-02:04:10 (Video of l (Roberto Schmidt/AFP via Getty Images)117 Eric Westervelt, Off-Duty Police Officers Investigated. Charged With Participating In Capitol Riot, NPR (Ja.n. l S, 2021 ). https://www.npr.org/202 l/O l/ l S/956896923/police-officers-across-nation-face-federal-charges-for involvement-i.n-capitol-ri.
¶Statement from Leaders, Updated: 'Our Children Aie Watching': Nonprofit and Foundation Leaders Respond to
29¶After his speech, Mr. Trump returned to the White House and, at around 1:30 p.m., settled in the dining room off of the Oval Office.118 See ECF No. 252 at 79 & n.452; SCO-00783547 at 36-39 (HSC Tr.); SCO-00015613 at 180. There, he watched television news coverage of events at the Capitol and reviewed Twitter on his phone.119 See ECF No. 252 at 79 & nn.451-452; SCO-00783547 at 38-39 (HSC Tr.); SCO-11528445 at 52-53 (Int. Tr.); SCO-00015613 at 183-185; SCO-00006256 at 164, 168; SCO-11522446 at 26 (Int. Rep.); SCO-00481112 (Spreadsheet of Data from Mr. Trump's White House Phone). (HSC Tr.) (recalling entering the dining room with Mr. Trump and conveying "this was a situation now out of control" while they were "all fixated on the television set"); SCO-11532623 at 222-228, 235 (Int. Tr.) (recalling Mr. Trump being told about riot at Capitol); SCO-00003294 at 114. When the angry crowd advanced on the Capitol building and breached it at around 2:13 p.m., forcing the Senate to recess,120 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). several of Mr. Trump's advisors rushed to the dining room and told him that a riot had started at the Capitol and that rioters were in the building.121 See ECF No. 252 at 141 & n.653; SCO-00006256 at 163-166; SCO-00015002 at 37-38; SCO-00686662 at 117- Over the course of the afternoon, they forcefully urged Mr. Trump to issue calming messages to his supporters.122 See, e.g., ECF No. 252 at 141-142 & nn.653, 663; SCO-00015613 at 194-201; SCO-00003294 at 115-116, 121- 123, 131-132; SCO-11511407 at 227-228 (Int. Tr.); SCO-00006256 at 164-166, 174; SCO-11522446 at 26 (Int. Rep.) (recalling presenting Mr. Trump with draft language for a statement that was never published); SCO-00015002 at 38; SCO-11542142 at 134-135 (Int. Tr.) ("I thought that the President had to issue a strong statement, quickly, telling everybody to leave the Capitol, and condemning what was going on there."); SCO-11532623 at 240, 262-265 (Int. Tr.) (recalling a staffer entering the dining room and telling Mr. Trump to "call for calm" and asking Mr. Trump's daughter to "come in to help advocate with the President"). Mr. Trump resisted, repeatedly remarking that the people at the Capitol were angry because the election had been stolen.123 See ECF No. 252 at 141 & n.654; SCO-00006256 at 164-166; SCO-00015613 at 189, 202-203; SCO-00011109 at 179-182; SCO-11534332 at 193-194 (Int. Tr.) (recalling Mr. Trump commenting to House Minority Leader that "a lot of these people are upset with the election ... they felt like it was stolen from him" and that "maybe these people are more upset about the election results than you are").
¶Just before 2:24 p.m., the news channel playing on the television in the dining room where Mr. Trump was sitting aired an interview with an individual marching from the Ellipse to the Capitol, who expressed his anger at Mr. Pence and stated, "But I still believe President
30¶Trump has something else left."124 See ECF No. 252 at 79-80 & nn.452, 460; SCO-06614619 at 21:45-22:42 (Video of Fox News Coverage 01/06/2021). Then, at 2:24 p.m., sitting alone, Mr. Trump issued a Tweet attacking Mr. Pence and fueling the riot: "Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!"125 See ECF No. 252 at 80 & n.462, 141 & nn.655, 657; SCO-00456476, SCO-12987690 (Donald J. Trump Tweet 01/06/2021); SCO-00015613 at 188-189, 196-198; SCO-00011109 at 160-I61. One minute later, the United States Secret Service was forced to evacuate Mr. Pence to a secure location at the Capitol.126 See ECF No. 252 at 81 & n.465, 141 & n.658; SCO-00029459 (Video of Pence Evacuation 01/06/2021). When an advisor at the White House learned this, he rushed to the dining room and informed Mr. Trump, who replied "So what?"127 See ECF No. 252 at 142 & n.662; SCO-00009250 at 214-220.
¶The rioters at the Capitol had been motivated and directed by Mr. Trump, and he continued to resist advisors' requests to direct them to leave. Throughout the afternoon, crowds at the Capitol hunted for Mr. Pence and other lawmakers, with some chanting, "Hang Mike Pence!"128 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). At 2:38 p.m. and 3:30 p.m., Mr. Trump issued two Tweets falsely suggesting that events at the Capitol were "peaceful" and asking individuals there (whom he termed "WE") to remain that way: "Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay Peaceful!" and, "I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order-respect the Law and our great men and women in Blue. Thank you!" 129 At 4:17 p.m., he tweeted a video message in which he for the first time asked his supporters to leave the Capitol-while at the same time falsely claiming that "[w]e had an election that was stolen from us ... a landslide election," and embracing the people who had attacked the Capitol, telling them "we love you, you're very special."130 See ECF No. 252 at 143 & n.666; SCO-00456473 (Video of Rose Garden Speech 01/06/2021); SCO-12876968 (Draft Tr. of Rose Garden Speech O1/06/2021). 131 See ECF No. 252 at 143 & n.667; SCO-00456472, SCO-12987689 (Donald J. Trump Tweet 01/06/2021). And at 6:01 p.m., he tweeted, "These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!" 131
31¶At around the same time as he issued his 6:01 p.m. Tweet, Mr. Trump tried to reach two United States Senators, and he also directed Co-Conspirator 1 to call Members of Congress and attempt to enlist them to further delay the certification.132 See ECF No. 226 at 1 97(c) and (d); ECF No. 252 at 83-84 & nn.485-492; SCO- 12706940 at row 1383 (Spreadsheet of Executive Assistant's text messages); SCO-02131850 at 2392 (Toll Records O1/06/2021); SCO-00009250 at 234-235; SCO-11616952 (Email from Executive Assistant 01/06/2021); SCO-00404535 (Text Message from Co-Conspirator 6 01/06/2021); SCO-11520423 ( Co-Conspirator 1 Toll Analysis O1/06/2021); SCO-02035182 at 5396-5397 (Co-Conspirator I Toll Records 01/06/2021); SCO-02054919 at 71 (Co-Conspirator I Toll Records 01/06/2021); SCO-04134777 (Voicemail from Co-Conspirator 1 01/06/2021) (telling Senator, "We need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they're reconvening at eight tonight but the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow-ideally until the end of tomorrow."); SCO-06475675 (Voicemail from Co-Conspirator 1 01/06/2021) (asking Senator to "object to every state and kind of spread this out a little bit like a filibuster"). When Mr. Trump's White House Counsel called him at around 7:00 p.m. and asked him to withdraw any objections to the certification, Mr. Trump refused.133 See ECF No. I at 1 120; SCO-00003294 at 141-143; SCO-02301375 at 4 (Presidential Daily Diary 01/06/2021). Nonetheless, the certification resumed late in the evening of
¶See ECF No. 252 at 142 & nn.664-665; SCO-00454933, SCO-04963517, SCO-00454932, SCO-04963518 119 (Donald J. Trump Tweets O1/06/2021).
32¶January 6 and, at 3:41 a.m. on January 7, Mr. Pence announced the certified results of the 2020 presidential election in favor of Mr. Biden.134 See ECF No. 252 at 85 & n.495; SCO-04955950 at 19:14-20:34 (Video of Congress Joint Session 01/06/2021); SCO-03666330 at 41 (Congressional Record 01/06/2021).
¶As he did in his 4:17 p.m. and 6:01 p.m. Tweets on January 6, Mr. Trump has provided additional evidence of his intent by continuing to support and ally himself with the people who attacked the Capitol. He has called them "patriots"135 See ECF No. 252 at 83 & n.478; SCO-04976301 at 16:52-17:02 (Video of Waco Rally 03/25/2023); SCO-04976442 at 48:29-48:44 (Video of Mr. Trump at Faith and Freedom Coalition 06/17/2022); SCO-04976291 at 16:42-16:58 (Video of Trump Interview 02/01/2022). and "hostaoes
b ' "136 See ECF No. 252 at 83 & n.479; SCO-12982756 at 35:50-36:22 (Video of Greensboro Rally 03/02/2024). reminisced about
¶January 6 as a "beautiful day,"137 See ECF No. 252 at 83 & n.481; SCO-12851309 at 45:18-45:40 (Video of Trump Interview 08/23/2023); SCO-04958191 at7 (CNN Town Hall Tr. 05/10/2023). and championed the "January 6 Choir,"138 See ECF No. 252 at 83 & nn.482-483; SCO-04976301 at 03:00-05:35 (Video of Waco Rally 03/25/2023); SCO-12982756 at 35:50-36:21 (Video of Greensboro Rally 03/02/2024). a group of January 6 defendants who, because of their dangerousness, are detained at the District of Columbia jail.139 See United States v. Nichols, No. 21-mj-29, ECF No. 9 (E.D. Tex. Jan. 25, 2021) (ordering pretrial detention in prosecution of defendant who later became a member of the "January 6 choir"); United States v. Nichols, No. 2 l-cr- 117, ECF No. 75 (D.D.C. Dec. 23, 2021) (denying defendant's motion for pretrial release); id, ECF No. 307 at 27 n. IO, 35-36 (D.D.C. Apr. 30, 2024) (government sentencing memorandum referencing defendant's involvement in "January 6 choir"); see also United States v. Mink, No. 21-mj-105, ECF No. 19 (W.D. Pa. Jan. 29, 2021) (in prosecution of defendant who later became a member of the "January 6 choir," ordering defendant's pretrial detention); United States v. 1vfink, No. 21-cr-25, ECF No. 45 (D.D.C. Dec. 13, 2021) (court order denying defendant's motion to revoke pretrial detention); United States v. Sandlin, No. 21-mj-110, ECF No. 8 (D. Nev. Feb. 3, 2021) (ordering pretrial detention in prosecution of defendant who later became a member of the "January 6 choir"); United States v. Sandlin, No. 2 l-cr-88, ECF No. 31 (D.D.C. Apr. 13, 2021) (denying defendant's motion for release on bond); id., ECF Nos. 44, 44-1 (D.D.C. Aug. 31, 2021) (mandate return following denial of defendant's appeal of pretrial detention order); United States v. Shively, No. 21-cr-151, ECF No. 42 (D.D.C. May 9, 2022) (in prosecution of defendant who later became a member of the "January 6 choir," revoking conditions of release and ordering pretrial detention); United States v. Khater, No. 21-cr-222, ECF No. 25 (D.D.C. May 12, 2021) (in prosecution of defendant who later became a member of the "January 6 choir," denying defendant's motion for release from custody); United States v. McGrew, No. 21-cr-398, ECF No. 40 (D.D.C. Nov. 2, 2021) (order of detention pending trial in prosecution of defendant who later became a member of the "January 6 choir").
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