That is the unnerving picture that is only beginning to fully emerge of what was happening behind the scenes as Trump, enraged by his loss, schemed to overturn clear election results with the connivance of not only top White House aides but also senior officials at the Justice Department who were maneuvering around their chain of command to bolster Trump’s efforts.
Which raises the most disturbing question: What if? What if the senior Trump-installed officials at the Justice Department, notably acting attorney general Jeffrey Rosen, had been more willing to put loyalty to Trump over the rule of law? What happens, God forbid, next time, when the outcome may be further muddied thanks to changed state laws shifting power from election officials to partisan legislators?
I try not to be alarmist, but it is difficult to read the latest accounts and not be alarmed. The drip-drip-drip evolution of this story has served to mask how serious the threat was and how close it came to fruition.
We have known for months that Trump — heedless of constraints on hijacking Justice Department operations to his own political ends — had pressed Justice officials to intervene on his behalf. For example, he urged Rosen to appoint special counsels to investigate unfounded claims of voter fraud.
We knew that when Rosen balked, Trump entertained a plan to oust Rosen and replace him with Jeffrey Clark, the acting head of the civil division, who was more willing to push Trump’s fanciful assertions of fraud. We knew that Trump was deterred only after threats of mass resignations from other officials.
We knew that Clark had drafted a letter to Georgia state legislators asserting that the department was investigating claims of fraud in the state.
The cockamamie letter itself recently emerged. Dated Dec. 28, 2020, it stated that the department had “identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia.” This despite the conclusion by Attorney General William P. Barr, before he resigned that month, that the department’s investigation had not uncovered “fraud on a scale that could have effected a different outcome in the election.”
The Clark letter not only urged Georgia Gov. Brian Kemp (R) to call the legislature into special session to consider “this important and urgent matter” but also advised the legislature of its “implied authority under the Constitution of the United States to call itself into special session for the limited purpose of considering issues pertaining to the appointment of Presidential Electors.” It was to be signed by Rosen, acting deputy attorney general Richard Donoghue and Clark himself.
Clark had insisted that his dealings with the White House were “consistent with law” and that he had merely participated in “a candid discussion of options and pros and cons with the president.”
This is not how things are supposed to work. At a normal Justice Department, the head of the civil division, rungs down the organization chart, does not end-run the attorney general to have “candid discussions” with the president. At a normal Justice Department, there are guardrails in place to prevent this sort of improper interference by the president.
Now we are getting accounts of what happened in those frenzied final days from Rosen himself. Over the weekend, he hastened to testify to the Justice Department inspector general and the Senate Judiciary Committee before Trump could seek to interpose assertions of executive privilege. Rosen’s former deputy, Donoghue, also appeared before the Senate panel. The testimony was behind closed doors, but as we learn more of what was said, I suspect there will be even more reason to be concerned about what might have been.
Sen. Richard Blumenthal (D-Conn.) told CNN on Sunday that he was “struck by how close the country came to total catastrophe.”
“What was going on in the Department of Justice was frightening,” Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) said on CNN’s State of the Union. “I think it’s a good thing for America that we had a person like Rosen in that position, who … withstood the pressure.”
Will that always be the case? Will the country be able to dodge future bullets, from Trump or his successors? I would like to think so. But if there is anything the past five years have shown, it is the disappointing fecklessness of too many of those in power in the face of the Trumpist onslaught.