A top careerofficial in President Joe Biden’s Justice Department blocked efforts by Senate investigators to probe the handling of voter fraud complaints in the aftermath of the 2020 election, according to transcripts released Thursday.
As Senate Judiciary Committee aides investigating Donald Trump’s efforts to overturn the 2020 election questioned top Trump-era Justice Department officials, a DOJ attorney present for the interviews intervened repeatedly to say such questions were outside the scope of the panel’s inquiry.
The official, DOJ attorney Bradley Weinsheimer — a career official who has worked under attorneys general of both parties — cited guidance he issued in July that paved the way for congressional testimony but limited the topics former DOJ officials were permitted to discuss. But his assertions drew repeated, and sometimes pointed, challenges from Judiciary Committee aides in both parties, the transcripts show.
The special counsel appointed by the Trump administration to scrutinize the Russia investigation obtained a grand jury indictment on Thursday of a prominent cybersecurity lawyer, accusing him of lying to the F.B.I. five years ago during a meeting about Donald J. Trump and Russia.
The indictment secured by the special counsel, John H. Durham, also made public his findings about an episode in which cybersecurity researchers identified unusual internet data in 2016 that they said suggested the possibility of a covert communications channel between the Trump Organization and Alfa Bank, a Kremlin-linked financial institution.
He concluded that the Clinton campaign covertly helped push those suspicions to the F.B.I. and reporters, the indictment shows. The F.B.I. looked into the questions about Alfa Bank but dismissed them as unfounded, and the special counsel who later took over the Russia investigation, Robert S. Mueller III, ignored the matter in his final report.
The charging of the lawyer, Michael A. Sussmann, had been expected. He is accused of falsely telling a top F.B.I. lawyer that he was not representing any client at the meeting about those suspicions. Prosecutors contend that he was instead representing both a technology executive and the Hillary Clinton campaign.
“Sussmann’s false statement misled the F.B.I. general counsel and other F.B.I. personnel concerning the political nature of his work and deprived the F.B.I. of information that might have permitted it more fully to assess and uncover the origins of the relevant data and technical analysis, including the identities and motivations of Sussmann’s clients,” the indictment said.
Mr. Sussmann’s defense lawyers, Sean Berkowitz and Michael Bosworth, have denied the accusation, insisting that he did not say he had no client and maintaining that the evidence against him is weak. They also denied that the question of who Mr. Sussmann was working for was material, saying the FB.I. would have investigated the matter regardless.
Secretary of State Brad Raffensperger is trying to use open records laws to find political motivations behind the DOJ’s lawsuit over Georgia’s voting law.l
Raffensperger filed a Freedom of Information Act request with the U.S. Department of Justice Tuesday seeking any communications, if they exist, between the Department and dozens of his legal and political opponents, the AJC’s Mark Niesse tells us. The request names Stacey Abrams, Fair Fight Action, Black Voters Matter Trust Fund, the 6th District of the African Methodist Episcopal Church and a variety of attorneys and organizations.
Also on the list: the League of Women Voters of Georgia, Latino Community Fund Georgia, Delta Sigma Theta Sorority, Inc., the politically active Black sorority. Many of the groups named in Raffensperger’s request spoke out against Senate Bill 202 when it passed earlier this year.
Even if there were no communications between the Department and the groups, Raffensperger said that would mean the Department of Justice is biased against Georgia. Some Democrat-controlled states have similar voter ID requirements, and they provide fewer early voting opportunities, but they aren’t being sued, he said.
“Either way it’s troublesome because if they came up with this on their own, it means the DOJ has become politicized,” Raffensperger said in an interview. “We want to know who’s pulling their strings, and if they are.”
Kate Benner at the New York Times:
Byung J. Pak, a former U.S. attorney in Atlanta, told congressional investigators on Wednesday that his abrupt resignation in January had been prompted by Justice Department officials’ warning that President Donald J. Trump intended to fire him for refusing to say that widespread voter fraud had been found in Georgia, according to a person familiar with his testimony.
Mr. Pak, who provided more than three hours of closed-door testimony to the Senate Judiciary Committee, stepped down with no notice on Jan. 4, saying that he had done his best “to be thoughtful and consistent, and to provide justice for my fellow citizens in a fair, effective and efficient manner.”
While he did not discuss Mr. Trump’s role in his decision to resign at the time, he told the Senate panel that the president had been dismayed that Mr. Pak had investigated allegations of voter fraud in Fulton County, Ga., and not found evidence to support them, according to the person familiar with the statements.
Donald Trump asked the country’s top legal official in late December about a conspiratorial draft complaint aimed at overturning the 2020 election results, according to a previously unreported account of Trump’s phone call with former acting Attorney General Jeffrey Rosen.
Rosen persuaded Trump the lawsuit wasn’t a good idea, he told Senate investigators last weekend, two sources familiar with his testimony said. The previously unreported details underscore how hard DOJ lawyers worked to shoot down the increasingly harebrained legal strategies that reached the president’s desk.
Politico’s details of Rosen’s testimony are consistent with the Wall Street Journal reporting in January, along with the details of Texas-style litigation detailed by the New York Times in June. But a couple of additional details stand out, including this, from the Office of Legal Counsel:
So when Trump brought up the complaint on their call, the acting attorney general was ready. The complaint had circulated widely enough at the senior levels of government that the department’s Office of Legal Counsel had reviewed it and laid out legal reasons why it was a non-starter. Rosen presented some of these arguments to the president, including arguments related to standing and original jurisdiction, and he told congressional investigators that he persuaded the outgoing president to side with him.
Jeffrey A. Rosen, who was acting attorney general during the Trump administration, has told the Justice Department watchdog and Congressional investigators that one of his deputies tried to help former President Donald J. Trump subvert the results of the 2020 election, according to a person familiar with the interviews.
Mr. Rosen had a two-hour meeting on Friday with the Justice Department’s office of the inspector general and provided closed-door testimony to the Senate Judiciary Committee on Saturday.
The Justice Department’s Office of Inspector General has issued this report. A snippet:
Although some of these media contacts were authorized under the FBI’s media policy, particularly those contacts by individuals working in the FBI’s OPA, many of the others were not. Most of the FBI employees interviewed by the OIG acknowledged their media contacts but denied sharing any non-public law enforcement information during those contacts. Employees interviewed by the OIG generally claimed that they believed their contacts were either authorized by OPA or a field office Special Agent in Charge (SAC) or Assistant Director in Charge (ADIC) to provide background about an FBI initiative or completed investigation, or were personal in nature. Given the absence, in most instances, of any documentary evidence reflecting the substance of these communications, the OIG was unable to determine whether these communications were consistent with the explanations provided by the FBI employees or instead involved the sharing of non-public information with reporters. The OIG received various investigative leads about specific individuals, which helped narrow the focus of the investigation from the dozens of FBI employees who had contact with the reporters. However, the number of employees in communication with these reporters still remained substantial, making it exceedingly difficult, absent an admission, to determine whether any of these FBI employees had in fact disclosed non-public information. Thus, these leads did not ultimately result in the identification of the source(s) of the alleged unauthorized disclosures of non-public information described in the 2016 pre-election report. Accordingly, with the issuance of this report and the July 20, 2021 summary of misconduct findings, the OIG has completed its investigations related to the improper disclosures of non-public information described in the 2016 pre-election report.
Balz observes that new details on the period leading up to January 6 will be crucial to developing a full picture of Trump’s efforts to deny Biden his victory: “The new information is a reminder … that not everything he did was done in plain sight. How much more is there?”
Balz also cautions that Trump’s efforts are still ongoing: “For months, Trump has been on a political jihad. It began the night of the election and has never ended.”
For anyone who doubts that Trump and his supporters remain a serious threat, Balz provides a succinct and useful summary of what we know so far: “every such piece of evidence that comes to light adds to the pattern of a president obsessed with having lost the election and willing, even determined, to undermine the integrity of the election process — of democracy itself.”
Also: a separate story in the Washington Post discusses the issue of the Select Committee issuing subpoenas to members of Congress.
NY Times reports. This news is not directly about election law, but I consider it worthy of note here because of its potential implications for the 2024 presidential election. None of us know whether Trump will attempt to repeat Grover Cleveland’s feat of winning a second term after being a defeated incumbent (and doing so under very different circumstances–Cleveland never was impeached, for example). But I agree with all of those who say that we have to assume that Trump will try, unless circumstances change. One of the circumstances that conceivably could change is developments concerning his tax returns. Although turning them over to Congress should not cause them to be publicly released, congressional leaks have been known to occur (to put it mildly). I don’t want to make too much of this news (today’s other disclosure, concerning DOJ’s notes seems much more significant, for example), but insofar as Trump remains a major threat to American democracy, this particular piece of news is at least somewhat relevant.
Two quotes in Politico’s summary seems especially damning to Trump: “Sir we have done dozens of investig., hundreds of interviews, major allegations are not supported by evid. developed.” And: “Told him flat out that much of the info he is getting is false, +/or just not supported by the evidence”. The recklessness of Trump’s continued repetition of false claims about the election is “flat out” as clear as can be.
The Washington Post provides additional details relating to today’s public release of DOJ notes showing Trump’s effort to overturn the result of the 2020 election. One interesting detail is that Trump did not want to stop this release because he believes any public discussion of the 2020 election helps advance his false claim that it was stolen:
Trump and his lawyers could have sought to block the release of Donoghue’s notes to Congress. There were days of discussion among Trump advisers about whether to do so, but the former president did not believe the notes showed anything problematic, even though some of his advisers feared the disclosures would be damaging.
“If it gets more attention on the election, he welcomes it,” one adviser said.
NY Times reports on notes that Richard P. Donaghue, a DOJ deputy to Acting AG Jeffrey A. Rosen, took of a conversation with then-president Trump. DOJ has turned these notes over to the House Oversight and Reform Committee. According to the Times, the notes include Donaghue telling Trump: “Much of the info you’re getting is false.” Also: “We look at allegations but they don’t pan out,” Trump was told according to the notes.
These notes further support the point that anytime Trump has claimed that the election was stolen from him since learning from the Justice Department, including Bill Barr and his successor, that these claims were baseless, Trump is making statements in reckless disregard of the truth and thus acting outside the protection of the First Amendment. This point may be relevant for civil litigation against Trump, as well as others (like Mike Lindell), but it’s also potentially relevant to possible criminal exposure from repeated reckless falsehoods. Garrison v. Lousiana, 379 U.S. 64 (1964), applied the same “reckless disregard” standard to criminal prosecutions that New York Times v. Sullivan developed for civil litigation. Although the “stolen valor” case (Alvarez) holds that Congress or a state legislature must have a reason to criminalize speech in order for the “reckless disregard” standard to apply, Alvarez recognized both defamation and fraud as longstanding appropriate bases for holding speech to the “reckless disregard” standard. To the extent that Trump, Lindell, and others think that their reckless repetition of disinformation about the 2020 election is protected by the First Amendment, they may be much more vulnerable to liability (both civil and criminal) than they realize.
The Hill reports. Deputy AG Lisa Monaco: “We will promptly and vigorously prosecute offenders to protect the rights of American voters, to punish those who engage in this criminal behavior, and to send the unmistakable message that such conduct will not be tolerated.”
Washington Post reports. We know Trump wanted to overturn the result of the election. What we don’t (yet?) know is the full extent of the lengths he went in this effort and whether anything he did crossed the line into seditious conspiracy under 18 U.S. Code § 2384. There is also the possibility of Trump crossing the line into criminal culpability under 18 U.S. Code § 371, which involves intent to defraud the United States. Trump’s various conversations in December and early January concerning so-called “stop the steal” activities, including those he had with Acting AG Rosen, could potentially be relevant to the inquiries that the Select Committee and the current DOJ are pursuing.