Jonathan P. Baird

Even before Donald Trump lost to Joe Biden in the November 2020 presidential election, Trump whined that the election was rigged. He spouted wild unsupported conspiracy theories that the election would be corrupted by mail-in ballots. Before the 2016 election Trump did essentially the same thing except then he ended up winning.

When he did lose in 2020, Trump’s response was to manufacture a monstrous lie. Out of no evidence, he created the Big Lie the election was stolen. Trump has repeated the Big Lie religiously so that he could transform reality to resemble his lies. He and his allies have worked to purge Republicans who do not buy into his fiction.

Unlike almost all presidents in U.S. history who accepted the will of the voters, Trump embarked on a non-stop campaign to overturn a democratic election. Never accepting the peaceful transfer of power, Trump worked single-mindedly between November 2020 and January 2021 to find a way to install himself as a dictator. He never conceded.

After he lost, he demonstrated a loss of interest in the job of being president. His energies fixated on how he could maintain power because losing was inconceivable for him. Trump’s cumulative actions added up to a multi-pronged offensive against democracy. When his non-violent schemes failed, he opted for violence.

The stages can now be clearly delineated. When Trump’s court strategy failed, he turned to state legislatures. When that failed, he attempted to manipulate the Department of Justice and the military. When every strategy he tried could not get the job done, he resorted to a violent insurrection on January 6 to prevent certification of the Electoral College vote.

Trump’s coup attempt, which has been joked about as inept, came uncomfortably close to success. If Mike Pence, Jeffrey Rosen or General Mark Milley had acted differently, the election might have been thrown into the House of Representatives, with uncertain results. For those who doubt there was a legitimate coup danger, closer scrutiny of the events between November 2020-January 2021 are in order.

After the election, the Trump legal team filed 60 federal lawsuits focused on swing states. These frivolous lawsuits were laughed out of court, even by Trump-appointed judges. Trump made zero headway. His colorful cast of lawyers, including some genuine nutcases, violated professional ethics by repeatedly making false statements of fact to multiple tribunals.

Trump then tried to bully and threaten state election officials, governors and state legislators to do his bidding. A litany of death threats and threats of physical harm directed against election officials has continued since last November. We have had the Arizona audit and Trump pleading with Georgia Secretary of State Brad Raffensperger “to find 11,780 votes”. The solicitation of election fraud is almost certainly a crime.

Trying to get friendly state legislatures to appoint electors may turn out to be one of the most dangerous legacies of Trump’s efforts. As a minority party, Republicans are looking at ways to maintain their power beyond voting. Unlike earlier authoritarians, Republicans suppress votes rather than entirely eliminating the right to vote.

In the future, Republican lawyers will be arguing the “independent state legislature doctrine” to justify the power of state legislatures to run elections as they see fit. It is a possible vehicle for overturning close elections. Instead of votes deciding elections, state legislatures conceivably will.

Trump treated the Department of Justice as if it was his private play thing, not a non-partisan law firm. Although Attorney General William Barr was a sycophant who always went along with his boss, when he disputed Trump’s baseless claims of election fraud, that was the end for him. Trump replaced Barr with Jeffrey Rosen whom Trump badgered daily. Trump sought investigation of election conspiracy theories including satellite interference from Italy and Dominion Voting System improprieties.

In a December 27 call, Trump urged Rosen to make a false declaration. According to Rosen’s deputy Richard Donaghue, Trump said, “Just say the election was corrupt and leave the rest to me and the R. Congressmen”. Trump wanted to create the appearance of wrong-doing. He intended to use Rosen to nullify the election.

Behind Rosen’s back, Trump also conspired with Rosen’s underling, Jeffrey Clark. Trump wanted to replace Rosen with Clark as Attorney General because Clark was willing to play ball with Trump’s criminal games.

On December 27, Clark produced a letter he wanted Rosen and Donaghue to sign. Following Trump’s lead, Clark wanted to bypass Georgia’s governor and call the Georgia state legislature into session to reject Biden electors and appoint Trump electors. Rosen and Donaghue would not go along.

White House lawyer Pat Cipillone persuaded Trump not to fire Rosen. If Trump had fired Rosen and replaced him with Clark, the entire senior leadership of the Justice Department was poised to resign en masse.

We also now know that the former U.S. Attorney in Georgia, Byung Pak, a Trump appointee, was told he would be fired if he refused to say there was election fraud in Georgia. He abruptly resigned on January 4.

Trump clashed with General Mark Milley, Chairman of the Joint Chiefs of Staff, who worried Trump might call on the armed forces to decide the outcome of the 2020 election. Trump was replacing senior officials at the Pentagon with his loyalists. General Milley compared November 2020 with 1933 when Hitler used an attack on the German Parliament to establish a Nazi dictatorship. Milley said, “This is a Reichstag moment”.

After the December 12 pro-Trump demonstration in Washington D.C. protesting the Supreme Court not coming to his rescue, Trump tweeted on December 19: “Big protest in D.C. on January 6th. Be there, will be wild!”.

Probably the most cogent statement made about January 6 comes from Capitol Police Sgt. Harry Dunn. When he testified before the House select committee investigating January 6, he said:

“If a hitman is hired and he kills somebody, the hitman goes to jail. But not only the hitman goes to jail, the person who hired them does. There was an attack carried out on January 6. And a hitman sent them. I want you to get to the bottom of that.”

Take your pick on the crimes Trump has committed: solicitation of election fraud, conspiracy, obstruction of an official proceeding (Electoral College certification), violation of the Hatch Act and inciting insurrection jump out. Failure to prosecute likely guarantees a repeat performance in the future by Trump or a Trump clone. You don’t have to be a cynic to wonder if our legal system is up to the task.

With Trump we have a cult leader who incited a violent and deadly insurrection. He presents himself as some kind of national savior to his followers. He has promoted a culture of hatred and dehumanization against immigrants and an utter disregard for the rule of law. Believing himself above the law, he has no hesitation in trying to steamroll any obstacles in his path to power. This behavior is far more consistent with the fascist strongman tradition than any kind of conservatism.

Nobody should be reassured that we barely escaped this time.