Opinion: What Trump’s 2020 gambit could mean for the 2024 election

Fulton County Superior Judge Scott McAfee listens to Fulton County Special Executive District Attorney Daysha Young as she reads the plea agreement to defendant Kenneth Chesebro during an October 2023 hearing at the Fulton County Courthouse in Atlanta.

Fulton County Superior Judge Scott McAfee listens to Fulton County Special Executive District Attorney Daysha Young as she reads the plea agreement to defendant Kenneth Chesebro during an October 2023 hearing at the Fulton County Courthouse in Atlanta. Alyssa Pointer/Pool photo via AP


Published: 03-03-2024 3:00 PM

Jonathan P. Baird lives in Wilmot.

After the January 6 Committee released its report, it would be easy to conclude that we learned everything about Donald Trump’s attempt to stay in power after the 2020 election. Recent events show that is not the case.

The website Talking Points Memo produced a new series of articles that shed light on how lawyers for Trump attempted to create new pathways for Trump to stay in power. Much of the information that was the basis for the series were documents obtained from former Trump lawyer, Kenneth Chesebro. He turned over documents, including texts, emails and legal memos, to Michigan’s Attorney General Dana Nessel who has been investigating Trump’s fake electors scheme.

What the documents show is a somewhat different view of how Trump’s legal team wanted to keep the electors’ certification unresolved for as long as possible. They wanted to create chaos in Congress for weeks after January 6. The hope was that if they could create enough delay and confusion, they could get a case to the U.S. Supreme Court. They gamed out scenarios but their hope was that a deadlock would lead to the Supreme Court deciding Trump should stay on as president.

Among the colorful, ever-changing group of Trump attorneys, Chesebro stood out. A Harvard law graduate who had worked closely with famous constitutional law scholar Laurence Tribe and who had extensive appellate experience, Chesebro had a reputation as a creative thinker. His lawyer Manny Arora described how Chesebro differed from others on the Trump legal team: “He’s the only one who could validate what he was saying through facts and law versus talking about space lasers and Hugo Chavez.”

Chesebro provided a veneer of respectability to a disreputable enterprise. He was the brains behind the fake electors’ plan. He edited John Eastman’s memo that argued Vice President Mike Pence could reject electoral votes on January 6. Chesebro hoped Mike Pence would decline to open Biden electoral votes, especially in key swing states. He formulated multiple ways the Electoral Count Act, the procedure for how Congress certified the election, could be invalidated. Chesebro hoped to set off a constitutional crisis.

Because he knew Mike Pence was not on board, he had a contingency plan to organize a Senate filibuster. Using the claim of voter fraud, he proposed that Republicans try and overturn time that limited debate to two hours for every state. He wanted leading Republican senators like Ted Cruz, Mike Lee and Josh Hawley to lead the filibuster.

Before the Electoral Count Act was amended in 2022, one senator and one representative objecting to a particular state’s result could lead to a time-limited debate. Chesebro envisioned Congress becoming deadlocked in the face of the presentation of voter fraud in multiple states even though those allegations were consistently proven to be false.

Chesebro knew his best chance was to win over Mike Pence. He believed Pence could force hearings in swing state legislatures. These were the states where the Trump campaign had organized slates of fake electors. If Pence didn’t play ball, Chesebro believed he could use Senator Chuck Grassley (R-Ia), the president pro tempore of the Senate, to play the role Pence would not play with the Electoral Count Act. He wanted Senator Grassley to file a lawsuit to invalidate the Electoral Count Act when the Democrats protested.

Chesebro looked to the U.S. Supreme Court in the hope they could be forced to pick who would be president. Legal gambits were seen as the vehicle to reverse Trump’s electoral loss. Talking Points Memo quotes John Eastman as speculating that Chief Justice Roberts might be on their side if not for fear of how “to account for the riot angle.” That angle is the fear that the Supreme Court overturning Biden’s electoral vote win would lead to massive public protest and further discrediting of the Court.

January 6 is known for the insurrection but I would suggest it is Trump’s legal shenanigans which may prove to be even more dangerous. They could be re-employed by bad faith actors in 2024. Because the Electoral Count Act was amended in 2022 in Congress, legal ploys in 2024 will probably take a different form than those used in 2020.

In an important article in the Washington Spectator, “Dancing in the Dark: Steps to Avoid a Constitutional Coup in the 2024 Election,” Mark Medish and Joel McCleary spell out possible ways Trump and his allies might try again to upend the presidential certification process in the House. If the Republicans win the House in 2024 and maintain the speakership, there is potential for mischief. A lawless party believing in the Big Lie could seek an anti-majoritarian outcome.

Medish and McCleary note that in 2020 the current House Speaker Mike Johnson organized 138 Republican House members who were in the minority to refuse to certify Biden’s election. Trump has never accepted the result of the 2020 election and he will never accept any result other than winning. With a loss, potential jail time looms. Flashing lights should be going off. Trump has proven he is not someone who believes in the peaceful transfer of power.

Kenneth Chesebro pleaded guilty in Georgia to one felony count to commit filing false documents. He had provided state-specific instructions in battleground states for how Trump presidential elector nominees would meet and cast electoral votes for Trump even though Trump lost in those states.

We should expect more sketchy lawyers who will cross the legal line and spin for Trump in 2024. There is no shortage of unscrupulous lawyers who will say their efforts to overturn an election are protected by the First Amendment. Crafting pseudo-legal arguments to reverse democracy is unethical and criminal.

Lawlesssness and control by brute force are hallmarks of authoritarianism. All people who see the need to protect democracy should be anticipating and imagining the likely ploys by the MAGA Republicans. I don’t believe courts will save us. Saving democracy depends on the actions of the American people.