Panel Suggests Trump Knew He Lost the Election, Eyeing Criminal Case

 

Panel Suggests Trump Knew He Lost the Election, Eyeing Criminal Case

 

At the core of the theory of a possible criminal case against former President Donald J. Trump is the argument that he knew he had lost the election and sought to overturn it anyway.

 

By Luke Broadwater and Alan Feuer

March 3, 2022

https://www.nytimes.com/2022/03/03/us/politics/trump-jan-6-criminal-case.html

 

WASHINGTON — Shortly after the 2020 election, as ballots were still being counted, the top data expert in President Donald J. Trump’s re-election campaign told him bluntly that he was going to lose.

 

In the weeks that followed, as Mr. Trump continued to insist that he had won, a senior Justice Department official told him repeatedly that his claims of widespread voting fraud were meritless, ultimately warning him that they would “hurt the country.”

 

Those concerns were echoed by the top White House lawyer, who told the president that he would be entering into a “murder-suicide pact” if he continued to pursue extreme plans to try to invalidate the results of the 2020 election.

 

Yet Mr. Trump — time and again — discounted the facts, the data and many of his own advisers as he continued to promote the lie of a stolen election, according to hundreds of pages of exhibits, interview transcripts and email correspondence assembled by the House committee investigating the Jan. 6 attack for a legal filing released late Wednesday.

 

In laying out the account, the panel revealed the basis of what its investigators believe could be a criminal case against Mr. Trump. At its core is the argument that, in repeatedly rejecting the truth that he had lost the 2020 election — including the assertions of his own campaign aides, White House lawyers, two successive attorneys general and federal investigators — Mr. Trump was not just being stubborn or ignorant about his defeat, he was knowingly perpetrating a fraud on the United States.

 

It is a bold claim that could be difficult to back up in court, but in making it, the House committee has compiled an elaborate narrative of Mr. Trump’s extraordinary efforts to cling to power.

 

In it, Mr. Trump emerges as a man unable — or unwilling — to listen to his advisers even as they explain to him that he has lost the election, and his multiple and varied claims to the contrary are not grounded in fact.

 

At one point, Mr. Trump did not seem to care whether there was any evidence to support his claims of election fraud, and questioned why he should not push for even more extreme steps, such as replacing the acting attorney general, to challenge his loss.

 

“The president said something to the effect of: ‘What do I have to lose? If I do this, what do I have to lose?’” Richard P. Donoghue, a former top Justice Department official, told the committee in an interview. “And I said: ‘Mr. President, you have a great deal to lose. Is this really how you want your administration to end? You’re going hurt the country.’”

 

Pat A. Cipollone, the White House counsel, also tried to get Mr. Trump to stop pursuing baseless claims of fraud. He pushed back against a plan from a rogue Justice Department lawyer, Jeffrey Clark, who wanted to distribute official letters to multiple state legislatures falsely alerting them that the election may have been stolen and urging them to reconsider certified election results.

 

“That letter that this guy wants to send — that letter is a murder-suicide pact,” Mr. Cipollone told Mr. Trump, according to Mr. Donoghue. “It’s going to damage everyone who touches it. And we should have nothing to do with that letter. I don’t ever want to see that letter again.”

 

The account is part of a court filing in a civil case in California, in which the committee’s lawyers for the first time laid out their theory of a potential criminal case against the former president. They said they had evidence demonstrating that Mr. Trump, the lawyer John Eastman and other allies could be charged with obstructing an official proceeding of Congress, conspiracy to defraud the American people and common law fraud.

 

The committee’s filing shows how some of Mr. Trump’s aides and advisers repeatedly — and passionately — tried to get him to back down from his various false claims and plans to try to stay in power.

 

It started almost immediately after the polls closed in November 2020, when members of Mr. Trump’s campaign data team began trying to break through to the president to impress upon him that he had been defeated.

 

During a conversation in the Oval Office, Mr. Trump’s lead campaign data guru “delivered to the president in pretty blunt terms that he was going to lose,” Jason Miller, another top campaign aide, told the panel. The president said he disagreed with the data expert’s analysis, Mr. Miller said, because he thought he could win in court.

 

Mr. Miller also told the committee that he agreed with Attorney General William P. Barr’s analysis that there had not been widespread fraud in the election, and “said that to the president on multiple occasions,” the panel wrote in its filing.

 

In the chaotic postelection period, Mr. Trump’s legal team set up a hotline for fraud allegations and was flooded with unverified accounts from people across the country who claimed they had evidence. A Postal Service truck driver from Pennsylvania asserted without evidence that his 18-wheeler had been filled with phony ballots. Republican voters in Arizona complained that some of their ballots had not been counted because they used Sharpie pens that could not be read by voting machines.

 

Mr. Trump appeared to be aware of many of these reports, and would speak about them often with aides and officials, raising various theories about voting fraud even as they debunked them one by one.

 

“When you gave him a very direct answer on one of them, he wouldn’t fight us on it,” Mr. Donoghue, the Justice Department official, told the committee. “But he would move to another allegation.”

 

Mr. Donoghue recalled, for instance, how he told Mr. Trump that Justice Department investigators had looked into, and ultimately discounted, a claim that election officials in Atlanta had wheeled a suitcase full of phony ballots into their counting room on Election Day.

 

Instead of accepting Mr. Donoghue’s account, Mr. Trump abruptly switched subjects and asked about “double voting” and “dead people” voting, then moved on to a completely different claim about how, he said, “Indians are getting paid” to vote on Native American reservations.

 

After Mr. Donoghue sought to knock down those complaints as well, he told the committee, Mr. Trump changed topics again and wondered aloud why his numerous legal challenges to the election had not worked.

 

Jeffrey A. Rosen, another top Justice Department lawyer who became the acting attorney general after Mr. Barr left the agency, fielded this question, according to Mr. Donoghue’s account, telling the president that he was “free to bring lawsuits,” but that the department could not be involved.

 

Even though none of Mr. Trump’s persistent claims about election fraud turned out to be true, prosecutors will most likely have to grapple with the question of his state of mind at the time — specifically, the issue of whether he believed the claims were true, said Alan Rozenshtein, a former Justice Department official who teaches at the University of Minnesota Law School.

 

The potential case against Trump. The Jan. 6 House committee said there was enough evidence to conclude that former President Donald J. Trump may have engaged in a criminal conspiracy as he fought to remain in office. The move adds to pressure on the Justice Department to prosecute him.

 

The first trial. Guy Wesley Reffitt, who is accused of obstructing the work of Congress on Jan. 6, is the first defendant to stand trial in a case stemming from the Capitol riot. The trial, which is underway, will set the tone for dozens of other cases.

 

Subpoenaed lawyers. The House panel has subpoenaed a half-dozen lawyers and other allies of Mr. Trump who promoted false claims about widespread fraud in the 2020 election and worked to overturn his loss.

 

“To the extent that prosecutors have to show intent, Trump’s delusion makes that harder,” Mr. Rozenshtein said. “A finder of fact could conclude that Trump is so uniquely narcissistic and self-absorbed that he actually thought the election had been stolen.”

 

Throughout December, Mr. Rosen and Mr. Donoghue repeatedly informed Mr. Trump that both his specific and general claims of fraud were false.

 

At a White House meeting on Dec. 15, 2020, Mr. Trump was told that “people are telling you things that are not right,” the committee said. Mr. Donoghue personally informed Mr. Trump during a Dec. 27 phone call “in very clear terms” that the Justice Department had done “dozens of investigations, hundreds of interviews,” had looked at “Georgia, Pennsylvania, Michigan, Nevada” and concluded that “the major allegations are not supported by the evidence.”

 

The panel also found evidence that some of the allies most deeply involved in Mr. Trump’s efforts to overturn his loss were aware that their endeavor lacked legal merit.

 

Mr. Eastman, the conservative lawyer who advised Mr. Trump that Vice President Mike Pence could throw out electoral votes from states he had lost, conceded during a conversation with Mr. Pence’s top lawyer, Greg Jacob, that his arguments carried no legal weight and would fail before the Supreme Court.

 

A rejection of electors by the vice president would be a “relatively minor violation” of federal law, Mr. Eastman acknowledged, agreeing with Mr. Jacob’s assessment that even the most conservative justices would reject it.

 

“If this case got to the Supreme Court, we’d lose 9-0, wouldn’t we?” Mr. Jacob recalled telling Mr. Eastman, according to his interview with the committee. “And he started out at 7 to 2. And I said, ‘Who are the two?’ And he said, ‘Well, I think maybe Clarence Thomas.’ And I said: ‘Really? Clarence Thomas?’ And so we went through a few Thomas opinions and, finally, he acknowledged, ‘Yeah, all right, it would be 9-0.’”

 

The committee recently received documents from the National Archives that showed some of Mr. Trump’s activities on Jan. 6. Among them were a morning meeting that included his eldest son’s fiancée, Kimberly Guilfoyle — who has turned over 110 pages of documents to the committee and was issued a subpoena on Thursday — a call with former Senator Kelly Loeffler, Republican of Georgia, and a call with Mr. Pence as he tried to persuade the vice president to go along with his plans.

 

As the mob attacked the Capitol, Mr. Eastman and Mr. Jacob exchanged a series of emails.

 

“Thanks to your bullshit, we are now under siege,” Mr. Jacob wrote at 12:14 p.m., shortly after pro-Trump rioters began attacking the complex, chanting, “Hang Mike Pence!”

 

“It was gravely, gravely irresponsible for you to entice the president with an academic theory that had no legal viability,” Mr. Jacob wrote in a subsequent email.

 

More than 150 police officers would be injured during the mob violence that would cost several people their lives.

 

At 4:45 p.m., with the Capitol still under attack, Mr. Eastman wrote to Mr. Jacob, “When this is over, we should have a good bottle of wine at a nice dinner someplace.”

 

Michael S. Schmidt and Emily Cochrane contributed reporting.

 

Luke Broadwater covers Congress. He was the lead reporter on a series of investigative articles at The Baltimore Sun that won a Pulitzer Prize and a George Polk Award in 2020. @lukebroadwater

 

Alan Feuer covers courts and criminal justice for the Metro desk. He has written about mobsters, jails, police misconduct, wrongful convictions, government corruption and El Chapo, the jailed chief of the Sinaloa drug cartel. He joined The Times in 1999. @alanfeuer