4.10 December 29th Meeting

¶The next day, Rosen, Donoghue, and Engel had a meeting with Mark Meadows, Pat Cipollone, and Cipollone’s deputy, Pat Philbin, in the White House Chief of Staff’s office.²²²²²² Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Steven Engel, (Jan. 13, 2022), pp. 27–28. While the meeting dealt primarily with the Presidential transition, the group discussed a draft civil complaint modeled after Texas v. Pennsylvania that the President wanted the Department of Justice to file challenging the results of the Presidential election, tentatively called United States v. Pennsylvania.²²³²²³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 86–87; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Jeffrey Rosen, (Oct. 13, 2021), pp. 79–80, 91–92, 132–33. The DOJ officials said that they had not had time to thoroughly review the proposed suit, but initially indicated that it appeared to be flawed and did not seem “viable” for DOJ to file.²²⁴²²⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Jeffrey Rosen, (Oct. 13, 2021), pp. 91–93, 132–33. Meadows suggested that the DOJ leadership meet with William Olson and Kurt Olsen, the two attorneys affiliated with the Trump Campaign that had been working on the proposed suit, and added that Eastman and a retired judge from North Carolina named Mark Martin both had views about the lawsuit.²²⁵²²⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 87; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Jeffrey Rosen, (Oct. 13, 2021), pp. 91–93, 132–33.

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¶In this meeting, Meadows also raised a new and outrageous allegation of election fraud: that an Italian company had been involved in changing votes in the Presidential election.²²⁶²²⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 88–89; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-06032021-000678 (January 1, 2021, email from Mark Meadows to Jeffrey Rosen with link to YouTube video); Brad Johnson, “Rome, Satellites, Servers: an Update,” YouTube, available at https://web.archive.org/web/20210102201919/https:/www.youtube.com/watch?v=YwtbK5XXAMk&feature=youtu.be (archived) (showing the conspiracy Meadows asked DOJ to investigate).Show full note According to Meadows, there was a man, whom Donoghue later learned was in an Italian prison, who claimed to have information supporting the allegation and that CIA officers stationed in Rome were either aware of the plot to interfere in the election or had participated in it.²²⁷²²⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 88-90. Donoghue described how it was apparent that Meadows was not clear on the specifics of the allegation but passed them along to DOJ to investigate, nonetheless.²²⁸²²⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 89. Following the meeting Donoghue provided the information to the FBI, which quickly determined that the allegations were not credible.²²⁹²²⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 90-91. Meadows and other senior officials in the Trump administration, however, pressed DOJ to investigate every allegation of fraud regardless of how absurd or specious.

¶In the days after the December 29th meeting with Meadows, the senior DOJ officials more closely examined the proposed United States v. Pennsylvania lawsuit and determined that DOJ could not file it.²³⁰²³⁰ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 87, 91-92; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000708 (December 31, 2020, email from Steven Engel to Richard Donoghue attaching “U.S. v. Penn OJ suit”).Show full note Engel was principally tasked with examining the veracity of the suit and summarized his analysis in a series of talking points that he provided to Donoghue on December 31st.²³¹²³¹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000708 - HCOR-Pre-CertificationEvents-07262021-000709 (December 31, 2020, email from Steven Engel to Richard Donoghue attaching “U.S. v. Penn OJ suit” re: one pager, with document titled “Evaluation of Potential Original-Jurisdiction Suit in the Supreme Court”); Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 91–92.Show full note Engel concluded that for multiple reasons, the proposed lawsuit lacked merit. First, the U.S. Government did not have standing to challenge how a State administered its election.²³²²³² Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000709 (Document titled “Evaluation of Potential Original-Jurisdiction Suit in the Supreme Court”). Such a challenge could only be brought by President Trump as a candidate and his campaign, or, possibly, an aggrieved electoral college elector.²³³²³³ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000709 (Document titled “Evaluation of Potential Original-Jurisdiction Suit in the Supreme Court”). Second, there was no identified precedent in the history of the Supreme Court establishing that such a lawsuit could be filed by the U.S. Government.²³⁴²³⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000709 (Document titled “Evaluation of Potential Original-Jurisdiction Suit in the Supreme Court”). Third, by late December, States had already certified the results of their elections and the electoral college had met, so suing States by this point would not impact the results of the election.²³⁵²³⁵ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certificationevents-07262021-000709 (Document titled “Evaluation of Potential Original-Jurisdiction Suit in the Supreme Court”). Finally, unlike Texas v. Pennsylvania, which was one State suing another State, this lawsuit would not automatically be heard by the Supreme Court, so it should have been filed in a Federal district court months prior—if at all—to have any possibility of impacting the outcome of the election.²³⁶²³⁶ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certificationevents-07262021-000709 (Document titled “Evaluation of Potential Original-Jurisdiction Suit in the Supreme Court”). The memo cites “United States v. Texas” although it likely refers to the case filed by Texas and rejected by the Supreme Court, Texas v. Pennsylvania. See 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.Show full note

¶Steven Engel testifies before the Select Committee on June 23, 2022. (Photo by House Creative Services)

¶When asked about it during his interview with the Select Committee, Engel described United States v. Pennsylvania as “a meritless lawsuit” and said, “there was never a question” about whether “the Department was going to file” it.²³⁷²³⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Steven Engel, (Jan. 13, 2022), p. 33. As senior DOJ officials had already explained to President Trump multiple times in November and December 2020, the Department of Justice was strictly limited in what election-related actions it could take. It could not oversee States’ actions in administering their elections, and it could not support litigation filed by President Trump’s campaign.²³⁸²³⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 87, 91–92 (noting the Department’s limited authority relative to United States v. Pennsylvania); Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th (summarizing the many times Department officials told the President about the limited authority to take actions related to the election).Show full note Nonetheless, President Trump continued to push DOJ to file this lawsuit over the following days and essentially act as an arm of his political campaign.

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4.11 Rosen’s December 30th Call with President Trump

¶Even after the December 29th meeting, President Trump and those working on his behalf still wanted DOJ leadership to file United States v. Pennsylvania. On December 30th, Acting Attorney General Rosen had a phone call with President Trump that included a discussion about the lawsuit.²³⁹²³⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Jeffrey Rosen, (Oct. 13, 2021), pp. 96–97. During the call, Rosen clearly explained to the President that DOJ could not file the lawsuit.²⁴⁰²⁴⁰ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Jeffrey Rosen, (Oct. 13, 2021), pp. 96–97. Rosen said, “This doesn’t work. There’s multiple problems with it. And the Department of Justice is not going to be able to do it.”²⁴¹²⁴¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Jeffrey Rosen, (Oct. 13, 2021), pp. 96–97. According to Rosen, President Trump accepted what he said without argument.²⁴²²⁴² Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Jeffrey Rosen, (Oct. 13, 2021), pp. 96–97. Yet President Trump and his allies continued pressuring the Department to file the lawsuit.

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