# Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021)/10:02am

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​For RICHARD PETER DONOGHUE:
GREG ANDRES
CHARLES KLUG
KATHERINE SWAN
BROOK JACKLING
Davis Polk
901 15th Street, NW
Washington, D.C. 20005 ​ This is a transcribed interview of Richard P. Donoghue, conducted by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, pursuant to House Resolution 503.
Mr. Donoghue, I see that you are present in a conference room with your counsel. Could you please state your full name and spell your last name for the record? I think you are muted, or I can't hear you.
Mr. Donoghue. Is that better?
That's it. Perfect. Thank you.
Mr. Donoghue. Good morning. My name is Richard Peter Donoghue, D-o-n-o-g-h-u-e.
Thanks very much, Mr. Donoghue.
This is a staff-led interview. Members of the select committee may join. I expect some of them will join, and I'll ensure that their presence is noted when they arrive at an appropriate place to stop.
My name is , it's and I'm the chief investigative counsel for the select committee. And with me today in Washington are several investigative counsel to the select committee: and .
And, Katy, the court reporter, we will make sure that we get those spellings to you so that you have them.
and I are going to be doing the primary questioning today. Don't worry, Mr. Donoghue, you are not going to be hit with six different people questioning you out of the blue. We're going to -- and I are going to handle the questioning. And some of our members of the select committee, as I said, will join and may also have ​questions.
I understand that two lawyers from the Department of Justice are also present. , if you and can introduce yourselves for the court reporter.
Ms. Antell. Kira Antell, Office of Legislative Affairs.
Mr. Weinsheimer. Brad Weinsheimer, Office of the Deputy Attorney General.
. All right. And Greg Andres, I see from Davis Polk, who is Mr. Donoghue's counsel. Greg, do you want to introduce yourself and your team as well?
Mr. Andres. Sure. Thanks, , and good morning. Greg Andres from Davis Polk. With me here in New York is Kate Swan and Charles Klug, both from Davis Polk. And on the video is Brook Jackling, who is in D.C. Thank you and good morning.
Great. Thank you and good morning.
I understand that our vice chair, Representative Cheney, is on.
Ms. Cheney, are you able to see and hear us?
Ms. Cheney. I can see and hear you, I'm not sure if you all can see and hear me. I'll try to sort that out if you can't, but good morning to everyone as well.
Okay. Great. Glad you are here as well.
So there's a court reporter, since this is a transcribed interview, and she will be making a verbatim transcript of the interview, please, Mr. Donoghue, answer each question verbally. You know, she doesn't obviously record head nods or shakes. She may ask you to repeat an answer or ask you to slow down. Just keep in mind that she's typing as you speak. I know you've been through this before and know how this works. She'll generate a transcript. It will be sent to your counsel for you to review and ensure that it's accurate before it is finalized.
I also understand that Congresswoman Murphy has joined us.
​Congresswoman Murphy, are you on as well? Are you able to see and hear us?
Mrs. Murphy. I am on. I'm going to leave my video off though if that's okay, but I want to verify that it's me.
Good. We can see and hear you. Thank you for joining us.
Okay.
Mr. Donoghue, now, you—this is not—you are not under oath. That said, this is an official proceeding of the House, and a false statement could be 1001 violation. Of course, you know to tell the truth at all times. And, if you can't recall specifically an answer, then just say so. Ask me to repeat a question if it's not clear. If it is—you need clarification before you answer, just ask me to repeat or rephrase, and I will do that.
If you need any time to consult with Mr. Andres or your other attorneys, that is totally fine. We will stop and give you that opportunity. If you need a break at any time, that's fine as well. We'll take breaks periodically, but if you need one, just say the word, and we'll stop.
Our essential agenda for the day, we're going to break this into essentially two halves. The first half will be to talk a little bit about events around the time of the election, meetings and conversations you had with the President, former President and others in the White House, about allegations of election fraud. That should take up the morning, about 2 hours or so. Maybe we'll take a break, midday break for lunch.
And then we'll resume in the afternoon with some questions about preparation for and events of January 6th itself. will be the one asking you those questions. And I'll periodically stop. Members of the committee may have questions, other counsel here. Everyone will have a chance to ensure that we get the benefit of your experience. I hope that we are finished mid-afternoon. It sort of depends on how quickly we can march through that subject matter.
​Do you have any questions for me before we get started?
Mr. Donoghue. I don't. Thank you.
EXAMINATION
BY :
Q Okay. Okay. Great. So I want to start just with a couple questions, Mr. Donoghue, about your background. I understand that you enlisted in the Reserves when you were 17 years old. Is that right?
A Yes. I enlisted in the Army Reserves and the Military Police Corps when I was 17.
Q Tell me a little bit about your military career.
A I served in one capacity or another more than 20 years, initially as an enlisted soldier, later as a cadet, and then as a commissioned officer. I spent 7 years on Active Duty after law school and the Judge Advocate General's Corps. I spent most of that time at Fort Bragg. I spent 3 years in the 82nd Airborne Division, a year at XVIII Airborne Corps serving in a variety of roles: prosecutor, defense counsel, legal assistance attorney, ethics advisor, administrative attorney, and probably a couple of other things as well.
After 7 years on Active Duty, I was put to the Individual Ready Reserve. In 2000, when I left the Army to join the U.S. Attorney's Office in the Eastern District of New York, and I ultimately resigned my commission sometime in 2006.
Q I see. So you were a reservist from 2000 to 2006 when you were an AUSA?
A Correct.
Q Okay. Let's talk about your time as a prosecutor. You were in the Eastern District of New York as an assistant for 11 years. Is that right?
A Just under 12, right, from 2000 until November of 2011 when I left. I left as ​the chief of the criminal division.
Q And, generally, for the record, what does the criminal chief in a U.S. Attorney's Office do?
A In the Eastern District of New York, the criminal chief oversees about 120 or so AUSAs divided into eight different sections. We have two offices in the Eastern District of New York—one in Brooklyn, one in Central Islip on Long Island—and, basically, along with a lot of other supervisors within the Criminal Division, operates the division, the prosecutions, and the investigations pursuant to the instructions of the U.S. attorney, who, when I left—actually, when I started in 2000 was Loretta Lynch and when I left in 2011 was Loretta Lynch.
Q And she had left and come back, right? whole time? She wasn't the U.S. attorney that whole time?
A Correct.
Q Right.
A Right, I worked for a number of U.S. attorneys.
Q Fair to say that the criminal chief supervises all of the criminal litigation in the U.S. Attorney's Office reporting just underneath the U.S. attorney?
A Yes, that's right. We never had a first assistant when I was the criminal chief, so my reporting chain was directly to the U.S. attorney.
Q Got it. Okay. So you left in 2011. the U.S. Attorney's Office? Is that right, Mr. Donoghue, you left the U.S. Attorney's Office?
A Yes. I went to a software company where I stayed for about 6 years. It was a Fortune 500 software company on Long Island.
Q What was your role there?
A I was ultimately the chief of worldwide litigation. I initially was brought in ​to handle U.S. litigation, but in about 3 or 4 months into the job, the general counsel asked me to take over worldwide litigation. We were in 45 countries. We had litigation all over the world. So I spent the vast majority of my time working on litigation matters, but I also did other things, M&A work, help with compliance, and various things like that across the company.
Q At some point, did you return to the Justice Department?
A I did. In January of 2018, I got to return to my old office to serve as the U.S. attorney for the Eastern District of New York.
Q And tell us a little bit about the process by which you got that job. How were you appointed U.S. attorney?
A I was actually appointed by the Attorney General. There were a number of us—I think 17 or 18—appointed on the same day in early January. The way that works is you are appointed by the Attorney General for a 120-day term. At the end of that term, either you leave or the court continues you as U.S. attorney or potentially you are nominated and confirmed by the Senate in that time.
Given the political situation in New York and the fact that we had no Republican Senators in New York and Senators typically play a key role in selecting U.S. attorneys, there was no expectation that we would be nominated and confirmed by the Senate.
So the U.S. attorneys in New York, New Jersey, and other places all came in through this mechanism whereby the Attorney General appointed us, and I think the expectation was that, because we were known to the court and trusted by the court, that the judges would continue us in office, and that's what happened in my case. So I continued as the U.S. attorney until I moved to Washington in July of 2020.
Q I see. So initially appointed by the AG, and then that appointment was 25 maintained by the judges in the Eastern District, never Senate—never nominated and ​Senate-confirmed?
A Correct.
Q Okay. The big priorities when you were U.S. attorney, do you have a couple of highlights of significant prosecutions or issue priorities that you pursued?
A A big priority for us for a long time has been violent crime. We have a significant MS-13 problem in the Eastern District of New York. There were a lot of MS-13 murders in 2014, '15, and 116, and so we focused on those a lot. Thankfully, we were able to drive those numbers down significantly.
Another big issue was opioids. As with the rest of the country, we're suffering through the opioid epidemic. So we're dealing with that. And we also had a number of what I guess people consider to be high-profile cases, such as the prosecution of El Chapo, the cartel leader, who was arrested well before my time in the Eastern District but went to trial while I was the U.S. attorney.
Q All right. So being U.S. attorney is a great, great job, and you left it to come to Washington to serve in the DAGTs office. Tell us, A, what was the job in Washington that lured you here from Brooklyn, and why would you leave being U.S. attorney to come to the DAG's office?
A Apparently I was not thinking clearly. You are right; being a U.S. attorney is a great job. It's everyone's dream to get to come back to your office and do that, and I was very lucky to have the opportunity to do it. I was involved in things in D.C. from the time I became U.S. attorney.
I think my first month on the job I got a call from Rod Rosenstein, who said that he wanted me to serve on the AGAC, the Attorney General's Advisory Committee. So I was happy to do that. I was participating on the main AGAC committee, as well as several subcommittees. I was the chair of the Terrorism and National Security Subcommittee. ​I was on the White Collar Subcommittee, as well as a few others.
So I was very involved in things going on in Washington to begin with, and part of that was just the size of the district, the work that we were doing, and just the ease of me being able to get back and forth to D.C. versus, you know, some of my colleagues who were a little farther away.
So I did that for a time. I got involved in a number of other things in D.C. I was on an MS-13 Working Group, Elder Fraud Task Force, Rule of Law Working Group. And I was these were all positions that I was asked to take on mostly by Attorney General Sessions or DAG Rosenstein, but then, as the AGs and the DAG switched out, that continued once AG Barr started, and he had asked me to come to D.C. on a number of occasions to work on different things.
Nothing really quite seemed right. But, in June of 2020, we, of course, were in the middle of COVID. The operations at the office had slowed down considerably. There was an individual who had been my criminal chief who was serving as the PADAG. I knew that he had gone down there in hopes that he'd be back in New York in a year. I think he was at 14 or 15 months at that point, and I know he was hoping to be able to come back to New York.
There was not a tremendous amount of work in terms of criminal investigations and prosecutions being done in the office at that time, and I thought by going to D.C. that it would be an opportunity for me to get down there, work at Main Justice, and get a better understanding of the organization from that angle.
So, when the AG asked me to go down in June, I thought about it for a day or so, discussed it with my wife, and then told him I would be willing to switch places with Seth DuCharme, who was the PADAG. I would go in as the PADAG, and Seth would come back and get to serve as U.S. attorney.
​Q I see. So you and Mr. DuCharme essentially switched places. You came to Washington to serve as the PADAG, and he went to be the U.S. attorney in the Eastern District of New York?
A Yes, that's right.
Q And that was, Mr. Donoghue, you said, June of 2020, is that right, or was it 2019?
A I think the actual switch was July of 2020, so it was in the middle of COVID.
Q Got it. Okay. All right. I wanted to stop for just a minute and introduce Congressman Schiff, who is a member of the select committee. I think Congressman Schiff has joined us remotely. I want to make sure his presence is noted as well.
A Good morning, sir.
Q Mr. Donoghue, you are using the acronym PADAG. What does that stand for, and what does the PADAG do?
A The PADAG is the Principal Associate Deputy Attorney General. There are a number of Associate Deputy Attorneys General, about a dozen or so. And the PADAG, essentially within the organizational chart, sits on top of them and serves as the—sort of the right-hand executive to the Deputy Attorney General. So, in that position, I was the number two to the number two for the Department.
Q Right. And, when you came in July of 2020 to serve as PADAG, who was the Deputy Attorney General?
A At that time, it was Jeff Rosen.
Q Okay. Did you have a prior relationship with Mr. Rosen, worked with him, knew him?
A A little bit, yes. Certainly, all the U.S. attorneys report up to the Deputy Attorney General, as do the heads of the different agencies within the Department. So ​he was my boss. I knew him. He had come to New York on at least one occasion, visited the office. We had worked together on a number of different things. I had a lot of respect for him. I thought he was a great lawyer. So I was more than happy to go to Washington to work for him.
I see. Sorry again for the interruption, but Representative Lofgren has joined us, another member of the select committee.
Good morning, Ms. Lofgren.
Good morning, Ms. Lofgren.
Ms. Lofgren. Good morning.
Mr. Donoghue. Good morning.
    BY :
Q So if I could get Mr. Donoghue to go back to the question set. Mr. Rosen approved of or even solicited this move for you to come and serve as his PADAG?
A Yes. We talked about it. It was originally raised by AG Barr. I did talk to DAG Rosen about it, and he said he'd be very happy to have me come down there and help him out.
Q Okay. So, just a few months after you joined the DAG's office to serve as the PADAG, you—Mr. Rosen became the Acting Attorney General. How did that affect your status in terms of your title and what you did day to day? We're now in December of 2020.
A Right. AG Barr submitted his resignation to the President on December 14th. It was effective, I believe it was, midnight of December 24th. So he effectively left the office on December 23rd. And, upon his departure, DAG Rosen became the Acting Attorney General, and I became essentially the person exercising the authority and holding the responsibility of the Deputy Attorney General.
I did not use the term "Acting Deputy Attorney General," although most other ​people did because, under Federal personnel law, if the person holding the title is still in the Department, you don't use the acting title. So, although a lot of people refer to me in emails and elsewhere as the Acting DAG, I didn't actually use that title myself.
Q I see. But, in effect, you functioned as the Acting Deputy Attorney General even if Federal personnel laws didn't allow you to use that title. Is that fair?
A Yes. That's correct.
Q Okay. And then you—I'm going to come back, obviously, to a lot of detail about what occurred during the time that you were acting as the DAG, even without the title. But I just want to finish with respect to your DOJ career. When did you actually leave the Department?
A So I left Washington at the end of January. I was there through the transition. Because I was a career employee as opposed to a political employee, I did not have to leave at the end of the administration, but, of course, that had always been my intent to leave.
I was on detail from the Eastern District of New York to Washington. That detail expired January 31st. I returned to New York. I took leave. I had, you know, many weeks of leave saved up. So I took leave. I did some work in the Eastern District of New York, really just wrapping up cases and records and things like that. And then I ultimately retired in April of this year, April 2021, from the Justice Department.
Q I see. And then are you currently employed?
A No. As I said, I retired in April. I've been in discussions with—took the summer off basically, and I've been in discussions with a number of law firms, and I expect to be starting one in the next few weeks.
Q Got it. Okay. All right. Let me go back now into a couple of things that happened when you were in that Acting DAG capacity. Is there at the Department, ​Mr. Donoghue, a policy on contacts with the White House?
A Yes. There is a White House contacts policy.
Q Generally describe what it says. What is the essential thrust of the White House contact policy that applies to personnel across the Department?
A Essentially what it does is it limits the contact between the White House and the Department to certain levels within the Department in order to ensure that there is some distance maintained between the White House and the Department. So it sets forth who can talk to personnel at the White House and what types of matters they can talk about.
Q I want to turn your attention, if I can, in your binder. And, for the record, we've provided your counsel with all the exhibits that we're going to use in advance. And if you could just turn to exhibit 1, to an email, Mr. Donoghue, that you sent on November the 11th of 2020 at 6:27 p.m. Do you see that document in front of you?
A Yes. I have it.
Q Okay. Tell us what that is.
A It's an email I sent out on Veterans Day, November 11th, at 6:27 in the evening, to the Assistant Attorneys General, the AAGS, who ran different components within the Main Justice headquarters in Washington.
Q Good. So Assistant Attorneys General, to be clear, are the component heads. There's one for civil rights and one for antitrust and one for civil, for all the litigating divisions of the Department?
A Correct.
Q And you sent this email to them, and tell us what was attached to the email.
A The DOJ White House contacts policy—
Q In the—
​A —which was also the—
Q —email—
A —attached exhibit.
Q I am sorry. Go ahead. I didn't mean to interrupt you.
A It's dated May 11th, 2009, and it was attached to the email that I sent out.
Q Okay. So, on November 11th, you sent the White House contacts policy out to all the Assistant Attorneys General?
A A Correct. It looks like it also sent out the White House version of this as well. They have a parallel policy.
Q Okay. Why, Mr. Donoghue, did you send that out to the field or to the AAGs November 11th, like a week or so after the election?
A I sent this out pursuant to a discussion I'd had earlier that day with Will Levi, L-e-v-i. Will was AG Barr's chief of staff at that point. I don't remember the specifics, but I remember Will saying that he had sent this out to people on the AG's staff, and he thought it might be prudent to send it out to the AAGs.
We were in the post-election period. You know, there was a tremendous amount of churn in terms of election fraud allegations. And, I forget exactly what Will said, but he said something to the effect of "let's make sure people are aware of the policies and remind them of the policies so that no one stumbles over a line," something to that effect.
Q Was there concern, in your view, that people without warning might stumble over the policy by getting outreach from the White House?
A I didn't have that concern with regard to the AAGs certainly. But, again, Will suggested I send it out. There was no harm in doing so. I thought it was prudent, so I just sent it out.
​Q Okay. When you sent it out, Mr. Donoghue, just looking at your email, you say, "While we are living in distracting times, it is imperative that we ignore the noise and remain focused on the responsibilities in our respective lanes and that we keep our teams doing the same."
Just share with us what you mean—what you meant when you said we're living in distracting times and that we need to ignore the noise and remain focused on our responsibilities.
A So, as I said, there was a tremendous amount of churn following the election, certainly leading up to the election, but we had hoped that that would calm down after the election. That was not the case. So there was a lot of noise about the election. There was a lot of noise about whether the results of the election were reliable.
We have some responsibilities with regard to that, but really only a small subset when you look at the whole picture. So I just wanted the people in the Department to continue working on the things that we work on day in, day out without being distracted by the political drama that was playing out.
Q Did you get any feedback from recipients of the email that you remember?
A I don't remember. I might have, but I don't remember.
Q Okay. And then, to be clear, there is really two attached documents. There's one that's dated May 11th of 2009, signed by then-Attorney General Holder, and then a second, January 27th, 2017, that the White House version that is from then-White House Counsel McGahn, and they essentially say the same thing. Is that right?
A Yeah, they parallel one another to limit the communications from both ends.
Q Yeah. Reading from page 2 of the 2009 document at the very top, it says: ​Initial communications between the Department and the White House concerning pending or contemplated criminal investigations or cases will involve only the Attorney General or the Deputy Attorney General, from the side of the Department, and the Counsel to the President, the Principal Deputy Counsel, the President or the Vice President, from the side of the White House.
That essentially is the core of it, right, Mr. Donoghue, that only the AG and the DAG will talk to the White House counsel or the President about pending or contemplated criminal investigations?
A Yes, that's the core of the policy.
Okay. I understand as well that Congressman Raskin has joined. Congressman Raskin, can you see and hear us as well?
Mr. Raskin. Yes, I can. Thank you.
Great. Okay. Okay. Great.
    BY :
Q All right. Let me move you ahead now, Mr. Donoghue, if I can, to the November the 9th of 2000, and this is not reflected in a document, but is there a memo sent from Attorney General Barr out to the U.S. attorneys regarding their authority to investigate allegations of election fraud?
A Yes, AG Barr did send out a memo that day to not just the U.S. attorneys, but think it was also the AAGS who had election-related responsibilities within Main Justice as well as, I believe, the FBI Director.
Q Okay. And does that memo, the instructions in the memo, reflect a change in policy from the Department in terms of the pursuit of allegations of election fraud?
A I would say it reflected a slightly different approach, a change to practice rather than policy, and this is—
​Q Okay. Describe that for us.
A So the—let me explain the organization a little bit.
Q Yes.
A Within the Criminal Division that sits at Main Justice, there is a section called the Public Integrity Section. Within Public Integrity, there is the Election Crimes Branch, ECB, and ECB had expertise in conducting election-related investigations. And so they were a resource to the 94 U.S. Attorney's Offices around the country.
There was, in the Justice manual, a number of requirements relating to consultation with the ECB, and that's common to have consultation requirements with different Main Justice components. There are also situations where you have approval requirements, where a U.S. Attorney's Office cannot go forward without getting the approval of certain Main Justice components.
ECB, because of their expertise and their role, published a manual—I forget the exact title, but it was essentially the election crimes manual. And, in there, they had over years developed and stated a practice, and this is an oversimplification, but the practice essentially was to not conduct investigations in real time while elections were going on, wait for the elections to be completed and certified and for the election winner to take office essentially, and then conduct investigations.
Obviously, this meant that you could not then address any fraud that may have contributed to the outcome of the election. Their thought was we should be conducting investigations essentially after the fact in an effort to deter misconduct in future elections.
That made a lot of sense, and there's certainly merit to that approach. I would call it a practice rather than a policy. This was not something issued over the signature block of an Attorney General or Deputy Attorney General or anything like that. An ECB ​doesn't have the power to make policy for the Department, but this was the practice of the Department generally.
There were always exceptions to that and the manual itself talks about exceptions and says this is the general rule and things like that. Obviously, you've got to exercise judgment in particular circumstances.
What AG Barr was concerned about, and what's reflected in the memo, is that this was a very unique situation and that, because there was so much at stake, because there was no way to redo a Presidential election, and because we had so many allegations coming in that called into question the outcome of the election, he wanted us to move away from that very passive approach and take a more proactive approach because he felt, as he explained to me and I heard explained to others throughout this time period, the American people have to trust the outcome of this election. If there's fraud that impacted the outcome of the election, they should know. If there's fraud allegations and we find that those are not supported by the evidence, the American people should know that as well.
So he wanted to take this more proactive approach. He wanted to give the U.S. attorneys the authority to do that, and I think they had that authority anyway. But the reality was, the way things had played out within the Department, the ECB acted as if they had approval and disapproval authority over the work of the U.S. Attorney's Offices. They did not. Their authority, their consultation authority wasn't changed by the November 9th memo. It remained the same.
But the individual AUSAs in those different offices around the country were very, very reluctant to go forward with any election-related matter without ECB concurring. So if ECB did not concur, typically the election would—investigation would stop in its tracks.
​And this was creating problems because you had U.S. attorneys who want to investigate things and their own assistants saying, well, we're not going to do it because ECB is not concurring. And then you had a parallel problem within FBI because ECB coordinated with FBI's public corruption branch in Washington, and the public corruption branch in FBI was very reluctant to go forward with anything without ECB's concurrence. And so, even if you had FBI leadership in the field saying we ought to investigate this, again, their own agents would say, well, we can't go forward because public corruption branch says ECB won't approve.
So there was definitely conflict here between the AG's approach and ECB's approach. There's merit to both approaches. I get that. But the AG made a decision based on the unusual facts and circumstances that we found ourselves in, and even after he made that decision, there was what I would describe as foot dragging by ECB and others with regard to this approach that the AG wanted to take.
Q I see. Okay. So summary: AG Barr authorized U.S. attorneys explicitly on November 9th to go ahead and conduct investigations of allegations of election fraud rather than wait until the results were certified, as had been the prior practice and ECB as the gatekeeper?
A Generally, that's right, and he gives some guidance in the memo itself as to what would or would not warrant any sort of Federal investigation.
Q All right. What was your role then, Mr. Donoghue, going forward as the PADAG in terms of U.S. attorney investigations of allegations of election fraud? What role did you specifically in your office play as those after the memo was issued, those investigations moved forward?
A So, even prior to the memo, as the PADAG, I had a tremendous amount of interaction with the U.S. attorneys. That is in part because of the role, of course, but ​also because I'd been a U.S. attorney, and I knew every U.S. attorney in the country, and I was very close to and friendly with a number of them. And so it was quite natural for us to be talking on a regular basis about what was going on whether it was related to the election or otherwise.
After this memo, I had a number of conversations with U.S. attorneys around the country about their investigations and also the challenges because not everyone was on board with the AG's approach.
Q So you served sort of a coordination or deconfliction role for the Department on matters of election fraud?
A Yes. There wasn't so much conflict, but we had some instances where, you know, an allegation was made in, say, a swing State and you had multiple U.S. attorneys in that swing State and you didn't want all of them investigating the same thing. So there was some deconfliction. But it was mostly reporting up and saying that, yes, the U.S. attorney in this State is aware of the allegation and they're on top of it.
It was up to them to decide what to investigate and how to investigate it, if to investigate at all. But the concern was, is someone looking at this? You know, I think the AG stated it as we can't be sitting on our hands. As long as people are aware of the allegations and they're acting appropriately, that's fine. Leave it up to the U.S. attorneys to figure it out.
Q And you just said, Mr. Donoghue, that you reported up. Were you in regular communication with DAG Rosen and AG Barr about the fact that these investigations were going forward in the U.S. Attorney's Offices?
A Yes. Being part of the Department leadership, we met with the AG every morning at 9 o'clock in his office. So we had those daily meetings. I also had regular contact with the AG outside of those 9 a.m. meetings. The DAG and I worked side by ​side all day every day. There's one door between our two offices. I was constantly in his office. He was constantly in mine. So anything that I knew he would have known for the most part within a few minutes.
Q Yeah. So, on December the 1st of 2020, Attorney General Barr publicly announced that the Department had found no evidence of systemic election fraud sufficient to undermine the outcome. Do you recall that public statement?
A Yes, I do.
Q All right. Were you involved in formulating that conclusion, his conclusion that there had been no evidence discovered of systemic election fraud?
A I think his conclusion reflected the input we were getting from the field. So I helped channel some of that information up. So I shared his view. He also talked, in some instances, directly to the U.S. attorneys, which was not unusual either. So he was getting that not only through me and through DAG Rosen but through U.S. attorneys. So I did not formulate his statement that day in any way, but it was consistent with everything I had seen.
Q Okay. So you are anticipating my next question. That statement was the product of a number of U.S. Attorney's Offices pursuing allegations yet finding no evidence of systemic election fraud. Is that right?
A Yes, that's right.
Okay. Let me stop there and see if Ms. Cheney or Congressman Schiff, Ms. Lofgren or Ms. Murphy have any questions for Mr. Donoghue?
Ms. Cheney. I have none, .
I'm sorry? Go ahead, Ms. Cheney. Did you say you do have one?
Ms. Cheney. No. I said I have none.
​ Have none, I see, okay.
Mr. Schiff. I don't have any questions either at this point. Thank you.
Okay. Thank you, Mr. Schiff.
Mr. Raskin or Mrs. Murphy or Ms. Lofgren, anything from you?
Mrs. Murphy. Nothing here from Murphy, thank you.
    BY
Q Okay. All right. Then, Mr. Donoghue, let me go ahead on to the next tab in your binder, which is exhibit 2. Now, a little bit after Attorney General Barr has issued his December 1st statement, an email exchange that you have with David Bowdich, who I believe at the time was the Deputy Director of the FBI. Do you remember this exchange?
A Yes, I do.
Q All right. Does this reflect some of that tension that you described before between the Public Integrity Unit and the election—the ECB and the U.S. attorney or the FBI about authority to investigate specific allegations of election fraud?
A Yes. This is one example of how that tension was playing out within the Department.
Q All right. If you go all the way back to the beginning of the email, the first page is an email from Corey Amundson probably—it looks like to someone—it's redacted, but it looks like someone in the FBI, where he is setting forth the ECB view that DAG should be essentially the gatekeeper for authorization of investigative activity. Is that right?
A Yes, I think that's generally what he's saying.
Q And he says PIN does not concur in any overt investigative activity, including the proposed interviews, essentially saying that he doesn't think that there should be ​investigative activity about this allegation in Georgia?
A That's essentially what he's saying, yes.
Q All right. So then David Bowdich brings this to you for resolution, and you respond, Mr. Donoghue, with the last email in the chain, essentially saying go forth and do the interviews. Can you explain to us sort of what your position was when this conflict arose between ECB and the FBI agents in Georgia who were asked to do these interviews?
A Right. So, if I'm remembering this allegation correctly, this had to do with the State Farm Arena and Fulton County ballots. And there was some allegations being made in, I believe, in civil litigation but also just generally out there in the media that there was a video that showed, in fact, that ballots, apparently fraudulent ballots, had been smuggled into State Farm Arena, and that, after the observers were sent away in some nefarious way, that these fraudulent ballots were then processed, and that somehow impacted the outcome of the election in Georgia.
The ballots were available, obviously, at State Farm. The video was out there on the internet. There were various people involved, and the Attorney General and the U.S. attorney and at some point Dave Bowdich all looked at this, and we determined that we could do a brief investigation to determine whether any of that could possibly be true, particularly given how close the election was in Georgia.
And so FBI decided to go ahead and do limited interviews of the witnesses, review of the videotape, that sort of thing. And I think they were going to work this one in conjunction with the Georgia Secretary of State's Office. That was fine. That was entirely up to FBI and the U.S. Attorney's Office as to who they were going to work these cases with, if anyone.
But, again, you see this playing out where PIN says, well, we don't want you to go ​ahead and interview the witnesses. Ultimately, they did. I think they interviewed about a dozen witnesses who were at the facility that night. The interviews of the witnesses, the review of the video ultimately revealed that there was nothing nefarious. There was no evidence on the video that fraudulent ballots were smuggled into the facility.
The observers did leave early, but that was more a matter of confusion about how late the ballot counting would go on that night, and it didn't seem like there was anything nefarious it to.
So, ultimately, in this particular example, we were able to determine that the allegations were not well founded, and this is one of the examples that fed into AG Barr's view that he announced publicly that there was not evidence that there was fraud sufficient to change the outcome of the election.
Q I see. So the FBI looked into it, essentially found the allegation about fraud was unfounded and that the integrity of the ballots at the State Farm Arena was not infected with fraud?
A Correct.
Q Okay. Similar allegation arises in Michigan, if you could turn to exhibit 3.
A Yes. I have it.
Q Moving forward about a week, this is December the 14th. There's an email from Molly Michael to Jeff Rosen, and it attaches some talking points from Antrim County, Michigan. Do you recall getting this forwarded to you, Mr. Donoghue, and being familiar with both the allegation and then the subsequent investigation of the issues in Antrim County?
A I don't believe that DAG Rosen forwarded this email to me, but I did have the report itself separately. And what happened in this situation was I believe, on the 13th ​of December, which was Sunday, pursuant to some civil litigation that was going on in Michigan, this group, Allied Security Operations Group, made public this report of theirs.
Just to back it up a minute, Antrim County in Michigan had some litigation that was in State court. The Department was not involved in that whatsoever. We had no involvement. But, pursuant to that State litigation, a judge allowed the plaintiffs and their experts to look at the voting machines in Antrim County, and those were Dominion voting machines. Dominion is widely used around the country, both their hardware and their software.
Q And, just to stop you for a minute, this State litigation is brought—initiated by former President Trump and his—others acting on his behalf, essentially making an allegation that those ballots were somehow infected, unreliable, and that's playing out in State court?
A I don't believe so. I think this was brought by a private citizen. I don't think this was brought by the campaign. But whether that was someone who was in some way allied with the President's campaign, I don't know, but from my recollection, there was a private citizen who was challenging, if not the Presidential election, maybe something else on that ballot.
But, regardless, a State court judge said that the plaintiffs could go in, look at the hardware, look at the software, and do their own analysis. And, supposedly, that's what produced this report from Allied Security Operations Group. That came out on Sunday, the 13th. I believe this was attached to some sort of application in the State court proceeding, and so it became public. It was all over the internet. There was a lot of talk about it.
The allegation here essentially was that this forensic review indicated that the Dominion machines produced a 68-percent error rate. Now, obviously, if the Dominion ​machines produced a 68-percent error rate, we had a huge problem with the election.
So this came to us on Monday. I was certainly aware of it Monday. I might have been aware of it on Sunday as well when it first hit the news because I was trying to track these things. When Jeff Rosen received this email from the President's secretary, I was up on the fifth floor in Attorney General Barr's office. So I didn't get this from DAG Rosen.
As I was leaving AG Barr's office around 5 p.m., close to 5 p.m., he brought this up. I don't know if we discussed it earlier in the day as well, but he brought it up, and he said: Are you aware of this report out of Michigan?
I said: Yes. I hadn't read the report, but I'd seen the headlines.
And he said, essentially: Make sure the U.S. attorneys are aware of it. Make sure we're on top of this thing. Make sure we're taking a look at it.
And so, as I left his office, his secretary, sits right outside his door. He said something to the effect of " has copies of the report."
So, as I left his office, I said to : Do you have copies of this Michigan report?
She said: Yes. I have them on my computer.
I said: Great. Can you just send them to the U.S. attorneys in Michigan so they have them.
And so you see that on tab 4. That's sending it out, correctly noting that it was pursuant to my instructions because I wanted to make sure that the U.S. attorneys in Michigan had their report, and they were aware of the allegations.
Q Yeah.
A I think—
Q I just want to make sure for the record I'm clear, so exhibit 4—you are, ​again, anticipating exactly where I'm going—you take this report, the ASOG report, and ask that it be sent to the two U.S. attorneys for the two districts in Michigan for them to evaluate and potentially pursue. Is that right?
A Correct. And, again, I was upstairs on the fifth floor. So I wasn't even aware that DAG Rosen had received this from the White House down on the fourth floor 2 minutes prior.
Q Okay.
A But this report was everywhere and obviously was something we were going to have to look at because if there was any possibility that there was a significant error rate with the Dominion machines then that would create a lot of issues for the election.
Q Yeah. So tell us then whether or not this was investigated and what conclusion was drawn.
A So AG Barr asked—and I don't remember if this was on the 14th when I was upstairs, or it was the following morning or at some other point, but somewhere in this time period, AG Barr wanted Department of Homeland Security to take a look at the Allied report.
And the reason is, within Department of Homeland Security they have an agency called CISA, C-I-S-A, which is the cyber infrastructure—I'm sorry, Cyber and Infrastructure Security Agency, and they have expertise in election hardware and software. They provide support and assistance to States and localities in using and qualifying election hardware and software. So they're the Federal government's experts in this.
AG Barr wanted them to take a look at this report and to report back to him as to whether there could be any truth to this. Obviously, on its face, a 68-percent error rate is very, very unlikely. Hard to believe that that's true, but he wanted them to take a look at it and give them his feedback.
​They did that. They sent several people over within a day or two to brief the AG and others on what their conclusions were with regard to the Allied report. I was there for that briefing. I think there were maybe four people that came over from CISA. They briefed Attorney General Barr, Deputy Attorney General Rosen, Director Wray, I believe Deputy Director Bowdich, myself, and there were probably two or three other people in the room.
We went up. We heard them out. And they said essentially that the Allied report was untrustworthy, that it drew erroneous conclusions for a variety of reasons, one of which I remember being that they were using the wrong version of software, that the Allied group was using a version of software that was not actually being used in Antrim County. There were other explanations as to why this 68 percent error rate was not correct.
And so Attorney General Barr asked and produced what he called a white paper explaining why the Allied report was wrong. They ultimately produced something, I think it was on December 18th, that was forwarded to me by Ken Cuccinelli at DHS. I forwarded that to AG Barr's secretary, and asked her to provide it to AG Barr.
But the outcome of all of this was that CISA looked at it, and they concluded that the Allied report was wrong. And, in fact, again, pursuant to that State litigation that was underway, there was a hand recount done in Antrim County. And so the hand recount removes the software, removes the hardware from the equation, and the hand recount was almost identical to the machine count. And so, for us, that made it clear that the Allied report was wrong and that the Dominion voting machines and Dominion voting software was reliable and producing reliable results.
Q Exhibit 5 in your binder, if you could take a look, is that the white paper—it starts with an email from Ken Cuccinelli to you, but is attached this very—this one-page ​document. And is that, Mr. Donoghue, the white paper that Attorney General Barr asked the Homeland Security folks to produce?
A Right. I think Attorney General Barr in asking for a white paper was hoping for something more substantive and detailed, but they produced this one-pager with these bullet points, which was sufficient and made the point.
Q And, looking at the report, it says at the top: Those records were reviewed yesterday and recounted by hand. This verification, independent of the software and hardware systems in question, returned results that indicates the consistency of the systems, with a 12-vote difference from the previous final tally. That reflects what you said earlier about the fact that hand recount confirmed that the accuracy—essential veracity of the machine count?
A Correct. And although it changed, I believe, 12 votes, when you added them all up within Antrim, I believe it was actually only a one-vote swing ultimately. There were different election districts, and so, when you compiled all the election districts, yes, there was a difference of 12 votes, but in the end, they canceled each other out to the extent that there was only a one-vote difference, and there were about 15,000 votes cast in the county.
Q Yeah. So you went from initially an ASOG report that suggested, oh, a 68-percent error rate, we may have a real problem, to a hand recount that actually confirmed within 1 vote out of 15,000, the results were accurate?
A Right. And I did the math, and that's an error rate of .0063 percent, which is well within the tolerance for election equipment.
Q And certainly insufficient to cast doubt on the overall results of the Michigan election?
A Correct.
​Q All right. Now, did this come up—between the time that you were—that you talked to Attorney General Barr about the report and when you got the white paper from Homeland Security, did this come up in a meeting with the President in the Oval Office on December the 15th?
A Yes, it did.
Q All right. So let's talk for a minute about that meeting. At this point, December 15th, Attorney General Barr is still in place, correct? He's announced that he's resigning, but he has not yet resigned?
A That's right.
Q How did it end up that you went to a meeting at the White House on December the 15th? Tell us the circumstances that gave rise to that meeting.
A I don't remember exactly how it was first communicated to me. I'm pretty sure it came from the DAG himself, that he came next door and said, you and I need to go over to the White House this afternoon. We had to get a COVID test in advance. So that was part of the procedures. We had to get over there in time to get a COVID test at the Executive Building next door. I forget what time the meeting was. It was mid-afternoon of some sort. And we traveled over there together. And DAG Rosen and I participated in the meeting in the Oval Office with a number of other people, and the Antrim County reports and allegation were discussed.
Q Who else was present, Mr. Donoghue, at that meeting?
A I believe it was chief of staff, Mr. Meadows, White House Counsel Pat Cipillone, I think Deputy White House Counsel Pat Philbin was there, DAG Rosen, myself, someone from DHS named Chad Mizelle. I forget what his position was at that point.
Shortly after the meeting started, the chief of staff said that he had to work on something else, and he excused himself and he left. Also, shortly after the meeting ​started, Ken Cuccinelli from DHS showed up.
Q Okay.
A So there was swap-out there, but I think that was everyone in that meeting.
Q Okay. And, at this point, Mr. Donoghue, had DHS, the unit—I don't recall the acronym, the unit that examined the machines, had they done that work, or was that work in progress at this time?
A I think it was in progress at this point.
Q All right. Tell us about the discussion. What did the President say about the ASOG report or Antrim County, Michigan?
A So the President obviously was very much aware of the report. He was saying: Do you guys know about the tripped cord? Have you heard about this? This is a disaster. This is unbelievable, a 68-percent error rate. How could this be? He was going on about the Dominion machines and the Dominion software. He correctly noted that this stuff was widely used across the United States.
And, at that point, the hand recount had not been completed, and we did not have the feedback from CISA, C-I-S-A. And so we essentially said to him, Mr. President, we are aware of it. Yes. We all agree that, if there's a 68-percent error rate with Dominion voting machines, that we have a huge problem on our hands. But let's not jump to conclusions. Let's find out if this is accurate.
And, in a way, luckily, the hand recount had already been ordered and I think was already underway. And so I recall Ken Cuccinelli saying: Look, there's a hand recount underway. It's going to take 48 or 72 hours. When that's done, we will know because that's the gold standard, and we'll compare the hand recount results to what the machine said, and we'll know what the error rate really is. And, if it's 68 percent, you know, then we'll figure it out. But, right now, let's not get ahead of ourselves.
​And DAG Rosen and I were essentially saying the same thing: Let's not get ahead of ourselves. We're aware of the report, and just sort of wait to see what the results of the hand recount are. And the President accepted that. He was fine with that, but he was clearly very worked up about this claim that there was a 68-percent error rate.
Q I see. So you and DAG Rosen explained to him: We're looking at it. We're going to—this hand recount is going on, and CISA is looking at it, and we'll see, right. We'll look into this claim of a 68-percent error rate?
A That's right.
Q Okay. Did he raise any other election-related issues during that meeting?
A He may have. I don't specifically remember, and I didn't take notes in that meeting. Throughout this time period, from the 15th through January 3rd, the President raised a number of these issues. And, when he would raise them, it was generally in the context of, are you guys aware of this? Did you hear about the Michigan report? Did you hear about this in Pennsylvania? Did you hear about that in Georgia? And we would generally just say, "Yes, sir, we're aware of it, thank you," just to check the block that, yes, we were aware without giving much detail in terms of what, if anything, we were doing about it.
So he may have raised other things, but if he did, it certainly was secondary to Antrim County because this was the crux of the conversation. A report had been issued. The report claimed 68-percent error rate. That obviously had implications far beyond Antrim County, far beyond Michigan, and we needed to just find out if this could be true or not.
Q I see. So the main topic of conversation, perhaps not exclusive but main, was this ASOG report and the allegations coming from Michigan?
A Right.
​Q And were you brought—Mr. Donoghue, is it your understanding that you were brought because you were the guy at Justice that was essentially coordinating with the U.S. attorneys or had the most personal knowledge of those efforts to investigate this or other allegations?
A I assume that's why I was there, but, frankly, I didn't really question it. I don't know if I was requested or if the DAG decided I should go or perhaps AG Barr. I don't know. But I definitely had more knowledge about what was being done with regard to these investigations by the U.S. Attorney's Offices than did the DAG.
Q Yeah.
A So it would have made sense that he would have wanted me there.