Smith special counsel investigation

Within days of his appointment, Smith began issuing grand jury subpoenas to local officials in Arizona, Michigan and Wisconsin, three key battleground states in the 2020 election, demanding they provide all communications they had with Trump, his campaign, and aides and associates.[6] By December, local officials in Georgia, New Mexico, Nevada and Pennsylvania had also been subpoenaed.[7] Georgia Secretary of State Brad Raffensperger was issued a grand jury subpoena in December. During a January 2021 recorded phone call, Trump had pressured Raffensperger to "find" sufficient votes needed to secure his victory in the state.[8]

CNN reported in December 2022 that Smith began investigating Trump's state of mind and what he knew about efforts by many to overturn the 2020 presidential election he had lost. He called key Trump White House personnel to testify before a grand jury, including White House counsel Pat Cipollone and his deputy Patrick Philbin, Trump senior policy advisor Stephen Miller and three other close aides to the president. Smith asked Beryl Howell, chief judge of the DC District Court, to hold Trump in contempt for failure to fully comply with an August 2022 DOJ subpoena, as prosecutors suspected Trump may have withheld some documents subject to the subpoena; Howell declined to hold Trump in contempt, asking both parties to continue working toward a resolution.[9][10]

Smith's grand jury investigated fundraising and disbursements by Trump's Save America PAC, which had been created days after the November 2020 election. In late 2022, subpoenas were sent to Rudy Giuliani about payments he received from the PAC, and to other witnesses close to Trump.[11] By February 2023, numerous Save America PAC vendors had been subpoenaed to determine how they had been paid and whether they delivered genuine services or concealed who had actually been paid.[12]

On December 11, 2022, former U.S. attorney Preet Bharara predicted that the DOJ would bring charges in January. He noted that Smith had been hiring people who had "left their former positions, both in government and private practice", suggesting a major legal action in the works.[13]

Any legal case against Trump would be increasingly politicized in public discourse as the 2024 presidential election approaches. On December 12, 2022, Jennifer Rodgers, a legal analyst for CNN, noted that DOJ (which had not yet charged Trump with a crime) would find it difficult to finish any hypothetical case before the election. She said DOJ might prioritize charging Trump in the documents case given that a conviction might be reached more quickly than in the January 6 case.[13]

Contractors hired by Trump in late 2022 found additional documents marked classified, and Trump attorneys gave them to the special counsel in December 2022.[14][15]

In January:

• Smith hired Raymond Hulser, former chief of public integrity at DOJ, and David Harbach, who'd previously led cases against a U.S. senator and a governor.[16]
• Smith subpoenaed former Trump chief of staff Mark Meadows for documents and testimony related to January 6.[17]
• A laptop and thumb drive belonging to a former Oval Office aide, Chamberlain Harris, were handed over. Harris had scanned some documents, consisting of Trump's travel schedules, onto her two devices, evidently unaware they were classified.[14][15]
• The special counsel subpoenaed an empty manila folder marked "Classified Evening Briefing" that had been found by the contractors in Trump's Mar-a-Lago bedroom. The folder had been reported to the special counsel but wasn't handed over until it was subpoenaed.[14][15] One of Trump's lawyers claimed in February that Trump had been using the empty folder to shield an annoying light at his bedside.[18]
• Trump attorneys Evan Corcoran and Christina Bobb testified before a grand jury. Corcoran had reportedly drafted a June 2022 letter, signed by Bobb, attesting that, in response to a subpoena, a diligent search was conducted and no classified documents remained at Mar-a-Lago; however, thousands of documents, over a hundred of which had classified markings, were subsequently found in the August 2022 FBI search.[19][20][21][22]
• Trump attorney Alina Habba also appeared before a grand jury. Habba did not represent Trump regarding the documents matter, but she had spoken about it on television.[23][12]

On January 12, CNN reported that the investigators sought to learn who was paying the legal bills of subpoena recipients.[24]

On January 26, former Department of Homeland Security official Ken Cuccinelli testified before the grand jury.[25]

On January 26, Senate Intelligence Committee chair Mark Warner said the committee wanted to see the classified documents immediately (the ones found in Trump's and Biden's possession) and did not want to "wait until a special prosecutor blesses the intelligence committee’s oversight".[26]

On January 30, the two people who had been hired to search four locations in October 2022 for classified documents —Trump’s Bedminster golf club, Trump Tower in New York, an office location in Florida and a storage unit in Florida — testified before a federal grand jury.[27]

In early February, the government offered to brief certain members of Congress—the leaders of the House and Senate, and the leaders of the intelligence committees—on the status of the classified documents investigation.[28] It was also reported that more documents with classified markings had been found during a search of Mar-a-Lago "weeks" earlier, in the presence of Trump's legal team.[29]

Subpoenas reported in February included:

• Former Trump national security advisor Robert O'Brien. The subpoena sought information about the Capitol attack and the documents removal. O'Brien had been asserting executive privilege to withhold some information requested by the special counsel.[30] O'Brien appeared before a grand jury on February 16.[31]
• Former vice president Mike Pence for documents and testimony (see below).
• At least three Republican Arizona state legislators, and at least one former legislator. The subpoenas demanded communications with Trump or his campaign members, specifically naming 18 individuals.[32]
• Ivanka Trump and Jared Kushner.[33]

The Washington Post reported in February that soon after the election the Trump campaign paid researchers from Berkeley Research Group to examine a wide range of indicators that might suggest the election had been stolen. Trump, Meadows and others were briefed on the findings in December 2020. The analysis found no significant irregularities beyond those commonly found in all elections, and nothing that might have changed the election outcome. The findings were never publicly disclosed, though the Justice Department obtained the analysis by subpoena.[34][35][36] The Post reported in April that the Trump campaign had hired a second firm, Simpatico Software Systems, days after the election to examine fraud allegations. The company delivered a report late in 2020, finding no evidence of fraud. The company's founder was subpoenaed for testimony in early 2023.[37][38]

In February, Smith asked federal judge Beryl Howell in a sealed motion for approval to invoke the crime-fraud exception to pierce attorney-client privilege and compel Corcoran to produce documents and answer certain questions before the grand jury.[39] The special counsel argued that Trump may have acted criminally by intentionally misleading his attorneys about his retention of classified materials.[40] On March 17, Judge Howell ruled that DOJ had justified the crime-fraud exception, and she ordered Corcoran to testify again.[41] Trump attorneys sought to block Corcoran's further testimony, but the DC Circuit Court of Appeals denied their appeal,[42] and Corcoran testified on March 24.[43] Subsequently, he recused himself—at least temporarily—from the Mar-a-Lago case, though he continued to represent Trump in the January 6 case. Under the witness advocate rule, lawyers who may be called as key witnesses are generally not supposed to represent clients at trial.[44]

Concurrent with her crime-fraud exception ruling, Howell also rejected Trump's claim of executive privilege and ordered grand jury testimony from former Trump officials Mark Meadows; director of national intelligence John Ratcliffe; national security advisor Robert O'Brien; senior advisor Stephen Miller; deputy chief of staff Dan Scavino; DHS official Ken Cuccinelli; and Trump personal aides John McEntee and Nick Luna. Trump's April 3 emergency motion to block the testimony was denied by a three-judge panel of the DC Circuit Court of Appeals overnight.[45][46]

CNN reported on March 16 that the special counsel had subpoenaed at least two dozen people at Mar-a-Lago, from resort staff to members of Trump's inner circle.[47]

The Washington Post reported on April 2 that investigators had obtained emails and texts of Molly Michael, a Trump White House and Mar-a-Lago aide, that provided a detailed account of movements at the resort during critical times. Investigators had come to suspect Trump had gone through boxes of documents after being subpoenaed, apparently to identify documents he sought to withhold. The Post also reported investigators were asking witnesses if Trump had shown any classified materials, including maps, to political donors.[48][49]

ABC News reported on April 3 that multiple members of Trump's current and former Secret Service details had been subpoenaed for testimony in coming weeks.[50]

The Washington Post reported on April 12 that in recent weeks the special counsel had subpoenaed a wide range of documents, including emails and texts, from numerous Trump associates and Republican operatives to compare what they had said privately about election fraud claims with what post-election Trump fundraising emails had said. The emails raised over $200 million in donations. Investigators were examining whether wire fraud had been committed by using false claims to swindle people out of money.[51][52]

John Ratcliffe testified before a Smith grand jury regarding the aftermath of the 2020 election on April 13.[53] The same day, former acting director of national intelligence Richard Grenell testified before a Smith grand jury regarding Trump's retention of classified materials. As Trump's acting DNI, Grenell declassified documents that Trump believed would delegitimize the Russia investigation. He remained in Trump's post-presidency circle of associates and had publicly defended Trump's documents retention.[54]

On April 25, Fox News whistleblower Abby Grossberg released a recording of Senator Ted Cruz planning obstruction during the vote certification.[55] Grossberg had previously released recordings in which Trump lawyers Rudy Giuliani and Sidney Powell, speaking off-air with Fox host Maria Bartiromo, contradicted what they had said on-air about the election.[56]

On April 26, four Trump attorneys wrote Republican House Intelligence Committee chairman Mike Turner that the Justice Department "should be ordered to stand down" from its classified documents investigation, and legislation enacted to transfer the inquiry to the US intelligence community, asserting it was a civil case rather than a criminal case.[57][58]

CNN reported on May 3 that in recent weeks new subpoenas had been issued to top Trump Organization employees, regarding the handling of Mar-a-Lago security footage after it had been subpoenaed in summer 2022, and conversations employees had about the footage. Matthew Calamari Sr. and his son Matthew Calamari Jr. were among several witnesses who testified before the grand jury investigating the mishandling of documents on May 4. Calamari Sr. is the longtime chief operating officer of the Trump Organization, primarily overseeing security operations for the company, while his son is a director of security. The footage reportedly captured Trump valet Walt Nauta and another Mar-a-Lago employee moving boxes out of a storage room, which Nauta told the FBI was at Trump's direction. Investigators had previously asked about a text message from Nauta to Calamari Sr. and subsequent conversations about the surveillance footage.[59]

The New York Times reported on May 4 that the special counsel had gained the cooperation of an inside witness to help investigators determine how the materials were handled. Investigators came to believe Nauta had not given a full and accurate account of his activities, and indicated he might be charged, whereupon his attorneys ceased cooperating. Investigators asked witnesses about gaps in the surveillance footage, and had subpoenaed the vendor that provides the surveillance equipment for the Trump Organization. A subpoena had also been issued for records relating to Trump's dealings with LIV Golf, a Saudi-backed professional golf venture. The Times reported investigators were seeking to determine whether Trump paid for attorneys for witnesses based on their degree of loyalty to him.[60]

In a May 16 letter to Trump, acting national archivist Debra Steidel Wall said NARA had sixteen presidential records showing Trump and his top advisors had been informed of "whether, why, and how you should declassify certain classified records." Wall wrote that Trump had tried to prevent the special counsel from accessing the sixteen records by asserting a claim of "constitutionally based privilege," which she rejected, advising Trump the records would be provided to investigators on May 24 unless a court intervened.[61]

In early 2023, Pence was subpoenaed for documents and testimony, following months of negotiations between his legal team and prosecutors.[63][64][65]

On March 3, both Pence and Trump filed separate legal challenges.

• Pence challenged his subpoena with a separation of powers argument.[66] He argued that, as a vice president who was performing his job as president of the Senate when the election was certified, he was temporarily a member of the legislative branch, so the Speech or Debate Clause of the Constitution protects him from being "questioned" about his activity that day.[67][68] A week earlier, influential conservative jurist J. Michael Luttig, who had advised Pence to not bow to Trump's 2020 election pressure, wrote in The New York Times saying Pence's objection would not succeed.[69][70]
• Trump attorneys asked a judge to block Pence's testimony based on executive privilege.[66][71]

Both Pence and Trump were expected to make these arguments in court on March 23.[72] Their outcomes:

• On March 28, Judge James Boasberg ruled that Pence need not testify about his own actions on January 6 but must testify about his conversations with Trump.[73] Pence decided not to appeal.[74]
• On April 26, a three-judge panel of the DC Circuit Court of Appeals unanimously denied Trump's appeal. Trump had sought to block Pence's testimony; he had filed the sealed request on April 10,[75] and he had asked on April 14 to expedite it.[76][77]

Pence testified before the grand jury the day after Trump's request was denied.[62]