A lawyer says memos could prove to be valuable state-of-mind evidence that undercuts prosecutors’ theory in Tuesday's indictment.
Just days before Donald Trump's latest indictment, former New York Police Commissioner Bernard Kerik turned over to Special Counsel Jack Smith a trove of documents that show the Trump legal team was still conducting a sprawling, police-like probe that hadn’t resolve most of the allegations of 2020 election fraud it had collected before the Jan. 6 Capitol riot broke out.
Kerik was running the investigation for Trump’s lead election challenge litigator, former New York City Mayor Rudy Giuliani, the memos show.
A lawyer involved in producing the documents to Smith told Just the News the memos could prove to be valuable evidence of the state of mind of the former president and his legal team that undercuts the theory that prosecutors laid out in Tuesday's indictment of an intentional fraud conspiracy between Trump and six other unnamed co-conspirators to overturn the 2020 election results.
The files reviewed by Just the News show Kerik and a small team working under Giuliani collected affidavits from voters or election observers alleging wrongdoing, had academics produce data analyses identifying possible statistical voting anomalies and even marked up government documents that identified potential election system vulnerabilities that worried experts before the 2020 election.
The claims about the voting anomalies -- many which later were debunked or never substantiated -- were collected in November and December 2020, the files show. But as the official Jan. 6, 2021 date for Congress to certify election results approached, the Trump team pivoted from trying to verify allegations after losing court cases that would have given them subpoena powers.
Instead, the Kerik-led investigators focused on mounting a pressure campaign to get other bodies like state legislatures, Congress or election regulators to investigate the veracity of the claims because they feared they had neither time nor resources to validate the allegations, the memos show.
One memo dated Jan. 4, 2021 – just two days before the Trump rally that devolved into the Capitol riot -- showed briefings were planned for several interested members of Congress hoping to get lawmakers to demand investigations into claims the Trump legal team believed at the time were still unresolved.
"Mayor, as discussed, please find two key briefing documents for use with briefing Members of the Senate and/or House," the memo to Giuliani, Kerik, Trump adviser Stephen K. Bannon and others said. The memo attached a "bullet point overview of the numbers of interest" and a "substantive analysis" of issues.
That memo showed the team was expecting fresh evidence to come in from presidential economic adviser Peter Navarro about the election that they wanted lawmakers to see. “He has a new report coming out shortly, which should be sent as soon as available as an addendum to this group of documents," the memo added.
An earlier memo from late December 2020 laid out a plan to pressure U.S. House members and U.S. Senators from a half dozen swing states to investigate and challenge the election results that showed Joe Biden was the winner.
That plan called to “inspire citizens to call upon legislators and Members of Congress to disregard the fraudulent vote count and certify the duly-elected President Trump,” and it contained a list of dozens of raw allegations.
Today, many of those allegations have been debunked or have been unable to be corroborated.
The Kerik memos could significantly impact prosecutors' effort to prove the four new felonies handed up by a grand jury against Trump on Tuesday, particularly Smith's sweeping claims that Trump knew his claims of election irregularities were false and that he knowingly committed fraud when he tried to delay the certification of election results by Congress on Jan. 6, 2021, according to one of Kerik's lawyers who spent months investigating the memos.
Attorney Timothy Parlatore, who at times has represented both Kerik and Trump, said he believes the memos are exculpatory evidence of the state of mind of Trump, the legal team and others they were collaborating with.
"The Giuliani team believed that they had uncovered evidence which established probable cause to believe there was fraud in the election, which would require a follow-on investigation using time and resources that they did not have to conclusively prove or disprove the allegations of fraud," Parlatore said in an interview with Just the News.
"Even if these allegations were later debunked, or even if they were proven, but not extensive enough to alter the outcome, it does not change the fact that on the night of January 5, Kerik, Giuliani, and President Trump all reasonably believed that there was fraud, which could have affected the outcome," Parlatore added.
Smith offered a pointedly different assessment in his indictment, citing testimony from DOJ, Homeland Security, then-Vice President Mike Pence and Georgia state officials who told the grand jury that Trump's theories were bogus.
"The Defendant repeated and widely disseminated them anyway, to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election" the indictment stated.
Legal experts said the burden for Smith will now be to try and show that Trump knew and believed his allegations were untrue -- rather than him just exercising his right to free speech -- before he took the actions that led to the Jan. 6 calamity.
"Special Counsel Jack Smith just issued the first criminal indictment of alleged disinformation in my view. If you take a red pen to all of the material presumptively protected by the First Amendment, you can reduce much of the indictment to haiku," George Washington University law professor Jonathan Turley tweeted.
"Prior polls showed that roughly half of the public thought that the charges against Trump were politically motivated. This indictment will only magnify that view. Indeed, Smith sounded more like a pundit than a prosecutor in announcing this indictment," Turley added.
One example cited in the indictment signals the sort of challenges Smith will face. His indictment noted that a key agency inside the Homeland Security Department declared in December 2020 that the election was free from hacking or foreign influence,
"The Department of Homeland Security's Cybersecurity and Infrastructure Security Agency ("CISA") -- whose existence the Defendant signed into law to protect the nation's cybersecurity infrastructure from attack -- joined an official multi-agency statement that there was "no evidence" any voting system had been compromised and declared the 2020 election 'the most secure in American history,'" the indictment read. "Days later, after the CISA Director -- whom the Defendant had appointed -- announced publicly that election security experts were in agreement that claims of computer-based election fraud were unsubstantiated, the Defendant fired him."
But CISA's sweeping claims of "no election interference" were undercut exactly one year later when federal prosecutors admitted there was a major hacking event by Iranians and that the hacking amounted a "foreign malign influence event" in the election
The Kerik files show the main investigative team was still feverishly gathering claims and probing them or trying to get others to examine whether they were true.
In the end, many of the allegations collected by team Trump have turned out to be unproven or debunked. Giuliani this summer had to admit to one such falsehood in a court filing, declaring his claims that Georgia election workers had suspect ballots under a table were false and defamatory. The Trump team in its final days in early January got a few such messages as they pressed election regulators to investigate what it had not looked into. In Georgia, for instance, Secretary of State Raffensperger famously delivered a blunt message to Trump’s team before Jan. 6 that there were not enough irregularities in Georgia to overturn Biden’s win.
While Raffensperger rebuffed Trump’s team, his office did possess some significant evidence it gathered on its own that there were irregularities and failures in Fulton county -- the state’s biggest urban center -- that were personally observed by a state monitor, Just the News has reported.
Those irregularities, however, weren’t enough to change the 2020 outcome but did result in years of litigation that ended earlier this month as well as sweeping state legislative reforms.
Arizona legislators later released a report raising concerns about the counting of election results, especially absentee ballots. New problems emerged in 2022 in Arizona’s mid-terms when printers and ballots were misaligned, further eroding confidence in that state’s election. And in Wisconsin, the state Supreme Court concluded that a decision by state regulators to allow people to vote absentee without voter ID during the Covid pandemic was an illegal instruction. Tens of thousands of voters took advantage of that rule change in a race that separated Trump and Biden by just 20,000 votes.