Donald Trump asked the country’s top legal official in late December about a conspiratorial draft complaint aimed at overturning the 2020 election results, according to a previously unreported account of Trump’s phone call with former acting Attorney General Jeffrey Rosen.
Rosen persuaded Trump the lawsuit wasn’t a good idea, he told Senate investigators last weekend, two sources familiar with his testimony said. The previously unreported details underscore how hard DOJ lawyers worked to shoot down the increasingly harebrained legal strategies that reached the president’s desk.
Trump brought up the 54-page legal document in a phone call with Rosen in late December, weeks after losing the 2020 election to Joe Biden. Why, the then-president wanted to know, wasn’t the Justice Department doing more about the election? The complaint was being circulated by an outside group helmed by Kurt Olsen, an attorney who had represented Texas in its own failed suit challenging Trump’s loss earlier that month, and some of the president’s allies found its logic compelling.
The complaint, modeled on the Texas suit, would have urged the Supreme Court to declare that the Electoral College votes from six key swing states lost by Trump “cannot be counted” because of baseless allegations of fraud, and for the justices to order a “special election” for president be held in those states.
Rosen didn’t find Olsen’s arguments persuasive. He had already been in touch with the Texas lawyer, emails previously released by House investigators show, and challenged him to come up with Supreme Court precedents backing up his case.
So when Trump brought up the complaint on their call, the acting attorney general was ready. The complaint had circulated widely enough at the senior levels of government that the department’s Office of Legal Counsel had reviewed it and laid out legal reasons why it was a non-starter. Rosen presented some of these arguments to the president, including arguments related to standing and original jurisdiction, and he told congressional investigators that he persuaded the outgoing president to side with him.
The Justice Department did not sign on to the complaint. And Rosen repeatedly told the president what he didn’t want to hear. But despite that, Trump didn’t fire Rosen.
Direct conversations between presidents and top law enforcement officials on pressing legal matters are rare, let alone on a subject as sensitive as potentially throwing out the votes of millions of Americans. But Trump, from his attempts to steer former FBI chief James Comey during the Russia probe to his public sparring with Jeff Sessions and William Barr, had long ignored such norms.
A DOJ official’s notes released by the House Oversight Committee showed Trump urged them to call the election “corrupt.” They did not oblige.
The Senate Judiciary Committee, which had sought a voluntary interview with Rosen, is set to continue its probe this week into the Trump-era DOJ. Chair Dick Durbin told reporters this week the panel will soon interview Byung Jin Pak, the former U.S. attorney for the Northern District of Georgia who resigned in early January amid controversy over Trump’s efforts to overturn the state’s presidential balloting. Pak will sit for an interview with the committee on Wednesday morning, according to a source familiar with his plans.
Rosen testified to the Senate panel for more than seven hours last Saturday, giving an account Durbin called “riveting.” The Illinois Democrat said he also wants to hear from former assistant attorney general Jeffrey Clark as the panel continues its investigation.
Trump had weighed ousting Rosen in favor of Clark, whom his allies saw as more receptive to his false election claims. It is unclear if Clark will testify before the Judiciary Committee, and its even split between Republicans and Democrats means that it might not be able to issue a subpoena in the event of a deadlock.
House Oversight Committee Chair Carolyn Maloney’s probe was abruptly halted at the beginning of August and handed off its interviews to the select committee investigating the Jan. 6 insurrection.
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