Trump and His Allies Will Argue Their “Soft Coup” Attempts Were Legal. Could They Prevail?

Photo by Bill Clark (CQ/RollCall)

As I’ve written about recently, Rep. Liz Cheney summed up the former president’s legal peril in a single statement: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?” The question dovetails with a criminal obstruction statute that the Department of Justice has now begun applying successfully against the actual rioters on January 6—one that carries up to a 20-year sentence. Cheney seems focused on the “inaction” of the former Commander-in-Chief, going on television over the weekend to blast Trump for simply watching the horrific events unfold on television and doing nothing, even after being asked twice by his daughter Ivanka to come forward and call a stop to the attack. Did this amount to a dereliction of duty?

Inaction is deplorable, but often it’s not sufficient for criminal liability to attach. But there are also several things we already know about the active attempts by Trump and his allies to hang on to power despite having lost the election in 2020. Could those lead to criminal charges for the parties involved? The Trump Campaign “soft coup” playbook contained several options, and the evidence shows that all of them were in some way attempted:

• Pressure state officials to refuse to certify, or after the fact undo, the certification of their electoral counts due to alleged election fraud;

• Convince GOP-controlled state legislatures, with the imprimatur of the Department of Justice, to appoint new “alternate” slates of electors based on claims of election fraud;

• Replace uncooperative Attorney General Rosen with a lackey who would do Trump’s bidding;

• Pressure Vice President Mike Pence to exceed his ministerial role during the electoral count to declare Trump the winner anyway, or a least to sow enough confusion as to delay the count and the declaration of the winner; and

• Delay the electoral count by having over 100 GOP representatives rise to object to the counts of several swing states.

There is also an explosive allegation, underscored yesterday by the Jan. 6 Committee Chair Bennie Thompson, that the White House intended to “change the outcome of the election by bringing people to Washington” and that “if all else failed, weaponize the people who came by sending them to the Capitol.” The evidence for this “hard coup” hasn’t yet been made public, so let’s set this aside for a moment because if true, it’s a gamechanger.

In assessing each of the “soft” coup plans and actions, there’s an underlying, important question that must be addressed: Did the White House know that its claims about election fraud were false? The reason this matters is that if the Trump Campaign truly believed it was acting in defense of democracy (bear with me here) it becomes harder to argue that they shouldn’t be able to deploy all legal procedures at their disposal, even if some of those were heavy-handed. 

This is best understood if you turn the tables. Let’s imagine that in 2024, with Trump running again, there really is widespread election manipulation and fraud as GOP-appointed commissioners simply refuse to count ballots from heavily African American districts like Detroit, Philadelphia, Atlanta and Milwaukee. The Department of Justice begins investigating. After chaotic court battles, some GOP-controlled state legislatures with an assist from their governors pass bills appointing electoral slates that reflect the will only of the votes counted to date, effectively disenfranchising millions and giving Trump states he didn’t really win. By Electoral Count day in January 2025, Trump is ahead by a point in the electoral college.

In this scenario, we can imagine many Democrats, desperate to prevent a fraudulent election, urging Vice President Harris to refuse to declare Trump the winner because of widespread election shenanigans. We can picture calls for the Department of Justice to make arrests and for President Biden not to concede in the face of fraud.

My larger point is, because this is a battle between political parties, and the law governing the way votes are counted and disputes resolved is pretty much by convention and not by formal process in the U.S. Constitution, there’s unfortunately a lot of wiggle room. To a third of the country, even today, what the former president and even the rioters did on January 6 was patriotic and heroic because they believe, albeit falsely, that the election really was stolen.

Where the defense begins to unravel is if the Trump Campaign knew that its claims were false and made them the cornerstone of their efforts anyway. That would in theory mean they perpetuated a fraud upon the United States and participated in a conspiracy to corruptly obstruct an official proceeding, in this case the counting of votes by Congress on January 6.

There is already strong evidence that the Trump Campaign assuredly did know the claims were false. After all, the campaign drafted and circulated an internal memo debunking the main Dominion and Smartmatic voting machine and software conspiracies as early as mid-November of 2020, but it ignored its own report and continued to spew the conspiracies and lies, not to mention raise hundreds of millions of dollars on the back of these false claims. (This is the reason the Jan. 6 Committee is also pondering criminal referrals for wire fraud.) Who saw that memo and discussed it will be a key point of contention and testimony.

The Trump Campaign also “knew” the fraud claims were false because when it had the opportunity to allege them in court, the Campaign either refused to do so or got smacked down quickly for failure to allege it with specificity as required by law. Further, the White House’s own election security experts and the Department of Justice said flat out that there was no election fraud. Yet Trump’s telling response, according to meeting notes by Department of Justice official Richard Donoghue, was to suggest they “just say the election was corrupt + leave the rest to me and the R. congressmen.” In short, at a minimum Trump apparently didn’t care if the claims were true or not because he understood they were very useful either way.

Fitting this same pattern, when Trump made his infamous recorded phone call one year ago on January 3, 2021 to Georgia Secretary of State Brad Raffensperger, he was told point-blank that the election in Georgia was free and fair. Yet Trump pressed his case anyway: “So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have. Because we won the state.”

The law often provides for situations where actual knowledge isn’t required, but rather the mens rea (or guilty mind) of the defendant can be demonstrated by showing that they acted in “reckless disregard” of the facts and the risks. A court, in theory, could find that Trump Campaign knew or should have known that the claims it was making about election fraud were false, and that every act in furtherance of the soft coup attempts, undertaken under that knowledge or reckless disregard for the facts, was part of a corrupt attempt to obstruct an official proceeding.

While this sounds promising, the law is fairly vague about whether acting “corruptly” includes acting in reckless disregard of the facts because the claims you are making, even if untrue, are conveniently and immensely helpful to you. This is why it would be enormously helpful if cooperating witnesses—such as Richard Donoghue or staffers within the Trump campaign—would testify publicly that the White House knew its claims were false but used them pretextually to achieve its ends. 

While this knowledge may seem obvious to critics, it still requires proof, especially because so many of the biggest champions for the Big Lie, from Mike Lindell to Sidney Powell to Rudy Giuliani, appear to still be caught up in it and remain its staunchest believers and advocates—along with a majority of Republicans. Trump’s lieutenants appear to have acted with all the passion of religious zealots sworn to a cause—even if now they are saddled with doubts, regrets and lawsuits for defamation.

So exactly how much of the Trump Campaign’s actions were theatrics and how much were based on false and misguided beliefs? It is a question many hundreds of insurrectionists soberly must face and admit to in court as the true extent of the former president’s manipulations and lies are laid bare to them. And it is a critical question for the January 6 Committee to get to the heart of in the coming months.