The Department of Justice (DOJ) is stepping up its criminal investigation into former President Donald Trump and his attempt to overturn the 2020 election, according to a Washington Post exclusive citing unnamed individuals familiar with the matter.
Reported Tuesday, the sources claimed federal prosecutors are asking witnesses now appearing before a federal grand jury if they have insight into the former president’s thinking and discussions with his lawyers or others in his immediate circle regarding a plan to advance fake electors in battleground states ahead of the joint session of Congress on Jan. 6, 2021.
The sources reportedly described other questions about the fake elector plot as it pertained to Trump’s interactions with lawyer and election overturn-strategist John Eastman, as well as Trump’s personal attorney, Rudy Giuliani. Giuliani spearheaded the fake elector scheme. Other inquiries from prosecutors focused on phone records the DOJ has already received from members of the Trump administration, including Trump’s onetime-Chief of Staff Mark Meadows.
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In a development late Wednesday afternoon, it was reported by politico that a second search warrant has been obtained for a phone belonging to overturn strategist and attorney John Eastman. The request would filter out privileged materials.
The insights from these sources now made public—albeit anonymously—come at an interesting time: Two members of former Vice President Mike Pence’s innermost circle, his former counsel Greg Jacob and former chief of staff Marc Short, only just appeared before a federal grand jury in Washington, D.C. Neither could be reached by Daily Kos for comment.
Equally notable is the degree of insight the sources offered about the questions posed to the grand jury. It would suggest, as Brookings Institute senior fellow Benjamin Wittes astutely noted, that the sources are likely closer to the witnesses appearing before the grand jury than they are themselves members of the Justice Department.
This source distinction is worth pointing out to those watching the Department of Justice’s probe of Jan. 6, and especially so when trying to discern the rate of progress of an investigation that is unmatched in size or scope in the department’s history.
Another vital distinction to consider about the Post’s reporting on Tuesday is that Trump’s potential criminality on Jan. 6 has been a part of the department’s priorities for some time. After the anniversary of the insurrection this January, The New York Times published a story noting evidence that emerged in court pointing to this. This involved the case of Jan. 6 defendant Brandon Straka.
Straka was a pro-Trump social media influencer and hairstylist who filmed himself at the Capitol during the attack. A day before the insurrection, he attended a rally in D.C. with right-wing bombast Alex Jones. Straka ultimately pleaded guilty to disorderly conduct. But in pursuit of a more lenient sentence, Straka’s attorney Bilal Essayli said his client had been cooperative with prosecutors during interviews. One of those interviews, Essayli said, “focused on establishing an organized conspiracy between defendant President Donald J. Trump and allies of the former president.”
Trump’s direct culpability and potential lawbreaking have also been flagged for the Department of Justice by the Jan. 6 committee as the committee conducted its own highly visible legal fight for records with John Eastman in the last year.
Eastman advised Trump that the fake elector slates would give Pence the cover he needed to delay or stop the count on Jan. 6. In truth, Eastman’s legal theories were riddled with misinterpretations of the Constitution and Pence had no such authority to weigh electoral slates beyond just counting them.
This March, when ruling that Eastman must respond to a subpoena from the Jan. 6 committee, U.S. District Judge David Carter said the “illegality of the plan was obvious” and that Trump and Eastman participated in “a coup in search of legal theory.”
In more recent weeks, grand jury subpoenas and search warrants have been doled out to many of the pro-Trump electors who created bunk certificates for their respective states before trying to pass them off as genuine to the National Archives and Congress.
Other court records, witness testimony, and documents obtained from inside the Trump White House and reelection team have underlined too how the fake elector scheme was inextricably linked to the pressure campaign targeting former Vice President Mike Pence. Pence was the next-to-last card Trump could pull to stop the count on Jan. 6 after his meritless claims and wild conspiracy theories about voter fraud in the 2020 election were obliterated in court.
The very last card, as recent hearings by the Jan. 6 committee have poignantly shown, was turning to the mob he invited to D.C. for help.
The Washington Post reported that its anonymous sources pegged “two principal tracks” of an investigation at the DOJ that could “ultimately lead to additional scrutiny of Trump.”
The first track is the seditious conspiracy and obstruction of a congressional proceeding angle. The other track centers on 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,” the Post reported.
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Attorney General Merrick Garland has said for more than six months that whether defendants are powerful or powerless, all can be prosecuted. He has faced an onslaught of criticism that the department has failed to move quickly enough toward accountability for those involved in Jan. 6 at a high level.
He has faced criticism too that he is loath to prosecute a former president because doing so would be entirely unprecedented. Barbs have been thrown as well about Garland’s potential political considerations.
During an exclusive interview with NBC’s Lester Holt on Tuesday night, Garland unsurprisingly said members of the DOJ watched the Jan. 6 committee hearings intently.
When Holt pressed the attorney general over whether he would indict a former president despite concerns that doing so may “tear the country apart,” Garland was succinct.
The department plans to hold “everyone, anyone who was criminally responsible for the events surrounding Jan. 6, for any attempt to interfere with the lawful transfer of power from one administration to another accountable,” he said.
And what if Trump runs for the White House? Would that preclude Garland from indicting Trump if warranted?
Garland responded to Holt: “I’ll say again, that we will hold accountable anyone who was criminally responsible for attempting to interfere with the transfer, legitimate, lawful transfer of power from one administration to the next.”
On Wednesday, it was reported by multiple outlets, including ABC, that Cassidy Hutchinson, once an aide to Mark Meadows, is cooperating with the Justice Department’s probe into Jan. 6. The extent of her cooperation is not yet known.
Hutchinson’s testimony to the Jan. 6 committee was explosive; she revealed for the first time that Trump was aware the mob was armed when he urged staff to waive the crowd past security checkpoints, weapons be damned. Hutchinson also revealed that Trump was hellbent on marching to the Capitol with the mob and that there were plans to take him there for an “off the record movement.” When members of Trump’s security detail refused to take him to the Capitol, Hutchinson said she was told that Trump lunged at the neck of his driver and burst into a fit of rage.