Recent revelations about what was going on in the Trump administration between Election Day 2020 and January 6, 2021, have made it more apparent than ever that the riot at the Capitol was just the final, desperate measure in an attempted electoral coup that Trump and his henchmen had been scheming to execute for months. The latest “shocker” (that really shouldn’t shock anyone at all) was reported by ABC News this week:
Top members of the Department of Justice last year rebuffed another DOJ official who asked them to urge officials in Georgia to investigate and perhaps overturn President Joe Biden’s victory in the state – long a bitter point of contention for former President Donald Trump and his team – before the results were certified by Congress, emails obtained by ABC News show.
The “DOJ official” in question was Jeffrey Clark, the acting assistant attorney general for the Civil Division, who in late December drafted a letter to Georgia Governor Brian Kemp and the Republican leaders of the Georgia legislature urging them to convene a special session to investigate alleged 2020 voter-fraud claims. Given Kemp’s refusal to back Trump’s lies about Georgia’s vote, it’s understandable (if bizarre) that Clark’s draft letter also suggested the legislature call itself into session to consider whether it should appoint electors to rival the Biden slate already certified by Kemp and Secretary of State Brad Raffensperger. Subsequent reporting by MSNBC indicates that Clark had drafted similar letters to Republican leaders in five other states carried by Biden but which Trump claimed to have won.
The one truly surprising thing about this gambit was its late timing. All along, as I noted on December 1, the most feasible avenue for a Trump election coup was to mobilize Republican state legislatures to usurp the selection of electors on his behalf:
[I]t was obvious by mid-November that Trump’s only hope was to create enough phony doubt about the outcome in key states to justify a power grab by Republican legislators. The idea, which was fully aired in many of the preelection “red mirage” speculations … was that state legislators would assert a constitutionally sanctioned (if controversial and arguably in conflict with their own statutes) right to appoint electors themselves since “fraud” had tainted the popular-vote results. Trump publicly called on GOP legislators to do just that, as Politico reported on November 21.
It didn’t work in November, but Clark (and very clearly Trump himself) wanted to give it another try based on the exotic constitutional theory that the whole Electoral Count Act process for certifying and confirming electors violated the sovereign power of state legislatures over electors (there was a parallel claim, shot down by the federal courts a few days later, that the Constitution gave then Vice-President Pence the power to disregard state certifications of electors and count them however he wanted).
All the Trump campaign’s efforts (which continue to this day) to gin up phony “evidence” of voter fraud were initially aimed at creating a pretext for an intervention by state legislators (or Pence, who refused to accept the king-making designation) to overturn Biden’s victory. It’s probably another accident of timing that it didn’t come closer to working: Back in late December and early January, the Big Lie of the stolen election had not yet become GOP orthodoxy — at least, not to the extent that legislators in Georgia, Arizona, Pennsylvania, Wisconsin, Nevada, or Michigan felt obliged to steal it right back. Similarly, Clark’s letters were not sent out (which probably would have set off a constitutional crisis) because they horrified Acting Attorney General Jeffrey Rosen and Acting Deputy Attorney General Richard Donoghue. But it was a near thing, as the Washington Post’s Phillip Bump explains:
[On January 3] Clark told Rosen that he was going to be made acting attorney general by Trump. That led to a contentious meeting in the Oval Office involving all three men in which Trump weighed making such a switch to advance his fraud claims. A number of senior Justice Department officials had promised to resign should it happen, which the New York Times credits with helping preserve Rosen’s job. But that outcome was by no means certain. Replacing Rosen would probably have meant a quick issuance of Clark’s letter and a public rationalization for Georgia’s Republican-led legislature to act in support of Trump’s effort to snatch away the state’s electoral votes.
Just three days later Trump ran out of options for rigging the electoral vote count and resorted to an incendiary call to arms of a MAGA mob determined to “stop the steal.” It has never been entirely clear what Trump hoped to accomplish other than to temporarily disrupt the inevitable confirmation of Biden’s victory. But it was definitely the culmination of a long series of very deliberate efforts to subvert the 2020 elections and tamper with the results. That it is still going on is an ominous sign that January 6 wasn’t simply the last spasm of a failed 2020 coup. It may also have been the first step towards repeating it in 2024, with a different outcome. As election law expert Rick Hasen argues at Slate, that is entirely possible:
It’s easy to picture how this might play out in the next presidential election. Imagine that a state legislature sets forth general rules for conducting the 2024 election, but it does not provide every detail about how the election is run. Republican legislatures in states won by the Democratic candidate could seize on some normal election administration rule created by a state or local election administrator or some ruling from a state court, and argue that implementation of the rule renders the presidential election unconstitutional, leaving it to the state legislature to pick a different slate of electors.
If that happens, Jeffrey Clark could prove to be a prophet of democracy’s doom.