Pre-Decisional de Deliberative/Attorney-Client or Legal Werk Product Georgla Proof of Concept ‘The Honorable Brian P. Kemp Governor 111 State Capitol Alana, Georgia 30354 ‘The Honorable David Ralston Speaker of the House 382State Capitol Atlanta, Georgia 30334 “The Honorable Bute Miller President Pro Tempore ofthe Senate 321 State Capitol Atlanta, Georgia 30334 Detinber 38,2030 Dear Govemot Kemp. Mitotane Mereside Tempore ‘The Depar ment of Justice iS investigat ng various lrregularities in the 2020 lection for President of the United State The Department will update you as we are able on investigato y progress, but att is time we have identified significant concems that may ave impacted the outcome ofthe election in multiple States, including the State ‘of Georgia. (No doubt: many of Georgia's state legislators are aware of irregularities, sworn t by a variety of withesses, and we have taken notice oftheir complaints. Sve 6. ‘The Chairman's Report of the Election Law Sttdy Subcommitte of the Standing Senate Judiciary Committee Summary of Testimony from December 3, 2020 Hearing, |ltpilwew.senatorkigon,com/THE FINAL‘20REPORLDE (Dec. 17,2020) last visited Dec. 28 2020); Debra, Heine, Georgin Stote Senate Report: Election Results Are “Unusrti! Cerin Shult Be Rescind, Tae Texts Sta (Dee. 222020, ailtle at bilps. ar.comy/2020/ rgiaslate-senate ‘walls are-untrustworthy-centification-should-be-rescinded (ast visited Dee. 28,2020), examen 822774314 Se Boao 00202-20185Pre-Decisional& Delibertive/Attorney-Clint or Legal Work Produ In light of these developments, the Department recommends that the Georgia General Assembly should convene in specal session so that ts legislators are in a position to take additional testimony, receive new evidence, and deliberate on the matter consistent with its duties under the US. Constitution. Time i of the essence, a. the US. Constitution tasks Congress with convening in joint session to count Electoral College cestifcates, see US. Const, art Il $1, 3, consider objections to any of those certificates, and decide between any compoting slates of clectorcortifieates, and 3US.C.§ 15 provides that this session shall bogin on January 6, 2021, with the Viee Presid nt pesiding over the session as President of the Senate, ‘The Constitution manclates that Congress must set the day for Elector’ to me {to cast their ballots, which Congress did in 3 U S.C. §7, and which for this cleetion occurred ‘9m December 14,2020. The Department believe: that in Georgia and several other States, both a slate of electors supporting Joseph R. Biden, Jr. and a separ te slate of electors supporting, Donald J. Trump, gathered on that day at the proper'location to cast theit ballots, andl that both sets of those ballots have b en transmitted lo Washington, DC, 10 be opened by Vice President Pence, The D partment ls aware that @ similar situation ‘occurred in the 1960 election, Thete, Viee President Richatd Nixon appeared to wi the State of Hawaii on Blection Day and Bl ctors supporting Vice President Nixon cast their ballots on the day specified in U.S.C. §7, whi h were d ly certified by the Govemor of But Senator John F. Kennedy also claimed to win Hawai, with his Electors likewise casting their ba lots.on the preseribed day, and that by January 6, 196, it had been determined that Senator Kennedy was indeed the winner of Hawaii, so Congress accordingly accepted nly the ball ts cas for Senator Kennedy. Se Jack M. Balkin, Bust 2. Gove ad the Bowrelary Betowe Law and Politics, 110 YALE. W407, 1421 1.55 2001), Hawai ‘The Department Ibo finds troubling the current posture of a pending lawsuit in Fulton County, Georgia, raising soveral of the voting irregularities pertaining to which candidate for Pr sident of the United States received the most lawfully cast votes in Georgia. See Tr mp v. R flensporger, 2120cv343255 (Fulton Cry. Super. Ct), Despite the action having been fled on December 4, 2020, the trial court there has not even scheduled ‘a hearing’on mat er, making it dificult for the judicial process to consider this evidence and resolve these matters on appeal prior to January 6. Given the urgency ofthis serious matte including the Fulton County htigation’s sluggish pace, the Department believes that a special session of the Georgia General Assembly is warranted and isin the national interest.‘Pre-Decisional & Deliberative! Attorvey-Cieat of Legal Work Praduet The Electors Clause of the US. Constitution provides that "[elach State shall appoint, in such Manners the Legislature thereof may direc. electorsto east ballots For President and Vice President. See US. Const, art. § 1,¢L 2 Many State Legislatures “originally chose electors by ditect appointment, but overtime each State Legs! ture has ‘chosen to do so by popular vote on the day appointed by Congress in 3US.C. §1 to be the Election Day for Members of Congress, which this year was November 3, 2020 However, Congress also explicitly recognizes the power that State egislatu es have to point electors, providing in 3US.C. §2 that “whenever any Ste haa hel an election forthe purpose of choosing electors, and has failed to make a-hoie” on the day pre cxibed by[3USC. §1, the electors may be appointed on a subsequent day in such a manner as the legislature of sich State may dizect.” “The purpose of the special session the Department recommends woiild be for the General Assembly to (1) evaluate the irregularities in the 2029 eliction including violations of Georgi election law judged ag in that body oflaw sithas been enacted by yourState's Legislature, (2) determine wheth t those viol tion’ show which candidate for President won the most legal votes in the November3 elec fon, and (3) whether the lection fale! to make a proper and valid choice be wee the candidates, such that the General Assembly could tale whatever action ismecessa to ensure that one ofthe slates ‘of Electors cast on December 14 will be accepted by Congress on January 6, While the Departinent of Justic -bélieves the Governor of Georgia should immediately call a special session to € nsider this important and urgent matter, if he declines to do so, we shave with you aur Wiow that the Georgia General Assembly has limplied authority under the Constitut on of the United States to eal ise into special sion for he limited purpose of considering issues pertaining to the appointment of Presidential Electors. The Constitution specifies that Presidential Electors shall be ‘appointee by the Legislature of cach State. And the Framers dearly knew how to “distinguish betwicen ast te legislature and a stale executive, so their disparate choices to refer to one gislatres) the other (executive) or both, must be respected.* Additionally, "Sa eg USC, at TV, 4 (he Une Slates shall uate to ener Sate inthis Union a Republican Form of Goverment and sl protect each of ther against Invasion ron Aplin of hegre 12 the seat wen tc eye comma be conse aginst dame Vitec”) em phases added Ii att V_ ("Ty Senators and Represntaives Stor mention, and the Mlrers ofthe scr! Site isa, tall cat once Ofer bho he United States nd ofthe vevotl State sale ond by Oath ABematon,t0 support tis Constntion ”) frp sed) a XVIT amend "When vacances happenin the repression of ary Sain the Senate te tie arity of sh Sse al ae wrt of lesan illach vacances: Poni, That he plat fay Stl my epee 3 ee a thant O07Docu mee Pre-Deeisional & Deliberative/Attrney-Cllent oF Legal Work Product ‘when the Constitution intends to refer to laws enacted by the Legislature and signed by the Governor, the Constitution refers toi simply asthe “State” Si, eg. US, Const, ar 1, §8("[Congress may] evercise exclusive Legislation in all Cases whatsoever, over such, District (not exceeding ten Miles square) as may, by Cosson of particular States and the Acceptance of Congress, become the Seat of the Government ofthe United States, and to ‘exercise like Authority over all Places purchased by the Consent of the Legslture of the Sate in which the Same shal be, for the Erection of Forts, Magazines, Arsenals, dock- Yards and other neodful Buildings”) (emphasis added) (4isinguish ng, between the “State,” writ large, and the “Legislature of the State”), The C-nsti ution also mak clear when powers are forbidden to any type ofstateactor. Se, ¢g., US. Const, art I, §10, ch 1 (°No State shall enter into any Treaty, Alliance, or Confederation ..)- Surely, this cannot mean that a State Governor could enter ite such 2 Treaty but aS ate Leg could not, oF vive versa. Clearly, however, some provision refer explicitly to sta ¢ leg sh tures — and there the Framers must be taken at their word. One such example is in Article V, which provides that a proposed Amendment to he Constitution is adopted “when ratified by the Legislatures of three fourths of the several States" wh nis done by joint resolution ‘or concurent resolution “Supreme Court precedent makes clear thatthe Governor has no role in that process, and that hi signature or approval is not necessary for ratification, See, eg, Coleman o/Mi 1,307 U.S. 433 (1939). So 106) Article I requires action only by the Legislature in appoin ng Electors ane Cong ess in 3 USC, § 2 likewise recognizes this Constitutional principle ‘The Supreme Court has explained that the Electors Clause “leaves it to the legislature exclusively {© define he method” of appointing Electors, vesting the Legis ture with “the broadest possible power of determination” McPherson v, Becker, 146 US 1,27 (1892) This power is “placed absolutely and colly with legislatures.” li. {34.35 (empha is added). In the most recent disputed Presidential election to each the Supreme Cote, the 2000 election, the Supreme Court went on to hold that when a State Legislature app ints Presidential Eleclors—which it can do either through statute or through ditect action —the Legislature is not acting “solely under the authority given by the people of he State, but by virtue of « direct grant of authority made under Att. § 441.2, of the United States Constitution.” Bus ». Pal Beach Cly. Cenoassng Bi, 531 US. xiv thet to make tomporary appointments until the peop epltre nay ie. formphases acted), the vacances by astm th 9.72774 246260 como: RS tocarPre-Decisional & Deliberative/Attrney-Cliet or Lagat Work Product 70, 76 (2000). The State Legislature's authority to appoint Electors is “plenary.” Bush v. Gore, 531 US. 98, 108 (2000) (per curiam), And a State Legislature cannot lose that authority on account of enacting, statutes to join the National Election. “Whatever provisions may be maide by statute, or by the state constitution, to choose electors by the people, there is no doubt ofthe right of the legislature to resume the power an any time, for itcan neither betaken away nor abdicated.” McPherson, 146 US. at 125, ‘The Georgia General Assembly accordingly must have i het authority granted by the US. Constitution to come into session to appoint Elect rs, regardless of any purported limit imposed by the state constitution or slate statute requiring: the Governor's approval. The “powers actually granted [by the US. Constitution} must ¢ such as are expressly given, or given by necessary implication.” Martin : Hunter &Lesee, 14 US. (1 Wheat) 304, 326 (1816). And the prin Iple of necessary implication arises because ou Constitution fs not prolix and thts does nat“provide for mi: ute specification ofits powers, or to declare the means by which those pow ts should be carried into. ‘eweution.” 1d, Otherwise, ina situation lke this one, ifa Gover or were aware thatthe Legislature of his State was inclined to appoint Flector, supporting a candidate for President that the Governor opposed. the Governor coul thwart that appeintment by using to call the Legi latte into session be Gre the next President had been duly: lected. The Constitution does:not empower olher officials to supersede the state legislature in this fashion, ‘Therefore whether called into $ sion by the Governor or by its own inherent authority, he Dep! rtment of Justice urges lhe Georgia General Assembly to convene in special essi n toaddress this pr ssing matter of ovecriding national importance ‘sincerely, Jeffrey A Rosen Richard Donoghue Jeffrey Bossert Clark ‘Acting Attomey General Acting Deputy Attomey Assistant Attorney General General Civil Division ocumast 9: 0:7 274:31269.000001 TeOh Se GoricanntvenGb02221000199Rosen, Jeffrey A. (OD8G) From: Rosen Jelfrey A. (ODAG) sent Soturday, January 2, 2021 7:13 PM To: ‘Donoghue, Richard (ODAG) Subject: RE: Two Urgent Action tems Ae, hans for responding this earler. | conimed again today that mot prepared sign such attr. Jeff from Oonoghve, c(h Semt: Monday, Deceri28, 2020550 04 rendez Certosen, te, Subject RE; Tac Ursent Acton ems set {have onl had 2 few moment to review the daft eter afi cbviouty theresa yes th cathat would have to bethoroughy researched andcscussed, That sid there sneha ee that would sign tH eter or anything remote ite this \Whieit may be tre that the Departments ineesgatingy Hous Fru) ies h the 2020 ection for Present” {something we typkcay would not tate public), the -wstigatons that am aWa-of relate to suspidons of ‘macondic that re of such asmal sclethathey simply would eypact he outcome othe Presidential ecto. |NGBarr medethat deat tothe publcgnlyla eck ard lam net aw feof intervening devloomerts that would ‘change that conclusion. Thus kaow of mothng that would ~ppor thestatemer, "we have dented signfkant Concerns that may have npacted the outcome cf the eee lon nmutplesates” Whe we are aways prepared to ‘recoivecomplinsan@ alegat ons relating t election frauds ard val nvestatetnem as appropriate, we simpy do not carrey havea baslst>ma,e suchastatement, O= pte dramatic daimsto the contrary, we have not szen the {ype of fraud that cals me question the report (afer es} resus ofthe election. Also tre commitment that “the Department wil u date youas we are aon ves gator progress” dublous a5 wedo net typically update non-iow eforcemen, par annel onthe progress {any vestigations, ore important think the Departments oleshould Ince making recommendation toa Stateless avouthow they sul eet tel Consttuionaabgation to appoint Bkctrs. Pursuant o electors use the ScateofGrorla and every oer sag) has aescred the legal process through whieh Hey select thet lecers. Whiethosep ocessesincid the possi tat election resis may all to make choke", tis forthe nda State 0 figure out how © add es hatsution shoud ate, But 3 nate above, theres no reason te condude ‘hater State cutreny Ha.stuaton n whieh tne econ has aledto produce nenoler As AG Ba inated in isp Slecorsment, whith vero doubt that some fraud nas orcredin hilton | have no seen evidence that would inate tha the clection in any nial state wos so detective as to render the resus fundamentally “nveble. Goon that, cinnot enogine a cenaio in ehich the Departrnent would recorymend hat a Stete assemble ‘slope ode ermine whether areas cries lectin resus should somehow be oveidde by epltve Sct, D spite the elermees tothe 1960 Hawai stuston (and other hatoncal anomalies such ase 1876. Elton), Belov ts would be tery without precedent, Even lam acorredt aout hat his would be a rave tp forthe Ovpartrien to ake ant could have temensous Consens, polica| and sola ramon forthe contr. donot beievethat we could even conse such aprapasal thou the type a esearch and discussion ‘that Such amorrentous step warrants, Ooviously, OLC would have tobe nwoivednsuer dBeUsions. a ene1am avatablet discuss this when you ae avsdable after 6:00 pr but fom wherel stand, this nat even within te real of possi From: Clark, Jeffrey (£\ Sent Monday, Deenber 28,2020 4497 Terkown ley A (CT Ooncee, 5 | ‘Subject Two Urgent Action Kems Sef a Ric (1) would ike t have vour authorization to get classified briefing tomorow from ODNI led by DNI Radelfe on foreign election imtrierence issues, Tan then assess how tt relat so aetivaing the EEPA and 2018 EO powers on such matters (now twice renewed by the President). Ifyou had not seen it white hackers have evidence in she public domain) thats Dominion machine as esse the Intermet through sma thermostat witha net connection tril lading back to China. ODNI may have addtional clasifed © idence (@) Attached i. dat eter eonceming the broader topic of elest on iegularitics of any kind. The concept is to ‘send tt the Goveror, Speaker, and President pro temp of gah rel vant sae ty indgate than ight of time urgeney and som evideneeof election iegslaries presented © courts and to legisatiy committees, the Jegilatures thereof should each assemble and make a decsi-about elector appois mati ight oftheir deliberations. [set tup for signature by the three of ws. think we shou get it uta soon as possible Personally, Ise no vali downsides to sending ow the etter I putt toget quickly and would w formal cite check before sending but don think we shold ec unnsoos ary mes grow on this todos ‘(sa small mae, | etl open me signing as AAG Civil_-fer an otder fom Jeff as Acting AG designating ‘me as actual AAG of Civil under the Ted Olson OL opinion thus frecing up the Acting AAG spot in ENRD for Jon Brightbil 3 sume. But that is comparsively mall mate. [wouldn't want ¥ hol! up the loner for that ut conti to think thers so downside with as ew a 28 days left nthe Presid ert sive Jon and I that alded boos in DOS tes) {havea $ pm interna call With the SDNY + OASG + ENRD Toyota team, as Lam tying wo soe that before 1/20, But Tam feet alk on thse or both ofthese subjects crea 6pm (Or fyouwantto reach me att Tr set work venue to home, my col + a