‘They Attempted a Coup’

“I was in Washington, D.C. on January 6, 2021, because I believed I was following the instructions of former President Donald Trump and he was my president and the commander-in-chief,” explained Garrett Miller, who brought a gun to the Capitol and has been charged with obstructing an official proceeding. “[Trump’s] statements also had me believing the election was stolen from him.” 

After posting, “I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon,” on Dec. 23, 2020, Ronald Sandlin threatened police officers in the Capitol on Jan. 6 saying, “[You’re] going to die.” Sandlin pled guilty to obstructing an official proceeding.

Lewis Cantwell testified that if “the President of the United States … [is] out on TV telling the world that it was stolen, what else would I believe, as a patriotic American who voted for him and wants to continue to see the country thrive as I thought it was?” Cantwell pled guilty to multiple federal crimes.

Stephen Ayres, posted that “Civil War will ensue” if Trump did not stay in power after Jan. 6, testified that Trump’s statements that “the election was rigged … the votes were wrong and stuff…just got into my head.”  Ayes pled guilty to multiple federal crimes.

With these opening statements, the United States House Select Committee on the Jan. 6 attack on the Capitol began its historic 154-page introduction to its final report, released on Dec. 19, 2022, highlighting the evidence it had gathered and the conclusions it had reached.

Three days later, the committee released its final 845-page report, which included an appendix of supporting documents, emails, texts and transcripts of testimony. Among several recommendations, the final report recommended that Congress create a “formal mechanism” under the 14th Amendment of the Constitution for evaluating whether to bar “individuals identified in this report”” — including Trump — from holding future office. The committee noted that under Section 3 of the 14th Amendment, an individual who took an oath to support the Constitution “but who has ‘engaged in an insurrection’ against the same, or given ‘aid or comfort to the enemies of the Constitution’ can be disqualified from holding future federal or state office.” The report noted that Trump was impeached by the House of Representatives for incitement of an insurrection on Jan. 6, and there were 57 votes — a majority — in the Senate for his conviction.

After months of speculation, the committee also took the unprecedented step of referring four crimes to the Department of Justice (DOJ) for investigation and potential prosecution, identifying Trump as the subject of each referral. The referrals identified four specific crimes:

• Obstruction of an official proceeding to prevent Congress’s certification of the election. (18 U.S.C. § 1512(c))

• Conspiracy to defraud the U.S. to overturn the election. (18 U.S.C. § 371)

• Conspiracy to make false statements relating to false electors. (18 U.S.C. §§ 371, 1001)

• Inciting, assisting, or providing aid and comfort to an insurrection. (18 U.S.C. § 2383)

In addition, the committee suggested that the DOJ investigate “other conspiracies” relating to the prevention of someone from “accepting or holding office” and blocking the enforcement of U.S. law. (18 U.S.C. §§ 372 and 2384); and obstruction of an investigation by advising witnesses to lie. (18 U.S.C. §§ 1505, 1512).

The committee acknowledged that the DOJ was in a better position than the committee to investigate co-conspirators, but Trump’s attorney, John Eastman, was mentioned prominently in the criminal referrals. During the final public hearing and in the executive summary, potential co-conspirators identified by name included Jeffrey Clark, a DOJ attorney; Rudy Giuliani; and Mark Meadows, Trump’s chief of staff.

The committee also referred four members of Congress to the House Ethics Committee for willfully refusing to comply with subpoenas it had issued. Those members are House Minority Leader Kevin McCarthy, Rep. Jim Jordan, Rep. Scott Perry and Rep. Andy Biggs.

Aside from these recommendations that await further action from the DOJ and Congress, is there really anything new to be learned and written about Jan. 6? Some will read the committee’s 154-page executive summary. A very few will find the time to read the entire 854-page final report. But how can the rest of us make sense of Jan. 6, and more importantly, put that day in the context of disparate and fleeting political events? Perhaps even more urgently, how can we evaluate whether Donald Trump should be held criminally responsible for his role in one of the most momentous periods in American history?

Fortunately, along with rushing the original report into print in less than a month, Harper Collins has published an impressive analysis written by MSNBC anchor and chief legal correspondent Ari Melber, which offers several keen insights and observations.

“They attempted a coup,” Melber begins. “That is the most important fact about what happened…Donald Trump led an effort to overthrow the lawful government of the United States. The goal was illicit: stealing an election. Trump’s chosen methods were unlawful: trying to overcome his loss with fraud, obstruction, election meddling, abuse of power by government officials, and even plans to have the military intercede.”

With welcome clarity free of distracting legalisms, Melber points out that when Trump himself did not take action, he often demanded that other people break the law. But, as Melber correctly points out, these distinctions do not preclude Trump’s actual and legal culpability. 

“Criminal organizations typically shield the boss, sparing him from most dirty work, let alone actual combat,” Melber writes.

Melber frames his analysis by asking whether Trump intentionally led several plots to stage an insurrection and coup. This is the crucial question because, under the law, prosecutors must determine “if the evidence proves that Trump deliberately, corruptly led this conspiracy. That means taking deliberate action to corruptly stage the insurrection or coup.”

In one of his most perceptive observations, Melber faults the conventional wisdom from two years ago — and indeed during Trump’s second impeachment trial and even in the original charter of the Jan. 6 Committee — for viewing the insurrection largely as “a single-day event, a one-day attack.” Instead, as he sees it, the 2021 impeachment trial’s entire thrust “was stuck in a flawed framework of limiting its perspective to events that unfolded on a single day. The Senate jurors were basically asked: Legally, did Trump’s speech that morning incite the attack in the afternoon?”

Melber reminds us that the “2021 Article of Impeachment did not mention, let alone charge, plots for elector fraud, state election meddling, military intervention, DOJ interference, seizing voting machines, or the long-running lies that recruited so many people to travel to Washington.” During the impeachment and subsequent Senate debate, it often seemed like Trump was on trial for a speech. But Melber, a graduate of Cornell Law School, where he was an editor of the Cornell Journal of Law and Public Policy, correctly points out that the “law makes it hard to pin an insurrection on one speech — as it should. True freedom of speech sets a very high bar for convicting any politician, in the Senate or in court, for words in a speech.”

Fortunately now, after 18 months of intensive investigation involving 1,200 interviews, the committee has gathered a massive amount of testimony and documentary evidence in its final report to show that the attack on Jan. 6 “cannot be accurately, substantively split from the long path leading up to it.” Melber confirms that “evidence for this wider view of the threat — a long running plot against democracy, not one terrible day — emerged from the committee’s work.” He credits the committee’s fact-finding for following leads, adapting to new information and adjusting an initial perception formed before new evidence, witnesses and facts were gathered and tested.

This was a conspiracy, not a riot, according to Melber, who concludes that “The January 6 Committee’s dense hearings and evidence, plus other independent reporting, show the plots to overthrow the election were broader and more organized than some one-day-crime-spree.” It had a purpose: to prevent or delay certifying the election results. The evidence, Melber writes, “shows the people at the Capitol were mostly pawns,” who dutifully responded to Trump’s summons. Their role — to hijack the certification on Jan. 6 — was to execute one prong of a wider conspiracy hatched by Trump lawyers.

Melber highlights the fact that the committee found that Trump intended to overthrow the election even before it occurred. He saw signs he could lose before Election Day and began plotting to overthrow the results. Speaking to reporters at the White House on Sept. 23 — as early voting was already underway — Trump said that if he lost, hewould not follow “a peaceful transfer of power after the election.” Instead, he vowed to continue in office no matter what. “There won’t be a transfer, frankly,” he said, “there will be a continuation.”

“Trump’s brazen vow stoked expectations and created the criminal playbook that his followers would later use,” Melber writes. Trump’s “words are now criminal evidence because of his later actions.” The Jan. 6 committee exposed that some of Trump’s most senior and loyal aides, and family members, told him the truth: that he was trailing and on a path to lose.

Melber does a very good job summarizing the evidence presented in the Jan. 6 report by organizing it according to what he sees as eight overlapping and escalating plots hatched by Trump. The first two plots began as legal: lawsuits to challenge the results and efforts to recruit and install Trump electors in states that Biden won. Trump filed “a cascade of weak, losing, and sometimes frivolous suits trying to challenge or overturn his loss,” none of which succeeded. culpability.”

Melber explains how, with no path to change the election results lawfully, Trump’s team quickly turned to several plots to steal the election, the first centering on an idea “to recruit Trump supporters to falsely claim they were the actual electors in states that Biden won and somehow install those fraudulent electors in Biden states.” Within 11 days after Biden’s victory, Trump lawyers wrote up plans to arrange for “electors pledged to Trump” to conduct a kind of shadow Electoral College, where they would meet on Dec. 14 and falsely claim they represented the voters who had actually backed Biden. Of course, on Dec. 14, the actual Electoral College met and formalized Biden’s actual victory.

Undaunted, White House aide Stephen Miller did TV interviews touting how an “alternate slate of electors in the contested states is going to vote, and we’re going to send those results up to Congress,” while White House Press Secretary Kayleigh McEnany declared, “there has been an alternate slate of electors voted upon, that Congress will decide in January.” Again, the idea was not to win over judges in some fact-driven proceeding. It was to offer another pretense — a lie — to Congress in a bid to steal the election.

Meanwhile, another plot was to get state officials to sow doubt about Biden’s win as a pretense for overthrowing it. 

“This is where Trump’s relentless effort can be clearly seen as an election conspiracy,” according to Melber. “Getting incumbent politicians to overthrow the vote is literally the simplest version of a coup.” 

By Dec. 7, top White House staff were messaging about a “path” to stealing the election, if they could compel Republican state legislatures to toss out their own constituents’ votes for Biden. John Eastman, a former clerk to Supreme Court Justice Clarence Thomas, pushed a plan to have Republican state legislatures “override” their constituents’ votes for Biden. Trump administration witnesses later recounted that Eastman admitted, at the time, that his plans were unlawful, violating the Electoral Count Act.

Trump tried to recruit state officials in Michigan and Arizona to overturn the votes. In Georgia, he infamously demanded that the top elections official join him in voter fraud. Again and again, these efforts failed.

Since no state legislatures or state officials were joining that plot, Trump launched the next one: to push the Justice Department to push the states. Trump’s own top DOJ appointees were adamantly opposed, since the DOJ has strict protocols for any election-related activity, let alone on behalf of a losing incumbent trying to stage a coup. But a mid-level DOJ official, Jeffrey Clark, supported a scheme whereby the DOJ would, for the first time ever, try to order a state to override its own voters’ presidential choice. The idea was for the DOJ to release a letter telling Georgia’s legislators they should come back into session and override their citizens’ votes for Biden.

Trump considered overriding his own DOJ leadership by promoting Clark to attorney general. (Indeed at one point, White House logs actually identified Clark as the new acting attorney general, but it was apparently retracted within hours). When Trump learned that the plot could trigger a wave of resignations similar to the Saturday night massacre under Richard Nixon, it fizzled.

Desperate, Trump even considered a military coup, and as Melber points out, we should not be surprised.

“Trump has long admired autocrats who rule through the military, from Putin to Erdogan,” Melber affirms. “It was not a giant leap that he explored how to get the U.S. military to help his coup…[But this] is one of the plots that was quickly thwarted.”

In a crisp summary, Melber explains that by late December, “Trump could see most of his active plots were failing. The lawsuits were basically over; the fraudulent electors did not budge the real Electoral College vote; not a single Biden state took public action to alter its election outcome. Those failures matter because they set the stage for more desperate action.” 

Trump turned to a lawyer who would give him the answers he wanted, Sidney Powell, part of a group of outsiders who were so extreme that Mark Meadows barred them from the White House.

Nevertheless, in one of Melber’s most vivid accounts, on Dec. 18, a young aide to White House adviser Peter Navarro snuck Powell and retired Gen. Mike Flynn into the White House for a last-ditch shot at the military plan. Essentially, the idea was that Trump would use his authority to appoint Powell as a special prosecutor (technically legal) and then use that post as a bridge to have the military seize voting machines (illegal). 

“The discussion over that plan,” Melber explains, “is the most intense, unruly, and bizarre meeting in the documented history of the Trump White House….Government lawyers testified it was a nutty screaming match that stretched across several hours, as participants grasped that the idea was to try to conscript the military into a coup, seizing voting machines in a plot to prevent the incoming administration from taking office.” At one point in the meeting, Trump said he was taking the action of appointing Powell as special prosecutor, but by the end of the night, Trump had scrapped the plan, apparently convinced it was both futile and legally risky. But Trump did not stop there.

The failure of that plan led Trump to what Melber calls “the most fateful act in his entire coup conspiracy.” Late that same night, “Trump made his first public push to summon followers to sabotage the certification on January 6. This is one of the most damning pieces of evidence exposed by the Select Committee. It informs Trump’s ongoing criminal intent to overturn the election. It shows that when Trump did back down or abandon plots it was not because of any adherence to the law; it was due to self-interest. He kept his dogged focus on plots that he believed could overturn the election. That suggests a criminal intent spanning months — a long way from the legalistic fixation on Trump’s specific intent at one speech on January 6.”

Trump turned to a plot pushed by the most extreme, loyal coup plotters: John Eastman, Peter Navarro and Steve Bannon. The evidence shows he went directly from the coup meeting to the Eastman–Navarro plot, tweeting in that same early morning: “Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump. Big Protest in DC on January 6 . . . will be wild!” That message marks the first time Trump ever told his supporters where to go to join the fight.

According to Melber, the evidence shows that Trump’s team intended to sabotage the Jan. 6 certification by reviving the elector fraud plot on the Senate floor; compel Mike Pence to claim he had the authority to delay or override the certification, and deploy violent force to delay or override the certification.

Unlike some of the plots that fizzled, Trump’s team took concrete actions to get those things done. As late as Jan. 6, Republican allies were pushing to present fraudulent elector slates on the Senate floor; Trump privately and publicly ordered Pence to interfere in the certification; and, of course, his supporters responded to Trump’s address by unleashing a violent crime spree of trespassing, assault, battery, battery with deadly weapons, threatened assassination and other attacks to delay the certification, which they achieved.

While some legal issues are debatable, Melber makes a very convincing case that “Trump’s plot for Pence on January 6 was not one of them. It was unconstitutional, and bananas, to claim that an incumbent administration can steal the election by having the losing vice president magically reject the results in his ceremonial role presiding over the Senate. Trump’s White House lawyers rejected the plan, as did Pence’s lawyers. Trump’s coup lawyer, John Eastman, tried to provide cover by writing up his unconstitutional opinion that Pence could take up a new role, ‘not to just open the votes, but to count them,’ making him the ‘ultimate arbiter’ of who won.” As Pence and others pushed back, Trump relied more on his most extreme and desperate enablers. Eastman went on Steve Bannon’s show — popular with Trump’s most rabid supporters — pushing the Jan. 6 plot by declaring that a second Trump term hinged on the “courage and spine” of Pence.

But what was the endgame? How would any of these plots, if successful, keep Trump in the White House? Here, Melber offers his key observation. “The hardcore coup plotters wanted more than chaos or a last stand. The objective was to sabotage the certification in order to keep Trump in power.” Melber explains that under the Constitution, if a presidential race is genuinely contested, and neither candidate has a majority, the House of Representatives resolves the contested race with its own vote. The House vote is based on one vote per state, not the number of representatives. While Democrats held a majority in the House, Republicans controlled 26 state delegations. A straight party-line vote would re-elect Trump and he, not Biden, would be lawfully inaugurated on Jan. 20.

But on Jan. 6, Trump knew seven of his plots had failed. Consequently, as Melber writes, “Trump pushed, welcomed, and encouraged the attack on the Capitol. It was his plan. He did not take action to stop it as president, and he commended the attackers afterward.”

Remarkably, Melber points out something that will come as a surprise to many: “Where other plots failed, the Trump fans’ violence did achieve a key illicit goal: Their crimes prevented Congress from certifying the vote on the legally required date of January 6. It was actually 3:40 am on January 7 when the vote was finally certified.”

Melber concludes his analysis by asking “What would justice look like?” It would mean prosecutors pursue people who attempted or completed conspiracies to: defraud the

United States; commit sedition and related violence; hinder the counting or certification of votes and election results; submit fraudulent votes or electors; corruptly use government powers to oversee elections or prosecutions; or violate other federal or state laws safeguarding elections, the transfer of power, and government integrity.

“Justice,” Melber concludes, “would mean facing the overwhelming evidence that the leader and beneficiary of the coup conspiracy, Donald Trump, be held accountable for his criminal intent and direct actions.”

Melber has done an admirable job gathering the evidence accumulated by the Jan. 6 committee into a cogent indictment of Donald Trump. He calls Jan. 6, 2021, “the criminal culmination of an organized conspiracy led out of the White House.” 

The people at the Capitol that day — many now convicted of serious crimes — “formed the criminal muscle” backing Trump’s usurpation of power. 

But they did not operate in isolation. To date, the “more senior planners, aides, and lawyers — the ones who knew the certification date, and how the Electoral Count Act might be exploited, and the rules for an endgame where a delayed certification might actually keep Trump in office — none of them have been indicted.” Melber quotes Doug Porter, a political writer, who put it simply: “If Trump’s coup attempt goes unpunished, it will become a training exercise.’

The Jan. 6 committee has rendered a tremendous public service by amassing the uncontested evidence of a criminal conspiracy led by Donald Trump. Its final report is now a matter of public record. That is a laudable achievement to be sure. But it cannot be the end. 

It is unthinkable that Trump and his co-conspirators will be allowed to walk free, now that we know what they have done and how close they came to overthrowing a lawful election for president of the United States. 

Congress has done its job. Now Attorney General Merrick Garland and the Department of Justice must do theirs.