If Donald Trump had walked off the golf course on Nov. 7, 2020, and acknowledged reports that Joe Biden had clinched the presidency, what followed would have been different. Or, really, if he had walked to the lectern in the early morning hours of Nov. 4 and said something other than that he had won reelection. Or, I guess, if he hadn’t spent months before Election Day claiming that the results would be tainted by fraud to rationalize a possible electoral loss — if he hadn’t done that, then maybe American democracy would sit on sturdier ground.
If you try to work backward to establish the point at which Trump’s efforts to undermine the results of the election could have been averted, you just have to keep going. It’s a reminder not only of Trump’s endless dishonesty but also of his obvious and extensive culpability. If Trump never mentioned voter fraud in 2020 and congratulated Biden on Nov. 7, it’s impossible to think that a phalanx of Oath Keepers would have marched through a furious crowd on the steps of the Capitol about two months later. The effort within the Capitol to object to electoral votes from states that Trump lost would have been minimal, if it occurred at all.
But here we get into tricky territory. Trump is entirely responsible for what happened — but how responsible is he for all of the sprawling, deranged ways it did?
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We are at the incremental-updates part of the investigations into the attack at the Capitol on Jan. 6, 2021, and the broader effort to steal the presidency. A new report from The Washington Post indicates that Trump allies circulated a plan that would use data from the National Security Agency in an effort to detect voter fraud, a plan functionally equivalent to figuring Trump could ask the CIA to arrest Santa Claus. The New York Times, meanwhile, obtained two memos sent in the weeks after the 2020 election in which the plan to appoint alternate slates of electors was first crafted.
Those elector memos are not particularly interesting for what they tell us about the plot. In mid-November, those paying close attention to the machinations of Trump’s objections to the election understood that this was a possible play; I wrote about it on Nov. 19 of that year. This vulnerability in the Electoral Vote Count Act was recognized by legal scholars — including some that worked for Trump.
What’s interesting about the memos, instead, is the timing. The first, the one that focuses on Jan. 6 as the drop-dead date for blocking Biden’s victory, was dated Nov. 18. It offers what at the time was an outlier theory (though one presaged by Barton Gellman’s what-could-go-wrong article published that September): the actual casting of electoral votes on Dec. 14 (much less the “safe harbor” date of Dec. 8 for objections to results) was secondary to the actual determination at the Capitol of which votes should count. Ironically, it was a manifestation of an aphorism that Trump liked to use to disparage the left: Elections aren’t determined by voters but by the vote-counters.
So, on Dec. 14, electors supporting Trump met in several of the states he lost in order to cast their votes for the incumbent president. There was no reason that those votes should have been considered legitimate, particularly since the popular-vote results in each state had been certified by state officials in favor of Biden — an essential part of validating the electoral votes when they arrived at Congress. The hope was that casting those votes and then proving that fraud had occurred would allow officials to rescind their certifications and allow Congress to count the alternate slates. Even then, it was clear that Jan. 6 would be a key moment in the process.
We come to two questions that apply to every new development in these probes. First, where might legal lines have been crossed — particularly more concrete illegalities than something like defrauding the United States? Second, who on Trump’s team was involved — and did that include Trump?
We know that Trump’s attorney Rudolph W. Giuliani was involved in the effort to cast these alternate slates of electors. We know, too, that some of the finalized documents included false information, like that the electors in Michigan cast their votes in the state capitol, which they didn’t. The second memo obtained by the Times included warnings about how carefully the votes would need to be cast, including that stipulation in Michigan’s rules. On Dec. 14 itself, that caution was apparently disregarded.
But, then, Giuliani didn’t write either of those memos; they were sent to a lawyer working for Trump in Wisconsin. It’s not clear whether Giuliani saw the memos or the extent to which Trump was cognizant of the plan. It’s not clear when Trump was aware of the plan, either. A report from Axios last year suggested that it might have been an ad from the anti-Trump group The Lincoln Project that triggered Trump’s focus on Pence for Jan. 6, but that didn’t come out until Dec. 10, after both memos were written.
This is the challenge for those investigating what occurred after the election and the culminating attack on the Capitol. There was lots of activity at the fringes, a recognition that developing a scenario in which Trump could hold power could easily find an audience with the president of the United States. The memo about using the NSA to probe fraud, for example, has not been shown to have been taken seriously within the administration — but that it exists and made it to a member of the U.S. Senate reflects the scale of the effort to generate ideas aimed at preserving Trump’s presidency. It’s akin to the PowerPoint presentation that enraptured social media late last year: It got into powerful hands, but it’s not clear that it had any significant influence.
This is the challenge, a sort of bizarro Watergate: What did the president know and when did he know it … from this galaxy of derangements aimed at keeping him in office? Where were legal boundaries crossed and who on Trump’s team, including himself, might have crossed them? Unlike in the investigation into President Richard Nixon, the issue isn’t unearthing nefarious activity. It’s figuring out which nefarious acts bear Trump’s fingerprints and how legally fraught they were.
A better, more recent analogue is the investigation into Russian interference in 2016. There’s no question that Trump welcomed the Russian effort, particularly the release of material stolen from the Democratic Party and Hillary Clinton’s senior adviser. There’s also no question that people working for Trump at various levels engaged in dubious activity that was linked to Russian actors, things that tiptoed along legal lines.
And, like then, there’s a surfeit of revelations through which we need to wade to determine what’s significant. This probably offers a useful preview of the costs Trump himself will pay. Maybe he’s implicated in witness tampering, as he was in obstruction based on special counsel Robert S. Mueller III’s investigation. Maybe something more dire will emerge.
More dire, that is, in legal terms. Again, Trump bears sole, direct responsibility for what happened in the weeks after Nov. 3. Everything flows from his decision to present a fraudulent case against Joe Biden’s victory. Without Trump’s cheerleading, none of the revelations that recently emerged would have gotten any traction, if they’d been considered in the first place.
But that culpability is not legal culpability, and the possible illegal acts of those working to advance his goals are not necessarily acts for which he bears responsibility. The United States is left in a weird position: knowing that a president tried to steal an election but unable to immediately figure out how to hold him accountable for doing so.
If you try to work backward to establish the point at which Trump’s efforts to undermine the results of the election could have been averted, you just have to keep going. It’s a reminder not only of Trump’s endless dishonesty but also of his obvious and extensive culpability. If Trump never mentioned voter fraud in 2020 and congratulated Biden on Nov. 7, it’s impossible to think that a phalanx of Oath Keepers would have marched through a furious crowd on the steps of the Capitol about two months later. The effort within the Capitol to object to electoral votes from states that Trump lost would have been minimal, if it occurred at all.
But here we get into tricky territory. Trump is entirely responsible for what happened — but how responsible is he for all of the sprawling, deranged ways it did?
Sign up for How To Read This Chart, a weekly data newsletter from Philip Bump
We are at the incremental-updates part of the investigations into the attack at the Capitol on Jan. 6, 2021, and the broader effort to steal the presidency. A new report from The Washington Post indicates that Trump allies circulated a plan that would use data from the National Security Agency in an effort to detect voter fraud, a plan functionally equivalent to figuring Trump could ask the CIA to arrest Santa Claus. The New York Times, meanwhile, obtained two memos sent in the weeks after the 2020 election in which the plan to appoint alternate slates of electors was first crafted.
Those elector memos are not particularly interesting for what they tell us about the plot. In mid-November, those paying close attention to the machinations of Trump’s objections to the election understood that this was a possible play; I wrote about it on Nov. 19 of that year. This vulnerability in the Electoral Vote Count Act was recognized by legal scholars — including some that worked for Trump.
What’s interesting about the memos, instead, is the timing. The first, the one that focuses on Jan. 6 as the drop-dead date for blocking Biden’s victory, was dated Nov. 18. It offers what at the time was an outlier theory (though one presaged by Barton Gellman’s what-could-go-wrong article published that September): the actual casting of electoral votes on Dec. 14 (much less the “safe harbor” date of Dec. 8 for objections to results) was secondary to the actual determination at the Capitol of which votes should count. Ironically, it was a manifestation of an aphorism that Trump liked to use to disparage the left: Elections aren’t determined by voters but by the vote-counters.
So, on Dec. 14, electors supporting Trump met in several of the states he lost in order to cast their votes for the incumbent president. There was no reason that those votes should have been considered legitimate, particularly since the popular-vote results in each state had been certified by state officials in favor of Biden — an essential part of validating the electoral votes when they arrived at Congress. The hope was that casting those votes and then proving that fraud had occurred would allow officials to rescind their certifications and allow Congress to count the alternate slates. Even then, it was clear that Jan. 6 would be a key moment in the process.
We come to two questions that apply to every new development in these probes. First, where might legal lines have been crossed — particularly more concrete illegalities than something like defrauding the United States? Second, who on Trump’s team was involved — and did that include Trump?
We know that Trump’s attorney Rudolph W. Giuliani was involved in the effort to cast these alternate slates of electors. We know, too, that some of the finalized documents included false information, like that the electors in Michigan cast their votes in the state capitol, which they didn’t. The second memo obtained by the Times included warnings about how carefully the votes would need to be cast, including that stipulation in Michigan’s rules. On Dec. 14 itself, that caution was apparently disregarded.
But, then, Giuliani didn’t write either of those memos; they were sent to a lawyer working for Trump in Wisconsin. It’s not clear whether Giuliani saw the memos or the extent to which Trump was cognizant of the plan. It’s not clear when Trump was aware of the plan, either. A report from Axios last year suggested that it might have been an ad from the anti-Trump group The Lincoln Project that triggered Trump’s focus on Pence for Jan. 6, but that didn’t come out until Dec. 10, after both memos were written.
This is the challenge for those investigating what occurred after the election and the culminating attack on the Capitol. There was lots of activity at the fringes, a recognition that developing a scenario in which Trump could hold power could easily find an audience with the president of the United States. The memo about using the NSA to probe fraud, for example, has not been shown to have been taken seriously within the administration — but that it exists and made it to a member of the U.S. Senate reflects the scale of the effort to generate ideas aimed at preserving Trump’s presidency. It’s akin to the PowerPoint presentation that enraptured social media late last year: It got into powerful hands, but it’s not clear that it had any significant influence.
This is the challenge, a sort of bizarro Watergate: What did the president know and when did he know it … from this galaxy of derangements aimed at keeping him in office? Where were legal boundaries crossed and who on Trump’s team, including himself, might have crossed them? Unlike in the investigation into President Richard Nixon, the issue isn’t unearthing nefarious activity. It’s figuring out which nefarious acts bear Trump’s fingerprints and how legally fraught they were.
A better, more recent analogue is the investigation into Russian interference in 2016. There’s no question that Trump welcomed the Russian effort, particularly the release of material stolen from the Democratic Party and Hillary Clinton’s senior adviser. There’s also no question that people working for Trump at various levels engaged in dubious activity that was linked to Russian actors, things that tiptoed along legal lines.
And, like then, there’s a surfeit of revelations through which we need to wade to determine what’s significant. This probably offers a useful preview of the costs Trump himself will pay. Maybe he’s implicated in witness tampering, as he was in obstruction based on special counsel Robert S. Mueller III’s investigation. Maybe something more dire will emerge.
More dire, that is, in legal terms. Again, Trump bears sole, direct responsibility for what happened in the weeks after Nov. 3. Everything flows from his decision to present a fraudulent case against Joe Biden’s victory. Without Trump’s cheerleading, none of the revelations that recently emerged would have gotten any traction, if they’d been considered in the first place.
But that culpability is not legal culpability, and the possible illegal acts of those working to advance his goals are not necessarily acts for which he bears responsibility. The United States is left in a weird position: knowing that a president tried to steal an election but unable to immediately figure out how to hold him accountable for doing so.
