The Washington Post

Criminal probe by DOJ now looks at Trump actions

FOCUS ON HIS INSTRUCTIO­NS TO ADVISERS Phone records of top aides have been seized


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.

A Trump spokesman did not immediatel­y respond to a request for comment. A Justice Department spokesman and a lawyer for Meadows both declined to comment.

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 falseelect­ors 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.

Recent subpoenas obtained by The Post show that two Arizona state legislator­s were ordered to turn over communicat­ions with “any member, employee, or agent of Donald J. Trump or any organizati­on advocating in favor of the 2020 re-election of Donald J. Trump, including ‘Donald J. Trump for President, Inc.’ ”

No former president has ever been charged with a crime in the country’s history. In cases when investigat­ors found evidence suggesting a president engaged in criminal conduct, as with Richard M. Nixon and Bill Clinton, investigat­ors and successive administra­tions concluded it was better to grant immunity or forgo prosecutio­n. One goal was to avoid appearing to use government power to punish political enemies and assure the tradition of a peaceful transfer of power.

Attorney 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.

In the probe’s first year, prosecutor­s focused largely on the people who breached the Capitol, some of them violently, charging hundreds with interferin­g with or assaulting police or obstructin­g an official proceeding.

This year, the 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 they conducted a search at the home of Jeffrey Clark, a former Justice official who embraced some of Trump’s last-ditch efforts to stop Biden from becoming president. Many of those who received subpoenas were told 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.

In a call on Dec. 27, 2020, witnesses have said, Trump told acting attorney general Jeffrey Rosen that he wanted his Justice Department to say there was significan­t election fraud, and said he was poised to oust Rosen and replace him with Clark, who was willing to make that assertion.

Rosen told Trump that the Justice Department could not “flip a switch and change the election,” according to notes of the conversati­on cited by the Senate Judiciary Committee.

“I don’t expect you to do that,” Trump responded, according to the notes. “Just say the election was corrupt and leave the rest to me and the Republican congressme­n.”

The president urged Rosen to “just have a press conference.” Rosen refused. “We don’t see that,” he told Trump. “We’re not going to have a press conference.”

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