Heather Cox Richardson

Then-president Trump’s demand of Acting Attorney General Jeffrey Rosen on December 27, 2020 was simple: “Just say the election was corrupt and leave the rest to me and the Republican congressmen.” But the election wasn’t corrupt, and Rosen wouldn’t do as Trump asked.

Today’s fifth public hearing of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol was a barnburner. It explored Trump’s attempt to pervert the Department of Justice (DOJ), whose mission is “to enforce the law and defend the interests of the United States…and to ensure fair and impartial administration of justice for all Americans,” to the service of Trump alone.

By now, the committee has firmly established that there was no evidence for Trump’s insistence that the election was stolen from him. Instead, recounts, court cases, and investigations all showed that Biden was the true victor by more than 7 million votes in the popular count, and by 306 to 232 votes in the Electoral College, the same count by which Trump won in 2016 and which he called a “massive landslide.” There was no evidence for his claims, and Trump knew that. His own appointees, including his attorney general William Barr, had told him repeatedly that the incidents he cited as proof were not, in fact, real. Barr called his arguments “bullsh*t.” But Trump continued to push them, quite possibly simply to lay the groundwork for keeping control of the government by force.

Led by Representative Adam Kinzinger (R-IL), the committee members today questioned officials who served in the Trump administration at the end of his term: Jeffrey Rosen, who replaced Barr as acting attorney general in December 2020; Richard Donoghue, acting deputy attorney general and also a 20-year military veteran; and Steven Engel, assistant attorney general for the Office of Legal Counsel during Trump’s administration. Engel helpfully explained that the Office of Legal Counsel is essentially the lawyer for the attorney general and the president.

Rosen told the committee that Trump repeatedly pressured him and Donoghue to say that the 2020 election had been marred by fraud. But while they investigated his accusations, they found no evidence to support them. So Trump began to pressure them through public statements, telling television viewers as early as November 29, 2020, that the DOJ was “missing in action,” its leaders refusing to do their job. Members of Congress, who knew the allegations were false, echoed him. They included Louie Gohmert (R-TX), Andy Biggs (R-AZ), Paul Gosar (R-AZ), Matt Gaetz (R-FL), Jim Jordan (R-OH), and Mo Brooks (R-AL).

On December 21, a number of members of Congress met with Trump. Marjorie Taylor Greene (R-GA) was the only newly elected member; she would not be sworn in until January 3. The rest appeared to be members of the far-right so-called Freedom Caucus, formed in 2015 by Mark Meadows, then a congress member from North Carolina, and Mick Mulvaney, then a representative from South Carolina. (Both Meadows and Mulvaney would serve as Trump’s chief of staff during his presidency.) Jordan was the caucus’s first chair; Meadows was its second; Biggs was its third. Scott Perry (R-PA), who was there, is close to Jordan and Meadows.

Meadows, then White House chief of staff, tweeted that they had met to fight back against “voter fraud.” The next day, Perry went back to the White House with an environmental lawyer from the DOJ, Jeffrey Clark.

On December 24, Trump mentioned Clark to Rosen in passing. On December 26, Rosen asked Clark why Trump knew him. Clark admitted that he had met with the president when Perry took him—unexpectedly—to the White House. Clark was defensive, in part, perhaps, because there are strict guidelines to keep the DOJ and the White House separate to make sure there is neither impropriety nor the implication of impropriety when the DOJ investigates crimes. Clark promised Rosen it would not happen again.

And yet, Perry continued to text Meadows to urge him to put Clark at the head of the DOJ in place of Rosen. Trump told Perry to call Donoghue to push Clark’s elevation, saying Clark would get into the job and, unlike Rosen, “get in there and do some stuff.”

As Trump continued to press, he called Rosen and Donoghue at their homes late on December 27. Donoghue took notes. When Donoghue said the “DOJ can’t and won’t snap its fingers + change the outcome of the election,” Trump replied it didn’t have to. “Just say it was corrupt and leave the rest to me and the Republican congressmen.”

On December 28, Clark emailed to Rosen and Donoghue a letter alleging that the DOJ had “significant concerns that may have impacted the outcome of the election in multiple States.” It urged state legislatures to “consider objections” to the certified ballots and “decide between any competing slates of elector certificates.” The allegations in this letter were straight up false, but Trump wanted the Department of Justice to give them credence. Clearly, there was no time to actually conduct another investigation into the election before January 6; the letter was designed simply to justify counting out Biden’s ballots or, failing that, to create popular fury that might delay the January 6 count.

This attempt to use an investigation to corrupt politics echoed Trump’s attempt to get Ukraine president Volodymyr Zelensky to announce an investigation into the actions of Hunter Biden in 2019 to seed the idea in the U.S. press that Biden was corrupt. It also recalled the 2016 drumbeat of an investigation into Secretary of State and Democratic nominee Hillary Clinton’s use of a private email server. Indeed, the Republicans have deliberately used “investigations” to convince the public of things that are not true since 1994 investigations of “voter fraud” that elected Democrats, and even back to Senator Joe McCarthy’s “investigations” of communists in the government in the 1950s. In each case, the goal was not actually to find the truth; it was to plant in the public mind the idea that there were crimes being committed… for why would anyone investigate if something wasn’t amiss?

Clark wrote the letter on official DOJ letterhead and left places for Rosen and Donoghue to sign it. Both of them rejected it out of hand, in strong language. Clark continued to push, and then to call witnesses and start his own investigation. Clark was working with Ken Klukowski, who arrived at the DOJ on December 15 and who was working with John Eastman, the lawyer pushing the idea of Pence counting out the Biden electors in states Trump wanted to win, suggesting that Trump had installed a conspirator directly in the DOJ to work with Eastman on the project.

On December 31, Trump asked both the DOJ and the Department of Homeland Security to seize voting machines that he insisted had shifted votes; Rosen said they had investigated and the machines were fine. At the end of that meeting, Trump warned that he thought he should just get rid of Rosen and Donoghue and put Clark in charge because then things would get done.

Rosen continued to debunk the election claims Trump and his allies were sending and tried to stop Clark from egging Trump on; Clark doubled down and demanded they sign the letter. On January 3, Clark told Rosen that Trump had offered him the job of attorney general, replacing Rosen, and that he would decline the job if Rosen signed the letter.

Rosen asked for a meeting with Trump, Engel, and White House counsel Pat Cipollone. At that point, only four people knew what Clark and Trump were up to, but Rosen now included the assistant attorneys general, all of whom said they would resign if Trump replaced Rosen with Clark. Both Rosen and Donoghue vowed to quit, too. But White House call logs—which the Trump administration tried to keep private—show that Trump and Clark had been in constant contact, violating official policy, and by 4:19 that afternoon, Trump was already referring to Clark as the attorney general.

“What have I got to lose?” Trump demanded. In a meeting of more than two and a half hours, Rosen, Donaghue, and all the other lawyers present except Clark warned Trump that there would be mass resignations from the DOJ if he went through with his plan, and that his decimation of the DOJ would overshadow all of his claims about the election. Cipollone called the idea a “murder-suicide pact.” Trump backed down then, but at the Ellipse three days later, he repeated all his debunked claims about the election.

Trump called neither Rosen nor Donoghue on January 6, although they spoke to all other top lawmakers, including Vice President Mike Pence.

After the attack on the Capitol, the congress members who had participated in the December 21 planning meeting asked for presidential pardons. Those members included Biggs, Greene, Brooks, Gaetz, Gohmert, and Perry. (Gaetz is under investigation for sex trafficking a minor; presumably a blanket pardon would have covered that issue, too.) Biggs, Gaetz, and Gohmert sit on the House Judiciary Committee, which oversees the DOJ.

Jordan asked more generally about pardons for members of Congress who had worked with Trump to overturn the election. Trump awarded Jordan the Medal of Freedom, the nation’s highest civilian honor, on January 11, 2021. House Minority Leader Kevin McCarthy (R-CA) initially named Jordan, the top Republican on the Judiciary Committee, to serve on the January 6th committee and withdrew the other Republicans when House Speaker Nancy Pelosi (D-CA) rejected Jordan and Jim Banks (R-IN).

And Brooks wrote to Trump’s executive assistant Molly Michael, saying “President Trump asked me to send you this letter…. I recommend that President give general (all purpose) pardons to…[e]very Congressman and Senator who voted to reject the electoral college vote submissions of Arizona and Pennsylvania.”

When interviewed about the letter, Clark repeatedly took the Fifth Amendment against self-incrimination and invoked executive privilege. Yesterday, federal investigators executed a search warrant on Clark’s home in suburban Virginia. They seized his electronic devices.

At the end of today’s hearing, Representative Liz Cheney (R-WY), the January 6 committee’s vice chair, directly addressed Trump supporters: “It can be difficult to accept that President Trump abused your trust, that he deceived you. Many will invent excuses to ignore that fact. But that is a fact. I wish it weren’t true, but it is.”