[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
COMPILATION OF HEARINGS ON
THE JANUARY 6TH INVESTIGATION
=======================================================================
HEARINGS
BEFORE THE
SELECT COMMITTEE TO
INVESTIGATE THE JANUARY 6TH
ATTACK ON THE
UNITED STATES CAPITOL
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
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JULY 27, 2021
JUNE 9, 13, 16, 21, 23, and 28, 2022
JULY 12 and 21, 2022
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Serial No. 117-10
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Printed for the use of the Select Committee to Investigate the January 6th
Attack on the United States Capitol
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
50-139 PDF WASHINGTON : 2022
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SELECT COMMITTEE TO INVESTIGATE THE JANUARY 6TH
ATTACK ON THE UNITED STATES CAPITOL
Bennie G. Thompson, Mississippi, Chairman
Liz Cheney, Wyoming, Vice Chair
Zoe Lofgren, California
Adam B. Schiff, California
Pete Aguilar, California
Stephanie N. Murphy, Florida
Jamie Raskin, Maryland
Elaine G. Luria, Virginia
Adam Kinzinger, Illinois
COMMITTEE STAFF
David B. Buckley, Staff Director
Kristin L. Amerling, Deputy Staff Director and Chief Counsel
Hope Goins, Senior Counsel to the Chairman
Joseph B. Maher, Senior Counsel to the Vice Chair
Timothy J. Heaphy, Chief Investigative Counsel
Jamie Fleet, Senior Advisor
Timothy R. Mulvey, Communications Director
Candyce Phoenix, Senior Counsel and Senior Advisor
John F. Wood, Senior Investigative Counsel and Of Counsel to the Vice
Chair
Katherine B. Abrams, Staff Thomas E. Joscelyn, Senior Professional
Associate Staff Member
Temidayo Aganga-Williams, Senior Rebecca L. Knooihuizen, Financial
Investigative Counsel Investigator
Alejandra Apecechea, Investigative Casey E. Lucier, Investigative Counsel
Counsel Damon M. Marx, Professional Staff Member
Lisa A. Bianco, Director of Member Evan B. Mauldin, Chief Clerk
Services and Security Manager Yonatan L. Moskowitz, Senior Counsel
Jerome P. Bjelopera, Investigator Hannah G. Muldavin, Deputy
Bryan Bonner, Investigative Counsel Communications Director
Richard R. Bruno, Senior Jonathan D. Murray, Professional Staff
Administrative Assistant Member
Marcus Childress, Investigative Jacob A. Nelson, Professional Staff Member
Counsel Elizabeth Obrand, Staff Associate
John Marcus Clark, Security Raymond O'Mara, Director of External
Director Affairs
Jacqueline N. Colvett, Digital Elyes Ouechtati, Technology Partner
Director Robin M. Peguero, Investigative Counsel
Heather I. Connelly, Professional Sandeep A. Prasanna, Investigative Counsel
Staff Member Barry Pump, Parliamentarian
Meghan E. Conroy, Investigator Sean M. Quinn, Investigative Counsel
Heather L. Crowell, Printer Brittany M. J. Record, Senior Counsel
Proofreader Denver Riggleman, Senior Technical Advisor
William C. Danvers, Senior Joshua D. Roselman, Investigative Counsel
Researcher James N. Sasso, Senior Investigative Counsel
Soumyalatha Dayananda, Senior Grant H. Saunders, Professional Staff
Investigative Counsel Member
Stephen W. DeVine, Senior Counsel Samantha O. Stiles, Chief Administrative
Lawrence J. Eagleburger, Officer
Professional Staff Member Sean P. Tonolli, Senior Investigative
Kevin S. Elliker, Investigative Counsel
Counsel David A. Weinberg, Senior Professional Staff
Margaret E. Emamzadeh, Staff Member
Associate Amanda S. Wick, Senior Investigative
Sadallah A. Farah, Professional Counsel
Staff Member Darrin L. Williams, Jr., Staff Assistant
Daniel A. George, Senior Zachary S. Wood, Clerk
Investigative Counsel
Jacob H. Glick, Investigative
Counsel
Aaron S. Greene, Clerk
Marc S. Harris, Senior
Investigative Counsel
Alice K. Hayes, Clerk
Quincy T. Henderson, Staff
Assistant
Jenna Hopkins, Professional Staff
Member
Camisha L. Johnson, Professional
Staff Member
CONTRACTORS & CONSULTANTS
Rawaa Alobaidi
Melinda Arons
Steve Baker
Elizabeth Bisbee
David Canady
John Coughlin
Aaron Dietzen
Gina Ferrise
Angel Goldsborough
James Goldston
Polly Grube
L. Christine Healey
Danny Holladay
Percy Howard
Dean Jackson
Stephanie J. Jones
Hyatt Mamoun
Mary Marsh
Todd Mason
Ryan Mayers
Jeff McBride
Fred Muram
Alex Newhouse
John Norton
Orlando Pinder
Owen Pratt
Dan Pryzgoda
Brian Sasser
William Scherer
Driss Sekkat
Chris Stuart
Preston Sullivan
Brian Young
Innovative Driven
C O N T E N T S
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Page
TUESDAY, JULY 27, 2021
Statements
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Select Committee
to Investigate the January 6th Attack On the United States
Capitol........................................................ 1
The Honorable Liz Cheney, a Representative in Congress From the
State of Wyoming............................................... 4
Witnesses
Mr. Aquilino A. Gonell, Sergeant, U.S. Capitol Police............ 6
Mr. Michael Fanone, Officer, Metropolitan Police Department...... 10
Mr. Daniel Hodges, Officer, Metropolitan Police Department....... 14
Mr. Harry A. Dunn, Private First Class, U.S. Capitol Police...... 20
Appendix
The Honorable Liz Cheney, a Representative in Congress From the
State of Wyoming:
Text........................................................... 29
Prepared Statement of Aquilino A. Gonell, Sergeant, U.S. Capitol
Police......................................................... 55
Prepared Statement of Michael Fanone, Officer, Metropolitan
Police Department.............................................. 57
Prepared Statement of Daniel Hodges, Officer, Metropolitan Police
Department..................................................... 59
Prepared Statement of Harry A. Dunn, Private First Class, U.S.
Capitol Police................................................. 63
THURSDAY, JUNE 9, 2022
Statements
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Select Committee
to Investigate the January 6th Attack on the United States
Capitol........................................................ 67
The Honorable Liz Cheney, a Representative in Congress From the
State of Wyoming, and Vice Chair, Select Committee to
Investigate the January 6th Attack on the United States Capitol 70
Witnesses
Officer Caroline Edwards, U.S. Capitol Police, Washington, DC.... 82
Mr. Nick Quested, Documentary Filmmaker, New York, NY............ 83
Appendix
Prepared Statement of Officer Caroline Edwards, U.S. Capitol
Police, Washington, DC......................................... 93
Prepared Statement of Nick Quested, Documentary Filmmaker, New
York, NY....................................................... 93
MONDAY, JUNE 13, 2022
Statements
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Select Committee
to Investigate the January 6th Attack on the United States
Capitol........................................................ 95
The Honorable Liz Cheney, a Representative in Congress From the
State of Wyoming, and Vice Chair, Select Committee to
Investigate the January 6th Attack on the United States Capitol 96
The Honorable Zoe Lofgren, a Representative in Congress From the
State of California............................................ 98
Witnesses
Panel I
Mr. Chris Stirewalt, Former Fox News Political Editor............ 101
Panel II
Mr. Byung Jin ``BJay'' Pak, Former U.S. Attorney for the Northern
District of Georgia............................................ 113
Mr. Al Schmidt, Former City Commissioner of Philadelphia......... 115
Mr. Benjamin Ginsberg, Election Attorney......................... 116
Appendix
Prepared Statement of Byung Jin ``BJay'' Pak, Former U.S.
Attorney for the Northern District of Georgia.................. 123
The Honorable Zoe Lofgren, a Representative in Congress From the
State of California:
Joint Statement of Elections Infrastructure Government
Coordinating Council & The Election Infrastructure Sector
Coordinating Executive Committees............................ 126
Report by the Michigan Senate Oversight Committee.............. 127
Joint Expert Report............................................ 181
Statement of Janai Nelson, President and Director-Counsel,
NAACP Legal Defense and Educational Fund, Inc................ 183
Statement of Trevor Potter, Founder and President, Campaign
Legal Center................................................. 206
Statement of Wendy R. Weiser, Vice President for Democracy,
Brennan Center for Justice at NYU School of Law.............. 228
Joint Statement of States United Democracy Center.............. 242
Joint Statement of Renee DiResta, Technical Research Manager,
Stanford Internet Observator, Stanford University and Kate
Starbird, PhD, Associate Professor, Human-Centered Design &
Engineering, and Co-Founder and Director, Center for an
Informed Public, University of Washington.................... 267
THURSDAY, JUNE 16, 2022
Statements
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Select Committee
to Investigate the January 6th Attack on the United States
Capitol........................................................ 615
The Honorable Liz Cheney, a Representative in Congress From the
State of Wyoming, and Vice Chair, Select Committee to
Investigate the January 6th Attack on the United States Capitol 616
The Honorable Pete Aguilar, a Representative in Congress From the
State of California............................................ 617
Witnesses
Mr. Gregory F. Jacob, Former Counsel to Vice President Mike Pence 620
The Honorable J. Michael Luttig, Retired Judge for the U.S. Court
of Appeals for the Fourth Circuit and Informal Advisor to Mike
Pence.......................................................... 621
Appendix*
Prepared Statement of Gregory F. Jacob, Former Counsel to Vice
President Mike Pence........................................... 653
Prepared Statement of Honorable J. Michael Luttig, Retired Judge
for the U.S. Court of Appeals for the Fourth Circuit and
Informal Advisor to Mike Pence................................. 655
TUESDAY, JUNE 21, 2022
Statements
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Select Committee
to Investigate the January 6th Attack on the United States
Capitol........................................................ 661
The Honorable Liz Cheney, a Representative in Congress From the
State of Wyoming, and Vice Chair, Select Committee to
Investigate the January 6th Attack on the United States Capitol 662
The Honorable Adam B. Schiff, a Representative in Congress From
the State of California........................................ 664
Witnesses
Panel I
Honorable Rusty Bowers, Speaker, Arizona House of Representatives 668
Mr. Brad Raffensperger, Georgia Secretary of State............... 679
Mr. Gabriel Sterling, Chief Operating Officer, Office of the
Georgia Secretary of State..................................... 680
Panel II
Ms. Wandrea ArShaye ``Shaye'' Moss, Former Registration Officer,
Fulton County Department of Registration and Elections, Fulton
County, Georgia................................................ 691
Appendix*
Prepared Statement of Brad Raffensperger, Georgia Secretary of
State.......................................................... 701
Prepared Statement of Wandrea ArShaye ``Shaye'' Moss, Former
Registration Officer, Fulton County Department of Registration
and Elections, Fulton County, Georgia.......................... 702
THURSDAY, JUNE 23, 2022
Statements
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Select Committee
to Investigate the January 6th Attack on the United States
Capitol........................................................ 705
The Honorable Liz Cheney, a Representative in Congress From the
State of Wyoming, and Vice Chair, Select Committee to
Investigate the January 6th Attack on the United States Capitol 706
The Honorable Adam Kinzinger, a Representative in Congress From
the State of Illinois.......................................... 708
Witnesses
Mr. Jeffrey Rosen, Former Acting Attorney General................ 712
Mr. Richard Donoghue, Former Acting Deputy Attorney General...... 713
Mr. Steven A. Engel, Former Assistant Attorney General, Office of
Legal Counsel, U.S. Department of Justice...................... 713
* Prepared statements included after initial publication.
Appendix
Prepared Statement of Jeffrey Rosen, Former Acting Attorney
General........................................................ 747
Prepared Statement of Steven A. Engel, Former Assistant Attorney
General, Office of Legal Counsel, U.S. Department of Justice... 764
TUESDAY, JUNE 28, 2022
Statements
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Select Committee
to Investigate the January 6th Attack on the United States
Capitol........................................................ 765
The Honorable Liz Cheney, a Representative in Congress From the
State of Wyoming, and Vice Chair, Select Committee to
Investigate the January 6th Attack on the United States Capitol 766
Witness
Ms. Cassidy Hutchinson, Former Special Assistant to the President
and Aide to the Chief of Staff................................. 767
TUESDAY, JULY 12, 2022
Statements
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Select Committee
to Investigate the January 6th Attack on the United States
Capitol........................................................ 793
The Honorable Liz Cheney, a Representative in Congress From the
State of Wyoming, and Vice Chair, Select Committee to
Investigate the January 6th Attack on the United States Capitol 794
The Honorable Stephanie N. Murphy, a Representative in Congress
From the State of Florida...................................... 795
The Honorable Jamie Raskin, a Representative in Congress From the
State of Maryland.............................................. 796
Witnesses
Mr. Jason Van Tatenhove, Former National Media Director for the
Oath Keepers................................................... 823
Mr. Stephen Ayres, January 6th Defendant......................... 824
Appendix
Prepared Statement of Jason Van Tatenhove, Former National Media
Director for the Oath Keepers.................................. 835
THURSDAY, JULY 21, 2022
Statements
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Select Committee
to Investigate the January 6th Attack on the United States
Capitol........................................................ 837
The Honorable Liz Cheney, a Representative in Congress From the
State of Wyoming, and Vice Chair, Select Committee to
Investigate the January 6th Attack on the United States Capitol 838
The Honorable Elaine G. Luria, a Representative in Congress From
the State of Virginia.......................................... 840
The Honorable Adam Kinzinger, a Representative in Congress From
the State of Illinois.......................................... 841
Witnesses
Mr. Matthew Pottinger, Former Deputy National Security Advisor... 842
Ms. Sarah Matthews, Former Deputy Press Secretary and Special
Assistant to the President..................................... 843
THE LAW ENFORCEMENT EXPERIENCE ON JANUARY 6TH
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Tuesday, July 27, 2021
U.S. House of Representatives,
Select Committee to Investigate the January 6th Attack on
the United States Capitol,
Washington, DC.
The Committee met, pursuant to notice, at 9:31 a.m., in
Room 310, Cannon House Office Building, Hon. Bennie G. Thompson
[Chairman of the Committee] presiding.
Present: Representatives Thompson, Lofgren, Schiff,
Aguilar, Cheney, Murphy, Raskin, Luria, and Kinzinger.
Chairman Thompson. A quorum being present, the Select
Committee to Investigate the January 6th Attack on the United
States Capitol will be in order.
The Select Committee is meeting today to receive testimony
on ``The Law Enforcement Experience on January 6th.''
Without objection, the Chair is authorized to declare the
Committee in recess at any time.
I now recognize myself for an opening statement.
Let me say a few words at the outset about this Committee's
work and how, as Chairman, I plan to run things. We're going to
be guided solely by the facts: the facts of what happened on
January 6th, the run-up to that tragic day, and what has taken
place since. That's what we're charged to do by House
Resolution 503.
There is no place for politics or partisanship in this
investigation. Our only charge is to follow the facts where
they lead us. While we have a lot to uncover, there are a few
things we already know.
We know that the insurrection on January 6th was a violent
attack that involved vicious assaults on law enforcement. We
know there is evidence of a coordinated, planned attack. We
know that men and women who stormed the Capitol wanted to
derail the peaceful transfer of power in this country. We know
that 7 people lost their lives; that more than 140 police
officers suffered injuries. We know that efforts to subvert our
democracy are on-going. A major part of the Select Committee's
work will be to find ways to eliminate that threat.
We also know that the rioters came dangerously close to
succeeding. If not for the heroism of the United States Capitol
Police and the Metropolitan Police Department, many more lives
might have been lost and the rioters could have accomplished
what they set out to do: Upend American democracy.
It's an honor to have four of these heroes sitting before
us today. We welcome them for appearing here and, more
importantly, for your heroism on January 6th. You have the
gratitude of this Committee and this country.
You held the line that day. I can't overstate what was on
the line: our democracy. You held the line.
We're going to revisit some of those moments today, and it
won't be easy, but history will remember your names and your
actions.
It's important to think about history as this Committee
starts its work and as we hear from these courageous men and to
get answers for the American people; because we need to
understand our history if we want to understand the
significance of what happened on January 6th and our role as
Members of the people's House.
I'm talking about the peaceful transfer of power. Two
hundred twenty years ago, in 1801, the House of Representatives
did one of its jobs laid out in the Constitution. After a
deadlock in the electoral college, this body cast 36 ballots
and ultimately settled the contest for President of the United
States. What followed was the first peaceful transfer of power
in our country's history.
We know that, since then, our history has been far from
perfect. We've been torn apart and brought back together. We've
struggled across generations to make our country's great vision
a reality for all Americans. We've won victories, and we've
suffered failures, but the peaceful transfer of power has stood
as the pillar of our democracy.
It's one of those things we rely on, a safeguard that we
hold close, because, as heated and angry and divided as we may
be, whatever victories we celebrate or upheavals we endure, we
can rest easy knowing that, when the moment comes, our system
guarantees that one party will hand the reins to another if
that's the will of the people.
While our institution's endured and while Joe Biden is the
legitimately elected President of the United States, a peaceful
transfer of power didn't happen this year. It did not happen.
Let that sink in. Think about it.
A violent mob was pointed toward the Capitol and told to
win a ``trial by combat''. Some descended on this city with
clear plans to disrupt our democracy. One rioter said that they
weren't there to commit violence but that--I'm quoting--``We're
just there to overthrow the Government.''
I want to repeat that. I urge everyone to listen to those
words and think about what they mean. ``We were just there to
overthrow the Government.''
They marched on the Capitol with the clear intentions of
stopping the certification of the election. When they
encountered the police sworn to keep us safe, they went on
their attack with bear spray, knives, tasers, hockey sticks,
even flagpoles fashioned into clubs with the American flag
still attached.
Those rioters breached the Capitol. They smashed windows,
scaled walls, broke down doors, and invaded the Halls of
Congress. It was a scene of violence in the citadel of our
democracy not seen since 1814 when British soldiers sacked the
building.
They raced through the hallways chanting, ``Hang Mike
Pence!'' ``Where is Nancy?''
They stormed onto the Senate floor because they wanted to
stop the Senate from certifying the election. The rioters tried
to take over the House floor for the same reason.
Thankfully, some astute, young staff members had the
presence of mind to grab the physical electoral ballots for
safekeeping.
These rioters were organized. They were ready for a fight,
and they came close to succeeding. It's frightening to think
about how close we were: a few inches of wood and glass, an
officer turning left instead of turning right. But just
describing that attack doesn't come close to capturing what
actually took place that day.
So, we're going to see some of what our witnesses saw on
January 6th. Let's see the video, please, but please be advised
that it contains graphic images and strong language, which many
may find disturbing.
Crowd. [unintelligible]
Stop the Steal Zello Channel. Hey brother, we're boots on the
ground here. We're moving on the Capitol now. I'll give you a boots-on-
the-ground update here in a few.
Police Radio Transmission. Multiple Capitol injuries. Multiple
Capitol injuries.
Crowd. [unintelligible]
Voice. Take the building! Take the building!
Voice. Fuck you, police!
Police Radio Transmission. 50 to JOCC, we're still taking metal,
sharpened objects, missiles, to include bottles and rocks and hand-
thrown chemical-grade fireworks.
Voice. There's an officer in the crowd.
Crowd. [unintelligible]
Police Radio Transmission. . . . this is now effectively a riot.
Police Radio Transmission. 1349 hours, declaring it a riot.
Stop the Steal Zello Channel. OK, guys, apparently the tip of the
spear has entered the Capitol Building.
Crowd. [unintelligible]
Police Radio Transmission. [redacted], if I give this up, they're
going to have direct access. At least the scaffold we can defend. We've
got to hold what we have.
Voice. Take your pins off.
Voice. What the fuck?
Voice. Take your pins off.
Crowd. [redacted] This is our house! [redacted]
Voice. This is a corrupt government. [unintelligible]
Voice. Is this the Senate? Where the fuck are they?
Police Radio Transmission. Cruiser 50, we're flanked. 10-33. I
repeat, 10-33, West Front of the Capitol. We have been flanked, and
we've lost the line.
Crowd. [unintelligible]
Voice. They're coming, baby! They're coming, baby!
Voice. Motherfuckers!
Voice. They're spraying gas.
Voice. Lock the shields. Lock them together. Lock them together.
Voice. We need fresh patriots to the front!
Voice. Back up if you need a break. Come on.
Voice. He needs a break.
Voice. Jimmy, get them to the back. Get them to the back. Get them
to the back. Let's get some fresh faces up front.
Crowd. [unintelligible]
Voice. Push!
Voice. All right. Let me out!
Voice. Pull them out! Pull them out! Pull them out!
Voice. Can I speak to Pelosi? Yeah? We're coming, bitch! Oh, Mike
Pence? We're coming for you too, you fucking traitor!
Crowd. Hang Mike Pence! Hang Mike Pence! Hang Mike Pence!
Stop the Steal Zello Channel. They've got the gallows set up
outside the Capitol Building. It's time to start fucking using them.
Voice. Start making a list, put all those names down, and we start
hunting them down one-by-one.
Voice. Traitors get guillotine!
Voice. Mobilize in your own cities, in your own counties, storm
your own capitol buildings, and take down every one of these corrupt
motherfuckers!
Voice. That's what we fucking need to have: 30,000 guns up here.
Voice. Next trip.
Chairman Thompson. He'll be back, he warns us. It's just
chilling.
I thank God our democracy and our Republic withstood this
assault, but that man's warning reminds us that this threat
hasn't gone away. It looms over our democracy like a dark
cloud.
Some people are trying to deny what happened, to whitewash
it, to turn the insurrectionists into martyrs. But the whole
world saw the reality of what happened on January 6th: the
hangman's gallows sitting out there on our Nation's Mall, the
flag of that first failed and disgraced rebellion against our
Union being paraded through the Capitol, the hatred, the
bigotry, the violence, and all of it for a vile, vile lie.
Let's be clear. The rioters who tried to rob us of our
democracy were propelled here by a lie.
As Chairman of this Committee, I will not give that lie any
fertile ground. We need to understand how and why the Big Lie
festered. We need to know minute-by-minute how January 6th
unfolded. We need to understand how the rotten lie behind
January 6th has continued to spread and feed the forces that
would undermine American democracy.
We need to figure out how to fix the damage. It won't be
easy, but I have tremendous confidence in the colleagues
sitting to my left and right. These are men and women of
courage and character.
We did not ask for this, but the House of Representatives
did its job to give this country its first peaceful transfer of
power, and we'll do our job now to make sure the peaceful
transfer of power remains a pillar of our democracy. We cannot
allow ourselves to be undone by liars and cheaters. This is the
United States of America.
My distinguished colleague from Wyoming, Ms. Cheney, is not
the Ranking Member of the Select Committee, but because this
investigation is bipartisan, it's important that we hear
Republican voices as well.
I now recognize Representative Cheney for an opening
statement.
Ms. Cheney. Thank you very much, Chairman Thompson. Thank
you to all my colleagues on this Committee, and thank you to
each of the witnesses appearing before us today.
It is because of you: You held the line. You defended all
of us. You defended the Capitol, and you defended the
Constitution and our Republic, and every American owes you our
undying gratitude.
Every American, I hope, will be able to hear your testimony
today and will watch the videos. The videos show the
unbelievable violence and the inexcusable and intolerable
cruelty that you all faced, and people need to know the truth.
I want to begin by reflecting briefly on the investigation
that we're launching today. Every one of us here on the dais
voted for and would have preferred that these matters be
investigated by an independent, nonpartisan commission composed
of 5 prominent Americans selected by each party and modeled on
the 9/11 Commission.
Although such a commission was opposed by my own leadership
in the House, it overwhelmingly passed with the support of 35
Republican Members. It was defeated by Republicans in the
Senate. That leaves us where we are today.
We cannot leave the violence of January 6th and its causes
uninvestigated. The American people deserve the full and open
testimony of every person with knowledge of the planning and
preparation for January 6th. We must know what happened here at
the Capitol.
We must also know what happened every minute of that day in
the White House: every phone call, every conversation, every
meeting leading up to, during, and after the attack. Honorable
men and women have an obligation to step forward.
If those responsible are not held accountable, and if
Congress does not act responsibly, this will remain a cancer on
our Constitutional Republic, undermining the peaceful transfer
of power at the heart of our democratic system. We will face
the threat of more violence in the months to come and another
January 6th every 4 years.
I have been a conservative Republican since 1984 when I
first voted for Ronald Reagan. I have disagreed sharply on
policy and politics with almost every Democratic Member of this
Committee. But, in the end, we are one Nation under God.
The Framers of our Constitution recognized the danger of
the vicious factionalism of partisan politics, and they knew
that our daily arguments could become so fierce that we might
lose track of our most important obligation: to defend the rule
of law and the freedom of all Americans.
That is why our Framers compelled each of us to swear a
solemn oath to preserve and protect the Constitution. When a
threat to our Constitutional order arises, as it has here, we
are obligated to rise above politics. This investigation must
be nonpartisan.
While we begin today by taking the public testimony of
these four heroic men, we must also realize that the task of
this Committee will require persistence. We must issue and
enforce subpoenas promptly. We must get to objective truth. We
must overcome the many efforts we are already seeing to cover
up and obscure the facts.
On January 6th and in the days thereafter, almost all
Members of my party recognized the events of that day for what
they actually were. One Republican, for example, said, ``What
is happening at the U.S. Capitol right now is unacceptable and
un-American. Those participating in lawlessness and violence
must be arrested and prosecuted to the fullest extent of the
law.''
No Member of Congress should now attempt to defend the
indefensible, obstruct this investigation, or whitewash what
happened that day. We must act with honor and duty and in the
interest of our Nation.
America is great because we preserve our democratic
institutions at all costs. Until January 6th, we were proof
positive for the world that a Nation conceived in liberty could
long endure. But now January 6th threatens our most sacred
legacy.
The question for every one of us who serves in Congress,
for every elected official across this great Nation, indeed for
every American, is this: Will we adhere to the rule of law?
Will we respect the rulings of our courts? Will we preserve the
peaceful transition of power? Or will we be so blinded by
partisanship that we throw away the miracle of America? Do we
hate our political adversaries more than we love our country
and revere our Constitution?
I pray that that is not the case. I pray that we all
remember our children are watching. As we carry out this solemn
and sacred duty entrusted to us, our children will know who
stood for truth, and they will inherit the Nation we hand to
them--a republic, if we can keep it.
Thank you, Mr. Chairman. I yield back.
Chairman Thompson. Thank you, Representative Cheney.
I will now introduce our witnesses.
We're joined today by Sergeant Aquilino Gonell of the
United States Capitol Police. He's a 15-year veteran of the
Capitol Police. He's assigned to a First Responder Unit in the
United States Capitol Police's Uniformed Services Bureau.
Before joining the Capitol Police, Sergeant Gonell served 8
years in the United States Army and spent 545 days in Iraq,
where his base was under constant mortar, rocket, and indirect
fire by insurgents. He has received multiple awards and
commendations for his military service.
We're also joined by Officer Michael Fanone of the
Metropolitan Police Department in Washington, DC. Officer
Fanone began his law enforcement career with the United States
Capitol Police shortly after the terrorist attacks of 9/11.
For nearly 20 years, Officer Fanone has served the citizens
of the District of Columbia in special units focusing on
narcotics investigations and violent criminals.
Officer Daniel Hodges is a member of Civil Disturbance Unit
42 in the D.C. Metropolitan Police Department, where his
responsibilities include riot response.
Prior to his service on the Metropolitan Police Department,
he served 6 years in the 116th Infantry Regiment, 3d Battalion,
as an indirect fire infantryman.
U.S. Capitol Police Officer Harry Dunn is a 13-year veteran
of the United States Capitol Police and a member of its First
Responder Unit. His responsibilities include ensuring the
integrity of the perimeter around the Capitol Building. Officer
Dunn has been among the first Capitol Police Officers to
describe what happened to law enforcement on January 6th.
I will now swear in our witnesses. The witnesses will
please rise and raise their right hands.
[Witnesses sworn.]
Chairman Thompson. Thank you. You may be seated.
Let the record reflect the witnesses answered in the
affirmative.
Without objection, the witnesses' full statements will be
included in the record.
I now recognize Sergeant Gonell to summarize his testimony.
Sergeant Gonell. \1\ Good morning, everybody.
---------------------------------------------------------------------------
\1\ Sergeant Gonell's prepared statement is included in the
Appendix beginning on p. 55.
---------------------------------------------------------------------------
Chairman Thompson. Good morning.
Sergeant Gonell. Chairman Thompson, Members of the Select
Committee, thank you for the opportunity to testify regarding
the attack on the U.S. Capitol on January 6, 2021.
It is with honor and heavy heart that I come before you to
tell you my story, from a painful, first-hand experience what
happened that terrible day at the Capitol.
I'm providing this testimony solely in my personal capacity
and not as a representative of the U.S. Capitol Police. It is
imperative that the events of January 6th are fully
investigated in the Congress and the American people know the
truth of what actually occurred and that all those responsible
are held accountable, particularly to ensure that horrific and
shameful event in our history never repeats itself. I applaud
you for pursuing this objective.
Even though there is overwhelming evidence to the contrary,
including hours and hours of videos and photographic coverage,
there is a continued, shocking attempt to ignore or try to
destroy the truth of what truly happened that day and to
whitewash the facts into something other than what they
unmistakenly reveal: an attack on our democracy by violent
domestic extremists and a stain on our history and our moral
standing here, home, and abroad.
As a child in the Dominican Republic, I looked up to the
United States as the land of opportunity and a place to better
myself. From the moment I landed at JFK in 1992, I have tried
to pursue that goal. Thankfully, I achieved that goal on many
levels. I was the first in my family to graduate college, join
the Army, and become a police officer.
On July 23, 1999, the day before my 21st birthday, I raised
my hand and swore to protect the Constitution of the United
States because this country gave me an opportunity to become
anything that I wanted.
At that time, I already started basic training with the
Army Reserves. In fact, I raised my hand several times in
ceremonies to pledge my commitment to defend and protect the
Constitution of the United States: when I joined the Army
Reserves; when I was promoted to sergeant while in the Army;
during my naturalization ceremony; my reenlistment in the Army;
when I joined the United States Capitol Police; and, last, when
I was promoted to sergeant 3 years ago.
I have always taken my oath seriously. On January 6, 2021,
I fulfilled my oath once more, this time to defend the United
States Capitol and Members of Congress carrying out their
Constitutional duties to certify the results of the November
2020 Presidential election.
To be honest, I did not recognize my fellow citizens who
stormed the Capitol on January 6th or the United States that
they claimed to represent. When I was 25 years old and then a
sergeant in the Army, I had deployed to Iraq for Operation
Iraqi Freedom. From time to time, I volunteered to travel on
IED-infested roads to conduct supply missions for U.S. and
allied forces and local Iraqi population as well. But, on
January 6th, for the first time, I was more afraid to work at
the Capitol than my entire deployment to Iraq.
In Iraq, we expected armed violence because we were in a
war zone, but nothing in my experience in the Army or as a law
enforcement officer prepared me for what we confronted on
January 6th. The verbal assaults and disrespect we endured from
the rioters were bad enough. I was falsely accused of betraying
my oath, of choosing my paycheck--choosing my paycheck--over my
loyalty to the U.S. Constitution, even as I defended the very
democratic process that protected everyone in the hostile
crowd.
While I was at the Lower West Terrace of the Capitol
working with my fellow officers to prevent the breach and
restore order, the rioters called me a traitor, a disgrace, and
shouted that I--I, an Army veteran and a police officer--should
be executed.
Some of the rioters had the audacity to tell me there was
nothing personal, that they will go through me, through us
police officers to achieve their goal, as they were breaking
metal barriers to use as weapons against us.
Or they used more menacing language: ``If you shoot us, we
all have weapons. We will shoot back.'' Or, ``We'll get our
guns. We outnumber you.'' They said, ``Join us.''
I heard specific threats to the lives of Speaker Nancy
Pelosi and then also Vice President Mike Pence. But the
physical violence we experienced was horrific and devastating.
My fellow officers and I were punched, kicked, shoved, sprayed
with chemical irritants, and even blinded with eye-damaging
lasers by a violent mob who apparently saw us law enforcement
officers, ironically dedicated to protecting them as U.S.
citizens, as an impediment to their attempted insurrection.
The mob brought weapons to try to accomplish their
insurrectionist objectives and used them against us. These
weapons included hammers, rebars, knives, batons, and police
shields taken by force, as well as bear spray and pepper spray.
Some of the rioters wore tactical gear, including
bulletproof vests and gas masks. The rioters also forcibly took
our batons and shields to use them against us.
I was particularly shocked at the scene that
insurrectionists violently attacked us with the very American
flag that they claimed to protect. Based on the coordinated
tactics we observed and verbal commands we heard, it appears
that many of these attackers had law enforcement or military
experience.
The rioters were vicious and relentless. We found ourselves
in a violent battle desperate to attempt to prevent a breach of
the Capitol by the entrance near the inauguration stage.
Metropolitan Police Officers were being pulled into the crowd.
We have one right here, right next to me.
As we tried to push the rioters back from breaching the
Capitol, in my attempt to assist two MPD officers, I grabbed
one officer by the back of the collar and pulled him back to
the police line.
When I tried to help the second officer, I fell on top of
some police shields on the ground that were slippery because of
pepper spray and bear spray. Rioters immediately began to pull
me by my leg, by my shield, by my gear strap on my left
shoulder.
My survivalist instincts kicked in, and I started kicking
and punching as I tried in vain to get an MPD officer's
attention behind, above me, but they could not help me because
they also were being attacked.
I finally was able to hit the rioter who was grabbing me
with my baton and able to stand. Then I continued to fend off
new attackers as they kept rotating and attacking us again and
again.
What we were subjected to that day was like something from
a medieval battle. We fought hand-to-hand, inch by inch to
prevent an invasion of the Capitol by a violent mob intent on
subverting our democratic process. My fellow officers and I
were committed to not letting any rioters breach the Capitol.
It was a prolonged and desperate struggle. The rioters
attempting to breach the Capitol were shouting, ``Trump sent
us. Pick the right side. We want Trump.''
I vividly heard officers screaming in agony, in pain, just
an arm's length from me. I didn't know at that time, but that
was Officer Hodges, and he's here today to testify.
I too was being crushed by the rioters. I could feel myself
losing oxygen and recall thinking to myself, ``This is how I'm
going to die, defending this entrance.''
Many of the officers fighting alongside me were calling for
shields because their shields had been stripped from them by
the rioters. I was one of the few officers left with a shield,
so I spent the majority of my time at the front of the line.
I later find out that my wife and relatives here in the
United States and abroad were frantically calling and texting
me from 2 p.m. onward because they were watching the turmoil on
television. It was now 4:26 p.m., after giving CPR to one of
the rioters who breached the Capitol in an effort to save her
life, that I finally had a chance to let my own family know
that I was alive.
After order had finally been restored at the Capitol and
many hours, I arrived at home at nearly 4 a.m. on January 7th.
I had to push my wife away from me because she wanted to hug
me, and I told her no because of all the chemicals that my
uniform had on.
Sorry.
I couldn't sleep because the chemical reactivated after I
took a shower, and my skin was burning. I finally fell asleep 2
hours later, completely physically and mentally exhausted, yet,
by 8 o'clock a.m., I was already on my way back to the Capitol.
I continued to work for 15 consecutive days until after the
inauguration. I made sure to work despite my injuries because I
wanted to continue doing my job and help secure the Capitol
complex. More than 6 months later, I'm still trying to recover
from my injuries.
Many of my fellow Capitol officers, as well as MPD
officers, suffered several physical injuries from the violence
inflicted on us on January 6th. I sustained injuries on both my
hands, my left shoulder, my left calf, and my right foot. I
already have undergone bone fusion surgery on my right foot,
and I was just told that I need surgery on my left shoulder. I
have been on medical and administrative leave for much of the
past 6 months, and I expect to need further rehabilitation for
possibly more than a year.
There are some who express outrage when someone kneels
while calling for social justice. Where are those same people
expressing the outrage to condemn the violent attack on law
enforcement, the Capitol, and our American democracy? I'm still
waiting for them.
As America and the world watched in horror what was
happening at the Capitol, we did not receive timely
reinforcement and support we needed. In contrast, during the
Black Lives Matter protests last year, U.S. Capitol Police had
all the support we needed and more. Why the different response?
Were it not for the brave members of the MPD and, later on,
from other law enforcement agencies, I'm afraid to think what
could have happened on January 6th. I want to publicly thank
all the law enforcement agencies that responded to assist that
day, for their courage and their support. I especially want to
thank those Capitol Police Officers who responded on their own
from home after working midnight shift.
Despite being outnumbered, we did our job. Every Member of
the House of Representatives, Senators, and staff members made
it home. Sadly, as a result that day, we lost officers--some
really good officers. But we held the line to protect our
democratic process because the alternative would have been a
disaster. We are not asking for medals, recognition. We simply
want justice and accountability.
For most people, January 6th happened for a few hours but
for those of us who were in the thick of it, it has not ended.
That day continues to be a constant trauma for us literally
every day, whether because of our physical or emotional
injuries, or both. While it has not received much attention,
sadly many of my colleagues have quietly resigned from the
Capitol because of that day.
I am also regularly called by law enforcement officials and
prosecutors to help identify from photographs and videos the
rioters.
To be honest, physical therapy is painful and hard. I could
have lost my life that day, not once but many times. But, as
soon as I recover from my injuries, I will continue forward and
proudly serve my country in the U.S. Capitol Police.
As an immigrant to the United States, I'm especially proud
to have defended the U.S. Constitution and our democracy on
January 6th. I hope that everyone in position of authority in
our country has the courage and conviction to do their part by
investigating what happened on that terrible day and why. This
investigation is essential to our democracy, and I'm deeply
grateful to you for undertaking it.
I'm happy to assist as I can and answer any questions you
may have to the best of my ability.
Thank you.
Chairman Thompson. Thank you very much for your vivid
testimony, Sergeant Gonell.
I now recognize Officer Fanone to summarize his testimony.
Officer Fanone. \2\ Thank you, Mr. Chairman, and Members of
this Committee for inviting me to provide my eyewitness
testimony of the violent assault on our Nation's Capitol on
January 6, 2021.
---------------------------------------------------------------------------
\2\ Officer Fanone's prepared statement is included in the Appendix
beginning on p. 57.
---------------------------------------------------------------------------
My name, for those of you who don't know, is Michael
Fanone. While I've been a sworn officer with the Metropolitan
Police Department in Washington, DC, for almost two decades, my
law enforcement career actually began here in this building as
a United States Capitol Police Officer shortly after 9/11.
In part because of the 2001 attack on our country by the
terrorists, I felt called to serve. As a Capitol Police
Officer, I was proud to protect this institution and dedicated
Members of Congress and their staff who work hard each day to
uphold our American democracy.
I remain proud of the work of the United States Capitol
Police and MPD Officers, who literally commit their lives to
protecting the safety of each of you and all of us in this room
in our Nation's Capital.
After leaving the United States Capitol Police, I became an
MPD officer, serving the residents of Washington, DC. I have
spent the majority of my nearly 20 years as a Metropolitan
Police Officer working in special mission units whose
responsibilities include the investigation and arrest of
narcotics traffickers and violent criminals.
I've worked both as an undercover officer and the lead case
officer in many of these investigations. In this line of work,
it probably won't shock you to know that I've dealt with some
dicey situations. I thought I had seen it all many times over,
yet what I witnessed and experienced on January 6, 2021, was
unlike anything I had ever seen, anything I had ever
experienced or could have imagined in my country. On that day,
I participated in the defense of the United States Capitol from
an armed mob--an armed mob--of thousands determined to get
inside.
Because I was among the vastly outnumbered group of law
enforcement officers protecting the Capitol and the people
inside it, I was grabbed, beaten, tased, all while being called
a traitor to my country. I was at risk of being stripped of and
killed with my own firearm as I heard chants of ``kill him with
his own gun.'' I can still hear those words in my head today.
Although I regularly deal with risky situations on the job,
nowhere in my wildest imagination did I ever expect to be in
that situation or sitting here before you talking about it.
That experience and its aftermath were something that not even
my extensive law enforcement training could prepare me for.
I was just one of hundreds of local police who lined up to
protect Congress, even though I had not been assigned to do
that. Some had asked why we ran to help when we didn't have to.
I did that because I simply could not ignore what was
happening. Like many other officers, I could not ignore the
numerous calls--numerous calls--for help coming from the
Capitol complex.
I am a plainclothes officer assigned to the First District
Crime Suppression Team. But, for the first time in nearly a
decade, I put on my uniform.
When my partner, Jimmy Albright, and I arrived at the
Capitol around 3 that afternoon, it was like--excuse me. It was
unlike any scene I had ever witnessed. Jimmy parked our police
vehicle near the intersection of South Capitol Street and D
Street in Southeast, and we walked to the Capitol, from there
passing the Longworth House Office Building. It was eerily
quiet. The sidewalks, usually filled with pedestrians, were
empty.
As we made our way to Independence Avenue, I could see
dozens of empty police vehicles that filled the street, police
barricades which had been abandoned, and hundreds of angry
protesters, many of whom taunted us as we walked toward the
Capitol Building.
Jimmy and I immediately began to search for an area where
we could be of most assistance. We made our way through a door
on the south side of the Capitol, walking then to the Crypt,
and finally down to the Lower West Terrace tunnel.
It was there that I observed a police commander struggling
to breathe as he dealt with the effects of CS gas that lingered
in the air. Then I watched him collect himself, straighten his
cap and trench coat adorned with its silver eagles, and return
to the line.
That commander was Ramey Kyle of the Metropolitan Police
Department, and those images are etched into my memory, never
to be forgotten. In the midst of that intense and chaotic
scene, Commander Kyle remained cool, calm, and collected as he
gave commands to his officers. ``Hold the line,'' he shouted
over the roar.
Of course, that day, the line was the seat of our American
Government. Despite the confusion and the stress of the
situation, observing Ray's leadership protecting a place I
cared so much about was the most inspirational moment of my
life. The bravery he and others showed that day are the best
examples of duty, honor, and service. Each of us who carries a
badge should bring those core values to our work every day.
The fighting in the Lower West Terrace tunnel was nothing
short of brutal. Here I observed approximately 30 police
officers standing shoulder to shoulder, maybe 4 or 5 abreast,
using the weight of their bodies to hold back the onslaught of
violent attackers. Many of these officers were injured,
bleeding, and fatigued, but they continued to hold the line.
As I don't have to tell the Members in this room, the
tunnel is a narrow and long hallway. It is not the sort of
space anyone would want to be pulled into hand-to-hand combat
with an angry mob, although the narrowness of the hallway
provided what was probably the only chance of holding back the
crowd from entering your personal offices, the House, and
Senate Chambers.
In an attempt to assist the injured officers, Jimmy and I
asked them if they needed a break. There were no volunteers.
Selflessly, those officers only identified other colleagues who
may be in need of assistance.
The fighting dragged on. I eventually joined the tactical
line at the tunnel's entrance. I can remember looking around
and being shocked by the sheer number of people fighting us; as
my police body-worn camera shows, thousands upon thousands of
people seemingly determined to get past us by any means
necessary.
At some point during the fighting, I was dragged from the
line of officers and into the crowd. I heard someone scream,
``I got one.''
As I was swarmed by a violent mob, they ripped off my
badge. They grabbed and stripped me of my radio. They seized
ammunition that was secured to my body. They began to beat me
with their fists and with what felt like hard metal objects. At
one point, I came face to face with an attacker, who repeatedly
lunged for me and attempted to remove my firearm. I heard
chanting from some in the crowd: ``Get his gun and kill him
with his own gun.''
I was aware enough to recognize I was at risk of being
stripped of and killed with my own firearm. I was electrocuted
again and again and again with a taser. I'm sure I was
screaming, but I don't think I could even hear my own voice.
My body camera captured the violence of the crowd directed
toward me during those very frightening moments. It's an
important part of the record for this Committee's investigation
and for the country's understanding of how I was assaulted and
nearly killed as the mob attacked the Capitol that day, and I
hope that everyone will be able to watch it.
The portions of the video I've seen remained extremely
painful for me to watch at times, but it is essential that
everyone understands what really happened that tragic day.
During those moments, I remember thinking there was a very
good chance I would be torn apart or shot to death with my own
weapon.
I thought of my four daughters who might lose their dad.
I remain grateful that no Member of Congress had to go
through the violent assault that I experienced that day.
During the assault, I thought about using my firearm on my
attackers, but I knew that if I did, I would be quickly
overwhelmed and that, in their minds, would provide them with
the justification for killing me. So, I instead decided to
appeal to any humanity they might have. I said as loud as I
could manage, ``I've got kids.''
Thankfully, some in the crowd stepped in and assisted me.
Those few individuals protected me from a crowd and inched me
toward the Capitol until my fellow officers could rescue me. I
was carried back inside.
What happened afterwards is much less vivid. I had been
beaten unconscious and remained so for more than 4 minutes. I
know that Jimmy helped to evacuate me from the building and
drove me to MedStar Washington Hospital Center despite
suffering significant injuries himself.
At the hospital, the doctors told me that I had suffered a
heart attack, and I was later diagnosed with a concussion, a
traumatic brain injury, and post-traumatic stress disorder.
As my physical injuries gradually subsided and the
adrenaline that had stayed with me for weeks waned, I have been
left with the psychological trauma and the emotional anxiety of
having survived such a horrific event. My children continue to
deal with the trauma of nearly losing their dad that day.
What makes the struggle harder and more painful is to know
so many of my fellow citizens, including so many of the people
I put my life at risk to defend, are downplaying or outright
denying what happened.
I feel like I went to hell and back to protect them and the
people in this room, but too many are now telling me that hell
doesn't exist or that hell actually wasn't that bad. The
indifference shown to my colleagues is disgraceful.
My law enforcement career prepared me to cope with some of
the aspects of this experience. Being an officer, you know your
life is at risk whenever you walk out the door, even if you
don't expect otherwise law-abiding citizens to take up arms
against you.
But nothing--truly nothing--has prepared me to address
those elected Members of our Government who continue to deny
the events of that day and, in doing so, betray their oath of
office--those very Members whose lives, offices, staff members
I was fighting so desperately to defend.
I agreed to speak here today and have talked publicly about
what happened because I don't think our response to the
insurrection should have anything to do with political parties.
I know that what my partner, Jimmy, and I suited up for on
January 6th didn't have anything to do with political parties
or about politics or what political party any of you public
servants belong to.
I've worked in this city for two decades, and I've never
cared about those things, no matter who was in office. All I've
ever cared about is protecting you and the public so you can do
your job in service to this country and for those whom you
represent.
I appreciate your time and attention. I look forward to the
Committee's investigation, and I am hopeful, with your
commitment, we as a country will confront the truth of what
happened on January 6th and do what is necessary to make sure
this institution of our democracy never falls into the hands of
a violent and angry mob.
We must also recognize the officers who responded that day,
many unsolicited, and their countless acts of bravery and
selflessness. It has been 202 days since 850 MPD officers
responded to the Capitol and helped stop a violent insurrection
from taking over this Capitol complex, which almost certainly
saved countless Members of Congress and their staff from injury
and possibly death. The time to fully recognize these officers
is now.
Thank you again for the opportunity to provide my testimony
here today.
Chairman Thompson. Thank you very much for your testimony.
Now, I don't think there is any question you have our
commitment that we will do just that as a Committee.
Officer Fanone. Thank you, sir.
Chairman Thompson. I now recognize Officer Hodges to
summarize his testimony.
Officer Hodges. \3\ Good morning to the Committee, members
of the press, and to the country.
---------------------------------------------------------------------------
\3\ Officer Hodges's prepared statement is included in the Appendix
beginning on p. 59.
---------------------------------------------------------------------------
To the Members of the Committee, I'd like to thank you for
your invitation today to provide my account of my knowledge and
experiences from January 6, 2021.
As the Chairman mentioned, I am a member of Civil
Disturbance Unit 42 and was working in that capacity on the day
in question. We started that day at 7:30 a.m., and our
assignment at the time was to maintain high visibility along
Constitution Avenue, namely the blocks leading up to
President's Park, where then-President Donald Trump was holding
his gathering.
My particular station was in front of 1111 Constitution
Avenue, where I stood on foot as the crowd poured down the
street and into the park. There were a significant number of
men dressed in tactical gear attending the gathering or wearing
ballistic vests, helmets, goggles, military face masks,
backpacks. Without identifiable visible law enforcement or
military patches, they appeared to be prepared for much more
than listening to politicians speak at a park.
Two of my colleagues were approached by a group of 3 to 4
such men. They were white men, in good shape, with load-bearing
vests equipped with MOLLE pouches. They were wearing BDUs, or
battle dress uniform pants, tactical boots, black sunglasses,
and short haircuts. They had radios, and one was equipped with
an earpiece.
After a bit of small talk, one of them asked my colleague
something to the effect of, Is this all the manpower you have?
Do you really think you are going to be able to stop all these
people? Dumbfounded, my colleague simply expressed they didn't
understand what the speaker meant, and the group continued on.
As the day went on and speakers in the park said their
piece, I monitored the crowd on the radio. Over the radio, I
heard our gun recovery unit working constantly, monitoring
those in the crowd suspected of carrying firearms and making
arrests and seizures when possible.
Multiple gun arrests were made from January 5th through the
7th against those attending and likely had attended or planned
to attend Donald Trump's gathering. Unfortunately, due to the
course of events that day, we will never know exactly how many
were carrying firearms and other lethal weapons.
I don't know what time it was, but eventually the flow of
foot traffic reversed, with people leaving President's Park and
traveling eastbound down Constitution Avenue toward the United
States Capitol.
At approximately 12:30 p.m., I noticed a commotion about
half a block to my east, and I saw the crowd starting to
coalesce around two figures. I ran to where they were and found
a confrontation at the intersection of 10th and Constitution
Avenue Northwest.
One counter-protester, a Black man, was backpedaling away
from a white man in a Trump-labeled face mask who was closely
following him with an outstretched arm. Myself and my colleague
first arrived and physically separated the two, but a crowd of
Donald Trump's people had gathered.
They attempted to bait the counter-protester into
attacking, shouting insults such as, ``Your mother's a whore,''
and accusing him of hiding behind the cops. Eventually, enough
MPD members had gathered to move along the crowd who continued
eastbound toward the Capitol Building, and the counter-
protester departed northbound on 10th Street.
Returning to my post, I continued to monitor the radio. I
could hear Commander Glover leading the defense efforts at the
Capitol as the protesters began their transition from peaceful
assembly into terrorism. I became agitated and wished we could
move in to support, as I could hear the increasing desperation
of the commander's voice, yet we still had to wait for our
orders to change, and eventually they did.
At approximately 1:30 p.m., the commander authorized rapid
response platoons to deploy their hard gear and respond to the
Capitol, including CDU-42.
The last thing I remember hearing over the air before
departing for the Capitol Grounds was confirmation that our
Explosive Ordnance Disposal team had discovered a device. Given
which unit was being associated with the device, I immediately
realized MPD had discovered a bomb of some type near the
Capitol. This thought was never far from my mind for the rest
of the day.
We ran back to our vans and got on our hard gear as quickly
as we could. Navigating alternate routes to avoid the foot
traffic, we drove as close as we could to the Capitol,
disembarking at the northwest side of the Capitol Grounds. We
gave our gear a final check and marched toward the West
Terrace.
The crowd was thinner the further out from the Capitol you
were, so as we marched, the resistance that we initially met
was verbal. A man sarcastically yelled, ``Here come the boys in
blue, so brave.'' Another called on us to ``remember your
oath.'' There was plenty of booing. A woman called us storm
troopers. Another woman, who was part of the mob of terrorists
laying siege to the Capitol of the United States, shouted,
``Traitors.'' More found appeal in this label and shouted
``traitors'' at us as we passed. One man attempted to turn it
into a disyllabic chant. We continued to march.
We had been marching in two columns, but as we got closer
to the West Terrace, the crowd became so dense that in order to
progress, we marched single file with our hands on the
shoulders of the man in front of us in order to avoid
separation. However, as we came close to the terrorists, our
line was divided, and we came under attack.
A man attempted to rip the baton from my hands, and we
wrestled for control. I retained my weapon after I pushed him
back. He yelled at me, ``You're on the wrong team.''
Cut off from our leadership, which was at the front of our
formation, we huddled up and assessed the threat surrounding
us. One man tried and failed to build a rapport with me,
shouting, ``Are you my brother?'' Another takes a different
tact, shouting, ``You will die on your knees.''
I was at the front of our group and determined that we had
to push our way through the crowd in order to join the defense
proper, so I began shouting ``make way,'' as I forged ahead,
hoping that I'm clearing a path for others behind me to follow.
However, as I looked back, I saw that the rest of the group
came under attack and were unable to follow.
The crowd attempted to physically bar the rest of the
platoon from following. I backtrack and started pulling the
terrorists off my team from their backpacks and their collars.
Around this time, one of the terrorists who had scaled the
scaffolding that adorned the Capitol at the time threw
something heavy down at me and struck me in the head,
disorienting me. I suspect this resulted in the likely
concussion I dealt with in the weeks after.
Another man attempted to disarm me of my baton, and again,
we wrestled for control. He kicked me in my chest as we went to
the ground. I was able to retain my baton again, but I ended up
on my hands and knees and blind. The medical mask I was wearing
at the time to protect myself from the coronavirus was pulled
up over my eyes so I couldn't see. I braced myself against the
impact of their blows and feared the worst. Thankfully, my
platoon had repelled their own attackers and got me back on my
feet.
The crowd start chanting ``U-S-A'' at us, and we struck out
again for the West Terrace. I led the charge through the midst
of crowd control munitions, explosions, and smoke engulfing the
area. Terrorists were breaking apart the metal fencing and bike
racks into individual pieces, presumably to use as weapons.
Thankfully, we made it to the secondary defense line on the
West Terrace that MPD and Capitol Police were managing to hold.
The rest of my platoon got behind the line, and we could take
stock of the situation.
I realized that back during the previous assault, someone
had stolen my radio. From that point on, I was in the dark as
to our current status, when reinforcements would arrive.
Terrorists were scaling the scaffolding on both our sides
of the tower that was in front of us and attempting to breach
the waist-high metal fencing that was the only barrier we had
aside from ourselves.
The sea of people was punctuated throughout by flags,
mostly variations of American flags and Trump flags. There were
Gadsden flags. It was clear the terrorists perceived themselves
to be Christians. I saw the Christian flag directly to my
front. Another read, ``Jesus is my savior. Trump is my
President.'' Another, ``Jesus is king.'' One flag read, ``Don't
give up the ship.'' Another had crossed rifles beneath a skull
emblazoned with the pattern of the American flag.
To my perpetual confusion, I saw the thin blue line flag,
the symbol of support for law enforcement--more than once--
being carried by the terrorists as they ignored our commands
and continued to assault us. The acrid sting of CS gas, or tear
gas, and OC spray, which is mace, hung in the air as the
terrorists threw our own CS gas canisters back at us and
sprayed us with their own OC, either that they bought
themselves or stole from us. Later, I learned at least one of
them was spraying us in the face with wasp spray.
The terrorists alternated between attempting to break our
defenses and shouting at or attempting to convert us. Men
alleging to be veterans told us how they had fought for this
country and were fighting for it again. One man tried to start
a chant of ``4 more years.'' Another shouted, ``Do not attack
us, we're not Black Lives Matter,'' as if political affiliation
is how we determine when to use force.
A man in a QAnon hoodie exclaims, ``This is the time to
choose which side of history to be on.'' A man whose shirt
read, ``God, guns, and Trump'' stood behind him silently,
holding a Trump flag.
A new man came to the front and fixated on me, continually
berating me, telling me to take off my gear and give it to him
to show solidarity with ``We the People,'' or, ``We're going to
run over you.'' His voice cracked with the strain and the
volume of his threats. He continued, ``Do you think your little
peashooter guns are going to stop this crowd? No. We're going
in that building.''
Eventually, there is a surge in the crowd, the fence
buckled and broke apart, and we were unable to hold the line. A
chaotic melee ensued. Terrorists pushed through the line and
engaged us in hand-to-hand combat. Several attempted to knock
me over and steal my baton. One latched on to my face and got
his thumb in my right eye, attempting to gouge it out. I cried
out in pain and managed to shake him off. I managed to shake
him off before any permanent damage was done.
I couldn't fully engage anyone; for the moment I do is when
another 20 terrorists move in to attack while my hands are
full. It was all we could do to keep ourselves on our feet and
continue to fall back. I was sprayed with a fire extinguisher,
and a red smoke grenade burns at our feet.
In the fight, a terrorist is knocked to the ground and his
jacket rides up, exposing a large hunting knife on his belt. I,
along with several other officers, piled on him while another
removed the knife from his person. He regained himself unharmed
and shouts indignantly, ``What are you doing? What are you guys
doing?''
At this point, the terrorists had claimed most of the
western terrace, cornering myself and other officers on the
southern edge. We found a side stair off of the terrace up to
an upper landing, followed by more stairs up and inside.
Inside the Capitol Building, officers walked through the
halls briefly until they found a place to sit, decontaminate
their faces of OC and CS, and take a quick breather. I followed
suit. Someone had managed to find a package of water bottles
and was passing them out. I washed off my face as best I could,
rinsed out my mouth, and drank the rest.
I took the opportunity of relative safety to don my gas
mask. Not long afterward, I heard someone calling for officers
to move to assist. I steeled myself for another round and
descended the stairway into a long hallway filled with smoke
and screams.
The Capitol Building is labyrinthine, but judging from the
sound of intense combat, I could tell this hallway led outside
to where the terrorists had forced our retreat. Officers were
stacked deep, but every so often, one would fall back from the
front line nursing an injury or struggling to breathe, and
those who remained would take a step forward. It was a battle
of inches, with one side pushing the other a few and then the
other side regaining their ground.
At the time, I, and I suspect many others in the hallway,
did not know that the terrorists had gained entry into the
building by breaking in doors and windows elsewhere, so we
believed ours to be the last line of defense before the
terrorists had true access to the building and to potentially
our elected representatives.
Eventually, it was my turn in the meat grinder that was the
front line. The terrorists had a wall of shields that they had
stolen from officers as well as stolen batons, what other
armaments they brought. Even during this intense contest of
wills, they tried to convert us to their cult.
One man shouted, ``We all just want to make our voices
heard, and I think you feel the same. I really think you feel
the same,'' all while another man attempts to batter us with a
stolen shield.
Another man, like many others, didn't seem to appreciate
that this wasn't a game. He fought his way across the lawn, up
the steps, through the western terrace, all the OC and CS gas,
and at the front line of this final threshold was asking us to
hold on because he has asthma.
The two sides were at a stalemate at a metal door frame
that sat in the middle of the hallway. At the front line, I
inserted myself so the frame was at my back, in an effort to
give myself something to brace against and provide additional
strength when pushing forward. Unfortunately, soon after I
secured this position, the momentum shifted, and we lost the
ground that got me there. On my left was a man with a clear
riot shield stolen during the assault. He slammed it against me
and, with all the weight of the bodies pushing behind him,
trapped me.
My arms were pinned and effectively useless, trapped
against either the shield on my left or the door frame on my
right. With my posture granting me no functional strength or
freedom of movement, I was effectively defenseless and
gradually sustaining injury from the increasing pressure of the
mob.
Directly in front of me a man seized the opportunity of my
vulnerability, grabbed the front of my gas mask and used it to
beat my head against the door. He switched to pulling it off my
head, the straps stretching against my skull and straining my
neck. He never uttered any words I recognized but opted instead
for guttural screams. I remember him foaming at the mouth.
He also put his cell phone in his mouth so that he had both
hands free to assault me. Eventually, he succeeded in stripping
away my gas mask, and a new rush of exposure to CS and OC spray
hit me. The mob of terrorists were coordinating their efforts
now shouting ``heave-ho,'' as they synchronized pushing their
weight forward, crushing me further against the metal door
frame.
A man in front of me grabbed my baton that I still held in
my hands, and in my current state I was unable to retain my
weapon. He bashed me in the head and face with it, rupturing my
lip and adding additional injury to my skull.
At this point, I knew I couldn't sustain much more damage
and remain upright. At best, I would collapse and be a
liability to my colleagues; at worst, be dragged out into the
crowd and lynched. Unable to move or otherwise signal the
officers behind me that I needed to fall back, I did the only
thing that I could do and screamed for help.
Thankfully, my voice was heard over the cacophony of yells
and the blaring alarm. The officer closest to me was able to
extricate me from my position and another helped me fall back
to the building again. I had found some more water and
decontaminated my face as best I could. I don't know how long I
waited in the halls for, but soon after I got back on my feet,
I went to where the fight was again. Until reinforcements
arrived, every able body made a difference.
Without my gas mask, I was afraid I'd be a liability in the
hallway, so I took the exit outside of the upper landing above
the West Terrace. I found a police line being held and the
terrorists encircling us much like on the West Terrace Lower.
It was getting later in the day, however, and it appeared we
weren't the only ones getting tired. It seemed most of the mob
was content to yell rather than try and break our line again.
After some time of guarding the upper landing, I saw
reinforcements arrive from the south. I'm not sure which law
enforcement agency it was, but I turned to them and I started
clapping, as it was a sign that badly needed help was starting
to finally arrive.
Soon after that, I started feeling the effects of the day
taking their toll and went back inside to rest. Gradually, all
the members of CDU-42 gathered in the room known as the Capitol
Crypt. We checked on each other and convalesced, glad to see
each other in one piece.
Despite our exhaustion, we would have ran out into the
fight again should the need have arisen. Thankfully, as the day
wore on, more and more resources had arrived at the Capitol to
drive off the terrorists. We stayed in the Crypt until quite
late.
Even after we were allowed to leave the grounds, we didn't
get to go home. Those who needed immediate medical attention
took a van to the local hospital, while the rest of us parked
near the city center until the city was deemed secure enough
for us to check off. I believe we finally got that message
around 1 a.m. the following morning. We drove back to the
Fourth District and from there went home.
Thank you for letting me testify.
Chairman Thompson. Thank you very much for your testimony.
I now recognize Officer Dunn to summarize his testimony.
Officer Dunn. \4\ Chairman Thompson, Members of the Select
Committee, thank you for the opportunity today to give my
account regarding the events of January 6, 2021.
---------------------------------------------------------------------------
\4\ Officer Dunn's prepared statement is included in the Appendix
beginning on p. 63.
---------------------------------------------------------------------------
From my first-hand experience as a Capitol Police Officer
directly involved in those events, and still hurting from what
happened that day, I'm providing this testimony solely in my
personal capacity and not as a representative of the United
States Capitol Police.
Before I begin, I'd like to take a moment of my time to ask
for a moment of silence for my fallen colleague, Officer Brian
Sicknick, who died from injuries he sustained in the line of
duty defending the Capitol of our beloved democracy.
Thank you.
I reported for duty at the Capitol as usual early on the
morning of January 6th. We understood that the vote to certify
President Biden's election would be taking place that day and
protests might occur outside the Capitol, but we expected any
demonstrations to be peaceful expressions of First Amendment
freedoms, just like the scores of demonstrations we had
observed for many years.
After roll call, I took my overwatch post on the East Front
of the Capitol standing on the steps that led up to the Senate
Chamber. As the morning progressed, I did not see or hear
anything that gave me cause for alarm. But around 10:56 a.m., I
received a text message from a friend forwarding a screen shot
of what appeared to be the potential plan of action, very
different from a peaceful demonstration.
The screen shot bore the caption: ``January 6th--Rally
Point--Lincoln Park,'' and said the objective was ``THE
CAPITOL.'' It said, amongst other things, that ``Trump has
given us marching orders,'' and to ``keep your guns hidden.''
It urged people ``to bring . . . your trauma kits'' and ``gas
masks'' to ``[l]ink up early in the day'' in ``6-12 man
teams.'' It indicated there would be ``time to arm up.''
Seeing that message caused me concern. To be sure, looking
back now, it seemed to foreshadow what happened later. At the
time, though, we had not received any threat warnings from our
chain of command. I had no independent reason to believe that
violence was headed our way.
As the morning progressed and the crowd of protesters began
to swell on the east side of the Capitol, many displaying Trump
flags, the crowd was chanting slogans like ``Stop the steal,''
and ``We want Trump.'' But the demonstration was still being
conducted in a peaceful manner.
Earlier that afternoon, Capitol Police dispatch advised all
units over the radio that we had an active 10-100 at the
Republican National Committee nearby: 10-100 is police code for
a suspicious package, such as a potential bomb. That radio
dispatch got my attention, and I started to get more nervous
and worried, especially because the crowds on the East Front of
the Capitol were continuing to grow.
Around the same time, I started receiving reports on the
radio about large crowd movements around the Capitol coming
from the direction of The Ellipse to both the West and East
Fronts of the Capitol. Then I heard urgent radio calls for
additional officers to respond to the west side and an
exclamation, a desperate voice, that demonstrators on the west
side had breached the fence. Now it was obvious that there was
a direct threat to the Capitol.
I quickly put on a steel chest plate, which weighs
approximately 20 pounds, and carrying my M-4 rifle, sprinted
around the north side of the Capitol to the West Terrace and
the railing of the inaugural stage, where I had a broad view of
what was going on.
I was stunned by what I saw. What seemed like a sea of
people, Capitol Police Officers and Metropolitan Police
Officers, MPD, were engaged in desperate hand-to-hand fighting
with rioters across the west lawn.
Until then, I had never seen anyone physically assault
Capitol Police or MPD, let alone witness mass assaults being
perpetrated on law enforcement officers. I witnessed the
rioters using all kinds of weapons against officers, including
flagpoles, metal bike racks that they had torn apart, and
various kinds of projectiles. Officers were being bloodied in
the fighting. Many were screaming, and many were blinded and
coughing from chemical irritants being sprayed in their faces.
I gave decontamination aid to as many officers as I could,
flushing their eyes with water to dilute the chemical
irritants.
Soon thereafter, I heard, ``Attention all units, the
Capitol has been breached,'' and that rioters were in various
places inside the building. At that point, I rushed into the
Capitol with another officer, going first to the basement on
the Senate side where I'd heard an MPD officer needed a
defibrillator.
After returning outside to the West Terrace to assist the
officers, I went back into the Capitol and up the stairs toward
the Crypt. There I saw rioters who had invaded the Capitol,
carrying a Confederate flag, a red MAGA flag, and a ``Don't
Tread on Me'' flag.
I decided to stand my ground there to prevent any rioters
from heading down the stairs to the Lower West Terrace
entrance, because that's where officers were getting
decontamination aid and were particularly vulnerable.
At the top of the stairs, I confronted a group of
insurrectionists, warning them, do not go down those steps. One
of them shouted, ``Keep moving, patriots.'' Another displayed
what looked like a law enforcement badge and told me, ``We're
doing this for you.'' One of the invaders approached me like he
was going to try to get past me and head down the stairs. I hit
him, knocking him down.
After getting relieved by other officers in the Crypt, I
took off running upstairs toward the Speaker's Lobby and helped
the plainclothes officer who was getting hassled by
insurrectionists. Some of them were dressed like members of a
militia group, wearing tactical vests, cargo pants, and body
armor. I was physically exhausted, and it was hard to breathe
and to see because of all the chemical spray in the air.
More and more insurrectionists were pouring into the area
by the Speaker's Lobby near the Rotunda, and some wearing MAGA
hats and shirts that said, ``Trump 2020.'' I told them to just
leave the Capitol, and in response they yelled, ``No, man, this
is our house.'' ``President Trump invited us here.'' ``We're
here to stop the steal.'' ``Joe Biden is not the President.''
``Nobody voted for Joe Biden.''
I'm a law enforcement officer, and I do my best to keep
politics out of my job, but in this circumstance, I responded,
``Well, I voted for Joe Biden. Does my vote not count? Am I
nobody?''
That prompted a torrent of racial epithets. One woman in a
pink MAGA shirt yelled, ``You hear that, guys? This nigger
voted for Joe Biden.'' Then the crowd, perhaps around 20
people, joined in screaming, ``Boo, fucking nigger.'' No one
had ever, ever called me a nigger while wearing the uniform of
a Capitol Police Officer.
In the days following the attempted insurrection, other
Black officers shared with me their own stories of racial abuse
on January 6th. One officer told me he had never in his entire
40 years of life been called a nigger to his face, and that
streak ended on January 6th. Yet, another Black officer later
told me he had been confronted by insurrectionists in the
Capitol who told him, ``Put your gun down and we'll show you
what kind of nigger you really are.''
To be candid, the rest of the afternoon is a blur, but I
know I went throughout the Capitol to assist officers who
needed aid and help expel more insurrectionists. In the Crypt,
I encountered Sergeant Gonell, who was giving assistance to an
unconscious woman who had been in the crowd of rioters on the
west side of the Capitol. I helped to carry her to the area of
the House Majority Leader's Office where she was administered
CPR.
As the afternoon wore on, I was completely drained, both
physically and emotionally, and in shock and in total disbelief
over what had happened. Once the building was cleared, I went
to the Rotunda to recover with other officers and share our
experiences from what happened that afternoon. Representative
Rodney Davis was there offering support to officers, and when
he and I saw each other, he came over and he gave me a big hug.
I sat down on a bench in the Rotunda with a friend of mine,
who is also a Black Capitol Police Officer, and told him about
the racial slurs I endured. I became very emotional and began
yelling, how the blank could something like this happen? Is
this America? I began sobbing. Officers came over to console
me.
Later on January 6th, after order and security had been
restored in the Capitol through the hard work and sacrifices of
law enforcement, Members took the floor of the House to speak
out about what had happened that day. Among them was House
Minority Leader Kevin McCarthy, who, along with my fellow
officers, I had protected that day and will protect today and
tomorrow--I had protected that day and will protect today and
tomorrow.
The Minority Leader, to his great credit, said the
following to the House: ``The violence, destruction, and chaos
we saw earlier was unacceptable, undemocratic, and un-American.
It was the saddest day I have ever had serving in this
institution.''
Members of this Select Committee, the Minority Leader was
absolutely right how he described what took place in the
Capitol. For those of us in the Capitol Police, who serve and
revere this institution and who love the Capitol Building, it
was the saddest day for us as well.
More than 6 months later, January 6th still isn't over for
me. I've had to avail myself of multiple counseling sessions
from the Capitol Police Employee Assistance Program, and I am
now receiving private counseling therapy for the persistent
emotional trauma of that day. I've also participated in many
peer support programs with fellow law enforcement officers from
around the United States.
I know so many other officers continue to hurt both
physically and emotionally. I want to take this moment to speak
to my fellow officers about the emotions they are continuing to
experience from the events of January 6th. There's absolutely
nothing wrong with seeking professional counseling. What we
went through that day was traumatic, and if you are hurting,
please take advantage of the counseling services that are
available to us.
I also respectfully ask that this Select Committee review
the available resources--the services available to us and
consider whether they are sufficient enough to meet our needs,
especially with respect to the amount of leave that we are
allowed.
In closing, we can never again allow our democracy to be
put in peril as it was on January 6th. I thank the Members of
the Select Committee for your commitment to determine what led
to disaster at the Capitol on January 6th, what actually took
place that day, and what steps should be taken to prevent such
an attack on our democracy from ever happening again.
I also want to thank and acknowledge my brothers and
sisters in blue who fought alongside me on January 6th to
protect our democracy. Each of you is a hero, and it is my
honor to serve with you each and every day.
I'd like to thank the American people for all of the
support that they have provided these past several months to me
and my fellow officers.
Last, to the rioters, the insurrectionists, and the
terrorists of that day, democracy went on that night and still
continues to exist today. Democracy is bigger than any one
person and any one party. You all tried to disrupt democracy
that day and you all failed.
Thank you again for the opportunity to testify, and I would
be happy to answer any questions that you may have.
Chairman Thompson. Thank you very much.
I thank all the witnesses for their testimony.
The rules we established allowed you the opportunity to
tell your story. There is no question about it; you have done
it in your own words. We appreciate it. So, what we will do now
is begin our questioning of you.
I now recognize myself for questions.
At the time of the attack on the Capitol, I was in the
gallery observing the proceedings on the House floor. While
Members of Congress were being protected by the police, you,
the patriots protecting the Capitol in our very democracy, were
being attacked by the mob outside.
I want to learn more about what you did and what you
witnessed. Officer Fanone, as a narcotics officer, you weren't
supposed to be at the Capitol on January 6th. Is that right?
Officer Fanone. Yes, sir, that's correct.
Chairman Thompson. What prompted you to come to the
Capitol?
Officer Fanone. I mean, I was listening to the radio
transmissions, specifically those coming from now-Commander
Robert Glover, who was the on-scene commander. If you've
listened to those transmissions, he identifies himself as
Cruiser 50.
I heard things that I had never heard before in my law
enforcement career. In addition to the numerous distress calls
or 10-33s that I heard, which are, while not commonplace, also
not uncommon in policing, I heard things like, you know, the
declaration of a city-wide 10-33, which in my career, to my
recollection, has only been utilized, in addition to the 9/11
attacks, on the Navy Yard attack. So, I found that particularly
distressful.
Also, you could hear the tone of the individual officer's
voices. They were scared. They were, you know, clearly
outnumbered and being violently assaulted.
Chairman Thompson. Thank you. So, basically, the radio
traffic, the 10-33 signal on the radio, and your basic law
enforcement instinct said your fellow comrades needed help, and
therefore you made your way, along with your friend, to the
Capitol?
Officer Fanone. Yes, sir.
Chairman Thompson. So, you went anyway. Let me thank you
for that. I understand a number of other people did the same.
Officer Hodges, we've seen the harrowing video of you being
crushed in a doorway as you bravely fought to keep the mob from
breaching the Capitol. Many of your fellow officers' acts of
heroism were not captured on video and are not therefore known
to the public. Can you please share with the Committee other
acts of heroism by your colleagues on January 6th that you're
aware of?
Officer Hodges. Absolutely. One of my sergeants, Sergeant
Brian Peake, while fighting, maintained control over the
barricades on the West Terrace, was struck by a rioter and
fractured and severely lacerating his right index finger. He
kept in the fight for several more hours after that and just
put some tape on it, a napkin, and went back to work. He was
there for several hours before finally accepting medical evac.
He ended up having to have the tip of his finger removed.
Another officer who was out there in the fight with us,
he--much like myself--he had a large, heavy object thrown and
struck his head. He wasn't as lucky as me, though. He has
suffered lost time from that day, and he remains still out on
medical leave. Even today he has not returned to work, but at
the time he was still fighting.
Another officer, who was fought on the West Terrace and in
the tunnels, instrumental to the defense, after being
completely soaked with OC spray, was shocked several times by a
cattle prod one of the terrorists brought with them.
When I went over my testimony--my opening statement before,
I mentioned that we were attacked outside the second area-of-
defense line on the West Terrace, and after we rallied there,
we continued onward. I know that another officer found a
Capitol Police Officer who was being dragged out into the
crowd, and he was unable to signal to us what was going on. So,
he charged in there by himself and got that officer back out of
there and in the process hyperextended his knee and took
several other injuries.
You know, The Washington Post and Carnegie Mellon
University have estimated that there were about 9,400
terrorists out there, and I would say we had about 150, 175
officers. So, any one of them could tell you any amounts of
heroic acts or injuries they sustained, but these are just a
few that I know of.
Chairman Thompson. Thank you very much.
Officer Gonell, you talked about your tour in Iraq and what
have you--and thank you for your service. Can you give the
Committee a sense of comparing that tour and experiences with
what you experienced on January 6th?
Sergeant Gonell. Sure. Back when I was in Iraq and sometime
on a convoy mission to provide mutual support or taking care
packages or whatnot to my other units in detachment--we went
through roadside bomb-infested IEDs, whatnot, convoys. My fears
were minimal around that time. It was not as constant. I know
we knew at that time that we could run over an IED and that was
it, but at least we knew that we were in a combat zone. Here,
in our country, in our very own Capitol, we are being attacked.
Not once but multiple times we had----
Chairman Thompson. Can you pull the microphone to you just
a little bit?
Sergeant Gonell. Oh, sorry. Not only we were attacked one
time, but it was multiple times, over and over, different
people. They hit us and then they got tired of hitting us and
then they switch, somebody else, rotating in and out.
As my colleagues also have said, we were at the lowest
entrance tunnel, and we didn't have a chance to rotate
ourselves until later on, like after an hour and a half later.
So, whoever was there, we were fighting for our life. We were
fighting to protect all of you.
In our mind, that time, at that entrance, that was it. That
was the point of breach, and we were not letting them in.
They tried to convert us. They tried to persuade us to let
them in, yelling, and then once they saw that we were not doing
that, they continued to attack us even more, and it was
nonstop.
So, my time compared to Iraq, totally different. This is
our own citizens, people who we swore an oath to protect, but
yet they are attacking us with the same flag that they claim to
represent. It was bad.
Chairman Thompson. Thank you.
Officer Dunn, you talked about being called the N-word, you
talked about being talked about like you've never heard before,
and you talked about sharing comments from your other
colleagues, as well as the seeing of the Confederate flag and
other things carried through the Capitol.
As an African-American law enforcement officer, can you
give us, this Committee and those who are watching, how you
felt defending the Capitol on that day being called that and
seeing the symbols of the Confederacy going through the Capitol
at the same time?
Officer Dunn. Yes, sir. Thank you for your question. To be
frank, while the attack was happening, I didn't view it and I
wasn't able to process it as a racial attack. I was just trying
to survive that day and get home.
When I did have a moment to process it, I think that's in
the Rotunda where I became so emotional, because I was able to
process everything that happened, and it was just so
overwhelming. It's so disheartening and disappointing that we
live in a country with people like that, that attack you
because of the color of your skin just to hurt you. Those words
are weapons.
Thankfully, at the moment, it didn't hinder me from doing
my job, but once I was able to process it, it hurt. It hurt
just reading it now and just thinking about it, that people
demonize you because of the color of your skin, when my blood
is red, I'm an American citizen, I'm a police officer, I'm a
peace officer, I'm here to defend this country, defend
everybody in this building, not just the Members, all the
staff, guests, everybody.
It just hurts that we have people in this country that
resort to that regardless of your actions and what you desire
to do to make a difference out there. It's disheartening.
Chairman Thompson. Thank you. But because of your heroism
on that day, lives were saved, and our democracy was preserved,
in large part because you gave your all, all of you, for that
day on January 6th. I assure you this Committee will ensure
there is a comprehensive account of your heroic acts of that
day, and your testimony this morning is an essential part of
that record. Thank you for your service to this country and for
coming before us today.
The Chair now recognizes Members for questions they may
wish to ask the witnesses. The gentlewoman from Wyoming, Ms.
Cheney, is recognized.
Ms. Cheney. Thank you very much, Mr. Chairman.
Again, thank you to all of our witnesses for your heroism
and your bravery that day, and also for being here today and
telling your story. I certainly join the Chairman and every
Member of this Committee in our commitment to making sure we
get to the truth and that those who did this are accountable.
Officer Gonell, I'd like to ask you, you describe in your
testimony that it was--you said it was like a medieval
battlefield, that what you were subjected to that day was
something like a medieval battlefield. You said, ``We fought
hand-to-hand and inch by inch to prevent an invasion of the
Capitol by a violent mob intent on subverting our democratic
process.''
Is it the case that as you were fighting there, you were
not aware that the Capitol had been breached elsewhere? I
believe you said that you really thought that was--you were the
last line of defense. Is that right?
Sergeant Gonell. That is correct, ma'am.
Ms. Cheney. So, Officer Gonell, when you----
Sergeant Gonell. Sergeant.
Ms. Cheney [continuing]. Think about that and share with us
the vivid memory of the cruelty and the violence of the assault
that day, and then you hear former President Trump say, ``It
was a loving crowd. There was a lot of love in the crowd,'' how
does that make you feel?
Sergeant Gonell. It's upsetting. It's a pathetic excuse for
his behavior for something that he himself helped to create,
this monstrosity. I'm still recovering from those hugs and
kisses that day that he claimed that so many rioters,
terrorists were assaulting us that day. If that was hugs and
kisses, then we should all go to his house and do the same
thing to him.
To me, it's insulting, it's demoralizing, because
everything that we did was to prevent everyone in the Capitol
from getting hurt. What he was doing, instead of sending the
military, instead of sending the support, or telling his
people, his supporters to stop this nonsense, he egged them to
continue fighting.
I was in the Lower West Terrace fighting alongside these
officers, and all of them--all of them--were telling us,
``Trump sent us.'' Nobody else. There was nobody else. It was
not Antifa. It was not Black Lives Matter. It was not the FBI.
It was his supporters that he sent them over to the Capitol
that day. He could have done a lot of things; one of them was
to tell them to stop.
He talks about sacrificing--sacrifices, whatnot; the only
thing that he has sacrificed is the institutions of the country
and the country itself only for his ego, because he wants the
job but he doesn't want to do the job. That's a shame on him,
himself.
Ms. Cheney. Thank you.
Officer Fanone, you talked in your testimony about the fact
that the line that day was the seat of American democracy, was
the seat of our Government. Can you talk about, as you think
now about what was under threat, first of all, did you have a
sense at the time, as you were going through the battle before
the horrific violence happened to you, of the nature of the
gravity of the threat that we were facing, that the line was,
in fact, the seat of American democracy?
Officer Fanone. Well, my response that day really was based
off of my obligation as a police officer to not only protect
the lives of the Members of Congress and their staff but also
to my fellow officers. The politics of that day really didn't
play into my response at all.
Ms. Cheney. Thank you.
Officer Hodges, in your testimony, you talk about when you
were at The Ellipse, and you mentioned the significant number
of men dressed in tactical gear attending the gathering,
wearing ballistic vests, helmets, goggles. When you saw that,
was that something that you had anticipated at all? Could you
just tell us more about that crowd there at The Ellipse, the
extent to which you saw people who clearly were in military or
paramilitary garb?
Officer Hodges. It was absolutely a source of concern. Like
I said, they had outer carrier vests designed to carry
ballistic shielding, helmets, goggles, face masks, backpacks
filled with unknown objects. I couldn't get a count and we
couldn't stop and search everyone, so I don't know how many
there were. But I know that, it was obviously a concern of
mine.
Ms. Cheney. Thank you very much.
Then, finally, Officer Dunn, you mentioned the text message
that you received, and you expressed some surprise. You
mentioned that you had not seen any intelligence that would
have led you to believe that we should expect that kind of
violence. Could you elaborate on that a little bit?
Officer Dunn. Yes, ma'am. We were expecting civil
disobedience, as we do at the Capitol, at least that was what
was relayed to us; a couple of arrests, name calling,
unfriendly people, but nowhere near the level of violence or
even close to it like that we experienced.
When I received the text messages, it made the hairs on my
neck rise. But since our chain of command had not told us to
prepare for any of these levels of violence, I was just like,
okay, whatever. Like, I've been here--I start year 14 in
November--and I've dealt with hundreds of protests where people
get arrested and for peaceful First Amendment protests.
Everybody has the right to protest. Okay. Do what you do, and
we'll arrest you if you break the law, and we'll go home later
that night. It was a lot different than that, but I was not
alerted to the level of violence. Like, the text messages I got
foreshadowed that looking back, but, no, we were not prepared
for what we faced that day.
Ms. Cheney. Thank you.
Mr. Chairman, I'd like to ask unanimous consent to enter
that complete text message into the record.
Chairman Thompson. Without objection, so ordered.
Ms. Cheney. Thank you.
[The information follows:]
Ms. Cheney. Again, I would just like to express my deep
gratitude for what you all did to save us, and it won't be
forgotten, and we will get to the bottom of this. Thank you
very much.
With that, I yield back.
Chairman Thompson. The gentlelady yields back.
The Chair recognizes the gentlewoman from California, Ms.
Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman.
Thanks to each one of you and your colleagues for what you
did. I was on the floor of the House helping to defend the
voters of Arizona to a challenge to their electors while you
were out trying to keep a violent mob from invading the
Capitol.
So, I really do want to thank you for your tremendous
courage and stamina and heroism, not just for myself; I Chair
the House Administration Committee, and I know how many others
work in this Capitol, not only the staff to the Members of
Congress, but the food service workers who were present and
clerical staff. You saved them as well, and so they also owe
you a debt of gratitude.
I do realize that ultimately the rioters breached the
Capitol, but the time that you kept them out really made a
tremendous difference. You saved the day. You saved the
Constitution, and it made a tremendous difference for our
country.
Officer Dunn, I did hear you about the need for additional
help, and I want to pledge to you that we will work with the
Capitol Police to make sure that the resources, the mental
health unit has the resources that officers need. I'll make
that pledge to you right now.
Officer Dunn. Thank you.
Ms. Lofgren. I would like to ask, Sergeant Gonell, not
everyone knew that you were fighting in the hallway near the
Lower West Terrace on January 6th. Can you tell me what you
went through on that hallway? Then while you were there,
Metropolitan Police arrived to help you out. What difference
did that make?
Sergeant Gonell. Sure, ma'am. Before I start, by no means
am I suggesting that we would go to his house. I apologize for
my outburst.
After we retreated to the Lower West Terrace entrance, it
was rough. It was terrible. Everything that was happening to
us, it was simultaneously, and we didn't have a lot of support.
We had probably like 50 officers at most when we went back in.
Once we were there, we started saying to ourselves, this is it.
This is the entrance where they're going to try to breach.
We're going to hold the line. We're going to do everything
possible, without even coordinating among ourselves.
The few officers who were still carrying shields, we
automatically assumed position in the front. Some of those
shields were taken, ripped apart from the officers' hands. Some
of the officers also got concussed because they were hit with
the same shields they were holding, because that was so
violently taken from them that they were concussed.
There were multiple struggles in terms of fighting. My
shield was round, and I was able to get some strikes, but
because we were in so close quarters, it was hard for us to
even do that. The only thing we were allowed to was push
forward. Whoever has shields stay in the front, and whoever was
in behind the people with the shield, then they were striking
those rioters.
At some point, I fell on the floor on top of some shields,
trying to help and assist some of the officers, and I got
pulled to the crowd. Luckily, I was able to free myself and
stand up.
Later on, the second time I went back to the front, that's
when Officer Hodges was getting trampled. I was getting
trampled, because just the mere force of the rioters pushing
forward and police officers pushing out, we were getting
trampled in the middle. So, it was a very terrible thing that
happened to us, yes.
Ms. Lofgren. Officer Fanone, before I ask you a question,
I'd like to show a brief video clip of some of what you went
through today. I realize this can be difficult to watch, but I
think it's important for the public to see.
Voice. Where is the West Front of the Capitol Building?
Voice. What do you got there?
Voice. 10-33.
Crowd. U-S-A! U-S-A! U-S-A!
Crowd. [unintelligible]
Voice. Come on, MPD!
Voice. Push!
Voice. You've got to fight the right people.
Voice. Push!
Voice. I got you, Mike. That's my hand. You're good.
Voice. Push them back!
Crowd. [unintelligible]
Voice. This is for you guys. This is for you.
Crowd. [unintelligible]
Voice. I've got one.
Voice. You can't do this to me. I've got kids.
Voice. . . . why the fuck?
Voice. We need a medic! We need EMTs now!
Officer Albright. Mike, stay in there, buddy. Mike, it's Jimmy; I'm
here. Mike!
Ms. Lofgren. Almost all of that was from your body camera
footage. Can you walk us through what we've just seen, Officer
Fanone?
Officer Fanone. Well, I believe the first portion of that
video began--that was my body-worn camera footage from the
Crypt area of the Capitol Rotunda. It was there that I first
heard the 10-33, or distress call, come out from the Lower West
Terrace tunnel, which I didn't realize at the time was only a
few hundred yards away from where I was at.
I told my partner, Jimmy Albright, who was there with me,
that there was a 10-33 coming out from the Lower West Terrace.
We tried to get our bearings and figure out which way that
might be. We asked a group of Capitol Police Officers, and they
directed us down a set of stairs. From there, Jimmy and I
walked down to the Lower West Terrace tunnel.
The first thing I remember was seeing a buddy of mine,
Sergeant Bill Bogner, who is an administrative sergeant. He
used to work in my district. Now he works over at the academy.
He was unable to see. He had been sprayed in the face with bear
mace.
I went up to him and told him, ``Hey, it's Fanone.'' I
remember he stretched out his hand to shake mine. That's when
he told me that the guys that were just beyond that set of
double doors had been fighting there for--I believe he said
about 30 minutes. I don't think he realized what time it was
because they had been fighting since around 1 p.m. It was 3
o'clock. So, those guys had been there fighting for 2 hours
unrelieved.
I remember looking up through the set of double doors.
There was glass panes, and you could see the CS gas, like white
powder, still lingering in the air. It was at that point that I
realized I probably should have brought my gas mask.
So, I went through the double doors, and I saw Ramey Kyle,
who was, at the time, a commander with our Criminal
Investigations Division, overseeing all the detectives units.
Like many other officers, sergeants, lieutenants, captains that
day, he self-deployed and found himself commanding a group of
about 30 or 40 officers there in the Lower West Terrace tunnel.
Commander Kyle was having a difficult time breathing. I
remember I followed him back out through the set of double
doors into that initial hallway, as he kind of cleared himself,
straightened himself up. I described it before. I thought he
looked like George Patton.
I remember he put his hat back on and walked right back out
through the doorway into the tunnel, and I followed him. It was
at that point, I think, when I started approaching that group
of officers there defending the doorway that I realized the
gravity of the situation.
My initial thought was these guys looked beat to hell, and,
you know, maybe I could try to get in there and get some guys
some help.
So, I told Jimmy that, you know, we needed to get in there
and try to offer assistance, and that's what we did initially.
We started making our way through the crowd of officers,
yelling out, ``Who needs a break?''
Like I said in my initial testimony, there were no
volunteers. There were officers who identified other colleagues
who were in need of help, and I remember somebody yelling out,
``This guy needs help,'' and handed me that officer. I handed
him off to Jimmy and told him to get him to the back. I
continued to make my way up to the front lines.
Once I got up there, it was the first time I really came
face-to-face with these terrorists. They were dressed in, you
know, clothing adorned with political slogans, ``Make America
Great Again,'' ``Donald Trump 2020,'' things of that nature.
They were wearing military-style clothing, Kevlar vests, Kevlar
helmets. Many of them had gas masks, and quite a few had
shields, which they had taken away from law enforcement
officers, and they were using them to beat us at the front
line.
The first thing I told them was, ``Hey, man, we've got to
get these doors closed. We've got injured officers in here.''
That really seemed to piss those guys off. They became
incredibly violent, and that's when that surge that you watched
in some of the video began. You had a large group at the mouth
of that tunnel entrance trying to push their way through the
officers who were fighting to defend it.
I believe, had they done so or had they accomplished that,
they would have trampled us to death. Most certainly, you would
have had police officers killed.
I fought there at the front for some time. I was yelling
out, you know, trying to inspire some of the other officers
that were up there that were tired, telling them to dig in and
push, and we started to make some progress.
Sergeant Gonell. I remember that.
Officer Fanone. We pushed those guys out of the tunnel, out
through the initial threshold, and I remember thinking to
myself, ``Man, it's good to get some fresh air.'' It was at
that point that I was pulled off the line.
That initial period of time where I was pulled off that
line was kind of a blur. I just remember getting violently
assaulted from every direction and eventually found myself out
probably about 250, maybe 300 feet away from the mouth of the
tunnel where the other officers were at. I knew that I was up
shit creek without a paddle.
I was trying to push guys off of me, create some space. All
the while, I recognized the fact that there were individuals
that were trying to grab a hold of my gun. I remember one of
them distinctly lunging at me time and time again trying to
grab my gun. I heard people in the crowd yelling, ``Get his
gun, kill him with his own gun,'' and words to that effect.
I thought about using my weapon. I believed that there were
individuals in the crowd whose intentions were to kill me. I
came to that conclusion because of the fact that, separated
from these other officers, who were only trying to defend the
Capitol, I no longer posed any type of threat nor was I an
impediment to them going inside of the building, but yet they
tortured me. They beat me. I was struck with a taser device at
the base of my skull numerous times. They continued to do so
until I yelled out that I have kids.
I said that hoping to appeal to some of those individuals'
humanity, and fortunately, a few did step in and intervene on
my behalf.
They did assist me back toward the mouth of the tunnel
entrance, and other officers were then able to rescue me and
pull me back inside. But, at that point, I was unconscious.
Based off the body-worn camera footage, it's believed that I
was unconscious for approximately 4 minutes.
Ms. Lofgren. Thank you, Officer. Thanks to each one of you.
Our country is lucky, really blessed that you are as patriotic
and brave as you are.
I yield back, Mr. Chairman.
Chairman Thompson. The gentlelady yields back.
The Chair recognizes the gentleman from Illinois, Mr.
Kinzinger.
Mr. Kinzinger. Thank you, Mr. Chairman.
Thank you to my colleagues on the Committee.
Thank you to our witnesses. I never expected today to be
quite as emotional for me as it has been. I've talked to a
number of you and gotten to know you.
I think it's important to tell you right now, though. You
guys may individually feel a little broken. You guys all talked
about the effects you have to deal with and you talked about
the impact of that day.
But you guys won. You guys held.
You know, democracies are not defined by our bad days.
We're defined by how we come back from bad days, how we take
accountability for that. For all the overheated rhetoric
surrounding this Committee, our mission is very simple. It's to
find the truth, and it's to ensure accountability.
Like most Americans, I'm frustrated that, 6 months after a
deadly insurrection breached the United States Capitol for
several hours on live television, we still don't know exactly
what happened. Why? Because many in my party have treated this
as just another partisan fight. It's toxic, and it's a
disservice to the officers and their families, to the staff and
the employees on the Capitol complex, to the American people
who deserve the truth, and to those generations before us who
went to war to defend self-governance because self-governance
is at stake.
That's why I agreed to serve on this Committee. I want to
know what happened that day. But, more importantly, I want all
Americans to be able to trust the work this Committee does and
get the facts out there free of conspiracy.
This cannot continue to be a partisan fight. I'm a
Republican. I'm a conservative. But, in order to heal from the
damage caused that day, we need to call out the facts. It's
time to stop the outrage and the conspiracies that fuel the
violence and division in this country. Most importantly, we
need to reject those that promote it.
As a country, it's time to learn from our past mistakes,
rebuild stronger so this never happens again, and then we can
move onward. Serving on this Committee, I'm here to investigate
January 6th not in spite of my membership in the Republican
Party but because of it; not to win a political fight but to
learn the facts and defend our democracy.
Here is what we know: Congress was not prepared on January
6th. We weren't prepared because we never imagined that this
could happen--an attack by our own people fostered and
encouraged by those granted power through the very system they
sought to overturn. That is a lesson. That is not a conspiracy
theory or a counternarrative. We don't blame victims. We go
after the criminals.
Some have concocted a counternarrative to discredit this
process on the grounds that we didn't launch a similar
investigation into the urban riots and looting last summer.
Mr. Chairman, I was called on to serve during the summer
riots as an Air National Guardsman. I condemn those riots and
the destruction of property that resulted, but not once did I
ever feel that the future of self-governance was threatened
like I did on January 6th. There is a difference between
breaking the law and rejecting the rule of law, between a
crime--even grave crimes--and a coup.
As we begin our work today, I want to call this Committee's
attention to the oath of office, an oath not to a party, not to
an individual, but to the Constitution that represents all
Americans. Everyone in elected office knows how hard it can be
sometimes to keep that oath, to preserve, protect, and defend
the Constitution of the United States in the forefront of our
minds, what with the political pressures and reelections always
around the corner.
But, Mr. Chairman, our witnesses today, like every law
enforcement officer across the country, took the same oath we
did. On January 6th, the temptation to compromise their oaths
didn't come in the form of a campaign check or a threat from
leadership or an all-caps tweet. It came in the form of a
violent mob.
While we on this dais were whisked away from the danger,
heroes like those here stood their posts before it and paid the
price, and we are only here now because you guys were here
then.
Therefore, it's altogether fitting that we begin our
investigation of January's lawless attack against the
Constitution with these four men who made sure that the attack
did not succeed, with those who helped to ensure that democracy
held. I think it's important to remember that you are four with
stories, but there are hundreds with stories as well that you
represent, where you sit.
Officer Fanone, I know your passion is to make sure that
D.C. Metro gets the credit it's due, and I thank you. I know
that you represent the hundreds of officers, like Officer
Hodges, that responded to that call.
What I want to ask: Does this feel like old history to any
of the four of you? Sometimes we hear out there: It's time to
move on, right? It's been 6 whole months, time to move on.
Does this feel like old history and time to move on? You
can just say yes or no.
Sergeant Gonell. No, sir.
Officer Fanone. Nope.
Officer Hodges. There can be no moving on without
accountability. There can be no healing until we make sure this
can't happen again.
Officer Dunn. I echo that. How do you move on without
correcting what happened?
Mr. Kinzinger. Let me ask you all--one of the narratives
out there--and, Officer Fanone, it triggered something in your
testimony when you said it. So, there has been this idea that
this was not an armed insurrection, as if somehow that is
justification for what happened. We know the hugs and kisses.
We know it was BLM and Antifa, right? Of course, then you
would, I'm sure, want to investigate that if that's the case.
Now we've heard maybe the FBI actually had started this.
But one of the ones that has always held was that this was not
an armed insurrection.
Officer Dunn, you mentioned that those that stormed the
Capitol were very well-organized and trained. Let me ask you--
and I'll ask actually to all four of you. Officer Hodges, I
know this was part of your job initially before you responded
to the Capitol. If, in the middle of all that melee, you see
somebody with a gun in that crowd, would you be able to go out,
apprehend, arrest them, read them their rights, and go through
that process, or was the mission at the moment survival and
defense of the Capitol?
So, I'm asking: Is it possible that people maybe had guns?
We've seen that actually there were, but this idea that, wow,
people weren't arrested with guns. At the time, it was raw
survival.
We can just start on the left. Let me ask you: What's your
response to that?
Sergeant Gonell. For those people who continue to downplay
this violent attack on our democracy and officers, I suggest
them to look at the videos and the footage, whatnot, because
common things were used as weapons, like a baseball bat, a
hockey stick, a rebar, a flagpole, including the American flag,
pepper spray, bear spray.
So, you name it. You had all these items and things that
were thrown at us and used to attack us. Those are weapons. No
matter--if it is a pen, the way they were using these items, it
was to hurt officers. It was to hurt police officers. Their
intent was not to say, ``Hey, let me go and find the
Republicans or the Democrats in there, or the Independents.''
It was every single body that was here in this building, in the
Capitol, that their intent was to get them out and hurt them.
It would have been a much different outcome had we not
stopped them, especially at the Lower West Terrace entrance.
Even though, at that time, we didn't know that there were other
breaches in the Capitol, our intent was to stop whoever was
trying to come in through that door.
Those weapons that were used, those were common items, but
the way they were using it was as weapons.
Mr. Kinzinger. Let me ask, too, in kind of my final
moments, Sergeant Gonell--Officer Hodges, you were a Virginia
guardsman, I believe--fellow guardsmen?
Officer Hodges. Yes, sir.
Mr. Kinzinger. At any time in your service in the
military--as you know, I'm an Air Guardsman--and, Sergeant
Gonell, you specifically mentioned your time in Iraq. At any
time in your military service, did you change how you defended
the person to your left or right or how you trained with them
based on their political affiliation----
Officer Hodges. No. Not at all.
Mr. Kinzinger [continuing]. Whether it was in a war or
anything?
Officer Hodges. No.
Sergeant Gonell. No, sir. The way I viewed it at the time
was I'm an American, and the person right next to me is an
American, and I would do everything possible for me to defend
him and the country at that time.
Mr. Kinzinger. You guys did that. You guys did that in the
blue.
Sergeant Gonell. Yes, sir.
Mr. Kinzinger. I want to say that is the mission of this
Committee. We may have our deep differences on other policy
issues, but we are all Americans today, and we thank you for
holding that line.
Officer Dunn. Congressman, if I may? If I may respond to
Congressman----
Mr. Kinzinger. Please.
Officer Dunn. When you asked about the armed part, when the
officers--assumed officers--showed me what appeared to be a
police badge, I don't know too many police officers--this is
just me being a police officer for 13 years--that carry their
badge and don't carry a gun with them.
We look on their hips. You see a print. I didn't see that
it was a gun, but a reasonable police officer will believe that
that's a gun on their hip.
Mr. Kinzinger. Just to quickly be specific, a print is
basically what looks like the outline of a gun?
Officer Dunn. That's correct.
Mr. Kinzinger. Thank you, Mr. Chairman.
Thank you, witnesses.
Chairman Thompson. Thank you.
The gentleman yields back.
The Chair recognizes the gentleman from California, Mr.
Schiff.
Mr. Schiff. Thank you, Mr. Chairman.
I was on the House floor from the beginning of the joint
session until the attack and evacuation by the Capitol Police,
and I want to thank you. I'm convinced that one of the lives
you saved that day might very well have been my own. We are all
greatly in your debt. You are all heroes.
Sergeant Gonell, Representative Lofgren asked you about
your experience, and I won't ask you to repeat that. I would
like the public to see, from your perspective, some video, if
you're comfortable with my showing it?
Sergeant Gonell. Yes, that's fine.
Mr. Schiff. If the clerk could roll the video, please.
Crowd. [unintelligible]
Voice. You're going to die tonight.
Voice. You gotta lock `em together. Here, like this. Arms through
these shields. You know how to put your arms? Do we have a hard platoon
guy here?
Voice. Yeah.
Voice. Show them how to lock the shields together and hold the
shields.
Voice. We need an avenue of escape, so wait to lock this one in. Go
ahead.
Crowd. [unintelligible]
Voice. Gas! Gas! Gas! Gas! Gas! Gas!
Crowd. [unintelligible]
Voice. Back up! No, stop! Stop! Stop! Stop!
Crowd. [unintelligible]
Mr. Schiff. Sergeant, in that video, one of the first
things you hear is someone saying, ``You're going to die
tonight.'' You described in your opening statement being
crushed by rioters. You could feel yourself losing oxygen,
thinking this was how your life was going to end, trampled to
death defending the Capitol.
It's hard for any of us to understand what you went through
even though we were there. It's even harder, I think, for
people around the country to understand what that was like.
Can you tell us what you were thinking when you were losing
oxygen and thought that might be the end?
Sergeant Gonell. My rationale there and the way I was
thinking, like we can't let these people in, no matter what,
even if it costs my life. That bloody hand that you saw, that's
me in there. Both my hands were bleeding bad. At no point in
time did I stop, to consider to stop, because the attacks were
so relentless. I was thinking I need to survive this, if
possible, but I'm willing to sacrifice myself to prevent the
attackers from coming in.
I swore an oath to protect the public, the Members of
Congress, and the United States Constitution and whatnot.
That's what I was doing that day, regardless of my personal
safety, along with everybody else who was there that day.
They were calling us traitors, even though they were the
ones committing the treasonous act that day. It is devastating
and demoralizing for people, whoever party it is, to call this
attack and continue to minimize it like nothing happened. It
was an attempted coup that was happening at the Capitol that
day. If it had been another country, the United States would
have sent help.
People need to understand the severity of, and the
magnitude of, the event that was happening that day. We were
all fighting for our lives, to give them--to give you guys--a
chance to go home to your family, to escape. Now the same
people who we helped, the same people who we gave them the
borrowed time to get to safety, now they're attacking us.
They're attacking our characters. They're attacking Officer
Harry's character, people who never served in the military or
in law enforcement. It's a disgrace.
My actions that day was to save you guys, regardless of my
personal safety. I still continue to want to do that today,
tomorrow, and as long as I'm permitted to do it, and if it is
demanded of myself to do that in the future.
Mr. Schiff. Sergeant, this obviously had a deep impact on
you, all of you, but it's also had a big impact on your family.
You described how, when you got home, you couldn't even hug
your wife because you had chemicals all over you. You wanted to
go back. It seems like, no sooner had you gotten home, you
wanted to go back.
Sergeant Gonell. Yes, sir.
Mr. Schiff. I think I read that you said you felt guilty.
Did your wife want you to go back?
Sergeant Gonell. No.
Mr. Schiff. Why did you go back, and what was your
conversation with her about that?
Sergeant Gonell. After I took a shower, I spent about 10
minutes hugging her and my son. I told her, ``I've got to get
some sleep because I've got to go back to work.''
She said, ``No, you're not. You're hurt.''
I said, ``No. I'm still able to continue to carry out my
duties.'' By 8 o'clock, I was already on my way back despite
her concerns for my safety.
My sense of duty for the country, for the Constitution, at
that time was bigger than even my love for my wife and my son.
I put that ahead.
For me, it's confounding that some people who have sworn an
oath, elected officials, including people in the military, that
I seen at the Lower West Terrace fighting against me, they
swore an oath, and they're forgetting about the oath. They're
not putting the country before the party, and that's what
bothers me the most because I, as a former soldier, I know what
that inherits, that oath, and I'm still willing to do that.
We've got people right now in front of the Justice
Department asking to release some of the very same people even
though we are testifying about the trauma and the agony,
everything that happened to us. It's pathetic, and they
shouldn't be elected officials anymore.
Mr. Schiff. Officer Dunn, you described talking to your
fellow Black officer about what you went through and
experiencing those racial epithets. You asked a question, I
think, that I've been haunted by ever since: Is this America?
I'm very interested to know your thoughts on the answer to that
question.
Is this America, what you saw?
Officer Dunn. Well, thank you for your question.
You know, I've done a few interviews before about my
experiences that day, and I said that it was a war that we
fought, and a war is composed of a bunch of different battles.
Everybody, even sitting at this table, fought a different
battle that day, but it was all for the same war.
As Black officers, I believe we fought a different battle
also. The fact that we had our race attacked and just because
of the way we look, you know, to answer your question, frankly,
I guess it is America. It shouldn't be, but I guess that's the
way that things are.
I don't condone it. I don't like it, but, I mean, if you
look at our history, of American history, things are--countries
existed because they beat--they won a war, or colonies and
State lines and boundaries exist because of violence and wars
like--so I guess it sounds silly, but I guess it is American.
But it's not the side of America that I like. It's not the
side that any of us here represent. We represent the good side
of America, the people that actually believe in decency--human
decency. We appeal to just the good in people. That's what we
want to see.
Whether we disagree with how they vote on a bill about
infrastructure, everybody wants the right thing, people to do
okay.
So, that's why I'm glad to see this Committee composed of
Republican Members also. So, that's encouraging. It's
encouraging. So, that's the side of America that I say, yes,
this is America. This is the side that I like and the side that
I acknowledge.
Mr. Schiff. Officer, thank you. I believe in this country,
and I believe in it because of people like you, who understand
what the flag means and what our Constitution means and risk
their lives to defend it.
I'd like to think, as Amanda Gorman so eloquently said,
that we're not broken; we're just unfinished. Because, if we're
no longer committed to a peaceful transfer of power after
elections if our side doesn't win, then God help us. If we deem
elections illegitimate merely because they didn't go our way
rather than trying to do better the next time, then God help
us. If we're so driven by bigotry and hate that we attack our
fellow citizens as traitors if they're born in another country
or they don't look like us, then God help us.
But I have faith because of folks like you.
Adam, I didn't expect this would be quite so emotional
either, but it must be an Adam thing today.
But I'm so grateful to all of you.
With that, Mr. Chairman, I yield back.
Chairman Thompson. The gentleman yields back.
The Chair recognizes the gentleman from California, Mr.
Aguilar.
Mr. Aguilar. Thank you, Mr. Chairman, and Members of the
Committee.
Gentlemen, like my colleagues, I want to extend my
gratitude and appreciation for your service on January 6th and
since then, what you've had to go through.
I was on the House floor, like my colleagues, on the 6th
when I was told that a violent mob had breached the Capitol.
It's because of your service--it's because of you and your
colleagues--that we're here today, because you were literally
the last line of physical defense, laying your life on the line
for democracy.
My time will be limited, so I'll be asking questions of
Officer Hodges and Sergeant Gonell, primarily about the weapons
that you observed and how they were used.
Officer Hodges, you were in a unique position because you
were down Constitution. You were closer to the White House to
start, as you indicated in your testimony. During the morning
and the early afternoon on the 6th, what did you hear
specifically about guns and explosives that had been discovered
by your fellow officers?
Officer Hodges. I was listening on the radio to our gun
recovery unit, working the crowd. What we usually try to do is
wait for the crowd to disperse before making arrests. That way,
we don't set off the crowd, set off a riot. So, I think they
may have identified people of interest that they never got a
chance to address. They were working the crowd to try and
confirm reports of firearms on certain people, but it's also
difficult to do given the nature of the crowd and how many
there were.
When I heard our EOD confirm the existence of a device,
there was only one thing it could be. You know, explosives.
But, in 42, we had our own objective, our own mission, so we
would scan the crowd, but these people--they know how to
conceal their weapons. So, on a big avenue like Constitution,
it's difficult to detect the print or, if it's in a backpack,
there is really not much you can do.
But we continue to scan the crowd and find what we could,
but mostly it was up to our other units to make those
discoveries.
Mr. Aguilar. In response to Representative Cheney, you
talked about the gear that the individuals were wearing. So,
combined with what you saw visually with what you had heard on
the radio about guns, that all kind of led you to give pause
about the next few hours, correct?
Officer Hodges. Absolutely. You know, once we got to the
Capitol and we were fighting, I was wondering, how many more
bombs are there? What's the trigger? Is it going to be a cell
phone? Is it on a timer? How many guns are there in this crowd?
If we start firing, is that the signal to them to set off the
explosives, however many there are in the city? Is that the
signal for them to break out their firearms and shoot back?
So, that's the reason why I didn't shoot anyone and I
imagine why many others didn't, because, like I said before,
there were over 9,000 of the terrorists out there with an
unknown number of firearms, and a couple hundred of us maybe.
So, if that turned into a firefight, we would have lost,
and this was a fight we couldn't afford to lose.
Mr. Aguilar. I want to play a video, and I'd ask that
everyone watching pay attention specifically to the weapons the
rioters were using. You can hear someone yell, ``Get your
machete.'' You can see officers being attacked with flagpoles,
flares, and gas canisters.
If we could roll the video.
Police Radio Transmission. We're still taking rocks, bottles, and
pieces of flag and metal pole.
Police Radio Transmission. Cruiser 50, the crowd is using munitions
against us. They have bear spray in the crowd. Bear spray in the crowd.
Voice. [unintelligible]
Voice. Get your machete. Get your machete.
Voice. [unintelligible]
Voice. Pull back. Pull back.
Voice. [unintelligible]
Mr. Aguilar. Sergeant Gonell, in the video, we just saw
someone throw a large speaker. Was that directed your way?
Sergeant Gonell. I was further inside. That was afterward,
toward the end--before they got clear. When they threw the
speaker at me I was further inside the tunnel.
Mr. Aguilar. What types of weapons did you see used against
your fellow officers?
Sergeant Gonell. Police shields, police baton, the
sledgehammer that you saw on that video, flagpoles, tasers,
pepper spray, bear spray, rebars, bats, PVC pipes, copper
pipes, rocks, table legs broken down, furniture broken down,
the guardrails for the inauguration stage, cones, four-by-four,
any weapons, any items that they could get their hands on that
day.
Mr. Aguilar. You were further down the corridor, but a
speaker was thrown at you, and it hit your foot. Is that
correct?
Sergeant Gonell. Correct, sir.
Mr. Aguilar. We have a photo----
Sergeant Gonell. It was thrown my way, and then, when it
landed, it hit somebody else, and it hit my foot.
Mr. Aguilar. I think we have the photo of your foot here as
well that we'd like to show.
Sergeant Gonell. That is correct.
Mr. Aguilar. Can you tell me how you're doing? You
mentioned in your opening statement about your continued
physical therapy related to the foot. Can you tell me how
you're doing?
Sergeant Gonell. The foot, I had several conditions--one is
fusion on No. 1 metatarsal, tarsal--metatarsal. Then there was
the hammer toe as a result of the hit. Then the second and
third digit also got damage. In order to fix one, they need to
correct the big toe to stabilize. If not, later on in the
future, I would have had the same problem returning.
It is very painful. With a lot of patience and
determination that I had gone through, I still have the same
problems in terms of pain and stiffness, whatnot.
The doctor last week, on Tuesday, told me that I'm going to
need surgery on my shoulder because I have a labrum tear that
has not healed even more than 6 months later. Possibly my
rotator cuff also is going to need some work.
So, you're talking about 8 months to a year more of
physical treatment and rehab.
Mr. Aguilar. Sergeant, you're an immigrant from the
Dominican Republic, a naturalized U.S. citizen, and you
mentioned how individuals had zeroed in on your race that day.
Sergeant Gonell. Yes, sir.
Mr. Aguilar. Can you tell me how that made you feel?
Sergeant Gonell. Before, or right after, MPD arrived with
the fluorescent mountain bike unit, I was on the front line,
and apparently they seen--even through my mask--they saw my
skin color and said, ``You're not even American.''
Regardless whether I was in the military, they don't know
that, but they yelling and saying all these things to me. I
mean, when I heard that, I wasn't even thinking about any
racial stuff. I was like, ``Okay. You don't know that for a
fact,'' so I'm not even entertaining that.
But it's--just like Officer Harry Dunn, it takes time for
you to process that, and you only realize what was happening
after you go back and see it from a different point in time
because I only saw that recently. But, for me, I wasn't even
thinking of it. I'm there to stop them regardless. I'm not
thinking what they were yelling in terms of my skin color or my
race. I know I'm an American former soldier and a police
officer. I didn't take that into account when I was defending
all of you guys.
Mr. Aguilar. Officer Hodges, you characterized the attack
on the Capitol as a white nationalist insurrection.
Can you describe what you saw that led you to label the
attack that way?
Officer Hodges. The crowd was overwhelmingly white males,
usually a little bit older, middle-aged, older, but some
younger. I think, out of the entire time I was there, I saw
just two women and two Asian males. Everyone else was white
males.
They didn't say anything especially xenophobic to me, but
to my Black colleagues and anyone who is not white, and some of
them would try to recruit me. One of them came up to me and
said, ``Are you my brother?''
There are many, many known organizations with ties to white
supremacy who had a presence there, you know, like Three
Percenters, Oath Keepers, that kind of thing. Everyone I've
ever--people who associate with Donald Trump are, I find, more
likely to subscribe to that kind of belief system.
Mr. Aguilar. I want to thank the four of you for taking the
very difficult step of sharing your stories and your
recollections of the threats and violence that you endured. No
one should have to experience what you went through.
This Committee will continue its work to give a complete
accounting of what happened, to protect further officers, and
to amplify the stories that you've shared today.
Thank you so much for being here.
I yield back, Mr. Chairman.
Chairman Thompson. Thank you. The gentleman yields back.
The Chair recognizes the gentlelady from Florida, Mrs.
Murphy.
Mrs. Murphy. Thank you, Mr. Chairman.
Thank you to the witnesses for your testimony today, for
your bravery on January 6th, and for your service to our
country.
I know all of you endured a great deal on January 6th, and
I know we've watched a lot of difficult video in this testimony
so far, but I hope it's okay with you if I show a brief video
of what Officer Hodges experienced that day.
Can you please cue the video?
Voices. [unintelligible]
Voice. Hold it, baby. Hold it, baby.
Voices. [unintelligible]
Voice. Hold it, baby.
Voice. Back up! Back up!
Crowd. [screaming]
Voice. Interlock the shields. Interlock shields.
Voice. Watch out! Watch out!
Voice. Interlock the shields. Shields!
Crowd. Heave-ho. Heave-ho. Heave-ho.
Officer Hodges. [screaming]
Mrs. Murphy. Officer Hodges, I know that must have been
difficult to watch, but I really think it's important for the
American people to see that because that's the beginning of the
kind of accountability that this Committee is committed to in
order for us to do what you said, moving forward as a country.
You know, January 6th was an attack on our democracy. It
was an attack on the peaceful transfer of power, and it was an
attack on this Capitol Building. But it was also an attack on
real people. Most people don't know this, and I don't think
even you know this, but your actions had a profound impact on
me.
So, at 3 p.m. on January 6th, while you were holding back
the mob at the Lower West Terrace entrance, I was holed up with
Congresswoman Kathleen Rice in a small office about 40 paces
from the tunnel that you all were in. That's about from the
distance where I'm sitting here on the dais to that back wall.
From that office, in close proximity to where you all held
the line, I listened to you struggle. I listened to you yelling
out to one another. I listened to you care for one another,
directing people back to the makeshift eyewash station that was
at the end of our hall.
Then I listened to people coughing, having difficulty
breathing. But I watched you and heard you all get back into
the fight. I think Congresswoman Rice and I were the only
Members of Congress to be down there on that Lower West
Terrace.
You know, we had taken refuge in that office because we
thought for sure being in the basement at the heart of the
Capitol was the safest place we could be, and it turned out we
ended up at the center of the storm.
Officer Fanone, you had said, you know, you were 250 feet
off of that tunnel, and you felt certain that they were going
to kill you. Imagine if they had caught the two Members of
Congress that were just 40 feet from where you all were.
I know, Sergeant Gonell and Officer Hodges, you both said
that you didn't realize that other parts of the Capitol had
been breached, but you really felt like you were the last line
of defense. Well, I'm telling you that you were our last line
of defense.
During the exact period of time, Officer Hodges, in that
video where you were sacrificing your body to hold that door,
it gave Congresswoman Rice and I and the Capitol Police
Officers who had been sent to extract us the freedom of
movement on that hallway to escape down the other end of that
hallway. I shudder to think about what would have happened had
you not held that line.
You know, I have two young children. I have a 10-year-old
son and a 7-year-old daughter, and they're the light of my
life. The reason I was able to hug them again was because of
the courage that you and your fellow officers showed that day.
So, just a really heartfelt thank you.
I think it's important for everybody, though, to remember
that the main reason rioters didn't harm any Members of
Congress was because they didn't encounter any Members of
Congress. They didn't encounter any Members of Congress because
law enforcement officers did your jobs that day, and you did it
well.
I think, without you, what would have been a terrible and--
what was a terrible and tragic day--would have been even more
terrible and more tragic.
So, just very grateful for all of you.
Now, I'd like to talk a little bit about that video. You've
talked a little bit about it in your opening statement, but can
you walk us through what is happening in that scene? My
understanding is that is a mix of your body camera as well as
video from other vantage points.
Officer Hodges. That's correct. At the beginning, you see
me walking into the Capitol. That was after we were driven off
of the West Terrace. I think you see me spit on the floor
unfortunately. I was trying to clear my lungs and mouth of all
the CS and OC. You see me preparing my gas mask, donning it,
ready to get back out there.
I followed the noise to the tunnel where it was just, you
know, wall-to-wall people, packed, fighting with everything
they had. It was full of OC and CS gas at the time, and I
believe that the smoke was from a fire extinguisher. You could
see all the residue on the officers who were there.
It's like I said before. You know, they outnumbered us 50-
something to 1, so it didn't matter how many we defeated. We
just had to hold on. We couldn't let anyone through, and they
always had essentially an infinite number of replacements.
They'd say, you know, ``We need fresh patriots up here,'' and
there would be more.
So, we just had to hold until someone came to help.
Like I said, once I got out to the front, I didn't want any
more pressure on the officers behind me, so I tried to insert
myself to where I could use the door frame, brace myself, and
push forward so I could take back more territory.
Unfortunately, that backfired.
So, once we lost ground, I was unable to retreat. I was
crushed up against the door frame, and, in my most vulnerable
moments, the man in front of me took advantage and beat me in
the head; ripped off my gas mask, straining my neck, skull;
split my lip open; just everything he could.
At that point, I recognized that, if I stayed there, then I
was going to pass out from lack of oxygen or get dragged out
into the crowd and end up like Fanone.
So, I called for help. You know, I tried to make it clear
that, you know, my position was untenable, I had to fall back.
Thankfully the other officers heard that, were able to get me
out of there, and to the back where I recuperated as best I
could before I got back out there again.
Mrs. Murphy. Well, it's clear that you suffered immense
pain from the assault. It's clear that you were outnumbered,
and yet you just said you got back out there again. Tell me
what's worth all of that pain? What was worth it? What were you
fighting for that day?
Officer Hodges. Democracy. You were 40 feet away, 40 yards,
whatever. Especially with the razor-thin margins of Democrats
and Republicans in the House and Senate, if any single one
person was kidnapped or killed, which I have no doubt in my
mind was what they intended, that would affect the outcome of
legislation and all your duties for years to come. And that's
just one person. What if, you know, more than one person? The
difference would be even greater than what should be and will
be.
And obviously, for each other. You know, your immediate
concern is the well-being of your colleagues, the other
officers who were there fighting beside me. I think I can speak
for everyone when I say we worry about each other more than
ourselves. That's just in our nature. It's part of why you
become a police officer.
So, like when Fanone said he was trying to find out who
needs help and no one would volunteer, that's just an example
of that kind of a mindset that we have. So, it was for
democracy; it was for the men and women of the House and
Senate; it was for each other; and it was for the future of the
country.
Mrs. Murphy. Thank you, Officer Hodges, and thank you all
for defending democracy, and I appreciate your testimony, and I
appreciate your continued service.
With that, I yield back.
Chairman Thompson. The gentlelady yields back.
The Chair recognizes the gentleman from Maryland, Mr.
Raskin.
Mr. Raskin. Thank you, Mr. Chairman.
Sergeant Gonell, Officer Fanone, Officer Hodges, Officer
Dunn, you are great law enforcement officers and a hero to law
enforcement officers across the country. You are great public
servants. You are a hero to public servants across the country.
But you are great Americans, and you are heroes to all of
America. Long after you are gone, you will be remembered as
heroes to our country, along with your fellow officers.
Those who attacked you and those who beat you are fascist
traitors to our country and will be remembered forever as
fascist traitors.
Now, Officer Dunn, I've got to start with you, because
you're my constituent, and you are the pride of Maryland today
because of the way you stood up for the Capitol and for the
Congress and for our democracy.
But you said something fascinating in your testimony. You
said you'd never seen anybody physically assault a single
officer before in your 13 years on the force, much less
thousands and thousands of people attacking hundreds of
officers. So, how did you experience that when it first
happened?
Officer Dunn. So, with regards to the never seeing, I'm
sure I've seen videos of officers being attacked and people
resisting arrest, but to clarify, it's never been the assault
on the scale that we have seen like that before. I just wanted
to clarify that.
Can you repeat your question for me?
Mr. Raskin. Well, it leads to my next one actually. You
made a really interesting point. You said you'd seen protests
for many, many years. You'd seen even civil disobedience for
many years. There's an effort today to portray the events of
January 6th like some kind of resurrection of Dr. King's march
on Washington in 1963, you know.
I've seen a lot of protests here too. I've seen the March
for Our Lives that the young people did about gun violence. I
see people marching for D.C. Statehood, arguing for their
rights to representation in Congress, and I've seen civil
disobedience. But was this like any of those rallies or marches
or demonstrations you'd ever seen? If not, what was different
about it?
Officer Dunn. So, the marches that you--the protests that
you specifically talked about, I'll go a step further and talk
about the ones that had the potential to be not-so peaceful.
You had the Million Man March rally, the 20th anniversary of
it. There was a lot of opposition to that. You had the Klan
that came up here. You had people that were pro-guns that
wanted to come up here. So, all of those had the potential to
be very violent and, frankly, quite deadly, but they did not.
This wasn't the first time that, if I can just use this
quote, that the MAGA people came up here to the Capitol before.
They were in the District of Columbia before. There were some
skirmishes, but it was never the attempt to overthrow
democracy. I think this was maybe their second or third time
that they had come up, on January 6th, and even then, as
belligerent as they were, it didn't account to this violence.
So, the only difference that I see in that is that they had
marching orders, so to say. When people feel emboldened by
people in power, they assume that they're right. Like, one of
the scariest things about January 6th is that the people that
were there, even to this day, think that they were right. They
think that they were right, and that makes for a scary recipe
for the future of this country.
I think that's why it's very important that you all take
this Committee seriously and get to the bottom of why this
happened, and let's make it never happen again.
Mr. Raskin. Thank you.
Officer Fanone, I think you've given our Committee our
marching orders today, which is to hold the line. You held the
line, and now we've got to hold the line. So, I want to thank
you for that. If we show a fraction of the courage and the
valor that you all demonstrated on January 6th, then we will
hold the line in this Committee.
But I want to ask you about holding the line. I want to go
back to this question of weapons so we can clear this up,
because there are still some people who are saying that the
insurrectionists were unarmed. I wonder what your reaction is
to that, because we've heard about--well, first of all, rampant
baseball bats, lead pipes, Confederate battle flags and so on,
and what about the question of firearms. So, what is your
reaction generally to this proposition that they weren't armed?
Officer Fanone. First and foremost, I would say that the
implements that you just described are most certainly weapons.
With regards to firearms, I know that in the days immediately
before the January 6th insurrection and January 6th itself,
firearms were recovered by law enforcement from individuals in
Washington, DC, who were believed to have been participants or
at least those who were planning to participate in the January
6th insurrection. Yes, those were firearms, handguns, and such.
Mr. Raskin. Forgive me for these questions, but I've got to
ask you, apparently in some nether regions of the internet it's
being said that you, Officer Fanone, maybe were mistaken for
Antifa and that's why you were nearly beaten to death that day
and carried into the crowd. Is there any way you think you were
mistaken for Antifa?
Officer Fanone. Well, I was in full uniform. I was, like I
said, wearing a uniform shirt adorned with the Metropolitan
Police Department's patch. I had my badge on, until somebody
ripped it off my chest. I do not believe I was mistaken for a
member of Antifa.
Mr. Raskin. You mentioned in your testimony that there's
some people who would prefer that all of this go away, that we
not have an investigation, let's let bygones be bygones. But
you seem pretty determined to get the country to focus on this.
Why is that so important to you?
Officer Fanone. Well, first and foremost, because of the
actions of officers who responded there that day, specifically
from my department, but also from the U.S. Capitol Police and
some of the surrounding jurisdictions. You know, downplaying
the events of that day is also downplaying those officers'
response.
Like Sergeant Gonell said, and some of the officers, part
of the healing process from recovering from the traumatic
events of that day is having the Nation accept the fact that
that day happened.
Mr. Raskin. Some people were saying that, as public
servants, you all should not be speaking out; that cops,
firefighters, teachers should just serve the public but should
not speak out as citizens. What do you think about that,
Officer Fanone?
Officer Fanone. Well, I disagree. I've been outspoken
throughout my career, never to this magnitude. As an undercover
officer and a narcotics officer, I've preferred obscurity in
the public eye. However, this event is something that we have
not experienced in our lifetimes.
Mr. Raskin. Officer Hodges, I read your testimony
carefully. I hope every American reads your testimony. But I
noted that you referred to ``terrorists'' or ``terrorism'' 15
different times to describe the people who were assaulting
officers, dragging them through the crowd, stealing their
weapons, smashing them over the head, gouging eyes, and so on.
However, some of our colleagues have been calling the
violent insurrectionists not terrorists but tourists. Why do
you call the attackers terrorists, and what do you think about
our colleagues who think we should call them tourists?
Officer Hodges. Well, if that's what American tourists are
like, I can see why foreign countries don't like American
tourists. But I can see why someone would take issue with the
title of ``terrorist.'' It's gained a lot of notoriety in our
vocabulary in the past few decades, and we like to believe
that, no, that couldn't happen here, no domestic terrorism, no
home-grown threats.
But I came prepared. U.S. Code Title 18, part 1, chapter
113, B as in Brown, section 2331: The term ``domestic
terrorism'' means activities that involve acts dangerous to
human life that are a violation of the criminal laws of the
United States or of any State; and B, appear to be intended to
intimidate or coerce a civilian population; or to influence the
policy of a government by intimidation or coercion; or to
affect the conduct of a government by mass destruction,
assassination, or kidnapping, and occur primarily within the
territorial jurisdiction of the United States.
Mr. Raskin. Well, thank you for that.
I had one final question for Sergeant Gonell, but it looks
like my time is up, so I yield back to you.
Chairman Thompson. The Chair will give the gentleman an
opportunity to ask his question.
Mr. Raskin. Thank you for your indulgence, Mr. Chairman.
Are there questions, Sergeant Gonell, that you hope we can
answer as a Committee about the causes of the attack, the
nature of the attack, and what happened in the weeks prior to
January 6th as we develop our work plan moving forward?
Sergeant Gonell. I think, in my opinion, we do need to get
to the bottom of who incited, who brought those people here,
why the people were made to believe that the process was
rigged, along those lines.
But going back to what Hodges says, I had, in my 15 years
of service, I had given a tour to thousands of people at the
Capitol, as an officer, as a sergeant, and even in plainclothes
uniform. At no point in time did I ever get attacked.
I don't know how you call an attack on police officers a
tour. When you see me bleeding, my hands, when you see all the
officers getting concussions, getting maimed, getting fingers
shattered, eye gouged, it's undescribable. You're defending the
undefensible, and you demoralize, not just the rank and file,
but the future recruits that we are trying to get.
What do you think people considering becoming law
enforcement officers think when they see elected leaders
downplaying this? Why would I risk my life for them when they
don't even care? They don't care what happened to the public.
They don't care what happened to the officers. All they care is
their job, their position.
If they don't have the courage to put their job on the line
because they want to feed some lies or whatnot to feed
somebody's ego or a ``like'' for a tweet, that's not putting
the country first.
We are willing to risk our life, but at least make it worth
it. We do that regardless, whether you're a Republican,
Democrat, Independent. We don't care. When radio call or
dispatch sends a call, we don't ask, ``Hey, by the way, before
I treat you, before I take care of you, are you a Republican or
Democrat or Independent?'' We don't. We just respond.
Normally, under any other circumstances, we just stay shut.
We don't talk about politics. We don't talk about what happened
to us. But this is bigger than that. You downplay an event that
happened to the country itself, to democracy, to the rule of
law.
You don't care about people who claim that they are pro-law
enforcement, pro-police, pro-law and order, and then yet when
they have the chance and the opportunity to do something about
it, to hold people accountable, you don't. You pass the bucket
like nothing happened.
It's so devastating for recruiting. Yes, we need bodies
right now, but this makes it harder, especially when we're
trying to attract the talent that we need, people who are
willing to risk their lives to protect you guys.
Mr. Raskin. Well, thank you very much, Sergeant Gonell.
Mr. Chairman, you know, the question was asked by Officer
Dunn: Is this America? I think these gentlemen embody the
spirit of America, and we must do justice to their sacrifice in
the work of our Committee.
I yield back.
Chairman Thompson. No question about it.
The Chair recognizes the gentlelady from Virginia, Mrs.
Luria.
Mrs. Luria. Thank you, Mr. Chair.
I want to say to the four officers here today that I'm
grateful for your service, for you sharing your stories, for
your willingness to speak to the Members of this Committee and
to the American people about the horrific things that you
experienced on January 6th, truly experienced in defense of our
democracy.
Sergeant Gonell, we talked earlier, and you mentioned the
many times that you took the oath, both to become a naturalized
citizen, to join the Army, to serve as an officer of the
Capitol Police force.
Officer Hodges, you mentioned as well as a National
Guardsman and as a police officer. And something I can't share
with you, the horrific experiences that you had that day, but
all of us having taken that oath, and I took it when I was 17
and joined the Navy and over 2 decades.
Sergeant Gonell, when you mentioned and compared this
earlier to the experiences that you had in Iraq, that in a war
zone you didn't feel like you felt that day, can you share that
with us in a little more detail what was going through your
head, your thoughts about what you had experienced defending
our Nation on foreign soil and then being here in the heart of
our Nation in our Capitol and being assaulted the way that you
were?
Sergeant Gonell. It is very disappointing in terms of, like
when I was at the Lower West Terrace, and I saw many officers
fighting for their lives against people, rioters, our own
citizens turning against us--people who had the thin blue line
on their chest, or another rioter with a Marine hat that says
``veteran,'' or any other type of military paraphernalia or
whatnot. And then, they're accusing us of betraying the oath
when they're the ones betraying the oath.
When I was in Iraq, the sense of camaraderie, it didn't
matter whether you were white, Black, Spanish, Middle Eastern,
we all knew what we were fighting for. My experience there--
there were times that yes, I was scared of going on convoys or
doing my supply mission to local Iraqi population, because at
any point we were possibly ambushed or getting shot at. We knew
the risk.
But here it was simultaneously over, over, and over, our
own citizens; why they were attacking us, because we're
defending the very institution that they are claiming that
they're trying to save.
Mrs. Luria. Thank you for sharing that. I know it's been
difficult today as we've watched these images from the Capitol,
but I did want to share one more video. But this time I would
ask people, you could even like close your eyes and listen
without watching, just listen to what is being said as these
brave men were being overrun.
Voice. Traitors, how do you live with yourself?
Voice. Die! Die, traitors!
Voice. You should be mad too. Fucking traitors!
Voice. You're on the wrong side of freedom. You're on the wrong
side!
Crowd. Fuck-the-blue! Fuck-the-blue! Fuck-the-blue!
Voice. Fuck you guys! You can't even call yourselves American. You
broke your fucking oath today. 1776!
Voice. You're a traitor.
Crowd. Traitor! Traitor! Traitor! Traitor! Traitor!
Mrs. Luria. So, Officer Fanone, I wanted to turn to you.
When you hear the rioters chanting things in this video, things
like, F the blue, you can't even call yourself an American, you
are on the wrong side of freedom, can you share how that makes
you feel?
Officer Fanone. Again, I think--you know, my response that
day--and at no point that day did I ever think about the
politics of that crowd. Even the things that were being said
did not resonate in the midst of that chaos. But what did
resonate was the fact that thousands of Americans were
attacking police officers who were simply there doing their
job, and that they were there to disrupt Members of Congress
who were doing their job.
You know, in retrospect now, thinking about those events
and the things that were said, it's disgraceful that members of
our Government, I believe, were responsible for inciting that
behavior and then continue to propagate those statements,
things like, you know, this was 1776, or that police officers
who fought risked their lives and some who gave theirs were red
coats and traitors. To me, those individuals are representative
of the worst that America has to offer.
Mrs. Luria. Thank you.
Thinking about the events that happened on January 6th and
thinking about what led up to that day, I was reminded of a
quote, a quote that I frequently heard used from Hemingway that
asks, you know, how do these things happen? How do things like
this happen? That quote, it's very short. It just says,
``gradually and then suddenly.'' I think that our Founders
understood that our Republic was very fragile and it would be
tested, and it was tested here on January 6th.
In 20 years, I don't want to look back on this moment and
think that we saw these signs coming gradually, that these were
signs that we ignored--signs that people thought were just
isolated incidents or signs of things that we thought could
never happen. I don't want to say to my daughter or, Sergeant
Gonell, to your son or, Officer Fanone, to your 4 daughters, I
don't want any of us to say that this happened gradually and
then suddenly, and that some were just too worried about
winning the next election to do something about it or too
cowardly to seek the truth.
So, that's the task before this Committee. I am sure that
we'll be attacked by cowards--by those in the arena, those only
in the stands--and that we'll be attacked by people who are
more concerned about their own power than about the good of
this country.
But my oath, your oath, all of our oaths here today to
protect and defend the Constitution against all enemies,
foreign and domestic, will be our guiding light for this
investigation.
As Officer Dunn said earlier, you said, ``we can never
again allow our democracy to be put in peril.'' So, I will say
that we will persevere, we will do what is right, and our
Nation is truly ever grateful to you who held that line. Your
actions on January 6th could very well have been what saved our
democracy, and we thank you.
Mr. Chair, I yield back.
Chairman Thompson. Thank you.
The gentleman from Maryland asked a question in terms of
what you would expect this Committee to do in our body of work.
Sergeant Gonell responded, but we didn't give the other three
members an opportunity to kind of tell us, based on the last
202 days of your life, what would you task this Committee in
its body of work? What would you like to see us do?
Officer Fanone, I'll start with you.
Officer Fanone. Yes, sir. So, while I understand that there
have been investigations into the events of January 6th, my
understanding is that those have addressed some of the micro-
level concerns, that being the immediate security of the
Capitol Building itself, also the force mobilization of
officers that day, planning and preparation, and training and
equipment concerns.
A lot of, you know, the events of January 6th and the days
preceding, I guess it's interesting, and from a law enforcement
perspective, as a police officer, a lot of these events
happened in plain sight. We had violent political rhetoric. We
had the organization of a rally whose title was ``Stop the
Steal,'' and that that rally occurred on January 6th, which I
don't believe was a coincidence that on January 6th Members of
Congress, you here in the room today, were charged with
tallying the electoral votes and certifying the election of our
President.
In the academy, we learn about time, place, and
circumstance in investigating potential crimes and those who
may have committed them. So, the time, the place, and the
circumstances of that rally, that rhetoric, and those events,
to me, leads in the direction of our President and other
Members not only of Congress and the Senate.
But that is what I am looking for is an investigation into
those actions and activities which may have resulted in the
events of January 6th, and also whether or not there was
collaboration between those Members, their staff, and these
terrorists.
Chairman Thompson. Thank you very much.
Officer Hodges.
Officer Hodges. I think Fanone hit the nail on the head
there. As patrol officers, we can only deal with the crimes
that happen on the streets, the misdemeanors, and occasionally
the violent felonies. But you guys are the only ones we've got
to deal with crimes that occur above us.
I need you guys to address if anyone in power had a role in
this, if anyone in power coordinated or aided or abetted or
tried to downplay, tried to prevent the investigation of this
terrorist attack, because we can't do it. We're not allowed to.
I think a majority of Americans are really looking forward to
that as well.
Chairman Thompson. Thank you.
Officer Dunn.
Officer Dunn. Thank you, Chairman. There's been a sentiment
that's going around that says everybody's trying to make
January 6th political. Well, it's not a secret that it was
political. They literally were there to ``stop the steal.'' So,
when people say it shouldn't be political, it is. It was and it
is. There's no getting around that.
Telling the truth shouldn't be hard. Fighting on January
6th, that was hard. Showing up January 7th, that was hard. The
8th, the 9th, the 10th, all the way till today, that was hard.
When the fence came down, that was hard, when we lost our layer
of protection that we had. The fence came down and still
nothing has changed. Everything is different but nothing has
changed.
Liz Cheney and Adam Kinzinger are being lauded as
courageous heroes, and while I agree with that notion, why?
Because they told the truth? Why is telling the truth hard? I
guess in this America it is. Us four officers, we would do
January 6th all over again. We wouldn't stay home because we
knew what was going to happen; we would show up. That's
courageous. That's heroic.
So, what I ask from you all is to get to the bottom of what
happened, and that includes, like I echo the sentiments of all
of the other officers sitting here. I use an analogy to
describe what I want as a hit man. If a hit man is hired and he
kills somebody, the hit man goes to jail. But not only does the
hit man go to jail, but the person who hired them does. There
was an attack carried out on January 6th, and a hit man sent
them. I want you to get to the bottom of that.
Thank you.
Chairman Thompson. Well, thank you. Very powerful comments,
by the way.
Sergeant Gonell. Chairman Thompson?
Chairman Thompson. Yes.
Sergeant Gonell. If I may, I also would like for you guys
to give us the tools, or at least the things we need, to
succeed, to continue protecting you guys. I think that's
essential for you guys to provide us what we need in terms of
like financially. I don't know. I'm not part of the innuendo
about how that process works, but perhaps fortifying the
Capitol, that will help. I know we were literally desperate. If
we had that, that would have made a big difference on January
6th.
I know people want to keep this place open to the public as
much as possible, but there are things that we could do to
remediate that and also to reinforce entrances, whatnot. It's
hard, but it takes will. I could tell the Capitol has some
regulations, whatnot, but the time has passed. We still have
security measures from 20 years ago that have to go. We need to
reinvent the wheel and change that, but only you guys have the
power to authorize that. They won't do it unless you guys do.
The other thing is, we still are operating on certain
things that we could adjust, things that we were doing back
when 9/11 happened, we're still doing it today, even 6 months
after the attack on the Capitol. But only you, perhaps with the
Chief of Police, the new Chief of Police, which he seems
receptive to some of these changes, perhaps that would change.
But, just like Officer Dunn said, we're still doing things that
prior to January 6th we were doing and we're still doing it
today, and I think that should change.
Thank you.
Chairman Thompson. Well, again, I thank all of you for your
testimony. Obviously you are our real heroes in this situation.
What you did, in the Committee's opinion, helped preserve this
democracy. The time you gave for reinforcements to finally get
to the Capitol made the difference. So, for that we thank you.
But you carried out your duties at tremendous risk.
Now we on this Committee have a duty, however a far less
dangerous one, but an essential one, to get to the bottom of
what happened that day. We cannot allow what happened on
January 6th to ever happen again. We owe it to the American
people. We owe it to you and your colleagues. We will not fail,
I assure you, in that responsibility.
Thank you again to our witnesses as well as our
distinguished colleagues of the Committee.
Without objection, Members will be permitted 10 business
days to submit statements for the record, including opening
remarks and additional questions for witnesses to appropriate
staff at all meetings of the Select Committee.
Without objection, the Committee stands adjourned.
[Whereupon, at 1 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Aquilino A. Gonell, Sergeant, U.S. Capitol Police
July 27, 2021
Chairman Thompson and Members of the Select Committee, thank you
for the opportunity to testify regarding the attack on the U.S. Capitol
on January 6, 2021. It is with honor, and a heavy heart, that I come
before you to tell you my story, from painful, first-hand experience,
of what happened that terrible day at the Capitol. I am providing this
testimony solely in my personal capacity, and not as a representative
of the U.S. Capitol Police.
It is imperative that the events of January 6th are fully
investigated, that Congress and the American people know the truth of
what actually occurred, and that all those responsible are held
accountable, particularly to ensure this horrific and shameful event in
our history never repeats itself. I applaud you for pursuing this
objective.
Even though there is overwhelming evidence to the contrary,
including hours and hours of video and photographic coverage, there is
a continuous and shocking attempt to ignore or try to destroy the truth
of what truly happened that day, and to whitewash the facts into
something other than what they unmistakably reveal: An attack on our
democracy by violent domestic extremists, and a stain on our history
and our moral standing here at home and abroad.
As a child in the Dominican Republic, I looked up to the United
States as a land of opportunity and a place to better myself. From the
moment I landed at JFK airport in 1992, I have strived to pursue that
goal. Thankfully, I have achieved that goal on many levels: I was the
first in my family to graduate college, join the U.S. Army, and become
a police officer.
On July 23, 1999, the day before my 21st birthday, I raised my hand
to give back to the country that gave me an opportunity to be anything
I wanted. At the time, I had already started basic training with the
Army Reserve. In fact, I have raised my hand several times in
ceremonies to pledge my commitment to ``Defend and Protect the
Constitution of the United States'': When I joined the Army Reserves,
when I was promoted to Sergeant while in the Army, during my
naturalization ceremony, when I reenlisted in the Army, when I joined
the United States Capitol Police, and last when I was promoted to
sergeant in the U.S. Capitol Police 3 years ago. I have always taken my
oath seriously.
On January 6, 2021, I fulfilled my oath once more: This time, to
defend the United States Capitol and Members of Congress carrying out
their Constitutional duties to certify the results of the November 2020
Presidential election.
To be honest, I did not recognize my fellow citizens who stormed
the Capitol on January 6, or the United States they claimed to
represent. When I was 25, and then a sergeant in the Army, I had
deployed to Iraq for Operation Iraqi Freedom. From time to time, I
volunteered to travel on IED-infested roads to conduct supply missions
for U.S. and allied military forces and local Iraqi populations. But on
January 6, for the first time, I was more afraid working at the Capitol
than during my entire Army deployment to Iraq. In Iraq, we expected
armed violence, because we were in a war zone. But nothing in my
experience in the Army, or as a law enforcement officer, prepared me
for what we confronted on January 6.
The verbal assaults and disrespect we endured from the rioters were
bad enough. I was falsely accused of betraying my ``oath'' and of
choosing my ``paycheck'' over my loyalty to the U.S. Constitution--even
as I defended the very democratic process that protected everyone in
that hostile crowd. While I was on the Lower West Terrace at the
Capitol, working with my fellow officers to prevent a breach and
restore order, the rioters called me a ``traitor,'' a ``disgrace,'' and
shouted that I (an Army veteran and police officer) should be
``executed''. Some of the rioters had the audacity to tell me that it
was ``nothing personal,'' that they would ``go through'' us to achieve
their goals as they were breaking metal barriers to use as weapons
against us. Others used more menacing language: ``If you shoot us, we
all have weapons, and we will shoot back'', or ``we will get our
guns''. ``We outnumber you, join us,'' they said. I also heard specific
threats on the lives of Speaker Nancy Pelosi and then-Vice President
Mike Pence.
But the physical violence we experienced was horrific and
devastating. My fellow officers and I were punched, pushed, kicked,
shoved, sprayed with chemical irritants, and even blinded with eye-
damaging lasers by a violent mob who apparently saw us law enforcement
officers, dedicated to ironically protecting them as U.S. citizens, as
an impediment in their attempted insurrection. The mob brought weapons
to try to accomplish their insurrectionist objectives, and they used
them against us. These weapons included hammers, rebars, knives, batons
and police shields taken by force, as well as, bear spray and pepper
spray. Some rioters wore tactical gear, including bulletproof vests and
gas masks. The rioters also forcibly took our batons and shields and
used them against us. I was particularly shocked at seeing the
insurrectionists violently attack us with the very American flag they
claimed they sought to protect. Based on the coordinated tactics we
observed and verbal commands we heard, it appeared that many of the
attackers had law enforcement or military experience.
The rioters were vicious and relentless. We found ourselves in a
violent battle in a desperate attempt to prevent a breach of the
Capitol by the entrance near the Inauguration Stage. Metropolitan DC
Police (``MPD'') officers were being pulled into the crowd as we tried
to push all the rioters back from breaching Capitol. In my attempt to
assist two MPD officers, I grabbed one officer by the back of the
collar and pulled him back to our police line. When I tried to help the
second officer, I fell on top of some police shields on the ground that
were slippery because of the pepper and bear spray. Rioters started to
pull me by my leg, by my shield, and by my gear straps on my left
shoulder. My survival instincts kicked in and I started kicking and
punching as I tried in vain to get the MPD officers' attention behind
and above me. But they could not help me because they were also being
attacked. I finally was able to hit a rioter who was grabbing me with
my baton and able to stand. I then continued to fend off new attackers
as they kept rotating after attacking us.
What we were subjected to that day was like something from a
medieval battlefield. We fought hand-to-hand and inch by inch to
prevent an invasion of the Capitol by a violent mob intent on
subverting our democratic process. My fellow officers and I were
committed to not letting any rioters breach the Capitol. It was a
prolonged and desperate struggle. I vividly heard officers screaming in
agony and pain just an arms-length from me. One of those officers is
here today. I, too, was being crushed by the rioters. I could feel
myself losing oxygen and recall thinking to myself ``this is how I'm
going to die, trampled defending this entrance.'' Many of the officers
fighting alongside me were calling for shields, because their shields
had been stripped from them by the rioters. I was one of the few
officers left with a shield, so I spent the majority of the time at the
front of the line.
I later found out that my wife and relatives here in the United
States and abroad were frantically calling and texting me from 2
o'clock p.m. onwards because they were watching the turmoil live on
television. But it was not until around 4:26 p.m., after giving CPR to
one of the rioters who breached the Capitol in an effort to save her
life, that I finally had a chance to let my own family know that I was
alive.
After order finally had been restored at the Capitol and after many
exhausting hours, I arrived home at nearly 4 o'clock a.m. on January 7.
I had to push away my wife from hugging me because of all the chemicals
that covered my body. I couldn't sleep because the chemicals
reactivated after I took a shower, and my skin was still burning. I
finally fell asleep 2 hours later, completely physically and mentally
exhausted. Yet by 8 o'clock a.m. that day I was already on my way back
to the Capitol, and I continued to work for 15 consecutive days until
after the Inauguration. I made sure to work despite my injuries because
I wanted to continue doing my job and help secure the Capitol complex.
Six months later, I am still trying to recover from my injuries.
Many of my fellow Capitol Police Officers, as well as MPD Officers,
suffered terrible physical injuries from the violence inflicted on us
on January 6. I sustained injuries to both of my hands, my left
shoulder, my left calf, and my right foot. I have already undergone
fusion surgery on my foot, and I was just told that I need surgery on
my left shoulder. I have been on medical and administrative leave for
much of the past 6 months, and I expect to need further rehabilitation
for possibly more than a year.
There are some who expressed outrage when someone simply kneeled
for social justice during the National anthem. Where are those same
people expressing outrage to condemn the violent attack on law
enforcement officers, the U.S. Capitol, and our American democracy?
As America and the world watched in horror what was happening to us
at the Capitol, we did not receive the timely reinforcements and
support we needed. In contrast, during the Black Lives Matter protest
last year, U.S. Capitol Police had all the support we needed and more.
Why the different response? Were it not for the brave members of the
MPD and officers for other agencies, I am afraid to think what could
have happened on January 6. I want to publicly thank all the law
enforcement agencies that responded to assist that day for their
courage and support. I especially want to thank those Capitol Police
Officers who responded on their own.
Despite being outnumbered, we did our job. Every Member of the
House of Representatives, Senator, and staff member made it home
safely. Sadly, as a result of that day, we lost officers--some really
good officers. But we held the line to protect our democratic process,
and because the alternative would have been a disaster. We are not
asking for medals or even recognition. We simply want accountability
and justice.
For most people, January 6th happened for a few hours that day. But
for those of us who were in the thick of it, it has not ended. That day
continues to be a constant trauma for us literally every day, whether
because of our physical or emotional injuries, or both. While it has
not received much attention, sadly many of my colleagues have quietly
resigned from the Capitol Police because of that day. I am also
regularly called by the law enforcement officials and prosecutors to
help identify rioters from photographs and videos. And to be honest,
physical therapy is painful and hard. I could have lost my life that
day, but as soon as I recover from my injuries I will continue forward
and proudly serve my country and the U.S. Capitol Police. As an
immigrant to the United States, I am especially proud to have defended
the U.S. Constitution and our democracy on January 6. I hope that
everyone in a position of authority in our country has the courage and
conviction to do their part by investigating what happened on that
terrible day, and why.
This investigation is essential to our democracy, and I am deeply
grateful to you for undertaking it. I am happy to assist as I can, and
answer any questions you have to the best of my ability.
______
Prepared Statement of Michael Fanone, Officer, Metropolitan Police
Department
July 27, 2021
Thank you, Mr. Chairman and Members of this Committee, for inviting
me to provide my eyewitness testimony of the violent assault on our
Nation's Capitol on January 6, 2021.
My name is Michael Fanone, and while I have been a sworn officer
with the Metropolitan Police Department in Washington, DC. for almost 2
decades, my law enforcement career actually began here in this building
as a United States Capitol Police Officer shortly after 9/11. In part
because of the 2001 attacks on our country by terrorists, I felt called
to serve. As a Capitol Police Officer, I was proud to protect this
institution and the dedicated Members of Congress and their staff who
work hard each today to uphold our American democracy.
I remain proud of the work of the Capitol Police and MPD Officers
who literally commit their lives to protecting the safety of each of
you, and all of us in this room, in our Nation's Capital.
After leaving the United States Capitol Police, I became an MPD
officer serving the residents of Washington, DC. I have spent the
majority of my nearly 20 years at the Metropolitan Police Department
working in special mission units whose responsibilities include the
investigation and arrest of narcotics traffickers and violent
criminals. I have worked as both an undercover officer and lead case
officer in many of these investigations.
In this line of work, it probably won't shock you to know I've
dealt with some dicey situations. I thought I had seen it all, many
times over. Yet what I witnessed and experienced on January 6, 2021 was
unlike anything I had ever seen, experienced, or could have imagined in
my country. On that day, I participated in the defense of the United
States Capitol from an armed mob of thousands determined to get inside.
Because I was among a vastly outnumbered group of law enforcement
officers protecting the Capitol and the people in it, I was grabbed,
beaten, tased, all while being called a traitor to my country. I was at
risk of being stripped of, and killed with, my own firearm as I heard
chants of, ``Kill him with his own gun!'' I can still hear those words
in my head now.
Although I regularly deal with risky situations on the job, nowhere
in my wildest imagination did I ever expect to be in that situation, or
sitting before you today talking about it. That experience and its
aftermath were something that even my extensive law enforcement
training didn't prepare me for.
I was just one of hundreds of local police who lined up to protect
Congress even though we were not assigned to do that. Some have asked
why we ran to help when we didn't have to. I did that because I simply
could not ignore what was happening. Like many other officers, I could
not ignore the numerous calls for help coming from the Capitol Complex.
I'm a plainclothes officer assigned to the First District Crime
Suppression Team. But for the first time in nearly a decade, I put on
my uniform.
When my partner, Jimmy Albright, and I arrived at the Capitol
around 3 that afternoon, it was unlike any scene I had ever witnessed.
Jimmy parked our police vehicle near the intersection of South Capitol
St. and D St., SE and we walked to the Capitol from there passing the
Longworth House Office Building. It was eerily quiet and the sidewalks,
usually filled with pedestrians, were empty. As we made our way to
Independence Avenue, I could see dozens of empty police vehicles that
filled the street, police barricades, which had been abandoned, and
hundreds of angry protesters, many of whom taunted us as we walked
toward the Capitol building.
Jimmy and I immediately began to search for an area where we could
be of most assistance. We first made our way through a door on the
south side of the Capitol, walking then to the crypt and finally down
to the Lower West Terrace Tunnel. It was there that I observed a police
commander struggling to breathe as he dealt with the effects of CS gas
that lingered in the air. Then I watched him collect himself,
straighten his cap and trench coat adorned with silver eagles, and
return to the line. That Commander was Ramey Kyle of the Metropolitan
Police Department and those images are etched into my memory never to
be forgotten.
In the midst of this intense and chaotic scene, Commander Kyle
remained cool, calm, and collected as he gave commands to his officers.
``Hold the line,'' he shouted over the roar. Of course, that day ``the
line'' was the seat of our American government. Despite the confusion
and stress of the situation, observing Ray's leadership, protecting a
place I cared so much about, was the most inspirational moment of my
life. The bravery he and others showed that day are the best examples
of duty, honor, and service. Each of us who carries a badge should
bring those core values to our work every day.
The fighting in the Lower West Terrace Tunnel was nothing short of
brutal. Here I observed approximately 30 police officers standing
shoulder-to-shoulder, maybe 4 or 5 abreast, using the weight of their
own bodies to hold back the onslaught of violent attackers. Many of
these officers were injured, bleeding, and fatigued. But they continued
to hold the line.
As I don't have to tell the Members in this room, the Tunnel is a
narrow and long hallway. It is not the sort of space where anyone would
want to be pulled into hand-to-hand combat with an angry mob, although
the narrowness of the hallway provided what was probably the only
chance of holding back that crowd from entering your personal offices
and the House and Senate Chambers.
In an attempt to assist injured officers, Jimmy and I asked them if
they needed a break. There were no volunteers. Selflessly, they only
identified other colleagues who may be in need of assistance.
The fighting dragged on, and I eventually joined the tactical line
at the Tunnel's entrance. I can remember looking around and being
shocked by the sheer number of people fighting us. As my police body-
worn camera shows, thousands upon thousands of people, seemingly
determined to get past us by any means necessary.
At some point during the fighting, I was dragged from the line of
officers into the crowd. I heard someone scream, ``I got one!'' as I
was swarmed by a violent mob. They ripped off my badge. They grabbed my
radio. They seized the ammunition that was secured to my body. They
began to beat me, with their fists and with what felt like hard metal
objects. At one point I came face-to-face with an attacker who
repeatedly lunged for me and attempted to remove my firearm. I heard
chanting from some in the crowd, ``get his gun'' and ``Kill him with
his own gun.'' I was aware enough to recognize I was at risk of being
stripped of, and killed with, my own firearm. I was electrocuted, again
and again and again with a Taser. I'm sure I was screaming, but I don't
think I could even hear my own voice.
My body camera captured the violence of the crowd directed toward
me during those very frightening moments. It's an important part of the
record for this Committee's investigation and for the country's
understanding of how I was assaulted and nearly killed as the mob
attacked the Capitol that day, and I hope that everyone will be able to
watch it. The portions of the video I've seen remain extremely painful
for me to watch. But it is essential that everyone understands what
really happened that tragic day.
During those moments, I remember thinking that there was a very
good chance that I would be torn apart or be shot to death with my own
weapon. I thought of my four daughters who might lose their Dad. I
remain grateful that no Member of Congress had to go through the
violent assault that I experienced that day.
During the assault, I thought about using my firearm on my
attackers. But I knew that if I did that, I would quickly be
overwhelmed. And that, in their minds, it would provide them with the
justification for killing me. So instead, I decided to appeal to any
humanity they might have. I said as loud as I could manage, ``I've got
kids.'' Thankfully, some in the crowd stepped in and assisted me.
Those few individuals protected me from the crowd and inched me
toward the Capitol until my fellow officers could rescue me. I was
carried back inside the Capitol Building. What happened afterwards is
much less vivid to me. I had been beaten unconscious and remained so
for more than 4 minutes. I know that Jimmy helped evacuate me from the
building and drove me to MedStar Washington Hospital Center despite
suffering significant injuries himself. At the hospital, doctors told
me that I suffered a heart attack, and I was later diagnosed with a
concussion, traumatic brain injury, and Post-Traumatic Stress Disorder.
As my physical injuries gradually subsided and the adrenaline that
had stayed with me for weeks waned, I have been left with the
psychological trauma and the emotional anxiety of having survived such
a horrifying event. And my children continue to deal with the trauma of
nearly losing their Dad that day.
What makes that struggle harder and more painful is to know so many
of my fellow citizens, including so many of the people I put my life at
risk to defend, are downplaying or outright denying what happened. I
feel like I went to Hell and back to protect the people in this room.
But too many are now telling me that Hell doesn't even exist--or that
Hell actually wasn't all that bad.
The indifference shown to my colleagues and I is disgraceful. My
law enforcement career prepared me to cope with some aspects of this
experience. Being an officer, you know your life is at risk whenever
you walk out the door, even if you don't expect otherwise law-abiding
citizens to take up arms against you. But nothing--truly nothing--has
prepared me to address those elected Members of our Government who
continue to deny the events of that day. Those very same Members whose
lives, offices, staff members I was fighting so desperately to defend.
I agreed to speak here today, and have talked publicly about what
happened, because I don't think our response to the insurrection should
have anything to do with political parties. I know that when my partner
Jimmy and I suited up on January 6, we didn't care what we or our
fellow officers believed about politics or what political party any of
you public servants belonged to. I've worked in this city for 2 decades
and never cared about those things, no matter who was in office. All
I've ever cared about is protecting you, and the public, so you can do
your job in service to this country and for the people you represent.
I appreciate your time and attention. I look forward to the
Committee's investigation. I am hopeful that with your commitment, we
as a country will confront the truth of what happened on January 6th
and do what is necessary to make sure this institution of our democracy
never again falls into the hands of a violent and angry mob.
We must also recognize the officers who responded that day, many
unsolicited, and their countless acts of bravery and selflessness. It
has been 202 days since 850 MPD officers responded to the Capitol and
helped stop a violent insurrection from taking over the Capitol
Complex, which almost certainly saved countless Members of Congress and
their staff from injury and possibly even death. The time to fully
recognize these officers' actions is now.
Thank you again for the opportunity to provide my testimony today.
______
Prepared Statement of Daniel Hodges, Officer, Metropolitan Police
Department
Good morning to the Committee, members of the press, and to the
country.
To the Members of the Committee, I'd like to thank you for the
invitation today to provide my account of my knowledge of and
experiences from January 6th, 2021.
As the Chairman mentioned I am a member of Civil Disturbance Unit
42 and was working in that capacity on the day in question. A fully-
staffed CDU platoon consists of 1 lieutenant, 4 sergeants, and 28
officers. We started that day at 7:30 a.m. and our assignment was to
maintain high visibility along Constitution Avenue, namely the blocks
leading up to President's Park, where then-President Donald Trump was
holding his gathering. My particular station was in front of 1111
Constitution Avenue, where I stood on foot as the crowd poured down the
street and into the park.
There were a significant number of men dressed in tactical gear
attending the gathering. Wearing ballistic vests, helmets, goggles,
military face masks, backpacks, and without identifiable, visible law
enforcement or military patches, they appeared to be prepared for much
more than listening to politicians speak in a park.
Two of my colleagues were approached by a group of 3 to 4 of such
men. The men were white, in good shape, with load-bearing vests
equipped with MOLLE pouches. They were wearing BDUs, or battle dress
uniform pants, tactical boots, black sunglasses and short haircuts.
They had radios and one was equipped with an earpiece.
After a bit of small talk one of them asked my colleagues something
to the effect of, ``Is this all the manpower you have? Do you really
think you're going to be able to stop all these people?'' Dumbfounded,
my colleagues simply expressed that they didn't understand what the
speaker meant, and the group continued on.
As the day went on and the speakers in the park said their piece, I
monitored the crowd and the radio. Over the radio I heard our Gun
Recovery Unit working constantly, monitoring those in the crowd
suspected of carrying firearms and making arrests and seizures when
possible. Multiple gun arrests were made from January 5th through the
7th against those attending, planning to attend, or had attended Donald
Trump's gathering. Unfortunately due to the course of events that day
we will likely never know exactly how many were carrying firearms and
other lethal weapons.
I don't know what time it was, but eventually the flow of foot
traffic reversed, with people leaving President's Park and traveling
eastbound down Constitution Avenue toward the United States Capitol.
At approximately 12:30 p.m. I noticed a commotion about half a
block to my east, and saw the crowd starting to coalesce around two
figures. I ran to where they were and found a confrontation at the
intersection of 10th and Constitution Avenue NW. One counter-protester,
a Black man, was backpedaling away from a white man in a Trump-labeled
face mask who was closely following him with an outstretched arm.
Myself and my colleague arrived first and physically separated the two,
but a crowd of Donald Trump's people had gathered. They attempted to
bait the counter-protester into attacking, shouting insults such as
``You're mother's a whore!'' and accusing him of ``Hiding behind the
cops.'' Eventually enough MPD members had gathered to move along the
crowd who continued eastbound toward the Capitol building, and the
counter-protester departed northbound on 10th Street.
Returning to my post I continued monitoring the radio. I could hear
Commander Glover leading the defense efforts at the Capitol as the
protesters began their transition from peaceful assembly into
terrorism. I became agitated and wished we could move in to support as
I could hear the increasing desperation in the Commander's voice, yet
we still had to wait for our orders to change. Eventually they did, as
at approximately 1:30 p.m. the Commander authorized rapid response
platoons to deploy their hard gear and respond to the Capitol,
including CDU 42.
The last thing I remember hearing over the air before departing for
the Capitol grounds was confirmation that our Explosive Ordinance
Disposal team had discovered a ``device''. Given which unit was being
associated with this ``device'' I immediately realized MPD had
discovered a bomb of some type near the Capitol. This thought was never
far from my mind for the rest of the day.
We ran back to our vans and got on our hard gear as quickly as we
could. Navigating alternate routes to avoid the foot traffic, we drove
as close as we could to the Capitol, disembarking at the northwest side
of the Capitol grounds. We gave our gear a final check and marched
toward the West Terrace.
The crowd was thinner the further out from the Capitol you were, so
as we marched the resistance we initially met was verbal. A man
sarcastically yelled ``Here come the boys in blue! So brave!'' Another
called on us to ``remember your oath.'' There was plenty of boo-ing. A
woman called us ``stormtroopers''. Another woman, who was part of the
mob of terrorists laying siege to the Capitol of the United States,
shouted ``Traitors!'' More found appeal in the label, and shout
``Traitors!'' at us as we pass; one man attempted to turn it into a
duosyllabic chant. We continue to march.
We had been marching in two columns, but as we got closer to the
West Terrace the crowd became so dense that in order to progress we
marched single-file, with our hands on the shoulders of the man in
front of us in order to avoid separation. However as we came close to
the terrace our line was divided and we came under attack. A man
attempted to rip my baton from my hands and we wrestled for control. I
retained my weapon and after I pushed him back, he yelled at me
``You're on the wrong team!''
Cut off from our leadership at the font of our formation we huddled
up and assessed the threat surrounding us. One man tried and failed to
build a rapport with me, shouting, ``Are you my brother?!'' Another
takes a different tack, shouting ``You will die on your knees!''
I was at the front of our group and determined we had to push our
way through the crowd in order to join the defense proper, so I began
shouting ``Make way!'' as I forged ahead, hoping that I'm clearing a
path for the others to follow. However as I looked back I saw that the
rest of the group came under attack and were unable to follow. The
crowd attempted to physically bar the rest of the platoon from
following. I backtrack and started pulling terrorists off of my team by
their backpacks. Around this time one of the terrorists who had scaled
the scaffolding that adorned the Capitol at the time threw something
heavy down at me and struck me in the head, disorienting me (I suspect
this resulted in the likely concussion I dealt with in the weeks
after). Another man attempted to disarm me of my baton again, and we
wrestled for control. He kicked me in my chest as we went to the
ground. I was able to retain my baton again, but I ended up on my hands
and knees and blind; the medical mask I was wearing to protect myself
from the coronavirus was pulled up over my eyes so I couldn't see. I
braced myself against the impact of their blows and feared the worst.
Thankfully my platoon had repelled their own attackers and got me back
on my feet. The crowd started chanting ``U-S-A!'' at us, and we struck
out again for the West Terrace.
I lead the charge again through the midst of crowd-control
munitions, explosions, and smoke engulfing the area. Terrorists were
breaking apart metal fencing and bike racks into individual pieces,
presumably to use as weapons. Thankfully we made it to the secondary
defense line on the West Terrace that MPD and Capitol Police were
managing to hold. The rest of my platoon got behind the line and we
take stock of the situation. I realized that back during the previous
assault someone had stolen my radio; from that point on I was in the
dark as to our current status and when reinforcements would arrive.
Terrorists were scaling the scaffolding on both our sides, the tower
that was in front of us, and attempting to breach the waist-high metal
fencing that was the only barrier we had, aside from ourselves.
The sea of people was punctuated throughout by flags. Lots of
American flags and Trump flags. Gadsden flags. It was clear the
terrorists perceived themselves to be Christians: I saw the Christian
flag directly to my front. Another read ``Jesus is my Savior, Trump is
my President.'' Another, ``Jesus is King.'' One flag read, ``Don't give
up the ship''. Another had crossed rifles beneath a skull emblazoned
with the pattern of the American flag. To my perpetual confusion, I saw
the Thin Blue Line flag, a symbol of support for law enforcement, more
than once being carried by the terrorists as they ignored our commands
and continued to assault us.
The acrid sting of CS gas (tear gas) and OC spray (mace) hung in
the air, as the terrorists threw our own CS gas canisters back at us
and sprayed us with their own OC, either that they brought themselves
or stole from us. Later I learned that at least one of them was
spraying us in the face with wasp spray.
The terrorists alternated between attempting to break our defenses
and shouting at or attempting to convert us. Men alleging to be
veterans told us how they had fought for this country and were fighting
for it again. One man tried to start a chant of ``Four-more-years!''
Another shouted ``Do not attack us! We are not `Black Lives Matter!' ''
as if political affiliation is how we determine when to use force. A
man in a ``QAnon'' hoodie exclaims, ``This is the time to choose what
side of history to be on!'' A man whose shirt reads ``God Guns &
Trump'' stood behind him, silently holding a Trump flag.
A new man came to the front and fixated on me, continually berated
me, telling me to take off my gear and give it to him: ``Show
solidarity with `we the people' or we're going to run over you!'' his
voice cracked with the strain and volume of his threats. He continued,
``Do you think your little pea-shooter guns are going to stop this
crowd? No! We're going in that building!''
Eventually there is a surge in the crowd, the fence buckled and
broke apart and we were unable to hold the line. A chaotic melee
ensued. Terrorists pushed through the line and engaged us in hand-to-
hand combat. Several attempted to knock me over and steal my baton. One
latched onto my face and got his thumb in my right eye, attempting to
gouge it out. I cried out in pain and managed to shake him off before
any permanent damage was done. I couldn't engage anyone fully for the
moment I do is when another 20 terrorists move in to attack while I am
occupied. It's all we could do to keep ourselves on our feet and
continue to fall back. I'm sprayed with a fire extinguisher and a red
smoke grenade burned at our feet.
In the fight a terrorist is knocked to the ground and his jacket
rides up, exposing a large hunting knife on his belt. I along with
several other officers piled on him while another removed the knife
from his person. He regained himself, unharmed, and shouts indignantly,
``What are you doing! What are you guys doing!''
The terrorists had claimed most of the western terrace, cornering
myself and other officers on the southern edge. We took a side stair
off the terrace, up to an upper landing, followed by more stairs up and
inside.
Inside the Capitol building officers walked through the halls
briefly until they found a place to sit, decontaminate their faces of
OC and CS, and take a quick breather. I followed suit. Someone had
managed to find a package of water bottles and was passing them out. I
washed off my face as best as I could, rinsed out my mouth and drank
the rest. I took the opportunity of relative safety to don my gas mask.
Not long afterward I heard someone calling for officers to move to
assist. I steeled myself for another round and descended a stairway
into a long hallway filled with smoke and screams.
The Capitol building is labyrinthine, but judging from the sound of
intense combat I could tell this hallway led outside to where the
terrorists had forced our retreat. Officers were stacked deep, but
every so often one would fall back from the front line, nursing an
injury or struggling to breathe, and those who remained would take a
step forward.
It was a battle of inches, with one side pushing the other a few
and then the other side regaining their ground. At the time I (and I
suspect many others in the hallway) did not know that the terrorists
had gained entry to the building by breaking in doors and windows
elsewhere, so we believed ours to be the last line of defense before
the terrorists had true access to the building, and potentially our
elected representatives.
Eventually it was my turn in the meat grinder that was the front
line. The terrorists had a wall of shields that they had stolen from
officers, as well as stolen batons and whatever other armaments they
brought. Even during this intense contest of wills they continued to
try to convert us to their cult. One man shouted ``We just want to make
our voices heard! And I think you feel the same! I really think you
feel the same!'', all while another man attempts to batter us with a
stolen shield. Another man, like many others, didn't seem to appreciate
that this wasn't a game. He fought his way across the lawn, up the
steps, through the western terrace, and at the front line of this final
threshold was asking us to ``hold on'' because he ``has asthma''.
The two sides were at a stalemate at a metal door frame that sat in
the middle of the hallway. At the front line, I inserted myself so that
the frame was at my back in an effort to give myself something to brace
against and provide additional strength when pushing forward.
Unfortunately soon after I secured this position the momentum shifted
and we lost the ground that got me there. On my left was a man with a
clear riot shield stolen during the assault. He slammed it against me
and, with the weight of all the bodies pushing behind him, trapped me.
My arms were pinned and effectively useless, trapped against the either
the shield on my left or the door frame on my right. With my posture
granting me no functional strength or freedom of movement, I was
effectively defenseless and gradually sustaining injury from the
increasing pressure of the mob.
Directly in front of me a man seized the opportunity of my
vulnerability. He grabbed the front of my gas mask and used it to beat
my head against the door. He switched to pulling it off my head, the
straps stretching against my skull and straining my neck. He never
uttered any words I recognized, but opted instead for guttural screams.
I swear I remember him foaming at the mouth. He also put his cell phone
in his mouth so that he had both hands free to assault me. Eventually
he succeeded in stripping away my gas mask, and a new rush of exposure
to CS gas and OC spray hit me. The mob of terrorists were coordinating
their efforts now, shouting ``Heave! Ho!'' as they synchronized pushing
their weight forward, crushing me further against the metal door frame.
The man in front of me grabbed my baton that I still held in my hands
and in my current state I was unable to retain my weapon. He bashed me
in the head and face with it, rupturing my lip and adding additional
injury to my skull.
At this point I knew that I couldn't sustain much more damage and
remain upright. At best I would collapse and be a liability to my
colleagues, at worst be dragged out into the crowd and lynched. Unable
to move or otherwise signal the officers behind me that I needed to
fall back, I did the only thing I could still do and screamed for help.
Thankfully my voice was heard over the cacophony of yells and the
blaring alarm. The officer closest to me was able to extricate me from
my position and another helped me fall back to the building again.
I found some water and decontaminated my face as best as I could. I
don't know how long I waited in the halls but soon after got back on my
feet and went to where the fight was again. Until reinforcements
arrived every able body made a difference.
Without my gas mask I was afraid I'd be a liability in the hallway
so I took the exit outside to the upper landing above the West Terrace.
I found a police line being held and the terrorists encircling us, much
like on the West Terrace. It was getting later in the day however, and
it appeared we weren't the only ones getting tired. It seemed most of
the mob was content to yell rather than to break our line again.
After some time of guarding the upper landing I saw reinforcements
arrive from the south. I'm not sure which law enforcement agency it was
but I turned to them and started clapping, as it was a sign that badly-
needed help was starting to finally arrive.
Soon after that I started feeling the effects of the day taking
their toll, and I went back inside to rest. Gradually all the members
of CDU 42 gathered in the room known as the Capitol Crypt. We checked
on each other and convalesced, glad to see each other in one piece.
Despite our exhaustion, we all would have ran out to the fight again
should the need have arisen. Thankfully as the day wore on, more and
more resources arrived at the Capitol to drive off the terrorists. We
stayed in the Crypt until quite late, and even after we were allowed to
leave the grounds we didn't get to go home. Those who needed immediate
medical attention took a van to the local hospital while the rest of us
parked near the city center until the city was deemed secure enough for
us to check off. I believe we finally got that message around 1 a.m.
the following morning. We drove back to the Fourth district and from
there went home.
______
Prepared Statement of Harry A. Dunn, Private First Class, U.S. Capitol
Police
July 27, 2021
Chairman Thompson and Members of the Select Committee, thank you
for the opportunity today to give my account regarding the events of
January 6, 2021, from my first-hand experience as a Capitol Police
Officer directly involved in those events, and still hurting from what
happened that day. I am providing this testimony solely in my personal
capacity, and not as a representative of the U.S. Capitol Police.
I reported for duty at the Capitol, as usual, early on the morning
of January 6. We understood that the vote to certify President Biden's
election would be taking place that day, and that protests might occur
outside the Capitol, but we expected any demonstrations to be peaceful
expressions of First Amendment freedoms, just like the scores of
demonstrations we had observed for many years. After roll call, I took
my overwatch post on the East Front of the Capitol, standing on the
steps that lead to the Senate chamber. As the morning progressed, I did
not see or hear anything that gave me cause for alarm.
But around 10:56 am, I received a text message from a friend
forwarding a screen shot of what appeared to be a potential plan of
action very different from a peaceful demonstration. The screen shot
bore the caption ``Jan. 6th--Rally Point--Lincoln Park,'' and said the
``objective'' was ``THE CAPITAL.'' It said, among, other things, that
``Trump has given us marching orders,'' and to ``keep your guns
hidden.'' It urged people to ``bring . . . your trauma kits'' and ``gas
mask,'' to ``[l]ink up early in the day'' in ``6-12 man teams,'' and
indicated there would be a ``time to arm up.'' Seeing that message
caused me concern, to be sure, and looking back now, it seemed to
foreshadow what happened later. At the time, though, we had not
received any threat warnings from our chain of command, and I had no
independent reason to believe that violence was headed our way.
As the morning progressed, the crowd of protestors began to swell
on the east side of the Capitol, many displaying ``Trump'' flags. The
crowd was chanting slogans like ``Stop the Steal!'' and ``We want
Trump!'' But the demonstration was still being conducted in a peaceful
manner.
Early that afternoon, Capitol Police dispatch advised all units
over the radio that we had an ``active 10-100'' at the Republican
National Committee nearby. ``10-100'' is police code for a suspicious
package, such as a potential bomb. That radio dispatch got my attention
and I started to get more nervous and worried, especially because the
crowds on the East Front of the Capitol were continuing to grow. Around
the same time, I started receiving reports on the radio about large
crowd movements around the Capitol, coming from the direction of the
Ellipse to both the West and East Fronts of the Capitol. Then I heard
urgent radio calls for additional officers to respond to the west side,
and an exclamation, in a desperate voice, that demonstrators on the
west side had ``breached the fence!''
Now it was obvious that there was an active threat to the Capitol.
I quickly put on a steel chest plate (which weighs about 20 pounds)
and, carrying my M-4 rifle, sprinted around the north side of the
Capitol to the West Terrace and the railing of the Inaugural stage,
where I had a broad view of what was going on. I was stunned by what I
saw. In what seemed like a sea of people, Capitol Police Officers and
Metropolitan DC Police (``MPD'') officers were engaged in desperate
hand-to-hand fighting with rioters across the west lawn. Until then, I
had never seen anyone physically assault a Capitol Police or MPD
Officer--let alone witness mass assaults being perpetrated on law
enforcement officers. I witnessed the rioters using all kinds of
weapons against the officers, including flag poles, metal bike racks
they had torn apart, and various kinds of projectiles. Officers were
being bloodied in the fighting, many were screaming, and many were
blinded and coughing from chemical irritants being sprayed in their
faces. I gave decontamination aid to as many officers as I could,
flushing their eyes with water to dilute the chemical irritants.
Soon thereafter, I heard an ``Attention, all units!'' radio
dispatch that the Capitol had been breached, and that rioters were in
various places inside the building. At that point, I rushed into the
Capitol with another officer, going first to the basement on the Senate
side where I had heard an MPD officer needed a defibrillator. After
returning outside to the West Terrace to assist officers, I went back
into the Capitol and up the stairs to the Crypt. There, I saw rioters
who had invaded the Capitol carrying a Confederate flag, a red ``MAGA''
flag, and a ``Don't Tread on Me'' flag.
I decided to stand my ground there to prevent any rioters from
heading down the stairs to the Lower West Terrace entrance, because
that was where officers were getting decontamination aid and were
particularly vulnerable. At the top of the stairs, I confronted a group
of the insurrectionists, warning them not to go down. One of them
shouted ``Keep moving, Patriots!'' Another, displaying what looked like
a law enforcement badge, told me ``We're doing this for you!'' One of
the invaders approached like he was about to try and get past me and
head down the stairs, and I hit him, knocking him down.
After getting relieved by other officers in the Crypt, I took off
running upstairs toward the Speaker's Lobby, and helped a plain-clothes
officer who was being hassled by insurrectionists. Some of them were
dressed like members of a militia group, wearing tactical vests, cargo
pants, and body armor. I was physically exhausted, and it was hard to
breathe and see because of all the chemical spray in the air.
More and more insurrectionists were pouring into the area by the
Speaker's Lobby near the Rotunda, some wearing ``MAGA'' hats and shirts
that said ``Trump 2020.'' I told them to leave the Capitol, and in
response, they yelled back: ``No, no, man, this is our house!''
``President Trump invited us here!'' ``We're here to stop the steal!''
``Joe Biden is not the President!'' ``Nobody voted for Joe Biden!''
I am a law enforcement officer, and I keep politics out of my job.
But in this circumstance, I responded: ``Well, I voted for Joe Biden.
Does my vote not count? Am I nobody?''
That prompted a torrent of racial epithets. One woman in a pink
``MAGA'' shirt yelled, ``You hear that, guys, this nigger voted for Joe
Biden!'' Then the crowd, perhaps around 20 people, joined in, screaming
``Boo! Fucking Nigger!''
No one had ever--ever--called me a ``nigger'' while wearing the
uniform of a Capitol Police Officer. In the days following the
attempted insurrection, other Black officers shared with me their own
stories of racial abuse on January 6th. One officer told me he had
never, in his entire 40 years of life, been called a ``nigger'' to his
face, and that that streak ended on January 6th. Yet another Black
officer later told he had been confronted by insurrectionists inside
the Capitol, who told him to ``Put your gun down and we'll show you
what kind of nigger you really are!''
To be candid, the rest of that afternoon is a blur. But I know I
went throughout the Capitol to assist other officers who needed aid,
and to help expel more insurrectionists. In the Crypt, I encountered
Sergeant Gonell, who was giving assistance to an unconscious woman who
had been in the crowd of rioters on the west side of the Capitol. I
helped to carry her to the House Majority Leader's office, where she
was administered CPR. As the afternoon wore on, I was completely
drained both physically and emotionally, and in shock and disbelief
over what had happened. Once the building was cleared, I went to the
Rotunda to recover with other officers and share our experiences from
that afternoon. Rep. Rodney Davis was there offering support to
officers, and when he and I saw each other he came over and gave me a
big hug.
I sat down on a bench with a friend of mine who is also a Black
Capitol Police Officer, and told him about the racial slurs I had
endured. I became very emotional and began yelling ``How the
[expletive] can something like this happen?! Is this America?'' I began
sobbing, and officers came over to console me.
Later on January 6th, after order and security had been restored in
the Capitol through the hard work and sacrifices of law enforcement,
Members took to the floor of the House to speak out about what had
happened that day. Among them was House Minority Leader Kevin McCarthy,
who--along with my fellow officers--I had protected that day, and will
protect today and tomorrow. And the Minority Leader, to his great
credit, said the following to the House: ``The violence, destruction,
and chaos we saw earlier was unacceptable, undemocratic, and un-
American. It was the saddest day I've ever had serving in this
institution.'' Members of this Select Committee, the Minority Leader
was absolutely right that day in how he described what took place at
the Capitol. And for those of us in the Capitol Police who serve and
revere this institution, and who love the Capitol building, it was the
saddest day for us as well.
More than 6 months later, January 6th still isn't over for me. I
have had to avail myself of multiple counseling sessions from the
Capitol Police Employee Assistance Program, and I am now receiving
private counseling therapy for the persistent emotional trauma of that
day. I have also participated in many peer support programs with fellow
law enforcement officers from around the United States. I know so many
other officers continue to hurt, both physically and emotionally.
I want to take this moment and speak to my fellow officers about
the emotions they are continuing to experience from the events of
January 6th. There is absolutely nothing wrong with seeking
professional counseling. What we all went through that day was
traumatic, and if you are hurting please take advantage of the
counseling services that are available to us. I also respectfully ask
this Select Committee to review the services available to us and
consider whether they are sufficient to meet our needs, especially with
respect to the amount of leave we are allowed.
In closing, we can never again allow our democracy to be put in
peril as it was on January 6th. I thank the Members of this Select
Committee for your commitment to determine what led to the disaster at
the Capitol on January 6th, what actually took place at the Capitol
that day, and what steps should be taken to prevent such an attack on
our democracy from ever happening again.
Thank you again for the opportunity to testify, and I would be
happy to answer any questions you may have.
HEARING ON
THE JANUARY 6TH INVESTIGATION
----------
Thursday, June 9, 2022
U.S. House of Representatives,
Select Committee to Investigate the January 6th Attack on
the United States Capitol,
Washington, DC.
The Committee met, pursuant to notice, at 8:02 p.m., in
room 390, Cannon House Office Building, Hon. Bennie G. Thompson
[Chairman of the Committee] presiding.
Present: Representatives Thompson, Cheney, Lofgren, Schiff,
Aguilar, Murphy, Raskin, Luria, and Kinzinger.
Chairman Thompson. The Select Committee to Investigate the
January 6th Attack on the United States Capitol will be in
order.
Without objection, the Chair is authorized to declare the
Committee in recess at any point.
Pursuant to House Deposition Authority Regulation 10, the
Chair announces the Committee's approval to release the
deposition material presented during tonight's hearing.
Thanks to everyone watching tonight for sharing part of
your evening to learn the facts and causes of the events
leading up to and including the violent attack on January 6,
2021, on our democracy, electoral system, and country.
I am Bennie Thompson, Chairman of the January 6th, 2021,
Committee. I was born, raised, and still live in Bolton,
Mississippi, a town with a population of 521, which is midway
between Jackson and Vicksburg, Mississippi, and the Mississippi
River.
I am from a part of the country where people justify the
actions of slavery, the Ku Klux Klan, and lynching. I am
reminded of that dark history as I hear voices today try and
justify the actions of the insurrectionists on January 6, 2021.
Over the next few weeks, hopefully you will get to know the
other Members, my colleagues up here, and me. We represent a
diversity of communities from all over the United States, rural
areas and cities, East Coast, West Coast, and the heartland.
All of us have one thing in common: We swore the same oath,
that same oath that all Members of Congress take upon taking
office and afterwards every 2 years if they are reelected. We
swore an oath to defend the Constitution against all enemies,
foreign and domestic.
The words of the current oath taken by all of us that
nearly every U.S. Government employee takes have their roots in
the Civil War. Throughout our history, the United States has
fought against foreign enemies to preserve our democracy,
electoral system, and country.
When the United States Capitol was stormed and burned in
1814, foreign enemies were responsible. Afterward, in 1862,
when American citizens had taken up arms against this country,
Congress adopted a new oath to help make sure no person who had
supported the rebellion could hold a position of public trust.
Therefore, Congresspersons and United States Federal Government
employees were required for the first time to swear an oath to
defend the Constitution against all enemies, foreign and
domestic.
That oath was put to the test on January 6, 2021. The
police officers who held the line that day honored their oath.
Many came out of that day bloodied and broken. They still bear
those wounds, visible and invisible. They did their duty. They
repelled the mob and ended the occupation of the Capitol. They
defended the Constitution against domestic enemies so that
Congress could return, uphold our own oath, and count your
votes to ensure the transfer of power, just as we have done for
hundreds of years.
But, unlike in 1814, it was domestic enemies of the
Constitution who stormed the Capitol and occupied the Capitol,
who sought to thwart the will of the people, to stop the
transfer of power. They did so at the encouragement of the
President of the United States--the President of the United
States trying to stop the transfer of power, a precedent that
had stood for 220 years, even as our democracy had faced its
most difficult test.
Thinking back again to the Civil War, in the summer of
1864, the President of the United States believed he would be
doomed in his bid for reelection. He believed his opponent,
General George McClellan, would wave the white flag when it
came to preserving the Union. But even with that grim fate
hanging in the balance, President Lincoln was ready to accept
the will of the voters, come what may.
He made a quiet pledge. He wrote down the words: ``This
morning, as for some days past, it seems exceedingly probable
that this Administration will not be reelected. Then it will be
my duty to so co-operate with the President-elect . . . ''
``It will be my duty.''
Lincoln sealed that memo and asked his Cabinet Secretaries
to sign it, sight unseen. He asked them to make the same
commitment he did: To accept defeat if indeed defeat was the
will of the people, to uphold the rule of law, to do what every
President who came before him did and what every President who
followed him would do until Donald Trump.
Donald Trump lost the Presidential election in 2020. The
American people voted him out of office. It was not because of
a rigged system. It was not because of voter fraud. Don't
believe me? Hear what his former attorney general had to say
about it. I warn those who are watching that this contains
strong language.
Attorney General Barr. No, just what I--I've been--I've had--I had
three discussions with the President that I can recall. One was on
November 23rd, one was on December 1st, and one was on December 14th.
And I've been through sort-of the give-and-take of those discussions.
And in that context, I made it clear I did not agree with the idea of
saying the election was stolen and putting out this stuff, which I told
the President was bullshit. And, you know, I didn't want to be a part
of it, and that's one of the reasons that went into me deciding to
leave when I did. I observed, I think it was on December 1st, that, you
know, how can we--you can't live in a world where--where the incumbent
administration stays in power based on its view, unsupported by
specific evidence, that the election--that there was fraud in the
election.
Chairman Thompson. Bill Barr, on election day 2020, he was
the Attorney General of the United States, the top law
enforcement official in the country, telling the President
exactly what he thought about claims of a stolen election.
Donald Trump had his days in court to challenge the
results. He was within his rights to seek those judgments. In
the United States, law-abiding citizens have those tools for
pursuing justice. He lost in the courts just as he did at the
ballot box. In this country, that is the end of the line.
But for Donald Trump, that was only the beginning of what
became a sprawling, multistep conspiracy aimed at overturning
the Presidential election, aimed at throwing out the votes of
millions of Americans--your votes, your voice in our
democracy--and replacing the will of the American people with
his will to remain in power after his term ended.
Donald Trump was at the center of this conspiracy.
Ultimately, Donald Trump, the President of the United States,
spurred a mob of domestic enemies of the Constitution to march
down the Capitol and subvert American democracy.
Any legal jargon you hear about seditious conspiracy,
obstruction of an official proceeding, conspiracy to defraud
the United States boils down to this: January 6th was the
culmination of an attempted coup, a brazen attempt, as one
rioter put it shortly after January 6th, to overthrow the
Government. The violence was no accident. It represented
Trump's last stand, his most desperate chance to halt the
transfer of power.
Now you may hear those words and think this is just another
political attack on Donald Trump by people who don't like him.
That is not the case. My colleagues and I all wanted an
outside, independent commission to investigate January 6th,
similar to what we had after 9/11. But, after first agreeing to
the idea, Donald Trump's allies in Congress put a stop to it.
Apparently, they don't want January 6th investigated at all.
In the last 17 months, many of those same people have tried
to whitewash what happened on January 6th, to rewrite history,
call it a tourist visit, label it ``legitimate political
discourse.''
Donald Trump and his followers have adopted the words of
the songwriter: Do you believe me or your lying eyes?
We can't sweep what happened under the rug. The American
people deserve answers. So, I come before you this evening not
as a Democrat but as an American who swore an oath to defend
the Constitution. The Constitution doesn't protect just
Democrats or just Republicans. It protects all of us, ``We the
people.'' This scheme was an attempt to undermine the will of
the people.
So, tonight and over the next few weeks, we are going to
remind you of the reality of what happened that day, but our
work must do much more than just look backward. Because our
democracy remains in danger, the conspiracy to thwart the will
of the people is not over. There are those in this audience who
thirst for power but have no love or respect for what makes
America great: devotion to the Constitution, allegiance to the
rule of law, our shared journey to build a more perfect Union.
January 6th and the lies that led to insurrection have put
2\1/2\ centuries of Constitutional democracy at risk. The world
is watching what we do here. America has long been expected to
be a shining city on the hill, a beacon of hope and freedom, a
model for others when we are at our best. How can we play that
role when our house is in such disorder?
We must confront the truth with candor, resolve, and
determination. We need to show that we are worthy of the gifts
that are the birthright of every American. That begins here,
and it begins now with a true accounting of what happened and
what led to the attack on our Constitution and our democracy.
In this moment when the dangers of our Constitution and our
democracy loom large, nothing could be more important. Working
alongside the public servants on this dais has been one of the
greatest honors of my time in Congress.
It has been a particular privilege to count as a partner in
this effort and to count as a friend the gentlewoman from
Wyoming, Ms. Cheney. She is a patriot, a public servant of
profound courage, of devotion to her oath and the Constitution.
It is my pleasure to recognize Ms. Cheney for her opening
statement.
Vice Chair Cheney. Thank you very much, Mr. Chairman.
Let me echo those words about the importance of
bipartisanship and what a tremendous honor it is to work on
this Committee.
Mr. Chairman, at 6:01 p.m. on January 6th, after he spent
hours watching a violent mob besiege, attack, and invade our
Capitol, Donald Trump tweeted. But he did not condemn the
attack. Instead, he justified it.
``These are the things and events that happen,'' he said,
``when a sacred landslide election victory is so
unceremoniously and viciously stripped away from great patriots
who have been badly and unfairly treated for so long.''
As you will see in the hearings to come, President Trump
believed his supporters at the Capitol, and I quote, ``were
doing what they should be doing.'' This is what he told his
staff as they pleaded with him to call off the mob, to instruct
his supporters to leave.
Over a series of hearings in the coming weeks, you will
hear testimony, live and on video, from more than half a dozen
former White House staff in the Trump administration, all of
whom were in the West Wing of the White House on January 6th.
You will hear testimony that, ``the President did not really
want to put anything out,'' calling off the riot or asking his
supporters to leave.
You will hear that President Trump was yelling and,
``really angry'' at advisors who told him he needed to be doing
something more.
Aware of the rioters' chants to hang Mike Pence, the
President responded with this sentiment, ``Maybe our supporters
have the right idea.'' Mike Pence, ``deserves it.''
You will hear evidence that President Trump refused for
hours to do what his staff, his family, and many of his other
advisors begged him to do: Immediately instruct his supporters
to stand down and evacuate the Capitol.
Tonight you will see never-before-seen footage of the
brutal attack on our Capitol, an attack that unfolded while a
few blocks away President Trump sat watching television in the
dining room next to the Oval Office.
You will hear audio from the brave police officers battling
for their lives and ours, fighting to defend our democracy
against a violent mob Donald Trump refused to call off.
Tonight, and in the weeks to come, you will see evidence of
what motivated this violence, including directly from those who
participated in this attack. You will see video of them
explaining what caused them to do it. You will see their posts
on social media. We will show you what they have said in
Federal court.
On this point, there is no room for debate: Those who
invaded our Capitol and battled law enforcement for hours were
motivated by what President Trump had told them, that the
election was stolen and that he was the rightful President.
President Trump summoned the mob, assembled the mob, and lit
the flame of this attack.
You will also hear about plots to commit seditious
conspiracy on January 6th, a crime defined in our laws as
conspiring to overthrow, put down, or destroy by force the
Government of the United States or to oppose by force the
authority thereof.
Multiple members of two groups, the Oath Keepers and the
Proud Boys, have been charged with this crime for their
involvement in the events leading up to and on January 6th.
Some have pled guilty.
The attack on our Capitol was not a spontaneous riot.
Intelligence available before January 6th identified plans to,
``invade the Capitol,'' ``occupy the Capitol,'' and take other
steps to halt Congress' count of electoral votes that day.
In our hearings to come, we will identify elements of those
plans, and we will show specifically how a group of Proud Boys
led a mob into the Capitol Building on January 6th.
Tonight, I am going to describe for you some of what our
Committee has learned and highlight initial findings you will
see this month in our hearings.
As you hear this, all Americans should keep in mind this
fact: On the morning of January 6th, President Donald Trump's
intention was to remain President of the United States, despite
the lawful outcome of the 2020 election and in violation of his
Constitutional obligation to relinquish power. Over multiple
months, Donald Trump oversaw and coordinated a sophisticated 7-
part plan to overturn the Presidential election and prevent the
transfer of Presidential power. In our hearings, you will see
evidence of each element of this plan.
In our second hearing, you will see that Donald Trump and
his advisors knew that he had, in fact, lost the election. But,
despite this, President Trump engaged in a massive effort to
spread false and fraudulent information, to convince huge
portions of the U.S. population that fraud had stolen the
election from him. This was not true.
Jason Miller was a senior Trump campaign spokesman. In this
clip, Miller describes a call between the Trump campaign's
internal data expert and President Trump a few days after the
2020 election.
Mr. Miller. I was in the Oval Office, and at some point in the
conversation Matt Oczkowski, who was the lead data person, was brought
on, and I remember he delivered to the President pretty blunt terms
that he was going to lose.
Mr. Heaphy. And that was based, Mr. Miller, on Matt and the data
team's assessment of the sort-of county-by-county, State-by-State
results as reported?
Mr. Miller. Correct.
Vice Chair Cheney. Alex Cannon was one of President Trump's
campaign lawyers. He previously worked for the Trump
organization. One of his responsibilities was to assess
allegations of election fraud in November 2020. Here is one
sample of his testimony, discussing what he told White House
Chief of Staff Mark Meadows.
Mr. Cannon. I remember a call with Mr. Meadows where Mr. Meadows
was asking me what I was finding, and if I was finding anything. And I
remember sharing with him that we weren't finding anything that would
be sufficient to change the results in any of the key States.
Mr. Harris. When was that conversation?
Mr. Cannon. Probably in November, mid- to late-November. I think it
was before my child was born.
Mr. Harris. And what was Mr. Meadows' reaction to that information?
Mr. Cannon. I believe the words he used were, so there's no there
there.
Vice Chair Cheney. ``There is no there there.''
The Trump campaign's general counsel, Matt Morgan, gave
similar testimony. He explained that all of the fraud
allegations and the campaign's other election arguments taken
together and viewed in the best possible light for President
Trump could still not change the outcome of the election.
President Trump's Attorney General, Bill Barr, also told
Donald Trump his election claims were wrong.
Attorney General Barr. Repeatedly told the President in no
uncertain terms that I did not see evidence of fraud. And--you know,
that would have affected the outcome of the election. And frankly a
year and a half later, I haven't seen anything to change my mind on
that.
Vice Chair Cheney. Attorney General Barr also told
President Trump that his allegations about Dominion voting
machines were groundless.
Attorney General Barr. I saw absolutely zero basis for the
allegations, but they were made in such a sensational way that they
obviously were influencing a lot of people--members of the public--that
there was this systemic corruption in the system and that their votes
didn't count and that these machines controlled by somebody else were
actually determining it, which was complete nonsense. And it was being
laid out there. And I told them that it was--that it was crazy stuff
and they were wasting their time on that. And it was doing a great,
grave disservice to the country.
Vice Chair Cheney. But President Trump persisted, repeating
the false Dominion allegations in public at least a dozen more
times, even after his Attorney General told him they were,
``complete nonsense.''
After Barr's resignation on December 23rd, the Acting
Attorney General who replaced him, Jeff Rosen, and the Acting
Deputy, Richard Donoghue, told President Trump over and over
again that the evidence did not support allegations he was
making in public.
Many of President Trump's White House staff also recognized
that the evidence did not support the claims President Trump
was making. This is the President's daughter commenting on Bill
Barr's statement that the Department found no fraud sufficient
to overturn the election.
Mr. Heaphy. How did that affect your perspective about the election
when Attorney General Barr made that statement?
Ms. Trump. It affected my perspective. I respect Attorney General
Barr. So, I accepted what he was saying.
Vice Chair Cheney. As you will hear on Monday, the
President had every right to litigate his campaign claims. But
he ultimately lost more than 60 cases in State and Federal
courts. The President's claims in the election cases were so
frivolous and unsupported that the President's lead lawyer,
Rudy Giuliani, not only lost the lawsuits, his license to
practice law was suspended. Here is what the court said of Mr.
Giuliani: Giuliani ``communicated demonstrably false and
misleading statements to courts, lawmakers, and the public at
large in his capacity as lawyer for former President Donald J.
Trump and the Trump campaign in connection with Trump's failed
effort at reelection in 2020.''
As you will see in great detail in our hearings, President
Trump ignored the rulings of our Nation's courts. He ignored
his own campaign leadership, his White House staff, many
Republican State officials. He ignored the Department of
Justice and the Department of Homeland Security.
President Trump invested millions of dollars of campaign
funds purposely spreading false information, running ads he
knew were false, and convincing millions of Americans that the
election was corrupt and that he was the true President. As you
will see, this misinformation campaign provoked the violence on
January 6th.
In our third hearing, you will see that President Trump
corruptly planned to replace the Attorney General of the United
States so the U.S. Justice Department would spread his false
stolen election claims. In the days before January 6th,
President Trump told his top Justice Department officials,
``Just say the election was corrupt and leave the rest to me
and the Republican Congressmen.''
Senior Justice Department officials, men he had appointed,
told him they could not do that because it was not true.
So, President Trump decided to replace them. He offered
Jeff Clark, an environmental lawyer at the Justice Department,
the job of Acting Attorney General. President Trump wanted Mr.
Clark to take a number of steps, including sending this letter
to Georgia and 5 other States, saying the United States
Department of Justice had, ``identified significant concerns
that may have impacted the outcome of the election.''
This letter is a lie. The Department of Justice had, in
fact, repeatedly told President Trump exactly the opposite,
that they had investigated his stolen election allegations and
found no credible fraud that could impact the outcome of the
election. This letter and others like it would have urged
multiple States to withdraw their official and lawful electoral
votes for Biden.
Acting Deputy Attorney General Richard Donoghue described
Jeff Clark's letter this way, ``this would be a grave step for
the Department to take and it could have tremendous
Constitutional, political, and social ramifications for the
country.''
The Committee agrees with Mr. Donoghue's assessment. Had
Clark assumed the role of Attorney General in the days before
January 6th and issued these letters, the ramifications could
indeed have been grave.
Mr. Donoghue also said this about Clark's plan.
Acting United States Deputy Attorney General Donoghue. And I recall
toward the end saying what you're proposing is nothing less than the
United States Justice Department meddling in the outcome of a
Presidential election.
Vice Chair Cheney. In our hearings, you will hear first-
hand how the senior leadership of the Department of Justice
threatened to resign, how the White House Counsel threatened to
resign, and how they confronted Donald Trump and Jeff Clark in
the Oval Office. The men involved, including Acting Attorney
General Jeff Rosen and Acting Deputy Attorney General Richard
Donoghue, were appointed by President Trump. These men honored
their oaths of office. They did their duty. You will hear from
them in our hearings.
By contrast, Jeff Clark has invoked his Fifth Amendment
privilege against self-incrimination and refused to testify.
Representative Scott Perry, who was also involved in trying
to get Clark appointed as Attorney General, has refused to
testify here. As you will see, Representative Perry contacted
the White House in the weeks after January 6th to seek a
Presidential pardon.
Multiple other Republican Congressmen also sought
Presidential pardons for their roles in attempting to overturn
the 2020 election.
In our fourth hearing, we will focus on President Trump's
efforts to pressure Vice President Mike Pence to refuse to
count electoral votes on January 6th.
Vice President Pence has spoken publicly about this.
Vice President Pence. President Trump is wrong. I had no right to
overturn the election. The Presidency belongs to the American people
and the American people alone. And frankly, there is no idea more un-
American than the notion that any one person could choose the American
President.
Vice Chair Cheney. What President Trump demanded that Mike
Pence do wasn't just wrong. It was illegal, and it was
unconstitutional. You will hear this in great detail from the
Vice President's former general counsel.
Witnesses in these hearings will explain how the former
Vice President and his staff informed President Trump over and
over again that what he was pressuring Mike Pence to do was
illegal. As you will hear, President Trump engaged in a
relentless effort to pressure Pence, both in private and in
public. You will see the evidence of that pressure from
multiple witnesses live and on video.
Vice President Pence demonstrated his loyalty to Donald
Trump consistently over 4 years, but he knew that he had a
higher duty to the United States Constitution. This is
testimony from the Vice President's Chief of Staff.
Mr. Short. That's why I think the Vice President was proud of his 4
years of service, and he felt like much had been accomplished in those
4 years. And I think he was proud to have stood beside the President
for all that had been done. But I think he ultimately knew that his
fidelity to the Constitution was his first and foremost oath. And--and
that's--that's what he articulated publicly. And I think that that's
what he felt.
Mr. Heaphy. His fidelity to the Constitution was more important
than his fidelity to President Trump and his desires----
Mr. Short. The oath he took.
Mr. Heaphy. Yes.
Vice Chair Cheney. You will also hear about a lawyer named
John Eastman. Mr. Eastman was deeply involved in President
Trump's plans. You will hear from former Fourth Circuit Federal
Judge Michael Luttig, a highly-respected leading conservative
judge. John Eastman clerked for Judge Luttig. Judge Luttig
provided counsel to the Vice President's team in the days
before January 6th. The judge will explain how Eastman, ``was
wrong at every turn.''
You will see the email exchanges between Eastman and the
Vice President's counsel as the violent attack on Congress was
underway. Mr. Jacob said this to Mr. Eastman: ``Thanks to your
bullshit, we are under siege.''
You will also see evidence that John Eastman did not
actually believe the legal position he was taking. In fact, a
month before the 2020 election, Eastman took exactly the
opposite view on the same legal issues.
In the course of the Select Committee's work to obtain
information from Mr. Eastman, we have had occasion to present
evidence to a Federal judge. The judge evaluated the facts, and
he reached the conclusion that President Trump's efforts to
pressure Vice President Pence to act illegally by refusing to
count electoral votes likely violated two Federal criminal
statutes.
The judge also said this: ``If Dr. Eastman and President
Trump's plan had worked, it would have permanently ended the
peaceful transition of power, undermining American democracy
and the Constitution. If the country does not commit to
investigating and pursuing accountability for those
responsible, the Court fears January 6th will repeat itself.''
Every American should read what this Federal judge has
written.
The same judge, Judge Carter, issued another decision on
Tuesday night, just this week, indicating that John Eastman and
other Trump lawyers knew that their legal arguments had no real
chance of success in court, but they relied on those arguments
anyway to try to, ``overturn a democratic election.''
You will hear that, while Congress was under attack on
January 6th and the hours following the violence, the Trump
legal team in the Willard Hotel war room continued to work to
halt the count of electoral votes.
In our fifth hearing, you will see evidence that President
Trump corruptly pressured State legislators and election
officials to change election results. You will hear additional
details about President Trump's call to Georgia officials,
urging them to, ``find 11,780 votes,'' votes that did not
exist, and his efforts to get States to rescind certified
electoral slates without factual basis and contrary to law.
You will hear new details about the Trump campaign and
other Trump associates' efforts to instruct Republican
officials in multiple States to create intentionally false
electoral slates and transmit those slates to Congress, to the
Vice President, and the National Archives, falsely certifying
that Trump won States he actually lost.
In our final two June hearings, you will hear how President
Trump summoned a violent mob and directed them illegally to
march on the United States Capitol. While the violence was
under way, President Trump failed to take immediate action to
stop the violence and instruct his supporters to leave the
Capitol.
As we present these initial findings, keep two points in
mind: First, our investigation is still on-going. So, what we
make public here will not be the complete set of information we
will ultimately disclose. Second, the Department of Justice is
currently working with cooperating witnesses and has disclosed
to date only some of the information it has identified from
encrypted communications and other sources.
On December 18, 2020, a group, including General Michael
Flynn, Sidney Powell, Rudy Giuliani, and others, visited the
White House. They stayed late into the evening. We know that
the group discussed a number of dramatic steps, including
having the military seize voting machines and potentially rerun
elections.
You will also hear that President Trump met with that group
alone for a period of time before White House lawyers and other
staff discovered the group was there and rushed to intervene.
A little more than an hour after Ms. Powell, Mr. Giuliani,
General Flynn, and the others finally left the White House,
President Trump sent the tweet on the screen now, telling
people to come to Washington on January 6th. ``Be there,'' he
instructed them, ``will be wild.''
As you will see, this was a pivotal moment. This tweet
initiated a chain of events. The tweet led to the planning for
what occurred on January 6th, including by the Proud Boys, who
ultimately led the invasion of the Capitol and the violence on
that day.
The indictment of a group of Proud Boys alleges that they
planned, ``to oppose by force the authority of the Government
of the United States.''
According to the Department of Justice, on January 6, 2021,
the defendants directed, mobilized, and led members of the
crowd onto the Capitol Grounds and into the Capitol, leading to
the dismantling of metal barricades, the destruction of
property, the breaching of the Capitol Building, and the
assaults on law enforcement.
Although certain former Trump officials have argued that
they did not anticipate violence on January 6th, the evidence
suggests otherwise. As you will see in our hearings, the White
House was receiving specific reports in the days leading up to
January 6th, including during President Trump's Ellipse rally,
indicating that elements in the crowd were preparing for
violence at the Capitol.
On the evening of January 5th, the President's close
advisor, Steve Bannon, said this on his podcast.
Mr. Bannon. All hell is going to break loose tomorrow. Just
understand this. All hell is going to break loose tomorrow.
Vice Chair Cheney. As part of our investigation, we will
present information about what the White House and other
intelligence agencies knew and why the Capitol was not better
prepared.
But we will not lose sight of the fact that the Capitol
Police did not cause the crowd to attack. We will not blame the
violence that day, violence provoked by Donald Trump, on the
officers who bravely defended all of us.
In our final hearing, you will hear a moment-by-moment
account of the hours-long attack from more than half a dozen
White House staff, both live in the hearing room and via
videotaped testimony.
There is no doubt that President Trump was well aware of
the violence as it developed. White House staff urged President
Trump to intervene and call off the mob.
Here is a document written while the attack was under way
by a member of the White House staff, advising what the
President needed to say: ``Anyone who entered the Capitol
without proper authority should leave immediately.''
This is exactly what his supporters on Capitol Hill and
Nation-wide were urging the President to do. He would not.
You will hear that leaders on Capitol Hill begged the
President for help, including Republican Leader McCarthy, who
was ``scared'' and called multiple members of the President
Trump's family after he could not persuade the President
himself.
Not only did President Trump refuse to tell the mob to
leave the Capitol, he placed no call to any element of the U.S.
Government to instruct that the Capitol be defended. He did not
call his Secretary of Defense on January 6th. He did not talk
to his Attorney General. He did not talk to the Department of
Homeland Security. President Trump gave no order to deploy the
National Guard that day, and he made no effort to work with the
Department of Justice to coordinate and deploy law enforcement
assets.
But Vice President Pence did each of those things. For
example, here is what General Milley, the Chairman of the Joint
Chiefs of Staff, testified to this Committee.
General Milley. There were two--two or three calls with Vice
President Pence. He was very animated, and he issued very explicit,
very direct, unambiguous orders. There was no question about that.
And--and he was--and--and I can give you the exact quotes, I guess,
from some of our records somewhere. But he was very animated, very
direct, very firm. And to Secretary Miller: get the military down here.
Get the Guard down here, put down this situation, et cetera.
Vice Chair Cheney. By contrast, here is General Milley's
description of his conversation with President Trump's Chief of
Staff, Mark Meadows, on January 6th.
General Milley. He said we have--we have to kill the narrative that
the Vice President is making all the decisions. We need to establish
the narrative that, you know, that the President is still in charge and
that things are steady or stable or words to that effect. I immediately
interpret that as politics, politics, politics. Red flag for me
personally, no action. But I remember it distinctly.
Vice Chair Cheney. You will hear from witnesses how the day
played out inside the White House, how multiple White House
staff resigned in disgust, and how President Trump would not
ask his supporters to leave the Capitol. It was only after
multiple hours of violence that President Trump finally
released a video instructing the riotous mob to leave. As he
did so, he said to them: ``We love you, and you are very
special.''
You will also hear that, in the immediate aftermath of
January 6th, members of the President's family, White House
staff, and others tried to step in to stabilize the situation,
``to land the plane'' before the Presidential transition on
January 20th.
You will hear about members of the Trump Cabinet discussing
the possibility of invoking the 25th Amendment and replacing
the President of the United States.
Multiple members of President Trump's own Cabinet resigned
immediately after January 6th. One member of the Cabinet
suggested that the remaining Cabinet officers needed to take a
more active role in running the White House and the
administration.
But most emblematic of those days is this exchange of texts
between Sean Hannity and former President Trump's press
secretary, Kayleigh McEnany. Sean Hannity wrote in part: ``Key
now. No more crazy people.'' ``No more stolen election talk.''
``Yes, impeachment and 25th amendment are real . . . many
people will quit.''
Ms. McEnany responded in part: ``Love that.'' ``That is the
playbook.''
The White House staff knew that President Trump was willing
to entertain and use conspiracy theories to achieve his ends.
They knew the President needed to be cut off from all of those
who had encouraged him. They knew that President Donald Trump
was too dangerous to be left alone at least until he left
office on January 20th.
These are important facts for Congress and the American
people to understand fully.
When a President fails to take the steps necessary to
preserve our Union or, worse, causes a Constitutional crisis,
we are at a moment of maximum danger for our Republic.
Some in the White House took responsible steps to try to
prevent January 6th. Others egged the President on. Others who
could have acted refused to do so.
In this case, the White House Counsel was so concerned
about potentially lawless activity that he threatened to resign
multiple times. That is exceedingly rare and exceedingly
serious. It requires immediate attention, especially when the
entire team threatens to resign.
However, in the Trump White House, it was not exceedingly
rare, and it was not treated seriously.
This is a clip of Jared Kushner addressing multiple threats
by White House Counsel Pat Cipollone and his team of lawyers to
resign in the weeks before January 6th.
Vice Chair Cheney. Jared, are you aware of instances where Pat
Cipollone threatened to resign?
Mr. Kushner. I--I kind-of--like I said, my interest at that time
was on trying to get as many pardons done. And I know that, you know,
he was always--to him and the team were always saying, Oh, we're going
to resign. We're not going to be here if this happens, if that happens.
So, I kind-of took it up to just be whining to be honest with you.
Vice Chair Cheney. ``Whining.''
There is a reason why people serving in our Government take
an oath to the Constitution. As our Founding Fathers
recognized, democracy is fragile. People in positions of public
trust are duty-bound to defend it, to step forward when action
is required.
In our country, we don't swear an oath to an individual or
a political party. We take our oath to defend the United States
Constitution, and that oath must mean something.
Tonight, I say this to my Republican colleagues who are
defending the indefensible: There will come a day when Donald
Trump is gone, but your dishonor will remain.
Finally, I ask all of our fellow Americans, as you watch
our hearings over the coming weeks, please remember what is at
stake. Remember the men and women who have fought and died so
that we can live under the rule of law, not the rule of men.
I ask you to think of the scene in our Capitol rotunda on
the night of January 6th. There, in a sacred space in our
Constitutional Republic, the place where our Presidents lie in
state, watched over by statues of Washington and Jefferson,
Lincoln and Grant, Eisenhower, Ford, and Reagan, against every
wall that night encircling the room there were SWAT teams, men
and women in tactical gear with long guns, deployed inside our
Capitol Building.
There in the rotunda these brave men and women rested
beneath paintings depicting the earliest scenes of our
Republic, including one painted in 1824 depicting George
Washington resigning his commission, voluntarily relinquishing
power, handing control of the Continental Army back to
Congress. With this noble act, Washington set the indispensable
example of the peaceful transfer of power, what President
Reagan called nothing less than a miracle.
The sacred obligation to defend this peaceful transfer of
power has been honored by every American President except one.
As Americans, we all have a duty to ensure that what
happened on January 6th never happens again, to set aside
partisan battles, to stand together to perpetuate and preserve
our great Republic.
Thank you, Mr. Chairman.
Chairman Thompson. As we provide answers to the American
people about January 6th, it is important that we remember
exactly what took place, that this was no tourist visit to the
Capitol.
Most of the footage we are about to play has never been
seen. The Select Committee obtained it as a part of our
investigation.
This isn't easy to watch. I want to warn everyone that this
video includes violence and strong language.
Without objection, I include in the record a video
presentation of the violence of January 6th.
Voice. Grab your bullet. Grab your bullet. Grab your bullet.
MPD Radio Transmission. Yeah. Just be aware, be advised there's
probably about 300 Proud Boys. They're marching eastbound in this 400
block of kind-of Independence, actually on the Mall toward the United
States Capitol.
Crowd. U-S-A! U-S-A! U-S-A!
Voice. I am not allowed to say what's going to happen today,
because everyone's just going to have to watch for themselves. But it's
going to happen. Something's going to happen.
Crowd. Whose streets? Our streets. Whose streets? Our streets.
Whose streets? Our streets.
Voice. Don't need to hurt you. We are on your side. Don't make us
go against you. Must be a brown shirt. Pick a side. Pick a side. These
are our streets. 20 bucks a picture.
President Trump. I hope Mike is going to do the right thing. I hope
so. I hope so. Because if Mike Pence does the right thing, we win the
election . . .
All Vice President Pence has to do is send it back to the States to
recertify, and we become President, and you are the happiest people . .
.
Mike Pence is going to have to come through for us. And if he
doesn't, that will be a--a sad day for our country, because you'll
never take back our country with weakness. You have to show strength,
and you have to be strong.
Crowd. U-S-A! U-S-A! U-S-A! U-S-A!
MPD Radio Transmission. Cruiser 50, it does look like we're going
to have an ad hoc march stepping off here. There's a crowd surge
heading east.
Crowd. We love Trump. We love Trump. We love Trump. We love Trump.
We love Trump. We love Trump. We love Trump. We love Trump.
President Trump. Mike Pence, I hope you are going to stand up for
the good of our Constitution and for the good of our country. And if
you're not, I'm going to be very disappointed in you, I will tell you
right now.
Crowd. U-S-A! U-S-A! U-S-A! U-S-A! U-S-A!
Voice. [screaming]
Voice. Get back, lady. Get back, lady.
USCP Radio Transmission. EA 101 priority, we've been passed first
on Peace Circle, breached the line. We need back-up.
Voice. What are you doing? Guys, what are you doing? Fuck yeah.
Fuck yeah. [unintelligible]
House Sergeant-at-Arms Paul D. Irving. Madam Speaker, the Vice
President and the United States Senate. [applause]
MPD Radio Transmission. Cruiser 50, we're going to give riot
warning [unintelligible]. We're going to give riot warning. We're gonna
try and get compliance, but this is now effectively a riot.
MPD Radio Transmission. 1349 hours, declaring it a riot.
MPD Radio Transmission. Cruiser 5 to 50, be advised Capitol Police
1 advised they're trying to breach and get into the Capitol.
MPD Radio Transmission. 50, I copy.
Voice. Hold the line. Hold the line. Hold the line. Hold the line.
Hold the line.
Voice. Fuck the line.
MPD Radio Transmission. 42, we're about 5 minutes out. We're trying
to make our way through all this.
Crowd. [unintelligible]
Voice. Go, go, go, go, go.
MPD Radio Transmission. Cruiser 50, we have a breach of the
Capitol, breach of the Capitol from the upper level.
MPD Radio Transmission. Be advised, they are requesting additional
resources on the east side, as they have broken into that window, and
they're trying to kick it in.
Rep. James P. McGovern. Without objection, the Chair declares the
House in recess pursuant to clause 12(b) of rule I.
Voice. ``Mike Pence didn't have the courage to do what should have
been done to protect our Country and our Constitution giving States a
chance to certify a corrected set of facts, not the fraudulent or
inaccurate ones which they were asked to previously certify. US[A]
demands the truth.''
Crowd. Bring out Pence. Bring out Pence. Bring him out. Bring out
Pence. Hang Mike Pence. Hang Mike Pence. Hang Mike Pence. Hang Mike
Pence. Hang Mike Pence. Hang Mike Pence.
Voice. You pepper sprayed another American that was fighting for
you. [unintelligible]
Voice. Take it all away. Take it all away. Get him back in.
[unintelligible]
Crowd. Our house. Our house. Our house. Move, move. Our house.
Whose house? Our house. Whose house? Our house. [unintelligible]
Voice. Get the fuckers. [unintelligible]
Voice. We can't hold this. We're going to get too many fucking
people here. Look at this fucking vantage point. Man, we're fucked.
USCP Radio Transmission. We need an area for the House Members.
They're all walking over now through the tunnel.
MPD Radio Transmission. We're trying to hold the upper deck. We are
trying to hold the upper deck now. We need to close the doors of the
Capitol. I need more support. [unintelligible]
We've lost the line. We've lost the line. All MPD get back. All MPD
pull back up to the upper deck. All MPD pull back to the upper deck
ASAP.
Crowd. Nancy, Nancy, Nancy, Nancy, Nancy, Nancy, Nancy, Nancy,
Nancy, Nancy, Nancy. [unintelligible]
Voice. Nancy Pelosi. [unintelligible]
MPD Radio Transmission. . . . Cruiser 50, be advised that Capitol
Police are going to start moving their resources inside. They're going
to start the N4 officers first.
Voice. No violence. No violence. [unintelligible]
USCP Radio Transmission. . . . H-208 with the four Members, the
door's barricaded. There's people flooding the hallways outside, and we
have no way out.
USCP Radio Transmission. . . . Is that officers still remaining on
the House floor in the--on the third floor to use the subways
themselves. It's time to evacuate, so we can secure the Members on the
other side. Copy?
Crowd. Stop the steal! Stop the steal!
Voice. It's up to us people now, the American people.
Voice. But what are you ready to do?
Voice. One more time?
Voice. What are you ready to do?
Voice. Whatever it takes. I'll lay my life down if it takes.
Voice. Absolutely. That's why we showed up today.
Voice. Bring her out. Bring her out here. We're coming in if you
don't bring her out. Fuck you. Fuck you, you son of a bitch. You back
up. You back up.
Voice. Can I have my cell phone back?
Voice. Go ahead and try.
Voice. Get him up. Get him up. Get a medic.
Voice. Officer down, get him up.
Voice. We love you guys.
Voice. Get him up. Get him up. Get him up.
Crowd. U-S-A! U-S-A! U-S-A! U-S-A! U-S-A! U-S-A! U-S-A!
[unintelligible]
MPD Radio Transmission. . . . West Terrace door for backup.
Voice. I need backup. I need backup.
Voice. Back up. Back up. [unintelligible]
President Trump. They were peaceful people. These were great
people. The crowd was unbelievable. And I mentioned the word love. The
love--the love in the air, I've never seen anything like it.
Chairman Thompson. Pursuant to the order of the Committee
of tonight, the Chair declares the Committee in recess for a
period of approximately 10 minutes.
[Accordingly, at 9:02 p.m., the Committee recessed until
9:12 p.m., when it was called to order by the Chairman.]
Chairman Thompson. I want to thank our witnesses for being
with us this evening to share their first-hand accounts of that
terrible day.
I know that some of the witnesses from our first hearing
are in the room with us, along with some of the family members,
friends, and widows of the officers who lost their lives as a
result of the attack. Thank you all for being here for us and
the American people.
Officer Caroline Edwards has been with the United States
Capitol Police since 2017. On January 6th, Officer Edwards was
assigned to the First Responder Unit, which serves as the first
line of defense at the Capitol complex. She also served as a
member of the Civil Disturbance Unit, a special subset of the
Uniformed Division trained to respond to mass demonstration
events. Officer Edwards is a graduate of the University of
Georgia and currently is working on a master's degree in
intelligence analysis from Johns Hopkins University.
Nick Quested is an acclaimed filmmaker whose credits
include documenting stories from war zones in Afghanistan,
Syria, and Iraq. On January 6th, Mr. Quested was working on a
documentary about, ``why Americans are so divided when
Americans have so much in common.'' During that day, Mr.
Quested interviewed and documented movements of the people
around the Capitol, including the first moments of the violence
against the Capitol Police and the chaos that ensued.
I will now swear in our witnesses. The witnesses will
please stand and raise your right hands.
[Witnesses sworn.]
Chairman Thompson. Let the record reflect the witnesses
answered in the affirmative.
Without objection, the witnesses' statements will be
included in the record.
Pursuant to section 5(c)(8) of House Resolution 503, I
recognize myself for questioning.
As you saw just a few minutes ago, the Proud Boys
instigated the first breach of the Capitol just before 1
o'clock p.m., where rioters pushed over barricades near the
Peace Circle at the foot of the Capitol. Our two witnesses
tonight were both there at the time of that first breach.
Officer Edwards was standing with other officers behind a
line of bike racks that marked the perimeter of the Capitol
Grounds. She bravely tried to prevent an angry crowd from
advancing on the Capitol. Unfortunately, she was overrun and
knocked unconscious as the crowd advanced on the Capitol.
Mr. Quested was a few yards away from Officer Edwards,
taking footage of the Proud Boys as part of his work on a
documentary film. Most of his footage has never been shown
publicly before we shared it this evening.
Officer Edwards, I would like to start by asking if you
could tell us why you believe it is important for you to share
your story this evening with the Committee and the American
public.
Officer Edwards.\1\ Well, thank you, Mr. Chairman. I really
appreciate it. Thank you to the Committee for having me here to
testify.
---------------------------------------------------------------------------
\1\ Officer Edwards's prepared statement is included in the
Appendix beginning on p. 93.
---------------------------------------------------------------------------
I was called a lot of things on January 6, 2021, and the
days thereafter. I was called Nancy Pelosi's dog, called
incompetent, called a hero, and a villain. I was called a
traitor to my country, my oath, and my Constitution.
In actuality, I was none of those things. I was an American
standing face-to-face with other Americans asking myself how
many times--many, many times--how we had gotten here.
I had been called names before, but never had my patriotism
or duty been called into question. I, who got up every day, no
matter how early the hour or how late I got in the night
before, to put on my uniform and to protect America's symbol of
democracy; I, who spent countless hours in the baking sun and
freezing snow to make sure that America's elected officials
were able to do their job; I, whose literal blood, sweat, and
tears were shed that day defending the building that I spent
countless holidays and weekends working in.
I am the proud granddaughter of a Marine that fought in the
Battle of the Chosin Reservoir in the Korean War. I think of my
papa often in these days, how he was so young and thrown into a
battle he never saw coming, and answered the call at a great
personal cost; how he lived the rest of his days with bullets
and shrapnel in his legs but never once complained about his
sacrifice.
I would like to think that he would be proud of me, proud
of his granddaughter that stood her ground that day and
continued fighting even though she was wounded, like he did
many years ago. I am my grandfather's granddaughter, proud to
put on a uniform and serve my country.
They dared to question my honor. They dared to question my
loyalty. They dared to question my duty. I am a proud American,
and I will gladly sacrifice everything to make sure that the
America my grandfather defended is here for many years to come.
Thank you.
Chairman Thompson. Officer Edwards, your story and your
service is important, and I thank you for being here tonight.
Mr. Quested, I would also like to ask you to introduce
yourself. Can you tell us how you found yourself in Washington,
DC, on January 6, 2021?
Mr. Quested.\2\ Good evening, Chair and Madam Vice Chair.
Thank you for the introduction.
---------------------------------------------------------------------------
\2\ Mr. Quested's prepared statement is included in the Appendix
beginning on p. 93.
---------------------------------------------------------------------------
As stated, in the winter of 2020, I was working on a
documentary. As part of that documentary, I filmed several
rallies in Washington, DC, on December 11th and December the
12th, and I learned there would be a rally on The Mall on
January 6th. So, my three colleagues and I came down to
document the rally.
According to the permit at the event, there was going to be
a rally at the Ellipse. We arrived at The Mall and observed a
large contingent of Proud Boys marching toward the Capitol. We
filmed them, and almost immediately I was separated from my
colleagues.
I documented the crowd turn from protesters to rioters to
insurrectionists. I was surprised at the size of the group, the
anger, and the profanity.
For anyone who didn't understand how violent that event
was, I saw it, I documented it, and I experienced it. I heard
incredibly aggressive chanting, and I subsequently shared that
footage with the authorities.
I am here today pursuant to a House subpoena.
Thank you so much.
Chairman Thompson. Thank you, Mr. Quested.
The Select Committee has conducted extensive investigative
work to understand what led the Proud Boys and other rioters to
the Capitol on January 6th.
We have obtained substantial evidence showing that the
President's December 19th tweet calling his followers to
Washington, DC, on January 6th energized individuals from the
Proud Boys and other extremist groups.
I would like to play a brief video highlighting some of
this evidence.
Mr. Childress. My name is Marcus Childress, and I'm an
investigative counsel for the Select Committee to Investigate
the January 6th Attack on the United States Capitol.
President Trump. What do you want to call him? Give me a
name. Give me a name. Go ahead.
Debate Moderator Chris Wallace. White supremacists.
[crosstalk]
President Trump. Who would you like me to condemn?
Debate Moderator Chris Wallace. White supremacists and----
Then-Candidate Biden. Proud Boys. [crosstalk]
President Trump. Proud Boys, stand back and stand by----
Mr. Childress. After he made this comment, Enrique Tarrio,
then chairman of the Proud Boys, said on Parler, ``Standing by
sir.'' During our investigation, we learned that this comment
during the Presidential debate actually led to an increase in
membership in the Proud Boys.
Mr. Quinn. Would you say that Proud Boys numbers increased
after the stand back, stand by comment?
Mr. Bertino. Exponentially. I'd say tripled probably. With
the potential for a lot more eventually.
Ms. Phoenix. And did you ever sell any stand back and stand
by merchandise?
Mr. Tarrio. Uh, one of the vendors on my page actually beat
me to it, but I wish I would have--I wish I would have made a
stand back, stand by shirt.
Mr. Childress. On December 19th, President Trump tweeted
about the January 6th rally and told attendees, ``Be there,
will be wild!'' Many of the witnesses that we interviewed were
inspired by the President's call and came to DC for January
6th, but the extremists, they took it a step further. They
viewed this tweet as a call to arms. A day later, the
Department of Justice describes how the Proud Boys created a
chat called the Ministry of Self Defense Leadership Chat. In
this chat, the Proud Boys established a command structure in
anticipation of coming back to DC on January 6th. The
Department of Justice describes Mr. Tarrio coming into
possession of a document called the ``1776 Returns,'' which
describes individuals occupying key buildings around the United
States Capitol. The Oath Keepers are another group that the
Committee investigated.
Mr. Jones. You better get your ass to DC folks this
Saturday.
Mr. Rhodes. Yeah. If you don't, there's gonna be no more
Republic. But we're not gonna let that happen. It's not even an
``if.'' It's either President Trump is encouraged and
bolstered, strengthened to do what he must do, or we wind up in
a bloody fight. We all know that. The fight's coming.
Mr. Childress. The Oath Keepers began planning to block the
peaceful transfer of power shortly after the November 3rd
election. And according to the Department of Justice, Stewart
Rhodes, the Oath Keeper's leader, said to his followers that,
``We aren't getting through this without a civil war.'' In
response to the December 19, 2020, tweet by President Trump,
the Oath Keepers focused on January 6th in Washington, DC. In
response to the tweet, one member, the president of the Florida
chapter, put on social media, ``the President called us to the
Capitol, he wants us to make it wild.'' The goal was for the
Oath Keepers to be called to duty so that they could keep the
President in power although President Trump had just lost the
election. The Committee learned that the Oath Keepers set up
quick reaction forces outside of the city and in Virginia where
they stored arms. The goal of these quick reaction forces was
to be on standby just in case President Trump invoked the
Insurrection Act.
Mr. Prasanna. Did the Oath Keepers ever provide weapons to
members?
Mr. Rhodes. I'm going to decline to answer that on Fifth
Amendment grounds--for due process grounds.
Mr. Childress. In footage obtained by the Committee, we
learned that on the night of January 5th, Enrique Tarrio and
Stewart Rhodes met in a parking garage in Washington, DC.
Mr. Tarrio. There's mutual respect there. I think we're--
we're fighting the same fight, and I think that's what's
important.
Mr. Childress. The Committee learned that the Oath Keepers
went into the Capitol through the east doors in two stack
formations. The DOJ alleges that one of the stacks went into
the Capitol looking for Speaker Pelosi, although they never
found her. As the attack was unfolding, Mr. Tarrio took credit.
In documents obtained by the Department of Justice, Mr. Tarrio
said, in an encrypted chat, ``make no mistake'' and ``we did
this.'' Later on that evening, Mr. Tarrio even posted a video
which seemed to resemble him in front of the Capitol with a
black cape. And the title of the video was, ``Premonition.''
The evidence developed by the Select Committee and the
Department of Justice highlights how each group participated on
the attack on the Capitol on January 6th.
In fact, the investigation revealed that it was individuals
associated with the Proud Boys who instigated the initial
breach at the peace circle at 12:53 p.m.
Crowd. U-S-A! U-S-A! U-S-A!
Mr. Childress. Within 10 minutes, rioters had already
filled the Lower West Plaza. [inaudible] By 2 o'clock, rioters
had reached the doors on the West and the East Plazas. And by
2:13, rioters had actually broken through the Senate wing door
and got into the Capitol building. [inaudible] A series of
breaches followed. At
2:25 p.m., rioters breached the east side doors to the rotunda.
[inaudible] And then right after 2:40 p.m., rioters breached
the east side doors near the Ways and Means room. [inaudible]
Once the rioters infiltrated the Capitol, they moved to the
crypt, the rotunda, the hallways leading to the House Chamber,
and even inside the Senate Chamber. [inaudible]
Chairman Thompson. Individuals associated with two violent
extremist groups have been charged with seditious conspiracy in
connection with the January 6th attack.
One is the Oath Keepers. They are a group of armed,
antigovernment extremists. The other group is the Proud Boys.
They promote white supremacist beliefs and have engaged in
violence with people they view as their political enemies.
Members of both groups have already pled guilty to crimes
associated with the January 6th attack.
Mr. Quested, as part of the documentary you have been
filming, you gained access to the Proud Boys and their leader,
Enrique Tarrio. Your crew filmed them in Washington, DC, on the
evening of January 5th and then on January 6th.
On January 5th, the night before the attack, you were with
the head of the Proud Boys, Mr. Tarrio, in Washington, DC. What
happened?
Mr. Quested. We picked up Mr. Tarrio from jail. He had been
arrested for carrying some magazines, some long--some extra-
capacity magazines, and for the--he took responsibility for the
burning of the Black Lives Matter flag that was stolen from the
church on December the 12th.
We were attempting to get an interview with Mr. Tarrio. We
had no idea of any of the events that were going to
subsequently happen.
We drove him to pick up his bags from the property
department of the police, which is just south of The Mall. We
picked up his bags and went to get some other bags from the
Phoenix Hotel, where we encountered Mr. Stewart Rhodes from the
Oath Keepers.
By the time I had gone to park the car, my colleague was
saying--who had got into the car with Mr. Tarrio--that they had
moved to a location around the corner, the parking garage of
the Hall of Legends, I believe. So, we quickly drove over
there. We drove down into the parking garage and filmed the
scene of Mr. Tarrio and Mr. Rhodes and certain other
individuals in that garage.
We then continued to follow Mr. Tarrio. There was some
discussion about where he was going to go. He ended up going
toward a hotel in Baltimore, and we conducted an interview with
him in the hotel room.
Then we returned to DC for that night in a--and what was
interesting that night, actually, was, that was the first
indication that DC was much more busy than it had been any
other time we had been here, because we couldn't get into the
hotels we wanted to, and we ended up at a hotel that, you know,
was not as satisfactory as we would have hoped.
Chairman Thompson. Thank you. So, what you are saying is,
you filmed the meeting between Mr. Tarrio and Oath Keepers
leader Stewart Rhodes, right?
Mr. Quested. Indeed.
Chairman Thompson. You couldn't hear what was said, but,
according to the Justice Department indictment of Mr. Tarrio, a
participant referenced the Capitol.
Now, on the morning of January 6th, you learned the Proud
Boys would gather near the rally scheduled to take place near
the White House. What time did you meet up with the Proud Boys,
and what was happening when they met?
Mr. Quested. We met up with the Proud Boys somewhere around
10:30 a.m., and they were starting to walk down The Mall in an
easterly direction toward the Capitol.
There was a large contingent, more than I had expected. I
was confused, to a certain extent, why we were walking away
from the President's speech, because that is what I felt we
were there to cover.
Chairman Thompson. So, at 10:30 a.m., that is early in the
day. That is even before President Trump had started speaking.
Am I correct?
Mr. Quested. Yes, sir.
Chairman Thompson. So, how many Proud Boys would you
estimate were marching together to the Capitol?
Mr. Quested. A couple of hundred, potentially. Yes, I would
say a couple of hundred Proud Boys were marching toward the
Capitol at that point.
Chairman Thompson. At the time, was the area heavily
guarded?
Mr. Quested. No. That was--I remember we walked past the--
we walked down The Mall, we walked to the right of the
Reflecting Pool and then north along the road that leads to the
Peace Circle. As we were walking past the Peace Circle, I
framed the Proud Boys to the right of my shot, with the Capitol
behind, and we see one sole police officer at the barriers,
which are subsequently breached.
We then walk up and past a tactical unit preparing. You see
that in the film, where the man questions their duty and their
honor, and you see maybe a dozen Capitol Police putting on
their riot gear.
Chairman Thompson. So, how would you describe the
atmosphere at that time?
Mr. Quested. The atmosphere was--it seemed to be much
darker. I make efforts to create familiarity between myself and
my subjects to, you know, make them feel comfortable, and the
atmosphere was much darker this day than it had been in these
other days.
There was also a contingent of Proud Boys that I hadn't met
before from Arizona who appeared to wear these orange hats and
had orange armbands.
Chairman Thompson. So, when the Proud Boys went back down
the hill to the Peace Circle, did a larger crowd start to
gather?
Mr. Quested. Well, no, first of all, we went around to the
back and down the steps, and we took some photographs on the
east side of the Capitol. Then we went for lunch. We went for
tacos.
Chairman Thompson. So, Mr. Quested, you are a journalist,
so you are careful to stick to things that you have observed,
but what you have told us is highly relevant.
Let me highlight a few key facts that you and others have
provided the Committee.
First, there was a large group of Proud Boys present at the
Capitol. We know that from multiple sources. You now estimate
that there were around 250 to 300 individuals, you have
testified. They weren't there for President Trump's speech. We
know this because they left that area to march toward the
Capitol before the speech began.
They walked around the Capitol that morning. I am concerned
this allowed them to see what defenses were in place and where
weaknesses might be. They decided to launch their attack at the
Peace Circle, which is a front door of the Capitol complex.
It is the first security perimeter that those marching from
the Ellipse would have to come to as they move toward the
Capitol. The Peace Circle walkway was always where the
thousands of angry Trump supporters would arrive after
President Trump sent them from the Ellipse.
The Proud Boys timed their attack to the moments before the
start of the joint session in the Capitol, which is also where
President Trump directed the angry mob. ``We fight like hell,''
he told them before sending them down Pennsylvania Avenue right
to where the Proud Boys gathered and where you were filming.
Now, a central question is whether the attack on the
Capitol was coordinated and planned. What you witnessed is what
a coordinated and planned effort would look like. It was the
culmination of a months-long effort spearheaded by President
Trump.
Mr. Quested, thank you for your eyewitness account of the
lead-up to the breach of the Peace Circle.
This brings us to a point in time where you and Officer
Edwards were in close proximity.
At this point, I reserve the balance of my time.
Pursuant to section 5(c)(8) of House Resolution 503, the
Chair recognizes gentlewoman from Wyoming, Ms. Cheney, for
questioning.
Vice Chair Cheney. Thank you very much, Mr. Chairman.
Officer Edwards, I want to start by thanking you for your
service and thank you for your courage. Thank you for being
here this evening.
I know that it is not easy to relive what happened, for you
and for the officers behind you and for the family members of
the officers in the audience this evening, but it is really
important for the country to have a full accounting and
understand what happened.
I want to start, Officer Edwards, with a short clip that
shows the horrible moment when you were injured as the Peace
Circle was breached.
[Video of the attack on Officer Edwards shown.]
Vice Chair Cheney. Officer Edwards, can you describe the
crowd that had assembled at the Peace Circle as you and your
fellow officers stood behind and guarded the bike racks at the
Peace Circle?
Officer Edwards. Yes.
So, there were about, I want to say, about five of us on
that line. There were, so there was our bike rack, and then at
the bottom of the Pennsylvania Avenue walkway or right by Peace
Circle, there was another bike rack. So, the crowd had kind-of
gathered there. It was the crowd led by Joseph Biggs.
They were mostly in civilian clothes. There were some who
had military fatigues on. We could see people with bullet-proof
vests on, you know, things like that. They didn't seem, you
know, extremely cohesive, but they had gathered there in their
outfits.
But they had gathered there together, and Joseph Biggs
started, he had a megaphone, and he started talking about, you
know, first it was things kind-of relating to Congress. Then
the table started turning once the, what is now the Arizona
group, is what you said, the crowd with the orange hats, they
came up chanting, ``F-u-c-k Antifa,'' and they joined that
group.
Once they joined that group, Joseph Biggs's rhetoric turned
to the Capitol Police. He started asking us questions like,
``You didn't miss a paycheck during the pandemic,'' mentioning
stuff about--our pay scale was mentioned--and, you know,
started turning the tables on us.
I have worked, I can, you know, conservatively say,
probably hundreds of civil disturbance events. I know when I am
being turned into a villain. That is when I turned to my
sergeant, and I stated the understatement of the century. I
said, ``Sarge, I think we are going to need a few more people
down here.''
So, after that, you know, I think they started conferring.
They went a little silent; they started conferring among each
other. I saw the person now identified as Ryan Samsel. He put
his arm around Joseph Biggs, and they were talking. Then they
started approaching the first barricade. They ripped the first
barricade down, and they approached our bike racks.
You know, at that time, we started holding on, grabbing the
bike racks. You know, there weren't many of us, so I grabbed
the middle between two different bike racks. You know, I wasn't
under any pretense that I could hold it for very long, but I
just wanted to, you know, make sure that we could get more
people down and get our CDU units time to answer the call.
So, we started grappling over the bike racks. I felt the
bike rack come on top of my head, and I was pushed backward. My
foot caught the stair behind me, and my chin hit the handrail.
Then I--at that point I had blacked out, but the back of my
head clipped the concrete stairs behind me.
Vice Chair Cheney. You were knocked unconscious; is that
right, Officer Edwards?
Officer Edwards. Yes, ma'am.
Vice Chair Cheney. But then, when you regained
consciousness, even with the injuries, you returned to duty. Is
that right?
Officer Edwards. Yes, ma'am. You know, at that time,
adrenaline kicked in. I ran toward the West Front, and I tried
to hold the line at the Senate steps at the Lower West Terrace.
More people kept coming at us. It just seemed like, you
know, more and more people started, you know, coming onto the
West Front. They started overpowering us.
That was right about when MPD's officers showed up. Their
bike officers pushed the crowd back and allowed our CDU units,
as well as theirs, to form that line that you see, that very
thin line between us and the protesters, or the rioters, you
know, at that time.
I fell behind that line. For a while, I started
decontaminating people who had gotten sprayed and treating
people medically who needed it.
Vice Chair Cheney. Then you were injured again, there on
the West Terrace. Is that right, Officer Edwards?
Officer Edwards. Yes, ma'am.
So, after a while, I got back on the line. It was on the
House side of the Lower West Terrace, and I was holding that
line for a while. There weren't many of us over there. Officer
Sicknick was behind me for most of the time, for about 30 to 45
minutes that I was down there. We were just--as the best we
could, we were just, you know, grappling over bike racks and
trying to hold them as quick as possible.
All of a sudden, I see movement to the left of me, and I
turned, and it was Officer Sicknick with his head in his hands.
He was ghostly pale, which--I figured at that point that he had
been sprayed, and I was concerned. My, you know, cop alarm
bells went off. Because if you get sprayed with pepper spray,
you are going to turn red. He turned just about as pale as this
sheet of paper.
So, I looked back to see what had hit him, what had
happened, and that is when I got sprayed in the eyes as well. I
was taken to be decontaminated by another officer, but we
didn't get the chance because we were then tear-gassed.
Vice Chair Cheney. We are going to play just a brief clip
of that moment that you have just described, Officer Edwards.
[Video of the moment Officer Edwards was tear-gassed
shown.]
Vice Chair Cheney. Officer Edwards, I just want to thank
you for being here. I know, again, how difficult it is. I know
the family of Officer Sicknick, as well, is here tonight.
One of the things one of the Capitol Police officers said
to me recently was to ask me whether or not, as Members of
Congress, all of us understood that on that day, on January
6th, when we were evacuated from the Chamber, were led to a
safe, undisclosed location, whether we knew that so many of you
had rushed out of the building and into the fight. I can assure
you that we do know that and that we understand how important
your service is.
Thank you for your continued work with our Committee and
the interviews.
Thank you very much, for both of you, for being here this
evening.
Mr. Chairman, I yield back.
Chairman Thompson. Thank you very much.
Ms. Edwards, can you give us one memory of that awful day
that stands out most vividly in your mind?
Officer Edwards. I can.
That time when I talked about falling behind MPD's line, I
remember--because I had been kind-of shielded away, because I
was holding those stairs, so I wasn't able to really see what
was going on over here. When I fell behind that line and I saw,
I can just remember my breath catching in my throat, because
what I saw was just a war scene. It was something like I had
seen out of the movies. I couldn't believe my eyes.
There were officers on the ground. You know, they were
bleeding, they were throwing up, they were, you know, they had,
I mean, I saw friends with blood all over their faces. I was
slipping in people's blood. You know, I was catching people as
they fell.
It was carnage. It was chaos. I can't even describe what I
saw.
Never in my wildest dreams did I think that, as a police
officer, as a law enforcement officer, I would find myself in
the middle of a battle. You know, I am trained to detain, you
know, a couple of subjects and, you know, handle a crowd, but I
am not combat trained. That day, it was just hours of hand-to-
hand combat, hours of dealing with things that were way beyond
what any law enforcement officer has ever trained for.
I just remember, I just remember that moment of stepping
behind the line and just seeing the absolute war zone that the
West Front had become.
Chairman Thompson. Let me thank you for your service and
obviously your bravery that you have told the world about
tonight. It is unfortunate that you had to defend the Capitol
from fellow Americans. None of us would ever think that that
would have to happen, but it did.
So let me thank our witnesses for joining us tonight and
sharing their experiences with America.
Throughout my chairmanship of this Committee, I have
continuously vowed that this Committee will ensure a
comprehensive account of the heroic acts on January 6th and
that we will follow the facts wherever they lead. Your
testimony is an essential part of that record and helps us do
our job.
Mr. Quested, thank you for sharing your footage and your
account of the day's events with us. The images you recorded
and have shared with the Committee do a better job than any of
our words in reinforcing the violence of January 6th. We hope
that the power of your footage helps encourage all Americans to
consider how citizens with so much in common could viciously
brawl at the seat of their democratic government.
Officer Edwards, thank you for your brave service, as I
indicated, on January 6th and all you did to protect us and,
most importantly, our democracy. If you and your fellow
officers hadn't held the line against those violent
insurrectionists, we can only imagine the disaster that would
have ensued.
Your heroism in the face of danger is admirable, and your
will to continue to protect and serve, despite your serious
injuries, should be an inspiration to all of us. We wish you a
continued recovery and look forward to seeing you back in
uniform sometime soon.
The Members of the Select Committee may have additional
questions for tonight's witnesses, and we ask that you respond
expeditiously in writing to those questions.
Without objection, Members will be permitted 10 business
days to submit statements for the record, including opening
remarks and additional questions for the witnesses.
The witnesses have just told us what they heard the rioters
saying, why they stormed the Capitol on that day. Now we are
going to hear it from the rioters themselves.
Without objection, I include in the record a video
presentation.
Voice. We were invited by the President of the United States.
Mr. Schornack. What really made me want to come was the fact that,
you know, I had supported Trump all that time. I did believe, you know,
that the election was being stolen. And Trump asked us to come.
Mr. Barber. He personally asked for us to come to DC that day. And
I thought, for everything he's done for us, if this is the only thing
he's going to ask of me, I'll do it.
President Trump. We're going to walk down to the Capitol.
Mr. Childress. Do you recall President Trump mentioning going to
the Capitol during his speech?
Mr. Barber. Oh, yeah. So, that's one of my disappointments. He said
he was going to go, go with us, that he was going to be there.
Mr. Wright. I know why I was there, and that's because he called me
there, and he laid out what is happening in our government. He laid it
out.
Mr. Meza. But I remember Donald Trump telling people to be there,
I--I mean, to support.
Mr. Sasso. So, you mentioned that the President--that the President
asked you. Do you remember a specific message?
Mr. Herendeen. Basically, yeah--yes, for us to come to DC, that big
things are going to happen.
Mr. Walter. What got me interested, he said I have something very
important to say on January 6th, or something like that is what got--
what got me interested to be there.
Mr. Schornack. You know, Trump has only asked me for two things. He
asked me for my vote, and he asked me to come on January 6th.
Chairman Thompson. When the Committee reconvenes next week,
we are going to examine the lies that convinced those men and
others to storm the Capitol to try to stop the transfer of
power. We are going to take a close look at the first part of
Trump's attack on the rule of law, when he lit the fuse that
ultimately resulted in the violence of January 6th.
Without objection, and with that, the Committee stands
adjourned.
[Whereupon, at 9:54 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Officer Caroline Edwards, U.S. Capitol Police,
Washington, DC
June 9, 2022
I was called a lot of things on January 6, 2021 and the days
thereafter. I was called Nancy Pelosi's dog, called incompetent, called
a hero and a villain. I was called a traitor to my country, my oath,
and my Constitution. In actuality, I was none of those things.
I was an American standing face-to-face with other Americans asking
myself many times how we had gotten here. I had been called names
before, but never had my patriotism or duty been called into question.
I, who got up every day, no matter how early the hour or how late I got
in the night before, to put on my uniform and protect America's symbol
of democracy. I, who spent countless hours in the baking sun and
freezing snow to make sure America's elected officials were able to do
their job. I, whose literal blood, sweat, and tears were shed that day
defending the building that I spent countless holidays and weekends
working in.
I am the proud granddaughter of a Marine that battled in the Chosin
reservoir in the Korean War. I think of my Papa often in these days,
how he was so young and thrown into a battle he never saw coming, and
answered the call at great personal cost. How he lived the rest of his
days with bullets and shrapnel in his legs, but never once complained
about his sacrifice. I would like to think that he would be proud of
me, proud that his granddaughter stood her ground that day and
continued fighting even though she was wounded, like he did many years
ago. I am my grandfather's granddaughter, proud to put on a uniform and
serve my country.
They dared to question my honor. They dared to question my loyalty.
They dared to question my duty. I am a proud American, and I will
gladly sacrifice everything to make sure that the America my
grandfather defended is here for many years to come.
Thank you.
______
Prepared Statement of Nick Quested, Documentary Filmmaker, New York, NY
I am a British-born legal resident of the United States. I received
my Bachelor of Fine Arts from New York University in 1992. I am an
artist and an independent filmmaker. I have directed hundreds of music
videos and have produced upwards of 40 documentaries. I have won an
Emmy and a Dupont Columbia Award, and I have produced an Oscar-
nominated film.
Much of my work in the last 20 years has revolved around conflict.
I have filmed documentaries dealing with war and areas in conflict such
as Restrepo, Korengal, The Last Patrol, Hell on Earth: The Fall of
Syria and the Rise of ISIS, and most recently, Blood on the Wall.
I testified before this Committee on June 9, 2022, because in
December 2020 and January 2021, I was filming a documentary in
Washington, DC about ``why Americans are so divided when Americans have
so much in common.'' I had started working on this film in the summer
of 2020 when I observed what America was experiencing. As part of that
documentary, I interviewed and spoke with groups such as Antifa and the
Proud Boys. I filmed several rallies in Washington, DC on December 11
and December 12, 2020, and began filming several of the groups
spearheading those rallies such as the Proud Boys and the Oath Keepers.
I learned there would be a rally on the National Mall on January 6,
2021, and three colleagues and I came to document the rally. We
traveled from New York to Washington, DC on January 5, 2021, and we
started filming when we were invited to document a Proud Boy, Enrique
Tarrio's release from Government custody. On January 5, 2022, we
documented Mr. Tarrio as he retrieved his property from the
Metropolitan Police Department, retrieved his luggage from a
Washington, DC Hotel, participated in a meeting in an underground
parking garage, and traveled to a hotel in Baltimore. After documenting
those events, we returned to Washington, DC.
On January 6, 2021, my colleagues and I headed to the Mall for the
rally. According to the permit for the event, there was to be a rally
at the Ellipse. I arrived as a group was heading west on the Mall. I
observed a large contingent of Proud Boys marching toward the Capitol.
I filmed the crowd walking toward Capitol Hill. Almost immediately, I
was separated from my colleagues. I documented the crowd turn from
protesters to insurrectionists. I was surprised at the size of the
group, the anger, and the profanity. I experienced pepper spray,
violent surging, and acts of violence, and I heard aggressive chanting.
My goal as an independent journalist is always to prioritize truth
and to let people speak for themselves rather than to interpret events
for my audience. The clips of my footage that were shown to the world
on June 9, 2022, were a snapshot of what we saw occur on January 6,
2021. I hope my footage and the subsequent documentary will help people
understand and visualize what occurred on that date. It is important
for Americans to see the unvarnished truth of what happened for
themselves. The events I captured on film leading up to January 6, and
the January 6 attacks themselves, shook me.
HEARING ON THE JANUARY 6TH INVESTIGATION
----------
Monday, June 13, 2022
U.S. House of Representatives,
Select Committee to Investigate the January 6th Attack on
the United States Capitol,
Washington, DC.
The Committee met, pursuant to notice, at 10:46 a.m., in
room 390, Cannon House Office Building, Hon. Bennie G. Thompson
[Chairman of the Committee] presiding.
Present: Representatives Thompson, Cheney, Lofgren, Schiff,
Aguilar, Murphy, Raskin, Luria, and Kinzinger.
Chairman Thompson. The Select Committee to Investigate the
January 6th Attack on the United States Capitol will be in
order.
Without objection, the Chair is authorized to declare the
Committee in recess at any point.
Pursuant to House Deposition Authority Regulation 10, the
Chair announces the Committee's approval to release the
deposition material presented during today's hearing.
Good morning.
Last week, the Select Committee laid out a preview of our
initial findings about the conspiracy overseen and directed by
Donald Trump to overturn the results of the 2020 Presidential
election and block the transfer of power--a scheme
unprecedented in American history.
My colleagues and I don't want to spend time talking about
ourselves during these hearings, but as someone who has run for
office a few times, I can tell you, at the end of a campaign,
it all comes down to the numbers. The numbers tell you the
winner and the loser.
For the most part, the numbers don't lie. But if something
doesn't add up with the numbers, you go to court to get
resolution. That is the end of the line. We accept those
results. That is what it means to respect the rule of law. That
is what it means to seek elective office in our democracy.
Because those numbers aren't just numbers. They are votes.
They are your votes. They are the will and the voice of the
people. The very least we should expect from any person seeking
a position of public trust is the acceptance of the will of the
people--win or lose.
Donald Trump didn't. He didn't have the numbers. He went to
court. He still didn't have the numbers. He lost.
But he betrayed the trust of the American people. He
ignored the will of the voters. He lied to his supporters and
the country. He tried to remain in office after the people had
voted him out and the courts upheld the will of the people.
This morning, we'll tell the story of how Donald Trump lost
an election--and knew he lost an election--and as a result of
his loss decided to wage an attack on our democracy, an attack
on the American people, by trying to rob you of your voice in
our democracy, and, in doing so, lit the fuse that led to the
horrific violence of January 6th, when a mob of his supporters
stormed the Capitol, sent by Donald Trump, to stop the transfer
of power.
Today, my colleague from California, Ms. Lofgren, and our
witnesses will detail the Select Committee's findings on these
matters.
But, first, I will recognize our distinguished Vice Chair,
Ms. Cheney of Wyoming, for any opening statement she would care
to offer.
Vice Chair Cheney. Thank you very much, Mr. Chairman.
Last week, as the Chairman noted, our Committee began
outlining a 7-part plan--overseen by President Trump--to
overturn the 2020 election.
Today, we will begin looking at the initial part of that
plan: President Trump's effort to convince millions of
Americans that the election was stolen from him by overwhelming
fraud.
A Federal court has already reviewed elements of the
Committee's evidence on this point, and said this: ``In the
months following the election, numerous credible sources--from
the President's inner circle to agency leadership and
statisticians--informed President Trump and Dr. Eastman that
there was no evidence of election fraud,'' sufficient to
overturn the 2020 Presidential election.
The court's opinion methodically documents each of the
principal reasons for that conclusion, and I would urge all
those watching to read it.
Today, we will begin to show the American people some of
our evidence. Today, you will hear much more from former
Attorney General Bill Barr's recorded testimony, and you will
hear in greater detail what others in the Department told
President Trump: that his claims of election fraud were
nonsense.
You will also hear much more from President Trump's own
campaign experts, who had also concluded that his fraud claims
could not be supported.
Let me focus briefly on just three points now.
First, you will hear first-hand testimony that the
President's campaign advisors urged him to await the counting
of votes and not to declare victory on election night. The
President understood, even before the election, that many more
Biden voters had voted by mail, because President Trump ignored
the advice of his campaign experts and told his supporters only
to vote in person.
Donald Trump knew before the election that the counting of
those mail-in ballots in several States would not begin until
late in the day and would not be complete for multiple days.
This was expected, reported, and widely known.
You will also hear testimony that President Trump rejected
the advice of his campaign experts on election night and,
instead, followed the course recommended by an apparently
inebriated Rudy Giuliani to just claim he won and insist that
the vote counting stop, to falsely claim everything was
fraudulent.
He falsely told the American people that the election was
not legitimate, in his words, ``a major fraud.'' Millions of
Americans believed him.
Second, pay attention to what Donald Trump and his legal
team said repeatedly about Dominion voting machines--far-flung
conspiracies with a deceased Venezuelan Communist allegedly
pulling the strings. This was, ``complete nonsense,'' as Bill
Barr said.
President Trump's own campaign advisors, his Department of
Justice, and his cybersecurity experts all told him the same
thing.
Here, for example, is White House lawyer Eric Herschmann.
His view was shared by many of the Trump team whom we
interviewed.
Mr. Herschmann. I thought the Dominion stuff was--I never saw any
evidence whatsoever to sustain those allegations.
Vice Chair Cheney. Third, as Mike Pence's staff started to
get a sense for what Donald Trump had planned for January 6th,
they called the campaign experts to give them a briefing on
election fraud and all of the other election claims.
On January 2nd, the general counsel of the Trump campaign,
Matthew Morgan--this is the campaign's chief lawyer--summarized
what the campaign had concluded weeks earlier: That none of the
arguments about fraud or anything else could actually change
the outcome of the election.
Mr. Morgan. Generally discussed on that topic was whether the
fraud, maladministration, abuse, or irregularities, if aggregated and
read most favorably to the campaign, would that be outcome
determinative. And I think everyone's assessment in the room, at least
amongst the staff, Marc Short, myself, and Greg Jacob, was that it was
not sufficient to be outcome determinative.
Vice Chair Cheney. As is obvious, this was before the
attack on the Capitol. The Trump campaign legal team knew there
was no legitimate argument--fraud, irregularities, or
anything--to overturn the election. Yet, President Trump went
ahead with his plans for January 6th anyways.
Mr. Chairman, hundreds of our countrymen have faced
criminal charges--many are serving criminal sentences--because
they believed what Donald Trump said about the election and
they acted on it. They came to Washington, DC, at his request.
They marched on the Capitol at his request. Hundreds of them
besieged and invaded the building at the heart of our
constitutional Republic.
As one conservative editorial board put it recently, ``Mr.
Trump betrayed his supporters by conning them on January 6th,
and he is still doing it.''
Another conservative editorial board that has long
supported President Trump said last week, Donald Trump, ``won't
stop insisting that 2020 was stolen, even though he has offered
no proof that that is true.''
And this. Donald Trump now, ``clings to more fantastical
theories, such as Dinesh D'Souza's debunked `2000 Mules,' even
as recounts in Arizona, Georgia, and Wisconsin confirm Trump
lost.''
Those are the correct conclusions to draw from the evidence
gathered by this Committee. We have much more evidence to show
the American people on this point than we can reasonably show
in one hearing. But, today, we will begin.
Thank you, Mr. Chairman. I yield back.
Chairman Thompson. Without objection, the Chair recognizes
the gentlewoman from California, Ms. Lofgren, for an opening
statement.
Ms. Lofgren. Well, thank you, Mr. Chairman.
In our opening hearing, we gave an overview of our
investigation into the January 6th attack. The plot to
overthrow the election was complex and had many parts, which
we'll explore in remaining hearings. But, today, we examine the
false narrative that the 2020 election was ``stolen.''
Former President Trump's plan to overturn the election
relied on a sustained effort to deceive millions of Americans
with knowingly false claims of election fraud. All elements of
the plot relied on convincing his supporters about these false
claims.
Today, we'll demonstrate the 2020 election was not stolen.
The American people elected President Joe Biden. We'll present
evidence that Mr. Trump's claims of election fraud were false,
that he and his closest advisors knew those claims were false,
but they continued to peddle them anyway, right up until the
moments before a mob of Trump supporters attacked the Capitol.
We'll also show that the Trump campaign used these false
claims of election fraud to raise hundreds of millions of
dollars from supporters who were told their donations were for
the legal fight in the courts. But the Trump campaign didn't
use the money for that. The Big Lie was also a Big Rip-Off.
The former President laid the groundwork for these false
claims well in advance of the election. As early as April 2020,
Mr. Trump claimed that the only way he could lose an election
would be as a result of fraud.
President Trump. You know the things with bundling and all of the
things that are happening with votes by mail where thousands of votes
are gathered. And I'm not going to say which party does it, but
thousands of votes are gathered, and they come in and they're dumped in
a location. And then all of a sudden, you lose elections that you think
you're going to win.
President Trump. The only way we're going to lose this election is
if the election is rigged. Remember that. It's the only way we're going
to lose this election.
President Trump. This is going to be a fraud like you've never
seen. Did you see what's going on? Take a look at West Virginia.
Mailmen selling the ballots. They're being sold. They're being dumped
in rivers. This is a horrible thing for our country.
Then-Candidate Biden. There is no----
President Trump. This is not----
Then-Candidate Biden. There is no evidence of that.
President Trump. This is not going to end well.
Ms. Lofgren. Mr. Trump decided even before the election
that, regardless of the facts and the truth, if he lost the
election, he would claim it was rigged.
Mr. Trump was right about one thing: It did not end well.
On election night, Mr. Trump claimed, even before the votes
were counted, that his loss was a result of fraud.
Now, Thursday, we had testimony from Attorney General Barr
about the Department of Justice investigation of Mr. Trump's
fraud claims. Barr told Trump directly that his claims were
``BS.'' Yet, after hearing the truth and that warning from the
AG, Mr. Trump continued to peddle the false claims of fraud.
You will hear detailed testimony from Attorney General Barr
describing the various election fraud claims the Department of
Justice investigated. He will tell you how he told Mr. Trump
repeatedly that there was no merit to those claims. Mr. Barr
will tell us that Mr. Trump's election night claims of fraud
were made without regard to the truth and before it was even
possible to look for evidence of fraud.
Attorney General Barr wasn't alone. You will see and hear
today other Department of Justice officials and senior advisors
to Mr. Trump that they told him the claims he was making were
not supported by evidence.
The election fraud claims were false. Mr. Trump's closest
advisors knew it. Mr. Trump knew it. That didn't stop him from
pushing the false claims and urging his supporters to ``fight
like hell'' to ``take back their country.''
After he lost the election, various legal challenges were
made. You will hear testimony today from a renowned Republican
election litigation lawyer who will explain the normal process
by which candidates challenge an election.
Rather than accept the results of the election and the
decisions of the courts, Mr. Trump pursued a different
strategy: He tried to convince the American people the election
had been stolen. Many of his supporters believed him, and many
still believe him today.
The attack on January 6th was a direct and predictable
result of Mr. Trump's decision to use false claims of election
fraud to overturn the election and to cling to power.
Mr. Chairman, I yield back.
Chairman Thompson. Thank you very much.
I now welcome our first witness.
We are joined today by former Fox News Politics Editor
Chris Stirewalt.
Bill Stepien, President Trump's former campaign manager,
was subpoenaed to be here and was in Washington this morning
prepared to testify.
Kevin Marino, Mr. Stepien's attorney, is here with us
today--thank you, Mr. Marino, for coming--and he has advised us
that Mr. Stepien's wife went into labor this morning. Mr.
Stepien unexpectedly had to travel to be with his wife, and we
wish him the best.
Due to the depth and rigor of our investigation, we have
several hours of Mr. Stepien's testimony from when we
interviewed him in February, and we will be presenting that
testimony today.
I'll now swear in our witness.
The witness will please stand and raise his right hand.
[Witness sworn.]
Chairman Thompson. Thank you. Please be seated.
Let the record reflect the witness answered in the
affirmative.
I now recognize myself for questions.
I want to start by showing a video that tells the story of
what was going on in the Trump White House on election night in
November 2020.
Mr. Heaphy. Do you remember where you were on the night of the
election November the 3rd?
Ms. Trump. I was at the White House.
Mr. Heaphy. Do you know where, specifically, over the course of
that night you spent your time within the White House?
Ms. Trump. There was an event that was organized in the residence.
So, I moved between the residence, a room sort-of off the residence
where some family members were.
Mr. Heaphy. I take it, the President was upstairs in the residence?
Mr. Kushner. He was upstairs. I was--we were kind-of on the first
floor, so not upstairs we were with--mostly with Ivanka and her
brothers and a couple other people who'd be coming in and out.
Mr. George. Can you just describe the atmosphere? What were people
expecting that night when you got to the White House?
Mr. Miller. I think that there was--typically, for people who show
up there on election night it's going to be a self-select more positive
environment. I think people were a little bit nervous not knowing what
was going to happen with the red wave or the red mirage as the debate
was being carried out.
Fox News Anchor Bret Baier. The Fox News decision desk is calling
Arizona for Joe Biden. That is a big get for the Biden campaign.
Mr. George. Arizona is called. Do you remember that?
Mr. Stepien. I do.
Mr. George. What do you remember happening where you were when
Arizona was called?
Mr. Stepien. I--there was surprise at the call.
Mr. George. Who was surprised?
Mr. Stepien. Most--most everyone in the room.
Mr. George. Were--you being one of them?
Mr. Stepien. Yes.
Mr. George. Did that shift the atmosphere or the attitude in the
White House?
Mr. Miller. Completely.
Mr. George. How so? Can you describe that?
Mr. Miller. Because Fox News was the first one to go out and say
that.
Mr. George. And so was it anger kind-of directed toward Fox News
for making a call more so than a disappointment that maybe the campaign
lost Arizona?
Mr. Miller. All of the above.
Mr. George. So both? Anger and disappointment?
Mr. Miller. Both disappointed with Fox and concerned that maybe our
data or our numbers weren't accurate.
Mr. Harris. Were you in the White House residence during the sort-
of past midnight into the early morning hours of November 4th?
Mr. Giuliani. Yes, I'm sure it--it went over beyond midnight. Yes.
Mr. George. Do you remember Rudy Giuliani being at the White House
on election night and into the early hours the next morning?
Mr. Stepien. I do.
Mr. George. What do you remember about when he came?
Mr. Stepien. He--he was--there were--I had heard that he was
upstairs, you know, in that aforementioned reception area. And he was
looking to talk to the President. And it was suggested instead that
he'd come talk to several of us down off the Map Room.
Mr. George. You said that Mr.--you had heard that Mr. Giuliani
wanted to talk to the President and then he was directed your way. Did
you end up talking to Mr. Giuliani when he was directed your way?
Mr. Stepien. I did. I did.
Mr. George. What was that conversation?
Mr. Stepien. A lot of conversations were directed my way. A few of
us, myself, Jason Miller, Justin Clark, Mark Meadows, gathered in a
room off the Map Room to--to listen to whatever Rudy presumably wanted
to say to the President.
Mr. Heaphy. Was there anyone in that conversation who in your
observation had had too much to drink?
Mr. Miller. Like--Mayor Giuliani.
Mr. Heaphy. Tell me more about that. What was your observation
about his potential intoxication during that--that discussion about
what the President should say when he addressed the Nation on election
night?
Mr. Miller. And the mayor was definitely intoxicated, but I do not
know his level of intoxication when he spoke with the President, for
example.
Mr. Harris. Were you part of any discussions with the people I
mentioned, Mr. Stepien, Mr. Meadows, or anyone else about whether the
President should make any sort of speech on election night?
Mr. Giuliani. I mean, I spoke to the President. They may have been
present, but the President--spoke to the President several times that
night.
Mr. Miller. There were suggestions by, I believe it was Mayor
Giuliani, to go and declare victory and say that we won it outright.
Mr. Stepien. It was far too early to be making any calls like that.
Ballots--ballots were still being counted. Ballots were still going to
be counted for days. And it was far too early to be making any
proclamation like that.
Mr. Miller. I remember saying that I--to the best of my memory, and
I was saying that we should not go and declare victory until we had a
better sense of the numbers.
Mr. George. Okay. Can you be more specific about that conversation?
In particular, what Mayor Giuliani said, your response, and then
anybody else in the room's response.
Mr. Miller. I think effectively, Mayor Giuliani was saying we won
it. They're stealing it from us. Where'd all the votes come from? We
need to go say that we won. And essentially that anyone who didn't
agree with that position was being weak.
Mr. Heaphy. What was your view at the time as to what he should or
shouldn't say?
Ms. Trump. I don't know that I had a firm view as to what he should
say in that circumstance. The results were still being counted. It was
becoming clear that the race would not be called on election night.
Mr. Stepien. My belief, my recommendation was to say that votes are
still being counted. It's too early to--to tell. Too early to call the
race. But, you know, we are proud of the race we--we run--we ran and,
you know, we think--we think we're in a--in good position. And we'll
have more to say about this, you know, the next day or the next day
whenever we had something to say.
Mr. George. And did anybody who is a part of that conversation
disagree with your message?
Mr. Stepien. Yes.
Mr. George. Who is that?
Mr. Stepien. The President disagreed with that. I don't recall the
particular words. He thought I was wrong. He told me so. And, you know,
that they were going to, you know, go in it--he was going--to go in a
different direction.
President Trump. This is a fraud on the American public. This is an
embarrassment to our country. We were getting ready to win this
election. Frankly, we did win this election. We did win this election.
[applause]
Chairman Thompson. Mr. Stirewalt, did President Trump have
any basis to declare victory on November 4, 2020?
Mr. Stirewalt. No, none at all.
Chairman Thompson. Thank you.
Mr. Stepien also testified that President Trump had no
basis for declaring victory at that point in time.
Mr. Stepien. My belief, my recommendation was to say that votes are
still being counted. It's too early to--to tell. Too early to call the
race. But, you know, we are proud of the race we--we run--we ran and,
you know, we think--we think we're in a--in good position. And we'll
have more to say about this, you know, the next day or the next day
whenever we had something to say.
Chairman Thompson. Thank you.
Mr. Stirewalt, after the votes were counted, who won the
Presidential election of 2020?
Mr. Stirewalt. Joseph Robinette Biden, Jr., of the great
State of Delaware.
Chairman Thompson. Thank you.
That is the bottom line. We have had an election. Mr. Trump
lost. But he refused to accept the results of the democratic
process.
Pursuant to section 5(c)(8) of House Resolution 503, I now
recognize the gentlewoman from California, Ms. Lofgren, for
questions.
Ms. Lofgren. Well, thank you. Thank you, Mr. Chairman.
Mr. Stirewalt, I would like you to explain a term that was
thrown around a lot during the election, and that is the so-
called ``red mirage.'' What does that mean?
Mr. Stirewalt. So, in the 40 or 50 years, let's say, that
Americans have increasingly chosen to vote by mail or early or
absentee, Democrats prefer that method of voting more than
Republicans do. So, basically, in every election Republicans
win election day and Democrats win the early vote.
Then you wait and start counting, and it depends on which
ones you count first, but usually it is election day votes that
get counted first and you see the Republicans shoot ahead. Then
the process of baling and binding and unbinding all those mail-
in votes. Some States, like Pennsylvania, refused to count the
votes first. So, you have to wait for all of that to come in.
So, in every election, and certainly a National election,
you expect to see the Republican with a lead, but it's not
really a lead.
When you put together a jigsaw puzzle, it doesn't matter
which piece you put in first. It ends up with the same image.
So, for us, who cares? But that's because no candidate had ever
tried to avail themself of this quirk in the election counting
system.
We had gone to pains--and I'm proud of the pains we went
to--to make sure that we were informing viewers that this was
going to happen, because the Trump campaign and the President
had made it clear that they were going to try to exploit this
anomaly. We knew it was going to be bigger because the
percentage of early votes was higher, right? We went from about
45 percent of the votes being early and absentee to, because of
the pandemic, that increased by about 50 percent.
So, we knew it would be longer. We knew it would be more.
So, we wanted to keep telling viewers: Hey, look, the number
that you see here is sort of irrelevant, because it's only a
small percentage of these votes.
Ms. Lofgren. So, this red mirage, that's really what you
expected to happen on election night?
Mr. Stirewalt. Happens every time.
Ms. Lofgren. Thank you, Mr. Stirewalt.
Now, I'd like to play a clip of Attorney General Bill Barr,
who also explains what was expected to happen on election
night.
Attorney General Barr. Right out of the box on election night, the
President claimed that there was major fraud underway. I mean, this
happened as far as I could tell before there was actually any potential
of looking at evidence . . .
It seemed to be based on the dynamic that--that at the end of the
evening, a lot of Democratic votes came in which changed the vote
counts in certain States.
That seemed to be the basis for this broad claim that there was
major fraud. And I didn't think much of that because people had been
talking for weeks and everyone understood for weeks that that was going
to be what happened on election night.
Ms. Lofgren. Mr. Stepien obviously could not be with us
today, and it's proper for him to be with his wife as they
welcome their child. But he also had discussions with the
President about the red mirage--that is, that it would be a
long night and that early votes would favor him, but lots more
votes would be counted over the course of the night and the
days after.
So, let's play clip 1 from our interview with Mr. Stepien.
Mr. Stepien. I--I recounted back to that conversation with
him in which I said--just like I said in 2016, it was going to
be a long night. I--I told him in 2020 that, you know, there
were--it was going to be a--a process again. As, you know, the
early returns are going to be, you know, positive. Then we're
gonna, you know, be watching the returns of--of ballots as, you
know, they rolled in thereafter.
Mr. George. Is it fair to say you're trying to present a--
a--what you thought would be a realistic picture of what might
happen over the course of that night, being election night?
Mr. Stepien. That night and the days that followed. Yeah.
I--I--I always--I always, you know, I always told the President
the truth. And, you know I--I, you know, I think he expected
that from me. And I told him it was going to be a process. It
was going to be, you know--you know, we're gonna have to wait
and see how this turned out. So I--I--just like I did in 2016,
I did the same thing in 2020.
Ms. Lofgren. So, let's watch a short clip of President
Trump speaking after he received that information from his
campaign advisors.
President Trump. We want all voting to stop. We don't want
them to find any ballots at 4 o'clock in the morning and add
them to the list.
Ms. Lofgren. So, when former President Trump said that, it
contradicted what his advisors had warned would happen. We all
know that mail-in ballots played an important role in the 2020
election. However, President Trump continuously discouraged
mail-in voting.
Mr. Stepien was so concerned about the President's position
on mail-in voting that, in the summer of 2020, he met with
President Trump, along with House Minority Leader Kevin
McCarthy.
Let's play clip 4.
Mr. Stepien. Meeting that was had in particular, I invited
Kevin McCarthy to join the meeting. He being of like mind on
the issue with me in which we made our case for--for why we
believed mail-in balloting--mail-in voting not to be a bad
thing for his campaign. But, you know, the--the President's
mind was made up and you understand, you know, how many times
to, you know, go to the well on a particular topic.
Mr. Heaphy. Yeah, I understand. Tell me a little bit more
about the argument that you and Mr. McCarthy made to the
President in that meeting as to why it wasn't a bad thing that
mail-in voting was available.
Mr. Stepien. Largely two pillars to that argument, both of
which I've previously mentioned. One, you know, leaving a good
deal to chance. Pushing or urging your voters to vote only on
election day leaves a lot to chance. That's--that's A. And B,
also previously mentioned, the fact that the Trump campaign,
the Republican National Committee, the Republican Party had an
advantage of--of grassroots workers and volunteers on the
ground that would allow, you know, an--an advantage to enhance
return rates of--of ballots that were mailed.
Those were the two pillars of the argument.
Mr. Heaphy. I see. And what, if anything, do you recall
Representative McCarthy saying during that meeting?
Mr. Stepien. We were--we were echoing the same argument. I
mean, his--his words echoed--echoed mine and vice versa on
those--on those two topics.
Ms. Lofgren. Mr. Stirewalt, you were at the decision desk
at Fox News on election night, and you called Arizona early for
President Biden, which was controversial.
How did you make that call? Where did you think the race
stood in the early hours of the next day?
Mr. Stirewalt. Well, it was really controversial to our
competitors, who we beat so badly by making the correct call
first. Our decision desk was the best in the business, and I
was very proud to be a part of it.
Because we had partnered with the Associated Press and the
National Opinion Research Center at the University of Chicago,
thanks to my colleague and friend Arnon Mishkin, we had built a
wonderful device for forecasting the outcomes of election.
So, we had a different set of data than our competitors
did. We had more research, and we had a better system, and we
had a great team.
So, what you're waiting to see is, do the actual votes
match up with the expectations in the poll? The real votes are
testing the quality of your poll in targeted precincts and in
targeted places.
Let me tell you, our poll in Arizona was beautiful, and it
was doing just what we wanted it to do, and it was cooking up
just right.
At some point--and I forget exactly who--but, at some
point, it became clear that Arizona was getting ready to make a
call.
So we, around, you know, my boss, Bill Sammon, said,
``We're not making any call until everybody says yes,'' because
that was always our policy, unanimity.
You have to understand, in this room you have, you know,
the best--people from academia, Democrats, Republicans, a broad
cross-section of people who had worked together for a decade,
who were really serious about this stuff.
So, we knew it would be a consequential call, because it
was one of five States that really mattered, right? Wisconsin,
Michigan, Pennsylvania, Georgia, Arizona were the ones that we
were watching. We knew it would be significant to call any one
of those five. But we already knew Trump's chances were very
small and getting smaller based on what we had seen.
So, we were able to make the call early. We were able to
beat the competition. We looked around the room. Everybody
says, ``yea,'' and on we go.
By the time we found out how much everybody was freaking
out and losing their minds over this call, we were already
trying to call the next State. We had already moved on. We were
to Georgia. We were to North Carolina. We were looking at these
other States.
So, we thought it was--we were pleased, but not surprised.
Ms. Lofgren. I see. You know, after the election, as of
November 7th, in your judgment, what were the chances of
President Trump winning the election?
Mr. Stirewalt. After that point?
Ms. Lofgren. Yes.
Mr. Stirewalt. None. I mean, I guess you could--it's always
possible that you could have, you know, a truckload of ballots
be found somewhere, I suppose. But, once you get into this
space, you know, ahead of today, I thought about what are the
largest margins that could ever be overturned by a recount in
the normal kind of--the kind of stuff that we heard Mike Pence
talking about, sounding like a normal Republican that night,
when he said, you know, we'll keep every challenge.
Nothing like that. In a recount, you're talking about
hundreds of votes. When we think about calling a race, one of
the things that we would think about is, is it outside the
margin of a recount?
When we think about that margin, we think about, in modern
history, you're talking about 1,000 votes, 1,500 votes at the
way, way outside. Normally, you're talking about hundreds of
votes, maybe 300 votes that are going to change.
So, the idea that, through any normal process in any of
these States--remember, he had to do it thrice, right? He
needed three of these States to change. In order to do that, I
mean, you're at an infinite--you're better off to play the
Powerball than to have that come in.
Ms. Lofgren. On November 7th, the other major news outlets
called the race for President Biden. Now, Mr. Stepien told the
Committee that he thought the odds were--and this is a quote--
``very, very, very bleak,'' and held a meeting with the
President that same day.
Let's show video clip 8.
Mr. Stepien. With each day that wore on, I mean the--the
trajectory of the race, you know, on election night Trump ahead
in--in many States. And as--as that week wore on as the third
became the fourth became the fifth and so on and so forth, and
the vote-by-mail ballots were tabulated, you know, Trump's--
Trump's lead, you know, grew more narrow.
And--and in--and in some places Biden surpassed, you know,
Trump in--in the vote totals. So as--as the week wore on, as we
paid attention to those numbers every single--multiple times a
day, you know, internally, you know, I--I was feeling less
confident for sure.
Mr. George. What was your view on the state of the election
at that point?
Mr. Stepien. You know, very, very, very bleak. You know,
I--I--I--we--we told him, you know, the group that went over
there outlined, you know, my belief in--in--in chances for
success at this point. And then we pegged that at, you know, 5
maybe--maybe 10 percent based on recounts that were--that--
that, you know, either were automatically initiated or--or--or
could be--could be initiated based on, you know, realistic
legal challenges, not all the legal challenges that eventually
were pursued. But, you know, it was, you know, my belief is
that it was a very, very--I mean, 5 to 10 percent is not a very
good optimistic outlook.
Ms. Lofgren. Now, as President Trump and others continued
to claim that the election was stolen, there were lawyers who
were a part of the campaign, campaign lawyers, who were
responsible for investigating the fraud claims.
That includes Alex Cannon, who could not validate the
claims that were being made, including those being made by the
President.
Let's roll video 13.
Mr. George. This is an email. It's two emails actually. The
first is from Alex Cannon to you and Faith McPherson, and then
you forward that email on to Mark Meadows, Justin Clark, and
Jason Miller, the subject being AZ Federal ID voters. If you
look at the original email there it says, ``Bill, we completed
the AZ analysis you requested.'' I assume that's about Arizona.
And because of the un--the substantial uncertainty
surrounding the databases, this is a highly unreliable way to
identify ineligible voters. Can you explain the task that you
gave to Mr. Cannon for this Arizona analysis?
Mr. Stepien. Sure. Previously, I described some of my
frustration with some of the--the claims that people would
throw at President Trump regarding, you know, you know, you
need to look at this. You know, this happened in this State or
that happened in that State. And it would be, you know--those
would flow to us to--to--to look into.
I--I talked about that before I think.
Mr. George. Yep.
Mr. Stepien. You know, this is an example of that. I
recall--I recall in Arizona someone had thrown out, I believe
this to be the claim, that there were thousands of illegal
citizens, people not eligible to vote, having cast their
ballots in Arizona. Someone had thrown out that claim to
President Trump. And with, you know, the margins being as close
as they were as previously described, you know, that could
potentially matter.
So, this--this wild claim is thrown out, which, you know,
on its face didn't seem, you know, realistic or possible to me.
I asked Alex to look at the--you know, the--the claim. And I--I
haven't read his full email, but I recall that the response to
that, the reality of that was not illegal citizens voting in
the election, I think it was like overseas voters voting in the
election. I--I--so, obviously, you know, people who were
eligible to vote.
Ms. Lofgren. When these findings were passed up the chain
to President Trump, he became frustrated, and he replaced the
campaign's legal team.
Let's play clip 14.
Mr. Stepien. You know, I think the President, it was during the
second week where things like you displayed were occurring, where he
was, you know, growing increasingly unhappy with, you know, his team,
you know, me less so because I was less involved at this point, but
still me; growing increasingly unhappy with Justin Clark. And that--
that kind-of, you know--you know, paved the way for, you know, Justin
to be moved out and Mayor Giuliani be moved in as the person in charge
of, you know, the legal side of the campaign and, for all intents and
purposes, the campaign at that point.
Ms. Lofgren. Now, when Mr. Stepien became campaign manager,
he was the second Trump campaign manager for the 2020 race, and
there were only about 115 days until election day.
So, let's play the video.
Mr. Stepien. I inherited a campaign that was--the day I was hired
was, I believe, President Trump's low point in the 2020 daily average
polling against President Biden. It was--it was a campaign at a low
point in the polls. It was structurally and fiscally deficient. You
know, I--you know, there was a great deal wrong with the campaign in--
in--in both of those--in--in both of those areas. So, most of my day
was spent fixing what--and I think I took over with 115 days left in
the campaign. Most of my time was spent fixing the things that could be
fixed with 115 days left in the campaign.
Ms. Lofgren. Now, Mr. Stepien has been in the campaign
field for a long time, and he worked for lots of different
candidates and campaigns. He testified to this Committee about
his concerns given the claims that Mr. Giuliani and Ms. Powell
and their team were making publicly.
Let's play clip 15.
Mr. Heaphy. Okay. And it was important for you, Mr. Stepien, to
sort-of pull back just for your own professional reputation. You didn't
want to be associated with some of what you were hearing from the
Giuliani team and others that--that sort-of stepped in in the wake of
your departure.
Mr. Stepien. I didn't mind being categorized. There were two groups
of them. We called them kind-of my team and Rudy's team. I--I didn't
mind being characterized as being part of Team Normal, as--as
reporters, you know, kind-of started to do around that point in time.
You know, I said, you know, hours ago, early on, that, you know, I've--
I've been doing this for a long time, 25 years, and I've spanned, you
know, political ideologies from Trump to McCain to Bush to Christie,
you know.
And, you know, I can work under a lot of circumstances for a lot of
varied, you know, candidates and politicians. But a situation where--
and I think along the way I've built up a pretty good--I hope a good
reputation for being honest and--and professional, and I--I didn't
think what was happening was necessarily honest or professional at that
point in time. So, again, that led to me stepping away.
Ms. Lofgren. So, the President did get rid of ``Team
Normal,'' and I'd like to play a clip showing that the
President found the people he needed to perpetuate his claims
of fraud.
Mr. Giuliani. They saw a big truck bringing in 100,000 ballots in
garbage cans, in wastepaper baskets, in cardboard boxes, and in
shopping baskets. And every single one of them was for Biden . . .
Because they were being notified by Smartmatic in Frankfurt that
Biden was way behind, and they better come up with a lot more ballots.
And we can prove every single thing I just said . . .
If you gave me the paper ballots, I could probably turn around each
one of these States. I'm absolutely convinced if you--if you let me
examine each one of those ballots, I'd pull out enough that were
fraudulent that it would shake the hell out of the country.
Ms. Powell. It can set and run an algorithm, that probably ran all
over the country, to take a certain percentage of votes from President
Trump and flip them to President Biden, which we might never have
uncovered had the votes for President Trump not been so overwhelming in
so many of these States that it broke the algorithm . . .
I remember that one of the things Mark said at some point was,
``You can't show an actual vote was flipped,'' which I found at the
time to be a remarkable assertion, because--because you don't have to
have the gun to see the body lying on the floor bleeding out with five
bullet holes in it was killed by a gun.
Mr. Herschmann. What they were proposing I thought was nuts. You
know, the theory was also completely nuts, right? I mean, it was a
combination of Italians and Germans. I mean, different things have been
floating around as to who was involved. I remember Hugo Chavez and the
Venezuelans. She has an affidavit from somebody who says they wrote a
software in--and something with the Philippines, just all over the
radar.
Mr. Heaphy. Did you ever share, Mr. Kushner, your view of Mr.
Giuliani? Did you ever share your perspective about him with the
President?
Mr. Kushner. I guess--yes.
Mr. Heaphy. Tell me what you said.
Mr. Kushner. Well, basically not the approach I would take if I was
you.
Mr. Heaphy. Okay. And--and how did he react? How did President
Trump react when you shared that view with him?
Mr. Kushner. Oh, he said, you know, I--I have confidence in Rudy.
Mr. Morgan. I think I had conversations with probably all of our
counsel who were signed up to assist on election day as they disengaged
with the campaign . . .
The general consensus was that the law firms were not comfortable
making the arguments that Rudy Giuliani was making publicly . . .
I seem to recall that I had a similar conversation with most all of
them.
Attorney General Barr. I made it clear I did not agree with the
idea of saying the election was stolen and putting out this stuff,
which I told the President was bullshit. And, you know, I didn't want
to be a part of it. And that's one of the reasons that went into me
deciding to leave when I did.
Ms. Lofgren. Even Sidney Powell, defending herself in a
defamation lawsuit brought by Dominion Voting Systems, argued
that, ``No reasonable person would conclude that her statements
were truly statements of fact.''
Mr. Chairman, I yield back.
Chairman Thompson. I thank the witness for joining us
today.
The first panel is now dismissed.
Without objection, the Chair recognizes the gentlewoman
from California, Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman.
Last week, we presented the testimony of former Attorney
General Bill Barr, who testified before this Committee.
Today, we present additional evidence, including his
testimony that former President Trump started making claims of
election fraud immediately after the election and that Barr
concluded the claims were untrue.
Now, due to the length of Attorney General Barr's
testimony, we're only going to include relevant portions at the
hearing today.
So, let's play the video.
Attorney General Barr. The Department, in fact, when we received
specific and credible allegations of fraud, made an effort to look into
these to satisfy ourselves that they were without merit . . .
And--and I was in the posture of trying to figure out--there was an
avalanche of all these allegations of fraud that built up over a number
of days, and it was like playing Whac-A-Mole because something would
come out one day and then the next day it would be another issue . . .
Also, I was influenced by the fact that all the early claims that I
understood on--were--were completely bogus and silly and usually based
on complete misinformation. And so, I--I didn't consider the quality of
claims right out of the box to give me any, you know, feeling that
there was really substance here.
Ms. Lofgren. For the first time since the election, the
Attorney General spoke personally with the President on
November 23rd, and this was at the White House.
Let's play the video, please.
Attorney General Barr. So, on November 23rd, I--I hadn't spoken to
the President since the election, and, in fact, as I said, since the
middle of October roughly. It was a little--getting awkward because
obviously he had lost the election, and I hadn't said anything to him.
And so, Cipollone said, ``You know, I think it's time you come over
here.''
And so, I came over to meet with the President in the Oval Office.
And--and Meadows were--and Cipollone were there. And the President--
and--and this is leading up to this conversation with Kushner. The
President said there had been major fraud and that, as soon as the
facts were out, the results of the election would be reversed.
And he went on--on this for quite a while, as he is prone to do.
And then he got to something that I was expecting, which is to say that
apparently the Department of Justice doesn't think that it has a role
of looking into these fraud claims . . .
And I said, you know, that has to be the campaign that raises that
with the State. The Department doesn't take sides in elections, and the
Department is not an extension of--of your legal team. And our role is
to investigate fraud. And if--and we'll look at something if it's--if
it's specific, credible, and could have affected the outcome of the
election. And--and we're doing that, and it's just not--they're not--
they're just not meritorious. They're not pan--panning out . . .
And as I walked out of the Oval Office, Jared was there with Dan
Scavino, who ran his--ran the President's social media and who I
thought was a reasonable guy and believe is a reasonable guy. And I
said, how long is--how long is he going to carry on with this stolen
election stuff? Where is this going to go?
And by that time, Meadows had caught up with me and--leaving the
office, and caught up to me and--and said that--he said, ``Look, I--I
think that he's becoming more realistic and knows that there's a limit
to how far he can take this.'' And then Jared said, ``You know, yeah,
we're working on this. We're working on it.''
Ms. Lofgren. Even after his Attorney General told him his
claims of election fraud were false, President Trump continued
to promote these claims.
Attorney General Barr. I felt that things continued to deteriorate
between the 23rd and the weekend of the 29th . . .
And then on November 29th, he appeared on Maria Bartiromo's show,
``Sunday Futures,'' I believe it was. And he said that the Department
was missing in action . . .
President Trump. Well, no, we had glitches where they moved
thousands of votes from my account to Biden's account, and these are
glitches. So, they're not glitches. They're theft. They're fraud,
absolute fraud . . .
This election was over, and then they did dumps. They call them
dumps--big, massive dumps in Michigan, in Pennsylvania, and all over .
. .
How the FBI and Department of Justice--I don't know, maybe they're
involved, but how people are allowed to get away from this stuff--with
this stuff is unbelievable.
Ms. Lofgren. Now, spurred by what he saw, Barr told the
Associated Press on December 1st that there was no evidence of
election fraud. Immediately after Attorney General Barr's
statement went public, Mr. Trump berated and he nearly fired
Barr. But Barr persisted in telling the President that there
was no evidence to support the fraud claims.
Attorney General Barr. This got under my skin, but I also felt it
was time for me to say something. So on--I had--so I set up a lunch
with the AP reporter, Mike Balsamo, and I told him at lunch--I made the
statement that ``to date, we have not seen fraud on a scale that could
have effected a different outcome in the election.''
I had a later meeting scheduled at the White House at 3 o'clock
with Meadows. This was previously scheduled. So, I knew this was gonna
to come up. And I went over there, and I told my secretary that I
thought I would probably be fired and told not to--to go home
[laughter]--I mean, not to go back to my office, so I said you might
have to pack up for me.
And so, when I got over there, I met with the chief of staff. He
said the President was angry. He didn't really go--get into the issue
of the fraud. And then I went up to Pat Cipollone's office, and we were
talking with each other. And word came down that he wanted us both to
go to the Oval . . .
And the President was as mad as I've ever seen him, and he was
trying to control himself . . .
And the President said, ``Well, this is, you know, killing me. You
didn't have to say this. You must have said this because you hate
Trump. You hate Trump.'' . . .
Then he raised the--the big vote dump, as he called it, in Detroit.
And that, you know, he said people saw boxes coming in to the counting
station at all hours of the morning and so forth. And I explained to
him that I--at that point, I knew the exact number of precincts for
Detroit. I think it was 630-something. I said, Mr. President, there are
630 precincts in Detroit. And unlike elsewhere in the State, they
centralize the counting process. So, they're not counted in each
precinct, they're moved to counting stations.
And so, a normal process would involve boxes coming in at all
different hours, so there's nothing--and I said, did anyone point out
to you--did all the people complaining about it point out to you, you
actually did better in Detroit than you did--you did last time? I mean,
there's no indication of fraud in Detroit . . .
And I told him that the stuff that his people were shoveling out to
the public were bull--was bullshit. I mean, that the claims of fraud
were bullshit. And, you know, he was indignant about that. And I
reiterated that they've wasted a whole month on these claims--on the
Dominion voting machines, and they were idiotic claims . . .
And I specifically raised the Dominion voting machines, which I
found to be among the most disturbing allegations. Disturbing in the
sense that I saw absolutely zero basis for the allegations. But they
were made in such a sensational way that they obviously were
influencing a lot of people--members of the public--that there was this
systemic corruption in the system and that their votes didn't count and
that these machines controlled by somebody else were actually
determining it, which was complete nonsense.
And it was being laid out there. And I told them that it was--it
was crazy stuff, and they were wasting their time on that. And it was
doing a great, grave disservice to the country.
Ms. Lofgren. Okay. So, the very next day, the President
released a video rehashing some of the very same claims that
his chief law enforcement officer had told him were,
``nonsense.''
President Trump. Here's an example. This is Michigan. At 6:31 in
the morning, a vote dump of 149,772 votes came in unexpectedly. We were
winning by a lot. That batch was received in horror . . .
We have a company that's very suspect. Its name is Dominion. With
the turn of a dial or the change of a chip, you can press a button for
Trump and the vote goes to Biden. What kind of a system is this?
Ms. Lofgren. Barr again told the President that there was
nothing to these claims on December 14th.
Attorney General Barr. When I walked in, sat down, he went off on a
monologue saying that there was now definitive evidence involving fraud
through the Dominion machines, and a report had been prepared by a very
reputable cybersecurity firm, which he identified as Allied Security
Operations Group. And he held up the report and he had--and then he
asked that a copy of it be made for me. And while a copy was being
made, he said, ``You know, this is absolute proof that the Dominion
machines were rigged. The report means that I am going to have a second
term.''
And then he gave me a copy of the report. And as he talked more and
more about it, I sat there flipping through the poor report and looking
through it. And to be frank, it looked very amateurish to me . . .
didn't have the credentials of the people involved . . . but I didn't
see any real qualifications. And the statements were made very
conclusory like this--these machines were designed to, you know, engage
in fraud or something to that effect, but I didn't see any supporting
information for it . . .
And I was somewhat demoralized because I thought, boy, if he really
believes this stuff he has, you know, lost contact with--with--he's
become detached from reality, if he really believes this stuff . . .
On the other hand, you know, when I went into this and would, you
know, tell him how crazy some of these allegations were . . .
There was never--there was never an indication of interest in what
the actual facts were . . .
In my opinion then, and my opinion now, is that the election was
not stolen by fraud, and I haven't seen anything since the election
that changes my mind on that, including the ``2000 Mules'' movie.
[laughter]
Ms. Lofgren. So maybe you can assess that ``2000 Mules,'' and
people are talking about that.
Attorney General Barr. Well, I mean, just in a nutshell, you know,
I just think that the GBI was unimpressed with it, and I was similarly
unimpressed with it because I think if you--because I was holding my
fire on that to see what the photographic evidence was because I
thought, well, hell, if they have a lot of photographs of the same
person dumping a lot of ballots in different boxes, you know, that's
hard to explain.
So, I wanted to see what the photographic evidence was, but the
cell phone data is singularly unimpressive. I mean it basically, if you
take 2 million cell phones and--and figure out where they are
physically in a big city like Atlanta or wherever, just by definition
you're going to find many hundreds of them have passed by and spent
time in the vicinity of these boxes.
And the premise that, you know, if you go by about, you know, five
boxes or whatever it was, you know, that that's a mule is just
indefensible. If--by definition you're going to have a lot--hundreds of
this. I mean, when I saw one contractor said, ``We figured out that our
truck alone would account for six cell phone signals.'' This was a, you
know, some kind of contractor. And you know, ``Our route would take us
by these things on a regular basis.''
So I--but then when the movie came out, you know, I think the
photographic evidence in it was completely lack--I mean it was--there
was a little bit of it, but it was lacking. You know it didn't--it
didn't establish wide-spread illegal harvesting.
The other thing is people don't understand is that it's not clear
that even if you can show harvesting that that changes the--the results
of the election. The courts are not going to throw out votes and then
figure out what votes were harvested and throw them out. You'd still--
the burden on the challenging party to show that illegal votes were
cast, votes were the result of undue influence or bribes or there was
really, you know, the person was non compos mentis. But absent that
evidence, I just didn't see courts throwing out votes anyway . . .
I felt that before the election it was possible to talk sense to
the President. And while you sometimes had to engage in a big wrestling
match with him, then it was possible to keep things on track. But I
was--felt that after the election, he didn't seem to be listening, and
I didn't think it was, you know, that I was inclined not to stay around
if he wasn't listening to advice from me or his other Cabinet
Secretaries.
Ms. Lofgren. So, on December 14th, Barr quit.
Now, the Attorney General wasn't the only person who told
the President that his claims were false. Other officials and
close advisors told him the same thing.
Acting Attorney General Rosen. Rather than try to address a
counterfactual or a hypothetical, let me just say, there were instances
where the President would say, ``People are telling me this,'' or ``I
heard this,'' or ``I saw on television,'' you know, this--this
impropriety in Atlanta or Pennsylvania or something. And we were in a
position to say, ``Our people already looked at that. And we know that
you're getting bad information that--that's not correct. It's been
demonstrated to be incorrect from our point of view. It had been
debunked.''
Mr. Lyons. A month-and-a-half or so after the election day and at
that meeting, you know, various allegations of fraud were discussed,
and you know, Eric and Pat didn't, you know--told the group, the
President included, that none of those allegations had been
substantiated to the point where they could be the basis for any
litigation challenge to the election.
Ms. Lofgren. President Trump's own Vice President and his
top advisors also knew that there wasn't evidence to support
the claims that the President was making.
Mr. Harris. Anyone else other than Mr. Meadows who asked you about
the status, outside of your legal group, you know, Mr. Morgan and the
others you mentioned. Anyone else who asked you the status of what you
were finding in your assessment of it?
Mr. Cannon. Yes, sir.
Mr. Harris. Who's that?
Mr. Cannon. Peter Navarro.
Mr. Harris. When did you talk to Mr. Navarro?
Mr. Cannon. Mid-November.
Mr. Harris. Around the same time as Mr. Meadows?
Mr. Cannon. Yes, sir.
Mr. Harris. And tell me about that conversation.
Mr. Cannon. I recall him asking me questions about Dominion. And
maybe some other categories of allegations of voter fraud. And I
remember telling him that I didn't believe the Dominion allegations
because I thought the hand recount in Georgia would resolve any issues
with a technology problem and with Dominion or Dominion flipping votes.
And I mentioned at that time that the CISA, Chris Krebs, had
recently released a report saying that the election was secure. And I
believe Mr. Navarro accused me of being an agent of the deep state
working with Chris Krebs against the President. And I never took
another phone call from Mr. Navarro . . .
Mr. Harris. Anyone else besides Mr. Meadows, Mr. Navarro, Mr.
Hershman that you had discussions with inquiring about what you were
finding in your review of the allegations that were pouring in?
Mr. Cannon. I believe I had about a 15-second conversation with the
Vice President about it as well.
Mr. Harris. When was that?
Mr. Cannon. During one of the visits to the White House. I don't
know which one. I think it was the first one in November. I was--I had
met him briefly at the campaign, and he remembered me and saw me. And
he asked what I was doing on the campaign, and I told him that we were
looking into some of the issues related to voter fraud.
And he asked me, I don't remember his exact words, but he asked me
if we were finding anything. And I said that I didn't believe we were
finding--or, I was not personally finding--anything sufficient to alter
the results of the election. And he--he thanked me. That was our
interaction.
Ms. Lofgren. At a later hearing, you'll hear live testimony
from the former Acting Deputy Attorney General of the
Department of Justice, Rich Donoghue, but now I would like to
play a portion of his testimony.
Acting Deputy Attorney General Donoghue. I tried to again put this
in perspective and to try to put it in very clear terms to the
President. And I said something to the effect of, ``Sir, we've done
dozens of investigations, hundreds of interviews. The major allegations
are not supported by the evidence developed. We've looked at Georgia,
Pennsylvania, Michigan, Nevada. We're doing our job. Much of the info
you're getting is false.'' And then I went into, ``For instance, this
thing from Michigan--this report about 68 percent error rate. Reality
is it was only 0.0063 percent error rate, less than 1-in-15,000.'' So,
the President accepted that. He said, ``Okay, fine, but what about the
others?''
And again, this gets back to the point that there were so many of
these allegations that when you gave him a very direct answer on one of
them, he wouldn't fight us on it, but he would move to another
allegation. So, then I talked about--a little bit about the
Pennsylvania truck driver. This is another allegation that had come up.
And this claim was by a truck driver who believed, perhaps honestly,
that he had transported an entire tractor trailer truck full of ballots
from New York to Pennsylvania.
And this was again out there in the public and discussed, and I
essentially said, ``Look, we looked at that allegation. We looked at
both ends, both the people who load the truck and the people unload the
truck. And that allegation was not supported by the evidence.'' Again,
he said, ``Okay''--then he said, ``Note, I didn't mention that one.
What about the others?''
And I said, ``Okay, well, with regard to Georgia, we looked at the
tape, we interviewed the witnesses, there is no suitcase.'' The
President kept fixating on this suitcase that supposedly had fraudulent
ballots, and that the suitcase was rolled out from under the table. And
I said, ``No, sir, there is no suitcase. You can watch the video over
and over. There is no suitcase. There is a wheeled bin where they carry
the ballots, and that's just how they move ballots around that
facility. There's nothing suspicious about that at all.''
I told him that there was no multiple scanning of the ballots--
one--one part of that allegation was that they were taking one ballot
and scanning it through three or four or five times to rack up votes
presumably for Vice President Biden. I told him that the video did not
support that.
Then he went off on double voting--the top of the next page. He
said, ``Dead people are voting. Indians are getting paid to vote.'' He
meant people on Native American reservations. He said, ``There's lots
of fraud going on here.'' . . .
Told him flat out that much of the information he's getting is
false and/or just not supported by the evidence. We looked at the
allegations, but they don't pan out.
Ms. Lofgren. Mr. Barr and his advisors were not the only
ones who determined that the President's allegations regarding
Dominion voting machines were false.
So, Mr. Chairman, I ask unanimous consent to include in the
record of this hearing reports issued by the Department of
Homeland Security's Cybersecurity and Infrastructure Security
Agency, otherwise known as CISA, that addressed and rejected
the claims of manipulation of voting machines in the 2020
election.\1\
---------------------------------------------------------------------------
\1\ The information has been included in the Appendix and may be
found on page 126.
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Chairman Thompson. Without objection, so ordered.
Ms. Lofgren. Thank you, Mr. Chairman.
I also ask unanimous consent to include in the record a
report prepared by the Michigan senate oversight committee that
disproved claims of election fraud in Michigan;\2\ as well as a
statement by 59 of the country's leading election security
scientists noting the absence of any credible evidence that the
2020 election had been altered through technical compromise;\3\
and 5 other reports from organizations and individuals
confirming there was no wide-spread fraud in the 2020 election
or describing the spread of the former President's lies.\4\
---------------------------------------------------------------------------
\2\ The information has been included in the Appendix and may be
found on page 127.
\3\ The information has been included in the Appendix and may be
found on page 181.
\4\ The information has been included in the Appendix and may be
found on page 183.
---------------------------------------------------------------------------
Chairman Thompson. Without objection, so ordered.
Ms. Lofgren. Thank you, Mr. Chairman, and I yield back.
Chairman Thompson. Pursuant to the order of the Committee
of today, the Chair declares the Committee in recess for a
period of approximately 10 minutes.
[Accordingly, at 12:02 p.m., the Committee recessed until
12:16 p.m., when it was called to order by the Chairman.]
Chairman Thompson. I now welcome our second panel of
witnesses.
We are joined today by BJay Pak, Al Schmidt, and Ben
Ginsberg.
Mr. Pak is a former U.S. Attorney for the Northern District
of Georgia.
Mr. Schmidt is a former city commissioner for the city of
Philadelphia, where he served for more than 10 years.
Mr. Ginsberg is one of the leading election law attorneys
in the country and has represented Republican Presidential
candidates in election litigation dating back to 2000, where he
represented George W. Bush in the Bush v. Gore litigation.
I will now swear in our witnesses.
Please stand and raise your right hands.
[Witnesses sworn.]
Chairman Thompson. Thank you. Please be seated.
Let the record reflect the witnesses answered in the
affirmative.
Pursuant to section 5(c)(8) of House Resolution 503, I now
recognize the gentlewoman from California, Ms. Lofgren, for
questions.
Ms. Lofgren. Thank you, Mr. Chairman.
Before the break, I think you all heard Mr. Barr and Mr.
Donoghue talk about the false claims that Mr. Trump and his
supporters made about suitcases of fake ballots in Georgia. We
have a witness here today who thoroughly investigated that
issue.
Mr. Pak, I want to thank you for appearing before us today.
You were appointed by President Trump to serve as the U.S.
Attorney for the Northern District of Georgia, and you served
from 2017 until January 2021. You were the lead Federal
prosecutor there and worked for the Department of Justice under
then-Attorney General Bill Barr.
Now, were you ever asked by Attorney General Barr to
investigate claims of voter fraud in the 2020 election? If so,
what were those claims?
Mr. Pak.\5\ Thank you, Congresswoman Lofgren. Thank you for
the question.
---------------------------------------------------------------------------
\5\ The prepared statement of Mr. Pak has been included in the
Appendix and may be found on page 123.
---------------------------------------------------------------------------
Approximately December 4th, I believe, of 2020, Attorney
General Barr and I had a conversation about an unrelated case
at issue. At the end of the conversation, Mr. Barr had asked me
if I had seen a certain videotape that was being reported in
the news where Mr. Giuliani, in a senate subcommittee hearing
that was held the day before, December 3rd, showed a videotape
of a purportedly--a security tape at the State Farm Arena in
Atlanta, which is also in Fulton County, in the city of
Atlanta--oh, I am sorry, city of--yes.
At the time, Mr. Barr asked me--he had made a public
statement that he had not seen any wide-spread election fraud
that would question the outcome of the election, and because of
the videotape and the serious allegation that Mr. Giuliani was
making with respect to the suitcase full of ballots purported
in the video, he asked me to find out what I could about it,
because he had envisioned that in some days after our call that
he was going to go to the White House for a meeting and then
that issue might come up. He asked me to make it a priority to
get to the bottom of--to try to substantiate the allegation
made by Mr. Giuliani.
Ms. Lofgren. Thank you.
I understand the Georgia secretary of state's office
investigated those State Farm Arena allegations and didn't find
any evidence of fraud.
What did you find when your office conducted its own
investigation?
Mr. Pak. We found that the suitcase full of ballots, the
alleged black suitcase that was being seen pulled from under
the table, was actually an official lockbox where ballots were
kept safe.
We found out that there was a mistake in terms of a
misunderstanding that they were done counting ballots or
tallying ballots for the night, and the partisan watchers that
were assigned by each of the respective parties were announced
to go home.
But once they realized the mistake, someone from the
secretary of state's office had indicated, ``No, no, no, we're
not done for the night. You need to go ahead and continue
counting.'' So, once they packed up the lockbox full of
ballots, they brought back the official ballot box again and
continued to tally the ballots from that--from the lockbox.
Unfortunately, during the senate hearing, Mr. Giuliani only
played a clip that showed them pulling out the official ballot
box from under the table and referring to that as a smoking gun
of fraud in Fulton County, but, in actuality, in review of the
entire video, it showed that that was actually an official
ballot box that was kept underneath the tables, and then we saw
them pack up because of the announcement that they thought they
were done for the night, and then, once the announcement was
made that you should continue counting, they brought the ballot
box back out and they continued to count.
We interviewed--the FBI interviewed the individuals that
are depicted in the videos that purportedly were double-,
triple-counting the ballots and determined that nothing
irregular happened in the counting and the allegations made by
Mr. Giuliani were false.
Ms. Lofgren. Thank you very much.
I would like to play again testimony from Mr. Donoghue, who
appeared before the Committee before today.
Vice Chair Cheney. Mr. Donoghue you--we talked at some length about
whether or not the White House or the President was informed about the
Antrim report. On the results of the investigations, the interviews
that have gone on on Fulton County, how would those results have been
communicated to the White House, to the President?
Acting Deputy Attorney General Donoghue. I don't know how they were
initially communicated. I do know that they came up in subsequent
conversations with the President, and DAG Rosen and I essentially told
him, ``We looked into that and it's just not true.''
Vice Chair Cheney. Okay. So, he was--he was informed.
Acting Deputy Attorney General Donoghue. I told the President
myself that several times, in several conversations that these
allegations about ballots being smuggled in in a suitcase and run
through the machine several times, it was not true--that we looked at
it. We looked at the video; we interviewed the witnesses; it was not
true.
Ms. Lofgren. Mr. Pak, after you left the U.S. attorney's
office on January 4, 2021, did the next U.S. attorney there, I
think Mr. Trump's personal pick, Bobby Christine, did he
investigate any remaining claims of fraud? If so, did he find
any evidence that supported the President's claims of voter
fraud?
Mr. Pak. It is my understanding that Mr. Christine
continued any investigations that were pending at the time of
my departure, but he was unable to find any evidence of fraud
that affected the outcome of the election.
Ms. Lofgren. So, after investigating the President's and
Mr. Giuliani's claims about voter fraud in Georgia, is it your
view today that there was no evidence of wide-spread fraud
sufficient to undermine confidence in the outcome of the
election in Georgia?
Mr. Pak. That is correct.
Ms. Lofgren. Thank you, Mr. Pak. I want to thank you also
for the service that you have given to our country. We
appreciate that.
Next, I would like to turn to President Trump's false
allegations about election integrity in Philadelphia. The
Attorney General discussed these allegations at some length.
Attorney General Barr. You know, the idea the President has
repeatedly suggested that there was some kind of outpouring of
unexpected votes in inner city areas like Philadelphia as recently as
January 13th when he walked off the NPR set. He was asked by the
interviewer, you know, what's--you know, what's your evidence of fraud?
And he said more people voted in Philadelphia than there were
voters. And that was absolute rubbish. The turnout in Philadelphia was
in line with the State's turnout and in fact it was not as--as
impressive as many suburban counties. And there was nothing strange
about the Philadelphia turnout. It wasn't like there were all these
unexpected votes that came out in Philadelphia.
So, you know, I think once you actually look at the votes and then
if there's an obvious explanation, he--you know, for example, in
Pennsylvania, Trump ran weaker than the Republican ticket generally. He
ran weaker than two of the State candidates. He ran weaker than the
Congressional delegate--delegation running for Federal Congress, and he
ran weaker than the--the Republican--I think, I haven't looked at this
recently, but he generally was a weak element on the Republican ticket.
So, that does not suggest that the election was stolen by fraud.
Mr. Heaphy. How about Pennsylvania and Bill McSwain? You were
talking with the U.S. attorney in Philadelphia about an alleged
discrepancy between the number of absentee ballots issued and the
number of ballots cast.
Attorney General Barr. Right. So, I--I--you know, that was a--a--
one of the big ones for a period of time. I think--I think that was
raised in Gettysburg by Giuliani or something like that, but it kept on
being repeated. And I found it annoying because it didn't seem that it
was right. So, I called--I called McSwain, and he got back to me. He
said, ``No, the problem is that Mastriano, threw out a--threw out this
number. And what he did was he mixed apples and oranges. He took the
number of applications for the Republican primary, and he compared it
to the number of absentee votes cast in the general election. But once
you actually go and look and compare apples to apples, there's no
discrepancy at all.''
And, you know, that's one of the--I--I think at some point I
covered that with the President.
Ms. Lofgren. We have another witness here today who has
detailed knowledge about the election process in Philadelphia.
Mr. Schmidt, at the time of the 2020 Presidential election,
you were serving as the only Republican member of
Philadelphia's three-member city commission which is
responsible for overseeing elections throughout the city. Is
that correct?
Mr. Schmidt. That is correct, Congressperson.
Ms. Lofgren. So, President Trump made numerous claims
regarding fraudulent voting practices in Philadelphia,
including the claim that dead people were voting. In fact, Mr.
Giuliani told Pennsylvania State legislators that 8,000 dead
people voted in Pennsylvania.
You investigated those claims of voter fraud. Can you tell
us what you found?
Mr. Schmidt. Not only was there not evidence of 8,000 dead
voters voting in Pennsylvania, there wasn't evidence of 8.
We took seriously every case that was referred to us, no
matter how fantastical, no matter how absurd, and took every
one of those seriously, including these.
Ms. Lofgren. As it turns out, even Mr. Trump's campaign
lawyers knew that the dead voter claims weren't valid.
Mr. Giuliani. I guess the crooks in Philadelphia are disappointed
in this. They only submitted 8,021 ballots from dead people--mail-in
ballots for dead people. Probably easier for dead people to submit
mail-in ballots than it is to vote in person.
Mr. Herschmann. Rudy was at this stage of his life and the same
ability to manage things at this level or not. And obviously, I think
Bernie Kerik publicly said it. They never proved the allegations that
they were making, and they were trying to develop.
Ms. Lofgren. Mr. Schmidt, on November 11, 2020, President
Trump tweeted about you, saying--and here is a quote--``A guy
named Al Schmidt, a Philadelphia Commissioner and so-called
Republican (RINO), is being used big time by the Fake News
Media to explain how honest things were with respect to the
Election in Philadelphia. He refuses to look at a mountain of
corruption & dishonesty. We win!''
As a result of that tweet and the CNN interview you gave
where you stated the dead voter claims in Pennsylvania were
false, you and your staff were subjected to disturbing threats.
Can you tell us about that?
Mr. Schmidt. The threats prior to that tweet--and, on some
level, it feels almost silly to talk about a tweet, but we can
really see the impact that they have, because, prior to that,
the threats were pretty general in nature: ``Corrupt election
officials in Philadelphia are gonna get what's coming to
them''; ``You're what the Second Amendment is for''; ``You're
walking into the lion's den''--all sorts of things like that.
After the President tweeted at me by name, calling me out
the way that he did, the threats became much more specific,
much more graphic, and included not just me by name but
included members of my family by name, their ages, our address,
pictures of our home--just every bit of detail that you could
imagine. That was what changed with that tweet.
Ms. Lofgren. Behind me are redacted threats that you
received that you have provided to the Committee. Now, we
redacted portions of the text to protect your family.
Mr. Schmidt, I think I speak for all of my colleagues when
I say we are deeply sorry for what you and your loved ones have
been through. I also want to thank you for your service to your
country and for standing up for the rule of law.
I want to thank both Mr. Pak and Mr. Schmidt for their
service, their testimony, and for standing up for the rule of
law.
Now I would like to turn to another subject.
The courts in our country provide a legitimate venue for
campaigns to challenge what they view as irregular election
practices. Now, courts have the final say on how the law
applies to those challenges.
We have a renowned legal expert here to address the Trump
campaign's activities in court.
Mr. Ginsberg, you have spent your entire career
representing Republicans in election-related litigation. You
served as the national counsel on Republican Presidential
campaigns in 2000, in 2004, and in 2012. You played a key role
in the 2000 Florida recount that led to the Supreme Court's
decision in Bush v. Gore. You served as the co-chair of the
Presidential Commission on Election Administration. I think it
is fair to say you are the most prominent Republican lawyer who
has litigated in the election field.
Now, you have analyzed the Trump campaign's litigation
pretty carefully. What is the, like, normal process for post-
election litigation? How was the Trump campaign's different
from the kinds of post-election litigation you have been
involved in and know about?
Mr. Ginsberg. In the normal course of things, any campaign,
on the night of the election and in the days after, will do a
couple of different things.
One is that they will analyze precinct results to look for
abnormalities in the results, and they will send people to
those precincts to ask more questions.
Second, all campaigns will have poll watchers and poll
workers and observers in the polling place. So, campaigns will
talk to those people if they saw any irregularities that could
cause problems in the election.
Now, the Trump campaign talked pre-election about having
50,000 poll workers, so presumably they did have eyes on the
ground in all of these places.
So, in the normal course of things, a campaign will analyze
the reports that come in. The Trump campaign had a couple of
basic problems, however. No. 1, the 2020 election was not
close. In 2000, that was 537 and close. In this election, the
most narrow margin was 10,000-and-something in Arizona, and you
just don't make up those sorts of numbers in recounts.
When the claims of fraud and irregularities were made, you
have heard very compelling testimony from Mr. Stepien, from
Matt Morgan, from Alex Cannon about those claims and how they
didn't believe them. So, that put the Trump campaign on sort-of
a process of bringing cases without the actual evidence that
you have to have and which the process is designed to bring
out.
Ms. Lofgren. So, are you aware of any instance in which a
court found the Trump campaign's fraud claims to be credible?
Mr. Ginsberg. No. There was never that instance in all the
cases that were brought. I have looked at the more than 60 that
include more than 180 counts. No, the simple fact is that the
Trump campaign did not make its case.
Ms. Lofgren. The Select Committee has identified 62 post-
election lawsuits filed by the Trump campaign and his allies
between November 4, 2020, and January 6, 2021. Those cases
resulted in 61 losses and only a single victory, which actually
didn't affect the outcome for either candidate.
Despite those 61 losses, President Trump and his allies
claim that the courts refused to hear them out and, as a
result, they never had their day in court.
Mr. Ginsberg, what do you say about the claims that Mr.
Trump wasn't given an opportunity to provide the evidence they
had of voter fraud? In fact, did they have their day in court?
Mr. Ginsberg. They did have their day in court.
About half of those cases that you mentioned were dismissed
at the procedural stage for a lack of standing--the proper
people didn't bring the case--or there wasn't sufficient
evidence and it got dismissed on a motion to dismiss.
But, in the others, there was discussion of the merits that
were contained in the complaints, and in no instance did a
court find that the charges of fraud were real.
It is also worth noting that, even if the Trump campaign
complained that it did not have its day in court, there have
been post-election reviews in each of the 6 battleground States
that could have made a difference, and those ranged from the
somewhat-farcical Cyber Ninjas case in Arizona to the Michigan
senate report that was mentioned earlier, the hand recount in
Georgia that Mr. Pak addressed, and in each one of those
instances there was no credible evidence of fraud produced by
the Trump campaign or his supporters.
Ms. Lofgren. Thank you.
You know, as Mr. Ginsberg has explained, there are no cases
where the Trump campaign was able to convince a court that
there was wide-spread fraud or irregularities in the 2020
election.
Over and over, judges, appointed by Democrats and
Republicans alike, directly rebutted this false narrative. They
called out the Trump campaign's lack of evidence for its
claims. The judges did that even in cases where they could have
simply thrown out the lawsuit without writing a word.
You can see behind me a few excerpts from the decisions in
these 62 cases.
The Trump campaign's lack of evidence was criticized by
judges across the political spectrum.
In Pennsylvania, a Trump-appointed judge concluded,
``Charges require specific allegations and proof. We have
neither here.''
Another Trump-appointed judge warned that, if cases like
these succeeded, ``Any disappointed loser in a Presidential
election able to hire a team of clever lawyers could flag
claimed deviations from election results and cast doubt on
election results.''
The list goes on and on.
Allegations are called, ``an amalgamation of theories,
conjecture, and speculation.'' In another, ``strained legal
arguments without merit''; ``unsupported by evidence'';
``derived from wholly unreliable sources''; ``a fundamental and
obvious misreading of the Constitution.''
The rejection of President Trump's litigation efforts was
overwhelming. Twenty-two Federal judges appointed by Republican
Presidents, including 10 appointed by President Trump himself,
and at least 24 elected or appointed Republican State judges
dismissed the President's claims.
At least 11 lawyers have been referred for disciplinary
proceedings due to bad faith and baseless efforts to undermine
the outcome of the 2020 Presidential election. Rudy Giuliani
had his license to practice law suspended in New York, and,
just this week, a newly-filed complaint will potentially make
his suspension from practicing law in D.C. permanent.
As we have just heard from perhaps the most preeminent
Republican election lawyer in recent history, the Trump
campaign's unprecedented effort to overturn its election loss
in court was a deeply damaging abuse of the judicial process.
As stated by U.S. District Court Judge David Carter, this
was ``a coup in search of a legal theory.''
Thank you, Mr. Chairman, and I yield back.
Chairman Thompson. I want to thank our witnesses for
joining us today.
The Members of the Select Committee may have additional
questions for today's witnesses, and we ask that you respond
expeditiously in writing to those questions.
Without objection, Members will be permitted 10 business
days to submit statements for the record, including opening
remarks and additional questions for the witnesses.
The second panel of witnesses is now dismissed.
Without objection, the Chair recognizes the gentlewoman
from California, Ms. Lofgren, for a closing statement.
Ms. Lofgren. Thank you, Mr. Chairman.
Now that we understand the litigation efforts by President
Trump and his allies, I would like to present additional
actions taken by the Trump campaign during this time.
President Trump continued to push the ``stolen election''
narrative even though he and his allies knew that their
litigation efforts making the same claim had failed.
Now, it is worth pointing out that litigation generally
does not continue past the safe harbor date of December 14th.
But the fact that this litigation went on--well, that decision
makes more sense when you consider the Trump campaign's
fundraising tactics. Because if the litigation had stopped on
December 14th, there would have been no fight to defend the
election and no clear path to continue to raise millions of
dollars.
Mr. Chairman, at this time, I would ask for unanimous
consent to include in the record a video presentation
describing how President Trump used the lies he told to raise
millions of dollars from the American people. These fundraising
schemes were also part of the effort to disseminate the false
claims of election fraud.
Chairman Thompson. Without objection, so ordered.
Ms. Wick. My name is Amanda Wick, and I'm senior investigative
counsel at the House Select Committee to Investigate the January 6th
Attack on the United States Capitol.
Between election day and January 6th, the Trump campaign sent
millions of fundraising emails to Trump supporters, sometimes as many
as 25 a day. The emails claimed the, `` . . . Left-wing MOB'' was
undermining the election; implored supporters to, ``step up . . . to
protect the integrity'' of the election; and encourage them to, ``fight
back.''
But as the Select Committee has demonstrated, the Trump campaign
knew these claims of voter fraud were false. Yet they continued to
barrage small-dollar donors with e-mails encouraging them to donate to
something called the Official Election Defense Fund. The Select
Committee discovered no such fund existed.
Ms. Allred. I don't believe there was actually a fund called the
Election Defense Fund.
Mr. Aganga-Williams. Is it fair to say that the Election Defense
Fund was another--I think we can call that a marketing tactic?
Mr. Coby. Yes.
Mr. Aganga-Williams. And tell us about these funds as marketing
tactics.
Mr. Coby. Just the topic matter where money could potentially go to
be--how money could potentially be used.
Ms. Wick. The claims that the election was stolen were so
successful President Trump and his allies raised $250 million, nearly
$100 million in the first week after the election.
On November 9, 2020, President Trump created a separate entity
called the Save America PAC. Most of the money raised went to this
newly-created PAC, not to election-related litigation.
The Select Committee discovered that the Save America PAC made
millions of dollars of contributions to pro-Trump organizations,
including $1 million to Trump Chief of Staff Mark Meadows's charitable
foundation; $1 million to the America First Policy Institute, a
conservative organization which employs several former Trump
administration officials; $204,857 to the Trump Hotel Collection; and
over $5 million to Event Strategies Inc., the company that ran
President Trump's January 6th rally on the Ellipse.
President Trump. All of us here today do not want to see our
election victory stolen by emboldened radical left Democrats, which is
what they're doing.
Ms. Wick. The evidence developed by the Select Committee highlights
how the Trump campaign aggressively pushed false election claims to
fundraise, telling supporters it would be used to fight voter fraud
that did not exist. The emails continued through January 6th, even as
President Trump spoke on the Ellipse.
Crowd. [unintelligible]
Ms. Wick. Thirty minutes after the last fundraising email was sent,
the Capitol was breached.
Crowd. U-S-A! U-S-A! U-S-A! [unintelligible] U-S-A! U-S-A!
Ms. Lofgren. Every American is entitled and encouraged to
participate in our electoral process. Political fundraising is
part of that. Small-dollar donors use scarce disposable income
to support candidates and causes of their choosing, to make
their voices heard, and those donors deserve the truth about
what those funds will be used for.
Throughout the Committee's investigation, we found evidence
that the Trump campaign and its surrogates misled donors as to
where their funds would go and what they would be used for. So,
not only was there the Big Lie, there was the Big Rip-Off.
Donors deserve to know where their funds are really going.
They deserve better than what President Trump and his team did.
Mr. Chairman, I yield back.
Chairman Thompson. Without objection, the Chair recognizes
the gentlewoman from Wyoming, Ms. Cheney, for a closing
statement.
Vice Chair Cheney. Thank you very much, Mr. Chairman.
Mr. Chairman, I would like to thank all of our witnesses
today.
I would also like to, in particular, wish Mr. Stepien and
his family all the best on the arrival of a new baby.
Today's hearing, Mr. Chairman, was very narrowly focused,
and in the coming days you will see the Committee move on to
President Trump's broader planning for January 6th, including
his plan to corrupt the Department of Justice and his detailed
planning with lawyer John Eastman to pressure the Vice
President, State legislatures, State officials, and others to
overturn the election.
Let me leave you today with one clip to preview what you
will see in one of our hearings to come. This is the testimony
of White House lawyer Eric Herschmann. John Eastman called Mr.
Herschmann the day after January 6th, and here is how that
conversation went.
Mr. Herschmann. I said to him, ``Are you out of your f-ing mind?''
I said I could--I only want to hear two words coming out of your mouth
from now on, ``Orderly transition.''
Vice Chair Cheney. Thank you, Mr. Chairman. I yield back.
Chairman Thompson. At the conclusion of last week's
hearing, we showed you a video of rioters explaining why they
had come to Washington on January 6th. It was because Donald
Trump told them to be here.
Today, we heard about some of the lies Donald Trump
embraced and amplified when it became clear he didn't have the
numbers of votes to win the election.
We heard about how officials at different levels of
government explored claims of fraud and found no evidence, yet
the former President continued to repeat those false claims
over and over again.
Today, we will end things where we did on Thursday, back on
January 6th, hearing words of individuals who wanted to stop
the transfer of power. We know they were there because of
Donald Trump. Now we will hear some of the things they
believed.
Without objection, I enter into the record a video
presentation.
Voice. I know exactly what's going on right now: fake election.
They think they're going to fucking cheat us out of our vote and put
Communist fucking Biden in office. It ain't fucking happening today,
buddy.
Voice. You voted?
Voice. Yes, sir.
Voice. How'd it go?
Voice. Voted early, it went well except for the can't--can't really
trust software--Dominion software all over it.
Voice. We voted, and right in the top, right-hand corner of the
Dominion voting machine that we used, there was a wi-fi symbol with
five bars, so that most definitely connected to the internet, without a
doubt. So, they stole that from us twice. We're not doing it anymore.
We're not taking it anymore. So, we're standing up. We're here.
Whatever happens, we're not laying down again.
Voice. I'm from Pennsylvania.
Voice. It worked.
Voice. It didn't work. It absolutely----
Voice. It worked----
Voice. It didn't work----
Voice. You voted.
Voice. No!
Voice. Trust the system.
Voice. Two hundred thousand people that weren't even registered
voted. Four hundred and thirty thousand votes disappeared from
President Trump's tally, and you can't stand there and tell me it
worked.
Voice. I don't want to tell you that what we're doing is right, but
if the election's being stolen what is it going to take?
Chairman Thompson. The Chair requests those in the hearing
room remain seated until the Capitol Police have escorted
Members from the room.
Without objection, the Committee stands adjourned.
[Whereupon, at 12:50 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Byung Jin ``BJay'' Pak
June 13, 2022
Chairman Thompson, Vice Chair Cheney, and Members of the Committee,
good morning, and thank you for the opportunity to speak with you
today. My name is BJay Pak, and I had the great honor to serve as the
Senate-confirmed U.S. Attorney for the Northern District of Georgia
from October 10, 2017, to January 4, 2021. My resignation early last
year capped off nearly a decade of service in the U.S. Department of
Justice, as I had previously served as an Assistant U.S. Attorney in
the Criminal Division of my former office, from 2002 to 2008. I have
also had the honor to serve in the judicial branch of the Federal
Government as a law clerk for Judge Richard Mills of the United States
District Court for the Central District of Illinois. Moreover, I served
as a State Representative in the Georgia General Assembly from 2011 to
2017. Because I am a believer in term limits, I decided not to stand
for re-election after three terms. Since 2021, I have been in private
practice in Atlanta, Georgia.
As a 10-year-old immigrant boy from South Korea, I never could have
imagined that I would one day serve the United States as the chief
Federal law enforcement officer for one of the largest Federal
districts in the Nation. Unlike the Americans who were granted
citizenship through birthright, I, along with millions of immigrants to
this Nation, had the privilege to take an oath to become a citizen of
this great country. The oath of citizenship is very similar to the oath
I took to become a U.S. Attorney for the Northern District of Georgia.
Each oath makes clear, in no uncertain terms, that one's allegiance is
to the Constitution, and not to any President, or political party. The
oath has served as my guiding principle throughout my public service
career.
Like many Americans, I was called to public service after the
terrorist attacks on September 11, 2001. Prior to the attacks, I
thought our country was invincible. But those attacks showed that we
were vulnerable, and our country needed its citizens to help protect
it, and to serve within its ranks. I was fortunate to be able to serve
nearly a decade in the Department of Justice--the only Department in
the country that has a moral virtue in its name.
My testimony today relates to my time as U.S. attorney, and
particularly, the last month of my tenure. The events which unfolded on
January 6th at the U.S. Capitol brought extreme shock and
disappointment to Americans and to the world. I certainly felt those
same emotions as I saw images of that event on television. But I hope
that what occurred that day and the days leading up to January 6th will
never overshadow all the great work done by the career public servants
who faithfully serve the Northern District of Georgia and the
Department of Justice every single day.
During my tenure as U.S. attorney, from fiscal year 2017 to fiscal
year 2020, our prosecutors and law enforcement partners:
increased overall prosecutions by 30 percent;
increased drug enforcement by 85 percent to fight the opioid
epidemic;
increased white-collar crime prosecutions by 112 percent;
help recover hundreds of millions of dollars in restitutions
and fines; and,
instituted an innovative and successful recidivism reduction
program for violent offenders who were returning to society
after serving their sentences.
Of course, 2020 was a particularly difficult year for our country
generally, and for the Northern District of Georgia in particular. We
started the year working through the longest Government shutdown in
recent history and faced challenges related to the COVID-19 pandemic,
demonstrations and unrest following the murders of George Floyd and
Ahmaud Arbery, including challenges from those who sought to use the
cover of legitimate protest as an opportunity to wreak havoc and
mayhem. At the end of the year, the 2020 Presidential election became
one of the most intense in our Nation's recent history. As this
Committee is well aware, Georgia was a hotly contested swing State, and
our office and our law enforcement partners in the Northern District of
Georgia went above and beyond the call of duty to fulfill their mission
to enforce the law, despite the many challenges that they faced.
state farm arena video clip
Among those challenges were individuals who continuously made false
allegations that the elections in Georgia had serious irregularities,
or that the result of those elections was fraudulent. One such example
was the alleged ``suitcase full of fake ballots'' incident. On December
3, 2020, Rudy Giuliani appeared before a subcommittee of the Georgia
State senate that was looking into election integrity issues. During
the hearing, Mr. Giuliani played a video clip purportedly showing the
tallying of ballots from Fulton County at the State Farm Arena on
election night--November 3, 2020. I learned of his appearance at the
committee hearing and the existence of the video clip through media
reports. According to the media reports, Mr. Giuliani claimed that the
video showed the Fulton County election workers at State Farm Arena
taking a black ``suitcase'' out from under a table, removing
purportedly fake ballots from the suitcase, and running the purportedly
fake ballots through the tabulating machine after the observers from
the respective political parties had been sent home. Mr. Giuliani
claimed that this video was a ``smoking gun'' of evidence of election
fraud in Fulton County.
Mr. Giuliani's claims were simply untrue and making such a claim
was reckless. At the request of Attorney General William Barr, our
office and the FBI conducted a preliminary inquiry to evaluate whether
any of the allegations made by Mr. Giuliani with respect to the State
Farm Arena video could be substantiated. After reviewing the evidence
and interviewing witnesses, my office and the FBI concluded that there
was nothing to substantiate Mr. Giuliani's claims, let alone any
potential violations of Federal law. The ``suitcase'' was a legitimate
lockbox used to store official ballots, and all lockboxes and ballots
were accounted for. I reported our conclusions from the preliminary
inquiry to Attorney General Barr, and to Rich Donoghue, who was then
the principal associate deputy attorney general to Deputy Attorney
General Jeff Rosen.
One unfortunate consequence of Mr. Giuliani making such
unsubstantiated claims of election fraud was that the Fulton County
Election workers depicted in the State Farm Arena video clips were
``doxed''--in other words, their names, addresses, and other
information were publicized. I received reports that they were being
harassed, and that some had received death threats. As a result, law
enforcement resources had to be diverted from other areas and deployed
to protect the workers.
jeffrey clark
A few days before January 1, 2021, I spoke again with Mr. Donoghue,
who was by this time, the acting deputy attorney general. Mr. Donoghue
indicated that he had just left a long meeting at the White House with
President Trump. He told me that the President was singularly focused
on Georgia, and that he was unable to dissuade the President from the
notion that that he won Georgia, and that the election was stolen. I
reiterated to Mr. Donoghue that, although every election has some
irregularities, I had received no substantial reports of election fraud
supported by evidence, enough to even initiate a formal investigation.
Mr. Donoghue agreed and expressed frustration that some individuals
were feeding the President various unsubstantiated theories of election
fraud, and that he and others had to spend a significant amount of time
to dispel the theories.
Mr. Donoghue then asked if I knew Jeff Clark. I have never met nor
spoken with Mr. Clark. Mr. Donoghue told me that Mr. Clark was the
Assistant Attorney General for the Environment & Natural Resources
Division, and at the time, was also the Acting Assistant Attorney
General of the Civil Division. Mr. Donoghue stated that Mr. Clark had
``the President's ear'', and that Mr. Clark was suggesting that the
DOJ, in an extremely unorthodox fashion, both intervene in support of
the Trump campaign in a civil lawsuit filed in Fulton County, Georgia
alleging election fraud, and sign a letter urging the Georgia
legislature to call a special session to investigate alleged election
irregularities. Mr. Donoghue and I both felt strongly that this was
highly unusual and not appropriate. Mr. Donoghue also told me that Mr.
Clark would call me about election irregularities. I told Mr. Donoghue
that I would be happy to tell Mr. Clark that there was no evidence of
wide-spread election fraud, and that I would reject any request for the
U.S. attorney's office to either intervene in a lawsuit or ask any
State authority to pause the certification process. Mr. Donoghue stated
that he would not be surprised if the President himself called me. I
told Mr. Donoghue that even if the President called me himself, my
answer would not change. Neither Mr. Clark nor President Trump ever
contacted me, however.
resignation
After President Biden's victory in the 2020 election, I had always
planned to submit my resignation in January 2021, as is customary for
many DOJ political appointees. My plan was to make my resignation
effective on Inauguration Day--January 20, 2021, so that my first
assistant U.S. attorney would be promoted as acting U.S. attorney,
pursuant to the Federal Vacancies Reform Act. I did not announce my
intentions to the public at that time. However, during the latter part
of December, I notified members of the U.S. attorney's office, the
District Court, and some of our law enforcement partners of my plans. I
also told Mr. Donoghue.
On January 3, 2021, I learned for the first time, through media
reports, of the call between President Trump and Georgia Secretary of
State Brad Raffensperger, in which President Trump reportedly attempted
to persuade Secretary Raffensperger to ``find votes,'' and continued to
claim that the Georgia election was ``rigged.'' On learning about this
call, I was deeply concerned and disturbed about what was being asked
of the Office of the Secretary of State and considered resigning
immediately. I eventually decided against an immediate resignation,
given the upcoming run-off election in Georgia where the control of the
U.S. Senate hung in the balance; I did not want my sudden resignation
to be used or interpreted in any way to influence that run-off
election.
Around 10 o'clock pm that evening, I noticed that I had several
missed calls from Mr. Donoghue, and a text from him asking me to return
his calls. When I called him back, Mr. Donoghue told me that he and
Acting Attorney General Rosen had returned from a 3-hour meeting at the
White House during which the President had expressed extreme
displeasure toward the DOJ for ``not doing enough'' about the purported
fraud that he believed cost him the election. Mr. Donoghue indicated
that the President had read a 2016 New York Times article--in which I
was quoted regarding how then-candidate Trump's campaign rhetoric
created difficulties in recruiting minorities to the Republican party--
and became convinced that I was a ``never-Trumper,'' which in the
President's mind, was the reason there was no election fraud
investigations in Atlanta. The President wanted the DOJ leadership to
fire me. Mr. Rosen and Mr. Donoghue were opposed to my removal and told
the President that, as I am a Senate-confirmed U.S. attorney, they did
not have the power to fire me. At that point, someone at the meeting
noted that I was already going to submit my resignation in the upcoming
week, so the President could simply accept my resignation early, rather
than fire me. The President indicated that he wanted the resignation
letter as soon as possible.
Mr. Donoghue offered to place me in a Senior Executive Service
position within DOJ until Inauguration. I declined because, after the
revelations of that day, I no longer wished to serve in that
administration. Concerned about the disruption that would be caused by
a sudden transition of leadership in the office, I asked Mr. Donoghue
if my first assistant U.S. attorney, Kurt Erskine, could serve as
acting U.S. attorney after my resignation. Mr. Donoghue said that he
and Mr. Rosen had suggested Mr. Erskine to the President, but the
President recommended that Bobby Christine, then the U.S. Attorney for
the Southern District of Georgia, serve as the acting U.S. Attorney for
Northern District, because the President had heard ``good things''
about Mr. Christine. Mr. Donoghue indicated that the President called
Mr. Christine from the White House to offer him the position. Mr.
Donoghue stated that Mr. Christine was caught off-guard by the offer
and was confused as to whether he could even serve in both roles
simultaneously. Mr. Donoghue indicated that I could choose how to
announce my resignation, either in a press conference to ``blow the
whistle'' or by issuing a statement. He suggested that a low-key
resignation would be best for all involved, especially when he and a
few others were ``trying to hold the ship together'' until
Inauguration. I told him I would think about it and let him know.
The next morning on Monday, January 4, 2021, I called Mr. Donoghue
on my way to the office to let him know that I had decided to make a
quiet exit, as I did not want my resignation to become a distraction to
those who still had a job to do at DOJ. I told Mr. Donoghue to ``hang
in there,'' because we needed him, and that it was an honor to serve
the Nation with him. I then called Mr. Christine to arrange a
conference call between our leadership teams to facilitate a smooth
transition and offered to set up a briefing on all election-related
investigations that were pending.
Once at the office, I spoke to my first assistant U.S. attorney,
Mr. Erskine, and the remaining members of my leadership team to inform
them that I would be resigning, effective immediately. I then sent my
resignation to the Acting Attorney General and to the President.
Despite the abrupt end to my tenure as U.S. attorney, I am proud of
the great work done by our everyday heroes in the law enforcement
community, and by the U.S. attorney's office for the Northern District
of Georgia. Serving as U.S. attorney and working with the dedicated
public servants has been the greatest honor of my professional life.
But the best part of working in the U.S. Department of Justice, and in
particular the U.S. attorney's office, is that it is where you do the
right thing, the right way, for the right reasons. I have strived to
conduct myself in a way that serves and honors those ideals.
Thank you for your time. God bless you, and may God bless these
United States.
______
Joint Statement of Elections Infrastructure Government Coordinating
Council & The Election Infrastructure Sector Coordinating Executive
Committees
Original release date: November 12, 2020
WASHINGTON.--The members of Election Infrastructure Government
Coordinating Council (GCC) Executive Committee--Cybersecurity and
Infrastructure Security Agency (CISA) Assistant Director Bob Kolasky,
U.S. Election Assistance Commission Chair Benjamin Hovland, National
Association of Secretaries of State (NASS) President Maggie Toulouse
Oliver, National Association of State Election Directors (NASED)
President Lori Augino, and Escambia County (Florida) Supervisor of
Elections David Stafford--and the members of the Election
Infrastructure Sector Coordinating Council (SCC)--Chair Brian Hancock
(Unisyn Voting Solutions), Vice Chair Sam Derheimer (Hart InterCivic),
Chris Wlaschin (Election Systems & Software), Ericka Haas (Electronic
Registration Information Center), and Maria Bianchi (Democracy Works)--
released the following statement:
``The November 3d election was the most secure in American history.
Right now, across the country, election officials are reviewing and
double checking the entire election process prior to finalizing the
result.
``When States have close elections, many will recount ballots. All
of the States with close results in the 2020 Presidential race have
paper records of each vote, allowing the ability to go back and count
each ballot if necessary. This is an added benefit for security and
resilience. This process allows for the identification and correction
of any mistakes or errors. There is no evidence that any voting system
deleted or lost votes, changed votes, or was in any way compromised.
``Other security measures like pre-election testing, State
certification of voting equipment, and the U.S. Election Assistance
Commission's (EAC) certification of voting equipment help to build
additional confidence in the voting systems used in 2020.
``While we know there are many unfounded claims and opportunities
for misinformation about the process of our elections, we can assure
you we have the utmost confidence in the security and integrity of our
elections, and you should too. When you have questions, turn to
elections officials as trusted voices as they administer elections.''
Last Published Date: November 12, 2020
______
Report by the Michigan Senate Oversight Committee
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
______
Joint Expert Report
scientists say no credible evidence of computer fraud in the 2020
election outcome, but policy makers must work with experts to improve
confidence
16 November 2020
We are specialists in election security, having studied the
security of voting machines, voting systems, and technology used for
government elections for decades.
We and other scientists have warned for many years that there are
security weaknesses in voting systems and have advocated that election
systems be better secured against malicious attack. As the National
Academies recently concluded, ``There is no realistic mechanism to
fully secure vote casting and tabulation computer systems from cyber
threats.'' However, notwithstanding these serious concerns, we have
never claimed that technical vulnerabilities have actually been
exploited to alter the outcome of any U.S. election.
Anyone asserting that a U.S. election was ``rigged'' is making an
extraordinary claim, one that must be supported by persuasive and
verifiable evidence. Merely citing the existence of technical flaws
does not establish that an attack occurred, much less that it altered
an election outcome. It is simply speculation.
The presence of security weaknesses in election infrastructure does
not by itself tell us that any election has actually been compromised.
Technical, physical, and procedural safeguards complicate the task of
maliciously exploiting election systems, as does monitoring of likely
adversaries by law enforcement and the intelligence community. Altering
an election outcome involves more than simply the existence of a
technical vulnerability.
We are aware of alarming assertions being made that the 2020
election was ``rigged'' by exploiting technical vulnerabilities.
However, in every case of which we are aware, these claims either have
been unsubstantiated or are technically incoherent. To our collective
knowledge, no credible evidence has been put forth that supports a
conclusion that the 2020 election outcome in any State has been altered
through technical compromise.
That said, it is imperative that the U.S. continue working to
bolster the security of elections against sophisticated adversaries. At
a minimum, all States should employ election security practices and
mechanisms recommended by experts to increase assurance in election
outcomes, such as post-election risk-limiting audits.
If you are looking for a good place to start learning the facts
about election security, we recommend the recent National Academies of
Science, Engineering, and Medicine (NASEM) study, ``Securing the
Vote'', which is available for free download at https://doi.org/
10.17226/25120.
Signed,
(Affiliations are for identification purposes only; listed
alphabetically by surname.)
1. Tony Adams, Independent Security Researcher.
2. Andrew W. Appel, Professor of Computer Science, Princeton
University.
3. Arlene Ash, Professor, University of Massachusetts Medical School.
4. Steven M. Bellovin, Percy K. and Vida L.W. Hudson Professor of
Computer Science; affiliate faculty, Columbia Law, Columbia University.
5. Matt Blaze, McDevitt Chair of Computer Science and Law, Georgetown
University.
6. Duncan Buell, NCR Professor of Computer Science and Engineering,
University of South Carolina.
7. Michael D. Byrne, Professor of Psychological Sciences and Computer
Science, Rice University.
8. Jack Cable, Independent Security Researcher.
9. Jeremy Clark, NSERC/Raymond Chabot Grant Thornton/Catallaxy
Industrial Research Chair in Blockchain Technologies, Concordia
Institute for Information Systems Engineering.
10. Sandy Clark, Independent Security Researcher.
11. Stephen Checkoway, Assistant Professor of Computer Science, Oberlin
College.
12. Richard DeMillo, Chair, School of Cybersecurity and Privacy and
Warren Professor of Computing, Georgia Tech.
13. David L. Dill, Donald E. Knuth Professor, Emeritus, in the School
of Engineering, Stanford University.
14. Zakir Durumeric, Assistant Professor of Computer Science, Stanford
University.
15. Aleksander Essex, Associate Professor of Software Engineering,
Western University, Canada.
16. David Evans, Professor of Computer Science, University of Virginia.
17. Ariel J. Feldman, Software Engineer.
18. Edward W. Felten, Robert E. Kahn Professor of Computer Science and
Public Affairs, Princeton University.
19. Bryan Ford, Professor of Computer and Communication Sciences, Swiss
Federal Institute of Technology Lausanne (EPFL).
20. Joshua M. Franklin, Independent Security Researcher.
21. Juan E. Gilbert, Banks Family Preeminence Endowed Professor &
Chair, University of Florida.
22. J. Alex Halderman, Professor of Computer Science and Engineering,
University of Michigan.
23. Joseph Lorenzo Hall, SVP Strong Internet, Internet Society.
24. Harri Hursti, Co-founder, Nordic Innovation Labs and Election
Integrity Foundation.
25. Neil Jenkins, Chief Analytic Officer, Cyber Threat Alliance.
26. David Jefferson, Lawrence Livermore National Laboratory (retired).
27. Douglas W. Jones, Associate Professor of Computer Science,
University of Iowa.
28. Joseph Kiniry, Principal Scientist, Galois, CEO and Chief
Scientist, Free & Fair.
29. Philip Kortum, Associate Professor of Psychological Sciences, Rice
University.
30. Carl E. Landwehr, Visiting Professor, University of Michigan.
31. Maggie MacAlpine, Co-founder, Nordic Innovation Labs and Election
Integrity Foundation.
32. Bruce McConnell, former Deputy Under Secretary for Cybersecurity,
Department of Homeland Security, (currently) president, EastWest
Institute.
33. Patrick McDaniel, Weiss Professor of Information and Communications
Technology, Penn State University.
34. Walter Mebane, Professor of Political Science and of Statistics,
University of Michigan.
35. Eric Mill, Chrome Security PM, Google.
36. David Mussington, Professor of the Practice, School of Public
Policy, University of Maryland College Park.
37. Peter G. Neumann, Chief Scientist, SRI International Computer
Science Lab.
38. Lyell Read, Researcher at SSH Lab, Oregon State University.
39. Ronald L. Rivest, Institute Professor, Massachusetts Institute of
Technology.
40. Aviel D. Rubin, Professor of Computer Science, Johns Hopkins
University.
41. Bruce Schneier, Fellow and Lecturer, Harvard Kennedy School.
42. Alexander A. Schwarzmann, Dean of Computer and Cyber Sciences,
Augusta University.
43. Hovav Shacham, Professor of Computer Science, The University of
Texas at Austin.
44. Micah Sherr, Provost's Distinguished Associate Professor,
Georgetown University.
45. Barbara Simons, IBM Research (retired).
46. Kevin Skoglund, Chief Technologist, Citizens for Better Elections.
47. Michael A. Specter, EECS PhD Candidate, MIT.
48. Alex Stamos, Director, Stanford Internet Observatory.
49. Philip B. Stark, Professor of Statistics and Associate Dean of
Mathematical and Physical Sciences, University of California, Berkeley.
50. Jacob Stauffer, Director of Operations, Coherent CYBER.
51. Camille Stewart, Cyber Fellow, Harvard Belfer Center.
52. Rachel Tobac, Hacker, CEO of SocialProof Security.
53. Giovanni Vigna, Professor, Computer Science, University of
California, Santa Barbara.
54. Poorvi L. Vora, Professor of Computer Science, The George
Washington University.
55. Dan S. Wallach, Professor, Departments of Computer Science and
Electrical & Computer Engineering, Rice Scholar, Baker Institute of
Public Policy, Rice University.
56. Tarah Wheeler, Cyber Fellow, Harvard Belfer Center.
57. Eric Wustrow, Assistant Professor, Department of Electrical,
Computer & Energy Engineering, University of Colorado Boulder.
58. Ka-Ping Yee, Review Team Member, California Secretary of State's
Top-to-Bottom Review of Voting Systems.
59. Daniel M. Zimmerman, Principal Researcher, Galois and Principled
Computer Scientist, Free & Fair.
______
Statement of Janai Nelson, President and Director-Counsel, NAACP Legal
Defense and Educational Fund, Inc.
May 3, 2022
i. introduction
Thank you for the opportunity to directly submit this statement to
the Select Committee to Investigate the January 6th Attack on the
United States Capitol. No other act of mass violence in modern history
has threatened the existence of our Republican form of government more
than the insurrection that occurred at the United States Capitol a mere
16 months ago. The goal of the insurrectionists was clear: To
effectuate a violent coup, deny the will of the majority of voters, and
upend the functioning of our increasingly multi-racial, multi-ethnic
democracy. Therefore, it is essential to the security and endurance of
our democracy that this committee understand the January 6th attack in
its full context: As a manifestation of broad white supremacist
backlash against robust democratic participation by people of color.
This backlash has been fueled in part by the false narrative that
rampant voter fraud occurred in communities of color and also by a
deep-seated fear that the changing racial and ethnic demographics in
the United States and the increasing racial and ethnic diversity of the
electorate threaten the existing power structure premised on white
supremacy. Moreover, the insurrection was preceded and followed by a
rash of racially discriminatory voter suppression laws aimed at Black
and Brown Americans and which continue to threaten the integrity of our
electoral process. Faced with the added specter of future mass violence
in our electoral process, Congress must not only address the threat to
our democracy by investigating the January 6th attack but also by
enacting legislation to fully protect the right to vote and ensure
against election subversion.
A. Statement of Purpose and Outline
The purpose of this testimony is to make clear the explicit
connection between the violence of January 6th and the legal
retrenchment that both preceded and followed it, and to insist that
Congress cannot address the root cause of the Insurrection without
acting to build a more inclusive, multiracial, multi-ethnic democracy
by protecting what the late Congressman John Lewis called the
``precious, almost sacred'' right to vote for Black and Brown
Americans.\1\
---------------------------------------------------------------------------
\1\ Rep. John Lewis: ``Your Vote Is Precious, Almost Sacred,'' PBS
Newshour (Sep. 6, 2021),https://www.pbs.org/newshour/show/rep-john-
lewis-your-vote-is-precious-almost-sacred.
---------------------------------------------------------------------------
I briefly discuss the history of racial progress and backlash in
the United States; show how a false narrative about elections stolen
through massive voter fraud has served as a coded appeal to white
racial resentment and a central frame that connects the January 6th
Insurrection with wide-spread efforts to restrict the franchise;
highlight the historic 2020 turnout of voters of color that intensified
the current backlash; detail the various ways the backlash has taken
shape since 2020; and explain how furthering progress on race and
preventing future insurrection both require solutions that promote a
truly inclusive, multi-racial democracy, starting at the ballot box and
that protect our elections from subversion.
B. LDF and Our Work
LDF is America's premier legal organization fighting for racial
justice. Through litigation, advocacy, and public education, LDF seeks
structural changes to expand democracy, eliminate disparities, and
achieve racial justice in a society that fulfills the promise of
equality for all Americans. LDF also defends the gains and protections
won over the past 80 years of civil rights struggle and works to
improve the quality and diversity of judicial and executive
appointments.
Since its founding in 1940, LDF has been a leader in the fight to
secure, protect, and advance the voting rights of Black voters and
other communities of color.\2\ LDF's founder Thurgood Marshall--who
litigated LDF's watershed victory in Brown v. Board of Education,\3\
which set in motion the end of legal segregation in this country and
transformed the direction of American democracy in the 20th century--
referred to Smith v. Allwright,\4\ the 1944 case ending whites-only
primary elections, as his most consequential case. He held this view,
he explained, because he believed that the right to vote, and the
opportunity to access political power, was critical to fulfilling the
guarantee of full citizenship promised to Black people in the 14th
Amendment to the U.S. Constitution. LDF has prioritized its work
protecting the right of Black citizens to vote for more than 80 years--
representing Martin Luther King Jr. and the marchers in Selma, Alabama
in 1965, litigating seminal cases interpreting the scope of the Voting
Rights Act, and working in communities across the South to strengthen
and protect the ability of Black citizens to participate in a political
process free from discrimination.
---------------------------------------------------------------------------
\2\ LDF has been an entirely separate organization from the NAACP
since 1957.
\3\ 347 U.S. 483 (1954).
\4\ 321 U.S. 649 (1944).
---------------------------------------------------------------------------
In addition to a robust voting rights litigation docket, LDF has
monitored elections for more than a decade through our Prepared to Vote
initiative (``PTV'') and, more recently, through our Voting Rights
Defender (``VRD'') project, which place LDF staff and volunteers on the
ground for primary and general elections every year to conduct non-
partisan election protection, poll monitoring, and to support Black
political participation in targeted jurisdictions--primarily in the
South. LDF is also a founding member of the non-partisan civil rights
Election Protection Hotline (1-866-OUR-VOTE), presently administered by
the Lawyers' Committee for Civil Rights Under Law.
ii. race in the united states: a history of progress & backlash
America's history has been a halting and fraught journey concerning
racial equality. This journey, however, has never been a straight line.
In fact, the story of multiracial democracy in the United States is a
tale of progress, backlash, and retrenchment--at times followed by
further progress, yet often long-delayed.\5\ This pattern is clear in
the experience of Black Americans across four centuries. The backlash
that follows moments of progress can take many forms. Two
manifestations, however, are consistent and concrete: Violence and
legal changes intended to relegate Black people to the margins of
democratic society. We've experienced several of these cycles
throughout American history, and our current moment shows all the signs
of this same pattern.
---------------------------------------------------------------------------
\5\ Indeed, 8 of the 17 post-Bill of Rights amendments to the U.S.
Constitution expanded the franchise directly or expanded the
Constitutional rights and protection to ensure a more inclusive vision
of ``we the people'' over the course of XX years. U.S. CONST. amends.
XIII, XIV, XV, XVII, XIX, XXIII, XXIV, XXVI.
---------------------------------------------------------------------------
A. Cycles of Progress and Backlash
The first substantial step toward racial equality in the United
States came through the post-Civil War amendments to the Constitution,
which ushered in an era known as Reconstruction. During this period,
the Federal Government enforced new rules protecting the civil and
voting rights of Black people in the South, and as a result Black
people began to build political power through elected office and
economic stability through institutions such as trade unions.\6\ This
moment of progress, however, engendered a severe backlash wherein the
influence and dominance of white supremacy was restored through
violence and laws, in a period known as Redemption.\7\ Following the
Compromise of 1877, the Federal Government withdrew its enforcement of
the rules protecting the civil and voting rights of Black people and
the Supreme Court ruled that courts would not protect Black people's
civil rights against private actors \8\ resulting in nearly a century
of racial terror through lynchings, mob violence, and Jim Crow ``Black
Codes'' enforcing strict segregation and second-class citizenship
ensued.\9\ It was not until the Civil Rights Movement of the 1960's,
and specifically the Voting Rights Act of 1965, that the racial caste
system reestablished through Redemption began to give way.
---------------------------------------------------------------------------
\6\ Eric Foner, The Second Founding: How the Civil War and
Reconstruction Remade the Constitution (2019).
\7\ Id.
\8\ U.S. v. Cruikshank, 92 U.S. 542 (1876).
\9\ Foner supra note 6.
---------------------------------------------------------------------------
This pattern of progress and retrenchment has repeated throughout
American history. In the early 20th Century, Black Americans began to
leave the South--often under cloak of darkness--to escape the yoke of
Jim Crow and seek fairer treatment and economic opportunity in the
cities of the North.\10\ This ``Great Migration'' of approximately 6
million people provided opportunities unfathomable in the Redemption
South. Yet those who migrated North were not met with open arms. The
backlash from Northern whites and the National power structure
manifested in myriad ways, but perhaps the most painful and lasting was
redlining--a process through which mortgage lenders enforced strict
residential segregation and robbed Black Americans of the single
biggest opportunity to build generational wealth.\11\ Ironically, the
same Federal Government that briefly enforced Southern Blacks' rights
during Reconstruction now drove their deprivation in Northern cities
through its racist housing policy \12\ among other racially
discriminatory practices.
---------------------------------------------------------------------------
\10\ Isabel Wilkerson, The Warmth of Other Suns: the Epic Story of
America's Great Migration (2011).
\11\ Richard Rothstein, The Color of Law (2018); Lisa Rice, Long
Before Redlining: Racial Disparities in Homeownership Need Intentional
Policies, Shelterforce (Feb. 15, 2019), https://shelterforce.org/2019/
02/15/long-before-redlining-racial-disparities-in-homeownership-need-
intentional-policies/; Douglas S. Massey & Nancy A. Denton, American
Apartheid: Segregation and the Making of the Underclass (1998); Ira
Katznelson, When Affirmative Action Was White: An Untold History of
Racial Inequality in Twentieth-Century America (2005); Robert C.
Lieberman, Shifting the Color Line: Race and the American Welfare State
(Cambridge, MA: Harvard University Press, 1998).
\12\ See generally Color of Law.
---------------------------------------------------------------------------
Similarly, the progress of LDF's landmark Brown v. Board of
Education case which ended decades of legal segregation in America's
public schools, was followed by ``massive resistance'' and segregation
academies.\13\ In addition to defying the law to maintain racial
hierarchy throughout the South, communities chose to shutter public
infrastructure rather than share it equally--even draining public pools
rather than allowing Black and white children to swim together.\14\
---------------------------------------------------------------------------
\13\ Report: Segregation in America, EQUAL JUSTICE INITIATIVE
(2018), 20-39, https://segregationinamerica.eji.org/
report.pdf?action=purge.
\14\ HEATHER MCGHEE, THE SUM OF US: WHAT RACISM COSTS EVERYONE AND
HOW WE CAN PROSPER TOGETHER (2021).
---------------------------------------------------------------------------
Keeping with this insidious pattern, the progress of electing the
Nation's first Black president in 2008 was followed by a substantial
mobilization of white Americans through the Tea Party movement who
pushed back vehemently against policies that once received bipartisan
support (such as health insurance mandates) and questioned President
Barack Obama's birthplace and thus his legitimacy as President.\15\
More recently, robust public demonstrations of anguish and anger over
George Floyd's murder and countless other examples of police devaluing
Black lives with wanton violence generated an important National
conversation about structural racism. However, these multi-racial
efforts to confront police violence against communities of color have
been met with sharp backlash in the form of white-led State
legislatures and school boards passing so-called ``anti-critical race
theory'' measures that mandate that our public school systems teach
students an inaccurate, sanitized version of American history and ban
an increasing number of books about race, including some classic texts
that have long been part of the public school curricula.\16\
---------------------------------------------------------------------------
\15\ Robb Willer, Matthew Feinberg & Rachel Wetts, Threats to
Racial Status Promote Tea Party Support Among White Americans (May 4,
2016). Available at SSRN: https://ssrn.com/abstract=2770186 or http://
dx.doi.org/10.2139/ssrn.2770186.
\16\ In Defense of Truth, NAACP LDF (accessed Jan. 19, 2022),
https://www.naacpldf.org/truth/.
---------------------------------------------------------------------------
B. The Response to the 2020 Presidential Election Fits the Pattern of
Cyclical Backlash
The 2020 Presidential election and its aftermath fit the long-
standing cyclical pattern of progress and backlash that continually
thwarts efforts at cementing durable change to perfect our union. In
2020, communities of color drove robust voter turnout leading to
electoral results that challenged the political status quo. The
violence on January 6th and the attendant effort to override the valid
outcome of the 2020 Presidential election were one concrete form of
backlash, and the rash of anti-voter laws introduced and enacted in
States across the country, building on a wave of voter suppression
efforts that preceded the election,\17\ was another. Both responses
were fueled by a common false narrative rooted in racism and the
project of white supremacy. What will happen next remains an open
question. Whether we confront this backlash head-on and advance toward
further progress or backslide into what some have justly called Jim
Crow 2.0 depends in significant part upon Congress' response to the
current moment.
---------------------------------------------------------------------------
\17\ Will Wilder, Voter Suppression in 2020, Brennan Center for
Justice (Aug. 20, 2020), https://www.brennancenter.org/our-work/
research-reports/voter-suppression-2020.
---------------------------------------------------------------------------
iii. framing the 2020 backlash: false rhetoric of stolen elections
connects january 6th to on-going voter suppression
Coded racial appeals have served as an overarching frame for the
backlash against the 2020 election. Those seeking to stoke racial
resentment for their political and economic advantage began laying the
groundwork for this frame for many years prior to 2020. For decades,
those seeking to restrict the franchise have used false concerns about
voter fraud to justify barriers to the ballot.\18\ This framework began
to take center stage during the prior administration. When President
Trump won the 2016 election through the Electoral College but fell more
than 3 million total votes short of Hillary Clinton, he told his
supporters that there was only one reasonable explanation: Millions of
people had voted illegally for Clinton, masking his true victory among
legitimate voters.\19\ With no actual evidence of voter fraud to
support his claim, Trump set up the Presidential Commission on Election
Integrity allegedly to find it.\20\ The Commission produced no such
evidence and shut down amidst credible allegations of secrecy,
mismanagement, and discriminatory intent.\21\ Nonetheless, the mere
creation of this high-level government commission stoked doubt about
the sanctity of our elections and likely helped legitimize the false
claim of rampant voter fraud for some.
---------------------------------------------------------------------------
\18\ German Lopez, The case against voter ID laws, in one chart,
Vox.com (August 6, 2015), https://www.vox.com/2015/8/6/9107927/voter-
id-election-fraud; See also, Quinn Scanlan, `We've never found systemic
fraud, not enough to overturn the election: Georgia Secretary of State
Raffensperger says,' ABC News (Dec. 6, 2020), https://abcnews.go.com/
Politics/weve-found-systemic-fraud-overturnelection-georgia-secretary/
story?id=74560956; Debunking the Voter Fraud Myth, Brennan Center for
Justice (Jan. 31, 2017), https://www.brennancenter.org/sites/default/
files/analysis/Briefing_Memo_Debunking_Voter_Fraud_Myth.pdf.
\19\ Glenn Kessler, Donald Trump's bogus claim that millions of
people voted illegally for Hillary Clinton, Washington Post (Nov. 27,
2016), https://www.washingtonpost.com/news/fact-checker/wp/2016/11/27/
trumps-bogus-claim-that-millions-of-people-voted-illegally-for-hillary-
clinton/.
\20\ President Announces Formation of Bipartisan Presidential
Commission on Election Integrity, the White House (May 11, 2017),
https://trumpwhitehouse.archives.gov/briefings-statements/president-
announces-formation-bipartisan-presidential-commission-election-
integrity/.
\21\ Jessica Huseman, A Short History of the Brief and Bumpy Life
of the Voting Fraud Commission, ProPublica (Jan. 4, 2018), https://
www.propublica.org/article/a-short-history-of-the-brief-and-bumpy-life-
of-the-voting-fraud-commission.
---------------------------------------------------------------------------
Heading into the 2020 election, President Trump also told his
supporters repeatedly that he could only lose through massive
fraud;\22\ and he refused to say definitively whether he would accept
the election results if he lost.\23\ When Trump did in fact lose the
2020 Presidential election--both the popular vote and the Electoral
College--his supporters echoed his false Statements that rampant fraud
explained the outcome, and both the Trump campaign and legions of its
most loyal supporters used this frame as a central theme to guide their
activities in the aftermath. In response to false claims that the 2020
election was stolen through rampant fraud, extremist factions
orchestrated a campaign to disrupt the counting and certification of
the Presidential election and ultimately to overturn its results.\24\
---------------------------------------------------------------------------
\22\ Zachary Wolf, The 5 key elements of Trump's Big Lie and how it
came to be, CNN (May 19, 2021), https://www.cnn.com/2021/05/19/
politics/donald-trump-big-lie-explainer/index.html.
\23\ David Leonhardt, Trump's Refusal to Concede, New York Times
(Nov. 12, 2020), https://www.nytimes.com/2020/11/12/briefing/ron-klain-
jeffrey-toobin-tropical-storm-eta.html.
\24\ Simon Romero, Shaila Dewan & Giulia McDonnell Nieto del Rio,
In a Year of Protest Cries, Now It's `Count Every Vote!' and `Stop the
Steal!', THE N.Y. TIMES (Nov. 5, 2020), https://www.nytimes.com/2020/
11/05/us/electionprotests-vote-count.html; LDF Issues Statement
Condemning Breach of U.S. Capitol, Attempted Coup by Supporters of
President Trump, NAACP LDF (Jan. 6, 2020), https://www.naacpldf.org/
press-release/ldf-issues-Statement-condemning-breach-of-u-s-capitol-
attempted-coup-by-supporters-of-president-trump/.
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This false narrative of voter fraud is rooted in racism and
connects the violence of January 6th to the litany of voter suppression
laws taken up by nearly every State. First, the sharp racial divide
between those promoting and believing these false claims and those who
accept the results of the 2020 election is one indication of how the
phantom fraud frame is in fact steeped in racism.\25\ Second, views
about whether the 2020 election was stolen appear to be correlated with
views on race. Third, the connection between the embrace of the false
fraud narrative and regressive attitudes about race has manifest in
legislatures across the country. For example, State legislators who
were the authors or lead sponsors of some of the most aggressive 2021
voter suppression laws have also introduced legislation banning so-
called ``critical race theory'' from being taught in schools; barred
the removal of Confederate monuments; and responded to racial justice
protests about police brutality against Black people by increasing
criminal penalties for protest-related activities.\26\
---------------------------------------------------------------------------
\25\ Belief in the Big Lie narrative is sharply divided by
partisanship, which is highly correlated with race. See Joel Rose & Liz
Baker, 6 in 10 Americans say U.S. democracy is in crisis as `Big Lie'
takes route, NPR (Jan. 3, 2022), https://www.npr.org/2022/01/03/
1069764164/american-democracy-poll-jan-6. In addition, ``Republicans
most likely to believe that racism and discrimination are not a problem
are also the most devout believers in the Stop the Steal narrative.''
Lee Drutman, Theft Perception, VOTER STUDY GROUP (June 2021), https://
www.voterstudygroup.org/publication/theft-perception.
\26\ See AR H.B. 1218, 93d Gen. Assemb., Reg. Sess., (Ark. 2021)
(banning school curricula that ``promotes societal division'' on the
basis of race, among other factors), available at https://
www.arkleg.state.ar.us/Bills/
Detail?id=HB1218&ddBienniumSession=2021%2F2021R; AR H.B. 1231, 93d Gen.
Assemb., Reg. Sess., (Ark. 2021) (banning teaching the 1619 Project),
available at https://www.arkleg.state.ar.us/Bills/
Detail?id=HB1231&ddBienniumSession=2021%2F2021R; AR H.B. 1761, 93d Gen.
Assemb., Reg. Sess., (Ark. 2021) (banning educational materials that
portray any group of people as inherently racist, that argue that any
group of people should feel guilt or shame due to race, and that the
United States is systemically racist), available at https://
www.arkleg.state.ar.us/Bills/
Detail?id=HB1761&ddBienniumSession=2021%2F2021R; AR S.B. 12, 93d Gen.
Assemb., Reg. Sess., (Ark. 2021) (adding schools to list of
institutions that are not allowed to promote ``divisive concepts''
including that any group of people is inherently racist), available at
https://www.arkleg.state.ar.us/Bills/
Detail?id=SB12&ddBienniumSession=2021%2F2021S2; and TX S.B. 3, 82d
Leg., 2d Sess., (Tex. 2021) (banning curricula that promote the idea
that anyone is inherently racist by virtue of their race, whether
consciously or unconsciously, an individual bears responsibility for
actions undertaken in the past by members of the same race, or the
advent of slavery in the now-United States constituted the true
founding of the United States, among other ideas), available at https:/
/capitol.texas.gov/BillLookup/History.aspx?LegSess=872&Bill=SB3. See
also TX S.B. 1663, 86th Leg., Reg. Sess., (Tex. 2019) (banning the
removal monuments that have existed for at least 40 years, among other
restrictions), available at https://capitol.texas.gov/BillLookup/-
History.aspx?LegSess=86R&Bill=SB1663; AR S.B. 553, 93d Gen. Assemb.,
Reg. Sess., (Ark. 2021) (banning the removal of monuments that pertain
to any war, including the Civil War), available at https://
www.arkleg.state.ar.us/Bills/
Detail?id=SB553&ddBienniumSession=2021%2F2021R; and FL S.B. 288, 2019
Sen., (Fla. 2019) (banning removal, alteration, concealment, etc. of
statutes or memorials commemorating veterans or military organizations,
including during the Civil War), available at https://www.flsenate.gov/
Session/Bill/2019/288/?Tab=BillText. See also GA S.B. 403, 2021-2022
Gen. Assemb., Reg. Sess., (Ga. 2022) (providing immunity for law
enforcement transporting individuals to mental health facilities),
available at https://www.legis.ga.gov/legislation/61506; AL H.B. 284,
2021 Leg., Reg. Sess., (Ala. 2021) (providing liability protection for
law enforcement officials taking individuals with mental illness to a
mental health facility and removing requirement that such officials go
through the involuntary commitment process before doing so), available
at https://legiscan.com/AL/text/HB284/id/2271288; TX H.B. 1788, 87th
Leg., Reg. Sess., (Tex. 2021) (creating immunity for schools, school
districts, and security personnel for ``reasonable actions'' taken by
school security personnel to preserve safety), available at https://
capitol.texas.gov/BillLookup/- Text.aspx?LegSess=87R&Bill=HB1788; and
FL S.B. 826, 2021 Sen., (Fla. 2021) (extending sovereign immunity to
members of Child Protection Teams), available at https://
www.flsenate.gov/Session/Bill/2021/826/?Tab=BillText. See also AR S.B.
300, 93d Gen. Assemb., Reg. Sess., (Ark. 2021) (prohibiting parole for
certain firearm possession cases), available at https://
www.arkleg.state.ar.us/Bills/
Detail?id=SB300&ddBienniumSession=2021%2F2021R, AR H.B. 1866, 92d Gen.
Assemb., Reg. Sess., (Ark. 2019) (imposing time limits on when someone
can apply for a pardon), available at https://www.arkleg.state.ar.us/
Bills/Detail?id=HB1866&ddBienniumSession=2019%2F2019R; AR H.B. 1064,
93d Gen. Assemb., Reg. Sess., (Ark. 2021) (increasing the loopback
period for certain DWI offenses for the purpose of sentence
enhancements), available at https://www.arkleg.state.ar.us/Bills/
Detail?id=HB1062&ddBienniumSession=2021%2F2021R; KY H.B. 215, 2022 Gen.
Assemb., Reg. Sess., (Ky. 2022) (removing pretrial diversion and
increasing minimum penalties for certain drug trafficking offenses),
available at https://apps.legislature.ky.gov/record/22rs/hb215.html; GA
S.B. 479, 2021-2022 Gen. Assemb., Reg. Sess., (Ga. 2022) (for firearm
possession cases, charges a separate offense for each firearm
possessed), available at https://www.legis.ga.gov/legislation/61936,
and GA S.B. 359, 2021-2022 Gen. Assemb., Reg. Sess., (Ga. 2022)
(providing minimum criminal penalties for a series of crimes, including
some firearm felonies, and requiring the maximum sentence for certain
repeat offender elder or child abuse crimes), available at https://
www.legis.ga.gov/legislation/61213.
---------------------------------------------------------------------------
Perhaps the clearest sign that the January 6th insurrection and the
recent rash of anti-voter laws are not separate phenomena, but rather
are two expressions of white racial anxiety about shifting power
dynamics in the United States, is that both have strongholds in places
where the white population is declining, either absolutely or in
relation to people of color.
The Chicago Project on Security & Threats analyzed various
characteristics of 716 people who have been charged with crimes related
to January 6th.\27\ After examining several factors, the Project
determined that (other than county size) the strongest predictor of
insurrection participation was residing in a county with a substantial
decline in white population since 2015.\28\ The authors conclude that
their ``analysis suggests that local decline of the non-Hispanic white
population has a galvanizing effect, and counties that have had higher
rates of non-Hispanic white population decline in the last half-decade
are likely to produce insurrectionists at a higher rate.''\29\ They
note further that, ``[g]iven the overwhelming whiteness of the
population of insurrectionists, the finding that counties with higher
rates of demographic change are also counties that sent more
insurrectionists even when controlling for a host of competing factors
is consistent with a political movement that is partially driven by
racial cleavages and white discontent with diversifying
communities.''\30\
---------------------------------------------------------------------------
\27\ Robert Pape et al., American Face of Insurrection: Analysis of
Individuals Charged for Storming the US Capitol on January 6, 2021,
Chicago Project on Security and Threats (Jan. 5, 2022), https://
d3qi0qp55mx5f5.cloudfront.net/cpost/i/docs/
Pape_American_Face_of_Insurrection_(2022-01-05)_1.pdf?mtime=1641481428.
\28\ Id. at 21.
\29\ Id. at 18.
\30\ Id. at 21-22.
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In sum, the false narrative around stolen elections is not just
about a single politician or a single election but rather it
effectively foments and channels a broader wave of status insecurity
and racial resentment. It is a common progenitor of both the violence
and attempt to erase the results of the 2020 election that occurred on
January 6th and the wide-spread effort to restrict access to the
ballot.
iv. voters of color overcame barriers to assert consequential political
power in 2020
The 2020 election was not beset with large-scale fraud, as those
promoting the January 6th insurrection have claimed.\31\ It also did
not, as numerous news reports suggested, ``go smoothly.''\32\ Accounts
from LDF's Voting Rights Defender and Prepared to Vote teams, detailed
in the LDF Thurgood Marshall Institute's latest Democracy Defended
report,\33\ reveal the depth and breadth of the issues voters faced,
especially voters of color. From onerous vote-by-mail restrictions
during a pandemic to voter intimidation, poll closures and unreasonably
long lines, Black voters in particular faced a litany of barriers to
the ballot.
---------------------------------------------------------------------------
\31\ Melissa Block, The clear and present danger of Trump's
enduring `Big Lie', National Public Radio (December 23, 2021), https://
www.npr.org/2021/12/23/1065277246/trump-big-lie-jan-6-election.
\32\ Sherrilyn Ifill, No, This Election Did Not Go `Smoothly,'
SLATE (Nov. 9, 2020), https://slate.com/news-andpolitics/2020/11/2020-
election-voting-did-not-go-smoothly.html.
\33\ Thurgood Marshall Institute, Democracy Defended, NAACP LDF
(Sept. 2, 2021), https://www.naacpldf.org/wp-content/uploads/
LDF_2020_DemocracyDefended-1-3.pdf.
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Yet, participating in the 2020 Presidential election was historic.
Voters overcame a host of obstacles with determination and resilience.
Two-thirds of eligible voters casted ballots in the 2020 Presidential
election.\34\ This is the highest turnout rate recorded since 1900; but
it actually represents the highest turnout ever given the significant
expansion of both the general population and the population of eligible
voters since the turn of the twentieth century.\35\ Black voter turnout
was greater than 65% and nearly matched records set when President
Obama was on the ballot.\36\
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\34\ Michael P. McDonald, National General Election VEP Turnout
Rates, 1789-Present, UNITED STATES ELECTIONS PROJECT, Jan. 14, 2022,
http://www.electproject.org/national-1789-present.
\35\ Id.
\36\ Michael P. McDonald, Voter Turnout Demographics, UNITED STATES
ELECTIONS PROJECT (accessed Jan. 14, 2022), http://
www.electproject.org/home/voter-turnout/demographics.
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The historic turnout continued on January 5, 2021 with Georgia's
runoff election. Turnout in runoff elections, which occur after
Election Day, is typically modest, and at times anemic. But, with
control of the U.S. Senate at stake, and the opportunity to elect
candidates who reflected the growing diversity of the State, a record
60% of Georgians turned out in the January runoff.\37\ The 4.4 million
Georgians who cast ballots on January 5 was more than double the number
who voted in the previous record turnout runoff election in 2008.\38\
Black voters drove this historic participation, with Black turnout
dropping just 8% from the general election compared with an 11% decline
among white voters.\39\ The result was the election of the first Black
and Jewish senators in Georgia's history.\40\
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\37\ Nathaniel Rakich et al., How Democrats Won the Georgia
Runoffs, FIVETHIRTYEIGHT (Jan. 7, 2021, 2:47 PM), https://
fivethirtyeight.com/features/how-democrats-won-the-georgia-runoffs/.
\38\ Id.
\39\ Mark Niesse & Jennifer Peebles, Turnout dip among Georgia
Republicans flipped U.S. Senate, THE ATLANTA J.-CONST. (Feb. 2, 2021),
https://www.ajc.com/politics/turnout-dip-among-georgia-republicans-
flipped-us-senate/IKWGEGFEEVEZ5DXTP7ZXXOROIA/.
\40\ Steve Peoples, Bill Barrow, and Russ Bynum, Warnock, Ossoff
win in Georgia, handing Dems control of Senate, ASSOCIATED PRESS (Jan.
6, 2021), https://apnews.com/article/Georgia-election-results-
4b82ba7ee3cc74d33e68daadaee2cbf3.
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This historic turnout was no accident and was not driven by the
stakes alone. National civil rights and civil liberties groups and
Black-led grassroots organizations in Georgia had spent years
challenging attempts to restrict access to the ballot and building
substantial voter outreach campaigns to educate voters regarding the
stakes of Federal, State, and local elections and assist communities as
they navigate the voting process.\41\ The Herculean effort it took to
help Black and Brown voters overcome barriers to the ballot in the 2020
election is not sustainable, however, nor should it be required given
the protections guaranteed by the U.S. Constitution. The backlash to
the results of this historic turnout and its consequences was
immediate.
---------------------------------------------------------------------------
\41\ Anna North, 6 Black women organizers on what happened in
Georgia--and what comes next, Vox (November 11, 2020), https://
www.vox.com/21556742/georgia-votes-election-organizers-stacey-abrams.
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v. the post-2020 backlash in action
A new chapter of an old story, the backlash to historic 2020 voter
turnout among people of color has been swift and severe. As with past
reactions to racial progress the post-2020 backlash has featured both
violence and legal regression--in this case in the form of efforts to
restrict the franchise. Based on the false narrative of voter fraud,
this violence and votes backlash began with campaign operatives
questioning vote totals in Black and Brown communities. It continued
through a violent insurrection at the U.S. Capitol focused on
invalidating the election results and thus the political power
exercised by the Black and Brown communities and accelerated through
both successful efforts to erect barriers to the ballot and a
regressive redistricting cycle that severely constricts the ability of
voters of color to assert their full strength at the polls. It
continues to this day with active plans to subvert future elections.
A. Questioning Vote Totals in Black and Brown Communities
The spark to this particular backlash was the turnout among voters
of color, especially Black voters, that led to President Biden's
victory in the 2020 election. President Trump and his allies reacted
immediately by asserting claims of massive fraud and questioning vote
totals, specifically targeting Black elections officials and voters in
Black population centers such as Detroit (where election officials
counting votes were mobbed and harassed),\42\ Philadelphia (where the
FBI helped local police arrest two men with weapons suspected of a plot
to interfere with ballot counting),\43\ and the Atlanta metro region
(where Trump alleged that hundreds of thousands of ballots mysteriously
appeared).\44\ Similarly, President Trump and his allies alleged fraud
in places like Arizona where robust turnout among the Latino population
was decisive. Again, we saw coordinated attempts to infiltrate ballot
counting headquarters and tamper with vote counting.\45\
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\42\ Bostock, supra note 41.
\43\ Ewing et al., supra n. 41.
\44\ Jeff Amy, Darlene Superville, & Jonathan Lemire, GA election
officials reject Trump call to `find' more votes, ASSOCIATED PRESS
(Jan. 4, 2021), https://apnews.com/article/trump-raffensperger-phone-
call-georgia-d503c8b4e58f7cd648fbf9a746131ec9.
\45\ Lahut, supra n. 41.
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Wayne County, Michigan emerged as a central focus of attempts to
translate the false narrative regarding voter fraud into actual
subversion of a free and fair election. On November 20, 2020, LDF filed
a lawsuit on behalf of the Michigan Welfare Rights Organization and
three individuals alleging that President Trump's attempt to prevent
Wayne County, Michigan from certifying its election results was a clear
example of intimidating those charged with ``aiding a[] person to vote
or attempt to vote'' in violation of the Voting Rights Act, and that
this intimidation was aimed at disenfranchising Black voters.\46\
---------------------------------------------------------------------------
\46\ Complaint, Mich. Welfare Rights Org. v. Trump, Civ. Action 20-
3388 (EGS) (D.D.C. Apr. 1, 2022). Available at https://
www.naacpldf.org/wp-content/uploads/Trump-Campaign-Complaint.pdf.
---------------------------------------------------------------------------
The Complaint explained how race was a driving factor in the
Michigan certification debate: ``During [a meeting of the Wayne County
canvassing board], one of the Republican Canvassers said she would be
open to certifying the rest of Wayne County (which is predominately
white) but not Detroit (which is predominately Black), even though
those other areas of Wayne County had similar discrepancies [between
ballot numbers and poll book records] and in at least one predominantly
white city, Livonia, the discrepancies were more significant than those
in Detroit.''\47\
---------------------------------------------------------------------------
\47\ Complaint at \27 at 7. Mich. Welfare Rights Org. v. Trump.
---------------------------------------------------------------------------
Subsequently, on December 21, 2020, LDF amended its Complaint,
adding the NAACP as a Plaintiff, and alleging that President Trump and
his supporters made similar efforts to disenfranchise voters--and
especially Black voters--in other States, including Georgia,
Pennsylvania, Wisconsin, and Arizona.
The Amended Complaint summarizes the racial discrimination central
to the post-election strategy to invalidate the political voice of
Black and Brown communities:
Under the specter of preventing ``fraud,'' Defendants engaged in a
conspiracy, executed through a coordinated effort, to disenfranchise
voters by disrupting vote counting efforts, lodging groundless
challenges during recounts, and attempting to block certification of
election results through intimidation and coercion of election
officials and volunteers. These systematic efforts--violations of the
VRA and the Ku Klux Klan Act--have largely been directed at major
metropolitan areas with large Black voter populations. These include
Detroit, Milwaukee, Atlanta, Philadelphia, and others. Because
President Trump lost the popular vote in Michigan and other States that
were necessary for a majority of the electoral college, Defendants
worked to block certification of the results, on the (legally
incorrect) theory that blocking certification would allow State
legislatures to override the will of the voters and choose the Trump
Campaign's slate of electors . . . On November 19, 2020, President
Trump's personal lawyer Rudy Giuliani, and others, held a press
conference at the RNC headquarters in Washington, DC, where they
repeated false allegations of fraud and openly discussed their strategy
of disenfranchising voters in Detroit and Wayne County. At that press
conference, Mr. Giuliani asserted without evidence that the Trump
campaign had identified 300,000 ``illegitimate ballots,'' and stated:
``These ballots were all cast basically in Detroit that Biden won 80-
20,'' and ``it changes the result of the election in Michigan, if you
take out Wayne County.''\48\
---------------------------------------------------------------------------
\48\ Complaint at 18-21 Mich. Welfare Rights Org. v. Trump.
---------------------------------------------------------------------------
In sum, the strategy to block election certifications by alleging
fraud and questioning vote totals was not only a political ploy to
rescue a failed candidacy. But by focusing the efforts on cities and
counties with large populations of voters of color, the strategy was
also to advance a narrative that people of color are not legitimate
actors in our democracy (as voters or election officials).
B. The January 6th Insurrection
After challenging election results in communities of color, the
next step in the violence and votes backlash was the January 6th
Insurrection--just 1 day after Black voters asserted their power in
Georgia. The violent attack on the Capitol on January 6th was a brazen,
virulent, and deadly manifestation of the concerted effort to undermine
our democracy, to overthrow the government, and to negate the votes
cast by our communities. The information unveiled through the on-going
investigations of this committee and the Department of Justice confirms
that the violence was foreseeable and part of a larger planned coup
attempt abetted by encouragement or deliberate inaction at the highest
levels.\49\ The founder of the Oath Keepers and ten others have been
charged with ``seditious conspiracy''\50\ and according to an early
assessment, 13% of those arrested have had associations with militias
or right-wing extremist groups.\51\ Perhaps most concerning, January
6th marked an embrace of political violence and previously fringe
ideologies by mainstream conservatives,\52\ a threat that has been
growing for some time,\53\ has only worsened since the Insurrection and
remains of serious concern.\54\
---------------------------------------------------------------------------
\49\ Paul LeBlanc, The January 6 committee formed 6 months ago.
Here's what it's uncovered, CNN (January 4, 2022), https://www.cnn.com/
2021/12/29/politics/january-6-committee-investigation-trump-what-
matters/index.html; Department of Justice, One Year Since the Jan. 6
Attack on the Capitol, (Updated Dec. 30, 2021), https://
www.justice.gov/usao-dc/one-year-jan-6-attack-capitol.
\50\ Department of Justice, Leader of Oath Keepers and 10 Other
Individuals Indicted in Federal Court for Seditious Conspiracy and
Other Offenses Related to U.S. Capitol Breach: Eight Others Facing
Charges in Two Related Cases, Department of Justice Office of Public
Affairs (Jan. 13, 2022), https://www.justice.gov/opa/pr/leader-oath-
keepers-and-10-other-individuals-indicted-Federal-court-seditious-
conspiracy-and.
\51\ Ayman Ismail, We Know Exactly Who the Capitol Rioters Were,
Slate (Jan. 4, 2022), https://slate.com/news-and-politics/2022/01/
january-6-capitol-riot-arrests-research-profile.html.
\52\ (``The normalization of the conspiracies that animate their
beliefs is great news for extremists, who don't have to work nearly as
hard to have their views accepted in the mainstream.'') Digital
Forensic Research Lab, Experts react to the year since January 6,
Atlantic Council (Jan. 4, 2022), https://www.atlanticcouncil.org/in-
depth-research-reports/experts-react-to-the-year-since-january-6/
#perilous; (``The Jan. 6 insurrectionists really are best understood as
a product of the mainstream.'') Ayman Ismail supra note 60.
\53\ Seth Jones, The Rise of Far-Right Extremism in the United
States, Center for Strategic and International Studies (Nov. 7, 2018),
https://www.csis.org/analysis/rise-far-right-extremism-united-states.
\54\ (In a poll, 25% of Republicans believe the Qanon conspiracy
and 15% of Americans believed that ``American patriots may have to
resort to violence'') Giovanni Russonello, QAnon Now as Popular in U.S.
as Some Major Religions, Poll Suggests, New York Times (updated Aug.
12, 2021), https://www.nytimes.com/2021/05/27/us/politics/qanon-
republicans-trump.html; (``Extremist movements are stronger, conspiracy
networks larger, and elements of the GOP more radical, with some
elected officials spreading extremist views. The prosecution of
insurrectionists has not shut down groups like the racist Proud Boys
and anti-government Oath Keepers, or like-minded allies who thrive on-
line and on the streets.'') Digital Forensics Lab supra note 61.
---------------------------------------------------------------------------
This attempt to thwart the peaceful transfer of power--the very
hallmark of a functioning democracy--was the natural conclusion of
years of rhetoric inciting and condoning racism and white
supremacy,\55\ expanding the proliferation of conspiracy theories,\56\
and flouting the rule of law. More specifically, it was the direct
result of false rhetoric regarding stolen elections that tapped into
existing racial anxiety. As the political scientist Hakeem Jefferson
and the sociologist Victor Ray have written, ``Jan. 6 was a racial
reckoning. It was a reckoning against the promise of a multiracial
democracy and the perceived influence of the Black vote.''\57\ We know
this in part because ``those who participated in the insurrection were
more likely to come from areas that experienced more significant
declines in the non-Hispanic white population--further evidence that
the storming of the Capitol was, in part, a backlash to a perceived
loss of status, what social scientists call `perceived status threat.'
''\58\
---------------------------------------------------------------------------
\55\ James Rainey & Melissa Gomez, Asked to condemn white
supremacists, Trump tells Proud Boys hate group to `stand by', THE LA
TIMES (Sept. 29, 2020), https://www.latimes.com/world-nation/story/
2020-09-29/asked-to-condemn-white-supremacists-trump-tells-proud-boys-
hate-group-to-stand-by.
\56\ Shirin Ghaffary, The long-term consequences of Trump's
conspiracy theory campaign, Vox (Nov. 20, 2020), https://www.vox.com/
recode/21546119/trump-conspiracy-theories-election-2020-coronavirus-
voting-vote-by-mail.
\57\ Hakeem Jefferson & Victor Ray, White Backlash is a Type of
Racial Reckoning, Too, FIVETHIRTYEIGHT (Jan. 6, 2022), https://
fivethirtyeight.com/features/white-backlash-is-a-type-of-racial-
reckoning-too/.
\58\ Id.
---------------------------------------------------------------------------
Some of the most enduring imagery from the attack on the U.S.
Capitol points to race as a central, underlying factor. Many
photographs from the January 6th insurrection were disturbing, but one
in particular encapsulated the historical significance and the stakes
for our Republic: the image of an insurgent inside the U.S. Capitol
brandishing a Confederate flag.\59\
---------------------------------------------------------------------------
\59\ Indeed, many insurrectionist donned Confederate paraphernalia.
Javonte Anderson, Capitol riot images showing Confederate flag a
reminder of country's darkest past, USA TODAY (Jan. 13, 2021), https://
www.usatoday.com/story/news/2021/01/07/capitol-riot-images-confederate-
flag-terror/6588104002/ . . .
---------------------------------------------------------------------------
C. The Backlash Accelerates: States Pass Anti-Voter Laws and Use
Centennial Redistricting to Weaken the Voices of Voters of
Color
The next stage of the backlash played out in State legislatures
across the country through bills and laws intended to block Black and
Brown Americans' access to the ballot. In 2021 we saw a repeat of
history--a steady drip of old poison in new bottles.\60\ Whereas in a
bygone era discriminatory intent in voting restrictions was dressed up
in the alleged espousal of ideals such as securing a more informed and
invested electorate, the new professed justification is fighting voter
fraud, an imaginary phantom that serves as a basis to attack the right
to vote. State lawmakers introduced and advanced new voting laws
targeted to ensure that the robust turnout among voters of color in the
2020 Presidential election could not be repeated. Legislators
introduced more than 400 bills in nearly every State aiming to restrict
the franchise.\61\ Nineteen States enacted a total of 34 laws that roll
back voting rights and erect new barriers to the ballot.\62\
---------------------------------------------------------------------------
\60\ Deuel Ross, Pouring Old Poison into New Bottles: How
Discretion and the Discriminatory Administration of Voter ID Laws
Recreate Literacy Tests1 45 COLUM. HUM. Rts. L. REV. 362 (2014).
\61\ Resource: Voting Laws Roundup: December 2021, BRENNAN CENTER
FOR JUSTICE (Jan. 12, 2022) https://www.brennancenter.org/our-work/
research-reports/voting-laws-roundup-december-2021.
\62\ Id.
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Critically, many of these laws are directly targeted at blocking
pathways to the ballot box that Black and Brown voters used
successfully in 2020. For example, after Black voters increased their
usage of absentee ballots as a result of the pandemic, S.B. 90 in
Florida severely curtailed the use of unstaffed ballot return drop
boxes and effectively eliminated community ballot collection.\63\ And
in Georgia and Texas, after strong early in-person turnout among Black
voters, lawmakers initially moved to outlaw or limit Sunday voting in a
direct attack on the ``souls to the polls'' turnout efforts undertaken
by many Black churches to mobilize voters to engage in collective civic
participation.\64\ Another law in Georgia hampers vote-by-mail, cuts
back on early voting, and more.\65\ The 2021 omnibus voting law in
Texas eliminates a number of accessible, common-sense voting methods,
including ``drive-thru'' voting and 24-hour early voting--both methods
that proved invaluable for Black and Brown voters in Texas's largest
cities in 2020.\66\ In all, these laws severely restrict the ability of
voters of color to cast a ballot and specifically target the ways in
which these voters participated successfully in the 2020 Presidential
election.
---------------------------------------------------------------------------
\63\ See generally Compl. for Decl. and Inj. Relief, Fla. State
Conferences of Branches v. Lee, No. 4:21-cv-00187-WS-MAF (N.D. Fla. May
6, 2021), ECF No. 1.
\64\ Letter from Sam Spital et al., NAACP LDF to Texas Senate (May
29, 2021), https://www.naacpldf.org/wp-content/uploads/LDF-Conference-
Committee-Report-Opposition-Senate-20210529-1.pdf; Letter from John
Cusick et al., NAACP LDF et al., to Georgia House of Representatives,
Special Committee on Election Integrity (Mar. 14, 2021), https://
www.naacpldf.org/wp-content/uploads/LDF-SPLC-Written-Testimony-on-
SB202-3.18.21.pdf. In both States, after advocacy from LDF and others,
lawmakers eventually removed these blatantly discriminatory provisions
from the omnibus voting bills under consideration--although in both
States, the final forms of the enacted bills remained extremely harmful
to voters of color. See LDF Files Lawsuit Against the State of Florida
Over Suppressive Voting Law, NAACP LDF (May 6, 2021), https://
www.naacpldf.org/press-release/ldf-files-lawsuit-against-the-state-of-
florida-over-suppressive-voting-law/; Civil Rights Groups Sue Georgia
Over New Sweeping Voter Suppression Law, NAACP LDF (March 30, 2021),
https://www.naacpldf.org/press-release/civil-rights-groups-sue-georgia-
over-new-sweeping-voter-suppression-law/.
\65\ See S.B. 202, https://www.legis.ga.gov/api/legislation/
document/20212022/201498.
\66\ Compl. for Decl. and Injunctive Relief, Houston Justice v.
Abbott, No. 5:21-cv-00848 (W.D. Tex. Sept. 7, 2021), ECF No. 1,
available at https://www.naacpldf.org/wp-content/uploads/Houston-
Justice-et-al.-v.-Abbott-et-al.-Complaint.pdf; see also Press Release:
Lawsuit Filed Challenging New Texas Law Targeting Voting Rights, NAACP
LDF (Sept. 7, 2021), https://www.naacpldf.org/press-release/lawsuit-
filed-challenging-new-texas-law-targeting-voting-rights/.
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The people targeted by these laws are well aware of what is
happening and are actively fighting back. Jeffrey Clemmons, a Black
resident of Harris County Texas in his early twenties who was a leader
in his college NAACP chapter and served as an election judge in 2020,
is suing to push back on the Texas 2021 voter suppression law,
represented by LDF.\67\ Mr. Clemmons says:
---------------------------------------------------------------------------
\67\ Compl. for Decl. and Injunctive Relief, Houston Justice v.
Abbott, No. 5:21-cv-00848 (W.D. Tex. Sept. 7, 2021), ECF No. 1.
``I absolutely think that the over 400 laws that were pushed through
legislatures from Texas to Georgia to curtail our rights to vote were
indeed because of the incredible turnout of people of color and young
people again who had never turned up to the ballot box before. We felt
so motivated and so strongly about this election because we knew [what]
was on the line if we didn't vote in so many instances and because we
are tired of not being represented properly . . . And so these election
laws are an attempt to turn back the clock on our voting rights and
make sure that [] never happens again to create, you know, this
environment of fear that if you vote, you're going to be punished for
it.''\68\
---------------------------------------------------------------------------
\68\ Interview by Adam Lioz, Senior Policy Counsel for LDF, with
Jeffrey Clemmons (Jan. 10, 2022) (on file with author).
Of the more than 400 bills introduced last year, at least 152 in 18
States have carried over into current legislative sessions, and more
than a dozen additional bills were pre-filed by December in
anticipation of the 2022 session.\69\ As of January 2022, legislatures
in more than half of U.S. States had introduced, pre-filed, or carried
over more than 250 anti-voter bills.\70\ Like in 2021, many of these
bills target the specific ways that Black and Brown voters have made
their voices heard in recent elections.\71\
---------------------------------------------------------------------------
\69\ Resource: Voting Laws Roundup: December 2021, supra n. 70.
\70\ Voting Laws Roundup: February 2022, Brennan Center for Justice
(Feb. 9, 2022), https://www.brennancenter.org/our-work/research-
reports/voting-laws-roundup-february-
2022?_ga=2.231456991.1301012527.1649763533-1535293244.1632777334.
\71\ Id.
---------------------------------------------------------------------------
In addition to enacting laws that restrict access to the ballot,
several States have used the first centennial redistricting process in
six decades without the full protection of the Voting Rights Act, to
weaken the voices of voters of color. From 1970--just after the
``reapportionment revolution'' forced line-drawers to adhere to the
one-person, one-vote principal \72\--through the 2010 redistricting
cycle, the preclearance protection of Section 5 of the Voting Rights
Act was the most powerful tool to protect Black and Brown voters
through the districting process. Section 5 certainly did not ensure
that Black voters enjoyed fully equal representation throughout the
country, but its anti-retrogression principle did mean that at least
hostile State legislatures could not set Black voters further back
after each Census.\73\ Section 2 of the Voting Rights Act has been a
complementary tool, allowing Black and Brown voters and community
organizations to bring lawsuits when district maps disempowered them
compared with neighboring white communities.
---------------------------------------------------------------------------
\72\ See e.g., Baker v. Carr, 369 U.S. 186 (1962); Reynolds v.
Sims, 377 U.S. 533 (1964).
\73\ See 52 U.S.C. 10304(b); Beer v. United States, 425 U.S. 130
(1976); Florida v. United States, 885 F..Supp. 2d 299 (D.D.C. 2012);
Texas v. United States, 887 F. Supp.2d 133 (D. D.C. 2012).
---------------------------------------------------------------------------
The Supreme Court, however, substantially weakened these
protections in the 2013 Shelby case when it undercut the preclearance
protections of Section 5 and in 2021 when the Court made Section 2
claims more challenging in Brnovich v. DNC.\74\ The result is that
Black communities entered the current redistricting cycle with a
shredded shield, more exposed to the manipulations of white-dominated
State legislatures than at any time since Jim Crow.
---------------------------------------------------------------------------
\74\ 594 U.S. (2021).
---------------------------------------------------------------------------
Prior to the current round of redistricting, political
representation in the United States was already sharply skewed. In
2019, people of color made up 39% of the U.S. population but only 12%
of elected officials across the country, according to an analysis of
nearly 46,000 Federal, State, and local office holders.\75\ Put another
way, white Americans occupied nearly 90% of elected offices in the U.S.
despite forming just over 60% of the population.
---------------------------------------------------------------------------
\75\ Datasets, The Electability Myth: The Shifting Demographics of
Political Power in America, REFLECTIVE DEMOCRACY CAMPAIGN, https://
wholeads.us/datasets/.
---------------------------------------------------------------------------
The current districting process threatens to worsen this already
skewed representation. The Nation has grown substantially more diverse
since 2010,\76\ but political representation is not on track to reflect
this growing diversity--and Black and Brown Americans are likely to see
their representation remain static or even lose ground in many places
rather than see their power increase with their numbers.
---------------------------------------------------------------------------
\76\ U.S. Census Bureau's Diversity Index has gone up from 54.9% to
61.1% since 2010. Eric Jensen et al., The Chance That Two People Chosen
at Random Are of Different Race or Ethnicity Groups Has Increased Since
2010, U.S. CENSUS BUREAU (Aug. 12, 2021), https://www.census.gov/
library/stories/2021/08/2020-united-states-population-more-racially
ethnically diverse-than-2010.html.
---------------------------------------------------------------------------
According to the U.S. Census Bureau, more than 42% of Americans are
now people of color.\77\ Since the 2010 Census, the Latino population
grew by 23%, compared to just 4.3% non-Latino population growth.\78\
The Black population grew by nearly 6%.\79\ This growth was even
starker among voters of color. One 2021 report projected that nearly
80% of the growth in voting eligible population would be through people
of color, including 17% from Black voters.\80\ These shifts, and the
accompanying anxiety around power and social status, have made certain
Americans vulnerable to the false fraud frame, especially in States
with the most profound changes. A key backlash strategy has been to use
the districting process to ensure that the power of voters of color
does not grow with their numbers.
---------------------------------------------------------------------------
\77\ Id.
\78\ Press Release, 2020 Census Statistics Highlight Local
Population Changes and Nation's Racial and Ethnic Diversity, U.S.
CENSUS BUREAU (Aug. 12, 2021), https://www.census.gov/newsroom/press-
releases/2021/population-changes-nations-diversity.html.
\79\ U.S. Census Bureau, 2010 Census Redistricting Data (Public Law
94-171) Summary File, U.S. CENSUS BUREAU (accessed Jan. 18, 2022); U.S.
Census Bureau, 2020 Census Redistricting Data (Public Law 94-171)
Summary File, U.S. CENSUS BUREAU (accessed Jan. 18, 2022). See also
U.S. Census Bureau, Race and Ethnicity in the United States: 2010
Census and 2020 Census (Aug. 12, 2021), https://www.census.gov/library/
visualizations/interactive/race-and-ethnicity-in-the-united-state-2010-
and-2020-census.html.
\80\ Michael C. Li, The Redistricting Landscape, 2021-2022, BRENNAN
CENTER FOR JUSTICE (Feb. 11, 2021), at 15, fig. 7, https://
www.brennancenter.org/our-work/research-reports/redistricting-
landscape-2021-22.
---------------------------------------------------------------------------
In the leadup to the current districting cycle, Brennan Center
districting expert Michael Li issued a report citing the loss of
Section 5 and narrowing of Section 2 of the Voting Rights Act to warn
that in substantial parts of the country ``there may be even greater
room for unfair processes and results than in 2011, when the Nation saw
some of the most gerrymandered and racially discriminatory maps in its
history.''\81\ So far, unfortunately, his predictions have largely
borne out. In late November, Li noted that ``[c]ommunities of color are
bearing the brunt of aggressive map drawing,'' citing Illinois, North
Carolina, and Texas as examples.\82\ In Texas, ``communities of color
accounted for 95% of the State's population growth last decade. Yet,
not only did Texas Republicans create no new electoral opportunities
for minority community communities, but their maps also often went
backwards.''\83\ The pattern has continued--so much so that Li noted in
mid-January that ``[p]people of color are getting shellacked in
redistricting'' this cycle.\84\
---------------------------------------------------------------------------
\81\ Id. at 3.
\82\ Michael C. Li, Early Lessons from the Current Redistricting
Round, BRENNAN CENTER FOR JUSTICE (Nov. 30, 2021), https://
www.brennancenter.org/our-work/analysis-opinion/early-lessons-current-
redistricting-round.
\83\ Id.
\84\ Michael Li (@mcpli), Twitter (Jan. 13, 2022, 2:33 PM), https:/
/twitter.com/mcpli/status/1481711130020130816.
---------------------------------------------------------------------------
A December 2021 New York Times article detailed how white lawmakers
are systematically driving Black elected officials from positions of
power by carving up their districts and at times forcing them to run
against other incumbents.\85\ The article cites at least two dozen
examples, including former Congressional Black Caucus chair G.K.
Butterfield of North Carolina, who is retiring as a result and called
the situation a ``five-alarm fire.''\86\ \87\
---------------------------------------------------------------------------
\85\ Nick Corasaniti & Reid J. Epstein, Map by Map, G.O.P. Chips
Away at Black Democrats' Power, THE N.Y. TIMES (Dec. 18, 2021), https:/
/www.nytimes.com/2021/12/18/us/politics/gop-gerrymandering-black-
democrats.html.
\86\ Id.
\87\ Id.
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LDF has brought lawsuits challenging the anti-voter laws and the
unfair redistricting maps in several States; and our allies are suing
in many others. For example, 6 of the 9 States formerly covered by
Section 5 have completed at least some of their post-Census districting
maps, and in 5 of these 6 States at least one map (and often more than
one) is being challenged in lawsuits alleging racial
discrimination.\88\ Had the Supreme Court not gutted the heart of the
Voting Rights Act in 2013 by rendering inoperable the requirement that
jurisdictions with histories of voting discrimination ``preclear''
voting changes before they take hold, many of the restrictive voting
laws passed in 2021 would not have gone into effect. Five of the 19
States that passed restrictive laws were fully covered by the VRA's
preclearance provisions.\89\ Now affected voters are forced to push
back piecemeal, using the Constitution's protections against
intentional vote discrimination and the Voting Rights Act's remaining
protections against discriminatory impact.\90\
---------------------------------------------------------------------------
\88\ Redistricting Across States, ALL ABOUT REDISTRICTING, https://
redistricting.lls.edu/ (accessed Jan. 18, 2022).
\89\ See U.S. DEP'T OF JUSTICE, Jurisdictions Previously Covered by
Section 5, https://www.justice.gov/crt/jurisdictions-previously-
covered-section-5; Resource: Voting Laws Roundup: December 2021, supra
n. 70.
\90\ 594 U.S. (2021).
---------------------------------------------------------------------------
LDF is currently litigating cases against 2021 voter suppression
laws in Georgia, Florida, and Texas; and discriminatory redistricting
plans in Alabama, South Carolina, and Louisiana. This litigation is an
important but limited tool to protect Black and Brown Americans' right
to vote. Voting rights litigation can be slow and expensive, often
costing parties millions of dollars.\91\ The cases also expend
significant judicial resources.\92\ Additionally, the average length of
Section 2 cases is 2 to 5 years.\93\ In the years during a case's
pendency, thousands--and, in some cases, millions--of voters are
effectively disenfranchised.\94\
---------------------------------------------------------------------------
\91\ The Cost (in Time, Money, and Burden) of Section 2 of the
Voting Rights Act Litigation1 NAACP LDF (Feb. 19, 2021), https://
www.naacpldf.org/wp-content/uploads/Section-2-costs-2.19.21.pdf.
\92\ Federal Judicial Center, 2003-2004 District Court Case-
Weighting Study, Table 1 (2005) (finding that voting cases consume the
sixth most judicial resources out of 63 types of cases analyzed).
\93\ Voting Rights Act: Section 5 of the Act--History, Scope, and
Purpose: Hearing Before the Subcomm. on the Constitution of the H.
Comm. on the Judiciary, 109th Cong. 92 (2005) (``Two to 5 years is a
rough average'' for the length of Section 2 lawsuits).
\94\ See e.g., Veasey v. Abbott, No. 20-40428 (5th Cir. Sept. 3,
2021), available at https://www.ca5.uscourts.gov/opinions/pub/20/20-
40428-CV0.pdf (upholding grant of $6,790,333.31 in attorneys' fees).
---------------------------------------------------------------------------
The details of these cases (described in chronological order below)
show that these laws are targeted at pushing back on strong 2020
turnout among voters of color and are clearly part of the backlash
unleashed through false narratives about voter fraud. These cases have
survived multiple attempts to block aggrieved voters from having their
day in court--such as motions to dismiss or for summary judgment--and
two of them have already resulted in victories for Black voters at the
trial court level. In January, a three-judge panel ordered Alabama to
draw new Congressional maps that give Black voters a fair opportunity
to elect their preferred candidates (this ruling was put on hold by the
Supreme Court).\95\ A Federal judge in March struck down Florida's
voter suppression law and ruled that it was the product of intentional
racial discrimination.\96\
---------------------------------------------------------------------------
\95\ 21A375 Merrill v. Milligan 595 U. S. (2022). Available at
https://www.naacpldf.org/wp-content/uploads/
order_supreme_court_alabama_case_2_7_2022.pdf.
\96\ League of Women Voters of Fla. Inc. v. Lee, 4:21cv186-MW/MAF
(N.D. Fla. Mar. 31, 2022).
---------------------------------------------------------------------------
a. Georgia
In addition to being the most visible place Black voters asserted
power in 2020, Georgia has seen significant population growth among
people of color over the last decade. According to the U.S. Census
Bureau, the State's diversity index jumped several points over the past
decade, and Georgia jumped two slots to become the ninth most diverse
State in the Nation.\97\ This made the Peach State especially
vulnerable to the false fraud frame. In fact, Georgia wasted no time
translating the backlash against the rising voices of voters of color
into legislative action to restrict the franchise. On January 7, 2021--
two days after the run-off election, and the day after the
Insurrection--Georgia House Speaker David Ralston announced the
creation of a Special Committee on Election Integrity (``EIC'') and by
early February, Georgia legislators had filed sweeping legislation to
limit early and absentee voting.\98\
---------------------------------------------------------------------------
\97\ Racial and Ethnic Diversity in the United States: 2010 Census
and 2020 Census, U.S. Census Bureau (Aug. 12, 2021), https://
www.census.gov/library/visualizations/interactive/racial-and-ethnic-
diversity-in-the-united-States-2010-and-2020-census.html.
\98\ Stephen Fowler, Sweeping Elections Bill To Limit Early And
Absentee Voting, NPR (Feb. 19, 2021), https://www.npr.org/2021/02/19/
969497398/georgia-republicans-file-sweeping-elections-bill-to-limit-
early-and-absentee-vot.
---------------------------------------------------------------------------
LDF, jointly with the Southern Poverty Law Center (``SPLC''),
provided oral and written testimony throughout the legislative session
to oppose omnibus bills restricting access to the right to vote,
explaining that these bills would disproportionately harm low-income
voters and voters of color.\99\ Yet, the Georgia General Assembly
refused to conduct any racial-impact study of legislation that would
carry forward the State's troubling history of voting
discrimination.\100\
---------------------------------------------------------------------------
\99\ LDF and SPLC Action Fund Submit Testimony Opposing Georgia's
S.B. 202, NAACP LDF (Mar. 18, 2021), https://www.naacpldf.org/news/ldf-
and-splc-action-fund-submit-testimony-opposing-georgias-s-b-202/.
\100\ Since the 2013 Shelby decision, the State of Georgia has
enacted voting restrictions across five major categories studied by the
U.S. Commission on Civil Rights: Voter identification requirements,
documentary proof of citizenship requirements, voter purges, cuts to
early voting, and polling place closures or relocations. Democracy
Diminished, NAACP LDF (Oct. 6, 2021), at 25-32, https://
www.naacpldf.org/wp-content/uploads/Democracy-Diminished_10.06.2021-
Final.pdf.
---------------------------------------------------------------------------
On March 17, 2021, with little notice to EIC members, and members
of the public, an EIC member introduced a substitute bill to Senate
Bill 202 (``S.B. 202''), which expanded the legislation from 3 pages to
over 90 pages just hours before a full hearing. With limited
opportunity for meaningful engagement and review, the EIC rushed S.B.
202 through additional hearings. On March 25, 2021, the House and
Senate passed S.B. 202, and the Governor signed it into law during a
closed-door session.\101\ One of the most restrictive voting laws of
recent years, S.B. 202: (1) Severely limits mobile voting; (2) imposes
new identification requirements for requesting and casting an absentee
ballot; (3) delays and compresses the time period for requesting
absentee ballots; (4) imposes new restrictions on secure drop boxes;
(5) implements out-of-precinct provisional ballot disqualification; (6)
drastically reduces early voting in run-off elections; and (7)
criminalizes the provision of food and water to voters waiting in line
to cast a ballot.\102\
---------------------------------------------------------------------------
\101\ Stephen Fowler, ``Georgia Governor Signs Election Overhaul,
Includes Changes to Absentee Voting,'' NPR (Mar. 25, 2021), https://
www.npr.org/2021/03/25/981357583/georgia-legislature-approves-election-
overhaul-including-changes-to-absentee-vot.
\102\ Civil Rights Groups Sue Georgia Over New Sweeping Voter
Suppression Law NAACP LDF (Mar. 30, 2021), https://www.naacpldf.org/
press-release/civil-rights-groups-sue-georgia-over-new-sweeping-voter-
suppression-law/.
---------------------------------------------------------------------------
On March 30, 2021, LDF, along with allies, filed a lawsuit, later
amended, in the Northern District of Georgia, which challenges S.B. 202
on behalf of several groups including the Sixth District of the African
Methodist Episcopal Church, Delta Sigma Theta Sorority, Inc, Georgia
ADAPT, Georgia Advocacy Office, and the Southern Christian Leadership
Conference.\103\ The lawsuit raises several claims including racial
discrimination in violation of the VRA and the Fourteenth and Fifteenth
Amendments; an unconstitutional burden on the right to vote under the
First and Fourteenth Amendments; an unconstitutional burden on the
right to freedom of speech and expression under the First Amendment;
discrimination on the basis of disability under Title II of the
American Disabilities Act, and Section 504 of the Rehabilitation Act of
1973, and a violation of the Civil Rights Act of 1964's prohibition on
immaterial requirements to voting.
---------------------------------------------------------------------------
\103\ Id.
---------------------------------------------------------------------------
In the 2022 legislative session, Georgia lawmakers picked up where
they left off last year. After promising no further major election
changes, the Georgia House nonetheless pushed through a package that
sought to give the Georgia Bureau of Investigation (GBI) original
jurisdiction to investigate nonexistent election crimes; reduce the
number of voting machines required on Election Day; and increase
mandates on elections officials without corresponding resources.\104\
After strong pushback from elections officials and the voting rights
community, the legislature removed most of the anti-voter provisions,
but did pass legislation that threatens to intimidate voters by
involving the GBI directly in elections.\105\
---------------------------------------------------------------------------
\104\ GA HB1464. Regular Session 2021-2022, (Mar. 30, 2022).
\105\ Cami Mondeaux, Georgia lawmakers pass bill giving GBI power
to investigate voter fraud, Washington Examiner (Apr. 5, 2022), https:/
/www.washingtonexaminer.com/politics/georgia-lawmakers-pass-bill-
giving-gbi-power-to-investigate-voter-fraud.
---------------------------------------------------------------------------
b. Florida
Florida, which also grew more diverse in the last decade,\106\ was
not far behind Georgia in channeling the false fraud claims and
resulting backlash into new voting restrictions. On May 6, 2021,
Governor DeSantis signed into law a broad voter suppression bill known
as S.B. 90.\107\ The same day LDF filed a lawsuit on behalf of the
Florida State Conference of the NAACP, Disability Rights Florida, and
Common Cause against the Florida Secretary of State, challenging
multiple provisions of the bill including: (1) Restrictions and new
requirements for VBM applications; (2) limitations on where, when, and
how drop boxes can be used; and (3) a vague and overbroad prohibition
on conduct near polling places, including potentially criminalizing
offering free food, water, and other relief to Florida voters waiting
in long lines.\108\
---------------------------------------------------------------------------
\106\ Racial and Ethnic Diversity in the United States supra note
106.
\107\ Gov. DeSantis Signs GOP-Backed Elections Bill at Event Closed
to Local Media, ASSOCIATED PRESS (May 6, 2021), https://
www.nbcmiami.com/news/local/gov-desantis-signs-gop-backed-elections-
bill/2444871/.
\108\ Important Facts About LDF's Lawsuit Challenging Florida's New
Voting Law, NAACP LDF (accessed Jan. 19, 2022), https://
www.naacpldf.org/naacp-publications/ldf-blog/important-facts-about-
ldfs-lawsuit-challenging-floridas-new-voting-law/.
---------------------------------------------------------------------------
On October 8, 2021, Chief Judge Mark E. Walker denied the Secretary
of State's motion to dismiss with respect to most of our claims, noting
that the allegations of intentional discrimination in our complaint
drew a ``a straight, shameful line from the discriminatory laws of the
1880's to today.''\109\ Judge Walker then struck down S.B. 90 in March
of this year, ruling that the law violates Section 2 of the Voting
Rights Act, and the First and Fourteenth Amendments to the U.S.
Constitution.\110\ Because the district court found that the Florida
legislature intentionally discriminated against Black voters through
its enactment of S.B. 90, the court granted the Plaintiffs' request for
bail-in relief, thereby retaining jurisdiction in the matter for 10
years and prohibiting Florida from enacting certain voting changes
without pre-approval.\111\
---------------------------------------------------------------------------
\109\ Order on Motion to Dismiss at 52, Florida State Conference of
the NAACP et. al. v. Laurel Lee, No. 4:21-cv001-87-MW-MAF (N.D. Fla 10/
8/21), ECF No. 249.
\110\ https://www.naacpldf.org/wp-content/uploads/FINAL-ORDER-
SB90.pdf.
\111\ Id. at 136.
---------------------------------------------------------------------------
In reaching its finding of intentional discrimination, the Court
pointed to decades of troubling history, noting that ``[a]t some point,
when the Florida Legislature passes law after law disproportionately
burdening Black voters, this Court can no longer accept that the effect
is incidental.''\112\ It also discussed the specific context of the
2020 election and how S.B. 90 was framed in response. After noting a
surge in vote-by-mail participation, high turnout generally, and the
fact that by all accounts the election was conducted without major
security concerns, the court referenced the National climate and
Florida's response, making an explicit connection to the January 6th
Insurrection:
---------------------------------------------------------------------------
\112\ Id. at 64.
``While Florida's election went smoothly, this Court cannot ignore
reality. The 2020 election and its aftermath, on a national scale, was
chaotic, though scant evidence was presented on this issue. Between the
2020 election and SB 90's introduction, then-President Trump refused to
acknowledge that he had lost the election, causing an escalating crisis
that culminated in a mob storming the United States Capitol on January
6, 2021. This is not determinative, but this Court cannot evaluate the
Legislature's actions without at least acknowledging these events.
Indeed, the [election] Supervisors' lobbyist, David Ramba, testified
that considering ``all of the things that were on the national news and
who stole what and everything else, we knew that somebody was going to
come up with a piece of legislation.''
``As Mr. Ramba expected, in the first legislative session after the
2020 election, the Legislature, through SB 90, made a sweeping set of
changes to Florida's election code, with a specific focus on VBM. For
context, between 2013 and 2020 the Legislature made no changes to VBM.
And the exact justification for SB 90 as a whole, and for its
constituent parts, is difficult to pin down, with sponsors and
supporters offering conflicting or nonsensical rationales. Indeed, as
Senator Farmer testified, the rationale for SB 90 ``was perhaps the
most [elusive] answer we faced.'' . . . Nor was there any evidence
before the Legislature that fraud is even a marginal issue in Florida
elections.\113\
---------------------------------------------------------------------------
\113\ Id. at 68-70 (internal citations omitted).
Judge Walker's careful 288-page opinion makes clear that Florida
legislators used false claims of voter fraud as a pretext to enact
legislation they knew would suppress the Black vote, in direct response
to robust 2020 turnout.
c. Texas
Texas is another State that experienced substantial population
shifts since 2010. On September 7, 2021, Governor Abbott of Texas
signed S.B. 1, one of the most restrictive voting laws in the country.
As the bill advanced, members and witnesses who raised concerns--and
evidence--that the bill would harm voters of color and voters with
disabilities were largely ignored or chastised for uttering the word
``racism'' in the debate. Texas House Democrats staged a walkout and
eventually left the State to break quorum and prevent the passage of
such a damaging bill. But proponents of the omnibus election bill
rammed it through the legislative process, which the Governor extended
by two special sessions and threatened funding of legislative staff
salaries in order to force passage of the bill.\114\ After submitting
testimony and advocating against the bill as it made its way through
the Texas legislature, LDF filed a lawsuit challenging S.B. 1 on the
same day it was signed into law.\115\
---------------------------------------------------------------------------
\114\ Heidi Perez-Moreno, 2,100 State Workers Caught in the
Crosshairs of Gov. Greg Abbott's Veto of Legislature Funding, THE TEXAS
TRIBUNE (July 2, 2021), https://www.texastribune.org/2021/07/02/greg-
abbott-veto-legislature-staffers/.
\115\ Our lawsuit is 1 of 6 challenging S.B. 1 that have been
consolidated under La Union del Pueblo Entero v. State of Texas, No.
5:21-cv-00844 (W.D. Tex.), including a case brought by the U.S.
Department of Justice.
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The passage of S.B. 1 was a direct backlash to the record voter
turnout in Texas in the 2020 election cycle and in particular, the
power that Black and Brown voters exercised at the polls. Expanded
early voting, drive-thru voting, and 24-hour voting facilitated this
record-high voter participation, particularly for urban voters of color
who were more likely to use these means of access. For example,
approximately 1.6 million registered voters in Harris County: 1.3
million voted early in person; over 177,000 voted by mail; and over
200,000 voted on Election Day.\116\ S.B. 1 targeted the means and
methods of voting primarily used by Black and Brown voters that had
facilitated a smooth, secure, and accessible election. Among its many
restrictions,S.B. 1 eliminates drive-thru voting and 24-hour voting,
restricts early voting hours, restricts vote-by-mail opportunities and
application distribution, and bans drop boxes--innovations that had
given local counties the options and flexibility they needed to help
eligible voters of all backgrounds and abilities cast a ballot, and
that Black and Brown voters had disproportionately relied on to vote.
S.B. 1 also imposes burdens and intrusive documentation requirements on
individuals who provide voters assistance or transport voters to the
polls, those providing such assistance to the threat of criminal
penalties for violations. Finally, by making it harder for election
officials to regulate and supervise poll watchers, S.B. 1 empowers
partisan poll watchers to interfere with election administration and to
intimidate and harass voters at the polls.
---------------------------------------------------------------------------
\116\ Harris County Elections, Election Results Archive, Canvass
Report: Nov Live 110320 General and Special Elections, (Nov. 16, 2020),
https://www.harrisvotes.com/HISTORY/20201103/Official%20Canvass.pdf.
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S.B. 1 has already caused substantial problems in Texas' March 1
primary election, where counties were forced to reject a huge
percentage of vote-by-mail applications.\117\ One hundred eighty-seven
of Texas' 254 counties threw out 22,898 duly cast vote by mail
ballots--approximately 13% of all ballots cast during primary vs. 1-2%
rejected in previous elections.\118\ The rejection rate in the most
populous counties was roughly 15%, a staggering increase from the 2020
election, where the State-wide rejection rate was roughly 1%.\119\ The
unprecedented vote-by-mail rejections seems to have a disproportionate
impact on minority voters across the State. In particular, 6 of the 9
zip codes in Harris County with the most ballot rejections were
majority Black.\120\
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\117\ Alexa Ura, Hundreds of Mail-in Ballot Applications are Being
Rejected Under Texas' New Voting Rules, THE TEXAS TRIBUNE (Jan. 13,
2022), https://www.texastribune.org/2022/01/13/texas-voting-mail-
rejections/?utm--source=Texas+Tribune+Newsletters&utm--
campaign=22dff95b59- trib-newsletters-top-story-
alert&utm_medium=email&utm_term=0_d9a68d8efc-22dff95b59-
101201265&mc_cid=22dff95b59.
\118\ Ross Ramsey, Analysis: When 1 in 8 Texas mail ballots gets
trashed, that's vote suppression, Texas Tribune (Mar. 18, 2022),
https://www.texastribune.org/2022/03/18/texas-rejected-election-
ballots/.
\119\ Nick Corasaniti, Mail Ballot Rejections Surge in Texas, With
Signs of a Race Gap, New York Times (Mar. 18, 2022), https://
www.nytimes.com/2022/03/18/us/politics/texas-primary-ballot-
rejections.html.
\120\ Nick Corasaniti supra n. 128.
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S.B. 1 has made it more difficult for voters to cast ballots,
stifled innovation, undermined trust in our democracy, and chipped away
at voluntary participation as election workers by making the job more
difficult while adding criminal penalties for the job.
In our lawsuit, LDF, along with our co-counsel from The Arc and
Reed Smith, argues that S.B. 1 discriminates against Black and Brown
voters and burdens voters with disabilities in violation of the First
and Fourteenth Amendments, Sections 2 and 208 of the Voting Rights Act,
the Americans with Disabilities Act, and Section 504 of the
Rehabilitation Act.\121\ We represent Houston Justice, the Houston Area
Urban League, Delta Sigma Theta Sorority, Inc., and The Arc of Texas,
organizations that have long worked to ensure Black and Brown voters,
incarcerated voters, and voters with disabilities can access the
franchise through providing voter education and voter assistance.
Largely through volunteer efforts, these groups help vulnerable
communities make their voices heard through the ballot box, for example
by educating voters about their voting method options and election
rules, providing transportation to the polls, distributing, and
assisting with the completion of vote-by-mail applications, and helping
voters with disabilities navigate the voting process and complete their
ballots.
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\121\ Lawsuit Filed Challenging New Texas Law Targeting Voting
Rights, NAACP LDF (Sept. 7, 2021), https://www.naacpldf.org/press-
release/lawsuit-filed-challenging-new-texas-law-targeting-voting-
rights/.
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S.B. 1 frustrates the mission of our clients, placing obstacles,
bans, and exposure to criminal prosecution in the way of their efforts
to help marginalized communities vote. But the greatest loss is for
Texas voters themselves who will be disenfranchised or burdened by the
web of bans and restrictions erected by the law--Black and Brown voters
and voters with disabilities who relied on the methods of voting now
made illegal and who counted on engagement and assistance from groups
like our clients to safely cast a ballot. In intent and effect, S.B. 1
blocks their right to vote, continuing a shameful history of voter
suppression in Texas.
d. Alabama
Alabama has played a special role in the Civil Rights Movement, due
in significant part to its shameful history of racial discrimination in
voting. In 1992, litigation forced Alabama to create a Congressional
district that allowed Black voters a real opportunity to elect
candidates of their choice.\122\ As a result, a Black Congressperson
was elected from Alabama for the first time since Reconstruction.\123\
Yet outside of that one district, Black candidates continue to face
defeat in Congressional elections, though many strong candidates have
run and have attracted the support of the overwhelming majority of
Black voters.\124\ Indeed, Alabama is one of only 10 States where no
Black person has ever won State-wide elected office.\125\
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\122\3Wesch v. Hunt, 785 F. Supp. 1491, 1498 (S.D. Ala. 1992),
aff'd sub nom. Camp v. Wesch, 504 U.S. 902 (1992).
\123\ Compl., Milligan v. Merrill, No. 2:21-cv--01530-AMM (N.D.
Ala. Nov. 16, 2021), ECF No. 1 (``Milligan Compl.'').
\124\ U.S. House of Representatives, Black-American Members by
State and Territory, 1870-Present, https://history.house.gov/
Exhibitions-and-Publications/BAIC/Historical-Data/Black-American-
Representatives-and-Senators-by-State-and-Territory/ (last visited
January 18, 2022).
\125\ Summer Ballentine, Analysis: 10 States still haven't elected
minority State-wide, ASSOCIATED PRESS (Sept. 3, 2016), https://
apnews.com/article/6d70082a5f854109aee7874e915c6631.
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For some time now, it has been possible to create two majority-
Black Congressional districts in Alabama.\126\ This is even more true
now given that all of the State's population growth in the last decade
was driven by people of color.\127\ As of the 2020 Census, non-Hispanic
whites have fallen to 63% of the Alabama's population while Black
Alabamians have grown to just over 27% of the population.\128\
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\126\ Even in 1992, the Black population was large enough and
geographically compact enough to create two majority-Black
Congressional districts, but Black leaders at that time believed an
effective electoral opportunity for Black voters required significantly
more than a bare majority. Wesch, 785 F. Supp. at 1498.
\127\ Alabama Population Grew 5.1% Since 2010, Surpassing 5
Million, U.S. CENSUS BUREAU (Aug. 5, 2021), https://www.census.gov/
library/stories/state-by-state/alabama-population-change-between-
census-decade.html.
\128\ Id.
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Yet Alabama's white power structure has refused to contend with the
State's growing diversity, preferring to maintain the status quo in a
process that was anything but transparent. In September 2021, the
State's Legislative Reapportionment Office held 28 public hearings, all
but one of which were held during regular business hours when working
Alabamians were unlikely to attend.\129\ Comments by the legislators
overseeing the process indicated the outlines of the Congressional plan
had already been decided before the public hearings, yet no draft map
was released until after the public comment period had closed.\130\ And
no changes were made to the plans in response to public input.
Moreover, although civil rights advocates and Black State legislators
asked for a racial polarization study before the legislature adopted a
map that continued packing Black voters into a single Congressional
district, no such study was ever done.\131\
---------------------------------------------------------------------------
\129\ Mike Cason, Alabama lawmakers begin task of drawing new
political districts, al.com, (Aug. 31, 2021) https://www.al.com/news/
2021/08/alabama-lawmakers-begin-task-of-drawing-new-political-
districts.html.
\130\ Id. (quoting State Senator Jim McClendon stating that ``there
won't be any surprises'' in the new Congressional plan).
\131\ Milligan Compl., supra n. 122, 50-71.
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On November 4, 2021, Alabama enacted a Congressional map under
which Black Alabamians have a meaningful chance to see their preferred
candidate elected in only one out of the State's 7 Congressional
districts.\132\ In other words, Black Alabamians are more than 27% of
the population, but are a majority--and have a realistic chance of
electing their preferred representatives--in only 14% of the State's
Congressional districts. In contrast, white Alabamians are 63% of the
population but form a majority in nearly 86% of the Congressional
districts. This is akin to one-person, half-a-vote for Black residents,
and one-person, one-and-a-third votes for white residents.
---------------------------------------------------------------------------
\132\ See Stipulation of Facts, Milligan v. Merrill, No. 2:21-cv-
01530-AMM (N.D. Ala. 2021), ECF No. 53.
---------------------------------------------------------------------------
In November, after the State adopted a Congressional plan that
continued the status quo, LDF sued on behalf of Greater Birmingham
Ministries, the Alabama State Conference of the NAACP, and five
affected voters, demanding that the State create a second district that
gives Black Alabamians an equal chance to see their preferred
candidates represent them in Congress.\133\
---------------------------------------------------------------------------
\133\ Milligan Compl., supra n. 135.
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The lack of adequate representation in Congress has real
consequences for Alabama's Black communities. Shalela Dowdy, a
community organizer and captain in the U.S. Army Reserves who is one of
the plaintiffs in LDF's Congressional redistricting litigation,
explained how elected officials work against the needs of Alabamians in
the State's Black Belt, who disproportionately lack access to health
care.\134\ The region suffers from high rates of HIV and has been hit
hard by COVID-19, regional hospitals have closed, doctors are often far
away, and residents often cannot afford health insurance. Despite these
serious issues affecting their constituents, many Alabama legislators
have refused to support expanding Medicaid under the Affordable Care
Act.
---------------------------------------------------------------------------
\134\ Milligan Compl., supra n. 135.
---------------------------------------------------------------------------
The State legislative plan, adopted through the same problematic
process as the Congressional plan, similarly distorts Black
representation, and LDF has also challenged this plan. In January, a
unanimous three-judge district court struck down Alabama's
Congressional map and ordered the State legislature to draw a new map
that complies with the Voting Rights Act by including two districts
where Black voters have the opportunity to elect candidates of their
choice.\135\ Unfortunately, the Supreme Court subsequently granted a
motion to the stay the trial court's injunction of the maps, which
means that the 2022 elections will take place under discriminatory maps
and the underlying challenge to the maps will proceed next Term.\136\
---------------------------------------------------------------------------
\135\ Singleton v. Merrill, No. 2:21-cv-01291 (N. D. Ala.).
Available at https://www.naacpldf.org/wp-content/uploads/PRELIMINARY-
INJUNCTION-MEMORANDUM-OPINION-AND-ORDER.-Signed-by-Judge-Anna-M-
Manasco-on-1_24_2022.-1.pdf.
\136\ https://www.naacpldf.org/wp-content/uploads/
order_supreme_court_- alabama_case_2_7_2022.pdf.
---------------------------------------------------------------------------
e. South Carolina
South Carolina has a long history of racial discrimination in
voting and in the redistricting process in particular. During the four
decades that the State was covered by the Voting Rights Act's
preclearance protections, the Department of Justice objected 120 times
to racially discriminatory voting changes, and at least 27 of these
objections involved State or local redistricting plans.\137\ And, in
every redistricting cycle since Congress enacted the VRA, voters have
been forced to go into court to seek redress from discriminatory
maps.\138\
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\137\ First Amended Compl. for Inj. and Decl. Relief at 13, South
Carolina State Conference of the NAACP v. McMaster, No. 3:21-cv-03302-
JMC-TJH-RMG (D.S.C. Dec. 23, 2021), ECF No. 84, available at https://
www.naacpldf.org/wp-content/uploads/AMENDED-PLAINT-for-injunctive-and-
declaratory-relief-against-JoAnne-Day-Clifford-J-Elder-002.pdf.
\138\ Id. 43.
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In October 2021, LDF first filed suit regarding post-2020 Census
redistricting in the State on behalf of the South Carolina State
Conference of the NAACP and an individual voter.\139\ Plaintiffs were
forced to bring this initial complaint because of the South Carolina
legislature's unnecessary delay in drawing new redistricting maps that
respect the Constitutional one-person-one-vote principle. The
legislature's failure to remedy malapportioned districts threatened to
delay the process of drawing updated districts until the legislature
was due back on January 11, 2022, which would have undermined the
public's and courts' ability to evaluate the legality of new district
lines before the March 30, 2022 filing deadline for primary
elections.\140\
---------------------------------------------------------------------------
\139\ Compl. for Inj. and Decl. Relief, South Carolina State
Conference of the NAACP v. McMaster, No. 3:21-cv-03302-JMC-TJH-RMG
(D.S.C. Oct. 12, 2021), ECF No. 1, available at https://
www.naacpldf.org/wp-content/uploads/2021-10-12-SC-NAACP-v.-McMaster-
Malaportionment-Complaint-FINAL-FILE-STAMPED.pdf.
\140\ Id.
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The legislature did ultimately return to draw new State House and
Senate districts before the end of 2021. South Carolina's map-drawing
process was largely inaccessible and unresponsive to public input. In
August and October 2021, LDF, South Carolina NAACP, ACLU, and other
organizations sent letters to the House and Senate \141\ Committee
expressing concern about the lack of transparency and proposing
legislative and Congressional maps that would redress population
disparities and create opportunities for Black voters to elect
candidates of choice.\142\ The committees responsible for these maps
repeatedly posted proposed plans with limited opportunities for
meaningful review. As just one example, the House Committee invited
public input on its draft State House map on November 10, which was
posted less than 48 hours before the only public hearing it sought
public testimony on the plan.\143\ The House Judiciary Committee
subsequently amended and adopted this initial State House map with no
opportunity for public input.\144\ The legislature also repeatedly
discounted and ignored the public testimony that it did receive. And
there is no indication that the legislature conducted a racially
polarized voting analysis or any other analysis key to compliance with
the Voting Rights Act despite repeated requests to do so.\145\
---------------------------------------------------------------------------
\141\ LDF Sends Letter to the South Carolina House Redistricting Ad
Hoc Committee About their Obligations Under Section 2 of the Voting
Rights Act and the Constitution, NAACP LDF (Aug. 9, 2021), https://
www.naacpldf.org/news/ldf-sends-letter-to-the-south-carolina-house-
redistricting-ad-hoc-committee-about-their-obligations-under-section-2-
of-the-voting-rights-act-and-the-constitution/; LDF Submits Proposed
Congressional and Senate Redistricting Maps to the South Carolina
Senate Judiciary Redistricting Subcommittee and the House Redistricting
Ad Hoc Committee, NAACP LDF (Oct. 8, 2021), https://www.naacpldf.org/
press-release/ldf-submits-proposed-submitting-proposed-congressional-
and-senate-maps-to-the-south-carolina-senate-judiciary-redistricting-
subcommittee-and-the-house-redistricting-ad-hoc-committee/.
\142\ Id. 70, 71.
\143\ Id. 75.
\144\ Id. 85-95.
\145\ Id. 9.
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Ultimately, the legislature evaded their Constitutional obligations
for redistricting. They did so by enacting State House and
Congressional maps with districts that both ``pack'' and ``crack''
Black voters to dilute Black voting strength and opportunities for
Black voters to elect candidates of their choice. But this result was
not inevitable; the legislature had many alternative maps available to
them that would have corrected for malapportionment, complied with
Federal and State law considerations, and relevant redistricting
criteria that the legislature adopted. Now, these maps are the latest
examples of a decades-long pattern by the legislature of adopting
discriminatory maps. LDF's current lawsuit provides an opportunity for
Black South Carolinians to have a fair chance to elect State House and
Congressional candidates who adequately represent their interests.
f. Louisiana
In Louisiana, which has the second-highest Black population of any
State in the country, we are seeing the same pattern as in Alabama. In
March, the State legislature passed redistricting plans that continue
to pack Black Louisianans into a single Congressional district
stretching from New Orleans to Baton Rouge and into many fewer State
legislative districts than fairness and their numbers in the population
demand.\146\ As in much of the South, voting in Louisiana remains
stubbornly and starkly polarized along racial lines, with large
majorities of white voters declining to support Black candidates. The
result is that in districts in which white voters make up the majority,
candidates supported by Black Louisianans do not succeed at the ballot
box.
---------------------------------------------------------------------------
\146\ Letter to Louisiana Senate and House Governmental Affairs
Committee, NAACP LDF (Oct. 18, 2021), https://www.naacpldf.org/wp-
content/uploads/2021.10.18-Letter-re-Louisiana-congressional-
Redistricting.pdf.
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According to the 2020 census, Louisiana's Black population has
grown to more than 33% while the white population has fallen to
57%.\147\ The legislature's Congressional plan, however, hands control
of over 83% of the seats to white voters. A similar pattern holds in
the redistricting plans for the Louisiana House of Representatives and
Senate.
---------------------------------------------------------------------------
\147\ U.S. Census Bureau, LOUISIANA: 2020 Census (Aug. 25, 2021).
Available at https://www.census.gov/library/stories/state-by-state/
louisiana-population-change-between-census-decade.html.
---------------------------------------------------------------------------
The legislature adopted these plans in the face of powerful
community input demanding a greater voice for Black voters and despite
the introduction of several alternative plans by members of the State's
legislative Black caucus that would have created an additional seat in
the Congressional plan. At least one of the alternative plans scored as
well as or better than the plan the that was ultimately adopted on
every measure the legislature purported to care about. The explanation
from the legislature for their failure to consider these alternatives
has been misinformation and, as in Alabama, unsupported claims that the
Voting Rights Act requires a gerrymandered majority-Black district
based in New Orleans that deprives Black voters of an equal opportunity
to have their voices heard anywhere else in the State.
On March 9, 2022, in response to sustained community advocacy,
Governor John Bel Edwards vetoed the Congressional plan passed by the
legislature because it failed to include a second majority-Black
Congressional district. On March 30, 2022, the legislature voted to
override the Governor's veto rather than attempt to craft a compromise
plan that would provide greater voting opportunities to Black
Louisianans. That this was the first time in nearly three decades that
Louisiana has seen a successful veto override is a testament to the
legislature's commitment to its refusal to share power with the State's
rising Black population. Hours after the veto override vote, LDF filed
suit under Section 2 of the Voting Rights Act challenging the
Congressional plan.
(a) Judicial Redistricting
Black representation on Louisiana's Supreme Court is also under
threat. Under a consent decree that resulted from a landmark decision
in the case of Chisom v. Roemer, there is currently one member of the
State supreme court who is elected from a majority-Black district.\148\
The State recently asked the Federal court to dissolve that decree and
end Federal oversight under the pretext of a need to redistrict to
correct population imbalances. The State's motion comes at a time when
it faces pressure to add an additional majority-minority district and
amid an effort to expand the size of the court from 7 to 9 members,
which would further dilute the influence of Black voters on judicial
elections.\149\
---------------------------------------------------------------------------
\148\ Chisom v. Roemer, 501 U.S. 380 (1991).
\149\ See Allen v. Louisiana, 14 F.4th 366 (5th Cir. 2021).
---------------------------------------------------------------------------
(b) Drawing Local Lines
Congressional maps and State-wide plans are critical, but far from
the only arena where fair districting is under attack. The one-person,
one-vote principle requires thousands of jurisdictions across the
country to redraw lines every decade--from county commissions and city
councils to school boards. In the absence of preclearance,
redistricting plans are being drawn that will affect the most intimate
aspects of people's lives for a decade with no serious scrutiny or
oversight. LDF lawyers, trainers, organizers, and policy staff have
spent the past 6 months working to make sure that local communities
have the tools they need to engage meaningfully in the process. Non-
profit organizations like LDF can fill some of the gap left by the
Shelby County decision, but with no mandate that they affirmatively
scrutinize and justify their redistricting plans, many localities are
giving little heed to the requirements of the Voting Rights Act and the
Fourteenth Amendment.
D. Backlash Beyond Election Day: Subverting Election Results
The 2020 election and 2021 runoff taught entrenched interests that
even in the face of formidable obstacles and deliberate barriers, Black
and Brown voters can at times break through to make their voices heard.
Given this lesson, we are now seeing bold and deliberate efforts to
interfere with the voting infrastructure in ways that will facilitate
the sabotage of elections or the subversion of election results. Two
primary approaches are to provide more direct control over elections to
partisan actors, and to replace nonpartisan, good-faith election
workers with loyalists who strongly believe in the false narrative
around stolen elections.
In 2021, 32 laws were enacted in 17 States which allow State
legislatures to politicize, criminalize election administration
activity, or otherwise interfere with elections.\150\ These include
measures to shift authority over elections from executive agencies or
nonpartisan bodies to the legislature; roll back local authority
through centralization and micromanagement; and criminalize good-faith
mistakes or decisions by elections officials.\151\
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\150\ Memorandum from States United Democracy Center, Protect
Democracy, and Law Forward to Interested Parties (Dec. 23, 2021), at 2,
https://s3.documentcloud.org/documents/21169281/democracy-crisis-in-
the-making-report-update_12232021-year-end-numbers.pdf.
\151\ Id.
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These new rules allow white-dominated legislatures or State-wide
bodies to assert control over majority Black local jurisdictions. In
Georgia, for example, another provision of S.B. 202 allowed the State
Election Board to assume control of county boards.\152\ Through this
bill and separate legislation to reorganize county election boards,
several Black election board members or supervisors have been replaced
with individuals closely aligned with a particular partisan
ideology.\153\
---------------------------------------------------------------------------
\152\ James Oliphant & Nathan Layne, Georgia Republicans purge
Black Democrats from county election boards, REUTERS (Dec. 9, 2021),
https://www.reuters.com/world/us/georgia-republicans-purge-black-
democrats-county-election-boards-2021-12-09/.
\153\ For example, H.B. 162 reconstituted the Morgan County Board
of Elections, giving control over all appointments to the Board of
County Commissioners, and leading directly to the removal of Helen
Butler and Avery Jackson, two Black members Board members. Ms. Butler
had served on the board for more than a decade without any allegations
of wrongdoing and neglect, using her position to advocate for more
accessible elections. Protecting the Freedom to Vote--Recent Changes to
Georgia Voting Laws and the Need for Basic Federal Standards to Make
Sure All Americans Can Vote in the Way that Works Best for Them,
Hearing Before the S. Comm. On Rules and Admin, 117th Cong. 11 (2021)
(Statement of Helen Butler, Exec. Dir., Ga. Coal. for the People's
Agenda), https://www.rules.senate.gov/imo/media/doc/
Testimony_Butler.pdf.
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Furthermore, criminalization provisions of legislation expose good-
faith election officials to unreasonable risk for doing their jobs. For
example, Texas' S.B.1, contains a provision that exposes election
judges who take action to prevent poll watchers from harassing voters
to possible criminal sanctions.\154\ This despite the fact that the
Texas Election Code contains specific provisions designed to protect
voters from exactly such interference--and it is the election judge's
responsibility to enforce these provisions at a given polling
location.\155\ The new law thus puts good-faith election judges in a
no-win situation where they can incur criminal penalties for fulfilling
their duties.
---------------------------------------------------------------------------
\154\ Compl. for Decl. and Injunctive Relief, Houston Justice v.
Abbott, No. 5:21-cv-00848 (W.D. Tex. Sept. 7, 2021), ECF No. 1.
\155\ Tex. Election Code 33.057, 33.058.
---------------------------------------------------------------------------
Beyond legal changes, extremists who believe the 2020 election was
stolen have subjected elections officials to death threats and other
forms of harassment on an on-going basis. A November 2021 Reuters
Special Report documented nearly 800 threats to election workers over
the previous year, including more than 100 that could warrant
prosecution.\156\
---------------------------------------------------------------------------
\156\ In June, an Arizona man called Secretary of State Katie
Hobbs' office and left a messaging saying she would hang ``from a f----
tree . . . They're going to hang you for treason, you f----bitch.''
156[sic] In August 2021, a Utah man who had been listening to a Mesa
County, Colorado election clerk criticize Secretary of State Jena
Griswold sent Secretary Griswold a Facebook message: ``You raided an
office. You broke the law. STOP USING YOUR TACTICS. STOP NOW. Watch
your back. I KNOW WHERE YOU SLEEP, I SEE YOU SLEEPING. BE AFRAID, BE
VERRY AFFRAID. I hope you die.'' Linda So & Jason Szep, Special Report:
Reuters unmasks Trump supporters who terrified U.S. election workers,
REUTERS (Nov. 9, 2021), https://www.reuters.com/legal/government/
reuters-unmasks-trump-supporters-terrifying-us-election-workers-2021-
11-09/.
---------------------------------------------------------------------------
According to an April 2021 survey, approximately one-third of
election officials are concerned about feeling unsafe on the job, being
harassed on the job, and/or facing pressure to certify election
results.\157\ Nearly one-third have already felt unsafe and almost 20%
have been threatened on the job.\158\ This has led to a wave of
retirements, causing the director of the Center for Election Innovation
and Research to tell the New York Times, ``We may lose a generation of
professionalism and expertise in election administration. It's hard to
measure the impact.''\159\
---------------------------------------------------------------------------
\157\ Brennan Center for Justice, Local Election Officials Survey 6
(June 16, 2021), https://www.brennancenter.org/our-work/research-
reports/local-election-officials-survey.
\158\ Id. at 7.
\159\ Michael Wines, After a Nightmare Year, Election Officials Are
Quitting, N.Y. TIMES (July 2, 2021), https://www.nytimes.com/2021/07/
02/us/politics/2020-election-voting-officials.html.
---------------------------------------------------------------------------
This concern is almost certainly more acute for Black election
officials and other election officials of color. Texas election judge
and LDF client Jeffrey Clemmons, a Black man in his early twenties,
says that if he works as an election worker again in the future:
``I am almost certain that I am going to face probably more
harassment than I did the last time around because of the heightened
political environment that we're in, where people feel again as if
their elections are being stolen, that you know, democracy is being
undermined left and right, which it is, but of course not in the way
that they think that it is. And so you're going to have people who are
signing up to be poll watchers for probably partisan campaigns and
coming into polling places and attempting to identify election fraud as
it were through the Texas election bills . . . I can only imagine
things I'm going to face, whether it's someone, you know, yelling
belligerently at me or taking video of me when I'm just doing my job or
potentially having the cops called on me because of the color of my
skin and the fact that I'm working an election.''\160\
---------------------------------------------------------------------------
\160\ Interview with Jeffrey Clemmons, supra note 77.
The effort to subvert elections from the inside is picking up
steam. With Black and Brown election workers pushed out of the picture,
those who embrace the false fraud frame are waiting in the wings to
infiltrate the system. According to the New York Times, ``[i]n races
for State and county-level offices with direct oversight of elections,
Republican candidates coming out of the Stop the Steal movement are
running competitive campaigns, in which they enjoy a first-mover
advantage in electoral contests that few partisans from either party
thought much about before last November.''\161\
---------------------------------------------------------------------------
\161\ Charles Homans, In Bid for Control of Elections, Trump
Loyalists Face Few Obstacles, N.Y. TIMES (Dec. 11, 2022), https://
www.nytimes.com/2021/12/11/us/politics/trust-in-elections-trump-
democracy.html?campaign--id=9&emc=edit_nn_- 20211213&instance_id=-
47676&nl=the-morning®i_id=67300419&segment_id=76841&te=1&user_id=-
a026c13970046cd04a509ac0738ecf7a.
---------------------------------------------------------------------------
Secretary of state races have also been transformed by this
phenomenon. Formerly about election mechanics or perhaps how much to
expand voting opportunities these contests are now being driven by
inaccurate claims regarding election legitimacy. In about half of this
year's 27 secretary of state contests there's at least one candidate
who claims the 2020 election was stolen from Donald Trump, or otherwise
questions its legitimacy.\162\
---------------------------------------------------------------------------
\162\ `The Big Lie' Lives On, And May Lead Some to Oversee The Next
Election, NPR (Jan. 6, 2022), https://www.npr.org/transcripts/
1070864361. Candidates have claimed that Georgia ``certified the wrong
result'' and that ``700,000 people are illegal voters'' in the State;
that Michigan added dead people to the voter file, while calling for an
Arizona-style audit; that there were up to 35,000 ``fictitious voters''
in Pima County, Arizona; and that there was a group of secretary of
state candidates ``doing something behind the scenes to try to fix 2020
like President Trump said.'' Ian Vandewalker & Lawrence Norden,
Financing of Races for Offices that Oversee Elections: January 2022,
BRENNAN CENTER FOR JUSTICE (Jan. 12, 2022), at 15, fig. 7, https://
www.brennancenter.org/our-work/research-reports/financing-races-
offices-oversee-elections-january-2022.
---------------------------------------------------------------------------
With no pushback from Congress, those intent on subverting the next
election by continuing to raise doubts about 2020 are becoming more
brazen, not less. On January 15, President Trump held his first 2022
rally in Florence, Arizona.\163\ Former Trump chief strategist Stephen
Bannon explained that the purpose of the rally was to kick off an
attempt to decertify President Biden's 2020 electors in 4 swing
States.\164\ The explicit strategy was to sow distrust and paint
President Biden as an illegitimate President.
---------------------------------------------------------------------------
\163\ Trump rally in Arizona: Former president calls Biden `a
disaster' for the country, AZCENTRAL (Jan. 14, 2022), https://
www.azcentral.com/story/news/politics/arizona/2022/01/14/trump-rally
arizona-live-updates-florence/6529316001/.
\164\ Ron Filipkowski (@RonFilipkowski), Twitter (Jan. 15, 2022,
11:04 AM), https://twitter.com/RonFilipkowski/status/
1482383205181366278.
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The combination of removing non-partisan or bipartisan election
officials, exposing good-faith election workers to criminal penalties,
and a constant stream of threats and harassment contributes to perhaps
the most dangerous aspect of the efforts to subvert election results:
Thousands of election officials with experience and integrity are being
replaced by false fraud loyalists who are on a mission to achieve a
particular election outcome without regard to whether that outcome
aligns with the voice and intent of the majority of the electorate.
vi. solutions: congress has the power and responsibility to protect our
democracy
The U.S. Constitution gives Congress both the authority and the
responsibility to act to protect our democracy. This Committee has been
charged with the responsibility of diagnosing the root causes of the
January 6th Insurrection and prescribing the solutions that can heal
our ailing democracy. To do that work, it is critical that Congress
view January 6th in its full context, and not as an isolated incident;
only then does the full range of necessary solutions come into view.
This includes legislation to protect the right to vote, especially for
people of color; and to protect democracy from subversion.
A. Protect the Right to Vote
The purpose of the raft of 2021 voter suppression laws, the
discriminatory redistricting process, and the efforts to sabotage
election results is to prevent people of color from ever again
asserting their full voice and power. We need Congress to step up to
its responsibility to ensure that we can achieve full and fair
representation by passing legislation that protects the right to vote
for Black and Brown Americans. Such legislation should, at a minimum,
contain the following essential provisions:
Restore the VRA's preclearance protections through updated
coverage parameters. Many of the States manipulating maps or
passing restricting voting laws--including the 6 States LDF is
suing--were covered by the Voting Rights Act's preclearance
protections prior to Shelby and would likely be covered again
under a restored Voting Rights Act. Preclearance in the new law
would start in 2021, so these laws would need to go through the
process and could be blocked from further effect.\165\
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\165\ Freedom to Vote: John R. Lewis Act, H.R. 5746, 117th Cong.
(2021-2022) 9016(c).
---------------------------------------------------------------------------
Restore and strengthen Section 2 of the Voting Rights Act,
giving litigators across the country more powerful tools to
push back on discrimination. This includes clarifying the legal
standards for bringing Section 2 vote denial claims after the
Brnovich case, and that partisan motivation does not undercut a
claim of racial discrimination and establishing a new Nation-
wide prohibition against diminishing the ability of voters of
color to access the ballot or elect candidates of choice.\166\
---------------------------------------------------------------------------
\166\ Id. at 9001-9002.
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Provide a broad set of minimum standards for ballot
accessibility for Federal elections such that the ability to
exercise your right to vote is not dependent upon which State
you live in. States should be required to offer Same Day
Registration, robust early voting and vote-by-mail
opportunities, accept a broad range of voter identification,
make Election Day a holiday, implement automatic voter
registration, restore the vote to people with felony
convictions and more.\167\
---------------------------------------------------------------------------
\167\ Id. at 1031, 1202, 1301-1305, 1801.
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Create a new Federal statutory claim against undue burdens
on the right to vote.* For harsh rules that restrict access
across the board, this can provide an alternative to First and
Fourteenth Amendment claims under the so-called Anderson-
Burdick standard which has been weakened by the Supreme Court
and other courts in recent years. And in cases where laws place
disparate burdens on the rights of voters of color, low-income
voters, women, and others, a new claim can supplement Voting
Rights Act claims, which require extensive expert analysis and
statistical evidence to prove and increase the chances of
timely relief.
---------------------------------------------------------------------------
* Id. at 3401-3403.
---------------------------------------------------------------------------
Outlaw partisan gerrymandering for Congressional
districts.\168\ This helps communities of color by undercutting
a key excuse lawmakers give for undermining their political
voice--it was about partisanship, not race \169\--and by
reducing the chances that leaders elected by these communities
are marginalized within the elected bodies in which they serve.
---------------------------------------------------------------------------
\168\ Id. at 5001-5008.
\169\ See e.g. Michael Wines, ``Republican Gerrymander of North
Carolina Maps is Upheld in Court,'' THE N.Y. TIMES (Jan. 11, 2022),
https://www.nytimes.com/2022/01/11/us/politics/north-carolina-
redistricting.html.
---------------------------------------------------------------------------
B. Fight Election Subversion
In addition to protecting the right to vote, Congress must take
action to prevent subversion of our free and fair elections. This
includes enacting explicit new protections for election workers and
election infrastructure, as well as a provision that prevents partisan
bodies such as State legislatures from removing State and local
election officials without due cause.\170\ Congress must also update
the Electoral Count Act of 1887 to fix the vague and outdated vote
counting and election certification processes that provided an opening
for bad-faith actors to attempt to subvert the will of the people by
manipulating election results.\171\
---------------------------------------------------------------------------
\170\ Freedom to Vote: John R. Lewis Act, H.R. 5746, 117th Cong.
(2021-2022) 3001-3301.
\171\ Discussion Draft ``Electoral Count Modernization Act,''
available at https://www.king.senate.gov/imo/media/doc/
mcg22051.pdf.pdf, is one such proposal.
---------------------------------------------------------------------------
Reform of the Electoral Count Act is far from sufficient to address
the multitude of threats to ensuring free and fair democratic elections
facing the Nation today but it is a needed component.
vii. conclusion
This Select Committee does its work at a historic moment when it is
not hyperbole to say that the fate of American democracy hangs in the
balance. Black and Brown Americans face the greatest assault on our
voting rights since the Jim Crow Black Codes rolled back the progress
made during Reconstruction. Indeed, the threat of our democracy
breaking apart at the seams and sliding irreversibly into
authoritarianism has not been as acute since the Civil War.
The recent Census confirmed that the Country is growing more
diverse by the day and the great question before us is whether we will
embrace a truly inclusive, multiracial democracy or entrench a racial
hierarchy of white supremacy that has beleaguered our democracy since
its inception.
When NPR asked University of Southern California election scholar
Franita Tolson to rank her concern about our democracy as a whole and
the trend of false fraud narrative adherents taking over election
offices in particular on a scale from one-to-ten, her response was a
resounding 50.\172\ In April, respected election law scholar Richard L.
Hasen wrote in the Harvard Law Review that ``[t]he United States faces
a serious risk that the 2024 Presidential election, and other future
U.S. elections, will not be conducted fairly and that the candidates
taking office will not reflect the free choices made by eligible voters
under previously announced election rules.''\173\ I believe the threat
to our democracy is even more urgent than this. If people of color are
blocked from the ballot or the vote is subverted in 2022, it may be too
late to steer our democracy back on course.
---------------------------------------------------------------------------
\172\ `The Big Lie', supra n. 165.
\173\ Richard L. Hansen, Identifying and Minimizing the Risk of
Election Subversion and Stolen Elections in the Contemporary United
States (Sep. 18, 2021). Harvard Law Review Forum, Vol.135, 2022, UC
Irvine School of Law Research Paper No. 2021-50, Available at SSRN:
https://ssrn.com/abstract=3926381. see also Barton Gellman, Trump's
Next Coup Has Already Begun, THE ATLANTIC (Dec. 6, 2021), https://
www.theatlantic.com/magazine/archive/2022/01/january-6-insurrection-
trump-coup-2024-election/620843/.
---------------------------------------------------------------------------
Historians will study the period between 2020 and 2025 for decades
to come, seeking to explain the next century of American life. They
will ask the question: Did we act when we had the chance, or did we
squander our last, best hope to protect the freedom to vote and save
our democracy? Black Americans have played a special role in our
country's history in calling the Nation to honor its highest ideals.
And, we have been raising alarm bells about the descent of our
democracy for years.\174\
---------------------------------------------------------------------------
\174\ Lani Guinier & Gerald Torres, The Miner's Canary, Harvard
University Press (2003).
---------------------------------------------------------------------------
January 6th was not an isolated incident, but rather the
unfortunate consequence of powerful interests fomenting a backlash to
the 2020 elections. Those interests are determined to block the
emergence of an inclusive, multi-racial democracy by erecting barriers
to the ballot and by dismantling the non-partisan election
infrastructure. Securing and protecting the freedom to vote and the
integrity of our elections are essential to maintaining our still
nascent democracy. Congress must act swiftly to do so before our
democracy is unrecognizable, if it exists at all.
______
Statement of Trevor Potter, Founder and President, Campaign Legal
Center
April 1, 2022
Thank you for the opportunity to submit testimony before the Select
Committee to Investigate the January 6th Attack on the United States
Capitol. I am the founder and president of Campaign Legal Center (CLC),
a nonpartisan 501(c)(3) organization dedicated to advancing American
democracy through law. I am also a Republican former commissioner and
chair of the Federal Election Commission, and served as general counsel
to John McCain's 2000 and 2008 Presidential campaigns and deputy
general counsel to President George H. W. Bush's 1988 Presidential
campaign.
American democracy stands at a perilous crossroads: Will it remain
a country based on the rule of law and of truth, or fall to hidden
manipulation and deception, and will the peaceful struggle to ensure
representative self-government prevail over the fight for raw power?
This Select Committee's urgent work to investigate the sources of what
ails our political process and fueled the unprecedented attack on our
Capitol is critical to begin reinforcing America's founding democratic
ideals as a Nation of integrity and freedom.
I testify before you to emphasize the threat that persistent lies
about an allegedly ``stolen election'' present to our democratic
institutions. The fiction that the voting and counting in the 2020
election was in any form illegitimate has been thoroughly debunked in
court proceedings across the country, in experts' analyses, and by the
hardworking officials who oversaw the election. Nonetheless, the stolen
election lies have persisted, creating a dangerous ecosystem in which
contrived emergencies degrade public trust in elections, which is then
used to justify changes in policy and law that impose real harms on our
voting processes and the people who administer them.
The emerging threats to our democratic processes that I want to
address here manifest in four main categories: The increasing number of
proposed State bills and enacted laws that cynically limit eligible
voters' access to the ballot; the proliferation of ad hoc, partisan
reviews of election results; the widening of cracks in our legal
framework that can be exploited by rogue actors to usurp the electoral
power from the people; and the alarming increase of threats against
election officials and the politicization of their roles. These efforts
to cast doubt on our electoral system have led to a startling loss of
trust in the American political system that will take concerted efforts
to restore.
Although these problems are significant, I am confident they are
solvable. The public's faith in the truth and in our democracy can
overcome these difficult times. The Federal Government must help the
truth prevail by enacting and enforcing laws that shore up our
institutions and reduce the dangers imposed by the stolen election
lies.
a. stolen election lies lead to harmful voting restrictions, improper
government practices, and threats to election officials.
Traditionally, the work of CLC and other voting rights and
democracy reform organizations has emphasized combatting restrictions
on the freedom to vote and improving voting access--from registration
to the casting of ballots to the processing and tabulating stages. This
work has taken on renewed importance in the face of the dramatic
increase in State legislatures pushing bills that make it more
difficult to vote for no good reason. But the nature of our work has
also changed significantly since the post-election events that
culminated on January 6, 2021. Now, democracy advocates must confront
new hazards in the form of election sabotage and the politization of
election administration that, along with pre-election restrictions of
the franchise, can damage the integrity of the entire electoral system.
Addressing these mounting concerns is critical to advancing democracy
and protecting the freedom to vote.
In this section of my testimony, I will briefly overview the stolen
election lies that have escalated in recent years, and then will
discuss in greater detail how those falsehoods have prompted real harms
to voters, our democratic institutions, and the people who make our
electoral system work.
The election skeptics cast doubt on time-tested and widely-used
programs that enable eligible voters to safely, conveniently, and
securely exercise their freedom to vote--such as vote by mail, early
voting, and accessible drop boxes--and have encouraged new laws that
arbitrarily increase the costs of political participation. The
falsehoods have led to partisan reviews of ballots and voting systems
and have inspired new legislation that makes it easier for politicians
to discard the expressed will of their voters. Distressingly, the lies
endanger election officials with threats of violence, often forcing
hardworking nonpartisan public servants out of their jobs and rousing
highly partisan election conspiracists to try and replace them.
1. The stolen election lies are groundless and damaging.
The proximate causes of the new subversive threats to American
democracy are the widely dispersed lies that the 2020 Presidential
election was ``stolen'', and that the winner is somehow illegitimate.
Leading up to and since the 2020 election cycle, partisan actors have
promoted the false narrative that there is wide-spread voter fraud in
American elections and that their preferred candidates lose only
because the other side cheated. Propagators of this conspiracy have
used their stolen election lies to justify efforts to overturn the
results of elections, to make voting harder, and to actually corrupt
elections in the future.\1\
---------------------------------------------------------------------------
\1\ See, e.g., Nick Corasaniti & Reid J. Epstein, How Republican
States Are Expanding Their Power over Elections, N.Y. Times (June 19,
2021), https://www.nytimes.com/2021/06/19/us/politics/republican-
states.html; National Task Force on Election Crises, Undermining Free &
Fair Elections: An Update on the Risk of Election Crises Since November
2020 at 3 (July 14, 2021), https://static1.squarespace.com/static/
5e70e52c7c72720- ed714313f/t/60ecbb773b84fb5bce43c7fc/1626127223644/
Task+- Force+Progress+Report+%28July+2021%29.pdf; see also States
United Democracy Ctr., Protect Democracy, and Law Forward, Democracy
Crisis Report Update: New Data and Trends Show the Warning Signs Have
Intensified in the Last Two Months (June 10, 2021), https://
statesuniteddemocracy.org/wp-content/uploads/2021/06/Democracy-Crisis-
Part-II_June-10_Final_v7.pdf; States United Democracy Ctr., Protect
Democracy, and Law Forward, A Democracy Crisis in the Making (Apr. 22,
2021), https://s3.documentcloud.org/documents/20688594/democracy-
crisis-report-april-21.pdf.
---------------------------------------------------------------------------
For example, what started as on-line misinformation that voters in
Arizona were being ``forced to use felt-tipped Sharpie pens'' that they
wrongly believed voting machines would not count inspired the false
allegation ``that thousands of Trump votes would be thrown out in
Arizona'' and became part of a slew of election lies about the election
results there.\2\ This simple lie, quickly demonstrated by nonpartisan
election officials to be false, might have been comical if it were not
so destructive. But the falsehoods about Sharpies and ballots went on
to help generate frivolous lawsuits challenging Arizona's results,\3\
and led to armed protesters crowding outside a ballot-counting center
calling for vote-counting to stop.\4\ The election conspiracies in
Arizona further prompted prominent elected officials to submit a
falsified slate of alternative Presidential electors to Congress
contrary to the popular vote in that State, undertake a costly and
damaging partisan review of the ballots in the State's largest county,
and propose and enact changes to State election law that reduce voter
access and needlessly increase election costs and complexity.\5\
---------------------------------------------------------------------------
\2\ Official Information Regarding the Use of Sharpies in Maricopa
County, Citizens Clean Elections Comm'n, https://
www.azcleanelections.gov/election-security/sharpies (last accessed Mar.
15, 2022); Rachel Leingang &McKenzie Sadeghi, Fact check: Arizona
election departments confirm Sharpies can be used on ballots, USA Today
(Nov. 5, 2022), https://www.usatoday.com/story/news/factcheck/2020/11/
04/fact-check-sharpiegate-controversy-arizona-false-claim/6164820002/.
\3\ Jim Rutenberg, et al., 77 Days: Trump's Campaign to Subvert the
Election, N.Y. Times (Jan 31, 2021), https://www.nytimes.com/2021/01/
31/us/trump-election-lie.html.
\4\ Tony Romm, et al., Facebook Bans `STOP THE STEAL' Group Trump
Allies Were Using to Organize Protests Against Vote Counting, Wash.
Post (Nov. 5, 2020), https://www.washingtonpost.com/technology/2020/11/
05/facebook-trump-protests/.
\5\ See States United Democracy Ctr. April and June Reports, supra
note 1.
---------------------------------------------------------------------------
Other stolen election lies arose from partisans exploiting some
voters' misperception that all the eligible ballots would be processed
and counted by the end of election day, and that they could expect
final results that night. The time line for when all votes are
processed and counted is in part related to the volume of ballots that
election officials must accurately canvass. But perceived delays to the
time line are also directly related to whether State law allows
election officials to preprocess early returned ballots to be ready to
tabulate as soon as polls close.\6\ Nearly every State in the country
enables its election officials to preprocess valid ballots that are
returned before election day by, for example, simply removing the
ballot from its envelope, flattening it, and stacking it with other
ballots to be ready for tabulation after polls close.\7\ With millions
of ballots to count, this preparation time adds up; preprocessing
reduces the already significant strain on election day. States that
limit or prohibit preprocessing--including closely contested States
like Pennsylvania, Michigan, and Wisconsin--prolonged the counting
process, which stolen election lie believers exploited to sow doubt in
the election.\8\ During this time, partisans used the delays they
created in State law to promote their stolen election lies and pressure
their constituents to launch ``stop the count'' movements that sought
to distort election results by not tabulating lawful votes.\9\
---------------------------------------------------------------------------
\6\ See, e.g., Derek Tisler, et al., The Roadmap to the Official
Count in an Unprecedented Election, Brennan Ctr. for Justice (Oct. 26,
2020), https://www.brennancenter.org/our-work/research-reports/roadmap-
official-count-unprecedented-election; Edward B. Foley & Charles
Stewart III, Explaining the Blue Shift in Election Canvassing, J. of
Pol. Institutions and Pol. Economy (Mar. 1, 2020), http://dx.doi.org/
10.2139/ssrn.3547734.
\7\ See Table 16: When Absentee/Mail Ballot Processing and Counting
Can Begin, Nat'l Conf. of State Legislatures (Mar. 15, 2022), https://
www.ncsl.org/research/elections-and-campaigns/vopp-table-16-when-
absentee-mail-ballot-processing-and-counting-can-begin.aspx; Quinn
Scanlan, How battleground States process mail ballots--and why it may
mean delayed results, ABC News (Oct. 30, 2020), https://abcnews.go.com/
Politics/battleground-states-process-mail-ballots-delayed-results/
story?id=73717671.
\8\ See, e.g., Zach Montellaro, Michigan, Pennsylvania and
Wisconsin decided the 2016 election. We'll have to wait on them in
2020., Politico (Sept. 15, 2020), https://www.politico.com/news/2020/
09/15/swing-states-election-vote-count-michigan-pennsylvania-wisconsin-
414465; Miles Parks, In Swing States, Officials Struggle To Process
Ballots Early Due To Strict Local Laws, NPR (Oct. 14, 2020), https://
www.npr.org/2020/10/14/922202497/in-swing-states-laws-add-pressure-
prevent-officials-from-processing-ballots-earl.
\9\ See, e.g., Tresa Baldas, et al., Chaos erupts at TCF Center as
Republican vote challengers cry foul in Detroit, Detroit Free Press
(Nov. 4, 2020), https://www.freep.com/story/news/politics/elections/
2020/11/04/tcf-center-challengers-detroit-michigan/6164715002/; Jim
Rutenberg et al., supra note 5.
---------------------------------------------------------------------------
The pressure campaign for partisans to subscribe to the stolen
election lies has made the issue a National political litmus test for
candidates across the country. During the height of the over 60
frivolous litigation contests challenging the 2020 results, former
President Trump undertook an unrelenting attack on the election by
using his bully pulpit to publicly incite his supporters and to
privately seek to coerce Federal and State officials to throw out the
popular election.\10\ The lies spread on-line and on partisan media
outlets, which were then promoted by hundreds of elected lawmakers who
breached the public trust by magnifying the reach of these
falsehoods.\11\ The rising threat of political violence from these lies
prompted the incumbent National security and Federal law enforcement
apparatus to reassure the public that the 2020 election was ``the most
secure in American history'' with ``no evidence that any voting system
deleted or lost votes, changed votes, or was in any way
compromised''\12\ and no serious evidence of voter fraud.\13\ But the
mistrust already sown meant many ``true believers'' believed these
statements too were false. Since then, even some prominent proponents
of the stolen election lies have admitted as a defense in court that
``[n]o reasonable person would conclude that the statements
[challenging the 2020 election] were truly statements of fact.''\14\
Nonetheless, the lies have continued, and are still believed by many.
---------------------------------------------------------------------------
\10\ Karen Yourish & Larry Buchanan, Since Election Day, a Lot of
Tweeting and Not Much Else for Trump, N.Y. Times, Nov. 24, 2020,
https://www.nytimes.com/interactive/2020/11/24/us/politics/trump-
twitter-tweets-election-results.html (``In total, the president
attacked the legitimacy of the election more than 400 times since
Election Day, though his claims of fraud have been widely debunked'');
Anita Kumar & Gabby Orr, Inside Trump's Pressure Campaign to Overturn
the Election, Politico (Dec. 21, 2020), www.politico.com/news/2020/12/
21/trump-pressure-campaign-overturn-election-449486 (``In total, the
President talked to at least 31 Republicans, encompassing mostly local
and State officials from four critical battleground States he lost--
Michigan, Arizona, Georgia, and Pennsylvania. The contacts included at
least 12 personal phone calls to 11 individuals, and at least 4 White
House meetings with 20 Republican State lawmakers, party leaders, and
attorneys general, all people he hoped to win over to his side. Trump
also spoke by phone about his efforts with numerous House Republicans
and at least 3 current or incoming Senate Republicans.'').
\11\ Jacobs Technion-Cornell Institute, VoterFraud2020 Twitter
Database, https://voterfraud2020.io/ (last visited Mar. 21, 2022);
Justin Hendrix, The Big Lie Is a Reality, Just Security (Feb. 23,
2022),https://www.justsecurity.org/80324/the-big-lie-is-a-reality/;
Representative Zoe Lofgren, Social Media Review(Jan. 31, 2021), https:/
/housedocs.house.gov/lofgren/SocialMediaReview8.pdf.
\12\ Cybersecurity and Infrastructure Security Agency, Joint
Statement From Elections Infrastructure Government Coordinating Council
& The Election Infrastructure Sector Coordinating Executive Committees
(Nov. 12, 2020), https://www.cisa.gov/news/2020/11/12/joint-statement-
elections-infrastructure-government-coordinating-council-election.
\13\ Adam Goldman & Zolan Kanno-Youngs, F.B.I. Director Sees No
Evidence of National Mail Voting Fraud Effort, N.Y. Times (Sept. 24,
2020), https://www.nytimes.com/2020/09/24/us/politics/fbi-director-
voter-fraud.html (quoting FBI director Christopher Wray); Michael
Balsamo, Disputing Trump, Barr says no widespread election fraud,
Associated Press (Dec. 1, 2020), https://apnews.com/article/barr-no-
widespread-election-fraud-b1f1488796c9a98c4b1a9061a6c7f49d (quoting
former Attorney General Bill Barr).
\14\ Jane C. Timm, Sidney Powell's legal defense: `Reasonable
people' wouldn't believe her election fraud claims, NBC News (Mar. 23,
2021), https://www.nbcnews.com/politics/donald-trump/sidney-powell-s-
legal-defense-reasonable-people-wouldn-t-believe-n1261809 (citing
Sidney Powell legal filing in a subsequent defamation case).
---------------------------------------------------------------------------
Our democratic institutions bent but ultimately held firm under the
strain of the post-2020 election chaos that culminated with the January
6 attack on the Capitol and challenges to the electors. But the damage
done, and the weaknesses exploited during that time, have laid the
groundwork for future attacks against and within our electoral system.
The former President has kept the stolen election lies narrative at the
forefront,\15\ and made a candidate's willingness to accept those
falsehoods a salient political criterion in party politics.\16\ The
fabricated stolen election efforts have shifted political dynamics
across the country, with one recent analysis finding that ``163
Republicans who have embraced Trump's false claims are running for
State-wide positions that would give them authority over the
administration of elections.''\17\ And numerous losing candidates for
public office since the 2020 election have already harnessed the stolen
election lies to cast doubt on their losses and the legitimacy of their
opponents, no matter the margin of victory.\18\
---------------------------------------------------------------------------
\15\ See, e.g., Melissa Block, The clear and present danger of
Trump's enduring `Big Lie', NPR (Dec. 23, 2021), https://www.npr.org/
2021/12/23/1065277246/trump-big-lie-jan-6-election; Josh Dawsey, Trump
muses on war with Russia and praises Kim Jong Un, Wash. Post (Mar. 6,
2022), https://www.washingtonpost.com/nation/2022/03/06/trump-focuses-
foreign-policy-speech-gops-top-donors/.
\16\ Calvin Woodward, Trump's `Big Lie' imperils Republicans who
don't embrace it, Associated Press (May 9, 2021), https://apnews.com/
article/michael-pence-donald-trump-election-2020-government-and-
politics-0c07947f9fd2b9911b3006f0fc128ffd.
\17\ Ashley Parker, et al., How Republicans became the party of
Trump's election lie after Jan. 6, Wash. Post (Jan. 5, 2022), https://
www.washingtonpost.com/politics/republicans-jan-6-election-lie/2022/01/
05/82f4cad4-6cb6-11ec-974b-d1c6de8b26b0_story.html.
\18\ Numerous losing candidates have refused to concede because of
trumped-up lies about voting fraud. For example, upon losing to
Congresswoman Karen Bass of California, challenger Errol Webber echoed
President Trump's rhetoric, tweeting, ``I will NOT concede. Every LEGAL
vote needs to be counted!'' In Maryland, candidate Kimberly Klacik cast
doubt on the validity of mail-in votes, writing, ``I beat my opponent
on day of & in-person early voting, along with absentee. However, 97k
mail-in ballots were found in his favor?'' See Teo Armus, Echoing
Trump, Congressional Candidates Refuse to Concede, Make Unproven Fraud
Claims, Wash. Post (Nov. 10, 2020), https://www.washingtonpost.com/
nation/2020/11/10/congress-trump-election-fraud-claim/; see also John
L. Dorman, A Florida Republican who was defeated by 59 percentage
points in a Congressional special election won't concede, Business
Insider (Jan. 16, 2022), https://www.businessinsider.com/florida-
republican-mariner-wont-concede-cherfilus-mccormick-house-race-
landslide-2022-1.
---------------------------------------------------------------------------
These stolen election lies cast a dangerous shadow extending well
beyond 2020. Proponents of the lies continue to interrogate election
officials and demand they prove a negative--that no distortions
affected the elections--as a justification to continue repeating
falsehoods about the voting system indefinitely.\19\ Researchers
studying misinformation predict that such manipulations of the truth
and the public trust will continue on ``for years or even
decades.''\20\
---------------------------------------------------------------------------
\19\ Jane Mayer, The Big Money Behind the Big Lie, The New Yorker
(Aug. 2, 2021), https://www.newyorker.com/magazine/2021/08/09/the-big-
money-behind-the-big-lie.
\20\ Brian Fung & Rishi Iyengar, Misinformation Channels Claim
Biden Is No Longer President-elect. That's Not True., CNN (Nov. 11,
2020), https://www.cnn.com/2020/11/10/tech/biden-lost-pennsylvania-
fact-check/index.html.
---------------------------------------------------------------------------
2. The election falsehoods encourage laws that limit voter access.
Even before the post-election chaos of 2020, early proponents of
stolen election lies derided States that sought to make access to
voting easier--during an unprecedented global pandemic--so their
citizens could safely make their voices heard without putting their
health in jeopardy.\21\ The focus of the attack became voting by mail,
where eligible registered voters receive a mailed ballot to their home
and can return their voted ballot before election day, often by return
mail or by dropping it off at a designated location.\22\ This type of
voting has been available for years in a range of States, with
Colorado, Hawaii, Oregon, Washington, and Utah adopting a comprehensive
vote by mail system before 2020 but still providing their citizens with
alternative opportunities to vote in-person on election day.\23\
---------------------------------------------------------------------------
\21\ See, e.g., Miles Parks, Ignoring FBI And Fellow Republicans,
Trump Continues Assault On Mail-In Voting, NPR (Aug. 28, 2020), https:/
/www.npr.org/2020/08/28/906676695/ignoring-fbi-and-fellow-republicans-
trump-continues-assault-on-mail-in-voting.
\22\ See, e.g., Kimberly Hall, Vote-By-Mail and Absentee Voting--
Secure Alternatives to Cast Your Ballot in 2020, Campaign Legal Ctr.
(Aug. 27, 2020), https://campaignlegal.org/update/vote-mail-and-
absentee-voting-secure-alternatives-cast-your-ballot-2020.
\23\ Since 2020, three other States--California, Nevada, and
Vermont--have also moved to a comprehensive vote-by-mail system. See
Table 18: States With All-Mail Elections, Nat'l Conf. of State
Legislatures (Feb. 3, 2022), https://www.ncsl.org/research/elections-
and-campaigns/vopp-table-18-states-with-all-mail-elections.aspx.
---------------------------------------------------------------------------
Despite the successful practices in these States, numerous studies
showing vote by mail is safe and secure, and even many stolen election
proponents themselves using that method to cast their own ballot,
falsehoods about vote by mail took off in 2020.\24\ The lies were
deliberate and carefully planned, operating to convince a segment of
voters that there would be two elections, one legitimate and comprised
only of in-person, election-day voting, and a separate, fraudulent
election where vote-by-mail ballots were frauds and favored one
political party.\25\ This highly effective and pernicious
disinformation campaign against expanded voting access spread across
the American political media ecosystem to mislead Americans that vote
by mail is somehow unreliable or manipulable.\26\
---------------------------------------------------------------------------
\24\ Tim Alberta, A Journey Into the Heart of America's Voting
Paranoia, Politico Magazine (Oct. 30, 2020), https://www.politico.com/
news/magazine/2020/10/30/voting-mail-election-2020-paranoia-433356.
\25\ Jonathan Swan & Zachary Basu, A premeditated lie lit the fire,
Axios (Jan. 16, 2021), https://www.axios.com/trump-election-
premeditated-lie-ebaf4a1f-46bf-4c37-ba0d-3ed5536ef537.html?deepdive=1.
\26\ Yochai Benkler, et al., Mail-In Voter Fraud: Anatomy of a
Disinformation Campaign, Harvard Berkman Klein Ctr. (Oct. 1, 2020),
https://cyber.harvard.edu/publication/2020/Mail-in-Voter-Fraud-
Disinformation-2020.
---------------------------------------------------------------------------
In reality, our elections are quite secure, and the actual
occurrence of voter fraud is vanishingly rare.\27\ The many successes
in the administration of the 2020 election and low occurrence of
irregularities, even under strained pandemic conditions, only further
proves the point.\28\
---------------------------------------------------------------------------
\27\ See, e.g., Elaine Kamarck and Christine Stenglein, Low Rates
of Fraud in Vote-By-Mail States Show the Benefits Outweigh the Risks,
The Brookings Institution (June 2, 2020), https://brook.gs/3ct24tJ
(analyzing elections in universal vote-by-mail States--Colorado,
Hawaii, Oregon, Utah, and Washington--and discrediting fraud concerns);
Wendy R. Weiser, The False Narrative of Vote-by-Mail Fraud Brennan Ctr.
for Justice (Apr. 10, 2020), www.brennancenter.org/our-work/analysis-
opinion/false-narrative-vote-mail-fraud (studying voter datasets and
concluding it is ``more likely for an American to be struck by
lightning than to commit mail voting fraud''); Richard L. Hasen,
Election Meltdown 128 (2020) (summarizing that ``[t]he issue of
organized voter fraud has now been put to the test in courts and in
social science'' and amounts to no more than ``a sham perpetuated by
people who should know better, advanced for political advantage'').
\28\ Nick Corasaniti, et al., The Times Called Officials in Every
State: No Evidence of Voter Fraud, N.Y. Times (Nov. 6, 2021), https://
www.nytimes.com/2020/11/10/us/politics/voting-fraud.html; Christina A.
Cassidy, Far too little vote fraud to tip election to Trump, AP finds,
Associated Press (Dec. 14, 2021), https://apnews.com/article/voter-
fraud-election-2020-joe-biden-donald-trump-
7fcb6f134e528fee8237c7601db3328f; Jane Mayer, supra note 19 (stating,
for example, that ``data on Arizona, the putative center of the storm,
is not exactly alarming: of the millions of votes cast in the State
from 2016 to 2020, only nine individuals were convicted of fraud. Each
instance involved someone casting a duplicate ballot in another State.
There were no recorded cases of identity fraud, ballot stuffing, voting
by non-citizens, or other nefarious schemes. The numbers confirm that
there is some voter fraud, or at least confusion, but not remotely
enough to affect election outcomes'').
---------------------------------------------------------------------------
But the stolen election lies that attacked the innovations ensuring
voting was safe and convenient in 2020--and producing record-breaking
high turnout for voters of all political persuasions \29\--have
continued and materialized in harmful changes in State laws. As
Benjamin Ginsberg, a prominent Republican election lawyer, summarized,
partisans who support the stolen election lies are ``conjuring up
charges of fraud to erect barriers to voting for people [the Republican
party] fears won't support its candidates.''\30\ The falsehoods have
inspired a well-funded national movement that exploits the stolen
election lies and baseless claims of fraud to make voting needlessly
harder; it undermines the basic democratic guarantee that all eligible
voters must be empowered to vote and have that vote counted.\31\
---------------------------------------------------------------------------
\29\ Drew DeSilver, Turnout soared in 2020 as nearly two-thirds of
eligible U.S. voters cast ballots for president, Pew Research Ctr.
(Jan. 28, 2021), https://www.pewresearch.org/fact-tank/2021/01/28/
turnout-soared-in-2020-as-nearly-two-thirds-of-eligible-u-s-voters-
cast-ballots-for-president/ (collecting turnout sources).
\30\ Jeremy W. Peters, In Restricting Early Voting, the Right Sees
a New `Center of Gravity', N.Y. Times (Mar. 24, 2021), https://
www.nytimes.com/2021/03/19/us/politics/republicans-trump-voting-
rights.html/.
\31\ Jane Mayer, supra note 19.
---------------------------------------------------------------------------
At the end of the 2021 State legislative sessions, States across
the country had enacted a record-shattering number of new voting
restrictions that often derived from the stolen election lies. In
total, State legislators proposed 581 new bills that experts say would
have made voting more difficult.\32\ Lawmakers in 21 States enacted
into law 52 of those proposed bills--many of which were omnibus bills
containing dozens of new restrictions--to make voting more
difficult.\33\ This steep increase in new anti-voter laws far exceeded
the previous high-water mark set with the 19 total voting restrictions
enacted in 2011.\34\
---------------------------------------------------------------------------
\32\ These totals from the 2021 legislative sessions are derived
from trackers at the Brennan Center for Justice, the Voting Rights Lab,
and FiveThirtyEight. See, e.g., Voting Rights Lab, Comprehensive Bill
Search, https://tracker.votingrightslab.org/pending/search (last
accessed Mar. 23, 2022); Kaleigh Rogers, The Big Lie's Long Shadow,
FiveThirtyEight (Jan. 12, 2022), https://fivethirtyeight.com/features/
the-big-lie-voting-laws/; Nathaniel Rakich & Elena Mejia, Texas's New
Law Is The Climax Of A Record-Shattering Year For Voting Restrictions,
FiveThirtyEight (Sept. 8, 2021), https://fivethirtyeight.com/features/
texass-new-law-is-the-climax-of-a-record-shattering-year-for-voting-
restrictions/; Voting Laws Roundup: December 2021, Brennan Ctr. for
Justice (Jan. 12, 2022), https://www.brennancenter.org/our-work/
research-reports/voting-laws-roundup-december-2021.
\33\ See sources cited supra note 32.
\34\ Wendy R. Weiser & Lawrence Norden, Voting Law Changes in 2012,
Brennan Ctr. for Justice (Oct. 3, 2011), https://www.brennancenter.org/
our-work/research-reports/voting-law-changes-2012/.
---------------------------------------------------------------------------
Recent laws enacted in Texas and Georgia provide two of the most
glaring examples. In those States, lawmakers hastily pushed through two
broad election law measures--known as Georgia S.B. 202 and Texas S.B.
1--that dramatically changed the States' voting processes to make
access to the ballot more difficult overall. The legislatures in both
States did so by engaging in procedural maneuvering that limited public
input, relying on politically-motivated outside organizations to draft
numerous provisions, and at times admitting that the changes were to
serve a political calculation rather than bolster a fair voting
process.\35\
---------------------------------------------------------------------------
\35\ See Exclusive: Documented Obtains Recording of 3 Hour Long
Voter Suppression Strategy Session Hosted by ALEC, Documented (Dec. 6,
2021), https://documented.net/investigations/exclusive-documented-
obtains-recording-of-3-hour-long-voter-suppression-strategy-session-
hosted-by-alec; Aris Folley, Georgia's GOP House Speaker says vote-by-
mail system would be `devastating to Republicans', The Hill (Apr. 4,
2020), https://thehill.com/homenews/state-watch/490879-georgias-gop-
house-speaker-says-vote-by-mail-system-would-be-devastating; Stephen
Fowler and David Armstrong, 16 Years Later, Georgia Lawmakers Flip
Views On Absentee Voting, Georgia Public Broadcasting (Mar. 7, 2021),
https://www.gpb.org/news/2021/03/07/16-years-later-georgia-lawmakers-
flip-views-on-absentee-voting.
---------------------------------------------------------------------------
Among other restrictions, both laws reduce the applicable time
periods to request a mail-in ballot, and then add confusing
requirements for voters submitting a vote by mail ballot or an
application for a ballot to provide additional information that does
not correlate with voting eligibility and disrupts voters' settled
expectations. So far, the results of the two new laws are that fewer
eligible voters, and in particular voters of color, are able to
participate in the political process. In Texas this year, provisions of
S.B. 1 resulted in election officials disqualifying vote-by-mail
ballots at abnormally high rates during the State's 2022 primary.\36\
Roughly 13% of all submitted vote-by-mail ballots were discarded as a
direct result of the new restrictive legal requirements, while experts
say that any rejection rate above 2% is cause for concern in a typical
election.\37\ The result was that 22,898 likely eligible voters in
Texas did not have their ballots counted during the primary because of
new hurdles S.B. 1 put in place.\38\ In Georgia, S.B. 202's changed
requirements also led to election officials rejecting 4% of mail-in
ballot request forms--up from fewer that 1% before the new law's
restrictions were enacted. In a State like Georgia, where the margin of
victory is often narrow, such a high number of voter rejections could
make the difference in close elections.
---------------------------------------------------------------------------
\36\ Paul J. Weber & Acacia Coronado, Texas mail ballot rejections
soar under new restrictions, Associated Press (Mar. 16, 2022), https://
apnews.com/article/2022-midterm-elections-elections-texas-voting-only-
on-ap-45ba51fe9dd951a0f82015bd6bd9ff41.
\37\ Id.
\38\ Id.
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Texas' and Georgia's new restrictions are unfortunately not
outliers. Florida in 2021 similarly enacted an omnibus restrictive
voting law, S.B. 90, that also increased the costs of voting by mail
and risks heightened rejections of eligible voters as in Georgia and
Texas.\39\ Arizona, among several other restrictive laws, enacted H.B.
1485 \40\ that made the State's permanent early voting list no longer
permanent because declining to vote would trigger eligible voters being
kicked off the list.\41\ Montana enacted numerous new laws--H.B. 176,
H.B. 506, and S.B. 169--that in effect make it harder for students and
Native voters to participate in the political process.\42\ And Iowa
enacted S.F. 413, which makes voting more burdensome at nearly every
stage of the process by significantly shortening available voting hours
and opportunities.\43\ All of these bills and others have drawn costly
litigation, requiring taxpayers to expend huge sums to defend laws that
make it harder for them to vote, and are based on lies about elections
rather than any empirical need to disrupt the valid ballot security
measures already in place.\44\
---------------------------------------------------------------------------
\39\ Lawrence Mower, Florida Senate passes law calling for new
elections security office under DeSantis control, Miami Herald (Mar. 6,
2022), https://www.miamiherald.com/news/politics-government/state-
politics/article259083293.html.
\40\ H.B. 1485, 55th Leg., 1st Reg. Sess. (Ariz. 2021).
\41\ Ben Giles, Arizona Republicans Enact Sweeping Changes To
State's Early Voting List, NPR (May 11, 2021), https://www.npr.org/
2021/05/11/995998370/arizona-republicans-enact-sweeping-changes-to-
states-early-voting-list.
\42\ Iris Samuels, Lawsuit argues new Montana law suppresses
student vote, Associated Press (Oct. 12, 2021), https://apnews.com/
article/congress-university-of-montana-montana-helena-voter-
registration-1e8774b19ba6faaa2165a96cf9e4e89e; Kevin Trevellyan,
Advocates Fear Montana's New Ballot Law Could Harm Voters Who Struggle
To Be Heard, NPR (May 25, 2021), https://www.npr.org/2021/05/25/
999904063/advocates-fear-montanas-new-ballot-law-could-harm-voters-who-
struggle-to-be-hear.
\43\ Stephen Gruber-Miller, Gov. Kim Reynolds signs law shortening
Iowa's early and Election Day voting, Des Moines Reg. (Mar. 9, 2021),
https://www.desmoinesregister.com/story/news/politics/2021/03/08/iowa-
governor-kim-reynolds-signs-law-shortening-early-voting-closing-polls-
earlier-election-day/6869317002/.
\44\ See, e.g., Voting Rights Litigation Tracker, Brennan Ctr. for
Justice (Mar. 22, 2022), https://www.brennancenter.org/our-work/
research-reports/voting-rights-litigation-tracker.
---------------------------------------------------------------------------
The harmful results of the 2021 legislative session are far from
the last word about what the stolen election lies have done to reshape
voting in America. This year, in 2022, State legislatures across the
country are back to work building on the election falsehoods to
continue making voting harder for their citizens. As of March 2022,
numerous proposed bills that are even more extreme that those presented
in 2021 are making their way through States' legislatures.\45\
---------------------------------------------------------------------------
\45\ See e.g., Voting Laws Roundup: February 2022, Brennan Ctr. for
Justice (Feb. 9, 2022), https://www.brennancenter.org/our-work/
research-reports/voting-laws-roundup-february-2022.
---------------------------------------------------------------------------
For example, Arizona legislators have rushed to introduce over a
hundred election bills that would politicize the State's election
administration processes and propose substantial cutbacks to voting
options that have historically eased the burdens on Arizona voters.\46\
One of the most egregious proposals that Arizona recently enacted into
law, H.B. 2492, adds significant new voter registration and voter
eligibility requirements that proponents knowingly enacted to violate
Federal law.\47\ Among other extreme provisions, H.B. 2492 feeds off
the stolen election lies by demanding that all voters provide costly
and at times inaccessible documentary proof of U.S. citizenship and
proof of current residence to be eligible to vote; conditioning ability
to register on whether a voter submits a State registration form or
Federal registration form; targeting naturalized U.S. citizens by
mandating registrants disclose their place of birth, even though that
is immaterial to eligibility; requiring State officials to check voters
against inaccurate and stale databases to initiate purging them from
the registration rolls, and then subjecting them to potential criminal
prosecution; and prohibiting an entire class of eligible registered
voters from using vote-by-mail opportunities and voting in Presidential
elections at all.\48\
---------------------------------------------------------------------------
\46\ Kirk Siegler & Liz Baker, Arizona Republicans continue pushing
voting restrictions, risking backfire, NPR (Mar. 4, 2022), https://
www.npr.org/2022/03/04/1083501487/arizona-republicans-continue-pushing-
voting-restrictions-risking-backfire.
\47\ H.B. 2492, 56th Leg., 1st Reg. Sess. (Ariz. 2022).
\48\ Ray Stern, Arizona requires proof of citizenship for voters,
under bill signed by Gov. Ducey, Arizona Republic (Mar. 29, 2022),
https://www.azcentral.com/story/news/politics/elections/2022/03/30/
proof-citizenship-bill-arizona-voters-signed-gov-ducey/7221503001/;
Katya Schwenk, `Extreme' Arizona Elections Bills Inching Closer to Law,
Phoenix New Times (March 30, 2022), https://www.phoenixnewtimes.com/
news/extreme-arizona-elections-bills-inching-closer-to-law-13323436;
Ray Stern, Would proof-of-citizenship bill really purge 200K voters?
Answers mixed, Arizona Republic (Mar. 29, 2022), https://
www.azcentral.com/story/news/politics/legislature/2022/03/29/arizona-
bill-proof-citizenship-voters-legal-issues/7188177001/.
---------------------------------------------------------------------------
Additionally, a law that recently passed in Florida, S.B. 254,
creates a new election crimes ``police force''--a measure local
election officials deemed a ``recipe for disaster'' that seeks to
placate stolen election lie proponents and invites the harassment of
eligible voters.\49\ Georgia lawmakers have taken similar steps to
advance H.B. 1464, which would, along with other disruptive election
law changes, also create a broad-mandated election investigation task
force that nonpartisan election officials oppose.\50\ And Idaho
legislators have pushed two bills, H.B. 692 and H.B. 693, that reduce
voting opportunities and that proponents have explicitly tied to their
2020 stolen election lies.\51\ These are among many other examples of
State lawmakers continuing to make policy decisions based on myths
about the 2020 Presidential results, and currying political favor with
the proponents of those falsehoods.
---------------------------------------------------------------------------
\49\ Gary Fineout, Legislature gives DeSantis new election police
to target voter fraud in Florida, Politico (Mar. 10, 2022), https://
www.politico.com/news/2022/03/10/desantis-gets-florida-election-police-
00015926.
\50\ See, e.g., Jeff Amy, Georgia Republicans seek further changes
to election laws, Associated Press (Mar. 16, 2022), https://apnews.com/
article/2022-midterm-elections-voting-donald-trump-elections-atlanta-
c6484e2653e93bb8885b6273f65c1cab; Maya King & Nick Corasaniti, Local
Election Officials in Georgia Oppose G.O.P. Election Bill, N.Y. Times
(Mar. 28, 2022), https://www.nytimes.com/2022/03/28/us/politics/
georgia-election-bill.html.
\51\ Clark Corbin, Idaho legislative committee advances to bills
making last-minute voting changes, Idaho Capital Sun (Mar. 2, 2022),
https://idahocapitalsun.com/2022/03/02/idaho-legislative-committee-
advances-to-bills-making-last-minute-voting-changes/.
---------------------------------------------------------------------------
Moreover, some key States have continued their unwillingness to
make positive changes in State election law that would give voters
greater faith in our elections. Most notable are Pennsylvania,
Michigan, and Wisconsin, which, as described above, have continued
their refusal to implement adequate procedures for election officials
to preprocess early received ballots to lessen the overwhelming work on
election day, enable quicker results, and reduce the ability of
election conspiracists to sow doubt during the post-election day
period. Pennsylvania failed to enact legislation that would give
election officials more time to process vote-by-mail ballots.\52\
Wisconsin lawmakers have likewise declined to take up a proposal that
would allow preprocessing and ease election day burdens.\53\ Michigan
officials changed the law in late 2020 to permit some larger cities to
open ballot envelopes 1 day before election day, but this slight change
was inadequate to allow for proper preprocessing.\54\ Following the
2020 election, some Michigan lawmakers wanted to go the opposite
direction and make ballot counting even more difficult. Instead of
allowing election officials added time to preprocess ballots, the
lawmakers introduced a bill that would have mandated vote-counting stop
the day after election day, regardless of whether all ballots were
counted.\55\ States failing to make necessary and noncontroversial
changes to avoid prolonged vote counting risks repeating the same
mistakes of the 2020 election that gave room for the stolen election
lies to develop.
---------------------------------------------------------------------------
\52\ Stephen Caruso, Little has changed for Pennsylvania election
officials, voters heading into 2022, Pennsylvania Capital-Star (Mar.
18, 2022), https://www.penncapital-star.com/civil-rights-social-
justice/little-has-changed-for-pennsylvania-election-officials-voters-
heading-into-2022/.
\53\ See Shawn Johnson, Wisconsin bill to allow for early canvass
of absentee ballots likely dead, Wisc. Public Radio (Mar. 8, 2022),
https://www.wpr.org/wisconsin-bill-allow-early-canvass-absentee-
ballots-likely dead.
\54\ Jonathan Oosting, Clerks: Michigan needs practical election
reforms, not partisan posturing, Bridge Michigan (Mar. 1, 2022),
https://www.bridgemi.com/michigan-government/clerks-michigan-needs-
practical-election-reforms-not-partisan-posturing.
\55\ See S.B. 299, 100th Leg., 1st Reg. Sess. (Mich. 2021).
---------------------------------------------------------------------------
The choices undertaken by legislators to give credence to stolen
election lies by undermining our voting system are deeply misguided.
Alternatively, bipartisan groups of lawmakers in some States have
rightly taken the lesson of the 2020 election to be that expansions to
voter access help all voters and do not benefit one political party
over another. Kentucky is an example of productive, bipartisan
lawmaking to make voting easier without compromising election security.
The State recently enacted legislation to increase voting options and
election security (at least as compared to pre-pandemic elections),
including an expansion of early voting, an on-line portal for
requesting a mail-in ballot, and a gradual transition to voting systems
that guarantee a paper ballot trail.\56\ Likewise, Utah's legislature
rejected a proposed bill that would have eliminated Utah's
comprehensive vote-by-mail system, H.B. 371, because a bipartisan group
of lawmakers spurned the baseless claims of fraud and understood that
expansions to voting help all citizens.\57\ Indeed, in Virginia, which
has in recent years enacted many reliable expansions that improve
voting access, saw historic high voter turnout in the election of a
Republican Governor, further disproving the notion that letting more
people vote redounds to the advantage of one political party.\58\
---------------------------------------------------------------------------
\56\ Bruce Schreiner, Kentucky Governor Signs Bipartisan Early
Voting Measure, Associated Press (Apr. 7, 2021), https://
www.usnews.com/news/politics/articles/2021-04-07/kentucky-governor-
signs-bipartisan-early-voting-measure.
\57\ Bryan Schott, Utah House committee rejects baseless claims of
election fraud; soundly defeats bill to end universal vote by mail,
Salt Lake Trib. (Feb. 23, 2022), https://www.sltrib.com/news/politics/
2022/02/23/utah-house-committee/.
\58\ Reid J. Epstein, The Democratic Turnout Myth Unravels, N.Y.
Times (Nov. 6, 2021), https://www.nytimes.com/2021/11/04/us/politics/
democrats-turnout-virginia.html.
---------------------------------------------------------------------------
The last 2 years of States' efforts to make significant cutbacks to
the freedom to vote show that groundless stolen election myths are
resulting in real-world consequences at voters' expense. Falsely
asserting that voting by mail is somehow illegitimate (while often
using that mechanism oneself) or that expanding times to vote somehow
increases the risk of corruption is not empty rhetoric. Voters carry
the burdens of these lies, and in the end they result in bad policy
that makes the costs of participating in our democratic process higher
for no valid reason.
3. The election falsehoods encourage partisan ballot reviews and
partisan election takeovers that undermine the integrity of the
voting system.
The stolen election lies have also led to problematic new laws and
practices that hyper-politicize the administration of elections and
reviews of their results. This falls into two main categories: The
inception of partisan sham audits that question lawfully certified
results, and the attempted partisan usurpation of authority over
elections administration that shifts control from designated election
officials to political actors. These transformations that arise from
the stolen election lies pose a tremendous threat to the proper
functioning of, and the people's trust in, our voting system.
i. Post-election partisan sham ``audits'' diminish trust in
elections.
True post-election audits, in which a subset of the ballots cast in
each county are hand-counted to verify the accuracy of the initial
reported results, are standard practice in many States across the
county.\59\ But following the 2020 election, partisan actors in certain
States sought to vindicate their falsehoods by undertaking unreliable
post-certification reviews of the final results. Unlike standard post-
election audits--which include numerous safeguards to ensure
reliability and transparency, and which serve a valuable role in our
democracy--these ad hoc partisan investigations employ unqualified
third parties using unreliable techniques to go on fishing expeditions
for political fodder. Such sham investigations that build off the
stolen election lies threaten to undermine confidence in our election
systems.
---------------------------------------------------------------------------
\59\ See Post-Election Audits, Nat'l Conf. of State Legislatures
(Oct. 25, 2019), https://www.ncsl.org/research/elections-and-campaigns/
post-election-audits635926066.aspx.
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The most infamous of these efforts, in Maricopa County, Arizona,
illustrates the deficiencies and dangers of post-election partisan
reviews that operate outside the typical audit framework. Roughly
10,000 votes separated the winner and loser in Arizona's Presidential
election results in 2020.\60\ A standard post-election audit conducted
by a bipartisan group of election officials under State law found no
irregularities.\61\ But dissatisfied with this outcome, and under
pressure from supporters of the stolen election lies, Arizona's State
senate leadership authorized a so-called ``forensic audit'' of the
results only in Maricopa County--Arizona's largest and most diverse
county.\62\ The legislature demanded--on threat of criminal
prosecution--that Maricopa County officials turn over voter equipment
and millions of ballots to a contractor called Cyber Ninjas that had no
relevant experience in election work, dubious fundraising sources,
unambiguous partisan and financial incentives, and volunteer staff
comprised of aggrieved supporters of the losing Presidential
candidate.\63\
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\60\ See Arizona Election Results, State of Ariz., https://
results.arizona.vote/#/featured/18/0 (last visited Mar. 19, 2022).
\61\ See Jonathan Bydlak, et al., Brennan Ctr. for Justice,
Partisan Election Review Efforts in Five States 3-4 (July 8, 2021),
https://www.brennancenter.org/sites/default/files/2021-07/
Partisan%20Election%20Review%20-
Efforts%20Across%20the%20United%20States%20in%202021%20%2007.08.21.pdf.
\62\ See Jonathan Bydlak, et al., supra note 62, at 5-6; Bob
Christie, Arizona Senate Releases More Records of 2020 Election Review,
Associated Press (Sept. 1, 2021), https://apnews.com/article/elections-
senate-elections-election-recounts-87a4805f495f9d4cfddf5827429ab105.
\63\ See, e.g., Trey Grayson and Barry C. Burden, Report on the
Cyber Ninjas Review of the 2020 Presidential and U.S. Senatorial
Elections in Maricopa County, Arizona, States United Democracy Ctr.
(June 22, 2021); StephenRicher, The Madness of the Maricopa County
Election Audit, National Review (May 27, 2021), https://
www.nationalreview.com/2021/05/the-madness-of-the-maricopa-county-
election-audit/; Dan Zak, The Mess in Maricopa, Washington Post (May
21, 2021), https://www.washingtonpost.com/lifestyle/2021/05/21/arizona-
election-audit-trump-maricopa/.
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The unprofessional and partisan Cyber Ninjas process ultimately
confirmed that the announced winner of Arizona's Presidential election
did in fact receive the most votes. But it nevertheless raised several
baseless claims about the security of Arizona's elections,\64\ which
has provided a pretext for Arizona lawmakers to foment skepticism of
the results and propose changes in Arizona law that would make voting
access harder and election administration more partisan.\65\ Despite
Maricopa County publishing an exhaustive report thoroughly debunking
the conspiracies promoted in the Cyber Ninjas report, polls show that
the damage to Arizonans' faith in the integrity of the State's
elections was already done just by having the sham review at all.\66\
Only 36% of those polled believe that the Cyber Ninjas review proved
the fair winner in Maricopa County, and a majority of Republicans still
rejected that topline finding, choosing to believe instead that the
process found significant fraud to further validate the stolen election
lies.\67\ The tangible costs go even further, with the Cyber Ninjas
process now running up a $4 million bill to taxpayers to replace
compromised election equipment and address numerous legal disputes.\68\
---------------------------------------------------------------------------
\64\ Ben Giles, The Discredited GOP Election Review in Arizona's
Largest County Also Finds Biden Won, NPR (Sept. 24, 2021), https://
www.npr.org/2021/09/24/1040327483/the-controversial-election-review-in-
arizona-confirms-bidens-win.
\65\ Miles Parks, Experts Call It a `Clown Show' but Arizona
`Audit' Is a Disinformation Blueprint, NPR (June 3, 2021), https://
www.npr.org/2021/06/03/1000954549/experts-call-it-a-clown-show-but-
arizona-audit-is-a-disinformation-blueprint.
\66\ See Maricopa County Elections Department, Correcting the
Record (Jan. 2022), https://recorder.maricopa.gov/justthefacts/pdf/
Correcting%20The%20Record%20- %20January%202022%20Report.pdf.
\67\ Erin Snodgrass, The much-maligned Arizona election audit
reinforced doubt about the 2020 election results, according to a new
poll, Business Insider (Nov. 15, 2021), https://
www.businessinsider.com/arizona-election-audit-reinforced-doubt-about-
2020-election-results-2021-11.
\68\ Mary Jo Pitzl, How the price tag of the Arizona Senate's
review of the 2020 election grew from $150K to more than $4M, Arizona
Republic (Feb. 23, 2022), https://www.azcentral.com/story/news/
politics/arizona/2022/02/23/arizona-audit-cost-to-taxpayers-for-2020-
election-review-tops-4-million/6829459001/.
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Unfortunately, Arizona's error-prone, costly, and partisan-
motivated ``investigation'' has not been an isolated occurrence.\69\
Undeterred by the roundly rejected and wasteful Cyber Ninjas review,
other States have followed Arizona's lead to undertake their own
partisan election investigations that further damage faith in our
voting systems. After the Governor vetoed the Pennsylvania
legislature's proposed wide-ranging measure to rewrite the State's
election law, including provisions that would enable partisan officials
to sabotage elections, lawmakers turned to other methods to further
their stolen election lies. In September 2021, State senators in
Pennsylvania began what they called a ``forensic investigation'' of the
election that was decided and certified almost a year prior.\70\ The
investigation launched a sweeping, ad hoc, secretive, and standardless
review of ballots, which, among other things, attempted to subpoena the
private information of more than 9 million registered voters for
analysis by a firm with no experience in election law or data
analytics.\71\ When details of the contract with the audit company were
eventually released to the public, more questions than answers remained
and it is unclear if the results of the ``investigation'' due in May
2022 will be released for public scrutiny.\72\
---------------------------------------------------------------------------
\69\ See Not an Audit, States United Action, Fair Fight Action
United to Protect Democracy, https://notanaudit.com/ (last visited Mar.
31, 2022).
\70\ Andrew Seidman & Jonathan Lai, What to know about Pennsylvania
Republicans' investigation of the 2020 election, The Phila. Inquirer
(Sept. 29, 2021), https://www.inquirer.com/politics/pennsylvania/
pennsylvania-election-audit-2021-updates-results-20210922.html.
\71\ States United Democracy Ctr. June Report, supra note 1.
\72\ Sam Dunklau, Pa. Senate election probe contract doesn't say if
the public will see the results, among other things, WITF (Dec. 9,
2021), https://www.witf.org/2021/12/07/pa-senate-election-probe-
contract-doesnt-say-if-the-public-will-see-the-results-among-other-
things/.
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In Texas, just days after the conclusion of the Arizona sham review
and hours after a request from the former President, the Texas
secretary of state's office announced a ``full forensic audit'' of the
2020 general election in four Texas counties: Collin, Dallas, Harris,
and Tarrant.\73\ Unsurprisingly, the first batch of results of the
review found nothing out of the ordinary.\74\ But regardless, the
efforts undertaken gave election skeptics more reasons to further their
lies about the results--even in a State that the former President won.
---------------------------------------------------------------------------
\73\ Neelam Bohra, Texas secretary of state's office auditing four
counties' 2020 elections months after an official called the Statewide
process ``smooth and secure'', The Texas Tribune (Sept. 23, 2021),
https://www.texastribune.org/2021/09/23/texas-2020-election-audit/.
\74\ Alexa Ura & Allyson Waller, First part of Texas' 2020 election
audit reveals few issues, echoes findings from review processes already
in place, The Texas Tribune (Dec. 31, 2021), https://
www.texastribune.org/2021/12/31/secretary-state-texas-election-audit/.
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Finally, in Wisconsin, a top State lawmaker hired former Wisconsin
Supreme Court Justice Michael Gableman to oversee a partisan
investigation of the 2020 election, announcing the selection at his
political party's annual convention.\75\ Gableman's alleged vow to act
as a neutral arbiter with no preconceived conclusions was inconsistent
with his previous public and private efforts to spread the stolen
election lies.\76\ When Gableman released his 136-page report to the
General Assembly in February 2022, he embraced fringe election
conspiracies and advocated for the decertification of the 2020 election
results--a proposal both impossible and unlawful.\77\
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\75\ Shawn Johnson, Following Warning By Trump, Vos Announces
Former Justice Will Lead Assembly GOP Election Probe, Wisc. Public
Radio (June 26, 2021), https://www.wpr.org/following-warning-trump-vos-
announces-former-justice-will-lead-assembly-gop-election-probe.
\76\ Patrick Marley, Michael Gableman said bureaucrats `stole our
votes' before he was put in charge of reviewing 2020 election,
Milwaukee Journal Sentinel (Jan. 6, 2022), https://www.jsonline.com/
story/news/politics/2021/08/09/michael-gableman-said-election-stolen-
before-put-charge-wisconsin-review/5518815001/ Scott Bauer, Ex-
justice's Wisconsin election probe drags as critics scoff, Associated
Press (Feb. 7, 2022), https://apnews.com/article/joe-biden-wisconsin-
elections-racial-injustice-election-2020-
9f9ce4a95e3d21bebb4ef7bd9543146f.
\77\ GOP investigator suggests Wisconsin Legislature decertify 2020
election results, WISN (Mar. 1, 2022) https://www.wisn.com/article/
wisconsin-republican-report-suggests-decertifying-2020-election-
results/39271268; Zach Montellaro, Wisconsin GOP's 2020 report embraces
fringe election decertification theory, Politico (Mar. 1, 2022),
www.politico.com/news/2022/03/01/wisconsin-republicans-embrace-
election-decertification-00012793.
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While these partisan audits have largely gone unaddressed and seem
to be further expanding to other States, the U.S. Department of Justice
has published warnings about their harms to our democratic process. In
July 2021, the Attorney General released guidance to ensure that States
comply with Federal law if conducting post-election ``audits.''\78\ The
Attorney General's stated primary concerns with these purported audits
are two-fold: The risk to compromising election records, as happened in
Arizona, and the threats of voter intimidation, such as those
associated with stolen election conspiracists going door-to-door to
interrogate voters in North Carolina, Colorado, and elsewhere.\79\
Along these lines, the Attorney General sent a letter to the organizers
of the Arizona audit, which lead them to drop a planned canvass of
voters under the threat of Federal enforcement action.\80\
---------------------------------------------------------------------------
\78\ U.S. Dep't of Justice, Justice Department Issues Guidance on
Federal Statutes Regarding Voting Methods and Post-Election ``Audits''
(July 28, 2021), https://www.justice.gov/opa/pr/justice-department-
issues-guidance-federal-statutes-regarding-voting-methods-and-post.
\79\ See, e.g., Nicholas Riccardi, Lawsuit seeks to stop group's
door-to-door voter fraud hut, Associated Press (Mar. 9, 2022), https://
apnews.com/article/voting-rights-2022-midterm-elections-biden-steve-
bannon-colorado-63beba2f69226f53ed305457c47a83ea; Press Release,
Statement Regarding Door-to-Door Canvassers Requesting Voter
Information, North Carolina State Board of Elections (Feb. 18, 2022),
https://www.ncsbe.gov/news/press-releases/2022/02/18/statement-
regarding-door-door-canvassers-requesting-voter-information.
\80\ Jeremy Duda, Justice Department raises concerns with audit,
Arizona Mirror (May 5, 2021), https://www.azmirror.com/2021/05/05/
justice-department-raises-concerns-with-audit/.
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These partisan-driven, costly, and amateur reviews of elections by
lawmakers and inexperienced third parties feed the stolen election
narrative. They are at best redundant with the States' existing
legitimate audit procedures that are dependable and designed by experts
in the field of election administration. More dangerously, the so-
called ``fraudits'' further erode trust in democracy, and the
fabricated results can be used as a cover story for partisans' efforts
to exert greater control over elections and enact laws that make voting
needlessly more difficult.
ii. Attempts at partisan usurpation of election
administration reduce security in elections.
Among the most concerning responses to the stolen election lies are
attempts by partisan actors to interfere with traditionally nonpartisan
election administration functions. In the 2021 legislative sessions,
State legislators ``proposed more than two hundred bills in 41 States
that have the potential to allow those legislators to interfere with
election administration in one way or another, and at least two dozen
bills have already been passed into law.''\81\ These efforts can be
tied directly to the former President's efforts to ``pursu[e] a
strategy to have Republican-run legislatures in battleground States
override results favoring [his opponent], in an unprecedented bid to
alter the outcome of the election,''\82\ as well as to his pressure
campaign on election officials to ``find'' votes and manufacture his
victory.\83\
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\81\ See, e.g., sources cited supra note 1.
\82\ Deanna Paul, Trump Campaign Wants States to Override Electoral
Votes for Biden. Is That Possible?, The Wall Street Journal (Nov. 21,
2020), https://www.wsj.com/articles/trump-campaign-wants-states-to-
override-electoral-votes-for-biden-is-that-possible-11605973695.
\83\ Former president Trump's much-publicized call to Secretary
Raffensperger asking him to ``find'' an additional 11,780 votes and
declare Trump the winner of Georgia's Presidential election shows the
political willingness to corruptly influence election officials to set
aside the principles of impartial election administration to achieve
partisan aims. See Amy Gardner, `I Just Want to Find 11,780 Votes': In
Extraordinary Hour-Long Call, Trump Pressures Georgia Secretary of
State to Recalculate the Vote in His Favor, Wash. Post (Jan. 3, 2021),
https://www.washingtonpost.com/politics/trump-raffensperger-call-
georgia-vote/2021/01/03/d45acb92-4dc4-11eb-bda4-
615aaefd0555_story.html.
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Most alarming were new State proposals that in some cases would
have allowed partisan actors to entirely discard the results of popular
elections with which they disagreed.\84\ For example, a proposed bill
in Arizona last year, H.B. 2720, would have provided that ``by majority
vote at any time before the Presidential inauguration [the legislature]
may revoke the secretary of state's issuance or certification of a
Presidential elector's certificate of election.''\85\ A similar
proposal in Missouri, H.B. 1301, would have allowed the State
legislature to ``retain its authority to name Presidential electors in
cases of fraud'' or if a court or the Executive branch were perceived
to have interfered in election administration.\86\ In Texas, S.B. 7, a
bill ultimately replaced by S.B. 1 discussed above, would have granted
power to overturn elections to the State's elected judges.\87\ And in
Nevada, certain lawmakers sought a State constitutional amendment that
would have transferred power to certify the State's election results
from the State supreme court to the State legislature.\88\
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\84\ See, e.g., Matt Vasilogambros, Republican Legislators Curb
Authority of County, State Election Officials, Pew Charitable Trusts
(July 28, 2021), https://www.pewtrusts.org/en/research-and-analysis/
blogs/stateline/2021/07/28/republican-legislators-curb-authority-of-
county-state-election-officials.
\85\ H.B. 2720, 55th Leg., Reg. Sess. (Ariz. 2021). Arizona had two
other proposed bills that would have similarly allowed the state
legislature to interfere with election results. See States United
Democracy Ctr. June Report, supra note 1, at 9-10.
\86\ H.B. 1301, 101st Gen. Assemb., Reg. Sess. (Mo. 2021).
\87\ Brennan Ctr. for Justice, Voting Laws Roundup: December 2021
(Jan. 12, 2022), https://www.brennancenter.org/our-work/research-
reports/voting-laws-roundup-december-2021.
\88\ Assemb. J. Res. 13, 81st Leg., 2021 Reg. Sess. (Nev. 2021).
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These failed efforts are part of a concerning trend of State
legislatures responding to the outcome of the 2020 election by trying
to consolidate power to themselves at the expense of experienced
election officials.\89\ Indeed, several less extreme but still
problematic proposals in the same vein have become law since 2020.\90\
---------------------------------------------------------------------------
\89\ See Election Crisis Task Force Report, supra note 1, at 3.
\90\ See Nick Corasaniti, Voting Rights and the Battle Over
Elections: What to Know, N.Y. Times (Dec. 29, 2021), https://
www.nytimes.com/article/voting-rights-tracker.html.
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For instance, in Arkansas, lawmakers passed a new law, S.B. 643,
that authorizes a legislative committee to investigate election
complaints and makes it easier to take over county elections without a
legitimate justification.\91\
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\91\ Sam Levine, How Trump's big lie has been weaponized since the
Capitol attack, The Guardian (July 7, 2021), https://
www.theguardian.com/us-news/2021/jul/07/us-capitol-riot-attack-on-
democracy.
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Legislators in Georgia followed suit after proponents of the stolen
election lies baselessly accused nonpartisan county election workers of
manipulating votes. Part of Georgia's S.B. 202, enacted during Spring
2021 and described above, grants the State Election Board broad power
over county election officials.\92\ Specifically, S.B. 202 allows ``the
State Election Board [to] suspend elected county or municipal
superintendents and appoint an individual to serve as the temporary
superintendent'' in that jurisdiction.\93\ Superintendents are
considered the ``top election officials'' of each county, and the
Board-appointed superintendent will be able to ``exercise all the
powers and duties of a superintendent as provided by law,''\94\ which
includes disqualifying voters, relocating polling sites, and
potentially refusing to certify results.\95\ Because a party with the
majority in both houses of the Georgia General Assembly will control
the Board, the broad power granted to the State Election Board
correspondingly broadens the Assembly's power to influence members of
the Board on partisan grounds.\96\
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\92\ Nicholas Reimann, GOP-Controlled Georgia Board Launches Probe
in Possible Takeover of Atlanta Elections from Local Officials, Forbes
(Aug. 18, 2021), https://www.forbes.com/sites/nicholasreimann/2021/08/
18/gop-controlled-georgia-board-launches-probe-in-possible-takeover-of-
atlanta-elections-from-local-officials.
\93\ Ga. Code Ann. 21-2-33.1(f).
\94\ Ga. Code Ann. 21-2-33.1(f).
\95\ S.B. 202 did not alter the standards for certifying election
results. See, e.g., Ga. Code Ann. 21-2-33.1(f) (giving Board-
appointed superintendents ``all the powers and duties of a
superintendent as provided by law''). However, there is debate over the
circumstances under which a superintendent could refuse to certify
results and what the consequences of that refusal would be. The
relevant statute provides that a superintendent ``shall . . .
certif[y]'' the results by the Monday following the election after the
returns are ``found to be correct or corrected.'' Id. 21-2-493(k). As
part of this process, ``[i]f any error or fraud is discovered, the
superintendent shall compute and certify the votes justly.'' Id. 21-
2-493(i). Georgia law also does not explicitly provide for what happens
if a superintendent declines to certify results: The relevant provision
provides only that she ``shall'' do so. Ga. Code Ann. Sec. 21-2-
493(k). When a county refused to certify the results of a recount in
2020, the Secretary of State's office responded by providing technical
support to facilitate the recount process and launching a still-on-
going investigation of the county's process. Secretary of State's
Office Opens Investigation into Coffee County's Handling of Recount,
Ga. Sec'y Of State, https://sos.ga.gov/index.php/elections/
secretary_of_states_office_opens_investigation_into_coffee_countys_handl
ing_of_recount (last visited Mar. 30, 2022).
\96\ See, e.g., Ga. Code Ann. 21-2-33.1(f) (giving Board-
appointed superintendents ``all the powers and duties of a
superintendent as provided by law''); see also States United Democracy
Ctr. April Report, supra note 1, at 12-14; Nick Corasantini & Reid J.
Epstein, What Does Georgia's Voting Law Really Do?, N.Y. Times (Aug.
18, 2021), https://www.nytimes.com/2021/04/02/us/politics/georgia-
voting-law-annotated.html.
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S.B. 202 also more directly grants the Georgia General Assembly
power over local election officials by allowing individual Georgia
representatives to request performance reviews of election officials in
their jurisdictions.\97\ Upon receiving these requests, the State
Election Board is to appoint ``an independent performance review
board'' and then may use the findings of the review board as the basis
to remove the official whose performance is in question.\98\
---------------------------------------------------------------------------
\97\ Ga. Code Ann. 21-2-106(a).
\98\ Id. 21-2-106(a), (c).
---------------------------------------------------------------------------
Reviews pursuant to this provision are already under way. The State
Election Board appointed a partisan performance review board to
investigate the baseless stolen election allegations in Fulton County
and potentially take over election administration there, which contains
Georgia's largest concentration of Democratic voters.\99\ Despite
recently confirming the accuracy of Fulton County's election results,
the State Election Board nonetheless referred the county election
officials to the State attorney general for investigation of the scant
incidents of inadvertent and inevitable human errors--moving a step
closer to the county officials being replaced by appointed partisans
who would administer the next election.\100\
---------------------------------------------------------------------------
\99\ Mark Niesse, Prospect of Georgia election takeover fuels
concerns about vote integrity, The Atlanta Journal-Constitution (Dec.
23, 2021), https://www.ajc.com/politics/prospect-of-georgia-election-
takeover-fuels-concerns-about-vote-integrity/
CFMTLFW6TZFH7O4LLNDZ3BY4NE/; Kristal Dixon, Exit interview with
Georgia's most high-profile elections director, Axios (Mar. 23, 2022),
https://www.axios.com/local/atlanta/2022/03/23/exit-interview-georgia-
elections-director-richard-barron; Nick Corasaniti, Potential G.O.P.
Takeover of Atlanta-Area Election Board Inches Forward, N.Y. Times
(Aug. 18, 2021), https://www.nytimes.com/2021/08/18/us/politics/
georgia-elections-republicans.html.
\100\ Mark Niesse, Investigation blames human error for issues in
Fulton election audit, The Atlanta Journal-Constitution (Mar. 16,
2022), https://www.ajc.com/politics/investigation-blames-human-error-
for-issues-in-fulton-election-audit/QTRKTKJYY5B3BMK2WOHU6AQXVY/.
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Additionally, in other Georgia counties, nonpartisan election
boards that have been in place for years to manage and certify
Georgia's elections are being abruptly dissolved under new Georgia
law.\101\ This fundamental restructuring of local election
administration in Georgia has enabled counties to shift power away from
long-time impartial election officials and toward inexperienced
partisan actors, who in some instances have explicitly endorsed
groundless stolen election claims.\102\
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\101\ See, e.g., Stephanie McCrummen, `Gutted': What happened when
a Georgia elections office was targeted for takeover by those who claim
the 2020 election was a fraud, Wash. Post (Mar. 14, 2022), https://
www.washingtonpost.com/nation/2022/03/14/georgia-elections-fraud-purge/
; James Oliphant & Nathan Layne, Georgia Republicans purge Black
Democrats from county election boards, Reuters (Dec. 9, 2021), https://
www.reuters.com/world/us/georgia-republicans-purge-black-democrats-
county-election-boards-2021-12-09/; Nick Corasaniti and Reid J.
Epstein, supra note 1.
\102\ James Oliphant & Nathan Layne, Georgia Republicans purge
Black Democrats from county election boards, Reuters (Dec. 9, 2021 8:53
PM), https://www.reuters.com/world/us/georgia-republicans-purge-black-
democrats-county-election-boards-2021-12-09/.
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Finally, adding to the Georgia General Assembly's intrusion on
election administration functions, S.B. 202 removes the Georgia
secretary of state as the chairperson of the State Election Board,
instead calling for the chairperson to be elected by the Georgia
General Assembly, with the secretary of state merely deemed an ``ex
officio nonvoting member of the board.''\103\ While the chairperson
``shall be nonpartisan,''\104\ this new procedures nonetheless open the
door for the election of a chairperson who shares the majority of the
General Assembly's views regarding the results or legitimacy of any
given election. Given the tensions between Georgia's secretary of state
and legislators that arose during the 2020 election--with Republican
Secretary of State Brad Raffensperger facing criticism for not
supporting the former President and his allies' stolen election lies
\105\--legislators could seek out a chairperson whom members believe
would follow its party line on any given matter, including whether to
certify the results of an election if the winner does not belong to the
same party that controls the General Assembly.
---------------------------------------------------------------------------
\103\ Ga. Code Ann. 21-2-30(a), (d).
\104\ Id. 21-2-30(a.1)(2).
\105\ Amy Gardner, Ga. Secretary of State Says Fellow Republicans
Are Pressuring Him to Find Ways to Exclude Ballots, Wash. Post (Nov.
16, 2020), https://www.washingtonpost.com/politics/brad-raffensperger-
georgia-vote/2020/11/16/6b6cb2f4-283e-11eb-8fa2-
06e7cbb145c0_story.html.
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Additionally, a new law proposed but recently struck down in
Arizona would have also shifted power away from the Arizona secretary
of state, Katie Hobbs, on blatantly partisan grounds.\106\ The law
provided that Arizona's attorney general, Mark Brnovich, ``has sole
authority to direct the defense of State election law or laws being
challenged,'' thereby permitting him to ``intervene on behalf of the
State'' ``in any proceeding in which the validity of a State election
law is challenged . . . if [he] determines'' that ``intervention is
appropriate.''\107\ Accordingly, the law would have given the Arizona
Attorney General, who is Republican, ultimate authority to dictate
legal strategy in election law cases in the event that he disagrees
with the State's elected secretary of state, currently a Democrat.\108\
Importantly, this designation of control over litigation was designed
to last only through the end of Secretary Hobbs' term, as the goal of
the legislature was ``to ensure that the authority given to . . .
Brnovich would not transfer to any Democrat who won the next race for
attorney general.''\109\ Although the Arizona Supreme Court struck down
this law on procedural grounds because the legislature improperly
passed it in an omnibus budget bill,\110\ nothing in the court's
decision prevents the State from reenacting it, and numerous pending
proposals in the Arizona legislature would effectively do so.\111\
---------------------------------------------------------------------------
\106\ See Michael Wines, In Arizona, G.O.P. Lawmakers Strip Power
From a Democrat, N.Y. Times (June 25, 2021), https://www.nytimes.com/
2021/06/25/us/Arizona-Republicans-voting.html..--
\107\ S.B. 1819, sec. 33, 55th Leg., 1st Reg. Sess. (Ariz. 2021).
\108\ Ben Giles, Arizona Republicans Strip Some Election Power from
Democratic Secretary of State, NPR (June 30, 2021), https://
www.npr.org/2021/06/30/1011154122/arizona-republicans-strip-some-
election-power-from-democratic-secretary-of-state.
\109\ Michael Wines, In Arizona, G.O.P. Lawmakers Strip Power from
a Democrat, N.Y. Times (June 25, 2021), https://www.nytimes.com/2021/
06/25/us/Arizona-Republicans-voting.html.
\110\ See Jeremy Duda, Court strikes down bans on mask mandates,
critical race theory and more, Arizona Mirror (Sept. 27, 2021), https:/
/www.azmirror.com/2021/09/27/court-strikes-down-bans-on-mask-mandates-
critical-race-theory-and-more/.
\111\ See, e.g., H.B. 2691, 56th Leg., 1st Reg. Sess. (Ariz. 2022);
H.B. 2378, 56th Leg., 1st Reg. Sess. (Ariz. 2022); S.B. 1137, 56th
Leg., 1st Reg. Sess. (Ariz. 2022).
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In Texas, the recently enacted S.B. 1 presents another instance of
the legislative usurpation of election officials' authority. S.B. 1
imposes severe restrictions on how election officials can administer
elections and help citizens apply to vote or cast a vote.\112\ For
example, the Texas law prohibits early voting clerks from any ``attempt
to solicit a person to complete an application for an early voting
ballot,''\113\ and forbids State or local officials from
``distribut[ing] an application form for an early ballot'' to someone
who did not request the application, or from ``us[ing] public funds to
facilitate'' such distribution by someone else.\114\ Finally, the bill
uses sweeping language to mandate that public officials ``not create,
alter, modify, waive, or suspend any election standard, practice, or
procedure mandated by law or rule in a manner not expressly authorized
by this code.''\115\ In effect, S.B. 1 would eliminate election
officials' ability to administer State law in the manner that they
believe would, based on their experience and discretion in specific
circumstances, ensure that more citizens are able to vote easily and
that elections run efficiently within the processes established by the
legislature.
---------------------------------------------------------------------------
\112\ Chuck Lindell, Gov. Greg Abbott Signs SB 1, the GOP Voting
Bill, into Law, Austin Am. Statesman (Sept. 7,2021), https://
www.statesman.com/story/news/2021/09/07/texas-voting-law-gop-greg-
abbott-sb-1/5751333001.
\113\ Tex. Elec. Code 84.0011 (sec. 4.02)
\114\ Tex. Elec. Code 84.0111 (sec. 4.05)
\115\ Tex. Elec. Code 276.017 (sec. 6.03)
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New proposals in 2022 continue the trend of State legislators
attempting to enact laws that seize power over elections to partisan
lawmakers at the expense of experienced election officials. From new
bills filed in Wisconsin and Michigan to renewed efforts in
Arizona,\116\ legislators are pursuing troubling ways to put election
administration in the hands of political party patrons rather than
trusted election officials.
---------------------------------------------------------------------------
\116\ See, e.g., Lalee Ibssa & Meg Cunningham, GOP-controlled
legislatures look to overhaul election laws ahead of 2022 midterms, ABC
News (Feb. 10, 2022), https://abcnews.go.com/Politics/gop-controlled-
legislatures-overhaul-election-laws-ahead-2022/story?id=82730052
(Michigan); Michael McDaniel, Arizona Senate pushes an election bill to
create a permanent audit team that could be fielded by Cyber Ninja
auditors, Courthouse News (Feb. 17, 2022), https://
www.courthousenews.com/arizona-senate-pushes-an-election-bill-to-
create-a-permanent-audit-team-that-could-be-fielded-by-cyber-ninja-
auditors/ (Arizona); Jake Thomas, Ex-Oath Keeper, 1/6 Protester Lead
Push to Change Michigan's Election Audit Process, Newsweek (Jan. 20,
2022), https://www.newsweek.com/ex-oath-keeper-1-6-protester-lead-push-
change-michigans-election-audit-process-1671428.
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The changes in State laws that narrow the authority traditionally
given to impartial elections experts, or that provide for increased
influence over the functions of election administration by the State
legislature, risk removing the key guardrails that prevented further
democratic crises in 2020. By increasing the partisan influence over
traditionally nonpartisan election administration tasks, such as the
ministerial responsibility of certifying the final results after the
votes have been counted, supporters of the stolen election lies have
made usurping the electoral power away from the people easier. Enabling
greater partisan manipulation of election administration risks widening
cracks in our legal framework and removing the principled election
officials who were willing to stand firm for democratic norms rather
than submit to raw political objectives during the 2020 election.
4. The election falsehoods encourage threats against hardworking
election officials, the criminalization of their work, and the
politicization of their roles.
Nonpartisan election officials have borne the brunt of some of the
worst consequences from the 2020 stolen election lies. These public
servants, who work under-appreciated jobs to ensure that our democratic
processes properly function and that every vote that should be counted
gets counted, have come under tremendous stress throughout the 2020
election cycle and since. Given that the former President recently
suggested that because ``[t]he vote counter is often more important
than the candidate,'' and that his supporters ``have to get a lot
tougher and smarter at the polls,'' the forces intimidating election
officials are unlikely to subside.\117\
---------------------------------------------------------------------------
\117\ Josh Dawsey, Trump muses on war with Russia and praises Kim
Jong Un, Wash. Post (Mar. 6, 2022), https://www.washingtonpost.com/
nation/2022/03/06/trump-focuses-foreign-policy-speech-gops-top-donors/.
---------------------------------------------------------------------------
The immense pressure on election officials most alarmingly includes
a steep rise in the harassment and threats of violence targeting
them.\118\ A recent investigation identified hundreds of occurrences of
intimidation and harassment against election workers and officials
Nation-wide, but only a handful of arrests of the attackers.\119\
Proponents of the stolen election lies directed over 100 explicit
threats of death or violence at more than 40 election officials.\120\
Nearly 8 in 10 local election officials feel the physical danger
presented in their work has increased recently, and one-sixth report
having received explicit threats of violence.\121\
---------------------------------------------------------------------------
\118\ See, e.g., Linda So & Jason Szep, Special Report: Terrorized
U.S. Election Workers Get Little Help from Law Enforcement, Reuters
(Sept. 8, 2021), https://www.reuters.com/legal/government/terrorized-
us-election-workers-get-little-help-law-enforcement-2021-09-08/; The
Brennan Ctr. for Justice and the Bipartisan Policy Ctr., Election
Officials Under Attack (June 16, 2021), https://www.brennancenter.org/
sites/default/files/2021-06/BCJ-129%20ElectionOfficials_v7.pdf.
\119\ Linda So & Jason Szep, supra note 118.
\120\ Id.
\121\ See, e.g., Poll of Local Election Officials Finds Safety
Fears for Colleagues--and Themselves, Brennan Ctr.for Justice (Mar.
10, 2022), https://www.brennancenter.org/our-work/analysis-opinion/
poll-local-election-officials-finds-safety-fears-colleagues-and; Zach
Montellaro, Local election officials are exhausted, under threat and
thinking about quitting, Politico (Mar. 10, 2022), https://
www.politico.com/news/2022/03/10/election-officials-exhausted-under-
threat-00015850; Press Release, ``One in Three Election Officials
Report Feeling Unsafe Because of Their Job,'' Brennan Ctr. For Justice
& Bipartisan Policy Ctr. (June 16, 2021), https://
www.brennancenter.org/our-work/analysis-opinion/one-three-election-
officials-report-feeling-unsafe-because-their-job.
---------------------------------------------------------------------------
State secretaries of state--who typically serve as their States'
chief election officers--are among those who faced significant threats
and intimidation to themselves and their families in the wake of the
2020 election.
In her testimony to the U.S. Senate Committee on Rules and
Administration in October 2021, Arizona secretary of state Katie Hobbs
described the threats that she and other election officials have faced
in the year since the 2020 election.\122\ From the armed groups that
amassed outside Secretary Hobbs' home chanting, ``Katie come out and
play, we are watching you,'' to the orange jumpsuits mailed to
intimidate Arizona county supervisors,\123\ these once behind-the-
scenes election officials are now facing growing threats.\124\
---------------------------------------------------------------------------
\122\ U.S. Senate Committee on Rules and Administration, Emerging
Threats to Election Administration (Oct. 26,2021), https://
www.rules.senate.gov/hearings/emerging-threats-to-election-
administration.
\123\ Denelle Confair, AZ Secretary of State Katie Hobbs Testifies
Before U.S. Senate Committee on Emerging Election Threats, News 4
Tucson (Nov. 1, 2021), https://www.kvoa.com/news/az-secretary-of-state-
katie-hobbs-testifies-before-u-s-senate-committee-on-emerging-election/
article_0193c76e-3689-11ec-b3c7-1f2864e3a0ae.html.
\124\ Miles Parks, Death Threats and Conspiracy Theories: Why 2020
Won't End for Election Officials, NPR (Aug. 17, 2021), https://
www.npr.org/2021/08/17/1027747378/death-threats-and-conspiracy-
theories-why-2020-wont-end-for-election-officials; Jane Mayer, supra
note 19.
---------------------------------------------------------------------------
Georgia Secretary of State Brad Raffensperger, who resisted the
former President's claims that the election in Georgia was stolen, also
``receiv[ed] death threats almost immediately after Trump's surprise
loss in Georgia,'' leading him and his family to go into hiding after
his daughter-in-law's home was broken into and individuals identified
as members of the Oath Keepers, an extremist group, were discovered
outside his own home.\125\
---------------------------------------------------------------------------
\125\ Linda So, Trump-Inspired Death Threats Are Terrorizing
Election Workers, Reuters (June 11, 2021), https://www.reuters.com/
investigates/special-report/usa-trump-georgia-threats/.
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Michigan Secretary of State Jocelyn Benson also faced death threats
and harassment following the election.\126\ Armed protesters used
megaphones to chant election-related conspiracy theories outside of
Benson's home a few weeks after the election while Benson was home with
her 4-year-old son.\127\
---------------------------------------------------------------------------
\126\ Id.; see also Bill Chappel, Michigan Secretary of State Says
Armed Protesters Descended on Her Home Saturday, NPR (Dec. 7, 2020),
https://www.npr.org/sections/biden-transition-updates/2020/12/07/
943820889/michigan-secretary-of-state-says-armed-protesters-descended-
on-her-home-saturday.
\127\ Bill Chappel, Michigan Secretary of State Says Armed
Protesters Descended on Her Home Saturday, NPR (Dec. 7, 2020), https://
www.npr.org/sections/biden-transition-updates/2020/12/07/943820889/
michigan-secretary-of-state-says-armed-protesters-descended-on-her-
home-saturday.
---------------------------------------------------------------------------
Colorado secretary of state Jena Griswold reported to Federal
officials receiving 22 death threats in 1 week alone in February
2022.\128\ One prominent proponent of election conspiracy theories in
Colorado claimed that Griswold stole the election and threatened that
``if you're involved in election fraud, then you deserve to hang''
because, he said, ``sometime the old ways are the best ways.''\129\
Long after the 2020 Presidential election, these threats suggest that
the dangerous trend extends beyond high-profile Federal elections to
even include off-cycle State elections.
---------------------------------------------------------------------------
\128\ Zach Montellaro, supra note 121.
\129\ Bente Birkeland, Facing ongoing threats, Colorado's Secretary
of State says the position needs more security--and other politicians
want the same, Colo. Public Radio (Mar. 2, 2022), www.cpr.org/2022/03/
02/colorado-secretary-of-state-jena-griswold-security-harassment/.
---------------------------------------------------------------------------
Workers in lower- or mid-level positions similarly face threats and
intimidation from those angered by the outcome of the election and
their misguided stolen election beliefs. For example, some supporters
of the election falsehoods seized on a video that spread quickly on-
line of a poll worker placing paper in the trash, believing it proved
the vote count had been corrupted.\130\ Even though Fulton County
quickly fact-checked the claims, showing they were false by comparing
the size of the paper thrown away with the size of a ballot, ``by the
time fact checkers weighed in, the poll worker had already quit and
gone into hiding, due to the false accusations against him.''\131\
---------------------------------------------------------------------------
\130\ Dan Glaun, Threats to Election Officials Piled Up as
President Trump Refused to Concede, PBS News Frontline (Nov. 17, 2020),
https://www.pbs.org/wgbh/frontline/article/threats-to-election-
officials-piled-up-as-president-trump-refused-to-concede/.
\131\ Id.
---------------------------------------------------------------------------
These threats are unlikely to subside on their own. Indeed, a
recent poll shows that nearly 4-in-10 polled Americans who believe the
stolen election lies also say that violence may be necessary to ``save
our country,'' in their view.\132\
---------------------------------------------------------------------------
\132\ Aaron Blake, Nearly 4 in 10 Who Say Election Was Stolen From
Trump Say Violence Might Be Needed to Save America, Wash. Post (Nov. 1,
2021), https://www.washingtonpost.com/politics/2021/11/01/4-10-who-say-
election-was-stolen-trump-say-violence-might-be-needed-save-america/.
---------------------------------------------------------------------------
While the Federal Government has attempted to step in, those
efforts have so far been unable to abate the serious threats and risks
of harm to election officials. The Department of Justice held a recent
meeting with a bipartisan group of over 1,400 election officials to
``discuss mounting and persistent threats to the safety of election
officials and workers across the country,'' and launched an Election
Threats Task Force to monitor and address such threats.\133\ And the
Department of Homeland Security issued an advisory warning that
``[s]ome domestic violent extremists have continued to advocate for
violence in response to false or misleading narratives about
unsubstantiated election fraud,'' and that the ``months preceding the
upcoming 2022 midterm elections could provide additional opportunities
for these extremists and other individuals to call for violence
directed at democratic institutions, political candidates, party
offices, election events, and election workers.''\134\ But from this
announced increased attention to the issue, the Department of Justice
has revealed only two prosecutions of stolen election extremists who
credibly threatened violence against election officials.\135\
---------------------------------------------------------------------------
\133\ Press Release, Readout of Justice Department Leadership
Meeting on Threats to Election Workers, U.S. Dep't of Justice Office of
Public Affairs (Aug. 26, 2021), https://www.justice.gov/opa/pr/readout-
justice-department-leadership-meeting-threats-election-workers; Jane C.
Timm, `We Have to Protect Them': DOJ Vows Investigations, Prosecutions
of Threats to Election Workers, Wash. Post (June 25, 2021), https://
www.washingtonpost.com/politics/trump-allies-election-oversight/2021/
11/28/3933b3ce-4227-11ec-9ea7-3eb2406a2e24_story.html.
\134\ Dep't of Homeland Security, Summary of Terrorism Threat to
the U.S. Homeland (Feb. 7, 2022), https://www.dhs.gov/ntas/advisory/
national-terrorism-advisory-system-bulletin-february-07-2022.
\135\ Press Release, Man Charged for Threatening Nevada State
Election Worker, U.S. Dep't of Justice Office of Public Affairs (Jan.
27, 2022), https://www.justice.gov/opa/pr/man-charged-threatening-
nevada-state-election-worker; Press Release, Texas Man Arrested for
Making Election-Related Threats to Government Officials, U.S. Dep't of
Justice Office of Public Affairs (Jan. 27, 2022), https://
www.justice.gov/opa/pr/texas-man-arrested-making-election-related-
threats-government-officials.
---------------------------------------------------------------------------
At the same time that election workers are fielding alarming
harassment and intimidation from outside actors, recent changes in
State laws since the 2020 election have also created new ways for
election work to be subject to formal criminal prosecution. Numerous
States--including Texas, Iowa, and North Dakota--have enacted new laws
that specifically criminalize activities by election officials, in many
cases with the threat of felony prosecutions or with hefty punishments
for even ``technical infractions'' of election law.\136\ Some of these
new criminal law proposals, such as the recently-enacted Arizona H.B.
2492 described above, put election workers in the precarious position
to either abandon their duties to register eligible voters pursuant to
Federal law requirements, or follow those Federal duties but face State
felony prosecution applying new State criminal laws that target only
election officials.\137\
---------------------------------------------------------------------------
\136\ See, e.g., States United Democracy Ctr. April and June
Reports, supra note 1.
\137\ H.B. 2492, 56th Leg., 1st Reg. Sess. (Ariz. 2022); Ray Stern,
supra note 48.
---------------------------------------------------------------------------
Under these perilous conditions, election workers are leaving their
posts at worrying rates, or they are being forced out of their
positions for partisan gain. Administering an election during an
unprecedented global pandemic is a challenging feat and harrowing
experience in itself; many election officials who now face threats of
violence after getting through the 2020 election are opting for
retirement rather than continue through the 2022 or 2024 election
cycles.\138\ In one recent study, 30% of polled election officials
reported knowing one or more workers who have already left their job at
least in part because of a fear for their safety due to the increased
threats and intimidation.\139\ The same poll shows that 20% of the
remaining election officials say they are likely to quit before
2024.\140\
---------------------------------------------------------------------------
\138\ Michael Wines, After a Nightmare Year, Election Officials Are
Quitting, N.Y. Times (July 2, 2021), https://www.nytimes.com/2021/07/
02/us/politics/2020-election-voting-officials.html.
\139\ Poll of Local Election Officials Finds Safety Fears for
Colleagues--and Themselves Brennan Ctr. for Justice (Mar. 10, 2022),
https://www.brennancenter.org/our-work/analysis-opinion/poll-local-
election-officials-finds-safety-fears-colleagues-and.
\140\ See id.; see also Miles Parker, 1 in 5 local election
officials say they're likely to quit before 2024, NPR (Mar. 10, 2022),
https://www.npr.org/2022/03/10/1085425464/1-in-5-local-election-
officials-say-theyre-likely-to-quit-before-2024.
---------------------------------------------------------------------------
Other election officials willing to stick around may not be able to
do so because partisan actors are finding new ways to force their
removal. In Michigan, after a Republican appointee to the State board
of canvassers refused to stop the certification of the State's 2020
election results, partisan lawmakers blocked reappointing him to a
subsequent term.\141\ Virginia's Governor recently replaced the State's
top election official, who was widely seen as a nonpartisan consensus
choice, with a former top aide to a State senator who while in office
praised the January 6 insurrectionists.\142\ In Pennsylvania, the State
legislature pursued the impeachment of the members of two county
election commissions who voted to count timely received vote-by-mail
ballots that lacked a date handwritten by the voter, which has been
subject to on-going litigation.\143\ And the former State supreme court
justice leading the partisan sham review of Wisconsin's elections has
pushed to jail city election officials for refusing to participate in
the stolen election conspiracy.\144\
---------------------------------------------------------------------------
\141\ Sam Levine, How Trump's big lie has been weaponized since the
Capitol attack, The Guardian (July 7, 2021), https://
www.theguardian.com/us-news/2021/jul/07/us-capitol-riot-attack-on-
democracy.
\142\ Patrick Wilson, Youngkin names local GOP official, former
aide to Chase, as new State elections commissioner, The Richmond Times-
Dispatch (Mar. 20, 2022), https://richmond.com/news/state-and-regional/
youngkin-names-local-gop-official-former-aide-to-chase-as-new-state-
elections-commissioner/article_2d9ee742-742f-5325-
9692562bd65c37fc.html.
\143\ Jonathan Lai, Pa. Republican Lawmakers Threaten to Impeach
Philly Officials for Counting Undated Mail Ballots, The Phila. Inquirer
(May 28, 2021), https://www.inquirer.com/politics/election/
pennsylvania-republican-lawmakers-impeachment-philadelphia-city-
commissioners-20210528.html; States United Democracy Ctr. June Report,
supra note 1.
\144\ Patrick Marley, Wisconsin Republicans seek to jail more
officials as part of their review of the 2020 Presidential election,
Milwaukee Journal Sentinel (Feb. 18, 2022), https://www.jsonline.com/
story/news/politics/2022/02/18/wisconsin-republicans-michael-gableman-
seeks-jail-officials-2020-presidential-election-review/6853176001/.
---------------------------------------------------------------------------
While election officials are under attack and offices across the
country are experiencing a mass exodus of experienced employees, stolen
election lies proponents have redoubled their efforts to replace
election workers with rogue political actors. There is currently an
active, well-funded campaign to recruit partisans to take over election
administration roles, making it easier to sabotage future
elections.\145\ As of January 27, 2022, at least 21 candidates who have
subscribed to stolen election lies are running for secretary of states
in 18 States; this means that in 2 out of 3 secretary of state contests
Nation-wide, one of the leading candidates has publicly supported the
conspiracy challenging the 2020 election results.\146\ Some the most
highly contested secretary of state races with election skeptics as
candidates are in swing States--e.g., Arizona, Wisconsin, Georgia, and
Nevada--where a rogue State elections chief could cause significant
uncertainty and disruption.\147\
---------------------------------------------------------------------------
\145\ Amber Phillips, How Trump-backed secretary of state
candidates would change elections in the United States Wash. Post (Dec.
1, 2021), https://www.washingtonpost.com/politics/2021/12/01/how-trump-
backed-secretary-state-candidates-would-change-elections-america/;
Lawrence Norden & Derek Tisler, Addressing Insider Threats in
Elections, Brennan Ctr. for Justice (Dec. 8, 2021), https://
www.brennancenter.org/our-work/analysis-opinion/addressing-insider-
threats-elections.
\146\ States United Democracy Ctr., Secretary of State Races in
2022 (Jan 27, 2022), https://statesuniteddemocracy.org/wp-content/
uploads/2022/02/sos_deniers.html.
\147\ Amber Phillips, How Trump-backed secretary of state
candidates would change elections in the United States Wash. Post (Dec.
1, 2021), https://www.washingtonpost.com/politics/2021/12/01/how-trump-
backed-secretary-state-candidates-would-change-elections-america/.
---------------------------------------------------------------------------
Lower-profile election worker positions are also at risk of being
coopted for political purposes. Appointees to State and county election
positions are becoming more extreme and partisan. In Michigan, for
example, political actors have worked in recent months to replace
county canvassers with partisans who have embraced the stolen election
lies.\148\ Similar efforts are under way in Ohio, Iowa, and other
States.\149\ In a particularly shocking example, one of the attendees
at the so-called Stop the Steal rally leading to the January 6 storming
of the U.S. Capitol soon returned home to Pennsylvania, declared his
candidacy to be an election judge, and then won that election.\150\
---------------------------------------------------------------------------
\148\ Sam Levine, Why are Michigan Republicans quietly replacing
key election officials?, The Guardian (Oct. 14, 2021), https://
www.theguardian.com/us-news/2021/oct/14/michigan-republicans-election-
officials-fight-to-vote.
\149\ See, e.g., Jake Zuckerman, Governor appoints former lawmaker
to elections board who hyped up 2020 voter fraud claims, Ohio Capital
Journal (Mar. 10, 2022), https://ohiocapitaljournal.com/2022/03/10/
governor-appoints-former-lawmaker-to-elections-board-who-hyped-up-2020-
voter-fraud-claims/; Thomas Beaumont & Anthony Izaguirre, Iowa flap
raises fears of politicized local election offices, Associated Press
(May 30, 2021), https://apnews.com/article/donald-trump-iowa-local-
elections-voting-rights-elections-8ae7926dcd07f4dba7- ede49d6fc894d9.
\150\ Charles Homans, In Bid for Control of Elections, Trump
Loyalists Face Few Obstacles, N.Y. Times (Dec. 15, 2021), https://
www.nytimes.com/2021/12/11/us/- politics/trust-in-elections-trump-
democracy.html.
---------------------------------------------------------------------------
In sum, election officials since 2020 have faced intense external
forces of threats of violence and harassment, and internal forces of
being criminalized, fired, or politicized. In this environment, the
country's election infrastructure will struggle to maintain nonpartisan
and impartial workers who are in it to promote democracy and fair
results rather than seeking partisan gain. Election officials are the
lifeblood of a properly functioning voting system. Allowing them to be
replaced by partisan actors risks severe consequences if and when the
next election crisis arises.
b. the consequences of stolen election lies are depressed public trust
in government and the electoral process.
Since the 2020 Presidential election, poll after poll has shown
that the events of January 6th and the fallout of the stolen election
lies have shaken Americans' belief in our democratic institutions.
Generally, Americans' trust in government is at historic lows.\151\
People are concerned that the events of January 6th are not just
isolated incidents but a sign of increasing political violence, and
this has eroded the belief that American democracy is secure.\152\ In
one January 2022 poll, 64% of Americans believe democracy in the United
States is ``in crisis and at risk of failing''\153\ and only 20% are
very confident in the country's ability to conduct an honest
election.\154\ Polled voters see that risk growing, with two-thirds of
respondents in one poll saying the county is more at risk of democratic
decline than it was a year ago.\155\
---------------------------------------------------------------------------
\151\ Public Trust in Government: 1958-2021, Pew Research Ctr. (May
17, 2021), https://www.pewresearch.org/politics/2021/05/17/public-
trust-in-government-158-2021/ (last accessed Mar. 30, 2022).
\152\ Anthony Salvanto, Kabir Khanna, Fred Backus, & Jennifer
Depinto, CBS News poll: A year after Jan. 6, violence still seen
threatening U.S. democracy, and some say force can be justified, CBS
News (Jan. 2, 2022, 1:01 PM), https://www.cbsnews.com/news/january-6-
opinion-poll-2022/.
\153\ Joel Rose, 6 in 10 Americans say U.S. democracy is in crisis
as the `Big Lie' takes root, NPR (Jan. 3, 2022), https://www.npr.org/
2022/01/03/1069764164/american-democracy-poll-jan-6.
\154\ Brittany Shepherd, Americans' faith in election integrity
drops: POLL, ABC News (Jan. 6, 2022), https://abcnews.go.com/Politics/
americans-faith-election-integrity-drops-poll/story?id=82069876;
Brittany Shepherd, Majority of Americans think Jan. 6 attack threatened
democracy: POLL, ABC News (Jan. 2, 2022), https://abcnews.go.com/
Politics/majority-americans-jan-attack-threatened-democracy-poll/
story?id=81990555.
\155\ Salvanto, supra note 152.
---------------------------------------------------------------------------
This deterioration of voters' confidence in elections and in
Government crosses party lines. General feelings of pride in American
democracy are at all-time lows, hovering above 50% and down
considerably from a high of 90% in 2001 and 63% in 2017.\156\ While
only 30% of polled Democratic voters attest they are confident in the
U.S. election system,\157\ the falsehood that the 2020 election was
stolen from the former President has been disastrous for Republicans'
faith in our elections, with only 13% of Republicans who are very
confident in the election system and 59% that have little faith.\158\
Overall, only 37% of polled Republicans said they are confident the
next Presidential election will be open and fair.\159\ And while 82% of
Democrats said they would trust the results of the 2024 Presidential
election to be accurate if their candidate did not win; only 33% of
Republicans reported feeling the same.\160\
---------------------------------------------------------------------------
\156\ Dan Balz, Scott Clement, & Emily Guskin, Republicans and
Democrats divided over Jan. 6 insurrection and Trump's culpability,
Post-UMD poll finds, Wash. Post (Jan. 1, 2022), https://
www.washingtonpost.com/politics/2022/01/01/post-poll-january-6/.
\157\ Shepherd, supra note 154.
\158\ Id.
\159\ David Nather, Axios-Ipsos Poll: Republicans lose trust in
elections, Axios (Nov. 20, 2021), https://www.axios.com/axios-ipsos-
poll-republicans-lose-trust-elections-52410b23-9513-453b-8a37-
d140cae2d455.htmldeepdive=1.
\160\ PBS News Hour/NPR/Marist Poll, Nature of the Sample: NPR/PBS
NewsHour/Marist Poll of 1,209 National Adults (Nov. 5, 2021), https://
maristpoll.marist.edu/wp-content/uploads/2021/10/NPR_PBS-
NewsHour_Marist-Poll_USA-NOS-and-Tables_B_202110251104.pdf.
---------------------------------------------------------------------------
Troublingly, voters of both parties doubt that State officials of
the other party will agree to accept the results of an election if
their party loses.\161\ Democrats have become more skeptical, with 67%
concerned about the results in Republican States, compared to 56% of
Republicans about results in Democratic States.\162\ Independents share
in the skepticism but are more concerned about Republican-controlled
States.\163\
---------------------------------------------------------------------------
\161\ Balz, supra note 156.
\162\ Id.
\163\ Id.
---------------------------------------------------------------------------
Polling conducted after the results of the Arizona Cyber Ninjas
review also shows those partisan-motivated ``investigations'' are
especially damaging to the public trust. As noted above, only 36% of
those polled believe that the Cyber Ninjas review proved the correct
winner of Maricopa County's Presidential votes; a majority of polled
Republicans reject the audit's findings, choosing to believe instead
that the process found significant voter fraud when it in fact did
not.\164\ Additional polling from before and after Arizona's partisan
election investigation found that it did more to reinforce concerns
around election fraud than to alleviate them.\165\
---------------------------------------------------------------------------
\164\ Erin Snodgrass, The much-maligned Arizona election audit
reinforced doubt about the 2020 election results, according to a new
poll, Business Insider (Nov. 15, 2021), https://
www.businessinsider.com/arizona-election-audit-reinforced-doubt-about-
2020-election-results-2021-11.
\165\ Doubt in American System Increases, Monmouth Univ. Polling
Institute (Nov. 15, 2021), https://www.monmouth.edu/polling-institute/
reports/monmouthpoll_us_111521/.
---------------------------------------------------------------------------
The perceived and actual risk of repeated political violence
because of disputed election results is also on the rise. Asked if
violent action against the Government is justified at times, over a
third of respondents in one poll agreed, with the strongest support
coming from Republicans and independents.\166\ This increased
acceptance of political violence is significantly higher than past
polls over more than two decades.\167\ Disturbingly, recent polling
shows that Americans now expect violence from supporters of the losing
side in an election: While only 2% of respondents say they actively
favor violence if their side lost the election, a quarter said it would
depend on the circumstances.\168\
---------------------------------------------------------------------------
\166\ Balz, supra note 156.
\167\ Id.
\168\ Salvanto, supra note 152.
---------------------------------------------------------------------------
Researchers studying political violence are also ringing alarm
bells about the increased risks in the United States. For example,
Rachel Kleinfeld, senior fellow in the Democracy, Conflict, and
Governance Program at the Carnegie Endowment for International Peace
and a leading expert on political violence, warns that both the amount
and nature of political extremism has worsened in the United
States.\169\ Kleinfeld's identified factors that elevate the risks of
political violence typify our current circumstances: (1) Perceived
highly-competitive contests that could shift the balance of power; (2)
stark partisan division based on identity; (3) electoral rules that can
be manipulated; and (4) weak institutional constraints on violence that
lead perpetrators to believe they will not be held accountable.\170\
According to Kleinfeld, ideas that were once considered fringe are now
covered on mainstream media outlets, creating a growing audience that
is willing to undertake, support, or excuse the use of force for
perceived political gain.\171\ The people who could be willing to
commit political violence are now not just rogue outliers, but
sometimes regular Americans who are integrated in social life but
nonetheless captured and manipulated by stolen election
conspiracies.\172\
---------------------------------------------------------------------------
\169\ Rachel Kleinfeld, The Rise of Political Violence in the
United States, Journal of Democracy (Oct. 2021), https://
www.journalofdemocracy.org/articles/the-rise-of-political-violence-in-
the-united-states/.
\170\ Id.
\171\ Id.
\172\ Id.
---------------------------------------------------------------------------
Additionally, the election falsehoods have split the Republican
Party into fractions of supporters and representatives who believe the
conspiracy and those who accept reality.\173\ The unwillingness of some
partisans to accept the results of the 2020 election now over 15 months
later creates deep rifts in our political associations. Even some
leading Republican officials who initially were willing to question
aspects of the election without fully committing to the conspiracy now
cannot reel in members of their party who are perpetuating the extreme
falsities.\174\ As the fringe views are given credence, they become
more prominent and take on a life of their own that cannot easily be
pulled away from the minds of voters and lawmakers once party
leadership realizes the deception has gone too far.
---------------------------------------------------------------------------
\173\ Reid J. Epstein, Fringe Scheme to Reverse 2020 Election
Splits Wisconsin G.O.P., N.Y. Times (Feb. 19, 2022), https://
www.nytimes.com/2022/02/19/us/politics/wisconsin-election-
decertification.html.
\174\ Id.; see also Calvin Woodward, supra note 16.
---------------------------------------------------------------------------
In sum, manufactured concerns over stolen elections make large
segments of the electorate distrust legitimate results and question the
democratic process. Far from empty rhetoric or just politics as usual,
these stolen election lies mislead Americans into challenging the rule
of law and contesting the peaceful transition of power when their
preferred candidates lose. This reduced confidence in elections leads
to partisan lawmakers further damaging the system by enacting laws that
politicize the process or make voting needlessly more difficult. And
the stolen election lies inspire the type of political violence
perpetrated on January 6, 2021, which rips at the ties binding our
country by denigrating our democratic institutions and ideals.
c. the federal government must take action to prevent further damage to
our election system.
While the problems stemming from the stolen election lies are
significant and pose a serious threat to the proper functioning of our
democracy, many of them are solvable through Federal legislative and
enforcement action. The priorities must be to address increased efforts
to raise the burdens of voting, the manipulation of votes and results
after election day, and the alarming threats against election
officials. Congress can pass new laws that fix weaknesses in our
current legal framework where proponents of stolen election lies have
sought to exploit gaps for political gain. Many such fixes already
exist in specific provisions contained in proposed laws currently
before Congress.
First, Congress must enact new laws that will curb the rise of laws
that make voting needlessly more difficult based on stolen election
lies. As I have described above, new laws and proposed legislation in
the last 2 years have chased the shadow of voter fraud by finding
heavy-handed and overbroad news ways to remove eligible voters from the
registration rolls and make voter access more difficult.
There are several critical provisions already drafted in
legislation before Congress that would make an immediate difference and
have had successful bipartisan use in the States. To begin, enacting
same-day registration can limit the harmful effects of wrongful
registration purges by allowing eligible voters to still show up to
register and vote on election day.\175\ Standardizing meaningful early
voting in the States will also enable citizens with greater voting
inflexibilities (such as rural voters, students, and voters with less
access to resources) to still be able to cast their ballot even if they
cannot do so on election day.\176\ Guaranteeing access to vote by
mail--a process that States across the country have tested for years
and found is safe, secure, and partisan-neutral \177\--will make sure
that any eligible voter who wants to vote is empowered to do so.\178\
And requiring that States give their election officials meaningful
additional time before election day to preprocess received ballots and
prepare them to be tabulated after the polls close will help ensure
timely election results.\179\ Enacting these Federal baselines, among
others, will reinforce our National ideals that, no matter where
someone lives or how many resources they have, all citizens should have
a fair chance to participate in the electoral process.
---------------------------------------------------------------------------
\175\ See, e.g., Freedom to Vote: John R. Lewis Act, Rules
Committee Print 117-28 Text of the House Amendment to the Senate
Amendment to H.R. 5746, Sec. 1031. Same Day Registration, at 71-75
(Jan. 12, 2022), https://rules.house.gov/sites/
democrats.rules.house.gov/files/BILLS-117HR5746EAS-RCP117-
28.pdf#page=71; see also See Same Day Voter Registration, Nat'l Conf.
of State Legislatures (Sept. 9, 2021), https://www.ncsl.org/research/
elections-and-campaigns/same-day-registration.aspx.
\176\ See, e.g., Freedom to Vote: John R. Lewis Act, Rules
Committee Print 117-28 Text of the House Amendment to the Senate
Amendment to H.R. 5746, Sec. 1201. Early Voting, at 119-126 (Jan. 12,
2022), https://rules.house.gov/sites/democrats.rules.house.gov/files/
BILLS-117HR5746EAS-RCP117-28.pdf#page=119; see also Early In-Person
Voting, Nat'l Conf. of State Legislature (Jan. 17, 2022), https://
www.ncsl.org/research/elections-and-campaigns/early-voting-in-state-
elections.aspx.
\177\ See, e.g., Daniel M. Thompson, et al., Universal vote-by-mail
has no impact on partisan turnout or vote share, Proceedings on the
National Academy of Sciences (June 9, 2020), https://www.pnas.org/doi/
10.1073/pnas.2007249117; see also sources cited supra notes 28 & 29.
\178\ See, e.g., Freedom to Vote: John R. Lewis Act, Rules
Committee Print 117-28 Text of the House Amendment to the Senate
Amendment to H.R. 5746, Subtitle D--Voting by Mail, at 128-169 (Jan.
12, 2022), https://rules.house.gov/sites/democrats.rules.house.gov/
files/BILLS-117HR5746EAS-RCP117-28.pdf#page=128.
\179\ See, e.g., Freedom to Vote: John R. Lewis Act, Rules
Committee Print 117-28 Text of the House Amendment to the Senate
Amendment to H.R. 5746, Sec. 1201. Early Voting, at 126-27 (Jan. 12,
2022), https://rules.house.gov/sites/democrats.rules.house.gov/files/
BILLS-117HR5746EAS-RCP117-28.pdf#page=126.
---------------------------------------------------------------------------
Second, Congress should legislatively reinforce that States have no
power to disturb the results of popular elections. Congress can do so
by updating the Electoral Count Act (ECA), focusing on two core
clarifying revisions that remove ambiguities in the 1887 statute's at-
times obscure and outdated language. Critically, the ECA must make
clear that once a State holds a legitimate popular election to select
its Presidential electors, the State legislature has no power to
displace those results. The ECA is key to reinforcing what we know from
our Constitution to be true--that any post-hoc usurpation of the
Presidential electors power from the people violates voters'
fundamental Constitutional rights, and intrudes on the Federal
Government's Constitutional prerogative to designate the time for
holding Presidential elections and the process for counting the duly
provided votes from States' legitimate popular election results.
Along similar lines, Congress must update the ECA to expressly
provide that once a State's election results are settled, the State
Governor has no authority to refuse to certify that outcome. Again, our
Constitution forbids any contrary result. But the ECA can and should be
updated to fortify that elections in our modern democracy are dictated
by the people, not one potentially rogue official. Congress can
likewise enact additional laws that authorize the Department of
Justice, as provided in existing legislative proposals, to prevent
interference with State and local officials conducting the vote count
and election certification to ensure the people's voice is accurately
reflected.\180\
---------------------------------------------------------------------------
\180\ See, e.g., Freedom to Vote: John R. Lewis Act, Rules
Committee Print 117-28 Text of the House Amendment to the Senate
Amendment to H.R. 5746, Title III--Preventing Election Subversion,
Subtitle A--Restrictions on Removal of Election Administrators, at 251-
62 (Jan. 12, 2022), https://rules.house.gov/sites/
democrats.rules.house.gov/files/BILLS-117HR5746EAS-RCP117-
28.pdf#page=251.
---------------------------------------------------------------------------
Third, Congress must urgently pass new laws that provide greater
Federal protections for election officials and volunteers. Existing
Federal criminal law generally prohibits threats made through
interstate communications, which has been the source of the Department
of Justice's recent prosecutions of two stolen election extremists who
threatened officials in Nevada and Georgia.\181\ But that leaves
enforcement gaps for certain intrastate and in-person threats that
Federal law may not reach, and fails to protect the specific security
needs of election officials under attack.\182\ Existing proposals in
legislation before Congress that add new Federal criminal offenses and
resources for the prosecutions of violent stolen election conspiracists
would aid the Department of Justice to provide needed protections for
election workers.\183\
---------------------------------------------------------------------------
\181\ See sources cited supra note 135.
\182\ See Linda So & Jason Szep, supra note 118.
\183\ See, e.g., Freedom to Vote: John R. Lewis Act, Rules
Committee Print 117-28 Text of the House Amendment to the Senate
Amendment to H.R. 5746, Subtitle B--Increased Protections for Election
Workers at 263-64 (Jan. 12, 2022), https://rules.house.gov/sites/
democrats.rules.house.gov/files/BILLS-117HR5746EAS-RCP117-
28.pdf#page=263; Freedom to Vote: John R. Lewis Act, Rules Committee
Print 117-28 Text of the House Amendment to the Senate Amendment to
H.R. 5746, Sec. 3205. Private Rights Of Action By Election Officials,
Sec. 3206. Making Intimidation Of Tabulation, Canvass, And
Certification Efforts A Crime, at 278-80 (Jan. 12, 2022), https://
rules.house.gov/sites/democrats.rules.house.gov/files/BILLS-
117HR5746EAS-RCP117-28.pdf#page=278.
---------------------------------------------------------------------------
Additionally, the Federal Government, through CISA and other
agencies, must engage now to coordinate more trainings and provide
additional funding for election offices to protect themselves against
threats and take steps to remove identifying information on-line to
avoid harassment or doxing.\184\ Programs that protect the information
of domestic violence and stalking victims in government databases can
serve as a model.\185\ Additionally, election officials under threat
should be provided Federal grants to purchase home intrusion detection
systems, and further funding for training and education related to
maintaining greater personal security.\186\
---------------------------------------------------------------------------
\184\ See Brennan Ctr. for Justice, Election Officials Under
Attack, supra note 118, at 8-9.
\185\ Id. at 7.
\186\ Id.
---------------------------------------------------------------------------
Fourth, Congress can enact new laws to strengthen protections over
the security of State voting equipment, voters' ballots, and the
counting process. Provisions in existing proposals before Congress
include improving security and chain-of-custody procedures for voting
equipment and ballots to prevent their manipulation by State actors or
private companies during sham partisan reviews of election
results.\187\ Federal law should also be updated to prohibit Federal
actors from improperly seizing State or county voting equipment and
materials.\188\
---------------------------------------------------------------------------
\187\ Freedom to Vote: John R. Lewis Act, Rules Committee Print
117-28 Text of the House Amendment to the Senate Amendment to H.R.
5746, Subtitle D--Protection of Election Records & Election
Infrastructure, at 280-86 (Jan. 12, 2022), https://rules.house.gov/
sites/democrats.rules.house.gov/files/BILLS-117HR5746EAS-RCP117-
28.pdf#page=280.
\188\ See, e.g., Matthew S. Schwartz, Jan. 6 panel is investigating
a Trump administration plan to seize voting machines, NPR (Jan. 23,
2022), https://www.npr.org/2022/01/23/1075219215/jan-6-panel-is-
investigating-a-trump-administration-plan-to-seize-voting-machine.
---------------------------------------------------------------------------
Fifth, Congress should enact new laws that seek to address post-
election misinformation, as well as fraudulent fundraising and spending
on efforts to perpetuate the stolen election lies. Congress can do so
by prohibiting misinformation campaigns intended to impede the lawful
counting of ballots or certification of results.\189\ Congress can
address problematic financial incentives for stolen election lies \190\
and protect donors by restricting fraudulent post-election fundraising
for frivolous election contests.\191\ It can also increase post-
election spending transparency for voters by defining spending by
candidates and groups on efforts to influence vote counting as election
spending, so it is subject to the same limits and disclosure
requirements as other campaign spending.
---------------------------------------------------------------------------
\189\ See, e.g., Social Media Misinformation and Administration in
the 2020 General Election, Stanford-MIT Healthy Elections Project (Mar.
10, 2021), https://healthyelections.org/sites/default/files/2021-06/
Social_Media_Misinformation.pdf.
\190\ See, e.g., Isaac Stanley-Becker, et al., Prosecutors demanded
records of Sidney Powell's fundraising groups as part of criminal
probe, Wash. Post (Nov. 30, 2021), https://www.washingtonpost.com/
politics/2021/11/30/sidney-powell-defend-the-republic-criminal-probe/.
\191\ See, e.g., John L. Dorman, supra note 18.
---------------------------------------------------------------------------
______
Statement of Wendy R. Weiser, Vice President for Democracy, Brennan
Center for Justice at NYU School of Law \1\
---------------------------------------------------------------------------
\1\ The Brennan Center for Justice at New York University School of
Law is a nonpartisan public policy and law institute that works to
strengthen the systems of democracy and justice so that they work for
all Americans. I am the vice president for democracy and director of
the Brennan Center's Democracy Program, which among other issues
focuses on voting rights and election administration. I have authored
numerous nationally-recognized reports, studies, and articles on voting
rights and elections. My work has been featured in academic journals
and media outlets across the country. I have served as counsel in many
voting rights lawsuits and have testified previously before Congress,
and before several State legislatures, on a variety of issues relating
to election administration. My testimony does not purport to convey the
views, if any, of the New York University School of Law. I thank Lauren
Miller, counsel at the Brennan Center, for her substantial assistance
in preparing this testimony.
---------------------------------------------------------------------------
April 8, 2022
Chairman Thompson and Members of the Select Committee: Thank you
for the opportunity to submit this testimony to discuss the
disinformation about the 2020 Presidential election that fueled the
violent January 6, 2021 attack on the U.S. Capitol (the
``insurrection'') and how that disinformation continues to threaten
voting and elections in America.
On behalf of the Brennan Center for Justice, I thank this Committee
for its investigation into one of the most shameful and alarming
attacks on American democracy in our Nation's history. As you know, the
insurrection's motivating theory was that the 2020 Presidential
election was ``stolen'' from former President Donald Trump.\2\ This
``Big Lie'' relies on disproven \3\ and racially charged allegations of
wide-spread voter fraud,\4\ ballot irregularities,\5\ and conspiracies
to otherwise ``rig'' the election.\6\ The 2020 election is over, but
the Big Lie continues to wreak havoc on our elections. My testimony
will explain how the same disinformation about voter fraud and the 2020
election that drove the January 6 insurrection is fueling on-going
efforts to undermine voting rights and sabotage the electoral process
across the country, as well as efforts to attack election officials and
otherwise undermine impartial election administration.
---------------------------------------------------------------------------
\2\ ``Transcript of Trump's Speech at Rally before US Capitol
Riot,'' Associated Press, January 13, 2021, https://apnews.com/article/
election-2020-joe-biden-donald-trump-capitol-siege-media-
e79eb5164613d6718e9f4502eb471f27; Brian Naylor, ``Read Trump's Jan. 6
Speech, a Key Part of Impeachment Trial,'' National Public Radio,
February 10, 2021, https://wwwnpr.org/2021/02/10/966396848/read-trumps-
jan-6-speech-a-key-part-of-impeachment-trial; Lauren Leatherby et al.,
``How a Presidential Rally Turned into a Capitol Rampage,'' New York
Times, January 12, 2021, https://www.nytimes.com/interactive/2021/01/
12/us/capitol-mob-timeline.html; and Southern Poverty Law Center, The
Road to Jan. 6: A Year of Extremist Mobilization, https://
www.splcenter.org/news/2021/12/30/road-jan-6-year-extremist-
mobilization.
\3\ Daniel Funke, ``Fact Check: How We Know the 2020 Election
Results Were Legitimate, Not `Rigged' as Donald Trump Claims,'' USA
Today, January 6, 2022, https://www.usatoday.com/story/news/factcheck/
2022/01/06/fact-check-donald-trump-2020-election-results/9115875002/;
``Joint Statement from Elections Infrastructure Government Coordinating
Council & the Election Infrastructure Sector Coordinating Executive
Committees,'' Cybersecurity and Infrastructure Security Agency,
November 12, 2020, accessed April 8, 2022, https://www.cisa.gov/news/
2020/11/12/joint-statement-elections-infrastructure-government-
coordinating-council-election; and Brennan Center for Justice, It's
Official: The Election Was Secure, 2020, https://www.brennancenter.org/
our-work/research-reports/its-official-election-was-secure.
\4\ Donald Trump, interview by Maria Bartiromo, Sunday Morning
Futures, Fox News, November 29, 2020, https://vimeo.com/485180163.
\5\ ``Tweets of November 16, 2020,'' American Presidency Project,
UC Santa Barbara, November 16, 2020, accessed April 8, 2022, https://
www.presidency.ucsb.edu/documents/tweets-november-16-2020.
\6\ American Presidency Project, ``Tweets.''
---------------------------------------------------------------------------
Part I of my testimony walks through evidence of how the Big Lie is
driving two anti-democratic trends in the States: The swift, aggressive
push to restrict access to voting rights and the novel push to enable
partisan actors to interfere in election administration. In the 12
months following the insurrection, 19 States passed 34 restrictive
voting bills, or bills that make it more difficult to vote, according
to the Brennan Center's count.\7\ This was a significant escalation
over years past. At the same time, State lawmakers pressed a new
species of legislation-election sabotage bills--which enable partisan
actors to interfere with or manipulate elections by changing who runs
elections, counts the votes, and how. At least 11 election sabotage
laws passed in 9 States in 2021.\8\ This anti-democratic push continues
today; as of the Brennan Center's January 14, 2022 count, State
lawmakers had introduced, pre-filed, or carried over more than 250
restrictive voting bills \9\ and 41 election sabotage bills.\10\ These
bills are much more closely connected to the push to overturn the 2020
election than many realize.
---------------------------------------------------------------------------
\7\ Brennan Center for Justice, Voting Laws Roundup: December 2021,
2021, https://www.brennancenter.org/our-work/research-reports/voting-
laws-roundup-december-2021.
\8\ Will Wilder, Derek Tisler, and Wendy R. Weiser, The Election
Sabotage Scheme and How Congress Can Stop It 2021, Brennan Center for
Justice, 3-6, https://www.brennancenter.org/our-work/research-reports/
election-sabotage-scheme-and-how-congress-can-stop-it.
\9\ Brennan Center for Justice, Voting Laws Roundup: February 2022,
2022, https://www.brennancenter.org/our-work/research-reports/voting-
laws-roundup-february-2022.
\10\ Brennan Center, Voting Laws Roundup: February 2022.
---------------------------------------------------------------------------
My testimony will establish, first, that many of these new
restrictive voting and election sabotage bills stem directly from the
false allegations made in lawsuits brought by former President Trump's
campaign and his supporters in their bid to change the 2020 election
results. Second, it will demonstrate that the State lawmakers leading
this legislative charge are among the same individuals who rejected the
2020 election results. Almost all of them made public statements
connecting their support for restrictive voting legislation to
disinformation about the legitimacy of the 2020 election or wide-spread
voter fraud. Already, the voting legislation that they succeeded in
passing is creating tangible, negative effects on voters and
disproportionately impacting voters of color.
Part II of my testimony will describe two ways in which the Big Lie
is driving attacks on impartial election administration. First, false
claims about voter fraud and the legitimacy of the 2020 election are
triggering attacks on our Nation's election administrators, leading an
unprecedented number to contemplate quitting. A recent Brennan Center
survey found that 1 in 6 election officials have experienced threats
because of their job, and nearly 1 in 3 know of at least one colleague
who has left their position due to safety concerns, increased threats,
or intimidation.\11\ Second, my testimony lays out how the Big Lie is
politicizing election administration in other ways. Among other things,
2022 candidates for election administration positions are embracing
election denial in their pitch to voters and donors. Races that feature
election denial have seen massive increases in contributions,
particularly from out-of-State donors. These trends pose a serious risk
to impartial election administration in America.
---------------------------------------------------------------------------
\11\ Brennan Center for Justice, Local Election Officials Survey
(March 2022) 2022, 6, 19, https://www.brennancenter.org/our-work/
research-reports/local-election-officials-survey-march-2022.
---------------------------------------------------------------------------
In short, there is ample evidence that the disinformation that
fueled the January 6th insurrection continues to undermine our election
system. With 2022 primaries in progress, and the 2024 Presidential
election around the corner, the dangers to American democracy loom
large.
This Committee's work is critical to repairing the breach in the
fabric of our Nation caused by the January 6th insurrection. It is
critical to ensuring that the perpetrators of the violent insurrection
are held accountable, and its victims receive justice. It also is
critical to ensuring that this reprehensible history does not repeat
itself. And it is critical to ensuring the that the Big Lie that fueled
the insurrection does not continue to grow and further damage our
democracy.
i. the same election denial claims and rhetoric that fueled the
insurrection are driving damaging vote suppression and election
sabotage efforts
Since the 2020 election, the country has witnessed two aggressive,
anti-democratic developments in State legislatures. First, efforts to
suppress voting have soared. In 2021 alone, at least 19 States passed
34 restrictive voting laws, or laws that make it more difficult to vote
\12\--the largest number that the Brennan Center has seen in any year
since it first began tracking voting legislation in 2011.\13\ Indeed,
between 2011 and 2021, at least 33 States passed 97 restrictive voting
bills, and more than a third of those laws passed last year alone.\14\
This legislative push was Nation-wide; overall, legislators introduced
more than 400 restrictive voting bills in 49 States in 2021.\15\ This
trend continues in 2022. As of the Brennan Center's January 14, 2022
count, State lawmakers had introduced, pre-filed, or carried over more
than 250 restrictive voting bills.\16\ The provisions in these bills
range from curtailing access to mail voting and enacting new or
stricter voter ID requirements, to imposing new barriers for voters and
limiting or eliminating same-day voter registration.\17\ These numbers
continue to grow.
---------------------------------------------------------------------------
\12\ Brennan Center, Voting Laws Roundup: December 2021.
\13\ Brennan Center, Voting Laws Roundup: December 2021.
\14\ Brennan Center, Voting Laws Roundup: December 2021; Brennan
Center for Justice, Voting Laws Roundup 2020, 2020, https://
www.brennancenter.org/our-work/research-reports/voting-laws-roundup-
2020-0; Brennan Center for Justice, Voting Laws Roundup 2019, 2019,
https://www.brennancenter.org/our-work/research-reports/voting-laws-
roundup-2019; Brennan Center for Justice, Voting Laws Roundup 2018,
2018, https://www.brennancenter.org/our-work/research-reports/voting-
laws-roundup-2018; Brennan Center for Justice, Voting Laws Roundup
2017, 2017, https://www.brennancenter.org/our-work/research-reports/
voting-laws-roundup-2017; Brennan Center for Justice, Voting Laws
Roundup 2016, 2016, https://www.brennancenter.org/our-work/research-
reports/voting-laws-roundup-2016; Brennan Center for Justice, Voting
Laws Roundup 2015, 2015, https://www.brennancenter.org/our-work/
research-reports/voting-laws-roundup-2015; Brennan Center for Justice,
Voting Laws Roundup 2014, 2014, https://www.brennancenter.org/our-work/
research-reports/voting-laws-roundup-2014; Brennan Center for Justice,
Voting Laws Roundup 2013, 2013, https://www.brennancenter.org/our-work/
research-reports/voting-laws-roundup-2013; Brennan Center for Justice,
Election 2012: Voting Laws Roundup, 2012, https://
www.brennancenter.org/our-work/research-reports/election-2012-voting-
laws-roundup; and Wendy R. Weiser and Nhu-Y Ngo, Voting Rights in 2011:
A Legislative Round-Up, 2011, https://www.brennancenter.org/our-work/
research-reports/voting-rights-2011-legislative-round.
\15\ Brennan Center, Voting Laws Roundup: December 2021.
\16\ Brennan Center, Voting Laws Roundup: February 2022.
\17\ Brennan Center, Voting Laws Roundup: December 2021; and
Brennan Center, Voting Laws Roundup: February 2022.
---------------------------------------------------------------------------
Second, States have seen a dramatic spike in legislation that would
enable partisan actors to meddle in election administration and vote
counting processes--otherwise known as ``election sabotage'' bills. The
Brennan Center identified at least 11 election sabotage laws passed in
9 States in 2021,\18\ including laws in 2 States that allow partisan
actors to remove election officials from their positions and replace
them close to an election,\19\ laws in 6 States that create criminal
penalties for election officials who take certain steps to make it
easier for individuals to vote,\20\ and laws in 3 States that empower
partisan poll watchers to interfere in the vote-counting process.\21\
Our January 14, 2022 count found that legislators in at least 13 States
already had pre-filed and introduced an unprecedented 41 such bills
that would threaten the people and processes that make elections
work.\22\ These provisions range from allowing any citizen to initiate
or conduct biased election audits; to imposing new criminal or civil
penalties on election officials for making unintentional errors; to
allowing partisan actors to remove election officials from office.\23\
These numbers also continue to grow.
---------------------------------------------------------------------------
\18\ Wilder, Tisler, and Weiser, Election Sabotage Scheme, 3-6.
\19\ Wilder, Tisler, and Weiser, Election Sabotage Scheme, 3.
\20\ Wilder, Tisler, and Weiser, Election Sabotage Scheme, 5.
\21\ Wilder, Tisler, and Weiser, Election Sabotage Scheme, 5.
\22\ Brennan Center, Voting Laws Roundup: February 2022.
\23\ Brennan Center, Voting Laws Roundup: February 2022.
---------------------------------------------------------------------------
The Brennan Center has been chronicling and studying these negative
developments. Specifically, two recent analyses demonstrate that the
same false allegations of a stolen election that drove the insurrection
are driving these on-going efforts to undermine voting rights and
sabotage electoral processes. One analysis examined the text of
restrictive voting and election sabotage legislation to show that it
closely maps onto the same allegations made in lawsuits brought by
former President Trump and his supporters in the wake of the 2020
election--all of which were unsuccessful. The second analysis reviewed
the rhetoric of those legislators leading restrictive voting and
election sabotage efforts to establish that these bills rest upon the
same debunked rhetoric of wide-spread voter fraud that fueled the
insurrection.
A. There Is Strong Evidence That the False Claims That Fueled the
Insurrection Are Fueling Vote Suppression and Election Sabotage
Legislation
For more than a decade, the Brennan Center has tracked and reported
on new laws that make it more difficult for individuals to vote.\24\
From the outset, baseless claims of voter fraud fueled this legislative
movement.\25\ Following the 2020 election, former President Trump and
his supporters used this same rhetoric to conjure up claims of a
``stolen'' election and launch a full-scale effort to overturn the
Presidential election results in key States, including through a flurry
of unsuccessful lawsuits discussed in section i below. In the wake of
that failed effort, election denial proponents began rapidly
introducing and passing State bills that restrict access to voting and
make it easier for partisan actors to meddle in election
administration. Our research demonstrates that this unprecedented
legislative push was driven in significant part by claims that the 2020
election was stolen, as reflected by the similarity between the false
claims made in lawsuits and the new legislative provisions, as well as
by the public statements made by legislative sponsors concerning the
legitimacy of the 2020 election and wide-spread voter fraud.
---------------------------------------------------------------------------
\24\ Brennan Center, Voting Laws Roundup: February 2022.
\25\ Brennan Center for Justice, Debunking the Voter Fraud Myth,
2017, https://www.brennancenter.org/our-work/research-reports/
debunking-voter-fraud-myth; Brennan Center, Refuting the Myth of Voter
Fraud; and ``The Myth of Voter Fraud,'' Brennan Center for Justice,
accessed April 8, 2022, https://www.brennancenter.org/issues/ensure-
every-american-can-vote/vote-suppression/myth-voter-fraud.
---------------------------------------------------------------------------
It is well-established that voter fraud, while pernicious, is
vanishingly rare in U.S. elections.\26\ Courts universally rejected
lawsuits seeking to overturn the 2020 election result based upon false
theories of fraud.\27\ Election officials and experts of all political
persuasions overwhelmingly agree that the 2020 election was one of the
most secure in modern history.\28\ Nevertheless, false claims about
wide-spread voter fraud and the legitimacy of the 2020 election
continue to drive legislation and policy efforts in the States.
---------------------------------------------------------------------------
\26\ Brennan Center, Refuting the Myth of Voter Fraud.
\27\ Rosalind S. Helderman and Elise Viebeck, `` `The Last Wall':
How Dozens of Judges across the Political Spectrum Rejected Trump's
Efforts to Overturn the Election,'' Washington Post, December 12, 2020,
https://www.washingtonpost.com/politics/judges-trump-election-lawsuits/
2020/12/12/e3a57224-3a72-11eb-98c4-
25dc9f4987e8story.html?utmcampaign=wptodayshead-
lines&utmmedium=email&utmsource=newsletter&wpisrc=nlheadlines.
\28\ Cybersecurity and Infrastructure Security Agency, ``Joint
Statement''; and Brennan Center, It's Official: The Election Was
Secure.
---------------------------------------------------------------------------
i. Comparison of False Legal Claims about the 2020 Election
and State Legislation Introduced and Passed in 2021
In the days before and after the 2020 election, former President
Trump's campaign and his supporters filed a blizzard of unsuccessful
lawsuits in an attempt to alter the election's outcome.\29\ These
lawsuits made a variety of allegations that the election was rife with
fraud and irregularities. A recent Brennan Center analysis demonstrates
that the false allegations contained in these suits map directly onto
many provisions in the wave of new restrictive voting and election
sabotage measures passed in 2022.
---------------------------------------------------------------------------
\29\ ``Voting Rights Litigation Tracker 2020,'' Brennan Center for
Justice, July 28, 2020, accessed April 8, 2022, https://
www.brennancenter.org/our-work/court-cases/voting-rights-litigation-
tracker-2020.
---------------------------------------------------------------------------
The analysis focuses on those lawsuits that raised false claims of
fraud and attempted to disrupt or overturn the election, which were
filed in 17 States.\30\ Although courts rejected these suits,\31\ in
2021 legislators in 16 of the 17 States where suits were filed
introduced bills to restrict access to voting.\32\ The majority of
lawsuits filed before or immediately after the 2020 election centered
on allegations that the mail voting process was not secure, despite
well-settled evidence to the contrary.\33\ Not surprisingly, the most
common theme of new restrictive voting legislation last year was, in
turn, an effort to restrict mail voting.\34\
---------------------------------------------------------------------------
\30\ Katie Friel and Will Wilder, Finding the Same Misinformation
in Anti-Voter Lawsuits and Anti-Voter Legislation, Brennan Center for
Justice (forthcoming), https://www.brennancenter.org/our-work/research-
reports/finding-same-misinformation-anti-voter-lawsuits-and-anti-voter.
The Brennan Center's analysis focused exclusively on those 2020
election lawsuits that relied on false claims about voter fraud and
sought to disrupt or overturn the election. The analysis included
lawsuits filed before the election that relied on false fraud claims
and sought to enjoin certain methods of voting or have certain
categories of votes cast out. It also included lawsuits filed after the
election that used false claims of fraud to seek to invalidate certain
categories of votes or overturn the election entirely. The analysis
excluded cases filed by pro se litigants that made vague allegations of
fraud that were not specific to any State or jurisdiction.
\31\ Helderman and Viebeck, `` `The Last Wall.' ''
\32\ Friel and Wilder, Finding the Same Misinformation.
\33\ Wendy R. Weiser, ``The False Narrative of Vote-by-Mail
Fraud,'' Brennan Center for Justice, April 10, 2020, https://
www.brennancenter.org/our-work/analysis-opinion/false-narrative-vote-
mail-fraud.
\34\ Friel and Wilder, Finding the Same Misinformation.
---------------------------------------------------------------------------
In fact, the connections between the 2020 litigation claims and the
2021 restrictive voting bills were much more specific than that. In 15
of the 16 States with both litigation and legislation, at least one
provision in a new restrictive voting bill can be directly traced to a
specific false claim made in a 2020 election lawsuit in that State.\35\
The similarities remain just as strong when looking only at the most
extreme category of lawsuits: Those filed after Election Day seeking to
overturn the results or block certification of an election. These
lawsuits, filed in at least 12 States, relied heavily upon spurious
claims of fraud that courts ultimately rejected.\36\ Yet in 11 of these
12 States, a provision contained in a 2021 restrictive voting bill
directly mirrors false claims made in those suits.\37\
---------------------------------------------------------------------------
\35\ Friel and Wilder, Finding the Same Misinformation.
\36\ Friel and Wilder, Finding the Same Misinformation.
\37\ Friel and Wilder, Finding the Same Misinformation.
---------------------------------------------------------------------------
In Arizona, for example, one 2020 lawsuit contested the results of
the Presidential election based in part upon an unproven claim that
out-of-State voters cast ballots in Arizona.\38\ The case was
dismissed, but in 2021 Arizona legislators introduced a bill to expand
voter roll purges in an effort to remove hypothetical out-of-State
voters from the voter rolls.\39\ Similarly, multiple cases in Wisconsin
challenged election officials' decision to accept absentee ballots
without a photo ID during the pandemic based upon the State's exemption
to the voter ID requirement for individuals who are ``indefinitely
confined.''\40\ In 2021, legislators introduced two bills to repeal the
exemption.\41\
---------------------------------------------------------------------------
\38\ Friel and Wilder, Finding the Same Misinformation; and Pet.
For Elec. Cont., Stevenson v. Ducey, No. CV2020-096490 (Ariz. Super.
Ct. 2020).
\39\ Friel and Wilder, Finding the Same Misinformation; and H.B.
2358, 55th Leg., Reg. Sess. (Ariz. 2021).
\40\ Friel and Wilder, Finding the Same Misinformation; and Pls.'
Compl., Feehan v. Wis. Elections Commission, 2020 WL 7630410 (E.D. Wis.
2020).
\41\ Friel and Wilder, Finding the Same Misinformation. S.B. 204,
2021 Leg., Reg. Sess. (Wis. 2021). One of the two bills (Wis. S.B. 204)
was passed by the legislature but subsequently vetoed by the Governor.
---------------------------------------------------------------------------
In some States, the connections between 2020 litigation claims and
2021 legislative efforts were especially pronounced. In Georgia, for
instance, litigation pushed four spurious claims to cast doubt upon the
election results: (i) Poll watchers were deliberately blocked from
observing ballot processing, creating doubt in the accuracy of the
counting process; (ii) the State's use of drop boxes increased the risk
of fraud; (iii) absentee ballots generally threaten election integrity
and lead to fraud; and (iv) private foundations used grant funding to
gain undue influence over election officials.\42\ These claims were
unsuccessful, and yet the Georgia legislature reinforced them by
signing into law Senate Bill 202, which: (i) Expands legal rights of
poll watchers to observe elections without constraints by election
administrators; (ii) limits the availability of drop boxes; (iii)
significantly restricts access to mail voting by imposing stricter
identification requirements for absentee voters and narrows the window
to apply for absentee ballots; and (iv) prohibits local election
administrators from accepting funding from private sources.\43\
---------------------------------------------------------------------------
\42\ Friel and Wilder, Finding the Same Misinformation.
\43\ Friel and Wilder, Finding the Same Misinformation; and S.B.
202, 156th Gen. Assemb., Reg. Sess. (Ga. 2021).
---------------------------------------------------------------------------
Pennsylvania illustrates the connection between baseless lawsuits
challenging the integrity of the 2020 election and 2021 election
sabotage provisions. Many of the legal challenges in Pennsylvania
falsely claimed that the State's certification of the 2020 election was
somehow invalid.\44\ Although unfounded, these claims did influence
Pennsylvania legislators, who introduced at least five resolutions in
2021 directly aimed at invalidating the results of the 2020
election.\45\ Legal challenges in the State also made allegations of
fraud as to the State's ``notice and cure'' practice, by which election
officials notify voters if there is an issue with their mail-in ballot
and provide the voter with an opportunity to fix the mistake.\46\ While
those claims were rejected, legislators subsequently introduced a bill
to prohibit election officials from providing any opportunity for
voters to cure their mail ballots.\47\
---------------------------------------------------------------------------
\44\ Friel and Wilder, Finding the Same Misinformation.
\45\ Friel and Wilder, Finding the Same Misinformation.
\46\ Friel and Wilder, Finding the Same Misinformation.
\47\ Friel and Wilder, Finding the Same Misinformation.
---------------------------------------------------------------------------
ii. Analysis of Public Statements by Proponents of
Restrictive Voting and Election Sabotage
Legislation
A second recent Brennan Center analysis examined public statements
made by sponsors and key proponents of restrictive voting and election
sabotage legislation in the States and found that those sponsors
justified their legislation using the same discredited claims of a
wide-spread fraud and a stolen election that fueled the insurrection.
The analysis focused on two sets of public rhetoric: (i) Statements
made by the chief sponsors and co-sponsors of the 13 most restrictive
new laws passed in 2021; and (ii) statements concerning all 25 such
bills introduced in Georgia and all 31 introduced in Pennsylvania in
2021, as these two States saw some of the most aggressive restrictive
voting and election sabotage bills.\48\ In total, the analysis
uncovered relevant statements for 58 bills \49\ made in legislative
proceedings, at campaign events, to reporters, and on social media,
with striking results.
---------------------------------------------------------------------------
\48\ Andrew Garber, Election Denial Rhetoric from Sponsors of State
Voter Suppression Legislation, Brennan Center for Justice
(forthcoming), https://www.brennancenter.org/our-work/research-reports/
election-denial-rhetoric-sponsors-state-voter-suppression-legislation.
The analysis excluded legislation with more minor voting restrictions
and mixed legislation that included both provisions that restricted
voting access and expanded it.
\49\ Garber, Election Denial Rhetoric. In total, the analysis
reviewed 68 bills (one of which is a Georgia bill that was counted both
in the list of the most restrictive new laws and in the list of
restrictive voting bills in Georgia). Fifty-eight of these 68 bills
contained relevant public statements from their sponsors.
---------------------------------------------------------------------------
We found, first, that the vast majority of the 58 bills were
sponsored by legislators who publicly questioned the validity of the
2020 election, including the chief sponsors of 10 of the 13 most
restrictive new State laws.\50\ For example, Arkansas Representative
Mark Lowery, who served as the chief sponsor of legislation enhancing
voter ID requirements,\51\ notably stated that he ``believe[s] Donald
Trump was elected President'' in 2020 and signed a letter asking for
audits of the 2020 election in every State and decertification of any
result declared ``prematurely and inaccurately.''\52\
---------------------------------------------------------------------------
\50\ Garber, Election Denial Rhetoric.
\51\ H.B. 1112, 93d Gen. Assemb., Reg. Sess. (Ark. 2021).
\52\ Garber, Election Denial Rhetoric.
---------------------------------------------------------------------------
Similarly, sponsors of 20 of the 25 restrictive bills introduced in
Georgia last year questioned the election's outcome, mostly by
suggesting that the surge in absentee ballots in 2020 led to fraud.\53\
Representative Barry Fleming, chair of the Georgia House Special
Committee on Elections formed in the wake of the 2020 election,
suggested in an op-ed that unreliable mail ballots changed the outcome
of certain races in 2020.\54\ He argued that ``Democrats [were] relying
on the always-suspect absentee balloting process to inch ahead in
Georgia and other close States'' and proceeded to compare mail ballots
to ``the shady part of town down near the docks you do not want to
wander into because the chance of being shanghaied is
significant.''\55\ He added: ``Expect the Georgia Legislature to
address that in our next session in January [2021].''\56\
Representative Fleming later shepherded Senate Bill 202--an omnibus
vote suppression and election sabotage package--through the House and
served as the lead sponsor on two other restrictive bills.\57\
---------------------------------------------------------------------------
\53\ Garber, Election Denial Rhetoric.
\54\ Garber, Election Denial Rhetoric; and Barry Fleming, ``Guest
Column: Republican Party Wins on Election Day, and Future Is Bright,''
Augusta Chronicle, November 15, 2020, https://www.augustachronicle.com/
story/opinion/columns/guest/2020/11/15/guest-column-republican-party-
wins-on-election-day-and-future-is-bright/43155971/.
\55\ Fleming, ``Guest Column: Republican Party Wins.''
\56\ Fleming, ``Guest Column: Republican Party Wins.''
\57\ Garber, Election Denial Rhetoric; and S.B. 202, 156th Gen.
Assemb., Reg. Sess. (Ga. 2021).
---------------------------------------------------------------------------
And in Pennsylvania, sponsors of 25 of the 31 restrictive bills
introduced in 2021 questioned the 2020 election's integrity.\58\
Representative Russ Diamond, for instance, wrote a Facebook post
alleging that there were ``troubling discrepancies between the numbers
of total votes counted and total numbers of voters who voted in the
2020 General Election.''\59\ He also believed that officials counted
200,000 extra votes and considered certifying Pennsylvania's election
results to have been ``absolutely premature, unconfirmed, and in
error.''\60\ Representative Diamond subsequently sponsored five bills
to restrict voting access in 2021 and served as the lead sponsor on
four.\61\
---------------------------------------------------------------------------
\58\ Garber, Election Denial Rhetoric.
\59\ Garber, Election Denial Rhetoric.
\60\ Garber, Election Denial Rhetoric.
\61\ Garber, Election Denial Rhetoric.
---------------------------------------------------------------------------
Second, sponsors of many vote suppression and election sabotage
bills introduced last year expressly connected those bills to false
claims about the 2020 election. Sponsors of 6 of the 13 most
restrictive bills made connections between voter fraud and the bill at
hand.\62\ For example, when introducing Senate Bill 1111, which would
have limited the types of addresses at which voters register to vote
and otherwise enhances ID requirements,\63\ Texas Senator Paul
Bettencourt maintained that the ``November 2020 election demonstrated
the lack of transparency and lack of integrity within the election
process.''\64\ Along with six other ``election integrity'' bills that
he filed, Senator Bettencourt posited that Senate Bill 1111 would help
``to make sure the problems we faced in 2020 will not happen
again.''\65\ In Pennsylvania, Senator Doug Mastriano--who was present
on Capitol grounds on January 6, held hearings in which Rudy Giuliani
spread false claims of voter fraud, attempted to lead a partisan audit
of the 2020 election, and reportedly claimed that he saw ``better
elections in Afghanistan'' \66\--went on to co-author a memorandum in
support of Senate Bill 515, which would repeal no-excuse mail
voting.\67\ The memo echoed his earlier rhetoric by claiming that the
bill would ``once again restore confidence in our democracy and shine a
light into the shadow of doubt that has been cast over Americans' most
democratic process.''\68\ Likewise in Georgia, sponsors of 9 of the
State's 25 restrictive bills argued that the provisions in those bills
were intended to address purported 2020 election fraud.\69\
---------------------------------------------------------------------------
\62\ Garber, Election Denial Rhetoric.
\63\ Garber, Election Denial Rhetoric; and S.B. 1111, 87th Leg.,
Reg. Sess. (Tex. 2021).
\64\ Garber, Election Denial Rhetoric.
\65\ Garber, Election Denial Rhetoric.
\66\ Garber, Election Denial Rhetoric.
\67\ Garber, Election Denial Rhetoric.
\68\ Garber, Election Denial Rhetoric.
\69\ Garber, Election Denial Rhetoric.
---------------------------------------------------------------------------
Finally, and not surprisingly, our analysis found that sponsors of
every piece of introduced and enacted legislation publicly justified
their legislation as measures to address voter fraud and election
integrity--often in language mirroring that used by proponents of
conspiracy theories relating to the 2020 election.\70\ This language
included, for example, trying to ``restore or confirm confidence in the
election process'' or creating ``an election where legal votes count,
and illegal votes do not.''\71\
---------------------------------------------------------------------------
\70\ Garber, Election Denial Rhetoric.
\71\ Garber, Election Denial Rhetoric.
---------------------------------------------------------------------------
______
In short, the connections uncovered by the Brennan Center's
research demonstrate that the same election denial that drove
litigation and rhetoric to overturn the 2020 election result played a
critical role in driving restrictive voting and election sabotage
efforts in 2021.
B. Restrictive Voting Legislation Fueled by Disinformation About the
2020 Election and Voter Fraud Is Harming Voters, and
Disproportionately Voters of Color
The spike in restrictive voting legislation in 2021 already is
harming voters, with a disproportionate amount of this harm falling on
voters of color. First, existing research has found measurable,
negative turnout effects for many of the types of provisions passed in
2021.\72\ For example, multiple social science studies have found that
measures that create stricter voter ID requirements or limit polling
place access markedly depress voter turnout, with larger effects for
voters of color.\73\ Other studies have found that reducing early in-
person voting opportunities can reduce turnout,\74\ as do earlier
registration deadlines \75\ and policies leading to long lines on
Election Day.\76\ Where empirical studies have not found a negative
turnout impact, that does not mean harm is not occurring, but rather
that it cannot be measured by existing empirical tools--or that large
amounts of resources have been invested to overcome these barriers and
maintain turnout levels.\77\ Already, the new law led to the rejection
of thousands of mail-in ballots in the March 2022 primary election.\78\
In Texas's largest counties, rejection rates ranged from between 6- and
almost 22%--significantly higher than the State's 1% rejection rate in
the 2020 election cycle.\79\ Similarly, after the passage of mail
voting restrictions in Georgia Senate Bill 202, voters in the State's
2021 local elections were 45 times more likely to have their mail
ballot applications rejected--and ultimately not vote as a result--than
in 2020.\80\ These examples represent just a small slice of the surge
in new restrictive voting legislation.
---------------------------------------------------------------------------
\72\ See, e.g., Brennan Center for Justice, The Impact of Voter
Suppression on Communities of Color, 2022, https://
www.brennancenter.org/our-work/research-reports/impact-voter-
suppression-communities-color.
\73\ Brennan Center, Impact of Voter Suppression on Communities of
Color.
\74\ Hannah L. Walker, Michael C. Herron, and Daniel A. Smith,
``Early Voting Changes and Voter Turnout: North Carolina in the 2016
General Election,'' Political Behavior 41 (2019); and Ethan Kaplan and
Haishan Yuan, ``Early Voting Laws, Voter Turnout, and Partisan Vote
Composition: Evidence from Ohio,'' American Economic Journal: Applied
Economics 12(1) (2020).
\75\ Greg Vonnahme, ``Registration Deadlines and Turnout in
Context,'' Political Behavior 34 (2012).
\76\ Stephen Pettigrew, ``The Downstream Consequences of Long
Waits: How Lines at the Precinct Depress Future Turnout,'' Electoral
Studies 71 (2021).
\77\ S.B. 1., 87th Leg., 1st Spec. Sess. (Tex. 2021)
\78\ Kevin Morris, Coryn Grange, and Zoe Merriman, The Impact of
Restrictive Voting Legislation, Brennan Center for Justice, 2022,
https://www.brennancenter.org/our-work/research-reports/impact-
restrictive-voting-legislation.
\79\ Morris, Grange, and Merriman, Restrictive Voting Legislation.
\80\ Ryan Little and Ari Berman, ``We Uncovered How Many Georgians
Were Disenfranchised by GOP Voting Restrictions. It's Staggering.''
Mother Jones, January 28, 2022, https://www.motherjones.com/politics/
2022/01/gop-voting-law-disenfranshised-georgia-voters/.
---------------------------------------------------------------------------
Second, as new laws begin to take effect, there is mounting
evidence that they already are disenfranchising voters. In Texas, for
example, Senate Bill 1 creates a more stringent voter ID requirement
pursuant to which voters must provide their driver's license number or
partial social security number that matches the county's own files.
Further, these new laws target and fall most harshly on voters of
color. There is a growing body of social science research proving that
restrictive voting laws disproportionately impact voters of color.\81\
There also is mounting evidence that the laws passed this year are
especially like to have, and already are having, that effect.
---------------------------------------------------------------------------
\81\ Brennan Center, Impact of Voter Suppression on Communities of
Color.
---------------------------------------------------------------------------
For example, new laws making mail voting more difficult target and
already are harming voters of color. Black voters--who make up about a
third of the electorate in Georgia--comprised half of all late ballot
application rejections in the State during 2021 local elections.\82\ In
Florida, an analysis of drop box usage amongst different groups
revealed that the State's new restrictions on this voting method will
impose greater burdens on Black voters than on other groups.\83\ And in
Arizona, the State's shorter window for voters to add missing
signatures to mail ballots will especially harm Navajo voters, many of
whom would have to travel hundreds of miles to an election office to
add their signature.\84\
---------------------------------------------------------------------------
\82\ Morris, Grange, and Merriman, Restrictive Voting Legislation.
\83\ Morris, Grange, and Merriman, Restrictive Voting Legislation;
and S.B. 90, 2021 Leg., Reg. Sess. (Fla. 2021).
\84\ Morris, Grange, and Merriman, Restrictive Voting Legislation;
S.B. 1003, 55th Leg., Reg. Sess. (Ariz. 2021); and Navajo Nation,
Office of the President and Vice President, ``Navajo Nation Leaders
Urge Arizona Governor to Veto Voter Suppression Bill,'' news release,
April 30, 2021, https://www.navajo-nsn.gov/News%20Releases/OPVP/2021/
Apr/FOR%20IMMEDIATE-
%20RELEASE%20%20Navajo%20Nation%20leaders%20urge%20Arizona%20Governor%20
to%- 20veto%20voter%20suppression%20bill.pdf.
---------------------------------------------------------------------------
There also is significant evidence that laws restricting voters
from receiving help when voting or registering to vote
disproportionately impact voters of color.\85\ Black and Latino voters
are more likely to depend upon the help of third-party organizations to
register and vote in Florida.\86\ As a result, the State's new limits
on these organizations will create a disproportionate impact on them as
compared to white voters.\87\ Similarly, many Native American voters in
Montana rely upon paid ballot collectors, as they often have infrequent
mail service and limited access to locations at which they can submit
their ballot.\88\ A new State law bans the use of paid ballot
collectors, creating a more burdensome voting process for many Native
Americans, especially those with disabilities or who may lack access to
transportation.\89\
---------------------------------------------------------------------------
\85\ Morris, Grange, and Merriman, Restrictive Voting Legislation.
\86\ Morris, Grange, and Merriman, Restrictive Voting Legislation.
\87\ Morris, Grange, and Merriman, Restrictive Voting Legislation;
and Fla. S.B. 90.
\88\ Morris, Grange, and Merriman, Restrictive Voting Legislation.
\89\ Morris, Grange, and Merriman, Restrictive Voting Legislation;
and H.B. 530, 2021 Leg., Reg. Sess. (Mont. 2021).
---------------------------------------------------------------------------
Further, new voter identification laws will disproportionately harm
voters of color. For example, although Black registered voters account
for only 30% of Georgia's registered voters, they comprise more than
half of those registrants without a qualifying State ID number or
driver's license under Senate Bill 202.\90\ This is consistent with
existing research that shows the racial turnout gap grows when States
enact strict voter ID laws.\91\
---------------------------------------------------------------------------
\90\ Morris, Grange, and Merriman, Restrictive Voting Legislation.
\91\ Brennan Center, Impact of Voter Suppression on Communities of
Color.
---------------------------------------------------------------------------
These disparate impacts are not coincidental. There is a growing
body of evidence that the push to restrict access to voting in the
States is inextricable from race. Social science studies over the past
decade have linked restrictive voting legislation to increases in
political participation or population growth by voters of color.\92\
Forthcoming Brennan Center research provides evidence that the
disinformation fueling restrictive voting legislation is perceived as
race-based and that racial resentment is one of the most significant
factors driving efforts to make voting more difficult.
---------------------------------------------------------------------------
\92\ Brennan Center, Impact of Voter Suppression on Communities of
Color; Daniel R. Biggers and Michael J. Hanmer, ``Understanding the
Adoption of Voter Identification Laws in the American States,''
American Politics Research 45 (2017); Keith G. Bentele and Erin E.
O'Brien, ``Jim Crow 2.0? Why States Consider and Adopt Restrictive
Voter Access Policies,'' Perspectives on Politics 11 (2013); and Angela
Behrens, Christopher Uggen, and Jeff Manza, ``Ballot Manipulation and
the `Menace of Negro Domination': Racial Threat and Felon
Disenfranchisement in the United States, 1850-2002,'' American Journal
of Sociology 109 (2003).
---------------------------------------------------------------------------
ii. the same election denial that drove the insurrection threatens
impartial election administrators
In addition to these on-going threats to voting rights and
electoral processes, disinformation about the 2020 election and voter
fraud also is driving a wave of attacks on impartial election
administrators. This risks triggering an election official retention
crisis as experienced and capable officials leave or are forced out of
their positions. Election denial also is politicizing--and
nationalizing--the races by which these election officials are chosen,
raising fears about who will replace the officials from both parties
\93\ who worked tirelessly to hold the line against election sabotage
during the 2020 election.
---------------------------------------------------------------------------
\93\ The 2020 Democracy Fund/Reed College Survey of Local Election
Officials found that 44% of local election officials surveyed
identified as Republican, compared to 33% who identified as Democrat
and 22% who described themselves as Independent (among the 72% of
respondents who shared their party identification). Paul Gronke et al.,
``Pursuing Diversity and Representation Among Local Election
Officials,'' Democracy Fund, May 20, 2021, https://democracyfund.org/
idea/pursuing-diversity-and-representation-among-local-election-
officials/.
---------------------------------------------------------------------------
A. Disinformation About the 2020 Election and Voter Fraud Is Driving
Attacks on Election Officials and Pushing Them out of Their
Positions
Election officials are facing unprecedented levels of threats and
harassment. These attacks, which range from vigilante threats and
intimidation to overt political interference and threats of
prosecution, are forcing impartial, experienced election workers across
the country to question their personal safety. Many of these attacks
stem from the same election denial that fueled both the insurrection
and the surge in restrictive voter and election sabotage legislation
discussed above.
i. Vigilante Threats and Harassment
In the wake of the 2020 election, threats and harassment against
State and local election officials have skyrocketed.\94\ A recent
survey of local election officials conducted by the Brennan Center
reveals that 1 in 6 local election officials have experienced threats,
ranging from racist and gendered harassment to death threats that named
the election official's spouse and children.\95\ More than 3 in 4 local
election officials said that threats have increased in recent years,
and nearly 1 in 3 know of at least one election worker who has left
their job at least in part because of fears for their safety.\96\ These
findings reaffirm previous research conducted by the Brennan Center,
which detailed patterns of harassment and interference directed at all
levels of State and local election administration following the 2020
election.\97\
---------------------------------------------------------------------------
\94\ Brennan Center for Justice and Bipartisan Policy Center,
Election Officials Under Attack, 2021, https://www.brennancenter.org/
our-work/policy-solutions/election-officials-under-attack, 3-5.
\95\ Brennan Center, Local Election Officials Survey, 6; Linda So
and Jason Szep, ``Exclusive--Two Election Workers Break Silence after
Enduring Trump Backers' Threats,'' Reuters, December 10, 2021, https://
www.reuters.com/article/us-usa-election-threats-georgia-exclusiv-
idCAKBN2IP0VZ; and James Verini, ``He Wanted to Count Every Vote in
Philadelphia. His Party Had Other Ideas,'' New York Times Magazine,
December 16, 2021, https://www.nytimes.com/2020/12/16/magazine/trump-
election-philadelphia-republican.html.
\96\ Brennan Center, Local Election Officials Survey, 5, 19.
\97\ Brennan Center and Bipartisan Policy Center, Election
Officials Under Attack.
---------------------------------------------------------------------------
Many of these attacks are traceable to the same stolen election
allegations that fueled the insurrection. The violent threats against
election workers have often explicitly invoked the baseless narratives
of wide-spread election fraud and a stolen election. One email
threatening to bomb polling places in Georgia declared that ``no one at
these places will be spared unless and until Trump is guaranteed to be
POTUS again.''\98\ In another case, a 63-year-old city clerk--who now
carries a handgun out of fear for her safety--recalls a man who
harassed her on the street and yelled ``why did you allow Trump to
lose? Why did you cheat?''\99\ Election officials themselves have
attributed increasing threats against them to disinformation; nearly 2
in 3 respondents in the Brennan Center's survey of local election
officials believe that false information is making their job more
dangerous.\100\
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\98\ Linda So, ``Trump-Inspired Death Threats Are Terrorizing
Election Workers,'' Reuters, June 11, 2021, https://www.reuters.com/
investigates/special-report/usa-trump-georgia-threats/.
\99\ Kyung Lah and Kim Berryman, ``This Grandmother Has Overseen
Dozens of Elections in Her City. And after 2020, She Carries a Gun,''
CNN, January 21, 2022, https://www.cnn.com/2022/01/21/politics/
michigan-wisconsin-election-worker-intimidation/index.html.
\100\ Brennan Center, Local Election Officials Survey, 12.
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Threats and harassment driven by election denial have continued at
a dangerous pace into 2022. A recent POLITICO review across major
social media platforms revealed a ``flood'' of recent posts promoting
2020 stolen election theories, including posts that used violent
imagery and explicitly discussed attacking election officials.\101\ In
February, the Department of Homeland Security issued an advisory
warning that election fraud disinformation could motivate violent
attacks on democratic institutions, including election workers, in the
months preceding the 2022 midterm elections.\102\ As 2022 elections
approach, these threats continue to directly impact the lives of
election officials.
---------------------------------------------------------------------------
\101\ Mark Scott and Rebecca Kern, ``The Online World Still Can't
Quit the `Big Lie,' '' POLITICO, January 6, 2022, https://
www.politico.com/news/2022/01/06/social-media-donald-trump-jan-6-
526562.
\102\ ``Summary of Terrorism Threat to the U.S. Homeland,''
Department of Homeland Security, last modified February 7, 2022,
accessed April 8, 2022, https://www.dhs.gov/ntas/advisory/national-
terrorism-advisory-system-bulletin-february-07-2022.
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ii. Political Interference and Threats of Prosecution
The aftermath of the 2020 election also sparked a barrage of
political attacks against election officials. These attacks included
the widely-reported efforts by former President Trump and his
supporters to overturn the election outcome in key swing States. Most
notably, the former President attempted to pressure Georgia Secretary
of State Brad Raffensperger, a Republican, to ``find 11,780 votes'' and
illegitimately declare him the State's winner.\103\ In Michigan, he
publicly pressured local and State officials to revoke their votes to
certify the election for President Biden.\104\ These initial efforts to
pressure election officials and sow distrust in the electoral system
stem from the same false allegations of a stolen election that drove
the insurrection.\105\
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\103\ Amy Gardner and Paulina Firozi, ``Here's the Full Transcript
and Audio of the Call Between Trump and Raffensperger,'' Washington
Post, January 5, 2021, https://www.washingtonpost.com/politics/trump-
raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-
11eb-83e3-322644d82356story.html.
\104\ Maggie Haberman et al., ``Trump Targets Michigan in His Ploy
to Subvert the Election,'' New York Times, November 19, 2020, https://
www.nytimes.com/2020/11/19/us/politics/trump-michigan-election.html.
\105\ See Brennan Center and Bipartisan Policy Center, Election
Officials Under Attack, 16-17; and Ann Gerhart, ``Election Results
Under Attack: Here Are the Facts,'' Washington Post, March 11, 2021,
https://www.washingtonpost.com/elections/interactive/2020/election-
integrity/.
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Even after the 2020 election result was definitively resolved,
political meddling persisted in the form of unsubstantiated audits and
recounts. In Maricopa County, Arizona Republican Party leaders
organized a sham ``audit'' of the county's election results in an
effort to discredit them.\106\ To this day, Republican leaders in
Arizona continue to claim--without evidence--that election
administrators mishandled thousands of ballots.\107\ The Arizona audit
sparked copycat movements across the country, as the Wisconsin and
Pennsylvania State legislatures ordered similar reviews of the 2020
vote.\108\ As recently as September 2021, the Texas secretary of
state's office announced a ``comprehensive forensic audit'' of the 2020
results in four major counties.\109\ And in Nevada, the State's
Republican Party compelled Republican Secretary of State Barbara
Cegavske to review nearly 123,000 ballots based upon unfounded
allegations of voter fraud.\110\ Secretary Cegavske's review, which
consumed 125 hours of her staff's time, found no evidence of
fraud.\111\
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\106\ Elizabeth Howard and Gowri Ramachandran, ``Partisan Arizona
Election `Audit' Was Flawed From the Start,'' Brennan Center for
Justice, September 27, 2021, https://www.brennancenter.org/our-work/
analysis-opinion/partisan-arizona-election-audit-was-flawed-start.
\107\ Howard Fischer Capitol Media Services, ``Another Senate
Subpoena Issued for Arizona 2020 Election Documents,'' Arizona Daily
Star, March 21, 2022, https://tucson.com/news/state-and-regional/govt-
and-politics/another-senate-subpoena-issued-for-arizona-2020-election-
documents/articledcc76aaa-a96d-11ec-a17a-b7f87b1c1504.html.
\108\ Michael Wines, ``Arizona's Criticized Election Review Nears
End, but Copycats Are Just Getting Started,'' New York Times, September
23, 2021, https://www.nytimes.com/2021/09/23/us/arizona-election-
review.html; Laurel White, ``Wisconsin's GOP-Backed Election
Investigation Expanded over the Holidays,'' Wisconsin Public Radio,
January 3, 2022, https://www.wpr.org/wisconsins-gop-backed-election-
investigation-expanded-over-holidays; and Sam Dunklau, ``Pa. Senate
Election `Audit' Contract Doesn't Say If the Public Will See the
Results,'' WITF, December 7, 2021, https://www.witf.org/2021/12/07/pa-
senate-election-probe-contract-doesnt-say-if-the-public-will-see-the-
results-among-other-things/.
\109\ Reid J. Epstein, ``Texas, Under Pressure From Trump,
Announces a `Full Forensic Audit' of the 2020 Election In Four
Counties,'' New York Times, September 23, 2021, https://wwwnytimes.com/
2021/09/23/us/politics/texas-trump-election-audit.html.
\110\ Jacob Solis, ``2020 Election Fraud Conspiracy Theories Remain
Central to Many Republican Campaigns,'' Nevada Independent, October 17,
2021, https://thenevadaindependent.com/article/2020-election-fraud-
conspiracy-theories-remain-central-to-many-republican-campaigns.
\111\ Barbara K. Cegavske, secretary of state, and Mark A.
Wlaschin, deputy secretary for elections, ``Re: Elections Integrity
Violation Reports,'' (via email, Nevada Office of the Secretary of
State: April 21, 2021), https://www.nvsos.gov/sos/home/
showpublisheddocument?id=9428.
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More disturbingly, election officials increasingly face threats in
the form of criminal prosecution. Just recently, election officials in
Wisconsin were threatened with jail time as part of a months-long,
spurious review of the 2020 Presidential election.\112\ Michael
Gableman, a former State Supreme Court justice leading the review for
Republican legislators, issued the threat after the chairwoman of the
State Elections Commission and several other officials refused to sit
for secret, closed-door interviews with him and instead requested to
sit for the interviews before a legislative committee.\113\ As
discussed in Part I above, other States such as Texas and Arizona are
passing laws that would impose criminal penalties on election officials
for routine activities and unintentional mistakes.\114\
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\112\ Patrick Marley, ``Wisconsin Republicans Seek to Jail More
Officials as Part of Their Review of the 2020 Presidential Election,''
Milwaukee Journal Sentinel, February 18, 2022, https://
www.jsonline.com/story/news/politics/2022/02/18/wisconsin-republicans-
michael-gableman-seeks-jail-officials-2020-Presidential-election-
review/6853176001/.
\113\ Marley, ``Wisconsin Republicans Seek to Jail More
Officials.''
\114\ S.B. 1, 87th Leg., 1st Spec. Sess. (Tex. 2021); and H.B.
2905, 55th Leg., Reg. Sess. (Ariz. 2021).
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Like the upsurge in vigilante attacks, the wave of political
attacks following the 2020 election finds its roots in the same
election denial that drove the insurrection. Unfortunately, political
attacks against election officials show no sign of abating.\115\ State
legislators across the county continue to propose bills that allow for
criminal penalties against, or the removal of, experienced election
officials.\116\ In fact, when the Brennan Center asked local election
officials to compare how worried they were about political interference
in the 2020 election with how worried they are about political
interference in future elections, nearly three times as many said they
are very worried about the future.\117\ In other words, election
officials themselves believe that the political attacks against them
will get worse.
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\115\ Grace Gordon, et al., The Dangers of Partisan Incentives for
Election Officials, Bipartisan Policy Center and Election Reformers
Network, 2022, https://bipartisanpolicy.org/report/the-dangers-of-
partisan-incentives-for-election-officials/.
\116\ NH H.B. 1567, 2022 Leg., Reg. Sess. (N.H. 2022); and S.F.
413, 89th Gen. Assemb., Reg. Sess. (Iowa 2021).
\117\ Brennan Center, Local Election Officials Survey, 9.
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iii. Growing Election Official Retention Crisis
These disinformation-driven attacks threaten to create a retention
crisis among election officials. According to the Brennan Center's
survey, 3 in 5 local election officials are concerned that threats and
harassment will make it more difficult to retain or recruit election
workers going forward.\118\ Disinformation also exacerbates the
already-heavy strain on election workers, who must spend significant
time correcting misleading and false information.\119\ Due to these
challenging circumstances, dozens of local election officials in
Michigan, Pennsylvania, and Wisconsin already have left their
positions.\120\ In Nevada, by 2024 more than a third of the State's 17
top county election officials will be new to the job.\121\ And Nation-
wide, 1 in 5 elected officials surveyed plan to leave their position
before 2024.\122\ These officials overwhelmingly cited stress and the
belief that politicians are attacking ``a system that they know is fair
and honest'' as their top reasons for leaving.\123\
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\118\ Brennan Center, Local Election Officials Survey, 19.
\119\ Brennan Center and Bipartisan Policy Center, Election
Officials Under Attack, 10.
\120\ Sean Golonka, ``Election Official Departures Rising Amid
Burnout, Angry Voters, New Requirements,'' Nevada Independent, January
23, 2020, https://thenevadaindependent.com/article/election-official-
departures-rising-amid-burnout-angry-voters-new-requirements.
\121\ Golonka, ``Election Official Departures.''
\122\ Brennan Center, Local Election Officials Survey, 18.
\123\ Brennan Center, Local Election Officials Survey, 18.
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B. Disinformation About the 2020 Election and Voter Fraud Is Distorting
State-wide Campaigns to Oversee Elections
The vast majority of the thousands of State and local election
officials in America are elected. This year, elections from town clerk
and supervisor to State secretary of state and Governor will decide who
will administer and certify the elections during the next Presidential
cycle in 2024.\124\ Twenty-seven States will hold elections for
secretary of state--the official who typically serves as a State's
chief election officer.\125\ These races are being run in the context
of a disinformation campaign intended to cast doubt on election
results, and a significant number of election official candidates in
these races are invoking claims that the 2020 election was
invalid.\126\
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\124\ Local officials, like county clerks, are typically
responsible for designing ballots, running polling places, employing
poll workers, and overseeing ballot counts. Secretaries of state are
often a State's chief election official, overseeing procedures for
voter registration and voting, as well as certifying results. Governors
can also be involved in election administration through appointments,
emergency declaration powers, and sometimes certification of results.
Ian Vandewalker and Lawrence Norden, Financing of Races for Offices
that Oversee Elections: January 2022, Brennan Center for Justice, 2022,
https://www.brennancenter.org/our-work/research-reports/financing-
races-offices-oversee-elections-january-2022.
\125\ Louis Jacobson, Secretary of State Races: More Important Than
Ever in 2022, and More Complicated, Too, Sabato's Crystal Ball--UVA
Center for Politics, December 1, 2021, https://centerforpolitics.org/
crystalball/articles/secretary-of-state-races-more-important-than-ever-
in-2022-and-more-complicated-too/.
\126\ Lawrence Norden and Derek Tisler, ``Addressing Insider
Threats in Elections,'' Brennan Center for Justice, December 8, 2021,
https://www.brennancenter.org/our-work/analysis-opinion/addressing-
insider-threats-elections.
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For example, many candidates embrace disinformation about the 2020
election and voter fraud in their pitch to voters and donors,
including--at the highest level--secretaries of state and gubernatorial
candidates. The States United Democracy Center found that 21 secretary
of state candidates disputed the results of the 2020 election,
including at least 1 candidate in 18 of the 27 States holding secretary
of state contests this year.\127\ Similarly, 24 of the 36 gubernatorial
contests this year have seen campaigns take part in this
disinformation.\128\
---------------------------------------------------------------------------
\127\ ``Secretary of State Races in 2022,'' States United Democracy
Center, last modified January 27, 2022, accessed April 8, 2022, https:/
/statesuniteddemocracy.org/wp-content/uploads/2022/02/sosdeniers.html.
\128\ ``Governor Races in 2022,'' States United Democracy Center,
last modified January 27, 2022, accessed April 8, 2022, https://
statesuniteddemocracy.org/wp-content/uploads/2022/02/govdeniers.html.
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This disinformation has, in turn, increased the prominence of these
races, illustrated by trends in the financing of contests for secretary
of state in key battleground States. Compared to recent election
cycles, campaigns are raising more money, from more donors, with
greater reliance upon out-of-State donations.
Across the States with the closest margins in the 2020 Presidential
contest that are holding secretary of state elections this year
(Arizona, Georgia, Michigan, Minnesota, Nevada, and Wisconsin), the
amount of campaign contributions has climbed more than 3 times higher
than at this point in the 2018 cycle and 8 times higher than 2014,
according to the Brennan Center's analysis.\129\
---------------------------------------------------------------------------
\129\ Ian Vandewalker, Financing of Races for Offices that Oversee
Elections: February 2022, Brennan Center for Justice, 2022, https://
www.brennancenter.org/our-work/research-reports/financing-races-
offices-oversee-elections-february-2022. We include the Wisconsin
secretary of state race even though that office does not administer
elections because election denial is an issue there. The Wisconsin
Elections Commission, like elections administrators in many States, has
been attacked over the 2020 elections. There has been a push, including
by several declared candidates for secretary of state or Governor, to
give the secretary of state greater power over elections. See Laurel
White, ``GOP Lawmaker Amy Loudenbeck Launches Secretary of State
Campaign, Calls for Office to Take Control of Elections,'' Wisconsin
Public Radio, December 1, 2021, https://www.wpr.org/gop-lawmaker-amy-
loudenbeck-launches-secretary-state-campaign-calls-office-take-control-
elections.
---------------------------------------------------------------------------
Disinformation about the 2020 election and voter fraud is primarily
responsible for this trend. Arizona, for example, has received National
attention for claims about election irregularities, as is discussed
above. One candidate, a leading fundraiser in the secretary of state
race, has claimed that ``Trump won'' and called for ``decertifying''
the election.\130\ Amidst this disinformation-driven dialog,
contributions to Arizona secretary of state candidates doubled since
the last cycle and have reached levels more than 8 times higher than at
this point in the 2014 cycle.\131\ Further, the number of donors giving
in this year's secretary of state election, 11,566, is higher than that
of recent cycles by a factor of 10.\132\ By comparison, only 1,235
people gave to all the Arizona secretary of state candidates combined
in 2018.\133\
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\130\ Vandewalker, Financing of Races for Offices: February 2022.
\131\ Vandewalker, Financing of Races for Offices: February 2022.
\132\ Vandewalker, Financing of Races for Offices: February 2022.
\133\ Vandewalker, Financing of Races for Offices: February 2022.
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In Michigan, one leading candidate has claimed that Dominion voting
machines used by the State changed votes and said that ``Trump won
Michigan.''\134\ Another has said the ``Big Lie'' is leading to ``an
effort to try again in 2024 what those democracy deniers attempted to
do in 2020 but failed.''\135\ Amid this rhetoric, contributions to
Michigan secretary of state candidates are 3 times higher than at this
point in the 2018 cycle.\136\ Incumbent Jocelyn Benson (D), who
administered the 2020 election in Michigan and opposes claims that the
2020 election was invalid, has raised $1.5 million, from 4,890
donors.\137\ Educator Kristina Karamo, Benson's Republican opponent,
has raised the second-largest amount: $233,494 from 2,206 donors.\138\
They each have more donors than those giving to all the secretary of
state candidates combined in the last cycle, which was 1,478.\139\
---------------------------------------------------------------------------
\134\ Jeremy Herb and Sara Murray, ``Trump-Backed Michigan
Secretary of State Candidate Spread False Election Claims and January 6
Conspiracy Theories,'' CNN, November 16, 2021, https://www.cnn.com/
2021/11/16/politics/kristina-karamo-michigan-secretary-of-state-
candidate/index.html.
\135\ Vandewalker and Norden, Financing of Races for Offices:
January 2022.
\136\ Vandewalker, Financing of Races for Offices: February 2022.
\137\ Vandewalker, Financing of Races for Offices: February 2022.
\138\ Beth LeBlanc, ``Benson Leads Karamo in Cash Haul for Michigan
Secretary of State's Race,'' Detroit News, January 31, 2022, https://
www.detroitnews.com/story/news/politics/2022/01/31/jocelyn-benson-
leads-kristina-karamo-cash-haul-michigan-secretary-state-race/
9288506002/; and Vandewalker, Financing of Races for Offices: February
2022.
\139\ Vandewalker, Financing of Races for Offices: February 2022.
---------------------------------------------------------------------------
Beyond the sheer amounts of money flowing into secretary of state
races, these contests for bureaucratic State positions are taking on a
more National profile as candidates attract unprecedented numbers of
donors and funding from outside their own State.
In Arizona, the amount that donors from other States have
contributed has soared to almost 10 times more than in the 2018 cycle
and over 30 times more than in either the 2014 or 2010 cycle.\140\
Republican State Representative Mark Finchem has received contributions
from 4,983 people who live outside Arizona--two-thirds of his
donors.\141\ Another secretary of state candidate, Democratic State
Representative Reginald Bolding, also counts a majority of his donors--
54% of his 1,390 contributors--from other States.\142\ In the 2018
cycle, by comparison, only 117 out-of-State donors made contributions
throughout the entire secretary of state contest.\143\
---------------------------------------------------------------------------
\140\ Vandewalker, Financing of Races for Offices: February 2022.
\141\ Vandewalker, Financing of Races for Offices: February 2022.
\142\ Vandewalker, Financing of Races for Offices: February 2022.
\143\ Vandewalker, Financing of Races for Offices: February 2022.
---------------------------------------------------------------------------
Similarly, the Michigan secretary of state election also has seen a
sudden increase in out-of-State funding. Donors living outside of
Michigan have contributed $474,977--three-and-a-half times higher than
the amount from the prior election, which also saw out-of-State funding
levels higher than each of the two election cycles before.\144\
---------------------------------------------------------------------------
\144\ Vandewalker, Financing of Races for Offices: February 2022.
---------------------------------------------------------------------------
In light of these numbers, it is important to recognize the
dangerous interplay between election denial, threats against election
officials, and the nationalization of races for election official
positions. As detailed above, disinformation-driven attacks against
election officials are pushing experienced officials from both parties
out of their positions. At the same time, the individuals who may
replace them will in many instances emerge from nationalized,
politically-charged races that heavily feature disinformation about the
2020 election and voter fraud. Our research shows that local election
officials themselves are worried about this very problem and the impact
on their profession: Over half of local election officials surveyed by
the Brennan Center worry that their incoming colleagues might believe
that ``wide-spread voter fraud'' contaminated the 2020 elections.\145\
---------------------------------------------------------------------------
\145\ Brennan Center, Local Election Officials Survey, 14.
---------------------------------------------------------------------------
Regardless of the outcome of these elections, relentless voter
fraud lies and conspiracy theories have damaged voter confidence in
election results, which is necessary for a functioning democracy. A
majority of Americans believe U.S. democracy is ``in crisis and at risk
of failing.''\146\ One candidate put it starkly: ``If American
democracy is to survive, political figures of both parties need to
abandon stolen-election claims.''\147\
---------------------------------------------------------------------------
\146\ Mallory Newall, Chris Jackson, and James Diamond, ``Seven in
Ten Americans Say the Country Is in Crisis, at Risk of Failing,''
Ipsos, January 3, 2022, https://www.ipsos.com/en-us/seven-ten-
americans-say-country-crisis-risk-failing.
\147\ Vandewalker and Norden, Financing of Races for Offices:
January 2022.
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______
My testimony has shown that the same allegations that fueled the
insurrection are continuing to wreak havoc on our democracy. The
attacks on our democracy, in turn, expose the uncomfortable truth that
our country does not have sufficient guardrails in place to protect our
elections from efforts to restrict voting, sabotage our electoral
processes, and undermine impartial election administration. To ensure
free and fair elections, we must bolster and strengthen those
guardrails. Most critically, we need baseline National standards for
voting access and election administration, protections against voting
discrimination, protections for impartial election administrators, and
other defenses against election sabotage.
Congress has broad authority under the Constitution to enact the
necessary legislation, and it came close to doing so earlier this year.
The Freedom to Vote: John R. Lewis Act, which narrowly failed to
overcome a filibuster in March, would address many of these problems.
Most importantly, it would establish National standards for the casting
and the counting of ballots in Federal elections and protect against
harmful rollbacks of voting rights, partisan efforts to discard or
otherwise manipulate election results, and attacks on election
officials who are simply following well-recognized best practices. It
also would directly insulate election officials from politicized
efforts to remove them, increase safeguards against vigilante threats
and harassment, curb the fraudulent ``audits'' that have been conducted
in Arizona and elsewhere, and give voters a statutory right to sue if
their voting rights are infringed, including by a failure to certify
lawful election results. It contains direct curbs on disinformation--
including a clear prohibition on the dissemination of false information
about elections designed to suppress the vote--as well as increased
transparency for paid political communications over the internet.
Finally, it would revitalize the landmark Voting Rights Act's
protections against racial discrimination in voting that the Supreme
Court has hobbled, among many other much-needed provisions.\148\
---------------------------------------------------------------------------
\148\ See Wilder, Tisler, and Weiser, The Election Sabotage Scheme;
Brennan Center for Justice, The Freedom to Vote Act, 2022, https://
www.brennancenter.org/our-work/research-reports/freedom-vote-act;
Hearing on Protecting a Precious, Almost Sacred Right: The John R.
Lewis Voting Rights Advancement Act, before the S. Comm. On Judiciary,
117th Cong. (2021) (testimony of Wendy Weiser, vice president for
democracy, Brennan Center for Justice), https://www.brennancenter.org/
our-work/research-reports/testimony-protecting-precious-almost-sacred-
right-john-r-lewis-voting; Hearing on Oversight of the Voting Rights
Act: Potential Legislative Reforms, before the H. Comm. on Judiciary,
Subcomm. on the Constitution, Civil Rights, & Civil Liberties, 117th
Cong. (2021) (testimony of Wendy Weiser, vice president for democracy,
Brennan Center for Justice), https://docshouse.gov/meetings/JU/JU10/
20210816/114010/HHRG-117-JU10-Wstate-WeiserW-20210816.pdf; Hearing on
the Oversight of the Voting Rights Act: A Continuing Record of
Discrimination, before the H. Comm. on Judiciary, Subcomm. on the
Constitution, Civil Rights & Civil Liberties, 117th Cong. (2021)
(testimony of Wendy Weiser, vice president for democracy, Brennan
Center for Justice), https://docs.house.gov/meetings/JU/JU10/20210527/
112700/HMTG-117-JU10-Wstate-WeiserW-20210527.pdf; Hearing on Voting in
America: The Potential for Polling Place Quality and Restrictions on
Opportunities to Vote to Interfere with Free and Fair Access to the
Ballot, 117th Cong. (2021) (testimony of Kevin Morris, Researcher,
Brennan Center for Justice), https://www.brennancenter.org/sites/
default/files/2021-06/Morris%20%20Written%20Testimony.pdf; Hearing on
Voting in America: A National Perspective on the Right to Vote, Methods
of Election, Jurisdictional Boundaries, and Redistricting, before the
H. Comm. on House Administration, Subcomm. on Elections, 117th Cong.
(2021) (testimony of Michael Waldman, president, Brennan Center for
Justice), https://www.brennancenter.org/sites/default/files/2021-06/
2021-06-22%20Waldman%20%20Testimony- .pdf; and Hearing on the
Implication of Brnovich v. Democratic National Committee and Potential
Legislative Responses, before the H. Comm. On Judiciary, Subcomm. on
the Constitution, Civil Rights, & Civil Liberties, 117th Cong. (2021)
(testimony of Sean Morales-Doyle, acting director, voting rights and
elections program, Brennan Center for Justice), https://docshouse.gov/
meetings/JU/JU10/20210716/113905/HHRG-117-JU10-Wstate-Morales-DoyleS-
20210716.pdf.
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The only way to neutralize the disinformation-driven threats to our
democracy and to protect against potentially catastrophic results is
through such Federal legislation. We strongly urge Congress to revisit
this critical bill and pass it into law.
______
Joint Statement of Christine Todd Whitman, former Governor of New
Jersey; Steve Bullock, former Governor of Montana; Jim Hood, former
Attorney General of Mississippi; Tom Rath, former Attorney General of
New Hampshire; Trey Greyson, former Secretary of State of Kentucky; and
Frankie Sue Del Papa, former Secretary of State of Nevada, For the
States United Democracy Center
May 27, 2022
Chair Thompson, Vice Chair Cheney, and distinguished Members of the
Select Committee, we are pleased to submit this statement in our
capacity as members of the Bipartisan Advisory Board of the States
United Democracy Center. States United is a nonpartisan organization
advancing free, fair, and secure elections. We focus on connecting
State officials, law enforcement leaders, and pro-democracy partners
across America with the tools and expertise they need to safeguard our
democracy. We are more than a think tank--we are an action tank.
Together, we are committed to making sure every vote is counted, every
voice is heard, and every election is safe. Our founders and Advisory
Board are comprised of former administration officials, law enforcement
leaders, and former State and local leaders from both the Republican
and Democratic political parties who are committed to engaging and
empowering pro-democracy leadership.
Thank you for the opportunity to submit this statement to help the
Select Committee in its on-going review of issues connected to the
attack on the United States Capitol on January 6, 2021. As we will
discuss, the attack that occurred on January 6, 2021, was not an
isolated event involving random protestors. Rather, it was the logical
next step in a continuing anti-democracy movement, instigated and
fomented by various people, including former President Donald Trump,
which was put into motion years earlier. But the movement does not
begin or end solely with Trump; a host of diverse groups of people are
involved, including lawyers such as Rudy Giuliani, Sidney Powell, and
John Eastman; advisors to Trump, like Roger Stone, Steve Bannon,
Michael Flynn, and Mike Lindell; and State and local officials from all
over the country, including Pennsylvania State Senator and Republican
nominee for the Governorship of Pennsylvania Doug Mastriano, Arizona
Republican Party Chair Kelli Ward, and Texas Attorney General Ken
Paxton.
January 6 was also merely a next step, not a final one. Events
leading up to and following that day reveal a sustained and coordinated
effort by the former president and his anti-democracy allies to
suppress voting rights, delegitimize free and fair elections, and
subvert the will of the voters by overturning election results deemed
undesirable to their movement. As we explain in our testimony, many of
the tactics used to produce the January 6 attack and many of the people
who affirmatively helped make it happen are still hard at work
undermining our democracy today.
i. the january 6, 2021, attack on the capitol was not an isolated event
The unprecedented and horrific attack on the United States Capitol
on January 6, 2021, was not an isolated event. It was just one in a
years-long series of coordinated efforts by former President Trump, his
advisors, various lawyers, and like-minded State and local officials to
delegitimize and attempt to overturn President Joseph Biden's victory
in the November 2020 Presidential election.
a. The Precursors to the Current Anti-Democracy Movement
The anti-democracy movement in America is not new, but Trump's
leading role in it can be traced back to the 2012 Presidential
election. As early as election night on November 6, 2012, when then-
President Obama was reelected after defeating now-Senator Mitt Romney,
Trump tweeted that the election was a ``total sham'' and a
``travesty,'' and claimed that the United States is not a democracy.\1\
Trump also asserted via Twitter that there were ``reports of voting
machines switching Romney votes to Obama'' and warned voters to
``[m]ake sure to verify the voting machine does not switch your
vote.''\2\ After major news outlets called the race for then-President
Obama around 11 p.m. on November 6, Trump tweeted, ``We can't let this
happen . . . We should march on Washington and stop this travesty. Our
nation is totally divided!''\3\ The next day, Trump foreshadowed his
2016 election campaign slogan, tweeting: ``We have to make America
great again!''\4\
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\1\ Trump Twitter Archive, Donald J. Trump (@realDonaldTrump) (Nov.
6, 2012, 11:33 PM EST), https://www.thetrumparchive.com.
\2\ Trump Twitter Archive, Donald J. Trump (@realDonaldTrump) (Nov.
6, 2012, 2:56-2:57 PM EST), https://www.thetrumparchive.com.
\3\ Trump Twitter Archive, Donald J. Trump (@realDonaldTrump) (Nov.
6, 2012, 11:29 PM EST), https://www.thetrumparchive.com.
\4\ Trump Twitter Archive, Donald J. Trump (@realDonaldTrump) (Nov.
7, 2012, 2:03 PM EST), https://www.thetrumparchive.com.
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Two years later, during the midterm elections in November 2014,
Trump furthered his conspiracy theory, baselessly alleging wide-spread
election fraud, claiming that ``[e]lection officials [were] saying that
there is nothing stopping illegal immigrants from voting. This is very
bad (unfair) for Republicans!''\5\ Trump repeated the same baseless
narrative leading up to the 2016 election when polls predicted that
former Secretary Hillary Clinton would win the presidency. In October
2016, Trump tweeted that the ``election is absolutely being rigged by
the dishonest and distorted media pushing Crooked Hillary--but also at
many polling places--SAD.''\6\ Even after he won the election, he
continued to falsely declare that he had won the popular vote, even
though Clinton won the popular vote by almost 3 million votes.\7\ While
complaining about unfairness or mismanagement of elections may be valid
where wrong-doing has actually occurred, Trump and his allies'
complaints are striking because they have no factual basis, they are
made preemptively (before the elections even take place), and they are
baked into an ideological certainty that their side must win or else
the elections are rigged. This view has served as a litmus test to
determine whether one is a true ally of the anti-democracy movement.
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\5\ Trump Twitter Archive, Donald J. Trump (@realDonaldTrump) (Oct.
31, 2014, 4:43 PM EST), https://www.thetrumparchive.com.
\6\ Trump Twitter Archive, Donald J. Trump (@realDonaldTrump) (Oct.
16, 2016, 1:01 PM EST), https://www.thetrumparchive.com.
\7\ 2016 Presidential Election Results, N.Y. Times (Aug. 9, 2017),
https://www.nytimes.com/elections/2016/results/president; Trump has
longstanding history of calling elections `rigged' if he doesn't like
the results, ABC News (Nov. 11, 2020), https://abcnews.go.com/Politics/
trump-longstanding-history-calling-elections-rigged-doesnt-results/
story?id=74126926; Trump Twitter Archive, Donald J. Trump
(@realDonaldTrump) (Nov. 27, 2016, 3:30 PM EST), https://
www.thetrumparchive.com (``In addition to winning the Electoral College
in a landslide, I won the popular vote if you deduct the millions of
people who voted illegally.'').
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Trump was far from alone in touting these anti-democracy lies. For
example, as Trump was ramping up for the 2016 election, his long-time
confidante, Roger Stone, reportedly sent him a 13-page strategy
memorandum, suggesting that the campaign should emphasize that the
``system is rigged against the citizens.''\8\ Additionally, in an
interview on a far-right radio show, Stone explained that he thought
Trump's campaign should address ``wide-spread voter fraud'' and
``talk[] about it constantly.''\9\ Likewise, Rudy Giuliani, former
mayor of New York City who would later become Trump's lawyer, asserted
on CNN that one would have been a ``moron'' to assume there would be no
election fraud in cities like Philadelphia and Chicago.\10\
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\8\ Trump and the Truth: The ``Rigged'' Election, The New Yorker
(Oct. 8, 2016), https://www.newyorker.com/news/news-desk/trump-and-the-
truth-the-rigged-election.
\9\ Trump labels Clinton `the devil' and suggests election will be
rigged, The Guardian (Aug. 2, 2016), https://www.theguardian.com/us-
news/2016/aug/02/donald-trump-calls-hillary-clinton-the-devil-and-
suggests-election-will-be-rigged?CMP=fb_gu.
\10\ Why Trump's talk of a rigged vote is so dangerous, CNN (Oct.
19, 2016), https://www.cnn.com/2016/10/18/politics/donald-trump-rigged-
election/index.html.
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While complaints about the results of an election routinely emanate
from leaders on both sides of the aisle following a contest, former
President Trump and his allies' behavior stands out because of its
reliance on falsehoods, conspiracies, and blatant lies.\11\ In short,
for the better part of the last decade, Trump and his allies
intentionally planted seeds to cast doubt on legitimate election
results and to foment suspicions among a substantial portion of the
American public that voting is rigged, so much so that the number of
votes cast for the other side cannot be trusted and the election
results cannot be believed. This narrative feeds on baseless assertions
that votes from undocumented immigrants, deceased individuals, or
people who have moved are changing election outcomes \12\ and on
general distrust in democratic institutions, including the Government
itself, as well as the press, spurred by Trump's ``fake news''
campaign.\13\ Because these false election-related theories have now
become so ubiquitous, anti-democracy activists can (and often do) claim
that any electoral losses by their preferred candidates must be the
result of wide-spread voter fraud--and for that reason must be
overturned. The poisonous seeds planted in the past decade flourished
during the 2020 election, leading up to the Capitol attack on January
6, 2021, and have continued to grow in ways that severely threaten the
life and health of our democracy.
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\11\ Steven Levitsky & Daniel Ziblatt, The Crisis of American
Democracy, American Educator (Fall 2020), https://files.eric.ed.gov/
fulltext/EJ1272137.pdf; Nicolas Berlinksi et al., The Effects of
Unsubstantiated Claims on Confidence in Elections, https://cpb-us-
e1.wpmucdn.com/sites.dartmouth.edu/dist/5/2293/files/2021/03/voter-
fraud.pdf?_sm_au_=iHV4TH4F6TNDzFH7FcVTvKQkcK8MG.
\12\ How a racist myth about immigrants voting continues to fuel
unproven claims of voter fraud, Los Angeles Times (June 25, 2021),
https://www.latimes.com/california/story/2021-06-25/racist-myth-of-
immigrants-voting-fuels-claims-of-voter-fraud.
\13\ Donald Trump's ``Fake News'' Tactics, The New Yorker (Dec. 2,
2017), https://www.newyorker.com/magazine/2017/12/11/donald-trumps-
fake-news-tactics.
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b. The Anti-Democracy Movement in the Run-Up to the 2020 Election
When former President Trump was up for reelection in 2020, he and
his allies (new and old), including lawyers, advisors, and State and
local officials, built upon his long-standing efforts to cast doubt on
the legitimacy of the voting process. Ultimately, this metastasized
into a full-throated attempt to overthrow the legitimate Presidential
election of November 2020, commonly known as the ``Stop the Steal''
movement.
This movement stemmed from the baseless theory that expanded mail-
in voting, which was being offered or expanded in many States because
the COVID-19 pandemic made in-person voting difficult or dangerous,
would cause rampant voter fraud. There is no truth to the assertion
that wide-spread mail-in voting leads to wide-spread voter fraud,\14\
nor is there any support for Trump's assertions that undocumented
immigrants cast significant numbers of mail-in ballots in our
elections.\15\ Instead, former President Trump and his allies created
this narrative leading up to the 2020 election because they believed
that mail-in ballots could skew heavily toward then-candidate Biden--
especially during the pandemic when many of Trump's proponents eschewed
social distancing and other safety precautions and called upon Trump's
base to do the same.\16\ Because mail-in voting was expanded for the
2020 election, it was well understood that days or weeks would likely
be required to count all votes following Election Day.\17\ As a
consequence, it was widely expected that votes counted on Election Day
would skew toward former President Trump, but that as the mail-in
ballots cast on or before Election Day were counted, the number of
votes for Biden would increase.\18\ Thus, efforts by the former
President and his allies to delay the mail, to discourage mail-in
voting, and to stop counting ballots past November 3, 2020, were
entirely self-serving.
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\14\ Natalie Scala, et. al, Evaluating mail-based security for
electoral processes using attack trees, Risk Analysis: An International
Journal (Jan. 24, 2022), https://onlinelibrary.wiley.com/doi/full/
10.1111/risa.13876; Why a Vote-by-Mail Option is Necessary, Brennan
Center for Justice (Apr. 7, 2020), https://www.brennancenter.org/our-
work/research-reports/why-vote-mail-option-necessary; How does vote-by-
mail work and does it increase election fraud?, Brookings (June 22,
2020), https://www.brookings.edu/policy2020/votervital/how-does-vote-
by-mail-work-and-does-it-increase-election-fraud/.
\15\ The Actually True and Provable Facts About Non-Citizen Voting
TIME (Feb. 13, 2017), https://time.com/4669899/illegal-citizens-voting-
trump/; Yet again, Trump falsely blames illegal voting for getting
walloped in California, Wash. Post (July 23, 2019), https://
www.washingtonpost.com/politics/2019/07/23/yet-again-trump-falsely-
blames-illegal-voting-getting-walloped-california/; Analysis:
Noncitizen Voting is Vanishingly Rare, Brennan Center for Justice (Jan.
25, 2017), https://www.brennancenter.org/our-work/research-reports/
analysis-noncitizen-voting-vanishingly rare; Noncitizens Don't
Illegally Vote in Detectable Numbers, Cato Institute (Nov. 25, 2020),
https://www.cato.org/blog/noncitizens-dont-illegally-vote-detectable-
numbers.
\16\ A step-by-step look at Trump's falsehoods on mail-in voting:
Analysis, ABC News (Oct. 1, 2020), https://abcnews.go.com/politics/
step-step-trumps-falsehoods-mail-voting-analysis/story?id=73354979;
Edward B. Foley, A Big Blue Shift: Measuring an Asymmetrically
Increasing Margin of Litigation, 48 Journal of Law & Politics 501
(2013), http://www.lawandpolitics.org/hifi/files/content/vol-xxvii-no-
4/Foley_Color_116.pdf; Richard L. Hasen, Beyond the Margin of
Litigation: Reforming U.S. Election Administration to Avoid Electoral
Meltdown, 62 Wash. & Lee L. Rev. 937 (2005), https://law2.wlu.edu/
deptimages/Law%20Review/62-3Hasen.pdf; see also The `Blue Shift' Will
Decide the Election The Atlantic (Aug. 10, 2020), https://
www.theatlantic.com/ideas/archive/2020/08/brace-blue-shift/615097/.
\17\ How Long Will Vote Counting Take? Estimates and Deadlines in
All 50 States, N.Y. Times (updated Nov. 7, 2020), https://
www.nytimes.com/interactive/2020/upshot/vote-counting-today-polls-
election.html; How many votes will be counted after election night?,
MIT News (Oct. 15, 2020), https://news.mit.edu/2020/votes-counted-
after-election-1015; How Trump's mail voting sabotage could result in
an election night nightmare, Vox (Aug. 11, 2020), https://www.vox.com/
2020/8/11/21358960/trump-mail-voting-sabotage-explained.
\18\ Id.
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An effort to impede the functioning of the United States Postal
Service (USPS) gained steam in May 2020 when the USPS Board of
Governors, all appointed by Trump, selected Trump campaign donor Louis
DeJoy to be postmaster general.\19\ Shortly after DeJoy assumed office,
the USPS adopted a number of operational changes that threatened to
delay mail deliveries, including reductions in the availability of
overtime, restrictions on extra trips to transport mail, and
elimination of some mail processing equipment.\20\ Reporting complaints
from constituents about a slowdown in service, Members of Congress from
both parties, including anumber of ardent Trump supporters, pushed back
against these changes. Republican U.S. Sen. Steve Daines and Republican
U.S. Reps. Brian Fitzpatrick, Greg Gianforte, Peter King, David
McKinley, and Daniel Webster sent or signed on to letters with
Democratic Members of Congress to DeJoy pressing for reversal of the
changes in mail handling.\21\
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\19\ Board of Governors Announces Selection of Louis DeJoy to Serve
as Nation's 75th Postmaster General, U.S. Postal Serv. (May 6, 2020),
https://about.usps.com/newsroom/national-releases/2020/0506-bog-
announces-selection-of-louis-dejoy-to-serve-as-nations-75th-postmaster-
general.htm.
\20\ Following Yesterday's Meeting, Leader Schumer and Speaker
Pelosi Send New Letter to Postmaster DeJoy Calling for Immediate
Reversal of Recent Postal Service Changes that Threaten Timely Mail
Delivery for Millions, Senate Democrats (Aug. 6, 2020), https://
www.democrats.senate.gov/newsroom/press-releases/following-yesterdays-
meeting-leader-schumer-and-speaker-pelosi-send-new-letter-to-
postmaster-dejoy-calling-for-immediate-reversal-of-recent-postal-
service-changes-that-threaten-timely-mail-delivery-for-millions.
\21\ Senator Steve Daines, Letter to Postmaster General Louis DeJoy
(Aug. 8, 2020), https://www.daines.senate.gov/imo/media/doc/USPS%20-
%20Mail%20Delay.%202020.08.06.pdf; Carolyn B. Maloney et al., Letter to
Postmaster General Louis DeJoy (Aug. 6, 2020), https://
oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-08-
06.CBM%20et%20al.%20to%20DeJoy-
%20PMG%20re%20Postal%20Standards%20Changes.pdf; Congress urges Postal
Service to undo changes slowing mail, AP (Aug. 6, 2020), https://
apnews.com/article/virus-outbreak-seniors-mt-state-wire-voting-steve-
daines-a291ebc31c5638aa5a9adafc2ff2b430.
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At the same time, Trump disseminated theory after theory about how
mail-in voting would contaminate the 2020 election, further laying the
foundation for claims of fraud to be made in the event of a Biden win
in November. On May 21, 2020, at a press conference in Michigan, he
said of mail-in ballots, ``who knows who's signing it? . . . [T]hey
pirate these applications . . . You have all of the harvesting . . .
They walk in at the end of a race . . . and then all of a sudden, out
of the blue come thousands of votes at the very end.''\22\ Trump
tweeted on May 24 that ``People grab [ballots] from mailboxes, print
thousands of forgeries and `force' people to sign. Also, forge
names.''\23\ On June 22, he tweeted, ``RIGGED 2020 ELECTION: MILLIONS
OF MAIL-IN BALLOTS WILL BE PRINTED BY FOREIGN COUNTRIES, AND OTHERS. IT
WILL BE THE SCANDAL OF OUR TIMES!''\24\
---------------------------------------------------------------------------
\22\ Remarks by President Trump in Listening Session with African
American Leaders, The White House (May 21, 2020), https://
trumpwhitehouse.archives.gov/briefings-statements/remarks-president-
trump-listening-session-african-american-leaders-ypsilanti-mi/.
\23\ Trump Twitter Archive, Donald J. Trump (@realDonaldTrump) (May
24, 2020, 10:08 AM EST), https://www.thetrumparchive.com.
\24\ Trump attacks mail-in voting with new series of false claims,
The Guardian (June 22, 2020) https://www.theguardian.com/us-news/2020/
jun/22/trump-mail-in-voting-fraud-claims.
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Trump, who had already been opposing a $25 billion package of
resources requested by the Postal Service, stated openly in August 2020
that withholding the funds would prevent ``universal mail-in
voting.''\25\ On the Fox Business Network, the former President told
host Maria Bartiromo on August 13 that, ``[i]f we don't make a deal,
that means they don't get the money, [which] means they can't have
universal mail-in voting; they just can't have it.''\26\ Shortly after
these comments, and after sustained bipartisan pressure, Postmaster
General DeJoy announced suspension of some changes at the Postal
Service and promised to ``deliver the nation's election mail on time
and within our well-established service standards.''\27\ Ultimately,
the inspector general for the Postal Service concluded that the Postal
Service prioritized processing election mail during the 2020 election
cycle and that, while timeliness fell slightly below target goals, it
improved significantly over the delivery speed for election mail during
the 2018 midterm election cycle.\28\
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\25\ USPS Requests $75B in Emergency Funds to Keep Agency Alive,
Gov. Exec. (Apr. 9, 2020), https://www.govexec.com/management/2020/04/
usps-requests-75b-emergency-funds-keep-agency-alive/164506/; see also
President Trump with Coronavirus Task Force Briefing, C-SPAN at 36:44
(Apr. 7, 2020), available at https://www.c-span.org/video/?471020-1/
president-trump-criticizes-who-comments-resignation-acting-navy-
secretary.
\26\ Trump admits he's blocking postal cash to stop mail-in votes,
AP (Aug. 13, 2020), https://apnews.com/article/virus-outbreak-election-
2020-ap-top-news-elections-politics-14a2ceda724623604cc8d8e5ab9890ed.
\27\ Postmaster General Louis DeJoy Statement, U.S. Postal Serv.
(Aug. 18, 2020), https://about.usps.com/newsroom/national-releases/
2020/0818-postmaster-general-louis-dejoy-statement.htm.
\28\ Office of the Inspector General, United States Postal Service,
Service Performance of Election and Political Mail During the November
2020 General Election (Mar. 5, 2021), https://www.uspsoig.gov/document/
service-performance-election-and-political-mail-during-november-2020-
general-election.
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Although Trump and his allies never pointed to any evidence of
significant voter fraud, they continued to claim that mail-in voting
could lead to such fraud. For instance, Doug Mastriano, a Pennsylvania
State senator, originally voted to pass a law in 2019 called Act 77
that expanded access to mail-in ballots to any voter who requested
one.\29\ However, after an unprecedented number of Pennsylvanians
applied for mail-in ballots by April 2020, Mastriano was quoted as
saying, ``I feel a bit dubious about this,'' due to purportedly
heightened risks of voter fraud.\30\ In Texas, Attorney General Ken
Paxton praised the U.S. Supreme Court's rejection of a case seeking to
extend access to mail-in ballots because he thought the rejection would
help guard against ``wide-spread fraud.''\31\
---------------------------------------------------------------------------
\29\ Op-Ed: How Pennsylvania Democrats Hijacked Act 77, Senator
Doug Mastriano (Jan. 26, 2022), https://senatormastriano.com/2022/01/
26/op-ed-how-pennsylvania-democrats-hijacked-act-77/ (noting ``[e]very
single Republican Senator voted for [Act 77]'' in October 2019); With
audit, Pa. Sen. Mastriano is obscuring his own role in fomenting
election chaos, Pennsylvania Capital-Star (July 11, 2021), https://
www.penncapital-star.com/commentary/with-audit-pa-sen-mastriano-is-
obscuring-his-own-role-in-creating-act-77-fomenting-election-chaos-
opinion/; Unprecedented volume of mail-in voting looming in primary,
The Daily Item (Apr. 30, 2020) https://www.dailyitem.com/news/
local_news/unprecedented-volume-of-mail-in-voting-looming-in-primary/
article_e7710206-72c7-522f-ba8f-6bb6f5519d9a.html.
\30\ Unprecedented volume of mail-in voting looming in primary, The
Daily Item (Apr. 30, 2020) https://www.dailyitem.com/news/local_news/
unprecedented-volume-of-mail-in-voting-looming-in-primary/
article_e7710206-72c7-522f-ba8f-6bb6f5519d9a.html.
\31\ Voting rules changed quickly for the primaries. But the battle
over how Americans will cast ballots in the fall is just heating up.,
Wash. Post (July 3, 2020), https://www.washingtonpost.com/politics/
voting-rules-changed-quickly-for-the-primaries-but-the-battle-over-how-
americans-will-cast-ballots-in-the-fall-is-just-heating-up/2020/07/03/
9b865dfa-ba43-11ea-80b9-40ece9a701dc_story.html.
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c. The Anti-Democracy Movement from November 3, 2020, to January 6,
2021
Between the election on November 3, 2020, and the Electoral College
vote count on January 6, 2021, the ``Stop the Steal'' movement employed
a multifaceted approach to subvert the will of the American people.
Their efforts were often chaotic, and when a given tactic failed, they
shifted focus to another that might succeed in overturning the election
result favoring Biden. During this period, their strategy encompassed
five primary anti-democracy efforts: (1) Inspired by Trump and his
allies' statements, aggressive and dangerous protests at central count
facilities in States with narrow margins while ballots were still being
counted; (2) a wave of baseless lawsuits alleging wide-spread election
fraud; (3) a campaign to pressure Republican officials to overturn
election results; (4) the creation of a group of sham electors from
swing States to sign certificates falsely claiming that former
President Trump had won the election in their States; and (5) a broader
disinformation campaign intended to persuade portions of the American
public that Trump was the rightful winner of the 2020 Presidential
election.
First, the Trump-inspired protests.--On election night, in the
early morning hours of Wednesday, November 4, former President Trump
appeared on television declaring that he had won the election. After
listing several States where he claimed to be in the lead or nearly so,
the former President declared, ``most importantly, we're winning
Pennsylvania by a tremendous amount.''\32\ This announcement was met by
a standing ovation from his audience of supporters. He continued, ``We
want all voting to stop. We don't want them to find any ballots at 4
o'clock in the morning and add them to the list.''\33\ At the time,
vote counting was ongoing in Pennsylvania, because under State law
absentee ballots could not be canvassed until Election Day. On Twitter
at 3:04 a.m., Al Schmidt, a Republican commissioner on the Philadelphia
County Board of Elections responded to the then-President of the United
States: ``Philadelphia will NOT stop counting ALL legitimate votes cast
by eligible voters. And we will report and report and report until the
last vote is counted.''\34\
---------------------------------------------------------------------------
\32\ Trump declares victory prematurely, says will go to Supreme
Court to dispute election count, YouTube (Nov. 4, 2020), https://
www.youtube.com/watch?v=NsI3jcgiIhA.
\33\ Id.
\34\ Al Schmidt (@commish--schmidt), Twitter (Nov. 4, 2020),
https://twitter.com/commish_schmidt/status/1323898927666659328.
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The following night, Kevin McCarthy, the Minority Lead of the U.S.
House of Representatives, spoke on Fox News about fraud supposedly
taking place in vote counting facilities around the country. He urged
listeners to ``not be quiet, do not be silent about this. We cannot
allow this to happen before our very eyes.''\35\ Hundreds of
demonstrators then showed up outside central count facilities in
numerous cities chanting, ``stop the steal'' and calling for police to
``arrest the poll workers,'' and carrying signs that read ``Make
Elections Fair Again'' and ``We Love Trump.''\36\ Many of these
demonstrators were also carrying guns--some of them handguns, and
others, military-style semiautomatic rifles.\37\
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\35\ 77 Days: Trump's Campaign to Subvert the Election, N.Y. Times
(Jan. 31, 2021), https://www.nytimes.com/2021/01/31/us/trump-election-
lie.html.
\36\ Increasingly normal: Guns seen outside vote counting centers,
AP (Nov. 7, 2020), https://apnews.com/article/protests-vote-count-
safety-concerns-653dc8f0787c9258524078548d518992.
\37\ Id.; Two charged with carrying weapons near Philadelphia vote-
counting site, Wash. Post (Nov. 8, 2020); https://
www.newsnationnow.com/politics/2020-election/trump-supporters-protest-
outside-vote-centers-in-arizona-michigan/.
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In the days and weeks immediately following Election Day, central
count facilities in large and traditionally Democratic-leaning cities
such as Philadelphia, Detroit, Atlanta, Milwaukee, Phoenix, and Las
Vegas were confronted by angry protesters demanding to oversee vote
counting and questioning the legitimacy of the voting process. There
was nothing suspicious about the count process taking longer than in
past elections in these cities--they have much larger populations than
their rural counterparts and thus had to process a larger number of
mail-in ballots--but then-President Trump had expressed outrage that
ballots were being counted past Election Day.
Poll workers reported fearing for their safety as they worked to
count the remaining votes.\38\ In Detroit, poll workers were harassed
by unruly challengers yelling, taunting, jeering, and pounding their
fists on windows while the counting went on.\39\ In Pennsylvania,
Commissioner Schmidt later described his work as ``racing against a
disinformation campaign that could potentially disenfranchise voters .
. . It's not about the campaign or about who you want to win. This is
never about who wins and who doesn't. But if a campaign is trying to
disenfranchise the voters of Philadelphia, you can't not respond to
it.''\40\ While votes were still being counted, Trump's supporters
began attending ``Stop the Steal'' rallies in various cities as
disparate as Boise, Idaho; Colorado Springs, Colorado; and Delray
Beach, Florida to protest Biden's victory.\41\ Pro-Trump State
lawmakers attended many of these rallies, which often involved
altercations between Trump supporters and counter-protesters.\42\
---------------------------------------------------------------------------
\38\ Increasingly normal: Guns seen outside vote counting centers,
AP (Nov. 7, 2020), https://apnews.com/article/protests-vote-count-
safety-concerns-653dc8f0787c9258524078548d518992.
\39\ `Get to TCF': What really happened inside Detroit's ballot
counting center, Detroit Free Press (Nov. 6, 2020), https://
www.freep.com/story/news/local/michigan/detroit/2020/11/06/tcf-center-
detroit-ballot-counting/6173577002/.
\40\ He Wanted to Count Every Vote in Philadelphia, His Party Had
Other Ideas., N.Y. Times, (Dec. 16, 2020), https://www.nytimes.com/
2020/12/16/magazine/trump-election-philadelphia-republican.html.
\41\ Trump supporters gather for `Stop the Steal' rally in Boise,
Idaho Press (Nov. 7, 2020), https://www.idahopress.com/news/local/
trump-supporters-gather-for-stop-the-steal-rally in-boise/
article_2110cb2a-35c6-52ba-a753-336ad7b8bef3.html; Trump supporters
gather for `Stop the Steal' rally in Colorado Springs, Fox21News (Nov.
7, 2020), https://www.fox21news.com/top-stories/trump-supporters-
gather-for-stop-the-steal-rally-in-colorado-springs/; `Stop the steal'
protestors rally in Delray Beach to show support for Trump, CBS12 (Nov.
7, 2020), https://cbs12.com/news/local/stop-the-steal-protestors-rally-
in-delray-beach-to-show-support-for-trump.
\42\ Id.
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Second, the lawsuits.--At the news conference at Four Seasons Total
Landscaping in Philadelphia on November 7, 2020, Rudy Giuliani
announced the Trump campaign's intention to begin litigation over
allegations of voter fraud in Pennsylvania and other States.\43\ On
November 13, Sidney Powell, a lawyer aligned with the Trump campaign,
appeared on the Fox Business Network proclaiming to host Lou Dobbs that
there had been massive voter fraud ``organized and conducted with the
help of Silicon Valley people, the big tech companies, the social media
companies and even the media companies.''\44\ Powell promised to combat
the fraud with overwhelming evidence in blockbuster lawsuits, pledging
that she would ``release the Kraken.''\45\ Powell proceeded to file
lawsuits in Arizona, Georgia, Michigan, and Wisconsin, alleging that
manipulated voting machines destroyed ballots and switched votes. Each
of these lawsuits was dismissed as baseless by the courts.\46\ The
district court in Michigan presciently observed that Powell's lawsuit
there ``seems to be less about achieving the relief Plaintiffs seek--as
much of that relief is beyond the power of this Court--and more about
the impact of their allegations on People's faith in the democratic
process and their trust in our government.''\47\
---------------------------------------------------------------------------
\43\ Rudy Giuliani Trump Campaign Philadelphia Press Conference at
Four Seasons Total Landscaping, Rev Transcripts (Nov. 7, 2020), https:/
/www.rev.com/blog/transcripts/rudy-giuliani-trump-campaign-
philadelphia-press-conference-november-7.
\44\ `Release the Kraken,' a catchphrase for unfounded conspiracy
theory, trends on Twitter, N.Y. Times (Nov. 17, 2020), https://
www.nytimes.com/2020/11/17/technology/release-the-kraken-a-catchphrase-
for-unfounded-conspiracy-theory-trends-on-twitter.html.
\45\ ``Release the Kraken'' is a reference to a line from the 1981
movie ``The Clash of the Titans,'' featuring the mythical sea monster.
Id.
\46\ Sidney Powell's `Kraken' lawsuits failed again, as judges in
Michigan, Georgia, Arizona, and Wisconsin have now dismissed her cases,
Business Insider (Dec. 10, 2020), https://www.businessinsider.com/
sidney-powell-lawsuits-dismissed-michigan-georgia-arizona-wisconsin-
2020-12; Federal judges reject GOP effort to overturn swing State
election results, Politico (Dec. 7, 2020), https://www.politico.com/
news/2020/12/07/judge-rejects-overturn-michigan-election-results-
443411.
\47\ King et al. v. Whitmer et al., Case No. 20-cv-13134-LVP-RSW
(E.D. Mich.), ECF No. 62, 35-36.
---------------------------------------------------------------------------
In reality, the anti-democracy movement never had a legal strategy
in pursing this long string of lawsuits. Instead, this was a public
relations strategy from the start: Their only goal was to generate
noise about election fraud, repeated in case after case and headline
after headline, with the goal of creating the false public impression
that the vote must have been affected by some level of corruption. In
total, Trump and his allies filed more than 75 baseless lawsuits in
State and Federal courts seeking to overturn election results in States
where Trump lost.\48\
---------------------------------------------------------------------------
\48\ Post-Election Litigation Analysis and Summaries, Stanford-MIT
Healthy Elections Project (Mar. 10, 2021), https://
healthyelections.org/sites/default/files/2021-06/Post-
Election_Litigation_Analysis.pdf.
---------------------------------------------------------------------------
To be clear, we are not suggesting that post-election litigation is
necessarily illegitimate--the ability to challenge election results in
court is an important tool to ensure free and fair elections in our
country. But these lawsuits were illegitimate because they were not
based on any evidence or plausible allegations of any kind. Indeed,
Trump's claims of election fraud were debunked by officials in his own
administration. On November 23, 2020, then-Attorney General William
Barr told Trump that, based on the Justice Department's investigation,
the notion that voting machines were rigged in Biden's favor was
``bullshit.''\49\ Additionally, on December 1, Attorney General Barr
told Trump that the theory of voting machine fraud was ``demonstrably
crazy.''\50\ The same day, the former Attorney General announced
publicly that the Justice Department had not found any wide-spread
election fraud.\51\
---------------------------------------------------------------------------
\49\ Bob Woodward & Robert Costa, Peril 166 (2021).
\50\ Id. at 170.
\51\ Disputing Trump, Barr says no wide-spread election fraud, AP
(Dec. 1, 2020), https://apnews.com/article/barr-no-widespread-election-
fraud-b1f1488796c9a98c4b1a9061a6c7f49d.
---------------------------------------------------------------------------
Unsurprisingly, Trump's legal team lost all but one of their post-
election lawsuits (the one suit in which they prevailed had nothing to
do with fraud, nor could it have changed the outcome of the
election).\52\ Many of these cases failed for basic lack of standing.
For example, Texas Attorney General Ken Paxton filed a lawsuit (in
which Trump sought to intervene) in the U.S. Supreme Court, seeking to
invalidate millions of votes cast in Georgia, Michigan, Pennsylvania,
and Wisconsin.\53\ The Supreme Court denied Paxton's request to
initiate the case in a one-page order, holding that Texas had no
standing to sue about ``the manner in which another State conducts its
election.''\54\
---------------------------------------------------------------------------
\52\ Trump did not win two-thirds of election lawsuits `where
merits considered', Politifact (Feb. 9, 2021), https://
www.politifact.com/factchecks/2021/feb/09/blog-posting/trump-did-not-
win-two-thirds-election-lawsuits-whe/.
\53\ Texas v. Pennsylvania, et al., 141 S. Ct. 1230 (2020); Trump
asks Supreme Court to invalidate millions of votes in battleground
states, CNN (Dec. 10, 2020), https://www.cnn.com/2020/12/09/politics/
trump-supreme-court/index.html.
\54\ Texas v. Pennsylvania, et al., 141 S. Ct. 1230 (2020).
---------------------------------------------------------------------------
Other courts dismissed similar lawsuits because there was no merit
to the allegations of voter fraud.\55\ For instance, Kelli Ward, a
former Arizona State senator and the chair of the Arizona Republican
Party, filed a lawsuit seeking to overturn Biden's narrow victory in
Arizona. After hearing 2 days of testimony and oral arguments, the
trial court found ``no misconduct, no fraud and no effect on the
outcome of the election.''\56\ The Arizona Supreme Court affirmed the
decision, holding that Ward ``failed to present evidence of misconduct
or illegal votes, `let alone establish any degree of fraud or a
sufficient error rate that would undermine the certainty of the
election results,' '' and the U.S. Supreme Court declined to hear
Ward's case.\57\ In another example, attorney Erick Kaardal filed suit
on December 22, 2020, in Federal district court in Washington, DC on
behalf of a group of voter alliances from several States seeking, among
other things, to enjoin Vice President Mike Pence from counting the
Electoral College votes for several States.\58\ This last-ditch effort
failed, and the judge found the allegations so baseless that she
referred Kaardal to a disciplinary committee.\59\ Another Federal
district court judge in Michigan granted a motion for sanctions against
Trump's lawyers who brought an election fraud lawsuit there, including
Sidney Powell. The court's order, more than 100 pages in length,
concluded that the ``lawsuit represent[ed] a historic and profound
abuse of judicial process.''\60\ A Colorado State court judge--who also
granted sanctions against the lawyers who brought a putative class
action lawsuit alleging wide-spread voter fraud in the Presidential
election--found the plaintiffs' complaint to be ``one enormous
conspiracy theory.''\61\
---------------------------------------------------------------------------
\55\ By the numbers: President Donald Trump's failed efforts to
overturn the election, USA Today (Jan. 6, 2021) www.usatoday.com/in-
depth/news/politics/elections/2021/01/06/trumps-failed-efforts-
overturn-election-numbers/4130307001/; Trump's judicial campaign to
upend the 2020 election: A failure, but not a wipe-out, Brookings (Nov.
30, 2021), https://www.brookings.edu/blog/fixgov/2021/11/30/trumps-
judicial-campaign-to-upend-the-2020-election-a-failure-but-not-a-wipe-
out/.
\56\ Ward v. Jackson, Case No. CV2020-015285 (Ariz. Super. Ct. Dec.
4, 2020); Judge rejects Arizona Republican Party's attempt to overturn
election results; GOP vows appeal, AZCentral (Dec. 4, 2020), https://
www.azcentral.com/story/news/politics/elections/2020/12/04/arizona-
judge-rejects-republican-effort-overturn-State-election-results/
3821578001/.
\57\ Ward v. Jackson, Case No. CV-20-0343-AP/EL (Ariz. Sup. Ct.
Dec. 8, 2020); Ward v. Jackson, et al., No. 20-809 (U.S. Feb. 22, 2021)
(denying petition for review), https://www.supremecourt.gov/
search.aspx?filename=/docket/docketfiles/html/public/20-809.html;
Election lawsuit from Arizona GOP chair Kelli Ward denied hearing by
U.S. Supreme Court, AZCentral (Feb. 22, 2021), https://
www.azcentral.com/story/news/politics/elections/2021/02/22/us-supreme-
court-wont-hear-kelli-wards-lawsuit-arizona-election/4544983001/.
\58\ Wisc. Voters Alliance v. Pence, et al., Case No. 1:20-cv-
03791-JEB (D.D.C. Dec. 22, 2020), ECF No. 1.
\59\ Id., ECF No. 23.
\60\ King et al. v. Whitmer et al., Case No. 2:20-cv-1314-LVP-RSW
(E.D. Mich. Aug. 25, 2021), ECF No. 172.
\61\ O'Rourke et al. v. Dominion Voting Systems et al., Case No.
1:20-cv-03747-NRN (D. Colo. Aug. 3, 2021), ECF No. 136.
---------------------------------------------------------------------------
Third, the pressure campaign aimed at State officials.--Trump and
his allies also bombarded State officials in key swing States,
pressuring them to alter election results in his favor. For example, in
Arizona, in the weeks following the election, Republican chair of the
Maricopa County Board of Supervisors, Clint Hickman, received calls
from the White House, Rudy Giuliani, and Kelli Ward urging the Board to
announce that it had discovered voting irregularities. Hickman refused
these requests so that the Board's work and related litigation could
follow their proper course. As Hickman stated, ``We were in litigation
at all these points . . . Whatever needed to be said, needed to be said
in a courtroom in front of a judge or a jury.''\62\
---------------------------------------------------------------------------
\62\ Maricopa County supervisor on rejecting calls from Trump
allies: `Whatever needed to be said, needed to be said in a courtroom',
CNN (July 5, 2021), https://www.cnn.com/2021/07/05/politics/clint-
hickman-trump-giuliani-election-calls-maricopa-county-cnntv/index.html.
---------------------------------------------------------------------------
Similarly, Aaron Van Langevelde, a Republican member of the
Michigan State Board of Canvassers, recounted that ``some political
leaders urged the Board to withhold certification [of electoral votes
for Biden] based on unproven allegations of voter fraud, even though we
had no legal authority to do so . . . We were asked to take power we
didn't have. What would have been the cost if we had done so?
Constitutional chaos and the loss of our integrity.''\63\ Van
Langevelde refused, and Michigan certified its electoral votes for
Biden.
---------------------------------------------------------------------------
\63\ Aaron Van Langevelde's speech about the 2020 election: `We
were asked to take power we didn't have', Boston Globe (July 5, 2021),
https://www.bostonglobe.com/2021/07/05/nation/aaron-van-langeveldes-
speech-about-2020-election-we-were-asked-take-power-we-didnt-have/.
---------------------------------------------------------------------------
Trump and his closest advisors also directly pressured State
legislators. In mid-November 2020, days before Michigan certified its
election results, Trump invited members of the Michigan State
legislature to come to the White House, including the House speaker and
Senate majority leader.\64\ Around a week later, he invited several
Pennsylvania lawmakers, including Doug Mastriano.\65\ Attorneys Rudy
Giuliani and Jenna Ellis visited members of several State legislatures
on Trump's behalf, including in Arizona,\66\ Pennsylvania, and Michigan
to make allegations of voter fraud and to pressure the lawmakers to
take legislative action to overturn the results.\67\ Giuliani told the
Pennsylvania contingent: ``It's the State [l]egislature that controls
this process. It's your power. It's your responsibility. And I think
you know, and you have to convince the rest of your members, Republican
and Democrat, [that] they owe that to the people of their State, and
they owe that to the people of the United States.''\68\
---------------------------------------------------------------------------
\64\ Michigan lawmakers who met with Trump say they see nothing to
change election outcome, CNN (Nov. 21, 2020), https://www.cnn.com/2020/
11/20/politics/michigan-house-speaker-will-meet-trump/index.html.
\65\ President Trump invited Pa. lawmakers to the White House. Then
everyone went silent., PennLive (Nov. 27, 2020), https://
www.pennlive.com/news/2020/11/president-trump-invited-pa-lawmakers-to-
the-white-house-then-everyone-went-silent.html.
\66\ Arizona GOP lawmakers hold meeting on election outcome with
Trump lawyer Rudy Giuliani AZCentral (Nov. 30, 2020), https://
www.azcentral.com/story/news/politics/elections/2020/11/30/republican-
lawmakers-arizona-hold-meeting-rudy-giuliani/6468171002/.
\67\ Here's How The Trump Campaign Is Still Trying to Overturn
Biden's Victory, Forbes (Dec. 1, 2020), https://www.forbes.com/sites/
alisondurkee/2020/12/01/heres-how-the-trump-campaign-is-still-trying-
to-overturn-bidens-victory/?sh=132938f13561.
\68\ Giuliani tells Pennsylvania legislators they can override
popular vote to appoint pro-Trump electors, Yahoo! News (Nov. 25,
2020), https://news.yahoo.com/giuliani-tells-pennsylvania-legislators-
they-can-override-popular-vote-to-appoint-pro-trump-electors-
010121925.html.
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On January 2, 2021, Trump, joined by attorney Cleta Mitchell,\69\
called Brad Raffensperger, the Republican Secretary of State of
Georgia, pressuring him to ``find'' enough votes for a Trump victory.
Trump pressed Raffensperger, asserting that ``the ballots are corrupt.
And you're going to find that they are--which is totally illegal, it is
more illegal for you than it is for [those who corrupted them] because,
you know what they did and you're not reporting it.
---------------------------------------------------------------------------
\69\ How a lawyer who aided Trump's 2020 subversion efforts was
named to a Federal election advisory board, CNN (Nov. 18, 2021),
https://www.cnn.com/2021/11/18/politics/cleta-mitchell-election-
assistance-commission-advisor/index.html.
---------------------------------------------------------------------------
That's a criminal--that's a criminal offense.'' Raffensperger did
not give in to this pressure, answering instead: ``Well, Mr. President,
the challenge that you have is the data you have is wrong.''\70\
---------------------------------------------------------------------------
\70\ Transcript: President Trump's Phone Call With Georgia Election
Officials, N.Y. Times (Jan. 3, 2021), https://www.nytimes.com/2021/01/
03/us/politics/trump-raffensperger-georgia-call-transcript.html.
---------------------------------------------------------------------------
These instances are only a few examples. Trump and his team were
contacting everyone they could in their attempt to overturn the
election result. It is thanks to Hickman, Van Langevelde,
Raffensperger, and other courageous local election officials around the
country that this effort to not count eligible votes or to find
additional votes for Trump that did not exist failed.
Fourth, the fake electors.--In an effort reportedly overseen by
Rudy Giuliani and Trump campaign officials,\71\ people who would have
been electors from seven swing States had Trump won declared themselves
the rightful electors on December 14, 2020. These sham electors
``submitted false Electoral College certificates declaring Trump the
winner of the Presidential election in Arizona, Georgia, Michigan, New
Mexico, Nevada, Pennsylvania and Wisconsin.''\72\
---------------------------------------------------------------------------
\71\ Trump campaign officials, led by Rudy Giuliani, oversaw fake
electors plot in 7 States, CNN (Jan. 20, 2022), https://www.cnn.com/
2022/01/20/politics/trump-campaign-officials-rudy-giuliani-fake-
electors/index.html.
\72\ EXPLAINER: How fake electors tried to throw result to Trump,
AP (Feb. 21, 2022), https://apnews.com/article/capitol-siege-joe-biden-
presidential-elections-election-2020-electoral-college-
311f88768b65f7196f52a4757dc162e4.
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Trump's allies then used these sham electors to try to overturn the
election. In Arizona, 30 Republican lawmakers, including Arizona State
Representative Mark Finchem,\73\ signed a joint resolution asking
Congress to accept their State's ``alternate'' electoral votes cast for
Trump.\74\ On January 6, several of Trump's allies in the House and
Senate used these fake certificates to delay and attempt to block the
certification of Biden's victory during Congress's joint session.\75\
---------------------------------------------------------------------------
\73\ Donald Trump is now backing a QAnon conspiracy theorist to run
Arizona's elections, CNN (Sept. 14, 2021), https://www.cnn.com/2021/09/
14/politics/donald-trump-mark-finchem-arizona/index.html.
\74\ `This should terrify the nation': the Trump ally seeking to
run Arizona's elections, The Guardian (Feb. 21, 2022), https://
www.theguardian.com/us-news/2022/feb/21/mark-finchem-trump-arizona-
elections-secretary-of-state.
\75\ EXPLAINER: How fake electors tried to throw result to Trump,
AP (Feb. 21, 2022), https://apnews.com/article/capitol-siege-joe-biden-
presidential-elections-election-2020-electoral-college-
311f88768b65f7196f52a4757dc162e4.
---------------------------------------------------------------------------
These fake electors were a necessary component of a scheme that
centered on then-Vice President Pence and that was set to culminate on
January 6 when he would throw out the legitimate electoral votes from
those States and substitute in the fake ones--if he could be persuaded
to do so. By law and custom, the Vice President plays only a ceremonial
role in the electoral process. Under Article II of the Constitution and
the Electoral Count Act of 1887, the Vice President opens the
certificates of votes sent by the States' Presidential electors and,
after the votes have been counted, announces the outcome, officially
certifying the result of the Presidential election.\76\
---------------------------------------------------------------------------
\76\ Trump Says Pence Can Overturn His Loss in Congress. That's Not
How it Works, N.Y Times (Apr. 30, 2021), https://www.nytimes.com/2021/
01/05/us/politics/pence-trump-election.html. The limited role of the
Vice President in the certification of the electoral results was even
reflected in testimony from Mr. Eastman himself following the 2000
Presidential election. He stated then that under the Electoral Count
Act, Congress ``counts'' the votes and is ``the ultimate judge'' of
disputes about the count and, in doing so, ``is answerable to no one,
not the Supreme Court of the United States, not the Supreme Court of
Florida, in that judging, because that power is delegated to it by the
Constitution.'' 67 Florida Select Joint Committee on the Manner of
Appointment of Presidential Electors, 2000, (Fl. 2000) (testimony of
Professor John C. Eastman), https://www.c-span.org/video/?160847-1/
manner-appointment-presidential-electors.
---------------------------------------------------------------------------
But Trump advisor and then-professor at Chapman University John
Eastman concocted a plan spelled out in memoranda in late December 2020
and early January 2021 in which Pence would ignore his legal
obligations at the joint session of Congress on January 6 and would
refuse to recognize electoral votes from several States based on a
claim that there were ``multiple slates of electors'' in those States
(i.e., the valid electors and sham electors discussed earlier). Pence
was either to declare an outright victory for Trump or to pass the
Presidential election to the House of Representatives. Since each State
delegation in the House would have one vote, the Republicans' control
of 26 State delegations was expected to ensure a majority for
Trump.\77\
---------------------------------------------------------------------------
\77\ READ: Trump lawyer's memo on six-step plan for Pence to
overturn the election, CNN (Sep. 21, 2021), https://www.cnn.com/2021/
09/21/politics/read-eastman-memo/index.html (two-page memo).
---------------------------------------------------------------------------
Eastman argued that these measures, though ``BOLD,'' were justified
by the fact that ``this Election was Stolen by a strategic Democrat
plan to systematically flout existing election laws for partisan
advantage,'' and ``we're no longer playing by Queensbury Rules,
therefore.''\78\ Trump demanded that Pence take part in this scheme,
essentially presenting Pence with a choice between violating the
Constitution and being denounced by Trump, likely dashing any chance
Pence had of ever becoming President himself with support from Trump's
base.\79\ As this Select Committee well knows, in March of this year, a
Federal judge weighed in on Eastman's plot. In a civil case related to
the Committee's pursuit of documents from Eastman, the court found that
Eastman and Trump most likely had committed felonies, including by
obstructing the work of Congress in counting electoral votes and
conspiring to defraud the United States.\80\ The court called the
scheme ``a coup in search of a legal theory.''\81\
---------------------------------------------------------------------------
\78\ Id. (six-page memo).
\79\ Pence Reached His Limit With Trump. It Wasn't Pretty, N.Y.
Times (Jan. 12, 2021), https://www.nytimes.com/2021/01/12/us/politics/
mike-pence-trump.html.
\80\ Eastman v. Thompson et al., Case No. 8:22-cv-00099-DOC-DFM
(C.D. Cal. Mar. 28, 2022), ECF. No. 260.
\81\ Id.
---------------------------------------------------------------------------
Around the same time that John Eastman was working on his January 6
legal strategy from outside the administration, Jeffrey Clark, the
acting Assistant Attorney General for the Department of Justice's Civil
Division, was working on a legal strategy from within the Government.
By late December, Clark told colleagues that he was aware of
information implicating Chinese intelligence in using thermometers to
change the election results, despite there being no evidence of such
foreign interference.\82\ On December 28, 2020, Clark emailed his
superiors with a draft letter that urged Georgia officials to convene
the State legislature in a special session to investigate
``irregularities'' in the election.\83\ Fortunately, his superiors
refused to send the letter.\84\
---------------------------------------------------------------------------
\82\ How a Trump Environmental Lawyer Tried To Weaponize the
Justice Department To Help the President, CNN (Aug. 6, 2021), https://
www.cnn.com/2021/08/06/politics/doj-clark-trump-election/index.html.
\83\ Trump Loyalist at DOJ Circulated Draft Georgia Letter with
False Election Fraud Claims ABC News (Aug. 4, 2021), https://
www.cnn.com/2021/08/04/politics/draft-doj-georgia-letter-election-
reversal/index.html.
\84\ How a Trump Environmental Lawyer Tried To Weaponize the
Justice Department To Help the President, CNN (Aug. 6, 2021), https://
www.cnn.com/2021/08/06/politics/doj-clark-trump-election/index.html.
---------------------------------------------------------------------------
Fifth, the disinformation campaign.--The disinformation campaign
related to the 2020 election started well before election day. The high
volume of mail-in ballots was further exploited by anti-democracy
forces, who fabricated stories suggesting the ballots were susceptible
to fraud. For example, a single tweet in September contending that over
1,000 mail-in ballots had been found in a dumpster was picked up by a
far-right news website, which ran an ``exclusive'' story on a purported
scheme by the county to dump uncounted ballots. In fact, the photo
shared in the tweet showed old envelopes from the 2018 election that
were being recycled--and ballots for the 2020 election cycle had not
yet even been mailed. Within a day, the story had been shared by over
25,000 Twitter users, including Donald Trump Jr.\85\
---------------------------------------------------------------------------
\85\ As U.S. election nears, researchers are following the trail of
fake news, Science.org (Oct. 26, 2020), https://www.science.org/
content/article/us-election-nears-researchers-are-following-trail-fake-
news.
---------------------------------------------------------------------------
Disinformation came from the top, too. Harvard researchers found
that tweets or briefings or Fox News appearances by Trump himself drove
most spikes in media coverage, which allowed him to ``disseminate and
reinforce his disinformation campaign'' regarding election fraud.\86\
This trend was exacerbated by the fact that different segments of the
population held different beliefs about the election, driven in large
part by the news outlets they tuned in to.\87\ Thus, for example, in
September 2020, 61 percent of Republicans who primarily watched Fox
News or listened to talk radio for their news said fraud had been a
``major problem when mail-in ballots are used,'' whereas the percentage
dropped to 44 percent for Republicans who also listened to other
outlets, and to 23 percent for Republicans who did not rely on Fox News
or talk radio.\88\
---------------------------------------------------------------------------
\86\ Id.
\87\ How Americans Navigated the News in 2020: A Tumultuous Year in
Review, Pew Research Center (Feb. 22, 2021), https://
www.pewresearch.org/journalism/2021/02/22/misinformation-and-competing-
views-of-reality-abounded-throughout-2020/.
\88\ Id.
---------------------------------------------------------------------------
After the election, lawsuits, recounts, audits, and other actions
by Trump and his allies served as fodder for a broader anti-democracy
disinformation campaign to convince segments of the American public
that Biden stole the election. Indeed, a central goal of this anti-
democracy movement--since before 2016--has been to cast doubt on
election results and give anti-democracy allies enough of an echo
chamber so that if and when Trump lost the election, whether in 2016 or
2020, a substantial number of people would believe it was because of
fraud.
This disinformation campaign has been supported by many of Trump's
allies. For example, MyPillow CEO Mike Lindell said that he spent $25
million pushing voter fraud claims and that he would ``spend everything
[he has] and sell everything [he has] if that's what it takes'' to
overturn Biden's victory.\89\ Steve Bannon, Trump's former chief
strategist, promoted the theory that Biden stole the election from
Trump on his popular podcast, War Room.\90\ Former Trump National
Security Advisor and Retired Army General Michael Flynn went on a
public speaking campaign to further sow doubts about the vote and urge
States to conduct independent reviews of their election results.\91\
---------------------------------------------------------------------------
\89\ MyPillow CEO Mike Lindell told Insider he's already spent $25
million pushing voter-fraud claims and will spend everything he has on
the cause, Business Insider (Dec. 16, 2021), https://
www.businessinsider.com/mypillow-mike-lindell-25-million-pushing-
baseless-voter-fraud-claims-2021-12.
\90\ Heeding Steve Bannon's Call, Election Deniers Organize to
Seize Control of the GOP--and Reshape America's Elections, ProPublica
(Sept. 2, 2021), https://www.propublica.org/article/heeding-steve-
bannons-call-election-deniers-organize-to-seize-control-of-the-gop-and-
reshape-americas-elections.
\91\ The military-intelligence veterans who helped lead Trump's
campaign of disinformation, Reuters (Dec. 15, 2021), https://
www.reuters.com/investigates/special-report/usa-election-military/.
---------------------------------------------------------------------------
NewsGuard, an independent service that evaluates the credibility of
media sources, investigated and found 166 websites in the United States
and Europe spreading misinformation about voting, the ballot-counting
process, and the results of the 2020 U.S. election.\92\ The top myths
spread included the theories that Democrats committed significant voter
fraud using manipulated voting machines or mail-in ballots to change
votes from Trump to Biden or to add extra votes for Biden; that
undocumented immigrants unlawfully cast a significant number of
absentee ballots (presumably heavily skewed toward Biden); and that
poll workers manipulated ballots at counting centers when demonstrators
were not allowed to oversee their counting process.\93\ Trump's
supporters also took to social media to spread these lies, which
Trump's team then attempted to use as evidence of wide-spread voter
fraud in their ultimately unsuccessful lawsuits.\94\
---------------------------------------------------------------------------
\92\ 2020 Election Misinformation Tracking Center, The Top Election
Myths Spreading Online and the Red-Rated Websites Promoting Them: 166
and Counting, NewsGuard (Jan. 20, 2021), https://www.newsguardtech.com/
special-reports/election-misinformation-tracker/.
\93\ Id.
\94\ Trump's 5-year campaign of lies led to the Capitol attack. And
we just let it happen.1 USA Today (Jan. 13, 2021), https://
www.usatoday.com/story/opinion/2021/01/13/trump-disinformation-
campaign-led-to-capitol-coup-attempt-column/6639309002/.
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d. Preparation for and Participation in January 6
Leading up to the joint session of Congress on January 6, the
effort to overturn Biden's victory included public rallies in
Washington, DC in support of Trump's election fraud theories.
In the early morning of December 12, 2020, ahead of the ``Million
MAGA March'' planned for later that day, Roger Stone told a crowd of
Trump supporters, ``We will fight to the bitter end for an honest count
of the 2020 election. Never give up, never quit, never surrender, and
fight for America. We have an obligation to see that the rightful
winner of the election is seated, and that is the greatest president
since Abraham Lincoln, Donald J. Trump.''\95\ Michael Flynn also spoke
at the December 12 rally, promising that Trump would remain in
office\96\ and likening the assembled protesters to the biblical
figures who destroyed the walls of Jericho.\97\ Lesser-known figures
spoke too: Amanda Chase, a State senator in Virginia who has been
described as ``Trump in heels,'' echoed Trump's claim that Biden
``cheated to win'' and that she and many other Americans would ``never
accept these results.''\98\ She made drastic claims that Trump should
declare martial law to conduct an audit of election results in her
State.\99\ That same month, incidentally, Sidney Powell, working with
Pennsylvania State Senator Doug Mastriano, began funding an audit of
the voting machines in rural Fulton County, Pennsylvania, a community
of fewer than 15,000 people that had voted overwhelmingly for Trump.
This audit served as a test case of the audit trend that would persist
well into 2022 throughout several States.\100\
---------------------------------------------------------------------------
\95\ `Nothing is Over': Roger Stone Addresses Trump Supporters at
Protest in Washington, Yahoo! News (Dec. 12, 2020), https://
www.yahoo.com/now/nothing-over-roger-stone-addresses-142409365.html.
\96\ Michael Flynn Says Trump Will Remain President in First Public
Remarks Since Pardon, Newsweek (Dec. 12, 2020), https://
www.newsweek.com/michael-flynn-says-trump-will-remain-president-first-
public-remarks-since-pardon-1554374; see also Flynn delivers first
public remarks since Trump pardon at DC rallies, The Hill (Dec. 12,
2020), https://thehill.com/homenews/administration/529956-flynn-
delivers-first-public-remarks-since-trump-pardon-at-dc-rallies.
\97\ US election: Pro-Trump rallies see scuffles in US cities, BBC
News (Dec. 13, 2020), https://www.bbc.co.uk/news/election-us-2020-
55292610; Trump riots: 65 days that led to chaos at the Capitol, BBC
News (Jan. 10, 2021), https://www.bbc.co.uk/news/world-us-canada-
55592332.
\98\ Pro-Trump Martial-Law-Pushing Amanda Chase `Getting Things in
Order' to Run for Congress Newsweek (Nov. 8, 2021), https://
www.newsweek.com/pro-trump-martial-law-pushing-amanda-chase-getting-
things-order-run-congress-1647184.
\99\ Virginia gubernatorial candidate says, `Trump should declare
martial law', Fox News (Dec. 17, 2020), https://www.foxnews.com/
politics/virginia-amanda-chase-trump-martial-law.
\100\ Group led by `Kraken' lawyer Sidney Powell hired the firm
recounting AZ's election to probe election in Fulton Co., Pennsylvania
Capital-Star (May 24, 2021), https://www.penncapital-star.com/
government-politics/group-led-by-kraken-lawyer-sidney-powell-hired-the-
firm-recounting-azs-election-to-probe-a-pa-election/.
---------------------------------------------------------------------------
Members of the Proud Boys hate group were among the rally goers on
December 12. After it ended, they prowled the streets of Washington,
vandalizing a Black Lives Matter sign at a historic Black church, and
confronting counter-protesters in altercations that left at least four
people with stab wounds.\101\
---------------------------------------------------------------------------
\101\ Metro. African Methodist Episcopal Church v. Proud Boys
Int'l, L.L.C. et al., Case No. 2021 CA 000004 B (D.C. Super. Ct.)
(Complaint); Proud Boys leader arrested, accused of destroying D.C.
Church's Black Lives Matter sign, NBC News (Jan. 4, 2021), https://
www.nbcnews.com/news/us-news/proud-boys-leader-arrested-after-
allegedly-destroying-d-c-church-n1252789; How a D.C. Bar Became the
`Haven' for the Proud Boys, Politico (Dec. 14, 2020), https://
www.politico.com/news/magazine/2020/12/14/harrys-bar-proud-boys-
washington-dc-445015.
---------------------------------------------------------------------------
Further rallies in D.C. on and immediately before January 6 were
coordinated in part by Ali Alexander, who had created a limited
liability company called Stop the Steal in 2020.\102\ Alexander Stated
in internet broadcasts in December 2020 that he had organized his
January 6 rally with U.S. Reps. Andy Biggs, Paul Gosar, and Mo
Brooks,\103\ and on December 7, 2020, Alexander posted a tweet stating
that he was ``willing to give [his] life for this fight,'' which the
Arizona Republican Party (chaired by Kelli Ward) then retweeted with
the addition, ``He is. Are you?''\104\ Trump tweeted from his own
account on December 19, 2020: ``Big protest in D.C. on January 6th. Be
there, will be wild!''\105\
---------------------------------------------------------------------------
\102\ Business Entity Records--Stop the Steal, LLC, Alabama
Secretary of State, https://arc-sos.State.al.us/cgi/corpdetail.mbr/
detail?corp=821150; Trump allies helped plan, promote rally that led to
Capitol attack, ABC News (Jan. 8, 2021), https://abcnews.go.com/US/
trump-allies-helped-plan-promote-rally led-capitol/story?id=75119209.
\103\ `Stop the Steal' organizer, now banned by Twitter, said three
GOP lawmakers helped plan his D.C. rally, Wash. Post (Jan. 13, 2021),
https://www.washingtonpost.com/nation/2021/01/13/ali-alexander-capitol-
biggs-gosar/.
\104\ `Stop the Steal' Organizer in Hiding After Denying Blame for
Riot, The Daily Beast (Jan. 11, 2021); Arizona GOP asks if followers
willing to give their lives to `stop the steal', The Hill (Dec. 8,
2020), https://thehill.com/homenews/news/529195-arizona-gop-asks-if-
followers-willing-to-give-their-life-to-stop-the-steal.
\105\ Trump Twitter Archive, Donald J. Trump (@realDonaldTrump)
(Dec. 19, 2020, 1:42 AM EST), https://www.thetrumparchive.com.
---------------------------------------------------------------------------
Many others in Trump's orbit helped to organize and promote the
anti-democracy events that led up to the Capitol attack on January 6--
some also spoke at the events. During the week before, Senator
Mastriano helped arrange bus rides for Trump supporters from
Pennsylvania to DC.\106\ Many of the key figures in the Stop the Steal
movement spoke at a rally on January 5 at Freedom Plaza, emceed by
Alexander. Flynn spoke at the event, declaring that ``the Members of
Congress, the members of the House of Representatives, the members of
the U.S. Senate, those of you who are feeling weak tonight, those of
you that don't have the moral fiber in your body, get some tonight
because tomorrow we the people are going to be here, and we want you to
know we will not stand for a lie.''\107\ Mike Lindell urged the crowd:
``Tomorrow, you need to pray for our Vice President to look up to God
and say, `I need to make a decision, Lord, and to make the right
decision for our country.' ''\108\ Other speakers included Roger Stone
and Mark Finchem.\109\ Between speakers, Alexander led the crowd in
chants of ``stop the steal'' and made declarations including, ``[t]he
rebellion starts now''\110\ and ``[w]e ready for battle!''\111\
---------------------------------------------------------------------------
\106\ Mastriano campaign spent thousands on buses ahead of D.C.
insurrection, WHYY (Jan. 12, 2021), https://whyy.org/articles/
mastriano-campaign-spent-thousands-on-buses-ahead-of-d-c-insurrection.
\107\ Flynn, Papadopoulos address pro-Trump rally in DC, AP (Jan.
10, 2021), https://www.youtube.com/watch?v=Lu5BJY-tG-c; Longtime Trump
advisers connected to groups behind rally that led to Capitol attack,
ABC News (Jan. 15, 2021), https://abcnews.go.com/US/longtime-trump-
advisers-connected-groups-rally led-capitol/story?id=75261028.
\108\ #StopTheSteal Coalition Pre-Rally in DC at Freedom Plaza,
RSBN TV, Periscope (Jan. 5, 2021), https://www.pscp.tv/w/1RDxlPOgyorxL.
\109\ Id.
\110\ Id. at 43:30.
\111\ Id. at 1:06:47.
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Also on January 5, a group of around 100 State legislators sent a
letter to Pence regarding the purported ``illegalities present in the
2020 election'' and asking him to ``afford [the] nation more time to
properly review'' the election results by ``postponing the January 6th
opening and counting of the electoral votes for at least 10
days.''\112\ Doug Mastriano, Mark Finchem, and Wisconsin State
Assemblyman Timothy Ramthun signed the letter.\113\ In an email to Vice
President Pence's counsel on January 6, Eastman conceded that this
proposed 10-day postponement would constitute a ``minor violation'' of
the law.\114\
---------------------------------------------------------------------------
\112\ Letter to Vice President Michael R. Pence, Wisconsin Examiner
(Jan. 5, 2021), https://wisconsinexaminer.com/wp-content/uploads/2021/
01/Letter-to-Pence-1.pdf; These 15 State legislators asked Pence not to
certify election results, Wisconsin Examiner (Jan. 14, 2021), https://
wisconsinexaminer.com/2021/01/14/these-15-State-legislators-asked-
pence-not-to-certify-election-results/.
\113\ Letter to Vice President Michael R. Pence, Wisconsin Examiner
(Jan. 5, 2021), https://wisconsinexaminer.com/wp-content/uploads/2021/
01/Letter-to-Pence-1.pdf.
\114\ Eastman v. Thompson et al., Case No. 8-22-cv-00099-DOC-DFM
(C.D. Cal. Mar. 2, 2022), ECF No. 160-16.
---------------------------------------------------------------------------
Also on January 5, on his War Room podcast, Steve Bannon told his
listeners, ``All hell is going to break loose tomorrow.'' He announced
that, ``it's not going to happen like you think it's going to happen.
Okay, it's going to be quite extraordinarily different. And all I can
say is, strap in . . . You have made this happen and tomorrow it's game
day. So, strap in. Let's get ready.''\115\
---------------------------------------------------------------------------
\115\ Ep. 631-Pandemic: One Day Away (W/ Maggie Vandenberghe, Jack
Posobiec, Sean Parnell and Richard Baris) at 29:30, Steve Bannon's War
Room (Jan. 5, 2021), https://listen.warroom.org/e/ep-631-pandemic-one-
day-away-w-maggie-vandenberghe-jack-posobiec-sean-parnell-and-richard-
baris/; How Trump allies stoked the flames ahead of Capitol riot, CNN
(Jan. 18, 2021), https://www.cnn.com/2021/01/18/politics/trump-bannon-
stone-giuliani-capitol-riot-invs/index.html.
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e. The January 6 Assault on the Capitol and Democracy
Then came January 6 itself, which began with Trump tweeting shortly
after midnight echoing his and his supporters' long-standing efforts to
delegitimize the election results and to pressure Pence to violate his
Constitutional obligations. ``If Vice President @Mike--Pence comes
through for us, we will win the Presidency. Many States want to
decertify the mistake they made in certifying incorrect & even
fraudulent numbers in a process NOT approved by their State
Legislatures (which it must be). Mike can send it back!''\116\ Later in
the morning, Trump tweeted: ``All Mike Pence has to do is send them
back to the States, AND WE WIN. Do it Mike, this is a time for extreme
courage!''\117\
---------------------------------------------------------------------------
\116\ Trump Twitter Archive, Donald J. Trump (@realDonaldTrump)
(Jan. 6, 2021, 1 o'clock AM EST), https://www.thetrumparchive.com.
\117\ Trump Twitter Archive, Donald Trump (@realDonaldTrump) (Jan.
6, 2021, 8:17 AM EST), https://www.thetrumparchive.com.
---------------------------------------------------------------------------
Next came speeches to a crowd assembled at the Ellipse next to the
White House. This time, the speakers included Texas Attorney General
Ken Paxton, who declared that ``[o]ne of the great things about the
State of Texas is, we did not quit,'' referring to his failed lawsuit
to force other States to cast their electoral votes for Trump. ``If you
look at Georgia, they capitulated, they consented. We kept fighting in
Texas.'' Paxton went on, ``What we have in President Trump is a
fighter. And I think that's why we're all here.'' He pledged, ``We will
not quit fighting. We're Texans, we're Americans, and the fight will go
on.''\118\
---------------------------------------------------------------------------
\118\ Ken Paxton at Trump's D.C. Rally: `We will not quit
fighting', Houston Chronicle (Jan. 6, 2021), https://
www.houstonchronicle.com/politics/texas/article/Paxton-Trump-DC-rally
election-2020-georgia-15850073.php.
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Giuliani told the crowd that ``[i]t is perfectly appropriate given
the questionable constitutionality of the Election Counting Act [sic]
of 1887 that the Vice President can cast it aside.'' He asserted that,
in the previous day's U.S. Senate runoffs in Georgia and in the
November Presidential election, voting machines had been programmed to
fraudulently add votes, claiming that an ``expert'' had examined the
machines and ``has absolutely what he believes is conclusive proof that
in the last 10 percent, 15 percent of the vote counted, the votes were
deliberately changed.'' Giuliani exhorted the crowd, ``Let's have trial
by combat.''\119\
---------------------------------------------------------------------------
\119\ Rudy Giuliani Speech Transcript at Trump's Washington, DC.
Rally: Wants `Trial by Combat', Rev Transcripts (Jan. 6, 2021), https:/
/www.rev.com/blog/transcripts/rudy-giuliani-speech-transcript-at-
trumps-washington-d-c-rally-wants-trial-by-combat.
---------------------------------------------------------------------------
Eastman spoke on the Ellipse as well, repeating that ``we know
there was fraud, traditional fraud that occurred. We know that dead
people voted.'' He went on to describe the supposed voting machine
fraud, concluding that ``all we are demanding of Vice President Pence
is this afternoon at 1 o'clock he let the legislators of the State look
into this.''\120\
---------------------------------------------------------------------------
\120\ Id.
---------------------------------------------------------------------------
Trump then addressed the crowd, asserting that ``we won this
election, and we won it by a landslide.'' He challenged the crowd, ``if
you don't fight like hell, you're not going to have a country
anymore.''\121\ And he addressed Pence, who was not present: ``Mike
Pence, I hope you're going to stand up for the good of our Constitution
and for the good of our country. And if you're not, I'm going to be
very disappointed in you.''\122\ Pence issued a letter shortly before
he was scheduled to preside over the joint session of Congress, stating
that he lacked ``unilateral authority to determine which electoral
votes should be counted and which should not,'' and indicating that he
would abide by the Electoral Count Act.\123\
---------------------------------------------------------------------------
\121\ Read Trump's Jan. 6 Speech, A Key Part Of Impeachment Trial,
NPR (Feb. 10, 2021), https://www.npr.org/2021/02/10/966396848/read-
trumps-jan-6-speech-a-key-part-of-impeachment-trial.
\122\ Id.
\123\ Read Pence's Full Letter Saying he Can't Claim `Unilateral
Authority' to Reject Electoral Votes, AP (Jan. 6, 2021), https://
www.pbs.org/newshour/politics/read-pences-full-letter-saying-he-cant-
claim-unilateral-authority-to-reject-electoral-votes.
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A large portion of the crowd at the Ellipse moved from there to
Capitol Hill. Among them was Ron Hanks, who had recently been elected
to the Colorado legislature. He said that he had come to DC ``to get a
read of the Nation's Trump supporters . . . to get a sense of what may
happen next to combat this stolen election.''\124\ Altercations with
the Capitol Police soon followed--and many of the ringleaders of the
anti-democracy movement were there to fan the flames. Finchem tweeted
photographs of protestors gathered on the steps of the Capitol
building.\125\ Alexander led chants outside the Capitol of ``victory or
death.''\126\ Mastriano claimed that he did not go beyond police lines
and left the area ``when it was apparent that this was no longer a
peaceful protest,'' but video footage shows him and his wife passing
through a breached police barricade.\127\ At 2:11 p.m., rioters
breached a window at the Capitol building.\128\ As you know all too
well, the mob entered the Capitol, and Members of Congress and the Vice
President were forced to evacuate. Ward tweeted, ``Congress is
adjourned. Send the elector choice back to the legislatures.''\129\
Trump tweeted that Pence lacked ``the courage to do what should have
been done to protect our Country and our Constitution,''\130\ but
eventually, through heroic efforts, the Capitol Police and the National
Guard restored order at the Capitol, and the vote count resumed.
---------------------------------------------------------------------------
\124\ The Trump Rally (Jan. 7, 2021), https://drive.google.com/
file/d/1jyoRaj7kI0V4X-0jAB3Z0xaJjOc2uk8e/view (copy on file with States
United); see also Colorado House Democrat calls for removal of GOP
colleague who was at Jan. 6 rally, Denver Post (Feb. 16, 2021), https:/
/www.denverpost.com/2021/02/16/ron-hanks-colorado-house-removal-
capitol-riot/.
\125\ Seven Arizonan Republican legislators face calls to ban them
from the House and Senate, KNXV (Jan. 8, 2021), https://www.abc15.com/
news/state/seven-arizonan-republican-legislators-face-calls-to-ban-
them-from-the-house-and-senate.
\126\ Baked Alaska, the QAnon Shaman . . . who led the storming of
the Capitol?, The Guardian (Jan. 7, 2021), https://www.theguardian.com/
us-news/2021/jan/07/baked-alaska-the-qanon-shaman-who-led-the-storming-
of-the-capitol.
\127\ Pa. GOP lawmaker Doug Mastriano says he left the Capitol area
before the riot. New videos say otherwise, The Philadelphia Inquirer
(May 25, 2021), https://www.inquirer.com/news/doug-mastriano-capitol-
riot-pennslyvania-video-20210525.html; Videos Contradict State
Lawmaker's Claim He Left Capitol While It Was `Still Peaceful',
HuffPost (May 25, 2021), https://www.huffpost.com/entry/doug-mastriano-
capitol-riot_n_60ac5e99e4b019ef10de09c7.
\128\ How the rioters who stormed the Capitol came dangerously
close to Pence, Wash. Post (Jan. 15, 2021), https://
www.washingtonpost.com/politics/pence-rioters-capitol-attack/2021/01/
15/ab62e434-567c-11eb-a08b-f1381ef3d207_story.html; Inside the Capitol
Riot: An Exclusive Video Investigation, N.Y. Times (Sept. 23, 2021),
https://www.nytimes.com/2021/06/30/us/jan-6-capitol-attack-
takeaways.html.
\129\ Kelli Ward (@kelliwardaz), Twitter (Jan. 6, 2021), https://
twitter.com/kelliwardaz/status/1346916956801179649.
\130\ Trump Twitter Archive, Donald Trump (@realDonaldTrump) (Jan.
6, 2021, 2:24 PM EST), https://www.thetrumparchive.com.
---------------------------------------------------------------------------
Soon after, a new disinformation campaign was launched to cast the
riot as either a protest that got out of hand or a false-flag operation
by leftists to embarrass Trump. Hanks wrote that the crowd at the
Capitol was not the same as at Trump's rally: ``[v]ery few people at
the Ellipse were wearing masks. Those at the Capitol were wearing
bandanas, like the Antifa bandits of the summertime riots.''\131\
Congressmembers Matt Gaetz, Paul Gosar, and Mo Brooks all spouted the
conspiracy theory that Antifa had attacked the Capitol.\132\ Giuliani
appeared on Bannon's podcast on January 9, asserting that Democrats had
stormed the building.\133\ The same claims were echoed by Finchem,\134\
Ward,\135\ Paxton,\136\ and Lindell.\137\
---------------------------------------------------------------------------
\131\ The Trump Rally (Jan. 7, 2021), https://drive.google.com/
file/d/1jyoRaj7kI0V4X-0jAB3Z0xaJjOc2uk8e/view (copy on file with States
United).
\132\ Antifa Didn't Storm The Capitol. Just Ask The Rioters., NPR
(Mar. 2, 2021), https://www.npr.org/2021/03/02/972564176/antifa-didnt-
storm-the-capitol-just-ask-the-rioters.
\133\ YouTube bans Steve Bannon's podcast channel hours after Rudy
Giuliani appeared on an episode and blamed the Capitol siege on
Democrats Business Insider (Jan. 9, 2021), https://
www.businessinsider.com/youtube-bans-steve-bannon-war-room-podcast-
rudy-giuliani-comments-2021-1; Google bans two Steve Bannon YouTube
channels after Trump lawyer Giuliani claims stolen election, The
Mercury News (Jan. 8, 2021), https://www.mercurynews.com/2021/01/08/
googles-youtube-hosts-video-of-trump-lawyer-giuliani-claiming-stolen-
election-two-days-after-deadly-capitol-insurrection/.
\134\ Among some in Arizona GOP, siege of the US Capitol was
everyone's fault except Trump, AZCentral (Jan. 7, 2021), https://
www.azcentral.com/story/news/politics/arizona/2021/01/07/these-arizona-
republicans-say-trump-isnt-to-blame-for-capitol-riot/6580354002/.
\135\ As Nation's Capitol swirled into chaos, Arizona played a
central role, AZCentral (Jan 6, 2021), https://www.azcentral.com/story/
news/politics/arizona/2021/01/06/arizonas-role-us-capitol-riot-paul-
gosar-election-certification/6571625002/.
\136\ Ken Paxton told Trump supporters to `keep fighting.' When
they breached the Capitol, he falsely claimed it wasn't them., The
Texas Tribune (Jan. 7, 2021), https://www.texastribune.org/2021/01/07/
texas-ken-paxton-trump-supporters/.
\137\ How Trump's pied pipers rallied a faithful mob to the
Capitol, Reuters (Jan. 11, 2021), https://www.reuters.com/article/us-
usa-trump-protest-organizers-insight/how-trumps-pied-pipers-rallied-a-
faithful-mob-to-the-capitol-idUSKBN29G2UP.
---------------------------------------------------------------------------
For those who were involved in the attempted coup on January 6, the
fight did not end on that day. Soon after, Amanda Chase gave a floor
speech in Virginia defending those who stormed the Capitol, calling
them ``patriots who love their country and do not want to see our great
republic turned into a socialist country.''\138\ On January 10,
Alexander appeared in an internet video, promising: ``We are going to
punish the traitors,'' referring to Republican politicians who endorsed
Biden's electoral victory. ``The Lord says vengeance is his, and I pray
I am the tool to stab these motherf--ers.''\139\ This continuing
rhetoric was a cause for concern for House Minority Leader Kevin
McCarthy. In newly released audio from a private call from January 10,
2021, McCarthy urged Republican leaders to monitor lawmakers' public
statements and alert him to potentially dangerous messages: ``I do not
want to look back and think we caused something, or we missed
something, and someone got hurt. I don't want to play politics with any
of that.''\140\
---------------------------------------------------------------------------
\138\ Virginia Senator Who Defended Capitol Rioters Faces Censure
Effort NBC4 Washington (Jan. 23, 2021), https://www.nbcwashington.com/
news/local/virginia-senator-who-defended-capitol-rioters-faces-censure-
effort/2549545/.
\139\ Id.
\140\ McCarthy Feared G.O.P. Lawmakers Put `People in Jeopardy'
After Jan. 6 New York Times (April 26, 2022), https://www.nytimes.com/
2022/04/26/us/politics/mccarthy-republican-
lawmakers.html?partner=slack&smid=sl-share.
---------------------------------------------------------------------------
ii. the anti-democracy movement continues
As we explained, the terrible events of January 6 were not the
start of this anti-democracy movement, nor were they the end. The
central tenet of the ``Stop the Steal'' movement--the ``Big Lie'' that
the 2020 Presidential election was stolen from Trump--has only spread
further. Today, it is a tool for certain anti-democracy activists, whom
we at States United call ``election deniers,'' to take steps to ensure
that former President Trump and his advisors, lawyers, and like-minded
State and local officials will be able to control the outcomes of
future elections across the country regardless of whether they or their
preferred candidates actually win those elections.\141\
---------------------------------------------------------------------------
\141\ The clear and present danger of Trump's enduring `Big Lie',
NPR (Dec. 23, 2021), https://www.npr.org/2021/12/23/1065277246/trump-
big-lie-jan-6-election.
---------------------------------------------------------------------------
That's where we now find ourselves. Many of the same people who
preemptively cast doubt on the 2016 and 2020 elections, and who were
involved in efforts to take over the Government by force to change the
result of the 2020 Presidential election, have now developed a playbook
for future elections: First, they change the rules of elections; then,
they change the referees--the people who will enforce those rules. This
process is accompanied by many of the same anti-democracy tactics that
were employed prior to January 6, such as pressure aimed at State
officials--including challenging them in primary elections--and
sustained disinformation campaigns. The objective is to change the
results in the future--and some even bizarrely believe that the results
of 2020 can still be changed. The purported justification for all of
that is the ``Big Lie,'' that the 2020 election was stolen from Trump
through voter fraud.
a. Changing the Rules
We first turn to the efforts to change the rules of elections. In
the aftermath of the 2020 Presidential election, a wave of legislative
proposals to revise election laws swept across the country State by
State.\142\ The Voting Rights Lab identified more than 2,000 bills that
seek to alter in one way or another the way elections are
administered.\143\
---------------------------------------------------------------------------
\142\ A Democracy Crisis in the Making, States United Democracy
Center (Apr. 22, 2021), https://statesuniteddemocracy.org/wp-content/
uploads/2021/04/FINAL-Democracy-Crisis-Report-April-21.pdf.
\143\ Legislative Tracker, Voting Rights Lab (last checked Apr. 12,
2022), https://tracker.votingrightslab.org/.
---------------------------------------------------------------------------
Of course, as we said earlier with respect to litigation, nothing
is inherently problematic about introducing bills relating to election
laws. But many of these bills involve efforts to alter basic principles
about how elections are administered and aspire to put highly partisan
State legislators in charge of basic decisions about our elections--
with the ostensible goal being to rig election outcomes and give a
political party the ability to nullify the votes of the people.
Traditionally, the executive branch and local election officials
have run our voting systems, but these recent efforts would give State
legislators the power to disrupt election administration and the
reporting of results--powers beyond those they had in 2020 or indeed
throughout much of the last century. Had such bills been law in 2020,
they would have significantly added to the turmoil that surrounded the
election, and they would have raised the alarming prospect that the
outcome of the Presidential election could be decided contrary to the
people's votes. When the losing party overrides the will of the voters,
our system of Government collapses.
Our organization, States United, published a report, Democracy
Crisis in the Making, on precisely this issue. In April 2021,\144\ we
identified 148 bills threatening to interfere with election
administration across 36 States. In May 2022, States United published
an updated report that found the trend of introducing election
subversion bills has accelerated. As of April 8, 2022, legislatures in
33 States have introduced 229 bills--175 introduced in this calendar
year alone and 54 rolled over from the last calendar year. In total, 50
election subversion bills have been enacted or adopted (32 last year
and 18 thus far this year).\145\ A few are worth highlighting.
---------------------------------------------------------------------------
\144\ Democracy Crisis in the Making: How State Legislatures are
Politicizing, Criminalizing, and Interfering with Elections, States
United Democracy Center, https://statesuniteddemocracy.org/resources/
democracy-crisis-in-the-making-how-state-legislatures-are-politicizing-
criminalizing-and-interfering-with-elections/.
\145\ Democracy Crisis in the Making: How State Legislatures are
Politicizing, Criminalizing, and Interfering with Elections, States
United Democracy Center, https://statesuniteddemocracy.org/wp-content/
uploads/2022/05/DCITM_2022.pdf.
---------------------------------------------------------------------------
Buried among the more publicized provisions of Georgia's S.B.
202,\146\ enacted in March 2021, are changes to Georgia's election laws
that fundamentally alter the balance of power between the executive and
legislative branches. For example, the law changes the appointments
power and restricts the State Election Board's ability to respond to
emergencies. In particular, the law replaces the directly-elected
secretary of state as chair of the State Election Board with a
``chairperson elected by the General Assembly''\147\ and it empowers
the State Election Board--now chaired by a legislative appointee--to
investigate and replace local election officials whose competence has
been, as the law puts it, ``call[ed] into question.''\148\
---------------------------------------------------------------------------
\146\ S.B. 202, Georgia 2021-2022 Regular Session, https://
www.legis.ga.gov/api/legislation/document/20212022/201498; A Democracy
Crisis in the Making, States United Democracy Center (Apr. 22, 2021),
https://statesuniteddemocracy.org/wp-content/uploads/2021/04/FINAL-
Democracy-Crisis-Report-April-21.pdf.
\147\ S.B. 202, Georgia 2021-2022 Regular Session, https://
www.legis.ga.gov/api/legislation/document/20212022/201498.
\148\ Id.
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Context is important here. In light of the Secretary of State Brad
Raffensperger's resisting calls from State legislators and others
(including Trump) to overturn the election results, this is a clear
effort by partisan legislators to wrest control of the State's
elections into their own hands.
Before this year, the State Election Board was chaired by the
secretary of state and, in addition, was comprised of two legislative
appointees and one representative of each political party. Under the
new law, the chair is selected by a simple majority vote of the Georgia
Senate and House. While the chair must be ``nonpartisan,'' this merely
means that they must not have engaged in partisan politics--for
example, by participating in a partisan campaign--for the previous 2
years. Additionally, the chair can be removed and replaced by the
legislature at any time by a majority vote, giving the legislature
effective control of the board.
Further, those legislative appointees now have the power to replace
local election officials with their own hand-picked substitutes. In
Georgia, elections are administered by ``superintendents''--usually
bipartisan or nonpartisan county election boards. Under the new law,
the State Election Board can replace superintendents if it finds that
there has been ``demonstrated nonfeasance, malfeasance, or gross
negligence in the administration of . . . elections'' over a 2-year
period. This vague standard raises the specter of election manipulation
by partisan actors.
Indeed, in an extreme case, the legislature--acting through the
Board--might be able to abuse this power to overturn the results of an
election--for example, by replacing a superintendent to prevent the
certification of election results.
Kansas's H.B. 2332,\149\ which was passed by overriding the
Governor's veto in May 2021,\150\ charts a different path for inserting
the legislature into crucial election functions and depriving the
Governor or secretary of state of vital powers. This law strips the
Governor of any authority to modify election laws or procedures. The
secretary of state is now barred from settling any litigation regarding
elections without the consent of the legislative coordinating council.
And Kansas State courts now lack the authority to modify State election
laws except under powers that may be granted to them by the State's
constitution. As a result, in the event of an emergency, such as a
flood that renders polling places inaccessible, the Governor will be
unable to act quickly to modify election procedures. Likewise, the
secretary of state will have their hands tied in court, and effectively
every lawsuit regarding voting in Kansas--potentially everything from
the certification of election results to how voter registration is
conducted--will be overseen by a group of partisan political actors.
---------------------------------------------------------------------------
\149\ Democracy Crisis Report Update: New Data and Trends Show the
Warning Signs Have Intensified in the Last Two Months, States United
Democracy Center, Project Democracy, and Law Forward (June 10, 2021),
https://statesuniteddemocracy.org/wp-content/uploads/2021/06/Democracy-
Crisis-Part-II_June-10_Final_v7.pdf.
\150\ HB 2332, Kansas 2021-2022 Legislative Sessions (Apr. 12,
2022), http://www.kslegislature.org/li/b2021--22/measures/hb2332/.
---------------------------------------------------------------------------
Last, in Arkansas, the State legislature enacted a new measure in
2021, H.B. 1803,\151\ which expands the power and investigative scope
of the State's partisan State Board of Election Commissioners to
oversee or even undo election results. The seven-member board is
chaired by the secretary of state, and the remaining six members of the
board are appointed by the State's Governor, legislative leaders, and
the heads of its Republican and Democratic parties. Under previous law,
the board was empowered to hear and resolve complaints about violations
of voter registration laws as well as general election complaints, but
it was considered to be ``toothless.'' Now, the board may hear a
broader range of complaints including about how county boards tabulated
ballots or certified results, as well as their ``election processes''
or the conduct of elections in general. If the board finds a complaint
valid, it is entitled to impose fines and ``institute corrective
actions.''\152\ Since the remedy is not further specified in the law,
critics have worried that the broad language could enable the board to
overturn elections.\153\
---------------------------------------------------------------------------
\151\ Id.
\152\ Are State legislators really seeking power to overrule the
voters?, Politifact (July 14, 2021), https://www.politifact.com/
article/2021/jul/14/are-state-legislators-really-seeking-power-
overrul/.
\153\ Id.
---------------------------------------------------------------------------
Since Georgia is a State that has been characterized by some
extremely close elections, we know that laws restricting voting rights
there can directly affect the outcomes of critical State-wide elections
that have an impact on the whole Nation. Although the latter two laws
we discussed were not enacted in States with as narrow election
margins, they illustrate a disturbing trend of anti-democracy forces
developing and workshopping laws to change the election system to suit
their ends, which they can then import into other States with more
closely contested elections. In this way, certain solidly Republican
States have acted as, as The New York Times called them, ``laboratories
for legislation.''\154\
---------------------------------------------------------------------------
\154\ In Bid for Control of Elections, Trump Loyalists Face Few
Obstacles, N.Y. Times (Dec. 11, 2021), https://www.nytimes.com/2021/12/
11/us/politics/trust-in-elections-trump-democracy.html.
---------------------------------------------------------------------------
It is also notable that many of the same individuals who were
involved in anti-democracy efforts before the 2020 Presidential
election and in the run-up to and during the January 6 insurrection are
now leading these efforts to change the rules of elections. Again, we
want to be clear: These efforts to change election rules are premised
on baseless accusations and lies, not verifiable evidence or even
plausible allegations of fraud.\155\
---------------------------------------------------------------------------
\155\ 10 Voter Fraud Lies Debunked, Brennan Center for Justice (May
27, 2020), https://www.brennancenter.org/our-work/research-reports/10-
voter-fraud-lies-debunked; Factbox: Trump's False claims debunked: the
2020 election and Jan. 6 riot, Reuters (Jan. 6, 2022), https://
www.reuters.com/world/us/trumps-false-claims-debunked-2020-election-
jan-6-riot-2022-01-06/.
---------------------------------------------------------------------------
Last November, Doug Mastriano announced legislation to repeal Act
77,\156\ the law that had established no-excuse mail voting in
Pennsylvania,\157\ even though he voted for its passage in 2019.\158\
He has also supported challenges to Act 77 in Pennsylvania's courts.
When the Pennsylvania Commonwealth Court struck down Act 77 in January
of this year,\159\ Mastriano said that he ``welcome[s] the end of `no-
excuse' mail-in voting in Pennsylvania.''\160\ Pennsylvania's Supreme
Court later stayed the lower court's decision,\161\ allowing Act 77 to
remain in effect while the U.S. Supreme Court weighs the appeal.\162\
Mastriano also initiated a so-called ``forensic investigation'' of the
2020 Presidential election,\163\ though he was later stymied in those
efforts by fellow Republican and Pennsylvania Senate President Pro
Tempore Jake Corman.\164\
---------------------------------------------------------------------------
\156\ Op-Ed: Election Reform--Let the People Decide, Senator Doug
Mastriano (May 4, 2021), https://senatormastriano.com/2021/05/04/op-ed-
election-reform-let-the-people-decide/; Pennsylvania court strikes down
no-excuse mail voting law CBS News (Jan. 28, 2022), https://
www.cbsnews.com/news/mail-in-voting-ballots-struck-down-pennsylvania.
\157\ Pennsylvania court strikes down no-excuse mail voting law,
CBS News (Jan. 28, 2022), https://www.cbsnews.com/news/mail-in-voting-
ballots-struck-down-pennsylvania/.
\158\ Details for Senate RCS No. 311, Pennsylvania State Senate
(Oct. 29, 2019), https://www.legis.state.pa.us/CFDOCS/Legis/RC/Public/-
rc_view_action2.cfm?sess_yr=2019&sess_ind=0&rc_body=S&rc_nbr=311.
\159\ Pennsylvania court strikes down no-excuse mail voting law CBS
News (Jan. 28, 2022), https://www.cbsnews.com/news/mail-in-voting-
ballots-struck-down-pennsylvania/.
\160\ Pennsylvania court strikes down State's no-excuse absentee/
mail-in voting law, Ballotpedia News (Feb. 2, 2022), https://
news.ballotpedia.org/2022/02/02/pennsylvania-court-strikes-down-states-
no-excuse-absentee-mail-in-voting-law/.
\161\ McLinko et al. v. Commonwealth of Pennsylvania et al., Case
Nos. J-18A-2022, J-18B-2022, J-18C-2022, J-18D-2022, J-18E-2022 (Penn.
S. Ct. Mar. 1, 2022).
\162\ Pa. Supreme Court weighs future of State's popular mail
voting law, The Philadelphia Inquirer (Mar. 8, 2022), https://
www.inquirer.com/politics/pennsylvania/spl/pennsylvania-mail-voting-
supreme-court-hearing-20220308.html&outputType=app-web-view.
\163\ Op-Ed: Why I am initiating a forensic investigation of the
2020 General Election and 2021 Primary, Senator Doug Mastriano (July 7,
2021), https://senatormastriano.com/2021/07/07/op-ed-why-i-am-
initiating-a-forensic-investigation-of-the-2020-general-election-and-
2021-primary/.
\164\ Here's why State Sen. Doug Mastriano says Pa. election audit
`stopped for the time being'1 GoErie (Aug. 20, 2021), https://
www.goerie.com/story/news/2021/08/20/pa-election-audit-mastriano-trump/
8198996002/; see also Frontrunning Pa. Governor candidate still focused
on unproven election fraud claims, PennLive (Mar. 19, 2022), https://
www.pennlive.com/news/2022/03/leading-candidate-for-pa-governor-
amplifies-false-unproven-stolen-election-narrative.html.
---------------------------------------------------------------------------
John Eastman, who wrote the now-infamous memoranda about Pence's
purported ability to overturn the 2020 Presidential election on January
6, penned a new memorandum regarding the supposed right of Wisconsin's
State legislature to overturn the State's Presidential election
results.\165\ In a memorandum to Wisconsin State Assemblyman Timothy
Ramthun, Eastman argued that ``State legislatures . . . do have the
authority to de-certify the election of Presidential electors in their
State upon a definitive showing of illegality and/or fraud in the
conduct of the election sufficient to have altered the results of the
election.''\166\ Eastman concluded that the State legislature could
then ``appoint electors as it sees fit.''\167\
---------------------------------------------------------------------------
\165\ Wisconsin Is Ground Zero for the MAGA Effort to Steal the
Next Election, Rolling Stone (Feb. 6, 2022), https://
www.rollingstone.com/politics/politics-features/trump-wisconsin-
eastman-election-decertification-1295191/.
\166\ John Eastman Letter to Representative Timothy Ramthun (Dec.
30, 2021), https://bloximages.chicago2.vip.townnews.com/madison.com/-
content/tncms/assets/v3/editorial/7/dc/7dca5f5e-6d6d-5527-8c82-
cfe4dbf52236/6201a1a5e6d38.pdf.
\167\ Id.
---------------------------------------------------------------------------
Arizona Republican Chairwoman Kelli Ward has been a vocal supporter
of legislative and judicial efforts in Arizona to limit voting
rights.\168\ She has also publicly shamed Republican legislators who
did not support so-called ``election integrity'' bills, tweeting:
``Keep your eyes open AFTER the legislative session to see what rewards
Boyer and Ugenti-Rita get from the swamp for killing #ElectionIntegrity
bills in the Senate . . . ''.\169\
---------------------------------------------------------------------------
\168\ Arizona Republicans Seek to Stop Early Voting with Supreme
Court Lawsuit, Phoenix New Times (Mar. 2, 2022), https://
www.phoenixnewtimes.com/news/arizona-republican-yvonne-cahill-sues-
katie-hobbs-in-lawsuit-that-could-end-early-voting-13135090; Kelli Ward
(@kelliwardaz), Twitter (Feb. 28, 2022), https://twitter.com/
kelliwardaz/status/1498466919908737028.
\169\ Kelli Ward (@kelliwardaz), Twitter (Mar. 14, 2022) https://
twitter.com/kelliwardaz/status/1503509426224869376; Arizona State
senators block a dozen GOP-sponsored election reform bills, Courthouse
News Service (Mar. 14, 2022), https://www.courthousenews.com/arizona-
state-senators-block-a-dozen-gop-sponsored-election-reform-bills/.
---------------------------------------------------------------------------
Arizona State Representative Mark Finchem recently introduced HCR
2033, a concurrent resolution ``calling for the elections of Maricopa,
Pima, and Yuma counties to be set aside based on clear and convincing
evidence that the elections in those counties were irredeemably
compromised.''\170\ Arizona also recently enacted a new law requiring
proof of citizenship to vote in Presidential elections,\171\ which
voting rights groups estimate could disenfranchise tens of thousands of
people who are entitled to vote but lack the required
documentation.\172\
---------------------------------------------------------------------------
\170\ News Release, Representative Finchem Introduces Resolution to
Set Aside & Decertify Three 2020 County Elections, Arizona House of
Representatives, Representative Mark Finchem (Feb. 7, 2022) https://
www.azleg.gov/press/house/55LEG/2R/220207FINCHEMHCR2033.pdf.
\171\ H.B. 2492, Arizona Fifty-fifth Legislature--Second Regular
Session, https://apps.azleg.gov/BillStatus/BillOverview/76970.
\172\ Arizona Passes Proof-of-Citizenship Law for Voting In
Presidential Elections, N.Y. Times (Mar. 31, 2022), https://
www.nytimes.com/2022/03/31/us/politics/arizona-voting-bill-
citizenship.html.
---------------------------------------------------------------------------
In Texas, Attorney General Paxton, who previously stated that Trump
``would've lost the election'' in Texas had his office not convinced
the State Supreme Court to prevent Harris County from sending
applications for mail-in ballots to all registered voters,\173\ formed
a ``2021 Texas Election Integrity Unit'' in an effort to ``devote
agency lawyers, investigators, support staff, and resources to ensuring
this local election season . . . is run transparently and
securely.''\174\ It was ``specially tasked with overseeing the 2021
election season.''\175\ Paxton also sought to indict a county clerk
based on her administration of the 2020 Presidential election, though
the case was rejected by a grand jury.\176\
---------------------------------------------------------------------------
\173\ Texas AG Says Trump Would've `Lost' State If It Hadn't
Blocked Mail-In Ballots Applications Being Sent Out, Newsweek (June 5,
2021), https://www.newsweek.com/texas-ag-says-trump-wouldve-lost-state-
if-it-hadnt-blocked-mail-ballots-applications-being-1597909.
\174\ AG Paxton Announces Formation of 2021 Texas Election
Integrity Unit, Press Release (Oct. 18, 2021), https://
www.texasattorneygeneral.gov/news/releases/ag-paxton-announces-
formation-2021-texas-election-integrity-unit.
\175\ Id.
\176\ Amid Texas GOP's effort to question electoral integrity,
attorney general tried to indict Travis County elections chief, The
Texas Tribune (Dec. 20, 2021), https://www.texastribune.org/2021/12/20/
texas-ken-paxton-travis-county-elections/.
---------------------------------------------------------------------------
Colorado HB 1204 was introduced by Representative Ron Hanks to
overhaul the State's election system. The bill did not make it out of
committee, but would have eliminated early voting, both in person and
by mail, unless the voter had requested an absentee ballot based on a
``valid'' excuse.\177\ Otherwise, all ballots would need to be cast in
person on Election Day, and then counted by hand within 24 hours after
the polls have closed.\178\ Further, the bill would have withdrawn
Colorado from the Electronic Registration Information Center (ERIC), a
non-profit organization of States that helps to ``improve the accuracy
of America's voter rolls and increase access to voter registration for
all eligible citizens.''\179\
---------------------------------------------------------------------------
\177\ HB22-1204 Election Systems, Colorado General Assembly,
https://leg.colorado.gov/bills/hb22-1204.
\178\ Id.
\179\ Ensuring the Efficiency And Integrity of America's Voter
Rolls, Election Registration Information Center, https://
ericstates.org/.
---------------------------------------------------------------------------
Virginia State Senator Amanda Chase previously said she was working
with Sidney Powell ``to expose what I and others believe is extensive
fraud here in Virginia,''\180\ and has now introduced SB 605, a bill
that would require a ``forensic audit'' of the results of the 2020
election and create a process for future citizen-initiated audits.\181\
---------------------------------------------------------------------------
\180\ GOP gubernatorial candidate in Virginia calls on Trump to
declare martial law, The Hill (Dec. 15, 2020), https://thehill.com/
homenews/campaign/530291-gop-gubernatorial-candidate-in-virginia-calls-
on-trump-todeclare-martial.
\181\ SB 605 Conduct of election, election results, post-election
forensic audits, Virginia's Legislative Information System, https://
lis.virginia.gov/cgi-bin/legp604.exe?221+sum+SB605.
---------------------------------------------------------------------------
Attorney Erick Kaardal appeared in Wisconsin conducting on-camera
interviews of people at nursing homes and questioning the mental
capacity of elderly people who voted in 2020.\182\ Attorney Cleta
Mitchell, who helped Trump pressure Georgia Secretary of State Brad
Raffensperger to overturn the election results there, was quietly
appointed to the board of advisors for the U.S. Election Assistance
Commission, which was created after the controversial 2000 Presidential
election recount in Florida ``to serve as a clearinghouse for election
administration information and provide voluntary guidance to
States.''\183\ Additionally, Michael Flynn and Roger Stone just
recently announced an initiative to train election volunteers in eight
closely contested States to ``expose shenanigans at the ballot
box.''\184\
---------------------------------------------------------------------------
\182\ In conspiracy-laden `circus' Gableman attacks Wisconsin
election administration, Wisconsin Examiner (Mar. 2, 2022), https://
wisconsinexaminer.com/2022/03/02/in-conspiracy-laden-circus-gableman-
attacks-wisconsin-election-administration/.
\183\ How a lawyer who aided Trump's 2020 subversion efforts was
named to a Federal election advisory board CNN (Nov. 18, 2021), https:/
/www.cnn.com/2021/11/18/politics/cleta-mitchell-election-assistance-
commission-advisor/index.html.
\184\ Patrick Byrne, Gen. Flynn, Roger Stone Announce New Election
Integrity Initiative In Orlando, PJ Media (Feb. 26, 2022), https://
pjmedia.com/news-and-politics/jeff-reynolds/2022/02/26/patrick-byrne-
gen-flynn-roger-stone-announce-new-election-integrity-initiative-in-
orlando-n1562049; General Flynn, Patrick Byrne, Roger Stone, Joe Flynn
Will Unveil Bi-Partisan Election Integrity Initiative at CPAC, PR
Newswire (Feb. 23, 2022), https://www.prnewswire.com/news-releases/
general-flynn-patrick-byrne-roger-stone-joe-flynn-will-unveil-bi-
partisan-election-integrity-initiative-at-cpac-301488663.html.
---------------------------------------------------------------------------
b. Replacing the Refs
As we mentioned earlier, the strategy since January 6 has been two-
fold: First, change the rules governing elections, and then, change the
people who enforce those rules. When elections are run by anti-
democracy operatives, then those same people can control the outcomes.
Since 2020, election deniers have lined up to oversee voting at all
levels of the system, from State-wide officials to precinct-level poll
workers.
We are tracking the trend of election deniers running for State-
wide office as part of a research project Replacing the Refs.\185\ To
qualify as an election denier, a candidate must have falsely claimed
that Trump won the 2020 election, spread lies about the legitimacy of
the 2020 Presidential election, called for a ``forensic audit'' of the
2020 Presidential election after the results were certified or
otherwise finalized, promoted conspiracies about the 2020 Presidential
election, and/or taken actions to undermine the integrity of the 2020
Presidential election, including, for example, participating in a Stop
the Steal event.\186\ We have found that, as of April 4, 2022, at least
53 election deniers are running for Governor in 25 States, at least 13
election deniers are running for attorney general in 13 States, and at
least 23 election deniers are running for secretary of state in 19
States.\187\ Put another way, an election denier is running in 2 out of
3 races for Governor and secretary of state, and 1 out of 3 races for
attorney general. In addition, 9 States have election deniers running
in all 3 State-wide races.
---------------------------------------------------------------------------
\185\ Replacing the Refs, States United Democracy Center, https://
statesuniteddemocracy.org/resources/replacingtherefs/.
\186\ Id.
\187\ Id.
---------------------------------------------------------------------------
It's not just top-line State-wide roles that are important to
election administration. In fact, local races--such as judges and
inspectors of elections--can be just as impactful.\188\ People in these
types of positions oversee polling locations and safeguard the counting
of votes. Although partisan judges or inspectors might only affect a
small number of votes per precinct, their cumulative effect could tilt
State-wide elections.\189\
---------------------------------------------------------------------------
\188\ The Desperate Scramble to Stop an Insider Election Threat The
Atlantic (Nov. 14, 2021), https://www.theatlantic.com/politics/archive/
2021/11/pennsylvania-election-threat/620684/.
\189\ Id.
---------------------------------------------------------------------------
Election deniers are focusing on these positions, too. Last year,
in two of Pennsylvania's 67 counties--York and Lancaster--almost a
dozen candidates for judge or inspector of elections were election
deniers.\190\ One election denier--who ran to be judge of elections in
his precinct--organized buses traveling to Washington, DC for the
January 6 ``Stop the Steal'' rally.\191\ He was viewed as being so
outside the mainstream that a fellow Republican urged the leader of the
local Democratic committee to find someone to run against him.\192\ He
won anyway.\193\
---------------------------------------------------------------------------
\190\ Id.
\191\ Id.; How January 6 changed what it means to be a Republican
in one Pennsylvania county, CNN (Jan. 5, 2022), https://www.cnn.com/
2022/01/05/politics/jan-6-capitol-riot-lancaster-republicans/
index.html.
\192\ How January 6 changed what it means to be a Republican in one
Pennsylvania county, CNN (Jan. 5, 2022), https://www.cnn.com/2022/01/
05/politics/jan-6-capitol-riot-lancaster-republicans/index.html.
\193\ In Bid for Control of Elections, Trump Loyalists Face Few
Obstacles, N.Y. Times (Dec. 11, 2021), https://www.nytimes.com/2021/12/
11/us/politics/trust-in-elections-trump-democracy.html.
---------------------------------------------------------------------------
In addition, many of the election deniers who participated in the
events of January 6 in some respect are now following up on those
efforts by running for positions that would allow them to administer
elections. One is Doug Mastriano, the Pennsylvania State senator who
quickly jumped on the anti-democracy bandwagon. He is now the
Republican nominee in the race for Governor of Pennsylvania, at the
encouragement of Trump.\194\
---------------------------------------------------------------------------
\194\ Frontrunning Pa. Governor candidate still focused on unproven
election fraud claims, Penn Live Patriot-News (Mar. 20, 2022); https://
www.pennlive.com/news/2022/03/leading-candidate-for-pa-governor-
amplifies-false-unproven-stolen-election-narrative.html How a Trump
ally rode Trump's election fraud lie to political prominence, Politico
(June 16, 2021), https://www.politico.com/news/2021/06/17/doug-
mastriano-trump-pennsylvania-494796; Doug Mastriano has won the GOP
primary for Pa. Governor after a campaign fueled by election lies, The
Philadelphia Inquirer (May 18, 2022), https://www.inquirer.com/
politics/election/doug-mastriano-wins-pa-republican-primary-governor-
20220517.html.
---------------------------------------------------------------------------
Arizona State Representative Mark Finchem is running to be
Arizona's secretary of state--and he has Trump's endorsement.\195\ It
is not surprising, then, that he has made the Big Lie a central tenet
of his campaign.\196\ So too has Tim Ramthun, who is running for
Governor of Wisconsin and states on his campaign website that he ``will
call for an independent full forensic physical cyber audit for the
November 2022 election, beginning with my race regardless of the
outcome.''\197\ He has Mike Lindell's endorsement.\198\ In Texas, Ken
Paxton won the Republican run-off in his bid for another term as
Attorney General and is now the party's nominee.\199\ Ron Hanks is
running to be a United States Senator from Colorado.\200\
---------------------------------------------------------------------------
\195\ Mark Finchem, election conspiracy promoter, gets Trump's
endorsement for secretary of state, AZCentral (Sept. 13, 2021), https:/
/www.azcentral.com/story/news/politics/elections/2021/09/13/trump-
endorses-mark-finchem-arizona-secretary-state-election/8322839002/.
\196\ Trump followers zero in on secretary of state campaigns,
Politico (Jan. 24, 2022), https://www.politico.com/news/2022/01/24/
trump-secretary-of-state-campaigns-00000473.
\197\ Wisconsin Is Ground Zero for the MAGA Effort to Steal the
Next Election, Rolling Stone (Feb. 6, 2022), https://
www.rollingstone.com/politics/politics-features/trump-wisconsin-
eastman-election-decertification-1295191/; Ramthun for Governor,
https://www.ramthunforgovernor.com/.
\198\ Wisconsin Is Ground Zero for the MAGA Effort to Steal the
Next Election, Rolling Stone (Feb. 6, 2022), https://
www.rollingstone.com/politics/politics-features/trump-wisconsin-
eastman-election-decertification-1295191/.
\199\ Texas Attorney General Ken Paxton easily defeats George P.
Bush in GOP primary runoff, The Texas Tribune (May 24, 2022), https://
www.texastribune.org/2022/05/24/texas-attorney-general-runoff-results-
ken-paxton-george-p-bush/.
\200\ Controversial Republican State Rep. Ron Hanks files to run
for U.S. Senate in 2022, Colorado Sun (Oct. 1, 2021), https://
coloradosun.com/2021/10/01/ron-hanks-announces-senate-bid/.
---------------------------------------------------------------------------
The Big Lie has also been fully incorporated into the dogma of the
QAnon movement, which, in turn, has promoted the candidacies of
election deniers. The Guardian reported earlier this year that QAnon
``played a critical role in steering far-right candidates toward the
secretary of state races as part of what appears to be a calculated
Nation-wide assault on American democracy.''\201\ Jim Marchant, a
candidate for Nevada secretary of State, revealed last year that the
idea for him to run was not his own; he was approached by a QAnon
figure known as Juan O Savin,\202\ who is involved in a QAnon
``project'' to ``help[] candidates across the country.''\203\ In
addition, Ron Watkins, who is widely believed to be ``Q'' (or one of
possibly two ``Qs'')\204\ wrote a baseless affidavit used in 2020
election litigation stating that voting machines used software
``designed . . . to facilitate digital ballot stuffing via simple vote
result manipulation.''\205\ Sidney Powell filed the affidavit in her
Georgia lawsuit targeting the State's use of Dominion Voting Systems'
voting machines.\206\ Watkins has since announced he is running for
Congress in Arizona as his ``next step'' in getting ``really involved
in election integrity issues.''\207\
---------------------------------------------------------------------------
\201\ `We have a project': QAnon followers eye swing State election
official races, The Guardian (Feb. 11, 2022), https://
www.theguardian.com/us-news/2022/feb/11/qanon-donald-trump-big-lie-
elections-swing-states.
\202\ Id.
\203\ Id.
\204\ Who is Behind QAnon? Linguistic Department Finds
Fingerprints, N.Y. Times (Feb. 19, 2022), https://www.nytimes.com/2022/
02/19/technology/qanon-messages-authors.html.
\205\ Former Trump Lawyer Sidney Powell Cites QAnon Promoter in
Voter Fraud Lawsuit, Daily Beast (Dec. 1, 2020), https://
www.thedailybeast.com/former-trump-lawyer-sidney-powell-cites-qanon-
backer-ron-watkins-in-voter-fraud-lawsuit-affidavit; To boost voter-
fraud claims, Trump advocate Sidney Powell turns to unusual source: The
longtime operator of QAnon's Internet home, Wash. Post (Dec. 1, 2020),
https://www.washingtonpost.com/technology/2020/12/01/powell-cites-
qanon-watkins/.
\206\ To boost voter-fraud claims, Trump advocate Sidney Powell
turns to unusual source: The longtime operator of QAnon's Internet
home, Wash. Post (Dec. 1, 2020), https://www.washingtonpost.com/
technology/2020/12/01/powell-cites-qanon-watkins/; Setting the Record
Straight: Facts & Rumors, Dominion Voting (Apr. 12, 2022), https://
www.dominionvoting.com/strs-georgia/; Pearson v. Kemp, No. 1:20-cv-
04809-TCB (N.D. Ga.).
\207\ QAnon figure says he's running for Congress to secure
elections, Arizona Capitol Times (Oct. 18, 2021), https://
azcapitoltimes.com/news/2021/10/18/qanon-figure-says-hes-running-for-
congress-to-fix-elections/.
---------------------------------------------------------------------------
Our studies have concluded that election deniers are attempting to
take steps to be able to control administration of future elections
across the United States. Our findings also illustrate a related, and
important, point: Many of the efforts to replace existing officials
with election deniers do not involve replacing a Democrat with a
Republican. Rather, we find that it is often non-election-denying
Republicans who face challenges from election deniers.\208\ Especially
in light of the many Republicans who have stood up to the Big Lie and
supported the rule of law, the attempted takeover of our election
system is not a partisan issue; it is a question of one's commitment to
democracy and the rule of law as opposed to embracing the anti-
democracy notion that voters should not determine the outcome of
elections.
---------------------------------------------------------------------------
\208\ Secretary of State Races in 2022, States United Democracy
Center (Mar. 1, 2022), https://statesuniteddemocracy.org/wp-content/
uploads/2022/03/sos_deniers-2.html#3_Secretary_of_State_Races_in_2022
(example: Georgia).
---------------------------------------------------------------------------
c. Anti-Democracy Pressures Today
Where candidates who publicly embrace the Big Lie have seen their
political fortunes soar, others who refuse to accede to this anti-
democracy movement have faced substantial backlash, including from
members of their own party. As the Associated Press aptly explained,
signing onto the Big Lie is a ``litmus test,'' and former President
Trump and his supporters will ``shame--and potentially remove--members
of their party'' who do not pass the test.\209\ For example, U.S.
Senator Mitt Romney was booed by a crowd, even as he reminded them that
he was once the Republican Party's nominee for President. In Texas, the
only anti-Trump Republican in a special election for a Congressional
seat finished in ninth place.\210\
---------------------------------------------------------------------------
\209\ Whose `Big Lie'? Trump's proclamation a new GOP litmus test,
AP (May 3, 2021), https://apnews.com/article/politics-campaign-2016-
election-2020-government-and-politics-f3428d42d4d3fdfe59c560b6fadbbc70.
\210\ Id.
---------------------------------------------------------------------------
In perhaps the clearest sign of the split within the Republican
Party between pro-and anti-democracy factions, Republicans who refuse
to embrace the Big Lie have been censured. At the Georgia Republican
Party's 2021 convention, Raffensperger was censured for ``dereliction
of his constitutional duty,'' and the censure called for him to
``commit [himself] to securing Georgia's elections.''\211\ In Arizona,
the Republican Party censured Cindy McCain, former Senator Jeff Flake,
and Governor Doug Ducey, all of whom refused to support the effort to
overturn the 2020 Presidential election.\212\ As you are well aware,
just a couple of months ago, the Republican National Committee censured
Reps. Liz Cheney and Adam Kinzinger, the only two House Republicans who
agreed to join this Select Committee.\213\ The censure resolution
famously denounced this committee for supposedly persecuting ``ordinary
citizens engaged in legitimate political discourse.''\214\
---------------------------------------------------------------------------
\211\ Kemp booed and Raffensperger censured at Georgia GOP
convention, CNN Politics (June 5, 2021), https://www.cnn.com/2021/06/
05/politics/brad-raffensperger-brian-kemp-georgia-republican-
convention/index.html.
\212\ Arizona Republicans censure Cindy McCain, GOP Governor, AP
(Jan. 23, 2021), https://apnews.com/article/donald-trump-race-and-
ethnicity-censures-arizona-lawsuits-a50165b9d5c4468d5d1bb434c5e9c80a;
Arizona GOP censures Flake, Ducey and McCain, signaling a fractured
party in a key swing state, CNN Politics (Jan. 24, 2021), https://
www.cnn.com/2021/01/23/politics/arizona-gop-censure-mccain-flake-ducey/
index.html.
\213\ RNC votes to censure Reps. Liz Cheney and Adam Kinzinger over
work with Jan. 6 panel, NPR (Feb. 4, 2022), https://www.npr.org/2022/
02/04/1078316505/rnc-censure-liz-cheney-adam-kinzinger-jan-6-committee-
capitol.
\214\ Id.
---------------------------------------------------------------------------
Meanwhile, threats of violence against election officials have
exploded in number, against both Democrats and Republicans. According
to Reuters, ``[s]ome of the most severe threats'' were those directed
at Republican officials in Georgia,\215\ including Raffensperger.
Threats were also made against Philadelphia's two Democratic city
commissioners, Lisa Deeley and Omar Sabir.\216\ Philadelphia's third
city commissioner, Republican Al Schmidt, who tweeted at Trump on the
morning after the 2020 election, also received multiple death threats.
They were so serious that police officers were stationed outside his
home and his family received a security detail.\217\ He has since
resigned.\218\
---------------------------------------------------------------------------
\215\ U.S. election workers get little help from law enforcement as
terror threats mount Reuters (Sept. 8, 2021), https://www.reuters.com/
investigates/special-report/usa-election-threats-law-enforcement/.
\216\ Id.
\217\ Id.
\218\ Al Schmidt resigns as city commissioner to lead Committee of
Seventy PhillyVoice (Nov. 30, 2021), https://www.phillyvoice.com/al-
schmidt-philadelphia-city-commissioners-committee-of-seventy/.
---------------------------------------------------------------------------
A survey commissioned by the Brennan Center for Justice found that
``one in three election officials feel unsafe because of their job,''
and ``nearly one in five listed threats to their lives as a job-related
concern.''\219\ Reuters conducted a separate investigation and found
``hundreds of incidents of intimidation and harassment of election
workers and officials Nation-wide.''\220\
---------------------------------------------------------------------------
\219\ Election Officials Under Attack, Brennan Center for Justice
(June 16, 2021), https://www.brennancenter.org/our-work/policy-
solutions/election-officials-under-attack.
\220\ U.S. election workers get little help from law enforcement as
terror threats mount, Reuters (Sept. 8, 2021), https://www.reuters.com/
investigates/special-report/usa-election-threats-law-enforcement/.
---------------------------------------------------------------------------
The threats have been directed not only at public officials, but
also voters. According to a recently filed lawsuit, an organization
called ``United States Election Integrity Plan'' is ``deploying its
agents, who are sometimes armed, to go door-to-door around Colorado to
intimidate voters.''\221\ The individual defendants, who are founders
of USEIP, are employed and paid by Mike Lindell,\222\ and USEIP thanks
Lindell in its organizing manual.\223\ One of the defendants appeared
on Steve Bannon's podcast to discuss the organization, which he said
would ``help coordinate the election integrity efforts of citizens
across the country.''\224\
---------------------------------------------------------------------------
\221\ Colorado Montana Wyoming State Area Conference of the NAACP,
et al. v. United States Election Integrity Plan, et al., Case No. 1:22-
cv-00581 (D. Colo. Mar. 9, 2022), ECF No. 1; Colorado election deniers
sued by civil rights groups over door-to-door ``intimidation,'' The
Durango Herald (Mar. 15, 2022), https://www.durangoherald.com/articles/
colorado-election-deniers-sued-by-civil-rights-groups-over-door-to-
door-intimidation/.
\222\ Id.
\223\ Lawsuit seeks to stop group's door-to-door voter fraud hunt,
AP (Mar. 9, 2022), https://apnews.com/article/voting-rights-2022-
midterm-elections-biden-steve-bannon-colorado-
63beba2f69226f53ed305457c47a83ea.
\224\ Id.
---------------------------------------------------------------------------
According to Ipsos research, 24 percent of Americans agree that
``sometimes it is okay to engage in violence to protect American
democracy.''\225\ And as we described, the dissemination of the Big Lie
by election deniers and the menacing threats directed at government
officials and election workers have contributed substantially to this
trend toward intimidation, threats, and violence.
---------------------------------------------------------------------------
\225\ Seven in ten Americans say the country is in crisis, at risk
of failing Ipsos (Jan. 3, 2022), https://www.ipsos.com/en-us/seven-ten-
americans-say-country-crisis-risk-failing.
---------------------------------------------------------------------------
Perhaps most alarming, it is not as if dissemination of the Big Lie
is relegated to shadowy corners of the internet. To the contrary, in
fact, it has infiltrated major news media outlets. For example, Fox
Nation, Fox News Channel's streaming service, presented a three-part
``documentary'' series about the January 6 insurrection produced by Fox
host Tucker Carlson.\226\ PolitiFact found that the series ``attempted
to rewrite the events of the insurrection'' by ``float[ing] several
conspiracies . . . including that the violence was instigated by left-
wing activists, that it may have been an FBI-led false flag, and that
the government is using it to strip millions of Trump voters of their
Constitutional rights.''\227\ These theories have been repeatedly and
definitively debunked.\228\ Chris Wallace, a former Fox News host,
recently confirmed that he had complained to Fox News management about
the series and that the network's treatment of the broadcast
contributed to his departure.\229\ These events demonstrate the
critical role that the press and news media must play in combatting
false and baseless statements by anti-democracy activists--and the
concomitant risks when they are co-opted as part of the anti-democracy
movement.
---------------------------------------------------------------------------
\226\ Tucker Carlson Is Stirring Up Hatred of America The Atlantic
(Nov. 2, 2021), https://www.theatlantic.com/ideas/archive/2021/11/
patriot-purge-tucker-carlson-documentary/620589/.
\227\ Tucker Carlson's `Patriot Purge' film on Jan. 6 is full of
falsehoods, conspiracy theories, Politifact (Nov. 5, 2021), https://
www.politifact.com/article/2021/nov/05/tucker-carlsons-patriot-purge-
film-jan-6-full-fals/.
\228\ No, there is no evidence that the F.B.I. organized the Jan. 6
capitol riot, N.Y. Times (June 18, 2021), https://www.nytimes.com/2021/
06/18/technology/misinformation-unindicted-co-conspirators-capitol-
riot.html; How Pro-Trump Forces Pushed a Lie About Antifa at the
Capitol Riot, N.Y. Times (Mar. 1, 2021), https://www.nytimes.com/2021/
03/01/us/politics/antifa-conspiracy-capitol-riot.html; Tucker Carlson's
`Patriot Purge' film on Jan. 6 is full of falsehoods, conspiracy
theories, Politifact (Nov. 5, 2021), https://www.politifact.com/
article/2021/nov/05/tucker-carlsons-patriot-purge-film-jan-6-full-
fals/.
\229\ Chris Wallace Says Life at Fox News Became `Unsustainable',
N.Y. Times (Mar. 27, 2022), https://www.nytimes.com/2022/03/27/
business/media/chris-wallace-cnn-fox-news.html.
---------------------------------------------------------------------------
Last, election deniers' rampant spreading of anti-democracy
disinformation has shaped the opinions of the American public to an
almost unimaginable extent. According to Ipsos, around a third of
Americans now ``believe there was fraudulent voting in the [2020]
election,'' and a fifth ``say they are unsure--meaning under half of
respondents unequivocally state[d] there was no, or very little,
fraudulent voting in the election.''\230\ That is consistent with a CNN
poll \231\ showing that 36 percent of Americans do not believe
President Biden won the election, as well as an NPR/PBS NewsHour/Marist
poll \232\ finding that 75 percent of Republicans believe there were
``real cases of fraud that changed the results.'' Similarly, a November
2021 Monmouth University survey found that ``one-third of the public
continues to believe voter fraud determined the outcome of the 2020
election, a finding that has been consistent over the past year.''\233\
---------------------------------------------------------------------------
\230\ Seven in ten Americans say the country is in crisis, at risk
of failing, Ipsos (Jan. 3, 2022), https://www.ipsos.com/en-us/seven-
ten-americans-say-country-crisis-risk-failing.
\231\ CNN (Sept. 15, 2021), http://cdn.cnn.com/cnn/2021/images/09/
15/rel5e.-.elections.pdf.
\232\ NPR/PBS NewsHour/Marist National Poll: Trust in Elections,
Threat to Democracy, November 2021, MaristPoll (Nov. 1, 2021), https://
maristpoll.marist.edu/polls/npr-pbs-newshour-marist-national-poll-
trust-in-elections-threat-to-democracy-biden-approval-november-2021/.
\233\ National: Doubt in American System Increases Monmouth
University (Nov. 15, 2021), https://www.monmouth.edu/polling-institute/
documents/monmouthpoll_us_111521.pdf/.
---------------------------------------------------------------------------
Because such a substantial number of Americans don't believe the
results of the 2020 Presidential election, election deniers can point
to those Americans' lack of confidence as justification for new,
restrictive voting laws. As Wisconsin State Assembly Speaker Robin Vos
put it, ``we have to improve the process when literally hundreds of
thousands of people in Wisconsin doubt that the election was held in a
way that didn't have substantial charges of fraud.''\234\ Left unsaid
was that it was election deniers' concerted efforts--first to sow doubt
in the election before it happened, then to lead efforts to reject the
certification of the election on January 6, and finally to continue to
spread disinformation about the election after the fact--that caused
such ``doubts.''
---------------------------------------------------------------------------
\234\ `A Perpetual Motion Machine': How Disinformation Drives
Voting Laws, N.Y. Times (May 13, 2021), https://www.nytimes.com/2021/
05/13/us/politics/disinformation-voting-laws.html.
---------------------------------------------------------------------------
iii. conclusion
We close by thanking you for the opportunity to provide this
important context around the January 6 attack on the Capitol. We hope
that our statement helps show that the attack was no isolated incident.
For years before, former President Trump and his allies had sown doubt
about the integrity of American elections. After the American people
cast their ballots in 2020, those same people, along with additional
allies, pursued a multi-pronged strategy to overturn an electoral
result that they did not like. The strategy involved baseless
litigation, menacing protests, targeted political pressure, wide-spread
disinformation, and corrupt legislative schemes.
Those efforts failed because certain public servants, devoted to
the rule of law, stood up against the attempted coup and defended our
republican form of government. Judges dismissed lawsuits that
threatened our system of free elections. State and local officials--
Republicans and Democrats--spoke truth to power and, despite threats
against their lives and families, pushed ahead to count every vote. And
a Vice President, under tremendous pressure to deliver victory to his
own political tribe, refused to seize a power that was not his. As he
wrote on January 6, ``my oath to support and defend the Constitution
constrains me from claiming unilateral authority to determine which
electoral votes should be counted and which should not.''\235\ Our
democracy was saved by the courage of people who made the choice to do
right, in positions where those choices made all the difference.
---------------------------------------------------------------------------
\235\ Read Pence's Full Letter Saying he Can't Claim `Unilateral
Authority' to Reject Electoral Votes, AP (Jan. 6, 2021), https://
www.pbs.org/newshour/politics/read-pences-full-letter-saying-he-cant-
claim-unilateral-authority-to-reject-electoral-votes.
---------------------------------------------------------------------------
But the anti-democracy movement has adapted and is acting today to
ensure that people with courage and devotion to the rule of law are not
in positions to safeguard elections in the coming years. The same group
that stoked fears of voter fraud in 2020, that sought to undermine the
electoral process and overturn the results, that incited the mob that
stormed the Capitol--Trump, Giuliani, Powell, Eastman, Stone, Bannon,
Lindell, Flynn, Paxton, Ward, Finchem, Mastriano, Ramthun, Alexander,
Watkins, Chase, Kaardal, Hanks, and many more in Statehouses and on
county boards or city councils across the country--are working now to
change the game and replace the refs. They are working to ensure that
2020 was the last time that they will ever be denied control over
Government in this country--regardless of what the voters say.
In short, the movement against American democracy did not begin or
end on January 6, 2021. It is strong and growing today, and it requires
a profound and powerful response. Thank you.
Joint Statement of Renee DiResta, Technical Research Manager, Stanford
Internet Observatory, Stanford University and Kate Starbird, PhD,
Associate Professor, Human-Centered Design & Engineering, and Co-
Founder and Director, Center for an Informed Public, University of
Washington
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
HEARING ON THE JANUARY 6TH INVESTIGATION
----------
Thursday, June 16, 2022
U.S. House of Representatives,
Select Committee to Investigate the January 6th Attack on
the United States Capitol,
Washington, DC.
The Committee met, pursuant to notice, at 1:02 p.m., in
room 390, Cannon House Office Building, Hon. Bennie G. Thompson
[Chairman of the Committee] presiding.
Present: Representatives Thompson, Cheney, Lofgren, Schiff,
Aguilar, Murphy, Raskin, Luria, and Kinzinger.
Chairman Thompson. The Select Committee to Investigate the
January 6th Attack on the United States Capitol will be in
order.
Without objection, the Chair is authorized to declare the
Committee in recess at any point.
Pursuant to House Deposition Authority Regulation 10, the
Chair announces the Committee's approval to release the
deposition material presented during today's hearing.
Good afternoon.
``There is no idea more un-American than the notion that
any one person could choose the American President.''
``No idea more un-American.'' I agree with that--which is
unusual because former Vice President Mike Pence and I don't
agree on much.
These are his words, spoken a few months ago about Donald
Trump's attempt to pressure the former Vice President--pressure
him into going along with an unlawful and un-Constitutional
scheme to overturn the 2020 election and give Donald Trump a
second term in office that he did not win.
Today, the Select Committee is going to reveal the details
of that pressure campaign.
But what does the Vice President of the United States even
have to do with a Presidential election? The Constitution says
that the Vice President of the United States oversees the
process of counting the electoral college votes, a process that
took place on January 6, 2021.
Donald Trump wanted Mike Pence to do something no other
Vice President has ever done. The former President wanted Pence
to reject the votes and either declare Trump the winner or send
the votes back to the States to be counted again.
Mike Pence said no. He resisted the pressure. He knew it
was illegal. He knew it was wrong. We are fortunate for Mr.
Pence's courage on January 6th. Our democracy came dangerously
close to catastrophe.
That courage put him in tremendous danger. When Mike Pence
made it clear that he wouldn't give in to Donald Trump's
scheme, Donald Trump turned a mob on him--a mob that was
chanting ``Hang Mike Pence,'' a mob that had built a hangman's
gallows just outside the Capitol.
Thanks in part to Mike Pence, our democracy withstood
Donald Trump's scheme and the violence of January 6th. But the
danger hasn't receded. Led by my colleague Mr. Aguilar, today
we will lay out the facts for the American people.
But, first, I will recognize my colleague from Wyoming, Ms.
Cheney, for any opening statement she would care to offer.
Vice Chair Cheney. Thank you very much, Mr. Chairman.
Let me take just a few minutes today to put the topic of
our hearing in broader context.
In our last hearing, we heard unequivocal testimony that
President Trump was told his election fraud allegations were
complete nonsense. We heard this from members of the Trump
campaign. We heard this from President Trump's campaign
lawyers. We heard this from President Trump's former Attorney
General, Bill Barr. We heard this from President Trump's former
Acting Attorney General, Jeff Rosen. We heard this from
President Trump's former Acting Deputy Attorney General,
Richard Donoghue. We heard from members of President Trump's
White House staff as well.
Today, we are focusing on President Trump's relentless
effort to pressure Mike Pence to refuse to count electoral
votes on January 6th.
Here, again, is how the former Vice President phrased it in
a speech before the Federalist Society, a group of conservative
lawyers.
Vice President Pence. I heard this week that President Trump said I
had the right to overturn the election. But President Trump is wrong. I
had no right to overturn the election. The Presidency belongs to the
American people and the American people alone. And frankly, there is no
idea more un-American than the notion that any one person could choose
the American President.
Vice Chair Cheney. What the President wanted the Vice
President to do was not just wrong; it was illegal and un-
Constitutional.
We will hear many details in today's hearing, but please
consider these two points:
First, President Trump was told repeatedly that Mike Pence
lacked the Constitutional and legal authority to do what
President Trump was demanding he do.
This is testimony from Marc Short, the Vice President's
chief of staff, who served in the Trump administration in
multiple positions over 4 years.
Mr. Heaphy. But just to pick up on that, Mr. Short, is it--was it
your impression that the Vice President had directly conveyed his
position on these issues to the President, not just to the world
through a Dear Colleague letter, but directly to President Trump?
Mr. Short. Many times.
Mr. Heaphy. And he'd been consistent in conveying his position to
the President?
Mr. Short. Very consistent.
Mr. Heaphy. Okay.
Vice Chair Cheney. But President Trump plotted with a
lawyer named John Eastman to pressure Pence to do so anyway.
As a Federal court has explained, ``Based on the evidence,
the Court finds that it is more likely than not that President
Trump and Dr. Eastman dishonestly conspired to obstruct the
Joint Session of Congress on January 6, 2021.''
What exactly did President Trump know? When exactly did
President Trump know that it would be illegal for Mike Pence to
refuse to count electoral votes?
Here is one sample of testimony given by one of the
witnesses before us today, the Vice President's general
counsel.
Mr. Wood. Did John Eastman ever admit, as far as you know, in front
of the President that his proposal would violate the Electoral Count
Act?
Mr. Jacob. I believe he did on the 4th.
Vice Chair Cheney. That was January 4th, 2 days before the
attack on Congress.
A second point: Please listen to testimony today about all
of the ways that President Trump attempted to pressure Vice
President Pence, including Donald Trump's tweet at 2:24 p.m.
condemning Vice President Mike Pence when President Trump
already knew a violent riot was under way at the Capitol.
In future hearings, you will hear from witnesses who were
present inside the White House, who were present inside the
West Wing on that day. But, today, we focus on the earnest
efforts of Mike Pence, who was determined to abide by his oath
of office.
As Vice President Pence prepared a statement on January 5th
and 6th explaining that he could not illegally refuse to count
electoral votes, he said this to his staff:
Mr. Jacob. I mean, the Vice President had said, ``This may be the
most important thing I ever say.''
Mr. Heaphy. ``This,'' meaning the statement?
Mr. Jacob. The statement. And he really wanted to make sure that it
was just so.
Vice Chair Cheney. You will hear today that President
Trump's White House Counsel believed that the Vice President
did exactly the right thing on January 6th, as did others in
the White House, as did Fox News Host Sean Hannity.
Vice President Pence understood that his oath of office was
more important than his loyalty to Donald Trump. He did his
duty. President Trump unequivocally did not.
Thank you, Mr. Chairman. I yield back.
Chairman Thompson. Without objection, I recognize the
gentleman from California, Mr. Aguilar, for an opening
statement.
Mr. Aguilar. Thank you, Mr. Chairman.
Today we intend to show the American people that January
6th was not an isolated incident. In the weeks culminating
before, it was a legal scheme and deception.
We have already learned that President Trump knew he lost
the 2020 election. Shortly after, he began to look for a way to
circumvent our country's most fundamental civic tradition: The
peaceful transfer of power.
The President latched on to a dangerous theory and would
not let go, because he was convinced it would keep him in
office.
We witnessed first-hand what happened when the President of
the United States weaponized this theory. The Capitol was
overrun. Police officers lost their lives. The Vice President
was taken to a secure location because his safety was in
jeopardy.
Let's take a look at the effect of Donald Trump's words and
actions. I want to warn our audience that the video contains
explicit content.
President Trump. Mike Pence is going to have to come through for
us. And if he doesn't, that will be a--a sad day for our country.
And Mike Pence, I hope you're going to stand up for the good of our
Constitution and for the good of our country. And if you're not, I'm
going to be very disappointed in you, I will tell you right now.
Voice. I'm telling you what, I'm hearing that Pence--hearing that
Pence just caved.
Voice. No.
Voice. Is that true?
Voice. I didn't hear it.
Voice. I'm hear--I'm hearing reports that Pence caved.
Voice. No way.
Voice. I'm telling you, if Pence caved, we're going to drag
motherfuckers through the streets. You fucking politicians are going to
get fucking drug through the streets.
Voice. Yes.
Voice. I guess the hope is that there's such a show of force here
that Pence will decide to----
Voice. Just do his job.
Voice [continuing]. Do the right thing, according to Trump.
Crowd. Where is Pence? Bring him out! Bring out Pence! Bring him
out! Bring out Pence! Bring him out! Bring out Pence!
Crowd. Hang Mike Pence! Hang Mike Pence! Hang Mike Pence! Hang Mike
Pence! Hang Mike Pence! Hang Mike Pence! Hang Mike Pence! Hang Mike
Pence! Hang Mike Pence! Hang Mike Pence!
Mr. Aguilar. How did we get to this point? How did we get
to the point where President Trump's most radical supporters
led a violent attack on the Capitol and threatened to hang
President Trump's own Vice President?
You will hear from witnesses that Donald Trump pressured
Mike Pence to adopt a legally and morally bankrupt idea that
the Vice President could choose who the next President can be.
You will hear about how the Vice President, the White House
Counsel, and others told Donald Trump that the Vice President
had no such authority, but President Trump would not listen.
You will hear how Vice President Pence withstood an
onslaught of pressure from President Trump, both publicly and
privately--a pressure campaign that built to a fever pitch with
a heated phone call on January 6th.
You will also hear that the President knew there was a
violent mob at the Capitol when he tweeted at 2:24 p.m. that
the Vice President did not have the ``courage'' to do what
needed to be done.
Let me be clear: Vice President Pence did the right thing
that day. He stayed true to his oath to protect and defend the
Constitution.
I look forward to hearing from our witnesses this
afternoon.
Mr. Chairman, I yield back.
Chairman Thompson. Thank you, Mr. Aguilar.
We are honored to have two distinguished witnesses who
advised the Vice President regarding his role on January 6th.
Judge J. Michael Luttig is one of the leading conservative
legal thinkers in the country. He served in the administrations
of President Ronald Reagan and George H.W. Bush. He was
appointed by the latter to serve on the U.S. Court of Appeals
for the Fourth Circuit, where he served from 1991 to 2006.
He provided critical advice for Vice President Pence
regarding the role of the Vice President in the joint session
of Congress shortly before that fateful moment.
He has written that the Vice President does not have the
power to select the next President of the United States. He has
also written that the contrary theory, espoused by one of his
own former law clerks, was ``incorrect at every turn.''
We are also joined today by one of the people who was with
Vice President Pence on January 6th. Greg Jacob was counsel to
Vice President Pence.
He conducted a thorough analysis of the role of the Vice
President in the joint session of Congress under the
Constitution, the Electoral Count Act, and 230 years of
historical practice.
But he also has first-hand information about the attack on
the Capitol because he lived through it. He was with the Vice
President, and his own life was in danger.
I will now swear in our witnesses. The witnesses will
please stand and raise their right hands.
[Witnesses sworn.]
Chairman Thompson. Thank you. You may be seated.
Let the record reflect the witnesses answered in the
affirmative.
I now recognize myself for questions.
In the United States, the people choose our
representatives, including the highest official in the land,
the President of the United States. The American people did
this on November 3, 2020.
But President Trump did not like the outcome. He did
everything he could to change the result of the election.
He tried litigation--62 cases, in fact--and that failed.
He tried to pressure State legislatures to reverse the
results of the election in their States, but they refused.
He tried to enlist the Department of Justice in his efforts
to overturn election results, but officials leading the
Department refused to comply.
So, eventually, he latched on to a completely nonsensical
and antidemocratic theory that one man, his own Vice President,
could determine the outcome of the election. He wanted the Vice
President to unilaterally select the President.
This theory, that the Vice President could unilaterally
select the President, runs completely contrary to our
Constitution, our laws, and the entirety of our American
experience. But that didn't matter to President Trump.
I would now like to explore how President Trump came to
latch onto this ridiculous legal theory that the Vice President
can select the President of the United States.
Mr. Jacob, how did this theory first come to your
attention?
Mr. Jacob.\1\ The first time that I had a conversation with
the Vice President about the 12th Amendment and the Electoral
Count Act was in early December, around December 7th.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Jacob has been included in the
Appendix and may be found on page 653.
---------------------------------------------------------------------------
The Vice President called me over to his West Wing office
and told me that he had been seeing and reading things that
suggested that he had a significant role to play on January 6th
in announcing the outcome of the election.
He told me that he had been first elected to Congress in
2000 and that one of his earliest memories as a Congressman was
sitting in on the 2001 certification, and he recalled that Al
Gore had gaveled down a number of objections that had been
raised to Florida.
He asked me, ``Mechanically, how does this work at the
joint session? What are the rules?''
I told the Vice President that, in fact, I had a fairly
good idea of how things worked, that actually there aren't
rules that govern the joint session, but what there is is a
provision of the Constitution that is just one sentence long
and then an Electoral Count Act that had been passed in 1887.
I told the Vice President that I could put a memo together
for him overnight that would explain the applicable rules.
Chairman Thompson. So, Mr. Jacob, when you looked at this
theory, what did you conclude?
Mr. Jacob. So, we concluded that what you have is a
sentence in the Constitution that is inartfully drafted. But
the Vice President's first instinct, when he heard this theory,
was that there was no way that our Framers, who abhorred
concentrated power, who had broken away from the tyranny of
George III, would ever have put one person--particularly not a
person who had a direct interest in the outcome because they
were on the ticket for the election--in a role to have decisive
impact on the outcome of the election.
Our review of text, history, and, frankly, just common
sense, all confirmed the Vice President's first instinct on
that point. There is no justifiable basis to conclude that the
Vice President has that kind of authority.
Chairman Thompson. Thank you, Mr. Jacob.
We will hear more today about how, despite this conclusion
by you and other top legal advisors, the former President used
this discredited theory in his campaign to pressure the Vice
President to decide the outcome of the Presidential election.
I now recognize the gentlewoman from Wyoming, Ms. Cheney,
for questions.
Vice Chair Cheney. Thank you very much, Mr. Chairman.
Judge Luttig, thank you, as well, for being here with us
today.
You issued a very important statement earlier today, which
I urge all Americans to read. I would like to ask you, Judge,
about one of the sentences in your statement and ask if you
could explain to us the significance of it.
You say, ``Had the Vice President of the United States
obeyed the President of the United States, America would
immediately have been plunged into what would have been
tantamount to a revolution within a paralyzing Constitutional
crisis.''
Would you elaborate on that for us, Judge?
Judge Luttig.\2\ Thank you, Madam Vice Chair.
---------------------------------------------------------------------------
\2\ The prepared statement of Judge Luttig has been included in the
Appendix and may be found on page 655.
---------------------------------------------------------------------------
That passage in my statement this morning referenced the
most foundational concept in America, which is the rule of law.
Thus, as I interpret your question, you are asking about that
foundational truth of these United States which we call
``America.''
The foundational truth is the rule of law. That
foundational truth is, for the United States of America, the
profound truth.
But it is not merely the profound truth for the United
States; it is also the simple truth, the simple foundational
truth of the American Republic.
Thus, in my view, the hearings being conducted by this
Select Committee are examining that profound truth--namely, the
rule of law in the United States of America.
The specific question, of course, before you and before the
Nation--not before me--is whether that foundational rule of law
was supremely violated on January 6, 2021.
Now, to the question specifically that you asked, Madam
Vice Chair, I believe that had Vice President Pence obeyed the
orders from his President--and the President of the United
States of America--during the joint session of the Congress of
the United States on January 6, 2021, and declared Donald Trump
the next President of the United States, notwithstanding that
then-President Trump had lost the electoral college vote as
well as the popular vote in the 2020 Presidential election,
that declaration of Donald Trump as the next President would
have plunged America into what I believe would have been
tantamount to a revolution within a Constitutional crisis in
America, which, in my view--and I am only one man--would have
been the first Constitutional crisis since the founding of the
Republic.
Vice Chair Cheney. Thank you very much, Judge, for your
solemn attention to these issues and for your appearance here
today.
We are going to describe and discuss in detail what
happened, and, as we do, I am going to describe a few of the
details now of some of the actions taken by a gentleman named
Kenneth Chesebro.
After the electoral college met and cast their votes on
December 14th--actually, the day before they met--Kenneth
Chesebro sent a memo to Rudy Giuliani, the President's lead
outside counsel.
Mr. Chesebro wrote to Mayor Giuliani that the Vice
President is charged with, ``making judgments about what to do
if there are conflicting votes.''
Mr. Chesebro wrote that, when the joint session of Congress
got to Arizona in the alphabetical list of States, the Vice
President should not count the Biden votes, ``because there are
two slates of votes.''
His justification, which we will learn more about in our
next hearing, was that a group of Trump supporters in Arizona
and other swing States decided to proclaim themselves the true
electors for the State, creating two sets of electors--the
official electors selected by the State and a group of fake
electors.
This document was ordered to be produced to the Select
Committee by a Federal district court judge. As you will see on
the screen shortly, Judge David Carter wrote, ``The draft memo
pushed a strategy that knowingly violated the Electoral Count
Act . . . ''
The judge concluded that ``the memo is both intimately
related to and clearly advanced the plan to obstruct the joint
session of Congress on January 6, 2021.''
A few days later, Professor John Eastman took up this
cause. Eastman was at the time a law professor at Chapman
University Law School.
He prepared a memo outlining the nonsensical theory that
the Vice President could decide the outcome of the election at
the joint session of Congress on January 6th. You will see
portions of this memo on the screen.
In the first line, he wrote, ``7 States have transmitted
dual slates of electors to the President of the Senate.''
But Dr. Eastman goes on to rely on those so-called ``dual
slates of electors'' to say that Vice President Pence could
simply declare President Trump the winner of the 2020 election.
Mr. Jacob, were there, in fact, dual slates of electors
from 7 States?
Mr. Jacob. No, there were not.
Vice Chair Cheney. Just a few days after that, Dr. Eastman
wrote another memo, this one ``war gaming'' out several
scenarios. He knew the outcome he wanted, and he saw a way to
go forward if he simply pretended that fake electors were real.
You will see that memo up on the screen now.
Here, Dr. Eastman says the Vice President can reject the
Biden electors from the States that he calls ``disputed.''
Under several of the scenarios, the Vice President could
ultimately just declare Donald Trump the winner, regardless of
the vote totals that had already been certified by the States.
However, this was false. Dr. Eastman knew it was false. In
other words, it was a lie.
In fact, on December 19, 2020, just 4 days before Dr.
Eastman sent this memo, Dr. Eastman himself admitted in an
email that the fake electors had no legal weight, referring to
the fake electors as ``dead on arrival in Congress,'' because
they did not have a certification from their States.
Judge Luttig, did the Trump electors in those 7 States, who
were not certified by any State authority, have any legal
significance?
Judge Luttig. Congresswoman, there was no support
whatsoever in either the Constitution of the United States nor
the laws of the United States for the Vice President, frankly,
ever to count alternative electoral slates from the States that
had not been officially certified by the designated State
official in the Electoral Count Act of 1887.
I did notice in the passage from Mr. Eastman's memorandum,
and I took a note on it. Correct me if I am wrong, but he said
in that passage that there was both legal authority as well as
historical precedent.
I do know what Mr. Eastman was referring to when he said
that there was historical precedent for doing so. He was
incorrect. There was no historical precedent from the beginning
of the founding in 1789, even as mere historical precedent, as
distinguished from legal precedent, that would support the
possibility of the Vice President of the United States
``counting'' alternative electoral slates that had not been
officially certified to the Congress pursuant to the Electoral
Count Act of 1887.
I would be glad to explain that historical precedent if the
Committee wanted, but it would be a digression.
Vice Chair Cheney. Thank you very much, Judge. I know my
colleagues will be pursuing that issue in more depth.
Now I would like to yield back, Mr. Chairman.
Chairman Thompson. Thank you very much.
Pursuant to section 5(c)(8) of House Resolution 503, the
Chair recognizes the gentleman from California, Mr. Aguilar,
and staff counsel, Mr. John Wood, for questioning.
Mr. Aguilar. Thank you, Mr. Chairman.
We are fortunate to have a bipartisan staff. Senior
Investigative Counsel John Wood previously served as United
States attorney in Missouri under President George W. Bush. He
and I will share today's lines of questioning.
Mr. Wood.
Mr. Wood. Thank you, Mr. Aguilar.
Judge Luttig, I had the incredible honor of serving as one
of your law clerks. Another person who did was John Eastman.
You have written that Dr. Eastman's theory that the Vice
President could determine who the next President of the United
States is is, in your words, ``incorrect at every turn.''
Could you please explain briefly your analysis?
Judge Luttig. It was my honor, Mr. Wood, to have you serve
as my law clerk.
I could answer that question perfectly if I had at my
disposal either Mr. Eastman's tweet or my own analytical tweet
of September 21st, but I don't.
But, that said, let me try to remember Mr. Eastman's
analysis.
Mr. Wood. Judge, I can read to you and to the audience I
think what was really a key passage from your very insightful
analysis, when you wrote, ``I believe(d) that Professor Eastman
was incorrect at every turn of the analysis in his January 2
memorandum, beginning with his claim that there were
legitimate, competing slates of electors presented from 7
States.''
You have already addressed that issue.
But your next sentence said: `` . . . continuing to his
conclusion that the Vice President could unilaterally decide
not to count the votes from the 7 States from which competing
slates were allegedly presented.''
So, what was your basis for concluding that Dr. Eastman was
incorrect in his conclusion that the Vice President could
unilaterally decide not to count the votes from these disputed
States?
Judge Luttig. I understand.
As I previously stated in response to Congresswoman Cheney,
there was no basis in the Constitution or laws of the United
States at all for the theory espoused by Mr. Eastman--at all.
None.
With all respect to my co-panelist, he said, I believe in
partial response to one of the Select Committee's questions,
that the single sentence in the 12th Amendment was, he thought,
inartfully written.
That single sentence is not inartfully written. It was
pristine clear that the President of the Senate on January 6th,
the incumbent Vice President of the United States, had little
substantive Constitutional authority, if any at all.
The 12th Amendment, the single sentence that Mr. Jacob
refers to, says in substance that, following the transmission
of the certificates to the Congress of the United States and,
under the Electoral Count Act of 1887, the Archivist of the
United States, that the presiding officer shall open the
certificates in the presence of the Congress of the United
States in joint session.
It then says, unmistakably, not even that the Vice
President himself shall count the electoral votes. It clearly
says merely that the electoral count votes shall then be
counted.
It was the Electoral Count Act of 1887 that filled in, if
you will, the simple words of the 12th Amendment in order to
construct for the country a process for the counting of--the
sacred process for the counting of--the electoral votes from
the States that neither our original Constitution nor even the
12th Amendment had done.
The irony, if you will, is that, from its founding until
1887, when Congress passed the Electoral Count Act, the Nation
had been in considerable turmoil during at least 5 of its
Presidential elections, beginning as soon thereafter from the
founding as 1800. So, it wasn't for almost 100 years later
until the Electoral Count Act was passed.
So that is why, in my view, that piece of legislation is
not only a work in progress for the country but, at this moment
in history, an important work in progress that needs to take
place.
That was long-winded, I understand.
Mr. Wood. Well, Judge Luttig, at the risk of
oversimplifying for the non-lawyers who are watching, is it
fair to say that the 12th Amendment basically says two things
happen: the Vice President opens the certificates, and the
electoral votes are counted.
Is it that straightforward?
Judge Luttig. I would not want that to be my testimony
before the Congress of the United States. The language of the
12th Amendment is that simple.
Mr. Wood. Thank you, Judge.
Mr. Jacob, I have a question for you. I believe during your
deposition before this Committee you said something to the
effect of you had read every word written about the 12th
Amendment, the Electoral Count Act, and historical practice.
I know in response to the Chairman's earlier question you
gave your bottom-line conclusion, but can you tell us a little
bit about the process that you and your colleagues went through
of researching this issue and what conclusion you came to after
your thorough research?
Mr. Jacob. So, as a lawyer who is analyzing a
Constitutional provision, you start with the Constitutional
text, you go to structure, you go to history.
So, we started with the text. We did not think that the
text was quite as unambiguous as Judge Luttig indicated. In
part, we had a Constitutional crisis in 1876 because, in that
year, multiple slates of electors were certified by multiple
States, and, when it came time to count those votes, the
antecedent question of which ones had to be answered.
That required the appointment of an independent commission.
That commission had had to resolve that question. The purpose
of the Electoral Count Act of 1887 had been to resolve those
latent ambiguities.
Now, I am in complete agreement with Judge Luttig; it is
unambiguous that the Vice President does not have the authority
to reject electors. There is no suggestion of any kind that it
does. There is no mention of rejecting or objecting to electors
anywhere in the 12th Amendment. So the notion that the Vice
President could do that certainly is not in the text.
But the problem that we had, and that John Eastman raised
in our discussions was, we had all seen that in Congress, in
2000, in 2004, in 2016, there had been objections raised to
various States, and those had even been debated in 2004. So
here you have an amendment that says nothing about objecting or
rejecting and yet we did have some recent practice of that
happening within the terms of the Electoral Count Act.
So, we started with that text. I recall, in my discussion
with the Vice President, he said, ``I can't wait to go to
heaven and meet the Framers and tell them, `The work that you
did in putting together our Constitution is a work of genius.
Thank you. It was divinely inspired. There is one sentence that
I would like to talk to you a little bit about.' ''
So, then we went to structure. Again, the Vice President's
first instinct here is so decisive on this question. There is
just no way that the Framers of the Constitution, who divided
power and authority, who separated it out, who had broken away
from George III and declared him to be a tyrant--there was no
way that they would have put in the hands of one person the
authority to determine who was going to be President of the
United States.
Then we went to history. We examined every single electoral
vote count that had happened in Congress since the beginning of
the country. We examined the Electoral Count Act. We examined
practice under the Electoral Count Act.
Critically, no Vice President in 230 years of history had
ever claimed to have that kind of authority, hadn't claimed
authority to reject electoral votes, had not claimed authority
to return electoral votes back to the States. In the entire
history of the United States, not once had a joint session ever
returned electoral votes back to the States to be counted.
In the crisis of 1876, Justice Bradley of the U.S. Supreme
Court, who supplied the decisive final vote on that commission,
had specifically looked at that question and said, first, the
Vice President clearly doesn't have authority to decide
anything and, by the way, also does not have authority to
conduct an investigation by sending things back out for a
public look at things.
So, the history was absolutely decisive.
Again, part of my discussion with Mr. Eastman was, if you
were right, don't you think Al Gore might have liked to have
known in 2000 that he had authority to just declare himself
President of the United States? Did you think that the Democrat
lawyers just didn't think of this very obvious quirk that he
could use to do that? Of course, he acknowledged Al Gore did
not and should not have had that authority at that point in
time.
But so text, structure, history. I think what we had was
some ambiguous text that common sense and structure would tell
you the answer cannot possibly be that the Vice President has
that authority--as the Committee already played the Vice
President's remarks, there is almost no idea more un-American
than the notion that any one person would choose the American
President--and then unbroken historical practice for 230 years
that the Vice President did not have such an authority.
Mr. Wood. Thank you.
I reserve the remainder of my time.
Mr. Aguilar. Mr. Jacob, you weren't the only one who knew
that the legal theory was wrong, though. Here is what various
advisors to the President thought about that theory.
Mr. Heaphy. Had you been clear repeatedly with Mr. Meadows about
you and the Vice President having a different view about his authority
on January 6th?
Mr. Short. I believe I had.
Mr. Heaphy. Did Mr. Meadows ever explicitly or tacitly agree with
you, or say, ``Yeah, that makes sense, okay''?
Mr. Short. I believe that--that Mark did agree.
Mr. Heaphy. What makes you say that?
Mr. Short. I believe that's what he told me. But, as I mentioned, I
think Mark had told so many people so many different things that it was
not something that--that I would necessarily accept as okay, well, that
means that's resolved.
Mr. Heaphy. I see. Tell me more what--what he told you on this
topic.
Mr. Short. Well, I think it was that, you know, the Vice President
doesn't have any broader role. I think he was understanding of that.
Mr. Heaphy. So, despite the fact that he may have said other things
to the President or others, to you he said he understands the Vice
President has no role.
Mr. Short. Yes.
Mr. Heaphy. Okay. Did he say that to you several times?
Mr. Short. A couple of times, um-hmm.
Mr. Heaphy. Before January 6th?
Mr. Short. Yes.
Mr. Jason Miller. The way it was communicated to me was that Pat
Cipollone thought the idea was--was nutty and had at one point
confronted Eastman basically with the same sentiment.
Mr. Short. Pat expressed his admiration for the Vice President's
actions on the day of the 6th and said that he concurred with the legal
analysis that--that our team had--had put together to reach that point.
Mr. Herschmann. It made no sense to me that, in all the protections
that were built into the Constitution for a President to get elected
and steps that had to be taken, that the--or to choose the next
President would be sitting at--with the Vice President.
Mr. George. Do you know if Mr. Clark or Mr. Morgan--is it Morgan--
viewed about that--thought about that, Mr. Eastman's advice?
Mr. Jason Miller. Yeah, they thought he was crazy.
Mr. George. Do you know if they ever expressed an opinion on
whether they thought the Vice President had the power that John Eastman
said he did?
Mr. Jason Miller. I know for a fact I heard both say that his
theory was crazy, that there was no validity to it in any way, shape,
or form.
Mr. George. And did they express that before January 6th?
Mr. Jason Miller. Yes.
Mr. George. To whom?
Mr. Jason Miller. I think anyone who would listen.
Mr. Wood. Okay. What were your prior interactions with Eastman?
Mr. Herschmann. He described for me what he thought the ambiguity
was in the statute, and he was walking through it at that time. And I
said, ``Hold on a second. I want to understand what you're saying.
You're saying that you believe the Vice President, acting as President
of the Senate, can be the sole decision maker as to, under your theory,
who becomes the next President of the United States.''
And he said, ``Yes.''
And I said, ``Are you out of your effing mind?'' Right? And I--you
know, that was pretty blunt.
I said, ``You're completely crazy.''
I said, ``You're going to turn around and tell 78-plus million
people in this country that your theory is this is how you're going to
invalidate their votes, because you think the election was stolen?''
And I said, ``They're not going to tolerate that.'' Said: ``You're
going to cause riots in the streets.''
And he said words to the effect of: There has been violence in the
history of our country, Eric, to protect the democracy or protect the
Republic.
Mr. Aguilar. In fact, there was a risk that the lawyers in
the White House Counsel's Office would resign.
For example, Fox News Host Sean Hannity expressed concern
that the entire White House Counsel's Office could quit. As you
can see from these texts, Mr. Hannity wrote to White House
Chief of Staff Mark Meadows that, ``we can't lose the entire WH
counsels office. I do NOT see January 6 happening the way he is
being told.''
A few days later, on January 5th, Mr. Hannity wrote to Mr.
Meadows that, ``I'm very worried about the next 48 hours.''
``Pence pressure. WH counsel will leave.''
While Sean Hannity was apparently very concerned about the
possibility that the White House Counsel would resign in
protest of the President's effort to force the Vice President
to violate the Constitution, some others close to the President
were more dismissive of the White House Counsel's position.
Here is what Trump's son-in-law and senior advisor, Jared
Kushner, said during his deposition regarding White House
Counsel Pat Cipollone's threats to resign.
Vice Chair Cheney. Jared, are you aware of instances where Pat
Cipollone threatened to resign?
Mr. Kushner. I--I kind-of--like I said, my interest at that time
was on trying to get as many pardons done. And I know that, you know,
he was always--to him and the team were always saying, Oh, we're going
to resign. We're not going to be here if this happens, if that happens.
So, I kind-of took it up to just be whining to be honest with you.
Mr. Aguilar. The President's own lead outside counsel, Rudy
Giuliani, also seemed to concede that the Vice President did
not have the authority to decide the outcome of the election or
send it back to the States.
Here is what White House attorney Eric Herschmann said
about his call with Mayor Giuliani on the morning of the 6th.
Mr. Herschmann. The morning of January 6th, I think he called me
out of the blue, right? And I was like getting dressed. And we had an
intellectual discussion that--about Eastman's--I don't know if it's
Eastman's theory per se, but the VP's role. And, you know, he was
asking me my view and analysis and then the practical implications of
it. And when we finished, he said, like, ``I believe that, you know,
you're probably right.''
I think he thought, when we were done, that it would be something
he'd have to consider if he was sitting on the bench, but he'd probably
come down in that, you know, you couldn't interpret it or sustain the
argument long-term.
Mr. Aguilar. Of course, the fact that Mayor Giuliani seemed
to admit that the theory was wrong did not stop him from going
before the crowd just a few hours later on January 6th and
saying the exact opposite.
Here is Mayor Giuliani's speech at the Ellipse rally on
January 6th.
Mr. Giuliani. We're here just very briefly to make a--very
important two points. No. 1, every single thing that has been outlined
as the plan for today is perfectly legal. I have Professor Eastman here
with me to say a few words about that. He's one of the preeminent
constitutional scholars in the United States.
It is perfectly appropriate, given the questionable
constitutionality of the Election Counting Act of 1887, that the Vice
President can cast it aside, and he can do what a President called
Jefferson did when he was Vice President. [applause]
He can decide--he can decide on the validity of these crooked
ballots, or he can send it back to the legislatures, give them 5 to 10
days to finally finish the work.
Mr. Aguilar. Here is what Dr. Eastman said in his speech at
the Ellipse on January 6th.
Mr. Eastman. And all we are demanding of Vice President Pence is
this afternoon at 1 o'clock he let the legislatures of the State look
into this, so we get to the bottom of it and the American people know
whether we have control of the direction of our Government or not.
[applause]
Mr. Aguilar. Even Dr. Eastman knew his theory didn't hold
water.
Mr. Jacob, you discussed and even debated this theory at
length with Dr. Eastman. Did Dr. Eastman ever tell you what he
thought the U.S. Supreme Court would do if it had to decide
this issue?
Mr. Jacob. Yes. We had an extended discussion, an hour-and-
a-half to 2 hours, on January 5th. When I pressed him on the
point, I said, ``John, if the Vice President did what you are
asking him to do, we would lose 9 to nothing in the Supreme
Court, wouldn't we?''
He initially started, ``Well, I think maybe you would lose
only 7-2,'' and after some further discussion acknowledged,
``Well, yes, you are right, we would lose 9-nothing.''
Mr. Aguilar. I appreciate that.
In our investigation, the Select Committee has obtained
evidence suggesting that Dr. Eastman never really believed his
own theory. Let me explain.
On the screen, you can see a draft letter to the President
from October 2020. In this letter, an idea was proposed that
the Vice President could determine which electors to count at
the joint session of Congress. But the person writing in blue
eviscerates that argument.
The person who wrote the comments in blue wrote, ``The 12th
Amendment only says that the President of the Senate opens the
ballots in the joint session and then, in the passive voice,
that the votes shall then be counted.''
The comments in blue further state, ``Nowhere does it
suggest that the President of the Senate gets to make the
determination on his own.''
Judge Luttig, does it surprise you that the author of those
comments in blue was, in fact, John Eastman?
Judge Luttig. Yes, it does, Congressman.
But let me--watching this unfold, let me try to unpack what
was at the root of what I have called ``the blueprint to
overturn the 2020 election,'' and it is this. I foreshadowed
this answer in my earlier testimony to Congresswoman Cheney.
Mr. Eastman, from the beginning, said to the President that
there was both legal as well as historical precedent for the
Vice President to overturn the election. What we have heard
today, I believe, is what happened within the White House and
elsewhere as all the players, led by Mr. Eastman, got wrapped
around the axle by the ``historical evidence'' claim by Mr.
Eastman.
Let me explain very simply. This is what I have said would
require a digression that I would be glad to undertake if you
wish.
In short, if I had been advising the Vice President of the
United States on January 6th, and even if then-Vice President
Jefferson and even then-Vice President John Adams and even
then-Vice President Richard Nixon had done exactly what the
President of the United States wanted his Vice President to do,
I would have laid my body across the road before I would have
let the Vice President overturn the 2020 election on the basis
of that historical precedent.
But what this body needs to know--and now America needs to
know--is that that was the centerpiece of the plan to overturn
the 2020 election. It was the historical precedent in the years
and with the Vice Presidents that I named, as Congressman
Raskin understands well.
The effort by Mr. Eastman and others was to drive that
historical precedent up to and under that single sentence,
single pristine sentence, in the 12th Amendment to the United
States Constitution, taking advantage of, if you will, what
many have said is the inartful wording of that sentence in the
12th Amendment.
Scholars before 2020 would have used that historical
precedent to argue not that Vice President Pence could overturn
the 2020 election by accepting noncertified State electoral
votes, but they would have made arguments as to some
substantive, not merely procedural, authority possessed by the
Vice President of the United States on the statutorily
prescribed day for counting the electoral college votes.
This is Constitutional mischief.
Mr. Aguilar. Judge, I think that is a good point. I think
it kind-of begs the question that if the Vice President had
this power to determine the outcome of a Presidential election,
why hasn't it ever been used before? Why hasn't that ever
happened? Why hasn't a Vice President simply rejected the
outcome of an election and declared someone else the winner?
Instead, as the Chairman mentioned in his opening, for over
two centuries Vice Presidents have presided over the joint
sessions of Congress in a purely ceremonial role.
This even includes, as Mr. Jacob mentioned, Vice President
Al Gore. For those of us who are old enough to remember, the
2000 election came down to one State: Florida. There were weeks
of recounts and litigation after the election, and Al Gore
conceded.
Of course, Al Gore was the Vice President at the time, but
he never suggested that he could simply declare himself the
winner of the 2000 election when he presided over the counting
of the electoral votes.
Let's hear what Vice President Gore said when he described
the situation he faced in 2000.
Vice President Gore. [I]mportance of the United States of America
in all of human history, in Lincoln's phrase, we still are the last
best hope of humankind. And the choice between one's own disappointment
in your personal career and upholding the--the noble traditions of
America's democracy, it's a pretty easy choice when it comes down to
it.
Mr. Aguilar. Mr. Jacob, did Dr. Eastman say whether he
would want other Vice Presidents, such as Al Gore after the
2000 election, or Kamala Harris after the 2024 election, to
have the power to decide the outcome of the election?
Mr. Jacob. So, this was one of the many points that we
discussed on January 5th. He had come into that meeting trying
to persuade us that there was some validity to his theory. I
viewed it as my objective to persuade him to acknowledge he was
just wrong.
I thought this had to be one of the most powerful
arguments: ``I mean, John, back in 2000, you weren't jumping up
and saying Al Gore had this authority to do that. You would not
want Kamala Harris to be able to exercise that kind of
authority in 2024 when I hope Republicans will win the
election, and I know you hope that too, John.''
He said, ``Absolutely. Al Gore did not have a basis to do
it in 2000. Kamala Harris shouldn't be able to do it in 2024.
But I think you should do it today.''
Mr. Aguilar. Marc Short told the Select Committee that Vice
President Pence consulted with one of his predecessors, Vice
President Dan Quayle, regarding the role of the Vice President.
Vice President Quayle confirmed Pence's view that the role was
purely ceremonial.
Mr. Short also told the Committee that he, Mr. Short,
received a call from former House Speaker Paul Ryan. Here is
Mr. Short's description of his conversation with Speaker Ryan.
Mr. Short. Speaker Ryan wanted to call and say, ``You know, you
don't have any greater authority.'' And I--I said to him, ``Mr. Speaker
you--you know, Mike, you know he doesn't--you know, he recognizes
that.'' And we sort-of laughed about it, and he said, ``I get it.'' And
he later spoke to the Vice President, too, to I think have the same
conversation.
Mr. Aguilar. Fortunately for the fate of our Republic, Vice
President Pence refused to go along with President Trump's
demands that he determine the outcome of the Presidential
election.
Mr. Jacob, what was the Vice President's reaction when you
discussed with him the theory that the Vice President could
decide the outcome of the election?
Mr. Jacob. Congressman, as I have testified, the Vice
President's first instinct was that there was no way that any
one person, particularly the Vice President, who is on the
ticket and has a vested outcome in the election, could possibly
have the authority to decide it, by rejecting electors, or to
decisively alter the outcome by suspending the joint session
for the first time in history in order to try to get a
different outcome from State legislatures.
Mr. Aguilar. Despite the fact that the Vice President had a
strongly held and correct view that he could not decide the
outcome of the election, President Trump launched a multi-week
campaign of both public and private pressure to get Vice
President Mike Pence to violate the Constitution.
Here are some examples of the intense pressure the Vice
President faced from all sides and what his chief of staff
thought of it.
President Trump. And I hope Mike Pence comes through for us. I have
to tell you. [applause] I hope that our great Vice President--our great
Vice President comes through for us. He's a great guy. Of course, if he
doesn't come through, I won't like him quite as much. [laughter]
Mr. Heaphy. Was it your impression that the Vice President had
directly conveyed his position on these issues to the President, not
just to the world through a Dear Colleague letter, but directly to
President Trump?
Mr. Short. Many times.
Mr. Heaphy. And he'd been consistent in conveying his position to
the President?
Mr. Short. Very consistent.
Mr. Giuliani. I am--I am aware of the fact that the President was
upset with the way Pence acted.
Mr. Bannon. Are we to assume that this is going to be a climactic
battle?
Mr. Eastman. Well, I think a lot of that depends on the courage and
the spine of the individuals involved.
Mr. Bannon. That would be a nice way to say a guy named Mike--Vice
President Mike Pence?
Mr. Eastman. Yes.
Mr. Short. I think we'd been clear as to what the Vice President's
role was. I think the Vice President made clear with the President. And
I think I'd been clear with Mark Meadows.
Mr. Jason Miller. I think the Vice President is going to throw down
tomorrow and do the right thing because, Lou, like I said before, this
is a time for choosing. People are going to look back at this moment
tomorrow and remember where every single one of their elected officials
were.
Did they vote for the rule of law in getting these elections right?
Or did they give it away to the Democrats and the people who cheated
and stole their way through this election?
Definitely the--you know, I got back into town approximately like
the 5th and the 6th. The President was, you know, all the attention was
on what Mike would do or what Mike wouldn't do.
Mr. Short. The Vice President really was not wavering in his
commitment to what he--what his responsibility was. And so, yeah, was
it--was it painful? Sure.
Mr. Aguilar. The President's pressure campaign started in
December. For example, although the Vice President made his
views clearly and unmistakably known to the President and
others in the White House on December 23rd, President Trump
retweeted a memo from an individual named Ivan Raiklin,
entitled ``Operation Pence Card,'' that called on the Vice
President to refuse the electoral college votes from certain
States that had certified Joe Biden as the winner.
President Trump started his pressure campaign in December,
but he dialed up the pressure as January 6th approached.
The testimony we have received in our investigation
indicates that by the time January 4th arrived, President Trump
had already engaged in a ``multi-week campaign'' to pressure
the Vice President to decide the outcome of the election.
This had included private conversations between the two
leaders, Trump's tweets, and at least one meeting with Members
of Congress.
We understand that the Vice President started his day on
January 4th with a rally in Georgia for the Republican
candidates in the U.S. Senate runoff.
When the Vice President returned to Washington, he was
summoned to meet with the President regarding the upcoming
joint session of Congress.
Mr. Jacob, who attended that meeting?
Mr. Jacob. The attendees were the Vice President, the
President, Marc Short, the chief of staff to the Vice
President, myself, and John Eastman. There was about a 5-minute
period where Mark Meadows came in on a different issue.
Mr. Aguilar. Let's show a photo of that meeting.
Mr. Jacob, during that meeting between the President and
the Vice President, what theories did Dr. Eastman present
regarding the role of the Vice President in counting the
electoral votes?
Mr. Jacob. During the meeting on January 4th, Mr. Eastman
was opining that there were two legally viable arguments as to
authorities that the Vice President could exercise 2 days later
on January 6th.
One of them was that he could reject electoral votes
outright. The other was that he could use his capacity as
presiding officer to suspend the proceedings and declare
essentially a 10-day recess, during which States that he deemed
to be disputed--there was a list of 5 to 7 States that the
exact number changed from conversation to conversation--but
that the Vice President could sort-of issue a demand to the
State legislatures in those States to reexamine the election
and declare who had won each of those States.
So, he said that both of those were legally viable options.
He said that he did not recommend, upon questioning, he did not
recommend what he called the more aggressive option, which was
reject outright, because he thought that that would be less
politically palatable, that the imprimatur of State legislature
authority would be necessary to ultimately have public
acceptance of an outcome in favor of President Trump.
So, he advocated that the preferred course of action would
be the procedural route of suspending the joint session and
sending the election back to the States.
Mr. Aguilar. Mr. Jacob, I know you won't discuss the direct
conversations between the President and the Vice President, so
rather than asking you what the Vice President said in that
meeting, I will ask you a more general question.
Did the Vice President ever waver in his position that he
could not unilaterally decide which electors to accept?
Mr. Jacob. The Vice President never budged from the
position that I have described as his first instinct, which was
that it just made no sense, from everything that he knew and
had studied about our Constitution, that one person would have
that kind of authority.
Mr. Aguilar. Did the Vice President ever waver in his
position that he could not delay certification and send it back
to the States?
Mr. Jacob. No, he did not.
Mr. Aguilar. Did Dr. Eastman admit in front of the
President that his proposal would violate the Electoral Count
Act?
Mr. Jacob. So, during that meeting on the 4th, I think I
raised the problem that both of Mr. Eastman's proposals would
violate several provisions of the Electoral Count Act.
Mr. Eastman acknowledged that that was the case, that even
what he viewed as the more politically palatable option would
violate several provisions, but he thought that we could do so
because in his view the Electoral Count Act was
unconstitutional.
When I raised concerns that that position would likely lose
in court, his view was that the court simply wouldn't get
involved. They would invoke the political question doctrine and
therefore we could have some comfort proceeding with that path.
Mr. Aguilar. Mr. Wood.
Mr. Wood. But just to reiterate, he told you--maybe this
was in a later conversation--but he told you at some point that
if, in fact, the issue ever got to the Supreme Court, his
theory would lose
9-0, correct?
Mr. Jacob. The next morning, starting around 11 or 11:30,
we met for an hour-and-a-half to 2 hours. In that meeting, I
have already described the text, structure, history
conversation, but we started walking through all of that.
I said, ``John, basically what you have is some texts that
may be a little bit ambiguous, but then nothing else that would
support it, including the fact that nobody would ever want that
to be the rule. Wouldn't we lose 9 to nothing in the Supreme
Court?''
Again, he initially started, ``Well, maybe you would only
lose
7-2,'' but ultimately acknowledged that, no, we would lose 9-0,
no judge would support his argument.
Mr. Aguilar. After his meeting with the Vice President,
Donald Trump flew to Georgia for a rally in support of the
Republican candidates in the U.S. Senate runoff.
Even though the Vice President had been steadfast in
resisting the President's pressure, President Trump continued
to publicly pressure Vice President Pence in his Georgia
speech.
Rather than focusing exclusively on the Georgia Senate
runoff, Trump turned his attention to Mike Pence. Here is what
the President said during that rally in Georgia.
President Trump. [P]ence comes through for us. I have to tell you.
[applause] I hope that our great Vice President--our great Vice
President comes through for us. He's a great guy. Of course, if he
doesn't come through, I won't like him quite as much. [laughter]
Mr. Aguilar. So, the President had been told multiple times
that the Vice President could not affect the outcome of the
election, but he nonetheless publicly pressured Mike Pence to
do exactly that by saying, ``If he doesn't come through, I
won't like him as much.''
Let's turn now to January 5th.
Mr. Wood.
Mr. Wood. Thank you.
That morning, meaning January 5th, the President issued a
tweet expressly stating that the Vice President had the power
to reject electors.
Let's look at what the President wrote. ``The Vice
President has the power to reject fraudulently chosen
electors.''
Mr. Jacob, you have already told us about your meeting with
Dr. Eastman and the President on January 4th, and you briefly
made reference to the meeting you had with Dr. Eastman the next
day, January 5th.
Can you tell us a little bit more about that meeting with
Dr. Eastman on January 5th? For example, where was the meeting?
Who was there?
Mr. Jacob. So, at the conclusion of the meeting on the 4th,
the President had asked that our office meet with Mr. Eastman
the next day to hear more about the positions he had expressed
at that meeting, and the Vice President indicated that--offered
me up as his counsel to fulfill that duty.
So, we met in Marc Short's office in the Executive Office
Building across the way from the White House. Dr. Eastman had a
court hearing by Zoom that morning, so it didn't start first
thing, but rather started around 11.
That meeting went for about an hour-and-a-half, 2 hours.
Chief of Staff Marc Short was at that meeting most of the time.
There were a few times that he left. Essentially, it was an
extended discussion.
What most surprised me about that meeting was that when Mr.
Eastman came in, he said, ``I am here to request that you
reject the electors.''
So on the 4th, that had been the path that he had said, ``I
am not recommending that you do that,'' but on the 5th, he came
in and expressly requested that.
I grabbed a notebook because I was heading into the
meeting. I didn't hear much new from him to record, but that
was the first thing I recorded in my notes, was, ``Request that
the VP reject.''
Mr. Wood. Just to be clear, you are saying that Dr. Eastman
urged the Vice President to adopt the very same approach that
Dr. Eastman appeared to abandon in the Oval Office meeting with
the President the day before. Is that correct?
Mr. Jacob. He had recommended against it the evening
before, and then on the 5th came in--and I think it was
probably his first words after introductions and as we sat down
were, ``I am here to request that you reject the electors in
the disputed States.''
Mr. Wood. You referenced a moment ago some handwritten
notes, which you have provided to the Select Committee. I would
now like to show you those notes.
As you can see, you wrote there at the top--the writing is
a little bit faint in the copy--but you wrote, ``Requesting VP
reject.''
Does that accurately reflect what Dr. Eastman asked of you
in your meeting on January 5th?
Mr. Jacob. Yes.
Mr. Wood. What was your reaction when Dr. Eastman said on
January 5th that he was there to ask the Vice President of the
United States to reject electors at the joint session of
Congress?
Mr. Jacob. I was surprised, because I had viewed it as one
of the key concessions that we had secured the night before
from Mr. Eastman, that he was not recommending that we do that.
Mr. Wood. So what did you say to him?
Mr. Jacob. Well, as I indicated, to some extent it
simplified my task because there are more procedural
complexities to the ``send it back to the States'' point of
view. I actually had spent most of my evening the night before
writing a memorandum to the Vice President explaining all of
the specific provisions of the Electoral Count Act that that
plan would violate.
So instead, since he was pushing the sort-of robust
unilateral power theory--I have already walked the Committee
through the discussions that we had--again, I started out with
our points of commonality--or what I thought were our points of
commonality--we are conservatives, we are small government
people, we believe in originalism as the means by which we are
going to interpret this.
So we walked through the text, we walked through the
history. The Committee has shown footage of Mr. Eastman on the
stage on the 6th claiming that Jefferson supported his position
in a historical example of Jefferson.
In fact, he conceded in that meeting Jefferson did not at
all support his position, that in the election of 1800 there
had been some small technical defect with the certificate in
Georgia. It was absolutely undisputed that Jefferson had won
Georgia.
Jefferson did not assert that he had any authority to
reject electors. He did not assert that he had any authority to
resolve any issue during the course of that.
So, he acknowledged by the end that there was no historical
practice whatsoever that supported his position. He had
initially tried to push examples of Jefferson and Adams.
He ultimately acknowledged they did not work, as we have
covered. He acknowledged it would lose 9-0 in the Supreme
Court.
He again tried to say, ``But I don't think the courts will
get involved in this. They will invoke the political question
doctrine. So if the courts stay out of it, that will mean that
we will have the 10 days for the States to weigh in and resolve
it. Then they will send back the Trump slates of electors, and
the people will be able to accept that.''
I expressed my vociferous disagreement with that point. I
did not think that this was a political question.
Among other things, if the courts did not step in to
resolve this, there was nobody else to resolve it. You would be
in a situation where you have a standoff between the President
of the United States and, counterfactually, the Vice President
of the United States, saying that we have exercised authorities
that, Constitutionally, we think we have by which we have
deemed ourselves the winners of the election.
You would have an opposed House and Senate disagreeing with
that. You would have State legislatures that, to that point, I
mean, Republican leaders across those legislatures had put
together--had put out statements--and we collected these for
the Vice President as well--that the people had spoken in their
States and that they had no intention of reversing the outcome
of the election.
We did receive some signed letters that Mr. Eastman
forwarded us by minorities of leaders in those States, but no
State had any legislative house that indicated that it had any
interest in it.
So, you would have had just an unprecedented Constitutional
jump ball situation with that stand-off. As I expressed to him,
that issue might well then have to be decided in the streets.
Because if we can't work it out politically, we have already
seen how charged up people are about this election. So, it
would be a disastrous situation to be in.
So, I said I think the courts will intervene. I do not see
a commitment in the Constitution of the question whether the
Vice President has that authority to some other actor to
resolve. There are arguments about whether Congress and the
Vice President jointly have a Constitutional commitment to
generally decide electoral vote issues.
I don't think that they have any authority to object or
reject them. I don't see it in the 12th Amendment. But
nonetheless.
I concluded by saying, ``John, in light of everything that
we have discussed, can't we just both agree that this is a
terrible idea?''
He couldn't quite bring himself to say yes to that, but he
very clearly said, ``Well, yes, I see we are not going to be
able to persuade you to do this.''
That was how the meeting concluded.
Mr. Wood. You just described a terrifying scenario. It
sounds like there could have been chaos under the Eastman
approach. You have described it as it potentially could be
decided in the streets. You described several concessions that
Dr. Eastman made throughout that discussion or even debate that
you had with him.
At some point during that meeting on January 5th, did Dr.
Eastman seem to admit that both of the theories that he had
presented to the United States the day before--so the theory
that the Vice President could reject electors outright and
declare Donald Trump the winner, and his less aggressive theory
that the Vice President could simply send it back to the
States--at some point in that conversation on the 5th, did Dr.
Eastman seem to admit that both of these theories suffered from
similar legal flaws?
Mr. Jacob. So I had at least one, possibly two other
conversations with Dr. Eastman later that day.
In the earlier meeting, we really were focused, because his
request that he made had been reject the electors outright, on
why that theory was wrong, and why we certainly would not be
doing that.
Later that day, he pivoted back to, ``Well, we hear you
loud and clear, you are not going to reject. But remember last
night, I said that there was this more prudent course where you
could just send it back to the States. Would you be willing to
do that?''
During the course of our discussion about his renewed
request that we consider that option, he acknowledged to me--he
put it--both Mr. Eastman and myself are graduates of the
University of Chicago Law School, and he said, ``Look, as
graduates of that august institution, you and I will mutually
understand that the underlying legal theory of plenary Vice
Presidential authority is what you have to have to get there.''
Because this new theory, as I was pointing out to him--or
the procedural theory--still violates several provisions of the
Electoral Count Act, as he acknowledged. The only way that you
could ever be able to ignore several provisions of statutory
law is if it was pretty clear that they were unconstitutional.
The only way they could be unconstitutional is if the Vice
President had the plenary authorities that formed the basis for
the reject the votes as well.
So, he acknowledged in those conversations that the
underlying legal theory was the same. He just thought that the
``send it back to the States'' option would be more politically
palatable and he hoped more palatable to the Vice President for
that reason.
Mr. Wood. In fact, when Dr. Eastman made this concession
during that meeting, according to your earlier deposition, Dr.
Eastman said, ``Just between us University of Chicago
chickens.'' Is that right?
Mr. Jacob. I don't think that the University of Chicago is
going to start a Chicago chickens fundraising fund. But, yes,
that is the terminology that he used. He said, you know, ``Just
between us Chicago chickens, we will understand, as lawyers who
have studied the Constitution, that the underlying basis really
is the same.''
Mr. Wood. I reserve the remainder of my time.
Mr. Aguilar. Thank you, Mr. Wood.
Mr. Jacob, the President and the Vice President meet again
on that same topic the next day, January 5th, correct?
Mr. Jacob. After my extended meeting with Mr. Eastman that
morning, during that time the Vice President had been back at
his residence working on his statement to the Nation that we
released the next day.
He got down to the White House some point between 1 o'clock
and 2 o'clock as my meeting with Mr. Eastman was wrapping up.
When we, Marc Short and I, went over to meet with the Vice
President and--actually, we thought maybe we had good news. We
felt like we had sort-of defeated Mr. Eastman. He was sort-of
acknowledging that there was no ``there'' there.
But the Vice President was then asked down to the Oval
Office, and he went down to the Oval Office while Marc and I
stayed back in the Vice President's office.
Mr. Aguilar. You weren't in that meeting?
Mr. Jacob. I was not.
Mr. Aguilar. In the book ``Peril'' journalists Bob Woodward
and Robert Costa write that the President said, ``If these
people say you have the power, wouldn't you want to?''
The Vice President says, ``I wouldn't want any one person
to have that authority.''
The President responds, ``But wouldn't it almost be cool to
have that power?''
The Vice President is reported to have said, ``No. Look, I
have read this, and I don't see a way to do it. We have
exhausted every option. I have done everything I could and then
some to find a way around this. It is simply not possible. My
interpretation is no.''
To which the President says, ``No, no, no, you don't
understand, Mike. You can do this. I don't want to be your
friend anymore if you don't do this.''
We asked Marc Short about this during his deposition.
Mr. Short. [A]n understanding that I would have. In other
conversations with the Vice President, he articulated to me that, no,
he wouldn't want that power bestowed upon any one person.
Mr. Aguilar. Mr. Jacob, did you, Mr. Short, and the Vice
President have a call later that day again with the President
and Dr. Eastman?
Mr. Jacob. So, yes, we did.
Mr. Aguilar. What did Dr. Eastman request on that call?
Mr. Jacob. On that phone call, which I believe was around 5
o'clock that afternoon, Mr. Eastman stated that he had heard us
loud and clear that morning, we were not going to be rejecting
electors, but would we be open to considering the other course
that we had discussed on the 4th, which would be to suspend the
joint session and request that State legislatures reexamine
certification of the electoral votes.
Mr. Aguilar. That same day, January 5th, The New York Times
ran a story about the disagreement between the President and
the Vice President about whether the Vice President could
determine the outcome of the election.
Even though The New York Times story was indisputably
correct, Donald Trump denied it. Trump issued a statement
claiming that the Vice President had agreed that he could
determine the outcome of the election, despite the fact that
the Vice President had consistently rejected that position.
Let's look at what the President said in his statement.
``The New York Times report regarding comments Vice President
Pence supposedly made to me today is fake news. He never said
that. The Vice President and I are in total agreement that the
Vice President has the power to act.''
Mr. Jacob, how did the Vice President's team react to this
statement from the President that the Vice President could take
an active role in determining the winner of the Presidential
election?
Mr. Jacob. So, we were shocked and disappointed, because
whoever had written and put that statement out, it was
categorically untrue.
Mr. Aguilar. The Vice President's Chief of Staff, Marc
Short, had an angry phone call with Trump campaign senior
advisor Jason Miller about this statement. Here is what Mr.
Short and Mr. Miller told the Committee about that call.
Mr. Heaphy. Okay. Tell me about the conversation you had with
Jason.
Mr. Short. It was brief. I was irritated and expressed displeasure
that a statement could have gone out that misrepresented the Vice
President's viewpoint without consultation.
Mr. Heaphy. The statement says the Vice President and I are in
total agreement, that the Vice President has the power to act. Is that
incorrect?
Mr. Short. I think the record shows that that's incorrect.
Mr. Heaphy. Yeah.
Mr. Short. I mean, we've--we've been through many documents that
clarify that this is not where the Vice President was.
Mr. Heaphy. Right. So, essentially, the President is sending out a
baldly false statement about being in alignment, purported alignment,
with the Vice President despite all of the predicate that you indicated
had gone before about their respective positions. Is that effectively
what happened?
Mr. Short. I interpret the statement is false. I'll let you figure
out who sent it out.
Mr. George. When Marc Short contacted you, he--he was upset. Is
that what you said?
Mr. Jason Miller. He clearly was not pleased.
Mr. George. Tell us what he said.
Mr. Jason Miller. What's the process for putting out a statement
for a meeting where only two people were in the room?
Mr. George. Did he ask you to retract the statement?
Mr. Jason Miller. No, he just--I think it went right to what's the
process for putting out a statement for a meeting when only two people
were in the room.
Mr. George. And he clearly disagreed with the substance though,
right, because he said that--he said the Vice President doesn't agree
with this.
Mr. Jason Miller. I'm trying to think what exactly he said. I mean,
the--the tone was very clearly that he'd--that he'd used some language
to strongly infer that the Vice President disagreed with--with that
take, but I don't remember what that language was.
Mr. Heaphy. Did he dictate this statement?
Mr. Jason Miller. We--he dictated--he dictated most of it. I mean,
typically on these--typically on these, I might have a couple of
wording suggestions, or maybe I'd, you know, have a--a sense or a rough
framework or something of that. But I--I know with--specifically on
this one that it was me and him on the phone talking through it, and
ultimately the way this came out was the way that he wanted to.
Mr. Aguilar. The dispute between the President and the Vice
President had grown to the point where the Vice President's
Chief of Staff, Marc Short, was concerned that the President
could, in Mr. Short's words, ``lash out'' at the Vice President
on January 6th.
In fact, Mr. Short was so concerned about it that he talked
with the head of the Vice President's Secret Service detail on
January 5th. Here is Mr. Short.
Mr. Short. Concern was for the Vice President's security, and so I
wanted to make sure the head of the Vice President's Secret Service was
aware that--that likely, as these disagreements became more public,
that the President would lash out in some way.
Mr. Aguilar. After the recess, we will hear that Marc
Short's concerns were justified. The Vice President was in
danger.
Mr. Chairman, I reserve.
Chairman Thompson. Pursuant to the order of the Committee
of today, the Chair declares the Committee in recess for a
period of approximately 10 minutes.
[Accordingly, at 2:41 p.m., the Committee recessed until
2:53 p.m., when it was called to order by the Chairman.]
Chairman Thompson. The gentleman from California, Mr.
Aguilar, is recognized.
Mr. Aguilar. I would now like to turn to the events of
January 6, 2021, which turned out to be a fateful day in our
Nation's history.
Despite the fact that the Vice President consistently told
the President that he did not have and would not want the power
to decide the outcome of the Presidential election, Donald
Trump continued to pressure the Vice President, both publicly
and privately.
As you will hear, things reached a boiling point on January
6th, and the consequences were disastrous.
In the middle of the night on January 5th, into the morning
of the 6th, around 1 a.m., President Trump tweeted ``at'' the
Vice President, meaning that the comments in response to the
President's tweet would also show up on the Vice President's
Twitter feed.
The tweet stated that the Vice President could ``come
through for us'' and ``send it back'' to the States.
Then, around 8 a.m. on January 6th, President Trump again
tweeted, this time to say that the Vice President could send it
back to the States and ``We win,'' and that ``this is the time
for extreme courage.''
Mr. Short told us during his deposition that the Vice
President started a meeting on January 6th in prayer. Here is
what Mr. Short said.
Mr. Heaphy. You arrived at the Vice President's residence.
Mr. Short. As would often be the case, I recall, that knowing it
would be an important day, we gathered in prayer. And often that would
be something the staff member would--would lead. So, it would have just
been at that time, I believe, the Vice President, myself, Greg, and
Chris.
And we would have just asked for guidance and wisdom, knowing that
the day was going to be a challenging one.
Mr. Aguilar. Mr. Jacob, did you go to the Vice President's
Residence on the morning of January 6th?
Mr. Jacob. Yes.
Mr. Aguilar. Who else was with you?
Mr. Jacob. Marc Short, Devin O'Malley, our communications
director, and Chris Hodgson, our legislative affairs director.
Mr. Aguilar. Did the Vice President have a call with the
President that morning?
Mr. Jacob. He did.
Mr. Aguilar. Were you with the Vice President during the
call?
Mr. Jacob. So, we had been putting--the Vice President had
finalized his statement overnight. We were in the process of
proofing it so that we could get that out. We were told that a
call had come in from the President. The Vice President stepped
out of the room to take that call, and no staff went with him.
Mr. Aguilar. The President had several family members with
him in the Oval that morning for that call. I would like to
show you what they and others told the Select Committee about
that call, along with never-before-seen photographs of the
President on that call from the National Archives.
Mr. Herschmann. When I got in, somebody called me and said that the
family and others were in the Oval. And do I want to come up. So I--I
went upstairs.
Mr. Wood. And who do you recall being in the Oval Office?
Mr. Herschmann. Don, Jr., Eric, Lara, Kimberly. I believe Meadows
was there. At some point, Ivanka came in.
Ms. Trump. It wasn't a specific, formal discussion. It was very
sort-of loose and casual.
Mr. Wood. So, then you said at some point there's a telephone
conversation between the President and the Vice President. Is that
correct?
Mr. Herschmann. Yes.
Ms. Trump. When I entered the office the second time, he was on the
telephone with who I later found out to be was the--the Vice President.
Mr. Wood. Could you hear the Vice President or only hear the
President's end?
Mr. Herschmann. Only hear the President's end. And at some point,
it started off as a calmer tone, and everything, and then it became
heated.
Ms. Trump. The conversation was--was pretty heated.
Mr. Herschmann. I think 'til it became somewhat, you know, louder
tone, I don't think anyone was paying attention to it initially.
Mr. George. Did you hear any part of the phone call, even if just
this--the end that the President was speaking from?
Mr. Luna. I did. Yes.
Mr. George. All right. And what did you hear?
Mr. Luna. So, as I was dropping off the note, I--my memory--I
remember hearing the word ``wimp.''
Either he called him a wimp--I don't remember if he said, ``You are
a wimp,'' ``You'll be a wimp.'' ``Wimp'' is the word I remember.
Mr. George. It's also been reported that the President said to the
Vice President that--something to the effect of, ``You don't have the
courage to make a hard decision.''
General Kellogg. Worse. I don't remember exactly either, but it was
something like that. Yeah.
Mr. George. Do you----
General Kellogg [continuing]. Being--you're--you're not tough
enough to make the call.
Ms. Trump. It was a different tone than I'd heard him take with the
Vice President before.
Mr. Tonolli. Did Ms. Trump share with you any more details about
what had happened or any details about what had happened in the Oval
Office that morning?
Ms. Radford. That her dad had just had an upsetting conversation
with the Vice President.
Mr. Roselman. Do you recall anything about her demeanor either
during the meeting or when you encountered her in Dan Scavino's office?
Mr. Herschmann. I don't remember specifically. I mean, I think she
was uncomfortable over the fact that there was obviously that type of
interaction between the two of them.
Mr. Luna. Something to the effect this is--the wording is wrong. I
made the wrong decision 4 or 5 years ago.
Mr. Tonolli. And the--the word that she related to you that the
President called the Vice President, I apologize for being impolite,
but do you remember what she said her father called him?
Ms. Radford. The P-word.
Mr. Aguilar. Mr. Jacob, how would you describe the demeanor
of the Vice President following that call with the President?
Mr. Jacob. When he came back into the room, I would say
that he was steely, determined, grim.
Mr. Aguilar. Of course, the most dangerous part of what
Donald Trump did on January 6th was what he did himself. As
will be discussed in detail in a future hearing, our
investigation found that early drafts of the January 6th
Ellipse speech prepared for the President included no mention
of the Vice President. But the President revised it to include
criticism of the Vice President and then further ad-libbed.
Here is what the President said on January 6th after his
call with Vice President Pence.
President Trump. I hope Mike is going to do the right thing. I hope
so. I hope so. Because if Mike Pence does the right thing, we win the
election.
All Vice President Pence has to do is send it back to the States to
recertify, and we become President. And you are the happiest people.
And I actually--I just spoke to Mike.
I said, ``Mike, that doesn't take courage. What takes courage is to
do nothing.'' That takes courage. And then we're stuck with a President
who lost the election by a lot, and we have to live with that for 4
more years. We're just not going to let that happen.
And Mike Pence is going to have to come through for us. And if he
doesn't, that will be a--a sad day for our country.
And they want to recertify their votes. They want to recertify. But
the only way that can happen is if Mike Pence agrees to send it back.
So, I hope Mike has the courage to do what he has to do. And I hope
he doesn't listen to the RINOs and the stupid people that he's
listening to.
Mr. Aguilar. Of course, we all know what happened next. The
President's words had an effect. President Trump's supporters
became angry. When the Vice President issued his public letter,
the crowd at the Capitol erupted in anger. The rioters, who had
erected makeshift gallows, began chanting, ``Hang Mike Pence!''
Testimony in our investigation has made clear what the
target of the rioters' ire was: Vice President Mike Pence.
The rioters breached the Capitol at 2:13 p.m.
[Video shown.]
Mr. Aguilar. Now, let's take a look at what was going on at
the White House at this time.
We received testimony that the President's Chief of Staff,
Mark Meadows, was notified of the violence at the Capitol by 2
p.m. and likely earlier.
The testimony further establishes that Mr. Meadows quickly
informed the President and that he did so before the President
issued his 2:24 p.m. tweet criticizing Vice President Pence for
not having ``courage'' to do what needed to be done.
Here is what the President wrote in his 2:24 p.m. tweet
while the violence at the Capitol was going on. Here is what
the rioters thought.
Voice. [N]othing but a traitor, and he deserves to burn with the
rest of `em.
Voice. So this--so this all escalated after Pence--what--what
happened? Did Pence--Pence, yeah, Pence didn't do what we wanted.
Voice. Pence voted against Trump.
Voice. Okay. And that's when all this started?
Voice. Yup. That's when we marched on the Capitol. We've been shot
at with rubber bullets, tear gas.
Mr. Fuentes. We just heard that Mike Pence is not going to reject
any fraudulent electoral votes.
Crowd. Boo!
Voice. You're a traitor!
Mr. Fuentes. That's right. You've heard it here first. Mike Pence
has betrayed the United States of America.
Crowd. Boo!
Voice. Fuck you, Mike Pence!
Mr. Fuentes. Mike Pence has betrayed this President, and he has
betrayed the people of the United States, and we will never, ever
forget.
Voice. It's real simple. Pence betrayed us, which apparently
everybody knew he was going to, and the President mentioned it like
five times when he talked. You can go back and watch the President's
video.
Voice. This is our Capitol. Let's be respectful to it.
Voice. There's four million people coming in. So, there's a lot
of----
Voice. We love you guys. We love the cops.
Voice. [inaudible]
Voice. It's only a matter of time. Justice is coming.
Mr. Aguilar. Although the President's Chief of Staff, Mark
Meadows, has refused to testify before this Committee, Mr.
Meadows's aide, Ben Williamson, and White House Deputy Press
Secretary Sarah Matthews testified that Mr. Meadows went to the
dining room near the Oval Office to tell the President about
the violence at the Capitol before the President's 2:24 p.m.
tweet.
In future hearings you will hear more about exactly what
was happening in the White House at that time. But here is what
some White House staff told the Select Committee.
Mr. George. Do you know where he went?
Mr. Williamson. Yes, I followed him down the hallway, and I
followed him into the Outer Oval corridor, which is the hallway between
the Oval Office hallway and the Outer Oval section of the Oval Office.
I followed him into that little corridor hallway. I saw him walk into
Outer Oval. I maybe took a step into Outer Oval and then left. And I
don't know where he went outside of that, but it looked like he was
headed in the direction of the Oval Office.
Ms. Matthews. You know, we had all talked about--at that point--
about how it was bad and the, you know, situation was getting out of
hand. And I--I know Ben Williamson and I were conferring, and we
thought that the President needed to tweet something and tweet
something immediately. And I think when Kayleigh gave us that order of
don't say anything to the media, I told her that I thought the
President needed to tweet something.
And then I remember--then I remember getting a notification on my
phone. And I was sitting in a room with Roma and Ben, and we all got a
notification. So, we knew it was a tweet from the President, and we
looked down and it was a--a--a tweet about Mike Pence.
Mr. Williamson. I believe I had sent him a text saying that we may
want to put out some sort of statement because the situation was--was
getting a little hairy over at the Capitol. And then it was common for
after I would text him, I would just go down and--and see him in
person.
Mr. George. You went down to speak with Mark Meadows after this.
What was that conversation?
Mr. Williamson. Very brief. I went down and told him the same thing
I have in the text that I can recall. And I--I don't remember anything
that was said between us other than I told him that and to my
recollection he immediately got up and--and left his office.
Mr. Aguilar. Our investigation found that immediately after
the President's 2:24 p.m. tweet, the crowds, both outside the
Capitol and inside the Capitol, surged.
The crowds inside the Capitol were able to overwhelm the
law enforcement presence, and the Vice President was quickly
evacuated from his ceremonial Senate office to a secure
location within the Capitol complex.
Crowd. Whose house?
Crowd. Our house!
Mr. Aguilar. By 2:24 p.m., the Secret Service had moved Vice
President Pence from the Senate Chamber to his office across the hall.
Mr. Hodgson. The noise from the rioters became audible, at which
point we recognized that maybe they had gotten into the building.
Mr. Aguilar. Then President Trump tweeted, ``Mike Pence didn't have
the courage to do what should have been done to protect our Country and
our Constitution, giving States a chance to certify a corrected set of
facts, not the fraudulent or inaccurate ones which they were asked to
previously certify. USA demands the truth!''
Voice. Bring out Pence!
Voice. Bring him out!
Ms. Matthews. It was clear that it was escalating and escalating
quickly.
Crowd. Hang Mike Pence. Hang Mike Pence.
Ms. Matthews. So then when that tweet--the Mike Pence tweet--was
sent out, I remember us saying that that was the last thing that needed
to be tweeted at that moment. The situation was already bad, and so it
felt like he was pouring gasoline on the fire by tweeting that.
Mr. Aguilar. Thirty seconds later, rioters already inside the
Capitol opened the East Rotunda door just down the hall. And just 30
seconds after that, rioters breached the Crypt one floor below the Vice
President.
Mr. Hodgson. The Secret Service couldn't control the situation and
do their job of keeping him safe.
Mr. Aguilar. At 2:26 p.m., Secret Service rushed Vice President
Pence down the stairs.
Mr. Jacob. I think they had been trying to figure out whether they
had a clear route to get us to where they--it was that they wanted to
move us to.
Mr. Hodgson. We moved pretty quickly down the stairs and through
various hallways and tunnels to the secure location. Upon arriving
there, there was further discussion as to whether or not we were going
to leave the Capitol complex or stay where we were.
Mr. Aguilar. Vice President Pence and his team ultimately were led
to a secure location where they stayed for the next 4\1/2\ hours,
barely missing rioters a few feet away.
Mr. Aguilar. Approximately 40 feet, that is all there was,
40 feet between the Vice President and the mob.
Mr. Jacob, you were there. Seeing that for the first time,
does it surprise you to see how close the mob was to the
evacuation route that you took? Forty feet is the distance from
me to you, roughly.
Mr. Jacob. I could hear the din of the rioters in the
building while we moved, but I don't think I was aware that
they were as close as that.
Mr. Aguilar. Make no mistake about the fact that the Vice
President's life was in danger. A recent court filing by the
Department of Justice explains that a confidential informant
from the Proud Boys told the FBI that the Proud Boys would have
killed Mike Pence if given a chance.
This witness, whom the FBI affidavit refers to as ``W-1,''
``stated that other members of the group talked about things
they did that day, and they said that anyone they got their
hands on they would have killed, including Nancy Pelosi.''
W-1 further stated that members of the Proud Boys said that
they would have killed Mike Pence if given a chance.
We understand that Congressional leaders and others were
evacuated from the Capitol complex during the attack. We would
like to show you what happened after the Vice President was
evacuated from the Senate.
Mr. Aguilar. The Select Committee has obtained never-before-seen
photos from the National Archives that show Vice President Pence
sheltering in a secure, underground location as rioters overwhelmed the
Capitol.
At 4:19 p.m., Vice President Pence is seen looking at a tweet the
President had just sent, a tweet asking the rioters to leave the
Capitol.
After 4\1/2\ hours spent on working to restore order, the Vice
President returned to the Senate floor to continue the certification of
electors.
Mr. Aguilar. So, Vice President Pence was a focus of the
violent attack.
Mr. Jacob, did the Vice President leave the Capitol complex
during the attack?
Mr. Jacob. He did not.
Mr. Aguilar. Could you please explain why the Vice
President refused to leave the Capitol complex?
Mr. Jacob. When we got down to the secure location the
Secret Service directed us to get into the cars, which I did.
Then I noticed that the Vice President had not. So, I got out
of the car that I had gotten into, and I understood that the
Vice President had refused to get into the car.
The head of his Secret Service detail, Tim, had said, ``I
assure you; we are not going to drive out of the building
without your permission.'' The Vice President had said
something to the effect of, ``Tim, I know you, I trust you, but
you are not the one behind the wheel.''
The Vice President did not want to take any chance that the
world would see the Vice President of the United States fleeing
the United States Capitol. He was determined that we would
complete the work that we had set out to do that day that it
was his Constitutional duty to see through, and that the
rioters who had breached the Capitol would not have the
satisfaction of disrupting the proceedings beyond the day on
which they were supposed to be completed.
Mr. Aguilar. Let me see if I understand this right. You
were told to get in the cars. How many of the Vice President's
staff got in the cars while he did not?
Mr. Jacob. Most of us.
Mr. Aguilar. During our investigation, we received
testimony that while the Vice President was in a secure
location within the Capitol complex, he continued the business
of Government.
We understand that the Vice President reached out to
Congressional leaders, like the Acting Secretary of Defense and
others, to check on their safety and to address the growing
crisis.
In addition, the Vice President's Chief of Staff, Marc
Short, made several calls to senior Government officials.
Here is Mr. Short's testimony regarding his call with
Representative Kevin McCarthy.
Mr. Short. He indicated that he had had some conversation. I don't
recall whether it was with the President or somebody at the White
House, but I think he expressed frustration that--not taking the
circumstances seriously as they should at that moment.
Mr. Heaphy. So, Mr. McCarthy indicated he'd been in touch with
someone at the White House, and he conveyed to you that they weren't
taking this as seriously as they should. You have to answer. Yes or no?
Mr. Short. Yes, yes.
Mr. Heaphy. Okay.
Mr. Aguilar. While the Vice President made several calls to
check on the safety of others, it was his own life that was in
great danger.
Mr. Jacob, did Donald Trump ever call the Vice President to
check on his safety?
Mr. Jacob. He did not.
Mr. Aguilar. Mr. Jacob, how did Vice President Pence and
Mrs. Pence react to that?
Mr. Jacob. With frustration.
Mr. Wood. Mr. Jacob, immediately before you and the Vice
President were evacuated to a secure location within the
Capitol, you hit ``send'' on an email to John Eastman
explaining why his legal theory about the Vice President's role
was wrong.
You ended your email by stating that, ``thanks to your
bullshit, we are now under siege.'' We will take a look at that
email.
Dr. Eastman replied--and this is hard to believe--but his
reply back to you was, ``The `siege' is because you and your
boss,'' presumably referring to the Vice President of the
United States, ``did not do what was necessary to allow this to
be aired in a public way so the American people could see for
themselves what happened.''
Mr. Jacob, later that day you wrote again to Dr. Eastman.
Let's show that email on the screen.
In that email you wrote, and I quote, ``Did you advise the
President that in your professional judgement the Vice
President DOES NOT have the power to decide things
unilaterally?'' You ended that email saying, ``[I]t does not
appear that the President ever got the memo.''
Dr. Eastman then replied, ``He has been so advised.'' He
ends his email with, ``But you know him. Once he gets something
in his head, it is hard to get him to change course.''
Mr. Jacob, when Dr. Eastman wrote, ``Once he gets something
in his head, it is hard to get him to change course,'' did you
understand the ``he'' in that email to refer to the President
of the United States?
Mr. Jacob. I did.
Mr. Wood. Mr. Jacob, did you hear from Dr. Eastman further
after the riot had been quelled? If so, what did he ask?
Mr. Jacob. Late that evening, after the joint session had
been reconvened, the Vice President had given a statement to
the Nation saying that violence was not going to win, freedom
wins, and that the people were going to get back to doing their
work.
Later that evening, Mr. Eastman emailed me to point out
that, in his view, the Vice President's speech to the Nation
violated the Electoral Count Act, that the Electoral Count Act
had been violated because the debate on Arizona had not been
completed in 2 hours--of course, it couldn't be, since there
was an intervening riot of several hours--and that the speeches
that the Majority and Minority leaders had been allowed to make
also violated the Electoral Count Act, because they hadn't been
counted against the debate time.
Then he implored me: Now that we have established that the
Electoral Count Act isn't so sacrosanct as you have made it out
to be, I implore you one last time, can the Vice President
please do what we have been asking him to do these last 2 days,
suspend the joint session, send it back to the States?
Mr. Wood. We will show you the text of that email, which
Dr. Eastman wrote at 11:44 p.m. on January 6th.
So, after the attack on the Capitol and after law
enforcement had secured the Capitol, he still wrote, as you
described, ``So now that the precedent has been set that the
Electoral Count Act is not quite so sacrosanct as was
previously claimed, I implore you to consider one more
relatively minor violation and adjourn for 10 days to allow the
legislatures to finish their investigations . . . ''
So, even after the attack on the Capitol had been quelled,
Dr. Eastman requested, in writing no less, that the Vice
President violate the law by delaying the certification and
sending the question back to the States.
Is that correct, Mr. Jacob?
Mr. Jacob. It is.
Mr. Wood. Did you eventually share Dr. Eastman's proposal
with Vice President Pence?
Mr. Jacob. Not right at that time, because the Vice
President was completing the work that it was his duty to do.
But a day or two later, back at the White House, I did show him
that final email from Mr. Eastman.
Mr. Wood. What was Vice President Pence's reaction when you
showed him the email where Dr. Eastman, after the attack on the
Capitol, still asked that the Vice President delay
certification and send it back to the States?
Mr. Jacob. He said, ``That's rubber room stuff.''
Mr. Aguilar. I am sorry, Mr. Wood.
He said it is ``rubber room stuff''?
Mr. Jacob. Yes, Congressman.
Mr. Aguilar. What did you interpret that to mean?
Mr. Jacob. I understood it to mean that, after having seen
play out what happens when you convince people that there is a
decision to be made in the Capitol legitimately about who is to
be the President and the consequences of that, that he was
still pushing us to do what he had been asking us to do for the
previous 2 days, that that was certifiably crazy.
Mr. Aguilar. We know that the Vice President did not do
what Dr. Eastman requested, because he presided over the
completion of the counting of electoral votes late in that
evening.
Vice President Pence. The number of electors appointed to vote for
President of the United States is 538. Within that whole number, a
majority is 270. The votes for President of the United States are as
follows: Joseph R. Biden, Jr., of the State of Delaware has received
306 votes. Donald J. Trump of the State of Florida has received 232
votes.
The whole number of electors appointed to vote for Vice President
of the United States is 538. Within that whole number, a majority is
270. The votes for Vice President of the United States are as follows:
Kamala D. Harris of the State of California has received 306 votes.
Michael R. Pence of the State of Indiana has received 232 votes.
The announcement of the state of the vote by the President of the
Senate shall be deemed a sufficient declaration of the persons elected
President and Vice President of the United States, each for the term
beginning on the 20th day of January, 2021, and shall be entered,
together with the list of the votes, on the Journals of the Senate and
the House of Representatives.
Mr. Aguilar. Mr. Jacob, we heard earlier that you and the
Vice President and the team started January 6th with a prayer.
You faced a lot of danger that day. This is a personal
question, but how did your faith guide you on January 6th?
Mr. Jacob. My faith really sustained me through it. I, down
in the secure location, pulled out my Bible, read through it,
and just took great comfort.
Daniel 6 was where I went. In Daniel 6, Daniel has become
the second in command of Babylon, a pagan nation that he
completely faithfully serves. He refuses an order from the king
that he cannot follow, and he does his duty, consistent with
his oath to God. I felt that that is what had played out that
day.
Mr. Aguilar. It spoke to you.
Mr. Jacob. Yes.
Mr. Aguilar. At the end of the day, Marc Short sent the
Vice President a text message with a Bible verse. Here is what
he told the Select Committee.
Mr. Short. At 3:50 in the morning, when we finally adjourned and
headed our ways, I remember texting the Vice President a passage from 2
Timothy, chapter 4, verse 7 about, ``I fought the good fight, I
finished the race, I have kept the faith.''
Mr. Aguilar. He started his day with a prayer and ended his
day with a Bible verse: ``I have fought the good fight, I have
finished the race, I have kept the faith.''
White House attorney Eric Herschmann testified that the
next day, January 7th, he received a call from Dr. Eastman.
Here is Mr. Herschmann's account of that call.
Mr. Herschmann. The day after, Eastman--I don't remember why--he
called me--or he texted me or called me, wanted to talk with me, and he
said he couldn't reach others. And he started to ask me about something
dealing with Georgia and preserving something potentially for appeal.
And I said to him, ``Are you out of your f-ing mind?''
I said--I said I only want to hear two words coming out of your
mouth from now on, ``Orderly transition.'' And I said I don't want to
hear any other f-ing words coming out of your mouth no matter what
other than ``orderly transition.'' Repeat those words to me.
Mr. Wood. What did he say?
Mr. Herschmann. Eventually he said, ``Orderly transition.''
I said, ``Good, John. Now I'm going to give you the best free legal
advice you're ever getting in your life. Get a great f-ing criminal
defense lawyer. You're going to need it.'' And then I hung up on him.
Mr. Aguilar. In fact, just a few days later, Dr. Eastman
emailed Rudy Giuliani and requested that he be included on a
list of potential recipients of a Presidential pardon. Dr.
Eastman's email stated, ``I've decided that I should be on the
pardon list, if that is still in the works.''
Dr. Eastman did not receive his Presidential pardon. So,
let's see what Dr. Eastman did as a result when he was deposed
by this Committee.
Mr. Eastman. I assert my Fifth Amendment right against being
compelled to be a witness against myself.
Mr. Wood. Did the Trump legal team ask you to prepare a memorandum
regarding the Vice President's role in the counting of electoral votes
at the joint session of Congress on January 6, 2021?
Mr. Eastman. Fifth.
Mr. Wood. Dr. Eastman, did you advise the President of the United
States that the Vice President could reject electors from 7 States and
declare that the President had been reelected?
Mr. Eastman. Fifth.
Mr. Wood. Dr. Eastman, the first sentence of the memo starts off by
saying 7 States have transmitted dual slates of electors to the
President of the Senate. Is that statement in this memo true?
Mr. Eastman. Fifth.
Mr. Wood. Has President Trump authorized you to discuss publicly
your January 4, 2021, conversation with him?
Mr. Eastman. Fifth.
Mr. Wood. Are--so, is it your position that you can discuss in the
media direct conversations you had with the President of the United
States, but you will not discuss those same conversations with this
Committee?
Mr. Eastman. Fifth.
Mr. Aguilar. Dr. Eastman pled the Fifth 100 times.
Finally, let's hear from a Federal court judge, the only
one to date who has opined on whether the President was
involved in criminal activity.
Page 36 of Judge Carter's ruling says, ``Based on the
evidence, the Court finds it more likely than not that
President Trump corruptly attempted to obstruct the Joint
Session of Congress on January 6, 2021.''
Page 40 of the ruling says, ``Based on the evidence, the
Court find that it is more likely than not that President Trump
and Dr. Eastman dishonestly conspired to obstruct the Joint
Session of Congress on January 6, 2021.''
Page 44: ``Dr. Eastman and President Trump launched a
campaign to overturn a democratic election, an action
unprecedented in American history. Their campaign was not
confined to the ivory tower--it was a coup in search of a legal
theory.''
Mr. Jacob, what would have happened to our democracy if
Vice President Pence had gone along with this plan and
certified Donald Trump as the winner of the 2020 election?
Mr. Jacob. So, there would have been short-term and long-
term effects.
The short term I have previously described: A
Constitutional jump-ball situation, political chaos in
Washington, lawsuits, and who knows what happening in the
streets. You would have had the Vice President of the United
States having declared that the outcomes of these State
elections were incorrect.
So, for all of those reasons, there would have been
significant short-term consequences.
But in the long term, we would have established a situation
where a Vice President would have asserted that one person
could have the authority to determine the outcome of an
election--which is antithetical to everything in our democracy,
antithetical to the rule of law.
So, it would have been significant impacts both in the
short and the long term.
Mr. Aguilar. Judge Luttig, in the statement you released
earlier today, you wrote that the efforts by President Trump to
overturn the 2020 election were, ``the most reckless,
insidious, and calamitous failures in both legal and political
judgment in American history.''
What did you mean by that?
Judge Luttig. Exactly what I said, Congressman.
Mr. Aguilar. Thank you, Judge.
Thank you, Mr. Jacob.
Mr. Chairman, this was an informative hearing, a powerful
hearing. I am grateful for your leadership and the leadership
of the distinguished Vice Chair.
Donald Trump knew he lost the 2020 election, but he could
not bring himself to participate in the peaceful transfer of
power. So, he latched on to a scheme that, once again, he knew
was illegal. When the Vice President refused to go along with
it, he unleashed a violent mob against him.
When we began, I asked how we got to this place. I think
the answer to that question starts with the fact that people in
positions of power put their political party before their
country. It cannot be allowed to continue.
I will yield back now, Mr. Chairman.
Chairman Thompson. Thank you very much.
Without objection, the Chair recognizes the gentlewoman
from Wyoming, Ms. Cheney, for a closing statement.
Vice Chair Cheney. Thank you very much, Mr. Chairman.
Thank you to my colleague, Representative Aguilar.
Thank you very much to our witnesses today, Mr. Jacob and
Judge Luttig. Thank you for being here with us.
We have seen so far in our hearings that President Trump
knew that his claims of a stolen election were false. You have
seen that he knew that Mike Pence could not legally refuse to
count electoral votes. You have seen what President Trump did
to pressure Mike Pence into taking illegal action.
Over the course of our next hearings, you will see
information about President Trump's efforts, John Eastman's
efforts, the Trump legal team's efforts to apply pressure to
Republican State legislatures, State officials, and others.
Judge Carter has recently written, ``Dr. Eastman's actions
in these few weeks indicate that his and President Trump's
pressure campaign to stop the electoral count did not end with
Vice President Pence. It targeted every tier of Federal and
State elected officials.''
We will examine all of those threats. We will examine the
Trump team's determination to transmit materially false
electoral slates from multiple States to officials of the
Executive and Legislative branches of our Government. We will
examine the pressures put on State legislatures to convene to
reverse lawful election results.
An honorable man receiving the information and advice that
Mr. Trump received from his campaign experts and his staff, a
man who loved his country more than himself, would have
conceded this election. Indeed, we know that a number of
President Trump's closest aides urged him to do so.
This Committee will address all of these issues in greater
detail in the coming weeks.
Mr. Chairman, I yield back.
Chairman Thompson. The gentlelady yields back.
Judge Luttig and Mr. Jacob, our Nation owes you a great
debt for your knowledge, integrity, and your loyalty to our
Constitution. You and Vice President Pence are exactly the
people our Nation needed at a critical time. You had the
courage to do what was right.
In the weeks leading up to January 6th, many people failed
this test when they had to choose between their oath to the
country or the demands of Donald Trump. But there were others
who, like you, stood tall in the face of intimidation and put
our democracy first.
They include the judges who rejected the bogus claims of
election fraud, the senior Justice Department officials who
stood up to Donald Trump, and the State officials whom we will
hear from at our next hearing.
We are deeply grateful for your courage and devotion to our
country.
There are some who think the danger has passed, that even
though there was violence and a corrupt attempt to overturn the
Presidential election, the system worked. I look at it another
way: Our system nearly failed and our democratic foundation
destroyed but for people like you.
Judge Luttig, I want to give you an opportunity to share
your thoughts on the on-going threat.
You have written, ``The clear and present danger to our
democracy now is that former President Donald Trump and other
political allies appear prepared . . . to seize the Presidency
in 2024 if Mr. Trump or one of his anointed candidates is not
elected by the American people.''
What do you mean by this?
Judge Luttig. Mr. Chairman, I am honored beyond words by
your words. I was honored on January 6, 2021, then also honored
beyond words, to have been able to come to the aid of Vice
President Mike Pence.
I prayed that day, just like the Vice President prayed that
day. I believe we may have prayed the same prayer to the same
God. I prayed that same prayer with my wife this morning before
I came into these hearings.
I have written, as you said, Chairman Thompson, that,
today, almost 2 years after that fateful day in January 2021,
that, still, Donald Trump and his allies and supporters are a
clear and present danger to American democracy.
That is not because of what happened on January 6th. It is
because, to this very day, the former President, his allies and
supporters pledge tha