While America was preoccupied last week with getting home from the holidays or lining up around the block for COVID-19 testing, there was a bombshell development in the investigation to learn just how far Donald Trump was prepared to go in turning the Capitol Hill chaos of the Jan. 6, 2021, insurrection into a coup to end U.S. democracy.
Thanks to a somewhat surprising source — the disgraced former New York police commissioner Bernard Kerik, a Team Trump insider — we now know the name of a document with the potential to become a “smoking gun.” Just its title suggests Trump was planning an unprecedented abuse of presidential power — to use the Big Lie of nonexistent 2020 election fraud to undo the results of a free and fair vote.
On the eve of the one-year anniversary of the insurrection that disrupted Congress and left five people dead or dying, the question that looms large over 2022 is whether the American people will ever get to see this proof, or the other evidence of the 45th president’s involvement in election tampering, in inciting those who violently rioted on Capitol Hill — and whether the endgame was an autocoup to seize power and deny Joe Biden the White House.
According to a letter from Kerik’s attorney, the document is called “DRAFT LETTER FROM POTUS TO SEIZE EVIDENCE IN THE INTEREST OF NATIONAL SECURITY FOR THE 2020 ELECTIONS” — and it’s believed to have been written on Dec. 17, 2020. That was a critical time for the Trump insiders who were accelerating their schemes to deny the presidency to Biden, even after the Democrat won 7 million more popular votes and the Electoral College by a 306-232 margin.
Here’s the catch: While Kerik, a longtime close associate of Trump’s personal attorney Rudolph Giuliani, last week turned over some election-related materials to the House Select Committee tasked with getting to the bottom of Jan. 6, the draft letter from Trump is on a list of records that Kerik is refusing to turn over — claiming that the document is shielded as “attorney work product.” While some legal experts are already throwing cold water on that claim, the reality is that Team Trump has been remarkably successful for months in stonewalling — in keeping both key records and important witnesses out of investigators’ reach. In an echo of Richard Nixon’s Watergate scandal, the future of democracy may hinge on Trump’s ability to thwart the probe.
Understanding why the 12/17/20 document could be a “smoking gun” means understanding where the concept of a national emergency and “seizing evidence,” which could include paper ballots or voting machines from the 2020 election, fits into the growing body of data showing both that an attempted Trump coup was afoot — and why it failed.
First of all, the evidence that Trump had drafted a proposed “National Emergency” letter is completely in sync with last month’s bombshell revelation of a 38-page PowerPoint presentation that circulated among Trump’s inner circle and their allies in Congress just before Jan. 6. The PowerPoint laid out a scenario in which Trump would declare “a National Security Emergency” as a pretense to invalidate electronic voting and possibly prompt lawmakers to award electoral votes to the incumbent president in states that he’d in reality lost.
Of course, Trump didn’t ultimately declare such an emergency. But a series of new revelations has now deepened our understanding of what happened — and, just as important, what didn’t happen — on Jan. 6, and thus shed a lot of light on just how close America came to a full-blown coup attempt.
Nearly one year ago, there were a lot of loose threads about the events of Jan. 6 — and the violence that disrupted but didn’t prevent the official certification of Biden’s election victory — that didn’t seem to add up. Why was the Capitol so lightly defended, and why didn’t National Guard troops respond for hours as the building was overrun? Why didn’t the most militant groups, like the Oath Keepers, fight harder once the Capitol had been breached, and what was Trump himself doing as he watched the events unfold?
Now we know that learning what was happening behind the scenes at the Pentagon, which has operational control over the National Guard in Washington, D.C., may be the critical link to understanding how Trump’s inner circle thought it could stop the certification of Biden, and why it ultimately could not. A tell came exactly one year ago on Jan. 3, 2021, with a stunning op-ed from all 10 living ex-Pentagon chiefs warning against a role for the military in the election.
This came after Trump spent the weeks after Election Day replacing many Pentagon higher-ups with hard-core loyalists. But we now know the Joint Chiefs chair, Gen. Mark Milley, and the permanent military brass worked hard to make sure the National Guard didn’t get involved on Jan. 6 — thus blocking any chance troops would support a coup, yet also raising understandable questions why they didn’t quickly respond to violent pro-Trump insurrectionists.
Trump wouldn’t invoke the Insurrection Act against his own people — but his team fully expected bloody clashes with left-wing counterprotesters whom POTUS 45 had been pumping up as a threat for weeks. We now know, from the House investigation, that Trump’s chief of staff Mark Meadows stated in an email on Jan. 5 that the Guard was expected to act to “protect” pro-Trump demonstrators. Likewise, hard-core armed members of the militarized Oath Keepers were making plans to wait in a staging area in an Arlington motel.
What were Meadows, the Guard, Trump’s embedded allies in the Pentagon, and the Oath Keepers all waiting for? Presumably what they’d seen throughout 2020, peaking with mayhem in D.C. streets during a kind of trial run on Dec. 12, 2020 — violent clashes between Trumpists and left-wing counterprotesters. But leftists smartly stayed home on Jan. 6, egged on by a social media hashtag #DontTakeTheBait. Lacking the expected trigger for invoking the Insurrection Act and perhaps declaring a “national emergency,” both Trump and the Pentagon-led National Guard both were AWOL for hours.
Until now, little has been made public that would tie these schemes to invoke the Insurrection Act directly to Trump — instead connecting allies like Meadows and ad hoc advisers like the ex-Army colonel and psyops specialist Phil Waldron, likely author of the PowerPoint. That’s why the draft letter described last week by Kerik should be seen as a potential “smoking gun,” because it would prove that Trump was personally involved in the planning for a scenario that could have shut down the Capitol on Jan. 6.
And evidence that Trump himself was an active participant in a plot that saw the disruption of Congress, and its Electoral College certification, on Jan. 6 as its ultimate goal would also, legal experts argue, place the ex-president in the middle of a felony conspiracy scheme. Indeed, a key figure on the House Select Committee — the rogue Republican Rep. Liz Cheney of Wyoming — recently pointed specifically to Trump’s known or potential actions on Jan. 6 in the context of the federal law against impeding Congress.
This shows why 2022 looks to be such a critical year in the history of the United States. Trump and his associates are planning to spend the next 12 months hoping to obstruct Congress — much as Trump became skillful in blocking probes of his shady real estate or financial practices, with a web of lawsuits and outrageous claims. Although sitting presidents have the justified right to shield some of their sensitive White House communications, the current claims by Trump hangers-on — like Kerik, for example — of broad legal or executive privileges for who weren’t even part of the administration are absurd.
In the landmark, unanimous 1974 ruling in the United States v. Richard Nixon that started the chain of events that led to the 37th president’s resignation, the Supreme Court weakened the power of executive privilege claims in matters like a criminal trial when the desired secrecy doesn’t serve the wider public interest. That ruling is credited with steering America through a perilous moment. In 2022, the high court will likely be called on again, but decades of politicization feeding into Trump’s naming of three of the nine justices makes confidence more shaky.
I don’t want to be overly melodramatic, and God knows there are other ongoing crises in America — COVID-19, climate change, gun violence — but whether the Supreme Court ultimately allows the public to see what the former president knew about Jan. 6, and when he knew it, could decide whether we’ll keep the republic for much longer.
In 1974, the Supreme Court’s bipartisan resolve allowed the public to finally hear Watergate’s “smoking gun” — a White House tape confirming what had been long suspected, that Nixon abused his power as president over the CIA and FBI to rein in probes of that affair. In 2022, whether the public can read “DRAFT LETTER FROM POTUS TO SEIZE EVIDENCE IN THE INTEREST OF NATIONAL SECURITY FOR THE 2020 ELECTIONS” will again decide whether the president is completely above the law, and whether planning for what amounts to a 2024 version of the coup can proceed. For the sake of our democracy, secrecy is not an option.
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