Trump was repeatedly warned he couldn’t seize voting machines, security aides tell special counsel: report

“I would not want to be a defense lawyer trying to argue, ‘Well, yes, my client was told that, but he never really believed it,’” election law attorney says

Ex-national security officials have reportedly told prosecutors and a grand jury that they told former President Donald Trump on several occasions that he wasn’t allowed to seize voting machines after the 2020 election.

Former top Homeland Security official Ken Cuccinelli was asked about discussions within the Trump administration regarding the agency taking control of voting machines when he spoke in front of the grand jury previously this year, CNN reported on Thursday.

Mr Cuccinelli told the jury that he “made clear at all times” that DHS couldn’t take measures like that, one person told the outlet.

The former acting DHS secretary, Chad Wolf, met prosecutors from the Department of Justice after being subpoenaed by the office of Special Counsel Jack Smith, according to John Coale, Mr Wolf’s attorney, who spoke to CNN.

Mr Wolf told prosecutors that he was asked by the Trump White House, after the 2020 election, if DHS had the legal right to seize voting machines and he said no every time.

Robert O’Brien, one of Mr Trump’s national security advisors, told prosecutors behind closed doors that he also had discussions about seizing voting machines, including a fiery conversation in the Oval Office which included Mr Trump, one source told the network.

Some of the officials who have testified, and some who have refused to take part so far, may be forced to make the trip back to Washington, DC to testify further following a number of court rulings rejecting Mr Trump’s claims of executive privilege.

Mr Cuccinelli was seen returning to the grand jury on Tuesday 4 April, CNN noted.

Former officials have to, without the protection of executive privilege, answer questions about their interactions with Mr Trump, such as what he was told about there being no evidence to support his claims of election fraud and what legal options he had.

To bring charges, the prosecution would have to refute Mr Trump’s argument that he believed and continues to believe that he lost the election because of fraud.

“There’s lots of ways you can show that. But certainly one of them is if they were told by people who knew what they were talking about, that that there was no basis to take the actions,” election law attorney Adav Noti told CNN. “I would not want to be a defense lawyer trying to argue, ‘Well, yes, my client was told that, but he never really believed it.’”

In the middle of December 2020, executive orders were drafted to instruct DHS and the military to seize voting machines even though Mr Cuccinelli and Mr Wolf had told Mr Trump and his inner circle that they didn’t have the legal right to take such actions.

The orders pointed to debunked claims about the elections in Georgia and Michigan. They were put forward by Mr Trump’s first national security adviser Michael Flynn and then-attorney Sidney Powell on 18 December 2020.

The office of the Special Counsel has asked witnesses about that meeting both in front of the grand jury and during interviews, according to CNN.

One of those witnesses was Mr O’Brien, who previously told the House Select Committee investigating January 6 that he was taking part in the meeting by phone after the meeting had already deteriorated as its participants began screaming at each other.

According to a transcript, Mr O’Brien said he was asked if there was any evidence of fraud or foreign influence within the voting machines.

“And I said, ‘No, we’ve looked into that and there’s no evidence of it’,” Mr O’Brien said. “I was told we didn’t have any evidence of any voter machine fraud in the 2020 election.”

Mr O’Brien made similar comments to the Special Counsel.

Mr Cuccinelli told the January 6 panel that he was asked repeatedly by Mr Trump’s lawyer at the time, former New York Mayor Rudy Giuliani, and at least once by Mr Trump, if Homeland Security could seize voting machines.

Mr Wolf told the committee that he was asked that same question multiple times by Mr Trump’s chief of staff Mark Meadows.

Mr Giuliani has told congressional investigators that he and his associates “tried many different ways to see if we could get the machines seized”.

“I can remember the issue of the military coming up much earlier and constantly saying, ‘Will you forget about it, please? Just shut up. You want to go to jail? Just shut up. We’re not using the military,’” he told the panel.

Mr Giuliani’s lawyer, Robert Costello, told CNN that the former mayor hasn’t received a subpoena from Mr Smith.

He added that Mr Giuliani had received a subpoena in early November from the US Attorney in Washington, DC for documents and testimony. Mr Costello told the network that he told the Department of Justice that Mr Giuliani was unable to comply with the deadlines in the filing because they conflicted with disciplinary proceedings.

In late March, Mr Costello told CNN: “I haven’t heard a word” from DOJ “since November 2022”.