January 6 was a coup attempt

A brief summary.

There is a very (very) long report, put together by a Select Committee on the events of January 6, but it is 500+ pages and you are not going to read them. In the absence of more specific information, it is easy to imagine that the events of January 6 was just a riot, a protest gone bad. It wasn’t: it was a culmination of a plot by Donald Trump and associates to overthrow the lawful results of the November 2020 elections.

The Jan 6 report talks about various pressures applied to all sorts of other people inside (and outside) of Trump’s administration in order to throw out the November 2020 results, but we are going to focus specifically on the coup plot that led to January 6.

Piece 1: The Vice President Throwing Out Electoral College Votes

The Electoral Count Act of 1887 states:

If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section two of this act to have been appointed, if the determination in said section provided for shall-have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question Which of two or more of such State authorities determining what electors have been appointed, as mentioned in section two of this act, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide-is supported by the decision of such State so authorized by its laws ; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the Executive of the State, under the seal thereof, shall be counted.

To summarize this section greatly: if there are two conflicting slates of votes from a given state, then there is a series of mechanisms for determining the proper result. First, the two houses of Congress (i.e. the House of Representatives and the Senate) can come to an agreement on which set (if any) is correct. If this fails, responsibility is passed to the Executive of the State.

John Eastman, one of the chief coup plotters, argued that:

It allows the two houses, "acting separately," to decide the question, whereas the 12th Amendment provides only for a joint session. And if there is disagreement, under the Act the slate certified by the "executive" of the state is to be counted, regardless of the evidence that exists regarding the election, and regardless of whether there was ever fair review of what happened in the election, by judges and/or state legislatures.

In other words, this section should be superseded by the 12th Amendment. The relevant section of the 12th Amendment states:

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 President of the Senate is the Vice President of the United States - which is to say, Mike Pence. This procedural role is then creatively interpreted by Trump’s loyalists, such as Chesebro on December 13, 2020, to say that he can throw out votes in this case:

The bottom line is I think having the President of the Senate firmly take the position that he, and he alone, is charged with the constitutional responsibility not just to open the votes, but to count them -- including making Judgments about what to do if there are conflicting votes -- represents the best way to ensure:

(1) that the mass media and social media platforms, and therefore the public, will focus intently on the evidence of abuses in the election and canvassing; and

(2) that there will be additional scrutiny in the courts and/or state legislatures, with an eye toward determining which electoral slates are the valid ones.

This is a critical part of the plot: the idea that the Vice President can choose to throw out (or “refuse to count”) the electoral votes of some states under some condition. This legal theory is comically sketchy (and even Eastman himself doesn’t think it would hold up in court, as will be shown below), but that is the gist.

Piece #2: False Slates of Electors

There’s another “problem” with everything I said above - the Electoral Count Act of 1887 is completely irrelevant if there is only one return or paper purporting to be a return from a given state. Thus, Trump needs to produce a second slate of electors. Although initially, perhaps, these second slates of electors could be justified on the basis of the pending legal cases, as more and more legal challenges failed and it became clear that there was no realistic path to a situation where they would ever become legitimate slates of electors¹, they were maintained in the hopes that Pence would back them.

These slates of electors in at least four of seven states signed documents stating that they were “the duly elected and qualified Electors” (Arizona, Georgia, Michigan, Wisconsin). According to the committee report, Nevada also had such language without any reservations, but they do not appear to have uploaded the scans of these, so I cannot vouch for them. New Mexico and Pennsylvania’s slates did have stated reservations such as “on the understanding that it might later be determined that we are the duly elected and qualified Electors” (New Mexico) and “if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors” (Pennsylvania). The statements of those slates of electors claiming, without reservations, to be the “duly elected and qualified Electors” are straightforwardly false. And they knew what they were doing was sketchy - for example, an email to the Electors in Georgia stated:

First, I must ask for your complete discretion in this process. Your duties are imperative to ensure the end result - a win in Georgia for President Trump - but will be hampered unless we have complete secrecy and discretion.

Our slate of Electors and Alternates will be meeting at Room 216 at the Georgia State Capitol no later than 11:30am. I will be on site by 10:30am. Please let me know if you will not be able to perform your duties. When you arrive, please state to the guards that you are attending a meeting with either Senator Brandon Beach or Senator Burt Jones and proceed directly to the room. Please, at no point should you mention anything to do with Presidential Electors or speak to media.

After going to great lengths to create these paper-thin false slates of electors, Eastman noted in an email that:

As for hearings, I think both are unnecessary. The fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough.

In other words, the mere fact that we have gone to great effort to create false slates of electors, with false representations for most of them, should be in itself proof that it is uncertain which slate is the correct one. I might as well print up a false bill of sale for my neighbor’s car and pretend that it legitimately creates uncertainty about who owns the car.

Piece #3: Pressuring Mike Pence/January 6th Itself

Then-Vice President Mike Pence did not choose to go along with this coup plot, robbing it of its paper-thin legal justification. Representative Gohmert attempted to file suit to coerce Mike Pence to do so. In response to the filing of the suit, Eastman said:

I put the odds at winning in either D.D.C. or CADC closer to zero, and the risk of getting a court ruling that Pence has no authority to reject the Biden-certified ballots very high.

The suit was ultimately thrown out for lack of standing. Still, at this point, the chief architects of the plot have created false slates of electors, admitted their creative reinterpretation of the Constitution and the Electoral Count Act of 1877 is unlikely to pass the smell test, and have had their necessary co-conspirator, Mike Pence, refuse to participate.

Various other attempts to apply pressure to Mike Pence take place over the lead up to January 6, but what is important now is Trump’s own words on that day, informing (in his malformed way) his gathered supporters of Mike Pence’s unique and special responsibility to throw out the results of the 2020 election:

And I'll tell you. Thank you very much, John [Eastman]. Fantastic job. I watched. That's a tough act to follow, those two. John is one of the most brilliant lawyers in the country, and he looked at this and he said, "What an absolute disgrace that this can be happening to our Constitution."

And he looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so.

Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it. We're supposed to protect our country, support our country, support our Constitution, and protect our constitution.

States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. 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.

After telling his supporters this, and sending them “marching over to the Capitol building to peacefully and patriotically make your voices heard”, President Trump proceeded to watch as they broke into the Capitol, beat police officers, and shouted “Hang Mike Pence!” After Ashli Babbitt was shot to death, rather than telling people to go home, he tweeted this:

I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order—respect the Law and our great men and women in Blue. Thank you!

I cannot read Trump’s mind, but I can interpret his intent on January 6 based on his actions: to apply pressure to Mike Pence to go forward with his coup plot, by threat of a mob of Trump supporters. In this context, the long refusal to call off his mob speaks for itself.

Trump did not just incite a riot on January 6. He attempted a coup d’etat.

I will not say something like “thankfully, our institutions held,” because we are coming perilously close to reelecting the very same man, and it is looking increasingly unlikely that he will serve time for his crimes.

1. To be clear, his legal challenges were mostly meritless garbage, but that doesn’t matter. It is a necessary criterion of a functional justice system that parties respect its results. If they do not respect the results of a properly rendered judgment, they are attempting to overthrow the government (maybe you think that is fine, but that is what they are doing).

I was mauled by a German Shepherd while walking around my block, causing nerve damage up my left arm and costing me about $2,000 in medical bills. I know for an absolute fact that I was in the middle of the road and had done nothing to provoke the dog in question - I even have an audio recording of the event! However, my attempts to receive justice by getting a lawyer on contingent ultimately failed, with the lawyers dropping me with six months remaining before the statute of limitations, and me being unable to acquire new legal representation. The fact that I was denied justice by the legal system obviously does not mean I can break into the dog owner’s house and steal $2000 from him! It would be even worse for me to do so if I had actually gotten a judgment against me!