The Department of Justice has gotten a lot of grief lately for the actions it took under the Trump administration. But a cache of emails released Tuesday morning show that of all the inanity going around, DOJ officials did at least one thing right: They refused to entertain then-President Donald Trump’s attempts to overturn the 2020 election.
The over 200 pages of emails the House Oversight Committee has gathered illustrate that Trump and his final chief of staff, Mark Meadows, spent the weeks before Congress certified Joe Biden as the next president badgering and haranguing Jeffrey Rosen, then the acting attorney general, and his acting deputy, Richard Donoghue, to back Trump’s conspiracy-laden machinations. Neither of them was willing to do so — something we have to give them credit for, given who was doing the asking.
Meadows’ messages drew the most scorn from the pair. “Can you believe this? I am not going to respond to the message below,” Rosen wrote Jan. 1. “At least it’s better than the last one, but that doesn’t say much,” Donoghue responded. That day, Donoghue called a YouTube video that Meadows had forwarded “pure insanity.”
Even more concerning is a draft version of a brief that Trump wanted the Department of Justice to file with the Supreme Court. Much of it was almost identical to Texas Attorney General Ken Paxton’s laughable brief to the Supreme Court.
In his filing, Paxton alleged that his states’ voters were injured because four states that Trump lost had “illegally” changed how they run their elections during the pandemic. While inherently illogical, the petition gained favor among Republicans, with 17 state attorneys general and over 100 Republican members of Congress signing on in support.
As you may recall, Paxton’s efforts did not go very well. He filed the brief on Dec. 7; four days later, the court dismissed the case for lack of standing. But Trump thought it was an idea worth trying again — this time with the weight of the federal government behind it.
But The New York Times reported Paxton wasn’t the author of the suit. It was drafted at least in part by pro-Trump lawyer Lawrence Joseph — who, according to the emails released Tuesday, was pitching a federal version by the end of the month.
On Dec. 29, Kurt Olsen, another lawyer Paxton had brought on as special counsel for the election lawsuit, wrote to Rosen’s chief of staff to set up a meeting with the acting attorney general: “The President of the United States has seen this complaint, and he directed me last night to brief AG Rosen in person today to discuss bringing this action. I have been instructed to report back to the President this afternoon after this meeting.”
It appears the two did talk based on a later email from Olsen — but thankfully was Rosen not impressed. Nor should he have been, given how Joseph’s draft took everything bad about the Texas filing and made it worse. The draft used the same debunked statistics, anecdotal affidavits from poll watchers and sketchy right-wing news reports as the suit Paxton filed to paint a picture of massive fraud in six states that would overturn the election: Pennsylvania, Georgia, Michigan, Wisconsin, Arizona and Nevada. And like in Texas’ filing, it asked the Supreme Court to force those states to hold “a special election” to appoint presidential electors.
The legal arguments are even flimsier than Texas’ suit, alleging that the states in question had violated the Constitution’s electors clause, which states that state legislatures would decide how members of the Electoral College would be chosen. Joseph’s argument was not novel; it had already been dismissed in the many, many lawsuits that the Trump campaign and other supporters had filed.
While in June it’s easy to sit back and laugh, this was deadly serious back then. Trump wanted this nothingburger of a lawsuit to be filed with the Supreme Court.
(And on a much pettier note, the writing in the draft is garbage. I have not been through law school, but I am pretty sure that if I’d handed a professor this weak of an argument that included a maudlin reference to Madison v. Marbury in the intro — “Since Marbury v. Madison, this Court has, on significant occasions, had to step into the breach in a time of tumult, declare what the law is, and right the ship. This is just such an occasion.” — I would be subject to well-deserved ridicule.)
While in June it’s easy to sit back and laugh, this was deadly serious back then. Trump wanted this nothingburger of a lawsuit to be filed with the Supreme Court. Though it’s unlikely that the justices would have heard the case, it would have been much harder to argue that the Department of Justice lacked standing to bring the suit.
At the time, there was no guarantee that Rosen would remain even in charge. The New York Times previously reported that Trump nearly fired Rosen in favor of an official who believed the election conspiracies the former president was circulating. It’s entirely possible that he would have proceeded to file the case with the Supreme Court once appointed.
Rosen, in a tense Oval Office meeting on Jan. 3, reportedly argued that the resulting chaos from his firing wouldn’t change the election results and would instead draw in new congressional scrutiny. The emails from the House Oversight Committee reveal how Justice Department officials, who had reportedly pledged to resign en masse if Rosen were let go, were waiting with bated breath for the result of that meeting.
“I have only limited visibility into this, but it sounds like Rosen and the cause of justice won,” former Associate Deputy Attorney General Patrick Hovakimian wrote in an email to top DOJ officials a little after 9 p.m. that evening.“Still at WH. But that is correct,” Steven Engel, who led the Office of Legal Counsel, responded.
It was a close call — and all the more harrowing that we keep learning more details about just how close it was.