One of the most important lessons of the 2020 election is just how easy it would be for someone with a little bit more savvy to upend the constitution and prevent the peaceful transfer of power in the future. Democracies don’t always crumble as a result of violent revolution. It’s often done by manipulating the law and using intimidation to ensure compliance.
The most famous example is the German Enabling Act of 1933, also known as The Law to Remedy the Distress of the People and the Reich. That law allowed Adolph Hitler to enact other laws, including ones that violated the Weimar Constitution, without the approval of either parliament or Reich President Paul von Hindenburg, effectively making Hitler a dictator. Through some adroit maneuvering and the detention of certain members of the Parliament, he was able to gain the two-thirds majority required and the courts all went along with it. The rest, as they say, is history.
Donald Trump is no Hitler, of course. He is not that clever. But he does have some of the same impulses, particularly when it comes to seizing power.
This week we learned, through the new Woodward and Costa book “Peril,” that one of Donald Trump’s closest legal advisers, a law professor by the name of John Eastman, had prepared a memorandum to serve as guidance for the Vice President to overturn the election on January 6th. The memo laid out a six-point plan:
First: The Vice President begins the counting with the state of Alabama as usual.
Second: When Pence gets to Arizona, he sets the electoral votes aside under the premise that there was an alternate set of electors that had been submitted. Likewise, he also sets aside the votes of Pennsylvania, Georgia, Michigan, Wisconsin, Nevada and New Mexico under the false assertion that they too had sent alternate Trump electors. (They had not.)
Third: Pence then declares that the alternate states will not be included and since Trump then “won” the remaining votes, he has been reelected.
At that point he predicted the Democrats would “howl” and Pence would then compromise and decree that the vote could go to the House as the constitution allows in case of a tie. This would simply confirm a Trump victory since the Republicans controlled 26 out of 50 state delegations. Easy Peasy.
The remaining two points regarded commissioning Ted Cruz or Rand Paul to ensure that the filibuster remained intact so they could at least create a “stalemate” and allow states “more time to weigh in to formally support the alternate slate of electors.” (This explains the frantic calls by Rudy Giuliani and Trump even as the insurrection was in full effect to Senator Tommy Tuberville, R-AL exhorting him to “try to just slow it down so we can get these legislatures to get more information to you.”)
But most importantly, Eastman insisted that Pence not ask anyone for permission to do any of this and instead just declare that he had the authority and that was that. The course for Trump’s dictatorship would be set.
As we know, however, Pence dithered about all this before eventually asking former Vice President Dan Quayle what he should do. Quayle told him he had to follow the Constitution and perform his ceremonial duty as all previous Vice Presidents have done in this situation. (If his conscience didn’t already tell him that he needs to turn in his little American flag pin and enter another line of business.)
What we didn’t know until now was that this memo was circulated in January to some of Trump’s staunchest Republican defenders in Congress, Senators Lindsey Graham of South Carolina and Utah Senator Mike Lee, both of whom took it very seriously and had their top expert staff members look it over. They concluded that it was unconstitutional and in Graham’s words, “third grade.”
I guess we should be grateful that Trump’s lawyers were so lame because it’s quite clear that if they had been able to legally engineer this coup more professionally, people like Graham and Lee might very well have gone along with it. How do we know this? Because even though there was no evidence of voter fraud in the election, they didn’t dismiss the idea out of hand. They were apparently open to the idea that Pence really could overturn the election on January 6th. They’re both lawyers. They’re both conversant with the Constitution and, more importantly, with the concept of democracy in which the loser of the election accepts the results and bows out gracefully. And yet they didn’t object publicly to Trump’s Big Lie until thousands of rioters stormed the Capitol. Of course, there were dozens of other Republican officials also saying there were reasons to “investigate” and pushing various aspects of the Big Lie as well. But these two knew what Trump was trying to do and they said nothing.
The lawyer who came up with this mad plot, John Eastman, gave a speech at the insurrection rally that told the whole story. In fact, one might even suggest it was the primary inspiration for the riot. He said he had petitions before the Supreme Court and he babbled a litany of false voter fraud claims before ending with this:
All we are demanding of Vice President Pence is this afternoon at 1:00 he let the legislators of the states look into this so we get to the bottom of it, and the American people know whether we have control of the direction of our government, or not. We no longer live in a self governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done. And anybody that is not willing to stand up to do it, does not deserve to be in the office. It is that simple.
I don’t know if he believed that or if he’s just a Trump partisan willing to win by any means necessary. But it doesn’t really matter. This was a coup attempt. It was unsuccessful, but only because of the sloppiness with which it was put together, not because of the attempt itself. The Big Lie has since metastasized, largely at the hands of Republican officials who believe it will be useful to them in trying to regain power. Does anyone think that a more elegant “Enabling Act” wouldn’t be supported by most of them?
Trump’s greatest legacy may end up being that he was the fellow who showed Republicans just how dependent our democracy is on the goodwill and decency of the people who run it. He and his legal flunkies just left a roadmap for other unscrupulous authoritarians to follow.