Donald Trump lost the 2020 presidential election by 7 million actual votes and 74 electoral votes, a fate that was cemented in early November after states finished counting ballots. But to Trump, that was simply the starting point of the second phase of the battle to steal Joe Biden’s victory by any means possible.
Trump had spent months — years, really — laying the groundwork. He’d repeatedly sowed doubt about the security of elections, without evidence, leveraging long-standing Republican rhetoric about election fraud as a personal defense mechanism. The advent of the coronavirus pandemic allowed Trump to apply a new sheen to the old claims, focusing on an increase in mail-in ballots as a conduit for what he insisted would be an avalanche of fraudulent voting. It allowed him to falsely suggest that anything counted after, say, midnight on Election Day was suspect — which he did, over and over.
Many Americans justifiably see the riot at the U.S. Capitol in Washington on Jan. 6 as the apex of the effort to keep Trump in office. It was certainly the most dangerous moment and the most striking, but even it was nearly matched a few hours later when a majority of the House Republican caucus voted to block the counting of electoral votes from two states, precisely the outcome that the rioters hoped to effect. In recent months, though, we’ve learned that Trump’s most direct effort to steal the election unfolded about a week prior, over the last few days of 2020.
On Tuesday, ABC News published a letter circulated by the then-acting head of the Justice Department’s civil division, a man named Jeffrey Clark. Addressed to Georgia Gov. Brian Kemp (R) and state legislative leaders, the draft letter dated Dec. 28 claimed that the department was “investigating various irregularities” in the presidential contest and that it had “identified significant concerns that may have impacted the outcome of the election.” The stated recommendation was that the legislature “convene in special session so that its legislators are in a position to take additional testimony, receive new evidence, and deliberate on the matter” — something that the letter describes as “consistent with its duties under the U.S. Constitution” as it pertains to the selection of presidential electors.
The letter went on to suggest that an alternative slate of electors — that is, electors for Trump — might be accepted on Jan. 6 should the legislature demand that happen. Understanding that Kemp had already risen to the defense of the results in the state, Clark claimed in the letter that the legislature could simply call itself into session to make that determination.
It was, in other words, a road map to overthrowing the will of voters. The amount of detail given to the mechanism for handing the electors to Trump was matched by the dearth of specificity about the alleged “irregularities” in the state.
The acting attorney general, Jeffrey Rosen, and acting deputy attorney general, Richard Donoghue, rejected the letter out of hand — a well-founded decision that nonetheless prevented a dicey situation from getting worse. Donoghue’s lengthy response, one probably written with an eye toward it eventually being read by external eyes, made all of the points you might expect. The purported “irregularities” amounted to nothing more than a few ticky-tack questions about individual votes, concerns “that are of such a small scale that they simply would not impact the outcome of the Presidential Election,” Donoghue wrote. Nothing he knew of, he added, would amount to “significant concerns” elsewhere that would similarly call the results into question.
“More importantly,” he added, “I do not think the Department’s role should include making recommendations to a State legislature about how they should meet their Constitutional obligation to appoint Electors.” In other words: It is not the Justice Department’s place to tell states how to overturn election results.
Sending the letter, he concluded, was “not even within the realm of possibility.”
By itself, this back-and-forth is probably without precedent. But slotted into the other events we know were occurring at the same time, we see just how desperately Trump was scrambling to gain a toehold in his efforts to upend a Biden presidency.
Remember, this was after every state had already certified its results (something that Trump and his allies tried desperately to prevent, coming close in Michigan). It was after the electors had met Dec. 14 and finalized their formal votes to be transmitted to D.C. (That Georgia Republicans held their own invalid vote on Trump’s behalf was an element of Clark’s proposal.) In other words, there was no real way for the results to shift, barring something exceptional. So Trump and his allies tried to gin up something exceptional, with a particular focus on Georgia.
The attorney general who served Trump so loyally in the second half of his administration, William P. Barr, left the administration on Dec. 23, elevating Rosen to that position. Barr had already publicly rejected the idea that rampant fraud had occurred, earning Trump’s ire. Barr’s departure was announced Dec. 14 — and Trump’s team wasted no time in pressuring Rosen on their fraud claims. Trump’s assistant sent Rosen a document that afternoon purporting to show fraud in Michigan. On Dec. 15, the president called Rosen into the Oval Office to insist that he file legal arguments claiming that the election was stolen. Rosen refused.
On Dec. 27, with Rosen now running the Justice Department, Trump called the acting attorney general. Notes from the call taken by Donoghue that were released last week show the thrust of the conversation.
Trump suggested that Rosen's team “may not be following the internet the way I do,” which was certainly true, given that Trump was busily elevating many obviously unreliable online claims to his millions of followers on social media. Trump needed to “understand that the DOJ can’t + won’t snap its fingers + change the outcome of the election, doesn’t work that way,” Rosen replied, according to Donoghue's notes.
“[I] don’t expect you to do that,” Trump said in response, “just say that the election was corrupt + leave the rest to me and the R. Congressmen.”
That latter assurance was probably centered on Trump’s looking forward to lawmakers challenging the vote on Jan. 6, as they in fact did. (Trump had also already begun encouraging his supporters to come to D.C. that day, promising in a tweet on Dec. 19 that the day “will be wild!”) But Trump clearly felt that the lawmakers would need something more substantive in hand before the day arrived. On Dec. 29, for example, Trump’s assistant sent Rosen and Donoghue a draft lawsuit the president hoped would be filed with the Supreme Court. It mirrored a lawsuit filed by the state of Texas that the court had already declined to hear.
The day after the “just say the election was corrupt” call, Clark circulated his letter that just said exactly that. But Clark’s letter was almost certainly not something that occurred independently of Trump. Clark was introduced to Trump by Rep. Scott Perry (R-Pa.), and he began talking with Trump directly. (Perry at another point also forwarded Donoghue a document detailing debunked claims about fraud in his state.) Trump began speculating about tossing Rosen in favor of the more acquiescent Clark, something Clark obviously favored. On Dec. 31, Rosen and Donoghue met with Clark to tell him to back off his false claims about the election, unaware that he had Trump’s ear.
On Jan. 2, Trump called Georgia Secretary of State Brad Raffensperger and said members of his team just “need more time” to uncover “the big numbers” of fraudulent ballots, a search that remains unrequited. He accused Raffensperger of violating the law by not taking steps to acknowledge Trump’s imaginary fraudulent ballots.
“All I want to do is this,” Trump said. “I just want to find 11,780 votes, which is one more than we have because we won the state.”
Then just leave the rest to him.
The next day, Clark told Rosen that he was going to be made acting attorney general by Trump. That led to a contentious meeting in the Oval Office involving all three men in which Trump weighed making such a switch to advance his fraud claims. A number of senior Justice Department officials had promised to resign should it happen, which the New York Times credits with helping preserve Rosen’s job. But that outcome was by no means certain. Replacing Rosen would probably have meant a quick issuance of Clark’s letter and a public rationalization for Georgia’s Republican-led legislature to act in support of Trump’s effort to snatch away the state’s electoral votes.
With Jan. 6 approaching, Trump continued to try to shake free Georgia’s electoral votes. The U.S. attorney for Georgia, a Trump appointee, resigned on Jan. 4 after receiving a call spurred by the White House complaining about his failure to launch investigations of alleged fraud. (The president of Ukraine can empathize.) But it was soon too late to redirect the vote-counting on Jan. 6, save for the efforts of the pro-Trump rioters.
That does not mean the effort has stopped. Trump continues to try to gin up doubt about the election results, despite the lack of a mechanism for being reinstated as president. Even now, his approach is the same as it was seven months ago: Just get someone, somewhere to say that something untoward happened, and leave the rest to him.
correction
This article originally misspelled Jeffrey Clark's first name as Jeffery. The article has been corrected.
