December 11, 2021
The picture of what was happening at the White House in the days before the January 6 insurrection is becoming clearer. (While we also have a decent idea of what was happening at the Department of Justice, what was happening at the Pentagon remains unclear.)
Shortly after Trump’s White House chief of staff Mark Meadows announced on Tuesday that he would no longer cooperate with the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, committee chair Bennie Thompson (D-MS) wrote a letter noting that Meadows had already shared material—thus indicating he did not consider it privileged—that he is now saying he won’t discuss. Thompson identified some of that material.
He said Meadows had provided the committee with an “email regarding a 38-page PowerPoint briefing titled ‘Election Fraud, Foreign Interference & Options for 6 JAN’ that was to be provided ‘on the hill’; and, among others, a January 5, 2021 email about having the National Guard on standby.”
Journalists immediately began looking for that PowerPoint. Slides began to surface, and then a whole slide deck appeared on the internet. The Guardian’s Hugo Lowell verified it on Friday. The fact that members of the president’s inner circle actually prepared a presentation for an audience about how to overturn an election crystallized just how close the nation came to a successful coup on January 6.
The PowerPoint presented three ways for then–Vice President Mike Pence to overturn Biden’s election and hand the presidency back to Trump. Pence could simply seat the slates of electors Trump supporters had organized to replace the official slates certified by the states. Pence could insist on rejecting all electronic ballots. Or Pence could delay the counting of the ballots long enough to throw the election into the House of Representatives, where each state gets one vote. Since there were more Republican-dominated states than Democratic-dominated states, Trump would be reelected.
Then, also on Friday, news dropped that Trump campaign lawyer Jenna Ellis had produced two memos—one previously unknown—outlining far-fetched legal arguments to justify Pence throwing the election to Trump. One, dated December 31, said he could simply refuse to open the envelopes containing the electoral votes of states whose results Trump contested.
A second, dated January 5, made a more complicated argument claiming for Pence more authority to determine the outcome of the election than the vice president has exercised since the 1887 Electoral Count Act.
Today, Robert Costa, the Washington Post reporter who wrote the book Peril with veteran journalist Bob Woodward about the fraught weeks surrounding the January 6 insurrection, laid out the timeline for early January in the White House.
In December, right-wing lawyer John Eastman began drafting the Eastman Memo calling for Pence to refuse to count electors from states Biden won and laying out a number of ways Pence could throw the election to Trump. (Trump’s own loyal attorney general, William Barr, and his deputy Jeffrey Rosen, who replaced Barr when he resigned on December 23, 2020, had already concluded the election was not fraudulent.) The plan, as Costa and Woodward put it in Peril, was: “Either have Pence declare Trump the winner, or make sure it is thrown to the House where Trump is guaranteed to win.”
The White House had the memo by January 1. Meadows was working with the Trump team to push the ideas in it. Someone in the White House gave it to Senator Mike Lee (R-UT) and others on January 2. Meadows met with both Senator Lindsey Graham (R-SC) and Trump lawyer Rudy Giuliani in Meadows’s office on January 2 to brief Graham, who was then the chair of the Senate Judiciary Committee, on what they claimed was voter fraud. Graham demanded proof.
On January 3, Pence conferred with the Senate parliamentarian, who told him he was simply there to count the votes. It was clear he was not on board with Trump’s plan.
On January 4, Trump called Pence to the Oval Office to pressure him. Eastman presented his case to Pence; Pence’s chief of staff, Marc Short; and Pence’s legal counsel, Greg Jacob. On that day, someone presented the PowerPoint to a number of Republican senators and members of the House.
Apparently, none of the people briefed called the attention of the FBI to the coming attempt to overturn the election.
On the evening of January 5, Trump called Pence to a meeting as his supporters were gathering on Freedom Plaza near the White House. The people in the streets were cheering and waving “Make America Great Again” flags. Trump asked Pence to throw the election to the House of Representatives; Pence again said he did not have authority to do anything other than count the certified electoral votes.
And then, according to Costa and Woodward in Peril, Trump asked: “Well, what if these people say you do?” gesturing to the crowds outside. “If these people say you had the power, wouldn’t you want to?”
Pence, who would have been the face of the insurrection if he had done as he was asked, still said no.
That night, Trump called his people in the so-called “war room” at the Willard Hotel, where loyalists had been trying to figure out a way to delay certification if Pence didn’t cave. He called the lawyers and the non-lawyers separately, since Giuliani wanted to preserve attorney-client privilege. “He’s arrogant,” Trump told his lieutenant Stephen Bannon.
They appear to have settled on a plan to get Republican lawmakers to raise enough objections that it would delay the counting long enough to throw the election into the House of Representatives. (This squares with the voicemail Giuliani left for newly elected Senator Tommy Tuberville (R-AL) in the midst of the insurrection, saying: “The only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow—ideally until the end of tomorrow.”)
Since his memo became public, John Eastman has said it “was not being provided to Trump or Pence as my advice.... The memo was designed to outline every single possible scenario that had been floated, so that we could talk about it.” When subpoenaed by the January 6 committee, Eastman declined to appear, asserting his Fifth Amendment right against self-incrimination.
Since journalist Lowell broke the story of Trump’s calls to the Willard the night of January 5, Trump’s spokesperson has said that the account “is totally false” but provided no more information.
Since the story of the PowerPoint dropped, retired U.S. Army colonel Phil Waldron, who was working with the Trump team to challenge the election results, claimed authorship of it. Waldron told the Washington Post that he met with Meadows “maybe eight to 10 times” and was the one who briefed several members of Congress about the information in his presentation on January 5.
Since Politico dropped the story about her memos, Trump lawyer Jenna Ellis said: “At no time did I advocate for overturning the election or that Mike Pence had the authority to do so…. As part of my role as a campaign lawyer and counsel for President Trump, I explored legal options that might be available within the context of the U.S. Constitution and statutory law.”
Yesterday, the January 6 committee subpoenaed six more people who had been involved in planning the rallies in Washington on January 5 and January 6. Some of them communicated with Trump directly; one communicated with Representative Mo Brooks (R-AL). Subpoenas went to Bryan Lewis, Ed Martin, Kimberly Fletcher, Robert “Bobby” Peede Jr., Max Miller, and Brian Jack.
On Monday, December 6, we learned that Pence’s chief of staff, Marc Short, has been cooperating with the January 6 committee.
Bob Woodward and Robert Costa, Peril (New York: Simon & Schuster, 2021), p. 212, 229.