By Zachary Cohen | CNN
Former high nationwide safety officers have testified to a federal grand jury that they repeatedly instructed former President Donald Trump and his allies that the federal government didn’t have the authority to seize voting machines after the 2020 election, CNN has realized.
Chad Wolf, the previous appearing Homeland Safety secretary, and his former deputy Ken Cuccinelli have been requested about discussions contained in the administration round DHS seizing voting machines after they appeared earlier than the grand jury earlier this yr, in accordance with three folks aware of the proceedings. Cuccinelli testified that he “made clear always” that DHS didn't have the authority to take such a step, one of many sources mentioned.
Trump’s former nationwide safety adviser Robert O’Brien, in a closed-door interview with federal prosecutors earlier this yr, additionally recounted conversations about seizing voting machines after the 2020 election, together with throughout a heated Oval Workplace assembly that Trump participated in, in accordance with a supply aware of the matter.
Particulars in regards to the secret grand jury testimony and O’Brien’s interview, neither of which have been beforehand reported, illustrate how particular counsel Jack Smith and his prosecutors are trying on the numerous methods Trump tried to overturn his electoral loss regardless of a few of his high officers advising him towards the concepts.
Now a few of those self same officers, together with Wolf, Cuccinelli and O’Brien, in addition to others who've to date refused to testify, could must return to the grand jury in Washington, DC, to offer further testimony after a sequence of pivotal court docket rulings that have been revealed in latest weeks rejected Trump’s claims of government privilege.
Cuccinelli was noticed going again into the grand jury on Tuesday, April 4.
With out that privilege protect, former officers should reply questions on their interactions and conversations with the previous president, together with what he was instructed in regards to the lack of proof for election fraud and the authorized cures he may pursue.
That line of questioning goes to the guts of Smith’s problem in any prison case he may deliver — to show that Trump and his allies pursued their efforts regardless of understanding their fraud claims have been false or their gambits weren’t lawful. To deliver any potential prison prices, prosecutors must overcome Trump’s public declare that he believed then and now that fraud actually did value him the election.
“There’s a number of methods you possibly can present that. However definitely one among them is that if they have been instructed by individuals who knew what they have been speaking about, that that there was no foundation to take the actions,” mentioned Adav Noti, an election legislation lawyer who beforehand served within the US Legal professional’s Workplace in Washington, DC, and on the Federal Election Fee’s common counsel’s workplace.
“I might not need to be a protection lawyer attempting to argue, ‘Nicely, sure, my shopper was instructed that, however he by no means actually believed it,'” Noti mentioned.
Drafting government orders
Contained in the Trump White Home after the 2020 election, the push to grab voting machines finally led to government orders being drafted in mid-December of that yr, directing the army and DHS to hold out the duty regardless of Wolf and Cuccinelli telling Trump and his allies their company didn't have the authority to take action.
These orders, which cited debunked claims about voting system irregularities in Michigan and Georgia, have been offered to Trump by his former nationwide safety adviser Michael Flynn and then-lawyer Sidney Powell throughout a now-infamous Oval Workplace assembly on December 18.
Smith’s group has requested witnesses about that assembly in entrance of the grand jury and through closed-door interviews, a number of sources instructed CNN. Amongst them was O’Brien, who instructed the January 6 Home choose committee that he was patched into the December 18 assembly by cellphone after it had already devolved right into a screaming match between Flynn, Powell and White Home attorneys, in accordance with a transcript of O’Brien’s deposition that was launched by the panel.
O’Brien instructed the committee that in some unspecified time in the future somebody requested him if there was proof of election fraud or international interference within the voting machines. “And I mentioned, ‘No, we’ve appeared into that and there’s no proof of it,” O’Brien mentioned he responded. “I used to be instructed we didn’t have any proof of any voter machine fraud within the 2020 election.”
When requested about that assembly by federal prosecutors working for Smith, O’Brien reiterated that he made clear there was no proof of international interference affecting voting machines, in accordance with the supply aware of the matter.
O’Brien met with prosecutors earlier this yr after receiving a subpoena from Smith’s group and is among the many Trump officers who could possibly be referred to as again to debate conversations with Trump beneath the decide’s latest determination on government privilege.
Former Director of Nationwide Intelligence John Ratcliffe, who personally instructed allies of the previous president that there was no proof of international election interference or widespread fraud that will justify taking excessive steps like seizing voting machines, should additionally testify, the decide determined.
A spokesperson for Ratcliffe didn't reply to CNN’s request for remark. Wolf declined to remark.
Cuccinelli acknowledged to the January 6 committee final yr that, after the election, he was requested a number of instances by Trump’s then-attorney Rudy Giuliani, and on at the least one event by Trump himself, if DHS had authority to grab voting machines. Wolf instructed the committee he was repeatedly requested the identical query by then White Home chief of workers Mark Meadows.
Giuliani, who was subpoenaed by the Justice Division earlier than Smith took over the investigation, beforehand acknowledged to the January 6 committee that he participated in that December 18 Oval Workplace assembly and different conversations about having DHS and the army seize voting machines.
Giuliani instructed congressional investigators that he and his group “tried many alternative methods to see if we may get the machines seized,” together with choices involving DHS, in accordance with the transcript of his committee interview. Giuliani additionally acknowledged participating in conversations — even earlier than the Dec. 18 Oval Workplace assembly — the place the thought of utilizing the army to grab voting machines was raised.
“I can bear in mind the problem of the army developing a lot earlier and always saying, ‘Will you overlook about it, please? Simply shut up. You need to go to jail? Simply shut up. We’re not utilizing the army,'” he added.
Robert Costello, an lawyer for Giuliani, instructed CNN that Giuliani has not acquired a subpoena from Smith. Costello mentioned that in early November, Giuliani was subpoenaed by the DC US Legal professional searching for paperwork and testimony. Costello says he instructed the Justice Division Giuliani couldn’t adjust to the given deadlines as a result of they have been in the midst of disciplinary proceedings on the time. That was the final time Giuliani heard from DOJ, says Costello.
“I haven’t heard a phrase since November 2022,” Costello instructed CNN on March 30.