Heather Cox Richardson

Yesterday, Kyle Cheney at Politico flagged a new document released last week by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. John Eastman, the lawyer informally advising Trump’s efforts to overturn the results of the 2020 election, has tried repeatedly to slow down or stop producing the documents the courts have told him he must. As part of that process, U.S. District Court Judge David Carter reviewed a number of documents. In March, he concluded that one particular memo must be released under the crime-fraud exception to attorney-client privilege, a rule that shields communications between lawyers and their clients.

That memo was perhaps “the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action,” Carter wrote. He said that the memo “knowingly violated the Electoral Count Act,” the 1887 law that establishes clear procedures for states to certify their electoral votes and assigns to the Vice President the role of opening the certified electoral votes. Carter continued that the memo “likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States.” Last week, the January 6 committee made the memo public in its ongoing legal fight with Eastman.

The memo is a several-page document from Kenneth Chesebro to Trump lawyer Rudy Giuliani, then sent to Eastman, outlining precisely how then–vice president Mike Pence could refuse to count the electors for Democrat Joe Biden. It is the detailed version of the story we now know all too well: Trump activists in the states would claim their own electors, and even though they would not be legally certified, Pence would say he couldn’t count in either slate until the election was more closely examined. Chesebro hammered hard on the idea that the Constitution gave the vice president alone the authority to determine the outcome of a presidential election. This, he wrote, was the “strict textual, originalist basis” rather than the rules set out in the Electoral Count Act.

His plan was for Pence to refuse to preside over the counting of electors, as specified in the ECA, and instead to have Senator Chuck Grassley (R-IA) or another Republican in the chair. That officer would refuse to count the ballots where there were two slates, thus insulating Trump and Pence from the election steal.

Chesebro’s goal was not necessarily to install Trump back in the White House, which he was not entirely convinced the Supreme Court would accept “even though a majority might well agree…that the Constitution is correctly construed, from an originalist perspective.” Instead, he hoped that, even “if Biden were to win in the Court, much will still have been accomplished, in riveting public attention on election abuses, and building momentum to prevent similar abuses in the future.”

There’s plenty here to unpack, but what jumps out to me is that last line. The conspirators planned to break a federal law in place since 1887 in order to convince Americans that Democrats stole a presidential election—the “big lie”—all with the larger goal of making sure that there could be no “similar abuses in the future.”

We have reached a place where Republican leaders no longer believe in the principle the nation’s Founders articulated in the Declaration of Independence, that governments derive “their just powers from the consent of the governed.” The idea that a government’s legitimacy comes from the fact its people choose it was the huge leap the Founders made to create a nation based not on monarchy but on democracy, and it is one of the two foundational principles of our government. Republicans appear to have rejected this principle and moved to the position that the election of Democrats is illegitimate and stopping such a victory—even if it is fairly won—is important enough to break long-standing laws in order to do it.

And so, even after the January 6 plan failed, they have spent a year insisting that Democrat Joe Biden couldn’t possibly have won the presidency legitimately, despite the overwhelming popular vote and winning electoral vote, the many recounts and legal challenges confirming his victory, and the admission by Trump’s own attorney general that the vote was fair and Trump lost.

Their propaganda has worked. On May 31, Reid J. Epstein and Nick Corasaniti of the New York Times noted after the recent Republican primaries that candidates, even those candidates who insisted there was voter fraud in 2020, brushed off the idea that there might have been anything fishy about the Republican primaries. Representative Mo Brooks (R-AL), who worked hard to undermine the 2020 election with false claims that it was fraudulent and who spoke at the January 6 rally at the Ellipse in body armor urging Trump supporters to march on the Capitol, told Epstein and Corasaniti that he wasn’t worried about election fraud in Republican primaries because there wasn’t any.

​​“I’m in a Republican primary, and noncitizens don’t normally vote in Republican primaries,” Mr. Brooks said. In another interview, he said that in Alabama, fraud happens “in predominantly Democrat parts of the state.” Republicans, it seems, believe that Democrats cheat but they do not, although an investigation by the Associated Press after the 2020 election found only 475 potential cases of voter fraud in the six states Republicans insisted had been stolen for Biden, most of which were not counted because they were caught, and which, collectively, would not have changed the outcome. These fraudulent votes were not identified by party, and the high-profile cases that have hit the news have involved Republicans, not Democrats.

Cleta Mitchell, the lawyer who worked with Trump to overturn the Georgia count and introduced lawyer John Eastman to the White House effort to come up with a constitutional argument for throwing out Biden’s electors, recently told a conservative radio host: “The only way they win is to cheat.”

This lie has fed the fury of those Republicans increasingly convinced that Democrats will destroy the country, and they are now, as the conspirators planned, taking steps to make sure that Democrats cannot win another election. One of their key projects is what former Trump strategist Stephen Bannon calls the “precinct strategy”: he is urging Trump’s followers to take over Republican precincts so that they can choose poll workers and have a say in who sits on the boards that oversee elections.

A recent piece by Alexandra Berzon in the New York Times explains how Cleta Mitchell has taken this idea on the road, working with right-wing organizations from the Republican National Committee down to fringe groups to create an “army” of poll workers and election monitors. “We’re going to be watching,” she told that radio host. “We’re going to take back our elections.” Mitchell claims she is simply promoting “citizen engagement,” but participants are primed to believe that elections are being stolen and to approach election officials as enemies. The RNC has already recruited nearly 12,000 poll workers and more than 5,000 poll watchers.

On June 1, Heidi Przybyla of Politico reviewed a number of videos that revealed the Republican National Committee’s plan to hamstring the Democrats in future elections by installing partisan Republicans in Democratic-majority precincts as election workers. They can then challenge Democratic voters with the help of “an army” of party lawyers on call. An RNC spokesperson said the party is simply trying to restore balance in election workers in heavily Democratic urban areas, especially Detroit. But challenging ballots has the potential not only to intimidate voters, but also to create enough disruption to sow doubt about an election and justify intervention by Republican-controlled state legislatures.

Nick Penniman, who founded the nonpartisan election watchdog group Issue One and now is its chief executive officer, told Przybyla, “This is completely unprecedented in the history of American elections that a political party would be working at this granular level to put a network together…. It looks like now the Trump forces are going directly after the legal system itself and that should concern everyone.”