Could Trump’s DOJ pressure campaign amount to criminal conspiracy?

On Sunday, Senate Majority Whip Dick Durbin (D-Ill.) made the sobering public assessment that former President Donald Trump took actions “leading up to” a coup in his final days in office. 

This is epic, blockbuster news. It came one day after Durbin, who chairs the Senate Judiciary Committee, heard seven hours of closed congressional testimony from former Acting Attorney General Jeffrey Rosen about Trump’s campaign to pressure the Department of Justice (DOJ) to back his false claims of a fraudulent election. Rosen spoke for two hours with DOJ’s office of the inspector general last Friday, as well. Richard Donoghue, who was acting deputy attorney general under Rosen, also met with DOJ and congressional investigators at length. Last month, DOJ authorized their congressional testimony, noting in a letter that President Biden “has decided that it would not be appropriate to assert executive privilege with respect to communications with former President Trump and his advisors.”

As MSNBC legal analyst Glenn Kirshner has suggested, Trump’s actions vis-à-vis DOJ — taken in apparent concert with then-head of DOJ’s civil division, Jeffrey Clark — may amount to criminal conspiracy to violate state and federal election laws. Durbin told CNN that “ultimately, there will be a report.” But real accountability through the criminal justice system is increasingly essential if American democracy itself has a chance of survival past the 2022 midterms.

Rosen, who took over DOJ after former Attorney General Bill Barr’s abrupt departure on Dec. 23, 2020 (just 11 days prior to the fateful Jan. 6 insurrection at the Capitol), reportedly told investigators that Clark tried to help Trump undermine the 2020 election results for now-President Joe Biden, despite Barr’s public statement on Dec. 1, 2020, that “to date, we have not seen fraud that could have effected a different outcome in the election.” According to the New York Times, Rosen described multiple exchanges in which Clark pressed DOJ officials to make false statements about the election in battleground states. Clark also had numerous “unauthorized” conversations with Trump. 

Clark went so far as to draft a letter to multiple states for signature with Rosen and Donoghue, indicating that Biden’s victory should be voided as a result of voter fraud claims. The seven-page Dec. 28 draft letter to Georgia officials stated: “The Department will update you as we are able on investigatory progress, but at this time we have identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.” It urged the Georgia General Assembly to “convene in special session” to “show which candidate for President won the most legal votes,” and noted that “[t]ime is of the essence” given that the date for Congress to count Electoral College certificates was Jan. 6. 

In a Dec. 28 response to Clark’s email attaching the draft letter, Donoghue wrote that “there is no chance that I would sign this letter or anything remotely like this,” as “I know of nothing that would support” the claim of “significant concerns” about the election’s validity.” “More important,” Donoghue added, “I do not think the Department’s role should include making recommendations to a State legislature about how they should meet their Constitutional obligation to appoint Electors,” as “this would be a grave step for the Department to take and it could have tremendous Constitutional, political and social ramifications for the country.” 

Rosen likewise responded to Donoghue privately on Jan. 2: “Rich, thanks for responding to this earlier. I confirmed again today that I am not prepared to sign such a letter. Jeff.” (Clark, for his part, had suggested in his cover email that “there is no downside” to sending the letter “with as few as 23 days left in the President’s term.”)

It was previously reported that Trump called Rosen almost daily at the end of 2020 and early 2021 to discuss claims of voter fraud. Donoghue took notes of those calls. Trump also sent numerous emails to Rosen via his assistant regarding purported evidence of election fraud. In a Jan. 3 meeting at the White House with Rosen and Clark, Trump apparently threatened to replace Rosen with Clark as acting attorney general, but ultimately declined.

According to Durbin, Rosen did not identify Trump in his testimony as expressly asking him to overturn the election: “It was not that direct, but he was asking him to do certain things related to states’ election returns, which he refused to do. He was being asked by the White House, the leadership in the White House, to meet with certain people who had these wild, bizarre theories of why that election wasn’t valid. And he refused to do it.” It is also not clear to date what the extent of Trump’s conversations were with Clark.

In essence, federal and state conspiracy laws ban people from forming partnerships to commit potential crimes. Technically, a criminal conspiracy exists when two or more people agree to violate the law and then take some action in furtherance of that agreement. The illegal action itself need not ultimately occur for the conspiracy to happen — it’s the intentional agreement to join forces to commit criminal acts that the law forbids. Federal and state law also criminalizes various types of interference in elections. Under federal law, for example, it is a crime for any “person employed in any administrative person by the United States” to “use[] his official authority for the purpose of interfering with, or affecting, the . . . . election of any candidate for the office of President.” 

Trump is already under criminal investigation in Fulton County, Ga., for his “attempts to influence the administration of the 2020 Georgia general election” based on his infamous taped phone call to Georgia Secretary of State Brad Raffensperger pushing him to “find” enough votes to swing the results his way. The fact that Raffensperger, Rosen, Donoghue and other honorable public servants — including others at DOJ who were reportedly prepared to resign if Trump axed Rosen — did not bow to Trump’s pressure to condemn the 2020 election results does not relieve him of potential criminal liability. 

It’s tempting to succumb to Trump fatigue around this story as the Biden administration works to turn the page on urgent matters like COVID-19, climate change and infrastructure — while at the same time returning to foundational tenets of integrity and the rule of law in government. But Trump’s hold on the Republican party, and the ongoing lies about the 2020 election, continue to fester — and bode poorly for the future of our democratic Republic. It is imperative that Attorney General Merrick Garland, along with the government’s bipartisan counterparts in the United States Congress, finally bring down the gauntlet on Trumpian corruption.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.