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      Prosecute Trump? Put Yourself in Merrick Garland’s Shoes

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      The evidence gathered by the Jan. 6 committee and in some of the federal cases against those involved in the Capitol attack pose for Attorney General Merrick Garland one of the most consequential questions that any attorney general has ever faced: Should the United States indict former President Donald Trump?The basic allegations against Mr. Trump are well known. In disregard of advice by many of his closest aides, including Attorney General William Barr, he falsely claimed that the 2020 presidential election was fraudulent and stolen; he pressured Vice President Mike Pence to refuse to count certified electoral votes for Joe Biden during the electoral count in Congress on Jan. 6; and he riled up a mob, directed it to the Capitol and refused for a time to take steps to stop the ensuing violence.To indict Mr. Trump for these and other acts, Mr. Garland must make three decisions, each more difficult than the previous, and none of which has an obvious answer.First, he must determine whether the decision to indict Mr. Trump is his to make. If Mr. Garland decides that a criminal investigation of Mr. Trump is warranted, Justice Department regulations require him to appoint a special counsel if the investigation presents a conflict of interest for the department and if Mr. Garland believes such an appointment would be in the public interest.The department arguably faces a conflict of interest. Mr. Trump is a political adversary of Mr. Garland’s boss, President Biden. Mr. Trump is also Mr. Biden’s likeliest political opponent in the 2024 presidential election. Mr. Garland’s judgments impact the political fate of Mr. Biden and his own possible tenure in office. The appearance of a conflict sharpened when Mr. Biden reportedly told his inner circle that Mr. Trump was a threat to democracy and should be prosecuted, and complained about Mr. Garland’s dawdling on the matter.Even if conflicted, Mr. Garland could keep full control over Mr. Trump’s legal fate if he believes that a special counsel would not serve the public interest. Some will argue that the public interest in a fair-minded prosecution would best be served by appointment of a quasi-independent special counsel, perhaps one who is a member of Mr. Trump’s party.But no matter who leads it, a criminal investigation of Mr. Trump would occur in a polarized political environment and overheated media environment. In this context, Mr. Garland could legitimately conclude that the public interest demands that the Trump matter be guided by the politically accountable person whom the Senate confirmed in 2021 by a vote of 70-30.If Mr. Garland opens a Trump investigation and keeps the case — decisions he might already have made — the second issue is whether he has adequate evidence to indict Mr. Trump. The basic question here is whether, in the words of Justice Department guidelines, Mr. Trump’s acts constitute a federal offense and “the admissible evidence will probably be sufficient to obtain and sustain a conviction.”These will be hard conclusions for Mr. Garland to reach. He would have to believe that the department could probably convince a unanimous jury that Mr. Trump committed crimes beyond a reasonable doubt. Mr. Garland cannot rest this judgment on the Jan. 6 committee’s one-sided factual recitations or legal contentions. Nor can he put much stock in a ruling by a federal judge who, in a civil subpoena dispute — a process that requires a significantly lower standard of proof to prevail than in a criminal trial — concluded that Mr. Trump (who was not represented) “more likely than not” committed a crime related to Jan. 6.Instead, Mr. Garland must assess how any charges against Mr. Trump would fare in an adversarial criminal proceeding administered by an independent judge, where Mr. Trump’s lawyers will contest the government’s factual and legal contentions, tell his side of events, raise many defenses and appeal every important adverse legal decision to the Supreme Court.Attorney General Merrick Garland.Jacquelyn Martin/Associated PressThe two most frequently mentioned crimes Mr. Trump may have committed are the corrupt obstruction of an official proceeding (the Jan. 6 vote count) and conspiracy to defraud the United States (in working to overturn election results). Many have noted that Mr. Trump can plausibly defend these charges by arguing that he lacked criminal intent because he truly believed that massive voter fraud had taken place.Mr. Trump would also claim that key elements of his supposedly criminal actions — his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol breach and more — were exercises of his constitutional prerogatives as chief executive. Mr. Garland would need to assess how these legally powerful claims inform the applicability of criminal laws to Mr. Trump’s actions in what would be the first criminal trial of a president. He would also consider the adverse implications of a Trump prosecution for more virtuous future presidents.If Mr. Garland concludes that Mr. Trump has committed convictable crimes, he would face the third and hardest decision: whether the national interest would be served by prosecuting Mr. Trump. This is not a question that lawyerly analysis alone can resolve. It is a judgment call about the nature, and fate, of our democracy.A failure to indict Mr. Trump in these circumstances would imply that a president — who cannot be indicted while in office — is literally above the law, in defiance of the very notion of constitutional government. It would encourage lawlessness by future presidents, none more so than Mr. Trump should he win the next election. By contrast, the rule of law would be vindicated by a Trump conviction. And it might be enhanced by a full judicial airing of Mr. Trump’s possible crimes in office, even if it ultimately fails.And yet Mr. Garland cannot be sanguine that a Trump prosecution would promote national reconciliation or enhance confidence in American justice. Indicting a past and possible future political adversary of the current president would be a cataclysmic event from which the nation would not soon recover. It would be seen by many as politicized retribution. The prosecution would take many years to conclude; would last through, and deeply impact, the next election; and would leave Mr. Trump’s ultimate fate to the next administration, which could be headed by Mr. Trump.Along the way, the prosecution would further enflame our already-blazing partisan acrimony; consume the rest of Mr. Biden’s term; embolden, and possibly politically enhance, Mr. Trump; and threaten to set off tit-for-tat recriminations across presidential administrations. The prosecution thus might jeopardize Mr. Garland’s cherished aim to restore norms of Justice Department “independence and integrity” even if he prosecutes Mr. Trump in the service of those norms. And if the prosecution fails, many will conclude that the country and the rule of law suffered tremendous pain for naught.Mr. Garland’s decisions will be deeply controversial and have consequences beyond his lifetime. It is easy to understand, contrary to his many critics, why he is gathering as much information as possible — including what has emerged from the Jan. 6 committee and the prosecution of the higher-ups involved in the Capitol breach — before making these momentous judgments.Jack Goldsmith, a Harvard law professor and a senior fellow at the Hoover Institution, is a co-author of “After Trump: Reconstructing the Presidency.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Despite Growing Evidence, a Prosecution of Trump Would Face Challenges

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      As House hearings highlighted testimony that could create more pressure to pursue a criminal case, the former president tried out a defense that strained credulity.As new questions swirled this past week about former President Donald J. Trump’s potential criminal exposure for seeking to overturn the 2020 election, Mr. Trump issued a rambling 12-page statement.It contained his usual mix of outlandish claims, hyperbole and outright falsehoods, but also something that Trump allies and legal experts said was notable and different: the beginnings of a legal defense.On nearly every page, Mr. Trump gave explanations for why he was convinced that the 2020 election had been stolen from him and why he was well within his rights to challenge the results by any means available.What happened at the Capitol on Jan. 6, 2021, Mr. Trump wrote, stemmed from an effort by Americans “to hold their elected officials accountable for the obvious signs of criminal activity throughout the election.”His statement, while unfounded, carried a particular significance given the intensifying focus on whether he could face criminal charges. If the Justice Department were to bring a case against him, prosecutors would face the challenge of showing that he knew — or should have known — that his position was based on assertions about widespread election fraud that were false or that his attempt to block the congressional certification of the outcome was illegal.As a potential defense, the tactic suggested by Mr. Trump’s statement is far from a guarantee against prosecution, and it presents obvious problems of credibility. Mr. Trump has a long history of saying whatever suits his purposes without regard for the truth. And some of the actions he took after the 2020 election, like pressing officials in Georgia to flip enough votes to swing the outcome in that state to his column, speak to a determined effort to hold on to power rather than to address some broader perceived vulnerability in the election system.But his continued stream of falsehoods highlights some of the complexities of pursuing any criminal case against him, despite how well established the key facts are at this point.And the statement also reflected steps Mr. Trump is taking behind the scenes to build a new legal team to deal with an array of investigations, including into his pressure campaign to change the outcome of the election in Georgia and his taking classified documents with him when he left office.M. Evan Corcoran, a white-collar defense lawyer and former federal prosecutor brought on by Mr. Trump, was involved in drafting the document, according to two people briefed on the matter. Mr. Corcoran has also represented Stephen K. Bannon, a Trump ally who has been indicted by the Justice Department for refusing to cooperate with the House committee investigating the Jan. 6 attack.Mr. Corcoran and a spokesman for Mr. Trump did not respond to a request for comment.The statement came during a week in which the House committee’s hearings drove home Mr. Trump’s potential criminal and civil legal exposure by highlighting testimony from aides and advisers documenting what he had been told, and when, about the validity of his election fraud claims and the legality of his strategy for hanging on to power.The Themes of the Jan. 6 House Committee HearingsMaking a Case Against Trump: The committee appears to be laying out a road map for prosecutors to indict former President Donald J. Trump. But the path to any trial is uncertain.Day One: During the first hearing, the panel presented a gripping story with a sprawling cast of characters, but only three main players: Mr. Trump, the Proud Boys and a Capitol Police officer.Day Two: In its second hearing, the committee showed how Mr. Trump ignored aides and advisers in declaring victory prematurely and relentlessly pressing claims of fraud he was told were wrong.Day Three: Mr. Trump pressured Vice President Mike Pence to go along with a plan to overturn his loss even after he was told it was illegal, according to testimony laid out by the panel during the third hearing.At its third hearing on Thursday, the committee built a case that Mr. Trump had plunged ahead with a scheme to have Vice President Mike Pence unilaterally overturn the 2020 election even though Mr. Trump had been told it had no legal basis.The Justice Department is investigating a number of elements of the Capitol riot and the broader effort by Mr. Trump and his allies to keep the White House despite Joseph R. Biden Jr.’s victory. Attorney General Merrick B. Garland has given no public indication that the department is building a case against Mr. Trump, who has long contended that the investigations into the Jan. 6 attack are partisan and unfounded and whose side of the story has not been presented in the House committee’s hearings.But the panel’s investigation has already generated evidence that could increase the pressure on Mr. Garland to move more aggressively, a course of action that would carry extraordinary legal and political implications. After prodding from the Justice Department, the House committee signaled in recent days that it would start sharing some transcripts of its witness interviews with federal prosecutors as early as next month.Greg Jacob, left, who had been chief counsel for Vice President Mike Pence, and J. Michael Luttig, a conservative former judge, at a hearing on Thursday held by the House committee investigating the Jan. 6 attack.Haiyun Jiang/The New York TimesIn a civil case related to the committee’s work, a federal judge concluded in March that Mr. Trump and a lawyer who had advised him, John Eastman, had most likely committed felonies in their effort to overturn the election. “The illegality of the plan was obvious,” Judge David O. Carter of Federal District Court for the Central District of California concluded in that case.Judge Carter cited two crimes that he said the two men were likely guilty of committing: conspiracy to defraud the United States and obstructing a congressional proceeding. Members of the House committee have made similar suggestions, and some lawyers have contended that Mr. Trump could also be vulnerable to a charge of seditious conspiracy.But successfully prosecuting the potential charges suggested by Judge Carter and others could depend on establishing Mr. Trump’s intent — an issue that his statement this past week appeared to address with the argument that he believed his challenges to the outcome were grounded in legitimate questions about the conduct of the election.Daniel L. Zelenko, a white-collar defense lawyer and former federal prosecutor, said that in all of the potential crimes that were being looked at in connection with Mr. Trump’s conduct, the Justice Department would need to show that he had the intent to commit a crime. Mr. Zelenko said that while the new details revealed by the committee would help prosecutors in proving intent, the government still had a range of other issues to overcome in building any prosecution.“The key is having contemporaneous evidence that he was saying that he knew the election was not stolen but tried to stay in power anyway,” said Mr. Zelenko, a co-chair of the white-collar defense practice at Crowell & Moring. “The problem with Trump is that you have to try and get inside his mind, and he has such a history of lying and pushing falsehoods that it makes it difficult to determine what he really believes.”Aside from the evidence the committee has already revealed, the panel has received other testimony that undermines Mr. Trump’s claim that he thought he really won the election. According to two people briefed on the matter, Alyssa Farah Griffin, the White House communications director in the days after the election, recently testified to the committee that Mr. Trump said to her in November 2020 words along the lines of: Can you believe I lost to Mr. Biden?At its hearing on Thursday, the House committee built a case that Mr. Trump had plunged ahead with a scheme to have Mr. Pence unilaterally overturn the election even though Mr. Trump had been told it had no legal basis.Doug Mills/The New York TimesIn a television interview last fall, Ms. Griffin, who did not respond to a request for comment, acknowledged one of the complicating factors in determining what Mr. Trump may have believed. She said Mr. Trump might have changed his mind in the aftermath of the election.“He told me shortly after that he knew he lost, but then, you know, folks got around him,” Ms. Griffin said on CNN, referring to outside advisers who pushed false election-fraud claims. “They got information in front of him, and I think his mind genuinely might have been changed about that, and that’s scary, because he did lose, and the facts are out there.”Samuel W. Buell, a law professor at Duke University and former federal prosecutor, said any criminal case against Mr. Trump would have to start with establishing that he had been aware that what he was doing was improper.“You need to show that he knew what he was doing was wrongful and had no legal basis,” he said. “I’m not saying that he has to think: What I’m doing is a crime. It’s proving: I know I don’t have a legal argument, I know I’ve lost the election, but I’m going ahead with a known-to-be-false claim and a scheme that has no legal basis.”The House committee’s hearings are not a trial. The panel is free to be selective in what testimony it employs to build a case against Mr. Trump, and the former president has no allies on the committee who can question witnesses or provide information helpful to him.But the hearings have highlighted a series of witnesses who said that Mr. Trump had been told directly and repeatedly ahead of Jan. 6 that there was no basis to his claims that election fraud cost him re-election.And the committee presented brief but potentially crucial testimony from Mr. Pence’s chief counsel, Greg Jacob. In a deposition, Mr. Jacob told the panel that Mr. Trump had been told on Jan. 4, 2021, by Mr. Eastman — who was pushing a plan to have Mr. Pence block or delay certification of the Electoral College count — that the scheme would violate the Electoral Count Act, the federal law governing the process.In investigations that are focused almost exclusively on physical action, like assaults, muggings and murders, prosecutors do not need to focus on proving intent since the link between the action and the harm is typically clear.The question of intent, however, can be muddy when the crime under investigation involves an action in which the defendant’s state of mind can be hard to establish. The crimes that legal experts say Mr. Trump may have committed — obstructing Congress, defrauding the American people and seditious conspiracy — fall into that bucket.In those cases, the government faces a series of hurdles it needs to clear to prove intent. The cleanest way is finding evidence that the defendant knew he or she was doing something wrong.In Mr. Trump’s case, lawyers said, that could take the form of direct evidence that he knew his assertions of widespread election fraud were baseless or that he knew the strategy he was pursuing was illegal.If the Justice Department could not establish direct evidence of what Mr. Trump knew, prosecutors would need to turn to circumstantial evidence. To do that, they would typically rely on what experts and people of authority around him were telling him about whether the election had really been stolen or what kinds of strategies for fighting the outcome would be legal.Expert advice is often enough to show a jury what a defendant knew, lawyers said. But that may be more difficult with Mr. Trump because he has such a long history of disregarding experts and his own aides, they said.Given the challenge of showing what Mr. Trump actually knew, there is one other way prosecutors could show he had a corrupt intent: proving what is often called “willful blindness.”Under that principle, the government would need to show that Mr. Trump believed there was a high probability that the experts and his aides were telling him the truth when they said the election had not been stolen, but that he took deliberate actions to avoid learning more about why they believed that.Mr. Zelenko said he understood why many Americans watching the hearings would be convinced that building a criminal case against the former president was a strong possibility. But he cautioned that the standard for using evidence against a defendant is higher in court, where judges almost always insist that prosecutors rely on firsthand testimony, witnesses can be cross-examined and prosecutors need to prove their arguments beyond a reasonable doubt. More

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      Jan. 6 Committee Appears to Lay Out Road Map for Prosecuting Trump

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      The first prime-time hearing into the Jan. 6 attack confronted the fundamental question that has haunted Donald J. Trump since he left office: Should he be prosecuted in a criminal court?He had means, motive and opportunity. But did Donald J. Trump commit a crime?A House committee explicitly declared that he did by conspiring to overturn an election. The attorney general, however, has not weighed in. And a jury of his peers may never hear the case.The first prime-time hearing into the Jan. 6, 2021, attack on the Capitol this past week confronted the fundamental question that has haunted Mr. Trump, the 45th president, ever since he left office: Should he be prosecuted in a criminal court for his relentless efforts to defy the will of the voters and hang on to power?For two hours on Thursday night, the House committee investigating the Capitol attack detailed what it called Mr. Trump’s “illegal” and “unconstitutional” seven-part plan to prevent the transfer of power. The panel invoked the Justice Department, citing charges of seditious conspiracy filed against some of the attackers, and seemed to be laying out a road map for Attorney General Merrick B. Garland to their central target.Several former prosecutors and veteran lawyers said afterward that the hearing offered the makings of a credible criminal case for conspiracy to commit fraud or obstruction of the work of Congress.In presenting her summary of the evidence, Representative Liz Cheney, Republican of Wyoming and the committee’s vice chairwoman, demonstrated that Mr. Trump was told repeatedly by his own advisers that he had lost the election yet repeatedly lied to the country by claiming it had been stolen. He pressured state and federal officials, members of Congress and even his own vice president to disregard vote tallies in key states. And he encouraged the mob led by extremist groups like the Proud Boys while making no serious effort to stop the attack once it began.“I think the committee, especially Liz Cheney, outlined a powerful criminal case against the former president,” said Neal K. Katyal, a former acting solicitor general under President Barack Obama.“A crime requires two things — a bad act and criminal intent,” Mr. Katyal said. By citing testimony by Mr. Trump’s own attorney general, a lawyer for his campaign and others who told him that he had lost and then documenting his failure to act once supporters stormed the Capitol, Mr. Katyal said, the panel addressed both of those requirements.At the hearing, Representative Liz Cheney demonstrated that Mr. Trump was told repeatedly by his own advisers that he had lost the election.Doug Mills/The New York TimesA congressional hearing, however, is not a court of law, and because there was no one there to defend Mr. Trump, witnesses were not cross-examined and evidence was not tested. The committee offered just a selection of the more than 1,000 interviews it has conducted and the more than 140,000 documents it has collected. But it remains to be seen what contrary or mitigating information may be contained in the vast research it has not released yet.Mr. Trump’s allies have dismissed the hearings as a partisan effort to damage him before the 2024 election when he may run for president again. And legal defenders argued that the facts presented by the panel did not support the conclusions that it drew.Read More on the Jan. 6 House Committee HearingsThe Meaning of the Hearings: While the public sessions aren’t going to unite the country, they could significantly affect public opinion.An Unsettling Narrative: During the first hearing, the House panel presented a gripping story with a sprawling cast of characters, but only three main players: Donald Trump, the Proud Boys and a Capitol Police officer.Trump’s Depiction: Former president Donald J. Trump was portrayed as a would-be autocrat willing to shred the Constitution to hang onto power. Liz Cheney: The vice chairwoman of the House committee has been unrepentant in continuing to blame Mr. Trump for stoking the attack on Jan. 6, 2021.“Unless there’s more evidence to come that we don’t know about, I don’t see a criminal case against the former president,” said Robert W. Ray, a former independent counsel who investigated President Bill Clinton and later served as a defense lawyer for Mr. Trump at his first Senate impeachment trial.“Whatever the Proud Boys had in mind when they stormed the Capitol, I don’t see how you’d be able to prove that Trump knew that that was the purpose of the conspiracy,” Mr. Ray added. “Whether or not he ‘lit the fuse’ that caused that to happen, the government would have to prove he knowingly joined that conspiracy with that objective.”Beyond the legal requirements of making a criminal case, the prospect of prosecuting a former president also would entail far deeper considerations and broader consequences. Criminal charges against Mr. Trump brought by the administration of the man who defeated him would further inflame an already polarized country. It would consume national attention for months or longer and potentially set a precedent for less meritorious cases against future presidents by successors of the opposite party.“That’s a hill that no federal prosecutor has tried to climb, prosecuting a former president,” said John Q. Barrett, a former associate independent counsel in the Iran-contra investigation. “It’s very fraught,” he said. “It’s a massive undertaking as an investigation, as a trial, as a national saga and trauma.” But he added that accountability was important and that “the threat to the continuity of our government is about as grave as it gets.”All of which is almost certainly going through the mind of Mr. Garland, a mild-mannered, highly deliberative former federal appeals court judge who has largely kept mum about his thinking. A Justice Department spokesman said Mr. Garland watched the hearing but would not elaborate.Democrats have attacked the attorney general for not already prosecuting Mr. Trump, even though a federal judge opined in March in a related civil case that the former president and a lawyer who advised him had most likely broken the law by trying to overturn the election. Mr. Garland has resisted the pressure. While he has called the investigation into the Jan. 6 attack the most urgent work in the history of his department, he has refused to forecast where the inquiry will go as investigators continue evaluating evidence.“We are not avoiding cases that are political or cases that are controversial or sensitive,” he told NPR in March. “What we are avoiding is making decisions on a political basis, on a partisan basis.”Democrats have attacked Attorney General Merrick B. Garland for not already prosecuting Mr. Trump, deeming it a miscarriage of justice.Sarah Silbiger for The New York TimesMany officials and rank-and-file prosecutors scattered throughout the 115,000-person Justice Department have long believed that Mr. Trump acted corruptly, particularly in pressuring their own department to parrot his baseless claims of election fraud, according to several people involved in such conversations who were not authorized to discuss the matter publicly.But some career employees expressed fear that as the hearings continued, they would raise expectations for a prosecution that may not be met.The committee “was good at making the case that Donald Trump’s actions were completely horrific and that he deserves to be held accountable for them,” said Matthew Miller, a former Justice Department spokesman during the Obama administration. “But an open-and-shut case on television is different from proving someone violated a criminal statute.”With public attention fixated on Mr. Trump, the Justice Department’s work has proceeded along three tracks: charge the people who attacked the Capitol; piece together larger conspiracies, including sedition, involving some of the assailants; and identify possible crimes that took place before the assault.In the 17 months since the attack, more than 840 defendants from nearly all 50 states have been arrested. Of those, about 250 have been charged with assaulting, resisting or impeding the police, and members of two far-right groups have been charged with seditious conspiracy, a rare accusation that represents the most serious criminal charges brought in the department’s sprawling investigation.Prosecutors are scrutinizing the plan by Mr. Trump’s allies to create alternate slates of pro-Trump electors to overturn Joseph R. Biden Jr.’s victory in key swing states, with a federal grand jury issuing subpoenas to people involved. That investigation brings federal prosecutors closer to Mr. Trump’s inner circle than any other inquiry. Mr. Trump also faces the threat of prosecution by a local Georgia prosecutor investigating his efforts to overturn the state’s vote.No sitting or former president has ever been put on trial. Aaron Burr was charged with treason after leaving office as vice president in a highly politicized case directed from the White House by President Thomas Jefferson, but he was acquitted after a sensational trial. Ulysses S. Grant, while president, was arrested for speeding in his horse and buggy. Spiro T. Agnew resigned as vice president as part of a plea bargain in a corruption case.The closest a former president came to indictment was after Richard M. Nixon resigned in the Watergate scandal in 1974, but his successor, Gerald R. Ford, short-circuited the investigation by preemptively pardoning him, reasoning that the country had to move on. Mr. Clinton, to avoid perjury charges after leaving office, agreed on his last full day in the White House to a deal with Mr. Ray in which he admitted giving false testimony under oath about his affair with Monica S. Lewinsky, temporarily surrendered his law license and paid a $25,000 fine.Should the Justice Department indict Mr. Trump, a trial would be vastly different from House hearings in ways that affect the scope and pace of any inquiry. Investigators would have to scour thousands of hours of video footage and the full contents of devices and online accounts they have accessed for evidence bolstering their case, as well as anything that a defense lawyer could use to knock it down. Federal prosecutors would probably also have to convince appeals court judges and a majority of Supreme Court justices of the validity of their case.For all of the pressure that the House committee has put on the Justice Department to act, it has resisted sharing information. In April, the department asked the committee for transcripts of witness interviews, but the panel has not agreed to turn over the documents because its work is continuing.Although critics have faulted Mr. Garland, attorneys general do not generally drive the day-to-day work of investigations. Mr. Garland is briefed nearly every day on the inquiry’s progress, but it is being led by Matthew M. Graves, the U.S. attorney in Washington, who is working with national security and criminal division officials. Lisa O. Monaco, the deputy attorney general, broadly oversees the investigation.“Whether fair or not, Garland’s tenure will be defined by whether or not he indicts Trump,” Mr. Miller said. “The Justice Department may not indict Trump. Prosecutors may not believe they have the evidence to secure a conviction. But that will now be interpreted as a choice by Garland, not as a reality that was forced upon him by the facts of the investigation.” More

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      Navarro Indicted as Justice Dept. Opts Not to Charge Meadows and Scavino

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      The House had recommended contempt charges against all three Trump White House aides over their stonewalling of its Jan. 6 inquiry.A federal grand jury on Friday indicted Peter Navarro, a White House adviser to former President Donald J. Trump, for failing to comply with a subpoena from the House committee investigating the Capitol attack, even as the Justice Department declined to charge Mark Meadows and Dan Scavino Jr., two other top officials who have also refused to cooperate.The indictment against Mr. Navarro, handed up in Federal District Court in Washington, marked the first time that an official who served in Mr. Trump’s White House during the events of Jan. 6, 2021, has been charged in connection with the investigation into the attack.Prosecutors charged Mr. Navarro, 72, with what amounted to a misdemeanor process crime for having failed to appear for a deposition or provide documents to congressional investigators in response to a subpoena issued by the House committee on Feb. 9. The indictment includes two counts of criminal contempt of Congress that each carry a maximum sentence of a year in prison, as well as a fine of up to $100,000.The Justice Department has declined to take similar steps against Mr. Meadows, Mr. Trump’s final chief of staff, and Mr. Scavino, the deputy chief of staff, according to people familiar with prosecutors’ decision and a letter reviewed by The New York Times informing the top House counsel of it.“Based on the individual facts and circumstances of their alleged contempt, my office will not be initiating prosecutions for criminal contempt as requested in the referral against Messrs. Meadows and Scavino,” Matthew M. Graves, the U.S. attorney for the District of Columbia, wrote to Douglas N. Letter, the general counsel of the House, on Friday. “My office’s review of each of the contempt referrals arising from the Jan. 6 committee’s investigation is complete.”Both Mr. Meadows and Mr. Scavino — who were deeply involved in the effort to overturn the 2020 election — engaged in weeks of negotiations with the committee’s lawyers, and Mr. Meadows turned over more than 9,000 documents to the panel, before the House voted to charge them with contempt.By contrast, Mr. Navarro and his ally Stephen K. Bannon, who has also been charged with contempt, fought the committee’s subpoenas from Day 1 and never entered into negotiations.Asked for comment, Mr. Meadows’s lawyer, George J. Terwilliger III, said, “The result speaks for itself.”A spokesman for the Justice Department did not immediately respond to a request for comment. A lawyer for Mr. Scavino declined to comment.In a statement, the leaders of the committee applauded Mr. Navarro’s indictment but urged the Justice Department to provide “greater clarity” on its rationale for not charging Mr. Meadows or Mr. Scavino.“We find the decision to reward Mark Meadows and Dan Scavino for their continued attack on the rule of law puzzling,” said the leaders, Representatives Bennie Thompson, Democrat of Mississippi, and Liz Cheney, Republican of Wyoming. “Mr. Meadows and Mr. Scavino unquestionably have relevant knowledge about President Trump’s role in the efforts to overturn the 2020 election and the events of Jan. 6.”For his part, Mr. Navarro appeared in court on Friday afternoon, speaking on his own behalf and telling a federal magistrate judge that the congressional subpoena he was served with was “illegal” and “unenforceable.”At the court hearing, he cast himself as a victim of an unfair system run by Democrats bent on destroying him and Mr. Trump.“There are bigger things at play than whether I go to prison,” Mr. Navarro said. “And that’s why I’m standing here.”He also complained that although he lives close to F.B.I. headquarters, federal agents arrested him at the door of an airplane as he was on his way to Nashville.“This is not the way that America is supposed to function,” he went on, adding, “They’re playing hardball.”A former White House trade adviser who undertook extensive efforts to keep Mr. Trump in office after the 2020 election, Mr. Navarro is the second high-ranking former presidential aide to be charged with contempt of Congress for defying a subpoena from the committee. Mr. Bannon, a former top aide to Mr. Trump, was indicted in November on similar charges.The indictment against Mr. Navarro came nearly two months after the House voted mostly along party lines to recommend criminal charges against him. The same vote also recommended a contempt indictment against Mr. Scavino.The House voted in January to recommend that Mr. Meadows be charged with contempt.“Upon receiving each referral, my office conducted a thorough investigation and analysis of the individualized facts and circumstances surrounding each contempt allegation to determine whether to initiate a criminal prosecution,” Mr. Graves wrote to Mr. Letter. “Those investigations and analyses were conducted by and supervised by experienced prosecutors. Each referral has been analyzed individually based on the facts and circumstances of the alleged contempt developed through my office’s investigation.”The House subpoena that Mr. Navarro received sought documents and testimony about an effort to overturn the election that he had billed as the “Green Bay Sweep.” The plan called for lawmakers in key swing states to team with Republican members of Congress and Vice President Mike Pence to reject the results that showed Joseph R. Biden Jr. had won the election and give Mr. Trump the victory.The subpoena also mentioned a call Mr. Navarro participated in with Mr. Trump and his lawyers on Jan. 2, 2021, in which they attempted to persuade hundreds of state lawmakers to join the effort.Mr. Navarro also wrote a 36-page report claiming election fraud as part of what he called an “immaculate deception” that he said he made sure was distributed to Republican members of Congress.There is no evidence of widespread fraud in the 2020 election, and the Jan. 6 committee has described the claims in Mr. Navarro’s report as having been “discredited in public reporting, by state officials and courts.”The indictment comes days after Mr. Navarro filed a lawsuit against the House committee, Speaker Nancy Pelosi and the U.S. attorney for the District of Columbia, in which he questioned the authority and validity of the inquiry.In the lawsuit, Mr. Navarro also revealed that he had recently received another subpoena, this one from a federal grand jury in Washington. That subpoena sought documents from him related to any communications he may have had with Mr. Trump or his lawyers.Mr. Navarro has claimed that because Mr. Trump invoked executive privilege to bar the disclosure of information requested by the Jan. 6 investigators, he is prevented from complying with the subpoena. Prosecutors were most likely interested in how closely Mr. Navarro was in touch with the former president or his lawyers in order to assess that defense against the contempt of Congress charge.“The executive privilege invoked by President Trump is not mine to waive,” Mr. Navarro has repeatedly said.Mr. Bannon has also sought to argue that he does not have to comply with his own subpoena because of Mr. Trump’s claims of executive privilege. A trial in his case is tentatively scheduled for July.Mr. Bannon is arguing that the committee is not a legitimate investigative body but a politically motivated one, citing the fact that two of its members have written books that presuppose who is to blame for the Capitol riot even though the inquiry has not ended.While contempt of Congress charges are rarely brought, the cases filed against Mr. Navarro and Mr. Bannon suggest that the Justice Department is willing to take a tough stance against at least some of Mr. Trump’s former aides who have stonewalled the committee’s efforts.The decision not to charge Mr. Meadows and Mr. Scavino indicates that there are limits to that approach, particularly when it comes to top White House officials who could more plausibly argue that their communications with the president were privileged.The charges against Mr. Navarro come at a politically sensitive moment: one week before the committee is poised to begin a series of high-profile hearings on its findings.Mr. Navarro has taken an aggressive stance toward the committee, especially with regard to its Democratic members. In his lawsuit, he vowed payback against Democrats should Republicans retake the White House and Congress in 2024.“If I’m not dead or in prison,” he wrote, “I will lead the charge.”At his court hearing, Mr. Navarro expressed similar disdain for the legal proceeding.A federal magistrate judge, Zia M. Faruqui, released him from custody with a standard set of conditions, mostly simple restrictions on Mr. Navarro’s travel privileges, noting that he understood the defendant was frustrated by them.Mr. Navarro rejected the idea that he was frustrated.“I am, let us say, disappointed in our republic,” he declared.Maggie Haberman More

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      Sussmann Acquittal Raises Question: What Is Durham Actually Trying to Do?

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      Supporters of the Trump-era prosecutor are lauding his work as a success in unearthing politically charged information, even though his first case to go to trial ended in failure.WASHINGTON — Even before 12 jurors voted to acquit Michael Sussmann of lying to the F.B.I. in a rebuke of the Trump-era special counsel, John H. Durham, supporters of Donald J. Trump were already laying the groundwork to declare that the prosecutor won despite losing in court.What really mattered, they essentially claimed, was that Mr. Durham had succeeded in exposing how Hillary Clinton framed Mr. Trump for the “Russia collusion hoax,” an argument that ricocheted across the right-wing news media.Indeed, Mr. Durham did show that associates of the 2016 Clinton campaign — a victim of Russian hacking — wanted reporters to write about the allegations that played a role in the case, an obscure theory about the possibility of a covert communications channel between Mr. Trump and Russia. But most news outlets were skeptical, and the F.B.I. swiftly discounted the matter.Still, that Mr. Durham’s cheerleaders have embraced this explanation for Mr. Durham’s actions is striking. Stephen Gillers, a New York University professor of legal ethics, said the case was “incredibly weak” and he doubted a prosecutor pursuing normal law enforcement goals would have brought it.“The case wasn’t a nothing-burger, but it was very thin, and it’s hard to understand why it was brought other than to support Trump’s allegation that the Clinton campaign falsely alleged a Trump-Russia connection,” he said. “That motive is unacceptable. The government’s only legitimate goal in bringing this case was conviction.”A spokesman for Mr. Durham did not respond to a request for comment. But in a pretrial filing in the Sussmann case in April, the Durham team denied any suggestion it was “a political actor when, in fact, nothing could be further from the truth.”When Attorney General William P. Barr assigned Mr. Durham in May 2019 to investigate the Russia investigation, he did not have a reputation for pursuing iffy cases or for using law enforcement power to publicize politically fraught information.A longtime career prosecutor before becoming a United States attorney under Mr. Trump, Mr. Durham was best known for investigating the C.I.A.’s post-Sept. 11 torture of detainees. He had brought no charges, then fought a Freedom of Information Act lawsuit to avoid disclosing his findings and witness interview records.Mr. Barr’s assignment was likely to be the last major act in Mr. Durham’s career. It portended difficulties.For starters, he appeared largely redundant: Michael E. Horowitz, the Justice Department’s independent inspector general, was already scrutinizing the origins of the investigation into possible ties between Mr. Trump’s campaign and Russia.Mr. Durham seemed to begin by searching for signs of political bias among F.B.I. officials Mr. Horowitz had already scrutinized and by hunting for wrongdoing among intelligence agencies outside Mr. Horowitz’s jurisdiction. No charges resulted.In December 2019, Mr. Horowitz issued his report uncovering serious flaws with certain wiretap applications but debunking Trump supporters’ baseless theory that the overall investigation was a “deep state” conspiracy. The F.B.I. officials had sufficient legal basis to open it, he found.In a break with his earlier silence toward his investigative work, Mr. Durham issued a statement disagreeing that there was an adequate basis for the investigation and suggesting that he had access to more information. He has yet to disclose what that is.Mr. Horowitz also uncovered that an F.B.I. lawyer had doctored an email used in preparation for wiretap applications, referring the matter for prosecution. While Mr. Durham’s team had not developed the case, it negotiated a plea agreement that resulted in no prison time. That is its only conviction to date.Mr. Trump and his supporters expressed frustration that Mr. Durham failed to charge any deep state conspiracy before the 2020 election.But Mr. Durham’s reputation with Trump supporters began to reverse course last fall, when he charged Mr. Sussmann in connection with telling the F.B.I. about the suspected covert communications channel, involving a server for Russia’s Alfa Bank.Soon after, he indicted a researcher for the Steele dossier — a discredited compendium of rumors about Trump-Russia links compiled for an opposition research firm funded by Democrats — for lying to the F.B.I. about some sources.John H. Durham’s court filings have become fodder for the conservative news media.Samuel Corum for The New York TimesIn both cases, Mr. Durham festooned the narrow charges with copious information, heavy with insinuations that there had been a conspiracy to trick people into thinking Mr. Trump colluded with Russia — not by “deep state” officials, but by associates of Mrs. Clinton’s 2016 campaign.This narrative was not the original hope of Trump supporters, but has nevertheless provided them with new material to continue relitigating the events of 2016 and the Russia investigation.Mr. Durham’s court filings have become fodder for the conservative news media to express outrage about purported wrongdoing to Mr. Trump, typically conflating the Alfa Bank and Steele dossier matters with the official investigation.When Mrs. Clinton’s campaign manager, Robby Mook, testified at the trial that she approved efforts to get reporters to write about Alfa Bank, The Wall Street Journal ran an editorial headlined “Hillary Clinton Did It,” subtitled “Her 2016 campaign manager says she approved a plan to plant a false Russia claim with a reporter.”The piece offered no basis for implying that Mrs. Clinton believed the allegations were false. It also inaccurately stated the campaign had “created” the allegations, and made no mention of the most important news if the charge was what mattered: The campaign neither authorized nor wanted Mr. Sussmann to go to the F.B.I., he testified, undermining Mr. Durham’s narrative that Mr. Sussmann represented the campaign at a key meeting.Some of the most explosive Durham filings themselves have proved to be misleading or tangential to the case.The indictment of Mr. Sussmann selectively quoted from emails among the researchers who developed the Alfa Bank suspicions, fostering an impression that they did not believe their own analysis. But the full emails included passages in which the researchers expressed enthusiastic belief in their final handiwork.Moreover, the material seemed extraneous to a mere false-statement indictment because Mr. Sussmann was not part of those conversations. Indeed, the judge ruled nearly all that evidence inadmissible at the trial.In a pretrial filing in February, prosecutors added a few ambiguous sentences about separate concerns the researchers developed regarding data suggesting that Russian smartphones had been connecting to sensitive networks, including Trump Tower and the White House.Singling those out, the conservative news media erupted in a furor, inaccurately informing readers that Mr. Durham had evidence that the Clinton campaign paid to spy on the network of the Trump White House.Mr. Durham’s filing had not actually said that. The campaign did not pay the cybersecurity researchers, and the White House network data they had sifted for signs of possible Russian infiltration came from Barack Obama’s presidency. Mr. Durham disavowed responsibility for “misinterpreted facts.”Whatever his motives, Mr. Durham’s investigation has demonstrably functioned as a kind of fun-house mirror image of aspects of the work of Robert S. Mueller III, the special counsel in the Russia investigation.Some liberal commentators once seemed to routinely suggest that developments in Mr. Mueller’s investigation meant the walls were closing in on Mr. Trump. But while Mr. Mueller’s March 2019 report detailed “numerous links between the Russian government and the Trump campaign,” he charged no Trump associate with conspiring with Russia.Similarly, pro-Trump commentators have repeatedly stoked expectations that Mr. Durham would soon charge some of Mr. Trump’s perceived enemies with a conspiracy to do him wrong. But after more than three years, he has offered only insinuations.There are limits to any equivalence. The F.B.I., as Mr. Horowitz indicated, had a sound factual basis to open the Russia investigation; Mr. Barr’s mandate to Mr. Durham appears to have been to investigate a series of conspiracy theories.Mr. Mueller’s team also charged or obtained guilty pleas from about three dozen people and companies and wrote a lengthy report in less time than Mr. Durham has taken to develop only two indicted cases, the first of which just ended in failure. After the verdict on Tuesday, the jury forewoman told reporters the case should not have been prosecuted.But on the night of the acquittal, Sean Hannity of Fox News said Mr. Sussmann was “just a small player in this whole case,” and dismissed the verdict as nothing more than political bias among a jury pool drawn from a heavily Democratic district.The trial, he assured his millions of viewers, was just a “preview of coming attractions.” More

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      Peter Navarro, Former Trump Aide, Gets Grand Jury Subpoena in Jan. 6 Inquiry

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      The subpoena, the latest indication of an expanding inquiry by federal prosecutors, seeks Mr. Navarro’s testimony and any records he has related to the attack on the Capitol last year.Peter Navarro, who as a White House adviser to President Donald J. Trump worked to keep Mr. Trump in office after his defeat in the 2020 election, disclosed on Monday that he has been summoned to testify on Thursday to a federal grand jury and to provide prosecutors with any records he has related to the attack on the Capitol last year, including “any communications” with Mr. Trump.The subpoena to Mr. Navarro — which he said the F.B.I. served at his house last week — seeks his testimony about materials related to the buildup to the Jan. 6 attack on the Capitol, and signals that the Justice Department investigation may be progressing to include activities of people in the White House.Mr. Navarro revealed the existence of the subpoena in a draft of a lawsuit he said he is preparing to file against the House committee investigating the Jan. 6 attack, Speaker Nancy Pelosi and Matthew M. Graves, the U.S. attorney for the District of Columbia.Mr. Navarro, who plans to represent himself in the suit, is hoping to persuade a federal judge to block the subpoena, which he calls the “fruit of the poisonous tree.”The Justice Department and the U.S. Attorney’s Office declined to comment.The grand jury’s subpoena, Mr. Navarro said, builds on a separate subpoena issued to him in February by the committee. That subpoena sought documents and testimony about an effort to overturn the election nicknamed the “Green Bay Sweep,” and a Jan. 2, 2021, call that Mr. Navarro participated in with Mr. Trump and his lawyers in which they attempted to persuade hundreds of state lawmakers to join the effort.Mr. Navarro has refused to cooperate with the committee. He was found in contempt of Congress, and the House referred the contempt case to the Justice Department for possible criminal prosecution. In his draft lawsuit, he called the committee’s subpoena “illegal and unenforceable.”Mr. Navarro said the grand jury subpoena was directly related to the contempt of Congress referral. Asked if he planned to comply and appear on Thursday to testify, Mr. Navarro responded, “T.B.D.”The subpoena is the latest sign the Justice Department’s investigation into the attack has moved beyond the pro-Trump rioters who stormed the Capitol. Federal prosectors have charged more than 800 people in connection with the attack.The subpoena sent last week to Mr. Navarro is the first known to have been issued in connection to the department’s Jan. 6 investigations to someone who worked in the Trump White House. But it follows others issued to people connected to various strands of the sprawling investigation of the Capitol attack and its prelude.In April, Ali Alexander, a prominent “Stop the Steal” organizer, revealed that he had been served with his own grand jury subpoena, asking for records about people who organized, spoke at or provided security for pro-Trump rallies in Washington after the election, including Mr. Trump’s incendiary event near the White House on Jan. 6.Mr. Alexander’s subpoena also sought records about members of the executive or legislative branches who may have helped to plan or execute the rallies, or who tried to “obstruct, influence, impede or delay” the certification of the 2020 presidential election.Last week, word emerged that the same grand jury, sitting in Washington, had more recently issued a different set of subpoenas requesting information about the role that a group of lawyers close to Mr. Trump may have had played in a plan create alternate slates of pro-Trump electors in key swing states that were won by Joseph R. Biden Jr.The lawyers named in the subpoena included Mr. Trump’s personal attorney, Rudolph W. Giuliani; Jenna Ellis, who worked with Mr. Giuliani; John Eastman, one of the former president’s chief legal advisers during the postelection period; and Kenneth Chesebro, who wrote a pair of memos laying out the details of the plan.Those subpoenas also requested information about any members of the Trump campaign who may been involved with the alternate elector scheme and about several Republican officials in Georgia who took part in it, including David Shafer, the chairman of the Georgia Republican Party.Mr. Navarro’s subpoena, by his own account, was issued by a different grand jury.In the draft of the suit he said he intends to file, he argues that only Mr. Trump can authorize him to testify. He asks a judge to instruct Mr. Graves, the U.S. attorney in Washington, to negotiate his appearance with Mr. Trump. Mr. Navarro cites Mr. Trump’s invocation of executive privilege over materials related to the attack on the Capitol.“The executive privilege invoked by President Trump is not mine or Joe Biden’s to waive,” Mr. Navarro writes. “Rather, as with the committee, the U.S. attorney has constitutional and due process obligations to negotiate my appearance.”An effort by Mr. Trump to block release of White House materials related to the Jan. 6 attack on the grounds of executive privilege was rejected by a federal appeals court in January, and the Supreme Court denied Mr. Trump’s request for a stay of the decision.Mr. Navarro, who helped coordinate the Trump administration’s pandemic response through his role overseeing the Defense Production Act, has insisted that the violence at the Capitol on Jan. 6 was not part of the plans he backed, which he said included having Vice President Mike Pence reject electors for Mr. Biden when Congress met in a joint session to formally count them.In a book, Mr. Navarro wrote that the idea for the “Green Bay Sweep” was for Mr. Pence to be the “quarterback” of the plan and “put certification of the election on ice for at least another several weeks while Congress and the various state legislatures involved investigate all of the fraud and election irregularities.”Mr. Navarro also wrote a 36-page report claiming election fraud as part of what he called an “Immaculate Deception.” In an interview with The New York Times, he said he relied on “thousands of affidavits” from Mr. Giuliani, and Bernard B. Kerik, the former New York police commissioner, to help produce the report, which claimed there “may well have been a coordinated strategy to effectively stack the election deck against the Trump-Pence ticket.”There is no evidence of widespread fraud in the 2020 election, and the Jan. 6 committee described the claims in Mr. Navarro’s report as having been “discredited in public reporting, by state officials and courts.”Mr. Navarro said that he made sure Republican members of Congress received a copy of his report and that more than 100 members of Congress had signed on to the plans. (Ultimately, 147 Republican members of Congress objected to certifying at least one state for Mr. Biden.)An aide to Mr. Navarro was also in contact with a group of Trump allies who were pushing for the former president to order the seizure of voting machines. More

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      Trump Lawyers Are Focus of Inquiry Into Alternate Electors Scheme

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      In recent subpoenas, federal prosecutors investigating alternate slates of pro-Trump electors sought information about Rudolph W. Giuliani, John Eastman and others.The Justice Department has stepped up its criminal investigation into the creation of alternate slates of pro-Trump electors seeking to overturn Joseph R. Biden Jr.’s victory in the 2020 election, with a particular focus on a team of lawyers that worked on behalf of President Donald J. Trump, according to people familiar with the matter.A federal grand jury in Washington has started issuing subpoenas in recent weeks to people linked to the alternate elector plan, requesting information about several lawyers including Mr. Trump’s personal lawyer Rudolph W. Giuliani and one of his chief legal advisers, John Eastman, one of the people said.The subpoenas also seek information on other pro-Trump lawyers like Jenna Ellis, who worked with Mr. Giuliani, and Kenneth Chesebro, who wrote memos supporting the elector scheme in the weeks after the election.A top Justice Department official acknowledged in January that prosecutors were trying to determine whether any crimes were committed in the scheme.Under the plan, election officials in seven key swing states put forward formal lists of pro-Trump electors to the Electoral College on the grounds that the states would be shown to have swung in favor of Mr. Trump once their claims of widespread election fraud had been accepted. Those claims were baseless, and all seven states were awarded to Mr. Biden.It is a federal crime to knowingly submit false statements to a federal agency or agent for an undue end. The alternate elector slates were filed with a handful of government bodies, including the National Archives.The focus on the alternate electors is only one of the efforts by the Justice Department to broaden its vast investigation of hundreds of rioters who broke into the Capitol on Jan. 6, 2021.In the past few months, grand jury subpoenas have also been issued seeking information about a wide array of people who organized Mr. Trump’s rally near the White House that day, and about any members of the executive and legislative branches who may have taken part in planning the event or tried to obstruct the certification of the 2020 election.The widening and intensifying Justice Department inquiry also comes as the House select committee investigating the efforts to overturn the election and the Jan. 6 assault prepares for public hearings next month.The subpoenas in the elector investigation are the first public indications that the roles of Mr. Giuliani and other lawyers working on Mr. Trump’s behalf are of interest to federal prosecutors.After Election Day, Mr. Giuliani and Ms. Ellis appeared in front of a handful of legislatures in contested swing states, laying out what they claimed was evidence of fraud and telling lawmakers that they had the power to pick their own electors to the Electoral College.Mr. Eastman was an architect of a related plan to pressure Vice President Mike Pence to use the alternate electors in a bid to block or delay congressional certification of Mr. Biden’s victory.Examining the lawyers who worked with Mr. Trump after the election edges prosecutors close to the former president. But there is no guarantee that an investigation of the lawyers working on the alternate elector plan would lead prosecutors to discover any evidence that Mr. Trump broke the law.The plot to use alternate electors was one of the most expansive and audacious schemes in a dizzying array of efforts by Mr. Trump and his supporters to deny his election loss and keep him in the White House.John Eastman, a lawyer advising Mr. Trump, was an architect of a plan to pressure Vice President Mike Pence to use alternate electors in a bid to block Joseph R. Biden Jr.’s victory.Anna Moneymaker/The New York TimesIt began even before some states had finished counting ballots, as officials in places like Arizona, Georgia and Wisconsin came under pressure to create slates of electors announcing that Mr. Trump had won.The scheme reached a crescendo in the days leading up to Jan. 6, when Mr. Trump and his allies mounted a relentless campaign to persuade Mr. Pence to accept the alternate electors and use them at a joint session of Congress to deny — or at least delay — Mr. Biden’s victory.At various times, the plan involved state lawmakers and White House aides, though prosecutors seem to believe that a group of Mr. Trump’s lawyers played a crucial role in carrying it out. Investigators have cast a wide net for information about the lawyers, but prosecutors believe that not all of them may have supported the plans that Mr. Trump’s allies created to keep him in office, according to one of the people familiar with the matter.Mr. Giuliani’s lawyer said he was unaware of any investigation into his client. Mr. Eastman’s lawyer and Ms. Ellis did not return emails seeking comment. Mr. Chesebro declined to answer questions about the inquiry.The strategy of pushing the investigation forward by examining the lawyers’ roles could prove to be tricky. Prosecutors are likely to run into arguments that some — or even much — of the information they are seeking is protected by attorney-client privilege. And there is no indication that prosecutors have sought to subpoena the lawyers or search their property.“There are heightened requirements for obtaining a search warrant on a lawyer,” said Joyce Vance, a former U.S. attorney in Alabama. “Even when opening a case where a lawyer could be a subject, prosecutors will flag that to make sure that people consider the rights of uninvolved parties.”As a New York real estate mogul, Mr. Trump had a habit of employing lawyers to insulate himself from queries about his questionable business practices and personal behavior. In the White House — especially in times of stress or scandal — he often demanded loyalty from the lawyers around him, once asking in reference to a mentor and famous lawyer known for his ruthlessness, “Where’s my Roy Cohn?”Some of the lawyers who have come under scrutiny in connection with the alternate elector scheme are already facing allegations of professional impropriety or misconduct.In June, for instance, Mr. Giuliani’s law license was suspended after a New York court ruled that he had made “demonstrably false and misleading statements” while fighting the election results on Mr. Trump’s behalf. Boris Epshteyn, another lawyer who worked with Mr. Giuliani, has also come under scrutiny in the Justice Department investigation, the people familiar with the matter said.Two months before Mr. Giuliani’s license was suspended, F.B.I. agents conducted extraordinary searches of his home and office in New York as part of an unrelated inquiry centered on his dealings in Ukraine before the 2020 election, when he sought to damage Mr. Biden’s credibility.In March, a federal judge in California ruled in a civil case that Mr. Eastman had most likely conspired with Mr. Trump to obstruct Congress and defraud the United States by helping to devise and promote the alternate elector scheme, and by presenting plans to Mr. Pence suggesting that he could exercise his discretion over which slates of electors to accept or reject at the Jan. 6 congressional certification of votes.There is no guarantee that an investigation of the lawyers working on the alternate elector plan would lead prosecutors to discover evidence that Mr. Trump broke the law.Maddie McGarvey for The New York TimesThe scheme, which involved holding meetings and drafting emails and memos, was “a coup in search of a legal theory,” wrote the judge, David O. Carter of the Central District of California.It was revealed this month that Mr. Eastman was involved in a similar — but perhaps even more brazen — effort to overturn to the election results. According to emails released by a public records request, Mr. Eastman pressed a Pennsylvania state lawmaker in December 2020 to carry out a plan to strip Mr. Biden of his win in that state by essentially retabulating the vote count in a way that would favor Mr. Trump.A week before the disclosure of Mr. Eastman’s emails, Ms. Ellis was accused of misconduct in an ethics complaint submitted to court officials in Colorado, her home state.The complaint, by the bipartisan legal watchdog group the States United Democracy Center, said that Ms. Ellis had made “numerous public misrepresentations” while traveling the country with Mr. Giuliani after the election in an effort to persuade local lawmakers that the voting had been marred by fraud.It also noted that Ms. Ellis had assisted Mr. Trump in an “unsuccessful and potentially criminal effort” to stave off defeat by writing two memos arguing that Mr. Pence could ignore the electoral votes in key swing states that had pledged their support to Mr. Biden.As for Mr. Chesebro, he was involved in what may have been the earliest known effort to put on paper proposals for preparing alternate electors.A little more than two weeks after Election Day, Mr. Chesebro sent a memo to James Troupis, a lawyer for the Trump campaign in Wisconsin, laying out a plan to name pro-Trump electors in the state. In a follow-up memo three weeks later, Mr. Chesebro expanded on the plan, setting forth an analysis of how to legally authorize alternate electors in six key swing states, including Wisconsin.The two memos, obtained by The New York Times, were used by Mr. Giuliani and Mr. Eastman, among others, as they developed a strategy intended to pressure Mr. Pence and to exploit ambiguities in the Electoral Count Act, according to a person familiar with the matter. More

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      Group Chat Linked to Roger Stone Shows Ties Among Jan. 6 Figures

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      The roster of participants highlights how Mr. Stone, the pro-Trump political operative, was involved with a strikingly large number of people who sought to overturn the 2020 election.It was known as F.O.S. — or Friends of Stone — and while its members shifted over time, they were a motley cast of characters.There were “Stop the Steal” organizers, right-wing influencers, Florida state legislative aides and more than one failed candidate loyal to former President Donald J. Trump. One participant ran a website that promoted disinformation about the Capitol attack. Another was an officer in the Army Reserve allied with Michael T. Flynn, Mr. Trump’s former national security adviser.At least three members of the group chat are now facing charges in connection with the riot at the Capitol in January 2021. They include Owen Shroyer, the right-hand man of the conspiracy theorist Alex Jones; Enrique Tarrio, the onetime chairman of the Proud Boys; and Stewart Rhodes, the leader of the Oath Keepers militia.But the focus of the chat was always the man whose photo topped its home page: Roger J. Stone Jr., a longtime political operative and adviser to Mr. Trump.While little is known about what was said on the chat, the membership list of Friends of Stone, provided to The New York Times by one of its participants, offers a kind of road map to Mr. Stone’s associations, showing their scope and nature in the critical period after the 2020 election. During that time, Mr. Stone was involved with a strikingly wide array of people who participated in efforts to challenge the vote count and keep Mr. Trump in the White House.Some of the 47 people on the list are identified only by nicknames or initials, and Mr. Stone had pre-existing political ties with many of them. Still, as prosecutors deepen their inquiry into the storming of Capitol, the list suggests that Mr. Stone had the means to be in private contact with key players in the events of Jan. 6 — political organizers, far-right extremists and influential media figures who subsequently played down the attack.Reached by email, Mr. Stone said that he did not control who was admitted to the group chat and noted that Stop the Steal activities were protected by the First Amendment.“There is no story,” he wrote. “Just harassment.”Enrique Tarrio, the onetime chairman of the Proud Boys, maintained close ties to Mr. Stone.Eva Marie Uzcategui/Agence France-Presse — Getty ImagesWhile the origins of the group chat remain somewhat obscure, Friends of Stone has existed since at least 2019, when Mr. Stone was indicted in connection with the Russia investigation by the special counsel Robert S. Mueller III, said one of its participants, Pete Santilli, a veteran right-wing radio host. According to Mr. Santilli, the group chat — hosted on the encrypted app Signal — was a kind of safe space where pro-Stone figures in politics and media, many of whom were banned from social media, could get together and trade links and stories about their mutual friend.“The primary reason for the chat was to have a place for supporters to share stuff,” Mr. Santilli said. “You drop a link and everyone shares it on their nontraditional channels.”But after Mr. Trump’s defeat, Friends of Stone seemed to assume another purpose as Mr. Stone found himself in the middle of the accelerating Stop the Steal movement devised to challenge the results of the election. The Washington Post, citing footage from a Danish documentary film crew that was following Mr. Stone, said that in early November 2020, he asked his aides to direct those involved in the effort to monitor the chat for developments.In recent weeks, the Justice Department has expanded its investigation of the riot from those who physically attacked the Capitol to those who were not at the building but may have helped to shape or guide the violence. Investigators appear to be interested in finding any links between organizers who planned pro-Trump rallies at the Capitol that day and right-wing militants who took part in the assault.The group chat’s membership list includes several people who fit that description.Named on the list are activists like Marsha Lessard and Christina Skaggs, leaders of a group called the Virginia Freedom Keepers who helped to organize an anti-vaccine rally scheduled for the east side of the Capitol on Jan. 6. Ms. Lessard and Ms. Skaggs worked with another anti-vaccine activist, Ty Bollinger, who was also on the list.Members of the group were among those who took part in a conference call on Dec. 30, 2020, when a social media expert who formerly worked for Mr. Stone urged his listeners to “descend on the Capitol” one week later, promising that Joseph R. Biden Jr. “will never be in that White House.”Ms. Lessard, Ms. Skaggs and Mr. Bollinger did not return phone calls seeking comment.Ali Alexander, one of the most prominent Stop the Steal organizers who planned his own event at the Capitol that day, was on the list as well. His lawyer did not return a phone call seeking comment.In the days leading up to Jan. 6, Mr. Stone was scheduled to speak at both Mr. Alexander’s event and the rally hosted by Ms. Lessard, Ms. Skaggs and others, including Bianca Gracia, the leader of a group called Latinos for Trump, according to permits and event fliers. Mr. Stone never spoke at those events, however, and hurried out of Washington even as the police were still securing the Capitol, according to the film footage cited by The Post.Ali Alexander planned his own event at the Capitol on Jan. 6, 2021.Anna Moneymaker/Getty ImagesMr. Stone’s connections to Mr. Rhodes and the Oath Keepers were based, at least in part, on the fact that the militia group provided security for him on Jan. 5 and Jan. 6. The Oath Keepers also protected Mr. Alexander and his entourage on Jan. 6 and served as security at the events hosted by Ms. Skaggs, Ms. Lessard and Ms. Gracia, court papers say.At least one of Mr. Stone’s Oath Keeper bodyguards, Joshua James, has pleaded guilty to seditious conspiracy charges in the Capitol attack and is cooperating with the government’s inquiry. Kellye SoRelle, a lawyer for the Oath Keepers, was part of the Friends of Stone chat as well and is also said to be cooperating with prosecutors in the riot investigation.Mr. Stone, a Florida resident, has long maintained close ties to the Proud Boys, especially to Mr. Tarrio, who lived in Miami before his arrest. Members of the Proud Boys have acted as bodyguards for Mr. Stone and have served as some of his most vocal supporters.In 2019, after Mr. Stone was indicted by Mr. Mueller on charges including obstruction and witness tampering, Mr. Tarrio responded by wearing a T-shirt reading “Roger Stone Did Nothing Wrong” at one of Mr. Trump’s political rallies. At one point, Mr. Tarrio’s personal cellphone had a message recorded by Mr. Stone.Nayib Hassan, Mr. Tarrio’s lawyer, declined to comment on his client’s role in the chat.During his prosecution, Mr. Stone posted an image on social media of the federal judge in his case, Amy Berman Jackson, with cross hairs next to her head. When questioned in court about the image, he acknowledged that he had been sent a series of photos by Mr. Tarrio and two other Florida Proud Boys whose names appear on the Friends of Stone membership list: Jacobs Engels and Tyler Ziolkowski.Mr. Engels was with Mr. Stone in Washington on Jan. 5 and Jan. 6. He initially agreed to talk about the group chat but then did not return a phone call seeking comment.Another person who appeared on the Friends of Stone list — under the name “Ivan” — was Ivan Raiklin, an Army Reserve lieutenant colonel who promoted a plan after the election to pressure Vice President Mike Pence not to certify electors from several disputed swing states. This plan, which Mr. Raiklin called the “Pence Card,” was ultimately taken up by Mr. Trump and some of his legal advisers, like the lawyer John Eastman.Mr. Raiklin, who did not return phone calls seeking comment, was at the Capitol on Jan. 6, but showed no sign of entering the building. Closely aligned with Mr. Flynn, he has continued to question the results of the 2020 vote, appearing at so-called election integrity events and arguing that Mr. Trump was set up by members of the “deep state.”While the government has gathered thousands of pages of private messages in its vast investigation of the Capitol attack, it remains unclear if prosecutors have gotten access to the Friends of Stone group chat. Along with the membership list, The Times was given images of a few snippets of conversations to verify the chat’s authenticity.In one of them, Ms. Skaggs told the group that she had just spoken with the pro-Trump lawyer L. Lin Wood, who took part in the effort to overturn the election. Ms. Skaggs’s message, which does not bear a date, said Mr. Wood was claiming that the Insurrection Act — a form of martial law — had been invoked the night before.Responding to her message, Mr. Rhodes, who had repeatedly urged Mr. Trump to use the Insurrection Act to stay in power, answered incredulously.“I’ll believe it when I see it,” he wrote, dismissing the account with an obscenity. More