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Dear Reader,

What if they all went along with it?

What if the Justice Department had gone along with Donald Trump? Jeffrey Clark – who has taken the Fifth and was recently the subject of a federal search warrant – would have become acting attorney general, the top prosecutor in the country. The Justice Department would have issued a formal letter, under its weighty seal, declaring that prosecutors had uncovered evidence of election fraud “that may have impacted the outcome of the election in multiple States, including the State of Georgia,” and calling on those states to hold special legislative sessions to consider appointing electors for Trump, even though Joe Biden had rightly won those states’ votes. And the Justice Department would have filed a federal lawsuit seeking to invalidate the results of six swing states that had gone for Biden.

What if state and local election officials had gone along with it? In key states that Biden had won, secretaries of state would have gone back and “found” enough votes to declare Trump the winner – by a single vote, if necessary – and handed those states’ electoral votes over to Trump. 

What if governors and state legislatures had gone along with Trump? Several states would have called special legislative sessions – as recommended by DOJ – to retroactively override their states’ popular votes and then awarded their electors to Trump instead of Biden.

What if the courts had gone along with it? Judges across the country would have declared the election results in several swing states invalid, either handing those votes over to Trump (via state legislatures) or calling for new elections. 

What if the White House counsel had gone along with it? Pat Cipollone and Eric Herschmann would have nodded in agreement as Sidney Powell, Michael Flynn, Rudy Giuliani, and other delusional extremists recommended that Trump send federal agents to seize voting machines and name Powell special counsel in charge of election fraud.  

What if Mike Pence had gone along with it? He would have stood up in front of Congress on January 6th, announced that as vice president he was unilaterally rejecting the electoral votes from at least seven states, and then “gavel[ed] President Trump as re-elected,” as Trump’s crooked lawyer, John Eastman, proposed. (Eastman, like Clark, has now taken the Fifth.)

While watching the January 6th Committee hearings unfold over the past several weeks, I kept coming back to this question: what if they went along with it? 

As the Committee wraps up its initial slate of public hearings, I’m reminded of just how close we came to utter chaos. The phrase “constitutional crisis” is, in my view, overused. It should refer only to a situation where we simply don’t know what to do next. No doubt, we’ve faced all manner of explosive, controversial, difficult moments throughout our history, particularly over the past few years. Constitutional processes like impeachment, counting of the electoral votes, and invocation of the 25th Amendment can be messy and difficult – but at least we know how they work, for the most part. 

But if you play out some of the scenarios outlined above – if any of them had gone along with it – then I can’t tell you what would have happened next.

Thankfully, we didn’t reach that point. That’s due largely to the actions of an array of public officials who refused to go along with Trump’s plot to steal the election. Jeffrey Rosen, Richard Donoghue, Steven Engel, and other DOJ officials stood up for the Department’s independence and integrity. State and local election officials like Brad Raffensperger and Gabriel Sterling refused to betray their states’ voters, and held firm to the actual election results. (Special nod here to Wandrea Moss and other Georgia poll workers who came under vicious, unsubstantiated attacks from Trump and his minions for simply doing their jobs and faithfully counting ballots.) State legislators like Arizona House Speaker Rusty Bowers declined to engage in Trump’s recommended election-fixing. Cipollone and Herschmann counseled against the wildest abuses of power that had been recommended to Trump by his lunatic fringe advisors. Pence and his staff stood strong and refused to corrupt the counting of the electoral votes, at Pence’s political (and eventually physical) peril.

It’s worth noting that most of these people who held the fort are staunch Republicans, some chosen for their roles by Trump himself. Give them credit for standing strong in the face of enormous political pressure from heavy hitters in their own party and doing the right thing in moments of crisis.

I can already hear the protest: how can you praise these people when they did objectionable things before they stood up to Trump? Indeed, I’ve been quite critical before of Rosen’s lackluster performance at DOJ, often enabling or passively facilitating abuses of power by Trump and William Barr. Some of our subjects, including Raffensperger and Bowers, have inexplicably declared that they would still vote for Trump in 2024, or at least wouldn’t rule it out. And Pence wasn’t exactly an exemplary vice president, on the whole. (Count me out on Cipollone’s proposal to award Pence the Congressional Medal of Freedom.) 

It’s also fair and necessary to ask why some of these folks didn’t speak out publicly until they were forced to do so, more than a year later, by the Committee. All of the people we’re considering here can absolutely be blamed for waiting this long to come forward, many of them doing so only when compelled by Congressional subpoena.

So here’s where I come out on this in the final wash: we’re not dealing with saints and sinners here. We’re dealing with human beings, inherently imperfect, each subject to unique fears, motivations, and frailties. We don’t need to knight these folks or declare them flawless superheroes to appreciate what they did. It’s enough simply to give credit where due. 

This is my ultimate takeaway from this first series of January 6th Committee hearings: we came so close, but our institutions held. Maybe just barely, but they held; Joe Biden was rightly sworn in at noon on January 20, 2021, and Donald Trump is no longer president. Part of that is a credit to our constitutional framework, the legal and political guardrails put in place centuries ago, that facilitate the transition of power. (We can no longer say a “peaceful” transition of power, sadly – but at least power was ultimately transitioned.)

Beyond that, we were reminded that our system, at bottom, is about people. We need people to do their jobs, at all levels, with some measure of integrity and good faith. Otherwise, all the well-intentioned and well-conceived rules in the world become useless or, worse, can be turned to evil ends. Shudder to think what might have happened if, for example, Giuliani had been attorney general at the time, or if Powell was in charge of Homeland Security, or if Jim Jordan was vice president. (If that sounds outrageous, consider what a Trump 2024 cabinet might look like.)

Luckily, we had the right people in place at the right time to save us from calamity – or, perhaps, the right enough people. Feel free to love or hate whatever they’ve done over the rest of their careers. But they deserve credit for holding firm when it mattered most.

Stay Informed,

Elie