The truth is that Jan. 6 was never intended to hold even the slightest bit of importance. It’s not even the day on which the electoral votes are officially counted. It’s intended to be purely ceremonial.
But Republicans have a habit of taking apart society by looking for ways that the rules can be subverted (see: McConnell, Mitch). That means that any situation in which “tradition” and “the public good” have smoothed over past disruptions, as they did when Al Gore presided over the session in 2000, are quickly identified as soft targets in the effort to break the system.
That Jan. 6 was being mentioned when Trump was pressuring election officials, secretaries of state, and state legislators gives the impression that the date had some great significance, but that was only late in the game. The real significance came only because that was the weak point on which Trump’s team had agreed to pounce when other plans failed.
It wasn’t until Dec. 19 that Trump sent his tweet promising a “Big protest in D.C. on January 6th.” That was the tweet that finished with “Be there, will be wild!” The reason for that tweet, and for setting the whole plot in motion that would make Jan. 6 a day that merited more than thirty seconds’ mention at the end of a newscast, was simple: By mid-January, Trump had exhausted every possible avenue for legally challenging the election.
Everywhere that could be forced into a recount had made no difference. Sixty-plus trips to state and federal courts had yielded nothing. Even the previous plot—back heavily by disgraced Gen. Michael Flynn—to get a slate of false electors to Washington, D.C., in time for the actual enumeration and certification of the vote on Dec. 14, had led to nothing.
By mid-December, Trump’s team had tried everything reasonable, and most of the unreasonable. What was left was something that was out there in Q-cuckoo land; something that, when it was discussed, came up from the same sources that thought the direct election of senators was unconstitutional and that the last real president had been Ulysses S. Grant.
That something was called “the Pence card.”
In what should be a hilarious example of just how messed up this whole idea really was, the original version of the Pence card claimed that a provision of the U.S. legal code explaining what to do if certificates of electors weren’t submitted by Dec. 14 allowed Pence to stub in Trump electors to fill the gap. As Snopes pointed out, the code never said what Trump supporters claimed.
This provision does not give the vice president the authority to reject votes certified by the states. It only says that the vice president shall attempt to expedite the process if states fail to deliver their certification of votes on time.
None of that mattered, because it wasn’t until after the Dec. 14 date had passed that Trump’s team began pushing #ThePenceCard on right-wing social media.
That was when attorney John Eastman fished the Pence card out of the “sovereign citizen” toilet, dressed it up, and wrote a pair of memos that were intended to give this turdball a patina of respectability. They also presented Trump with a step-by-step for translating it into something he could use to plant a knife solidly between lady liberty’s shoulder blades.
Almost nine months after the assault on the Capitol, the first of the memos created for Trump by Eastman was revealed. The name of that privileged and confidential memo was simply this: “January 6 scenario.”
What Eastman laid out was a six-point plan for what would happen that day:
- Pence would launch the ceremony and start opening the ballots.
- When Pence got to Arizona, he would declare that there were “multiple slates of electors,” then announce that he was skipping over AZ until the remaining states were done.
- When he did reach the end, Pence would declare that “because of the ongoing disputes” the votes in seven states couldn’t be counted. Then, based on a “reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe” Pence would declare Trump the winner with 232 votes.
- Eastman predicted there would be “howls, of course, from the Democrats” who would foolishly insist that it takes 270 electoral votes to win (Democrats might also have complained that you can’t arbitrarily disenfranchise voters in seven states, but Eastman doesn’t mention this), Pence would then declare that neither candidate had 270 votes and kick the election to the House, where each state would get one vote and Republicans have a one-state advantage.
- Assuming someone insisted on following the actual law as defined by the Election Count Act, Eastman had another fallback. Someone—Ted Cruz and Rand Paul were named—could filibuster that request, blocking certification of the count.
- “The main thing here is that Pence should do this without asking for permission either from a vote of the joint session or from the Court.”
What Eastman was spelling out here was that the reasons didn’t matter. They could get Pence to call the winner. Or they could throw the election to the House. Or they could just have Cruz or Paul filibuster the procedures. It didn’t matter. It also didn’t matter that none of it would hold up in court. Because piss on the courts.
Let Democrats beat their chest about the law and file all the court cases they want, argued Eastman. In the meantime, Republicans would simply act.
Eastman had a one-page summary of a constitutional argument that they could throw out there, and which they expected the media to dutifully both-sides if necessary. But that only mattered if they were still allowing the media to do any reporting after Jan. 6. Which was not at all a sure thing.
The remainder of Trump’s Jan. 6 planning wasn’t just about pressuring Mike Pence into going along with steps 1 through 3, and convincing all Republicans that they had better stay loyal to Trump on steps 4 and 5. The assault on the Capitol was intended to be frightening. It was intended to generate chaos. It was intended to justify Trump taking additional steps.
After all, something had to be done … about Antifa and Black Lives Matter.
Jan. 6 was supposed to be a nothing day. One of those dates on the Congressional calendar when reporters can sleep in and aides catch their breath before starting the next campaign season. That it ever became the center of an insurrection came because Trump was out of every even halfway plausible option. So he turned to Eastman for something implausible, then backed it up with personally delivered threats and carefully arranged violence to give the impression there was a there there.
And there was: a whole lot of crimes.