Talking Points Memo has gained access to a trove of documents that lay out how Kenneth Chesebro and other Trump attorneys planned to keep the 2020 election from being certified for days, until the Supreme Court would be forced to step in to settle. As a subscriber to TPM, I got an email from Josh Kovensky telling about it, and what they plan to do with the information. Here’s the text of the email:
What would have happened if Jan. 6 never ended?
That’s what Ken Chesebro and other Trump attorneys envisioned: weeks of chaos and Congress locked in a stalemate, unable to certify the election. It was part of a gambit to apply maximum pressure on the Supreme Court or whoever else might be able to step in and declare that Donald Trump had won.
The events of December 2020 and January 2021 comprise the only real coup attempt in American history — and TPM has obtained a trove of documents that provide striking new details about it.
Today, we published a story — the first in a three-part series based on the documents — which reveals Trump’s attorneys theorizing about how a never-ending Jan. 6 could be engineered, and what it might look like. They envision hearings in Congress over the endless, mythical voter fraud claims which abounded after Trump refused to concede the 2020 election and, most of all, appeals to the Supreme Court to do in 2020 what it did in 2000: step in and resolve the count in favor of the GOP.
Chesebro appears to have live-tweeted his plans along the way, via an account I uncovered called “Badger Pundit.” He cuts a bizarre figure: a well-credentialed outsider, willing to take on the persona of influential White House attorney at exactly the moment when the Trump campaign is desperately searching for a legitimate-seeming means to postpone the inevitable: recognizing that it lost the election.
We’ll bring you more stories from the trove of emails, text messages, and legal memos over the coming days, offering you a detailed, inside view of a coup attempt which was only partially realized — one which would have proceeded not via street violence, but rather through exotic legal arguments aimed at contorting parts of the constitutional structure which had been untouched for more than a century.
It starts like this:
Donald Trump’s months-long effort to overturn his defeat in the 2020 election culminated on a single, now-infamous day: Jan. 6.
But there was an alternate scenario gamed out by Trump’s lawyers — one that would have expanded the hours of indecision caused by the Trump campaign’s efforts and stretched out the process for weeks, all the way until Jan. 20, 2021, the Constitution’s ironclad deadline for the transfer of power. If their scheme succeeded, these lawyers hoped, Joe Biden would never take office.
The details of this scheme are being revealed here for the first time. They are drawn from a trove of documents provided to Michigan prosecutors by Trump attorney Kenneth Chesebro, including thousands of pages of emails among Trump’s lawyers, some containing information that has never before been published.
The plan would have seen the Trump campaign pushing Republican lawmakers to prevent Congress from certifying Joe Biden’s win not just on Jan. 6, but for days afterwards. GOP legislators would have feigned confusion over competing slates of electors, paralyzing Congress as the Trump campaign brought increasing pressure on the Supreme Court to step in and resolve the election in their favor.
...Chesebro, an appellate lawyer, provided a legal framework in which, he contended, Trump could still win — or at least cause enough confusion and chaos that the conservative Supreme Court would have to get involved in picking the president. His plan envisioned several gambits which have now become familiar building blocks of the legal portion of the coup attempt, and the basis for criminal charges across the country: creating slates of fake electors, having Mike Pence refuse to count Biden’s electoral votes on Jan. 6, and ultimately tossing the whole issue to the high court.
TPM obtained the trove of documents after Ken Chesebro supplied emails, texts, and memos from his time with the Trump campaign to Michigan prosecutors in Attorney General Dana Nessel (D)’s office, which has been investigating the fake electors scheme. Multiple defense attorneys for already-charged fake electors told TPM that they had received the documents as part of the discovery process in that case. After Michigan prosecutors sent out the documents, CNN and the Detroit News reported on his Oval Office encounter with Trump and the fake electors scheme using records from the same trove obtained by TPM...
I don’t know how much of the above you’ll be able to see without a subscription; my apologies if you hit a paywall. This is a story that demands attention. It will be interesting to see if the rest of the media picks up on TPM’s work. At a guess, most people have no idea just how determined the Trump people were to attack the legal foundations of our presidential elections and manipulate them to keep Trump in the White House and overturn the election. Further, TPM notes that this is still only a partial glimpse — a number of messages were automatically deleted, and there were other people involved whose messages have not been disclosed.
Calling this a “Legal Coup” does not overstate what they were attempting. This was an insurrection not by mobs invading the Capitol, but by a determined legal assault, including conspirators in Congress, to set up an intervention by an activist Supreme Court. Is it surprising they were counting on a conservative court with three members appointed by Trump, and one whose wife was heavily involved in the efforts to overturn the election? (As I discussed yesterday in this post, there are people besides Trump who could and should be subject to the sanctions of the 14th Amendment.)
While it looks like many of the legal and political assumptions they were working from can best be described as delusional, it is clear that Mike Pence refusing to go along with their schemes may have been even more critical than we knew. It certainly explains why Trump was willing to let the mob hang Pence, assuming he understood just how much they were counting on Pence to sabotage confirming the votes.
This summary from the Legal Coup puts this effort by Chesebro in perspective:
In late 2022, TPM brought you The Meadows Texts: a definitive, comprehensive look at how the White House chief of staff coordinated the scheme to subvert the 2020 election. Now, with the Chesebro documents, we have a view into how one of the main legal architects of the coup advocated for his ideas — which were far more successful than anyone could have predicted, and included discussions of unrealized, theoretical possibilities that were far more radical than we knew. It’s the anatomy of a legal coup, but also something else: an attempt to twist the law in order to instigate a constitutional crisis.
UPDATE:
The next installment of this series has been published:
How Chesebro’s Most Radical Theories Entered Trump Campaign Planning for Pence and Jan. 6
Some of the most radical legal theories which animated Donald Trump’s 2020 coup attempt filtered in from a once-obscure Wisconsin attorney.
Ken Chesebro, an appellate lawyer and former acolyte of Harvard Law professor Larry Tribe, wound up as an ideas man for the Trump campaign’s last, most desperate grasps at power in late 2020 and early 2021, a trove of documents obtained by TPM shows.
He was the architect of the fake electors plan and, emails, texts, and memos reveal, played a critical role in developing the idea that Mike Pence had the power to gum up Congress on Jan. 6. That, Chesebro claimed, would start a chain reaction that could somehow lead to Trump’s re-inauguration on Jan. 20.
This article shows how some of the most radical ideas now associated with Jan. 6 filtered into the Trump campaign through three people who have been identified as unindicted co-conspirators listed in Jack Smith’s Jan. 6 indictment. They are Chesebro, law professor John Eastman, and a third figure: Boris Epshteyn, a longtime Trump surrogate, attorney, and political consultant who reportedly sent emails matching those sent by a figure described as co-conspirator 6 in the Smith indictment.
This installment gets into the division of labor between the three, some of the back and forth, and where they were going with their ideas. “It’s one tranche of evidence in a coup attempt that was much broader — it spanned months and involved hundreds of people — and was provided as Chesebro sought to avoid prosecution in Michigan. ”
They were serious about this, and they were putting a lot of resources into it.
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