By Eric Vandenbroeck and co-workers

The game of politics is not a branch of the Sunday school business.” Such was the characterization of “Blind Boss” Buckley, the head of the Democratic political machine in San Francisco at the dawn of the twentieth century. American politics have long had the reputation of being ruthless, but until now, they had never involved a conspiracy directed from the White House to overturn the results of a presidential election. As the two latest indictments of former President Donald Trump illustrate, something qualitatively different happened in the aftermath of his 2020 electoral loss.

Trump now faces four criminal indictments encompassing 91 criminal charges across four jurisdictions. But it is the two most recent indictments that address his attempts to steal the 2020 election and thereby attack the heart of American democracy. On August 1, a federal grand jury indicted Trump on four charges, including conspiracy to defraud the United States and conspiracy to obstruct an official proceeding. That 45-page indictment makes for chilling reading as it details how Trump and his alleged co-conspirators tried to overturn the election results in the months leading up to the January 6, 2021, assault on the U.S. Capitol. Part of the conspiracy documented in the indictment included a pressure campaign on state election officials to change the results in their states. Trump’s efforts in Georgia are now the basis of a new indictment from a grand jury in Atlanta, where Trump faces 13 felony charges. That sweeping indictment also charges 18 co-defendants, including Rudolph Giuliani, the former New York City mayor who joined Trump’s legal team, and Mark Meadows, a former Republican congressman who served as Trump’s White House chief of staff.

World history overflows with examples of rulers who refused to relinquish power when they lost the mandate of the people. Many Americans and foreign admirers of the United States, however, assumed that the country was somehow immune from a problem that many associated instead with the developing world. This belief stemmed from a long-standing faith in “American exceptionalism,” the idea that the U.S. political system and American values are unique and a model for everyone else to follow. But after his 2020 election loss, Trump chose to test the democratic norm of a peaceful transition. Now, these indictments and the trials that will likely follow will test presidential accountability as nothing has before.

 

 

History Has Its Eyes On You

The 2020 election was not the first fraught presidential transition in the United States. In March 1861, with seven states already having seceded, the outgoing administration of President James Buchanan ordered the U.S. military to patrol the nation’s capital to prevent secessionists from killing Abraham Lincoln, then the president-elect. But perhaps the most controversial transition occurred 15 years later, this time the product of the uneasy peace that had followed the Civil War. The 1876 election pitted Samuel Tilden, a Democrat, against the Republican Rutherford B. Hayes. Both Democrats and Republicans interfered in the vote count. Democratic elites in Florida, Louisiana, and South Carolina used intimidation to prevent newly enfranchised Black voters from casting their ballots. In response to the efforts of white supremacists in these states, all of which were still under U.S. Army occupation, Republican state officials threw out legitimate Democratic votes. In the midst of this turmoil, four states sent rival slates of electors to the U.S. Congress. Paralyzed, Congress passed the 1877 Electoral Commission Act, which established a commission to sort things out. The actual victor of the election remained in dispute until just days before the inauguration, when allies of Hayes promised that in return for accepting a Republican in the White House, Democrats would be compensated with the withdrawal of U.S. troops from the South, effectively leaving formerly enslaved people at the mercy of their former enslavers for another 90 years.

After nearly 125 years of relatively smooth transfers of power came the 2000 election, which hung in the balance for weeks because of the close count in Florida. The suspense lasted until a month before the swearing-in of President George W. Bush. Although the Supreme Court’s decision to intervene to prevent the recounts in Florida from continuing was narrowly argued and widely criticized, the loser, Vice President Al Gore, who had won the national popular vote, accepted the outcome, and his supporters melted away without incident.

A number of American presidents have refused to attend the swearing-in of their successors. John Adams, John Quincy Adams, and Andrew Johnson all declined to show up, mainly because these one-term presidents personally disliked the men who had defeated them. But until Trump, no president in the United States’ history had attempted to prevent a transfer of power after the votes were counted.

For many, this long history seemed to set the United States apart from other countries. The United States was the first country in the modern era to have an elected head of state, although that leader was to be chosen by a college of electors from each state not by the people directly. For roughly the first 40 years of the American presidency, most state legislatures selected their presidential electors, but after 1877 it would become common practice to choose them exclusively on the basis of the popular vote for president in each state. Today, all 50 states and the District of Columbia rely on the popular vote to certify presidential electors, with it being winner takes all in every state but Maine and Nebraska (where the electors are determined by the vote in each congressional district), turning the eighteenth-century electoral college into a ceremonial relic. After the 2020 election, however, some desperate Americans saw this fusty institution as an opportunity not only to make mischief but also to subvert democracy.

 

 

“We Don’t Have The Evidence”

The election-related indictment brought by the U.S. Department of Justice in early August marks the first time the federal government has charged a former president for acts committed while he was president. But the real significance of the case and of the new indictment in Georgia lies in the nature of the alleged crimes. The charges against Trump raise questions not only about the line between the politically ruthless and the criminal in a democracy but also about the very ability of the judiciary, along with state and local officials, to enforce the will of the electorate against the immense power of the American presidency.

The federal indictment tells the big-picture story of the Trump team’s multipronged approach to overturn the election results. Just days after the election, Trump’s campaign team explained to the president that if he lost Arizona, Georgia, or Wisconsin, whose votes had still not been certified, he would lose the election. A week later, on November 13, Trump’s lawyers conceded in court that he had lost the popular vote in Arizona. Members of Trump’s campaign understood that the president had not been reelected. But instead of accepting the hard truth of his loss, Trump chose to start colluding with Giuliani and others to fight back.   

The first point of attack was Arizona, where Trump and Giuliani are said to have called the Republican speaker of the Arizona House of Representatives, Russell “Rusty” Bowers, to insist that the Arizona government reverse its determination that Biden had won, based on allegations of fraud. When Bowers subsequently asked Giuliani to share these apparent facts, Giuliani replied, “We don’t have the evidence, but we have lots of theories.” When Arizona attempted to shut the door on them, the conspirators focused on Michigan, Pennsylvania, and Georgia, prosecutors say, with Trump privately pressuring some key Republican lawmakers in those states while publicly asserting the existence of election fraud that he, like Giuliani, knew did not exist.

In Georgia, Trump didn’t merely pressure state officials; he threatened at least one of them, and in a Nixonian twist, was caught doing so on tape. On December 8, 2020, Trump called Chris Carr, Georgia’s attorney general, to get him to sign on to a lawsuit alleging fraud in multiple states with the goal of overturning the election through the U.S. Supreme Court. Explaining that there was no legitimate evidence of fraud in the Georgia count, Carr turned the president down. On January 2, Trump made his notorious call to Brad Raffensperger, Georgia’s secretary of state, asking him to alter Georgia’s popular vote figures. When Raffensperger refused, Trump threatened him, saying that by not reporting the supposed fraud, he was violating the law. “You can’t let that happen,” Trump said. “That’s a big risk to you and to Ryan [Germany], your lawyer.” This call, which was recorded, would become the basis for Georgia’s charging both Trump and Meadows with unlawfully soliciting Raffensperger “to engage in conduct constituting the felony offense of Violation of Oath by Public Officer.”

With the effort to badger and threaten state officials failing, the conspiracy opened a new front. In early December, Trump and his closest allies unveiled an approach that mirrored a hazy understanding of how Hayes had ultimately won the contested election of 1876. Trump and Giuliani found allies in Congress, including the Republican Senators Ted Cruz and Tommy Tuberville, to help invent and promote a fake controversy about the legitimacy of Biden’s electors in seven states: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin. Individuals were recruited to pose as electors in those states even though those states had already selected legitimate electors to the electoral college, based on the election results certified by each individual governor. The fake Trump electors were instructed to vote for Trump on December 14, the day that all the legitimate electors were to cast their votes for president. As a result, there would be two sets of electoral votes in those seven states. The ultimate goal for Trump, his team, and their Republican allies in Congress was to create a situation in which Congress would be unable to decide which slates of electors were valid. This crisis would lead to Congress’s having to pause its certification of the election on January 6, similar to what happened after the election of 1876. Congress could then create an election commission to find a way out of the mess that would somehow lead to Trump staying in office. The difference was that in 1876, there had been a real impasse. Of course, any electoral impasse in 2021 would be fake news, the product of coordinated intrigue. An email message from Kenneth Chesebro, a lawyer who allegedly helped develop the fake electors scheme, to an organizer of the fake electors in Nevada, spells this out: “The purpose of having the electoral votes sent in to Congress is to provide the opportunity to debate the election irregularities in Congress, and to keep alive the possibility that the votes could be flipped to Trump.”

Some of the fake electors sensed that something was wrong. The Trump supporters chosen in Pennsylvania to sign fake certifications as electors requested assurances in a conference call with Giuliani and other co-conspirators on December 12 that their votes would be submitted to Congress only if a court found that fraud had indeed occurred in their state. Despite giving these assurances to those electors, the conspirators had no intention of waiting for a court to act in their favor. The Trump campaign would lose every one of its lawsuits. Trump pushed forward anyway, including with the effort to advance fake electoral votes from Pennsylvania. Meanwhile, the president’s senior campaign advisers refused to support the plan. The federal indictment quotes an unnamed Trump deputy campaign manager as terming it “a crazy scheme” and another unnamed senior adviser characterizing it as “certifying illegal votes.” Lacking support from campaign professionals, Trump relied on outside conspirators to make his plan happen.

For the elector scheme to work, the conspiracy still needed some patina of legitimacy for Trump’s charges of fraud. Since no U.S. court would certify that fraud had occurred, the conspirators looked for another source of legitimacy. After the fake electors cast their fake ballots on December 14, Trump tried to get his own Justice Department to find that fraud had occurred in the presidential contests in these seven states. But senior leaders at the Justice Department would not sign a determination that electoral fraud had occurred. “Just say that the election was corrupt and leave the rest to me and the Republican congressmen,” Trump is quoted as repeatedly imploring Jeffrey Rosen, the acting U.S. attorney general. When Rosen and his deputy wouldn’t budge, Trump threatened both men with dismissal. Trump told his White House team that Rosen would be replaced. And Rosen would likely have been fired and the determination signed, but for the fact that Trump was warned that there would be a mass resignation at the Justice Department if Trump forced Rosen out.

Facing a mutiny at the Department of Justice, Trump focused on Pence. The idea was for Pence to throw out Biden electors from the seven states and accept the fake electors or at least kick the issue back to the states. At the end of December, Trump falsely told Pence, who had not been involved in the meetings with Rosen, that the Justice Department was “finding major infractions,” the indictment states. On January 1, frustrated that Pence was reluctant to take part in the fake electors conspiracy, Trump exploded at him, “You’re too honest.” With Pence refusing to comply, Trump had his campaign issue a public statement on the night of January 5 designed to intimidate him: “The Vice President and I are in total agreement that the Vice President has the power to act.”

On the morning of January 6, Trump still hoped Pence’s opposition to committing fraud would collapse under pressure. But when the president’s representatives tried to deliver the fake electoral ballots to Pence, the vice president’s team refused to accept them. Just before heading out to give his fateful speech at the Ellipse near the White House, Trump called Pence again, trying to get him to change his mind. Witnesses to the call remember Trump calling Pence a “wimp” and telling him he wasn’t “tough enough.” Later that morning, Trump told the crowd gathered at the Ellipse, “If Mike Pence does the right thing, we win the election.” In the afternoon, with rioters breaking into the Capitol, Trump tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.”

Despite the insurrection that unfolded for all to see—an attack that resulted in at least seven deaths, many injuries, and damage to the Capitol—Trump and Giuliani continued their efforts to prevent the count through the end of that day. With Pence no longer an option, they tried to call Republican senators friendly to Trump. The calls were not returned, and the conspiracy collapsed.

 

This Time Is Different

What Trump and his co-conspirators undertook was nothing less than a form of political warfare, traditionally associated with covert operations. Since World War II, American presidents have relied on these tactics to manipulate some democratic contests abroad, as Harry Truman did in Italy in 1948, for example, and John F. Kennedy and Lyndon Johnson did in advance of 1964 elections in British Guiana and Chile.

For the first time, however, a U.S. president tried to overturn an election at home. In attempting to manipulate the outcome of the 2020 election, Trump went much further than even Richard Nixon, arguably the most paranoid U.S. president, whose allies worked to reverse what they saw as a stolen election in 1960. To prove that the Kennedy campaign had engaged in sufficient fraud to win the close election, allies of Nixon, as documented by the historian David Greenberg, questioned the results in 11 states. The focus of Nixon’s “recount committee” was Chicago’s Cook County, the stronghold of Mayor Richard Daley, a Democrat, who was thought to have thrown the state’s 27 electoral votes to Kennedy. The recount in Chicago didn’t find any fraud, although it did turn up 943 additional votes for Nixon. These votes were not enough, however, to overcome Kennedy’s 4,500-vote lead. Unwilling to give up, Nixon’s allies then petitioned Illinois’s Republican-dominated Board of Elections to accept a rival slate of pro-Nixon electors. When the board refused to certify those electors, the effort stopped. If anyone thought to create a parallel slate of false electors from Illinois, Nixon and his close advisers rejected the idea.

Trump’s successive schemes to stay in office did not fail because the president lost heart or changed his mind. They failed because federal officials and state leaders outside the conspiracy stopped them. Tragically, the one thing they could not stop was the violence on January 6. When historians review the extraordinary events of 2020 and 2021, they will note the public-spiritedness of Republican lawmakers in many of the states targeted by the president and his alleged co-conspirators. Officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin not only complicated the president’s plans but also proved fatal to them.

The two indictments this month, one federal and one state, have built on the courage of individuals such as Bowers, Carr, Raffensperger, and Georgia’s governor, Brian Kemp, to shore up the surprisingly fragile pillars of American democracy. Americans as well as the world will be watching what comes next—the pleas, the evidence, the defense, the verdicts—to see whether these judicial actions will inspire more public-spiritedness and less conspiracy should 2024 be, in any way, a close election.

 

 

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