The meatiest case against Trump - Part II

Why Garland decided to focus on the fake electors

Prosecutors love lynchpin evidence. Finding that one essential piece of evidence that ties everything together is the bearnaise that makes bacon-wrapped filet mignon stuffed with mushroom duxelle a culinary masterpiece.

In the days preceding January 6, 2021, Donld Trump was trying to get Georgia election officials to invent votes, attempting to have the Department of Justice cast doubts on the election outcome, and have Vice President Mike Pence agree to stop the certification of Joe Biden as the next President.

The violence that ensued after Trump’s rally at the Ellipse¹ on January 6th was more incidental than fundamental to Trump’s failed coup. In addition, had Pence gone along with Trump’s plan or Acting Attorney General Jeffrey Rosen backed up Trump’s “Big Lie”, Donald Trump’s forays into rigging Georgia’s election result wouldn’t have been necessary.

All Donald Trump really needed to remain in power was the illusion of an election in doubt. Competing slates of state electors — the actual ones and the contrived ones composed of Trump loyalists — from Arizona, Georgia, Michigan, Nevada, Wisconsin, New Mexico, and Pennsylvania.

And that plan, according to memos² leaked to the New York Times, began in earnest on November 18, 2020 — 15 days after the election and amidst election result challenges. Lawyer Kenneth Chesebro sent a memo to James Troupis, who was handling the election challenges in Wisconsin, outlining a legal game plan to put in alternate electors to Biden electors in states where the results were being challenged.³

But it’s hardly accurate to say that the fake elector scheme was born with that memo nor is it accurate to say that the fake elector scheme was simply a means to buy time to effectively challenge the election. The fake elector scheme was being pushed as early as November 4, 2020⁴ to controvert the election outcome by ignoring the results and simply putting in Republican electors committed to Trump.

The fake elector scheme spread like wildfire within the political Right — even drawing Ginni Thomas⁵, wife of Supreme Court Justice Clarence Thomas, to join the push for GOP state legislators to go along with the scheme.

By the time Thanksgiving was over, attorney John Eastman had sauced up the scheme enough to whet the appetites on Donald Trump and numerous people in the White House, including Trump’s Chief of Staff Mark Meadows. Eastman’s memo looked good on paper⁶, but seasoned litigators in criminal law saw Eastman’s strategy for what is actually was — a crime and a sure fire path to disbarment.

Merrick Garland’s approach to the January 6th Insurrection has been to prosecute to the lawlessness of that dark day and concomitantly go after the the impetus to the violence — the fake elector scheme.

And while pictures and video have enabled Garland and the Department of Justice to put hundreds of people in jail over the attack on the Capitol; memos, texts, and meeting notes will likely jail more over the fake elector scheme.

The political Left and Democrats have generally been frustrated by Garland and the DOJ not charging Trump and those politically connected to him for January 6th. The failure of idealists on the Left to see that without lynchpin evidence or witness testimony to connect Trump and company to January 6th won’t produce a ring-fenced case is hardly stunning.

Some realism is necessary. The demand for pardons by Members of Congress⁷ after January 6th was about the fake elector scheme not about the Insurrection itself.

1. https://en.wikipedia.org/wiki/The_Ellipse

2. https://www.thedailybeast.com/leaked-memos-show-trump-lawyers-pushing-to-replace-state-electors-before-jan-6

3. https://www.nytimes.com/2022/02/02/us/politics/trump-jan-6-memos.html?unlocked_article_code=d5-c7HuRsPwyspEY2At6526k0yCeELoz138U3M0RJ4bl1u11UNgFPXgq7W2iDkXh5uFNhTeXjoeqMvUxvkdtTMQ4BmKoSaOKHhtWH2_5v-2OZ4Qsa2AZfngJWYOb-ql1diJov6WYHSbo52NdtQPWWMYNwDHM0fLZQEZaApikgfMvqFrEStWZc31hXcd1OSz4Yp2cY2RX8SLdgpoZoke47XQYKiR5YZYnkUHBjK_0F7j0TiRnw74mV0p6M4GSJLFnJMF795yyspFBaaMmZKtsbHX7dKZeWhugGPZcsd59yemKQOzaHd3uFtsZGxv08vuQ5YIY9yi8JG82V7w68iGO&smid=share-url

4. https://www.justsecurity.org/81939/timeline-false-alternate-slate-of-electors-scheme-donald-trump-and-his-close-associates/

5. https://www.washingtonpost.com/investigations/2022/06/10/ginni-thomas-election-arizona-lawmakers/

6. https://www.justsecurity.org/wp-content/uploads/2022/06/january-6-clearinghouse-eastman-memo-to-white-house-november-28-2020.pdf

7. https://www.npr.org/2022/06/23/1107192874/republicans-trump-pardons-jan-6