Jonathan P. Baird

As we keep learning more about the events between the 2020 presidential election and January 6, 2021, it becomes clearer that Donald Trump remained entirely focused on one goal: staying in power. For Trump, that time period was about desperate ploys.

With his legal strategy failing, Trump and his circle crafted a succession of shady schemes. Desperation led to consideration of wilder ideas. As he acknowledged in his Conroe, Texas speech, his goal was to overturn the election.

Trump and his lawyers, John Eastman and Jenna Ellis, had plans to throw out the electoral votes from swing states. The idea was that if enough states contested the election, Biden would end up short of the 271 electoral votes needed to win because these states could not be counted as in the Biden column. Then the presidency could be thrown back to the House pursuant to the 12th Amendment. The Republicans had the edge there in state delegations and they could then anoint Trump the winner.

Even though he lost the vote tally, Trump wanted state legislatures in swing states to declare the election in their states null and void. Having electors sign fake electoral vote certifications was part of the plan. The hope was that the creation of uncertainty about the election would justify a pretext for delay and not counting electoral votes.

84 Republicans from 7 states signed similar bogus documents claiming Trump won their state and they sent electoral college certification forms to Congress and the National Archives. It would appear this was a coordinated effort coming out of the White House but we are still learning more about who were the plan architects.

I would expect the January 6 Committee will be seeking to find out how much pressure Trump placed on local Republicans to create false certifications and how much originated from the grassroots.

A related scheme has been described by former Trump economic advisor Peter Navarro. Navarro called his scheme, jointly authored with Steve Bannon, the Green Bay Sweep. The scheme was named after a football play designed by legendary Packers coach Vince Lombardi where a Packers running back pounded the ball into the end zone behind a “phalanx of blockers”.

Navarro wanted members of the House and Senate to raise challenges to the electoral vote count in six swing states on January 6. The challenges would force up to two hours of debate per state. During that time, Navarro hoped to pressure Vice President Mike Pence to hold off on certifying the election. Navarro has claimed that Trump was on board with his strategy as were more than 100 Republican members of Congress.

The Green Bay Sweep was fundamentally about delay with the expectation that Pence would buckle to their pressure. Navarro was unable to access Pence whom he says was walled off from him by Marc Short, Pence’s chief of staff. Pence obviously had other ideas. He would not go along.

Trump was also enamored with the idea of seizing voting machines. Even after his Attorney General William Barr refused the plot because there was no credible voter fraud and no probable cause that any crime had been committed, Trump improvised with new schemes.

Always anxious to get others to break the law for him, Trump schemed to have the Department of Defense and the Department of Homeland Security confiscate voting machines.

Trump advisors drafted two Executive Orders around this idea. One plan centered on using the President’s emergency power under the International Emergency Economic Powers Act to permit the Pentagon to seize voting machines. It is not clear who drafted the Executive Orders (possibly Sidney Powell) but Michael Flynn and Sidney Powell aggressively advocated for them at a contentious White House meeting on December 18, 2020.

Flynn and Powell pitched conspiracy theories at Trump. They argued the Chinese Communist Party, Iran, former Venezualan President Hugo Chavez (deceased in 2013), Dominion Voting Systems and George Soros were all hacking voting machines. They wanted the Department of Defense to use soldiers to commandeer the voting machines so that there could be a recount or a new vote.

Flynn wanted Trump to declare martial law in the post-election period. He wanted to serve as “field marshall”. He floated the idea of Trump seizing all voting machines in the country and then deploying the military to swing states Trump lost. The plot also included a proposal that Trump appoint Sidney Powell as “special counsel” to oversee election integrity. Those things never happened. Trump staffers Pat Cipollone, Mark Meadows and Eric Herschmann pushed back hard against Flynn and Powell.

When Trump got resistance on using the Pentagon, he called on Rudy Giuliani to ask acting Deputy Secretary Ken Cuccinelli from the Department of Homeland Security if that agency would seize voting machines. Giuliani made the call although supposedly he was opposed to the idea of the military seizing voting machines. On behalf of Homeland Security, Cuccinelli declined to participate. Trump did not sign the Executive Orders.

According to the New York Times, we also know that in December 2020 Trump attempted to persuade Michigan and Pennsylvania legislators to have local law enforcement agencies seize voting machines in their states. State lawmakers nixed Trump’s request.

I would suggest there was a method to the madness. Republicans saw creating chaos as their best way forward after losing the presidential election. With enough delay, uncertainty, and contestation, maybe somehow Trump could be re-installed.

Imagine the shock and chaos that would have been created if Pence had buckled or if Trump had gone forward in seizing voting machines. Where would the voting machines have gone? What would have been done with them?

It would have provoked an unprecedented constitutional crisis. The Trump forces knew that. It is safe to assume that Democrats would have flipped out. Likely the mess would have provoked huge demonstrations and street violence. Resolution would have probably landed at the U.S. Supreme Court, also a possibly promising result for Republicans.

The clock ran out on the Republicans and they could throw no more Hail Marys but they are, no doubt, studying the lessons for 2024. Looking back, democracy had a very close call. Forces opposed to democracy almost found a way to circumvent the will of the voters. As Rep. Jake Auchincloss of Massachusetts described it, Trump was a “constitutional wrecking ball”.

In the last week, we found out more about Trump’s spoliation of evidence and his pattern of destroying presidential records. He had a habit of tearing up documents at the end of meetings.

Maggie Haberman of the New York Times reports that White House staff repeatedly found upstairs White House toilets clogged with wads of printed papers. It was apparently Trump’s preferred method of document destruction. He also had burn bags and he removed more than a dozen boxes of White House documents to Mar-a-Lago when he left the White House. Some were marked “top secret”. We also know that phone logs on January 6 are missing.

For those who remember Watergate, it was the eighteen minute White House recording gap that did in Nixon. Trump’s destruction of evidence makes Tricky Dick look like a minor leaguer.

On Twitter, I saw a picture of a golden commode with a sign on the wall that said, “Notice Please do not flush paper towels, cigarettes, sanitary items, or classified government documents”. That is a perfect metaphor to describe the Trump presidency.