WaPo: Justice Department Investigating Trump’s Actions In Jan. 6 Criminal Probe; Focus On ‘Fake Electors’ Scheme

Above: Some of Rudy Giuliani’s “Elite Strike Force” team of corrupt Republican lawyers and Coup Plotters, co-conspirators in a seditious conspiracy to overturm the 2020 election.

In an exclusive, the Washington Post reports Justice Dept. investigating Trump’s actions in Jan. 6 criminal probe:

The Justice Department is investigating President Donald Trump’s actions as part of its criminal probe of efforts to overturn the 2020 election results, according to four people familiar with the matter.

Prosecutors who are questioning witnesses before a grand jury — including two top aides to Vice President Mike Pence — have asked in recent days about conversations with Trump, his lawyers, and others in his inner circle who sought to substitute Trump allies for certified electors from some states Joe Biden won, according to two people familiar with the matter. Both spoke on the condition of anonymity to discuss an ongoing investigation.

The prosecutors have asked hours of detailed questions about meetings Trump led in December 2020 and January 2021; his pressure campaign on Pence to overturn the election; and what instructions Trump gave his lawyers and advisers about fake electors and sending electors back to the states, the people said. Some of the questions focused directly on the extent of Trump’s involvement in the fake-elector effort led by his outside lawyers, including John Eastman and Rudy Giuliani, these people said.

In addition, Justice Department investigators in April received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows, according to two people familiar with the matter. That effort is another indicator of how expansive the Jan. 6 probe had become, well before the high-profile, televised House hearings in June and July on the subject.

The Washington Post and other news organizations have previously written that the Justice Department is examining the conduct of Eastman, Giuliani and others in Trump’s orbit. But the degree of prosecutors’ interest in Trump’s actions has not been previously reported, nor has the review of senior Trump aides’ phone records.

The revelations raise the stakes of an already politically fraught probe involving a former president, still central to his party’s fortunes, who has survived previous investigations and two impeachments. Long before the Jan. 6 investigation, Trump spent years railing against the Justice Department and the FBI; the investigation moving closer to him will probably intensify that antagonism.

Federal criminal investigations are by design opaque, and probes involving political figures are among the most closely held secrets at the Justice Department. Many end without criminal charges. The lack of observable investigative activity involving Trump and his White House for more than a year after the Jan. 6 attack has fueled criticism, particularly from the left, that the Justice Department is not pursuing the case aggressively enough.

In trying to understand how and why Trump partisans and lawyers sought to change the outcome of the election, one person familiar with the probe said, investigators also want to understand, at a minimum, what Trump told his lawyers and senior officials to do. Any investigation surrounding the effort to undo the results of the election must navigate complex issues of First Amendment-protected political activity and when or whether a person’s speech could become part of an alleged conspiracy in support of a coup.

Many elements of the sprawling Jan. 6 criminal investigation have remained under wraps. But in recent weeks the public pace of the work has increased, with a fresh round of subpoenas, search warrants and interviews. Pence’s former chief of staff, Marc Short, and lawyer, Greg Jacob, appeared before the grand jury in downtown Washington in recent days, according to the people familiar with the investigation. Both men declined to comment.

The Justice Department efforts are separate from the inquiry underway by the House committee, which has sought to portray Trump as responsible for inciting the Capitol riot and for being derelict in his duty for refusing to stop it. Both Short and Jacob have testified before the committee, telling lawmakers that Pence resisted Trump’s attempts to enlist him in the cause.

Unlike the Justice Department, the House panel does not have the power to launch criminal investigations or charge anyone with wrongdoing.

The Justice Department probe began amid the smoke, blood and chaos at the Capitol and has led to criminal charges against more than 840 individuals, expanding to include an examination of events that occurred elsewhere in the days and weeks before the attack — including at the White House, in state capitols and at a D.C. hotel.

There are two principal tracks of the investigation that could ultimately lead to additional scrutiny of Trump, two people familiar with the situation said, also speaking on the condition of anonymity to discuss an ongoing investigation.

The first centers on seditious conspiracy and conspiracy to obstruct a government proceeding, the type of charges already filed against individuals who stormed the Capitol on Jan. 6 and on two leaders of far-right groups, Stewart Rhodes and Henry “Enrique” Tarrio, who did not breach the Capitol but were allegedly involved in planning the day’s events.

The second involves potential fraud associated with the false-electors scheme or with pressure Trump and his allies allegedly put on the Justice Department and others to falsely claim that the election was rigged and votes were fraudulently cast.

[A]ttorney General Merrick Garland has vowed that the Jan. 6 investigation will follow the facts wherever they lead and said that no one is exempt or above scrutiny, while refusing to divulge information outside of court filings.

Garland told NBC News in a Tuesday interview that the department pursues justice “without fear or favor. We intend to hold everyone, anyone, who was criminally responsible for the events surrounding January 6th, for any attempt to interfere with the lawful transfer of power from one administration to another, accountable — that’s what we do. We don’t pay any attention to other issues with respect to that.”

The Jan. 6 investigation is by some measures the largest ever undertaken by the Justice Department. While investigators in nearly every part of the country have been involved, the lion’s share of the work is being done by three offices: the U.S. attorney’s office in the District of Columbia, and the criminal and national security divisions at department headquarters.

[T]he fake-elector scheme has become a major focus of the Justice Department inquiry. After Trump lost the election, lawyers and others close to him urged GOP officials in key states to submit alternate and illegitimate slates of electors to reject the results of the state vote totals. Those would-be electors were aided in their effort by Trump campaign officials and Giuliani, who said publicly that the rival slates were necessary and appropriate, and has been described as overseeing the strategy.

Last month, federal agents fanned out in multiple states to serve grand jury subpoenas, execute search warrants and interview witnesses — a significant escalation of overt investigative activity. As part of that effort, agents searched Eastman’s electronic devices, and conducted a search at the home of Jeffrey Clark, a former Justice Department official who enthusiastically embraced some of Trump’s last-ditch efforts to stop Biden from becoming president. Many of those who received subpoenas were told specifically to turn over their communications with Giuliani.

The Justice Department inspector general is also an important player in the investigation, as it examines Clark’s role as a department official in allegedly furthering the efforts.

The New York Times adds more details to the “fake electors” scheme, ‘Kind of Wild/Creative’: Emails Shed Light on Trump Fake Electors Plan:

Previously undisclosed emails provide an inside look at the increasingly desperate and often slapdash efforts by advisers to President Donald J. Trump to reverse his election defeat in the weeks before the Jan. 6 attack, including acknowledgments that a key element of their plan was of dubious legality and lived up to its billing as “fake.”

The dozens of emails among people connected to the Trump campaign, outside advisers and close associates of Mr. Trump show a particular focus on assembling lists of people who would claim — with no basis — to be Electoral College electors on his behalf in battleground states that he had lost.

In emails reviewed by The New York Times and authenticated by people who had worked with the Trump campaign at the time, one lawyer involved in the detailed discussions repeatedly used the word “fake” to refer to the so-called electors, who were intended to provide Vice President Mike Pence and Mr. Trump’s allies in Congress a rationale for derailing the congressional process of certifying the outcome. And lawyers working on the proposal made clear they knew that the pro-Trump electors they were putting forward might not hold up to legal scrutiny.

“We would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted,” Jack Wilenchik, a Phoenix-based lawyer who helped organize the pro-Trump electors in Arizona, wrote in a Dec. 8, 2020, email to Boris Epshteyn, a strategic adviser for the Trump campaign.

In a follow-up email, Mr. Wilenchik wrote that “‘alternative’ votes is probably a better term than ‘fake’ votes,” adding a smiley face emoji.

Did you really think an emoji is going to keep you out of prison, Jack? Or that the Arizona State Bar is not going to finally suspend your license to practice law? You are in the barrel now.

The emails provide new details of how a wing of the Trump campaign worked with outside lawyers and advisers to organize the elector plan and pursue a range of other options, often with little thought to their practicality. [It’s called lawlessness.] One email showed that many of Mr. Trump’s top advisers were informed of problems naming Trump electors in Michigan — a state he had lost — because pandemic rules had closed the state Capitol building where the so-called electors had to gather.

The emails show that participants in the discussions reported details of their activities to Rudolph W. Giuliani, Mr. Trump’s personal lawyer, and in at least one case to Mark Meadows, the White House chief of staff. Around the same time, according to the House committee investigating Jan. 6, Mr. Meadows emailed another campaign adviser saying, “We just need to have someone coordinating the electors for states.”

Many of the emails went to Boris Epshteyn, who was acting as a coordinator for people inside and outside the Trump campaign and the White House and remains a close aide to Mr. Trump.

Mr. Epshteyn, the emails show, was a regular point of contact for John Eastman, the lawyer whose plan for derailing congressional certification of the Electoral College result on Jan. 6, 2021, was embraced by Mr. Trump.

Mr. Epshteyn not only fielded and passed along to Mr. Giuliani the detailed proposal for Jan. 6 prepared by Mr. Eastman, he also handled questions about how to pay Mr. Eastman and made the arrangements for him to visit the White House on Jan. 4, 2021, the emails show.

That was the day of the Oval Office meeting in which Mr. Trump and Mr. Eastman unsuccessfully pressured Mr. Pence to adopt the plan — an exchange witnessed by Mr. Pence’s two top aides, Marc Short and Greg Jacob, both of whom testified last week to the federal grand jury investigating the assault on the Capitol and what led to it.

The emails highlight how much of the legwork of finding ways to challenge Mr. Trump’s losses in the battleground states was done by Mike Roman, director of Election Day operations for Mr. Trump’s campaign.

Mr. Epshteyn and Mr. Roman, the emails show, coordinated with others who played roles in advising Mr. Trump. Among them were the lawyers Jenna Ellis and Bruce Marks; Gary Michael Brown, who served as the deputy director of Election Day operations for Mr. Trump’s campaign; and Christina Bobb, who at the time worked for One America News Network and now works with Mr. Trump’s PAC.

The emails were apparently not shared with lawyers in the White House Counsel’s Office, who advised that the “fake electors” plan was not legally sound, or other lawyers on the campaign. [Goes to consciousness of guilt: they knew what they were doing was illegal.]

Some of the participants also expressed approval in the emails for keeping some of their activities out of the public eye. [Secrecy is an element of conspiracy.]

For instance, after Mr. Trump hosted Pennsylvania state legislators at the White House in late November to discuss reversing the election outcome, Mr. Epshteyn celebrated when news of the meeting didn’t quickly leak. “The WH meeting hasn’t been made public, which is both shocking and great,” he wrote to Ms. Ellis.

On Dec. 8, 2020, Mr. Wilenchik wrote that Kelli Ward, one of the Republicans in Arizona participating in the fake electors plan, recommended trying “to keep it under wraps until Congress counts the vote Jan. 6th (so we can try to ‘surprise’ the Dems and media with it) — I tend to agree with her.”

Arizona’s “fake” GQP electors

The panel has also heard testimony from Mr. Jacob, who was Mr. Pence’s counsel in the White House, that Mr. Eastman admitted in the Jan. 4 Oval Office meeting — with Mr. Trump present — that his plan to have Mr. Pence obstruct the electoral certification violated the Electoral Count Act.

The emails show less than lawyerly precision at times. Mr. Marks repeatedly referred to Cleta Mitchell, another lawyer helping Mr. Trump, as “Clita” and “Clavita,” prompting Mr. Epshteyn to reply: “It’s Cleta, not Clavita.”

Another time, Mr. Epshteyn wrote to Mr. Marks: “Do you mean Arizona when you say Nevada???”

By early December, Mr. Epshteyn was seemingly helping to coordinate the efforts, conferring repeatedly with Mr. Marks and others. Mr. Wilenchik told his fellow lawyers he had been discussing an idea proposed by still another lawyer working with the campaign, Kenneth Chesebro, an ally of Mr. Eastman’s, to submit slates of electors loyal to Mr. Trump.

“His idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren’t legal under federal law — because they’re not signed by the Governor); so that members of Congress can fight about whether they should be counted on January 6th,” Mr. Wilenchik wrote in the email on Dec. 8, 2020, to Mr. Epshteyn and half a dozen other people.

“Kind of wild/creative — I’m happy to discuss,” Mr. Wilenchik continued. “My comment to him was that I guess there’s no harm in it, (legally at least) — i.e. we would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted.”

As they organized the fake elector scheme, lawyers appointed a “point person” in seven states to help organize those electors who were willing to sign their names to false documents. In Pennsylvania, that point person was Douglas V. Mastriano, a proponent of Mr. Trump’s lies of a stolen election who is now the Republican nominee for governor.

But even Mr. Mastriano needed assurances to go along with a plan other Republicans were telling him was “illegal,” according to a Dec. 12 email sent by Ms. Bobb that also referred to Mr. Giuliani, the former mayor of New York City.

“Mastriano needs a call from the mayor. This needs to be done. Talk to him about legalities of what they are doing,” she wrote, adding: “Electors want to be reassured that the process is * legal * essential for greater strategy.”

The emails showed the group initially hoped to get Republican state legislatures or governors to join their plans and give them the imprimatur of legitimacy. But by December, it was clear no authorities would agree to go along, so the Trump lawyers set their sights on pressuring Mr. Pence, who was scheduled to preside over a joint session of Congress on Jan. 6.

On Dec. 7, Mr. Troupis, who worked for the Trump campaign in Wisconsin, wrote to Mr. Epshteyn that there was “no need for the legislators to act.” He cited Mr. Chesebro’s legal analysis that the key to Mr. Trump’s hopes was not blocking state certification of the electors on Dec. 14, but creating a reason for Mr. Pence to block or delay congressional certification of the Electoral College results on Jan. 6.

“The second slate just shows up at noon on Monday and votes and then transmits the results,” Mr. Troupis wrote of organizing Republican slates of electors to cast ballots for Mr. Trump on Dec. 14. “It is up to Pence on Jan 6 to open them. Our strategy, which we believe is replicable in all 6 contested states, is for the electors to meet and vote so that an interim decision by a Court to certify Trump the winner can be executed on by the Court ordering the Governor to issue whatever is required to name the electors. The key nationally would be for all six states to do it so the election remains in doubt until January.”

The documents also demonstrated the legal team had relied on widely debunked information to point to broad claims of election fraud. On Dec. 17, Mr. Epshteyn wrote to Mr. Giuliani that a document on election fraud created by Mr. Trump’s trade adviser, Peter Navarro — which has been discredited in public reporting, by state officials and courts — “appears to be the most comprehensive summary of voter fraud from this election season.”

The lawyers were aware their legal efforts were being ridiculed. On Dec. 23, Mr. Marks wrote: “You folks are getting killed in the media on litigation strategy, even on Fox and among conservatives.”

But they were undeterred.

By Christmas Eve, Mr. Eastman seemed to want to harness the power of Mr. Trump’s millions of supporters.

At 8:04 p.m. that night, Mr. Eastman sent Mr. Epshteyn an email that he had received in which a woman implored him to ask Mr. Trump “to put out what he would like his 74 million followers to do to help.” She added: “We need to be one voice, with laser focus, SPEAKING AS 74 MILLION STRONG.”

In his email to Mr. Epshteyn, Mr. Eastman wrote, “Thought I’d forward this. 74 Million strong. Let’s figure out a targeted way to deploy them. Rolling thunder? One legislature at a time? The others can see it coming.”

Days earlier, Mr. Trump had told his supporters to descend on Washington on Jan. 6 for a “protest” that he promised would “be wild.”

On Dec. 27, Mr. Epshteyn wrote that Mr. Trump “liked” an aggressive approach being proposed by the lawyers, and that Mr. Eastman would be the “face of the media strategy” along with Mr. Giuliani. [And so they were – see below].

“We need one voice out there,” Mr. Epshteyn wrote of Mr. Eastman, saying he’s “already been out/liked by POTUS.”

Jan. 6 was just days away.