The subpoenas, three of which were reviewed by The Washington Post, are far-reaching, covering 18 separate categories of information, including any communications the recipients had with scores of people in six states where supporters of then-President Donald Trump sought to promote “alternate” electors to replace electors in those states won by Biden.
One request is for any communications “to, from, or including” specific people tied to such efforts in Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania and Wisconsin. Most of the names listed were proposed fake electors in those states, while a small number were Trump campaign officials who organized the slates.
Taken together, the subpoenas show an investigation that began immediately after the storming of the U.S. Capitol on Jan. 6, 2021, and has cast an ever-widening net, even as it gathers information about those in the former president’s inner circle.
“It looks like a multipronged fraud and obstruction investigation,” said Jim Walden, a former federal prosecutor. “It strikes me that they’re going after a very, very large group of people, and my guess is they are going to make all of the charging decisions toward the end.”
After being told the various categories of information sought in the indictment, Walden noted the focus on wide categories of communications among the individuals. He said he suspected it was part of a prosecutorial strategy to try to blunt any claims that Trump activists were just following the advice of lawyers in seeking to block the certification of Biden’s victory.
“It’s hard to say you were just relying on all these lawyers if there are text chains showing conspirator conversations, or consciousness of guilt,” Walden said.
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A subpoena is not proof or even evidence of wrongdoing, but rather a demand for information that could produce evidence of criminal conduct. The new batch of subpoenas point to three main areas of Justice Department interest, distinct but related:
- the effort to replace valid Biden electors with unearned, pro-Trump electors before the formal congressional tally of the 2020 election outcome on Jan. 6, 2021
- the rally that preceded the riot that day
- the fundraising and spending of the Save America political action committee, an entity that raised more than $100 million in the wake of the 2020 election, largely based on appeals to mount pro-Trump legal challenges to election results.
Even those three prongs don’t capture other, important parts of the Justice Department’s Jan. 6 investigation, in which more than 870 people have been arrested for alleged crimes of violence, trespass and — in the case of two extremist groups who prosecutors say played key roles in the chaos — seditious conspiracy. Hundreds more are still being sought for crimes related to the riot.
The Justice Department inspector general is investigating a former senior Justice Department official, Jeffrey Clark, for possible conspiracy, false statements and obstruction, according to a new letter filed in his bar disciplinary case. According to emails and public testimony, Clark tried to get the Justice Department to publicly express doubts about the election results, even going so far as to be willing to take over the department from his then-boss, Jeffrey Rosen, to do so. He has denied wrongdoing.
In another sign that the Justice Department’s own role in 2020 is also part of the ever-growing investigation, the recent subpoenas seek any communications with “any member, employee, or agent of the United States Department of Justice, or any component, branch, litigating unit, or office” of the agency.
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The subpoenas reviewed by The Post also seek broad categories of additional information from the recipients, who include former Trump aides and Republican activists. The subpoenas demand that recipients produce, within two weeks, all documents and communications “relating to Certification” of the election, as well as anything “relating to or constituting any evidence (a) tending to show that there was fraud of any kind relating to the 2020 Presidential Election, or (b) used or relied upon to support any claim of fraud in relation to the 2020 Presidential Election.”
Also requested is any documentation “relating to any information conveyed to you or any other person challenging, rebutting, undercutting, tending to show, or claiming that there was not fraud in the 2020 Presidential Election, or claiming or tending to show that any allegation of fraud was unfounded, baseless, or incorrect in whole or in part,” as well as anything sent to any local, state, or federal official about claims of election fraud, or efforts to persuade government officials to “change or affect” the election results, “or delay certification of the results.”
Some of the people who have received subpoenas said there was no way to comply within the two-week time frame, because there were so many categories of information and so many things to review, and some of the recipients don’t even have lawyers yet. It is not uncommon for recipients of subpoenas to seek and receive more time to produce all the requested information. Two Trump advisers said more than 30 people received subpoenas in the probe, including some who were low-level administrative staff. Trump’s team is arranging lawyers for at least some of the aides under subpoena, according to a person familiar with the matter, who spoke on the condition of anonymity to discuss the investigation.
Trump himself has not received a subpoena, according to a person close to him, who spoke on the condition of anonymity to discuss the matter.
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The burst of subpoenas comes about two months after a similar flurry in mid-June, which sought communications with dozens of individuals, including Trump lawyers and advocates such as Rudy Giuliani, Bernard Kerik and others.
Kerik is among those who were hit with a subpoena this month, showing that the Justice Department, which was criticized by some lawyers earlier this year for not aggressively investigating those close to Trump, is now examining the conduct of many different categories of people — including some very close to the former president.
Former Trump chief of staff Mark Meadows received a subpoena earlier in the summer seeking documents he had already turned over the House committee investigating the Jan. 6 attack, and has turned over responsive records, said a person familiar with the subpoena, who spoke on the condition of anonymity to discuss the matter. The subpoena did not seek Meadows’s testimony or documents he had withheld from the committee citing executive privilege, the person said.
CNN reported late Wednesday that Meadows provided documents to a Justice Department subpoena. Another former senior Trump adviser, Stephen Miller, also received a subpoena. His subpoena was first reported by the New York Times.
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After turning over thousands of emails and text messages to the House committee in response to a congressional subpoena, Meadows ended his cooperation with that panel, citing executive privilege. He also sued the House, seeking to quash the congressional subpoena; that case remains pending in federal court.
“Without confirming or denying any interaction with the Justice Department investigation, Mr. Meadows’ posture has been to meet his legal obligations as to both the production and privilege of documents or testimony,” George Terwilliger III, Meadows’s lawyer, said.
Meadows is far from the only subpoena recipient who has been asked to provide the Justice Department with records they have already provided to the House committee.
But the new batch of subpoenas ask others not only for whatever they have turned over to the committee but whatever documentation they have that would be responsive to the committee’s request — indicating that federal prosecutors are trying to make sure that if witnesses have come across new material, that they should provide that, too.
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The request for copies of what was already given to the Jan. 6 committee also points to a long-festering problem for the Justice Department — the House committee has been slow to provide the department access to the committee’s evidence, a potentially critical issue as prosecutors prepare to go to trial against members of the Oath Keepers group and others. The new subpoenas appear to be an attempt by the department, at least in part, to gather that evidence by other means.
The subpoenas also seek all “documents and communications relating to the Save America PAC, including, but not limited to, documents related to the formation of the Save America PAC, the funding of the Save America PAC, and/or the use of money received by the Save America PAC.”
By seeking information about the political action committee, the Justice Department appears to be looking for evidence of fraud. Prosecutors must meet a high legal threshold to bring criminal charges in such cases.
“You have to prove they knew it was a lie, and fraudulently raised money off it anyways,” said a person familiar with the matter, who spoke on the condition of anonymity to discuss an ongoing investigation. “I’m not sure any of the people [who donated to the PAC] would want action.”
The Justice Department has added fraud and public corruption experts to its investigative team, this person said, and is “fully staffed for business,” though, as the subpoenas reflect, that work is still in the early stages.