The Justice Department has opened a multi-state criminal investigation into the false electors scheme.
By Ryan Goodman
Co-Editor-in-Chief
Just Security
A part of President Donald Trump’s effort to overturn the presidential election involved an effort to misuse the Electoral College in seven battleground states. On Dec. 14, 2020, legitimate members of the Electoral College met across the country to sign certificates declaring which presidential candidate won their state. That day, in several states that Biden had won, Republicans met to sign certificates declaring that they were the “duly elected and qualified” members of the Electoral College and falsely declaring Trump the winner of their state. They sent their documents to the National Archives.
In the runup to Jan. 6, 2021, these false certificates were used in an effort to claim that Vice President Mike Pence could decide either not to recognize any electors from these “disputed states” (meaning an outright Trump win) or else delay the certification of the election.
In a civil case earlier this month, federal district court judge David O. Carter described the alternate electors scheme as “a critical objective” of the criminal conspiracy in which President Donald Trump and lawyer John Eastman likely engaged.
For its part, the Justice Department has apparently opened a multi-state criminal investigation into the false electors scheme. Last month, federal prosecutors reportedly sent grand jury subpoenas to potential witnesses seeking their communications with “any member, employee or agent of Donald J. Trump” as well as their communications with the Trump campaign.
What follows is a chronological Timeline that provides the most comprehensive factual record to date showing the points of contact between Donald Trump and his close associates and the false alternate slate of electors scheme.
Just Security is separately publishing a Backgrounder on the alternate slate of electors scheme as well as a legal analysis of the activities by a leading election law scholar.
A few findings that are contained in the Timeline below:
- The Trump team planned, directed, and coordinated the false alternate slate of electors scheme.
- The false alternate slate of electors was a “critical” part of the Trump-John Eastman conspiracy, according to a federal district court opinion issued in June.
- The false alternate slate of electors was a central part of the Trump-Jeffrey Clark scheme to use the Justice Department to try to overturn the election.
- The Trump team publicly suggested these alternate slates were to preserve an option if courts vindicated Trump’s legal challenges.
- The Trump team privately pursued the false alternate slates in an effort to get VP Pence to overturn the election – even if court challenges failed and had been exhausted, state legislatures rebuffed the Trump effort, and the electors came with no certification.
1. Nov. 4, 2020: Former Secretary of Energy in the Trump administration, Rick Perry texts White House Chief of State Mark Meadows proposing an“AGRESSIVE[sic] STRATEGY” to have state legislatures ignore the will of their voters and deliver their states’ electors to Trump:
“HERE’s an AGRESSIVE[sic] STRATEGY: Why can t (sic) the states of GA NC PENN and other R controlled state houses declare this is BS (where conflicts and election not called that night) and just send their own electors to vote and have it go to the SCOTUS.”
2. Nov. 5, 2020 at 12:51pm: Donald Trump Jr. texts Meadows proposing that Republican-controlled state assemblies “step in” and put forward separate slates of “Trump electors.” “Republicans control Pennsylvania, Wisconsin, Michigan, North Carolina etc we get Trump electors,” Trump Jr. adds. “We have multiple paths We control them all,” he writes.
3. Nov. 6, 2020: Rep. Andy Biggs texts Mark Meadows about efforts to encourage Republican legislators in certain States to send alternate slates of electors which Biggs acknowledges would be “highly controversial.” He asks Meadows, “Is anybody on the team researching and considering lobbying for that?” Meadows replies: “I love it.”
4. Meadows responds to a similar message by saying “We are’’ and another such message by saying ‘‘Yes. Have a team on it” (House of Representatives contempt report).
5. Nov. 7, 2020: In an email that Meadows produces for the select committee, a message discusses appointment of alternate slate of electors as part of a “direct and collateral attack” after the election (Letter from Bennie Thompson to Mark Meadows’ attorney).
6. Nov. 18, 2020: Kenneth Chesebro provides a 7-page memorandum to James R. Troupis, a lawyer for the Trump Campaign in Wisconsin, which Chesebro states is written upon Troupis’s request.
The memo describes January 6th as the ultimate date of significance and the “hard deadline,” and outlines the need for alternate slates of electors to meet on Dec. 14 and issue a certification for Trump. He writes that “a court decision (or, perhaps, a state legislative determination) rendered after December 14 in favor of the Trump-Pence slate of electors should be considered timely” for the counting of electoral votes on Jan. 6 (emphasis added). Chesebro describes in detail the Hawaii 1960 case in Kennedy-Nixon, in which Democrats met to issue a declaration during the state’s recount (which Kennedy ultimately won).
[Aside: See below also Chesebro memo to Troupis on Dec. 9; Chesebro memo to Giuliani on Dec. 13; Chesebro forwarding his Giuliani memo to Eastman on Jan. 2.]
The New York Times reported that Chesebro’s memos later formed part of the Trump lawyers’ efforts:
“The [Nov. 18 and Dec. 9 Chesebro] memos were initially meant to address Mr. Trump’s challenge to the outcome in Wisconsin, but they ultimately became part of a broader conversation by members of Mr. Trump’s legal team as the president looked toward Jan. 6 and began to exert pressure on Mr. Pence to hold up certification of the Electoral College count.”
“The language and suggestions in the memos from Mr. Chesebro to Mr. Troupis closely echo tactics and talking points that were eventually adopted by Mr. Trump’s top lawyers.”
[Aside: Chesebro’s Dec. 13 memo to Giuliani was not yet public at the time of the NYT report, nor Eastman’s collaboration with Chesebro on Eastman’s own memos.]
7. Nov. 23, 2020: Sen. Mike Lee (R-UT) texts Meadows:
“John Eastman has some really interesting research on this. The good news is is that Eastman is proposing an approach that unlike what Sidney Powell has propose could be examined very quickly.”
Sen. Lee texts again:
“But to do this, you’d have to act very soon. Some believe today might be the deadline for some of this in PA.”
8. End of November and first week of December: “Eastman sent memos to high-level White House staff explaining that the January 6 plan required legislators ‘to determine the manner of choosing electors, even to the point of adopting a slate of electors themselves,’” according to Judge Carter’s June 2022 opinion (emphasis added).
[See Eastman 7-page memo sent to White House on Nov. 28, 2020, entitled, “The Constitutional Authority of State Legislatures to Choose Electors.” This third memo has not received the same attention as Eastman’s other two subsequent memos.]
9. Dec. 6, 2020: Meadows (using his gmail account) emails Jason Miller, a senior aide on the Trump Campaign. The email includes a Chesebro memo (attachment “2020-11-20 Chesebro memo on real deadline2.pdf”). Meadows tells Miller: “We just need to have someone coordinating the electors for states.”
10. Dec. 7, 2020: John Eastman forwards Chesebro’s 7-page memo apparently for President Trump. In a June 2022 order, judge Carter wrote:
“The previously disclosed documents indicate that Dr. Eastman and President Trump’s plan to disrupt the Joint Session was fully formed and actionable as early as December 7, 2020. On that day, Dr. Eastman forwarded a memo explaining why January 6 was the ‘Hard Deadline’ that was ‘critical to the result of this election’ for the Trump Campaign.’”
In his cover note, Eastman writes, “Here’s the memo we discussed.”
11. Dec. 8, 2020: Sen. Mike Lee (R-UT) texts with Meadows:
“If a very small handful of states were to have their legislatures appoint alternative slates of delegates, there could be a path.”
Meadows replies to Lee:
“I am working on that as of yesterday.”
12. Between the end of November and early to mid-December:
The White House Counsel’s Office warns Meadows and Giuliani that the alternate electors’ plan is not legally sound. The participants in the conversations in which the White House Counsel make these statements also include “Giuliani’s associates” and at a later time Republican Members of the House. The White House Counsel attorneys include Pat Cipollone and potentially Patrick F. Philbin. (Mark Meadows aide, Cassidy Hutchinson, transcribed interview with the Select Committee).
NEW: 13. UNDATED: “At the president’s direct request, the RNC assisted the campaign in coordinating this effort.” the House Select Committee counsel stated in reference to an [undated] phone call with Trump, Eastman, and Ronna Romney McDaniel, chairwoman of the Republican National Committee. McDanied testified: , says in a taped interview that on a call with Trump, that Trump truend the call over to Eastman who “talk[ed] about the importance of the RNC helping the campaign gather these contingent electors in case any of the legal challenges that were ongoing changed the result of any of the dates.” She said she understood “the campaign did take the lead and we just were helping them in that role” (Transcript of Day 4, January 6 Committee Hearings).
14. On Dec 9, 2020: Chesebro provides a 5-page memorandum to Troupis.
This memo outlines state and federal law that applies to the alternate slate of electors in six different states “if the aim is to ensure that all 79 electoral votes are properly cast and transmitted” for Trump, and it outlines a game plan for the national Trump Campaign.
Three notes:
Note 1. Chesebro states that the alternate slate should meet to cast their votes on Dec. 14 “so that the votes might be eligible to be counted if later recognized (by a court, the state legislature, or Congress) as the valid ones that actually count in the presidential election.”
In other words, Chesebro appears to consider Congress (or perhaps the President of the Senate VP Pence) can recognize the alternate slates even if courts and state legislatures do not.
Note 2. Chesebro relies on the 1960 Hawaii example but he does not state that the slate of electors for Kennedy were ultimately certified by the Governor before the congressional vote on January 6. Chesebro states:
Note 3. Chesebro warns that the laws of Georgia and Pennsylvania make the alternate electors plan “somewhat dicey” in those states, because the Governor’s approval is required for any substitution for an absent elector. He writes that it is accordingly, “imperative” to try to avoid any absences. He also warns that Nevada is “extremely problematic,” because the law requires the Secretary of State’s presence for the electors’ vote to be valid.
15. Dec. 13, 2020: Chesebro sends an email to Giuiliani which he states was requested by someone [whose name is redacted in court records] on Giuliani’s behalf.
The memo outlines Chesebro’s arguments for why Pence as the President of the Senate could claim the authority to count the electoral votes “including making judgments about what to do if there are conflicting votes.”
He provides a “chronology of how things could play out, if there’s a serious effort to employ the argument” that the President of the Senate has this power. His chronology includes the President of the Senate “opens the two envelopes from Arizona, and announces that he cannot and will not, at least as of that date, count any electoral votes from Arizona because there are two slates of votes, and it is clear that the Arizona courts did not give a full and fair opportunity for review of election irregularities, in violation of due process.”
[Chesebro will later forward this email to Eastman on Jan. 2.]
16. First two weeks of December: “Eastman reached out to sympathetic state legislators in Pennsylvania, Georgia, and Arizona, urging them to decertify Biden electors and certify alternate Trump electors,” Judge Carter wrote in a recent order.
17. Giuliani and Trump Campaign officials are directly involved in orchestrating the plan across states, according to media reports.
CNN report:
“Trump campaign officials, led by Rudy Giuliani, oversaw efforts in December 2020 to put forward illegitimate electors from seven states that Trump lost, according to three sources with direct knowledge of the scheme.
The sources said members of former President Donald Trump’s campaign team were far more involved than previously known in the plan, a core tenet of the broader plot to overturn President Joe Biden’s victory when Congress counted the electoral votes on January 6.
Giuliani and his allies coordinated the nuts-and-bolts of the process on a state-by-state level, the sources told CNN. One source said there were multiple planning calls between Trump campaign officials and GOP state operatives, and that Giuliani participated in at least one call. The source also said the Trump campaign lined up supporters to fill elector slots, secured meeting rooms in statehouses for the fake electors to meet on December 14, 2020, and circulated drafts of fake certificates that were ultimately sent to the National Archives.”
In addition: “It was Rudy and these misfit characters who started calling the shots,” a former Trump campaign staffer told CNN.
In addition: “Both [fake electors] Maddock from Michigan and DeMarco from Pennsylvania have said they were in direct contact with members of the Trump campaign.”
Washington Post report:
“The Trump electors gathered in plain sight, assisted by campaign officials and Trump attorney Rudolph W. Giuliani, who said publicly that the rival slates were necessary and appropriate. Internally, Giuliani oversaw the effort, according to former campaign officials and party leaders.”
“The campaign scrambled to help electors gain access to Capitol buildings, as is required in some states, and to distribute draft language for the certificates that would later be submitted to Congress, according to the former campaign officials and party leaders.
The campaign also worked to find replacements for the electors who were unable to participate, or unwilling.”
18. A false elector from Michigan implicates the Trump Campaign. Meshawn Maddock, co-chair of the Michigan Republican Party, says in recorded remarks: “We fought to seat the electors. Um, the Trump campaign asked us to do that — under a lot of scrutiny for that today.”
19. By Dec. 11, 2020: An admission of involvement in a footnote in Trump’s court filing an emergency petition in Wisconsin.
Two notes:
Note 1. The petition describes the electors certifications as based on the contingency of a “later determination” that they are the duly appointed electors for their state. However, the Trump campaign pressured (unsuccessfully) the Pennsylvania false electors to drop any reference to such a caveat in their certification document (see below).
Note 2. In reference to a “later determination,” the petition does not say determined by whom. It leaves open that the determination will be made by state legislatures or Congress/the President of the Senate VP Pence, which would accord with the Chesebro and Eastman memos.
20. Dec 13, 2020: Directives from Trump campaign.
Trump Campaign election operations director for Georgia, Robert Sinners sends an email instructing Republicans planning to cast electoral college votes for Trump in Georgia to operate in “complete secrecy.” “Your duties are imperative to ensure the end result — a win in Georgia for President Trump — but will be hampered unless we have complete secrecy and discretion,” Sinners writes. According to the Washington Post: Sinners’ “email went on to instruct the electors to tell security guards at the building that they had an appointment with one of two state senators. ‘Please, at no point should you mention anything to do with Presidential Electors or speak to the media,’ Sinners continued in bold.”
“In a statement, Sinners said he was working at the direction of senior campaign officials and Georgia Republican Party Chairman David Shafer, who served as a Trump elector in the state,” the Post said.
21. Runup to Dec. 14, 2020: Trump Campaign officials get into a dispute with some of the potential electors over whether the certificates should include caveats, with Trump Campaign officials pressing the false electors not to include any caveats about whether they will be duly authorized only upon a future determination.
CNN: “One of the pro-Trump electors from Pennsylvania, Sam DeMarco, told CNN there was a last-minute dispute, where the state’s GOP electors pushed Trump campaign officials to add legal caveats to the fake certificate to say they were only electors-in-waiting, if Trump’s legal challenges prevailed.”
CNN also reports:
“Demarco, who was one of the state’s pro-Trump electors, and is the chairman of the Allegheny County Republican Committee, told CNN he and other alternate electors signed the certificate at the Trump campaign’s request but first demanded the language be changed to make clear it was not intended to contest the will of voters in that state who voted for Biden.
The hedging language was included at the last moment as the Trump campaign had concerns, and questioned whether the change was appropriate in the immediate lead-up to December 14, according to a Trump campaign staffer with knowledge of the matter.
Ultimately the Trump campaign acquiesced. But the internal debate shows that even some of Trump’s strongest allies were concerned about the attempts to overturn the 2020 election.”
Lancaster News also reported on the dispute and that “Trump campaign lawyer James Fitzpatrick, of Philadelphia, pitched the declaration to electors as a way of preserving Trump’s legal rights should his election challenges prevail, DeMarco said.”
NEW: A subpoena for Chesebro issued by the Fulton County grand jury alleged that Chesebro “worked with the leadership of Georgia Republican Party, including Chairman David Shafer,” “drafted at least two memoranda in support of this plan, which were provided to the Georgia Republican Party,” “provided template Microsoft Word documents” to be used by the party during the planned Dec. 14 alternate certification; and “worked directly” with Giuliani in coordinating and executing the plan.
NEW: As the campaign’s litigation losses mounted, three of its lawyers, Justin Clark, Matt Morgan and Josh Finley, withdrew or decided not to participate in the alternate electors scheme (Transcript of Day 4, January 6 Committee Hearings).
NEW: The decision of Trump campaign lawyers not to participate is not revealed to state officials and other campaign staff. The former Wisconsin Republican Party chair testified that he was told the alternate electors’ votes would “only count if a court ruled in our favor,” and he testified otherwise he and others would not have participated if they knew the Trump team would be “using our electors in ways that we weren’t told about.”
NEW: The January 6 Committee reviewed documents “indicat[ing] that instructions were given to the electors in several states that they needed to cast their ballots in complete secrecy,” and “[o]ne group of fake electors even considered hiding overnight to ensure that they could access the state capitol as required in Michigan.” In one state, “the fake electors even asked for a promise that the campaign would pay their legal fees if they got sued or charged with a crime.”
22. Dec. 14, 2020: The false Trump electors meet in seven states to issue their certificates, which are later published by American Oversight as a result of a FOIA request to the National Archives.
In five of the states, the documents declare that the signatories are the “duly elected and qualified Electors” of their state (Arizona, Georgia, Michigan, Nevada, and Wisconsin)
The two other states include a caveat.
The New Mexico caveat states:
“WE, THE UNDERSIGNED, on the understanding that it might later be determined that we are the duly elected and qualified Electors”
The Pennsylvania caveat states:
“WE, THE UNDERSIGNED, on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors”
23. Dec. 14, 2020: The Pennsylvania Republican Party issues a press release which states in its opening two lines:
“At the request of the Trump campaign, the Republican presidential electors met today in Harrisburg to cast a conditional vote for Donald Trump and Mike Pence for President and Vice President respectively.
‘We took this procedural vote to preserve any legal claims that may be presented going forward,’ said Bernie Comfort, Pennsylvania Chair of the Trump campaign. ‘This was in no way an effort to usurp or contest the will of Pennsylvania voters.’” (emphasis added)
24. Dec. 14, 2020: Stephen Miller, a Trump Campaign official says on Fox News: “As we speak today an alternate slate of electors in the contested states is going to vote and we are going to send those results up to Congress. This will ensure that all of our legal remedies remain open.” That means that if we win these cases in the courts, then we can direct that the alternate slate of electors be certified.”
25. Dec. 14, 2020: Giuliani admits role on Steve Bannon show but says it is designed for the contingency “if any of the campaign’s remaining challenges succeeded”:
Stephen K. Bannon quizzed Giuliani that same day on his podcast, referring to the effort as “something Rudy and the team have worked on.” Bannon asked: “Why are you sending electors? … Why is the Trump campaign sending its own slate of electors to these state capitals?”
Giuliani said that based on his team’s legal research and “advice we‘ve gotten from a number of professors,” they decided to act “out of an excess of caution” to preserve the chance for the votes to be counted for Trump if any of the campaign’s remaining challenges succeeded.
NEW: 26. Dec. 14-15, 2020: Exhaustion of the Process
Secretary of Labor Gene Scalia testified that he told Trump in mid-December, when the electors had voted, the legal processes were exhausted and it was time to “concede the outcome.”
White House Deputy Press Secretary Judd Deere, testified, “I told him that my personal viewpoint was that the Electoral College had met, which is the system that our country is set under to elect a President and Vice President. And I believed at that point that the means for him to pursue litigation was probably closed.” Trump’s response? “He disagreed,” Deere saiud.
Attorney General Bill Barr testified that “December 14th was the day that the states certified their votes and sent them to Congress. And in my view, that was the end of the matter.”
White House Counsel Pat Cipollone testified that Trump should have conceded the election by the time when Sen. Mitch McConnell confirmed the election was over on December 15, 2022. “I believe he should concede the election at a point in time? Yes, I did. I believe Leader McConnell went on to the floor of the Senate, I believe in late December, and basically said, you know, the process is done. You know, that would be in line with my thinking on these things,” Cipollone testified.
NEW: 27. Dec. 23, 2020: Eastman writes in an email to a Trump campaign staffer that even though the false electors had not been approved by state authority, “[t]he fact that we have multiple slates of electors demonstrate[sic] the uncertainty of either. That should be enough.”
28. Republicans who refused to participate in the false elector plan spoke to the Washington Post stating their reasons for their decision (in an article published in January 2022).
Among the electors who declined to participate was Pennsylvania GOP Chairman Lawrence Tabas, an election-law expert who had defended Trump in 2016 against a recount push by Green Party candidate Jill Stein.
“While Lawrence was originally selected to be an elector by the Trump campaign, he did not serve as an elector because Joe Biden won the election and it was Biden’s electors that were certified,” Vonne Andring, a senior adviser to the state party, said in a statement to The Post.
Andring also said that it was the presidential campaign that drove the process. The party, she said, “did not select electors, nor did it coordinate elector events and communications.”
In Georgia, John Isakson, an original Trump elector, told The Post that he bowed out because he did not want to attend what he had perceived as a “political rally.” …
… “We have a process for certifying the election. We have a process for challenging the election. The challenges failed, so I wouldn’t have participated in something that was going against all of that.”
Former congressman Tom Marino of Pennsylvania, another original Trump elector, had been among the first members of Congress to back Trump’s presidential bid in 2016. But he, too, balked at casting an electoral vote for Trump in a state where Biden was the certified winner. Earlier in December, then-Attorney General William P. Barr said he had not seen widespread fraud that could have upended the election.
“I was disappointed in the election,” Marino said in an interview, “but as a former prosecutor, when the attorney general says he’s not finding anything here, that’s good enough for me.”
Marino, who retired in 2019, added: “I’m a constitutionalist and have always been a constitutionalist. … I believe in the rule of law and whatever the courts determined. I’m not going to jump on a bandwagon to say that I know better than the courts.”
29. Dec. 16, 2020: Sen. Mike Lee (R-UT) texts Meadows four messages in a row:
“I have grave concerns with the way my friend Ted is going about this effort.”
“This will not inure to the benefit of the president.”
“Everything changes, of course, if the swing states submit competing slates of electors pursuant to state law.”
“But if not, this could help people like Ted and Josh to the detriment of DJT.”
Later Sen. Lee texts:
“I don’t think the president is grasping the distinction between what we can do and what he would like us to do. Nor do I think he’s grasping the distinction between what certain members are saying that sound like they could help him, but would really hurt him. He’s got a very real opportunity for a win in 2024. That opportunity could be harmed in multiple ways this effort.”
“Again, all of this could change if the states in question certified Trump electors pursuant to state law. But in the absence of that, this effort is destined not only to fail, but to hurt DJT in the process.”
And later:
“I don’t purport to know who fits into which category. I know only that this will end badly for the president unless we have the Constitution on our side. And unless these states submit new slates of Trump electors pursuant to state law, we do not.”
“We should chat then. I’d love to be proven wrong about my concerns. But I really think this could all backfire badly unless we have legislatures submitting trump slates (based on a conclusion that this was the proper result under state law). Even setting aside constitutional concerns, this will be harmful to the president if we don’t channel this effort properly. We simply have no authority to reject a state’s certified electoral votes in the absence of a dueling slates, with the Trump slate coming from a state legislative determination.”
30. Dec. 17, 2020: Former White House Press Secretary Kayleigh McEnany mentions on Fox News that there is an “alternate slate of electors voted upon that Congress will decide in January” in multiple states.
31. Dec. 19, 2020: Eastman emails someone with whom he had exchanged multiple emails following the election. Eastman writes: “As for the Legislatures–not a one has acted. Electors did in 7 states, but unless those electors get a certification from their State Legislators, they will be dead on arrival in Congress.”
32. On and around Dec. 22, 2020: Eastman and other attorneys discuss avoiding the courts due to the likelihood they will lose. Judge Carter’s June 2022 opinion states:
“In these emails, Dr. Eastman and his colleagues discuss how to frame their legal filings in light of what they considered a near-zero chance of success in the D.C. courts.
…
In the fifth email, dated December 22, 2020, an attorney … considers whether to bring a case that would decide the interpretation of the Electoral Count Act and potentially risk a court finding that the Act binds Vice President Pence. Because the attorney concluded that a negative court ruling would ‘tank the January 6 strategy,’ he encouraged the legal team to avoid the courts.”
30. On or before Dec. 23 and soon after Dec. 25 (timing according to judge Carter’s opinion), John Eastman writes his now infamous 2-page memo. Notably Eastman writes his memo in collaboration with Chesebro.
On Dec. 23, Eastman sends an email to someone with an email address apparently at the Trump Campaign (full email address redacted in court documents) and cc’s Kenneth Chesebro. It contains the 2-page memo. Eastman’s cover note says, “I’m fine with all of Ken’s edits. … Here’s the final.”
33. Dec. 28, 2020: Jeffrey Clark’s draft “Georgia Proof of Concept” letter relies on the existence of false alternate electors in an effort to overturn the results in Georgia and elsewhere.
Clark writes, “The Department believes that in Georgia and several other States, both a slate of electors supporting Joseph R. Biden, Jr, and a separate slate of electors supporting Donald J. Trump, gathered on that day at the proper location to cast their ballots, and that both sets of those ballots have been transmitted to Washington DC to be opened by Vice President Pence.”
As the Washington Post described the draft letter, “Clark falsely implied that the Justice Department believed the Trump electors were valid rivals to those put forward by Georgia and other states for Biden.”
White House Counsel Pat Cipollone told Trump and Clark in a White House meeting with other senior DOJ officials, “That letter is a murder-suicide pact. And it will damage anyone and anything that it touches” (former Acting Deputy Attorney General Richard Donoghue, transcribed interview with Senate Judiciary Committee).
NEW: 34. Dec. 29, 2020: White House Special Assistant and Oval Office Coordinator emails a draft Supreme Court brief to Justice Department senior officials which would have the United States petition the Supreme Court to contest the election results. The Justice Department rebuffs the idea. As Steven Engel, who was head of the Justice Department’s Office Legal Counsel, testified before the Select Committee:
“The lawsuit would have been untimely. The states had chosen their electors. The electors had been certified. They’d cast their votes. They’d been sent to Washington, DC. Neither Georgia nor any of the other states on December 28th, or whenever this was, was in a position to change those votes. The — essentially the election had happened. The only thing that hadn’t happened was the formal counting of the votes.
And so obviously, you know, the person who drafted this lawsuit didn’t really understand in my view, you know, the law and or how the Supreme Court works.”
35. Dec. 31, 2020-Jan. 3, 2021: Trump and Clark try to pressure acting Attorney General Rosen to sign and send the Proof of Concept letter. These bullet points are from a previous Just Security article:
- December 31, 2020 or January 1, 2021: Clark tells Rosen that Trump wants an answer from Clark by Monday (Jan. 4, 2021) about whether Clark is willing to be considered to replace Rosen as Acting Attorney General. Clark expresses that he is not satisfied with Donoghue and Rosen’s position on his letter to the Georgia legislature, and Clark says that he will decline the position of Acting Attorney General if Rosen follows Clark’s suggestions. Rosen again refuses to send Clark’s letter to the Georgia legislature (Rosen testimony, pp. 141, 144-46).
- January 3, 2021: Clark tells Rosen that Trump has offered Clark the position of Acting Attorney General and that Clark has accepted. Clark says that the schedule has moved up, and he will replace Rosen this same day (Rosen testimony, pp. 158-59).
- January 3, 2021: At a White House meeting between Trump, senior DOJ officials, and senior White House officials, Trump considers installing Clark as Acting Attorney General and sending Clark’s proposed letter. Donoghue and head of the Office of Legal Counsel Steve Engel tell Trump that all of the Assistant Attorneys General will resign if Trump replaces Rosen with Clark, and they warn that other DOJ officials may also resign “en masse.” Trump entertains the idea for most of the duration of the two to three hour meeting, but ultimately decides against installing Clark.
In their Senate Judiciary Committee transcribed interviews, “Rosen and Donoghue told us that by this point, Clark’s proposed letter and his potential role as Acting Attorney General were intertwined” (Senate Judiciary Committee report, citing Donoghue Tr. at 152; Rosen Tr. at 49).
36. Dec. 31, 2020: Jenna Ellis, a member of Giuliani’s legal team, writes a 1-page memorandum addressed to President Trump. It states that Pence should not accept votes in which “six states currently have electoral delegates in dispute,” on the ground that Pence cannot exercise his “responsibility [to open all electoral votes from the electors chosen in the manner prescribed by the state legislatures] if he does not know which ones were so chosen.” She writes that Pence should ask those legislatures to meet and inform him which to count, and if they do not do so in time, their state electors will not be counted (see also Politico reporting).
37. Jan. 2, 2021: Trump, Giuliani, and Eastman’s conference call with 300 state legislators. From Barbara McQuade’s Just Security article:
Later on Jan. 2, 2021, Trump and attorneys Rudolph Giuliani and John Eastman conducted a Zoom conference call with 300 legislators from swing states won by Biden. According to Michigan State Sen. Ed McBroom (R), who participated in the call, the Trump team urged the legislators to overturn the choice of voters in their states, but provided no evidence of voter fraud. As McBroom reported: “I was listening to hear whether they had any evidence to substantiate claims” of significant voter fraud that could change the results in Michigan.” “(T)he callers did not provide additional information, he said, and he did not support a delay in the electoral vote count.”
38. Jan 2, 2021 at 7:43pm: Chesebro forwards to Eastman his Dec. 13 email to Giuiliani.
39. Jan. 3, 2021: Eastman writes his 6-page memo. The memo states: “BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”
40. Jan. 4, 2021: President Trump holds an Oval Office meeting with Eastman, Pence, Marc Short, and Greg Jacob. Barbara McQuade’s earlier Just Security article summarizes the publicly available information on the meeting (see L in her model prosecution memo; see also Greg Jacob’s and others’ testimony in Select Committee’s third June hearing).
NEW: 41. Jan. 4, 2021: Eastman calls Rusty Bowers, the Republican speaker of the Arizona House, asking that the state legislature “de-certify the electors” claiming the body has “plenary authority to do so” under Article II. Bowers refuses, stating the action is unprecedented and would violate his oath to uphold the Constitution and the law, but Eastman says, “Just do it and let the court sort it out” (Transcript of Day 4, January 6 Committee Hearings).
NEW: 42. Jan. 4, 2021: The Trump Campaign requested in texts to Wisconsin Republican Party officials for someone to transport the fake electors’ documents to Washington (Transcript of Day 4, January 6 Committee Hearings).
43. Jan. 4, 2021 at 8:51pm: Chesebro sends another email to Eastman that resends the Dec. 13 email to Giuliani and appears to have Chesebro’s Nov. 18 memo as an attachment (2020-11-18 Chesebro memo on real deadline.pdf).
44. Jan. 4, 2020: Sen. Mike Lee (R-UT) texts with Meadows:
From Meadows to Sen. Lee:
“Apparently, he was told that you came out with a letter against the electoral objections. I told him that you were being very helpful. Bad intel”
From Sen. Lee to Meadows:
“I’ve been spending 14 hours a day for the last week trying to unravel this for him. To have him take a shot at me like that in such a public setting without even asking me about it is pretty discouraging.”
From Meadows to Sen. Lee:
“I pushed back. It wasn’t in the prepared remarks. So sorry. He will call”
From Sen. Lee to Meadows:
“It’s not your fault. But I’ve been calling state legislators for hours today, and am going to spend hours doing the same tomorrow. I’m trying to figure out a path that I can persuasively defend, and this won’t make it any easier, especially if others now think I’m doing this because he went after me. This just makes it a lot more complicated. And it was complicated already. We need something from state legislatures to make this legitimate and to have any hope of winning. Even if they can’t convene, it might be enough if a majority of them are willing to sign a statement indicating how they would vote.”
From Sen. Lee to Meadows:
“And I’ve been working on doing that all day today.”
From Sen. Lee to Meadows:
“But now, my ability to do that with credibility is impaired.”
From Meadows to Sen. Lee:
“So very sorry. I told him that you and I have been working it hard on his behalf.”
NEW: 45. Unknown date: “Pence’s chief of staff, Marc Short, told The Post that Giuliani and his associates forwarded letters [to Pence] from individual state legislators objecting to Biden’s electors and arguing the Trump electors should be recognized instead. Short and Pence’s legal team reviewed the unsolicited letters but were not persuaded there was any legal basis to accept Trump electors who had not been certified by their states, Short said” (Washington Post).
46. Jan. 5, 2021: Eastman meets with Marc Short and Greg Jacob. Barbara McQuade’s earlier Just Security article summarizes the publicly available information on the meeting (see N in her model prosecution memo; see also Greg Jacob’s and others’ testimony in Select Committee’s third June hearing).
47. Jan. 5, 2021: Jenna Ellis, a member of Giuliani’s legal team, writes a second 2-page memorandum addressed to Trump attorney Jay Sekulow. The memo states that “the Vice President should begin alphabetically in order of the states, and coming first to Arizona, not open the purported certification, but simply stop the count at that juncture” on the ground that those electors may have not been properly “ascertained.”
48. Jan. 5. 2021: Vice President Pence’s chief counsel Greg Jacob writes a 3-page memorandum addressed to the vice president explaining that Eastman’s proposal to “skip opening and reading the electoral Certificates for any state for which an alternate but uncertified slate of electors has been submitted” is unlawful. “Professor Eastman acknowledges that his proposal violates several provisions of statutory law” including the Electoral Count Act, the memorandum states.
NEW: 49. Jan. 6, 2021: In the morning, Rep. Andy Biggs (R-Ariz.) calls Bowers asking for him to support decertification and sign onto a letter to that effect. Bowers again refuses (Transcript of Day 4, January 6 Committee Hearings).
NEW: 50. Jan. 6, 2021: The House Select Committee found that “[a] staffer for Wisconsin[] Senator Ron Johnson texted a staffer for Vice President Pence just minutes before the beginning of the joint session. This staffer stated that Senator Johnson wished to hand deliver to the Vice President” alternative electors’ votes from Michigan and Wisconsin. Pence’s aide “unambiguously instructed them not to deliver the fake votes to the Vice President. Even though the fake elector’s slates were transmitted to Congress and the executive branch, the Vice President held firm in his position that his role was to count lawfully submitted electoral votes.”
51. Jan, 6, 2021: Vice President Pence reads out the vice presidential script for publicly counting electoral votes after he drafts new language, approved by the congressional parliamentarians, to address the false alternate slate of electors. He states that the certificates introduced will be the ones that “the parliamentarians have advised me is the only certificate of vote from that state, and purports to be a return from the state, and that has annexed to it a certificate from an authority of that state purporting to appoint or ascertain electors.”
52. Jan. 6, 2021 after the attack on the Capitol began: Pence’s chief counsel Greg Jacob exchanges heated emails with Eastman. In one email, Jacob says, “thanks to your bull—-, we are now under siege.”
At 4:29pm, Jacob emails Eastman: “Did you advise the President that in your professional judgment the Vice President DOES NOT have the power to decide things unilaterally?” Eastman replies: “He’s been so advised, as you know because you were on the phone when I did it. I should not discuss other conversations that I may or may not have had privately on that score with someone who is a client. But you know him — once he gets something in his head, it is hard to get him to change course.”
53. Jan. 10, 2021: An individual (name redacted in court records) emails Eastman asking, “Tell us in layman’s language, what the heck happened with the dual electors? Please?” Eastman responded in full: “No legislature certified them (because governors refused to call them into session), so they had no authority, Alas.”
54. March 28, 2022: In a civil case, a federal district court holds that Eastman and Trump more likely than not engaged in a criminal conspiracy to overturn the election through pressuring Pence to reject the Biden electors in accordance with Eastman’s plans submitted to Trump (Judge David O. Carter decision applying a preponderance of the evidence standard). As noted above, Carter’s subsequent June 2022 opinion states that “Dr. Eastman and President Trump’s plan to disrupt the Joint Session was fully formed and actionable as early as December 7, 2020.” It also states, “a critical objective of the January 6 plan: to have contested states certify alternate slates of electors for President Trump.”
Originally published by the Just Security, 07.18.2022, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.
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