Washington(CNN) Former top national security officials testified to a federal grand jury that they repeatedly told former President Donald Trump and his allies that the government did not have the authority to seize voting machines. after the 2020 election, CNN has learned.
Chad Wolf, the former acting Homeland Security secretary, and his former deputy Ken Cuccinelli were asked about discussions within the administration around DHS seizing voting machines when they appeared before the grand jury earlier this year, according to three people familiar with the proceedings. Cuccinelli testified that he “made it clear at all times” that DHS did not have the authority to take such a step, one of the sources said.
Trump’s former national security adviser, Robert O’Brien, in a closed-door interview with federal prosecutors earlier this year, also recounted conversations about seizing voting machines after the 2020 election, including during a heated meeting in the Oval Office attended by Trump, according to a source familiar with the matter.
Details about the secret grand jury testimony and O’Brien’s interview, previously unreported, illustrate how special counsel Jack Smith and his prosecutors viewed various way Trump tried to reverse his election loss despite some of his top advisers. against him ideas.
Now some of those same officers, including Wolf, Cuccinelli and O’Brien, as well as others who have so far refused to testify, may have to return to a grand jury in Washington, DC, to provide additional testimony. after a series of significant. Court decisions released in recent weeks have rejected Trump’s claims of executive privilege.
Cuccinelli appeared before the grand jury on Tuesday, April 4.
Without that protection of privilege, former officials must answer questions about their interactions and conversations with the former president, including what he told him about the lack of evidence of election fraud and the legal challenges remedy he may pursue.
That line of questioning goes to the heart of Smith’s challenge to any criminal charges he may bring — to prove that Trump and his allies are continuing their efforts despite knowing that their claims of cheating are false or their gambling is illegal. To bring any potential criminal charges, prosecutors would have to overcome Trump’s public admissions that he believed then and now that fraud actually cost him the election.
“There are many ways that you can show that. But certainly one of them is when people tell them that they know what they are talking about, that there is no basis for taking actions,” said Adav Noti, a election law attorney who previously served in the US Attorney’s Office in Washington, DC, and in the office of the general counsel of the Federal Election Commission.
“I don’t want to be the defense attorney trying to argue, ‘Well, yes, my client told me that, but he never believed it,'” Noti said.
Drafting of executive orders
Inside the Trump White House after the 2020 election, the push to seize voting machines eventually led to executive orders drafted in mid-December of that year, directing the military and DHS to get the job done despite what Wolf and Cuccinelli told Trump and his allies. their will has no authority to do so.
Those orders, citing debunked claims about irregularities in voting systems in Michigan and Georgia, were presented to Trump by his former national security adviser Michael Flynn and former attorney Sidney Powell in during a famous meeting in the Oval Office on December 18.
Smith’s team questioned witnesses about the meeting before the grand jury and in closed-door interviews, multiple sources told CNN. Among them is O’Brien, who told a January 6 House select committee that he was patched into the December 18 meeting by phone after it had turned into a shouting match between Flynn, Powell and lawyers. at the White House, according to a transcript of O Brien’s deposition released to the panel.
O’Brien told the committee that at one point someone asked him if there was evidence of election fraud or foreign interference with voting machines. “And I said, ‘No, we looked at that and there’s no evidence of it,'” O’Brien said he responded. “I am told that we do not have any evidence of any voter machine fraud in the 2020 election.”
When asked about that meeting by federal prosecutors working for Smith, O’Brien reiterated that he made it clear there was no evidence of foreign interference affecting the voting machines, according to a source familiar with the matter.
O’Brien met with prosecutors earlier this year after receiving a subpoena from Smith’s team and one of the Trump officials who could be called back to discuss conversations with Trump under the judge’s new ruling. of executive privilege.
Former Director of National Intelligence John Ratcliffe, who personally told allies of the former president that there was no evidence of foreign election interference or widespread fraud to justify taking drastic measures like seizing voting machines, must also testify, the judge ruled.
A spokeswoman for Ratcliffe did not respond to CNN’s request for comment. Wolf declined to comment.
Cuccinelli acknowledged to the committee on January 6 of last year that, after the election, he was asked several times by Trump’s then-lawyer Rudy Giuliani, and at least once by Trump himself, whether DHS had the authority to river of voting machines. Wolf told the committee that he was repeatedly asked the same question by White House chief of staff Mark Meadows.
Giuliani, who was subpoenaed by the Justice Department before Smith took over the investigation, previously acknowledged to the committee on Jan. 6 that he participated in the Dec. 18 Oval Office meeting and other conversations about the DHS takeover and military voting machines.
Giuliani told congressional investigators that he and his team “tried a lot of different ways to see if we could get the machines,” including options involving DHS, according to a transcript of his interview with the committee. Giuliani also acknowledged participating in conversations — even before the Dec. 18 Oval Office meeting — in which the idea of using the military to seize voting machines was raised.
“I remember the issue of the military coming up early and always saying, ‘Can you forget this, please? Just shut up. You want to go to jail? Just shut up. We’re not using the military,'” he added.
Robert Costello, a lawyer for Giuliani, told CNN that Giuliani had not received a subpoena from Smith. Costello said that in early November, Giuliani was subpoenaed by the DC US Attorney seeking documents and testimony. Costello said he told the Justice Department that Giuliani could not meet the given deadlines because they were in the middle of disciplinary proceedings at the time. That was the last time Giuliani heard from the DOJ, Costello said.
“I haven’t heard a single word since November 2022,” Costello told CNN on March 30.
CNN’s Paula Reid contributed to this report