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New evidence of Trump election illegality also has a silver lining

Notes from a December phone call highlight the importance of key Republicans who withstood enormous pressure from Trump and his allies.
President Donald J. Trump speaks with Mexican President Enrique Pe?a Nieto by phone on Aug 27, 2018, in Washington.
Democracy will survive if enough people want it to — and are willing to do the work.Jabin Botsford / The Washington Post via Getty Images file

As part of his scheme to overturn the 2020 election, then-President Donald Trump — according to handwritten contemporaneous notes documenting a December phone call — pressed senior Justice Department officials to announce that the election was “illegal and corrupt.”

As part of his scheme to overturn the 2020 election, then-President Donald Trump pressed senior Justice Department officials to announce that the election was “illegal and corrupt.”

Trump’s Dec. 27 phone call with then-acting Attorney General Jeffrey Rosen and Deputy Attorney General Richard Donoghue demonstrates two main things. First, it provides new evidence that Trump’s attempt to overturn the election may have broken federal law. It also suggests that the quite possibly illegal effort failed at least in part because enough officials, including lifelong Republicans and conservatives, withstood his pressure.

According to Donoghue’s notes, which were obtained by the House Committee on Oversight and Reform, Rosen told Trump: “understand that the DOJ can’t + won’t snap its fingers + change the outcome of the election, doesn’t work that way.” Trump replied, according to the notes: “Don’t expect you to do that, just say that the election was corrupt + leave the rest to me and the R. Congressmen.” Trump also implied that he would fire anyone who didn’t comply. “People tell me Jeff Clark is great,” he said. “I should put him in. People want me to replace DOJ leadership.” (Jeff Clark led the Justice Department's civil division.)

18 USC § 610 makes it a crime “for any person to ... attempt to intimidate, threaten, command, or coerce, any employee of the Federal Government ... to engage in, or not to engage in, any political activity.” Whether or not Trump violated federal law during this phone call depends on whether he tried to “coerce” or “command” Justice Department officials to make such an announcement. Admissible evidence can include circumstantial evidence, the power balance between Trump and the Justice Department officials and whether Trump had a habit of coercing and commanding people to act against their will in this manner.

In fact, this wasn't the first time Trump pushed, hard, for his officials and allies to bend or break the rules to further his dubious agenda. Throughout his presidency, Trump applied subtle pressure alongside threats, implied or more explicit. Among others, Andrew McCabe, former deputy director of the FBI, and Preet Bharara, the former U.S. attorney for the Southern District of New York, have both offered examples.

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In a 2019 “60 Minutes” interview, McCabe told the story of how, shortly after Trump fired FBI Director James Comey, Trump summoned McCabe to a meeting. Trump offered McCabe a “gleeful” (and false) description of how people in the FBI were “thrilled” that Trump had fired Comey because “people really disliked Jim Comey and that they were very happy about this and that it was, it was a great thing.”

McCabe knew it wasn’t true. McCabe also knew Trump expected him to “adopt” this falsehood. McCabe refused and immediately knew that he’d “given him the wrong answer.” McCabe also knew he could lose his job if he continued to refuse to echo Trump’s lies about Comey and Robert Mueller’s investigation. As it turned out, Trump not only made sure McCabe was fired; he also called for McCabe to be stripped of his pension after more than 20 years of service.

Bharara tells a similar story. Bharara was startled when Trump personally reached out to him shortly after he became president. “It was odd,” Bharara said on his podcast in 2017, “because as a general matter, presidents don’t speak directly to United States attorneys. You know the number of times President Obama called me? Zero.” The calls were particularly awkward because Bharara was prosecuting alleged Russian money launderers and Russian mobsters in Trump’s own stomping grounds of Manhattan. The calls felt distinctly uncomfortable. Worried that Trump was trying to cultivate an inappropriate relationship with him, Bharara says, he refused the next call. Trump fired him 22 hours later.

Michael Cohen, Trump’s former personal attorney and “fixer,” noted a similar dynamic during his 2018 testimony before the House Oversight Committee. Trump, Cohen said, doesn’t openly order anyone to lie in his behalf. “That is not how he operates,” Cohen testified. He described how, for example, during the 2016 campaign, while he was negotiating with Russian officials to build Trump Tower Moscow, Trump often asked how the negotiations were going. Then he would tell Cohen that he had “no business in Russia.” “In his way, he was telling me to lie,” Cohen said. And for many years, Cohen obeyed these “orders,” a decision he says he later regretted.

But while Cohen went along with Trump for too long, many of the president’s later attempts were far less successful. This is a silver lining highlighted by the Donoghue notes.

For example, Trump famously tried to pressure Brad Raffensperger, Georgia’s Republican secretary of state and a lifelong conservative, to “find” the votes Trump needed to declare himself the winner in Georgia. "All I want to do is this,” Trump told Raffensperger. “I just want to find 11,780 votes, which is one more than we have. Because we won the state." Raffensperger refused because, in fact, Trump hadn’t won the state. “I live by the motto that numbers don't lie. As secretary of state, I believe that the numbers that we have presented today are correct,” he said. Raffensperger, Georgia Gov. Brian Kemp and their families endured ridicule and death threats from Trump supporters but never gave in.

In Arizona, Trump allies claimed that the use of Sharpie pens invalidated some ballots. Mark Brnovich, Arizona’s attorney general, said he would investigate the use of the Sharpies. A day later, he tweeted that he was satisfied that the pens had had no effect on the election.

Tina Barton, a Republican city elections clerk in Michigan, said she answered the phone in November to find someone from Trump’s campaign asking her to sign a letter raising doubts about the election. She refused — and got death threats.

Even Trump-appointed judges refused to go along. At least nine judges appointed by Trump heard claims brought by Trump’s legal team that the election was stolen. None of them went along.

In her book “Strongman: Mussolini to the Present,” New York University professor Ruth Ben-Ghiat explains that strongmen like Trump come to power with the backing of conservative “elites,” such as party leaders, elected officials and respected commentators. She also explains that they tend to lose power when they lose the backing of these elites.

We often debate whether democratic institutions — which include courts, legislative bodies, election boards, a free press and regulatory and law enforcement agencies — can withstand the onslaught of an autocrat or a would-be tyrant.

In fact, institutions can be no stronger than the people who form them.

But I’ve often said democracy will survive if enough people want it to — and are willing to do the work. Those people include not only voters but also key officials and the thousands who make up our agencies and institutions.

Last year, our agencies and institutions were run by enough people, including lifelong conservatives and Republicans, who were able to withstand the enormous pressure placed on them by Trump and his allies. We’ve been given many examples of this since November — and the new information provided by House Democrats reinforces this point.