You may recall that I indicated by I had pre-ordered the official report by The House January 7 Committee, but that I would not be reviewing it, given the public televised activities of that bi-partisan group which were available for all to see. However, I did want to have a copy for my library. And I chose the copy that had the Foreword by Ari Melber, a lawyer, legal analyst and host on MSNBC. He is one of the favorites on that station for me...Foreword
ARI MELBER
They attempted a coup. That is the most important fact about what happened. Donald Trump led an effort to overthrow the lawful government of the United States. He lost an election, exhausted the legal options to challenge it, and then tried to stop the peaceful transfer of power to the incoming administration of the president-elect. The goal was illicit: stealing an election. Trump’s chosen methods were unlawful: trying to overcome his loss with fraud, obstruction, election meddling, abuse of power by government officials, and even plans to have the military intercede.
Trump himself did not always act. He often demanded other people break the law. Sometimes that worked, and he got people to commit crimes. Sometimes they refused. Indeed, many of the most brazen, gruesome, and well-known crimes were committed by the supporters Trump summoned to Washington—not by Trump himself. He did not personally go storm the Capitol (though he tried). He did not attack police offlicers with his hands. He did not physically obstruct and delay the January 6 certification. He did not sign documents created to commit elector fraud. Those distinctions are based on the factual evidence, but they do not resolve Trump’s actual and legal culpability.
Criminal organizations typically shield the boss, sparing him from most dirty work, let alone actual combat. So how should the United States fairly determine potential accountability for Donald Trump, who encouraged and sought to benefit from an attempted coup, and an actual (but failed) insurrection? There are legal and technical aspects to this process. The fundamental questions, however, are actually straightforward:
Did Trump intentionally lead the plots to stage an insurrection and coup?
Did he lead a coup conspiracy?
The United States, both as a nation and a government, face these questions. (The nation votes; the government administers justice.) In a democracy, voters regularly evaluate both the ideas and venality of candidates.
People tend to be pragmatic about what they can really get from politicians. Some lies, hypocrisy, and even corruption is expected in the aggregate. The January 6 insurrection went way beyond that. So the question matters for the nation.
Before Americans consider questions about prosecuting or jailing a former leader, there’s the lower bar of assessing whether that leader is an authoritarian—willing to rule by coup and violence. Theoretically, that is an apolitical and empirical question, though some people use politics to pick their “facts.” If the people determine a politician is an actual, proven authoritarian voting that person into office can be a path to never voting again.
For the law, prosecutors determine if the evidence proves that Trump deliberately, corruptly led this conspiracy. That means taking deliberate action to corruptly stage the insurrection or coup. That does not mean musing about crimes out loud, or screaming at meetings, or lying to the public about the election. Those things don’t cut it and are typically legal. If there is overwhelming evidence of a conspiracy, however, hatched and pursued at the highest levels of the government, then prosecutors have a duty to prosecute the conspirators and their leader.
So, the United States, as a nation and government, is facing a test. It can assess the evidence that Trump led this conspiracy—or turn away. It can reach conclusions and confront them in public, to redress an authoritarian, anarchic attack on democracy with the best attempt at truth and justice—or it can devolve into a muddle of competing claims.
WHAT HAPPENED?
The government has led much of the fact-finding about the insurrection. When federal officials began this process, in those first days after the attack, they began with some mistakes. The government’s task is much broader than determining accountability for what happened on one day. Yet the insurrection was initially viewed—by both its opponents and its “soft” allies in the Republican Party—as largely a single-day event, a one-day attack. The conventional premise was that this was a gathering where insurrectionists went to a rally in the morning, then marched and stormed the Capitol in the afternoon, violently attacking police, obstructing the vote counting, and searching for lawmakers to murder—with the perpetrators mostly home by nightfall.
This was also the initial view of the Democratic Congress. The news moves fast. It may be easy to forget now that Congress impeached then President Trump for one thing: “incitement of insurrection” on January 6. To be fair, that impeachment trial did serve several functions. It swiftly laid down a marker against the attack, compelled Congress to go on record, made Trump the only twice-impeached president in history, and secured the most bi-partisan coalition to convict a president in the last century. The trial’s entire thrust, however, was stuck in a flawed framework of limiting its perspective to events that unfolded on a single day. The Senate jurors were basically asked: Legally, did Trump’s speech that morning incite the attack in the afternoon? As one Democratic impeachment manager summarized the case in the pivotal closing argument: When Trump “took the stage on January 6, he knew exactly how combustible the situation was,” with a crowd ready to “engage in violence,” and “he aimed them straight here.”
The summation literally boiled down to: Convict Trump because he went on stage, gave a speech, and exhorted people to storm the Capitol. Less than two years later, that prosecutorial argument is so cramped, it almost sounds like someone downplaying Trump’s actions and guilt. The 2021 Article of Impeachment did not mention, let alone charge, plots for elector fraud, state election meddling, military intervention, DOJ interference, seizing voting machines, or the long-running lies that recruited so many people to travel to Washington. During the impeachment and Senate debate, it often seemed like Trump was on trial for a speech. The law makes it hard to pin an insurrection on one speech—as it should. True freedom of speech sets a very high bar for convicting any politician, in the Senate or in court, for words in a speech.
THE ATTACK
The Congress of January 2021, which impeached Trump, was not very different from the Congress of July 2021, which formed a Select Committee to investigate. The House created this special committee “to investigate the January 6 attack on the United States Capitol,” as its authorizing resolution states. The conception, goals, and very name are about January 6. The authorizing resolution states the probe has three “purposes”: “investigate” the January 6 “terrorist attack”; “evaluate evidence” from the government about the “terrorist attack”; and “build” on any other investigations while “avoiding unnecessary duplication.” In other words: Investigate what went down that day.
That assignment quickly proved too narrow, however, for the range of plots and crimes revealed—and sometimes confessed—in the ensuing months. It would be like trying to investigate state-sponsored racism in the Jim Crow Era by probing only the May 7, 1965, attack on Selma protesters. The attack is significant, but it cannot be accurately, substantively split from the long path leading up to it. At the same time, evidence for this wider view of the threat—a long-running plot against democracy, not one terrible day—emerged from the committee’s work.
That is a credit to its fact-finding. A competent investigation follows leads, sources, and facts. It adapts to new information, rather than sticking to an initial perception formed before new evidence, witnesses, and facts are gathered and tested.
Here’s why this matters: The results of the Select Committee’s work suggest a threat greater than the physical insurrection of January 6. The committee initially devoted to investigating that terrible day helped reveal truths that go far beyond it. The Select Committee is a part of Congress. There is a co-equal branch of government, the Department of Justice (DOJ), which enforces the law. The federal prosecutors working the case have focused on the storming of the Capitol. As the 117th Congress prepares to release its report, the DOJ is mostly prosecuting insurrectionists who physically trespassed on January 6. The DOJ has indicted more than 900 people in this probe; every single charge is for people who stormed the Capitol that day or those who helped them do it.
Some later subpoenas turned to gathering evidence and testimony from Trump aides, however, the Justice Department’s indictments overwhelmingly prioritized the one-day framework. More than 320 defendants have been convicted. It is an open probe, and the scope could certainly change as prosecutors move up the line. In January 2021, Attorney General Merrick Garland stressed the “purposeful” way that “in complex cases” like this probe, “initial charges are often less severe than later charged offenses . . . as investigators methodically collect and sift through more evidence.”
A CONSPIRACY, NOT A RIOT The attempted coup, and the road to the insurrection, transpired over several months. The January 6 Committee’s dense hearings and evidence, plus other independent reporting, show the plots to overthrow the election were broader and more organized than some one-day crime spree. The attack was one of several plots pursuing the same goal. The evidence shows it was not a spontaneous riot or burst of aimless anger. It had a purpose: prevent or delay certifying the election results to reinforce a much wider coup operation.
That truth is at odds with Trump defenders’ main arguments, which boil any offense down to a day of violence, then pin it on the people who stormed the Capitol. (These are the main defenses of Trump allies, including some implicated in the coup; they are distinct from Trump’s rhetoric defending some insurrectionists or talking about pardoning them.)
The evidence shows the people at the Capitol were mostly pawns, not leaders who worked with Trump or for his administration. They responded to Trump publicly summoning them. They went to a rally organized and funded by MAGA leaders and Trump aides. Their role—to hijack the certification on January 6—was to execute one prong of a wider conspiracy strategy hatched and written down by Trump lawyers. It is important to confront the plots in that conspiracy alongside the detailed testimony and evidence in the Select Committee’s Report.
LOSE AND DECLARE VICTORY Some of the earliest damning evidence on Trump’s criminal intent comes from Trump himself. He intended to overthrow the election before it even occurred. To state the obvious: Politicians don’t challenge elections that they won. Trump saw signs he could lose before Election Day and began plotting to overthrow the results. Speaking to reporters at the White House on September 23—as early voting was already underway—Trump said that if he lost, he would not follow “a peaceful transfer of power after the election.” Instead, he vowed to continue in office no matter what. “There won’t be a transfer, frankly,” he said, “there will be a continuation.” The ensuing headlines were stark. They could apply to an incumbent authoritarian in any “Banana Republic”: “Trump Won’t Commit to ‘Peaceful’ Post-Election Transfer of Power” (New York Times) “Trump declines to commit to a peaceful transition of power after election” (Politico) “Trump won’t commit to peaceful transfer of power if he loses.” (CNBC)
That was a first for the United States. It shattered another convention. It put violence on the table. When the person in charge of the military and the nukes publicly says there won’t be a peaceful transfer of power, the country is already in a bad spot. Trump’s brazen vow stoked expectations and created the criminal playbook that his followers would later use. Trump reaffirmed the same blatant challenge to a peaceful transfer of power at the first 2020 Presidential Debate, as 73 million Americans watched live. Taken alone, Trump’s disturbing vow was not a crime. The law matters here. Claiming that you will commit a future crime in one scenario is rarely a crime itself. A person who says, “I would steal food if my family were starving,” has not stolen anything—and may never. The same goes for most threats, although there are some exceptions. A politician could make the same vow as Trump, then lawfully win, and stay in office, without testing the peaceful transfer of power.
For Trump, however, those words are now criminal evidence because of his later actions. They form part of the criminal intent for plots that began even before he officially lost. As Trump bluntly announced his plan for a “continuation” of his reign—no matter what—some of his most aggressive advisers went to work on it.
Before the election, Steve Bannon, who led Trump’s 2016 campaign and became the first Trump aide convicted for defying the January 6 Committee, explained the “declare victory” plan. “What Trump’s gonna do is just declare victory,” Bannon privately told Trump allies on October 31, 2020. Bannon spelled out the plot was to seize power illegally, even if Trump lost. “That doesn’t mean he’s the winner—he’s just gonna say he’s the winner,” Bannon said (in a recording later published by Mother Jones and cited by the Committee). Like Trump, Bannon sometimes confesses his infractions. The move draws on a law of power, where a leader who brazenly transgresses, and gets away with it, tries to enhance an aura of invincibility. (Since joining Trump, Bannon has been indicted three times and convicted once, so it’s not working for him. For Trump, time will tell.)
In the early morning hours of Election Night, Trump was trailing in the Electoral College and total vote. The election had not been called. Trump came out and did exactly what Bannon outlined, falsely claiming, “We did win this election,” and “we’ll be going to the U.S. Supreme Court.” In case there was any doubt that he knew counting all votes would lock in his loss, he added, “We want all voting to stop.” That was all public. Privately, Trump knew he had not won. The January 6 Committee exposed that some of Trump’s most senior and loyal aides, and family members, told him the truth: he was trailing, on a path to lose, and they opposed lying about the outcome.
Take campaign manager Bill Stepien and Trump’s daughter Ivanka. Both testified that they advised Trump to say the votes were “still being counted.” Stephen Miller, one of the only Trump aides who lasted in Trump’s chaotic White House for all four years, broke with the Bannon plan. “I was saying that we should not go and ‘declare victory,’” he testified. Trump plowed forward anyway.
The voting was over. No winner had been declared yet. And Trump began executing the plan to declare victory. That is incriminating, because it shows the outcome never mattered to Trump. (That undercuts a defense Trump allies proposed later: that he genuinely believed he won or that he had somehow been cheated. It is impossible to genuinely believe anything before the results are in.)
In those early morning hours after Election Day, Trump began executing one of the plots to stay in power, regardless of the outcome. Taking that step, regardless of the facts and his advisers’ warnings, was not a crime. There is no law against candidates lying. There isn’t even a legal requirement that losing candidates verbally concede—only that when their term expires, they physically leave the office that they no longer hold. That same night, a split emerged within Trump’s camp. One aide later told the Select Committee about a rift between Team Normal and everyone else.
But it’s quite a euphemism to say the people trying to overthrow the election were simply not normal. The evidence suggests something more sinister—Team Lawful versus Team Coup. The split raises a theme visible in the report and within the current Republican Party. The Trump aides who followed the law and declined to join coup plots did the bare minimum in a highly scrutinized arena. Breaking the law could ruin their careers or lives. Their refusal to participate, however, did complicate Trump’s efforts. He was not dissuaded, instead mounting an exhaustive, sometimes desperate search to find government employees and lawyers willing to join Team Coup. (The search for violent insurrectionists on January 6 proved easier, since no expertise was required, and Trump recruited from tens of millions of supporters.)
From that point, the coup plot leaned on the assorted characters willing to advance Trump’s strategy. That’s an important human aspect of the story, because some of the people Trump found may seem extreme, odd, or unserious, yet it is clear the authorities must take them seriously.
These were the elites willing to join a modern coup. Some went all the way, while others reached their own limits of expediency, or self-interest, by the time the insurrection was complete. Turning to the plotters, it was just two days after Election Day when Donald Trump Jr. sent a private text that he apparently believed would never be revealed. He routinely texted with Chief of Staff Mark Meadows as a conduit to his father, and wrote, “We have multiple paths. We control them all.”
It’s clear from the Select Committee’s evidence and independent reporting that Trump and his allies crafted at least eight distinct plans to overturn a loss. They did not execute all of them. Some of the plans began as extreme but arguably legal plans, which later turned unlawful as votes were finalized and certified. By January, however, as a legal matter: Seven of the plans were unconstitutional or illegal.
WHAT DOES THE LAW DO?
This brings up a legal point that is relevant to this analysis—and for reading the Committee’s official report. Unconstitutional and illegal are not synonyms here. They are distinct legal categories. Some of Trump’s plans were unconstitutional, meaning they violated the U.S. Constitution. A court can swiftly block and stop unconstitutional action. Such efforts are invalid but short-lived; courts stop them, and they do not carry prison time. For example: A president orders DHS to ban Muslim immigrants, and a court blocks the plan as unconstitutional. The order is canceled. No one is indicted or goes to jail. The courts simply have the last word, halting action that the government would otherwise carry out.
Some of Trump’s other plans were illegal, meaning they involved crimes. A prosecutor indicts a person for a past criminal act. For example: A person shoots someone and gets indicted for it. Prosecutors may also indict a person for an attempted crime (trying and failing to shoot someone), or for a conspiracy to commit a crime (two people agree on a plot to have someone shot). Bottom line: For those involved, crimes are more serious and risky than unconstitutional acts. It also takes the government much longer to respond to crimes than unconstitutional acts, because the process and implications of indicting someone are different than blocking government action.
Here are the eight plots Trump pursued: After lawsuits, all the remaining plots were unconstitutional or illegal by January. That is incriminating for Trump and other implicated parties.
As a matter of organization, naturally, the plots could be counted in more than one way. For example, at the state level, Trump tried to get both state election officials and state legislators to overturn votes for Biden. This list categorizes those attempts under one larger plot to demand states overturn votes, rather than two distinct plots aimed at different government officials in the same state.
LAWSUITS AND ELECTORS
The first two plots began as legal: filing lawsuits to challenge the results (showing Trump trailing and then losing); and efforts to recruit and install Trump electors in states that Biden won. Lawsuits are legal. Every case has a loser, and the courts are basically open for even weak or fact-free lawsuits, with a process for dispatching those cases quickly. Judges can sanction frivolous lawsuits, but the act of filing them is still legal. Trump filed a cascade of weak, losing, and sometimes frivolous suits trying to challenge or overturn his loss. By the glacial standards of a court case, most were “immediately” shut down—fifty of his roughly fifty-seven suits were rejected within a month. None were ever deemed credible enough to get a single argument at the Supreme Court (let alone a victory).
That shoddy record says a lot about Trump’s clear-cut loss. A wide range of judges agreed there was literally nothing to debate, unlike, say, in Bush v Gore. However, this record does not say much about criminal culpability. The election was called on November 7. The people had spoken, firing Trump as president. As the month wore on, the judges had spoken, too. Trump’s Election Night vow about “going to the U.S. Supreme Court” had failed. For all the bluster and lying, Trump saw that reality. The court doors were closing on Trump’s lawsuits. There was no road to changing the election results that way, lawfully.
Trump’s team quickly turned to plots to steal the election in states Biden won. One of the earliest gambits sounds far-fetched. Each state submits electors to the Electoral College, reflecting the winning presidential candidate. The idea was to recruit Trump supporters to falsely claim they were the actual electors in states that Biden won and somehow install those fraudulent electors in Biden states. The scheme was floated among Trump allies as early as the day after the election. (Again, not a scheme you need if you think you won.)
That is when former Trump Cabinet member Rick Perry suggested, in a text, that Republicans could “send their own electors to vote” for Trump in Biden states. Within eleven days after Biden’s victory, Trump lawyers were trying to operationalize that plot. They wrote up plans to arrange for “electors pledged to Trump” to conduct a kind of shadow Electoral College, where they would “meet on December 14” and falsely claim they represented the voters who had actually backed Biden. This didn’t get far. On December 14, the actual Electoral College met. It formalized Biden’s victory. There was no great showing by a shadow Electoral College, which would have been pretty ridiculous.
Now, this is where the timing comes in: The key to who gets charged for this scheme may turn on the calendar. Before that December 14 meeting, people involved in the plot have a defense: they can argue they were pushing hypothetical electors in the event that somehow a last-minute court ruling changed the lawful outcome. (There is some precedent for that, in races that were closer and contested, and that’s where the term “alternate elector” can apply.) After the actual Electoral College voted, however, people claiming to be Trump electors from states where voters had elected Biden were engaging in blatant fraud against the Electoral College vote. It’s easy to underestimate the threat of this plot because it all sounds, frankly, delusional. A few random people standing around committing fraud, claiming to be the real electors, does not seem like a viable path to overturning an election. Can anyone imagine a court tossing an entire publicly confirmed election, and its government-supervised certification, because some guys in a parking lot claim to be the “real electors”?
However, these people claiming to be electors didn’t plan on being legitimately counted. They were responding to a top-down plot to contrive a pretext to cancel out the real electors. This conspiracy’s endgame was a power grab, not a legitimate victory or lawsuit. So, confronting these plots requires a mix of objective legal analysis and a feel for the lies and conspiracy theories used—sometimes to great effect—in the world of MAGA politics. Trump aides began trying to launder and normalize the elector fraud in public, at that time. White House aide Stephen Miller did TV interviews touting how an “alternate slate of electors in the contested states is going to vote, and we’re going to send those results up to Congress,” while White House Press Secretary Kayleigh McEnany declared, “there has been an alternate slate of electors voted upon, that Congress will decide in January.”
Notice her clarity about the endgame in January. The idea was not to win over judges in some fact-driven proceeding. It was to offer another pretense—a lie—to Congress in a bid to steal the election. Here’s the playbook: Cite the dueling slates of electors, imply everything is “contested,” throw out the results from Biden states, then “declare” Trump the winner. There was even an arguable path to claim Trump was the winner (which arises later).
The last possible time for this longshot would be, as the nation has now learned, on January 6. Had the plot worked, it would leave under two weeks for the courts or the public to do something to “stop the steal,” as it were.
A REVOLT BY THE STATES Elector fraud was one road toward January 6. Another was trying to get state officials, rather than a handful of Trump supporters, to sow doubt about Biden’s win as a pretense for overthrowing it. Several of these plots deploy the same mechanism: Get politicians to override the voters. This is where Trump’s relentless effort can be clearly seen as an election conspiracy. Getting incumbent politicians to overthrow the vote is literally the simplest version of a coup. It does not require legal theories, the military, or any violent insurrection. It is what despots have done throughout history. That is why the Founders set up so many different roadblocks to prevent it (judicial review, local elections, federalism, an independent military, a lengthy maze of certifications, a prohibition on politicians adjudicating their own races, etc.).
A government override of voters is the preferred mechanism of most modern authoritarians, like Vladimir Putin. Today in Russia, the government purports to hold “elections,” people participate in a supposed “vote,” but the incumbent controls the outcome. Trump and his aides tried this mechanism at most conceivable checkpoints. To reverse Biden’s win, that included demands on local elections officials, state elections officials, elected state lawmakers, elected lawmakers in Congress and, perhaps most absurdly, Vice President Mike Pence. (If the incumbent vice president actually had the lawful power to cancel elections and stay in office, we would have noticed by now. For instance, Vice President Gore certified his own loss in 2000, because he lost the Electoral College in the Supreme Court–supervised results.)
Given the intense support for Trump in the Republican Party, and the fealty Republican politicians have shown him on so many topics, it is worth considering why this particular request was rejected most of the time (with the partial exception of some in Congress, which comes into play later). The answer is the same as why most Trump aides avoided Team Coup and why the Founders got this challenge right: For most officials, the legal and political incentives run strongly against joining a coup. Elections officials who commit voter fraud can get indicted. Under federalism, they are subject to local and state prosecutors. That means they can be indicted regardless of who is president, and separate from national political pressures, which have been moving pro-coup within the GOP.
Perhaps more immediately, state lawmakers who try to toss their own constituents’ votes may find themselves fired in the very next election. (For those wondering, “What if they use similar tactics to insulate themselves from a vote?,” the state officials have a role in overseeing their state’s presidential vote, but none in overseeing their own election results.) The vice president had every informed reason to expect courts to reject any Hail Mary claim that he could personally steal the election. That would leave him as the loser of the election, and the losing leader of a failed plot, with legal exposure.
That is the context and recent history for these three plots. As The January 6 Report went to press, there were no federal indictments of Trump aides for the coup conspiracy. Still, it is notable that the top lawyers who pushed this satchel of plots face a range of legal consequences. Rudy Giuliani has been named as a target for state indictment in Georgia; John Eastman had his phone seized in a federal search; and the highest-ranking DOJ supporter of pushing a state to override its vote, Jeffrey Clark, had his home searched in the investigation.
The plots to get politicians to overthrow the election results began a bit later. By December 7, top White House staff were messaging about a “path” to stealing the election, if they could compel Republican state legislatures to toss their own constituents’ votes for Biden. Prosecutors try to date the inception of premeditated crimes when possible. Trump’s top aide, Meadows, made that easy: He privately texted an ally on December 7 that he had been “working on” the legislature plot “as of yesterday.” (A federal judge has since determined this plot was “fully formed” by that day, citing Meadows’ incriminating admission.) Eastman, a former clerk to the most radical member of the Supreme Court, Clarence Thomas, pushed a plan to have Republican state legislatures “override” their constituents’ votes for Biden. Meadows privately wrote that he loved the idea. Trump administration witnesses later recounted Eastman admitted, at the time, that his plans were unlawful, violating the Electoral Count Act. As this plan cohered in secret, Giuliani was holding bizarre press conferences and giving winding briefings to state legislatures. At the time, it may have looked like another stunt, or publicity-driven act of misdirection. Giuliani didn’t have much evidence and didn’t seem to care.
But the Select Committee’s investigation puts that seeming shortcoming in a different light. In court, a lawyer tries to persuade with facts and logic. In a fraud, the criminal just needs to trick people. This plot was not to “prove” a case, but to get state officials to join in the fraud conspiracy. Trump tried to recruit state officials to overturn the votes, and he had direct contact with people in Michigan, Arizona, and Georgia, where he infamously demanded the top elections official join him in voter fraud. These efforts demanding states overthrow their own votes were extensive but thwarted. Trump would ask Republicans to help steal the election after the fact, and they largely refused. Those failures add context to why Trump and his allies desperately searched for other ways to pressure officials, or to “legitimize” tossing the results with claims of fraud.
That is how Trump landed on a new bank shot, demanding the DOJ interfere in how states count their results.
A FEDERAL MELTDOWN
Those plots are the context for Trump trying to get the Justice Department to join his corrupt state plot. No state legislatures were taking action. So, Trump pushed the Justice Department to push the states. The idea was either that this public Trump administration move would add political pressure, or the Justice Department’s involvement would add credibility, or a pretext, for states to overthrow their own constituents’ votes while claiming fraud or other rationales. Trump’s own top DOJ appointees were adamantly opposed. The DOJ has strict protocols for any election-related activity, let alone a losing incumbent trying to abuse power to stage a coup. A mid-level DOJ official, Jeffrey Clark, supported a scheme where the DOJ would, for the first time ever, try to order a state to override its own voters’ presidential choice. The idea was for the DOJ to release a letter telling Georgia’s legislators they should come back into session and override their citizens’ votes for Biden. The proposed strategy here was legally absurd and politically clumsy. A public letter would draw attention to the legislature, possibly provoking more pushback. It would mark any later effort to change Georgia’s results as a push coming from out of state—a corrupt association, and anathema in politics. Trump mulled overriding DOJ leadership by promoting Clark to attorney general, and he discussed the plan with his own DOJ appointees. That is when he learned that the plot could trigger a wave of resignations similar to the Saturday Night Massacre under Richard Nixon. (At one point, White House logs identified Clark as the new acting attorney general, a Trumpian act that was apparently retracted within hours.) As Trump’s DOJ appointees later testified, they vowed to resign, along with possibly “hundreds” of colleagues, if Trump acted on this. This clash came in late December and would probably have hindered Trump’s plans for January 6. The appointees also warned him the ensuing scandal would contradict the message of any DOJ letter, undercutting any supposed pressure on Georgia to actually convene a session to override the vote. According to those Trump appointees’ testimony, what moved Trump the most was the warning that the plan was bad PR and would fail to move the legislature. The plot fizzled out as a bust. THE PENTAGON AND ORANGE JUMPSUITS In countries that hold elections, the simplest type of coup occurs when the government overrides them in a “bloodless coup,” only resorting to force if there’s a popular uprising. Election results are ignored or replaced. Yet the most infamous type of coup, across all forms of government, is the military coup. The military’s dominant and severe force makes it a natural temptation for authoritarians. A leader recruits the military to take or hold power. In countries with weak governance, the very real prospect of (another) military coup is so normalized, it hangs over the political system as a kind of check—politicians court the generals, and they have the last word on an administration. Trump has long admired autocrats who rule through the military, from Putin to Erdogan. It was not a giant leap that he explored how to get the U.S. military to help his coup. This is one of the plots that was quickly thwarted. He was stopped by the apparent realization it would not work—not by law or ethics. In late December, Trump could see most of his active plots were failing. The lawsuits were basically over; the fraudulent electors did not budge the real Electoral College vote; not a single Biden state took public action to alter its election outcome. Those failures matter because they set the stage for more desperate action. Some people caricature Trump as reckless and sloppy. His brushes with the law, however, show a methodical posture toward risk—he did not start with the military plot in November, let alone with the January 6 plan. He turned to the riskier plots when his options were running out. At this point, Team Coup was thin. Even some of Trump’s top loyalists were blanching at where his plots were headed. Trump turned to a lawyer who would give him the answers he wanted, Sidney Powell. She was part of a group of outsiders who were so extreme, Meadows barred them from the White House. But on December 18, a young aide to White House adviser Peter Navarro snuck in Powell and retired General Mike Flynn for a last-ditch shot at the military plan. (The aide lost his credentials privileges for the infraction.) Essentially, the idea was Trump would use his authority to appoint Powell as a special prosecutor (technically legal) and use that post as a bridge to have the military seize voting machines (illegal). The military does not report to the Justice Department, and military leaders have a duty to refuse to carry out a clearly unlawful order. The discussion over that plan is the most intense, unruly, and bizarre meeting in the documented history of the Trump White House. The sheer emotion of it drew attention in the Select Committee’s hearings, but unlike some Washington scandals, the emotion functioned largely in proportion to the gravity of the situation. Government lawyers testified it was a nutty screaming match that stretched across several hours, as participants grasped that the idea was to try to conscript the military into a coup, seizing voting machines in a plot to prevent the incoming administration from taking office. The plot remained largely secret, only later to be exposed by the Select Committee and investigative reporters. But some of its architects vaguely talked up parts of the plot in public. White House aide Peter Navarro went on TV to suggest “a special counsel that we put in place before Inauguration Day,” adding, “I think we need to seize a lot of these voting machines.” At one point in the meeting, Trump said he was taking the action of appointing Powell as special prosecutor. She never took any documented steps toward taking the position. By the end of the night, Trump scrapped the plan, apparently convinced it was both futile and legally risky. Even Rudy Giuliani, who crossed so many lines as Trump’s lawyer that he had his law license suspended and was named a target for indictment in Georgia, warned Trump the military plan was a death wish. Giuliani told Trump that “we would all end up in prison” if he tried it, according to one of the meeting participants, Patrick Boyde, who spoke to the New York Times. So Trump apparently dropped that plot. There is no public evidence that he or Powell attempted to actually issue the military order. But Trump did not stop there. The failure of that plan led Trump to the most fateful act in his entire coup conspiracy. On that same late night, Trump made his first public push to summon followers to sabotage the certification on January 6. This is one of the most damning pieces of evidence exposed by the Select Committee. It informs Trump’s ongoing criminal intent: to overturn the election. It shows that when Trump did back down or abandon plots it was not because of any adherence to the law. It was due to self-interest. He kept his dogged focus on plots that he believed could overturn the election. That suggests a criminal intent spanning months—a long way from the legalistic fixation on Trump’s specific intent at one speech on January 6. Team Coup continued to thin; Giuliani had turned from an enabler to a putative voice of reason on certain plots. So, Trump turned to a plot pushed by the most extreme, loyal coup plotters—John Eastman, Peter Navarro, and Steve Bannon. This was the unprecedented, seemingly bizarre fixation on turning something pro forma—the Congressional certification of Electoral College votes—into a battle royale to cancel a national election. For the first announcement of such a crucial plan, one might expect a speech, media appearance, or Internet post during waking hours. But in a sign of Trump’s personal and intense commitment, the evidence shows he went directly from the coup meeting to the Eastman–Navarro plot, tweeting in that same early morning: “Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump. Big Protest in DC on January 6 . . . will be wild!” That message marks the first time Trump ever told his supporters where to go to join the fight. At the time, it was not widely interpreted as a call to arms. If anything, political analysts treated it as one last bid to sow confusion about the results or stoke the perception that Trump went down fighting. That dangerously underestimated the objective. It was actually part of an organized plot that was far from “dead on arrival.” Indeed, it could have worked. The evidence shows that Trump’s team had the intent to sabotage the January 6 certification of then President-Elect Biden’s win in at least three ways: Revive the elector fraud plot on the Senate floor. Compel Mike Pence to claim he had the authority to delay or override the certification. Deploy violence to delay or override the certification. A vice president claiming authority he does not have is unconstitutional. Elector fraud and violently storming the Capitol are illegal. All three plans evinced illicit intent, and the two illegal ones had criminal intent. Unlike some of the plots that fizzled, Trump’s team took concrete actions to get those things done: as late as January 6, Republican allies were pushing to present fraudulent elector slates on the Senate floor; Trump privately and publicly ordered Pence to interfere in the certification; and, of course, his supporters responded to Trump’s address by unleashing a violent crime spree of trespassing, assault, battery, battery with deadly weapons, threatened assassination, and other attacks to delay the certification, which they achieved. A CERTIFICATION OR A COUP Some legal issues are debatable. Trump’s plot for Pence on January 6 was not one of them. It was unconstitutional, and bananas, to claim that an incumbent administration can steal the election by having the losing vice president magically reject the results in his ceremonial role presiding over the Senate. Trump’s White House lawyers rejected the plan, as did Pence’s lawyers. Trump’s coup lawyer, John Eastman, tried to provide cover by writing up his unconstitutional opinion that Pence could take up a new role, “not to just open the votes, but to count them,” making him the “ultimate arbiter” of who won. Trump demanded Pence exploit the ceremonial role to try to steal the election. Trump spoke with Pence about it as late as January 4. Pence has not testified or said much about the details of their discussions. It’s unclear if Trump attempted to issue an order, which Pence would then formally resist as unlawful, or if in private, he continued the tone of his public speeches and tweets, which largely pushed and prodded Pence to act. There is zero precedent, law, or logic supporting a vice president having powers to alter the ceremonial certification on January 6. But had Pence made any claim to that power, or made a surprise announcement in the Senate that the certification must be delayed, the January 6 session would have likely been thrown into chaos. If there was no resolution that day, Trump’s claim that the election was still contested would be strengthened. The courts might stay out of calls to resolve a political dispute about how Congress governs itself. So while Pence did the bare legal minimum, it also took the resistance of Trump’s handpicked ally, opposing a coup that would have kept him in power, to avert that kind of crisis. As Pence and others pushed back, Trump relied more on his most extreme and desperate enablers. Throughout Trump’s presidency, John Eastman was an obscure figure. He had never held a top job for Trump. He only appeared on the radar after Trump lost the election. In Washington, that put him in the uninteresting category of lame-duck staff, people who might eke out their fifteen minutes in the last days of a term. As Trump pushed Pence, Eastman went on Steve Bannon’s show—popular with Trump’s most rabid supporters—pushing the January 6 plot by declaring that a second Trump term hinged on the “courage and spine” of Pence. On January 6, one senator was still trying to hand Pence materials about fraudulent electors on the Senate floor, as the Select Committee uncovered. It may seem odd, but it makes sense within these larger plots. The idea was to give Pence one final pretext to claim he had just received competing slates of electors, so the vote could not be certified. Pence’s aide texted the senator’s staffer, “Do not give him that,” just twenty minutes before Pence came into the Senate. (More than 130 Republicans later voted to object to the certification, with eight Republican senators.) The thwarted plot shared the goal of the insurrectionists—sabotage the certification—but operated separately. It could have been much more chaotic, perhaps even effective, had the defeated vice president taken different action—or had Trump picked a different vice president. BLOODLESS COUP The insurrection was a violent attack on the peaceful transfer of power. The rightful scrutiny of that violence, and the sheer danger, panic, and drama of the mayhem, can divert focus from the illegal, nonviolent attacks on the peaceful transfer of power. Several of these plots targeting January 6 were designed to work together: Upend, delay, or override the certification of Biden’s win via Pence or Congress; or get Pence or Congress to cite “contested” results as the reason, pointing to the fraudulent electors or dissenting state officials that would also be organized by the Trump plotters. None of those plots required storming the Capitol. Indeed, it is vital to understand those coup plots would be wrong, and likely illegal, even if the insurrection never occurred. Most of the evidence of those plots emerged after they failed and Trump left office. Peter Navarro, the indicted White House aide whom Trump cited in his first announcement of a January 6 rally, has publicly made the same distinction about force—that their plot was to overthrow Biden’s victory peacefully. Navarro coordinated with Bannon, who was later convicted for defying the Select Committee, and touted their congressional plot as a “Green Bay Sweep” (a nod to the football play). Like Bannon, Navarro admits key parts of the plot. The plan was to hijack the January 6 certification and “remand those [Biden] votes back to the six battleground states,” Navarro told me in an interview, with “over 100 congressmen and senators on Capitol Hill ready to implement the sweep.” He received his first subpoena from the Select Committee after that interview, and he was later indicted for defying it. (At the time of the report’s publication, he awaits trial.) On January 2, Trump took a final stab at the plot to get states to overturn the votes. He spoke to hundreds of state legislators on January 2, telling them they still had the “real power” to decide the election by overriding their citizens’ votes for Biden. It was too late for states to take any legal action, but the apparent idea was to get them to voice support for the idea that Congress could still reject votes from certain states. It was actually on that same day that Trump made his incriminating call to the top elections official in Georgia—which sparked a state criminal probe—demanding they “find 11,780 votes, which is one more than we have.” Trump and his aides also floated vague, unsubstantiated allegations of voter fraud. It didn’t move those states or state officials. Republican members of Congress, however, proved more receptive, regardless of the evidence. Rudy Giuliani has admitted that he briefed Republican lawmakers about the plan, naming some (Representatives Jordan and Gaetz). Bannon, who was still pursuing a pardon for an unrelated indictment at the time, said he expected the support of leading senators (naming Cruz, Graham, and Cotton). Trump didn’t need all those plots to succeed. He needed to thwart or delay the January 6 certification. If Biden’s victory was not certified on, say, January 7—even if prevented by illegal means—then as a Constitutional matter, there would be a wrinkle for President-Elect Biden. It could be fixed—by completing the certification—or it could grow into an allegedly constitutional question. Here’s why that matters: Under the rules, there are ways the Trump plot could have gone further, or even led to the constitutional crisis of two dueling presidents elect. Most people are not constitutional scholars, so most people have not dug into that danger. It is vital to understand, especially for preventing similar plots in the future. ENDGAME There is a great deal of information about January 6. Videos. Pictures. Testimony. Articles. Hearings. And now this exhaustive report. For all that information, however, it is rare to hear the endgame explained. The hardcore coup plotters wanted more than chaos or a last stand. The objective was to sabotage the certification in order to keep Trump in power. If the certification was merely delayed or prevented, under law, President-Elect Biden would be on track to assume office. If the issue reached the courts, they would likely rule that a logistical certification problem does not reverse the election. (One can imagine hypotheticals, like a surprise attack in war, where Congress is unable to meet to certify before the transfer of power on January 20.) So, the coup required more. The idea was to try to exploit a rule where if a presidential race is genuinely contested, and neither candidate has a majority, then before anything reaches the courts, the House of Representatives resolves the contested race with its own unusual vote. This is supposed to be the last resort for genuine toss-ups. That House vote is tallied by one vote per state, under the arcane rules. Republicans controlled twenty-seven state delegations in the House. A straight party-line vote would go to Trump. If that happened, Biden could sue, asking the Supreme Court to reject the House interference as a fraud used to falsely claim a “contested” race. The Court could take the case on an emergency basis and determine the true winner in the few remaining days before the transfer of power. Or it could simply decline, leaving the House’s rearguard action for Trump as the now-legal result. The U.S. did not reach that point in 2021. It may still sound outlandish to some observers. It is, however, precisely why Trump’s coup plotters picked January 6. It is why Trump seized on that day when the military plot failed. It is why Mark Meadows and Trump’s son were discussing “multiple paths” they intended to “control” for staying in power despite losing. It is the outcome Trump’s plotters sought, which is relevant both to their culpability and how the United States tries to defend elections going forward. A VIOLENT INSURRECTION Then there was the violence. Trump summoned his supporters to Washington and planned to send them from his rally to the Capitol, where he intended to join them—and he continued with that plot knowing many were armed. “They aren’t here to hurt me,” he said, according to his aides’ testimony. That morning, Trump knew his other seven plots were thwarted. He knew that Pence and House Republicans and the elector fraud had not forged anything like a path to holding power, just as he knew he needed something beyond the aborted military plot when he first sent out the call to turn January 6 into a “wild” gathering in D.C. Trump pushed, welcomed, and encouraged the attack on the Capitol. It was his plan. He did not take action to stop it as president, and he commended the attackers afterward. After leaving office, he vowed pardons for them. Where other plots failed, the Trump fans’ violence did achieve a key illicit goal: Their crimes prevented Congress from certifying the vote on the legally required date of January 6. It was actually 3:40 a.m. on January 7 when the vote was finally certified. In an even larger attack, one with grenades or bombs, the delay would be longer. (The police initially told Congressional leaders they needed “days” to secure the Capitol on January 6.) In a larger attack, Americans would wake up on January 7 with no certified winner. There would be thirteen days until the transfer of power at the inauguration—with an incumbent president claiming the power to stay in office. JUSTICE The prosecution of the insurrection has fixated on the people who came to Washington to storm the Capitol, not the people who sent them there. That may eventually change. The investigations of the other plots have scrutinized some of the leaders who plotted to overthrow the election, but no Trump figures have been indicted on those election crimes. That, too, may eventually change. What would justice look like? Beyond the fundamentals—an objective, nonpartisan probe; due process; the presumption of innocence at trial—a just probe must face the powerful with the same vigor it bears down on the pawns. It must evaluate the alleged crime—not the person accused—with no fear or favor for people who may run for office or gain power again. Across the eight plots of the coup conspiracy, some efforts may not rise to the standard for indictable crimes. The lawsuits were lawful, even when packed with professionally sanctionable lies. (More than one Trump lawyer is barred from practicing law for that reason.) The electors plot began as arguably lawful, because election law provides for a period of time to contest even seemingly decisive results. The actions of elected lawmakers, in Congress or state legislatures, are presumptively lawful within their official capacities—barring some external fraud or crime.
So if a state legislature tried to vote to change the 2020 results, or more members of Congress voted against certifying them, those legislative actions are not typically prosecutable. (The Supreme Court would likely find them unconstitutional and halt them.)
Under current law, a disturbing amount of conduct designed to steal elections is not indictable. These coordinated Trump plots, however, went far beyond lawsuits and legislative debates. They involved a criminal coup conspiracy. One plank is the now-convicted sedition conspiracy in the violent January 6 attack—one of the gravest federal crimes—while other planks stretch across the assorted plots to overturn and steal state election results, or fraudulently advance efforts to have Congress overturn the results.
Justice would mean prosecutors pursue people who attempted or completed conspiracies to defraud the United States; commit sedition and related violence; hinder the counting or certification of votes and election results; submit fraudulent votes or electors; corruptly use government powers to oversee elections or prosecutions; or violate other federal or state laws safeguarding elections, the transfer of power, and government integrity.
Justice would mean facing the overwhelming evidence that the leader and beneficiary of the coup conspiracy, Donald Trump, be held accountable for his criminal intent and direct actions. In the U.S. system of criminal justice, the decision to indict a person is up to prosecutors—not subject to some vote or public lobbying. Each defendant’s ultimate guilt is decided by an impartial jury, not people bringing their preconceptions for a preordained result. The public’s principles and civic culture can also shape legal priorities—some prosecutors are elected; laws are written by elected politicians—and the nation clearly needs a public willing to stand for democracy over coups right now.
A TRAINING EXERCISE?
January 6, 2021 is far more than a day. It’s more than a shorthand for an event and its related issues, like some historical dates in the public mindset. And January 6 turned out to be more than one violent attack. January 6, 2021 marks the criminal culmination of an organized conspiracy led out of the White House. The evidence of criminal intent runs across weeks and sometimes months. Several plotters were warned their plans were unlawful or criminal, and they repeatedly pressed on. Most of the plotters never took the physical step of storming the Capitol or engaging in combat. Some even opposed that particular tactic, while pushing other illegal plots pursuing the exact same result.
The people at the Capitol that day—many now convicts—formed the criminal muscle backing one plot among several. They did not operate in isolation. To Team Trump, those people were clearly pawns. The more senior planners, aides, and lawyers—the ones who knew the certification date, and how the Electoral Count Act might be exploited, and the rules for an endgame where a delayed certification might actually keep Trump in office—none of them have been indicted.
That’s why the date matters. If this were a one-day riot, that might be the right outcome. If it is a coup conspiracy, and the powerful people—in White House meetings guarded by agents with guns, wielding the powers of prosecution, force, and even the military—get away with their attempted coup, then what?
The consequences go beyond justice. The consequences cut to the public’s safety and the future of American democracy. Doug Porter, a political writer, put it simply: “If Trump’s coup attempt goes unpunished, it will become a training exercise.”
That’s where we are now. The full, objective reality of what happened, and what we do about it, can decide whether the United States acts to make this an aberration of the current era, or a public training for the next coup. Democracy may now turn on facing the facts—in this report and in independent accounts of these plots—and whether the U.S. government acts on them.
~~~
If you have any questions or wish to know about specific issues covered in the report, make a comment and I will try to provide additional information if possible and available...
Note: The Publisher sets limits on the amount of material that can be copied and used for purposes of reviews, etc., The Entire Foreword was permitted.
The January 6 Select Committee. The January 6 Report (pp. V-i). HarperCollins. Kindle Edition.
.jpg)
