The picture of Donald Trump’s scheme to get the Justice Department to help him overturn the 2020 election has been significantly filled out in recent weeks. First came the disclosure that conservative lawyer John Eastman had authored a memo outlining the steps by which this would take place on Jan. 6. Then came a major report from the Senate Judiciary Committee detailing Trump’s pressure campaign to get the Justice Department to lay a predicate for that Jan. 6 plot.
So just how close did we come to an actual stolen election — stolen by Trump?
One thing has become pretty clear in recent weeks: This plot was foiled in large part because the Justice Department and Vice President Mike Pence opted not to go along with it. But what if they had? Or what if Trump had followed through on firing acting attorney general Jeffrey A. Rosen and replacing him with the Justice Department official who was willing to do his bidding, Jeffrey Clark?
It’s worth walking through some scenarios (with an assist from our trusty timeline).
First, here’s what we know: The idea was pretty clear. Courts had routinely rejected Trump’s claims of fraud or misdeeds in states’ administration of their elections, so he and the White House turned to the Justice Department to legitimize the claims so Congress might have a reason to overturn the election on Jan. 6.
They barraged top Justice Department officials with wild claims they wanted investigated. And while that was taking place, Clark cooked up a draft letter stating that the Justice Department had “significant concerns” about the election results in Georgia, where Joe Biden was declared the winner. The letter would call on the state to convene a special legislative session to consider the matter. Clark also wanted to push for similar things in other states won by Biden.
Clark’s effort was rejected out of hand. And as Justice Department officials continued to resist, Trump and Clark floated the idea that Trump would replace Rosen with Clark just ahead of Jan. 6. Rosen and his deputy, Richard Donoghue, testified that there was a connection between installing Clark and getting his letter out. But Rosen and Donoghue held fast, threatened mass Justice Department resignations, and Trump backed down, complaining that the whole thing wasn’t going to work anyway.
Turning Point No. 1: The Justice Department refuses to legitimize Trump’s claims
There is no reason to believe that Rosen and Donoghue ever truly considered releasing Clark’s letter, but what if the pressure had got to them? What if they had offered even a watered-down version — similar to what many administration officials had done in the name of pacifying Trump?
At that point, Republicans (many of whom were already planning to object to the election results in certain states based upon basically nothing) would suddenly have had something more to grab hold of — rhetorically, at least.
Or maybe Rosen and Donoghue would have continued to resist, and Trump would have pushed forward with firing Rosen and installing Clark. There would have been mass resignations at the Justice Department — triggering another Saturday Night Massacre-esque controversy — but at least the letter would have gone out. Perhaps the transparency of the plot would have been revealed at that point (that this was about getting that letter out), but we’ve seen plenty of Republicans turn a blind eye to or rationalize such things before.
Which brings us to Pence.
Turning Point No. 2: Pence refuses to use his ceremonial role to reject certain states’ electors
Pence’s refusal to go along with Trump’s entreaties and the ideas later detailed in Eastman’s memo made him, in the eyes of some Trump administration critics, somewhat of an unlikely hero of Jan. 6.
But we’ve since learned that Pence agonized over this decision more than we previously knew. “You don’t know the position I’m in,” he told former vice president Dan Quayle in a conversation about it in late December, according to a new book by The Washington Post’s Bob Woodward and Robert Costa. Quayle told Pence that he had no choice, that he didn’t have the power to unilaterally set aside electors from certain states — a vital element of Eastman’s plan. Pence relented.
But imagine a situation in which the Justice Department has suddenly legitimized claims about fraud or irregularities. Might that have given the agonizing Pence what he needed to take an extraordinary and unprecedented step? Maybe he could even have reasoned that he wasn’t unilaterally overturning the election.
This is where Eastman’s memo comes in. The idea was not to get Pence to overturn the election himself — that’s the straw-man defense used by Eastman’s employer this week — but rather to declare the outcome in doubt and kick the decision to the House.
We won’t dwell too much on the details of the Eastman memo here, but basically Pence was to set aside certain states’ electors and maybe try to declare Trump the winner of a majority of a smaller amount of electoral votes. At that point, Democrats would predictably cry foul, and Pence would cite the constitutional process of the House deciding an election in which no candidate has a majority of electors, with one vote per delegation.
And as Eastman’s memo noted: “Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.”
Turning Point No. 3: What the House would have done
Despite Eastman’s breezy assertion, there is a real question about whether even a House vote in which the GOP controlled more delegations would have gone according to plan.
Let’s break down the numbers. After members were sworn in to the new Congress on Jan. 3, the GOP had a majority in 26 of 50 delegations, while Democrats had a majority in 20. The other four were tied.
Those numbers look favorable for the GOP — and they are, or at least certainly more favorable than the actual election results or the House as a whole (where Democrats have a majority).
But some of those delegations were close calls. Rep. Liz Cheney (R-Wyo.) was one of the earliest members to criticize Trump’s fraud claims, as far back as November, and as the only member in Wyoming’s delegation, she would have controlled her state’s one vote. Eight other GOP-majority delegations would no longer have had a majority if even one Republican chose Biden. And the four tied states included Michigan, where Republican congressmen Fred Upton and Peter Meijer wound up supporting Trump’s impeachment, with Upton also criticizing Trump’s fraud claims in November.
The process requires the winner to get a majority of states, not just the most states. (It took 36 ballots for the House to decide the 1800 election because neither Thomas Jefferson nor Aaron Burr got a majority of delegations.) And Trump couldn’t afford losing even one delegation in which the GOP had a majority.
Critics of the Trump-era GOP will believe the Republicans would eventually have gone along — especially if the Justice Department had finally, supposedly legitimized Trump’s claims. Republicans had fallen in line through so many other things, after all.
But, as Philip Bump wrote last week, it would matter just how much controversy there was over what the Justice Department did. If Trump forced mass resignations, and then, just as quickly, a politically convenient letter was suddenly released on the eve of Jan. 6, still without any real evidence? If Pence took this highly extraordinary step with the transparent goal of trying to reinstall Trump?
“Eastman waves this off in his initial memo as partisan ‘howls,’ but it’s obvious that such an overt attempt to undercut the will of the electorate would face enormous opprobrium and outcry,” Bump wrote.
Turning Point No. 4: The alternate-elector problem
One thing hasn’t been dwelt upon enough in all of this. And that’s that even Eastman’s plan relied upon something come Jan. 6 that the Trump team didn’t have: alternate slates of pro-Trump electors in the states at issue.
“7 states have transmitted dual slates of electors to the President of the Senate,” Eastman’s initial two-page memo begins.
As Teri Kanefield wrote in The Post recently, though: “Even if Pence had agreed to go along with this scheme — which he didn’t — the plan would have gone off the rails right there because, in fact, no states put forward alternate slates of electors. The ‘alternate electors’ were Trump allies claiming, without authority, to be electors.”
Here we get into that statement from Eastman’s employer, the Claremont Institute. While defending Eastman from the straw man that he asked Pence to unilaterally overturn the election (the point is that Eastman’s plan involved Pence facilitating a potentially overturned election), the statement describes Eastman’s advice on electors.
“John advised the Vice President to accede to requests from state legislators to pause the proceedings of the Joint Session of Congress for 7 to 10 days, to give time to the state legislatures to assess whether” to do something about the complaints.
It adds: “If the state legislatures had found sufficient illegal conduct to have altered the results, and as a result submitted a second slate of electors, John advised the Vice President that … the Vice President should regard Congress, not the Vice President, as having the authority to choose between the two slates.”
Again, straw man. It’s also not clear Pence would necessarily have deemed those alternate slates of electors necessary to throw the results into question and kick it to the House.
But, again, this would have been quite helpful to the effort. Congress overturning an election is one thing; Congress overturning an election in which the given state legislatures hadn’t even designated alternate slates of pro-Trump electors or legitimized the controversies in their states would be quite another. And while most of the states at issue have GOP majorities in their legislatures, there again would have been a massive outcry — especially if the legislatures all suddenly took this step after not having done so before Jan. 6.
Eastman in recent interviews explaining himself emphasized that the plot would have been “foolish” without those state legislatures designating alternate electors. That’s certainly convenient for him to say now, as he’s downplaying just how brazen the plot was. But it does reinforce how many pieces needed to fall into place for the plot to work.
We’ll never know how close we came to that being truly tested. But as we continue to sort through what became of Jan. 6, it’s worth taking stock of what a few more pieces falling into place might have meant — and the pressure points in our democracy they reveal.