In late 2020, Donald Trump instructed a top Justice Department official to “Just say [the election] was corrupt and leave the rest to me and the Republican congressmen.”
Trump gave this command on Dec. 27, 2020—nearly eight weeks after Election Day and almost two weeks after the Electoral College met and confirmed Joe Biden’s victory—to then-Acting Deputy Attorney General Richard Donoghue, who revealed it in testimony before the House January 6th Committee yesterday. The revelation, confirmed in Donoghue’s contemporaneous notes, shows just how serious the former president was about overturning the election.
With that simple order, Trump’s plot becomes clear. He wanted Department of Justice (DOJ) officials to lie about the election, creating a pretense that Republican members of Congress could use to reject Electoral College votes for Biden.
And for two reasons, we now know that Trump’s plan carried criminal liability:
(1) The only man at the Department of Justice willing to carry out Trump’s schemes—former Trump environmental lawyer Jeffrey Clark—had his home searched on Wednesday by the feds. Law enforcement won’t confirm the reason for the raid, but it is almost certainly connected to his efforts to alter the election results.
(2) The Jan. 6th Committee revealed yesterday that Republican members of Congress secretly sought pardons from Trump for their actions to help him overturn the election. As committee member Adam Kinzinger pointed out, “The only reason I know to ask for a pardon is because you think you’ve committed a crime.”
Let’s discuss each of these in turn.
Trump’s disregard for the law was blatant. White House lawyers and Justice Department officials repeatedly warned him and his allies that they were pursuing illegal, unconstitutional measures.
The work of fending off Trump’s outrageous demands must have been exhausting. The three former DOJ officials who testified yesterday explained how they pushed back when Trump wanted them to launch sham investigations, file a meritless lawsuit at the Supreme Court, seize voting machines, and create an unnecessary special counsel investigation. (Disgraced lawyer Sidney Powell says Trump asked her to lead that investigation.) But no matter how many times DOJ officials told Trump no, he kept looking for yes men.
Former Trump Attorney General Bill Barr got so fed up with Trump’s election lies that, in an act of defiance, he told a reporter on December 1, 2020 that “to date, we have not seen fraud on a scale that could have effected a different outcome in the election.” That same day—as Barr described in his memoir and told the committee—he told Trump in private that his claims of election fraud were “bullshit” and “idiotic.” Barr quietly resigned in mid-December without explaining to the public what he had told Trump in private about his election lies.
Trump, upset that Barr’s replacement refused to indulge him, sought out Jeffrey Clark. Clark was willing to do what Barr and others would not.
The committee yesterday showed evidence that Clark secretly met with Trump, breaking DOJ protocol, and drafted a letter for the DOJ to issue to lawmakers in key swing states with Republican-controlled legislatures. The letter falsely claimed the DOJ had “identified significant concerns” about the election and laid out a path for states to transmit to Congress alternate slates of electors, thus converting states that Biden had won into wins for Trump. Clark presented it to his superiors at DOJ and said that if they didn’t sign it, he would accept an offer from Trump to become attorney general, thereby getting the power to issue the letter himself.
Thankfully, top officials at the Department of Justice, such as Donoghue, pulled rank and threatened to resign en masse if Trump installed Clark as attorney general. Donoghue told Trump that Clark would be “left leading a graveyard” at DOJ. Why? Trump White House lawyer Eric Herschmann described his opposition in colorful terms directly to Clark:
Former Trump White House lawyer Eric Herschmann on Jeff Clark’s plan to overturn the election:
"Congratulations, you just admitted your first step or act you would take as Attorney General would be committing a felony…" pic.twitter.com/wVG7zGoTmP
— January 6th Committee (@January6thCmte) June 23, 2022
Trump ultimately backed down—but only after Donoghue made the case that Clark was too incompetent to execute Trump’s wishes. In other words, Trump was not persuaded that the illegality of his wishes mattered. He was just led to doubt that Clark could get the job done.
More details relating to Clark may yet emerge in the days ahead, especially after he was hauled out of his house in his pajamas this week so that federal investigators could search his house.
At least a handful of Republican members of Congress knew Trump’s wishes carried legal risk as well.
In the last half hour of its hearing yesterday, the Jan. 6th Committee revealed the names of six members of Congress who sought or expressed interest in presidential pardons for their participation in various plots to overturn the election. They were: Scott Perry, Matt Gaetz, Louie Gohmert, Andy Biggs, Marjorie Taylor Greene, and Mo Brooks.
At least those are the six pardon-seekers the committee knows of, based on interviews with former Trump administration officials.
Mo Brooks actually went further, recommending a few days after Jan. 6th that Trump grant “all purpose” pardons to all 147 congressional Republicans who objected to certifying Joe Biden’s election on January 6 and for the 126 Republicans who signed an amicus brief supporting the Texas lawsuit that sought to cancel votes, outright, in the swing states Trump lost. Brooks cast this as a defensive move against an unfair future prosecution he feared from the Democrats.
While Brooks’s plea for a mass pardon is paranoid—members of Congress are largely protected by the Constitution’s Speech and Debate Clause—it does indicate that Trump’s closest allies in Congress are worried about their criminal culpability connected to Jan. 6th.
Corrections (24 June 2022, 9:30 a.m. EDT): As originally published, this article stated that Jeffrey Clark was arrested this week in connection with the raid on his house; he was not. The article also erroneously labeled him an EPA lawyer—but while his legal focus was indeed on environmental law, it was at the DOJ, not the EPA.