The Electoral College process is not a crime, but the FBI treated it as one to open a criminal investigation into then-former President Donald Trump, everyone around him, Republican lawmakers, political committees, attorneys, advocates and ordinary Americans engaging in the political process.
The FBI and former Special Counsel Jack Smith went after more than 400 Republican entities and individuals, sending secret subpoenas for records and correspondence to banks, financial services companies, credit reporting agencies and telecommunications companies.
This bogus investigation, which the FBI code-named Arctic Frost, was initiated on the premise that it’s somehow unlawful to challenge the counting of a state’s electoral votes and to have an alternate slate of electors ready to present to Congress in the event that the challenge is successful.
Not only is that not a crime, it’s part of American political history. Two rival slates of electors were sent to Congress from the state of Hawaii in the very close 1960 presidential election.
The Electoral College was devised at the Constitutional Convention in 1787 after a long, hot summer of considering and rejecting proposals to have the president elected directly by the people, by the Congress, by the Senate, by the state legislatures, by electors and by the governors. The process of having electors equal in number to a state’s representatives in Congress struck a balance, and the framers thought it would minimize the risk of corruption, “cabal” and foreign influence.
It didn’t always work smoothly. The 12th Amendment made a few tweaks after an Electoral College tie in 1800 threw the election into the House of Representatives and 36 ballots were needed to elect Thomas Jefferson. Almost nine decades later, Congress made changes to Electoral College procedures with the Electoral Count Act of 1887. Those procedures provided the basis of Trump’s plan to challenge some of the electoral votes for Joe Biden in 2020.
The Biden team decided that they could investigate this as a criminal conspiracy. Newly released documents show that in April 2022, then-FBI Director Christopher Wray told then-Attorney General Merrick Garland, “individuals, both known and unknown, engaged in a conspiracy to obstruct Congress’s certification of the Electoral College on January 6, 2020, including through the submission of fraudulent certificates of electors’ votes to the United States Government.”
The leaks began a few months later. On July 26, 2022, The New York Times reported that “Justice Department investigators received phone records of key officials and aides in the Trump White House,” part of “the department’s investigation into a central element of the push to keep Trump in office — the plan to name slates of electors pledged to Mr. Trump in battleground states won by Mr. Biden.”
The Times reported that the Justice Department’s leadership “would be required to undertake a formal consultation process, then sign a formal approval” in order to open a criminal investigation into Trump “after he announced his intention to run in the 2024 election, as he continues to hint he might do.”
Now we know that they did. A document recently made public shows that Garland personally approved the criminal investigation into the former and future president, and hundreds of other Republicans, over nothing more than the Electoral College challenges.
Not only is the Electoral College process lawful, it’s designed as a protection against election-related crimes changing the outcome of a presidential election.
The Arctic Frost investigation has been under investigation by the Senate and House Judiciary Committees. On Jan. 30, 10 days after Trump’s second inauguration, Senate Judiciary Committee Chairman Chuck Grassley and Permanent Subcommittee on Investigations Chairman Ron Johnson began to release legally protected whistleblower disclosures revealing the origins of the corrupt investigation.
The House Judiciary Committee just released documents revealing that Arctic Frost investigators used FBI field offices across the country to investigate more than 150 people, racking up $16,000 just in travel expenses to interview Trump associates and attorneys.
The Senate Judiciary Committee has documented through whistleblower disclosures that Special Counsel Jack Smith issued 197 subpoenas to 34 individuals and 163 businesses in connection with an investigation into “at least 430 named Republican individuals and entities.” The records that were demanded included all communications with media companies, members of the legislature or their employees, and any White House advisors. Also subpoenaed: statistical data and analysis related to donors and fundraising, and “broad financial data relating to conservative individuals and entities.”
“Arctic Frost was the vehicle by which partisan FBI agents and DOJ prosecutors could improperly investigate the entire Republican political apparatus,” Grassley said at a press conference this week, calling the investigation “clearly a fishing expedition.”
If President Trump had not won the 2024 election, it’s possible that the Democrat in the White House would now have access to the phone, email, bank, credit, business and personal correspondence records of “the entire Republican political apparatus.”
Arctic Frost was a political hit job disgracefully carried out by the nation’s top law enforcement officials.
When the Trump administration’s Department of Justice prosecutes them, it will be justice.
Write Susan@SusanShelley.com and follow her on X @Susan_Shelley