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Intensifying inquiry into alternate electors focuses on Trump lawyers

Former president Donald TrumpMADDIE MCGARVEY/NYT

The Justice Department has stepped up its criminal investigation into the creation of alternate slates of pro-Trump electors seeking to overturn President Biden’s victory in the 2020 election, with a particular focus on a team of lawyers that worked on behalf of then-president Donald 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 Trump’s personal lawyer Rudy 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 including Jenna Ellis, who worked with 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 Trump once their claims of widespread election fraud had been accepted. Those claims were baseless, and all seven states were awarded to 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 subpoenas in the elector investigation are the first public indications that the roles of Giuliani and other lawyers working on Trump’s behalf are of interest to federal prosecutors.

After Election Day, Giuliani and 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.


Eastman was an architect of a related plan to pressure former vice president Mike Pence to use the alternate electors in a bid to block or delay congressional certification of Biden’s victory.

Examining the lawyers who worked with 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 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 Trump and his supporters to deny his election loss and keep him in the White House.

It began even before some states had finished counting ballots, as officials in places such as Arizona, Georgia, and Wisconsin came under pressure to create slates of electors announcing that Trump had won.

The scheme reached a crescendo in the days leading up to Jan. 6, when Trump and his allies mounted a relentless campaign to persuade Pence to accept the alternate electors and use them at a joint session of Congress to deny — or at least delay — Biden’s victory.

At various times, the plan involved state lawmakers and White House aides, though prosecutors seem to believe that a group of 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 Trump’s allies created to keep him in office, according to one of the people familiar with the matter.


Giuliani’s lawyer said he was unaware of any investigation into his client. Eastman’s lawyer and Ellis did not return e-mails seeking comment. Chesebro declined to answer questions about the inquiry.

The strategy of pushing the investigation forward by examining the lawyers’ roles could 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.

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 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.


According to an account provided to the committee, on the day of the insurrection, the White House chief of staff, Mark Meadows, left the dining room off the Oval Office, and told colleagues that Trump was complaining the vice president was being whisked to safety as some rioters were chanting for Pence to be hanged.

Meadows, according to the account, then told the colleagues that Trump had said something to the effect of maybe Pence should be hanged.

It is not clear what tone Trump was said to have used. But the reported remark was further evidence of how extreme the rupture between the president and his vice president had become, and of how Trump not only failed to take action to call off the rioters but also appeared to identify with their sentiments about Pence — whom he had unsuccessfully pressured to block certification of the Electoral College results that day — as a reflection of his own frustration at being unable to reverse his loss.

The account of Trump’s comment was initially provided to the House committee by at least one witness, according to two people briefed on their work, as the panel develops a timeline of what the president was doing during the riot.

Another witness, Cassidy Hutchinson, a former aide to Meadows who was present in his office when he recounted Trump’s remarks, was asked by the committee about the account and confirmed it, according to the people familiar with the panel’s work.