On December 1, I looked back at Donald Trump’s elaborate efforts to discredit voting by mail and cast doubt on a Biden victory before, during, and after Election Day and asked questions about why his coup had failed. I thought faulty planning, hesitation when it looked like Trump might win without stealing it, a failure to bring Republican state legislators in on the coup, and legal incompetence were all factors. But while I acknowledged Biden’s victory would not be complete until Congress confirmed it on January 6, I didn’t expect Trump was saving his worst offenses against democracy for the very end.
Ultimately, Congress did confirm Biden’s win, the mob Trump incited was repulsed, and he has been impeached for his outrageous conduct. But it’s time to ask again: How close did we come to a stolen election, or at least a constitutional crisis? Here are some moments of real peril to consider:
Election Night: Stop the Counting!
Late on Election Night, when the result was still in some doubt, Trump not only claimed victory based on his early lead (which everyone had feared and expected for months thanks to his success in convincing his supporters to cast the ballots most states counted first), but said: “We’ll be going to the Supreme Court. We want all voting to stop.”
Had Trump prepared any coherent and feasible legal strategy for halting the counting of mail ballots at that early stage, that might have thrown the results into doubt well before Biden’s victory was “called” on November 7. In fact, had he called out a MAGA mob to key state capitols or even localities at that point — as he called his supporters to Washington in January — to interfere with vote counting, it might have muddied the waters at least temporarily. But all Trump really offered initially was bluster.
Validating “Unofficial” Trump Electors
I noted in the December piece that Trump failed to convince Republican legislators in key states (they controlled legislatures in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin) to bypass the election results and name Trump electors, as at least some constitutional experts believed they had the right to do. That meant that Biden electors were going to be certified by those states without any real challenge before the December 8 Safe Harbor Deadline that made them binding on Congress. Team Trump did set up “unofficial” Trump slates of electors in six states that “cast” imaginary electoral votes for the incumbent on the December 14 date when the Electoral College put Biden officially over the top. But no effort was made to give them any sort of stamp of authority from state legislators or election officials, so their bogus nature was extremely clear.
A Pence Steal on January 6
Once Trump chose the congressional confirmation of the Biden victory on January 6 as the target of his maximum effort to swipe the election, attention naturally shifted to Vice-President Mike Pence, the Trump toady who would preside over the joint session of Congress in which the usually routine chore of tabulating electoral votes was to occur. The president’s advocates took a two-prong approach based on the assumption that Pence would do his master’s bidding. First, Representative Louie Gohmert filed a lawsuit contending that the Electoral Count Act of 1887 that governed the joint session was in fact an unconstitutional abrogation of the veep’s constitutional prerogative to recognize electors however he wanted. It was swiftly rejected by the federal courts.
So then Trump publicly and privately lobbied Pence to refuse to recognize Biden electors in enough states to deny him 270 electoral votes, throwing the contest into the U.S. House (where Republicans controlled a majority of delegations), or perhaps even to recognize the phony Trump electors and give him a second term outright (it was never entirely clear which approach Pence was expected to take).
Had Pence done as he was told, it would not have worked, since it’s virtually certain both houses of Congress would have approved objections to Pence “announcements” on electors that varied from the state-certified Biden slates. But it would have certainly made January 6 even more dramatic than it ultimately was. Presumably the Trump-incited mob would have still stormed the Capitol, but instead of trying to find Pence so that they could hang him as a traitor, its members would have been lionizing him as the ultimate “patriot.”
A Count Stopped by the Mob
With or without Pence joining the rebellion, the mob’s instruction from Trump and his surrogates was to “stop the steal,” which taken literally meant disrupting the January 6 joint session and preventing it from confirming Biden’s election. They nearly succeeded at least temporarily, until Nancy Pelosi and Mitch McConnell decided a resumption of the electoral vote count as soon as possible was essential to send a message that Congress would not be intimidated by violent yahoos. But a real “stop” to the count wasn’t feasible; the only real deadline was Inauguration Day on January 20, two weeks later. There was no way the “patriots” could have kept control of the Capitol for that long.
Overturning the Results in Congress
We’ll never know for sure how many states’ electoral votes pro-Trump members of Congress might have challenged had the assault on the Capitol not cast a pall on the whole enterprise (apparently five instead of the two, Arizona and Pennsylvania, that drew the requisite bicameral support to compel a vote). But they clearly didn’t have the votes in either House to pull off any of them (a majority in both Houses is required to overturn a state-certified and state-announced electoral vote slate). The whole “protest” was designed not to deny Joe Biden the presidency, but to put Republican feet to the fire in a final litmus test of loyalty to Trump, presumably to create a foundation for a comeback in the future.
All Trump really accomplished was ensuring his own impeachment and making a comeback much less likely (whether or not the Senate convicts him and makes a comeback legally impossible).
So was Trump’s effort to overturn the election results doomed all along? I don’t think so. A combination of better timing and better lawyers might have gotten Trump’s election coup off to a much better start, perhaps creating enough doubt about competing official-sounding electoral slates that on January 6 it became impossible to confirm all of Biden’s, thus throwing the election into the House. Alternatively and even more dangerously, Trump could have brought down violent pressure on vote-counters on and after Election Night to make it difficult for anyone to know what actually happened. From everything we know about Trump’s character, and the vast resources he devoted to laying the foundation for the coup (as opposed to governing well enough to make a legitimate reelection possible), he should get no credit for bungling the attempted larceny. A peaceful and orderly relinquishment of power by this president was never in the cards.