There were two options: either the peaceful transfer of power through certification of the electoral college vote by the Vice President of the United States or “revolution within a constitutional crisis,” according to retired federal Judge J. Michael Luttig, a Republican, testifying on June 16th before a bipartisan congressional panel investigating the January 6th, 2021 attacks on the U.S. Capitol.
The degree to which Donald Trump remains responsible for faithless, disloyal treachery to his oath of office is the point at issue. Driven by childhood insecurities and the tawdry televangelist’s touch, Trump’s narcissism is certainly one explanatory factor for why he indeed saw fit to sow so much disinformation around the 2020 elections. But what has become most apparent in these vexing times is the heroic (or shall we say, legal) role played by Trump’s Robin.
In the archetypal case study of democracy teetering, Vice President Pence has fulfilled his oath by endorsing election results which helped shepherd Biden into office. Even Lindsay Graham, one of the Democrats’ most ardent opponents and a Trump loyalist, recently admitted in a Fox-sponsored debate with Bernie Sanders that Biden is the president. Yet poll after poll confirms that 70% of registered Republicans still do not believe that he is the legitimate winner of the last presidential election.
The degree of perfidy that Trump resorted to in his effort to retain power and deceive the American public — a surefire mens rea argument in court for the intentions of the former president — should be front and center as part of any future criminal proceeding against Trump for what’s fast becoming the most convincing example of the former president’s traitorous ways.
Seditious conspiracy, it is, then.
Even as we enter uncharted legal territory, there’s constitutional firepower to draw on. No president before Trump has ever contested the peaceful transfer of power after a free and fair election upheld by the courts. This includes Vice President Al Gore, who gavelled in his own rival, George W., in the hanging chad toss-up of 2000. In a video from the Senate hearing, Gore was recorded as saying that he never once thought to stall the certification process once the courts had decided in favor of Bush.
In considering the gravity of Trump’s crimes within the meaning of Luttig’s “revolution within a constitutional crisis,” we might note that six people are dead because of a conspiracy that Trump commissioned through vile tweets against his democratic opponents, RINOs, and all those who refused to accept his narrative in the run-up to January 6th. This included Mike Pence. Trump’s denial that he bears responsibility is consequently beginning to look a lot like a Potemkin Village to everyone from his former Attorney General William Barr to his daughter Ivanka.
Trump’s chief of staff, lawyers, and even some of the most rabidly partisan forces in the Trump orbit have begun to disconnect the caboose from its erratic conductor. But the train is not nearly disassembled. And as goes the court of public opinion, so goes the law. Social acceptance of constitutional norms is what matters most. And if so much of the population still believes in the big lie, Supreme Court Justices will be loath to weigh in.
Most conservatives are originalists. This means that the founders’ instructions contained in the precise, restricted language of our pocket constitutions ought to guide behavior. What is the U.S. if not a national legal order constitutionally founded? What kind of person could ever interpret the counting of the electoral college votes by the vice president, which ensures continuity by vacating a previously held office rather than collaborating in a neo-monarchic reversion, as anything other than a necessary formality? A kind of ritualistic sanctioning of the day’s events, an acknowledgment that the will of the people matters more than principles founded on vainglorious quicksand?
For those who still believe in the concept of democracy, Trump’s repetition of the big lie that the 2020 elections were stolen is a testament to more than mere bumbling ravings. If a criminal case goes forward, it will be necessary to prove that Trump knowingly acted in a criminal manner to further his own power. His vice president — acknowledging that if his boss’s plan had ever gone through there’d be trouble in the streets — refrained from reinforcing what is a cardinal sin of his Christian faith: deception.
While it would be great to also go after Trump for financial shenanigans like the many pay-for-play schemes associated with the former president’s clear violation of the emoluments clause, especially his establishment of the Trump Hotel only a few blocks from 1600 Pennsylvania Avenue, I think for the sake of democracy we’re better served in going after the eponymous golden calf for conspiracy to commit sedition. Trying to bypass the principle “not under man, but under law” threatens the very notion of democratic constitutional protections against fascist creep.
With his legal aide-de-camp, southern California law professor John Eastman, Trump created, to quote his former Attorney General William Barr, a “bullshit” scenario where on factual grounds there was absolutely no legal basis for arguing for the suspension of the peaceful transfer of power. Nevertheless, Trump doubled down on the big lie. Like a pouty child undergoing another one of his interminable hissy fits, Trump repeated over and over that the election was stolen. Supporters hypnotized by a form of Stockholm Syndrome that continues to defy logic bought the big lie hook, line, and sinker.
Suppose the law also must consider common-sense meanings. In that case, we turn to Trump’s many harangues — terror-filled comedy acts staged at jet-fueled Nascar style rallies between the election in November and January’s certification — and ask the obvious question: who in their right mind could ever see Trump’s repeated public denial of election results as anything but a lie? Sixty-two federal courts had stated that the results of the elections were free and fair. So did state legislatures and secretaries of states in Republican-dominated terrain (see: the Georgia election and Trump’s pressuring of Republican Secretary of State Brad Raffensperger to find exactly one more vote than the number he lost by in the state, as a case study).
Like a mob boss, Trump pressured Raffensperger, even after news had come down that the dominion voting machine angle and the supposed massive irregularities that had caused millions more votes were — again, to quote Barr — “bullshit.” It bears repeating a smoking gun quotation for any future criminal trial against Trump for conspiracy to commit sedition: “So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have. Because we won the state.”
The cluster bomb that has just exploded in the heart of Trumpland was ignited on day 3 of the January 6th congressional hearings with the testimony of Mike Pence’s lawyer Greg Jacob. A seemingly earnest man of faith, he quoted scriptures to make his point about the gravity of the situation of a sitting president strong-arming his right-hand man to do these most unconstitutional, fiendish acts. Jacob recounted to the committee the Jewish biblical passage when the prophet Daniel undergoes an encounter in the lion’s den. As he waited it out with the Vice in a secret location near the Senate chambers, the mob stormed the halls of Congress waving confederate flags that hadn’t been raised in the Capitol ever, not even during America’s Civil War. The vice president and most of our elected representatives waited for the scene to die down. Eventually, Pence would return to certify the electoral college vote, but, in the interim, as Democratic Congressman Aguilar revealed to Jacob, the mob that chanted that they wanted to hang Mike Pence was milling about a mere forty feet from the vice president and his attorney.
“Daniel 6 was where I went,” Jacob said, “and in Daniel 6, Daniel has become the second in command of Babylon, a pagan nation that he faithfully serves. He refuses an order from the king that he cannot follow, and he does his duty — consistent with his oath to God. And I felt that that’s what had played out that day.”
That Trump continues to be heavily supported by communities of faith complicit in the big lie does not mean that his traditional base of support is in uniform agreement. Jacob, at least, recognized the gravity of the moment for what it was: a constitutional crisis compounded by a crisis of conscience.
Daniel’s constitutional oath was to God, not a king. But we might ask if this is an apt analogy for Jacob to invoke before the committee since it was not God but the will of the people — and the continuity of the democratic experiment itself — that mandated a seamless transfer of power. The legitimate delegation of powers granted Trump, not the “bullshit” pawned off as credible legal theory by Trump, Eastman & co, was Pence’s admirable concern.
While there will be political accusations of bias, as the committee is mostly comprised of Democrats, Republican Liz Cheney (“the other Cheney”) put it with eloquent brevity in her opening statement before the committee: “Tonight, I say this to my Republican colleagues who are defending the indefensible: there will come a day when Donald Trump is gone, but your dishonor will remain.”
Even though diehards will likely never heed Cheney’s warning, we can rest assured that the committee is doing its job with impartiality. In examining evidence of corruption to election integrity and culpability for “Trump, the Seditious,” the panel has a tall task. But if Luttig is right that Trump was planning a “revolution within a constitutional crisis,” we are best served in examining this episode in our Republic’s still-young history with clear-eyed concern. We might also want to flag conservative Supreme Court Justice Clarence Thomas’ wife Ginni for her effort to subvert the election results. If ever there was an exhibit A for why Justice Thomas should recuse himself from a future case of conspiracy to commit sedition by Trump that might come before the Supreme Court, this is it.
The case against Trump for conspiracy to commit sedition by knowingly providing false evidence of a stolen election before the general public, intimidating elected officials, and assembling a mob to storm the capitol to halt the proceedings to certify Biden as the next president may seem far off from a Nuremberg analogy. But the trial of major Nazi war criminals was seen by many in the public at the time as a case of “victor’s justice.” Nevertheless, by ensuring due process for those responsible for WWII and the Holocaust, we remember former Supreme Court Justice Robert Jackson, who acted as the first U.S. prosecutor in a modern international crimes case at Nuremberg. Jackson — in his post war writings — persistently emphasized the importance of drawing on official records, meticulous witness testimony, and pristine procedural justice in order to convict war criminals. The same can be done in any criminal proceedings against Trump, Eastman & co.
Of course, our first seditious president will do what he is a master at. He will deflect attention onto everybody else, making the red herring argument that has been his go-to ever since his Mexican rapists’ remark on the day he entered the 2016 campaign for president — ineradicably coarsening American politics as we know it. He will use the ad hominem technique that “you’re wrong for X because you are Y.” In this case, the circular logic that Trump drummed up was that Pence was wrong to ignore his warnings — and was indeed disloyal — because he was weak.
Trump will continue to deflect criticism onto everybody else. His followers will believe that a now-debunked theory — both factually and analytically — is indeed still true. The mountebank will try to convince the echo chamber that the January 6th committee has perpetrated a grave injustice against him. Trump’s effort with Eastman to have Pence either outright deny the validity of the electoral college results, thus throwing everything immediately into chaos, or else push off the counting to a later date in order to reassess questionable electoral slates, however, is based — as these congressional hearings indicate — on an absolute nothingburger of legal theoretical mishmosh. As Luttig, the constitutional scholar and mentor to his former law clerk Eastman made clear on Day 3 of the hearings, such a theory could not be accepted based on the denotative meaning of the 12th amendment:
The Electors shall meet in their respective states…and of the number of votes…they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
The ceremonial role of the vice president — President of the Senate — could only be upended in cases where a clear case of vote tampering occurred, as registered by federal courts. In such a case, surely Pence could have intervened. Knowing, however, that Trump had no legal basis on which to stand, Pence did the honorable thing and refused anti-constitutional orders. In response, Trump got his attack machine into full gear to stoke a situation that led to a noose being erected outside congress for Pence. Members of the Proud Boys and Oath Keepers were cracking their knuckles in anticipation.
Just prior to the mob’s attack, Trump intoned that “Many of you have traveled from all across the nation to be here, and I want to thank you for the extraordinary love. That’s what it is. There’s never been a moment like this ever — ever — for the extraordinary love for this amazing country. Our country has had enough. We will not take it anymore, and that’s what this is all about.” He noted how important it was to convince Pence of this fact. “All Vice President Pence has to do is send it back to the states to recertify and we become president, and you are the happiest people,” Trump said. Trump claimed that Pence had “the absolute right” to do so, according to “one of the top Constitutional lawyers in the country.”
But Eastman is just another proto-fascist. Depleted gas canisters, gun powder, bear spray, blood from knocked heads, and splintered glass covered the steps of the Capitol. None of this should be antiseptically separated from the perfidy of Eastman, who pushed a shoddy legal theoretical foundation in the name of the big lie. Before the rally, when Pence was still in contact with the inner sanctum of election lies surrounding the stop the steal movement, Trump turned to him in an effort to emotionally blackmail his good soldier. He did so with the added hubris of his legal henchman Eastman running around the D.C. orbit spreading the gospel of election fraud.
In Bob Woodward and Robert Costas’ book Peril, the authors quote Trump as telling Pence a day before the attack, “I don’t want to be your friend anymore.” According to Pence’s lawyer, Jacob, Trump’s attacks on the former vice president cut deep. Pence did not respond the next day to efforts to persuade him in the moments before the insurrection. The former president’s effort the day before to coax his so-called “friend” to subvert constitutional democracy, spiritually bankrupt as it was, potentially sowed the seeds for even greater battles ahead.
Trump should be held criminally liable for his pressure campaign, otherwise, Luttig’s “revolution within a constitutional crisis” might eventually succeed. When there are no precedents in which to turn, the Constitution still lurks like a secular bible that any shmo can seek out for guidance. Trump & Eastman never needed to cook up theoretical fantasy in order to put us through the equivalent of a medieval pitchfork battle replete with William Wallace cosplay.
All they needed to do was stay within the letter of the law.
Jason Reuven Kropsky received his Ph.D. in Political Science from the Graduate Center of the City University of New York. In addition to his role as editor at The Daring, he has been published in Moveable Type, The Journal of Classical Judaism, and is an active member of the writers' community WordShedNYC. He lives in Seattle, Washington. Email scoops and pitches to firstname.lastname@example.org.