3.3 The Campaign Legal Team Bows Out, and Giuliani Steps In

3.3 The Campaign Legal Team Bows Out, and Giuliani Steps In

¶Rudy Giuliani speaks inside the Republican National Committee Headquarters in November about various lawsuits related to the 2020 election. (Photo by Drew Angerer/Getty Images)

¶Not everyone on the campaign was eager to pursue the fake elector plan. On December 11th, the U.S. Supreme Court rejected a high-profile lawsuit filed by the State of Texas challenging the election results in Pennsylvania, Georgia, Michigan, and Wisconsin.⁴²⁴² Order Dismissing Bill of Complaint and Denying Certiorari, Texas v. Pennsylvania, 592 U.S. ___, (Dec. 11, 2020) (No. 155, Orig.), available at https://www.supremecourt.gov/orders/courtorders/121120zr_p860.pdf. After that decision, the Trump Campaign’s senior legal staffers said that they reduced their involvement in the fake elector effort, apparently because there was no longer a feasible scenario in which a court would determine that President Trump actually won any of the States he contested.⁴³⁴³ See, e.g., Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Joshua Findlay, (May 25, 2022), pp. 87–88. Justin Clark, who oversaw the Trump Campaign’s general counsel’s office, said that he basically conveyed, “I’m out,” and encouraged his colleagues on the legal team to do the same.⁴⁴⁴⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Justin Clark, (May 17, 2022), p. 116. Findlay told the Select Committee that “we backed out of this thing,” and Morgan, his boss, said he had Findlay pass off responsibility for the electors as “my way of taking that responsibility to zero.”⁴⁵⁴⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Joshua Findlay, (May 25, 2022), p. 69; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Matthew Morgan, (Apr. 25, 2022), p. 74.

¶Clark told the Select Committee that “it never sat right with me that there was no . . . contingency whereby these votes would count.”⁴⁶⁴⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Justin Clark, (May 17, 2022), p. 118. “I had real problems with the process,” Clark said, because “it morphed into something I didn’t agree with.”⁴⁷⁴⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Justin Clark, (May 17, 2022), p. 114. In his view, the fake electors were “not necessarily duly nominated electors” despite being presented as such.⁴⁸⁴⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Justin Clark, (May 17, 2022), pp. 114, 116. He said he believed he warned his colleagues that “unless we have litigation pending like in these States, like I don’t think this is appropriate or, you know, this isn’t the right thing to do.”⁴⁹⁴⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Justin Clark, (May 17, 2022), pp. 116, 118. However, Justin Clark’s message in an email dated December 24th seems to potentially contradict his suggestions that the campaign legal team fully backed out: “In terms of political judgements on January 6 I know . . . that plans are being discussed and executed: alternate slates have been submitted, votes are being whipped, all of the arguments are in place and a not insignificant ad b[u]y was made highlighting the issues in the election.” Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (William Stepien Production), WS 00036.Show full note

¶Morgan told the Select Committee that he saw no value in pushing slates of purported electors if they were not authorized by a State government’s certificate of ascertainment. As he put it, “[M]y view was, as long as you didn’t have a certificate of ascertainment, then the electors were, for lack of a better way of saying it, no good or not—not valid.”⁵⁰⁵⁰ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Matthew Morgan, (Apr. 25, 2022), p. 70. Findlay confirmed that Morgan told him after the Supreme Court ruling on December 11th that “there’s not really anything left for us to do on this project” and that “it doesn’t seem like a good idea for us to be involved in it.”⁵¹⁵¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Joshua Findlay, (May 25, 2022), pp. 39–40.

¶Campaign lawyers were not the only ones who doubted the legality of the fake elector plan. The Office of White House Counsel appears to have expressed concerns about it, as well. In his testimony to the Select Committee, White House Counsel Pat Cipollone acknowledged his view that by mid-December, the electoral process was “done.” Cipollone told the Select Committee that the White House Counsel’s office “probably” had discussions about the electors plan and that his Deputy, Pat Philbin, would have been involved in evaluating the electors issue.⁵²⁵² Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Pasquale Anthony “Pat” Cipollone, (July 8, 2022), pp. 69–70, 73. In an informal Committee interview, Philbin described the fake elector scheme as one of the “bad theories” that were like “Whac-A-Mole” in the White House during this period.⁵³⁵³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Patrick Philbin, (Apr. 13, 2022). Mr. Cipollone agreed with this characterization.⁵⁴⁵⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Pasquale Anthony “Pat” Cipollone, (July 8, 2022), pp. 75–76.

¶In her testimony, Cassidy Hutchinson testified that she heard at least one member of the White House Counsel’s Office say that the plan was not legal:

Committee Staff: . . . to be clear, did you hear the White House Counsel’s Office say that this plan to have alternate electors meet and cast votes for Donald Trump in States that he had lost was not legally sound?

Hutchinson: Yes, sir.⁵⁵⁵⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (Mar. 7, 2022), p. 64–65. (Hutchinson later clarified that she recalled hearing that from Pat Cipollone and, potentially, also Pat Philbin.)

¶She also recalled a meeting that took place in or before mid-December during which this view was relayed to Giuliani and members of his team by lawyers in the White House Counsel’s Office.⁵⁶⁵⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (Mar. 7, 2022), pp. 64–65.

¶By December 11th, Findlay emailed his main points of contact in six battleground States to say “[t]hank you for your work on the presidential elector project” and, in order to pass off his responsibilities, let them know that “Rudy’s team has designated Kenneth Chesebro as the point person for the legal documents” going forward.⁵⁷⁵⁷ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Joshua Findlay Production), JF052.

¶While the campaign’s core legal team stepped back from the fake elector effort on December 11th, it nonetheless went forward because “Rudy was in charge of [it]” and “[t]his is what he wanted to do,” according to Findlay.⁵⁸⁵⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Joshua Findlay, (May 25, 2022), pp. 87–88. When Findlay was asked if this decision to let the effort proceed under Giuliani’s direction “was coming from your client, the President,” Findlay responded: “Yes, I believe so. I mean, he had made it clear that Rudy was in charge of this and that Rudy was executing what he wanted.”⁵⁹⁵⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Joshua Findlay, (May 25, 2022), pp. 87–88. Findlay also recalled being told that Chesebro’s elector memos had become “the justification for why Rudy and Ken were going to keep going forward with this stuff.”⁶⁰⁶⁰ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Joshua Findlay, (May 25, 2022), p. 44. He explained that Giuliani “really bought into Ken’s theory on this,” and that the two of them “were kind of the main ones driving this” from that point forward.⁶¹⁶¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Joshua Findlay, (May 25, 2022), p. 30. Clark told the Select Committee that “. . . my understanding of who was driving the process . . . was Mayor Giuliani and his team.”⁶²⁶² Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Justin Clark, (May 17, 2022), p. 125. On December 10th, when Kenneth Chesebro emailed one of the State party officials involved in organizing the fake elector effort in Nevada, he reported that “I spoke this evening with Mayor Guiliani [sic], who is focused on doing everything possible to ensure that that [sic] all the Trump-Pence electors vote on Dec. 14.”⁶³⁶³ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (James DeGraffenreid Production), CTRL0000044010_00031 (Dec. 10, 2020 email from Kenneth Chesebro to James DeGraffenreid and others).

¶In the days that followed this handoff, Chesebro would draft and distribute documents intended for use in the Trump team’s fake elector ceremonies that were then shared with key contacts in Arizona,⁶⁴⁶⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Joshua Findlay Production), JF051, JF054. Georgia,⁶⁵⁶⁵ Documents on file with the Select Committee to investigate the January 6th Attack on the United States Capitol (David Shafer Production), 108751.0001_000004, 108751.0001_000019, 108751.0001_000020, 108751.0001_000021, 108751.0001_000024. Michigan,⁶⁶⁶⁶ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Joshua Findlay Production), JF049. Nevada,⁶⁷⁶⁷ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (James DeGraffenreid Production), DEGRAFFENREID 000786; Documents on file with the Select Committee to investigate the January 6th Attack on the United States Capitol (Michael McDonald Production), MCDONALD 000789. New Mexico,⁶⁸⁶⁸ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Joshua Findlay Production), JF061. Pennsylvania,⁶⁹⁶⁹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Lawrence Tabas Production), CTRL0000061077. and Wisconsin.⁷⁰⁷⁰ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Andrew Hitt Production), Hitt000011. He also gave some of the groups step-by-step logistical guidance, such as when and where they should convene, how many copies each person would need to sign, and to send their fake votes to Congress via registered mail.⁷¹⁷¹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Andrew Hitt Production), Hitt000011. “Pretty Simple!” he commented in some of these emails.⁷²⁷² Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Andrew Hitt Production), Hitt000011; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (David Shafer Production), 108751.0001 000004; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Lawrence Tabas Production), CTRL0000061077; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (James DeGraffenreid Production), DEGRAFFENREID 000786; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Kenneth Chesebro Production), KC_Elector_Correspondence_000211, KC_Elector_Correspondence_000215.Show full note

¶A campaign operative named Michael Roman was also tapped for a major operational role in the fake elector effort. When Findlay sent his email handing off certain responsibilities for the initiative, he also wrote that Giuliani’s team had designated Roman “as the lead for executing the voting on Monday” December 14th.⁷³⁷³ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Joshua Findlay Production), JF052. Roman was the Trump Campaign’s Director of Election Day Operations (EDO), with team members who specialized in political outreach and mobilization in battleground States where the Trump team now urgently needed the fake electors to meet on December 14th.

¶With help from his EDO staff, as well as Giuliani’s team and RNC staffers working alongside the Campaign as part of the Trump Victory Committee, Roman ran an improvised “Electors Whip Operation.”⁷⁴⁷⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Robert Sinners Production), CTRL0000083897, CTRL0000083898. For example, Roman sent an email on December 12th directing an aide to create “a tracker for the electors” with tabs for Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, listing contact information, whether they had been contacted, whether they agreed to attend on December 14th, and names of “[s]ubstitute electors” to replace any reticent or unavailable participants as needed.⁷⁵⁷⁵ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Robert Sinners Production), CTRL0000083897. Roman referred to others on this email as the “WHIP TEAM” and directed them to fill out the spreadsheet, to update him on “what you have and what you need,” and to plan on a call that evening.⁷⁶⁷⁶ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Robert Sinners Production), CTRL0000083897. Members of this team appear to have included Trump Victory Committee or Trump Campaign EDO State or regional directors for relevant States, including Arizona and New Mexico (Thomas Lane), Georgia (Robert Sinners), Michigan (Shawn Flynn), Nevada (Jesse Law and Valerie McConahay), Pennsylvania (James Fitzpatrick), and Wisconsin (Ryan Terrill, who had originally worked on North Carolina issues but later shifted to Wisconsin), as well as Mr. Roman’s deputy (G. Michael Brown). See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Laura Cox Production), Laura Cox 000339; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Rudy Giuliani Production), RGGLOBAL_DOM_00001373; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Tim Murtaugh Production) XXM-0010338, XXM-0008776, XXM-0011867; Richard Ruelas, “Trump Campaign Official Subpoenaed by FBI Appears to Be at Meeting of Fake Arizona Electors,” Arizona Republic, (June 23, 2022), available at https://www.azcentral.com/story/news/politics/arizona/2022/06/23/fbi-subpoenas-thomas-lane-trump-campaign-arizona/7708133001/; Jonathan Oosting, “Trump Fake Elector Probe into 2020 Race Expands with Michigan Subpoenas,” Bridge Michigan, (June 23, 2022), available at https://www.bridgemi.com/michigan-government/trump-fake-elector-probe-2020-race-expands-michigan-subpoenas; Zach Montellaro and Holly Otterbein, “Trump Calls for Poll Watchers. Election Officials Call for Calm,” Politico, (Sept. 30, 2020), available at https://www.politico.com/news/2020/09/30/trump-poll-watchers-election-423996; Luke Broadwater, “Jan. 6 Inquiry Subpoenas 6 Tied to False Pro-Trump Elector Effort,” New York Times, (Feb. 15, 2022), available at https://www.nytimes.com/2022/02/15/us/politics/jan-6-subpoenas-trump.html.Show full note

¶In the days that followed, this group focused on tracking which Republicans previously named as President Trump’s nominees to the electoral college would be willing to show up for fake elector ceremonies, finding adequate substitutes for those who refused to attend, and actually coordinating the unrecognized elector signing ceremonies in seven States on December 14th.⁷⁷⁷⁷ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Robert Sinners Production), CTRL0000083898. In all seven States, these efforts to mobilize fake electors benefitted from support from the RNC, as well as the State Republican parties.⁷⁸⁷⁸ David Shafer (@DavidShafer), Twitter, Dec. 14, 2020 12:51 p.m. ET, available at https://twitter.com/DavidShafer/status/1338542161932021762; David Shafer (@DavidShafer), Twitter, Dec. 14, 2020 1:07 p.m. ET, available at https://twitter.com/DavidShafer/status/1338546066346676224; “Republican Electors Cast Procedural Vote, Seek to Preserve Trump Campaign Legal Challenge,” Pennsylvania Republican Party website, (Dec. 14, 2020), available at https://pagop.org/2020/12/14/republican-electors-cast-procedural-vote/; “Statement on Republican Electors Meeting,” Republican Party of Wisconsin, (Dec. 14, 2020), available at https://wisgop.org/republican-electors-2020/; Republican Party of Arizona (@AZGOP), Twitter, Dec. 14, 2020 5:13 p.m. ET, available at https://twitter.com/AZGOP/status/1338608056985239554.Show full note However, it was the Trump team who drove the process from start to finish, as one of the fake electors and later co-chair of the Michigan Republican party, Meshawn Maddock, told an audience in January 2022: “We fought to seat the electors. The Trump campaign asked us to do that.”⁷⁹⁷⁹ Marshall Cohen, Zachary Cohen, and Dan Merica, “Trump Campaign Officials, Led by Rudy Giuliani, Oversaw Fake Electors Plot in 7 States,” CNN, (Jan. 20, 2022), available at https://www.cnn.com/2022/01/20/politics/trump-campaign-officials-rudy-giuliani-fake-electors/index.html.