Donnald Trump’s attorneys in 2020 thought that they had one advantage which nobody — not the Democrats, not lower-court judges, not Congress — could outmatch: the Supreme Court.
At their most feverish, attorneys for Trump believed that the Supreme Court could eventually be bullied into declaring Joe Biden the loser of the 2020 election and Trump the winner. They deployed a series of strategies, detailed in a trove of documents given to Michigan prosecutors by attorney Ken Chesebro, aimed at stoking a chaotic stalemate in Congress, thereby forcing the Court to act.
The same set of real-time emails and texts between Trump campaign officials and attorneys also shows how the group sought to influence individual justices as they filed lawsuits seeking to overturn Biden’s victory in several swing states. In the trove, attorneys game out which justices would view their claims most favorably, and speculate over how certain claims or lawsuits could create pressure to build a majority on the court.
At times, the Trump attorneys recognized that their play for the Supreme Court was a Hail Mary. It’s from that desperation, the documents suggest, that the push for chaos and delay emerged — a nearly hopeless quest to leave the Supreme Court as the only actor left standing, with Congress buckling under procedural radicalism.
But at other points, the lawyers seemed deadly serious in their speculation. John Eastman, the law professor, wrote in one email that he believed the Supreme Court would probably agree to invalidate Pennsylvania Supreme Court decisions about the election, but that the justices were “likely grappling with” the question of what “remedy” to provide. Chief Justice John Roberts would want “to account for the riots angle if they go our way,” Eastman imagined.
This story largely plays out in the final weeks before Jan. 6, after the Trump campaign had finished convening slates of its own, fake presidential electors who were willing to cast ballots saying Trump, not Biden, had won their state. To the Trump campaign, that scheme, too, was a means to theorize the high court into wrenching states that it lost away from Biden. As Chesebro wrote in late November to several attorneys working on the campaign’s effort to invalidate the Wisconsin result, the point of convening fake electors would be “to benefit from an eventual U.S. Supreme Court ruling” voiding the election result, allowing the Trump electors to swoop in and replace the Biden electors from their state in the Electoral College.
But it wasn’t until mid December, after the fake electors were sworn in — and after the Supreme Court signaled that it would not help the Trump campaign, rejecting on Dec. 11 a lawsuit filed by the state of Texas — that conversations about how to exert pressure on the justices began to accelerate.