Tomorrow should be a big day for those of us following the select committee's investigation of Trump's attempted coup. After the dull, plodding presentation by third rate committee member, Pete Aguilar, the show is getting rolling with someone who knows how to present evidence in a compelling way, Harvard Law graduate, former assistant US Attorney and former chair of the California state Senate Judiciary Committee Adam Schiff.
This morning, Washington Post reporter Rosalind Helderman wrote that when the electoral college convened on December 14, 2020 to formalize Biden's 306 electoral votes (to Trump's 232) "a strange thing happened. In seven swing states won by Joe Biden, when the Democrat’s electors assembled to formally elect him president, Trump supporters showed up, too, ready to declare that their man had actually won... [I]nternal campaign emails and memos reveal that the convening of the fake electors appeared to be a much more concerted strategy, intended to give Vice President Mike Pence a reason to declare the outcome of the election was somehow in doubt on Jan. 6, 2021, when he was to preside over the congressional counting of the electoral college votes. The documents show Trump’s team pushed ahead and urged the electors to meet-- then pressured Pence to cite the alternate Trump slates-- even as various Trump lawyers acknowledged privately they did not have legal validity and the gatherings had not been in compliance with state laws."
Tomorrow Adam Schiff will lead the committee's investigation into "how the elector scheme was organized and the ways Trump pressured officials in swing states to go along with his false claims that Biden had lost." Yesterday, on State of the Union, Schiff said that "We’ll show evidence of the president’s involvement in this scheme. We’ll also, again, show evidence about what his own lawyers came to think about this scheme. And we’ll show courageous state officials who stood up and said they wouldn’t go along with this plan to either call legislatures back into session or decertify the results for Joe Biden."
The testimony and evidence presented by the committee will build on an argument it made in a federal court in California, where it successfully obtained a judge’s order forcing Trump lawyer John Eastman to turn over records to the committee. In ordering Eastman to produce the documents, Federal District Court Judge David Carter wrote that Eastman and Trump’s endeavor amounted to “a coup in search of a legal theory.”
...The shifting internal explanations over whether the elector strategy could be considered legitimate was typified in two emails sent in late December by Eastman, a constitutional law professor who was a leading proponent of the idea. In an email sent on Dec. 19 to a California activist with whom Eastman exchanged periodic notes about the election, Eastman wrote that the electors would be “dead on arrival in Congress.” His reasoning-- no state legislature had acted to certify them as valid.
Just four days later, however, Eastman wrote to other Trump advisers that he believed Pence could indeed recognize the Trump electors on Jan. 6, apparently despite their lack of state legislative certification. “The fact that we have multiple slates of electors demonstrate the uncertainty of either. That should be enough,” he wrote.
...The emails show some Trump advisers began strategizing just days after the election about how to construct a legal argument for advancing their own electors, even though laws in every state hold that electors are determined by the certified vote of the people.
In particular, they started mulling whether state legislatures, which in a number of key states were controlled by the GOP, could appoint Trump electors even if the certified results showed Biden won.
“John-- what would you think of producing a legal memo outlining the constitutional role of state legislators in designating electors?” conservative activist Cleta Mitchell, another lawyer advising Trump’s team, wrote to Eastman two days after the November vote. “A movement is stirring. But needs constitutional support.”
The notion that state legislatures could choose electors in defiance of voters would be a radical one in modern American history. But the documents show Trump strategists quickly began to pursue the theory, especially as lawyers for the campaign and allied groups racked up losses in court cases that they had urged judges to hear expeditiously, before the electors could meet.
Their idea was that state legislatures could step in if the election had been marred by massive fraud or illegality. The Trump campaign pushed the fraud narrative even though the president and other top officials were told over and over, even by allies, that there was no evidence to support it, committee evidence and testimony has shown.
“That’s the most important point to keep in mind here: The whole predicate was nonsense,” said Edward Foley, an Ohio State University law professor who has studied disputed elections.
By Nov. 28, Eastman had penned a seven-page memo entitled “The Constitutional Authority of State Legislatures to Choose Electors.” Internal emails show a copy was sent to White House staffers, with a cover note that read, “For POTUS.” Another copy was circulated to members of the Arizona House of Representatives by a member who added that it would take only “courage to act.”
Already, Trump advisers were considering how they might attempt to use the alternate elector slates to derail Biden’s win at the joint session of Congress in January. Kenneth Chesebro, a Trump legal adviser, argued in an internal memo that Jan. 6-- not Dec. 14-- was the “hard deadline” for winning the election, particularly if Trump’s electors met and declared him the victor in December.
“It may seem odd that the electors pledged to Trump and Pence might meet and cast their votes on December 14 even if, at that juncture, the Trump-Pence ticket is behind in the vote count, and no certificate of election has been issued in favor of Trump and Pence. However, a fair reading of the federal statutes suggests that this is a reasonable course of action,” he wrote.
...In Georgia, a group of so-called electors took seats around a U-shaped conference room table in a hearing room at the state Capitol, a printer nearby hastily installed by a Trump campaign aide in case new certificates needed to be run off on the spot.
The Trump campaign had instructed them in advance to tell no one of the plan-- not even Capitol security guards.
“Your duties are imperative to ensure the end result-- a win in Georgia for President Trump-- but will be hampered unless we have complete secrecy and discretion,” a campaign official wrote to the group the day before they met.
On the ground, Trump electors have said they believed they were gathering just in case their actions were later ratified by a court or a legislature.
“From taking a lot of political science courses, I knew that if you miss a deadline for doing this, you can’t come back later and rework it,” said Robert Spindell Jr., who signed an elector certificate for Trump in Wisconsin. “It was generally the view of the attorneys that should Trump win some of these cases, this had to be done.”
[NOTE: Spendell is not in prison-- or even indicted. Instead he is the top GOP candidate to run the Wisconsin Elections Commission.]
At 3:11 p.m. the day before the fake electors met, Eastman sent an email to a Pennsylvania lawmaker stressing he too understood that additional steps would be needed to give them legal standing. “The electors absolutely need to meet,” he wrote. “Then, if the Legislature gets some spine… those electoral votes will be available to be certified by the legislature.”
In the weeks before and after the real electors met, Trump and his advisers engaged in a frenzied effort to arm-twist state legislators into validating their electors. Trump lawyer Rudolph Giuliani, for instance, testified publicly to state lawmakers in Arizona, Georgia, Michigan and Pennsylvania, urging them to act. Tuesday’s hearing will also focus on those efforts, committee members have said, featuring live testimony from Georgia Secretary of State Brad Raffensperger, his colleague Gabriel Sterling and Arizona House Speaker Rusty Bowers (R).
But as that strategy to get legislative sign-off broke down, the campaign appeared to settle on the idea that the existence of the rival slates was enough to give Pence room to act.
By Jan. 3., Eastman was circulating a memo that argued Pence should cite the bogus electors as legitimate. Citing what he claimed were problems with how the vote was conducted, he wrote: “There are thus dual slates of electors from 7 states.”
“The lesson that we’re seeing is that the people who drank all the Kool-Aid, they become increasingly unhinged and untethered to reality as the process unfolded,” Foley said. “They just doubled down and then tripled down, and spun more and more off into their own delusional world.”
Ultimately, Pence refused to recognize the Trump elector slates, earning him the president’s anger and making him a target of the mob that ransacked the Capitol on Jan. 6.
Four days later, after Congress confirmed Biden’s win and Trump prepared to leave office, Eastman received an email demanding to know what had happened.
“Tell us in layman’s language, what the heck happened with the dual electors? Please?” read the email, which was from a person whose name is redacted in a version released publicly.
In his response, Eastman admitted the facts: The electors never had legal standing.
“No legislature certified them (because governors refused to call them into session), so they had no authority,” he wrote.
“Alas,” he concluded.
Arizona House Speaker Rusty Bowers, by the way, was also one of the legislators being targeted by Clarence Thomas' crackpot wife Ginni. The televised hear is scheduled to begin at 1:00 pm (ET).