A document drafted by the head of the Department of Justice’s Office of Legal Counsel gives a point-by-point repudiation of Trump’s desired plans to use the DOJ to overturn the 2020 election results. The document, obtained by Citizens for Responsibility and Ethics in Washington in a public records lawsuit and included in an appendix to a Senate Judiciary Committee report, appears to be talking points drafted for then-acting Attorney General Jeffrey Rosen to deliver to Trump.

As 2020 came to a close, Trump was spending his final weeks in office searching for any scheme–no matter how outlandish–to overturn the election and keep him in the White House. This included a preposterous lawsuit idea by Big Lie attorney Kurt Olsen to have the Supreme Court throw out the electoral votes from six states that Trump lost. 

In order to dissuade Trump, Rosen had OLC’s Steven Engel draft him talking points which he delivered to Trump by phone on December 30. The document was sent by Engel to then-acting Deputy Attorney General Richard Donoghue at 9am the next morning. Donoghue and Rosen took part in a “contentious” meeting with Trump in the Oval Office that day in which Trump claimed that “Olsen and others had told him the case was a slam dunk.”

The talking points seemingly look to assuage Trump, then present a DOJ that flatly rejects Trump’s attempted attack on our democracy: “If there were a legal mechanism available, we would pursue it. But there is not. And this case is definitely not it.” It states that DOJ’s top men–Rosen, Donoghue, Engel and acting-Solicitor General Jeff Wall–were unanimous in this belief.

It then goes on to poke major holes in Olsen’s legal theory, making the point that the DOJ cannot legally sue: “The United States, as a government, does not have any standing to challenge whether the States complied with their state electoral procedures.” The people telling Trump this approach was a “slam dunk” were painfully mistaken, as “[t]he drafters of the complaint could not identify a single case—in the history of the Supreme Court—where the United States ever brought a case like this. There is no legal doctrine that says that the United States may bring a lawsuit whenever it believes there has been a legal violation by a State.”

Even if the DOJ could bring the case, the talking points suggest that there would be no way to win: “There is nothing that the States could lawfully do now to stop Congress from opening and counting those votes next Wednesday, and therefore, the time to challenge the States has passed.”

The final point puts the last nail in the coffin:

  • The Supreme Court won’t hear the case. The Supreme Court rarely hears cases that are exclusively in its original jurisdiction—as we saw with United States v. Texas. But this case is not even within its original jurisdiction. This case could have been brought in federal district court months ago, and that makes it certain that the Court would not even hear it.

Although Trump huffed and puffed, the DOJ ultimately did not take action in the case. However, the meetings were not without consequences. In the days that would follow, Trump appears to have sought to replace Rosen with someone more amenable to his hopes to overturn the election.

The meetings surrounding these talking points marked a quick ramp-up of Trump’s attempts to use the DOJ in his effort to reject a free and fair election. According to a report by the Washington Post, on December 27, Trump told senior DOJ officials, “just say the election was corrupt + leave the rest to me and the R. Congressmen.”

Presidents often spend their final days in office focused on marking their legacy. For Donald Trump, that meant enlisting government and non-government lawyers to use every  strategy, no matter how ridiculous, in an attempt to overthrow an election. After that failed, in part because senior DOJ officials would not find a legal basis to go along with it, he sparked what became a violent attack on the government in a last gasp attempt to stop Joe Biden from becoming president. Donald Trump’s legacy is an assault on democracy. His recent comments show he’s warming up for another one.

Header photo by Gage Skidmore available under a Creative Commons license.

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