There is no doubt that the investigation into the ‘fake electors’ scheme was entirely appropriate.
This is the second of three related posts. (Here is post 1.)
“Arctic Frost” is the code name the FBI gave its investigation of President Trump’s soft-coup attempt to reverse his 2020 election defeat by peddling false claims of material election fraud (i.e., a quantum of fraud sufficient to change the outcome).
In the indecorous final weeks of his first term, between Election Day and the Capitol riot, the president alleged that election fraud had somehow been perpetrated only in a handful of states that Biden happened to win and that happened to have legislatures controlled by Republicans. Against all reason, Trump hoped he could pressure these legislatures into undoing their states’ popular vote — as if Democrats were going to sit passively by and let that happen, and as if state legislators would en masse risk their own careers by nullifying millions of votes of their own citizens in the absence of compelling fraud proof.
The current theater involves an FBI memorandum disclosed by Senator Chuck Grassley (R., Iowa), chairman of the Judiciary Committee and a Trump ally on Capitol Hill. According to the president’s Truth Social post on Friday night, the document “conclusively” shows that
Christopher Wray, Deranged Jack Smith, Merrick Garland, Lisa Monaco, and other crooked lowlifes from the failed Biden administration signed off on Operation Arctic Frost. They spied on Senators and Congressmen/women, and even taped their calls. They cheated and rigged the 2020 Presidential Election.
I’ll put aside the president’s unhinged concluding instruction (implicitly) to his obeisant Justice Department that “These Radical Left Lunatics should be prosecuted for their illegal and unethical behavior.” His underlying claims are incoherent.
The memo was signed by the FBI’s then-Director Christopher Wray, on April 4, 2022. That is, the document, and the consequent investigation, was generated some 17 months after the 2020 election and 14 months after the Capitol riot.
Wray was in office as the Trump-appointed FBI director during the 2020 election, but Biden’s Attorney General Merrick Garland, to whom the April 2022 memo was directed, was not in office. Neither was Lisa Monaco, Biden’s deputy AG. And at the time Wray wrote the memo, it would be another seven months until Garland appointed Jack Smith as special counsel.
That is to say, the Biden Justice Department had nothing whatsoever to do with the 2020 election. It didn’t exist then. Garland was a judge, Monaco was in private practice, and Jack Smith was at The Hague investigating Kosovo war crimes. They can’t possibly have “cheated and rigged the 2020 Presidential Election.” And the president knows this — everybody should know this.
Now, let’s get to the substance of Wray’s memo.
In it, he requested permission to open a so-called SIM investigation — which refers to a “sensitive investigative matter.” The evidence predicating the request involved the alleged submission to the national archivist, following the 2020 election, of fraudulent certificates indicating that Trump slates of electors in Arizona, Georgia, Michigan, Nevada, and Wisconsin should be deemed the electors of those states. The idea was that Congress should deem these alternative slates eligible to cast those states’ electoral votes for Trump, rather than recognize the Biden slates — which had actually been certified under state laws — as the electors qualified to cast the states’ votes for Biden.
As is required in such an FBI predication document, Wray asserted in the April 4, 2022, memo that evidence already gathered (in a preliminary inquiry) presented “an articulable factual basis indicating the existence of a federal crime.” This was true: it is a crime to submit fraudulent documents to the government, including for purposes of corruptly influencing a congressional proceeding. But to be clear, merely opening an investigation does not necessarily mean any crime was committed, much less that such crimes could be proved beyond a reasonable doubt. The memo was just a basis for further inquiry — what we commonly call a full investigation.
I said previously that we had to have known that a document along the lines of Wray’s memo existed. Why? Well, because of the Trump Justice Department — not the current one, but the one in Trump’s first administration.
The Russiagate probe had been opened on flimsy evidence. A DOJ inspector general report determined that it was properly predicated, but elaborated that this was because the FBI’s standard for opening such an investigation — even one that would thrust the bureau into the fraught politics of a presidential election — was so undemanding as to be illusory, practically speaking.
To address this problem, then-Attorney General Bill Barr issued a memo on February 5, 2020, regarding “Additional Requirements for the Opening of Certain Sensitive Investigations.” It was a directive mandating higher thresholds of internal FBI and DOJ oversight before such consequential investigations could proceed. The objective was to avoid a recurrence of the “Russia collusion” probe, which had been opened despite scant evidence that Donald Trump was in a conspiratorial relationship with the Kremlin (an investigation that was allowed to persist even as evidence disproving its presumption mounted).
Evidence of possible crimes related to the 2020 election, and thus a potential investigation into those possible crimes, obviously triggered these Barr guidelines. After all, by April 2022, Trump was already emerging as a favorite for the GOP’s 2024 presidential nomination. Wray therefore wrote the memo proposing the investigation of the electors scheme. The next day (April 5, 2022), Garland approved it, on the recommendation of then–Deputy AG Lisa Monaco, who also signed the document.
Jack Smith had nothing to do with Wray’s memo (just as he had nothing to do with the 2020 election). In April 2022, the Biden Justice Department was conducting the J6 investigation (and the House J6 Committee was also investigating). Smith was not appointed until November 18, 2022.
Seven months after that, on June 8, 2023, Smith obtained the first J6 indictment charging Trump. The indictment alleges, among other things:
The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, andWisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws. This included causing the fraudulent electors to meet on the day appointed by federal law on which legitimate electors were to gather and cast their votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they were legitimate electors. Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the Defendant succeeded in outcome-determinative lawsuits within their state, which the Defendant never did. The Defendant and co-conspirators then causedthese fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6.
The indictment went on to outline the so-called fake electors scheme in great detail (see pp. 21–27). The scheme was not charged as a stand-alone count; it was incorporated by reference in the charges of defrauding the government, obstructing a congressional proceeding (the January 6 joint session to count electoral votes), and conspiracy against voting rights.
As I will address further in the next post, the J6 case never got to trial because, by the time the Supreme Court issued its immunity ruling (Trump v. United States) on July 1, 2024, there was insufficient time to try the case prior to the 2024 election. Then, after Trump won the 2024 election, the case was dismissed. But the Court did not invalidate the charges on the merits — to the contrary, the dismissal was without prejudice to the charges’ being renewed after Trump leaves office. (I presume that, if a Democrat were to win the 2028 presidential election, Trump would pardon himself rather than risk a revival of the indictments against him.)
If the J6 case had been prosecuted, there is a good chance that the “fake electors” allegations would have survived even if other parts of Smith’s case had been thrown out on immunity grounds. On that score, it’s worth highlighting a portion of Justice Amy Coney Barrett’s concurring opinion in the Trump immunity ruling. Despite voting in favor of immunity, Justice Barrett wrote:
Sorting private from official conduct [for purposes of determining what conduct is immune from prosecution] sometimes will be difficult – but not always. Take the President’s alleged attempt to organize alternative slates of electors. . . . In my view, that conduct is private and therefore not entitled to protection. See post, at 27–28 (SOTOMAYOR, J., dissenting). The Constitution vests power to appoint Presidential electors in the States. Art. II, §1, cl. 2; see also Chiafalo v. Washington, 591 U. S. 578, 588–589 (2020). And while Congress has a limited role in that process, see Art. II, §1, cls. 3–4, the President has none. In short, a President has no legal authority – and thus no official capacity – to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct. [Emphasis added; other internal citation omitted.]
The notion that there was something scandalous about leadership at the DOJ and FBI approving an investigation into conduct that resulted in viable criminal charges is ridiculous.
As it happens, I don’t believe that the J6 indictment was a good idea — on balance, I believe it was an ill-advised exercise of prosecutorial discretion because, while the president’s behavior was appalling, the charges are a stretch, too much official executive action is implicated, prosecution is not a substitute for impeachment, the Justice Department should generally avoid intrusion into electoral politics, and the voters had the opportunity in the 2024 election to assess Trump’s 2020 conduct. Nevertheless, regardless of whether I am right or wrong about that, there is no doubt that the investigation of the 2020 misconduct — and, in particular, of the “fake electors” scheme at issue — was entirely appropriate.
It was alleged that Trump tried to undermine the electoral count by urging members of Congress that the mere existence of alternative electors was a legitimate basis to object to the counting of state-certified electoral votes for Biden. (The alternative, Trump elector slates were legitimate only as a contingency — i.e., if Trump had gotten a court or legislature to invalidate a state’s popular election, which he failed to do.)
That remains a viable allegation. To be sure, prosecutors never established either that Trump did this or that, if he did, it amounted to a fraud crime. Yet, no court has ever concluded that the allegation was baseless or that the charges were improperly brought.
Now, of course, it’s entirely possible that the Biden DOJ and FBI abused their authority by stretching the approved investigation into unapproved areas — or, more precisely, by using the investigation as a pretext to probe “nearly 100 Republican-linked groups or entities” and to “spy” on members of Congress, as the New York Post describes it. I don’t know if that happened, and if there’s evidence that it did, it should be investigated.
I will say, though, that I am skeptical of the claim that members of Congress were “spied” on. As I wrote two weeks ago, the happenstance that the FBI perused the phone records of some Republican senators (and one GOP congressman) for a very limited number of days (January 4 through 7, 2021) around the Capitol riot was not a new revelation or proof of spying. More likely, it indicates that investigators were trying to unearth evidence corroborating the allegation that Trump was pressuring Congress — the main allegation in the J6 indictment.