staff, introducing evidence of conversations with dual-hat 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 at 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.
F. Other Evidence of the Defendant's Knowledge and Intent
The Government intends to introduce at trial additional evidence to prove the defendant’s knowledge and intent. These include (1) public statements by federal officials that the defendant did not direct be made (specifically, public statements by Attorney General P52 and CISA Director P50 about the lack of election fraud and foreign interference); (2) evidence that the defendant was reviewing Twitter and watching television throughout the afternoon of January 6; and (3) the defendant's post-Administration statements. None of this evidence will involve testimony from the defendant's Executive Branch staff about his official actions.
1. The evidence at issue was unofficial
- a. Statements by federal officials
- i. P52 (supra p. 46)
In a public statement issued on December 1, 2020, Attorney General P52 said that the Department of Justice had not seen evidence of fraud sufficient to change the election results, and
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