FBI memo opening Arctic Frost probe into Trump was thin on evidence and justification, experts say

The FBI memo that opened the Biden-era Artic Frost investigation into Donald Trump and hundreds of his allies over their Jan. 6 activities was thin on evidence and legal justifications, according to former prosecutors and FBI agents who found significant deficiencies when they reviewed the newly released document.

The probe code named "Arctic Frost" was led by an openly anti-Trump FBI supervisor, was eventually taken over by Special Prosecutor Jack Smith and treated the effort by Trump's allies to submit alternate electors to Congress to sway the certification of the 2020 election as a criminal conspiracy, even though two prior episodes in American history were not prosecuted as crimes.

The FBI memo that opened the probe in spring 2022 — around the time Trump announced he would run for president again — used interview clips from CNN as key evidence "suggesting" the former and future president was involved in the alleged criminal conspiracy.

Jordan: Same abuses of legal system was used in "Crossfire Hurricane"

House Judiciary Committee Chairman Jim Jordan, who got the document from current FBI Director Kash Patel, told Just the News on Wednesday night that he believes the memo justifying the start of Arctic Frost was legally deficient and suffered from the same politicization and abuses as the 2016 Russia collusion probe code-named "Crossfire Hurricane" that also targeted Trump before it was widely discredited.

“Sure looks that way. … and it looks like this was just the same old weaponization, same old political focus, focus on politics, going after your political enemies,” Jordan said during a wide-ranging interview on the Just the News, No Noise television show. “Same mindset that said we're going to put the dossier in the intelligence community assessment, even though we know the dossier is garbage, we know there's no underlying intelligence support.

"That same mindset that was there in 2016 is the mindset we see now in 2022 with Arctic Frost, and then as it transformed into Jack Smith, special counsel later in 2022 — same exact mindset. So yeah, that's what it sure looks like," he added.

Smith has said he wants to tell his side of the story and has denied wrongdoing. Jordan sent a letter inviting Smith to testify before his committee but warned Wednesday he will subpoena the prosecutor if he does not volunteer for questioning.

Memos released that last few weeks by Patel show Arctic Frost was approved at the highest levels of the Biden administration, including Attorney General Merrick Garland, Deputy Attorney General Lisa Monaco and FBI Director Christopher Wray and was assisted by a lawyer in the Biden White House.

At the core of the launch of the federal inquiry was the decision by Republicans from a number of states to submit an alternate slate of electors ahead of the certification of the 2020 election results by Congress on January 6, 2021. The probe would eventually move from the FBI to Smith and target subpoenas at hundreds of Trump allies.

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, on Wednesday made public 197 subpoenas which Smith and his Biden-era DOJ team issued “as part of the indiscriminate election case against President Trump,” and identified more than 400 GOP groups and personalities whose information was sought.

The GOP-led House Judiciary Committee had previously disclosed on Tuesday that more than 160 Republicans – including many closely connected to Trump – were targeted for possible investigation during the Arctic Frost investigation.

Arctic Frost launched based on alleged “suggestion” of criminality

The opening electronic communication (EC) for what would become a sweeping inquiry into Trump World was penned and approved in April 2022 and titled, “Requests Opening of New Investigation - Arctic Frost.”

The probe — categorized as a “Sensitive Investigative Matter” (SIM) — was approved by then-Assistant Special Agent in Charge Timothy Thibault, who has since left the bureau after his anti-Trump social media postings were exposed, and by other FBI officials such as Steve D’Antuono, the then-Assistant Director in Charge of the FBI’s Washington Field Office, and then-FBI Deputy Director Paul Abbate.

“This communication documents the opening of a new full investigative matter predicated on information subjects corruptly conspired to obstruct the United States Congress’ certification of the 2020 Presidential election results by submitting fraudulent certificates of electors’ votes to the United States Government,” the synopsis of the FBI launch document says. “The processes by which these certificates were created, signed, and sent to the United States Government and the purpose for which they were intended to be used violated multiple criminal statutes over which the United States Department of Justice and the Federal Bureau of Investigation have jurisdiction.”

The opening electronic communication added that it was based on evidence “suggesting” Trump had engaged in wrongdoing, saying, “The FBI has obtained evidence suggesting individuals representing the Trump Campaign conspired to corruptly obstruct the United States Congress’ certification of the 2020 Presidential election results by submitting allegedly fraudulent elector certificates and attempting to convince Vice President Michael Pence to rely on the fraudulent certificates of electors on January 6, 2021, during a Joint Session of Congress.”

The launch document cites as evidence, among other things, two CNN articles from January 2022 and “testimony given” to the Democrat-led select congressional committee that investigated January 6.

Historical examples didn’t result in criminal charges

Dueling slates of electors were submitted in two presidential elections prior to 2020: the 1876 contest between Republican Rutherford Hayes and Democrat Samuel Tilden, where Hayes ultimately emerged victorious, and the 1960 race between Republican Richard Nixon and Democrat John F. Kennedy, which saw Kennedy assume the presidency.

In both 1876 and 1960, it was Democrats who submitted a competing slate of electors from states that, when the electoral certificates were submitted, had been determined to have been won by the Republican, although Hawaii, the state in question, flipped back to the Democrats after a recount in 1960.

No criminal charges flowed from either saga.

Former FBI agent: "Every one of the people is from the cast of characters who disliked Trump.”

Retired FBI agent Jonathan Gilliam pointed to the historical precedents of alternate Democratic electors — in 1876 and 1960 — and how no criminal charges had emerged in the past, as opposed to how the FBI treated the Republican electors in 2021.

“Any time I see a SIM I am automatically suspicious, especially when it comes to politicians. SIMs are used to protect politicians who are friendly to the bureau or to hide the fact that an investigation is being pursued against a politician, deemed to be hostile to those in power, which was the case with Trump,” Gilliam told Just the News. “You look at that approval chain and every one of the people is from the cast of characters who disliked Trump.”

Gilliam added: “An EC for a full criminal investigation is supposed to cite evidence of a crime. I see no evidence other than a Steve Bannon interview with CNN and things like that. That’s not evidence.”

“If the investigator is incapable of displaying evidence of criminal activity (as opposed to political activity), and the precedent exists that those acts previously were treated as not criminal, the investigator would most likely not receive approval from the Justice Department to open a full investigation,” Gilliam said. “However, if the DOJ believes the precedence was not legally bound, then they could approve a full investigation to be opened, even though the precedent has been shown to be otherwise in the past.”

Joe DiGenova, a former U.S. Attorney for the District of Columbia, harshly critiqued the FBI’s launch memo.

“As a former U.S. Attorney, when I saw the Wray memo to Garland, ‘pretext’ screamed at me. The language was juvenile on a matter of constitutional dimensions. No honest investigation could be predicated on nonexistent evidence. You don't investigate a President on ‘the evidence suggests’ standard," DiGenova said. 

"A grave act of interfering in an election and its aftermath requires the highest evidentiary standard not met here. For example, the memo doesn't even recognize that alternate electors are legal and have been used twice before in American history. This was a brazen abuse of power that requires a criminal investigation immediately," he added.

The dueling electors and the 2020 election

Trump allegedly wanted Pence to cite “dueling” electors from GOP states and to reject certifying Biden’s win, which Pence did not do.

The “alternate” elector certificates were signed by Republicans in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin in December 2020 and were then sent to the National Archives. Many of the groups contended this was done contingent on Trump winning his lawsuits related to their states and on them being recognized as rightful replacement electors, but that recognition did not occur.

Trump did not win any of the lawsuits he may have needed for the replacement-electors plan to work, and no state legislatures officially went along with it.

“Because the President’s lawsuit contesting the Georgia election is still pending, the Republican nominees for Presidential Elector met today at noon at the State Capitol today and cast their votes for President and Vice President,” David Shafer, the head of the Georgia Republican Party, tweeted on December 14, 2020. “Had we not meet [sic] today and cast our votes, the President’s pending election contest would have been effectively mooted. Our action today preserves his rights under Georgia law.”

The groups from New Mexico and Pennsylvania made it explicit that their certificates were only being filed in case these alternate electors were later found to be proper electors.

The alternate electors from New Mexico wrote that they were doing this “on the understanding that it might later be determined that we are the duly elected and qualified Electors.” The group from Pennsylvania said they were signing “on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors.”

The office of then-Pennsylvania attorney general Josh Shapiro said at the time that “these ‘fake ballots’ included a conditional clause that they were only to be used if a court overturned the results in Pennsylvania, which did not happen” and that “though their rhetoric and policy were intentionally misleading and purposefully damaging to our democracy, based on our initial review, our office does not believe this meets the legal standards for forgery.”

Charles: "You can't pretend you have probable cause"

Bobby Charles, a former top congressional investigator and federal appeals court clerk who is now a leading GOP candidate for governor in Maine, told Just the News that the predicate for Arctic Frost was fatally flawed.

“I'm going to speak with my lawyer hat and my intelligence officer hat. As a lawyer, just like you can't pretend you have probable cause — you have to reach a threshold before a certain aspect of due process kicks in — and you cannot open an investigation on the pretense that you would like to spontaneously criminalize something that has historically, and by precedent, always been legal. That itself is illegal,” Charles, a former Navy intelligence officer and ex-Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, said. 

“And then, as an intelligence officer, let me say that the notion that they would start an investigation on the pretense that a news organization has made a report that, in turn, undoubtedly came from something back inside the FBI, is what we used to call circular reporting. … Just in the intelligence community, we are always very sensitive to the fallacy that is locked up in circular reporting. … Even if you could call this a predicate, which it isn't, the sourcing for it makes it more than suspect. It makes it spurious.”

Charles concluded: “From my lawyer hat, they knew they did not have a legal basis for doing this. And then, intelligence officer hat, they knew that this was circular reporting. They knew that they had deceived in order to use their own deception as a predicate for further deception.”

Now-former Rep. Liz Cheney R-Wyo., who was then the vice chair of the Capitol riot committee, declared in June 2022 that Trump “oversaw a sophisticated seven-part plan to overturn the 2020 election” and that step five was that the Trump team “instructed Republicans in multiple states to create false electoral slates.” Cheney endorsed now-former Vice President Kamala Harris in her failed 2024 presidential bid.

Smith indicted Trump in August 2023 related to the then-former president’s alleged actions surrounding the 2020 election, with superseding charges in August 2024.

Judge Tanya Chutkan dismissed the January 6-related case against Trump in November 2024 after Trump’s win, pointing to the Office of Legal Counsel’s position that a sitting president could not be prosecuted by his own DOJ.

Smith’s January 2025 report contended that “Mr. Trump and co-conspirators launched another plan. Under this plan, they would organize the people who would have served as Mr. Trump's electors, had he won the popular vote, in seven states that Mr. Trump had lost — Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin — and cause them to sign and send to Washington false certifications claiming to be the legitimate electors. Ultimately […] Mr. Trump and co-conspirators used the fraudulent certificates to try to obstruct the congressional certification proceeding.”

Recently-declassified revelations related to Arctic Frost chronicle the 2022 lawfare assault against Trump and anyone perceived as an ally of his, as criminal inquiries – which would soon lead to criminal charges – spun into high gear as Trump leaned toward running for president again.

Arctic Frost also targeted dozens of GOP officials and organizations, according to documents released earlier this year.

The recent revelation that the FBI snooped on the phone records of Republican members of Congress during its January 6 investigation is also bringing greater scrutiny to Arctic Frost and Smith’s inquiry.

These revelations are also putting the spotlight on Thibault, whom Republicans argue showed extreme anti-Trump bias, demonstrated a willingness to target Trump early in his first term, attempted to slow walk or block the FBI’s investigation into Hunter Biden, and in early 2022 helped spark Arctic Frost investigation — later carried on by Smith — which led to criminal charges against Trump related to the Capitol riot.

Thibault’s attorneys from the Morrison & Foerster law firm pushed back on these Hunter Biden-related claims in 2022, and a lawyer representing Thibault did not immediately respond to a request for comment from Just the News.

"There have been allegations that Mr. Thibault took certain actions in investigations for partisan political reasons," the then-retired FBI agent’s lawyers said. “Mr. Thibault welcomes any investigation of these false allegations, regardless of his retirement."

Unearthed emails also show that the Biden White House Counsel’s Office coordinated with the anti-Trump FBI agent to hand over phones which had belonged to Trump and Pence.

The 1876 case study

Edward B. Foley, the Ebersold Chair in Constitutional Law at The Ohio State University, penned a July 2022 article for the left-leaning Just Security website where he harshly criticized the Republican alternate electors plan from 2020, yet cast some doubt on whether charges should be brought, in part because no charges were brought following the 1876 saga a century and a half earlier.

Foley pointed out that there were significant disputes in three southern states — Florida, Louisiana, and South Carolina — following the 19th century November election.

“In South Carolina … there was no one with any colorable claim of official authority in a position to certify Tilden the winner. Still, Democrats there were claiming that he had won. Their main argument was that the state lacked a voter registration law, even though the state’s constitution required one,” Foley wrote, adding that “Tilden’s electors met and voted for him on the congressional designated day for Electoral College balloting. They submitted their spurious electoral votes to the Senate President pursuant to the Twelfth Amendment as though they rather than the Hayes electors were entitled to cast the state’s official Electoral College votes.”

Foley noted that the alternate Democratic electors declared themselves as “being electors duly and legally appointed by and for the State of South Carolina, as will hereinafter appear.” 

“Whatever else was contested during the entire Hayes-Tilden dispute, there was no doubt that the South Carolina electoral votes cast for Tilden were not valid because the individuals who cast them clearly had not been, despite any claims to the contrary, appointed as the state’s electors,” Foley wrote. “The Electoral Commission that Congress created to settle the Hayes-Tilden dispute split 8-7 on most key questions, including whether to count the South Carolina electoral votes cast for Hayes (yes) and whether to count the Florida electoral votes cast for Tilden (no).”

Foley added that “the Commission agreed unanimously, 15-0, with the proposition that the individuals in South Carolina who purported to cast electoral votes for Tilden” were “not the lawful electors for the State of South Carolina, and that their votes are not the votes provided for by the Constitution of the United States, and should not be counted.”

“Despite this unanimity, reflecting the patent invalidity of their claim to be the state’s ‘duly and legally appointed’ electors, none of these South Carolina individuals (as far as I know from my research) were criminally investigated or prosecuted for making this assertion,” Foley wrote. 

The 1960 case study

An article from Politico in July 2022 also laid out some similarities between efforts by Democrats in 1960 and those by Republicans in 2020. Nixon, then the sitting vice president, and JFK saw themselves locked in a close contest after November 1960, with close votes and recounts deciding the election in JFK’s favor. Hawaii was certified as having been narrowly won by Nixon in December 1960, even as a recount (which would flip the state narrowly in JFK’s favor) was yet ongoing. Democrats in the state submitted an alternate slate of electors, despite (at least at that moment) having lost Hawaii.

“The unofficial Democratic certificates … show the three Kennedy electors signed documents that are remarkably similar to the false Trump-elector certificates,” Politico reported. “The certificates describe the three Democrats as the ‘duly and legally appointed and qualified’ members of the Electoral College. The envelope containing the certificates … includes another avowal: ‘We hereby certify that the lists of all the votes of the state of Hawaii given for president … are contained herein.’ The documents do not mention the ongoing recount or that Nixon’s Hawaii victory had been certified.”

The outlet added: “Although the three Democratic electors in Hawaii took the same action [as Republican electors in 2020] — signing false certificates — it does not appear they ever faced similar scrutiny, in part because of what happened next. Namely, that Hawaii’s recount ultimately did reverse the state’s election outcome.”

“Kennedy prevailed by an eyelash when the recount concluded” near the end of December 1960, the outlet said. “A new governor certified the Kennedy victory and transmitted a new slate of Electoral College certificates — signed by the same three Democrats who falsely claimed to have won two weeks earlier.”

The revelations about the predication of Arctic Frost are just the latest in a flurry of new details about the anti-Trump weaponization of the justice system now being examined. Smith may soon testify before the GOP-led Senate Judiciary Committee, where Republicans are certain to grill him on the 2020 electors inquiry that he picked up and ran with.