Homeland Security Officials Tell Special Counsel Trump Was Repeatedly Advised He Had No Authority To Seize Voting Machines

() — Former top national security officials testified before a federal grand jury that repeatedly warned former President Donald Trump and his allies that the government did not have the authority to seize voting machines after the 2020 election, has learned.

Chad Wolf, the former acting Homeland Security Secretary, and his former deputy Ken Cuccinelli were asked about discussions within the government regarding the seizure of voting machines by the US Department of Homeland Security (DHS, for its acronym) during his grand jury appearance 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 that step, one of the sources said.

In a closed-door interview with federal prosecutors earlier this year, Robert O’Brien, Trump’s former national security adviser, also recounted conversations regarding the seizure of voting machines after the 2020 election, including during a heated Oval Office meeting involving Trump, according to a source familiar with the matter.

Details about the secret grand jury testimony and O’Brien’s interview—neither of which have been previously reported—illustrate how special counsel Jack Smith and his prosecutors are looking at the various ways Trump attempted to overturn his election defeat. despite the fact that some of his senior officials advised him against the ideas.

Now some of those same officials, including Wolf, Cuccinelli and O’Brien, as well as others who have so far refused to testify, may have to return before the grand jury in Washington to provide additional testimony. This comes because of a series of crucial court rulings in recent weeks that have rejected Trump’s claims of executive privilege.

Cuccinelli was seen returning before the grand jury on Tuesday, April 4.

Without that shield of privilege, the former officials will have to answer questions about their interactions and conversations with the former president, including what they told him about the lack of evidence of voter fraud and what legal options he could pursue.

That line of questioning goes to the heart of the challenge Smith faces in any criminal case he may bring: proving that Trump and his allies went ahead with their attempts despite knowing that their fraud claims were false or that their tactics were not legal. . To bring possible criminal charges, prosecutors would have to prove false Trump’s public claim that he believes — now, and he also believed then — that fraud cost him the election.

“There are many ways that you can demonstrate that. But certainly one of them is that people who knew what they were talking about would say that they were told there was no basis to take the action,” said Adav Noti, an election law attorney who previously served with the US Attorney’s Office in Washington and the Office of the General Counsel of the Federal Election Commission (FEC).

United States midterm elections. (Photo: PAUL VERNON/AFP via Getty Images)

“I wouldn’t want to be a defense attorney trying to argue, ‘Well, yes, my client was told that, but he never believed it,’” Noti said.

Drafting of decrees

Following the 2020 election, within the Trump White House the drive to seize voting machines eventually led to the drafting of several executive orders in mid-December of that year directing the Army and DHS to conduct out the task. This despite Wolf and Cuccinelli telling Trump and his allies that his agency did not have the authority to carry out those orders.

Those orders, which cited discredited claims about voting irregularities in Michigan and Georgia, were presented to Trump by his former national security adviser Michael Flynn and then-attorney Sidney Powell during a now-infamous meeting at the Oval Office on December 18.

Smith’s team questioned witnesses about that grand jury meeting and during closed-door interviews, multiple sources told . Among the witnesses was O’Brien, who told the Jan. 6 House select committee that he was included in the Dec. 18 meeting by phone after it had already escalated into a shouting match between Flynn, Powell and White House lawyers, according to a transcript of O’Brien’s statement that was released by the panel.

O’Brien told the commission that at one point he was asked if there was evidence of voter fraud or foreign interference in voting machines. “And I said, ‘No, we investigated it and there’s no evidence of that,'” was O’Brien’s response. “I was told that we had no evidence of any voting machine fraud in the 2020 election.”

When questioned about that meeting by federal prosecutors working for Smith, O’Brien reiterated that he made it clear there was no evidence of foreign interference that could have affected the voting machines, according to the source familiar with the matter.

O’Brien met with prosecutors earlier this year after receiving a subpoena from Smith’s team and is among Trump officials who could be called back to discuss conversations he had with the former president under the recent decision. of the judge on executive privilege.

Former Director of National Intelligence John Ratcliffe, who personally told the former president’s allies that there was no evidence of foreign election interference or widespread fraud to justify taking extreme measures such as seizing voting machines, must also testify, the judge decided.

A Ratcliffe spokesperson did not respond to ‘s request for comment. Wolf declined to comment.

Cuccinelli acknowledged before the commission on January 6 of last year that, after the election, he was asked several times by then-Trump attorney Rudy Giuliani—and on at least one occasion by Trump himself—whether DHS had the authority to seize voting machines. Wolf told the committee that then-White House Secretary General Mark Meadows repeatedly asked him the same question.

Rudolph Giuliani.

Giuliani, who was subpoenaed by the Justice Department before Smith took over the investigation, previously acknowledged before the Jan. 6 commission that he participated in the Dec. 18 Oval Office meeting and other conversations about the seizure. of voting machines by DHS and the Army.

Giuliani told congressional investigators that he and his team “tried many different ways to assess whether the machines could be seized,” including options involving DHS, according to the transcript of his interview with the commission. Giuliani also acknowledged taking part in conversations, including before the Oval Office meeting on December 18, where the idea of ​​using the military to seize voting machines was floated.

“I remember the military thing coming up way before and I was constantly saying, ‘Can you please forget about that? Just shut up. Do you want to go to jail? Just shut up. We will not use the military,’” she added.

Robert Costello, Giuliani’s attorney, told that Giuliani did not receive a subpoena from Smith. Costello said that in early November, Giuliani was subpoenaed by the Washington US Attorney seeking documents and testimony. Costello says he told the Justice Department that Giuliani couldn’t meet the given deadlines because they were in the middle of a disciplinary proceeding at the time. That was the last time Giuliani heard from the Justice Department, Costello says.

“I haven’t heard a word about this since November 2022,” Costello told on March 30.

‘s Paula Reid contributed to this report