The Unlearned Lessons of January 6th
Joseph Stieb, “The Unlearned Lessons of January 6th,” The Vital Center 1, no. 1 (Fall 2023): 50–58.
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The Founders understood that the only permanent barrier to tyranny was an engaged and virtuous citizenry devoted to a constitutional system that restrains power and ensures its peaceful transition between political foes. That the January 6 Report landed with little more than a ripple in our politics suggested that this bulwark is faltering as well.
John F. Kennedy once quipped, “Domestic policy can only defeat us; foreign policy can kill us.” If Kennedy was ever right about this, and I have my doubts, he is dead wrong today.
For reasons that will soon become clear, Donald Trump’s attempt to subvert the 2020 election, culminating in the January 6 insurrection at the Capitol, posed a greater threat to the constitutional order than anything Russia or China could muster. This is an alarm bell to which Americans must pay more attention.
Important legal steps have been taken to punish the lawyers who devised Trump’s scheme to overturn the election as well as the hundreds of actual violent insurrectionists. There remain in place, however, key political conditions for an attempt to subvert future elections. For one, Trump remains at the head of the 2024 GOP primary field, polling over 40 points ahead of his nearest rival, Ron DeSantis. And DeSantis has not only refused to condemn the riot but said that he might pardon January 6 insurrectionists, including Trump himself. Trump remains unapologetic about his actions and continues to claim that only fraud prevented him from winning in 2020.
The GOP has taken to whitewashing if not lionizing the insurrection. Its leadership failed to hold Trump accountable for orchestrating the insurrection in January 2021, when it could have permanently barred him from holding office. Instead, the party has censured and exiled those, like Liz Cheney and Adam Kinzinger, who told the truth about January 6 and tried to hold Trump accountable. Polls tell a dismal story: 27 percent of Republican primary voters outright approve of the riot, 54 percent think it was a form of “legitimate political discourse,” and 61 percent believe Biden did not win the 2020 election legitimately. The failure to take January 6 seriously is not confined to the right. Polling from last summer suggests that the January 6 hearings barely shifted public opinion on the insurrection. Trump’s approval ratings consistently outmatch Biden’s; there are many reasons to criticize Biden’s presidency, but he does not threaten the constitutional order itself. Fewer than half of Americans believe Trump bears “a lot” of responsibility for January 6, and 44 percent believe the country is making too much of January 6 and needs to move on.
This last data point shows a fundamental misunderstanding of this event. The January 6 Report and other excellent books show that without Trump’s words and actions, the seizure of the Capitol almost certainly would not have happened. This same report documents, moreover, how the far-right militia members and conspiracy theorists who led the insurrection responded directly to his tweet on December 19 calling supporters to Washington D.C. for January 6. Extensive grassroots efforts to organize mass protests on that date began only after Trump’s prompting (Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol, 404–32). His top Cabinet officials did not urge Trump to launch this campaign nor did they involve themselves closely in it, although figures like Secretary of State Mike Pompeo reinforced his baseless claims of fraud in public. The impetus for January 6, in short, came from the top.
Many Americans, not just Trump’s supporters, appear to view January 6 as a single, isolated incident, when it was in fact the culmination of a systematic effort to overturn the election that started immediately after Biden’s victory. As Greg Jacob, a legal advisor to Mike Pence, stated, “The reason the Capitol was assaulted was that the people who were breaching the capital believed that […] the election had not yet been determined, and, instead, there was some action that was supposed to take place in Washington, D.C., to determine it” (Final Report, 396). No one was more essential in creating that false belief than President Trump.
By looking at January 6 not as an event but the climax of a months-long campaign of fraud, arm-twisting, and provocation, this article pinpoints several close calls between November and January of 2020–2021 that, had they taken different directions, could have led to a full-blown constitutional crisis. In doing so, it highlights key vulnerabilities in the American political system that leave the door open to future coup attempts.
The Department of Justice Joins Trump’s Coup
Trump’s attempt to overturn the election was not merely about spreading disinformation and hoping events turned his way. Instead, he sought to use federal and state actors and bureaucracies to support his efforts. The Department of Justice was one such battleground. To his credit, Attorney General Bill Barr repeatedly told Trump in November and December 2020 that the Department of Justice had found no credible evidence for his claims of electoral fraud. Trump grew “irate” at Barr, who resigned on December 14 (Final Report, 326–30).
Jeffrey Rosen then became Acting Attorney General, and Trump immediately pressed him to investigate dubious accusations of fraud. Trump told Rosen, “just say the election was corrupt and leave the rest to me and the Republican Congressmen.” This was a reference to Trump’s plan, devised by his lawyer John Eastman, to have the states send false electoral slates to Congress, enabling the vice president on January 6 to declare that the election’s results were contested. This would kick the election to the House of Representatives for a vote by state delegation, where the GOP had a 26-24 edge (Final Report, 338).
Rosen resisted this pressure, but unscrupulous opportunists sought to seize the moment and enlist the DOJ in Trump’s campaign. Republican Congressman Scott Perry introduced Trump to Jeffrey Clark, then the Acting Head of the Environmental and Natural Resources Division. Despite Clark’s lack of expertise in election law, he told the president that if he was appointed Attorney General, he could get the DOJ to support the president’s claim that the election was stolen.
On December 28, Clark drafted a letter he hoped to send to officials in contested swing states saying that the DOJ was “investigating electoral irregularities,” including foreign interference, and that these states should hold special sessions to consider evidence of fraud (Final Report, 342). This might lead, he and Trump hoped, to those states changing their electoral votes for Biden or sending competing slates of electors. The January 6 Report notes that Trump and acolytes like Rudy Giuliani had been pressuring state officials to do the same for weeks, but the imprimatur of the neutral, upstanding DOJ would carry much more weight (p. 343).
Such a letter, the Report’s authors note, could have “provoked a constitutional crisis” in which state legislatures attempted to de-certify their own electoral results. Fortunately, Rosen and his Deputy Richard Donoghue refused to support this letter, which Donoghue said “would be a grave step for the Department to take” that could have “tremendous Constitutional, political, and social ramifications” (p. 344). Rosen continued to resist Trump’s dangerous proposals, including a request for the DOJ to seize voting machines from the states. A stymied Trump then offered the accommodating Jeffrey Clark the position of Acting Attorney General. Rosen and Donoghue confronted Clark, who said that he would decline this offer if they agreed to sign his dubious letter to the states (pp. 348–49). They refused, but Clark decided to accept the president’s offer anyway.
This showdown culminated in a 3-hour meeting with Trump, Rosen, Clark, Donoghue, and other lawyers in the Oval Office on January 3. Every lawyer in the room besides Clark, along with a roster of assistant attorneys general, said that they would resign en masse if Trump replaced Rosen with Clark. This threat sufficed to deter Trump, keeping Rosen in office and preventing Clark from enlisting the DOJ as an arm of Trump’s campaign to overthrow the election (Final Report, 350–52).
As Rosen later testified, Trump wanted the DOJ to take a host of actions that could have thrust the United States into constitutional crisis: appointing a special prosecutor, sending letters to states disputing the election’s outcome, publicly stating that the election was corrupt, and filing cases in the Supreme Court on behalf of the Trump campaign (p. 355).
That the DOJ did none of these things, however, should prompt no sighs of relief. The professionalism and integrity of Barr, Rosen, Donoghue, and many other DOJ lawyers prevented Trump from using this agency to overturn the election. They were all Trump appointees, and they could have acted otherwise in order to save their careers or bolster their conservative bona fides. Trump himself could have easily called their bluff, appointed Clark as Attorney General, and weaponized the DOJ. A compliant GOP and right-wing media, which parroted his lies through the transition period, would have most likely backed this move and run interference for Clark and Trump.
“Donald Trump’s attempt to subvert the 2020 election posed a greater threat to the constitutional order than anything Russia or China could muster.”
Indeed, Trump and his most fanatical henchmen tried to purge his administration of anyone willing to contest his abuses. Cybersecurity and Infrastructure Security Chief Chris Krebs, for example, tweeted that claims of electoral malfeasance in Antrim Country, Michigan, were not valid, and Trump fired him the same day (Final Report, 242). Trump relied on Johnny McEntee, the 29-year-old Director of the Presidential Personnel Office, to monitor and purge members of the White House Staff who showed the slightest disapproval of Trump. In this position, McEntee was responsible for vetting ambassadors, cabinet secretaries, and top intelligence officials.
McEntee’s team identified high-ranking officials, including Defense Secretary Mark Esper, for termination because of their shaky loyalty to Trump. Wholeheartedly embracing the “Stop the Steal” conspiracy, he drafted dubious legal memos arguing that Pence had the authority to simply declare Trump the winner of the election.
In May 2023, McEntee joined Project 2025, the Heritage Foundation’s Presidential Transition Project for “the next conservative presidential administration,” presumably a Trump administration. In this role, he will help collect resumes and vet political applicants. He describes Project 2025 as “the flagship effort to take back our country” and “confront the Deep State.” A key lesson of Trump’s near-miss failure to use the DOJ to subvert the election is that a future Trump administration (or that of someone seeking to emulate him) will likely be filled with loyalists and fanatics, more Clarks and McEntees than Rosens and Donoghues. This makes it all the more probable that an attempt to use the DOJ or another federal agency such as the Defense Department to overturn an election will succeed where this one faltered.
Swing State Legislatures Send Fraudulent Electoral Slates
A key part of Trump’s effort to overturn the 2020 election was his pressure on state legislators and election officials to endorse his claims of fraud and overturn their states’ results. The notorious January 2 phone call to Georgia Secretary of State Brad Raffensperger, in which Trump asked him to “find 11,780 votes,” was the tip of the iceberg.
After a state certifies its election results and announces a winner, it issues a certificate of ascertainment featuring the names of the duly chosen state electors. All fifty states have decided by law that the popular vote will determine their electors (Final Report, 261).
Trump’s team embraced the incorrect theory that because state legislatures had the constitutional authority to decide how electoral college electors are chosen before the election took place, they could simply choose Trump/Pence electors after the election results came in, based on false accusations of fraud. John Eastmann, once again, devised this theory in a memo entitled “The Constitutional Theory of State Legislatures to Choose Electors” (pp. 262–64).
Following this dubious theory, the Trump team “engaged in at least 200 apparent acts of public or private outreach, pressure, or condemnation” directed at state legislators or election officials (Final Report, 267). They tried to get state legislators to ignore vote counts and hold special legislative sessions to appoint Trump electors to vote in the electoral college. This could lead to either false or competing slates of electors being sent to Washington, D.C. On November 25, he called into a meeting of GOP state legislators in Pennsylvania to tell them “this election has to be turned around […] certainly overturn it in your state” (p. 273). Trump and Giuliani called Arizona House Speaker Russell Bowers and Georgia Governor Brian Kemp to pressure them to publicly endorse claims of fraud and hold a vote to decertify their states’ election outcomes (pp. 284–85). According to a Trump campaign staffer’s spreadsheet, the campaign tried to contact over 190 Republican state legislators in Arizona, Georgia, and Michigan (p. 277).
Trump openly accused a number of officials and legislators of fraud, and his attacks prompted threats against these individuals. Pennsylvania Senate Majority Leader Mike Shirkey received over four thousand hostile text messages after Trump tweeted his personal cell number on January 3 (p. 279).
On December 14, individual state legislators in seven states met to produce fake electoral slates, falsely claiming to be “duly elected and qualified Elector.” This was the same day certified electors met to cast their electoral votes for the candidate who won their state’s popular vote (Final Report, 317).
Nonetheless, this effort to disenfranchise millions of Americans and illegally reverse electoral results failed for several reasons. For one, these efforts came too late, as state legislators could not go back and de-certify already established electoral results. They were also procedurally illegitimate, as their statements had not received certificates of ascertainment and, in most relevant states, only the governor could convene a special legislative session to revisit election results (p. 317).
Once again, the integrity of many state and local lawmakers and officials, including numerous Republicans, was crucial to preventing this scheme from gaining ground and possibly contributing to a constitutional crisis. No state legislature or governor agreed to the president’s demands to appoint a pro-Trump slate (Final Report, 306). But they could have chosen, as people like Pennsylvania State Senator Doug Mastriano did, to embrace Trump’s scheme, parrot claims of fraud, and try to hold special legislative sessions to approve “alternative” slates of electors. Such confusion would have further undermined public trust in the electoral system and possibly given the vice president an opening to refuse to certify the election’s results on January 6.
Since then, the GOP has sought to root out principled public servants and sow the electoral system with ideological loyalists. These efforts have met with mixed successes but are still concerning. The Center for American Progress assessed that although three hundred election deniers appeared on local, state, and national ballots around the country in the 2022 midterms, voters in key battleground states “ultimately shunned election denialism when voting for offices with a responsibility to administer or oversee elections.” Brad Raffensperger defeated a Trump ally and retained his position in the 2022 midterms, and prominent election deniers like Mastriano and Kari Lake lost their respective elections.
However, other candidates who embraced election fraud claims have won races for local electoral offices or been appointed to such offices, particularly on county canvassing boards charged with certifying electoral results. Right-wing groups, with the GOP’s support, are recruiting tens of thousands of people into poll-watching operations that are poised to harass officials and voters while spreading disinformation. The Michigan GOP has developed a formal plan to insert partisan poll workers who will be linked to attorneys who can intervene instantly to challenge ostensible irregularities. Steve Bannon, a former advisor to Trump, summarizes these efforts as the “precinct strategy.”
Meanwhile, Republican-controlled state legislatures are pursuing greater authority over the conduct of elections. This includes extensive efforts to restrict access to voting and legislation that empowers partisan officials to challenge or reject election results. Georgia, for instance, passed a law that removes the Secretary of State as the chairman and voting member of the State Election Board, which investigates potential fraud and now has three Republicans and one Democrat. A GOP bill in Arizona, which died in committee, would have given the state legislature the authority to change the certification of presidential electors by a simple majority vote, a proposal that would have written the Trump team’s fantastical theories into state law.
“The pressure campaign on Pence, and the reckless legal theory behind it, showed another weakness in our electoral system.”
Jeff Timmer, the former chair of the Michigan Republican Party, stated that “the officials who fulfilled their legal duty after the last election are now being replaced by people who are pledging to throw a wrench in the gears of the next election.” This movement to corrupt the electoral system has not just bubbled up from the base but trickled down from the federal level. Nothing illustrates this more than the 139 House Republicans who formally objected, on no evidentiary grounds, to the certification of Arizona and Pennsylvania’s electoral results on January 6 (eighty-two Republicans voted to certify).
The news on this front is not all bad. Overall, the GOP’s embrace of election denialism appears to have alienated many moderate voters. Many Republicans believe that election conspiracism is hurting the party and that a shift to other issues is warranted. In Michigan, sixteen Republican state legislators have been charged with felonies such as forgery for falsely portraying themselves as legitimate electors in order to help Trump. Moreover, in the 2023 case Moore v. Harper, the Supreme Court negated the “independent state legislature” theory, which holds that state legislatures had broad, uncontestable authority to regulate federal elections. State legislatures, the Court ruled, are subject to judicial review of the laws and regulations they pass regarding elections. As David French argues, this decision “strips away the foundation of GOP arguments that the [2020] election was legally problematic because of state court interventions.”
Nonetheless, the 2020 election demonstrated that there is ample room for state officials and legislators to spread disinformation and insert chaos into our electoral system. This remains a vulnerability as future elections loom.
Pence’s Refusal to Play Along
As the Trump team pushed forward in its attempt to subvert the 2020 election, they increasingly centered on the role of the Vice President certifying the election. The Constitution states that the Vice President will “open all the certificates and the votes shall then be counted.” This has long been interpreted as a merely ceremonial role for the Vice President as President of the Senate.
Eastmann, Kenneth Chesebro, and other Trump lawyers, however, argued that the Constitution empowered the Vice President “not just to open the votes, but to count them—including making judgments about what to do if there are conflicting votes” (Final Report, 308). If Pence received competing slates of electors on January 6, Trump’s lawyers posited that he could require the states to reconsider their votes after further investigations, kick the election to the House to decide, or even simply declare Trump the winner (p. 320, 363). As Eastman audaciously argued, Pence was “the ultimate arbiter” who could actually throw out the electoral college votes of seven states that Biden won. “Pence then gavels President Trump as re-elected,” he wrote (pp. 361–62, 375).
This was hardly a serious legal argument, as Eastmann himself had rejected it before the 2020 election (p. 362). Still, it provided a pretext for Trump to pressure Pence in the weeks before January 6, including numerous tweets and heated meetings on January 4 and 6 in which he harangued Pence, even calling him a “p----” for refusing to do so (p. 374, 386–88).
It is crucial to connect this pressure campaign to the violence on January 6. Trump called for a rally precisely on the date that his Vice President would be certifying the vote and incited a mob to march on the Capitol. He added criticism of Pence, which speechwriters had left out, to drafts of his speech to the Stop the Steal rally on the morning of the 6th (Final Report, 449–51). As the rioters descended upon Capitol Police and forced the evacuation of Pence and the Congressional leadership, Trump not only refused to protect Congress but tweeted that “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.”
An angry mob challenges the nation’s authority: A tax collector ridden out of town on a rail amid the Whiskey Rebellion.
On the ground, numerous leaders of the insurrection understood themselves to be pressuring Pence specifically to reject the election’s results. Three Percenter Lucas Denney, for example, wrote on Facebook on December 30 that “Trump has called for this himself. For everyone to come. It’s the day the electoral college is supposed to be certified by Congress to officially elect Biden. But, Pence is in charge of this and he’s going to throw out all the votes from States that were proved to have fraud” (p. 424).
While Pence had defended Trump doggedly for years, in this case he stood up to the president and refused to decertify the election. He and his advisors recognized that this was not within his constitutional authorities and that it would undermine popular faith in the electoral system and possibly lead to violence (Final Report, 379–81). He released a statement on January 6 reaffirming that “I do not believe that the Founders of our country intended to invest the Vice President with unilateral authority to decide which electoral votes should be counted […] and no Vice President in American History has ever asserted such authority” (p. 392).
It may be harder in future elections to execute a coup via the Vice Presidency, as Trump sought to do in 2020. Congress in 2022 reformed the Electoral Count Act to specify that the Vice President’s role in electoral proceedings is completely ceremonial. These reforms also identify the state-level officials who will submit the electoral slates, provide for expedited judicial review of claims about a state’s electoral certificates, and raise the threshold to object to electors to one fifth of the House and Senate rather than a single member being able to raise objections.
Nonetheless, the pressure campaign on Pence, and the reckless legal theory behind it, showed another weakness in our electoral system that we did not even know we had. Seemingly ceremonial duties can be targeted for politicization, potentially sowing chaos in the transition of power. Had Pence wavered under the pressure of Trump and the mob or had less principled advisors, he could have sparked a constitutional crisis by declaring Trump the victor or kicking the election over to the House or the states. This was not a far-fetched scenario. While the January 6 Report portrays Pence as never wavering from his constitutional duty, Bob Woodward reported that Pence called former Vice President Dan Quayle and “asked if there was anything he could do,” telling Quayle, “you don’t know the position I’m in.” Quayle fortunately confirmed that Pence had no wiggle room on his role for January 6, and Pence stuck to that position. As the GOP isolates principled moderates and promotes fanatical loyalists, the possibility of a sitting Vice President going along with presidential plotting becomes increasingly concerning. Mike Pence did his duty on January 6, 2020, but could we trust Vice President Kari Lake to do the same in January of 2028 following a Trump victory in 2024?
Trump Joins the Rioters
Most of the dark scenarios outlined above depend on the manipulation of complex electoral law and the promulgation of unfounded legal theories. This is not so for one additional close call, one which we now know was a distinct possibility: What if Trump had gotten his way and marched to the Capitol to support the insurrection?
Thanks to the courageous testimony of Cassidy Hutchinson and others, we know that Trump wanted to drive to the Capitol in support of the crowds flocking there. He was seated in his motorcade vehicle at 1:17 pm, and he argued with aides and Secret Service members who told him it was too dangerous to go to the Capitol. A Secret Service agent testified that Trump was “animated and irritated” at not being able to join his supporters (Final Report, 454–60).
Once again, responsible adults held the line against Trump’s worst impulses, although numerous aides failed for three hours to get him to tell the rioters to go home. Again, things could have been different. Aides could have caved to his desires, or Trump just could have pushed ahead with moving to the Capitol. This would have raised the spectacle of Trump joining an insurrectionary mob as they assaulted a co-equal branch of government in the process of executing its constitutional responsibility. An image of Trump wading through the mob and egging them on in person truly baffles the mind, and it easily could have escalated the violence of January 6 to unprecedented degrees.
Conclusion
The January 6 Report nearly exhausts its reader with the relentless single-mindedness of Trump’s campaign to subvert the 2020 election. Trump signaled that he would do this in advance of the election, kickstarted the effort as soon as Biden was declared the winner, persisted despite losing dozens of court cases, ignored more reasonable advisors who told him the claims of fraud were untrue, switched to more mendacious advisors and courtiers, and pursued a multi-pronged attempt to subvert the will of the American people.
In the course of this campaign, he stomped on a host of norms that have undergirded our constitutional system for centuries. The most consequential of these were the orderly transfer of power between political rivals and the system of checks and balances that prevents undue concentrations of power. That he would try something like this was absolutely foreseeable, given his low character, ignorance, and willingness to trample any norm that stood in his way.
The Framers of the Constitution understood that legal structures alone could not save the republic from extremist political movements. In Federalist 48, James Madison noted that “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” In a democracy, the legislature’s “impetuous vortex” threatened to undercut the other branches, whereas in monarchies the executive was the true menace. The larger point, though, was that laws were mere “parchment barriers” if the human beings who operate the government acted in direct contradiction to the spirit of the law or failed to exercise proper restraints against the encroachments of other branches.
There are many possible legal and technical fixes that can help prevent a future January 6, but the focus on structural flaws can only do so much. The Founders understood that the only permanent barrier to tyranny was an engaged and virtuous citizenry devoted to a constitutional system that restrains power and ensures its peaceful transition between political foes. That the January 6 Report landed with little more than a ripple in our politics suggested that this bulwark is faltering as well. If the January 6 campaign proves to be a mere prelude to something far worse, we cannot say we weren’t warned.
