In this section of the January 6th Reports (#Jan6Reports), we’ll concentrate on the several strategies Donald Trump used to try to remain in power:
- sowing election doubts,
- prematurely declaring victory,
- encouraging his supporters to disrupt vote counts,
- starting baseless court cases,
- lobbying and pressuring state officials to cheat for him,
- putting together fake elector slates, and
- pushing Vice President Mike Pence to ignore the law and the Constitution on January 6 and make Trump the winner of the presidential race.
As detailed in the last installment, Donald Trump was intent on following a heads-I-win-tails-you-lose strategy from the very beginning: if he happened to beat Biden, he would say his election was legitimate; if Biden won – as he did – Trump planned to promote the Big Lie and make his supporters believe the election had been “stolen.”
He began planting this seed well before the election – as early as April, 2020, when he stated:
“Mail ballots are a very dangerous thing for this country, because they’re cheaters. They go and collect them. They’re fraudulent in many cases.”
By July, Trump told Fox News’s Chris Wallace in an interview that he would not necessarily accept the results of the election.
“I have to see,” he said.
In the debate with Joe Biden on September 29, Wallace, as moderator, again addressed this point, asking both candidates how they would ensure that the American people know that the election was held with integrity.
In his response, Trump spewed lies about mail-in ballots being found in wastepaper baskets and creeks, claiming that there was no way for such votes to be tabulated accurately.
“This is going to be a fraud like you’ve never seen,” he said.
It was the same night that he told the Proud Boys to “stand back and stand by.”
Trump figured that by declaring himself the winner on election night, he would be in a better position to argue that the election had been stolen if Biden proved the winner.
Around 2:30AM on November 4, he did exactly that, claiming that there had been “major fraud” and that he was the winner, despite the fact that many votes were still being counting and that his campaign manager, Bill Stepien, and advisor Jason Miller, had both told him that it was not possible to know who had won yet.
Trump appeared to be following the strategy of people like Roger Stone, who said before the election:
“I really do suspect it will still be up in the air. When that happens, the key thing to do is to claim victory. Possession is nine-tenths of the law. No, we won. Fuck you. Sorry. Over. We won. You’re wrong. Fuck you.”
Also on November 4, Trump’s supporters, egged on by his claims of fraud, continued to spread “Stop the Steal” messages on social media and began gathering in places across the country, including in Detroit, where they in fact looked to stop vote counting.
Many of these protestors were armed and some were rather aggressive.
Trump encouraged these actions, tweeting out “Stop the count!” on the morning of November 5.
STOP THE COUNT!
— Donald J. Trump (@realDonaldTrump) November 5, 2020
The next day Trump supporters gathered in Michigan, Ohio, Arizona, and Pennsylvania.
Trump allies like white supremacist Nick Fuentes started promoting a “Million MAGA March” for November 14 to condemn the election.
Trump would wave to them from his motorcade on the day of the march.
Nonetheless, Biden was declared the projected winner by the networks on November 7, 2020.
But Trump was far from ready to concede (and in fact never has).
Rather than heed to people like White House Counsel Pat Cipollone, Attorney General Bill Barr, and advisor Jason Miller – along with perhaps scores of others who were telling him he likely did lose – Trump preferred to listen to people like former NYC Mayor Rudolph Giuliani and attorney Sidney Powell, who wanted to press the fraud claims despite a complete lack of evidence.
Out of 62 lawsuits they would bring, 61 would fail.
Immediately after the election, Donald Trump knew he had lost the election and that his legal challenges to the results would almost certainly fail.
The results of the lawsuits filed proved his campaign advisors right – Trump lost 61 of the 62 cases he filed.
— Rep. Elaine Luria (@RepElaineLuria) June 13, 2022
But Trump was pursuing other strategies simultaneously.
One involved pressuring officials like Secretary of State of Georgia Brad Raffensperger and Arizona House Speaker Russell “Rusty” Bowers.
Bowers had repeated conversations with Trump and Giuliani throughout November and December, both of whom tried to convince him to replace the Biden electors with ones for Trump.
Old Rusty pushed back, telling them he had no such power.
Trump tried similar tactics with Raffensperger and was equally unsuccessful.
Even after state electors met in mid-December to certify their slates of electors, Trump continued to press false election claims and urged Raffensperger to cheat for him.
In a now-infamous call made by Trump, Chief of Staff Mark Meadows, and several Trump attorneys to Raffensperger and his general counsel, Ryan Germany, Trump practically self-indicted himself when he said:
“All I want to do is this: I just want to find 11,780 votes, which is one more than we have [need].”
In other words, just “find” the votes you need to find for me so that I win the state. Raffensperger refused to play ball.
Another Republican, the head of the Pennsylvania Senate, Jake Corman, was also pressured by Trump and Giuliani to replace Pennsylvania’s electors with ones who would support Trump, as was the leader of the Pennsylvania House, Bryan Cutler.
Neither, though, would get on board with the Trump-Giuliani plan.
The fake electors scheme was pretty expansive.
Trump’s people truly gathered groups of “electors” and even provided them with bogus documentation.
Once state officials refused to support this idea, Trump and his coconspirators moved to John Eastman’s plan: target Mike Pence.
Eastman, the president’s lawyer, had been dean of the Fowler Law School at Chapman University, unsurprisingly not a top-100 school.
His idea was that Vice President Pence, in his ceremonial role reading out the electors to Congress on January 6, could declare certain slates of electors to be invalid.
The problem, however, was that both the Constitution – and in particular the 12th Amendment – is pretty clear on the fact that the Vice President is only there to preside, and has no such power to do so.
This was also clarified by the Electoral Count Act of 1887 (and just recently re-clarified with the new Electoral Count Act).
The VP’s counsel, Greg Jacob, correctly advised him that he could not do what Trump and Eastman were asking. He was supported in this assessment by Michael Luttig, a former federal judge.
After a contentious meeting between Pence; his chief of staff, Mark Short; Jacob; Trump; and Eastman on January 4, Luttig made sure to tweet out the next day, “The only responsibility and power of the Vice President under the Constitution is to faithfully count the electoral college votes as they have been cast.”
The only responsibility and power of the Vice President under the Constitution is to faithfully count the electoral college votes as they have been cast.
— @judgeluttig (@judgeluttig) January 5, 2021
In fact, Eastman’s theory (if it could be called that) was so ludicrous, that another scholar – a law school dean – had also disagreed with it, stating:
“The 12th Amendment only says that the President of the Senate opens the ballots in the joint session then, in the passive voice, that the votes shall then be counted. 3 USC § 12 [of the Electoral Count Act] says merely that he is the presiding officer, and then it spells out specific procedures, presumptions, and default rules for which slates will be counted. Nowhere does it suggest that the president of the Senate gets to make the determination on his own. § 15 [of the Electoral Count Act] doesn’t either.”
That law school dean was Eastman himself, writing to a colleague before the election ever took place.
In fact, he would push his vice president theory at certain times, yet acknowledge in other instances that such claims were without merit.
As the Capitol was being attacked on January 6, for instance, Jacob emailed Eastman asking if he had told the president that Pence “DOES NOT have the power to decide things unilaterally?”
To which Eastman answered that Trump had been advised of that fact by him.
In other words, he knew from the get-go that the theory was complete nonsense, as did Trump. They had simply advanced it to try to overturn the election.
In the next installment of the #Jan6Reports, I will detail how Trump encouraged his mobs to do his bidding.
You can read the first part of the series: Trump’s criminal intent and the Big Lie at this link.
Follow along on Twitter to stay updated: @RossRosenfeld