“Donald Trump and one of his legal advisers, former Chapman University law professor John Eastman, probably committed federal felonies when they conspired to reverse the outcome of the 2020 presidential election by pressuring then–Vice President Mike Pence to block or delay congressional ratification of Joe Biden’s victory. U.S. District Judge David O. Carter concluded it was “more likely than not” that the scheme violated 18 USC 1512, which prohibits obstruction of “any official proceeding,” and 18 USC 371, which criminalizes conspiracies to “defraud the United States.”
Carter made that determination while adjudicating a dispute over emails sought by the House select committee investigating the January 6, 2021, riot at the U.S. Capitol by Trump supporters who accepted his stolen-election fantasy and were angry at Pence for refusing to go along with Eastman’s plan. While the practical impact of Carter’s conclusion is limited to just one disputed document, his analysis amounts to an indictment of conduct that was not just dishonest and reckless but arguably criminal.
“The illegality of the plan was obvious,” Carter writes. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated, ‘no Vice President in American history has ever asserted such authority.’ Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed….President Trump knowingly tried to subvert this fundamental principle.”
Eastman argued that 111 of the documents sought by the January 6 committee’s subpoena were protected either by attorney-client privilege, which applies to confidential legal advice, or by the “work product” doctrine, which applies to material prepared in anticipation of litigation. The select committee argued that the disputed emails were not protected, invoking the “crime-fraud exception,” which applies to legal advice “in furtherance of” a crime.
Carter concluded that 13 documents qualified as work product and that the crime-fraud exception applied to just one: a memo prepared for Trump attorney Rudy Giuliani recommending that Pence “reject electors from contested states on January 6.” Carter says that memo “may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action.”
As Carter notes, that plan of action was blatantly illegal. In conversations with Greg Jacob, Pence’s counsel, Eastman conceded that the plan violated the Electoral Count Act in several ways. And while Eastman questioned the constitutionality of that law, Carter says, the proper way to resolve those claims would have been to raise them in court rather than unilaterally choosing to ignore the statute.
Eastman likewise acknowledged that it was “100 percent consistent historical practice since the time of the Founding” that the vice president does not have the legal power to do what Eastman and Trump wanted him to do. Eastman also admitted that it was likely the Supreme Court would unanimously agree.
On January 3, 2021, Eastman nevertheless wrote a six-page memo calling for “BOLD” action by Pence to stop Biden from taking office. “The stakes could not be higher,” he wrote. “This Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”
The next day, Eastman, at Trump’s behest, pushed his plan in a meeting with Pence, Jacob, and Marc Short, the vice president’s chief of staff. “During that meeting,” Carter notes, “Vice President Pence consistently held that he did not possess the authority to carry out Dr. Eastman’s proposal.” Eastman met again with Jacob and Short on January 5, saying, “I’m here asking you to reject the electors.” Most of that meeting was consumed by an argument in which Jacob disputed the legal merits of Eastman’s memo.
“Despite receiving pushback,” Carter says, “President Trump and Dr. Eastman continued to urge Vice President Pence to carry out the plan.” At 1 a.m. on January 6, Trump tweeted that “if Vice President @Mike_Pence comes through for us, we will win the Presidency,” averring that “Mike can send it back!” Seven hours later, another Trump tweet insisted that “states want to correct their votes,” saying “all Mike Pence has to do is send them back to the States, AND WE WIN.” He urged Pence to “do it,” because “this is a time for extreme courage!”
Trump delivered the same message in a phone call to Pence around 11:20 a.m. that day. According to Pence’s national security adviser, who was present during that conversation, Trump castigated the vice president as “not tough enough to make the call.” Trump and Eastman reprised the same theme during their speeches at the “Stop the Steal” rally that preceded the Capitol riot. Trump closed his speech by urging his followers to march on the Capitol in the hope of inspiring “the kind of pride and boldness” that “weak” Republicans like Pence needed “to take back our country.”
Around noon, Pence publicly rejected Trump and Eastman’s appeals, saying, “It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.” After the riot started, Trump condemned Pence on Twitter: “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!”
In an email to Eastman while Trump’s enraged supporters were storming the Capitol, Jacob noted that the rioters “believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day,” and “thanks to your bullshit, we are now under siege.” Eastman, who was still trying to change Pence’s mind, took a different view: “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.”
A conviction for obstructing or attempting to obstruct an official proceeding requires proving that the defendant acted “corruptly.” According to 9th Circuit precedent, that element does not require “consciousness of wrongdoing.” But in this case, Carter says, Trump “likely knew that the plan to disrupt the electoral count was wrongful.””
“Carter’s conclusions do not necessarily mean that Trump or Eastman could be successfully prosecuted for either of these crimes. The preponderance-of-the-evidence standard for applying the crime-fraud exception is much less demanding than the proof beyond a reasonable doubt required for a criminal conviction. So even if the January 6 committee ends up recommending criminal charges, the Justice Department might sensibly decline to pursue them. But Carter’s ruling, which calls Eastman’s plan “a coup in search of a legal theory,” reminds us of how outrageous and unprecedented Trump’s reaction to his electoral defeat was.”
“Thousands of votes were, in fact, thrown out, directly as a result of a new requirement in the law. A new AP analysis of data from Texas found that a whopping 13 percent of the state’s absentee ballots were discarded or uncounted.
And in the state’s biggest county, the new procedures it mandated contributed to a hugely messy vote-counting process.
“It’s been every bit as catastrophic as we feared it would be,” said James Slattery, a senior staff attorney at the Texas Civil Rights Project. “I think the onus is on the legislature to acknowledge the harm that it did to Texas voters by passing Senate Bill 1 and make amends by repealing it next year.”
But that probably won’t happen given that key Republicans who pushed for the law have continued to defend it.”
“The statewide rejection rate for mail-in ballots has typically been between 1 and 2 percent in past elections and was about 1 percent in the 2020 general election when mail-in voting rates were much higher. But in the 2022 primaries, county-level rejection rates ranged from 6 to 22 percent, according to data compiled by the Texas Civil Rights Project”
“In four counties that reported the reason they had rejected mail-in ballots, those identification requirements were to blame over 90 percent of the time. In Harris County, which encompasses Houston and is the most populous county in the state, it was 99.6 percent.
This was foreseeable. Even some Republican officials were worried about mail-in ballot rejections ahead of the primary. Texas Secretary of State John Scott said during a February town hall that it was his “biggest concern” of this election cycle. In a statement Tuesday, Sam Taylor, a spokesperson for Scott, acknowledged the issues with mail-in ballots during the primaries and said his office is devoting a significant portion of its voter education efforts to the new ID requirements.”
“Voters whose mail-in ballots were flagged for rejection did have the opportunity to correct them to ensure that they were counted. But the process proved confusing and looked different depending on when the problem with a voter’s ID number was discovered.
“You can see all the different ways that this can go wrong. What if the ballot never gets back to the voter? Or they don’t see it and think it’s junk mail? Or they correct the number issue online but don’t realize they need to send the ballot back?” Slattery said.
For some voters, the process was just too arduous.
“A lot of voters get these letters of rejection, and they just don’t bother,” said Michele Valentino, a Democratic election judge in Dallas.
Some flaws can be expected when implementing a new system for the first time, but this bodes poorly considering how low turnout was relative to general elections: Fewer than 1 in 5 voters cast ballots in the primaries, which is higher than in the past six midterm primaries but still a lot lower than the roughly 46 percent of Texans who showed up for the last midterm general election in 2018.
“I can see this issue compounding and worsening as we reach the midterms this year,” said Jasleen Singh, counsel in the democracy program at the Brennan Center for Justice, where she focuses on voting rights and elections. “That there’s even this much hardship that voters are encountering at this stage is incredibly concerning and dangerous for democracy.”
The AP analysis showed a higher rate of rejections in Democratic than Republican counties (15.1% to 9.1%). That was also predictable: Voters of color typically bear the biggest burden from any restrictions on voting, and they make up a large share of many of those Democratic-leaning counties.”
“whether Emmanuel Macron or Marine Le Pen is victorious, the election already offers more evidence of the challenges facing mainstream politics, with the collapse of the traditionally dominant parties and populist forces still rising across the West.”
“Whether this broad rejection of the status quo means we are headed toward a world dominated by illiberal politics or merely one of extreme and permanent volatility isn’t yet clear. And new crises, notably the consequences of climate change, may well fashion some hybrid version of our politics.
But ultimately, populism is probably a transition, not an end-state. The politics of the center are far from irrelevant, but our institutions — overwhelmed by the politics of accusation and resentment — no longer know how to provide voters with reasonable and legitimate means to address their grievances from a centrist vantage point. So populism, however destructive, may yet force Western politicians to craft new institutional paths to representation and to compromise — more in sync with what people experience in their everyday lives, and with what they value. More reactive, more local, and more flexible. But a painful and treacherous transition it is, something made quite clear in the French election.”
“Macron is no longer the exciting young maverick who stormed the Elysée, having siphoned support from a frustrated center-left and scandal-plagued center-right. He’s struggled to govern through crises like the Yellow Vests protests and pension reform strikes, while his “Jupiterian” approach and occasional sarcasm have all led to a deep resentment of his persona and some outright loathing in many quarters.
Post-pandemic, most French voters might have grudgingly agreed that Macron’s government has “done OK,” and as a result, Macron entered this election well ahead of other candidates in the polls, and slightly boosted by the Ukraine crisis. But a majority of voters are at best disillusioned and most often angry.
Meanwhile, in five short years, Le Pen has furthered her mission to appear more mainstream. Gone are the days when 80 percent of French voters thought she and her far-right party were a menace to democracy. Today, the number is barely 50 percent.
Le Pen’s strategy (since she took over the party from her Holocaust-denying father in 2011) has been to focus on lower income voters. Rather than simply woo those susceptible to a traditional populist right agenda on immigration and integration as her father had done, she made a play for working class voters who increasingly felt that the traditional left had deserted them and their interests. This story is a familiar one in advanced democracies where progressive or social democratic parties have struggled to reconcile representing the economically vulnerable while supporting inclusive visions of societies that lower income voters feel disproportionately benefit an (urban, cultural) elite. We saw this play out in the Brexit vote, but also in the Trump vote.”
“In 2017, Macron was elected by reducing the Socialists to rubble and putting the center-right on life support. This year, that trend accelerated, as the Socialists’ candidate came in below 2 percent (after holding the presidency a mere five years ago) and the leading candidate of the center-right came in under 5 percent. The result is that Macron aside, the candidates from the main institutional parties have been wiped out in this election.
Of the three candidates who came in over 20 percent, one is of the populist right (Le Pen) and one is of the populist left (Mélenchon); both advocate a distanced relationship with the EU and with the U.S., governance by popular referendum and pulling out of NATO or NATO’s integrated command. Add to this the 7 percent for extreme right Éric Zemmour and the 26 percent of voters who stayed home, and it shows the vast majority of French voters are refusing to engage with mainstream politics.”
“Part of the attraction of illiberal ideologies (sometimes imported from places such as Russia and China that have gone through more recent political and economic upheavals) is their rejection of the status quo. What is coming into focus is the fact that voters have a bone to pick not just with the choices they are being offered, but with the way they are being asked to choose.”
“a national movement to give voting rights to legal noncitizens has found its way to the country’s most populous city and, pending court battles, will soon give those immigrants the chance to shape local elections.
About 800,000 green card holders and others authorized to work in the country will become eligible to vote for mayor, City Council and other local offices. New York is by far the largest city to make such a move.
The impact on local elections could potentially be far-reaching. The city’s electorate consists of just under 5 million active registered voters, meaning a major push to register immigrants and get them to the polls could reshape politics in New York. Voting blocs like the one that elected Linares could have the power to affect the outcome of not just City Council races but even the next mayoral race.
Proponents say noncitizen voting will give more political clout to communities whose concerns have often been overlooked, and force candidates and elected officials to be responsive to a broader swath of the population. Opponents — who are challenging the law in court — predict it could be a logistical nightmare, and charge the increased influence for immigrant voters could come at the expense of U.S.-born Black voters.”
“New York wasn’t alone in allowing some form of noncitizen voting in years past: as many as 40 states practiced it at some point from the 18th century through the early 20th century, according to research by Ron Hayduk, a professor at San Francisco State University who has studied noncitizen voting, including the New York school board election. The practice was abolished in the last of those states nearly a hundred years ago.”
“There’s a mountain of baseless overlapping claims piled up inside the stultifying biodome of the Big Lie: voters casting multiple ballots, dead people voting, ballot-counting machines flipping votes, foreign nations hacking systems to swap totals. The Big Lie is an à la carte conspiracy theory — a bit like QAnon in that respect — where adherents pick and choose what sounds right to them and disregard what doesn’t. Each individual who believes the Big Lie has their own suspicions about what took place, a personal recipe of different conspiracies to nourish their belief that the election was illegitimate. In right-wing chat groups on the messaging app Telegram, these theories are traded as casually as chats about the weather.”
“Every iteration of the Big Lie, though, is wrong. The ones in the darkest corner of the Internet? Wrong. The ones brought forward in lawsuits by the Trump campaign? Wrong. The ones already debunked by news sources? Still wrong. There is no evidence of widespread fraud in the 2020 election.
Still, polling gives us a glimpse of the most popular theories on the Big Lie menu. Last summer, a YouGov/CBS News poll asked voters who thought there had been widespread voter fraud and irregularities in the 2020 election exactly what they thought had happened. They were asked about various sources of voting and how much of the voter fraud came from those sources, either “a lot of it,” “some of it” or “hardly any or none.”
Seventy-seven percent said “a lot” of voter fraud and irregularities had come from ballots cast by mail, and 70 percent said a lot of it had come from voting machines or equipment that were manipulated, but just 22 percent said a lot of the fraud had come from ballots cast in person. Racism also appeared to inform a lot of thinking around the Big Lie: 72 percent said a lot of the fraud had come from ballots cast in major cities and urban areas, compared with 22 percent and 14 percent who said a lot of it had come from suburbs and rural areas, respectively. And 39 percent of those who believed voter fraud was widespread said “a lot” of fraud had come from ballots cast in Black communities, while 25 percent said so for white communities and 27 percent said so for voters in Hispanic communities.”
“When they asked Americans to compare hypothetical political candidates, Republican voters favored candidates who embraced the Big Lie by an average of 5.7 percentage points to candidates who accurately said Trump lost the election. This suggests that the Big Lie is not going anywhere soon and that it will have a meaningful sway on elections. Already we’ve witnessed the Big Lie being wielded as a campaign tool by Republican candidates across the country, demonstrating the power of this belief among the party’s voters.
And as polls continue to capture the millions of Americans who endorse the Big Lie, precisely what they believe matters less than how that belief influences their actions.”
“By December 2020, as President Donald Trump was trying feverishly to overturn Joe Biden’s election win, his closest remaining advisers had broken into two warring camps.
Both factions, at this point, supported and encouraged Trump’s strategy to retain power: pressuring state legislatures, state officials, and members of Congress to throw out results in key states, claiming they were tainted by fraud. Both were even interested in using the federal government’s power to seize voting machines in key states.
But one camp, led by Sidney Powell and Michael Flynn, wanted to go even further and use the military to seize those machines — while the other, led by Rudy Giuliani, thought that was a bridge too far.
Think of it as a divide between the dangerously unhinged and the totally batshit.”
“The story makes clear just how dire things were for democracy at this point. Everyone around Trump was recommending extreme measures that, if successful, would have amounted to stealing the election.
Yet even some of Trump’s unhinged, irresponsible, and conspiratorial advisers, like Giuliani, were still trying to steer him away from the even worse actions counseled by Powell and Flynn, who seem to have been totally unmoored from factual and political reality at this point.”
“while some officials might have refused to go along with Trump’s whims, he did have the option to replace them but simply chose not to — due to his own calculations that this would be too far, or because other advisers talked him out of it. But there was no guarantee that Trump, who had been willing to push so far already, would back off here. If he were just a bit more stubborn and willing to stretch the boundaries of his power, the election 2020 crisis could have grown far worse.”
““Mike Pence did have the right to change the outcome,” Trump said in a statement…“Unfortunately, he didn’t exercise that power, he could have overturned the Election!” That same day, he mused at a rally about pardoning January 6 rioters. In a battle between the unhinged and the batshit for Trump’s favor, the latter camp may be gaining strength.”
“The evolution of the Big Lie was the product of a vast catalog of politicians, pundits, true believers and benefactors financing and promoting claims of voter fraud and efforts to overturn the election. This includes lawyers like Lin Wood and Sidney Powell who filed pro-Trump lawsuits, Republican politicians who actively embraced the Big Lie like Georgia Rep. Jody Hice (whom Trump has endorsed in the race for Georgia secretary of state) and others who, while not embracing the Big Lie, refused to condemn it. It included political action committees and conservative groups that financed these efforts. And it included alt-right personalities like Steve Bannon and Mike Lindell, who have amassed huge audiences as they continue to promote the Big Lie.”
“Rather than a spate of attacks by organized groups — largely what the Biden administration has prepared for — instead we have seen a massive expansion of the broader ecosystem of far-right extremism. I study terrorism and regularly monitor the rhetoric traversing Telegram and other platforms frequented by far-right extremists. Over the past year, it’s become clear that the violence underpinning the Capitol rioters’ ideology has seeped into mainstream culture and politics. As a result, many more people can — and do — engage in extremist thoughts and actions, not just members of groups like the Proud Boys and Oath Keepers. This raises risks of violence by radicalized “lone wolves,” who are much harder to track and thwart.”
“Remarkably for a year that started off with an unprecedented display of political violence, 2021 saw zero major terrorist attacks on U.S. soil, nor did we experience anything resembling the 2017 Unite the Right rally in Charlottesville, Va. One reason is that the ongoing Covid-19 pandemic has artificially suppressed terrorism plots and attacks that we might have seen otherwise. At the same time, lockdowns, isolation and stress have exacerbated many of the underlying factors that contribute to extremism, while also making mental health matters more acute. Meanwhile, 2020 and 2021 were record years for the sale of weapons and ammunition. Americans are anxious, angry and well-armed — a combustible combination.
Another reason for fewer incidents of domestic terrorism during 2021 is that far-right extremists, both individuals and formal organizations, have likely been cowed by an aggressive law enforcement response to Jan. 6. To date, more than 700 individuals have been charged with federal crimes for their role in the insurrection. The city of Washington, D.C., has sued the Proud Boys and the Oath Keepers, seeking severe financial penalties. Given how paranoid many far-right extremist groups are about being infiltrated by law enforcement, many have gone underground and attempted to drop off the grid to avoid further entanglement with the authorities.
However, it would be a mistake to conclude that the problem has faded away. Though we haven’t seen the most visible signs of growing extremism, a more extreme climate is permeating our society, culture and politics. Far-right talking points about election interference and comparisons of public health officials to Nazis are now part of mainstream political dialogue among Republicans.”
“Trump’s unique role in sending extremism mainstream helps explain the most salient domestic terrorism we face in 2022: political violence by those who are convinced the 2020 election was stolen. Many of the calls for violence I’ve observed denigrate Biden’s presidency as illegitimate and refer directly to the falsehood that his victory was “rigged.” A University of Massachusetts Amherst poll revealed that nearly 71 percent of Republican voters still contest the 2020 election results, falling victim to Trump’s “Big Lie.” When almost three-quarters of a political party believe an election was stolen, and that party’s leader continuously reinforces the belief, it lowers the bar for violence.”
“To date, the vast majority of those charged with crimes stemming from the Jan. 6 insurrection, approximately 87 percent, do not belong to formal organizations. In fact, although these groups were busy organizing in the weeks before Jan. 6, the makeup of the rioters on the actual day was far broader. This means there is a massive throng of “free agents,” the most radicalized of whom have the potential to become “lone wolves,” while others may seek to join existing groups or opt to form new ones.”
“Perhaps the most notorious lone wolf terrorist is Timothy McVeigh, who was responsible for the 1995 Oklahoma City bombing that killed 168 people. McVeigh was the product of the far-right ecosystem of the 1990s, which was far smaller and less radicalized than the equivalent today. It’s certainly plausible that the next McVeigh (or McVeighs) could emerge from the murky online extremist landscape that is increasingly blending with mainstream politics.”