Trump’s Plot To Steal the Election: Why This Weekend’s Testimony Is Game-changing

Photo: Jabin Botsford for the Washington Post / Getty Images

An extraordinary thing happened over the weekend. A former acting Attorney General named Jeffrey Rosen testified, before both Congressional investigators and the Inspector General of the Justice Department, about efforts by the former president and one of his deputies to subvert the election. This followed similar testimony on Friday from Justice Department official Richard Donoghue, who was present and taking notes during those efforts.

Rosen had become acting Attorney General under former president Trump after Bill Barr resigned in December. He spoke in detail, for more than two hours with the Inspector General’s office and nearly seven hours before Senate investigators, about a specific plot by the White House to use the Department of Justice to support false claims about election fraud. When the Department refused to go along, Rosen said Trump came very near to firing him and replacing him with a lackey, Jeffrey Clark, who was willing to do the former president’s bidding. Donoghue’s notes and testimony corroborate this account.

There are at least three important questions to ask arising from this testimony.

First, why did it take so long for it to come out? After all, this would have been very salient to the impeachment trial because it would have been direct evidence of a concerted coup attempt by the former president. Yet many legal experts agree that Trump would have asserted executive privilege over the materials and the testimony, making the fight about what was permitted into evidence and what was not, and not about what the former president actually did. That would have dragged the impeachment trial out for months.

It wasn’t until the Department of Justice recently cleared the way for Departmental notes, emails and draft letters to be produced and for officials to testify that Rosen stepped forward. That said, Rosen was quite hasty in providing his testimony this weekend, getting it to investigators before Trump and his attorneys could change their minds and decide to challenge his appearance— something his attorneys really ought to have done as soon as the Department opened the door to it. In some ways, then, it is remarkable we have this damning evidence and testimony at all without a word of protest so far from the former president.

Second, what will this testimony even change? After all, it has long been known that the former president and his cronies were pressuring officials in states like Georgia and Arizona to find votes or stop the counting so they could organize Congressional resistance to certification of the election. But there are reasons this is a much bigger deal. For starters, the documents and the testimony go to the heart of what willing co-conspirators (in this case Trump and Clark) were actually saying to and plotting with one another behind closed doors, rather than the more typical, bluster-filled threats Trump and his people were making to election officials in the battleground states. Rosen testified as to five separate encounters he had with Clark, including one where Clark admitted to meeting in private with the former president (something that was strictly against Department rules) along with multiple conversations Clark had with Trump about casting doubt on the election results in places like Georgia.

Further—and this is a subtle yet critical point—Trump has always been able to claim his infamous recorded calls to state officials were conducted in pursuit of election fraud in which his team truly believed. By contrast, his request to the Justice Department to “just say the election was corrupt” and “leave the rest to me” is strong evidence of Trump’s actual guilty mind. When you ask your Department to lie for you to get what you want, and are prepared to fire your Department’s chief until you find someone willing to go along, it’s hard to argue you didn’t know you were intentionally doing something illegal rather than just grasping at straws based on conspiracies you read on the Internet. It’s now very hard to objectively see this as anything but a conspiracy—with dangerous, calculated method to it.

And importantly, what Rosen and Donoghue described to investigators comprised not just a plan that Trump and Clark apparently cooked up but also some specific steps they took to implement it. This matters because in order to establish the crime of conspiracy, there has to be more than just an intent or a plan; there must be what’s called an “overt act” in furtherance of that plan. The letter Clark drafted to send to the Georgia legislature is a good example of an overt act that transforms a nefarious plan into a criminal conspiracy.

Third, unlike the more generalized question around Trump’s role in the January 6 insurrection, in this conspiracy there appear to be clear laws that were broken based on the evidence and testimony just provided. While many would love to see the former president charged with incitement to insurrection, which was the subject of his second impeachment, Trump has always had a rather squishy defense of “free speech” and sufficient distance from the rioters to claim he was not to blame for their actions. But as I wrote last week, here we have an actual illegal conspiracy within his administration to use the power and credibility of the Justice Department to gain political advantage and stop the electoral certification. Such a charge has no free speech defense. And Trump’s fingerprints in this case are all over the plot itself, giving him no plausible “safe distance from the actions of others” causality defense either. 

This is not to say prosecutors are likely to bring immediate charges. At some point, there will be a decision by the Inspector General whether to bring criminal proceedings against Jeffrey Clark, who currently claims his improper one-on-one meetings with Trump, his plan to plant a false election fraud flag with the Georgia legislature, and the effort to replace Rosen with him as head of Justice was somehow by the book and lawful. If the Inspector General’s office disagrees, as it should, Clark could face charges, and prosecutors could seek Clark’s cooperation against Trump. Other witnesses, such as former White House Chief of Staff Mark Meadows, could also be caught up in a broader criminal inquiry over the conspiracy.

The public will likely feel very frustrated, however, as any efforts that might ultimately culminate in a charge against the former president and his top advisers in all likelihood will remain secreted, with officials at the Justice Department unwilling and unable to comment on an ongoing investigation. Even the senators who heard the near seven hours of testimony are keeping their cards close, with Sen. Durbin, who is head of the Senate Judiciary Committee stating that the testimony was “frightening” and that ultimately there would be a report, and Sen. Blumenthal summarizing Rosen’s account as “dramatic evidence of how intent Trump was in overthrowing the election.” While that might sound unspecific, the final report (to be released by a bipartisan committee) could well help form the basis for actual charges and that “dramatic evidence” may prove key to proving Trump’s guilty mind.

Beyond the risk of prosecution for the former president, the revelations also present serious obstacles to any attempt by Trump to run again for president in 2024. The American public—at least those who aren’t already part of his hard core base—now has irrefutable evidence of the coup Trump actually attempted while in office, and that could cost him in a general election among moderate voters. This also means others in the GOP could conclude that Trump’s hold on the party will continue to weaken, giving them more independence to buck his commands and ignore his threats.