Donald Trump’s legal team is looking for evidence from government agencies that the former president’s Jan. 6, 2021, rally speech, where he told his supporters to “fight like hell” to change the outcome of the election, was actually “official conduct.”
In this case, this search is not about special counsel Jack Smith’s highly watched criminal case against Trump. Rather, it’s part of an effort to avoid a civil court battle that could seriously cost the former president, even if he wins the election in November.
With less than two weeks to go before a deadline set by a federal judge, Trump’s team is now signaling that they won’t finish their evidence gathering on time. The group of lawsuits filed by police officers and Democratic members of Congress seeks to hold Trump personally liable for the plaintiffs’ physical and emotional injuries during the attack on the U.S. Capitol. Trump’s lawyers say they need more time to hear back from federal agencies in a long shot attempt to bolster their defensive strategy.
It’s not entirely clear what Trump’s team is looking for specifically that would be outside the scope of the House Jan. 6 committee’s investigation, which resulted in an 845-page final report and thousands of pages of interviews, text messages and other supporting data.
Trump’s lawyers subpoenaed the National Archives in May, according to a source who described documents to NOTUS on condition of anonymity. This came months after his lawyer, David Alan Warrington, said in court that the agency would have vital information about who ran Trump’s personal Twitter account in 2020 and 2021, claiming that they’d “need information from who had access to it, who controlled it, how was it used.”
The defense team also subpoenaed the Department of the Interior, given that the rally took place on the Ellipse behind the White House, a federally managed national park. The agency plans to hand over all records by Friday.
Trump’s lawyers are now sorting through more than 1.7 million pages they recently obtained from the National Archives alone — much of which they admit in court papers is “irrelevant.”
The goal of all this is to back up their main defense: Trump is immune from any damages incurred on Jan. 6 because he was acting as the president, not as a presidential candidate. Their current deadline to obtain this evidence is Sept. 11.
The Trump team’s previous efforts to have the case dismissed — partly on the grounds that he’s legally untouchable for whatever he did while president — didn’t convince the judge overseeing the case and failed on appeal. But the recent Supreme Court decision granting extensive immunity to any “official” action an American president takes while on the clock has teed up the current fight over what the evidence will show.
Still, the plaintiffs’ lawyers don’t think Trump’s legal team, even with the inquiries they have out, can actually prove that Trump’s actions were done in an official capacity.
“I have a really hard time envisioning what they’re going to get,” said Phil Andonian, one of the attorneys on the lawsuit filed by Rep. Eric Swalwell. “They’re engaging in discovery to determine whether or not their own client was doing something officially or not. They have a client who knows exactly what he was doing. It’s disingenuous to be sending requests to the Department of Interior to be asking questions about who was doing what.”
Trump’s lawyers did not respond to a request for comment.
The source familiar with the case explained to NOTUS that Trump’s team subpoenaed the Secret Service on June 18 but didn’t appear to take any action when the 30-day response deadline came and went in mid-July. In court papers filed jointly later, a prosecutor and Trump lawyer Gary Lawkowski cowrote that the “federal government was unaware” of any subpoena until Trump’s team mentioned it in court during an Aug. 6 hearing. Then, when Trump’s lawyers finally sent it that day, the Secret Service responded that the request was “overbroad” and missing a formal legal solicitation called a “Touhy request.”
Andy Searle, a former federal prosecutor who’s now a defense lawyer in Orlando and is not involved in the case, noted that filing Touhy requests is a basic step that can’t be overlooked.
“In order to get something from a federal agency, you have to comply with Touhy,” he said, referencing the 1951 Supreme Court case that says federal agencies can only turn over records or witnesses during litigation if the top brass first approves.
That delay could be why the Secret Service notified Trump’s lawyers on Thursday that it “is aiming to make a production” of records by Sept. 16, past the present deadline set by U.S. District Judge Amit Mehta. Back in April, Mehta already cautioned that “the court will not grant any extension of time absent a concrete showing of good cause, to include demonstrating diligence in seeking to obtain discovery.”
Searle noted that defense lawyers — at least successful ones — don’t let deadlines pass them without making a harder push to obtain powerful exculpatory evidence.
“You’re going to be pursuing that very diligently. If I think there’s evidence that’s going to immunize my client, and I issued a subpoena, I’m going to be following up frequently via emails and phone calls to do anything I can to acquire the material within the deadline provided by the court. If I think it’s gonna help my client get out of a jam, I’m going to try to get it as soon as I can,” he said.
The U.S. Attorney’s Office for the Eastern District of Virginia, which is now handling Trump’s request to the Secret Service, would not provide a copy of the subpoena. However, it’s still unclear what Trump attorneys are seeking from the agency. The Secret Service continues to provide him with a protective detail postpresidency.
As the person familiar with the case pointed out: “If the president goes on a purely personal golf outing, it’s not like the Secret Service is not somehow involved in that.”
If the documents do show that it was federal employees who planned the rally or were behind his Jan. 6 tweets, that would open up another can of worms for Trump. It would indicate that the presidential administration mixed politics and official government business, which is illegal, a second source familiar with the case pointed out.
“But that’s the wrinkle,” this source said. “This was an administration that at no point in time followed any proper protocol. You can find violations of the Hatch Act at every turn. You can find they improperly used officials.”
“It’s entirely possible there were a host of people who should have had nothing to do with this who were conscripted into duty,” this second person added.
—
Jose Pagliery is a reporter at NOTUS.