No.

23-939

IN THE

fâÑÜxÅx VÉâÜà Éy à{x hÇ|àxw fàtàxá

__________

DONALD J. TRUMP, Petitioner

v.
UNITED STATES OF AMERICA,
Respondent,
__________
On Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit
__________

BRIEF of AMICUS CURIAE CONDEMNED

USA IN SUPPORTING OF PETITIONER
__________

George T. Pallas, Esq.

GEORGE T. PALLAS, P.A.
2420 Coral Way
Miami, Florida 33145
Telephone: (305) 856-8580
Email: George@PallasLaw.com
Counsel for Amicus Curiae

March 18, 2024

 I. TABLE OF CONTENTS

TABLE OF AUTHORITIES .................. iv

INTEREST OF AMICUS CURIAE ........ 1

INTRODUCTION ................................... 2

SUMMARY OF THE ARGUMENT ........ 4

ARGUMENT .......................................... 7

A. SPECIAL COUNSEL ADDRESSES

THE WRONG QUESTION ... 7

B. CORRECTLY STATING THE

QUESTION RESOLVES THE
ISSUES ................................... 11

C. THE COURT SHOULD UPHOLD

QUALIFIED IMMUNITY ...... 14

D. GOVERNMENT ADMITS THAT

ALLEGATIONS ARE OF
IMMUNE OFFICIAL ACTS .. 17

E. INVALID ALLEGATIONS NEED

NO PRESIDENTIAL IMMUNITY,
MAY BE REJECTED .............. 19

F. MANY OF THE ALLEGATIONS

ARE INDEPENDENTLY
BARRED BY THE FIRST
AMENDMENT ...................... 22

ii
 G. ALTERNATIVE ELECTOR SLATES
ARE OFFICIAL ACTS AND NOT
CAPABLE OF BEING CRIMES ….. 27

H. SPECIAL COUNSEL’S POSITION

CONFLICTS WITH DOJ POLICY .. 29

CONCLUSION ........................................... 31

iii
 II. TABLE OF AUTHORITIES
Cases
Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 20
L.Ed. 646 (1871) .......................................................16
Church v. Missouri, 913 F.3d 736 (8th Cir. 2019) 15
Citizens Against Rent Control/Coalition for Fair
Housing v. Berkeley, 454 U. S. 290, 454 U. S.
294 ...............................................................................26
Elim Romanian Pentecostal Church v. Pritzker,
22 F.4th 701 (7th Cir. 2022) ..................................15
Gardner v. Bangerter, 46 F.3d 1151 (10th Cir.
1993) ...........................................................................14
Holloway v. Walker, 765 F.2d 517 (5th Cir. 1985)............2
INS v. Chadha, 462 U.S. 919 (1983) .........................2
Joseph B. Scarnati, et al. v. Pennsylvania
Democratic Party, et al., Record No. 20-574
(2021) ..........................................................................21
Miller v. Davis, 521 F.3d 1142 (9th Cir. 2008 .......14
Miller v. Davis, 521 F.3d 1142 (9th Cir. 2008) ......15
New York Times Co. v. Sullivan, 376 U. S.
254, 376 U. S. 292, n. 30.........................................23
Stump v. Sparkman, 435 U.S. 349, 362-364, 98
S.Ct. 1099, 55 L.Ed.2d 331 (1978) .......................16
Texas v. Pennsylvania, 592 U.S. ___ (2020) ...........21
The Dred Scott decision, Dred Scott v. John F. A.
Sandford, 60 U.S. 393, 19 How. 393, 15 L. Ed.
691, 1856 WL 8721, 1856 U.S. LEXIS 472 (1857)
......................................................................................17
United States v. Brewster, 408 U.S. 501, (1971) ...15
United States v. Johnson, 383 U.S. 169, 172, 178
(1966) ..........................................................................15
United States v. Joseph Fischer, Record No. 23-
5572, oral argument April 16, 2024. .....................4

iv
Statutes
18 U.S.C. § 1512(c)(2) .......................................................4
18 U.S.C. § 1512(k) ...........................................................4
18 U.S.C. § 241 ..................................................................4
18 U.S.C. § 371 ..................................................................4
3 U.S.C. §§ 1 to 19.....................................................20, 21
First Amendment .........................................................5, 23

Other Authorities
[Donald Trump’s] Motion To Dismiss Indictment
Based On Presidential Immunity, United States
of America v. Donald J. Trump, Case No. 1:23-
cr-000257-TSC, Dkt. # 74, October 5, 2023, Page
14 .................................................................................10
Condemned USA, The Weaponization of Justice in
America. .........................................................................2
February 2020 Memorandum, Attorney General Bill Barr
......................................................................................30
Government’s Petition For A Writ Of Certiorari
Before Judgment, December 2023 .........................8
Memorandum, April 11, 2016, Attorney General
Loretta Lynch to all Department Employees,
“Election Year Sensitivities.” ................................31
Memorandum, March 5, 2008, Attorney General
Michael B. Mukasey to all Department
Employees, “Election Year Sensitivities.” ..........31
Memorandum, March 9, 2012, Attorney General Eric
Holder to all Department Employees, "Election Year
Sensitivities." ...............................................................30
Section 9-85.500 of the Justice Department’s
Justice Manual, ........................................................30

v
III. INTEREST OF AMICUS CURIAE

Condemned USA is a Legal Advocacy Group,

headed by Treniss Evans, which does not provide
legal services but rather promotes public advocacy
about legal issues. It fights to restore the freedom
and unity of under-represented American families.
It often works to help defendants locate attorneys.
It is a united front of Americans dedicated to
sharing the truth that leads to change. 1

Condemned USA, and its founder and leader

Treniss Evans, filed an Amicus Curiae brief in the
Colorado Supreme Court, and the appeal
therefrom to this Court.

Mr. Evans has been investigating and

reporting events of January 6th since January 6th
2021. He was present at the Capitol on that day.
Mr. Evans has served as a consultant & expert for
numerous January 6th cases, including what have
been the largest criminal trials related to January
6th.

Mr. Evans has been featured in numerous

publications and recognized for his work. He has
been interviewed over two hundred times, sought
out for his expertise on the events of January 6th.
He testified before the South Dakota state
legislature.

Condemned USA delivered a white paper to

1
No counsel for a party authored this brief in whole or in part,
and no such counsel or party made any monetary contribution
intended to fund the preparation or submission of this brief.
the House Affairs Committee in the United States
Congress: Weaponization FULL.pdf (hyperlink).

IV. INTRODUCTION

This brief is in support of former President

Donald Trump. 2 The question presented is of
profound significance that implicates the heart of
the architecture of the U.S. Constitution. 3

The Justices of this Court enjoy and require

qualified immunity to be able to do their work.
The Chief Executive, however, does not, according
to the lower courts here and the Special Counsel.

Without at least qualified immunity, neither

this Court nor the lower courts could function. 4
Likewise, military officers, sailors, soldiers, and

2
Trump’s legal team asserts “absolute immunity,”
quoting from relevant precedent. But at present the dispute
is being fought over the existence of any immunity at all.
3
See, e.g., INS v. Chadha, 462 U.S. 919 (1983) (reasoning
from architectural structure of Constitutional government).
4
Precedents discussing “judicial immunity” involve two
different situations, sometimes both: (a) immunity for a
judge’s official duties (b) Eleventh Amendment immunity
contending that the plaintiff could not sue any State official
whether a judge or not. For example,
“Because we find the order denying immunity from
damages is an appealable order, and that Walker is
entitled to the protection of absolute judicial
immunity from damages in this case, we reverse
the district court, and order the dismissal of the
damages action against him. Moreover, we dismiss
all pendent state law claims on eleventh
amendment grounds.”
Holloway v. Walker, 765 F.2d 517 (5th Cir. 1985)

2
airmen must have the same immunity. The
higher the level of a military officer – the more
decision-making discretion he must undertake –
the more important that immunity becomes.

If a President doesn't have immunity from

prosecution for his actions, what prevents Georgia
murder victim Laken Riley's family from suing Joe
Biden for allowing her illegal migrant murderer
into the USA? Or what if hundreds of families all
sued, seriatim? Similarly, with no statute of
limitations, former President Barack Obama could
be prosecuted by some over-zealous prosecutor in
the home state of U.S. citizens killed by drone
strikes on Obama’s orders overseas.5 Tellingly, in
the history of the nation prosecuting actions
within a President’s official authority has never
been seriously considered.

Quite simply, Amicus Curiae urges this Court

to seek as much as feasible one consistent
principle of qualified immunity that shares the
same substance and balancing of official acts or
duties versus what the law calls a “frolic” into
conduct outside of one’s official duties. If possible,
the most desirable result would be a unified
principle. Less would contribute to public
concerns and doubts of picking and choosing
offices, officers, or office-holders. The issue should
be de-personalized by trying to make it uniform.

The indictment here includes two (2) counts

5
Jere Van Dyk, "Who were the 4 U.S. citizens killed in drone
strikes?" May 23, 2013, CBS News,
https://www.cbsnews.com/news/who-were-the-4-us-citizens-killed-in-
drone-strikes/

3
 for violating 18 U.S.C. § 1512(c)(2), and 18 U.S.C.
§ 1512(k) for attempt, of corruptly obstructing,
influencing, or impeding an official proceeding.
The correct interpretation is pending before this
Court on a grant of a writ of certiorari in United
States v. Joseph Fischer, Record No. 23-5572, with
oral argument set for April 16, 2024.

The indictment also includes a long,

unstructured, and vague political narrative of a
civil conspiracy under 18 U.S.C. § 371.

Furthermore, the indictment ends with a

vague claim under 18 U.S.C. § 241 "to injure,
oppress, threaten, and intimidate one or more
persons in the free exercise and enjoyment of a
right and privilege secured to them by the
Constitution...."

However, it should be clearly noticed that the

decision here may also affect other pending cases:

• United States v. Trump, et al., Southern

District of Florida, No. 23-80101
(classified documents case),
• State of Georgia v. Trump, et al., Fulton
County Superior Court, Georgia, 23-SC-
188947 (a more detailed highly-
structured version of the same
allegations and counts here, with an
emphasis on alternative electors).

V. SUMMARY OF THE ARGUMENT

First, the Special Counsel and courts below

have erroneously argued whether a President is

4
immune from prosecution for actions taken
WHILE President – that is during a period of
time.

Trump’s lawyers have argued that any

President, not just himself, is immune from
prosecution for acts taken AS President – that is
the exercise of his duties as President, in keeping
with the broad scope of his position. Trump’s
argument has nothing to do with the time period
but with the nature of the acts, official or
otherwise.

Second, Amicus contends that (a) qualified

immunity inescapably exists, (b) that this
necessarily highlights specific presidential actions
and likely requires review on a case—by—case
basis, but (c) President Trump can never be
prosecuted, whether in office or out, for these
actions which do constitute official acts.

Third, therefore, the lower courts must analyze

each and every one of all the operative criminal
allegations to consider which ones – assuming
they can be valid at all – are official acts.

Most of the individual sub-allegations

independently violate the First Amendment,
Brandenburg v. Ohio, 395 U.S. 444 (1969),. and
NAACP v. Claiborne Hardware.

Fourth, Amicus argues that the actions alleged

are most or all – at least arguably – within any
President’s scope of official duties, including to
make sure that the laws be faithfully executed
with regard to elections, possible foreign

5
interference, and faithfulness to Article II, Section
1, of the U.S. Constitution.

Upon witnessing widespread refusal to

investigate possible crimes and fraud, any
President’s duty comes sharply into focus.
Claiming that we do not need to look because
there would be nothing to find calls for the
Constitutional chief law enforcement officer.

Upon hearing reports of foreign countries

possibly hacking into voting machines, no
President could responsibly or consistent with the
faithful exercise of his duties fail to thoroughly
investigate. Upon seeing massive resistance of
and deflection from any actual investigation (“We
found nothing because we did not want to look” the
quip goes) any conscientious President’s alarm
would have to grow, demanding that the laws be
faithfully carried out. Simply the refusal to
investigate raises independent violations of law
which the President ultimately supervises.

Quite obviously, it would be entirely without

relevance what proper investigations might
eventually turn up. A President’s duty would be
to conduct the inquiries, and to demand that
subordinates comply and cooperate. These acts as
official acts must be measured at the time they are
made, not in the light of hindsight with facts not
then yet known.

It is equally irrelevant if other people declare

differing opinions. When most of the intelligence
community told President Roosevelt “Japan is
never going to attack Pearl Harbor” (because the

6
harbor is too shallow for torpedo bombers to
succeed), he would still have to exercise his own
best judgment regardless of varied opinions. The
idea that a President must believe one side of an
ongoing dispute is untenable.

Fifth, Amicus also argues and contends that

many of the public statements by President
Trump are public versions of his legitimate official
actions within government channels, to keep the
public informed of what is going on – officially.

Sixth, Department of Justice policy has always

compelled Federal prosecutors to avoid bringing
criminal prosecutions close to an election or in any
way that might be perceived as embroiling the
DOJ in election politics. This Court should ensure
what the DOJ should have done and stay this case
until it is no longer in danger of the public
perception of having this Court elect the next
President rather than the voters choosing.

ARGUMENT

A. SPECIAL COUNSEL ADDRESSES

THE WRONG QUESTION

This controversy suffers from a tragic failure

of the parties to join the same question, instead
being like proverbial ships passing in the night.

• The Special Counsel opposes immunity

for acts WHILE one is President.
• Trump argues immunity for acts taken

7
 AS President – that is within the scope
of his official duties.

The Government and Trump are arguing

inconsistent questions, in different universes.

The appropriate framing of the question is

what conduct is within the job of President. This
is very broadly defined because of the nature of
the job. It is also largely defined by any
incumbent President himself given the nature of
Chief Executive of the Executive Branch.

In the Special Counsel’s earlier Petition for

review by this Court before judgment, the
Petitioner began with the explanation of its focus:

QUESTION PRESENTED

Whether a former President is

absolutely immune from federal
prosecution for crimes committed
while in office or is constitutionally
protected from federal prosecution
when he has been impeached but not
convicted before the criminal
proceedings begin.

Government’s Petition For A Writ Of Certiorari

Before Judgment, Dec. 2023 (emphasis added).6

Yet Trump’s original motion asserting

6
https://www.supremecourt.gov/DocketPDF/23/23-
624/292946/20231211144948077_U.S.%20v.%20Donald%20J
.%20Trump%20--%20final%20final.pdf

8
presidential immunity described the question
differently:

“In view of the special nature of the

President’s constitutional office and
functions,” a current or former President
has “absolute Presidential immunity from
[civil] damages liability for acts within
the ‘outer perimeter’ of his official
responsibility.” Fitzgerald, 457 U.S. at
756 (quoting Barr, 360 U.S. at 575). No
court has addressed whether such
Presidential immunity includes immunity
from criminal prosecution for the
President’s official act. The question
remains a “‘serious and unsettled question’
of law.” See id. at 743 (citation omitted)
(holding “[i]n light of the special solicitude
due to claims alleging a threatened
breach of essential Presidential
prerogatives under the separation of
powers,” issues of Presidential immunity
were “serious and unsettled”). In
addressing this question, the Court should
consider the Constitution’s text, structure,
and original meaning, historical practice,
the Court’s precedents and immunity
doctrines, and considerations of public
policy. See id. at 747.

[Donald Trump’s] Motion To Dismiss Indictment

Based On Presidential Immunity, United States of
America v. Donald J. Trump, Case No. 1:23-cr-

9
000257-TSC, Dkt. # 74, October 5, 2023, Page 14
(emphases added). 7

Note also that Trump’s attorneys consistently

use the phrase “acts within the ‘outer perimeter’ of
his official responsibility.” This does not mean
acts that are dubious, improbable, or at the fringe.
Trump’s attorneys could have said acts “up to” the
‘outer perimeter,’ except that they were quoting
from precedent. Everything within the outer
perimeter of the President’s authority is immune.

B. CORRECTLY STATING THE

QUESTION RESOLVES THE ISSUES

Once the question is correctly stated, the

answer appears clearly, immediately, and without
difficulty. The Court of Appeals panel tripped
over a mistaken concept of the case:

7
Since the issue is not a time period, it is possible for immunity to
attach to actions after a President’s term of office ends. For example,
it is obligatory for an outgoing President to move out and vacate the
White House residence and Oval Office and all offices so that the new
President can move in. If a President were still doing that after 12:00
on January 20, perhaps while the new President were still speaking at
the Capitol, that would still be part of the job regardless of when it
was performed. If running out of time, the President tossed various
items including documents into boxes – or rather directed General
Services Administration staff to do so – that would be part of the job
still left undone at Noon on January 20. If a year later or many years
later a President were following the statutory process for sorting out
Presidential documents with the National Archives and Record
Administration, this would be a statutory requirement of the job of
President, even after his term. As a consequence of having been
President, the statute would impose rights and duties, for which she
would be immune. If a new President commissioned a past President
to represent the United States at the funeral of a foreign leader, would
anyone think the past President was acting on his own as an
individual? This issue is what, not when.

10
 Can a President order Seal Team Six to
assassinate a political opponent, the Panel asked?
No. Do the official duties of a President include
assassinating political opponents? No. So
immunity does not apply.

Would it be part of a President’s official duties

to order Seal Team Six to rig the World Series so
that the Boston Red Sox could win a pennant? No.

If a President stole a journalist’s car, drove to

a bar, got drunk, and then killed a pedestrian
while driving drunk, his status as President would
be irrelevant. The test is whether those acts are
part of the job of being President. No.

Might courts sometimes need to resolve

runaway sophistry? Yes. 8

The correct legal analysis is a familiar one of

the scope of an official’s authority. To be sure, the
most weighty and complex circumstances are
involved, with duties arising under the U.S.
Constitution concerning the executive leadership
of the U.S. Government.

But the concepts are familiar. The only real

complexity is that as the Chief Executive of the
U.S. Government under the Constitution, a
President has immense latitude and authority to
define the scope of her own authority, because

8
The Constitution makes no mention of an Attorney General, a
Department of Justice, Federal Bureau of Investigation, or federal
prosecutors. The President is “it” as head of law enforcement.

11
deciding what priorities need to be focused on is
part of a President’s job and prerogative.

In the 2020 election we know many States’

statutory rules pursuant to Article II, Section
were violated. 9 Does the President’s duty to “take
care that the laws be faithfully executed” include
the duty to ensure that election fraud does not
occur? Yes.

However, it is also within the role of a

President to evaluate and decide that a President
ought to review the integrity of an election.

Whether anyone dislikes a President’s decision

to investigate the integrity of an election, it is
within his discretionary authority.

That is, any President’s discretion in carrying

out her duties to see to it that the laws be
faithfully executed is not subject to the approval or
commentary of law professors, political rivals, or
even courts. Courts must acknowledge the scope
of a President’s discretion in interpreting his
official duties. This is not a question of what
anyone likes or dislikes.

9
In Joseph Scarnati, in 2020-2021, an Amicus brief by the White
House Watch Fund, attorney David Caroll, emphasized that when
States appoint Electoral College electors they are wielding Federal
authority – not State – under the U.S. Constitution, Art. II, Sec. 1.
Thus, any departure from the State legislature’s statutory rules such as
a massive vote-by-mail scheme is a stolen election. No State or local
official, Governor, etc. can rewrite the election system in mid-stream.

12
 C. THE COURT SHOULD UPHOLD
QUALIFIED IMMUNITY

The parties note the scarcity of precedents on

the key points, however the position of a Governor
as Chief Executive of his State or a judge provide
parallel analyses:

In all likelihood, the Attorney General

and Governor are entitled to absolute
immunity on these facts. See Butz v.
Economou, 438 U.S. 478 (1978)
(prosecutors entitled to absolute
immunity); see also Eastland v. United
States Servicemen's Fund, 421 U.S.
491 (1975) (legislators entitled to
absolute immunity for legislative
functions).

Even if we assume that the

Defendants were performing a
discretionary rather than ministerial
function in signing and enforcing a
law, it is unmistakably clear that the
Defendants are entitled to qualified
immunity because their conduct was
objectively legally reasonable. Harlow
v. Fitzgerald, 457 U.S. 800 (1982);
Davis v. Sherer, 468 U.S. 183 (1984);
Anderson v. Creighton, 483 U.S. 635
(1987). The Appellants have not even
come close to carrying their burden of
convincing the court that the
Defendants violated a clearly
established constitutional right of
which a reasonable person would have

13
 known. Hilliard v. City and County of
Denver, 930 F.2d 1516 (10th Cir.1991).
We think that the Governor and
Attorney General are entitled to sign
and enforce a facially valid law
without fear of personal liability.
Gardner v. Bangerter, 46 F.3d 1151 (10th Cir.
1993)

Although Governor Davis's review of

Miller's parole grant, based on his
erroneous reading of Article V, § 8(b),
was in excess of his authority, it was
not an act done in the "clear absence of
all jurisdiction." Cf. Schucker v.
Rockwood, 846 F.2d 1202, 1204 (9th
Cir.1988) (holding that a judge who
"misinterpreted a statute and
erroneously exercised jurisdiction" did
not act in the "clear absence of all
jurisdiction").

Accordingly, Governor Davis is

entitled to absolute quasi-judicial
immunity for his reversal of the
Board's decisions granting Miller
parole.6
Miller v. Davis, 521 F.3d 1142 (9th Cir. 2008)

"And if we were to ignore the 'official

capacity' language that the
complaints used to describe Governor
Pritzker's status, the churches still
could not obtain damages, because
the Governor would be entitled to
qualified immunity."

14
Elim Romanian Pentecostal Church v. Pritzker,
22 F.4th 701 (7th Cir. 2022); Accord, Church v.
Missouri, 913 F.3d 736 (8th Cir. 2019).

Meanwhile, the Speech and Debate Clause of

the U.S. Constitution, Article I, Section 6, Clause
1 provides that Members of Congress cannot be
made to answer for “legislative acts” in Congress.
However, other actions can be prosecuted. United
States v. Brewster, 408 U.S. 501, (1971). This
Clause is limited to Congress, but it does endorse
the immunity concept. This Court has interpreted
the Clause very broadly. United States v.
Johnson, 383 U.S. 169, 172, 178 (1966). Thus
while it does not mandate immunity for other
officers or branches of Government, it does suggest
that presidential immunity is not unreasonable.

The analysis parallels judges, since a judicial

act is very broad and varied like a President’s
duties:

Liability to answer to everyone who

might feel himself aggrieved by the
action of the judge, would be
inconsistent with the possession of this
freedom, and would destroy that
independence without which no
judiciary can be either respectable or
useful.
***
Nor can this exemption of the judges
from civil liability be affected by the
motives with which their judicial acts
are performed. The purity of their

15
 motives cannot in this way be the
subject of judicial inquiry.
***
Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 20
L.Ed. 646 (1871)

Furthermore, as even respondents have

admitted, at the time he approved the
petition presented to him by Mrs.
McFarlin, Judge Stump was "acting as a
county circuit court judge." See supra,
at 360. We may infer from the record
that it was only because Judge Stump
served in that position that Mrs.
McFarlin, on the advice of counsel,
submitted the petition to him for his
approval....
***
Disagreement with the action taken by
the judge, however, does not justify
depriving that judge of his immunity.
Despite the unfairness to litigants that
sometimes results, the doctrine of
judicial immunity is thought to be in the
best interests of "the proper
administration of justice . . . [, for it
allows] a judicial officer, in exercising
the authority vested in him [to] be free
to act upon his own convictions, without
apprehension of personal consequences
to himself." Bradley v. Fisher, 13 Wall.,
at 347.

Stump v. Sparkman, 435 U.S. 349, 362-364, 98

S.Ct. 1099, 55 L.Ed.2d 331 (1978).

16
 Suppose Justices allow a capital murder
conviction and execution to stand, and the convict
is put to death. Then DNA evidence is discovered
proving the convict was innocent. Can the
Honorable Justices be sued by survivors or worse
prosecuted for the exercise of their
Constitutionally appointed duties? Of course not.

A decision widely regarded as not merely

wrong, but unnecessarily invasive over-stepping of
this Court’s role and outside the legitimate needs
of this Court (though likely attempting to heal a
looming rift in U.S. society), The Dred Scott
decision, Dred Scott v. John F. A. Sandford, 60
U.S. 393, 19 How. 393, 15 L. Ed. 691, 1856 WL
8721, 1856 U.S. LEXIS 472 (1857), is widely
considered an awful decision. But beyond all
doubt those Justices 166 years ago were immune
when doing their duty as best they knew how
under the laws and constitution as they had them.

Yet an angry crowd urge that a core

component of this Court’s functioning should be
denied to a President because “We don’t like him.”
If there is any constitutional principle important
for this Court to uphold is that the Constitution,
its interpretation, and its application must govern
the same regardless of who is involved or affected,
whether we like them or dislike them.

D. GOVERNMENT ADMITS THAT

ALLEGATIONS ARE OF
IMMUNE OFFICIAL ACTS

In Paragraph 10 (“Manner and Means”) the

Indictment states that:

17
 c. The Defendant and co-conspirators
attempted to use the power and
authority of the Justice Department
to conduct sham election crime
investigations and to send a letter to
the targeted states that falsely
claimed that the Justice Department
had identified significant concerns
that may have impacted the election
outcome; that sought to advance the
Defendant’s fraudulent elector plan
by using the Justice Department’s
authority to falsely present the
fraudulent electors as a valid
alternative to the legitimate electors;
and that urged, on behalf of the
Justice Department, the targeted
states’ legislatures to convene to
create the opportunity to choose the
fraudulent electors over the
legitimate electors.

The Indictment thereby admits that the

actions alleged constitute official acts of the
President, whether or not the wrong decisions. It
is essential to keep in view that the exercise is not
to judge the wisdom of an official’s decisions, but
whether working with the Justice Department is
plausibly within his official acts.

Of equally strong interest, the allegation is

that the attempt was to “urge[], on behalf of the
Justice Department, the targeted states’
legislatures to convene to offer the opportunity to
choose the fraudulent electors over the legitimate

18
electors.”

Thus, the Indictment further admits that the

result of Trump’s efforts would have been for the
State legislatures to decide who are the legitimate
electors. That is, both as alleged and as proven
fact, Trump wanted the correct and authorized
decision-makers under Article II, Section 1, to
make (and confirm) their decision.

There is clearly no crime and no wrong in

asking the duly authorized body empowered to
select Electors to the Electoral College to do
exactly what it is called and empowered to do.

As a rule, this Court should decide that an

act that is already proper and legal cannot be a
non-immune act. To ask the proper authority to
do its job correctly cannot be prosecuted.

E. INVALID ALLEGATIONS NEED

NO PRESIDENTIAL IMMUNITY,
MAY BE REJECTED

Naturally, criminal allegations that can only

be resolved on the evaluation of conflicting
admissible evidence at trial are not susceptible of
a motion to dismiss before trial on the basis of
presidential immunity. (However, after the full
evidence, a second look might be warranted.)

Nevertheless, before we consider whether

Trump has presidential immunity for allegations
of criminal misconduct, those allegations must be
valid and relevant. If individual allegations state
no crime nor support any crime, it is unnecessary

19
to test them under presidential immunity
analysis. Here, most fail quite convincingly. Yet
the Court should make clear that invalid
allegations cannot proceed to trial.

Allegations of creating two sets of electors

when everyone knows that one of the slates is the
purported official one while the second is clearly
part of a dispute cannot constitute any form of
fraud. Fraud requires reasonable reliance on
misrepresentation (concealment).

While the brief here by Alabama and 21 States

is excellent, the Government’s misrepresentation
was unchallenged “that Trump [allegedly] used
[documents] to pressure Pence not to certify
the election.”
https://www.supremecourt.gov/DocketPDF/23/23A
745/300793/20240216132806756_States%20Brief%
20in%20Trump%20v%20US%20FINAL%202.16.24
.pdf

A main point of the Indictment here and in

Georgia is that Trump and his supporters sought
to stop the “certification” of the election which had
already occurred on December 23, 2020.

There is no certification on January 6 and

neither Trump nor his followers could commit any
such crime. It is impossible.

A Vice President never “certifies” an election.

Amendment 12 of the U.S. Constitution calls upon
the presiding officer of the Senate to “count” the
votes in the presence of the Joint Session of
Congress. (Actually under the ECA, two tellers

20
are appointed who tally the Electoral College
totals and report the math to the Vice President.)

Neither 3 U.S.C. §§ 1 to 19 before or after its

2022 amendment refers to the presiding officer
“certifying” any election. See:
https://www.govinfo.gov/content/pkg/USCODE-
2011-title3/html/USCODE-2011-title3.htm The
count may be affected by Congressional objections,
but the count is only mathematics.

Trump and others urged Pence to let the

States re-certify their electoral college counts by
inquiring if the States remained certain of their
electoral college votes. In Georgia, lawyers are
being prosecuted for giving legal advice about
whether the Vice President could inquire of, or
send back to, the States their certificates of the
Electoral College votes to let those States decide.

Therefore, if Trump had prevailed he would

have received only that result chosen by that
named body exclusively empowered to decide
under Article II, Section 1. His efforts were to let
the proper authorities make their proper decision.

This Court was asked to address rampant

violations of state legislature rules about voting by
ad hoc rewriting of election rules during COVID-
19. However, this Court avoided decisions, such
as in Texas v. Pennsylvania, 592 U.S. ___ (2020)
and Joseph B. Scarnati, et al. v. Pennsylvania
Democratic Party, et al., Record No. 20-574 (2021).

About 20 States demanded that this Court

address widespread non-compliance of election

21
officials with States’ laws. Forty per cent of the
Union contested the validity of the 2020 election.

Thus the resolution of what allegations are

official acts should reject allegations that state no
crime and are invalid within the context of this
case. Those may not go to trial, harassing a
former President for the exercise of his duties.

F. MANY OF THE ALLEGATIONS ARE

INDEPENDENTLY BARRED BY THE
FIRST AMENDMENT

Overwhelmingly, the criminal allegations

against Donald Trump are that he believed things
he was not supposed to believe, that people
disagree with him, and he continues to believe
what he believed even though other people do not;
and Trump also said things people don’t like, that
they wouldn’t have said, and they think are false.

No matter how Trump’s detractors seek to

dress it up, it is impossible upon diligently looking
to miss the gravamen of the prosecution: He said
things we don’t agree with. He believes things we
don’t believe. He tried to explain to the public how
his detractors are incorrect. It is a crime for
Trump to say things we don’t agree with.

All First Amendment precedents and

especially Brandenburg v. Ohio, 395 U.S. 444
(1969) and NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982) bar prosecution. The First
Amendment prevents prosecution on these facts.
It is meritless to complain that the First
Amendment does not protect crime, because

22
nothing of the sort is at issue before the Court
now.

Under the First Amendment, there

is no such thing as a false idea.
However pernicious an opinion
may seem, we depend for its
correction not on the conscience of
judges and juries but on the
competition of other ideas").

Gertz v. Robert Welch, Inc., 418 U. S. 323, 418

U. S. 339-340 (1974) (concurring opinion / dissent).

Since the Fourteenth Amendment

requires recognition of the
conditional privilege for honest
misstatements of fact, it follows
that a defense of fair comment must
be afforded for honest expression of
opinion based upon privileged, as
well as true, statements of fact.

New York Times Co. v. Sullivan, 376 U. S.

254, 376 U. S. 292, n. 30 (1964) (emphasis added).

This Court should order that all Presidents

are immune from prosecution for the exercise of
free speech and petition for redress protected by
the First Amendment. One does not lose her First
Amendment rights on account of being President.

As disturbing as was the original subject

matter in 1960s threats, this Court has spoken in
Brandenburg v. Ohio, 395 U.S. 444 (1969).

23
 A reporter covered a large gathering
described by the Ohio KKK as organizing,
what was to be:

"We are marching on Congress July the

Fourth, four hundred thousand strong.
From there we are dividing into two groups,
one group to march on St. Augustine,
Florida, the other group to march into
Mississippi. Thank you."

The U.S. Supreme Court determined that

These later decisions have fashioned the

principle that the constitutional
guarantees of free speech and free press
do not permit a State to forbid or
proscribe advocacy of the use of force or of
law violation except where such advocacy
is directed to inciting or producing
imminent lawless action and is likely to
incite or produce such action. * * * A
statute which fails to draw this
distinction impermissibly intrudes upon
the freedoms guaranteed by the First and
Fourteenth Amendments. It sweeps
within its condemnation speech which
our Constitution has immunized from
governmental control. Cf. Yates v. United
States, 354 U.S. 298 (1957); De Jonge v.
Oregon, 299 U.S. 353 (1937); Stromberg
v. California, 283 U.S. 359 (1931). See
also United States v. Robel, 389 U.S. 258
(1967); Keyishian v. Board of Regents,
385 U.S. 589 (1967); Elfbrandt v. Russell,
384 U.S. 11 (1966); Aptheker v. Secretary

24
 of State, 378 U.S. 500 (1964); Baggett v.
Bullitt, 377 U.S. 360 (1964).
***

NAACP v. Claiborne Hardware Co., 458 U.S.

886 (1982) is strikingly similar to the allegations
now against Trump, although of course concerning
racial discrimination instead of election integrity.
(Emphasis added.)

The boycott of white merchants in

Claiborne County, Miss., that gave rise to
this litigation had such a character; it
included elements of criminality and
elements of majesty.10 Evidence that
fear of reprisals caused some black
citizens to withhold their patronage from
respondents' businesses convinced the
Supreme Court of Mississippi that the
entire boycott was unlawful, and that
each of the 92 petitioners was liable for
all of its economic consequences.
Evidence that persuasive rhetoric,
determination to remedy past injustices,
and a host of voluntary decisions by free
citizens were the critical factors in the
boycott's success presents us with the
question whether the state court's
judgment is consistent with the
Constitution of the United States.
***

10
Critics are sent into fits of rage at any suggestion that
different people did different things on January 6 around the
750-foot-long Capitol building. They were not automatons.

25
 The Mississippi Supreme Court quoted
from the trial court:

In carrying out the agreement and design,

certain of the defendants, acting for all
others, engaged in acts of physical force
and violence against the persons and
property of certain customers and
prospective customers. Intimidation,
threats, social ostracism, vilification, and
traduction were some of the devices used
by the defendants to achieve the desired
results.
***

This U.S. Supreme Court decided that:

* * * As we so recently acknowledged
in Citizens Against Rent
Control/Coalition for Fair Housing v.
Berkeley, 454 U. S. 290, 454 U. S.
294,

"the practice of persons sharing

common views banding together
to achieve a common end is
deeply embedded in the American
political process."

We recognized that, "by collective effort,

individuals can make their views known
when, individually, their voices would
be faint or lost." Ibid. * * *

***
This Supreme Court concluded:

26
 The right to associate does not lose
all constitutional protection merely
because some members of the group
may have participated in conduct or
advocated doctrine that itself is not
protected.

Therefore, most allegations against Trump

are prohibited by the immunity of the First
Amendment. We focus on the remaining
allegations to try to resolve this case here. See
Table, attached.

G. ALTERNATIVE ELECTOR SLATES

ARE OFFICIAL ACTS AND
THEREFORE NOT CAPABLE OF
BEING CRIMES

One of the most serious allegations is of

creating alternative slates of electors. It appears
that there are no allegations of Defendant Trump
taking any action concerning these bogus charges.

This is historical and legal ignorance.

Presenting alternative slates of electors is
required where there is a dispute so that the
Congress or the courts can choose one. For
example, if it were contended that a will dated
1991 was invalid but the will dated 1993 is the
correct one, any court would want to see both.

Hawaii was praised by courts for doing so in

1960. “1960: Hawaii Sends Two Slates to
Electoral College,” Hawai’i Free Press, October
26, 2020,

27
https://www.hawaiifreepress.com/Articles-
Main/ID/26628/1960-Hawaii-Sends-Two-Slates-to-
Electoral-College. (“Kennedy eventually was
declared the winner in the Hawaii recount by 115
votes, but the two sets of certifications were
waiting when the joint session of Congress
convened. Democrats, including Rep. Daniel
K. Inouye, were ready to lodge an objection if the
GOP slate was counted, but the presiding officer
— the Senate president, who also is the vice
president: i.e., Nixon — pushed the issue aside.”)

In 2020, supporters of Donald Trump’s re-

election copied the John F. Kennedy 1960
alternative slate of electors word for word, format
for format, precisely. But apparently when JFK
did it, it was good. When Trump does it, it’s bad.

Presenting alternative slates of electors is a

necessary part of an election contest. It cannot be
a crime nor an element supporting a crime.

Moreover, there can legally be no fraud or any

species like it. Fraud requires reasonable reliance
upon a misrepresentation, basically concealing the
truth. Here, the entire planet to the extent having
news access knew which States certified Electoral
College victories for Joe Biden instead of Trump.

Presenting two slates of alternative electors is

incapable of being fraud where there is no
concealment. Any reasonable person knew there
to be a dispute with one slate of electors being the
Biden electors certified to be correct and the
Trump electors offered in dispute as a substitute –
all out in the open in the light of day for all to see.

28
 Therefore, the allegations upon which this
Indictment crucially rests do not state any crime
nor any element of any crime nor do they support
any finding of any crime. Everyone knew and
would immediately know that two slates are being
offered in a dispute, not that the Trump slate was
the one and only slate of electors.

H. SPECIAL COUNSEL’S POSITION

CONFLICTS WITH DOJ POLICY

There is no compelling reason for a quick trial

when criminal prosecution near to an election is
officially prohibited by DoJ policy. Because this
case violates DoJ policy, long-standing and well-
established, all affected cases should be stayed
until December 2024 or after

Federal prosecutors and agents may

never select the timing of any action,
including investigative steps, criminal
charges, or statements, for the purpose of
affecting any election, or for the purpose
of giving an advantage or disadvantage to
any candidate or political party. Such a
purpose is inconsistent with the
Department’s mission and with the
Principles of Federal Prosecution. See §
9-27.260. Any action likely to raise an
issue or the perception of an issue under
this provision requires consultation with
the Public Integrity Section, and such
action shall not be taken if the Public
Integrity Section advises that further

29
 consultation is required with the Deputy
Attorney General or Attorney General.

Section 9-85.500 of the Justice Department’s

Justice Manual, https://www.justice.gov/jm/jm-9-
85000-protection-government-integrity#9-85.500

Simply put, politics must play no role in

the decisions of federal investigators or
prosecutors regarding any investigation or
criminal charges. Law enforcement
officers and prosecutors may never select
the timing of investigative steps or
criminal charges for the purpose of
affecting any election, or the purpose of
giving an advantage or disadvantage to
any candidate or political party.

Memorandum, March 9, 2012, Attorney General

Eric Holder to all Department Employees,
"Election Year Sensitivities."11

In a February 2020 Memorandum, Attorney

General Barr endorsed these and went further. 12

[Republished verbatim]
Memorandum, April 11, 2016, Attorney General
Loretta Lynch to all Department Employees,

11
https://www.justice.gov/sites/default/files/oip/legacy/2014/0
7/23/ag-memo-election-year-sensitivities.pdf
12
Pete Williams," Barr says no investigations into 2020
candidates, campaigns without his approval," NBC News,
February 6, 2020. https://www.nbcnews.com/politics/justice-
department/barr-says-no-investigations-2020-candidates-
campaigns-without-his-approval-n1131836

30
“Election Year Sensitivities.”13

[Nearly Identical]
Memorandum, March 5, 2008, Attorney General
Michael B. Mukasey to all Department Employees,
“Election Year Sensitivities.”14

The claims of the indictment track the

February 2021 impeachment. They are nearly
identical to the February 16, 2021, Complaint in
the lawsuit of Bennie Thompson v. Donald Trump,
et al., Case 1:21-cv-0400-APM, which was
Amended on April 7, 2021.

A deeply distrustful and angry public needs to

see at this moment perhaps more than in decades
the U.S. Supreme Court following the straight and
narrow path in normalcy, that Justice is wearing
her blindfold. There may be no other institution
at this troubled moment that can stand above the
passions of bias and prejudice.

VI. CONCLUSION

The Supreme Court should develop and/or

affirm a single uniform concept of immunity, and
bar prosecution of official acts as identified in the
attached table of allegations.

Respectfully submitted, BY COUNSEL

/s/ George T. Pallas, Esq.

13
https://s3.documentcloud.org/documents/4439553/Election-
Year-Sensitivities-2016.pdf
14
https://www.justice.gov/sites/default/files/ag/legacy/2009/02
/10/ag-030508.pdf

31
GEORGE T. PALLAS, P.A.
2420 Coral Way
Miami, Florida 33145
Telephone: (305) 856-8580
Email: George@PallasLaw.com

32