2.2 The Plan Emerges

¶More than a month before the Presidential election, the media reported that the Trump Campaign was already developing a fallback plan that would focus on overturning certain election results at the State level. An article published on September 23, 2020, in The Atlantic explained, “[a]ccording to sources in the Republican Party at the State and national levels, the Trump Campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground States where Republicans hold the legislative majority.”¹⁵¹⁵ Barton Gellman, “The Election That Could Break America,” Atlantic, (Sept. 23, 2020) available at https://www.theatlantic.com/magazine/archive/2020/11/what-if-trump-refuses-concede/616424/. Ominously, the same reporting predicted, almost exactly, what would later come to pass: “With a justification based on claims of rampant fraud, Trump would ask State legislators to set aside the popular vote and exercise their power to choose a slate of electors directly.”¹⁶¹⁶ Barton Gellman, “The Election That Could Break America,” Atlantic, (Sept. 23, 2020) available at https://www.theatlantic.com/magazine/archive/2020/11/what-if-trump-refuses-concede/616424/.

¶Numerous senior Trump Campaign advisors—including Campaign Manager William Stepien, Deputy Campaign Manager and Senior Counsel Justin Clark, and President Trump’s lead attorney Rudolph Giuliani—all told the Select Committee that there was, indeed, a State-focused “strategy” or “track” to challenge the outcome of the election, which included pressing State legislators to challenge results in key States and to appoint new electoral college electors.¹⁷¹⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of William Stepien, (Feb. 10, 2022), pp. 145-46, 148-53, 158; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Justin Clark, (May 17, 2022), pp. 96, 98; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Rudolph Giuliani, (May 20, 2022), p. 42. Although certain Select Committee witnesses confirmed the existence of this state-focused strategy, none testified that they knew about the strategy before the election.Show full note

¶“You know, in the days after election day, later in that first week, bleeding into the second, as our numbers and data looked bleaker, internally we knew that,” Stepien told the Select Committee.¹⁸¹⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of William Stepien, (Feb. 10, 2022), pp. 145-46. “As the AP [Associated Press] called the race, I think some surrounding the President were looking for different avenues to pursue.” That’s when Stepien remembered the concept first coming up.¹⁹¹⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of William Stepien, (Feb. 10, 2022), pp. 145-46.

¶Those around President Trump were pushing this idea, and pushing it hard.

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¶Just two days after the election, President Trump’s son, Donald Trump, Jr., forwarded to White House Chief of Staff Mark Meadows a suggestion that “State Assemblies can step in and vote to put forward the electoral slate[,] Republicans control Pennsylvania, Wisconsin, Michigan, North Carolina, etc. we get Trump electors” and so “we either have a vote WE control and WE win OR it gets kicked to Congress 6 January . . .”²⁰²⁰ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM011213. Donald Trump Jr. publicly urged State legislators to help the same day. He called on Twitter for his father to “go to total war over this election” and retweeted a post by Fox News host Mark Levin urging Republican State legislatures to “GET READY TO DO YOUR CONSTITUTIONAL DUTY” by exercising “THE FINAL SAY OVER THE CHOOSING OF ELECTORS.” David Knowles, “As Vote Count Swings Toward Biden, Trump’s Backers Hit the Caps-Lock Key on Twitter,” Yahoo! News, (Nov. 5, 2020), available at https://www.yahoo.com/video/as-vote-count-swings-toward-biden-trump-backers-hit-the-caps-lock-on-twitter-223931950.html.Show full note Chief of Staff Meadows responded: “Working on this for pa, ga and nc already.”²¹²¹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM011318 (November 6, 2020, text message from Mark Meadows to Donald J. Trump, Jr.).

¶Within one week after the election, Meadows had also sent or received several other similar messages:

“The state legislature can take over the electoral process”—Mark Meadows’s text to Georgia State Senator Marty Harbin.²²²² Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM011296 (November 5, 2020, text message from Mark Meadows to Marty Harbin).

“Agreed”—Mark Meadows’s text to a different sender, who suggested that the Trump Administration “should get that out there” if they were “seriously considering the state legislature strategy.”²³²³ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM011686, MM011687 (November 9, 2020, text messages between Mark Meadows and Russell Vought).

“I will tell him”—Mark Meadows’s text to a sender who suggested President Trump “[s]tart building momentum for the state legislatures.”²⁴²⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM011560, MM011563 (November 7, 2020, text messages between Mark Meadows and Rep. Warren Davidson).

“I love it”—Mark Meadows’s text to Representative Andy Biggs, who relayed what he acknowledged as a “highly controversial” idea to have “Republican legislature’s (sic)” “appoint a look doors (sic) [electors].”²⁵²⁵ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM011449, MM011451 (November 6, 2020, text messages between Mark Meadows and Rep. Andy Biggs).

“. . . Why can’t the states of GA NC PENN and other R controlled state houses declare this is BS (where conflicts and election not called that night) and just send their own electors… I wonder if POTUS knows this . . .”—former Secretary of Energy Rick Perry to Mark Meadows.²⁶²⁶ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM011087 (November 4, 2020, text message from Rick Perry to Mark Meadows).

¶Another White House official exploring such a plan less than a week after the election was Vince Haley, Deputy Assistant to the President for Policy, Strategy and Speechwriting. He suggested:

“. . . Imagine if every red state legislature slated zero electors. It would reveal that we are a red country. To do this we would have to jack this to the nth degree as a battle of tribes . . . .”²⁷²⁷ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Vincent Haley Production), VMH-00004070, p. 44; see also Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Vincent Haley Production), VMH-00003041.

¶Haley pushed this strategy in several texts and emails, including to Assistant to the President and Director of Presidential Personnel Johnny McEntee,²⁸²⁸ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Vincent Haley Production), VMH-00003543 (November 5, 2020, email from Vincent Haley to Johnny McEntee and Dan Huff re: State legislature plenary power under Constitution to state electoral college electors); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Vincent Haley Production), VMH-00003559 (November 5, 2020, email from Vincent Haley to Johnny McEntee and Dan Huff re: more notes on state legislature strategy); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000010233_0001 (November 6, 2020, email chain between Vincent Haley, Johnny McEntee, and Daniel Huff re: Contact Info of key leaders in key States); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000010198_0001 (November 6, 2020, email from Vincent Haley to Johnny McEntee and Daniel Huff re: Horowitz: How Republican-controlled state legislatures can rectify election fraud committed by courts and governors - TheBlaze); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000010225_0001-10226_0001 (November 6, 2020, email from Vincent Haley to Johnny McEntee and Daniel Huff re: Contact info of key leaders in key States and attaching contact info); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Vincent Haley Production), VMH-00004070, 4103-04, 4111-12, 4124-25 (various text messages between Vincent Haley, Johnny McEntee, and Daniel Huff discussing the state legislature plan).Show full note an individual Haley characterized as “a very trusted lieutenant” for President Trump, “a direct conveyor to Boss with ideas,” and “[a]t his side almost all the time.”²⁹²⁹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Vincent Haley Production), VMH-00003009 (November 8, 2020, email chain between Vincent Haley and Newt Gingrich re: More of my exchange with John); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Vincent Haley Production), VMH-00004103 (November 6, 2020, text message from Vincent Haley to Randy Evans).Show full note

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¶For Haley, however, purported election fraud was a way to justify President Trump-friendly legislatures changing the outcome of the election, but there were other reasons for doing so, too. Election fraud was “only one rationale for slating Trump electors,” Haley told McEntee, and “[w]e should baldly assert” that State legislators “have the constitutional right to substitute their judgment for a certified majority of their constituents” if that prevents socialism.³⁰³⁰ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Vincent Haley Production), VMH-00002107 (November 5, 2020, email chain between Vincent Haley, Daniel Huff, and Jonny McEntee re: more notes on the state legislature strategy). Haley added, “[i]ndependent of the fraud—or really along with that argument—Harrisburg [Pennsylvania], Madison [Wisconsin], and Lansing [Michigan] do not have to sit idly by and submit themselves to rule by Beijing and Paris,” proposing that radio hosts “rally the grassroots to apply pressure to the weak kneed legislators in those states . . .”³¹³¹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Vincent Haley Production), VMH-00004103 (November 6, 2020, text message from Vincent Haley to Johnny McEntee).

¶McEntee replied “Yes!” and then: “Let’s find the contact info for all these people now.”³²³² Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Vincent Haley Production), VMH-00004104 (November 6, 2020, text message from Vincent Haley to Johnny McEntee). Hours later, Haley sent him names and—in most cases—cell phone numbers for top GOP legislators in six States, suggesting “. . . for POTUS to invite them down for a WH meeting . . .”³³³³ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000010225_0001 - 076P-R000010226_0001 (November 6, 2020, email from Vincent Haley to Johnny McEntee and Daniel Huff re: Contact info of key leaders in key States and attaching contact info); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000010233_0001 (November 6, 2020, email chain between Vincent Haley, Johnny McEntee, and Daniel Huff re: Contact Info of key leaders in key States).Show full note The President would later call several named in that message, including Rusty Bowers and Karen Fann in Arizona; Lee Chatfield and Mike Shirkey in Michigan; and Jake Corman in Pennsylvania.³⁴³⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000010225_0001 - 076P-R000010226_0001 (November 6, 2020, email from Vincent Haley to Johnny McEntee and Daniel Huff re: Contact info of key leaders in key States and attaching contact info).

¶Others weighed in with the President about a State-focused plan, too. Some were already looking ahead to January 6th.

¶On November 8th, former Speaker of the House Newt Gingrich met President Trump at the White House.³⁵³⁵ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Vincent Haley Production), VMH-00004122-VMH-00004123 (November 8, 2020, text messages between Vincent Haley and Johnny McEntee). Two days later, he sent a follow-up note to the President’s executive assistant titled “please give to POTUS[,] newt.”³⁶³⁶ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000010533_0001 (November 10, 2020, email from Newt Gingrich to Molly Michael re: Only two options—please give to POTUS newt). It suggested that “[t]he only way Trump loses is rigged system” and added that President Trump could encourage “GOP legislatures elect not to send in electors,” forcing a House vote by State delegations on January 6th that Gingrich expected President Trump would win.³⁷³⁷ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000010533_0001 (November 10, 2020, email from Newt Gingrich to Molly Michael re: Only two options—please give to POTUS newt). Meadows replied: “Thanks Speaker.”³⁸³⁸ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000010586_0001 (November 10, 2020, email from Mark Meadows to Newt Gingrich re: Only two options—please give to POTUS newt).

¶Newsmax CEO Christopher Ruddy had President Trump’s ear and reportedly spoke with him by phone at least four times before December.³⁹³⁹ Solange Reyner, “Newsmax CEO Ruddy: Trump ‘Very Concerned’ That Dems Will Steal Election,” Newsmax, (Nov. 4, 2020), available at https://www.newsmax.com/newsmax-tv/chris-ruddy-2020-elections-democrats-white-house/2020/11/04/id/995386/; Christopher Ruddy (@ChrisRuddyNMX), Twitter, Nov. 12, 2020 4:43 p.m. ET, available at https://twitter.com/ChrisRuddyNMX/status/1327004111154319360; “Digest of Other White House Announcements (Administration of Donald J. Trump, 2020),” Government Publishing Office, p. 114, available at https://www.govinfo.gov/content/pkg/DCPD-2020DIGEST/pdf/DCPD-2020DIGEST.pdf; Michael M. Grynbaum and John Koblin, “Newsmax, Once a Right-Wing Also-Ran, Is Rising, and Trump Approves,” New York Times, (Nov. 22, 2020), available at https://www.nytimes.com/2020/11/22/business/media/newsmax-trump-fox-news.html; Cordelia Lynch, “Trump Ally on President’s Next Move after Thanksgiving Phone Call,” Sky News, (Dec. 4, 2020), available at https://news.sky.com/story/trump-ally-on-presidents-next-move-after-thanksgiving-phone-call-12150612; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000009409_0001 (December 2, 2020, email from John McLaughlin to Molly Michael re: Newsmax National Poll).Show full note He forwarded a memo to other close advisors of the President recommending that the Trump team persuade one or more Republican-led chambers in Arizona, Georgia, Michigan, Pennsylvania, Wisconsin, and even Minnesota to “pick a separate competitive State slate of Electors,” which the memo predicted might turn January 6th into “a cat-fight in Congress wherein VP Pence is Presiding.”⁴⁰⁴⁰ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM008861-MM008865 (November 7, 2020, email from John McLaughlin to Mark Meadows and Newt Gingrich re: “Gerald Brant’s birthday party/ my Nov 7, 2020 memo on ON ‘ELECTORAL L COUNT ACT OF 1887’ AND REPUBLICAN PATHWAYS: [sic],” and attaching memo forwarded by Christopher Ruddy).Show full note

¶Attorney and conservative activist Cleta Mitchell was recruited by Mark Meadows immediately after the election to assist the Trump Campaign’s legal work.⁴¹⁴¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Cleta Mitchell, (May 18, 2022), pp. 14-15; Jeremy Herb and Sunlen Serfaty, “How GOP Lawyer Cleta Mitchell Joined Trump’s ‘Team Deplorables’ Advancing His False Election Fraud Claims,” CNN, (Oct. 13, 2021), available at https://www.cnn.com/2021/10/13/politics/trump-mitchell-georgia-election/index.html.Show full note By November 5th, she emailed Dr. John Eastman of Chapman University,⁴²⁴² Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Cleta Mitchell, (May 18, 2022), pp. 74-75. who would later play an outsized role pushing a theory about what Vice President Pence could or couldn’t do during the January 6th joint session of Congress that is detailed in Chapter 5 of this Report. In her email, Mitchell asked Eastman to write a memo justifying an idea that State legislators “reclaim” the power to pick electors and asked, rhetorically, “Am I crazy?”⁴³⁴³ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman006671. Dr. Eastman wrote the memo, entitled “The Constitutional Authority of State Legislatures to Choose Electors,” and sent it along for sharing “widely.”⁴⁴⁴⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman007670- Chapman007671, Chapman008087 (November 9, 2020, email chain between John Eastman, Lisa Nelson, Rep. Seth Grove, and Cleta Mitchell re: Connections for today! and attaching memo).

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¶According to the Office of Presidential Scheduling, President Trump was scheduled to meet in the Oval Office on November 10th with Morgan Warstler and John Robison, Texas entrepreneurs close to former Governor Rick Perry.⁴⁵⁴⁵ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production),076P-R000010584_0001 (November 10, 2020, email chain scheduling an external meeting with President Trump). The next day, Warstler tweeted that he “[w]as in Oval yesterday,”⁴⁶⁴⁶ Break Up DC (@BreakItUp3), Twitter, Nov. 11, 2020, available at http://web.archive.org/web/20201111104529/https://twitter.com/BreakItUp3/status/1326475581005950976 (“Was in Oval yesterday. You are right.”). For attribution of the account to Warstler, see The RSnake Show, “S01E10 - Morgan Warstler,” YouTube, at 1:43:00 - 1:44:00, Apr. 20, 2022, available at https://www.youtube.com/watch?v=k-ojD3QAYfo; Break Up DC (@BreakItUp3), Twitter, June 16, 2022, available at http://web.archive.org/web/20220616124842/https://twitter.com/BreakItUp3/status/1537414050510000128 (“NO it is not. I went to the Oval right after election and spent an hour with Trump sitting at Resolute desk. I explain it all here: https://youtu.be/k-ojD3QAYfo?t=2724 … Hint : the electoral count act is unconstitutional—there is only one slate of electors- whatever the state leg says”).Show full note and months later wrote that “I told whole Trump team in Oval” that “State legislatures can choose the electors-no matter what current state law OR state courts say.”⁴⁷⁴⁷ Break Up DC (@BreakItUp3), Twitter, June 15, 2022 7:40 p.m. ET, available at http://web.archive.org/web/20220615234134/https://twitter.com/BreakItUp3/status/1537218579225268225 (archived) (“She literally was advocating what I told whole Trump team in Oval- it’s a fact - state legislatures can choose the electors- no matter what current state law OR state courts say . . . just ratify it amongst themselves That’s WHY they call it a plenary power ever since Bush v. Gore.”).Show full note

¶After this apparent meeting, John Robison sent the White House an email entitled “URGENT follow up to our Tuesday Meeting with POTUS,” that he asked be printed out for the President to “explain the move forward plan for what was discussed.”⁴⁸⁴⁸ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000008528_0001 - 076P-R000008530_0001. The email stated that “[President Trump] liked the plan we presented to use a parallel path of state legislators,” and the attached memo proposed hundreds of briefings for State lawmakers by President Trump’s surrogates and members of the Freedom Caucus.⁴⁹⁴⁹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000008528_0001 - 076P-R000008528_0003, 076P-R000008530_0001 - 076P-R000008530_0002. The email envisioned President Trump hosting “4+ MONSTER RALLY-TRIALS” with “[t]ens of thousands of Trump voters staring up at the GOP state legislators from their districts who ALONE control which slate of electors their state will submit,” a proposal that seemed to foreshadow the State hearings that Rudolph Giuliani and President Trump championed less than a month later.⁵⁰⁵⁰ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000008528_0001-076P-R000008528_0003, 076P-R000008530_0001-076P-R000008530_0002.

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¶Deputy White House Chief of Staff Dan Scavino called Robison’s message “Bat. Shit. Crazy,” but the President’s executive assistant, who was asked to print it for the President, wrote “Printed,” and may have shared it with the President anyway.⁵¹⁵¹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000008531_0001, 076P-R000008257_0001.

¶By then, President Trump was engaged. According to Stepien, his Campaign Manager, the State-focused strategy came up in a November 11th meeting among close advisors as “something to consider.”⁵²⁵² Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of William Stepien, (Feb. 10, 2022), pp. 151-52. At that point, the election had been called, but the President “was very interested in keeping pathways to victory open, so [Stepien] believe[d] [the President] found the concept intriguing.”⁵³⁵³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of William Stepien, (Feb. 10, 2022), p. 153. This fits with several major news reports at the time. The New York Times reported that President Trump went into the meeting on the 11th with “something he wanted to discuss with his advisors,” and “press[ed] them on whether Republican legislatures could pick pro-Trump electors in a handful of key states and deliver him the electoral votes he needs.” Maggie Haberman, “Trump Floats Improbable Survival Scenarios as He Ponders His Future,” New York Times, (Nov. 12, 2020, updated Nov. 23, 2020), available at https://www.nytimes.com/2020/11/12/us/politics/trump-future.html. Similarly, late on November 11th, the Washington Post reported that President Trump had “raised the idea of pressuring state legislators to pick electors favorable to him,” and the Wall Street Journal also called the option of state legislatures picking new electors “one potential strategy” discussed by his legal team. Philip Rucker, Josh Dawsey & Ashley Parker, “Trump Insists He’ll Win, But Aides Say He Has No Real Plan to Overturn Results and Talks of 2024 Run,” Washington Post, (Nov. 11, 2020), available at https://www.washingtonpost.com/politics/trump-election-results-strategy/2020/11/11/a32e2cba-244a-11eb-952e-0c475972cfc0_story.html; Rebecca Ballhaus, “What Is Trump’s Legal Strategy? Try to Block Certification of Biden Victory in States,” Wall Street Journal, (Nov. 11, 2020), available at https://www.wsj.com/articles/what-is-trumps-legal-strategy-try-to-block-certification-of-biden-victory-in-states-11605138852.Show full note Then, the plan “just started happening” even though it was something Stepien, “honestly, kind of dismissed at hand,” characterizing it as one “of the crazy, crazier ideas that w[as] thrown out, in and around that time.”⁵⁴⁵⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of William Stepien, (Feb. 10, 2022), p. 148-49.

¶But not everyone was convinced. On November 19th, the prior Republican Presidential nominee, Senator Mitt Romney (R-UT), issued a harsh public condemnation of President Trump’s open and notorious efforts to overturn the election:

Having failed to make even a plausible case of widespread fraud or conspiracy before a court of law, the President has now resorted to overt pressure on state and local officials to subvert the will of the people and overturn the election. It is difficult to imagine a worse, more undemocratic action by a sitting American President.⁵⁵⁵⁵ Senator Mitt Romney (@MittRomney), Twitter, Nov. 19, 2020 10:36 p.m. ET, available at https://twitter.com/MittRomney/status/1329629701447573504.

¶Senator Romney was right to identify and decry President Trump’s actions. And yet, in hindsight, it is clear that the effort to pressure State and local officials by the Trump team was only just getting started.