Draft order would have authorized DHS to seize voting machines after 2020 election

Washington —  A draft order circulated among close allies of former President Donald Trump weeks after the 2020 presidential election would have authorized the Department of Homeland Security to seize voting machines and would have involved the Department of Defense in support of its mission.

CBS News obtained a copy of the draft order dated December 17, 2020, and titled “Presidential Findings to Seize, Collect, Preserve and Analyze National Security Information Regarding the 2020 General Election.” The document bears many similarities to a separate draft order dated December 16, 2020, that would have directed the Defense Department to seize voting equipment. 

While it’s not clear from the records what role Trump played in these deliberations, if any, the records do show several options were considered by his team. 

Neither draft order was ultimately issued, and it’s unclear who wrote them. CNN reported Monday that Trump’s advisers had drafted two orders, one for each agency, though the document involving the Department of Homeland Security is being published for the first time by CBS News.

Emails obtained by CBS News indicate both draft orders involving the Department of Homeland Security and Department of Defense were circulated among allies of the president who claimed the 2020 presidential election was rife with voter fraud and attempted to challenge the results of the election. There has been no evidence to support that claim.   

In one email sent the morning of December 17, 2020, retired Army Colonel Phil Waldron wrote to a small group including Bernie Kerik, the lead investigator for Trump’s legal team and Rudy Giuliani, the former president’s personal attorney: “Final draft finding — includes DHS switch language as well as Foreign interference expansion and warrant issuance language.” 

Waldron attached to the email the draft order, as well as eight pages of information about Dominion Voting Systems, a voting software company at the center of the conspiracy theories peddled by Giuliani, and Kavtech Solutions, a Pakistan-based firm that has also been mentioned in false claims about the integrity of the election by Waldron.

A co-founder for Kavtech Solutions, Syed Afaq Ahmed, told CBS News, “Our linkage to Pakistan Intelligence is laughable only as we have no connection whatsoever with any military organization and political party. We are hardcore Tech people working the domain of data management and providing services to our clients from past 8 years.”  On its webpage, Dominion Voting referred to fraud claims about its voting systems and the election as “baseless” and “fully debunked by election authorities, subject matter experts, and third-party fact-checkers.”

The order would have authorized the secretary of Homeland Security to “seize, collect, preserve, protect, retain and analyze all machines, equipment, electronically stored information, and material records required for retention” under a federal law governing the preservation of election records. It also would have given the Department of Homeland Security power to “immediately seek the issuance of any and all search warrants and other warrants or legal powers as may be necessary to carry out and execute this directive.”

Under the draft order, the Office of the Director of National Intelligence would have 60 days — into February 2021 — to examine the voting machines and information about the 2020 election. The document would also have empowered the secretary of Homeland Security to “request the Secretary of Defense to provide select personnel/capabilities by name or by unit (federalization of appropriate National Guard assets authorized) in support of a Defense Support to Civil Authorities (DSCA) mission.”

The draft document does not include a signature line for Trump.

Kerik confirmed to CBS News that the draft orders were circulated by Waldron to members of both Giuliani’s legal team and a group led by attorney Sidney Powell as they discussed ways to preserve evidence of supposed fraud.

Another email obtained by CBS News was sent by Waldron to Flynn, among others on December 16, 2020, and included the draft order that would have authorized the Defense Department to seize voting equipment.

In a separate email Flynn sent to Waldron roughly 35 minutes later, Flynn writes: “I reviewed. Fix the spelling error in the title. Ensure it gets a legal review, but this is ready to go from my standpoint. Thanks for getting the key points in.”

This draft order misspelled “analyze” as “analyize” in the title and did not have a signature line for Trump.

Days after the documents were exchanged, Trump held a meeting in the Oval Office on December 18, 2020, that involved Giuliani, Flynn and Powell, during which an idea to seize voting machines was floated, Axios reported at the time.

The documents reveal the key figures outside the White House who were involved in efforts to reverse the outcome of the 2020 presidential election and keep Trump in office, despite the certification of election results from all 50 states and dozens of unsuccessful court challenges to the results in key states. 

Kerik confirmed to CBS News he participated in a mid-December call with Giuliani and Ken Cuccinelli, then-acting deputy Homeland Security secretary, during which Giuliani asked Cuccinelli whether the agency had the authority to seize voting machines. In a follow-up phone call, Giuliani informed Kerik that Cuccinelli said the Department of Homeland Security did not have the power to do so, Kerik said. 

Politico first published the draft order that would have authorized the Defense Department to seize voting equipment. It was obtained by the House select committee investigating the January 6 assault on the Capitol and was among the tranche of records Trump’s lawyers attempted to keep from the panel. The Supreme Court last month declined to block the release of the documents from the Trump White House to the select committee, clearing the way for the National Archives to hand over the tranche of more than 700 pages.

Kerik told House investigators that the draft order to seize voting machines was one of several ideas Trump’s legal team considered in order to “preserve evidence of votes,” CBS News reported last week. Kerik testified before the House panel last month for roughly eight hours and said the idea to use the military to secure ballot boxes was the brainchild of Waldron. 

The draft orders are one part of an extensive effort mounted by Trump and his allies to keep the former president in power by calling into question the legitimacy of the 2020 election. Trump and key aides also mounted a pressure campaign targeting then-Vice President Mike Pence, in which they sought to convince him he had the authority to reject state electoral votes during the joint session of Congress on January 6, which was temporarily halted by the violent breach of the Capitol by a mob of Trump’s supporters.  

Pence determined he lacked the authority to cast aside electoral votes, but Trump continues to claim the vice president could have done so, saying in a statement Sunday that Pence “could have overturned the Election!”

Read the full draft order here: