Special Counsel Focuses on Trump Fundraising Off False Election Claims

The Washington Post · Josh Dawsey, Devlin Barrett, Rosalind S. Helderman, Jacqueline Alemany

12:00 JST, April 13, 2023

Federal prosecutors probing the Jan. 6, 2021, attack on the U.S. Capitol have in recent weeks sought a wide range of documents related to fundraising after the 2020 election, looking to determine if former president Donald Trump or his advisers scammed donors by using false claims about voter fraud to raise money, eight people familiar with the new inquiries said.

Special counsel Jack Smith’s office has sent subpoenas in recent weeks to Trump advisers and former campaign aides, Republican operatives and other consultants involved in the 2020 presidential campaign, the people said. They have also heard testimony from some of these figures in front of a Washington grand jury, some of the people said.

The eight people with knowledge of the investigation spoke on the condition of anonymity to discuss an ongoing criminal investigation.

The fundraising prong of the investigation is focused on money raised during the period between Nov. 3, 2020, and the end of Trump’s time in office on Jan. 20, 2o21, and prosecutors are said to be interested in whether anyone associated with the fundraising operation violated wire fraud laws, which make it illegal to make false representations over email to swindle people out of money.

The new subpoenas received since the beginning of March, which have not been previously reported, show the breadth of Smith’s investigation, as Trump embarks on a campaign for reelection while assailing the special counsel investigation and facing charges of falsifying business records in New York and a separate criminal investigation in Georgia.

The subpoenas seek more specific types of communications so that prosecutors can compare what Trump allies and advisers were telling one another privately about the voter-fraud claims with what they were saying publicly in appeals that generated more than $200 million in donations from conservatives, according to people with knowledge of the investigation.

That suggests that investigators are pursuing a legal theory similar to the one used to charge former Trump adviser Stephen K. Bannon and others with fraudulent fundraising to build a wall along the southern border, in which Bannon and others were charged with defrauding donors by lying in email pitches. Bannon’s three co-defendants pleaded guilty or were convicted, while Bannon was pardoned by Trump before he faced trial. Bannon now faces similar charges from the Manhattan district attorney and awaits trial. He has pleaded not guilty.

It’s unclear whether prosecutors will find similar kinds of evidence to support an indictment in this case.

The recent subpoenas and testimony are another indicator of the hectic pace of Smith’s multipronged investigation. After winning a court ruling requiring Trump aides to testify to the grand jury about their interactions with the former president in the weeks leading up to Jan. 6, several former key staffers have been spotted at the Washington courthouse, including former homeland security official Ken Cuccinelli and former Trump adviser Stephen Miller.

In recent weeks, prosecutors have separately continued to gather evidence about Trump’s handling of classified materials at his Mar-a-Lago residence in Florida after he left office and potential obstruction of that investigation.

At least two grand juries in Washington are meeting every week about Trump and his advisers on multiple fronts, people familiar with the investigations said.

The Mar-a-Lago documents case is said to be further along than the Jan. 6 investigation, the people said. Trump has grown increasingly agitated as prosecutors have interviewed dozens of his aides, including Mar-a-Lago employees and household staff, advisers said.

The special counsel’s increased interest in fundraising follows the December release of the final report of the House select committee that investigated the Jan. 6 attack, which concluded that the Trump campaign and Republican National Committee’s joint fundraising operation brought in $250 million between the November election and Jan. 6, sending as many as 25 emails to supporters each day, many claiming that the election had been “rigged” or that Democrats had tried to steal the presidency and urging people to join the “Trump Army.” The Trump campaign sent several emails on Jan. 6 itself, including one declaring, “TODAY. This is our LAST CHANCE . . . The stakes have NEVER been higher. President Trump needs YOU to make a statement and publicly stand with him and FIGHT BACK.”

One new subpoena sent by the Justice Department to a Trump adviser and described to The Washington Post sought drafts of all potential fundraising emails between the November election and Jan. 20 – and any internal communications about whether such pitches were legally sound.

The subpoena asked for all records of any changes and edits made to fundraising emails, along with all discussions among Trump advisers about such email pitches. It sought all documents created or received by Trump advisers in support of – or contradicting – statements made in fundraising emails. In addition, it requested any communications among those involved in the fundraising efforts about whether fundraising emails could incite violence or contain false and misleading information.

And it asked for all documents and correspondence among Trump advisers and others involved in the campaign about whether the election was stolen – seemingly seeking to determine whether those sending or approving the emails knew some of the claims were dubious.

Prosecutors also sought information about an “Election Defense Fund” – cited in some fundraising emails that asked for donor money to challenge the election – and any documents about whether such a fund existed or whether there were plans for such a fund. Trump advisers told the Jan. 6 committee that references to the fund in pitches was a marketing tactic and no such segregated fund ever existed.

In interviews and grand jury appearances, witnesses have been asked how the hundreds of millions of dollars raised were planned to be spent, and how the funds were spent in 2021 and 2022. People subpoenaed have also been asked to provide details on how the money raised during the post-election period was split between Trump-aligned groups and consultants.

In the days after the election, Trump’s advisers were stunned at how much cash was flowing into their coffers as he repeatedly spoke of a stolen election. The campaign raised more money in the days after the election than in some weeks leading up to the election – a financial windfall largely unspent by the time Trump left office.

A spokesman for Smith, the special counsel, declined to comment. A spokesman for Trump did not respond to an email seeking comment. A spokeswoman for the RNC did not respond to a request for comment. Cuccinelli and a lawyer for Miller declined to comment.

One person with knowledge of prosecutors’ inquiries said they appeared to be exploring whether people who approved the ads saying the election was stolen separately acknowledged their fundraising pitches were based on lies.

What they have found is that some of the campaign’s lawyers, and outside lawyers, did not always review the language closely for factual accuracy. While some of the emails were edited, these people said, others were approved by key figures in Trump’s orbit without close examination. At other times, they have found that some people involved in Trump’s campaign were uncomfortable with some of the fundraising language distributed to supporters.

The fundraising entities included the presidential campaign and various political committees associated with Trump, including Save America PAC and the Save America Joint Fundraising Committee.

Whether such a case could be made is unclear. Political fundraising emails from Republicans and Democrats alike have often featured hyperbole and misleading language. In addition, many of the people involved in the fundraising emails say privately that they were only repeating language used by the president of the United States. And some of the emails were not specific about fraud claims.

Adav Noti, legal director of the nonprofit Campaign Legal Center, said the key evidentiary question for such a case is whether “whoever was approving or making the solicitations knew they were false,” adding that the solicitations for election defense or election integrity work “had already raised 100 times more money than it could have spent on that . . . I think the donors relied on the statements about where the money would go.”

The House committee that investigated the Jan. 6 attack included a 36-page appendix to its final report, which was released in December, that concluded that Trump, allies and advisers aggressively used claims of a stolen election to raise money following the vote, despite internal discomfort with some of the messaging. The committee found that ultimately virtually none of the money was spent on recounts or legal efforts to challenge the results. Nearly all of the money went to Trump-connected consultants or was poured into the Save America PAC to support Trump’s future political ambitions.

“Not only did President Trump lie to his supporters about the election, but he also ripped them off,” the committee’s seven Democrats and two Republicans concluded.

Among other evidence, the committee found that a junior fundraising copy writer objected when he was directed to write a fundraising email asserting that Trump had won Pennsylvania before the outcome of the state’s race was clear – Biden was ultimately declared the winner there. The copy writer was fired shortly after, the report says.

The House committee reported that it identified a Salesforce employee who worked in the company’s privacy and abuse operation and that they had reported concerns that Trump emails sent through the service violated the company’s policies against distributing material that could lead to violence, but the employee said their concerns were ignored by more senior officials at the company.