Donald Trump’s attempt to overturn the 2020 election depended on one key thing that he never received: the blessing of Republican-controlled state legislatures. But it wasn’t for a lack of trying.
The select committee intends to lay out Tuesday how Trump leaned on statehouse Republicans — from Pennsylvania, to Georgia, to Michigan, to Arizona and others — to pull off a scheme that would culminate on Jan. 6, 2021, when then-Vice President Mike Pence presided over the counting of electoral votes.
Under Trump’s plan, Pence would be presented with competing slates of electors — those certified by the governors, and those certified by state legislators — and he would assert the extraordinary power to choose which slates to count. But no state legislature responded to Trump’s demand, and Pence, without any genuine controversy, rejected the scheme as illegal.
In fact, the legality of the plan will be at the heart of Tuesday afternoon’s hearing, which will be led in part by panel member Rep. Adam Schiff (D-Calif.). It’s the select panel’s fourth public hearing as investigators lay out their findings.
Members of Trump’s inner circle began contemplating the notion of turning to state legislatures even before the election was called for Joe Biden. On Nov. 5, 2020, conservative attorney Cleta Mitchell — who had been leading preelection preparations for Trump’s legal team — reached out to Eastman with a request.
“John – what would you think of producing a legal memo outlining the constitutional role of state legislators in designating electors?” Mitchell wondered. “Rather than governors, the US Constitution vests that responsibility with state legislators. … why couldn’t legislatures reclaim that constitutional duty, and designate the electors – rather than delegating to governors.”
Eastman wrote a memo later that month, which was then forwarded to the Oval Office by Trump campaign attorney Jenna Ellis, according to documents obtained by the Jan. 6 select committee. As Trump’s legal challenges to the election began to fail and states began certifying Biden’s victory, Eastman began consulting directly with state legislators, encouraging some to simply retabulate their popular votes in order to show Trump in the lead.