A DOJ Lawyer’s Attempt to Overthrow the Election
S1: Slate’s Mark Joseph Stern usually covers the Supreme Court, but over the summer, with the justices on vacation, he’s been doing something a little different.
S2: I spend a lot of time wading through the fever swamps of conservative legal Twitter.
S1: Mark is using this time to figure out how people he profoundly disagrees with. Look back on the election of twenty twenty. You may be trying to forget that election. Forget that some people still dispute its results. But Mark’s fascinated, especially by the legal alchemists who tried to make overturning an election seem reasonable.
S2: I read a lot of tweets by the folks who try to make this happen and the folks who cheered them on from the sidelines and others who are just insane, people who happen to have a JD and are members of the bar and can spew forth this effluvium of anti-Democratic Argall Bahcall and give us a little bit of kind of like a treasure map illustrating where they’re going next.
S1: Are these people feeling cowed right now?
S2: No, not at all. Oh, my God, these people are so empowered, I feel like hell, yeah, we did better than we ever thought last time. And next time around is going to roll, baby. I mean, there is not a lot of fear on the conservative right.
S1: Mark has been wading through these legal arguments on conservative Twitter because even though the election is over, he thinks these arguments are not going away. Over the last few weeks, the people behind these conservative legal theories have gradually come into sharper focus. Lawyers deep in the Department of Justice, attorneys general in more than a dozen states.
S2: And if they had been a little smarter and a little bit better at doing that, I think they could have done some more damage.
S1: You’re saying this was a learning experience?
S2: Yes, absolutely.
S1: You realize you’re giving off real mom from Terminator to five, right?
S2: Look, I do realize
S1: I’m preparing my son for the apocalypse.
S2: I don’t take that as an insult or a bad thing at all, because I ask you, I guess, looking back at 20, 20, does that seem like a kind of one and done thing? Do you feel like, oh, everyone who participated in this, everyone who facilitated this, all of the nanny state attorneys general and conservative lawyers who tried to make this happen, learned their lesson or exited politics. And now we’re home free for the rest of our lives.
S1: Today on the show, the story of one of these government attorneys who laid out a legal scheme for overturning the election and came pretty close to implementing it. I’m Mary Harris. You’re listening to what next? Stick around. Before we get into the story of how one Department of Justice lawyer almost succeeded in keeping President Trump in office, it helps to go back in time to December 20 20. Joe Biden had won the election, but Donald Trump was refusing to concede there were active court cases all around the country looking to invalidate ballots. And the thing you need to remember is that while the individual details of every case varied, many rested on the same basic principle that state legislators could flip the outcome of an election if they chose to.
S2: At the same time that you’ve got the kooks in the city, Powells and the Rudy Giuliani is dripping with mascara, 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. So these these folks also, you know, talk the talk 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 and so on, tweaking these rules in part because that always happens because the legislature can’t foresee every possible election regulation, 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-19. So you had these other players, like, again, governor, secretaries of state, state courts, stepping in and making these modifications. And they were very modest modifications, like it’s not as if the state supreme courts across the country stepped in and said everyone can vote regardless of a felony conviction or 12 year olds can now vote or people can vote by email.
S1: They were just saying more people can mail in votes and maybe we have more time.
S2: That’s almost always will happen. Right? They would say, OK, well, if you mail in your ballot and it’s postmarked by Election Day, but it’s not received until the day after or the day after that, then it can still be counted.
S1: But 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?
S2: That’s exactly right. So so that’s the end game here. It’s not as if these folks were just sort of 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 that the state legislature would have an excuse to reconvene and step in and essentially ignore the results of the actual vote and appoint their state’s electors in the Electoral College to Donald Trump.
S1: And the main advocate for this approach at the Department of Justice seemed to be Jeffrey Bossert Clark, right?
S2: Yes, that is correct.
S1: Jeffrey Bossert Clark is our antagonist here, a government lawyer, the acting head of the civil division of the Department of Justice. And his scheme worked like this convince Republican state legislatures to nominate their own electors and direct them to vote for Trump instead of appointing them based on the outcome of a Democratic vote.
S2: 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 has provided and also from other reporting is that he really eagerly wanted to have the Justice Department step in in several different ways, specifically in Georgia, to push the Georgia state legislature to call its own special session, overturn the actual results and declare Trump the real winner.
S1: Jeffrey Bossert Clark brought this strategy up for discussion in December 20 20. Again, helpful to remember exactly what else is happening in this moment. Attorney General Bill Barr had just unexpectedly resigned. That meant there was a power vacuum at the Department of Justice. The acting AG was a guy named Jeffrey Rosen. But when President Trump found out about Jeffrey Bossert Clark Cydia, he seems to have thought, what have I put that guy in charge? We know all of this because of some reporting in The New York Times and because in the past few weeks, there’s been a steady drip of documents flowing from a. House Oversight Committee investigating the twenty twenty election,
S2: we’ve actually seen the drafts of the letters and lawsuits that Jeffrey Bossert Clark was typing up furiously, that he was trying to issue on behalf of the entire Justice Department that would have potentially nudged Georgia and its legislature toward overthrowing its own election results.
S1: Can we talk about all of the evidence that this was going on? Because to me, I look at it and it’s pretty stunning because you have, for instance, contemporaneous notes of a phone call that took place between the brand new acting attorney general, Jeffrey Rosen and President Trump on December 27th, right after he’s sort of taken the helm at the Justice Department. And Trump is raising Jeffrey Clark’s name. He’s basically like, I hear that guy’s great. Maybe I should put him in. Yeah.
S2: What does that mean? Well, so 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, that show that at this point, Clarke had decided that Jeffrey Rosen, the acting attorney general, didn’t have the backbone to steal the election, didn’t have the backbone to intervene on Trump’s behalf. And so apparently, Jeffrey Clark 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. And Trump seems to have really liked this idea. And and even said to Jeffrey Rosen, the acting attorney general, like, why am I having to deal with you? Why am I having to deal with these state suits when I could be dealing with Geoff Clark, who would do everything I say? All I need to do is fire you, Jeff Rosen, and make Geoff Clark the new acting attorney general, and then he’ll do whatever I want.
S1: I want to go back to the timeline, because I think it’s important to point out that a lot of what we’re talking about here, it was in a very discreet period of time. It’s like between Christmas and January 6th. Right. And, you know, all these things were sort of going on sub rosa. And then it becomes clear that Jeffrey Bossert Clark really wants to hit the gas and it’s going to Trump and is saying, hey, make me dog and we’re going to make all this happen. And all of the senior lawyers at the DOJ start talking to each other about what are we going to do if that happens?
S2: 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. And I guess this is to their credit, I mean, they were complicit in a lot of other evil. But you’ve got these justice officials saying we’re drawing the line here. And if this happens, if Clarke replaces Rosen, if the Justice Department steps in and tries to overturn this election, we will all resign. And I think there’s an implicit assertion that they would also say what’s going on, that they would talk. And that seems to be the thing that kept Trump from firing Rosen, that kept Clarke from setting all of his plans into motion.
S1: When we come back, if it’s true that the US narrowly avoided a DOJ facilitated coup. Is anyone going to be punished? You might be wondering, after all this plotting to overturn the election, what happened with Jeffrey Bossert Clark Mark Joseph Stern says the answer to that is distressingly predictable. He’s fine. He’s now the chief of litigation and director of strategy at the new Civil Liberties Alliance. That is an organization funded by the conservative Koch Foundation dedicated to fighting abuses by the administrative state. You’ve made this point that basically there’s like a safety net for folks like Jeffrey Bossert Clark, folks who were in the Trump administration, and that that safety net was apparent even before they were working for the government. Like there’s kind of a usual suspects aspect to it. Like you point out that Jeffrey Bossert Clark worked at George Mason University, which is known for having a lot of conservative scholars there, that he was part of the Federalist Society, which is, of course, known for supporting conservative judges, especially making sure that they are appointed, that he worked for certain judges that are really influential, all of these places known for their hard right bent. What do you what do you do when there’s this tremendous infrastructure that is there to support folks that you might want to hold accountable?
S2: You quit your job as a lawyer and move to a farm in the Midwest. I mean, I don’t know that there’s like a real solution to this problem. I think you’ve described it really well. There’s this massive infrastructure to support conservative attorneys no matter what they do, even if they try to plot a coup. I don’t think he’s faced any consequences. And I think that there is a really strong push in the conservative legal movement to insulate all conservative lawyers from consequences. And I’ll just give you an example. On August 10th, the Federalist Society held an event called Does Lawyer Shaming Undermine the Rule of Law, in which the lead speaker essentially argues that shaming an attorney for their legal work in any way, shape or form undermines the rule of law and threatens all of our rights and liberties, which is so
S1: basically you can’t criticize us.
S2: You can’t criticize us. Yeah, it’s a total shield criticizing any lawyer. And it makes the claim that defending Exxon Mobil’s destruction of the planet is the exact same thing as defending and indigent criminal suspects who you’ve been assigned to by a court that there’s no legal or moral or ethical distinction between voluntarily working to destroy the country or the earth and being a public defender assigned to defend an unpopular and indigent clients. And I just think that’s nonsense. I’ve always thought that’s nonsense. But you can see how it provides the scaffolding for the idea that folks like Jeffrey Bossert Clark should never be spoken. Eliav should never be criticized because it’s just a slippery slope from there to a lawless anarchy where lawyers are driven out of town for for daring to do something unpopular.
S1: Well, the defense of Jeffrey Bossert Clark, there are a couple that have seen people who said, oh, wow, this is a major change. He was a normal conservative guy doing normal conservative things. And then he took this hard turn. And I just don’t know what happened to this guy. So that’s one argument that I’ve seen. And then I’ve also seen people say this is character assassination. Like you’re you’re holding up this one guy and trying to hold him responsible. But, you know, why are we tearing this one person down? And so I wonder what you would say to both of those arguments.
S2: So to the first argument that he was just a normal guy and it’s so shocking that he did this, he’ll turn I would say you have the naiveté of a two day old infant. If you have been paying any attention to the conservative legal movement under Trump, you should know that there is a chief objective, which is to empower Trump, embolden him and keep him in office at all costs. That is why 18 18 out of 50 state attorneys general tried to overturn the election. That is why Clark tried to plot a coup and then overturn Georgia’s results, because there is a higher principle among a large faction of the conservative legal movement than just conservative law, and that is protecting Trump and Trump ism. And if you couldn’t see that by January twenty twenty one, I don’t think you ever will. And that sort of leads me to my response to the second defense, which is there’s something to that. There were a lot of respectable people involved in the attempt to overturn 20, 20, including those 18 state attorneys general. Most of them are still in office today. A majority of them are asking the Supreme Court to overturn Roe v. Wade right now. They were totally comfortable going from asking the Supreme Court to overturn the 20 20 election to asking the Supreme Court to overturn Roe v. Wade. They probably won’t face consequences of the ballot box. They certainly won’t face consequences from the state bar, which is afraid to take them on. They’re never going to see any ramifications from their misconduct and their malfeasance. But all of this ends up falling on Clark because I guess he was the most brazen. He deserves it, but they deserve it, too. And I think that it’s almost an easy way out for some conservatives who can say, well, Clark was crazy, but he doesn’t stand for the entire movement or the entire conservative legal community.
S1: Yeah, I mean, the pushback I’ve heard from some conservatives looking at the coverage of Jeffrey Bossert Clark and sort of rehashing what happened at the DOJ in the winter of twenty, twenty, twenty twenty one. Is that. This didn’t happen, like, why are we so concerned about a coup that didn’t take place, Trump didn’t steal the election. Biden is president. No harm, no foul.
S2: So I guess there’s one more piece of this that that we haven’t talked about that that is responsive to this question, which is Mike Pence. Right. We know that January six riders shouted Hang Mike Pence. We know that they stormed the Capitol because they wanted to stop Mike Pence from doing what he was doing. And what was that? He was just reading out basically which electors would be assigned to which candidate the results in each state and then Congress was going to vote on it. And one thing that Jeffrey Bossert Clark really wanted Mike Pence to do was to refuse to acknowledge the results from states like Georgia. And according to Clark and his allies, Mike Pence should have said, hey, I know that the results in front of me say that that Joe Biden won Georgia. But in my independent determination, based on irregularities and investigations and the state legislature’s actions, I am determining that Donald Trump actually won Georgia. And I guess that’s not going to happen in twenty twenty four because Kamala Harris is presumably still going to be vice president. But it could definitely happen if Republicans win in twenty twenty four and then run again in twenty, twenty eight. There has now been a precedent where a considerable number of conservative lawyers argue that the vice president can do this and we saw them try to lay the groundwork for it for many weeks. They ended up failing, but they came pretty close. I mean, Mike Pence only announced that he wasn’t going to do this minutes before he walked onto the floor of Congress. This was sort of lost in the excitement and terror of January 6th. But he released this letter right before going out there to say, oh, by the way, I’m not going to throw the election to Donald Trump. That’s pretty close in my estimation. And it suggests that if these guys had pulled some different levers, they might have been able to get there. They know which levers to pull in the future and they, again, are laying the groundwork for it as we speak.
S1: Jeffrey Bossert Clark seems to have left the DOJ gotten another job, moved on, but. I’m not convinced that there aren’t people with his POV still inside the government, still inside an institution that has thousands of lawyers working for it. So is there any evidence that Merrick Garland, the new attorney general, has set about trying to establish a consensus about what the rules of the road are for his attorneys, for, you know, the people who work under him?
S2: Is that going on? So, first of all, I think your your intuition is dead right. And we’ve actually seen some whistleblowers come forward and say that Jeffrey Bossert Clark successfully burrowed in some super partisan political folks at the Justice Department right before he left. So he basically manipulated the rules of hiring to bring in some super partisan Republicans into positions where they are treated like and considered to be career staff. And that is 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 Merrick 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 think Begala is going to be able to clean house, but I do think that he will be able to prevent these crazy people from putting their plans into motion. We may still have some insurrectionist at DOJ, but they now answer to different bosses. And so I’m fairly confident that we won’t be seeing a lot of craziness coming out of these offices, because at the end of the day, Garland can prevent them from unleashing their crazy or flying their freak flag.
S1: But what I think comes through reading your reporting and others is how much some of these decisions hinge on the individual takes. Of like single people, you know, the only reason why Bossert Clark did not become the acting ag is because a number of other attorneys said we will all resign en masse. Right. And they wrote it down so that we know it, which also seems quite intentional to me. And so it does leave you with this feeling that we’re a little bit of a breath away from someone being promoted and making a different choice.
S2: 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 happen to have enough of a conscience to draw the line somewhere that might not happen in the future. And you can go for Mike Pence all the way down to these people 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. And we just don’t know if we replay this with a slightly different set of variables, if that outcome will happen again.
S1: Mark Joseph Stern, thank you so much for joining me.
S2: Always a pleasure. Thanks, Mary.
S1: Mergers of Stern covers courts and the law for Slate. And that’s our show. What Next is produced by Daniel Hewitt, Davis Land, Marie Wilson, Carmel Dilshad and Alan Schwarz. We are led by Allison Benedikt and Alicia Montgomery. And I’m Mary Harris. You can track me down on Twitter. That’s where I was reacting live to Governor Cuomo, his resignation yesterday. I was supposed to be in a meeting, all right, catch you back here tomorrow.