The Paperwork Coup
A much more dangerous insurrection was under way in the inboxes of Trump’s inner circle in the weeks before January 6.
This is a tale of two coups—or rather, two attempted coups.
One is the well-known January 6 insurrection, memorialized in iconic photographs, gripping videos, and minute-by-minute reconstructions, and followed by hundreds of arrests, more than 50 convictions, and a House select-committee investigation. The other attempt took place over weeks and was mostly waged in closed-door meetings, legal memos, and private phone calls; it has thus far produced little accountability.
In the days ahead of January 6, experts worried over what chicanery might happen inside the House chamber during certification, but that threat was quickly overshadowed by the violence outside. There are many reasons for this eclipse. One is the simple, disturbing drama of the insurrection, revived on Monday when Representative Liz Cheney read panicked texts from members of Congress, then under siege in the Capitol, and Fox News hosts, beseeching Mark Meadows to get then-President Donald Trump to stop the riot. Anyone can grasp what was going on immediately, regardless of how they feel about it, whereas a coup planned in dry legal language is more opaque and abstract. The violence was thus a natural messaging focus for Democrats who wanted to punish and, if possible, banish Trump. Meanwhile, information on Trump’s procedural efforts to steal the election has emerged only slowly and in small bits.
But this is a moment for reassessment. Evidence about the insurrection suggests that although the mob was an obvious threat to human life, it was never an especially serious one to American democracy. Coordination within the crowd seems to have been sporadic, and if White House officials were in touch with organizers, they weren’t likely directing them. Moreover, it’s not clear how the insurrection might have successfully kept Trump in office, even if it had managed to prevent certification that day. This was an inchoate moan, a spasm of despair for a cause already lost.
Meanwhile, we now have a better sense of how dangerous what we might call the “paperwork coup” was. The theory under which Trump and his cronies attempted to steal the election was not especially elaborate or persuasive, but it didn’t need to be. It was coherent, and if a few things had happened differently—most especially, if Vice President Mike Pence had gone along with it—the result would have been chaos at the least and possibly a second Trump term and widespread conflict at worst. The violence on January 6 broke a long string of peaceful transfers of power in the United States. If the paperwork coup had worked, though, peace might have prevailed—but the transfer of power might not have happened.
What Trump was trying to do is not in question. He has always understood, and demonstrated repeatedly throughout his presidency, that voters treat as scandalous what is hidden but are more apt to accept what is done openly. So this coup attempt was no secret. Trump made clear starting the night of the election that he intended to try to cling to the White House by hook or by crook. Because neither he nor anyone else has ever produced credible evidence that fraud shifted the results of the election, this would have been plain theft. The surprising thing, which more recent revelations help underscore, is that what looked from the outside like one of Trump’s classic chaotic improvisations was in fact a concerted effort, coordinated among multiple Trump loyalists over a matter of weeks.
Some of Trump’s veteran lieutenants, accustomed to accommodating his eccentricities and outrages, drew a line here. In the early days after the election, aides anonymously assured reporters that Trump’s refusal to concede was just a short-term denial. As it became clear that wasn’t true, and as Trump mounted more desperate efforts to halt the certification process, Attorney General Bill Barr, Deputy Attorney General Jeffrey Rosen, White House Counsel Pat Cipollone, and the lawyers Jay Sekulow and Eric Herschmann were among the aides who had stuck with Trump through all sorts of dubious maneuvers but who now refused to get involved, recognizing that he had lost the election.
Rather than face reality, Trump tried to create his own—and the first step was to find lackeys who would make-believe with him. This proved easy. They included Rudy Giuliani, who had by then proved no ask was too far; the attorneys Jenna Ellis, who seems to have gone along despite having some hesitations, and Sidney Powell, who had none; the law professor John Eastman, who lent (and sacrificed) his long-standing credibility in conservative legal circles; Philip Waldron, a retired Army colonel turned cybersecurity consultant; and Chief of Staff Mark Meadows.
By the start of 2021, Trump was close to running out of options. No one had been able to turn up evidence of major fraud. Giuliani, Ellis, and Powell were being laughed out of courts around the country. State after state, including those run by Republicans, had certified the election results, closing off one of his great hopes for preventing Joe Biden’s swearing-in from going forward.
That left Trump with one last gambit: keeping Congress from certifying the election on January 6. Most legal scholars agreed that the day’s proceedings were meant to be a formality, but Trump’s kitchen Cabinet had decided they were a place to make a stand. One prong was a bid to get the Justice Department to simply say the election was corrupt “+ leave the rest to me and the R[epublican] Congressmen” (as a DOJ official recorded Trump saying). It’s still not entirely clear what Trump hoped to do once he’d received that declaration, but in any case it came up short. Rosen refused, and Trump’s attempt to replace him with a loyalist atop the department crashed at a January 3 meeting, where Cipollone and top Justice Department officials threatened to resign en masse.
The second prong was to persuade Pence to block or delay certification on January 6. Eastman wanted Pence to declare that there were no valid slates of electors from seven states that Trump allies claimed had major fraud. Ellis wrote in a memo that Pence should refuse to open votes from six states with putative controversies, though Sekulow rejected the theory. (She claims she was simply laying out legal theories, not endorsing them.) Waldron wanted Pence to accept alternative slates of electors from contested states, or else ignore the contested states altogether.
It isn’t hard to spin scenarios about how this might have turned out, because the proponents did so right there in writing. Eastman imagined that Democrats would object, so Pence would say the matter had to go to the House of Representatives, where each state’s delegation would receive a vote. Because Republicans controlled a majority of state delegations, they would elect Trump. Ellis foresaw a different possibility: Pence would demand that states make a response, effectively kicking the question back to state legislatures. Waldron, who was more of an outsider but did manage to meet with Meadows and members of Congress in the days before January 6, had the most chilling suggestion: that Trump declare a national-security emergency, effectively bypassing democracy in the name of a manufactured crisis.
These scenarios are frightening because they’re so plausible. Perhaps some members of the House would have objected and refused to back Trump in a vote, but the pattern of the Trump presidency was that many members swallowed private objections and got in line publicly. The Ellis plan is perhaps even worse, because state legislatures are more likely to be full of fringe elements. Many state officials refused to endorse Trump’s attempts to cheat before January 6, but they could point to precedent. If Pence had tossed the matter back to them later, there would have been no precedent to use as a shield—and Trump’s supporters would have been baying at the doors.
Any of these matters would have immediately ended up in federal court, and courts did not look kindly on the suits that Trump allies brought alleging fraud. But the genius of the proceduralist track was that it didn’t depend on the allegations being true—it was constructed on the hysteria the allegations had created. The current Supreme Court seems loath to interfere with procedure, as its handling of a Texas abortion law this term has shown. Perhaps the Supreme Court would have shut the effort down promptly, but we can only speculate.
The mystery is why Pence didn’t go along with it, a question only he can answer fully. Pence had stuck with Trump over four and a half tumultuous years, only briefly flinching in October 2016, when a tape of Trump boasting about sexual assault emerged. His political future was, by now, inextricably bound up with Trump’s: Standing by Trump might not guarantee him the presidency, but breaking with him would almost certainly doom his political future. Pence seems to have been searching for a way to do what Trump asked. In late December, according to the journalists Bob Woodward and Robert Costa, Pence spoke with fellow Hoosier and former Vice President Dan Quayle, and pressed Quayle for whether there was some way to pause certification. Quayle bluntly shut him down.
For the first few days of the year, Trump did not speak with Pence, according to The New York Times. Then on January 4, Trump met with Pence several times in the Oval Office, where he pressured Pence hard to go along with the plan. But by then, Pence was apparently resolved, and met the arguments of Trump’s legal advisers with those of his own. Finally, on the morning of January 6, Trump called Pence and told him, “You can either go down in history as a patriot or you can go down in history as a pussy.” Trump was right about the choices, but not about which was which. Pence chose patriotism.
As the contours and scope of the paperwork coup become clear, we can better understand Trump’s enormous rage at Pence on January 6. As a mob stormed the Capitol, assaulted police, and chanted, “Hang Mike Pence,” Trump watched impassively from the White House, making barely any effort to quench the violence. “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” he tweeted as the assault continued.
More recently, in an interview with ABC’s Jon Karl, Trump called the January 6 mob’s fury at Pence “common sense.” What else could he say? He remains furious. On Saturday, during an appearance in Florida, Trump brought up the idea of bouncing the election to states again. “Mike should have sent those crooked votes back to the legislatures and you would have had a different result in the election, in my opinion,” he said. Whereas the insurrection was doomed from the start, Trump knew how tantalizingly close he’d been to clinging to power.