The convening of the electoral college on Dec. 14, 2020, was supposed to mark the end of the wild, extended presidential election that year.
“The electors are already here — they’ve been checked in,” a state police officer told the group in Michigan, according to a video of the encounter, as he barred the Republicans from the Capitol in a state Biden won by more than 154,000 votes.
In Nevada, a state Biden had won by about 33,600 votes, a photo distributed by the state Republican Party showed Trump supporters squeezing around an undersize picnic table dressed up with a bit of bunting, preparing to sign formal certificates declaring that they were “the duly elected and qualified” electors of their state.
At the time, the gatherings seemed a slapdash, desperate attempt to mimic President Donald Trump’s refusal to concede.
But internal campaign emails and memos reveal that the convening of the fake electors was apparently a much more concerted strategy, intended to give Vice President Mike Pence a reason to declare that 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 documents show that Trump’s team pushed ahead and urged the electors to meet — then pressured Pence to cite the alternate Trump slates — even as various Trump lawyers acknowledged privately that they did not have legal validity and the gatherings had not been in compliance with state laws.
In a public hearing Thursday, the House committee investigating the attack on the U.S. Capitol on Jan. 6 explored the end of the story — the pressure campaign directed at Pence to accept the Trump electors as somehow legitimate.
Committee members have said Tuesday’s hearing will focus on what came before that, how the elector scheme was organized and the ways Trump pressured officials in swing states to go along with his false claims that Biden had lost.
“We’ll show evidence of the president’s involvement in this scheme,” committee member Adam B. Schiff (D-Calif.) said Sunday on CNN’s “State of the Union.” “We’ll also, again, show evidence about what his own lawyers came to think about this scheme. And we’ll show courageous state officials who stood up and said they wouldn’t go along with this plan to either call legislatures back into session or decertify the results for Joe Biden.”
The testimony and evidence presented by the committee will build on an argument it made in a federal court in California, where it successfully obtained a judge’s order forcing Trump lawyer John Eastman to turn over records to the committee. In ordering Eastman to produce the documents, U.S. District Judge David O. Carter wrote that Eastman and Trump’s endeavor amounted to “a coup in search of a legal theory.”
The Justice Department and an Atlanta-area prosecutor are also investigating the elector scheme, issuing subpoenas and conducting interviews in recent weeks to determine whether it amounted to a crime, The Washington Post has reported.
The shifting internal explanations for whether the elector strategy could be considered legitimate were typified in two emails sent in late December 2020 by Eastman, a constitutional law professor who was a leading proponent of the idea. In an email sent on Dec. 19 to a California activist with whom Eastman exchanged periodic notes about the election, Eastman wrote that the electors would be “dead on arrival in Congress.” His reasoning: No state legislature had acted to certify them as valid.
Just four days later, however, Eastman wrote to other Trump advisers that he believed Pence could indeed recognize the Trump electors on Jan. 6, apparently despite their lack of state legislative certification. “The fact that we have multiple slates of electors demonstrate the uncertainty of either. That should be enough,” he wrote.
Neither a lawyer for Eastman nor a spokesman for Trump’s campaign responded to requests for comment.
The emails show that some Trump advisers began strategizing just days after the election about how to construct a legal argument for advancing their own electors, even though laws in every state hold that electors are determined by the certified vote of the people.
In particular, they started mulling whether state legislatures, which in a number of key states were controlled by the GOP, could appoint Trump electors even if the certified results showed that Biden won.
“John — what would you think of producing a legal memo outlining the constitutional role of state legislators in designating electors?” conservative activist Cleta Mitchell, another lawyer advising Trump’s team, wrote to Eastman two days after the November vote. “A movement is stirring. But needs constitutional support.”
The notion that state legislatures could choose electors in defiance of voters would be a radical one in modern American history. But the documents show that Trump strategists quickly began to pursue the theory, especially as lawyers for the campaign and allied groups racked up losses in court cases that they had urged judges to hear expeditiously, before the electors could meet.
Their idea was that state legislatures could step in if the election had been marred by massive fraud or illegality. The Trump campaign pushed the fraud narrative even though the president and other top officials were told over and over, even by allies, that there was no evidence to support it, committee evidence and testimony have shown.
“That’s the most important point to keep in mind here: The whole predicate was nonsense,” said Edward Foley, an Ohio State University law professor who has studied disputed elections.
By Nov. 28, Eastman had penned a seven-page memo titled “The Constitutional Authority of State Legislatures to Choose Electors.” Internal emails show that a copy was sent to White House staffers, with a cover note that read, “For POTUS.” Another copy was circulated to members of the Arizona House of Representatives by a member who added that it would take only “courage to act.”
Already, Trump advisers were considering how they might attempt to use the alternate elector slates to derail Biden’s win at the joint session of Congress in January. Kenneth Chesebro, a Trump legal adviser, argued in an internal memo that Jan. 6 — not Dec. 14 — was the “hard deadline” for winning the election, particularly if Trump’s electors met and declared him the victor in December.
“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. However, a fair reading of the federal statutes suggests that this is a reasonable course of action,” he wrote.
Still, as the day approached, Chesebro seemed concerned about whether Trump electors could meet a set of state laws that govern how the electoral college process works.
In a Dec. 9 memo, he flagged that some states had laws that might prove difficult to comply with. Michigan, for instance, required that electors meet in the Senate chamber of the state Capitol, an “awkward” requirement, he wrote, given that Gov. Gretchen Whitmer (D) would be presiding over the meeting of Biden’s electors in the same spot. He termed Nevada’s law “extremely problematic” for the effort because it required the involvement of the secretary of state, who had already certified Biden’s win.
He concluded that the plan was “unproblematic” in Arizona and Wisconsin, “slightly problematic” in Michigan, and “somewhat dicey” in Georgia and Pennsylvania.
Chesebro did not respond to a request for comment.
Despite the pessimistic prognosis, the campaign pushed forward organizing the effort, appearing to simply ignore the provisions of state law flagged by the Massachusetts lawyer.
Rebuffed by a state Capitol security guard, the fake Michigan electors failed to meet in the state’s Senate chamber, decamping instead to the state party headquarters to sign their documents. The secretary of state played no role with the Republican electors in Nevada.
In Georgia, a group of so-called electors took seats around a U-shaped conference table in a hearing room at the state Capitol, a printer nearby hastily installed by a Trump campaign aide in case new certificates needed to be run off on the spot.
The Trump campaign had instructed them in advance to tell no one of the plan — not even Capitol security guards.
“Your duties are imperative to ensure the end result — a win in Georgia for President Trump — but will be hampered unless we have complete secrecy and discretion,” a campaign official wrote to the group the day before the meeting.
On the ground, Trump electors have said they believed they were gathering just in case their actions were later ratified by a court or a legislature.
“From taking a lot of political science courses, I knew that if you miss a deadline for doing this, you can’t come back later and rework it,” said Robert Spindell Jr., who signed an elector certificate for Trump in Wisconsin. “It was generally the view of the attorneys that should Trump win some of these cases, this had to be done.”
At 3:11 p.m. the day before the fake electors met, Eastman sent an email to a Pennsylvania lawmaker stressing he too understood that additional steps would be needed to give them legal standing. “The electors absolutely need to meet,” he wrote. “Then, if the Legislature gets some spine … those electoral votes will be available to be certified by the legislature.”
In the weeks before and after the real electors met, Trump and his advisers engaged in a frenzied effort to arm-twist state legislators into validating their electors. Trump lawyer Rudy Giuliani, for instance, testified publicly to lawmakers in Arizona, Georgia, Michigan and Pennsylvania, urging them to act. Tuesday’s hearing will also focus on those efforts, committee members have said, featuring live testimony from Georgia Secretary of State Brad Raffensperger, his colleague Gabriel Sterling and Arizona House Speaker Rusty Bowers (R).
But as that strategy to get legislative sign-off broke down, the campaign appeared to settle on the idea that the existence of the rival slates was enough to give Pence room to act.
By Jan. 3, Eastman was circulating a memo that argued Pence should cite the bogus electors as legitimate. Citing what he claimed were problems with how the vote was conducted, he wrote, “There are thus dual slates of electors from 7 states.”
“The lesson that we’re seeing is that the people who drank all the Kool-Aid, they become increasingly unhinged and untethered to reality as the process unfolded,” Foley said. “They just doubled down and then tripled down, and spun more and more off into their own delusional world.”
Ultimately, Pence refused to recognize the Trump elector slates, earning him the president’s anger and making him a target of the mob that ransacked the Capitol on Jan. 6.
Four days later, after Congress confirmed Biden’s win and Trump prepared to leave office, Eastman received an email demanding to know what had happened.
“Tell us in layman’s language, what the heck happened with the dual electors? Please?” read the email, which was from a person whose name is redacted in a version released publicly.
In his response, Eastman admitted the facts: The electors never had legal standing.
“No legislature certified them [because governors refused to call them into session], so they had no authority,” he wrote.
“Alas,” he concluded.
Amy Gardner and Emma Brown contributed to this report.