United States Justice Department investigation into attempts to overturn the 2020 presidential election

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Attempts to overturn the 2020 United States presidential election
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The electoral map for the 2020 election. Blue denotes the 306 electoral votes for Biden, while red denotes the 232 electoral votes for Trump.
Date
  • Main phase: November 4, 2020[1] – January 7, 2021[2] (2 months and 3 days)
  • Post-inauguration audits: January 7, 2021 – present (3 years, 4 months, 1 week and 3 days)
Location
Pennsylvania, Georgia, Michigan, Wisconsin, Arizona, Nevada, and Washington, D.C.
Caused byFabricated claims of electoral fraud[3][4][5]
Resulted in

The United States Justice Department investigation into attempts to overturn the 2020 presidential election began in early 2021 with investigations and prosecutions of hundreds of individuals who participated in the January 6, 2021 attack on the United States Capitol. By early 2022, the investigation had expanded to examine Trump's inner circle, with the Justice Department impaneling several federal grand juries to investigate the attempts to overturn the election. Later in 2022, a special counsel was appointed.[6]

Background

The Department of Justice (DOJ) is probing Trump's months-long efforts to overturn the 2020 election. This includes efforts by Trump and his allies to:

  • set up the Save America PAC following the election loss[7]
  • falsely declare that the election was rigged
  • pressure the Justice Department to assist in declaring him president
  • set up the fake electors scheme that created and submitted fraudulent elector slates with the intent that vice president Mike Pence would certify their votes on January 6, 2021
  • support the events of January 6 itself (potential charges: seditious conspiracy and conspiracy to obstruct a government proceeding)[8]
  • take legal actions to support these activities
  • receive funding to support these activities[7]

Convicting Trump of sedition would require proof that he “set out to break the law,” said former deputy assistant attorney general Elliot Williams.[9]

The DOJ has the authority to open criminal investigations and bring criminal charges against political leaders.[10] It did not ask the House select committee to halt its investigation into Trump's inner circle, at least not openly. The DOJ initially focused on prosecuting rioters,[11] but by early 2022 it became clear that it was investigating Trump's allies too.

On July 26, 2022, it was first reported that the DOJ was examining Trump's actions as part of a criminal probe,[12] and on August 4, 2022, it was reported that Trump's lawyers were speaking directly to the Justice Department.[13] U.S. Attorney General Merrick Garland said "everyone, anyone who was criminally responsible" would be held accountable.[12]

The DOJ did not break big news on this case before the 2022 U.S. midterm elections. The DOJ usually keeps its investigations relatively quiet within 60 days of an election if they appear related to political issues. Although this is not a written formal policy, it is a longstanding norm.[14][15][16]

Though Trump has declared his 2024 campaign for president,[17] this would not make him immune from charges. On November 11, 2022, former U.S. attorney Barbara McQuade told MSNBC's Katie Phang: "The idea that you can inoculate yourself from criminal charges by just declaring yourself a candidate for some high office is ludicrous."[18]

Criminal investigations

By March 2022, the DOJ had seated several grand juries, including one regarding the fake electors scheme, to help prosecutors decide whether to bring charges against Trump's inner circle.[19][20] One grand jury issued subpoenas to several Trump associates involved in the planning and financing of the president's "Stop the Steal" rally that preceded the Capitol attack.

By June 2022, the Justice Department was issuing subpoenas to Republican officials in several states regarding the fake electors scheme. The next month, Pence's former chief of staff Marc Short and counsel Gregory Jacob testified to the grand jury under subpoena. Short and Jacob had advised Pence to ignore the false Pence Card theory promoted to him by Trump attorney John Eastman that asserted the vice president had the constitutional authority to change electoral votes as they were being certified.

On November 18, 2022, U.S. attorney general Merrick Garland appointed Jack Smith as special counsel for the Trump-related investigations including Trump's attempts to overturn the 2020 election and Trump's mishandling of classified documents.[6] The special counsel does not have a deadline to complete his work and he need not publish a final report.[21]

Subpoenas and interviews

Known subpoenas include:

  • In early September 2022, over 30 people close to Trump were subpoenaed. They included Trump campaign manager Bill Stepien; Trump 2020 campaign's chief financial officer Sean Dollman;[22] Ben Williamson, a deputy of Mark Meadows;[23] and Trump lawyer Boris Epshteyn, whose phone was demanded.[7] Mike Lindell was subpoenaed for information about Tina Peters, Belinda Knisley, Sandra Brown, Conan Hayes, Sherronna Bishop, and Douglas Frank.[24] Lindell unsuccessfully challenged the seizure of his phone.[25]
  • On September 8, 2022, William Russell, former White House special assistant and deputy director of presidential advance, was subpoenaed.[26]
  • On September 11, 2022, it was reported that Stephen Miller, former senior adviser to Trump, had been subpoenaed.[27]
  • On September 15, 2022, it was reported that Mark Meadows had complied with a subpoena.[23]

Trump's lawyers, to prevent information from being used against him, have tried to assert executive privilege and attorney-client privilege. They filed their arguments under seal. Their strategy was first reported in September 2022.[28] Nonetheless, the Justice Department has managed to obtain some information from Trump's inner circle:

  • On July 22, 2022, Marc Short, who was a top aide to Pence, and Greg Jacob, who was Short's counsel in the White House, testified before a grand jury.[29]
  • On September 2, 2022, former White House counsel Pat Cipollone and his former deputy Patrick Philbin testified to a grand jury under subpoena.[30]
  • On October 6, 2022, Greg Jacob testified before the grand jury. According to CNN, it was "the first identifiable time" that this criminal investigation had "pierced" Trump's attempts at preserving "confidentiality" among former White House staff related to the 2020 election.[31]
  • On October 13, 2022, Marc Short, former chief of staff to Pence, testified before the grand jury.[32][31]

On November 23, 2022, it was reported that Pence was ready to negotiate an agreement to testify before the DOJ.[33]

Other high-level actions

  • On June 22, 2022, several FBI agents with a warrant approached John Eastman in public and confiscated his phone[34] while others searched the home of Jeffrey Clark and confiscated his devices.[35]
  • On June 29, 2022, the FBI interviewed Trump's attorney, Justin Clark, regarding Steve Bannon's refusal to testify to the House committee.[36]
  • On August 9, 2022, the FBI approached Representative Scott Perry (who had previously been uncooperative with the House committee) and seized his cell phone.[37] Perry sued but later dropped his lawsuit.[38]

Role of the U.S. House select committee on January 6

Main article: United States House Select Committee on the January 6 Attack
Further information: Public hearings of the United States House Select Committee on the January 6 Attack

The House select committee on January 6 has interviewed over 1,000 witnesses. It is sharing certain information with the Justice Department: for example, the committee's suspicion of witness tampering in Trump's placing of a phone call to a witness.[39] Messages intended to pressure witnesses may constitute witness tampering, punishable by up to 20 years in prison.[40]

However, the committee has not yet fulfilled the Justice Department's request that it turn over all its interview transcripts. The Justice Department sent a letter on April 20, 2022 asking for transcripts of past and future interviews. Thompson, the committee chair, told reporters he did not intend to give the Justice Department "full access to our product" especially when "we haven't completed our own work." Instead, the select committee negotiated for a partial information exchange.[41] On June 15, the Justice Department repeated its request. They gave an example of a problem: The trial of the five Proud Boys indicted for seditious conspiracy had been rescheduled for the end of 2022 because prosecutors and defendants' counsel didn't want to start the trial without the relevant interview transcripts.[42]

On July 12, the committee announced it was negotiating with the Justice Department about the procedure for information-sharing and that the committee had "started producing information" related to the Justice Department's request for transcripts. But on November 30, at a press conference, U.S. Attorney General Merrick Garland repeated his request for "all" transcripts.[43]

The committee's concerns involve whether the information they've gathered could be useful to the DOJ's investigation and whether the DOJ is likely to act upon the information if they had it. In July 2022, Representative Thompson told CNN that they would likely "establish a procedure to look at some of the material" later that month after the eighth public hearing.[44] On September 13, Representative Thompson told reporters: “I think now that the Department of Justice is being proactive in issuing subpoenas and other things, I think it’s time for the committee to determine whether or not the information we’ve gathered can be beneficial to their investigation.” Another committee member, however, said the committee might not make decisions about sharing information until "October or November."[45] On September 25, Representative Schiff expressed concern that the DOJ appears to be investigating "very slow[ly]" or else "very quietly".[46]

On October 21, 2022, the committee subpoenaed Donald Trump for documents and testimony. Trump has refused to comply, opening the possibility that the Justice Department could charge him.[47] On November 11, his lawyers sued to block the subpoena. In their initial court filing, they characterized the committee's investigation as a "quasi-criminal inquest".[48]

Role of the National Archives and Records Administration

In 2022, the Justice Department subpoenaed NARA twice, seeking documents about January 6.[49]

On September 30, 2022, after the House Committee on Oversight and Reform had requested Trump administration records, NARA responded: "we do know that we do not have custody of everything we should." NARA, acknowledging DOJ's "ongoing investigation", did not publicly provide more detail.[50][51][52]

Related investigations

2020 presidential election

Fani Willis, district attorney of Fulton County, Georgia, opened a criminal investigation in February 2021 regarding the presidential election in that state. One of the targets of her investigation is Rudy Giuliani, Trump's lawyer.

Trump

Theft of government documents

Main article: FBI search of Mar-a-Lago
Further information: Donald Trump's disclosures of classified information

While in office, Trump removed thousands of government documents and brought them to Mar-a-Lago. These documents were government property and should not have been stored in a private residence. After Trump left office in 2021, the National Archives and Records Administration (NARA) asked him to surrender the material, and he reportedly went through it. NARA negotiated with him and, in January 2022, recovered some of the material. They discovered CIA, FBI, and National Security Agency documents on topics of national security interest. The DOJ began an investigation and convened a grand jury in April. Trump was subpoenaed in May and turned over more documents in June. The FBI obtained a search warrant and searched Mar-a-Lago in August, at which time they recovered over 11,000 additional government records that Trump had not given to the government during his two previous opportunities. Across the January, June, and August 2022 interactions, the government obtained 325 documents with classification markings.[53] As of September 16, 2022, investigators had not decided whether to pursue a criminal inquiry against Trump's lawyers Christina Bobb and Evan Corcoran.[54]

New York investigations of the Trump Organization

Main article: New York investigations of The Trump Organization

In September 2022, New York attorney general Letitia James announced a lawsuit against Trump, his three oldest children, and the Trump Organization for fraud and misrepresentation, asserting that Trump "wildly exaggerated his net worth by billions of dollars".[55][56] The suit seeks about $250 million in damages and the instatement of a five-year ban from real-estate transactions. Additionally, James referred the case to federal criminal prosecutors in Manhattan and the Internal Revenue Service.[55][57] Her office had begun the investigation in March 2019.[58]

Trump allies

On August 18, 2022, Allen Weisselberg, chief financial officer (CFO) of the Trump Organization, pleaded guilty to 15 felony charges for evading $344,745 in taxes over 15 years.[59] As part of the guilty plea deal, he agreed to testify against The Trump Organization at trial.[60] A conviction of the Trump Organization would make the company itself a felon, and this could make it difficult for it to find business partners, thus impacting Donald Trump's personal finances.[61]

On October 21, 2022, Steve Bannon was sentenced to four months in prison for criminal contempt of Congress, following his conviction in July 2022 of two counts of not complying with the House select committee's subpoena.[62][63] Separately, he has been charged in New York state with fraud, money laundering, and conspiracy in connection with the "We Build The Wall" campaign.[64]

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