The Washington PostDemocracy Dies in Darkness

Another lawyer, another memo offering advice on stealing the presidency

As his presidency wound down, Trump finally found his Roy Cohns

Members of President Donald Trump's legal team, including, from left, Rudolph W. Giuliani, Sidney Powell and Jenna Ellis, at a news conference Nov. 19, 2020, at the Republican National Committee headquarters in Washington. (Jacquelyn Martin/AP)

Early in his presidency, Donald Trump was angry. Narrowing things down a bit, he was angry that Attorney General Jeff Sessions was planning to recuse himself from any decisions related to the investigation into Russian interference in the 2016 election. Trump considered this a betrayal: He had appointed Sessions to that position in part clearly expecting him to be as loyal a supporter as Sessions was when he became the first member of the Senate to endorse Trump’s candidacy. But Sessions understood the job differently, which is to say he understood it correctly. His duty was to the country and the rule of law, not to Trump.

In a meeting at the White House, Trump complained that Sessions wasn’t protecting him the way that he thought past attorneys general had protected past presidents. (This was not historically accurate.) He offered a succinct complaint: “Where’s my Roy Cohn?”

For years, Cohn was Trump’s attorney, a veteran of defending both murderous mob bosses and Sen. Joe McCarthy’s (R-Wis.) effort to out various members of the government as communists. The unscrupulous lawyer and the scruple-agnostic future president were an effective pair, until Cohn’s diagnosis with AIDS. (At that point, Trump “dropped him like a hot potato,” one of Cohn’s former secretaries told Politico’s Michael Kruse.) But Cohn had set expectations for Trump about what an attorney was supposed to do. It often wasn’t a question of figuring out where the legal boundaries were but more broadly what could be defended.

“I decided long ago to make my own rules,” Cohn told Penthouse magazine in 1981. According to Kruse, Cohn compared himself to Machiavelli.

As it turned out, Trump got his Roy Cohn — several of them, attorneys who were willing to defend him at the expense of the institution he represented and to offer him sets of rules to get him where he wanted to go. Specifically, to an unearned second term in office.

On Sunday, ABC News reported on the existence of a memo written by Trump’s campaign attorney Jenna Ellis at some point in December or January. It delineated a plan for seizing a second term in office, centered on the counting of electoral votes on Jan. 6. That day, Vice President Mike Pence would reject the submitted electoral votes from a number of states, demanding that they return revised votes — presumably for Trump — by Jan. 15. If they didn’t do so, neither Trump nor Joe Biden would have enough electoral votes to constitute a majority of the 538 available, so the election would be settled by the House. And, by extension, potentially (though not necessarily) to Trump.

You may have been familiar with Ellis before this new report. She was a close ally of Trump’s attorney Rudolph W. Giuliani in the weeks after Trump lost the 2020 election. She joined Giuliani in presenting nonsensical, unfounded and false claims about rampant fraud at hearings convened by Republicans in various states. She stood by his side during the infamous hair-dye news conference at the Republican National Committee headquarters in mid-November. She also had a link to a right-wing legal group that was actively trying to undercut confidence in the results of the 2020 election.

If Ellis’s plot sounds familiar, it should. It mirrors in broad strokes the plan offered by John Eastman, another attorney linked to a right-wing legal group, in a pair of memos written after the election. The first of those offered a simple, four-part plan for Trump and Pence to reject the cast electoral votes and secure a second term in office. At some point after that memo was written (and after it was shown to at least one incredulous senator), Eastman wrote a longer version. It was a sanitized version of the same thing: If Pence does these things, a Trump victory might result. It was a spoonful of sugar drizzled around the same medicine.

Giuliani, of course, was everywhere at once, trying to get people to listen to his various claims about the election. There was almost no theory that he wouldn’t elevate, doing everything in his power to whip up doubt about the election results, even as his claims repeatedly and uniformly amounted to nothing. The “almost” in that sentence leaves a small gap, but it’s one that was filled. Attorney Sidney Powell was also at the RNC news conference, where she made claims about election fraud that were so wild and obviously nonsensical that even Giuliani and Trump eventually moved away from her.

But Trump came back. As The Washington Post’s Robert Costa and Bob Woodward reported in their book “Peril” (where Eastman’s memo was first revealed), there was a meeting in the White House in mid-December during which Trump advocated for Powell to be made a special counsel by the Justice Department so that she could investigate her surreal claims of fraud.

“Sidney Powell had a new idea to expand the power of the presidency: Trump could issue a presidential order to take control of the vote count,” Costa and Woodward wrote. “The states were rigged, the media was rigged. Trump had to act.”

Trump’s White House aides “privately thought Powell’s ideas were insane, dangerous, and that she drew out the worst in Trump,” they wrote. Even Giuliani didn’t support the idea. But Trump was receptive, saying, “at least she’s giving me a chance.”

That’s the Cohn role. The point of a Cohn lawyer is that, no matter how dire the situation, you have someone fighting relentlessly on your behalf. Truth isn’t important. Stability isn’t important. Winning is important. If that means making your own rules — such as about how the vice president can reject electoral votes — that’s what you do.

Had Pence acquiesced to Trump’s plan, listening to Eastman or Ellis, it’s highly unlikely that Trump would have seized a second term in office. It’s more probable that an already unbalanced country would have erupted into massive protests and that the political dynamics on Capitol Hill would have been buffeted by the national outrage. But every journey begins with a first step, and for Trump on Jan. 6, the first step was rejecting the electoral votes. To guide that step, he finally had lawyers who would draw him the maps he wanted to see.