Jurisprudence

We Now Know Trump’s Most Terrifying Election Plot Came Before Jan. 6

Video of former President Donald Trump is played during a hearing by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol.
Video of former President Donald Trump is played during a hearing by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Alex Wong/Getty Images

On this week’s Amicus Podcast Dahlia Lithwick spoke to Ryan Goodman of NYU Law School and founding co-editor-in-chief of Just Security, to try to understand the Jan. 6 select Committee’s focus on a narrow piece of the Jan. 6 election subversion: What it meant that state elections officials were being conscripted to set aside the actual vote tallies and adopt alternate slates of electors. Their conversation has been lightly edited for clarity.

Dahlia Lithwick: I want to give you tons of space to talk about what you’ve described, I think very aptly, as this sleeper issue that is shot through everywhere, but is also really hard to wrestle to the ground. And that is the election subversion part of the Jan. 6 coup plotting. That is John Eastman. That is, I’m going to just say, partly Ginni Thomas. That is this “independent state legislature doctrine.” And I want you to talk about it, because even though we talk about it a lot on the show, the idea of throwing the Presidential election to slates of fake state electors is the kind of thing that is so hard to get your head around because it’s all happening again. States are changing the mechanisms to select electors, and we’ve now got proof from the hearings of fake electors who are signing fake documents.

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Part of the reason I want you to explain it is that this is an ongoing threat to the 2024 election; that if we don’t help folks understand that all of the stuff that was happening in secret phone calls and is the same stuff that is going to happen with the full force of the law in 2024, unless we can get our heads around it. Talk about what you call these “sleeper issues” and why it is, in fact, I think for those of us who think about the rule of law, the most chilling part of Jan. 6, and possibly much more chilling in some sense than the mob itself.

Ryan Goodman: I completely agree with everything you said, and especially the framing of this as an ongoing and future threat, through to the 2024 election, primarily because it shows that it is a vast conspiracy across multiple states. This one plan, raised in the hearings was in at least in seven states. The politicos in all of those states on the Republican side – the very people who ended up being the electors – agreed to provide the votes for Trump, if he did win, to the electoral college, and they were all involved and implicated in what looks like a very likely criminal scheme. Just as one example, they were going to defy the voters in their states. And in some sense, the implicit understanding of all of this is the way in which they were doing this by just disenfranchising large sections of their state, primarily heavily populated by black Americans in urban areas.

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That was it. On that basis, they said the election that was held is invalid, and they would override the will of the people in their states, because they were trying to discount certain votes and break their oaths to do it. That’s the future threat as well. And as you also laid it out, that occurred in 2020 in a kind of bizarre, ad hoc way, organizing behind the scenes. But Republican legislatures in some of these states are now laying the groundwork to legalize these ways of trying to snatch back the vote from the public and create these alternative slates of electors, despite what Americans, who they choose to be their president. So it’s just so chilling. It’s another reason that I do think it’s good to surface this part of the seven pronged effort to overturn the election. I just wanted to highlight it.

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So this is the plan in which in seven different states, even though Trump had lost, the Trump campaign, with Rudy Giuliani as the puppet master, got these people to create these fake documents that said they were the “duly authorized” electors and have them sent to the national archives to say that the vote should go for Trump in their state.

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Two things that I will just spotlight: One, we basically know the Justice Department is criminally investigating the scheme. That’s a big deal. That means they have the predicate to open those investigations. And CNN reported a direct quote from the subpoenas that had been sent to the Georgia fake electors. It asked them to cooperate and tell them about all the communications with any agents of Donald J. Trump. Not Donald J. Trump campaign, Donald J. Trump. So they’re starting to draw a direct line to Trump and Giuliani’s fingerprints are all over this. So when we talk about what is Merrick Garland investigating, I think that’s just a piece of the puzzle. There’s six other pieces he needs to be investigating, but that’s a big deal.

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And then the second is just to flag something for people that even close observers have missed. Mary McCord, who’s a professor at Georgetown, and a former very senior official at the justice department has filed from her center at Georgetown, a civil complaint in Wisconsin against the fake electors there. And the civil complaint includes, as its predicate, three criminal offenses, three federal criminal offenses. That’s important. I mean, she’s so well regarded. The fact that she thinks that those federal crimes attach to the scheme, is a sign of where these things might be going.

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