Trump’s Undoing
The title of “Loser” was always an anathema to Donald J. Trump. Thus, in June 2020, when he found himself trailing in the polls and sensing that a victory in the upcoming election was slipping away, he began spreading the notion that the only way he could lose was if the election were stolen. While this was an instinctive reaction on his part, it led to a series of misjudgments that ultimately placed him in his current precarious situation.
At that time, the nation was in the grip of the Covid pandemic and even the medical experts were still unsure how the virus was being transmitted. This meant that most Americans were going to be reticent to wait in long lines to cast their ballots and would gladly opt to vote via the U.S. Mail. Thus, it was fully understandable that many states began to relax their procedures for accepting mail ballots. This prompted Trump to make his first tactical error. He attacked the use of mail ballots, warning that they were inherently susceptible to foul play. While this fit nicely into his narrative of a stolen election, he was seemingly unmindful that this warning would be more likely to discourage his own supporters from using mail ballots than Democratic-leaning voters. As a result, when the votes were ultimately counted Trump found himself more than 7 million votes behind Joe Biden and, more importantly, 74 electoral votes behind. As a face-saving endeavor (and to raise monies from his loyal supporters), he immediately began trumpeting that he had actually won the election (“the Big Lie”) and was prepared to prove it.
Not being someone who accepts defeat graciously, Trump also demanded recounts in major metropolitan areas in the five swing states that Biden had won. With his Big Lie gaining traction on right-wing media outlets and among Congressional Republicans, Trump tried to utilize his personal powers of persuasion to convince state election officials in swing states to declare him the winner in their states. Most notably, he called Brad Raffensperger, the Secretary of State of the State of Georgia, and asked him to find another 11,780 Republican votes. This faux pas is now coming back to haunt him as Fani Willis, the Fulton County (Georgia) District Attorney, is now poised to indict Trump for tampering with the election process in her state.
In addition, Trump dispatched his team of attorneys, headed by Rudy Giuliani, to contest the elections in those election districts with large “black” populations. In total, his campaign initiated 67 lawsuits of which 66 were dismissed. The remaining suit only resulted in altering the procedures for conducting the recounts and did not alter the outcome of the election in that district. While these machinations did help Trump to raise monies from his loyal supporters, they also caused four of Trump’s attorneys to be disciplined for having made unsupported accusations to the courts.
In another effort to reverse the outcome of the election, Trump retained the services of John Eastman, a former constitutional law professor and dean at the Chapman University School of Law. Eastman came up with a plan that might enableTrump to overturn the results of the election. He counseled that Republican-controlled legislatures in four of the five swing states won by Biden (Arizona, Georgia, Michigan andPennsylvania) had the legal authority to simply set aside the popular votes in their states and designate Trump as the winner. This scheme never got off the ground as state legislators were not inclined to ignore the election results in the absence of clear evidence of foul play.
A follow-up plan was suggested by Jeffrey Clark, the Assistant U.S. Attorney General for Environmental and Natural Resources. Clark proposed that the DOJ send letters to the legislatures in each of the four battleground states noted above advising them that the DOJ had indeed uncovered evidence placing in question the outcome of the election in their states. These letter would then be used to convince the legislatures in those states to set aside the vote tabulations and simply declare that Trump had won. The problem was that the DOJ had already investigated all of the claims of fraud and concluded that none would have supported a change in the outcome of the election, a finding that had been related to Trump by Attorney General Barr shortly before he had resigned. Clark nevertheless volunteered that if he were installed as Attorney General we would issue such letters. Although Trump was inclined to proceed in this fashion, he was ultimately dissuaded from doing so when an unspecified large number of DOJ officials threatened to resign en masse if he did.
Another Trump legal advisor, Kenneth Chesebro devised a plan to have the legislators in those states create alternative slates of Trump electors (referred to as the “Fake Electors”) and submit those slates to the Congress when it convened on January 6th to certify the election of the new president. These conflicting slates of electors would give the Vice President an excuse to remand the determination of the winner back to the respective state legislatures. The problem was that Vice President Pence, after consulting with others, concluded that the vice president’s function was strictly ceremonial and that he lacked the authority to reject the votes of one or more states and thereby alter the outcome of the election.
At this point Trump could have simply accepted his defeat and avoided criminal prosecution as it was unlikely that any legal action would be taken against him. President Biden was focused to reuniting the country and trying to achieve a level of bi-partisanship within the Congress in order to pass a plethora of legislation needed to save Americans from the continuing ravages of the pandemic and restoring the nation’s economy(see, “What To Do About Donald”). To Biden, any legal action against Trump would have only served to prevent him from achieving his objectives. A further problem making any legal action unlikely was Trump’s MO of getting others to do his bidding. That added to the difficulty of attributing any of the wrongful action to him. Even though there was a recording of his telephone conversation with Brad Raffensperger, it was unlikely that Fulton County DA Fani Willis would have taken action against him. “No Harm, No Foul.”
The problem was that Donald Trump is not a rational being; he’s driven by his mental demons to never accept defeat. Accordingly, since the Vice President could not be convinced to that he had the Constitutional authority to do what Trump and his advisors were encouraging him to do, Trump reverted to his usual alternative strategy. He would try to intimidate the Vice President to accede to his wishes. To this end, he used his social media platform to invite his supporters to come to a rally (dubbed the “Stop-the-Steal” rally) on the Washington Mall on January 6th, the day that the Congress would be meeting to certify Biden’s election. He concluded that invitation with “Be There, Will Be Wild”.
Just to make sure that this show of force would be sufficiently intimidating, he arranged that right-wing paramilitary groups (some of which would be armed) would be participating. They would not simply remain at the site of the rally, but with Trump in the lead, they would march down Pennsylvania Avenue and lay siege to the Capitol. To this end, Trump and a handful of his co-conspirators incited the assembled attendees by admonishing them that the future of their nation was at stake and that they were going to have to “fight like hell” to save it.
Even this most brazen effort to prevent the certification of President Biden’s election failed. Trump’s secret service detail would not take him to the Capitol because they could not protect him there. More importantly, the Capitol and Municipal Police officers fought valiantly to hold off the attackers, allowing the members of the House of Representatives and the Senate to take refuge in secure areas within the Capitol. Three hours later, when it became evident that the attackers could not fulfill the mission he had intended for them, Trump relented and called off their attack.
Still, by any standard, the January 6th attack on the Capitol was a game-changer. This alarming event ultimately resulted in criminal charges being instituted against over 1,000 of the participants in that attack and there were calls that those responsible for putting the attack in motion should be similarly charged. Congressional leaders from both sides of the isle immediately condemned the attack. Even staunch Trump supporters in the Congress, like House Minority Leader Kevin McCarthy, Senate Majority Leader Mitch McConnell and Senator Lindsay Graham, unhesitatingly condemned Trump as well as those who responded to Trump’s calls to take back their government.
The outrage expressed by most Republicans, however, was short-lived. Recognizing that Trump still held the support of a majority of Republican voters, they quickly resumed their support for Trump as well as those from whom they had fled in fear just a few days before. Some even characterized the attackers as mere sightseers wandering through the halls of Congress and Kevin McCarthy made a hasty trip to Mar-a-Lago to renew his vows with Trump. Trump, in turn, reciprocated by calling McCarthy “My Kevin” as if he had taken title to McCarthy in a real estate deal.
By contrast, House Democrats were quick to pass a resolution seeking Trump’s immediate impeachment for arranging and inciting the attack. Senate Majority Leader McConnell, however, postponed the Senate’s consideration of the impeachment resolution until after President Biden had been inaugurated. This gave Trump time to mend his relationships with enough Senate Republicans to prevent them from voting to remove him from office. From Trump’s perspective, the failure of the Senate to vote for his removal was a victory. Still, it was yet another faux pas in that had the Republican members of the Senate acquiesced in Trump’s removal, he might have avoided the criminal prosecution which he is now facing.
Nancy Pelosi, then Speaker of the House, called for the creation of an independent commission to investigate the event. That proposal was blocked by House Republicans (probably at Trump’s urging), forcing Pelosi to call for the creation of a “Select Committee” to carry out this task. Also, presumably atTrump’s urging, Kevin McCarthy sought to frustrate this move by nominating five House Republicans who were poised to disrupt the Committee’s investigation. Three of them (Representatives Jim Banks, Jim Jordan and Roy Nehls) had voted not to confirm Biden’s election and Jordan was reported to have been involved in the planning of the attack on the Capitol. Banks, whom McCarthy had designated to be the “Ranking Republican” on the Committee, immediately issued a statement saying that he wanted the Committee to investigate the George Floyd protests as well as the attack on the Capitol. Realizing the havoc that these individuals were determined to cause, Pelosi rejected them and instead appointed two Republican House Members, Liz Cheney and Adam Kinzinger to serve on the Select Committee.
This was yet another pivotal misstep. Had McCarthy nominated less obvious Representatives to serve on the Committee, they could have gone on to completely prevent the Select Committee from unearthing Trump’s efforts to alter the outcome of the election. With the appointment of Representatives Cheney and Kinzinger, however, the Select Committee would still be perceived as being bi-partisan. More importantly, all of Committee’s members would be truly intent on analyzing both the nature of the attack on the Capitol as well as the events leading up to it. Both Cheney and Kinzinger had not only voted in favor of Trump’s impeachment (which is no more than one would expect of any member of Congress who was driven by an angry mob out of the House meeting chamber and into hiding), but they were now being targeted by Trump who was determined to put an end to their tenure in the Congress. As more fully explained below, this was also a mistake that would come back to haunt Trump.
As the Select Committee embarked on its investigation, Merrick Garland, the newly-appointed Attorney General, began to identify, arrest and indict those who had actually breached the Capitol. In doing so, he vowed to also hold accountable all persons who had helped plan and/or coordinate the Capitol attack. Despite this vow, the Attorney General did little or nothing for the next 20 months to investigate any individuals other than those who had actually participated in the attack. Thus, it appeared that the Artful Donald would once again avoid accountability for his misdeeds.
The Select Committee did not even begin its efforts until the late summer of 2021 and its progress was slow. Some witnesses refused to testify and others were highly reluctant to do so and provided little useful information. It was almost a full year before the Committee even began to hold hearings, which were more like presentations of its findings. Those hearings vividly showed how the crowds that had assembled at the “Stop-the-Steal” rally had moved to the Capitol and had fought their way inside. The ferocity of that melee was clearly described by members of the Capitol Police who testified that four of their members had died and roughly 140 others were injured. This, however, was hardly news as most Americans had already watched TV footage of the Capitol melee multiple times. The problem was that there was no evidence connecting Trump to the attack that could meet the criminal justice standard of “guilt beyond a reasonable doubt.”
It wasn’t that Trump’s name never came up. He was mentioned in connection with the calls to Brad Raffensperger and Rusty Bowers (the Chair of the Arizona Senate), neither of which had anything to do with the attack on the Capitol, much less any effect on the outcome of the elections in their states. The problem faced by the Select Committee was that by the end of his term in office Trump had surrounded himself with loyalists and had publicly dismissed and humiliated all who were unwilling to remain loyal to him. In addition, he was careful to surround himself with lawyers and was quick to invoke the attorney-client privilege if any of them were questioned by the Committee. He also freely invoked executive privilege to bar the Committee from questioning non-lawyers who might have directly communicated with him. Even many individuals working with him (like Steve Bannon) who were not cloaked in a testimonial privilege simply refused to testify and defied the Committee to compel them to do so. This ploy was surprisingly effective because the DOJ was unwilling to enforce the Committee’s subpoenas. Added to that was Trump’s own well-honed habits of avoiding written non-public communications so as to avoid a paper trail leading to him. Thus, he had established a veritable wall of silence around him.
Equally distressing, the Select Committee was running out of time. The mid-term elections were less than four months away and the overwhelming likelihood was that the Republicans would regain control of the House and put an end to the Committee’s efforts that had uncovered little in the way of evidence incriminating Trump. Just as the prospects for building a case against him seemed bleak, a crack appeared in Trump’s wall of silence in the person of Cassidy Hutchinson.
While in college Hutchinson had interned for a couple of Republican members of the House and when Trump was elected President, she was hired by the White House to serve as a Congressional liaison staff member. She apparently was well-liked by Republican House members and was very good at corralling votes for legislation that the Trump administration was initiating. Among her Congressional admirers was Mark Meadows who asked her to be his Executive Assistant when he was tapped to be Trump’s Chief of Staff. Like so many White House staff members called before the Select Committee, Hutchinson (then age 26) was provided with an attorney chosen and compensated by the Trump administration. That attorney, Stefan Passantino, encouraged her to provide the Committee with as little information as possible and counseled her to say that “she didn’t recall” even when she did. She had also been told that if she remained loyal to Trump there would be a number of lucrative job offers available to her.
She had two appearances before the Committee while represented by Passantino. Being young and idealistic, Hutchinson, was troubled by the way she had testified before the Committee and sought the advice of Alyssa Farah Griffin, the only person she dared to confide with. Griffin had served in the Trump administration and had left shortly after the 2020 election. After hearing Hutchinson’s story she contacted Liz Cheney and explained that Hutchinson had more to say. She also seems to have helped Hutchinson get a new attorney, Jody Hunt, who for reasons not known offered to represent Hutchinson pro bono. Cheney, who was serving as the Committee’s Vice Chair, had been outspoken in her belief that Trump should be held accountable for inciting the January 6th attack on the Capitol. She immediately befriended Hutchinson and induced her to testify candidly about what had transpired in the White House on January 6th and the days leading up to the Capitol attack.
Although Hutchinson had virtually no direct communications with Trump, she was often in his presence and spoke regularly with Meadows and other individuals who dealt with Trump, including Rudy Giuliani. As such, she was able to corroborate much of what the Committee had surmised. Her testimony in a public hearing held on June 23, 2022 revealed the following:
Meadows was coordinating with Trump affiliates (Giuliani, Bannon, Eastman and Kerik) operating out of a suite in the Willard Hotel (dubbed the “Command Center”);
Giuliani told Hutchinson of Trump’s plan to go to the Capitol on January 6th adding that “It’s going to be great”;
Meadows confided to Hutchinson that on January 6th “Things might get real, real bad”;
When Giuliani was in the White House there was mention of “The Proud Boys” and “The Oath Keepers”;
Trump was warned that some of individuals hanging out near the site of the “Stop-the-Steal” rally were armed and that Trump wanted the metal detectors removed so they would attend the rally;
Trump said that the armed individuals were there to support him and would not harm him;
Tony Ornato, the White House Deputy Chief of Staff, had related to her how Trump tried to get the Secret Service to let him go to the Capitol, but they demurred saying they couldn’t protect him there;
Trump spent the afternoon on January 6th in a small dining room adjacent to the Oval Office watching the TV coverage of the Capitol attack;
Meadows told Pat Cipollone (the Senior White House Counsel) that Trump “doesn’t want to do anything about it (referring to the attack on the Capitol)”;
Meadows said to Cipollone that “You heard him, Pat, he (Trump) thinks Mike (Pence) deserves it (to be hung)”;
Trump struck language from his January 7th televised remarks that he would seek prosecutions of those who participated in the Capitol attack; and
Both Meadows and Giuliani expressed interest in receiving a pardon for their participation in the efforts to alter the outcome of the election.
Hutchinson’s testimony was a game-changer in two important respects. First, it caused knowledgeable criminal attorneys to conclude that a sustainable criminal indictment could be asserted against Trump. For example, two Fordham Law School Professors, Alan Rozenshtein and Jed Handelsman Shugerman, in an article published in Lawfare wrote that prior to Hutchinson’s testimony they had concluded that there was insufficient evidence to indict Trump for inciting the January 6th attack on the Capitol. They changed their mind after hearing her testimony. This largely explains why the Department of Justice had chosen not to even investigate a possible claim against Trump arising out of the January 6th insurrection until the early Fall of 2022.
Secondly, it caused Mark Meadows, who had refused to testify before the Select Committee, to reassess his position. His desire to obtain a presidential pardon was a true indication of his own assessment of his legal exposure. He was also faced with two simple facts: (1) he had almost constant contact with Trump and (2) of all of the people in the White House, he was the one with whom Hutchinson had had the greatest contact. In short, he was clearly going to be in the cross-hairs of the DOJ’s investigation. Therefore, his only path to survival was to get to the DOJ before they got to him. This explains why he completely dropped out of sight following Hutchinson’s testimony.
Shortly after the 2022 election Trump announced that he would be seeking the Republican Party’s nomination for president in the 2024 election. By any standard, this was a very early announcement. Although some presidential hopefuls announce that they are forming an exploratory committee two years before the next election, none commit to do so this early. In fact, presidential candidates are generally discouraged from early announcements of their candidacy because they have to start reporting their campaign contributions once they do. Trump, however, had an ulterior motive for his early announcement. It was clear that he was about to be indicted and, not having a viable legal defense, he wanted to be able to claim that the forthcoming indictments were politically motivated.
Armed with the Select Committee’s report and subpoena power, Smith began moving quickly to build a compelling case against Trump for conspiring to obstruct a government proceeding. To conclude a trial well prior to the 2024 election he streamlined the allegations in the grand jury’s indictment. Faced with overwhelming evidence against their client, Trump’s attorneys seem to be concentrating on trying to delay the trial past the 2024 elections in the hope that Trump or another Republican would win and set the matter aside. It’s a desperate strategy, but Trump is a “survivor” and is accustomed to using any means at his disposal to achieve his objective, which is to stay out of jail.
Ari Melber on MSNBC, however, has pointed out that Trump’s decision to announce his re-election campaign two years in advance may also have been a critical error. Trump’s decision gave Attorney General Garland an excuse to turn the prosecution over to Jack Smith. Had Trump waited until the Spring of 2023 (when most candidates announce they are running) there would have been a seven month delay in Smith’s appointment, making it virtually impossible for him to investigate the facts, obtain a grand jury indictment and get the case to a trial far enough in advance of the 2024 election so that it would not interfere with the election as required by the DOJ rules.
It seems fairly certain at this point that Trump will win the Republican presidential nomination. In addition, some polls show him ahead of Biden in a rematch of the 2020 election. Nevertheless, he still faces an uphill battle for several reasons. Even though his base seems to become more animated with each adverse development, most American have grown increasingly dismayed at the thought that a thrice-indicted sexual assaulter might be elected as our nation’s president. In addition, Joe Biden has been doing a surprisingly good job at rebuilding the nation’s economy, fighting climate change and re-uniting the western democracies. His biggest draw back is that he may not be able to survive a second four-year term in the White House and a large number of Americans harbor doubts as to whether Vice President Harris will be able to handle the job. This is something of an irrational fear when you compare what Vice President Harris is likely to do as president with the disasters that will inevitably accompany a second Trump presidency.
There is yet another obstacle that Trump will have to overcome in his quest to be re-elected. This one is also of his own making. In the wake of his second impeachment, Trump vowed vengeance on all Republicans who did not support him. Among them was Liz Cheney whom he caused to be expelled by the Wyoming Republican Party and whose defeat for re-election he engineered. Not only did she make her way onto the Select Committee, but she effectively led that Committee in its efforts to make a case against Trump. In large measure her efforts were responsible for motivating the DOJ to finally arise from its slumber and make good on Attorney General Garland’s pledge to hold accountable those who instigated the January 6th insurrection.
Lest it be forgotten, Cheney also vowed to run for president if that is what it would take to keep Donald Trump from ever again occupying the White House. Although she has not given any indication that she intends to run for the Republican nomination, she has not ruled out the possibility of running as an independent candidate in the critical five battleground states that determined the outcome of the 2020 election. There are no shortage of mainstream Republicans who share Cheney’s animosity toward Trump who would gladly support her third-party candidacy in those battleground states. Not only would it rid their party of Trump but it might have the side benefit of helping down-ballot Republicans in those states to get elected. Thus, Trump’s gratuitous attack on Cheney may prove to be his ultimate faux pas.