Mark Joseph Stern, a staff writer at Slate who covers courts and the law, has been taking a close look at the lawyers who tried to make overturning an election seem reasonable. These arguments proliferate all over conservative media—even though the election has long been over—and are not going away. Over the past few weeks, the people behind these legal theories have gradually come into sharper focus. One key figure is a former Department of Justice insider, who, Stern says, laid out a legal scheme for overturning the election—and came frighteningly close to implementing it. Did the United States narrowly avoid a DOJ-facilitated coup? On Wednesday’s episode of What Next, I spoke with Stern about how we may have come way closer to a successful coup for Donald Trump than we ever realized—due to a government lawyer, no less. Our conversation has been edited and condensed for clarity.
Mary Harris: We should go back in time to December 2020. Joe Biden had won the election. Donald Trump refused to concede. There were active court cases all around the country looking to invalidate ballots. And while the individual details of each case varied, many rested on the same basic principle: that state legislators could flip the outcome of an election, if they chose to.
Mark Joseph Stern: At the same time, you’ve got Sidney Powell and Rudy Giuliani claiming there’s mass voter fraud. You’ve got state attorneys general in 18 different states, as well as a lot of conservative intellectuals and Republican politicians, claiming that the election was conducted in an unconstitutional way.
What does that mean?
So these folks talked about voter fraud, but they focused on this idea that only state legislatures get to decide the rules for a presidential election. And here, you had a lot of other players—governors, state courts, election boards—tweaking these rules in part because legislatures can’t foresee every possible election regulation, and sometimes state courts or secretaries of state or governors will have to step in and clarify things. But also, because of the COVID-19 crisis, you had a lot of states trying new things for the first time. And you also had a lot of states that refused to try new things, whose restrictive voting laws were going to force people to potentially wait in line indoors for a very long time and expose themselves to COVID. But all the modifications certain states made were modest.
The neatness of making this argument that somehow the election was unconstitutional is that it potentially allows state legislatures to step in and override the vote, right?
That’s exactly right. That’s the endgame here. It’s not as if these folks were flailing and screaming and accusing the election results of being illegitimate. They had a purpose, which was to throw the procedure of the election into sufficient legal doubt so state legislatures would have an excuse to reconvene, step in, essentially ignore the results of the actual vote, and appoint their states’ electors in the Electoral College to Donald Trump.
The main advocate for this approach at the Department of Justice seemed to be Jeffrey Bossert Clark, former acting head of the DOJ’s Civil Division. His scheme worked like this: persuade Republican state legislatures to nominate their own electors, and direct them to vote for Trump, instead of appointing electors based on the outcome of a democratic vote.
Clark brought this strategy up for discussion in December of 2020, after Attorney General Bill Barr had just unexpectedly resigned. The acting attorney general was a guy named Jeffrey Rosen. But when Trump found out about Clark’s idea, he seems to have thought, What if I put that guy in charge?
It looks like most Justice Department officials balked at this idea, but Jeffrey Bossert Clark was all for it. And what we’ve seen in the release of documents that the House Oversight Committee has provided, and also from other reporting, is that he eagerly wanted to have the Justice Department step in in several different ways, specifically in Georgia, to push the state legislature to call its own special session, overturn the actual results, and declare Trump the real winner.
We’ve actually seen the drafts of the letters and lawsuits that Clark was typing up furiously and trying to issue on behalf of the entire Justice Department—and that would have potentially nudged Georgia and its legislature toward overthrowing its own election results.
Can we talk about all of the evidence? It’s pretty stunning because you have contemporaneous notes of a phone call that took place between Rosen and Trump on Dec. 27 where Trump is raising Clark’s name. He’s basically like, I hear that guy’s great. Maybe I should put him in. What does that mean?
There are a number of reports from high-level Justice Department officials that are somewhat corroborated by other emails we’ve seen about various meetings that were taking place at this time. They show that at this point, Clark had decided that Rosen didn’t have the backbone to steal the election or to intervene on Trump’s behalf. So Clark apparently held unauthorized conversations behind the backs of his superiors with the president himself, and seems to have floated this idea of using the Justice Department to make these state legislatures reconvene and reassign their electoral votes. Trump seems to have really liked this idea and even said to Rosen, Why am I having to deal with you and these state suits when I could be dealing with Clark, who would do everything I say? All I need to do is fire you and make Clark the new acting attorney general, and then he’ll do whatever I want.
All of the senior lawyers at the DOJ started talking to each other about what they were going to do if that happened. What did they decide?
That they would all resign. Basically, the senior lawyers at DOJ who were not Jeffrey Bossert Clark were against almost everything we’ve talked about so far. I guess this is to their credit—I mean, they were complicit in a lot of other evil, but you’ve got these officials saying they’re drawing the line here. I think there was also an implicit assertion that they would talk about what’s going on. That seems to be the thing that kept Trump from firing Rosen and that kept Clark from setting all of his plans into motion.
I’m not convinced that there aren’t people with Clark’s point of view still inside an institution that has thousands of lawyers working for it. Is there any evidence that Attorney General Merrick Garland has set about trying to establish a consensus about what the rules of the road are for the people who work under him?
I think your intuition is right. First of all, we’ve actually seen some whistleblowers come forward and say that Clark successfully burrowed in some superpartisan political folks at the Justice Department right before he left. So he basically manipulated the rules of hiring to bring in some superpartisan Republicans into positions where they are treated like and considered to be career staff. That is kind of frightening, and it strongly suggests that this was going on more broadly across the Justice Department and we only know about a little bit of it. There’s not a ton that Garland can do about the presence of these people. The whole point of burrowing in—which Trump and his and his allies really excelled at—is that by deeming these people career appointees and “apolitical,” they get these job protections and it’s hard to sniff them out. So I don’t thin Garland is going to be able to clean house, but I do think he will be able to prevent these crazy people from putting their plans into motion. We may still have some insurrectionists at DOJ, but they now answer to different bosses. So I’m fairly confident that we won’t be seeing a lot of craziness coming out of these offices.
But what I think about is how many of these decisions hinge on individuals. The only reason Clark did not become the acting attorney general is because a number of other attorneys said they would resign en masse, and they wrote it down. It does leave you with this feeling that we’re a little bit of a breath away from someone else being promoted and making a different choice.
Yes, and that’s another reason to be terrified about future elections. Our republic itself rested on the shoulders of a few partisan Republicans who just happened to have enough of a conscience to draw the line somewhere. That might not happen in the future. You can go from Mike Pence all the way down to these attorneys at the Justice Department and see that each of them made a handful of decisions—usually at the last minute, sometimes begrudgingly—that staved off disaster. If we replay this with a slightly different set of variables, we just don’t know if that outcome will happen again.