Anatomy of a Conspiracy

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The January 6 Report: Findings from the Select Committee to Investigate the Attack on the U.S. Capitol. New York: The New York Times, 2022

The report of the January 6 Select Committee convinces me of two things. First, the plot to overturn the 2020 presidential election was a very large, multifaceted conspiracy. And second, President Trump was the chief conspirator at each major step. Before reading the report, I wasn’t sure how directly involved he was in certain parts of the scheme, such as the effort to recruit slates of fake electors. Now I’m more convinced that he was up to his ears in the whole thing.

Consider the main elements of the conspiracy.

Casting doubt on the legitimacy of the election in advance

Long before a single vote was cast, President Trump was hard at work selling the idea that he could only lose if the election were rigged. One of his tactics was to encourage his own supporters to vote on election day, while declaring mail-in ballots to be vulnerable to fraud, contrary to the actual experience of the states. Many states were trying to make it easier to vote by mail because voters were reluctant to mingle in public during the pandemic, so a surge in those votes was to be expected.

Declaring victory before all the votes were counted

Since most states count absentee ballots more slowly than in-person, election-day ballots, Trump could try to claim victory on the basis of his election-night lead. He insisted on doing so against the advice of his own campaign officials, who knew that outstanding ballots could easily change the outcome.

Refusing to accept the election results

When all the votes had been counted and Joe Biden was declared the winner, Trump immediately attributed the results in key states to fraud. Again, he ignored the assessment of his most knowledgeable advisors:

[O]ur hearings featured a number of members of President Trump’s inner circle refuting his fraud claims and testifying that the election was not in fact stolen. In all, the Committee displayed the testimony of more than four dozen Republicans—by far the majority of witnesses in our hearings—including two of President Trump’s former Attorneys General, his former White House Counsel, numerous members of his White House staff, and the highest-ranking members of his 2020 election campaign, including his campaign manager and his campaign general counsel.

The report compiled a long list of instances where Trump was told that the facts refuted particular fraud allegations, and where he proceeded to assert exactly the opposite in his public statements. For example, he continued to claim that voting machines were rigged even after hand counts had produced almost identical results.

When White House lawyers and reputable law firms failed to support his allegations of fraud, he formed a new legal team headed by Rudy Giuliani to press his claims. His new legal team lost every major legal challenge they brought in court, regardless of whether the judge in the case had been chosen by Democrats, Republicans, or by Trump himself. Many cases were quickly thrown out due to a total lack of credible evidence.

Pressuring state legislators and officials to overturn the results

The U.S. Constitution gives each state the power to choose Electoral College electors in its own way. In modern times, laws in every state require that this be done by popular election. President Trump and his co-conspirators claimed that the states have the power to reject the results of an election after the votes have been cast. This theory was promoted by Trump supporters like former House Speaker Newt Gingrich, Chief of Staff Mark Meadows, and Donald Trump, Jr. The committee found a written “Strategic Communications Plan” based on this theory and ostensibly authored by the “Giuliani Presidential Legal Defense Team.”

The best-known attempt to pressure a state official was the recorded phone call between President Trump and Georgia Secretary of State Brad Raffensperger (“I just need 11,780 votes!”). But this is only one among hundreds of contacts between the Trump camp and officials in key states.

Trying to get the Justice Department to discredit the election results

Consistent with his refusal to accept the legitimacy of the election, Trump also refused to accept Attorney General Barr’s assurances that the Department of Justice had investigated and refuted allegations of fraud. As a Trump appointee and supporter, Barr had little reason to cover up any fraud that existed.

After Barr resigned, Trump also pressured Acting Attorney General Jeffrey Rosen to find fraud, also with no success. Then Trump offered Rosen’s job to someone who would do his bidding, a lower-level administrator named Jeffrey Clark. Clark had drafted a letter intended for battleground states, which exaggerated the Justice Department’s concerns about fraud and encouraged state legislators to meet in special session to reconsider their election certifications. Rosen had refused to send such a letter, considering it inaccurate and inappropriate. Only the threat of mass resignations by Justice Department personnel persuaded Trump to withdraw his job offer to Clark.

Recruiting fake electors to challenge the real electors

The report concludes that “Donald Trump oversaw an effort to obtain and transmit false electoral certificates to Congress and the National Archives.” Over a month before the election, The Atlantic reported that “the Trump Campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground States where Republicans hold the legislative majority.” The theory that the states had the authority to do this was promoted by legal advisors Kenneth Chesebro and John Eastman. President Trump and his Chief of Staff, Mark Meadows, endorsed the plan, and Trump personally called Republican National Committee Chairwoman Ronna McDaniel to enlist her in the effort.

On December 14, the day on which state electors cast their votes for President, fake electors recruited by the Trump camp also met and voted in seven states: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin.

In five of these States—Arizona, Georgia, Michigan, Nevada, and Wisconsin—the certificates they signed used the language that falsely declared themselves to be “the duly elected and qualified Electors” from their State…The paperwork signed by the fake Trump electors in two other States contained partial caveats. In New Mexico, the document they signed made clear that they were participating “on the understanding that it might later be determined that we are the duly elected and qualified Electors…”

To be clear, no state ever did give the fake electors any legal recognition whatsoever. Nevertheless, all the fake certificates were sent to the National Archives and Congress. On December 17, White House Press Secretary Kayleigh McEnany stated that Congress would decide between the alternative slates of electors in January. However, the effort failed when the Senate Parliamentarian rejected the fake certificates. (Two of the seven, the certifications for Michigan and Wisconsin, failed to arrive before the statutory deadline. A last-ditch effort to deliver them to the Vice President personally also failed when his aide refused to accept them.)

Pressuring the Vice President to block Congressional certification

The Select Committee concluded that the entire plan to overturn the election had one “underlying and fundamental feature,” and that was “the effort to get one man, Vice President Mike Pence, to assert and then exercise unprecedented and lawless powers to utilaterally alter the actual election outcome on January 6th.”

Even though they failed to get the fake electors certified by any state legislature, Trump and his co-conspirators hoped they would provide a pretext for the Vice President to reject the legitimate electors. That could throw the election into the House of Representatives, where voting would be by state delegation. Although Republicans had less than a majority of total seats, they did have a majority of state delegations because they controlled more small states. At the very least, Trump hoped that Pence would use the competing slates of electors as an excuse to suspend the proceedings, giving Republican-controlled legislatures more time to change their certifications.

A major advocate for this plan was lawyer John Eastman, founding director of the Center for Constitutional Jurisprudence and a former law clerk for Justice Clarence Thomas (whose wife was also working to overturn the election). Trump brought Eastman to the White House to help him persuade Mike Pence of the plan’s legality, contrary to the opinion of White House lawyers. As January 6 approached, Pence became more adamant that he lacked the authority to do anything except count the state-certified votes. Nevertheless, on the evening of January 5, Trump issued another false statement, “The Vice President and I are in total agreement that the Vice President has the power to act.”

Sending a mob to the Capitol on January 6

On December 19, five days after the Electoral College met and elected Joe Biden, President Trump called for protestors to come to Washington on January 6. By then, Trump’s campaign staff, White House lawyers, and cabinet members were telling him that he had no legal path to re-election.

In his speech to the crowd on the morning of January 6, Trump repeated his claims that the election had been stolen and that Vice President Pence had the power to “stop the steal.” The crowd should march on the Capitol to encourage Pence and Republican members of Congress to do the right thing. “And if you don’t fight like hell, you’re not going to have a country anymore.”

Inciting rather than trying to stop the violence

While the mob invaded the Capitol, President Trump watched the spectacle on TV for over three hours. During that time, he made no effort to defend the Capitol or support the police who were under violent attack—no phone calls, no orders. Instead, he further incited the crowd by tweeting at 2:24 PM, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.” He was still entirely focused on his own agenda.

And immediately after President Trump sent his tweet, the violence escalated. Between 2:25 p.m. and 2:28 p.m., rioters breached the East Rotunda doors, other rioters breached the police line in the Capitol Crypt, Vice President Pence had to be evacuated from his Senate office, and Leader McCarthy was evacuated from his Capitol office.

While this was going on, Mark Meadows and White House lawyer Pat Cipollone met briefly with President Trump. When they came out, Cipollone was demanding that more be done to protect Mike Pence from the crowd that was now calling for his hanging. Meadows’ reply, according to testimony from his assistant, Cassidy Hutchinson, was, “You heard him, Pat. He thinks Mike deserves it. He doesn’t think they’re going anything wrong.”

Legal consequences?

The Select Committee identified a number of federal crimes they believe were committed in the effort to overturn the 2020 election. These include obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement, and the effort to incite, assist, or aid and comfort an insurrection. The committee had the authority only to refer Donald Trump and his co-conspirators for prosecution, but the power to prosecute rests with the Justice Department.

Here I would like to compare Donald Trump’s conspiracy to Richard Nixon’s obstruction of justice in the Watergate scandal. Although Nixon was pardoned by his successor, he did at least suffer the consequence of being driven from office. Senators of his own party presented him with an ultimatum—either resign or be convicted of the articles of impeachment approved by the House of Representatives. In that respect, the historical record is pretty clear as to Nixon’s guilt. This is not the case for Donald Trump, who was impeached twice for some form of election interference, but was acquitted twice because his party stood by him. In this case, the historical record is incomplete and misleading. That leaves it to the criminal justice system to establish his guilt.

Americans must ask: Which is worse, to risk further national division and conflict by prosecuting Trump and his co-conspirators, or to allow the perpetrators of this serious national conspiracy to escape without legal consequences? Which is worse, to set the precedent that a former president can be prosecuted (perhaps inviting frivolous or vindictive prosecutions in the future), or to set the precedent that a former president is immune from prosecution, despite the seriousness of his crimes? President Nixon conspired to cover up a burglary, but Donald Trump conspired to steal the presidency.

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