It's almost upon us - the one year anniversary of the January 6th Insurrection. Although he will try, I have doubts whether Joe Biden will be able to unify the country in his address to the Nation today. Jimmy Carter knocked the ball out of the park. Thanks Jimmy:
~ From The New York Times:
Jimmy Carter: I Fear For Our Democracy - 01/05/22
By, Jimmy Carter
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Now, this next one is a long one - but worth a read:
~ From The Atlantic : (audio on the link)
January 6 was practice. Donald Trump’s GOP is much better positioned to subvert the next election.
In a column headlined “There Will Be No Trump Coup,” the New York Times writer Ross Douthat had predicted, shortly before Election Day, that “any attempt to cling to power illegitimately will be a theater of the absurd.” He was responding in part to my warning in these pages that Trump could wreak great harm in such an attempt.
One year later, Douthat looked back. In scores of lawsuits, “a variety of conservative lawyers delivered laughable arguments to skeptical judges and were ultimately swatted down,” he wrote, and state election officials warded off Trump’s corrupt demands. My own article, Douthat wrote, had anticipated what Trump tried to do. “But at every level he was rebuffed, often embarrassingly, and by the end his plotting consisted of listening to charlatans and cranks proposing last-ditch ideas” that could never succeed.
Douthat also looked ahead, with guarded optimism, to the coming presidential election. There are risks of foul play, he wrote, but “Trump in 2024 will have none of the presidential powers, legal and practical, that he enjoyed in 2020 but failed to use effectively in any shape or form.” And “you can’t assess Trump’s potential to overturn an election from outside the Oval Office unless you acknowledge his inability to effectively employ the powers of that office when he had them.”
That, I submit respectfully, is a profound misunderstanding of what mattered in the coup attempt a year ago. It is also a dangerous underestimate of the threat in 2024—which is larger, not smaller, than it was in 2020.
It is true that Trump tried and failed to wield his authority as commander in chief and chief law-enforcement officer on behalf of the Big Lie. But Trump did not need the instruments of office to sabotage the electoral machinery. It was citizen Trump—as litigant, as candidate, as dominant party leader, as gifted demagogue, and as commander of a vast propaganda army—who launched the insurrection and brought the peaceful transfer of power to the brink of failure.
All of these roles are still Trump’s for the taking. In nearly every battle space of the war to control the count of the next election—statehouses, state election authorities, courthouses, Congress, and the Republican Party apparatus—Trump’s position has improved since a year ago.
To understand the threat today, you have to see with clear eyes what happened, what is still happening, after the 2020 election. The charlatans and cranks who filed lawsuits and led public spectacles on Trump’s behalf were sideshows. They distracted from the main event: a systematic effort to nullify the election results and then reverse them. As milestones passed—individual certification by states, the meeting of the Electoral College on December 14—Trump’s hand grew weaker. But he played it strategically throughout. The more we learn about January 6, the clearer the conclusion becomes that it was the last gambit in a soundly conceived campaign—one that provides a blueprint for 2024.
The strategic objective of nearly every move by the Trump team after the networks called the election for Joe Biden on November 7 was to induce Republican legislatures in states that Biden won to seize control of the results and appoint Trump electors instead. Every other objective—in courtrooms, on state election panels, in the Justice Department, and in the office of the vice president—was instrumental to that end.
Electors are the currency in a presidential contest and, under the Constitution, state legislators control the rules for choosing them. Article II provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” Since the 19th century, every state has ceded the choice to its voters, automatically certifying electors who support the victor at the polls, but in Bush v. Gore the Supreme Court affirmed that a state “can take back the power to appoint electors.” No court has ever said that a state could do that after its citizens have already voted, but that was the heart of Trump’s plan.
Every path to stealing the election required GOP legislatures in at least three states to repudiate the election results and substitute presidential electors for Trump. That act alone would not have ensured Trump’s victory. Congress would have had to accept the substitute electors when it counted the votes, and the Supreme Court might have had a say. But without the state legislatures, Trump had no way to overturn the verdict of the voters.
Trump needed 38 electors to reverse Biden’s victory, or 37 for a tie that would throw the contest to the House of Representatives. For all his improvisation and flailing in the postelection period, Trump never lost sight of that goal. He and his team focused on obtaining the required sum from among the 79 electoral votes in Arizona (11), Georgia (16), Michigan (16), Nevada (6), Pennsylvania (20), and Wisconsin (10).
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Nothing close to this loss of faith in democracy has happened here before. Even Confederates recognized Lincoln’s election; they tried to secede because they knew they had lost.
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Trump had many tactical setbacks. He and his advocates lost 64 of 65 challenges to election results in court, and many of them were indeed comically inept. His intimidation of state officials, though it also failed in the end, was less comical. Trump was too late, barely, to strong-arm Republican county authorities into rejecting Detroit’s election tally (they tried and failed to rescind their “yes” votes after the fact), and Aaron Van Langevelde, the crucial Republican vote on Michigan’s Board of State Canvassers, stood up to Trump’s pressure to block certification of the statewide results. Georgia Secretary of State Brad Raffensperger refused the president’s request to “find” 11,780 votes for Trump after two recounts confirming Biden’s win. Two Republican governors, in Georgia and Arizona, signed certificates of Biden’s victory; the latter did so even as a telephone call from Trump rang unanswered in his pocket. The acting attorney general stared down Trump’s plan to replace him with a subordinate, Jeffrey B. Clark, who was prepared to send a letter advising the Georgia House and Senate to reconsider their state’s election results.
Had Trump succeeded in any of these efforts, he would have given Republican state legislators a credible excuse to meddle; one success might have led to a cascade. Trump used judges, county boards, state officials, and even his own Justice Department as stepping-stones to his ultimate target: Republican legislators in swing states. No one else could give him what he wanted.
Even as these efforts foundered, the Trump team achieved something crucial and enduring by convincing tens of millions of angry supporters, including a catastrophic 68 percent of all Republicans in a November PRRI poll, that the election had been stolen from Trump. Nothing close to this loss of faith in democracy has happened here before. Even Confederates recognized Abraham Lincoln’s election; they tried to secede because they knew they had lost. Delegitimating Biden’s victory was a strategic win for Trump—then and now—because the Big Lie became the driving passion of the voters who controlled the fate of Republican legislators, and Trump’s fate was in the legislators’ hands.
Even so, three strategic points of failure left Trump in dire straits in the days before January 6.
First, although Trump won broad rhetorical support from state legislators for his fictitious claims of voter fraud, they were reluctant to take the radical, concrete step of nullifying the votes of their own citizens. Despite enormous pressure, none of the six contested states put forward an alternate slate of electors for Trump. Only later, as Congress prepared to count the electoral votes, did legislators in some of those states begin talking unofficially about “decertifying” the Biden electors.
The second strategic point of failure for Trump was Congress, which had the normally ceremonial role of counting the electoral votes. In the absence of action by state legislatures, the Trump team had made a weak attempt at a fallback, arranging for Republicans in each of the six states to appoint themselves “electors” and transmit their “ballots” for Trump to the president of the Senate. Trump would have needed both chambers of Congress to approve his faux electors and hand him the presidency. Republicans controlled only the Senate, but that might have enabled Trump to create an impasse in the count. The trouble there was that fewer than a dozen Republican senators were on board.
Trump’s third strategic setback was his inability, despite all expectations, to induce his loyal No. 2 to go along. Vice President Mike Pence would preside over the Joint Session of Congress to count the electoral votes, and in a memo distributed in early January, Trump’s legal adviser John Eastman claimed, on “very solid legal authority,” that Pence himself “does the counting, including the resolution of disputed electoral votes … and all the Members of Congress can do is watch.” If Congress would not crown Trump president, in other words, Pence could do it himself. And if Pence would not do that, he could simply disregard the time limits for debate under the Electoral Count Act and allow Republicans like Senator Ted Cruz to filibuster. “That creates a stalemate,” Eastman wrote, “that would give the state legislatures more time.”
Time. The clock was ticking. Several of Trump’s advisers, Rudy Giuliani among them, told allies that friendly legislatures were on the brink of convening special sessions to replace their Biden electors. The Trump conspiracy had made nowhere near that much progress, in fact, but Giuliani was saying it could be done in “five to 10 days.” If Congress went ahead with the count on January 6, it would be too late.
On the afternoon of January 5, Sidney Powell—she of the “Kraken” lawsuits, for which she would later be sanctioned in one court and sued in another—prepared an emergency motion addressed to Justice Samuel Alito. The motion, entered into the Supreme Court docket the next day, would go largely unnoticed by the media and the public amid the violence of January 6; few have heard of it even now. But it was Plan A to buy Trump some time.
Alito was the circuit justice for the Fifth Circuit, where Powell, on behalf of Representative Louie Gohmert, had sued to compel Mike Pence to take charge of validating electors, disregarding the statutory role of Congress. The vice president had “exclusive authority and sole discretion as to which set of electors to count or even whether to count no set of electors,” Powell wrote. The Electoral Count Act, which says quite otherwise, was unconstitutional.
Powell did not expect Alito to rule on the merits immediately. She asked him to enter an emergency stay of the electoral count and schedule briefs on the constitutional claim. If Alito granted the stay, the clock on the election would stop and Trump would gain time to twist more arms in state legislatures.
Late in the same afternoon, January 5, Steve Bannon sat behind a microphone for his live War Room show, backswept gray hair spilling from his headphones to the epaulets on a khaki field jacket. He was talking, not very guardedly, about Trump’s Plan B to buy time the next day.
“The state legislatures are the center of gravity” of the fight, he said, because “people are going back to the original interpretation of the Constitution.”
And there was big news: The Republican leaders of the Pennsylvania Senate, who had resisted pressure from Trump to nullify Biden’s victory, had just signed their names to a letter averring that the commonwealth’s election results “should not have been certified by our Secretary of State.” (Bannon thanked his viewers for staging protests at those legislators’ homes in recent days.) The letter, addressed to Republican leaders in Congress, went on to “ask that you delay certification of the Electoral College to allow due process as we pursue election integrity in our Commonwealth.”
For weeks, Rudy Giuliani had starred in spurious “fraud” hearings in states where Biden had won narrowly. “After all these hearings,” Bannon exulted on air, “we finally have a state legislature … that is moving.” More states, the Trump team hoped, would follow Pennsylvania’s lead.
Meanwhile, the Trumpers would use the new letter as an excuse for putting off a statutory requirement to count the electoral votes “on the sixth day of January.” Senator Cruz and several allies proposed an “emergency” 10-day delay, ostensibly for an audit.
This was a lawless plan on multiple grounds. While the Constitution gives state legislatures the power to select electors, it does not provide for “decertifying” electors after they have cast their ballots in the Electoral College, which had happened weeks before. Even if Republicans had acted earlier, they could not have dismissed electors by writing a letter. Vanishingly few legal scholars believed that a legislature could appoint substitute electors by any means after voters had made their choice. And the governing statute, the Electoral Count Act, had no provision for delay past January 6, emergency or otherwise. Trump’s team was improvising at this point, hoping that it could make new law in court, or that legal niceties would be overwhelmed by events. If Pence or the Republican-controlled Senate had fully backed Trump’s maneuver, there is a chance that they might in fact have produced a legal stalemate that the incumbent could have exploited to stay in power.
Above all else, Bannon knew that Trump had to stop the count, which was set to begin at 1 p.m. the next day. If Pence would not stop it and Alito did not come through, another way would have to be found.
“Tomorrow morning, look, what’s going to happen, we’re going to have at the Ellipse—President Trump speaks at 11,” Bannon said, summoning his posse to turn up when the gates opened at 7 a.m. Bannon would be back on air in the morning with “a lot more news and analysis of exactly what’s going to go on through the day.”
Then a knowing smile crossed Bannon’s face. He swept a palm in front of him, and he said the words that would capture attention, months later, from a congressional select committee.
“I’ll tell you this,” Bannon said. “It’s not going to happen like you think it’s going to happen. Okay, it’s going to be quite extraordinarily different. All I can say is, strap in.” Earlier the same day, he had predicted, “All hell is going to break loose tomorrow.”
Bannon signed off at 6:58 p.m. Later that night he turned up in another war room, this one a suite at the Willard Hotel, across the street from the White House. He and others in Trump’s close orbit, including Eastman and Giuliani, had been meeting there for days. Congressional investigators have been deploying subpoenas and the threat of criminal sanctions—Bannon has been indicted for contempt of Congress—to discover whether they were in direct contact with the “Stop the Steal” rally organizers and, if so, what they planned together.
Shortly after Bannon signed off, a 6-foot-3-inch mixed martial artist named Scott Fairlamb responded to his call. Fairlamb, who fought under the nickname “Wildman,” reposted Bannon’s war cry to Facebook: “All hell is going to break loose tomorrow.” The next morning, after driving before dawn from New Jersey to Washington, he posted again: “How far are you willing to go to defend our Constitution?” Fairlamb, then 43, answered the question for his own part a few hours later at the leading edge of a melee on the West Terrace of the Capitol—seizing a police baton and later punching an officer in the face. “What patriots do? We fuckin’ disarm them and then we storm the fuckin’ Capitol!” he screamed at fellow insurgents.
Less than an hour earlier, at 1:10 p.m., Trump had finished speaking and directed the crowd toward the Capitol. The first rioters breached the building at 2:11 p.m. through a window they shattered with a length of lumber and a stolen police shield. About one minute later, Fairlamb burst through the Senate Wing Door brandishing the baton, a teeming mob behind him. (Fairlamb pleaded guilty to assaulting an officer and other charges.)
Another minute passed, and then without warning, at 2:13, a Secret Service detail pulled Pence away from the Senate podium, hustling him out through a side door and down a short stretch of hallway.
Pause for a moment to consider the choreography. Hundreds of angry men and women are swarming through the halls of the Capitol. They are fresh from victory in hand-to-hand combat with an outnumbered force of Metropolitan and Capitol Police. Many have knives or bear spray or baseball bats or improvised cudgels. A few have thought to carry zip-tie wrist restraints. Some are shouting “Hang Mike Pence!” Others call out hated Democrats by name.
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At 2:26, the Secret Service agents told Pence again that he had to move. “The third time they came in,” the vice president’s chief of staff told me, “it wasn’t really a choice.”
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These hundreds of rioters are fanning out, intent on finding another group of roughly comparable size: 100 senators and 435 members of the House, in addition to the vice president. How long can the one group roam freely without meeting the other? Nothing short of stunning good luck, with an allowance for determined police and sound evacuation plans, prevented a direct encounter.
The vice president reached Room S-214, his ceremonial Senate office, at about 2:14 p.m. No sooner had his entourage closed the door, which is made of opaque white glass, than the leading edge of the mob reached a marble landing 100 feet away. Had the rioters arrived half a minute earlier, they could not have failed to spot the vice president and his escorts speed-walking out of the Senate chamber.
Ten minutes later, at 2:24, Trump egged on the hunt. “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” he tweeted.
Two minutes after that, at 2:26, the Secret Service agents told Pence again what they had already said twice before: He had to move.
“The third time they came in, it wasn’t really a choice,” Marc Short, the vice president’s chief of staff, told me. “It was ‘We cannot protect you here, because all that we have between us is a glass door.’ ” When Pence refused to leave the Capitol, the agents guided him down a staircase to a shelter under the visitors’ center.
In another part of the Capitol, at about the same time, a 40-year-old businessman from Miami named Gabriel A. Garcia turned a smartphone camera toward his face to narrate the insurrection in progress. He was a first-generation Cuban American, a retired U.S. Army captain, the owner of an aluminum-roofing company, and a member of the Miami chapter of the Proud Boys, a far-right group with a penchant for street brawls. (In an August interview, Garcia described the Proud Boys as a drinking club with a passion for free speech.)
In his Facebook Live video, Garcia wore a thick beard and a MAGA cap as he gripped a metal flagpole. “We just went ahead and stormed the Capitol. It’s about to get ugly,” he said. He weaved his way to the front of a crowd that was pressing against outnumbered police in the Crypt, beneath the Rotunda. “You fucking traitors!” he screamed in their faces. When officers detained another man who tried to break through their line, Garcia dropped his flagpole and shouted “Grab him!” during a skirmish to free the detainee. “U.S.A.!” he chanted. “Storm this shit!”
Then, in an ominous singsong voice, Garcia called out, “Nancy, come out and play!” Garcia was paraphrasing a villain in the 1979 urban-apocalypse film The Warriors. That line, in the movie, precedes a brawl with switchblades, lead pipes, and baseball bats. (Garcia, who faces six criminal charges including civil disorder, has pleaded not guilty to all counts.)
“It’s not like I threatened her life,” Garcia said in the interview, adding that he might not even have been talking about the speaker of the House. “I said ‘Nancy.’ Like I told my lawyer, that could mean any Nancy.”
Garcia had explanations for everything on the video. “Storm this shit” meant “bring more people [to] voice their opinion.” And “‘get ugly’ is ‘we’re getting a lot of people coming behind.’ ”
But the most revealing exegesis had to do with “fucking traitors.”
“At that point, I wasn’t meaning the Capitol Police,” he said. “I was looking at them. But … I was talking about Congress.” He “wasn’t there to stop the certification of Biden becoming president,” he said, but to delay it. “I was there to support Ted Cruz. Senator Ted Cruz was asking for a 10-day investigation.”
Delay. Buy time. Garcia knew what the mission was.
Late into the afternoon, as the violence died down and authorities regained control of the Capitol, Sidney Powell must have watched reports of the insurgency with anxious eyes on the clock. If Congress stayed out of session, there was a chance that Justice Alito might come through.
He did not. The Supreme Court denied Powell’s application the next day, after Congress completed the electoral count in the early-morning hours. Plan A and Plan B had both failed. Powell later expressed regret that Congress had been able to reconvene so quickly, mooting her request.
For a few short weeks, Republicans recoiled at the insurrection and distanced themselves from Trump. That would not last.
Ballroom A at the Treasure Island Hotel & Casino in Las Vegas is packed with college Republicans. There is a surfeit of red ties, vested suits, and pocket squares. A lot more young men than women. Two Black faces in a sea of white. No face masks at all. None of the students I ask has received a COVID vaccine.
The students have gathered to talk about the Second Amendment, the job market, and “how to attack your campus for their vaccine mandates,” as incoming Chair Will Donahue tells the crowd. Representative Paul Gosar of Arizona, a featured speaker, has another topic in mind.
“Let’s talk about January 6,” he proposes, and then, without further preamble: “Release the tapes!”
There is a scattering of applause, quickly extinguished. The students do not seem to know what he is talking about.
“The 14,000-plus hours,” Gosar says. “Let’s find out who actually—who caused the turmoil. Let’s hold accountable. But let’s also make sure that the people who are innocently charged are set free. But let’s also hold those responsible for what happened accountable.”
Gosar is not a natural orator, and it is often difficult to parse what he is saying. He bends at the waist and swings his head as he speaks, swallowing words and garbling syntax. No one in the Las Vegas audience seems to be following his train of thought. He moves on.
“We’re in the middle of a verbal and cultural war,” he says. “Very much like a civil war, where it’s brother against brother … We are the light. They are the darkness. Don’t shy away from that.”
A little sleuthing afterward reveals that 14,000 hours is the sum of footage preserved from the Capitol’s closed-circuit video cameras between the hours of noon and 8 p.m. on January 6. The Capitol Police, according to an affidavit from their general counsel, have shared the footage with Congress and the FBI but want to keep it out of public view because the images reveal, among other sensitive information, the Capitol’s “layout, vulnerabilities and security weaknesses.”
Gosar, like a few fellow conservatives, has reasoned from this that the Biden administration is concealing “exculpatory evidence” about the insurrectionists. The January 6 defendants, as Gosar portrays them in a tweet, are guilty of no more than a “stroll through statuary hall during non-business hours.” Another day he tweets, baselessly, “The violence was instigated by FBI assets.”
This is the same Paul Gosar who, in November, tweeted an anime video, prepared by his staff, depicting him in mortal combat with Representative Alexandria Ocasio-Cortez. In it he raises a sword and kills her with a blow to the neck. For incitement of violence against a colleague, the House voted to censure Gosar and stripped him of his committee assignments. Gosar, unrepentant, compared himself to Alexander Hamilton.
It’s the same Paul Gosar who, twice in recent months, has purported to be in possession of secret intelligence about vote-rigging from a source in the “CIA fraud department,” which does not exist, and from the “security exchange fraud department,” and also from someone “from Fraud from the Department of Defense,” all of whom were somehow monitoring voting machines and all of whom telephoned to alert him to chicanery.
Gosar has become a leading voice of January 6 revisionism, and he may have more reason than most to revise. In an unguarded video on Periscope, since deleted but preserved by the Project on Government Oversight, Ali Alexander, one of the principal organizers of the “Stop the Steal” rally, said, “I was the person who came up with the January 6 idea with Congressman Gosar” and two other Republican House members. “We four schemed up putting maximum pressure on Congress while they were voting.”
“Stop the Steal” organizers created and later tried to delete a website called Wild Protest that directed supporters to trespass on the Capitol steps, where demonstrations are illegal: “We the People must take to the US Capitol lawn and steps and tell Congress #DoNotCertify on #JAN6!” Gosar was listed on the site as a marquee name. In the final days of the Trump administration, CNN reported that Gosar (among other members of Congress) had asked Trump for a preemptive pardon for his part in the events of January 6. He did not get one. (Tom Van Flein, Gosar’s chief of staff, said in an email that both the pardon story and Alexander’s account were “categorically false.” He added, “Talking about a rally and speeches are one thing. Planning violence is another.”)
Assembled in one place, the elements of the revisionist narrative from Gosar and his allies resemble a litigator’s “argument in the alternative.” January 6 was a peaceful exercise of First Amendment rights. Or it was violent, but the violence came from antifa and FBI plants. Or the violent people, the ones charged in court, are patriots and political prisoners.
Or, perhaps, they are victims of unprovoked violence themselves. “They get down there, and they get assaulted by the law-enforcement officers,” Gabriel Pollock said in an interview from behind the counter at Rapture Guns and Knives in North Lakeland, Florida, speaking of family members who are facing criminal charges. “It was an ambush, is really what it was. All of that is going to come out in the court case.”
The most potent symbol of the revisionists is Ashli Babbitt, the 35-year-old Air Force veteran and QAnon adherent who died from a gunshot wound to the left shoulder as she tried to climb through a broken glass door. The shooting came half an hour after the mob’s near-encounter with Pence, and was an even closer call. This time the insurgents could see their quarry, dozens of House members clustered in the confined space of the Speaker’s Lobby. Rioters slammed fists and feet and a helmet into the reinforced glass of the barricaded doorway, eventually creating a hole big enough for Babbitt.
Whether the shooting was warranted is debatable. Federal prosecutors cleared Lieutenant Michael Byrd of wrongdoing, and the Capitol Police exonerated him, saying, “The actions of the officer in this case potentially saved Members and staff from serious injury and possible death from a large crowd of rioters who … were steps away.” The crowd was plainly eager to follow Babbitt through the breach, but a legal analysis in Lawfare argued that the unarmed Babbitt personally would have had to pose a serious threat to justify the shooting.
Gosar helped lead the campaign to make a martyr of Babbitt, who was shot wearing a Trump flag as a cape around her neck. “Who executed Ashli Babbitt?” he asked at a House hearing in May, before Byrd’s identity was known. At another hearing, in June, he said the officer “appeared to be hiding, lying in wait, and then gave no warning before killing her.”
“Was she on the right side of history?” I asked Gosar this summer.
“History has yet to be written,” he replied. “Release the tapes, and then history can be written.”
As word spread in right-wing circles that the then-unidentified officer was Black, race quickly entered the narrative. Henry “Enrique” Tarrio, the leader of the Proud Boys, shared a Telegram message from another user that said, “This black man was waiting to execute someone on january 6th. He chose Ashli Babbitt.” An account called “Justice for January 6” tweeted that Byrd “should be in jail for the execution of Ashli Babbitt, but instead he is being lauded as a hero. The ONLY racial injustice in America today is antiwhiteism.”
The penultimate stage of the new narrative held that Democrats had seized upon false accusations of rebellion in order to unleash the “deep state” against patriotic Americans. Dylan Martin, a student leader at the Las Vegas event at which Gosar spoke, adopted that view. “The Democratic Party seems to be using [January 6] as a rallying cry to persecute and completely use the force of the federal government to clamp down on conservatives across the nation,” he told me.
Trump himself proposed the final inversion of January 6 as a political symbol: “The insurrection took place on November 3, Election Day. January 6 was the Protest!” he wrote in a statement released by his fundraising group in October.
It is difficult today to find a Republican elected official who will take issue with that proposition in public. With Trump loyalists ascendant, no room is left for dissent in a party now fully devoted to twisting the electoral system for the former president. Anyone who thinks otherwise need only glance toward Wyoming, where Liz Cheney, so recently in the party’s power elite, has been toppled from her leadership post and expelled from the state Republican Party for lèse-majesté.
In the first days of January 2021, as Trump and his legal advisers squeezed Pence to stop the electoral count, they told the vice president that state legislatures around the country were on the cusp of replacing electors who’d voted for Biden with those who would vote for Trump. They were lying, but they were trying mightily to make it true.
Marc Short, Pence’s closest adviser, did not think it would happen. “In any sort of due diligence that we did with a Senate majority leader, a House minority leader, or any of those people, it was clear that they had certified their results and there was no intention of a separate slate of electors or any sort of challenge to that certification,” he told me. Trump might have support for his maneuver from “one or two” legislators in a given state, “but that was never something that actually garnered the support of a majority of any elected body.”
The letter from wavering Pennsylvania state senators suggests that the situation wasn’t quite so black-and-white; the dams were beginning to crack. Even so, Trump’s demand—that statehouses fire their voters and hand him the votes—was so far beyond the bounds of normal politics that politicians found it difficult to conceive.
With the passage of a year, it is no longer so hard. There is precedent now for the conversation, the next time it happens, and there are competent lawyers to smooth the path. Most of all, there is the roaring tide of revanchist anger among Trump supporters, rising up against anyone who would thwart his will. Scarcely an elected Republican dares resist them, and many surf exultantly in their wake.
A year ago I asked the Princeton historian Kevin Kruse how he explained the integrity of the Republican officials who said no, under pressure, to the attempted coup in 2020 and early ’21. “I think it did depend on the personalities,” he told me. “I think you replace those officials, those judges, with ones who are more willing to follow the party line, and you get a different set of outcomes.”
Today that reads like a coup plotter’s to-do list. Since the 2020 election, Trump’s acolytes have set about methodically identifying patches of resistance and pulling them out by the roots. Brad Raffensperger in Georgia, who refused to “find” extra votes for Trump? Formally censured by his state party, primaried, and stripped of his power as chief election officer. Aaron Van Langevelde in Michigan, who certified Biden’s victory? Hounded off the Board of State Canvassers. Governor Doug Ducey in Arizona, who signed his state’s “certificate of ascertainment” for Biden? Trump has endorsed a former Fox 10 news anchor named Kari Lake to succeed him, predicting that she “will fight to restore Election Integrity (both past and future!).” Future, here, is the operative word. Lake says she would not have certified Biden’s victory in Arizona, and even promises to revoke it (somehow) if she wins. None of this is normal.
Arizona’s legislature, meanwhile, has passed a law forbidding Katie Hobbs, the Democratic secretary of state, to take part in election lawsuits, as she did at crucial junctures last year. The legislature is also debating an extraordinary bill asserting its own prerogative, “by majority vote at any time before the presidential inauguration,” to “revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of election.” There was no such thing under law as a method to “decertify” electors when Trump demanded it in 2020, but state Republicans think they have invented one for 2024.
In at least 15 more states, Republicans have advanced new laws to shift authority over elections from governors and career officials in the executive branch to the legislature. Under the Orwellian banner of “election integrity,” even more have rewritten laws to make it harder for Democrats to vote. Death threats and harassment from Trump supporters have meanwhile driven nonpartisan voting administrators to contemplate retirement.
Vernetta Keith Nuriddin, 52, who left the Fulton County, Georgia, election board in June, told me she had been bombarded with menacing emails from Trump supporters. One email, she recalled, said, “You guys need to be publicly executed … on pay per view.” Another, a copy of which she provided me, said, “Tick, Tick, Tick” in the subject line and “Not long now” as the message. Nuriddin said she knows colleagues on at least four county election boards who resigned in 2021 or chose not to renew their positions.
Georgia Governor Brian Kemp, excommunicated and primaried at Trump’s behest for certifying Biden’s victory, nonetheless signed a new law in March that undercuts the power of the county authorities who normally manage elections. Now a GOP-dominated state board, beholden to the legislature, may overrule and take control of voting tallies in any jurisdiction—for example, a heavily Black and Democratic one like Fulton County. The State Election Board can suspend a county board if it deems the board to be “underperforming” and replace it with a handpicked administrator. The administrator, in turn, will have final say on disqualifying voters and declaring ballots null and void. Instead of complaining about balls and strikes, Team Trump will now own the referee.
“The best-case scenario is [that in] the next session this law is overturned,” Nuriddin said. “The worst case is they start just pulling election directors across the state.”
The Justice Department has filed suit to overturn some provisions of the new Georgia law—but not to challenge the hostile takeover of election authorities. Instead, the federal lawsuit takes issue with a long list of traditional voter-suppression tactics that, according to Attorney General Merrick Garland, have the intent and effect of disadvantaging Black voters. These include prohibitions and “onerous fines” that restrict the distribution of absentee ballots, limit the use of ballot drop boxes, and forbid handing out food or water to voters waiting in line. These provisions make it harder, by design, for Democrats to vote in Georgia. The provisions that Garland did not challenge make it easier for Republicans to fix the outcome. They represent danger of a whole different magnitude.
The coming midterm elections, meanwhile, could tip the balance further. Among the 36 states that will choose new governors in 2022, three are presidential battlegrounds—Pennsylvania, Wisconsin, and Michigan—where Democratic governors until now have thwarted attempts by Republican legislatures to cancel Biden’s victory and rewrite election rules. Republican challengers in those states have pledged allegiance to the Big Lie, and the contests look to be competitive. In at least seven states, Big Lie Republicans have been vying for Trump’s endorsement for secretary of state, the office that will oversee the 2024 election. Trump has already endorsed three of them, in the battleground states of Arizona, Georgia, and Michigan.
Down in the enlisted ranks, Trump’s army of the dispossessed is hearing language from Republican elected officials that validates an instinct for violence. Angry rhetoric comparing January 6 to 1776 (Representative Lauren Boebert) or vaccine requirements to the Holocaust (Kansas House Representative Brenda Landwehr) reliably produces death threats by the hundreds against perceived enemies—whether Democratic or Republican.
The infinite scroll of right-wing social media is relentlessly bloody-minded. One commentator on Telegram posted on January 7 that “the congress is literally begging the people to hang them.” Another replied, “Anyone who certifies a fraudulent election has commited treason punishable by death.” One week later came, “The last stand is a civil war.” In response, another user wrote, “No protests. To late for that.” The fire burns, if anything, even hotter now, a year later.
Amid all this ferment, Trump’s legal team is fine-tuning a constitutional argument that is pitched to appeal to a five-justice majority if the 2024 election reaches the Supreme Court. This, too, exploits the GOP advantage in statehouse control. Republicans are promoting an “independent state legislature” doctrine, which holds that statehouses have “plenary,” or exclusive, control of the rules for choosing presidential electors. Taken to its logical conclusion, it could provide a legal basis for any state legislature to throw out an election result it dislikes and appoint its preferred electors instead.
Elections are complicated, and election administrators have to make hundreds of choices about election machinery and procedures—the time, place, and manner of voting or counting or canvassing—that the legislature has not specifically authorized. A judge or county administrator may hold polls open for an extra hour to make up for a power outage that temporarily halts voting. Precinct workers may exercise their discretion to help voters “cure” technical errors on their ballots. A judge may rule that the state constitution limits or overrides a provision of state election law.
Four justices—Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas—have already signaled support for a doctrine that disallows any such deviation from the election rules passed by a state legislature. It is an absolutist reading of legislative control over the “manner” of appointing electors under Article II of the U.S. Constitution. Justice Amy Coney Barrett, Trump’s last appointee, has never opined on the issue.
The question could arise, and Barrett’s vote could become decisive, if Trump again asks a Republican-controlled legislature to set aside a Democratic victory at the polls. Any such legislature would be able to point to multiple actions during the election that it had not specifically authorized. To repeat, that is the norm for how elections are carried out today. Discretionary procedures are baked into the cake. A Supreme Court friendly to the doctrine of independent state legislatures would have a range of remedies available to it; the justices might, for instance, simply disqualify the portion of the votes that were cast through “unauthorized” procedures. But one of those remedies would be the nuclear option: throwing out the vote altogether and allowing the state legislature to appoint electors of its choosing.
Trump is not relying on the clown-car legal team that lost nearly every court case last time. The independent-state-legislature doctrine has a Federalist Society imprimatur and attorneys from top-tier firms like BakerHostetler. A dark-money voter-suppression group that calls itself the Honest Elections Project has already featured the argument in an amicus brief.
“One of the minimal requirements for a democracy is that popular elections will determine political leadership,” Nate Persily, a Stanford Law School expert on election law, told me. “If a legislature can effectively overrule the popular vote, it turns democracy on its head.” Persily and UC Irvine’s Hasen, among other election-law scholars, fear that the Supreme Court could take an absolutist stance that would do exactly that.
One sign that legislative supremacy is more than a hypothetical construct is that it has migrated into the talking points of Republican elected officials. On ABC’s This Week, for example, while refusing to opine on whether Biden had stolen the election, House Minority Whip Steve Scalise explained in February 2021, “There were a few states that did not follow their state laws. That’s really the dispute that you’ve seen continue on.” Trump himself has absorbed enough of the argument to tell the Washington Post reporters Carol Leonnig and Philip Rucker, “The legislatures of the states did not approve all of the things that were done for those elections. And under the Constitution of the United States, they have to do that.”
here is a clear and present danger that American democracy will not withstand the destructive forces that are now converging upon it. Our two-party system has only one party left that is willing to lose an election. The other is willing to win at the cost of breaking things that a democracy cannot live without.
Democracies have fallen before under stresses like these, when the people who might have defended them were transfixed by disbelief. If ours is to stand, its defenders have to rouse themselves.
Joe Biden looked as though he might do that on the afternoon of July 13. He traveled to the National Constitution Center in Philadelphia, which features on its facade an immense reproduction of the Preamble in 18th-century script, to deliver what was billed as a major address on democracy.
What followed was incongruous. Biden began well enough, laying out how the core problem of voting rights had changed. It was “no longer just about who gets to vote” but “who gets to count the vote.” There were “partisan actors” seizing power from independent election authorities. “To me, this is simple: This is election subversion,” he said. “They want the ability to reject the final count and ignore the will of the people if their preferred candidate loses.”
He described the means by which the next election might be stolen, though vaguely: “You vote for certain electors to vote for somebody for president” and then a “state legislator comes along … and they say, ‘No, we don’t like those electors. We’re going to appoint other electors who are going to vote for the other guy or other woman.’ ”
And he laid down a strong marker as he reached his rhetorical peak.
“We’re facing the most significant test of our democracy since the Civil War. That’s not hyperbole,” he said. “I’m not saying this to alarm you. I’m saying this because you should be alarmed.”
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Donald Trump came closer than anyone thought he could to toppling a free election a year ago. He is preparing in plain view to do it again.
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But then, having looked directly toward the threat on the horizon, Biden seemed to turn away, as if he doubted the evidence before his eyes. There was no appreciable call to action, save for the bare words themselves: “We’ve got to act.” Biden’s list of remedies was short and grossly incommensurate with the challenge. He expressed support for two bills—the For the People Act and the John Lewis Voting Rights Advancement Act—that were dead on arrival in the Senate because Democrats had no answer to the Republican filibuster. He said the attorney general would double the Department of Justice staff devoted to voting-rights enforcement. Civil-rights groups would “stay vigilant.” Vice President Kamala Harris would lead “an all-out effort to educate voters about the changing laws, register them to vote, and then get the vote out.”
And then he mentioned one last plan that proved he did not accept the nature of the threat: “We will be asking my Republican friends—in Congress, in states, in cities, in counties—to stand up, for God’s sake, and help prevent this concerted effort to undermine our elections and the sacred right to vote.”
So: enforcement of inadequate laws, wishful thinking about new laws, vigilance, voter education, and a friendly request that Republicans stand athwart their own electoral schemes.
Conspicuously missing from Biden’s speech was any mention even of filibuster reform, without which voting-rights legislation is doomed. Nor was there any mention of holding Trump and his minions accountable, legally, for plotting a coup. Patterson, the retired firefighter, was right to say that nobody has been charged with insurrection; the question is, why not? The Justice Department and the FBI are chasing down the foot soldiers of January 6, but there is no public sign that they are building cases against the men and women who sent them. Absent consequences, they will certainly try again. An unpunished plot is practice for the next.
Donald Trump came closer than anyone thought he could to toppling a free election a year ago. He is preparing in plain view to do it again, and his position is growing stronger. Republican acolytes have identified the weak points in our electoral apparatus and are methodically exploiting them. They have set loose and now are driven by the animus of tens of millions of aggrieved Trump supporters who are prone to conspiracy thinking, embrace violence, and reject democratic defeat. Those supporters, Robert Pape’s “committed insurrectionists,” are armed and single-minded and will know what to do the next time Trump calls upon them to act.
Democracy will be on trial in 2024. A strong and clear-eyed president, faced with such a test, would devote his presidency to meeting it. Biden knows better than I do what it looks like when a president fully marshals his power and resources to face a challenge. It doesn’t look like this.
The midterms, marked by gerrymandering, will more than likely tighten the GOP’s grip on the legislatures in swing states. The Supreme Court may be ready to give those legislatures near-absolute control over the choice of presidential electors. And if Republicans take back the House and Senate, as oddsmakers seem to believe they will, the GOP will be firmly in charge of counting the electoral votes.
Against Biden or another Democratic nominee, Donald Trump may be capable of winning a fair election in 2024. He does not intend to take that chance."
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Scary. Take care y'all.
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