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.”