Jack - Reading the Annotated Immunity Brief | Part 5

Episode Date: October 10, 2024

Sit back and enjoy smooth legal writing of Jack Smith as read by Allison Gill.Part 5Thank you to Adam Klasfeld for filling in the redacted names.Who's Who in Jack Smith's Immunity Briefhttps://www.justsecurity.org/103533/whos-who-jack-smith-immunity-brief/  Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ  AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to know:Rule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

MSW Media. I signed an order appointing Jack Smith. And nobody knows you. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. What law have I broken? The events leading up to and on January 6th, classified documents and other presidential records.

You understand what prison is? Send me to jail. Hello and welcome to Jack, the podcast about all things special counsel. My name is Alison Gill and we've had a lot of folks write in asking if there was an audio version of the special counsel's immunity brief because it's a lot to read. Well, ask and ye shall receive. This is the audio version of the immunity brief, and I'll be reading it with the known redacted names as provided by our friend, Adam Klaasfeld, at Just Security. This audio version will be split up into multiple episodes that will be released daily. Thanks for listening and please subscribe to the Jack podcast for free wherever you

get your podcasts. All right. This is part five of our limited series and the final part of the audio version of Jack Smith's immunity brief. I'm just reading it to you and I'm including the names that have been redacted and these are the names as supplied by our friend, Adam Klaasfeld at Just Security. So thanks again to Adam Klaasfeld for that. Please follow him and Just Security wherever you get your social media information.

So we are starting now with other public statements and this is in section three. This is all of the information that Jack Smith is going to be using at trial, and he's explaining under the legal precedents and the legal framework that he discussed in section two, why none of these things, tweets, speeches, et cetera, other statements, which is what we're going to cover today, why none of it is subject to immunity. So we'll start now on the bottom of page 144 with other public statements. By virtue of his status as a candidate for reelection, the defendant occasionally made public statements, whether in response to questions or otherwise. Examples of such statements set forth in section one are the defendant's statements in advance of the election to seed

public doubt in the outcome, the defendant's televised election night remarks to his supporters, and the defendant's telephonic endorsement of Rudy Giuliani's false allegations at the Gettysburg quote, hotel hearing, unquote. Each of the defendants cited public statements was made in his capacity as a candidate. His pre-election statements, for instance, were made in contexts like the Republican National Convention or in the midst of statements about political polling. His election night remarks were made to a room of his supporters and were about his status as a candidate in the pending election. And his contribution to the Gettysburg Hotel hearing was to call in by dialing one of his

private attorneys who broadcast his personal message by holding her phone to the microphone so that he could make statements supporting those of his private attorneys. In sum, the defendant made all of these comments as a candidate for office and was speaking about his own election. They were unofficial. In the alternative, any official portions of the defendant's public speeches, tweets, or statements should be excised. Alternatively, if segregable portions of the speeches, tweets, or statements are found to be presumptively immune official conduct, the first alternative

would be to excise them from the speeches, allowing the government to rely on the unofficial statements in those speeches. The DC Circuit has long recognized that district courts have, quote, discretionary power to delete objectionable portions of evidence where appropriate, citing US v. Lemonakis. And the Supreme Court has approved of that practice in the context of statements that contain protective legislative acts along with unprotected acts under the Constitution's

speech or debate clause. C. U.S. v. Helstoski. Quote, approving practice of excising references to legislative acts so that the remainder of the evidence would be admissible. Unquote. C. also, Government of Virgin Islands v. Lee, quote, even where a conversation includes a discussion of both legislative acts and non-legislative acts, the conversation can be examined and the immunized aspects of the conversation deleted, unquote. This is a familiar practice across a range of legal context.

See, Samia v. United States, upholding a use of redacted statement to avoid constitutional concerns. Davis v. Washington, through inliminate procedure, trial courts should redact or exclude the portions of any statement that have become testimonial as they do, for example, with unduly prejudicial portions of otherwise admissible evidence. In rail freight fuel surcharge anti-trust litigation, redaction of any statements ultimately found to be immune while admitting the significant remaining unofficial content would resolve any constitutional questions under the Trump immunity ruling. To the extent that excision does not resolve any arguable immunity claim, then even if the defendant's conduct in these speeches, tweets, and statements can be nudged across

the line from campaign conduct to official action, it is so heavily intertwined with campaign-related conduct that prosecuting it does not pose a danger to any executive branch function or authority. Because the defendant bears the burden in the first instance of proving that conduct was official so as to qualify for presumptive immunity, the government in its reply brief will address any specific arguments the defense makes regarding the speeches, tweets, and statements discussed here. The defendant's interactions in his capacity as a candidate with White House staff.

These interactions at issue were unofficial. White House staffers witnessed or engaged in private unofficial communications with the defendant. These staffers included Hirshman, the White House senior advisor who acted as a conduit between the defendant and the campaign, Dan Scavino and another person who both volunteered for the campaign while working in the White House, Nick Luna, a staffer who witnessed a pertinent private remark by the defendant, and Molly Michael, the defendant's executive assistant. Federal law confirms that the defendant and Molly Michael, the defendant's executive assistant. Federal law confirms that the defendant's campaign related conversations with these

White House staffers were unofficial. The Hatch Act permits certain White House staffers to engage in political activity while on duty, but prohibits them from using their, quote, official authority or influence for the purpose of interfering with or affecting the result of an election. These staffers can thus wear two hats. They can work in their private capacity to advance the interests of a political candidate, including while on official duty.

Or they can work in their official capacity to carry out executive branch responsibilities, but they may not wear both hats at the same time. Accordingly, when the defendant's White House staff participated in political activity on his behalf as a candidate, they were not exercising their official authority or carrying out official responsibilities. And when the president, acting as a candidate, engaged in campaign-related activities with these officials or in their presence, he too was not engaging in official

presidential conduct when he spoke with White House staffers about campaign matters. The D.C. Circuit recognized that senior White House personnel may serve as the president's agents in a personal capacity to act as a conduit for unofficial information from a private party. The D.C. Circuit held that while the president's communications with his personal attorney are, quote, fully protected by the absolute attorney-client privilege, a White House lawyer, quote, cannot rely on a government attorney-

client privilege to shield evidence from the grand jury. But a White House lawyer may invoke the president's personal attorney-client privilege when he acts as an intermediary to convey unofficial information from the president to his personal attorney. As the court explained, a president must often quote rely on aides unquote to communicate with personal advisors such as his personal attorneys and The involvement of these aids does not alter the personal nature of the underlying communication similarly in this case the transmission of private campaign communications by or to the defendant through White House employees serving as an

to the defendant through White House employees serving as an intermediary did not render that communication official and thereby shield it from use in a criminal trial against the defendant. In some, just as the president can at times, quote, act in an unofficial capacity, including as a candidate for office or party leader, so too can the executive branch staff around him. Simply because a staffer holds a title in the executive branch

and interacts with the president does not mean that the interaction is necessarily official. See Blasengame, quote, noting the settled understanding that immunity is based on the nature of the function performed, not the identity of the actor who performed it. Quoting Clinton, when the individuals listed below interacted with the defendant in the circumstances described in section one, those conversations were unofficial.

We'll go after each of those conversations Jack Smith intends to include in evidence at his case in chief at trial after this quick break. Stick around. We'll be right back. All right, welcome back. Let's talk about these individual conversations Jack Smith wants to use as evidence, as saying that they are not official conversations. Eric Hirschman. From August 2020 through the end of the Defendants' Administration, Hirschman was an assistant

to the president without a defined portfolio. More importantly, for the court's purposes, during the charged conspiracies, Hirschman served as a conduit of information from the campaign to the defendant and discussed campaign matters with the defendant. These actions were consistent with Lindsay unofficial. Lindsay is a case precedent. As part of its immunity analysis, the court should consider multiple different interactions involving Hirshman, none of which bear on his official White House responsibilities. One, a November 13th phone call in which the defendant told Hirshman he was going to put Rudy Giuliani in charge of the campaign's legal efforts under an agreement where the defendant only would pay if Rudy

Giuliani were successful and Hirschman guaranteed the defendant he never would have to pay. Two, a November conversation with the defendant regarding Sidney Powell. Three, an undated conversation in which he told the defendant that Rudy Giuliani's fraud allegations could never be proved in court and the defendant responded, the details don't matter. Four, a November or December 2020 conversation in which Hirschman explained to the defendant why one of his fraud claims was bullshit. Five, a late December exchange with a defendant regarding the verification John Eastman wanted him to sign in Trump v. Kemp. Six, a January 4th, 2021 conversation where

Eric Hirschman spoke with John Eastman, after which Hirschman reported to the defendant that John Eastman had admitted his plan was not going to work. And seven, a variety of occasions in which Hirschman reported to the defendant that his campaign and its hired experts had found various election fraud claims to be unsupported. Section one also includes actions by Hirschman that do not reflect any presidential conduct because the defendant was not involved. One also includes actions by Hirshman that do not reflect any presidential conduct because the defendant was not involved. These include December 3rd text messages that Hirshman exchanged with Mark Meadows regarding

Rudy Giuliani's false fraud claims at a Georgia legislative hearing. And December 13th text messages Hirshman exchanged with campaign personnel regarding the fraudulent elector scheme. The content of each of the Hirshman communications with the defendant enumerated above involve the defendant's campaign, including the status and viability of the defendant's fraud claims, the quality of the advice the defendant was receiving from his campaign advisors, his litigation and electoral prospects, and the legality and practicality of John Eastman's proposal that Pence reject Biden's legitimate electors at the certification proceeding.

None of the communications pertain to general election policy issues or considerations, Justice Department criminal investigations, executive branch functions, or any other presidential responsibilities. As context for all these communications, the court should consider the Hirshman relationship with the defendant, his role in the White House, and his interactions with the campaign. Hirshman's relationship with the defendant and his family pre-existed his position in the White House, and Hirshman represented the defendant in his impeachment trial. Hirshman did not have a defined portfolio and worked on matters related to the Justice

Department, including the Portland riots and Section 230 of the Communications Decency Act, as well as Middle East issues and pardons. The government does not intend to elicit specific information about communications Hirshman had with the defendant regarding his official duties. Hirshman was not acting in an official capacity during the conversations enumerated above, but as a conduit for information from the campaign. Hirschman and his contact with the campaign began in October of 2020 when he asked campaign staffers Clark and P72, who we don't know, for a tutorial on campaign basics and operations. He continued to talk to Justin Clark and P-72,

leading up to the election, to understand different electoral college win-loss scenarios. Shortly thereafter, in early November 2020, Hirschman asked P-77, another one we don't know, who handled ethics issues in the White House Council's office for permission to engage with the campaign, and thereafter, Hirshman began frequent contact with campaign staff. Several days after the election, Hirshman went to the campaign headquarters in Virginia

for the first time, while Bill Stepien, Rudy Giuliani, Person 56, who we don't know, Sidney Powell, Joe DeGenova, Bernie Kerik, and Jenna Ellis were there too. As discussed, on November 7th, likely the same day he went to campaign headquarters, Hirshman joined campaign staffers, including Stepien, Justin Clark, and Jason Miller, at the White House to discuss with the defendant the fact that the networks that morning had projected Joe Biden as the winner of the election. The campaign staff and Hirshman told the defendant his chance of victory was slim. Hirshman also participated in various Oval Office meetings with

the defendant, Pence, White House staff, campaign officials, and Ronna McDaniel. White House staff, campaign officials, and Ronna McDaniel. The defendant heard and mentioned to Hirschman and others various fraud allegations throughout the post-election period, sometimes from his outside attorneys like Rudy Giuliani or Sidney Powell. Consistent with this, Hirschman asked Clark and P-72 if certain fraud allegations were accurate so that he could challenge information provided to the defendant by people like Rudy Giuliani, Sidney Powell, and Jenna Ellis. Hirschman also began interacting on a near daily basis with P22, another name we don't

have, but a campaign staffer who P73 told Hirshman he could trust. The campaign in turn hired two outside firms, C1 and C2. We talked about this by the way and I'm interjecting. I know I'm just supposed to be reading here, but C1 and C2 were those two companies that performed the audits on election fraud. The campaign, in turn, hired two outside firms, C1 and C2, to investigate fraud allegations. And I'm going to cut in here. I know I'm just supposed to be reading this, but the annotated version here does not have the names of C1, Company 1, and Company 2, the two outside firms, but I know them. They are Simpatico Software Systems and Berkeley Research Group. Now back to the document. Hirschman told the defendant that people external to the campaign

were hired to look into fraud allegations. Overall, Hirschman served as a conduit of day-to-day information between P22 and the defendant during the post-election period. P22 testified that around the time Rudy Giuliani was named to lead legal efforts, quote, I was introduced to Eric Hirschman and I started predominantly reporting to Eric Hirschman. He elaborated that Hirschman, quote, started to call me more and more. It would be, you know, once every couple of days that then it was kind of every day for a period of time that I was talking to Eric Hirschman. With this information on a daily basis, Hirschman attempted to debunk

the false fraud allegations in the White House. For example, after watching P74 testify in a December 10th, 2020 hearing in Georgia, Hirschman reached out to P22. Through this channel, Hirschman learned about Company One and Company Two, which as I shared with you is Simpatico and Berkeley, that there are uniform findings that no substantial fraud allegations were supported. And he learned about them essentially in real time. Hirschman also participated in calls with C-1, that's Simpatico, and had the number of one of its managing directors, P-75, who I'm guessing is Mr. Block, it's not named here. In his cell phone, some of those calls occurred at the White House. Hirschman directly passed the information to the defendant.

Hirschman had other contact regarding initiatives by the campaign or its outside attorneys. For example, Hirschman was on the call with the defendant and John Eastman on December 9th regarding the defendant's motion in his capacity as a candidate to intervene in Texas v. Pennsylvania. Separately, Hirschman spoke to the defendant about the lawsuit and explained how the legal system worked and the campaign, not the Justice Department or the FBI, was responsible for filing election challenge lawsuits. Throughout these conversations, even if Hirschman could be understood to have been acting in an official capacity, which he was not, rather than a campaign one, the defendant was himself acting

in his private capacity as a candidate. The defendant was asking for Hirschman's views on various strategic decisions he was making regarding his campaign and his private attorneys. And he was getting reports from Hirschman on information related to actual and potential election challenges important to his candidacy and private campaign. All of this context establishes both that Hirschman wore two hats, one official, one private, and that the defendant interacted with Hirschman in these conversations as a candidate rather than as president. The interactions between the defendant and Hirschman that the government intends to introduce at trial were thus all private.

We'll be right back with Dan Scavino's conversations after this quick break. Stick around. We'll be right back. All right. Welcome back. Let's talk about the conversations with Dan Scavino. Scavino served as assistant to the president and White House deputy chief of staff. He also volunteered his time for campaign work including traveling to political rallies with the defendant and posting pictures and videos. The government will elicit

from Scavino at trial that he was the only person other than the defendant with the ability to post to the defendant's Twitter account, that he sent tweets only at the defendant's express direction, and that Dan Scavino did not send certain specific tweets, including the one at 2.24 p.m. on January 6th, 2021. I'm going to interrupt here for a brief side note from the reading. That is the tweet going after Pence during the attack on the Capitol. Back to the reading.

He also will generally describe the defendant's Twitter knowledge and habits, including that the defendant was very active on his Twitter account, quote, paid attention to how his tweets played with his followers, unquote, quote, was very engaged in watching the news, unquote, and quote, knew how to read the replies and see all the replies of what people were saying and doing, which led to where he would retweet things, unquote. And that any tweet sent, quote, between 5 or 6 a.m. until 9 or 10 a.m. and after 9 or 10 p.m., generally was the defendant personally sending out the tweet, as opposed to having Dan Scavino do it.

None of this proposed testimony on Dan Scavino do it. None of this proposed testimony on Dan Scavino's part constitutes evidence of an official act. General information about access to the defendant's Twitter account, as well as Dan Scavino's testimony that he did not or not issue a particular tweet, is unrelated to any particular official act by the defendant. All right, on to an unidentified person known as P-7. P-7 was an assistant to the president and a volunteer for the campaign. She will testify about two specific sets of conversations. One, a handful of conversations in which the defendant,

in advance of the election, said that he would simply declare victory. And two, an unprompted statement in which the defendant remarked in a private moment that Sidney Powell's claims were crazy. Regarding the pre-election conversations, P7 has testified that COVID's expected effect on the election, and in particular the anticipated phenomenon that the defendant would take an early lead in some states based on the election, and in particular, the anticipated phenomenon that the defendant would take an early lead in some states based on the election day vote that would dissipate as mail-in ballots were counted, was discussed among campaign personnel and dual hat White

House staffers who simultaneously volunteered for the campaign. In that context, the defendant told P7 and others words to the effect of, quote, we'll just declare victory, unquote. Regarding the defendant's statement about Sidney Powell, P7 will testify about a November 20th phone call in which the defendant mocked and laughed at Sidney Powell and called her allegations that he adopted and amplified crazy. In all of these interactions, the defendant was interacting as a candidate with P7, not as president. With respect to his pre-election comments about declaring victory, the context of the conversations indicates that the defendant was responding in real time to information

that campaign staff provided him on private matters. Similarly, the November 20th conversation among the defendant, P-7, and Dan Scavino regarding Sidney Powell was also a campaign conversation. P-7 and Dan Scavino, two staffers who volunteered for the campaign while working in the White House, were informally discussing with the defendant developments in his campaign, namely that one of his private attorneys had been a source of public embarrassment. The defendant then dialed his private attorney, Sidney Powell, and made the comment about her claims with her on the muted phone line. The defendant was not seeking advice from White House staffers. He was making fun of his private attorney in the presence of campaign volunteers.

Next Nick Luna. Luna was an assistant to the president and director of Oval Office Operations. At trial, the government will elicit from Luna that he witnessed an unprompted comment that the defendant made to his family members in which the defendant suggested that he would fight to remain in power regardless of whether he had won the election. Specifically, following the 2020 election, while aboard Marine One, the defendant told his wife, daughter Ivanka Trump, and son-in-law Jared Kushner, quote, it doesn't matter if you won or lost the election,

you still have to fight like hell. Nick Luna happened to overhear this comment, but was not participating in the conversation. This statement is plainly private. It was exclusively about the election and the defendant's determination as a candidate to remain in power whether he won or lost. The defendant made the comment to his family members who campaigned on his behalf and served as private advisors in addition to any official role they may have played. The fact that it was overheard by Nick Luna, a White House staffer, does not convert it into official communication.

Next is Molly Michael. To a limited extent, the allegations in the superseding indictment and the government's evidence involve Molly Michael, the defendant's executive assistant in the White House. Section 1 describes multiple instances in which Michael received emails intended for the defendant or sent emails on the defendant's behalf. These instances include Michael sending to a group of private attorneys, including Sidney Powell, an email with the subject from POTUS directing the private attorneys to include material critical of Dominion voting systems in private lawsuits.

Molly Michael receiving from Rudy Giuliani an email for the defendant providing a copy of the message Rudy Giuliani had drafted to exert pressure on Michigan Senate Majority Leader Shirky. Molly Michael receiving from Ronna McDaniel, the RNC's elector recap email to put in front of the defendant. And Molly Michael receiving an email from John Eastman on December 23rd in front of the defendant, and Molly Michael receiving an email from John Eastman on December 23rd asking to update the defendant on quote, overall strategic thinking unquote, on the defendant's status as a candidate. None of these actions by Michael in which she was merely facilitating communications between the defendant and his private attorneys or private political allies constitute defendant's official conduct.

Molly Michael regularly facilitated the defendant's purely private matters, including communications with his children about Thanksgiving travel. The defendant's reliance on Molly Michael to pass messages to and from personal advisors and friends and family does not render the underlying private communications official. Even if this evidence were deemed official, the government could rebut any presumption of immunity. Even if an official gloss were applied to the defendant's conversations with White House staff pertaining solely to the president's chances as a candidate to successfully challenge the election results, the use of such evidence would not intrude on executive branch functions or authority. Quote, the office of the presidency as an institution is agnostic about who will occupy

it next. Quoting Blasengame. Whatever blurring of the lines might exist between candidate conduct and official conduct and conversation that the president may conduct with his immediate staff, introducing evidence of conversations with dual White House staff members, those who function in both a campaign-related capacity and an official advisory capacity, when they are speaking to the president in his capacity as a candidate or in their campaign-related capacity, does not impede decision-making on matters entrusted to the executive branch.

The Supreme Court required that its rebuttal analysis focus on executive branch authority and functions, not merely on anything that the president might say or do while in the White House. Here the executive branch has no authority or function in the certification of the next president. Accordingly, the use of evidence of White House staffers' campaign capacity discussions with the president about how to challenge state election results, challenges brought in his capacity as a candidate, does not risk impairing the constitutional role

of the executive branch. Other evidence of the defendant's knowledge and intent. The government intends to introduce a trial, additional evidence to prove the defendant's knowledge and intent. These include, one, public statements by federal officials that the defendant did not direct be made, specifically public statements by Attorney General Bill Barr and CISA Director Chris Krebs about the lack of election fraud and foreign interference. Two, evidence that the defendant was reviewing Twitter

and watching television throughout the afternoon of January 6th. And three, the defendant's post-administration statements. None of this evidence will involve testimony from the defendant's executive branch staff about his official actions. The evidence at issue was unofficial. Statements by federal officials.

Bill Barr. In a public statement issued on December 1st, 2020, Attorney General Barr said that the Department of Justice had not seen evidence of fraud sufficient to change the election results and that claims that voting machines had skewed election results were unsubstantiated. Barr decided to make his statement without informing the defendant in advance. He prepared the statement because he had been watching the defendant repeat claims of election fraud publicly, despite direct knowledge from Bill Barr and others that they were false and Bill Barr was growing more and more frustrated

by the defendant's actions. On November 29th, Bill Barr saw the defendant appear on the Maria Bartiromo show and claim among other false things that the Justice Department was quote missing in action and had ignored evidence of fraud. Bill Barr decided it was time to speak publicly in contravention of the defendant's false claims, set up a lunch with a reporter for the Associated Press and made his statement all without informing or seeking permission from the defendant. statement, all without informing or seeking permission from the defendant. The same day, on behalf of the campaign, Rudy Giuliani and Jenna Ellis issued a statement

attacking Bill Barr for his comments. In the days that followed, Steve Bannon acknowledged and criticized Bill Barr's statement during his podcast, asking rhetorically, quote, Is Bill Barr reading the same things we're reading and prompting a guest, Boris Epstein, to comment that, quote, the DOJ has not been following up on these leads as far as we know right now. That statement seemed to be very premature. There's no way one can look at this election in these states and say it was done properly." Bill Barr's statement is not an official act by the defendant. Trump, the immunity decision, treats only the defendant's own acts as potentially immune,

consistent with the, quote, justifying purposes of the immunity to ensure that the president can undertake his constitutionally designated functions effectively free from undue pressures or distortions, unquote. The immunity that the Supreme Court recognized thus does not imply the acts by other government officials can qualify as presidential acts. More to the point, Bilbar's statement does not reveal any official action government officials can qualify as presidential acts. More to the point, Bilbar's statement does not reveal any official action by the defendant

because Bilbar did not give his public statement at the defendant's direction or even with his knowledge. To the contrary, if the defendant had been aware of what Bilbar intended to do, he undoubtedly would have instructed Bilbar not to make the statement. When the defendant learned of Bilbar's statement, he was so angry that Bilbar tendered his resignation. And momentarily, the defendant accepted until Hirshman and Cipollone prevailed upon the defendant to calm down and convinced Bill Barr to delay his departure.

The government does not intend to introduce evidence that implies Bill Barr or his deputies refuted the defendant's fraud claims to him directly. Instead, the government intends to introduce Bill Barr's statement and Rudy Giuliani's campaign response to it, as well as Steve Bannon's recognition and repetition of Bill Barr's statement. All right. We'll be back with Chris Krebs. Stick around. Everybody, welcome back.

We are talking about discussions that are not immune because the president wasn't involved. Next up, Chris Krebs. On November 17th, CISA Director Chris Krebs tweeted a link to an open letter by 59 election security experts and touted it in an effort to promote public confidence in the election's infrastructure. This was similar to what Chris Krebs had done five days earlier on November 12th when he had publicized the joint statement CISA issued with the National Association of Secretaries of State, the National Association of State Election Directors, and other organizations declaring the 2020 election to be, quote, the most secure in American history and that

there was, quote, no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised." On November 17, Chris Krebs promoted the expert report on his own initiative and, as he later learned, contrary to the defendant's wishes. The defendant promptly fired Chris Krebs the same day by tweet. The government does not intend to introduce any evidence about the defendant's removal of Krebs. Rather, as with Bill Barr and his public statement, Chris Krebs' public tweets were not official actions by the defendant and thus are not protected by presidential immunity.

The defendant's use of Twitter and television on January 6th. Forensic evidence from the defendant's iPhone and observations by witnesses otherwise testifying about unofficial acts will establish that upon his return from the ellipse throughout the afternoon on January 6th, the defendant sat in the dining room by the Oval Office where he used his phone to review Twitter and watched the television, which was turned on and displaying news coverage of the riot at the Capitol. As explained in the government's expert notice, an FBI computer analysis response team,

Forensic Examiner, can testify as to the news and social media applications downloaded on the defendant's phone and can describe the activity occurring on the phone throughout the afternoon of January 6th. The phone's activity logs show that the defendant was using his phone and in particular using the Twitter application consistently throughout the day after he returned from the ellipse speech. In addition, Eric Hirschman, Nick Luna and Dan Scavino, each of whom are, as described, otherwise expected to testify about the defendant's unofficial acts, will offer the objective observation that during the afternoon of January 6th, the television in

the defendant's dining room where he spent the day was on and tuned into news programs that were covering in real time the ongoing events at the Capitol. In turn, the government will introduce the authenticated coverage showing what Fox News was playing in real time while the defendant sat in the room with the television on. This evidence is particularly relevant to the defendant's knowledge at the time he issued the 2.24 p.m. tweet, which, as described above, was unofficial. None of this evidence involves testimony about an act by the defendant at all, and it shows what social media and news the defendant privately reviewed in service of issuing a private tweet.

The government will not elicit testimony from the defendant's staffers about his official deliberations, reactions to social media or television, or official actions taken in response. The defendant's review of social media and television news under these particular circumstances was no different from that of any other citizen or candidate, and therefore was unofficial. The defendant's post-administration statements. As the government identified in its Rule 404b notice, the government will introduce some of the defendant's numerous statements that post-date his time as president in which he has blamed Pence and approved of the actions of his supporters who breached the capital and obstructed the certification proceeding, thus providing evidence of his intent on January 6th. The defendant's endorsements of the violent actions of his supporters on January 6th and

his sentiment that they were justified in threatening Mike Pence, all made while the defendant was a private citizen after the end of his term in office, are probative of his intent during the charged conspiracies. The government intends to offer them as evidence of the defendant's intent on January 6th, not as evidence of his official acts. Even if this evidence were deemed official, the government could rebut any presumption of immunity. The use of the evidence regarding former Attorney General Bill Barr and CISA Director Chris Krebs would not intrude on any executive branch authority or functions because the federal official statements

reflected those officials positions, knowledge, and expertise, not presidential acts or direction. The president is quote the only person who alone composes a branch of government. Unquote. But Congress structures the executive branch and assigns manifold specific duties to subordinate officers who in turn execute the law. The president is responsible to take care that the laws be faithfully executed. See U.S. Constitution Article 2, Section 3. But that does not mean that every executive official is at all times performing presidential acts. Allowing

the government to introduce evidence of these independent actions and public statements of subordinate officials in the executive branch not taken at the direction of the president does not intrude on the authority or functions of the executive branch. Nothing in the Supreme Court's Trump immunity decision dictates such an outcome that would effectively bar any executive branch employee from providing evidence against a president who committed crimes in his private capacity. Put concretely, allowing these independent acts of executive branch officials to be used in this prosecution will not chill any presidential conduct and thus any presumption of immunity is overcome. The same is true for testimony by White House staff about the president's review of Twitter or watching public events on television. Assuming for the moment that the president sometimes acts in an official capacity when

watching television or reviewing Twitter, no statute or constitutional provision addresses the matter and using evidence of his activity that virtually all citizens engage in, checking their social media feeds and watching television, does not intrude on any authority or functions of the executive branch. Finally, section four, the conclusion. Based on a fact-bound analysis for the reasons explained above, the court should determine that the conduct described in the factual proffer of section one of this motion is not subject to presidential immunity. As part of this determination, the court should specify four determinations and do so in a single order.

One, that the government has rebutted the presumption of immunity attached to the defendant's official communications with the vice president. And two, that the remaining conduct described in section one, that is, conduct other than the official communications with the vice president, was not official. And in the alternative, that the government has rebutted any presumptive immunity for any of the remaining conduct that the court finds to be official. The government requests alternative rulings regarding rebuttal for all conduct the court finds to be unofficial to buttress the court's record, ensure thorough and efficient appellate review, and minimize

the risk of successive rounds of interlocutory appeal. Furthermore, based on the determination that all the conduct described in Section 1 is not immune from prosecution, and because Section 1 encompasses all the allegations in the superseding indictment, the court should further specify, three, that the defendant is subject to trial on the superseding indictment, and four, that the government is not prohibited at trial from using evidence of the conduct described in Section 1, subject at a later date to nonimmunity-based objections and this court's admissibility rulings under the federal rules of evidence.

Respectfully submitted, Jack Smith Special Counsel signed Molly Gaston Thomas P. Wyndham Senior Assistant Special Counsel with an address in DC. Now, if you're wondering what that last paragraph meant about the order in which Jack Smith wants the judge, Judge Chutkin in this case, to make these determinations, you can listen to this past Sunday's episode of the Jack Podcast. Andy and I break it all down. Thanks again for listening. Please share this with everyone you know who might not have the time to read the immunity brief. And we will see you next Sunday on the Jack Podcast.