Trump’s Attempt to Retain Power

After losing the election for a second term, Donald Trump tried to overturn the results and keep himself in power.

Contents

Trump’s Seven Point Plan to Keep Himself in Power
Jan 6 Committee, Liz Cheney CNN

  1. President Trump engaged in a massive effort to spread false and fraudulent information to the American public claiming the 2020 election was stolen from him.
    • Hearing Day 2
  2. President Trump corruptly planned to replace the Acting Attorney General, so that the Department of Justice would support his fake election claims.
    • Hearing Day 5
  3. President Trump corruptly pressured Vice President Pence to refuse to count certified electoral votes in violation of the US Constitution and the law.
    • Hearing Day 3
  4. President Trump corruptly pressured state election officials, and state legislators, to change election results.
    • Hearing Day 4
  5. President Trump’s legal team and other Trump associates instructed Republicans in multiple states to create false electoral slates and transmit those slates to Congress and the National Archives.
    • Hearing Day 4
  6. President Trump summoned and assembled a violent mob in Washington and directed them to march on the US Capitol.
    • Hearing Day 1
  7. As the violence was underway, President Trump ignored multiple pleas for assistance and failed to take immediate action to stop the violence and instruct his supporters to leave the Capitol.
    • Hearing Day 8

1. Spreading Disinformation

  • 4 takeaways from the second Jan. 6 committee hearing Aaron Blake WaPo
    • 1. Trump was told that his fraud claims had been debunked, but he didn’t seem to care
    • 2. More evidence was set forth that almost everyone around Trump knew he had lost
    • 3. Giuliani supported Trump’s claims of election fraud.
    • 4. A new crime floated: fundraising fraud.
  • The Jan. 6 committee exposed Trump’s lies — and indicted the GOP in the process Jennifer Rubin WaPo
    • Stepien’s pre-recorded video testimony, as well as testimony from former attorney general William P. Barr and former Fox News editor Chris Stirewalt, demolished the notion that there was ever evidence of fraud that would reverse the election’s outcome. Barr told Trump this. So do Stepien. So did acting attorney general Jeffrey Rosen. When Justice Department officials debunked baseless claims one by one about fraud in Michigan, Georgia and Pennsylvania, Trump threw out even more ludicrous claims.
  • Jan. 6 Panel Tracks How Trump Created and Spread Election Lies NYT
  • 10 Trump election lies his own officials called false  CNN
  • Trump Ignored Aides, Repeated False Fraud Claims  factcheck
  • Lie After Lie: Listen to How Trump Built His Alternate Reality, NYT
    • 38-minute video of hundreds of public statements from Nov. 4, 2020, to Jan. 6, 2021
  • Trump has amplified voting falsehoods in over 300 tweets since election night. NYT
  • Trump’s false claims on mail-in voting, factcheck.org
  • Trump’s Falsehood-Filled ‘Save America’ Rally factcheck.org
  • The pro-Trump media world peddled the lies that fueled the Capitol mob. Fox News led the way. Sullivan WaPo
  • Nine Election Fraud Claims, factcheck.org

View Big Lie

2. Replacing Acting Attorney General

  • 5 Takeaways From Thursday’s Hearing by the Jan. 6 CommitteeNYT
    • Mr. Trump aggressively pursued a plan to install as acting attorney general a little-known Justice Department official, Jeffrey Clark, who was prepared to take actions to reverse the election results.
    • At the center of the plan was a letter drafted by Mr. Clark and another Trump loyalist that they hoped to send to state officials in Georgia. The letter falsely asserted that the department had evidence of election fraud that could lead the state to rethink its certification of Joseph R. Biden Jr.’s victory there.
    • Time after time, the White House brought baseless and sometimes preposterous claims of election fraud — including internet conspiracy theories — to Justice Department officials so that they could use the nation’s law enforcement powers to investigate them. And time after time, the department and the F.B.I. found the claims had no validity.
    • Trump considered naming a loyalist lawyer, Sidney Powell, as a special counsel to investigate fraud claims.
    • Members of Congress sought pardons — and Trump considered the requests.
  • Lessons from Thursday’s Jan. 6 hearing  Jennifer Rubin WaPo
    • Justice Department lawyers repeatedly told Trump he had the facts and the law wrong
      • Donoghue testified that Trump instructed him to “just say the election was corrupt and leave the rest to me and the Republican congressmen.”
    • The Clark letter was only one of several gambits he tried in enlisting the Justice Department to overthrow the election.
      • Engel testified that Trump wanted the department to file a lawsuit with the Supreme Court.
      • Trump also wanted Rosen to appoint a special counsel — Trump lawyer Sidney Powell — to investigate fraud claims.
      • On New Year’s Eve, Trump’s attorneys were asked to “seize” voting machines. They told him there was no basis in law or fact to do so.
    • The threat of mass resignation stopped Trump from appointing Clark
  • Jan. 6 Panel Outlines Trump’s Bid to Coerce Justice Dept. Officials NYT
  • Echoes of Watergate: Trump’s appointees reveal his push to topple Justice Dept.  WaPo
  • The panel detailed how Trump tried to get the Justice Dept. to help him overturn the election. Here’s the latestNYT
  • 5 takeaways from the Jan. 6 hearing on Trump’s Justice Dept. plot  Aaron Blake WaPo
  • Rep. Scott Perry played key role in promoting false claims of fraud  WaPo
  • Meadows Pressed Justice Dept. to Investigate Election Fraud Claims NYT
  • Trump Pressed Official to Wield Justice Dept. to Back Election Claims, NYT
  • As Trump pushed for probes of 2020 election, he called acting AG Rosen almost daily WaPo
  • Trump Pressed Justice Dept. to Declare Election Results Corrupt, Notes Show NYT

3. Pressuring Pence to Throw out Biden Electors or Delay Certification

  • Here are 4 takeaways from Thursday’s Jan. 6 hearing.NYT
    • Even Eastman doubted his plan’s legality, and he let Trump know that.
    • Pence never wavered on rebuffing Trump.
    • There was no legal underpinning to the Eastman plan.
    • The pressure campaign helped trigger the violence.
  • 4 takeaways from the Jan. 6 committee’s hearing on Pence  Aaron Blake WaPo
    • 1. Witnesses: Giuliani and Eastman knew this was probably illegal
    • 2. Eastman’s big pardon request
    • 3. Pence said rejecting Trump plot was ‘most important thing I ever say’
    • 4. Democrats hail Pence
  • Trump’s pressure campaign on Pence was more vindictive than anyone imagined Jennifer Rubin WaPo
  • Memo shows Trump lawyer’s six-step plan for Pence to overturn the election CNN

4. Pressuring State Election Officials and State Legislators

  • Secretary of State Brad Raffensperger
    • Trump pressured a Georgia elections investigator in a separate call legal experts say could amount to obstruction, Amy Gardner, WaPo
    • Trump, in Taped Call, Pressured Georgia Official to ‘Find’ Votes to Overturn Election, NYT
  • Governor Brian Kemp
    • Trump called Georgia’s governor to urge him to help overturn Biden’s win in the state. NYT
  • Getting swing states not to certify Biden’s votes
    • Trump invites Michigan Republican leaders to meet him at White House as he escalates attempts to overturn election results  WaPo
    • Inside Trump’s pressure campaign to overturn the election, Politico
  • Trump asks Pennsylvania House speaker for help overturning election results, personally intervening in a third state, WaPo

5. Creating Fake Electors

  • Panel Ties Trump to Fake Elector Plan, Mapping His Attack on Democracy  NYT
  • 4 takeaways from the fourth Jan. 6 hearing  Aaron Blake WaPo
    • 1. Rusty Bowers’s compelling testimony: More evidence the Trump team knew its effort was illegal
    • 2. RNC chair links Trump to fake-elector plot
    • 3. Officials talk about intense pressure, protesters near families
    • 4. Another member of the GOP testifies about Trump’s false statements
  • Trump campaign documents give inside look at fake-elector planWaPo
    • But internal campaign emails and memos reveal that the convening of the fake electors appeared to be a much more concerted strategy, intended to give Vice President Mike Pence a reason to declare the outcome of the election was somehow in doubt on Jan. 6, 2021, when he was to preside over the congressional counting of the electoral college votes.
  • The Jan. 6 hearings show urgency of Electoral Count Act reform  Jennifer Rubin WaPo
  • Fix the electoral count law now, before Trump tries to exploit it again  WaPo Editorial
  • Timeline: The Trump team’s ‘fake elector’ plot  Aaron Blake WaPo
  • The Fake Electors Scheme, Explained  NYT
  • EXPLAINER: How fake electors tried to throw result to Trump AP
    • Electors in seven battleground states signed certificates falsely stating that Trump, not Democrat Joe Biden, had won their states. They mailed those certificates to the National Archives and Congress, where they were ignored.
  • Memos Show Roots of Trump’s Focus on Jan. 6 and Alternate Electors NYT
  • Jan. 6 Committee Subpoenas Fake Trump Electors NYT
  • Committee investigating Jan. 6 attack issues subpoenas to 14 bogus Trump electors in states Biden won WaPo
    • Ten of the subpoenaed individuals had gathered Dec. 14, 2020, the day of the electoral college vote, in the capitals of five states that Biden had won: Arizona, Georgia, Michigan, Nevada and Wisconsin. They declared themselves “duly elected and qualified” and sent signed certificates to Washington purporting to affirm Trump as the actual victor.
    • The remaining four individuals cast “alternate” electoral votes for Trump in Pennsylvania and New Mexico and sent certificates explicitly stating that they were to be considered only if the election results were upended.
  • Federal prosecutors examine slates that offered Trump electoral votes in states Biden won in 2020 WaPo

6. Directing Mob to March on Capitol

  • Holding the ‘Save America’ rally on the day Congress was to certify the winner of the election.
  • A mob insurrection stoked by false claims of election fraud and promises of violent restoration, WaPo
  • Trump’s Falsehood-Filled ‘Save America’ Rally factcheck.org

7. Failing to Take Action for 187 Minutes

  • 187 minutes from 1:10 to 4:17
    • 1:10  Trumps speech ends
    • 2:24 Tweet about Pence
    • 3:13 Tweet to remain peaceful
    • 4:17 Trump released video
  • Trump ‘chose not to act’ as mob terrorized the Capitol, panel showsWaPo
    • “Here’s the worst part,” Cheney said. “Donald Trump knows that millions of Americans who supported him would stand up and defend our nation. Were it threatened, they would put their lives and their freedom at stake to protect her. And he is preying on their patriotism. He is preying on their sense of justice. And on January 6, Donald Trump turned their love of country into a weapon against our Capitol and our Constitution.”
  • Jan. 6 Panel Presents Evidence of Trump’s Refusal to Stop the Riot NYT
  • Jan. 6 Hearings Day 8: Trump’s ‘Complete Dereliction’ of His Duty  NYT
  • Why we should care about the 187 minutes  Rubin WaPo

Trump’s Possible Crimes

Criminal Intent

If I believe that an election was stolen from me and bribe an election official to “fix” the results, I’m still guilty of a felony. My belief, whether true or false, is not a defense.

  • Hutchinson’s testimony shatters any Trump defense of no criminal intent  George Conway and Randall D. Eliason WaPo
    • Consider the case against O.J. Simpson — not the murder case but the one that ultimately put him in jail: for armed robbery in a Las Vegas hotel room. Simpson believed a memorabilia dealer had stolen personal items from him. So he and his co-conspirators took the items back at gunpoint.
    • But Simpson’s motive — his belief that the items were rightfully his — didn’t help him, and he ended up serving nine years in prison. What mattered was that he intended to, and physically did, take the items back by force, using a deadly weapon.
    • By the same token, even if Trump truly believed there had been election fraud — indeed, even if there had been election fraud that affected the outcome — he wasn’t entitled to unleash a mob on the Capitol, or to intimidate his vice president or Congress into violating their legal duties, or to have phony electoral certificates sent to Washington. His irrational belief that the election outcome was wrong would not negate his criminal intent.
    • As with Simpson’s claimed righteous state of mind, Trump’s alleged belief that “frankly, we did win this election” won’t help him, either. If Trump is shown beyond a reasonable doubt to have intended to overturn the election by illegal means — by fraud or corruption or force — he has a guilty state of mind. If Hutchinson’s testimony stands up — and it’s entirely consistent with many things we already know — any claim that Trump lacked criminal intent would be laughed out of court.
  • Did Trump believe his big lie? It’s irrelevant to proving his guilt. Ryan Goodman, Norman Eisen and Barbara McQuade WaPo
    • “Mens rea,” Latin for “guilty mind,” is required to convict. This generally means that the offender must have acted purposely, knowingly, recklessly or negligently in committing the criminal act.
    • For a number of the possible crimes the committee has identified, it doesn’t matter what Trump believed about the election. Focusing on that aspect misses the true test of criminal intent.
    • Soliciting state officials to violate their oaths of office in administering elections is a clear state crime across the country, including in Georgia. Were Trump’s lawyers to say at trial, “Yes, but our client thought he had won the election,” they would be laughed out of court.
    • Vigilante justice is against the law, even if you (wrongly) believe you are a victim.
  • law.cornell.edu/wex/intent
    • Some jurisdictions classify intent into general and specific.
    • Drawing this distinction is important because they carry different standards of proof.
    • For general intent, the prosecution need only prove that the defendant intended to do the act in question, whereas proving specific intent would require the prosecution to prove that the defendant intended to bring about a specific consequence through his or her actions, or that he or she perform the action with a wrongful purpose.

Georgia Investigation

  • Georgia Code Title 21 § 21-2-604
    • A person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct. 
      • In other words:
        • A person commits criminal solicitation to commit election fraud if they request or attempt to cause another person to engage in election fraud.
  • The Georgia criminal investigation into Trump and his allies, explained WaPo
    • Willis and her team appear to have zeroed in on these three areas:
      1. Trump’s calls to Georgia’s secretary of state, governor, attorney general and state lawmakers.
      2. Testimony that Trump allies gave to Georgia state legislators in December 2020.
      3. The scheme the Trump campaign coordinated on Dec. 14, 2020, to certify a slate of fake electors to the electoral college to contest the results of the 2020 election.
    • Legal experts say Trump or his allies might have broken these Georgia laws:
      • “Solicitation to commit election fraud” is a felony that takes place when anyone pressures a person to, in some way, tamper with election results. Prosecutors are investigating whether Trump credibly broke this law in his phone call with Raffensperger.
      • Attempting to “interfere with, hinder, or delay” election administrators’ work is a misdemeanor. That statute, which centers on a person’s actions rather than intent, could cover Trump and his allies’ interference with the secretary of state’s office and local election officials, as well as the Trump campaign’s effort to coordinate a slate of fake electors for the electoral college.
      • Under Georgia’s anti-racketeering law, it is illegal to coordinate criminal acts through an organization or to do so to gain control of an enterprise. In Trump’s case, the prosecutors could determine that his presidential campaign constituted a criminal enterprise for its conduct after the election or that his team’s coordinated efforts to win the presidency were a conspiracy to take over an enterprise.
    • Willis requested a special grand jury because a “significant number of witnesses and prospective witnesses,” including Raffensperger, “have refused to cooperate with the investigation absent a subpoena requiring their testimony,”
    • Unlike a normal grand jury, a special grand jury does not vote on whether to bring criminal charges. Instead, it will probably draft a report recommending whether Willis should file charges against Trump or his allies. Should Willis decide to prosecute, a regular grand jury would be called to decide whether to bring charges and in what alleged crimes.
  • Fulton County, Georgia’s Trump Investigation: An analysis of the reported facts and applicable law Brookings
    • “We conclude that Trump’s post-election conduct in Georgia leaves him at substantial risk of possible state charges predicated on multiple crimes.”
    • “These charges potentially include criminal solicitation to commit election fraud; intentional interference with performance of election duties; conspiracy to commit election fraud; criminal solicitation; and state RICO violations.”
  • The Georgia investigation is heating up, and it’s ominous for Trump  Jennifer Rubin WaPo
  • The Georgia investigation remains Trump’s biggest problem yet  Jennifer Rubin WaPo
  • Interview with Barbara McQuade NYR
  • Georgia Has a Very Strong Case Against Trump Atlantic

Timeline of Fake Elector Plot

Timeline: The Trump team’s ‘fake elector’ plot  Aaron Blake WaPo

  • Nov. 3: Election Day 2020. Trump leads in key states on election night. But the addition of mail ballots to the totals severely threatens his lead.
  • Nov. 4: Former Trump energy secretary Rick Perry texts White House chief of staff Mark Meadows with an idea: States Trump lost that have Republican legislatures could “just send their own electors to vote and have it go to the” Supreme Court. Perry concedes it’s an “AGRESSIVE STRATEGY.” [sic]
  • Nov. 5: Donald Trump Jr. also begins floating such ideas, citing GOP control of state legislatures and the U.S. Senate. “It’s very simple,” he writes to Meadows. “We have multiple paths We control them all.” (Trump Jr.’s attorney later said the idea “likely originated from someone else and was forwarded.”)
  • Trump-allied conservative lawyer Cleta Mitchell writes to Eastman suggesting that he begin to look at alternate electors. “John — what would you think of producing a legal memo outlining the constitutional role of state legislators in designating electors?” Mitchell asks. She adds: “A movement is stirring. But needs constitutional support.”
  • Nov. 6: Rep. Andy Biggs (R-Ariz.) also suggests GOP state legislatures could send Trump electors despite the election results, while acknowledging that the idea is “highly controversial.” Meadows responds: “I love it.” Meadows responds to a similar message by saying, “Yes. Have a team on it,” according to the House report on Meadows’s contempt of Congress.
  • Nov. 7: Biden is projected as the winner.
  • Nov. 17: Trump calls the two Republican canvassers in Detroit-based Wayne County, Mich. — a county he falsely flagged as having illegal “vote dumps” for Biden. They briefly rescind their certification but, ultimately, sign off on the results.
  • Nov. 18: Trump-allied lawyer Kenneth Chesebro sends a memo to Trump’s lead attorney in Wisconsin arguing for an alternate-elector push on Dec. 14, the deadline for electors. “It may seem odd that the electors pledged to Trump and Pence might meet and cast their votes on December 14 even if, at that juncture, the Trump-Pence ticket is behind in the vote count, and no certificate of election has been issued in favor of Trump and Pence,” Chesebro writes. “However, a fair reading of the federal statutes suggests that this is a reasonable course of action.” It’s one of the earliest indicators that Trump allies viewed Jan. 6 rather than Dec. 14 as their deadline.
  • Nov. 19: Trump invites high-ranking Republican state legislators from Michigan to the White House in an apparent effort to pressure them on the state’s election results.
  • Late November: Trump and Rudy Giuliani call Arizona House Speaker Russell “Rusty” Bowers (R) in an attempt to block the certification of the state’s results. Bowers declines to go along with it.
  • Nov. 28: By this date, Eastman has written his memo on electors. But it focuses on ones who would actually be chosen by state legislatures. The memo states that “the constitutional power to decide on the method for choosing electors remains exclusively with state legislatures.” A copy is sent to White House staff with the note “For POTUS” — suggesting Trump might have been clued in on the effort early on.
  • Nov. 30: Arizona Gov. Doug Ducey (R) apparently receives a call from the White House while certifying his state’s election results. He ignores the call.
  • Late November/early December: The White House Counsel’s Office tells Meadows and Giuliani that the alternate elector plan is not legally sound, according to testimony by Meadows aide Cassidy Hutchinson.
  • Early December: Trump calls Pennsylvania House Speaker Bryan Cutler (R) twice to talk about overturning that state’s results. Cutler says the legislature can’t do so, according to an aide.
  • Dec. 5: Trump calls Georgia Gov. Brian Kemp (R) to pressure him to have the legislature overturn that state’s results.
  • Dec. 6: Meadows references Chesebro’s memo in an email to Trump campaign aide Jason Miller, saying, “We just need to have someone coordinating the electors for states.”
  • Dec. 7: Eastman forwards Chesebro’s memo. (The recipients’ names are redacted.) A judge would later rule that Eastman and Trump likely broke the law and that this forwarded email showed the plot “was fully formed and actionable as early as December 7, 2020″ — a week before the Dec. 14 elector deadline.
  • Dec. 9: Chesebro concedes in another memo that it will be difficult for fake electors in some key states to comply with state law, because those laws carry specific requirements for how the electors would be selected.
  • Dec. 11: Trump’s campaign acknowledges its push for alternate electors in a footnote in a legal filing to the Wisconsin Supreme Court.
  • The U.S. Supreme Court dismisses a desperate bid led by Texas Attorney General Ken Paxton (R) to overturn the election results in four key states, severely curtailing any legal path for the Trump campaign. Even Justices Samuel A. Alito Jr. and Clarence Thomas say they wouldn’t have granted the relief sought by Texas, which was to invalidate the electors in those states.
  • Dec. 13: Eastman pushes for fake electors on Dec. 14, arguing that state legislatures could validate them later on. “The electors absolutely need to meet,” he writes in an email. “Then, if the Legislature gets some spine … those electoral votes will be available to be certified by the legislature.”
  • Chesebro emails Giuliani arguing that Pence, as president of the Senate, might have the authority to choose between slates of electors.
  • A Trump campaign aide tells fake electors meeting the next day to operate with “complete secrecy and discretion.”
  • Dec. 14: The fake electors convene in seven states: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin. Some falsely declare they are duly elected (raising questions about whether they broke the law), while in a couple of states they make their status as electors contingent on the election results being overturned. In some states, they fail to meet the legal requirements outlined by Chesebro (i.e. failing to meet in the Capitol in Michigan and not having the secretary of state present in Nevada).
  • Trump aide Stephen Miller cites the fake electors, saying that “we are going to send those results up to Congress.” They are initially pitched as precautionary — in place just in case courts later overturn the results.
  • Dec. 19: Eastman concedes to an activist that the fake electors will be “dead on arrival in Congress,” because they weren’t certified by state legislatures. “ … The textual claim that the ‘executive’ certification would prevail in such an instance over the legislature-certified slate is contrary to Article II” of the Constitution, Eastman wrote.
  • Dec. 23: Despite his email four days prior, Eastman tells Trump advisers that Pence could still try to use the fake electors. The lawyer sends a two-page memo outlining how to use them to overturn the election. “The fact that we have multiple slates of electors demonstrate the uncertainty of either. That should be enough,” Eastman writes. In outlining the strategy, he concedes Pence would have to disregard a federal law known as the Electoral Count Act.
  • Dec. 28: Justice Department official Jeffrey Clark, who pushed Trump’s fraud claims internally, circulates a draft letter suggesting DOJ would treat the alternate electors as valid. Fellow DOJ officials reject Clark’s effort.
  • Dec. 31: Trump attorney Jenna Ellis echoes the fake-elector plot in a one-page memo.
  • Jan. 2: Trump asks Georgia Secretary of State Brad Raffensperger (R) to “find” enough votes to call Biden’s victory there into question. “All I want to do is this: I just want to find 11,780 votes, which is one more than we have,” Trump says in the recorded call.
  • Jan. 3: After The Post breaks news of the Raffensperger call, Trump tries to contact Maricopa County Board of Supervisors Chairman Clint Hickman (R). Hickman declines to return the call, believing he would face pressure, too.
  • Despite his prior comments about the fake-elector plan being “dead on arrival,” Eastman by this date has written a fuller six-page memo arguing that Pence should declare the fake electors as legitimate. “There are thus dual slates of electors from 7 states,” Eastman says.
  • Jan. 6: Pence declines to treat the alternate electors as valid, clearing the way for the certification of Biden’s win just hours after Trump supporters rioted at the Capitol — while calling for Pence’s hanging.
  • Jan. 10: Eastman concedes in an email to an activist that the fake electors had no legal standing. “No legislature certified them (because governors refused to call them into session), so they had no authority,” he wrote. He adds: “Alas.”

Legitimacy of Biden’s Win

It’s beyond a reasonable doubt that Biden legitimately won
the 2020 presidential election
Evidence and Arguments
  • William Barr
    • Barr Acknowledges Justice Dept. Has Found No Widespread Voter Fraud, NYT
  • Christopher Wray
    • Wray confirmed there was no evidence of widespread voter fraud days after Trump lied about it again, BusIn
      • New Jersey Sen. Cory Booker asked Wray if he agreed with then Attorney General William Barr’s announcement last year that the DOJ had not uncovered evidence of widespread voter fraud in the November election.
      • “I agree with Attorney General Barr,” Wray said.
      • “We are not aware of any widespread evidence of voter fraud, much less that it would have affected the outcome in the presidential election,” he added.
  • Christopher Krebs
    • Cybersecurity officials say the election was ‘the most secure in American history.’ NYT, Nov 2020
    • Trump fired me for saying this, but I’ll say it again: The election wasn’t rigged, Christopher Krebs, WaPo
      • The secretaries of state in Georgia, Michigan, Arizona, Nevada and Pennsylvania, as well officials in Wisconsin, all worked overtime to ensure there was a paper trail that could be audited or recounted by hand, independent of any allegedly hacked software or hardware.
    • The Cybersecurity 202: Chris Krebs fiercely defends election while President Trump’s attacks on it get weirder, WaPo
      • Krebs’s bottom line: Such fraud claims fail the smell test because, as of 2020, there are paper records for 95 percent of ballots cast by American voters. And hand counts of those ballots in Georgia, Wisconsin and elsewhere show no significant difference between what was tabulated by machines.
      • “The proof is in the ballots,” he said. “The recounts are consistent with the initial count. To me that’s further evidence, that’s confirmation that the systems used in the 2020 election performed as expected and the American people should have 100 percent confidence in their votes.
      • That’s been a consistent message for Krebs, who has trumpeted the importance of paper ballots and post-election audits as vital protections against election hacking or other malfeasance for more than three years.
  • Election Officials
    • Despite Trump’s intense hunt for voter fraud, officials in key states have so far identified just a small number of possible cases, WaPo
  • Over 60 election lawsuits filed and lost
    • At least 63 lawsuits were filed and lost. Wikipedia
  • Report by International Observers
    • No Evidence of Systematic Fraud in U.S. Elections, International Observer Mission Reports, WSJ Nov 2020
      • A team of international observers invited by the Trump administration has issued a preliminary report giving high marks to the conduct of last week’s elections–and it criticizes President Trump for making baseless allegations that the outcome resulted from systematic fraud.
      • A 28-member delegation from the Organization of American States followed events in several locations across the U.S., including in the battleground states of Georgia and Michigan, both remotely and with observers at polling stations and counting centers.
  • Attorneys General, both Republican and Democrat, have made only a handful of election fraud charges
    • If there were massive election fraud we would expect to see criminal charges brought against the perpetrators.
      • Despite GOP rhetoric, there have been fewer than two dozen charged cases of voter fraud since the election, Philip Bump WaPo
        • In fact, a review of local news reports shows there aren’t many examples of even individual voter fraud. By our count, there have been only 16 incidents in which someone has faced criminal charges stemming from their attempt to vote illegally. This includes instances in which it isn’t clear whether a ballot was cast but excludes failed efforts to obtain absentee ballots.
      • AP: Few AZ voter fraud cases, discrediting Trump’s claimsAP
        • Arizona county election officials have identified fewer than 200 cases of potential voter fraud out of more than 3 million ballots cast in last year’s presidential election, further discrediting former President Donald Trump’s claims of a stolen election as his allies continue a disputed ballot review in the state’s most populous county.
        • So far, only four cases have led to charges, including those identified in a separate state investigation. No one has been convicted. No person’s vote was counted twice.
    • Florida let them vote. Then DeSantis’s election police arrested them.  WaPo
      • The felons arrested had submitted voter registration applications that were processed by the state — a move that for many amounted to a green light that they were eligible.
  • Fact-Checks of Fraud Claims
    • Trump Repeats Baseless, False Claims About the Election, factcheck.org
      • Bogus Attacks on Dominion Voting Systems
      • False Claim of Winning Before Votes Were Counted
      • Dead People Voting
      • Poll Watchers and ‘Unexpected’ Ballots
      • Flawed Logic on ‘Just Biden on Top’
      • Trump Ballots Weren’t ‘Thrown Out’
      • Republicans Win with Mail-In Ballots
    • Debunking Trump allies’ latest arguments about fraud in the 2020 election, Philip Bump, WaPo
      • 1.8 million ballots were mailed out in Pennsylvania, but 2.5 million were returned.
      • Biden’s leads in key states are a function of the suspicious addition of large numbers of ballots.
      • It’s inconceivable that Biden received 80 million votes.
      • It can’t be the case that Biden received more votes from Black voters than Barack Obama did.
      • More people were reported to have voted in Detroit than live there.
      • It is suspicious that Trump lost while so many other Republican candidates were successful.
      • Voting machines shifted the results of the election in Biden’s favor.
      • Republicans were prevented from watching votes being tallied, allowing fraud to occur
      • There are hundreds of sworn affidavits proving that fraud occurred.
      • Statistical or historic analysis shows that something strange happened with the voting in various states.
      • Georgia needs to match signatures to ballots for its recount to be valid.
    • Nine Election Fraud Claims, factcheck.org
      • Claim: “Late on election night, with Trump comfortably ahead, many swing states stopped counting ballots. In most cases, observers were removed from the counting facilities. Counting generally continued without the observers.”
      • Claim: “Statistically abnormal vote counts were the new normal when counting resumed. They were unusually large in size (hundreds of thousands) and had an unusually high (90 percent and above) Biden-to-Trump ratio.”
      • Claim: “Late arriving ballots were counted. In Pennsylvania, 23,000 absentee ballots have impossible postal return dates and another 86,000 have such extraordinary return dates they raise serious questions.”
      • Claim: “The failure to match signatures on mail-in ballots. The destruction of mail-in ballot envelopes, which must contain signatures.”
      • Claim: “Historically low absentee ballot rejection rates despite the massive expansion of mail voting. Such is Biden’s narrow margin that, as political analyst Robert Barnes observes, ‘If the states simply imposed the same absentee ballot rejection rate as recent cycles, then Trump wins the election.’”
      • Claim: “Missing votes. In Delaware County, Pennsylvania, 50,000 votes held on 47 USB cards are missing.”
      • Claim: “Non-resident voters. Matt Braynard’s Voter Integrity Project estimates that 20,312 people who no longer met residency requirements cast ballots in Georgia. Biden’s margin is 12,670 votes.”
      • Claim: “Serious ‘chain of custody’ breakdowns. Invalid residential addresses. Record numbers of dead people voting. Ballots in pristine condition without creases, that is, they had not been mailed in envelopes as required by law.”
      • Claim: “Statistical anomalies. In Georgia, Biden overtook Trump with 89 percent of the votes counted. For the next 53 batches of votes counted, Biden led Trump by the same exact 50.05 to 49.95 percent margin in every single batch. It is particularly perplexing that all statistical anomalies and tabulation abnormalities were in Biden’s favor. Whether the cause was simple human error or nefarious activity, or a combination, clearly something peculiar happened.”
    • Postal Service finds no evidence of mail ballot fraud in Pa. case cited by top Republicans WaPo March 17, 2021
    • Thin Allegations of ‘Dead People’ Voting, factcheck.org, Nov 2020
    • Fact-Checking the Congressional Debate on Ratifying the Election Results, NYT
    • Election results under attack: Here are the facts WaPo Interactive
    • Republicans are still pretending there was election fraud, Jennifer Rubin, WaPo
    • After electoral college backs Biden, Trump continues falsely insisting he won: ‘This Fake Election can no longer stand’, WaPo
    • Inside the Right-Wing Media Bubble, Where the Myth of a Trump Win Lives On, NYT
    • Debunking Trump allies’ latest arguments about fraud in the 2020 election, Philip Bump, WaPo
    • Trump’s ‘Most Important’ Speech Was Mostly False, factcheck.org
    • The most petulant 46 minutes in American history, Philip Bump, WaPo
    • Trump escalates baseless attacks on election with 46-minute video rant, WaPo
    • Trump Repeats Baseless, False Claims About the Election, factcheck.org
    • Fact-checking Trump’s cellphone rant of election falsehoods, WaPo Fact Checker
    • Video Doesn’t Show ‘Suitcases’ of Illegal Ballots in Georgia, factcheck.org
      • Claim: surveillance camera footage captured election workers in Georgia adding thousands of illegal ballots that were brought into an Atlanta facility in suspicious “suitcases” on election night.
      • Trump touts misleading video as ‘proof’ of Georgia voter fraud, WaPo Fact Checker
    • If there is any real evidence of fraud, Mr. President, it’s time to put up, Philip Bump WaPo
      • Things that do not count as evidence of systemic fraud
        • That Biden won more than 80 million votes
        • That there were sudden surges in vote totals that benefited Biden.
        • That other suspicious-seeming things happened but don’t actually show that fraud occurred
        • That hundreds of people signed sworn statements about things they found suspicious.
        • That suspicious-seeming things didn’t happen
        • That isolated examples of fraud occurred.
        • That there exist ways in which fraud could have occurred, even though there isn’t evidence that it did.
        • The above includes allegations about voting machines changing votes without evidence that this occurred
        • That “statistical analysis” suggests that vote totals were weird.
      • Things that do count as evidence of systemic fraud
        • Demonstrated examples of fraud affecting a large number of votes.
    • Michigan Republicans Debunk Voter Fraud Claims in Unsparing Report NYT
    • The most brutal debunking of Trump’s fraud claims yet — from Republicans WaPo
    • Rudy Giuliani’s Bogus Election Fraud Claims factcheck
    • Trump Returns To Campaign Trail With Election Lies And Dark Warnings NPR
    • Trump and the next big, bogus stolen-election claim Blake WaPo
    • 2000 Mules
      • The faulty premise of the ‘2,000 mules’ trailer about voting by mail in the 2020 election Politifact
      • Evidence Gaps in ‘2000 Mules’  factcheck
      • Fact Check: Does ‘2000 Mules’ provide evidence of voter fraud in the 2020 U.S. presidential election? Reuters
  • Trump Campaign officials knew there was no fraud
    • Trump Campaign Knew Lawyers’ Voting Machine Claims Were Baseless, Memo Shows NYT
  • Trump’s earlier claims of election fraud were baseless.
    • 2016 Primary
      • Ted Cruz in Iowa
        • Ted Cruz didn’t win Iowa, he stole it. That is why all of the polls were so wrong and why he got far more votes than anticipated. Bad!” WaPo
    • 2016 General
      • New Hampshire
        • The president claimed that he and Ayotte both would have been victorious in the Granite State if not for the “thousands” of people who were “brought in on buses” from neighboring Massachusetts to “illegally” vote in New Hampshire. Politico
      • Popular Vote
        • “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally” WaPo
  • The hypothesis that the election was stolen is a conspiracy theory. Ockham’s Razor thus provides an a priori reason for rejecting the hypothesis, since the straightforward explanation of the election results is much simpler.
  • If there is reasonable doubt, no one has produced it. Instead election deniers talk vaguely about questions, irregularities, and doubts.
    • Rep. Claudia Tenney (R.-N.Y.), asked in an interview with The Post what she thought about Cheney’s statement that it is a lie to say the election was stolen, responded:
      • “I think there are a lot of irregularities and questions that need to be answered. I don’t know why anybody would reject an audit. We need to go back and look at whether or not things were done properly, why rules were changed at the last minute.”
    • Tenny has the burden of proof:
      • Numerous claims about election fraud and irregularities have been investigated and debunked.
      • Precisely what irregularities does Tenny believe still need to be investigated?
      • How do those irregularities constitute reasonable doubt that Biden legitimately won the election?

Other Potential Crimes

  • If Trump is charged, it should be for the worst of his crimes Claire O. Finkelstein and Richard W. Painter WaPo
    • The two most serious crimes for which Trump may stand accused, and which most clearly describe his conduct on Jan. 6 and in the weeks leading up to it, are insurrection and seditious conspiracy.
Argument that Trump incited an Insurrection, by Finkelstein and Painter
  • 18 U.S. Code 2383
    • Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
  • The crime of insurrection, 18 U.S. Code 2383, imposes criminal penalties on “whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”
    • Trump’s words to his supporters — telling them to go to the Capitol and encouraging them by saying, “I’ll be right there with you” — incited and literally set on foot the insurrection that followed.
    • He also assisted the insurrection by his inaction under circumstances in which he had a duty to act — namely by failing to call out the National Guard or order other reinforcements for the Capitol Police as the building was overtaken.
    • Trump also encouraged the crowd’s bloodthirsty pursuit of Vice President Mike Pence, which he did by tweet even after he knew that the siege had turned violent and despite urgent pleas from his daughter Ivanka Trump and others for him to call off the attack.
    • If testimony in the Jan. 6 hearings and reporting by The Post and others is any measure, Trump’s true purpose in interfering with the certification was to create conditions that would allow him to seize control of the government and remain in power.
Argument that Trump is guilty of Seditious Conspiracy, by Finkelstein and Painter
  • 18 U.S. Code 2384
    • If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
  • The crime of seditious conspiracy differs from insurrection in that it requires a plan involving more than one individual, among other things.
    • As defined in 18 U.S. Code 2384, seditious conspiracy is when two or more people “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.”
    • The Jan. 6 committee has provided powerful evidence of a comprehensive plan by Trump and some members of his inner circle to do just that. In a meeting at the White House on Dec. 18, 2020, among Trump, former Overstock chief executive Patrick Byrne, lawyer Sidney Powell and former national security adviser Michael Flynn, for example, serious consideration was given to the extraordinary step of ordering the military to seize voting machines to redo the election. Such an order at best would have posed a drastic national security crisis, throwing the chain of command into chaos as Pentagon officials debated the directive; at worst it would have brought the military into the plot to overthrow the government. Plots at this level are conceivable only as part of an extended conspiracy.
    • Seditious conspiracy is rarely charged, and prosecutors have been rightly cautious about unbottling a genie that could be used to quell protected speech or religious liberty. However, as with the seditious-conspiracy charges against Omar Abdel Rahman following the 1993 World Trade Center bombing, sometimes speech turns into an actual plan, and in such cases the First Amendment no longer applies. Jan. 6 is the type of case for which the seditious conspiracy charge was made.
    • Trump’s intent on and before Jan. 6 is not so hard to discern. Would it be more difficult to prove the requisite state of mind for Trump than to prove the intent of Stewart Rhodes, Thomas Caldwell or Joseph Hackett, all members of the Oath Keepers who participated in the insurrection and whose indictments on charges of seditious conspiracy are premised on a pattern of conduct not unlike Trump’s? Rhodes, Caldwell, Hackett and others have been accused of conspiring “to oppose the lawful transfer of presidential power by force, by preventing, hindering, or delaying by force the execution of the laws governing the transfer of power, including the Twelfth and Twentieth Amendments to the Constitution.” Didn’t Trump do the same? And with the same intent or purpose?
    • Indeed, Trump’s intent probably formed long before that of his fellow insurrectionists. For weeks he had pressured Pence to declare the 2020 election invalid by rejecting the vote count of the states’ certified electors. He repeated these demands in his speech at the Ellipse on Jan. 6 and again by tweet later that day. His intent was particularly clear when, according to White House aide Cassidy Hutchinson, who testified before the Jan. 6 committee, he demanded to be taken to the Capitol and even physically tried to get a member of his security detail to drive him there. Trump’s intent was also apparent when those breaching the Capitol called for the vice president, who was at that moment fleeing for his life, to be hanged; Trump’s chief of staff, Mark Meadows, said that Trump believed Pence deserved it, according to Hutchinson.
    • The only significant difference between members of the Oath Keepers and Trump is the means each chose to promote their goal — the former used stun guns, pepper spray, baseball bats and flagpoles; Trump used a Twitter account, a microphone and the power of his office.

Judge Carter’s Ruling that Trump Likely Committed a Crime

Background
  • The House Committee investigating the Capitol attack sued John Eastman for email correspondence with Trump relating to the attack.
  • Eastman refused to comply, claiming attorney-client privilege.
  • Citing the Crime-fraud Exception, the Committee argued that attorney-client privilege did not apply because the client (Trump) consulted an attorney (Eastman) for advice on committing a crime.
  • So the judge (David O. Carter) had to determine whether Trump committed a crime.
  • Since the standard of evidence in a civil case is preponderance of evidence (vs beyond a reasonable doubt), Judge Carter had to determine whether it was more probable than not that Trump had committed a crime.
  • Carter ruled that such was the case regarding two felonies:
    • Obstruction of an Official Proceeding
    • Conspiracy to Defraud the United States
Synopsis of the crime-fraud exception section of Judge David O. Carter’s ruling on Eastman’s claim of attorney-client privilege, March 28,2022 (s3.documentcloud.org/documents/21561212/eastman-ruling.pdf)
  • Crime-fraud exception, p 30
    • The crime-fraud exception applies when
      • (1) a “client consults an attorney for advice that will serve [them] in the commission of a fraud or crime,” and 
      • (2) the communications are “sufficiently related to” and were made “in furtherance of” the crime.
  • Potential crimes or fraud, p 31
    • The Select Committee alleges that the crime-fraud exception applies based on three offenses:
      • (1) President Trump attempted to obstruct “Congress’s proceeding to count the electoral votes on January 6,” in violation of 18 U.S.C. § 1512(c)(2);
      • (2) “President Trump, Plaintiff [Dr. Eastman], and several others entered into an agreement to defraud the United States by interfering with the election certification process,” in violation of 18 U.S.C. § 371; and 
      • (3) “President [Trump] and members of his Campaign engaged in common law fraud in connection with their efforts to overturn the 2020 election results.”
    • The Court will now determine whether President Trump and Dr. Eastman likely committed these offenses.
Carter’s Analysis of Obstruction of an Official Proceeding (Page 31 of Ruling)
  • 18 U.S.C. § 1512(c)(2)
    • Whoever corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so shall be fined under this title or imprisoned not more than 20 years, or bot
  • The Select Committee alleges that President Trump violated 18 U.S.C. § 1512(c)(2), which criminalizes obstruction or attempted obstruction of an official proceeding. 
  • It requires three elements:
    • (1) the person obstructed, influenced or impeded, or attempted to obstruct, influence or impede 
    • (2) an official proceeding of the United States, and 
    • (3) did so corruptly.
  • Attempts to obstruct, p 31
    • President Trump facilitated two meetings in the days before January 6 that were explicitly tied to persuading Vice President Pence to disrupt the Joint Session of Congress. …..
    • On the morning of January 6, President Trump made several last-minute “revised appeal[s] to the Vice President” to pressure him into carrying out the plan. …..
    • Together, these actions more likely than not constitute attempts to obstruct an official proceeding
  • Official proceeding p 33
    • The United States Code defines “official proceeding” to include “a proceeding before the Congress.” The Twelfth Amendment outlines the steps to elect the President, culminating in the President of the Senate opening state votes “in the presence of the Senate and House of Representatives.”
    • Dr. Eastman does not dispute that the Joint Session is an “official proceeding.” 
    • While there is no binding authority interpreting “proceeding before the Congress,” ten colleagues from the District of Columbia have concluded that the 2021 electoral count was an “official proceeding” within the meaning of section 1512(c)(2), and the Court joins those well-reasoned opinions.
  • Corrupt intent, p 34
    • President Trump and Dr. Eastman justified the plan with allegations of election fraud— but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent, the Select Committee points to numerous executive branch officials who publicly stated and privately stressed to President Trump that there was no evidence of fraud. By early January, more than sixty courts dismissed cases alleging fraud due to lack of standing or lack of evidence, noting that they made “strained legal arguments without merit and speculative accusations” and that “there is no evidence to support accusations of voter fraud.”
    • President Trump’s repeated pleas for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.” 
    • Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification. 
    • The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo noted that the plan was “BOLD, Certainly.” The memo declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.” In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states. In the meeting in the Oval Office two days before January 6, Vice President Pence stressed his “immediate instinct [] that there is no way that one person could be entrusted by the Framers to exercise that authority.
    • The illegality of the plan was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated, “no Vice President in American history has ever asserted such authority.” Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed. With a plan this “BOLD,” President Trump knowingly tried to subvert this fundamental principle. 
  • Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.
Carter’s Analysis of Conspiracy to Defraud the United States (Page 36 of Ruling)
  • 18 U.S.C. § 371
    • If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
  • The Select Committee also alleges that President Trump, Dr. Eastman, and others conspired to defraud the United States by disrupting the electoral count, in violation of 18 U.S.C. § 371.242 That crime requires that
    • (1) at least two people entered into an agreement to obstruct a lawful function of the government 
    • (2) by deceitful or dishonest means, and 
    • (3) that a member of the conspiracy engaged in at least one overt act in furtherance of the agreement.
  • Agreement to obstruct a lawful government function, p 37
    • As the Court discussed at length above, the evidence demonstrates that President Trump likely attempted to obstruct the Joint Session of Congress on January 6, 2021. While the Court earlier analyzed those actions as attempts to obstruct an “official proceeding,” Congress convening to count electoral votes is also a “lawful function of government” within the meaning of 18 U.S.C. § 371, which Dr. Eastman does not dispute. 
    • An “agreement” between co-conspirators need not be express and can be inferred from the conspirators’ conduct. There is strong circumstantial evidence to show that there was likely an agreement between President Trump and Dr. Eastman to enact the plan articulated in Dr. Eastman’s memo. …..
  • Deceitful or dishonest means, p 37
    • The Court discussed above how the evidence shows that President Trump likely knew that the electoral count plan was illegal. President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by “dishonest” means under § 371. 
    • The evidence also demonstrates that Dr. Eastman likely knew that the plan was unlawful…..
    • Dr. Eastman himself repeatedly recognized that his plan had no legal support. …..
  • Overt acts in furtherance of the conspiracy, p 39
    • President Trump and Dr. Eastman participated in numerous overt acts in furtherance of their shared plan. As detailed at length above, President Trump’s acts to strong-arm Vice President Pence into following the plan included meeting with and calling the Vice President and berating him in a speech to thousands outside the Capitol. Dr. Eastman joined for one of those meetings, spent hours attempting to convince the Vice President’s counsel to support the plan, and gave his own speech at the Ellipse “demanding” the Vice President “stand up” and enact his plan
  • Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.
  • Common Law Fraud, p 40
    • As the Court discusses below, review of the eleven remaining documents reveals that none further efforts to spread false claims of election fraud. Accordingly, the Court does not reach whether President Trump likely engaged in common law fraud.
Articles
  • Judge: Trump ‘more likely than not’ committed crime in trying to block Biden win WaPo
  • Federal Judge Finds Trump Most Likely Committed Crimes Over 2020 Election NYT
  • A federal judge finally says it: Trump probably committed crimes related to Jan. 6, Jennifer Rubin WaPo
  • Here’s how a federal judge believes Trump probably broke the law, Philip Bump WaPo
  • A Federal Judge Just Told the Truth About Trump Atlantic
  • Understanding the criminal allegations the Jan. 6 committee is constructing against Trump Philip Bump WaPo
    • The two primary crimes it suspects Trump committed are:
      • Obstruction of an official proceeding: that Trump “attempted to obstruct, influence or impede … an official proceeding of the United States, and … did so corruptly.”
      • Conspiracy to defraud the United States: that he “interfere[d] with or obstruct[ed] one of [the government’s] lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.”
    • Both of those allegations center on the congressional counting of electoral votes that was underway at the Capitol on Jan. 6. That count was an “official proceeding” and “lawful government function” that Trump attempted to obstruct. There’s no real question that Trump made such an attempt, though it’s worth walking through how the court filing documents that effort — and other, less-dramatic attempts to interfere with the government’s procedures.
    • Perhaps more important is the qualifying aspect of each charge: Did Trump obstruct an official proceeding “corruptly”?
  • Jan. 6 Committee Lays Out Potential Criminal Charges Against Trump NYT
  • The Justice Dept. and the Jan. 6 inquiry make moves to snare Trump Jennifer Rubin WaPo
  • Jan. 6 committee alleges Trump, allies engaged in potential ’criminal conspiracy’ by trying to block Congress from certifying election WaPo

Addenda

Unhinged: White House Meeting Dec 18, 2020
  • Tears, Screaming and Insults: Inside an ‘Unhinged’ Meeting to Keep Trump in PowerNYT
    • The meeting lasted for more than six hours, past midnight, and devolved into shouting that could be heard outside the room. Participants hurled insults and nearly came to blows. Some people left in tears.
    • Sidney Powell, Michael T. Flynn, and Patrick Byrne proposed that the president direct the secretary of defense to seize voting machines to examine for fraud and also to appoint a special counsel (Sidney Powell) to potentially charge people with crimes.
    • On the other side were Pat A. Cipollone, the White House counsel; Mr. Herschmann; and Derek Lyons, the White House staff secretary.
    • When the White House officials pointed out to Ms. Powell that she had lost dozens of lawsuits challenging the results of the 2020 election, she replied, “Well, the judges are corrupt.”
  • ‘Unhinged’: The White House meeting that preceded Trump’s ‘will be wild’ tweetWaPo
    • But, according to Cipollone, the group was unable to answer one key question from Trump’s White House advisers.  “We were pushing back and asking one simple question as a general matter: Where is the evidence?” he recounted. According to Cipollone, Powell and the others reacted with anger, suggesting that even asking the question was a sign that Trump’s White House team was insufficiently loyal to him.
Meritless Lawsuits
Members of Congress who Voted to Reject Electoral Votes for Biden
  • Voting against certifying Arizona’s 11 electoral votes
    • 6 Senators and 121 Reps
    • Objection brought by Paul Gosar (R-Ariz.) and Sen. Ted Cruz (R-Texas)
  • Voting against certifying Pennsylvania’s 20 electoral votes
    • 7 Senators and 138 Reps
    • Objection brought by Rep. Scott Perry (R-Pa.) and Sen. Josh Hawley (R-Mo.)
  • Certification of electoral votes (January 6-7, 2021), Ballotpedia.org
  • Fact-Checking the Congressional Debate on Ratifying the Election Results, NYT
  • Which Members of Congress Objected to Certifying Biden’s Victory?, NYT
  • Articles
    • All the ways Trump tried to overturn the election — and how it could happen again WaPo Interactive
    • The sloppy, patchwork, spaghetti-at-the-wall effort to steal the presidency.  Bump WaPo
    • Timeline: Trump’s pressure campaign to overturn the 2020 election Blake WaPo
    • The multilayered effort to steal the election on Jan. 6, 2021  Bump WaPo
Philip Bump’s Breakdown of Attempt to Steal the Presidency

The sloppy, patchwork, spaghetti-at-the-wall effort to steal the presidency.  Philip Bump WaPo

  • Trump’s attempt to steal the presidency in rough chronological order broken down into three groups:
    • Trying to prove fraud
    • Getting officials to act
    • Stealing the election
  • Trying to prove fraud: Elevating dubious and outright nonsensical claims about fraud.
    • Why it didn’t work: It did. Most Republicans continue to believe that rampant fraud occurred.
  • Getting officials to act: Filing lawsuits in an effort to change state-level results.
    • Why it didn’t work: Courts almost always rejected the pro-Trump arguments.
  • Trying to prove fraud: Pressuring vote-counters.
    • Why it didn’t work: The votes were counted without significant interruption, and no credible evidence of improprieties was uncovered by “observers.”
  • Trying to prove fraud: Calling for audits and recounts.
    • Why it didn’t work: The recounts and audits didn’t show any significant change to the results, much less evidence of fraud.
  • Getting officials to act: Trying to stop certification of election results.
    • Why it didn’t work: State and county officials had no reason not to certify the election, with no real questions about the results having emerged.
  • Getting officials to act: Disrupting the electoral college.
    • Why it didn’t work: The electoral votes sent to Congress need to be accompanied by certifying documents signed by an appropriate state official. The alternative slates of electors lacked those documents, and no state seriously entertained reversing its results.
  • Trying to prove fraud: The plan to seize voting machines.
    • Why it didn’t work: In this case, it appears that internal dissent played an important role. When Trump approached the Department of Homeland Security about seizing the machines, its acting head, the deeply conservative former Virginia attorney general Ken Cuccinelli, rejected the idea.
  • Getting officials to act: Overhauling the Justice Department
    • Why it didn’t work: Installing Clark would have meant a lot of high-profile resignations. Trump opted against it.
  • Trying to prove fraud: Pressuring Georgia officials to identify alleged fraud.
    • Why it didn’t work: There were no votes to find — and Raffensperger had already looked.
  • Getting officials to act: Encouraging state legislatures to unwind results.
    • Why it didn’t work: Even sympathetic legislators lacked the power to do so.
  • Stealing the election: Having Pence reject electoral votes.
    • Why it didn’t work: Pence, after consulting with legal experts and even former vice president Dan Quayle, recognized that Eastman’s suggestion was toothless.
  • Stealing the election: Having legislators reject cast electoral votes.
    • Why it didn’t work: There weren’t enough votes in either chamber actually to reject cast votes. Oh, and then there was a riot.
  • Stealing the election: Encouraging the Jan. 6 protests and tacitly encouraging the riot.
    • Why it didn’t work: The National Guard crushed the insurgency.
Nightmare Scenario
  • The Republican plot to steal the 2024 election, Max Boot WaPo
    • This brings us to a nightmare scenario: a Republican-controlled Congress overturning the 2024 presidential election results to install Trump or a Trump mini-me in the White House. In January, 139 House Republicans and eight Senate Republicans voted not to certify electoral college results in at least one state. Since then, the most prominent GOP opponent of the “big lie,” Rep. Liz Cheney (Wyo.), has been purged from the House leadership. Willingness to lie about election fraud has become a litmus test for Republicans, with the implicit threat of mob violence if they don’t go along. Republicans are so scared of Trump and his fanatical followers that most of them just voted against a bipartisan investigation of the Jan. 6 attack on the Capitol.
    • Many congressional Republicans will refuse to certify a 2024 Democratic win in swing states. If Republicans control Congress, they could deny the Democrats an electoral college majority and throw the election to the House — where each state delegation, regardless of population, would cast one ballot. Given that Republicans already control a majority of state delegations, they could override the election outcome. If that happens, it would spell the end of American democracy.
Can Congress Overturn an Election?
  • On January 6, 2021:
    • 6 Senators and 121 Representatives voted against certifying Arizona’s 11 electoral votes 
    • 7 Senators and 138 Reps voted against certifying Pennsylvania’s 20 electoral votes.
  • Under the Electoral Count Act, when Congress meets to certify electoral votes, if at least one Senator and at least one Representative object to a state’s electors, the Senate and House separately vote on whether to accept the electoral votes.
    •  … “the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.” (law.cornell.edu/uscode/text/3/15)
  • Could a party controlling both houses of Congress vote against certifying enough electoral votes to change an election’s outcome?
  • The key question is the meaning of “regularly given,” which might have to be settled by the Supreme Court.
  • wikipedia.org/wiki/Electoral_Count_Act#Single_return
    • The phrase “regularly given” is generally understood as referring to issues regarding an elector’s actual vote, rather than whether the elector has been properly appointed. It could include, for example, situations where an elector cast a particular vote because of bribery or corruption, or mistake or fraud. It may also include situations where the elector did not vote in accordance with applicable constitutional and statutory requirements.
  • Why Congress can’t categorically reject and overturn presidential election results in the future, Business Insider
    • “There are very limited grounds on which a member of Congress can object to a state’s determination,” Adav Noti, director of trial litigation at the Campaign Legal Center, told Insider.
    • If a state properly submitted certificates of their electoral votes by the set deadline, he added, “the objection has to be on the grounds that either the people who cast the electoral votes were not the actual electors elected from that state, or that they did not cast their votes in a legal manner, for example, because they were bribed.”
    • “But those are extremely narrow: either the wrong people had to have voted, or they had to have voted illegally. None of what got raised in this election falls into either of those categories,” Noti said. “There was nobody saying that the slate of 20 electors from Pennsylvania were not in fact the people designated by the state. They were, obviously, the people designated by the state, so that takes care of the ‘lawfully appointed’ part, and no one was saying that they cast their votes illegally.” 
    • Noti said that “second-guessing” a state’s designation of electors that were, in fact, elected by the voters, as Republicans did on January 6, “is not within Congress’ power” and wouldn’t pass muster if seriously attempted.
    • “That’s what I think a court would say if Congress tried to go down this road. The opposing candidate, and/or the opposing electors would file suit and say, ‘no, you, you cannot under any provision of law or the constitution deprive us of the electoral votes to which we are entitled by law.’ And I think, a court would say to Congress, ‘what’s your basis for doing this?’ And if they don’t have one, I think Congress would likely lose that fight.”
  • A leading historian of U.S. democracy issues an urgent warning, Greg Sargent, WaPo
    • This is what Alexander Keyssar, the leading historian of U.S. democracy, sees as “very disturbing.” In a future close election, what is to stop a Republican-controlled Senate and House from refusing to count a victorious Democratic presidential candidate’s electors from numerous close states?
    • Who’s to say it won’t happen in a future scenario where one or more states are decided by a few hundred votes, making it easier to claim the true voting outcome cannot be known, justifying alternate electors?
  • To secure public support, a party overturning an election could spread disinformation beforehand that the opposition party had stolen the election. In overturning the election, therefore, the party was merely rectifying an injustice.

OLD: Trump’s Attempt to Overturn the Election

Trump tried to overturn the results of a legitimate election to keep himself in power, by:
  • Spreading disinformation, in particular that the Democrats won the election through fraud
    • See all the evidence presented in Trump’s impeachment trial, WaPo
      • Evidence shown by Rep. Joaquin Castro (D-Tex.)
    • Lie After Lie: Listen to How Trump Built His Alternate Reality, NYT
      • 38-minute video of hundreds of public statements from Nov. 4, 2020, to Jan. 6, 2021
    • Trump has amplified voting falsehoods in over 300 tweets since election night. NYT
    • Trump’s false claims on mail-in voting, factcheck.org
    • Trump’s Falsehood-Filled ‘Save America’ Rally factcheck.org
    • The pro-Trump media world peddled the lies that fueled the Capitol mob. Fox News led the way. Sullivan WaPo
    • Nine Election Fraud Claims, factcheck.org
  • Filing baseless lawsuits
    • See all the evidence presented in Trump’s impeachment trial, WaPo
      • Evidence shown by Rep. Madeleine Dean (D-Pa.)
    • The Facts on Trump’s Post-Election Legal Challenges, factcheck.org
    • ‘The last wall’: How dozens of judges across the political spectrum rejected Trump’s efforts to overturn the election WaPo
  • Pressuring state officials
    • See all the evidence presented in Trump’s impeachment trial, WaPo
      • Evidence shown by Rep. Madeleine Dean (D-Pa.)
    • Inside Trump’s pressure campaign to overturn the election, Politico
      • In total, the president talked to at least 31 Republicans, encompassing mostly local and state officials from four critical battleground states he lost — Michigan, Arizona, Georgia and Pennsylvania.
    • Michigan
      • Trump Targets Michigan in His Ploy to Subvert the Election, NYT
    • Pennsylvania
      • Trump asks Pennsylvania House speaker for help overturning election results, personally intervening in a third state, WaPo
    • Georgia
      • Secretary of State Brad Raffensperger
        • Trump pressured a Georgia elections investigator in a separate call legal experts say could amount to obstruction, Amy Gardner, WaPo
        • Trump, in Taped Call, Pressured Georgia Official to ‘Find’ Votes to Overturn Election, NYT
      • Governor Brian Kemp
        • Trump called Georgia’s governor to urge him to help overturn Biden’s win in the state. NYT
  • Pressuring the Justice Department
    • Report Cites New Details of Trump Pressure on Justice Dept. Over Election NYT
      • A Senate panel fleshed out how Donald Trump pursued his plan to install a loyalist as acting attorney general to pursue unfounded reports of fraud.
      Trump and Justice Dept. Lawyer Said to Have Plotted to Oust Acting Attorney General NYT
      • Trying to find another avenue to push his baseless election claims, Donald Trump considered installing a loyalist.
      See all the evidence presented in Trump’s impeachment trial, WaPo
      • Evidence shown by Rep. Ted Lieu (D-Calif.)
    • Meadows Pressed Justice Dept. to Investigate Election Fraud Claims NYT
    • Trump Pressed Official to Wield Justice Dept. to Back Election Claims, NYT
    • As Trump pushed for probes of 2020 election, he called acting AG Rosen almost daily WaPo
    • Trump Pressed Justice Dept. to Declare Election Results Corrupt, Notes Show NYT
  • Supporting the Texas Lawsuit
    • 17 Republican Attorneys General Back Trump in Far-Fetched Election Lawsuit, NYT
    • Supreme Court Rejects Texas Suit Seeking to Subvert Election, NYT
    • Supreme Court dismisses bid led by Texas attorney general to overturn the presidential election results, blocking Trump’s legal path to reverse his loss, WaPo
  • Pressuring Congressional Republicans
    • See all the evidence presented in Trump’s impeachment trial, WaPo
      • Evidence shown by Rep. Ted Lieu (D-Calif.)
    • Trump pressures congressional Republicans to help in his fight to overturn the election, WaPo
  • Persuading Congressional Republicans to vote against certifying states Biden won
    • Voting against certifying Arizona’s 11 electoral votes
      • 6 Senators and 121 Reps
      • Objection brought by Paul Gosar (R-Ariz.) and Sen. Ted Cruz (R-Texas)
    • Voting against certifying Pennsylvania’s 20 electoral votes
      • 7 Senators and 138 Reps
      • Objection brought by Rep. Scott Perry (R-Pa.) and Sen. Josh Hawley (R-Mo.)
    • Certification of electoral votes (January 6-7, 2021), Ballotpedia.org
    • Fact-Checking the Congressional Debate on Ratifying the Election Results, NYT
    • Which Members of Congress Objected to Certifying Biden’s Victory?, NYT
  • Pressuring Pence to reject certification
    • On January 5 in the Oval Office a lawyer named John Eastman made a presentation to Vice President Mike Pence of a six-point plan on how Pence could overturn the results of the election when Congress met on January 6 to certify the results.
    • See all the evidence presented in Trump’s impeachment trial, WaPo
      • Evidence shown by Rep. Ted Lieu (D-Calif.)
    • ‘Do it Mike’: Trump leans on Pence to reject Biden’s Electoral College certification, Politico
  • Inciting a crowd that stormed the Capitol, interfering with the congressional certification of the election results.
    • See all the evidence presented in Trump’s impeachment trial, WaPo
      • Evidence shown by Rep. Madeleine Dean (D-Pa.)
      • Evidence shown by Del. Stacey Plaskett (D-Virgin Islands)
      • Evidence shown by Rep. Eric Swalwell (D-Calif.)
    • A mob insurrection stoked by false claims of election fraud and promises of violent restoration, WaPo
    • Trump’s Falsehood-Filled ‘Save America’ Rally factcheck.org
  • Failing to order rioters to stop and to call for police reinforcements
    • See all the evidence presented in Trump’s impeachment trial, WaPo
      • Evidence shown by Rep. David Cicilline (D-R.I.)
      • Evidence shown by Rep. Joaquin Castro (D-Tex.)
    • Six hours of paralysis: Inside Trump’s failure to act after a mob stormed the Capitol, WaPo
    • Critical Moments in the Capitol Siege NYT
    • Tuberville says he informed Trump of Pence’s evacuation before rioters reached Senate. Politico
    • Mounting evidence suggests Trump knew of danger to Pence when he attacked him as lacking ‘courage’ amid Capitol siege, WaPo
    • Trump tweet at at 6:01:
      • “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long,” Trump tweeted. “Go home with love & peace.” 
  • Timeline
    • Trump’s brazen attempt to overturn the 2020 election: A timeline, Aaron Blake WaPo
  • Five Ways Trump Tried to Push a Coup / Trump’s Plans for a Coup Are Now Public, Adam Serwer Atlantic
    • Trump tried to pressure secretaries of state to not certify.
    • Trump tried to pressure state legislatures to overturn the results.
    • Trump tried to get the courts to overturn the results.
    • Trump tried to pressure Mike Pence to overturn the results
    • When all else failed, Trump tried to get a mob to overturn the results.

Framework for Overturning Future Elections

  • Get people to doubt the legitimacy of the winner’s victory
    • Spread Disinformation
  • Get the loser declared the winner in swing states the winner won
    • Put the loser’s guys in charge of counting votes and determining who wins.
      • Democracy Is On The Ballot In These 11 Secretary Of State And Attorney General Elections  538
    • Give the losers the power to change the vote count, submit an alternative set of electors, or refuse to certify the winner.
  • Get Congress to reduce the winner’s electoral votes to under 270, effecting a ‘contingent election’ under the 12th Amendment.
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