“Just say that the election was corrupt + leave the rest to me and the R. Congressmen.’” — Donald Trump to the Acting Attorney General 12/27/20
Handwritten notes provided by the Department of Justice to the House Committee on Oversight and Reform show the former president pressing two top DOJ officials to declare the 2020 election corrupt. They would carry his water. Donald Trump and his allies on Capitol Hill would do “the rest.” The DOJ refused to play along.
Trump’s actions follow his pattern of pressuring others to allege corruption that he could point to and turn to his political advantage. Doing that on a call with Ukrainian President Volodymyr Zelenskiy led to Trump’s first impeachment.
The New York Times on Friday reported:
The demands were an extraordinary instance of a president interfering with an agency that is typically more independent from the White House to advance his personal agenda. They are also the latest example of Mr. Trump’s wide-ranging campaign during his final weeks in office to delegitimize the election results.
Typically, the Department fights to keep notes of presidential conversations secret, but in this case they involve potentially illegal efforts by Trump to subvert the 2020 election and that may have led to the Jan. 6 insurrection.
In a statement released by the committee, Chairwoman Rep. Carolyn B. Maloney (D-N.Y.) comments:
“These handwritten notes show that President Trump directly instructed our nation’s top law enforcement agency to take steps to overturn a free and fair election in the final days of his presidency,” Chairwoman Maloney said. “The Committee has begun scheduling interviews with key witnesses to investigate the full extent of the former President’s corruption, and I will exercise every tool at my disposal to ensure all witness testimony is secured without delay.”
The then-president referenced debunked claims about fraud and election irregularities and insisted (according to notes), “‘We have an obligation to tell people that this was an illegal, corrupt election,” even after officials told him his information was false.
No, Trump insisted in rubber-and-glue fashion, “These people who saying that the election isn’t corrupt are corrupt.”
Mr. Trump did not name the lawmakers, but at other points during the call, he mentioned Representative Jim Jordan, Republican of Ohio, whom he described as a “fighter”; Representative Scott Perry, Republican of Pennsylvania, who at the time promoted the idea that the election was stolen from Mr. Trump; and Senator Ron Johnson, Republican of Wisconsin, whom Mr. Trump praised for “getting to bottom of things.”
Mr. Jordan and Mr. Johnson denied any role in Mr. Trump’s efforts to pressure the Justice Department.
Perry did not respond to the Times’ requests for comment.
Trump’s “leave the rest to me and the R. Congressmen” suggest a conspiracy to overturn the election.
In May, Lawfare blog considered why the DOJ had not yet charged any Jan. 6 arrestees with seditious conspiracy:
Seditious conspiracy is an example of a “political crime,” a category reserved for crimes that threaten the very stability of the republic. The category’s importance is not the severity of the punishment; other charges can usually be marshaled to achieve an identical sentence. Charges for political crimes are symbolic: To shore up the state’s foundations, a political crime brands the criminals as outsiders of the political community whose movement has no role in civic dialogue. A political crime then is potent medicine. The challenge is to choose the narrowest political crime to limit side effects that can be fatal for democracy.
Seditious conspiracy is the wrong political crime to condemn the leaders of the Jan. 6 insurrectionists. A sedition charge could open up a Pandora’s box that would criminalize vast swaths of more mundane activity such as certain forms of radical protest, resisting arrest, prison riots or robbing a federal bank. To avoid this danger while still recognizing the uniquely heinous nature of the Capitol invasion, prosecutors should pursue the narrower and nearly novel political crime of “rebellion or insurrection.” Failing that and as a second best alternative, they should draw up the sedition charges very narrowly.
Some of the most respected voices in the national security law community have called for sedition charges. Lawfare editor-in-chief Benjamin Wittes has argued that the invasion “doesn’t border on sedition. It is sedition.”
But seditious conspiracy is a rare charge, Jacob Schulz wrote at Lawfare in February. A federal district judge in the Eastern District of Michigan threw out the charge when levied against members of the Hutaree militia in 2010. There is a high bar for proof. An 1887 Supreme Court decision in Baldwin v. Franks notes, “[F]orce must be brought to resist some positive assertion of authority by the government. A mere violation of law is not enough; there must be an attempt to prevent the actual exercise of authority.” For the charge to stick, a 1921 Eighth Circuit decision in Anderson v. United States added that any plan must involve “the exertion of force against those charged with the duty of executing the laws of the United States.”
So, potentially just simple conspiracy and/or other crimes, as Harvard Law professor emeritus Laurence Tribe explained Friday evening:
“Well, these contemporary notes by the acting assistant attorney general’s deputy are compelling evidence that the president was committing several different crimes,” said Tribe. “It was violating crimes relating to stealing elections, crimes relating to pressuring government officials to engage in political activity, violations of 18 U.S. Code section 610, violations of 18 U.S. Code section 2383.”
“But the point would really be not to simply enumerate a laundry list of crimes, but we know from firsthand evidence with the cooperation of the new Justice Department that is finally finding its sea legs that the president was engaged in an ongoing conspiracy to overturn the results of a free and fair election,” continued Tribe. “It was the leadup to the insurrection, puts the insurrection in context. It shows what his motives were in rallying people in this violent mob to sack the Congress. It was all part of a plan to say, I don’t care if there was no real corruption, just say there was, say the election was stolen, and then turn it over to me. That is criminal activity.”
That is Donald Trump. It’s what he does. With help.