Previously undisclosed emails provide an inside look at the increasingly desperate and often slapdash efforts by advisers to President Donald J. Trump to reverse his election defeat in the weeks before the Jan. 6 attack, including acknowledgments that a key element of their plan was of dubious legality and lived up to its billing as “fake.”
The dozens of emails among people connected to the Trump campaign, outside advisers and close associates of Mr. Trump show a particular focus on assembling lists of people who would claim — with no basis — to be Electoral College electors on his behalf in battleground states that he had lost.
In emails reviewed by The New York Times and authenticated by people who had worked with the Trump campaign at the time, one lawyer involved in the detailed discussions repeatedly used the word “fake” to refer to the so-called electors, who were intended to provide Vice President Mike Pence and Mr. Trump’s allies in Congress a rationale for derailing the congressional process of certifying the outcome. And lawyers working on the proposal made clear they knew that the pro-Trump electors they were putting forward might not hold up to legal scrutiny.
“We would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted,” Jack Wilenchik, a Phoenix -based lawyer who helped organize the pro-Trump electors in Arizona, wrote in a Dec. 8, 2020, email to Boris Epshteyn, a strategic adviser for the Trump campaign.
In a follow-up email, Mr. Wilenchik wrote that “’alternative’ votes is probably a better term than ‘fake’ votes,” adding a smiley face emoji.
The emails provide new details of how a wing of the Trump campaign worked with outside lawyers and advisers to organize the elector plan and pursue a range of other options, often with little thought to their practicality. One email showed that many of Mr. Trump’s top advisers were informed of problems naming Trump electors in Michigan — a state he had lost — because pandemic rules had closed the state Capitol building where the so-called electors had to gather.
The emails show that participants in the discussions reported details of their activities to Rudolph W. Giuliani, Mr. Trump’s personal lawyer, and in at least one case to Mark Meadows, the White House chief of staff. Around the same time, according to the House committee investigating Jan. 6, Mr. Meadows emailed another campaign adviser saying, “We just need to have someone coordinating the electors for states.”
Many of the emails went to Mr. Epshteyn, who was acting as a coordinator for people inside and outside the Trump campaign and the White House and remains a close aide to Mr. Trump.
Mr. Epshteyn, the emails show, was a regular point of contact for John Eastman, the lawyer whose plan for derailing congressional certification of the Electoral College result on Jan. 6, 2021, was embraced by Mr. Trump.
Key Revelations From the Jan. 6 Hearings
Mr. Epshteyn not only fielded and passed along to Mr. Giuliani the detailed proposal for Jan. 6 prepared by Mr. Eastman, he also handled questions about how to pay Mr. Eastman and made the arrangements for him to visit the White House on Jan. 4, 2021, the emails show.
That was the day of the Oval Office meeting in which Mr. Trump and Mr. Eastman unsuccessfully pressured Mr. Pence to adopt the plan — an exchange witnessed by Mr. Pence’s two top aides, Marc Short and Greg Jacob, both of whom testified last week to the federal grand jury investigating the assault on the Capitol and what led to it.
The emails highlight how much of the legwork of finding ways to challenge Mr. Trump’s losses in the battleground states was done by Mike Roman, director of Election Day operations for Mr. Trump’s campaign.
Mr. Epshteyn and Mr. Roman, the emails show, coordinated with others who played roles in advising Mr. Trump. Among them were the lawyers Jenna Ellis and Bruce Marks; Gary Michael Brown, who served as the deputy director of Election Day operations for Mr. Trump’s campaign; and Christina Bobb, who at the time worked for One America News Network and now works with Mr. Trump’s PAC.
The emails were apparently not shared with lawyers in the White House Counsel’s Office, who advised that the “fake electors” plan was not legally sound, or other lawyers on the campaign.
Some of the participants also expressed approval in the emails for keeping some of their activities out of the public eye.
For instance, after Mr. Trump hosted Pennsylvania state legislators at the White House in late November to discuss reversing the election outcome, Mr. Epshteyn celebrated when news of the meeting didn’t quickly leak. “The WH meeting hasn’t been made public, which is both shocking and great,” he wrote to Ms. Ellis.
On Dec. 8, 2020, Mr. Wilenchik wrote that Kelli Ward, one of the Republicans in Arizona participating in the fake electors plan, recommended trying “to keep it under wraps until Congress counts the vote Jan. 6th (so we can try to ‘surprise’ the Dems and media with it) — I tend to agree with her.”
Mr. Epshteyn, Mr. Wilenchik, Mr. Roman, Mr. Eastman, Ms. Bobb and James Troupis, another lawyer involved in the plan, either declined to comment or did not respond to emails or calls seeking comment.
Mr. Marks, in an email, disputed that there was anything inappropriate or improper at work.
“I do not believe there was anything ‘fake’ or illegal about the alternate slates of delegates, and particularly Pennsylvania,” he said. “There was a history of alternate slates from Hawaii in 1960. Nothing was secret about this — they were provided to the National Archives, as I understand the procedure, and then it was up to Congress to decide what to do.”
Mr. Marks added: “I had no involvement with Professor Eastman’s advice regarding the vice president’s role, which I only learned about after the fact, and do not support.”
The House committee investigating the Jan. 6 attack on the Capitol has produced evidence that Mr. Trump was aware of the electors plan. Ronna McDaniel, the chairwoman of the Republican National Committee, said in a deposition to the panel that Mr. Trump had called her and put Mr. Eastman on the phone “to talk about the importance of the RNC helping the campaign gather these contingent electors. ”
The panel has also heard testimony from Mr Jacob, who was Mr. Pence’s counsel in the White House, that Mr. Eastman admitted in the Jan. 4 Oval Office meeting — with Mr. Trump present — that his plan to have Mr. Pence obstruct the electoral certification violated the Electoral Count Act.
The emails show less than lawyerly precision at times. Mr. Marks repeatedly referred to Cleta Mitchell, another lawyer helping Mr. Trump, as “Clita” and “Clavita,” prompting Mr. Epshteyn to reply: “It’s Cleta, not Clavita.”
Another time, Mr. Epshteyn wrote to Mr. Marks: “Do you mean Arizona when you say Nevada???”
By early December, Mr. Epshteyn was seemingly helping to coordinate the efforts, conferring repeatedly with Mr. Marks and others. Mr. Wilenchik told his fellow lawyers he had been discussing an idea proposed by still another lawyer working with the campaign, Kenneth Chesebro, an ally of Mr. Eastman’s, to submit slates of electors loyal to Mr. Trump.
“His idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren’t legal under federal law — because they’re not signed by the Governor ); so that members of Congress can fight about whether they should be counted on January 6th,” Mr. Wilenchik wrote in the email on Dec. 8, 2020, to Mr. Epshteyn and half a dozen other people.
“Kind of wild/creative — I’m happy to discuss,” Mr. Wilenchik continued. “My comment to him was that I guess there’s no harm in it, (legally at least) — ie we would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted.”
As they organized the fake elector scheme, lawyers appointed a “point person” in seven states to help organize those electors who were willing to sign their names to false documents. In Pennsylvania, that point person was Douglas V. Mastrianoa proponent of Mr. Trump’s lies of a stolen election who is now the Republican nominee for governor.
But even Mr. Mastriano needed assurances to go along with a plan other Republicans were telling him was “illegal,” according to a Dec. 12 email sent by Ms. Bobb that also referred to Mr. Giuliani, the former mayor of New York City .
“Mastriano needs a call from the mayor. This needs to be done. Talk to him about legalities of what they are doing,” she wrote, adding: “Electors want to be reassured that the process is *legal* essential for greater strategy.”
The emails showed the group initially hoped to get Republican state legislatures or governors to join their plans and give them the imprimatur of legitimacy. But by December, it was clear no authorities would agree to go along, so the Trump lawyers set their sights on pressing Mr. Pence, who was scheduled to preside over a joint session of Congress on Jan. 6.
On Dec. 7, Mr. Troupis, who worked for the Trump campaign in Wisconsin, wrote to Mr. Epshteyn that there was “no need for the legislators to act.” He cited Mr. Chesebro’s legal analysis that the key to Mr. Trump’s hopes was not blocking state certification of the electors on Dec. 14, but creating a reason for Mr. Pence to block or delay congressional certification of the Electoral College results on Jan. 6.
“The second slate just shows up at noon on Monday and votes and then transmits the results,” Mr. Troupis wrote of organizing Republican slates of electors to cast ballots for Mr. Trump on Dec. 14. “It is up to Pence on Jan 6 to open them. Our strategy, which we believe is replicable in all 6 contested states, is for the electors to meet and vote so that an interim decision by a Court to certify Trump the winner can be executed on by the Court ordering the Governor to issue whatever is required to name the voters. The key nationally would be for all six states to do it so the election remains in doubt until January.”
The documents also demonstrated the legal team had relied on widely debunked information to point to broad claims of election fraud. On Dec. 17, Mr. Epshteyn wrote to Mr. Giuliani that a document on election fraud created by Mr. Trump’s trade adviser, Peter Navarro — which has been discredited in public reporting, by state officials and courts — “appears to be the most comprehensive summary of vote fraud from this election season.”
The lawyers were aware their legal efforts were being ridiculed. On Dec. 23, Mr. Marks wrote: “You folks are getting killed in the media on litigation strategy, even on Fox and among conservatives.”
But they were undeterred.
By Christmas Eve, Mr. Eastman seemed to want to harness the power of Mr. Trump’s millions of supporters.
At 8:04 pm that night, Mr. Eastman sent Mr. Epshteyn an email that he had received in which a woman implored him to ask Mr. Trump “to put out what he would like his 74 million followers to do to help.” She added: “We need to be one voice, with laser focus, SPEAKING AS 74 MILLION STRONG.”
In his email to Mr. Epshteyn, Mr. Eastman wrote, “Thought I’d forward this. 74 Million strong. Let’s figure out a targeted way to deploy them. Rolling thunder? One legislature at a time? The others can see it coming.”
Days earlier, Mr. Trump had told his supporters to descend on Washington on Jan. 6 for a “protest” that he promised would “be wild.”
On Dec. 27, Mr. Epshteyn wrote that Mr. Trump “liked” an aggressive approach being proposed by the lawyers, and that Mr. Eastman would be the “face of the media strategy” along with Mr. Giuliani.
“We need one voice out there,” Mr. Epshteyn wrote of Mr. Eastman, saying he’s “already been out/liked by POTUS.”
Jan. 6 was just days away.