Smith, Jack (Attorney)

Subterms

    More stories

    • 100 Shares199 Views

      in Elections

      Georgia Trump Investigation Poses Challenges for Federal Prosecutors

      by

      The concurrent investigations create complications for separate teams relying on similar evidence, some of the same criminal targets and a small, shared pool of witnesses.WASHINGTON — The Fulton County district attorney’s investigation into former President Donald J. Trump’s effort to overturn the 2020 election in Georgia is nearing a decision point, posing fresh challenges for federal prosecutors considering charging him in connection with the Jan. 6, 2021, attack on the Capitol.The long-running investigation by Fani T. Willis in Atlanta substantially overlaps with the broader inquiry into Mr. Trump’s conduct by the special counsel, Jack Smith, in Washington. Both rely on similar documentary evidence, some of the same criminal targets and a small, shared pool of witnesses with knowledge of the former president’s actions and intent.Mr. Trump’s critics believe the concurrent investigations provide assurance that the former president and architects of the scheme to install fake electors in battleground states, including Rudolph W. Giuliani and John C. Eastman, will be held to account.But they also create complications for two aggressive investigative teams pursuing some of the same witnesses, increasing the possibility of discrepancies in testimony that Mr. Trump’s lawyers could exploit. Ms. Willis and her team have a head start, having begun their work in February 2021, and are expected to seek indictments early next month. That raises the pressure on Mr. Smith, who has pledged to work quickly, to move even faster, according to current and former prosecutors.The investigation by the Fulton County district attorney, Fani T. Willis, overlaps with the broader inquiry into Mr. Trump’s conduct by the special counsel, Jack Smith, in Washington.Audra Melton for The New York Times“Normally, the lead federal prosecutor just picks up the phone and tries to work it out with the local prosecutor, but it’s obviously a lot more difficult in a case of this magnitude,” said Channing D. Phillips, who served as acting United States attorney for the District of Columbia from March to November 2021. “The stakes of not working things out are incredibly high.”The investigative efforts are by no means the same. Mr. Smith’s purview extends into other areas, most notably the investigation into whether Mr. Trump mishandled classified documents that were found at his Mar-a-Lago estate after he left office.The federal investigation into Jan. 6 focuses on several charges, according to two law enforcement officials: wire fraud for emails sent between those pushing the false electors scheme; mail fraud for sending the names of electors to the National Archives and Records Administration; and conspiracy, which covers the coordination effort. (A fourth possible charge, obstruction of an official proceeding before Congress, has been used in many cases brought against participants in the Capitol attack.)And some of Ms. Willis’s work has been more parochial in nature, including a review of false statements that Trump allies like Mr. Giuliani made at state legislative hearings in December 2020.Justice Department officials said the indictment of Mr. Trump by the Manhattan district attorney, Alvin L. Bragg, over a hush money payment to a porn star will have little effect on their investigations. Federal prosecutors in Manhattan passed on bringing a similar case.But the Georgia investigation is entirely different. The Justice Department has no authority to order local prosecutors to step aside in areas where the investigations do overlap, unless their investigations conflict with federal law. In fact, internal department rules discourage indicting the subjects of prior state prosecutions.Moreover, there is “no formal rule book” for settling jurisdictional questions or for deciding the chronological sequence of prosecutions, and disputes are usually hashed out informally, as they arise, on an ad hoc basis, said Preet Bharara, a former U.S. attorney for the Southern District of New York.Local and federal prosecutors routinely work together to coordinate charging decisions based on which jurisdiction offers better chances of conviction or a stiffer sentence. But in many high-profile cases, prosecutors view dueling investigations as a nuisance or even a hazard.Witnesses, even forthright ones, sometimes offer different accounts when interviewed by lawyers representing different offices. Differences between state and federal laws can lead to damaging conflicts over strategy and priorities. Then there is what is known as “witness fatigue,” when important players simply grow tired or uncooperative after running gantlets of government inquisitors.Fulton County prosecutors are conducting a wide-ranging investigation that includes calls made by Mr. Trump to exert pressure on state officials and efforts by the former president and his allies to replace legitimate electors in Georgia with pro-Trump alternates. Last year, Ms. Willis’s office sought to interview two key figures who had served in the Justice Department: Richard Donoghue, the acting deputy attorney general in the waning days of the Trump administration, and Jeffrey Clark, an assistant attorney general who led the department’s environmental division.Shortly after Mr. Trump left office, it emerged that Mr. Clark had tried to circumvent the department’s leaders and aid Mr. Trump’s efforts to stay in power. He even drafted a letter that was to have been sent to lawmakers in Georgia falsely claiming that the Justice Department had “identified significant concerns” that would affect the state’s election results and urging lawmakers to convene a special session.Mr. Donoghue was alarmed when he saw the draft, according to testimony he provided to the House committee that investigated the Jan. 6 attack.Aides to Ms. Willis filed what are known as Touhy requests, named after a 1951 Supreme Court case. Under the rule, local prosecutors are required to get authorization from the Justice Department to question its current or former employees. But the requests were ultimately rejected.It is not clear why the department rejected the requests. But both men were at the center of an investigation into Mr. Clark’s conduct by the Justice Department’s inspector general that was subsequently handed off to Mr. Smith’s team.A spokesman for Mr. Smith declined to comment.The possibility of an indictment in the Georgia investigation next month raises the pressure on the special counsel, Jack Smith, to move even faster, according to current and former prosecutors.Peter Dejong/Associated PressFulton County prosecutors also declined to comment. The forewoman of an Atlanta special grand jury that issued an advisory report in January, which has remained largely under seal, appeared to hint in an interview this year that it had recommended that Mr. Trump be indicted.The Atlanta case has put additional pressure on Mr. Smith. Justice Department officials have said they wanted to make charging decisions in the spring or summer, before the 2024 election kicks into high gear — which raises the question of whether Mr. Smith will try to bring charges before Ms. Willis does.“Looking at this as a federal prosecutor, I would just want to go first,” said Joyce Vance, a University of Alabama law professor who served as the U.S. attorney in Birmingham from 2009 to 2017. “I don’t want to have to try my case after it’s already been brought in a state court. You really want to go first to avoid problems with witnesses, and other technical or legal problems.”If Ms. Willis moves first, Mr. Smith’s team would have to obtain department approval to waive an internal rule that precludes “multiple prosecutions and punishments for substantially the same act(s).”Demonstrators rallying for Mr. Trump near his Mar-a-Lago estate this week.Hilary Swift for The New York TimesThat is not considered a high bar, however. Mr. Smith would simply have to show that the state case did not completely cover all the issues addressed in a federal case. It is believed that exemption was recently used to obtain a hate crimes conviction against three men who murdered Ahmaud Arbery, a young Black man who was jogging through their neighborhood.John P. Fishwick Jr., a former U.S. attorney for the Western District of Virginia, said he often requested that local prosecutors step aside when he thought their investigations conflicted with his. He suggested that Mr. Smith could at least consider asking Ms. Willis to do the same.“D.O.J. and state prosecutors do not play well in the same sandbox, but at the end of the day, if it gets into a tug of war, D.O.J. is usually going to win,” he said. “The federal government just has more power as far as compelling witnesses, more power to assign people to a case and more oomph, in general.”While prosecutors should clear up disputes over access to witnesses and documents, it is vital that the two efforts be seen as independent and fact-driven and not a “witch hunt,” as Mr. Trump has described all of the investigations into him, former Justice Department officials say.“I don’t think they would coordinate on things like timing or language of the charges or anything like that — although that wouldn’t be illegal,” said Mary McCord, a former top official in the department’s national security division who is now a visiting professor at Georgetown University Law Center.“But the goal here is avoid any appearance that they are coordinating prosecutions for political purposes,” added Ms. McCord.Glenn Thrush More

    • 138 Shares119 Views

      in Elections

      Former Trump Officials Must Testify in 2020 Election Inquiry, Judge Says

      by

      The ruling paves the way for testimony from Mark Meadows and others. Separately, a Trump lawyer appeared before a grand jury looking into the former president’s handling of classified documents.A federal judge has ruled that a number of former officials from President Donald J. Trump’s administration — including his former chief of staff, Mark Meadows — cannot invoke executive privilege to avoid testifying to a grand jury investigating Mr. Trump’s efforts to overturn the 2020 election.The recent ruling by Judge Beryl A. Howell paves the way for the former White House officials to answer questions from federal prosecutors, according to two people briefed on the matter.Judge Howell ruled on the matter in a closed-door proceeding in her role as chief judge of the Federal District Court in Washington, a job in which she oversaw the grand juries taking testimony in the Justice Department’s investigations into Mr. Trump. Judge Howell’s term as chief judge ended last week.The existence of the sealed ruling was first reported by ABC News.Mr. Trump’s lawyers had tried to rebuff the grand jury subpoenas issued to more than a half-dozen former administration officials in connection with the former president’s efforts to remain in office after his defeat at the polls. The lawyers argued that Mr. Trump’s interactions with the officials would be covered by executive privilege.Prosecutors are likely to be especially eager to hear from Mr. Meadows, who refused to be interviewed by the House select committee that investigated the Jan. 6, 2021, attack on the Capitol. Mr. Meadows was a central player in various efforts to help Mr. Trump reverse the election outcome in a number of contested states.Before he stopped cooperating with the committee, Mr. Meadows provided House investigators with thousands of text messages that gave them a road map of events and people to interview. He has also appeared before a fact-finding grand jury in Fulton County, Ga., investigating the efforts to overturn the election, according to the grand jury’s forewoman, who described him as not very forthcoming.Mr. Meadows’s lawyer, George Terwilliger, did not respond to a phone call on Friday seeking comment.Other officials whose grand jury testimony Judge Howell compelled in her order vary in significance to the investigation, and in seniority. They include John McEntee, who served as Mr. Trump’s personnel chief and personal aide; Nick Luna, another personal aide; Robert C. O’Brien, who was national security adviser; Dan Scavino, who was a deputy chief of staff and social media director in the White House; John Ratcliffe, the director of national intelligence; Stephen Miller, Mr. Trump’s speechwriter and adviser; and Ken Cuccinelli, who served as acting deputy secretary of homeland security.Word of the ruling came as the Justice Department pressed ahead in its parallel investigation into Mr. Trump’s handling of classified documents after leaving office and whether he obstructed the government’s efforts to reclaim them. The twin federal investigations are being led by Jack Smith, the special counsel who was appointed after Mr. Trump announced his latest candidacy in November.In the documents case, one of the central witnesses, M. Evan Corcoran, a lawyer who represented Mr. Trump in the inquiry, appeared before a grand jury on Friday after both Judge Howell and a federal appeals court in Washington rejected his attempts to avoid answering questions by asserting attorney-client privilege on behalf of Mr. Trump, according to two people familiar with the matter..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.In making her ruling last week to force Mr. Corcoran to testify, Judge Howell upheld the government’s request to invoke the crime-fraud exception, a provision of the law that allows prosecutors to work around attorney-client privilege if they have reason to believe that legal advice or services were used to further a crime. The judge also said that Mr. Corcoran would have to turn over some documents related to his representation of Mr. Trump.Judge Howell’s order exposed the continuing legal peril confronting Mr. Trump, as it noted that Mr. Smith’s team had made “a prima facie showing that the former president committed criminal violations,” according to people familiar with the decision.Her order made clear that prosecutors have questions not just about what Mr. Trump told Mr. Corcoran as he prepared to respond to a grand jury subpoena seeking any remaining classified material in Mr. Trump’s possession, but who else may have influenced what Mr. Corcoran told Justice Department officials, according to people familiar with the ruling.In December, another lawyer for Mr. Trump, Timothy Parlatore, also appeared in front of the grand jury, to answer questions about a subpoena prosecutors had issued in May seeking all classified material in the possession of the custodian of records for Mr. Trump’s presidential office.Mr. Parlatore said on Friday that he had gone in front of the grand jury because at that point Mr. Trump’s office no longer had a custodian of records. He also said that he had been involved in several efforts to comply with the subpoena in the weeks and months after the F.B.I., acting on a search warrant in August, hauled away hundreds of classified documents from Mar-a-Lago, Mr. Trump’s private club and residence in Florida.Among the things that Mr. Parlatore said he discussed with the grand jury were additional searches he oversaw at the end of last year, of other properties belonging to Mr. Trump, including Trump Tower in New York; Mr. Trump’s golf club in Bedminster, N.J.; and a storage site in West Palm Beach, Fla.During the search of the storage site, investigators found at least two more documents with classified markings.During his grand jury testimony, Mr. Parlatore said he also mentioned an empty folder bearing the words “classified evening summary” that had remained on Mr. Trump’s bedroom night stand even after the F.B.I.’s search of Mar-a-Lago.He said prosecutors immediately drew up a subpoena for the folder, demanding its return.“The D.O.J. is continuously stepping far outside the standard norms in attempting to destroy the long-accepted, long-held, constitutionally based standards of attorney-client privilege and executive privilege,” a Trump spokesman said in a statement, saying the cases are political and that “there is no factual or legal basis or substance to any case against President Trump.”Prosecutors in Mr. Smith’s office have also been pressing forward with seeking grand jury testimony in a separate investigation into Mr. Trump’s handling of classified documents after he left office. More

    • 113 Shares139 Views

      in Elections

      Dissecting Charges That Could Arise From the Trump Investigations

      by

      Prosecutors in New York, Georgia and the Justice Department face complex choices about what crimes to charge if they decide to indict Donald Trump.WASHINGTON — Prosecutors like to say that they investigate crimes, not people. The looming decision by the Manhattan district attorney about whether to indict former President Donald J. Trump on charges related to an alleged hush money payment to a porn actress is highlighting the complexity of the legal calculations being made by prosecutors in New York, Georgia and the Justice Department as they examine Mr. Trump’s conduct on a number of fronts.The investigations — which also focus on Mr. Trump’s efforts to cling to power after the 2020 election and his handling of classified documents after leaving office — are confronting prosecutors with tough choices. They must decide whether and how to charge not just Mr. Trump, but also associates who could face jeopardy for actions to which he was not a direct party, like mail or wire fraud for communications that he did not participate in.The publicly known understanding of the evidence is incomplete. It is not clear, for example, in several instances what facts investigators have been able to gather about Mr. Trump’s personal knowledge, directions and intentions related to several of the matters.Here is a look at some of the criminal laws that different prosecutors appear to be weighing and how they might apply to Mr. Trump’s actions.Stormy Daniels was paid $130,000.Markus Schreiber/Associated PressThe Stormy Daniels Hush Money PaymentOverviewAlvin L. Bragg, the Manhattan district attorney, appears to be nearing a decision about whether to charge Mr. Trump with a crime related to his $130,000 hush money payment just before the 2016 election to the pornographic film actress Stormy Daniels, who has said they had an extramarital affair. Michael D. Cohen, Mr. Trump’s former lawyer and fixer, sent the money to Ms. Daniels, and the Trump Organization reimbursed him over the course of 2017, according to a 2018 federal court filing in Mr. Cohen’s case. Mr. Trump’s business concealed the true purpose of the payments, the filing said, by recording them as having been for a legal retainer that did not exist.Potential charge: Bookkeeping fraudThe New York Times has reported that the case may include a potential charge of falsifying business records under Article 175 of the New York Penal Law. A conviction for a felony version of bookkeeping fraud carries a sentence of up to four years.To prove that Mr. Trump committed that offense, prosecutors would seemingly need evidence showing that he had knowingly caused subordinates to make a false entry in his company’s records “with intent to defraud.” For the action to be a felony rather than a misdemeanor, prosecutors would also need to show that Mr. Trump falsified the business records with the intention of committing, aiding or concealing a second crime.The public understanding of Mr. Bragg’s theory of the case remains murky and incomplete. The district attorney’s office has reportedly weighed invoking alleged campaign-finance violations as that intended second crime, which could raise complications. Among other things, presidential elections are governed by federal law, and it is not clear whether Mr. Bragg has found a theory by which a state campaign law covered Mr. Trump’s actions, or if a state prosecutor can cite a law over which he lacks jurisdiction. It remains possible that Mr. Bragg has obtained nonpublic evidence of some other intended offense, like if there was any initial intention to deduct the payments as a business expense on state tax returns.Bookkeeping fraud has a two-year statute of limitations as a misdemeanor and a five-year one as a felony, both of which would normally have expired for payments made to Mr. Cohen in 2017. But New York law extends those limits to cover periods when a defendant was continuously out of state, as when Mr. Trump was while living in the White House or at his home in Florida. In addition, during the pandemic, New York’s statute of limitations was extended by more than a year.Mr. Trump has claimed — without evidence — that he declassified all the files taken to Mar-a-Lago.Saul Martinez for The New York TimesThe Mar-a-Lago DocumentsOverviewJack Smith, a special counsel for the federal Justice Department, is investigating matters related to Mr. Trump’s handling of several hundred documents marked as classified that he kept at his Florida club and home, Mar-a-Lago, after leaving office, and how Mr. Trump resisted efforts by the government to retrieve all of those files. After the Justice Department obtained a subpoena for all remaining files marked as classified, a lawyer for Mr. Trump, M. Evan Corcoran, turned over some while helping to draft a statement falsely saying those were all that remained. In August, the F.B.I. executed a search warrant and found 103 more, including in Mr. Trump’s desk.Prosecutors last week persuaded a federal judge that Mr. Corcoran should be compelled to answer more questions from a grand jury investigating the documents matter, notwithstanding attorney-client privilege. That means the judge agreed with prosecutors that the situation met the threshold for an exception for lawyer communications or work that apparently helped further a crime.Potential charge: Unauthorized retention of national security documentsOne of the charges the F.B.I. listed in its affidavit for the Mar-a-Lago search warrant was Section 793(e) of Title 18, a provision of the Espionage Act. Prosecutors would have to show that Mr. Trump knew he was still in possession of the documents after leaving the White House and failed to comply when the government asked him to return them and then subpoenaed him. The theoretical penalty is up to 10 years per such document.Prosecutors would also have to show that the documents related to the national defense, that they were closely held and that their disclosure could harm the United States or aid a foreign adversary. Although Mr. Trump has claimed — without evidence — that he declassified all the files taken to Mar-a-Lago, prosecutors would not need to prove that they were still classified because the Espionage Act predates the classification system and does not refer to it as an element..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.Potential charge: ObstructionAnother charge in the F.B.I. affidavit was Section 1519 of Title 18, which makes it a crime to conceal records to obstruct an official effort. Prosecutors would need to show that Mr. Trump knew he still had files that were responsive to the National Archives’ efforts to take custody of presidential records and the Justice Department’s subpoena for files marked as classified, and that he intentionally caused his subordinates to fail to turn them all over while leading officials to believe they had complied. The penalty is up to 20 years per offense.Potential charge: Mishandling official documentsA third charge in the affidavit was Section 2071 of Title 18, which criminalizes the concealment or destruction of official documents, whether or not they were related to national security. Among other things, former aides to Mr. Trump have recounted how he sometimes ripped up official documents, and the National Archives has said that some of the Trump White House paper records transferred to it had been torn up — some of which were taped back together and some of which were not reconstructed. The penalty is up to three years per offense plus a ban on holding federal office, although the latter is most likely unconstitutional, legal experts say.Potential charge: Contempt of courtSection 402 of Title 18 makes it a crime to willfully disobey a court order, like the grand jury subpoena Mr. Trump received in May 2022 requiring him to turn over all documents with classification markings remaining in his possession. It carries a penalty of a fine of up to $1,000 and up to six months in prison. To bring this charge, prosecutors would need evidence showing he knew that he was still holding onto other files with classification markings during and after his representatives purported to comply with the subpoena.Potential charge: Conspiracy to make a false statementSection 1001 of Title 18 makes it a crime to make a false statement to a law enforcement officer about a fact material to the officer’s investigation, and Section 371 makes it a crime to conspire with another person to break that or any other law. It carries a penalty of up to five years. Prosecutors would need to be able to show that Mr. Trump and Mr. Corcoran knew and agreed that the lawyer should lie to the Justice Department about there being no further documents responsive to the subpoena.Ballots being recounted in Atlanta, which is part of Fulton County, in 2020.Nicole Craine for The New York TimesThe Georgia Election Law InvestigationOverviewFani T. Willis, the district attorney for Fulton County, Ga., is investigating events related to Mr. Trump’s attempts to overturn President Biden’s narrow victory in that state in the 2020 election. Among other things, in a phone call that was recorded and leaked, Mr. Trump called Georgia’s secretary of state, Brad Raffensperger, and pressured him to “find” enough additional votes for him to flip the outcome.Ms. Willis is also investigating Trump associates’ efforts to get 16 of his supporters to falsely declare themselves to be an alternative slate of electors from Georgia, which helped lay the groundwork for Mr. Trump’s push to get Vice President Mike Pence to reject the true results when Congress met to certify the election on Jan. 6, 2021.Potential charges: Election code violationsMost elections offenses in Georgia’s code are misdemeanors, but there are several felony charges that Ms. Willis may be considering, based on the same basic set of facts. These include Section 21-2-603, which makes it a crime to conspire with another person to violate a provision of the election code, and Section 21-2-604, which makes it a crime to solicit another person to commit election fraud.To bring such a charge against Mr. Trump, prosecutors would need to cite another election law whose violation was his alleged goal. It is possible, for example, that they might be considering contending that Mr. Trump’s pushing Mr. Raffensperger to “find” additional votes amounted to implicitly asking him to violate a provision that makes it a felony for the secretary of state to alter official election records, but Mr. Trump’s language was not explicit.Potential charge: RacketeeringMs. Willis has indicated that she is considering bringing charges under Georgia’s Racketeer Influenced and Corrupt Organizations Act. So-called RICO laws are tools that were developed to make it easier to go after organized criminal enterprises, and can be used against members of any group that engaged in a pattern of criminal activities with a common purpose. A conviction would carry a maximum penalty of 20 years in prison.To convict Mr. Trump under Georgia’s RICO law, Section 16-14-4, prosecutors would need to show that as part of his efforts with associates to overturn Georgia’s election results, he conspired with others or engaged in two or more offenses from a list of several dozen offenses, most of which are violent crimes but which include things like solicitation, forgery and making materially false statements to state officials.The House Jan. 6 committee made a criminal referral of Mr. Trump and others to the Justice Department.Haiyun Jiang/The New York TimesThe 2020 Election and Jan. 6OverviewMr. Smith, the special counsel, is also conducting a broader federal investigation into Mr. Trump’s attempt to overturn the 2020 election results and the events of Jan. 6. The House committee that carried out the investigation into the riot last year made a criminal referral of Mr. Trump and others to the Justice Department. While that was of largely symbolic value — the department already had an investigation open and Congress has no authority to prosecute — the analysis in the panel’s final report sets out possible charges that Mr. Smith could also consider.Potential charge: Obstruction of an official proceedingOne criminal accusation the Jan. 6 committee leveled against Mr. Trump was the attempted corrupt obstruction of an official proceeding, under Section 1512(c) of Title 18. It is punishable by up to 20 years in prison. Prosecutors have used this law to charge about 300 ordinary Jan. 6 defendants — people who rioted — and an appeals court is currently weighing whether that charge has been appropriately applied in those cases. But even if the judiciary upholds use of the charge, such a case against Mr. Trump would be very different since he did not physically participate in the riot.The Jan. 6 committee argued that he could be charged with it based on two sets of actions. First, it argued that his summoning of supporters to Washington and urging them to march on the Capitol and “fight like hell” violated that law. Mr. Trump’s defense team would surely seek to raise doubt about whether he intended for his supporters to riot, including because he also told them to protest “peacefully.”Second, the committee portrayed as criminal obstruction the scheme to recruit so-called fake electors from various states and pressuring Mr. Pence to cite their existence as a basis to delay certifying the election. The panel stressed how Mr. Trump had been told that there was no truth to his claims of a stolen election, which it said proved his intentions were corrupt. Among other things, Mr. Trump’s defense team would surely argue that because a lawyer, John Eastman, advised him to take those steps, there is no proof he understood that doing so was illegal.Potential charge: Conspiracy to defraud the United StatesA second criminal accusation leveled by the Jan. 6 committee was Section 371 of Title 18, which makes it a crime, punishable by up to five years in prison, to conspire with another person to defraud the government. The panel cited an array of evidence about Mr. Trump’s interactions with various lawyers and aides in pursuit of his effort to prevent the certification of Mr. Biden’s electoral victory. The committee also argued that prosecutors could prove Mr. Trump intended to be deceitful via evidence that he was repeatedly told that his allegations of widespread voter fraud were baseless.Potential charge: Conspiracy to make a false statementThe Jan. 6 committee highlighted the efforts to submit slates of fake electors to Congress and to the National Archives. As with other such potential charges, a key challenge for prosecutors would be proving Mr. Trump’s intentions and understanding beyond a reasonable doubt.Potential charge: InsurrectionThe committee also pointed to Section 2383 of Title 18, which makes it a crime to incite, assist or “aid and comfort” an insurrection against the authority and laws of the federal government. The panel emphasized in particular how Mr. Trump refused for hours to take steps to call off the rioters despite being implored by aides to do so, and an inflammatory tweet he sent about Mr. Pence in the midst of the violence.While the committee said the events of Jan. 6 met the standard for an insurrection, it is notable that prosecutors have not accused any of the Jan. 6 defendants to date of that offense — even those they charged with seditious conspiracy. More

    • 113 Shares149 Views

      in Elections

      Mike Pence Should Drop His Grand Jury Subpoena Gambit

      by

      Former Vice President Mike Pence recently announced he would challenge Special Counsel Jack Smith’s subpoena for him to appear before a grand jury in Washington as part of the investigation into former President Donald Trump’s efforts to overturn the 2020 presidential election and the related Jan. 6 attack on the U.S. Capitol. Mr. Pence claimed that “the Biden D.O.J. subpoena” was “unconstitutional” and “unprecedented.” He added, “For me, this is a moment where you have to decide where you stand, and I stand on the Constitution of the United States.” Mr. Pence vowed to take his fight all the way to the Supreme Court.A politician should be careful what he wishes for — no more so than when he’s a possible presidential candidate who would have the Supreme Court decide a constitutional case that could undermine his viability in an upcoming campaign.The former vice president should not want the embarrassing spectacle of the Supreme Court compelling him to appear before a grand jury in Washington just when he’s starting his campaign for the presidency; recall the unanimous Supreme Court ruling that ordered Richard Nixon to turn over the fatally damning Oval Office tapes. That has to be an uncomfortable prospect for Mr. Pence, not to mention a potentially damaging one for a man who — at least as of today — is considered by many of us across the political spectrum to be a profile in courage for his refusal to join in the attempt to overturn the 2020 election in the face of Donald Trump’s demands. And to be clear, Mr. Pence’s decision to brand the Department of Justice’s perfectly legitimate subpoena as unconstitutional is a far cry from the constitutionally hallowed ground he stood on Jan. 6.Injecting campaign-style politics into the criminal investigatory process with his rhetorical characterization of Mr. Smith’s subpoena as a “Biden D.O.J. subpoena,” Mr. Pence is trying to score points with voters who want to see President Biden unseated in 2024. Well enough. That’s what politicians do. But Jack Smith’s subpoena was neither politically motivated nor designed to strengthen President Biden’s political hand in 2024. Thus the jarring dissonance between the subpoena and Mr. Pence’s characterization of it. It is Mr. Pence who has chosen to politicize the subpoena, not the D.O.J.As to the merits of his claim, The New York Times and other news media have reported that Mr. Pence plans to argue that when he presided over the joint session of Congress on Jan. 6 as president of the Senate, he was effectively a legislator and therefore entitled to the privileges and protections of the Constitution’s “speech or debate” clause. That clause is intended to protect members of Congress from questioning and testifying about official legislative acts. Should the courts support his claim, Mr. Pence would not be required to comply with Mr. Smith’s subpoena. Mr. Pence may also be under the impression that the legal fight over his claim will confound the courts, consuming months, if not longer, before he receives the verdict — but it’s unclear what he hopes to gain from the delay. One would have thought Mr. Pence would have seized the propitious opportunity afforded him by Mr. Smith, most likely weeks or months before he even decides whether he will run for the presidency.If Mr. Pence’s lawyers or advisers have told him that it will take the federal courts months and months or longer to decide his claim and that he will never have to testify before the grand jury, they are mistaken. We can expect the federal courts to make short shrift of this “Hail Mary” claim, and Mr. Pence doesn’t have a chance in the world of winning his case in any federal court and avoiding testifying before the grand jury.Inasmuch as Mr. Pence’s claim is novel and an unsettled question in constitutional law, it is only novel and unsettled because there has never been a time in our country’s history where it was thought imperative for someone in a vice president’s position, or his lawyer, to conjure the argument. In other words, Mr. Pence’s claim is the proverbial invention of the mother of necessity if ever there was one.Any protections the former vice president is entitled to under the “speech and debate” clause will be few in number and limited in scope. There are relatively few circumstances in which a former vice president would be entitled to constitutional protection for his conversations related to his ceremonial and ministerial roles of presiding over the electoral vote count. What Mr. Smith wants to know about are Mr. Pence’s communications and interactions with Mr. Trump before, and perhaps during, the vote count, which are entirely fair game for a grand jury investigating possible crimes against the United States.Whatever the courts may or may not find the scope of any protection to be, they will unquestionably hold that Mr. Pence is nonetheless required to testify in response to Mr. Smith’s subpoena. Even if a vice president has “speech or debate” clause protections, they will yield to a federal subpoena to appear before the grand jury. This is especially true where, as here, a vice president seeks to protect his conversations with a president who himself is under federal criminal investigation for obstructing the very official proceedings in which the special counsel is interested.Mr. Pence and his inner circle should be under no illusion that the lower federal courts will take their time dispensing with this claim. The courts quickly disposed of Senator Lindsey Graham’s “speech or debate” clause claim, requiring him to testify before the grand jury empaneled in Fulton County, Ga. — and his claim was far stronger than Mr. Pence’s. In the unlikely event that Mr. Pence’s claim were to make it to the Supreme Court, it, too, could be expected to take swift action.Mr. Pence undoubtedly has some of the finest lawyers in the country helping him navigate this treacherous path forward, and they will certainly earn their hefty fees. But in cases like this, the best lawyers earn their pay less when they advise and argue their clients’ cases in public than when they elegantly choreograph the perfect exit in private — before their clients get the day in court they wished for.Mr. Pence’s lawyers would be well advised to have Jack Smith’s phone number on speed dial and call him before he calls them. The special counsel will be waiting, though not nearly as long as Mr. Pence’s lawyers may be thinking. No prosecutor, least of all Mr. Smith, will abide this political gambit for long. And Mr. Pence shouldn’t let this dangerous gambit play out for long. If he does, it will be more than he wished for.It is a time-tested axiom in the law never to ask questions you don’t know the answer to. This should apply to politicians in spades. But the die has been cast by the former vice president. The only question now is not whether he will have to testify before the grand jury, but how soon. The special counsel is in the driver’s seat, and the timing of Mr. Pence’s appearance before the grand jury is largely in his hands. Mr. Smith will bide his time for only so long.J. Michael Luttig, a former judge on the United States Court of Appeals for the Fourth Circuit, provided advice to then-Vice President Mike Pence on the run-up to the Electoral College count on Jan. 6, 2021.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

    • 163 Shares119 Views

      in Elections

      Special Counsel Seeks to Force Pence to Testify Before Jan. 6 Grand Jury

      by

      Prosecutors have asked a federal judge to set aside any claims of executive privilege that former Vice President Mike Pence might raise to avoid answering questions.The Justice Department has asked a federal judge to force former Vice President Mike Pence to testify fully in front of a grand jury investigating former President Donald J. Trump’s efforts to overturn the 2020 election, seeking to cut short any attempt by Mr. Trump to use executive privilege to shield Mr. Pence from answering questions, two people familiar with the matter said on Thursday.The request — amounting to a pre-emptive motion to compel Mr. Pence’s testimony — came before the former vice president had even appeared in front of the grand jury, and before any privilege claims had actually been raised in court.The sealed motion, filed in recent days in Federal District Court in Washington, is the latest step in a long-running behind-the-scenes struggle, first by the Justice Department and now by the office of the special counsel, Jack Smith, to cut through the various assertions of privilege that witnesses close to Mr. Trump have repeatedly raised in an effort to avoid answering questions.The privilege disputes have been handled by Judge Beryl A. Howell, the chief federal judge in Washington, who oversees all of the district’s grand jury matters, which as a rule are conducted in secret. Judge Howell is expected to step down from her position next month and be replaced by another chief judge.Also on Thursday, Judge Howell rejected a request by reporters at The New York Times and Politico to unseal her rulings and associated filings about legal fights ancillary to the material presented to the Jan. 6 grand jury itself, such as hidden wrangling over whether Mr. Trump’s former aides could lawfully decline to answer questions based on executive privilege.Understand the Events on Jan. 6Timeline: On Jan. 6, 2021, 64 days after Election Day 2020, a mob of supporters of President Donald J. Trump raided the Capitol. Here is a close look at how the attack unfolded.A Day of Rage: Using thousands of videos and police radio communications, a Times investigation reconstructed in detail what happened — and why.Lost Lives: A bipartisan Senate report found that at least seven people died in connection with the attack.Jan. 6 Attendees: To many of those who attended the Trump rally but never breached the Capitol, that date wasn’t a dark day for the nation. It was a new start.Last week, people close to Mr. Pence previewed his attempt to fight the grand jury subpoena by saying that the former vice president planned to argue that his role as the president of the Senate meant he was protected from legal scrutiny by the executive branch — including the Justice Department — under the Constitution’s “speech or debate” clause. That provision is intended to protect the separation of powers.Such an approach would be a departure from the more traditional argument that a vice president’s interactions with a president would be subject to executive privilege, a power asserted by presidents to shield certain internal executive branch deliberations, especially confidential communications involving the president or among his top aides..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.But the special counsel’s motion to compel Mr. Pence’s testimony — reported earlier by CBS News — did not address his expected arguments about the “speech or debate” clause, the two people familiar with the matter said. Rather, it focused on the issue of executive privilege and advanced the proactive argument that Mr. Pence should not be permitted to avoid answering questions by invoking it on Mr. Trump’s behalf, the people said.A spokesman for Mr. Pence declined to comment. Joshua Stueve, a spokesman for the special counsel’s office, also declined to comment.In the fall, two former aides to Mr. Pence, Marc Short and Greg Jacob, asserted claims of both executive and attorney-client privilege in a bid to limit their own testimony in front of the grand jury investigating Mr. Trump’s role in overturning the election. The Justice Department filed a sealed motion at the time seeking to compel their testimony, and both men ultimately answered questions.Not long after, Pat A. Cipollone and Patrick F. Philbin, the two top lawyers in Mr. Trump’s White House, tried a similar gambit. Again, the Justice Department prevailed, at least in part, and both men were made to answer questions in front of the grand jury.Witnesses close to Mr. Trump have also raised claims of privilege in an effort to avoid answering questions in a separate grand jury investigation: one that is examining Mr. Trump’s handling of sensitive government documents that he took with him after leaving office to Mar-a-Lago, his private club and residence in Palm Beach, Fla.This month, one of Mr. Trump’s lawyers in that case, M. Evan Corcoran, invoked attorney-client privilege after being subpoenaed to answer questions in front of the grand jury. The special counsel’s office responded by filing a motion to Judge Howell, asking her to set aside the privilege claims under what is known as the crime-fraud exception.The crime-fraud exception allows prosecutors to work around attorney-client privilege if they can convince a judge that there is reason to believe that legal advice or legal services have been used in furthering a crime.This week, lawyers for Mr. Trump filed a response saying the crime-fraud exception did not apply to Mr. Corcoran.Charlie Savage More

    • 138 Shares129 Views

      in Elections

      Here’s the Status of the Four Criminal Investigations Into Donald Trump

      by

      The revelations from grand jury proceedings in Georgia are the latest signs that federal and local inquiries into the former president could reach key decision points in coming months.When the forewoman of a Georgia grand jury investigating allegations of election interference by former President Donald J. Trump and his advisers gave a series of highly public — and highly unusual — interviews this week, she suggested that the case might soon be headed toward indictment.Three other criminal inquiries involving Mr. Trump have also been progressing relatively quickly — if not quite as fast — in recent months, with the Justice Department pressing forward in Washington and a local prosecutor moving ahead in New York.No former president has ever confronted the barrage of legal threats that Mr. Trump now faces, all of which appear to be heading toward decision points by the authorities in coming months. Heightening the stakes, the inquiries have intensified just as Mr. Trump has started ramping up his third campaign for the White House.Beyond the Georgia case, Mr. Trump is under investigation by a special counsel in Washington for his role in seeking to overturn the results of the 2020 election and for his potential mishandling of classified documents. At the same time, local authorities in New York are looking into whether Mr. Trump authorized and was involved in falsely accounting for hush money payments to a pornographic film actress who said she had an affair with him.Even though much about the inquiries seems straightforward — “It’s not rocket science,” the forewoman in Georgia, Emily Kohrs, told The New York Times — each of the cases is layered with its own array of legal complexities that make predicting an outcome difficult. And that is to say nothing about the potential complications of bringing charges in the midst of a presidential campaign against a pugnacious figure like Mr. Trump, who has long assailed attempts by the authorities to hold him accountable as hoaxes and politically motivated witch hunts.Here is a look at the status of each of the criminal investigations confronting Mr. Trump.In Georgia, the Fulton County district attorney, Fani T. Willis, is looking at a variety of possible charges related to Mr. Trump’s efforts to reverse his 2020 election loss in the state.Lynsey Weatherspoon for The New York TimesGeorgia: Election InterferenceThe Georgia investigation presents two areas of exposure for Mr. Trump.One is his direct involvement in recruiting a slate of alternate presidential electors, even after Georgia’s results were recertified by the state’s Republican leadership. “We definitely talked about the alternate electors a fair amount,” Ms. Kohrs said. The other centers on phone calls Mr. Trump made to pressure state officials after the election, including one in which he told Brad Raffensperger, Georgia’s secretary of state, that he needed to “find” 11,780 votes — one more than Joseph R. Biden Jr.’s margin of victory in the state.The decision about whether to charge Mr. Trump will ultimately be made by the Fulton County district attorney, Fani T. Willis, who has been investigating the case for the last two years. Ms. Willis’s office has said it is considering everything from conspiracy and racketeering to narrower charges, such as criminal solicitation to commit election fraud.The special grand jury that Ms. Kohrs served on produced a report last month after hearing testimony since last June, but most of the report has been kept secret. In an interview this week, Ms. Kohrs said the grand jurors had recommended that several people be indicted on a range of charges, but declined to provide names before the full report was released.Understand the Events on Jan. 6Timeline: On Jan. 6, 2021, 64 days after Election Day 2020, a mob of supporters of President Donald J. Trump raided the Capitol. Here is a close look at how the attack unfolded.A Day of Rage: Using thousands of videos and police radio communications, a Times investigation reconstructed in detail what happened — and why.Lost Lives: A bipartisan Senate report found that at least seven people died in connection with the attack.Jan. 6 Attendees: To many of those who attended the Trump rally but never breached the Capitol, that date wasn’t a dark day for the nation. It was a new start.In the small portion of the report that was released, the jurors said they saw potential evidence of perjury by “one or more” witnesses. But Ms. Kohrs said the jurors appended eight pages of criminal code citations to their report, hinting at its breadth.A number of legal experts have said Mr. Trump faces significant jeopardy in the Georgia inquiry.“His risk of being charged was already substantial even before the grand jury report excerpts,” said Norman Eisen, a lawyer who served as special counsel to the House Judiciary Committee during Mr. Trump’s first impeachment trial. “The foreperson’s comments make that virtually certain.”Special Counsel: Overturning the ElectionThe Justice Department has been asking questions for more than a year about Mr. Trump’s sprawling efforts to overturn the election and whether he committed any crimes in connection with the Jan. 6, 2021, attack on the Capitol. The investigation — one of two inherited in November by the special counsel, Jack Smith — has used a variety of methods and has gathered an enormous amount of information.Federal agents have seized cellphones and other devices from pro-Trump lawyers like John Eastman and Jeffrey Clark — as well as from one of Mr. Trump’s chief congressional allies, Representative Scott Perry, Republican of Pennsylvania.Prosecutors have issued grand jury subpoenas to several state Republican officials and to dozens of Trump administration lawyers and officials. Those include people like Mark Meadows, Mr. Trump’s onetime chief of staff, and former Vice President Mike Pence, who presumably have knowledge of the former president’s thoughts and behavior in weeks leading up to Jan. 6. In the most recent sign the investigation is continuing apace, Mr. Smith has issued subpoenas to Mr. Trump’s daughter Ivanka and his son-in-law Jared Kushner..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.Investigators have also been poring over thousands of pages of interviews conducted by the House select committee investigating Jan. 6, which recommended that Mr. Trump be prosecuted for crimes including inciting insurrection, conspiracy to defraud the United States, and the obstruction of a proceeding before Congress.One of the chief strands of the inquiry has focused on the plan to create false slates of pro-Trump electors in swing states actually won by Mr. Biden, mirroring one element of the Georgia investigation. Federal investigators have also been scrutinizing the broad claims by Mr. Trump and his allies that the election was marred by fraud, and a series of payments made by Save America PAC, Mr. Trump’s chief postelection fund-raising vehicle.Mr. Smith’s office has been tight-lipped about his plans, although several people familiar with the investigation have said that prosecutors could complete their work by spring or early summer. The process has often been slowed by time-consuming litigation as witnesses like Mr. Pence have sought to avoid or limit their grand jury testimony with various legal arguments.It remains unclear if Mr. Smith will ultimately indict Mr. Trump. But several legal experts — including Timothy J. Heaphy, a former U.S. attorney who led the House’s Jan. 6 investigation — have said that the key to bringing charges is obtaining clear-cut evidence that Mr. Trump intended to break the law.“When we started to see intentional conduct, specific steps that appear to be designed to disrupt the joint session of Congress, that’s where it starts to sound criminal,” Mr. Heaphy told The Times this week. “The whole key for the special counsel is intent.”Last August, the F.B.I. searched Mar-a-Lago, Mr. Trump’s private club and residence, and found more than 100 classified documents, after one of his lawyers had attested that no more were there.Marco Bello/ReutersSpecial Counsel: Classified DocumentsThe investigation into Mr. Trump’s handling of classified documents began in earnest last May with a subpoena. It sought the return of any classified material still in his possession, after he had voluntarily handed over an initial batch of records that turned out to include almost 200 classified documents.Within a month, a lawyer for Mr. Trump, M. Evan Corcoran, gave investigators more than 30 additional documents in response to the subpoena. Around the same time, another lawyer, Christina Bobb, asserted that a “diligent search” had been conducted at Mar-a-Lago, Mr. Trump’s private club and residence in Florida, assuring prosecutors there were no more documents with classification markings.But the inquiry took a dramatic turn in August when acting on a search warrant, the F.B.I. descended on Mar-a-Lago and discovered more than 100 additional classified documents. The affidavit submitted by the Justice Department in seeking the search warrant said that investigators had “probable cause to believe that evidence of obstruction” would be discovered.Mr. Pence and President Biden have also faced scrutiny for having classified materials in their possession — in Mr. Biden’s case, a separate special counsel investigation is underway. In the case of Mr. Trump, prosecutors have focused on a few key questions: Did Mr. Trump knowingly remove the sensitive records from the White House and did he willfully hold on to them in violation of the Espionage Act? Moreover, did he try to hinder investigators from figuring out why or where he kept them?To answer those questions, prosecutors have interviewed several junior aides to Mr. Trump and compelled grand jury testimony from more senior aides like Kash Patel.They have also sought to force Mr. Corcoran to testify fully in front of the grand jury. Mr. Corcoran tried to avoid answering questions by asserting attorney-client privilege on behalf of Mr. Trump. But the prosecutors have sought to pierce that privilege with the so-called crime-fraud exception, which can be invoked when there is evidence that legal advice or services have been used in furthering a crime.It remains unclear whether Mr. Smith will bring charges in this inquiry either. While no evidence exists at this point that Mr. Biden or Mr. Pence have sought to obstruct investigations into their own handling of documents — both brought their possession of the documents to the attention of the Justice Department — the parallel probes have complicated the political landscape and could give Mr. Trump a reason to cry foul if he is charged and the others are not.Manhattan District Attorney: Stormy DanielsThe investigation into Mr. Trump’s role in paying hush money to the porn actress Stormy Daniels has spanned five years, two Manhattan district attorneys and multiple grand juries.But recently, prosecutors under the current district attorney, Alvin L. Bragg, appear to have moved closer than ever to indicting the former president. Last month, they began presenting evidence to a newly seated grand jury, which has heard from several witnesses as the office lays the groundwork for potential charges against Mr. Trump.The case would likely center on whether Mr. Trump and his company falsified business records to hide the payments to Ms. Daniels in the days before the 2016 election. But an indictment — let alone a conviction — is hardly assured.Any prosecution of the case would rely on testimony from Michael D. Cohen, Mr. Trump’s former personal lawyer, who made the payment to Ms. Daniels and who pleaded guilty himself in 2018 to federal charges. Mr. Trump reimbursed Mr. Cohen for the $130,000 he paid out, and according to court papers in Mr. Cohen’s case, Mr. Trump’s company falsely identified the reimbursements as legal expenses.In New York, it is a misdemeanor to falsify business records. To make it a felony, prosecutors would need to show that Mr. Trump falsified the records to help commit or conceal a second crime — in this case, violating New York State election law, a legal theory that has not been tested. Mr. Trump has denied all wrongdoing and lashed out at the prosecutors for leading what he calls a partisan witch hunt against him. He has also denied having an affair with Ms. Daniels.Under Mr. Bragg’s predecessor, Cyrus R. Vance Jr., the district attorney’s office had begun presenting evidence to an earlier grand jury about a far broader case focused on Mr. Trump’s business practices, including whether he fraudulently inflated the value of his assets by billions of dollars to secure favorable loans and other benefits.But in the early weeks of his tenure last year, Mr. Bragg developed concerns about the strength of that case and halted the grand jury presentation, prompting the resignations of two senior prosecutors leading the investigation.Jonah E. Bromwich More

    • 138 Shares179 Views

      in Elections

      Jack Smith, Special Counsel for Trump Inquiries, Steps Up the Pace

      by

      Named less than three months ago to oversee investigations into Donald J. Trump’s efforts to hold onto power and his handling of classified documents, the special counsel is moving aggressively.Did former President Donald J. Trump consume detailed information about foreign countries while in office? How extensively did he seek information about whether voting machines had been tampered with? Did he indicate he knew he was leaving when his term ended?Those are among the questions that Justice Department investigators have been directing at witnesses as the special counsel, Jack Smith, takes control of the federal investigations into Mr. Trump’s efforts to reverse his 2020 election loss and his handling of classified documents found in his possession after he left office.Through witness interviews, subpoenas and other steps, Mr. Smith has been moving aggressively since being named to take over the inquiries nearly three months ago, seeking to make good on his goal of resolving as quickly as possible whether Mr. Trump, still a leading contender for the 2024 Republican presidential nomination, should face charges.Last week, he issued a subpoena to former Vice President Mike Pence, a potentially vital witness to Mr. Trump’s actions and state of mind in the days before the Jan. 6, 2021, assault on the Capitol by a pro-Trump mob.His prosecutors have brought a member of Mr. Trump’s legal team, M. Evan Corcoran, before a federal grand jury investigating why Mr. Trump did not return classified information kept at his Mar-a-Lago residence and private club in Florida. Justice Department officials have interviewed at least one other Trump lawyer in connection with the documents case.Since returning to Washington from The Hague, where he had been a war crimes prosecutor, Mr. Smith has set up shop across town from the Justice Department’s headquarters, and has built out a team. His operation’s structure seems to closely resemble the organization he oversaw when he ran the Justice Department’s public integrity unit from 2010 to 2015.Three of his first hires — J.P. Cooney, Raymond Hulser and David Harbach — were trusted colleagues during Mr. Smith’s earlier stints in the department. Thomas P. Windom, a former federal prosecutor in Maryland who had been tapped in late 2021 by Attorney General Merrick B. Garland’s aides to oversee major elements of the Jan. 6 inquiry, remains part of the leadership team, according to several people familiar with the situation.In addition to the documents and Jan. 6 investigations, Mr. Smith appears to be pursuing an offshoot of the Jan. 6 case, examining Save America, a pro-Trump political action committee, through which Mr. Trump raised millions of dollars with his false claims of election fraud. That investigation includes looking into how and why the committee’s vendors were paid.M. Evan Corcoran has represented Donald J. Trump in the case related to his handling of classified material for many months.Alex Kent/Getty ImagesInterviews with current and former officials, lawyers and other people who have insight into Mr. Smith’s actions and thinking provide an early portrait of how he is managing investigations that are as sprawling as they are politically explosive, with much at stake for Mr. Trump and the Justice Department.Current and former officials say Mr. Smith appears to see the various strands of his investigations as being of a single piece, with interconnected elements, players and themes — even if they produce divergent outcomes.Mr. Smith has kept a low profile, making no public appearances and sticking to a long pattern of empowering subordinates rather than interposing himself directly in investigations. It is a chain-of-command style honed during stints as a war crimes prosecutor in The Hague, a federal prosecutor in Tennessee and, most of all, during his tenure running the Justice Department’s public integrity unit, which investigates elected officials.A spokesman for Mr. Smith had no comment.But various developments that have surfaced publicly in recent days show his team taking steps on multiple fronts, illustrating how he is wrestling with multiple and sometimes conflicting imperatives of conducting an exhaustive investigation on a strictly circumscribed timetable.The intensified pace of activity speaks to his goal of finishing up before the 2024 campaign gets going in earnest, probably by summer. At the same time, the sheer scale and complexity and the topics he is focused on — and the potential for the legal process to drag on, for example in a likely battle over whether any testimony by Mr. Pence would be subject to executive privilege — suggest that coming to firm conclusions within a matter of months could be a stretch.“The impulse to thoroughly investigate Trump’s possibly illegal actions and the impulse to complete the investigation as soon as possible, because of presidential election season, are at war with one another,” said Jack Goldsmith, a former assistant attorney general and current Harvard Law professor. “One impulse will likely have to yield to the other.”In looking into Mr. Trump’s efforts to hold onto power after his election loss and how they led to the Jan. 6 riot, Mr. Smith is overseeing a number of investigative strands. The subpoena to Mr. Pence indicates that he is seeking testimony that would go straight to the question of Mr. Trump’s role in trying to prevent certification of Joseph R. Biden Jr.’s victory in the election and the steps Mr. Trump took in drawing a crowd of supporters to Washington and inciting them.His team is sifting through mountains of testimony provided by the House Jan. 6 committee, including focusing on the so-called fake electors scheme in which some of Mr. Trump’s advisers and some campaign officials assembled alternate slates of Trump electors from contested states that he had lost..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.More recently his team has been asking witnesses about research the Trump campaign commissioned by an outside vendor shortly after the election that was intended to come up with evidence of election fraud. The existence of that research was reported earlier by The Washington Post.The apparently related investigation into the activities of Mr. Trump’s main fund-raising arm, the Save America PAC in Florida, was emerging even before Mr. Smith arrived in Washington around Christmas from The Hague.A vast array of Trump vendors have been subpoenaed. Investigators have been posing questions related to how money was paid to other vendors, indicating that they are interested in whether some entities were used to mask who was being paid or if the payments were for genuine services rendered.In the investigation into Mr. Trump’s handling of classified information, and whether he obstructed justice when the government sought the return of material he had taken from the White House, investigators are casting a wide net. They appear to be seeking to recreate not only what took place once Mr. Trump had departed the White House with hundreds of sensitive documents, but also how he approached classified material and presidential records long before that, according to multiple people briefed on the matter.Mr. Smith’s team is seeking interviews with a number of people who worked in the Trump White House and who had familiarity with either how he consumed classified information, or how he dealt with paper that he routinely carted with him in cardboard boxes, during much of the span of his presidency.Such interviews could help Mr. Smith establish patterns of behavior by Mr. Trump over time, such as how he handled secret information he was provided about foreign countries and how he treated presidential documents generally.Alina Habba is another of Mr. Trump’s lawyers.Jefferson Siegel for The New York TimesMr. Trump was known to rip up pieces of paper, and to bring documents up to the White House residence. Notes taken by aides in 2018 show that Mr. Trump’s advisers appeared to be contending with tracking documents he had brought with him to his club in Bedminster, N.J., where he stayed over weekends during the warmer months of the year.In some cases, Mr. Trump tore up documents and threw them in toilets in the White House. Aides would periodically retrieve what was not flushed down and let it dry, then tape it back together and pass the documents on to the staff secretary, whose office managed presidential paper flow, according to two people familiar with what took place.In the documents investigation, Mr. Smith has the challenge of interviewing several unreliable narrators who may have an interest in protecting Mr. Trump.Several of Mr. Trump’s advisers have been interviewed by the Justice Department. Some have gone before the grand jury, including Mr. Corcoran, who has represented Mr. Trump in the case related to his handling of classified material for many months and had a central role in dealing with the government’s efforts to retrieve the documents, according to two people briefed on his appearance.Another aide to Mr. Trump, Christina Bobb, served as the custodian of the records the Justice Department was interested in. She signed an attestation in June claiming that a “diligent search” had been conducted of Mar-a-Lago in response to a grand jury subpoena. She asserted that the remaining documents turned over in June were all that remained.Ms. Bobb has appeared twice before the Justice Department and has told people that Mr. Corcoran drafted the statement she signed; The Wall Street Journal reported that one visit was before the grand jury. She has also said she was connected with Mr. Corcoran by Boris Epshteyn, another Trump lawyer and adviser who brought Mr. Corcoran into Mr. Trump’s circle and, empowered by Mr. Trump, for months played a lead role coordinating lawyers in some of the investigations.The Justice Department contacted another of Mr. Trump’s lawyers, Alina Habba, late last year about an appearance. Ms. Habba does not represent Mr. Trump in the documents case, but she spoke about it on television. She also signed an affidavit in another case saying she had searched Mr. Trump’s office and residence in May, meaning investigators may be interested in whether she saw government documents there.The Justice Department is also seeking to question a former Trump lawyer, Alex Cannon, who people briefed on the matter said repeatedly urged Mr. Trump to turn over the boxes of material that the National Archives was seeking.Mr. Trump’s disclosure of newly located documents has been ongoing. Lawyers for the former president notified prosecutors recently about a potential witness they might want to speak with: a relatively junior former staff member to Mr. Trump who had uploaded classified material onto a laptop and discovered it only after the fact, according to a different person familiar with the incident.The discovery occurred when the staff member was placing a large trove of Mr. Trump’s daily White House schedules on the computer and realized that a small amount of classified material had been included in the schedules, the person said.In an interview with CNN on Sunday, one of Mr. Trump’s lawyers, Tim Parlatore, said the Justice Department had issued a subpoena for a manila folder marked “classified evening summary” after Mr. Trump’s aides provided the department with reports on materials they had found after their own searches. He said it was not actually a classified marking, contained nothing and was being used by Mr. Trump to dim a blue light on his bedside phone at Mar-a-Lago that “keeps him up at night.”“I’ve never seen anything like it,” Chuck Rosenberg, a former federal prosecutor and former F.B.I. official, said of the cascade of Trump aides and lawyers becoming drawn into investigations. “It’s just a whirling dust cloud, and everyone who gets near it gets covered in grime.”While Mr. Smith did not ask Mr. Garland’s permission to subpoena Mr. Pence, one of the most extraordinary developments of his short time as special counsel, he almost certainly consulted him about it: Under the regulations, special counsels are expected to report major developments to the attorney general.The Justice Department is also seeking to question Alex Cannon, a former Trump lawyer.Pool photo by Andrew HarnikBut many legal observers see the current situation — with two likely 2024 presidential rivals, Mr. Trump and Mr. Biden, facing separate special counsel investigations — as evidence that the special counsel mechanism is being used far beyond its intended, limited purpose.“The special counsel regulations were an effort to give the attorney general some independence in a conflict-of-interest situation,” Mr. Goldsmith added, “but it was never intended to carry the burdens that are being imposed on it now. It is a problem, these political investigations, that our constitutional system is not equipped to handle.”Ben Protess More

    • 125 Shares179 Views

      in Elections

      Giuliani Receives Grand Jury Subpoena for Records Related to Trump

      by

      The subpoena to Rudolph W. Giuliani in November came as prosecutors have been examining the workings of former President Donald J. Trump’s fund-raising vehicle.WASHINGTON — Rudolph W. Giuliani, the lawyer who oversaw former President Donald J. Trump’s legal challenges to the 2020 election, has received a grand jury subpoena for records related to his representation of Mr. Trump, including those that detailed any payments he received, a person familiar with the matter said on Monday.The subpoena, which was sent in November, bore the name of a prosecutor in the U.S. attorney’s office in Washington. It predated the appointment of Jack Smith, the special counsel chosen to take over the Justice Department’s investigation of the roles that Mr. Trump and several of his aides and lawyers played in seeking to overturn the results of the election. It remained unclear, however, if Mr. Smith and his team have assumed control of the part of the inquiry related to Mr. Giuliani.As part of its investigation, the special counsel’s office has been examining, among other things, the inner workings of Mr. Trump’s fund-raising vehicle, Save America PAC. The records subpoenaed from Mr. Giuliani could include some related to payments made by the PAC, according to the person familiar with the matter.Several subpoenas issued in the past several months have asked for records concerning Save America PAC. The House committee that investigated the Jan. 6 attack on the Capitol also looked into Mr. Trump’s fund-raising operation during its own separate inquiry, and raised questions about whether it had duped donors through misleading appeals about election fraud.A longtime ally of Mr. Trump, Mr. Giuliani effectively ran the former president’s attempts to overturn his defeat in the presidential race and has for months been a chief focus of the Justice Department’s broad investigation into the postelection period. His name has appeared on several subpoenas sent to former aides to Mr. Trump and to a host of Republican state officials involved in a plan to create fake slates of pro-Trump electors in states that were actually won by Joseph R. Biden Jr.Understand the Events on Jan. 6Timeline: On Jan. 6, 2021, 64 days after Election Day 2020, a mob of supporters of President Donald J. Trump raided the Capitol. Here is a close look at how the attack unfolded.A Day of Rage: Using thousands of videos and police radio communications, a Times investigation reconstructed in detail what happened — and why.Lost Lives: A bipartisan Senate report found that at least seven people died in connection with the attack.Jan. 6 Attendees: To many of those who attended the Trump rally but never breached the Capitol, that date wasn’t a dark day for the nation. It was a new start.In one of its final acts, the Jan. 6 committee referred Mr. Giuliani and others, including Mr. Trump, for prosecution by the Justice Department. Still, the emergence of the subpoena, which was reported earlier by CNN, was the first time evidence had surfaced suggesting that Mr. Giuliani had become directly embroiled in the inquiry into the part that Mr. Trump played in the events leading up to Jan. 6.Mr. Giuliani’s subpoena was issued about two months after prosecutors blanketed more than 40 other figures from Mr. Trump’s White House with subpoenas. In 2021, the Justice Department seized Mr. Giuliani’s cellphones and computers as part of a separate investigation into his efforts to dig up dirt on Mr. Biden in Ukraine.While acting as Mr. Trump’s lawyer, Mr. Giuliani undertook an array of efforts on his behalf.He promoted a baseless conspiracy theory that a cabal of international actors had hacked into voting machines produced by Dominion Voting Systems and used them to rig the election for Mr. Biden — despite the fact that an internal memo from the Trump campaign had determined earlier that many of the outlandish claims about Dominion were untrue.Mr. Giuliani also made persistent claims that the voting had been marred by widespread cheating and irregularities at a series of informal legislative hearings in key swing states around the country. But when he personally appeared in court in Philadelphia to defend a lawsuit challenging the election, he acknowledged to the judge in the case that the suit had not alleged that fraud had actually occurred.Before his subpoena was issued, Mr. Giuliani had confronted an array of setbacks related to his work for Mr. Trump.He is facing a defamation lawsuit from Dominion, alleging that he carried out “a viral disinformation campaign” about the company made up of “demonstrably false” allegations, in part to enrich himself through legal fees and his podcast.In June 2021, his law license was suspended after a New York court ruled he had made “demonstrably false and misleading statements” while fighting the results of the 2020 election.He is also facing similar disciplinary charges by local bar officials in Washington. More