Editor’s Note: Dean Obeidallah, a former attorney, is the host of SiriusXM radio’s daily program “The Dean Obeidallah Show” and a columnist for The Daily Beast. Follow him @DeanObeidallah. The opinions expressed in this commentary are his own. View more opinion articles on CNN.
By the end of December last year, there wasn’t a good faith basis to demand the 2020 election be overturned. Then-President Donald Trump’s lawsuits challenging the results had failed, recounts in various states had confirmed Joe Biden’s win and the Electoral College had voted to affirm Biden as the President-elect.
But, as The Washington Post reported on Saturday, none of that stopped Trump allies from running a “command center” in Washington, DC’s Willard Hotel with a singular goal: “overturning the results of the 2020 election.”
The Post provided us with jaw-dropping details about the “command center,” which was at first set up at the Mandarin Oriental hotel by Trump’s personal lawyer Rudy Giuliani and former New York police commissioner Bernard Kerik. (Kerik, you might recall, pled guilty in 2010 to eight felonies, including tax fraud and lying to government officials, before he was pardoned by Trump in February 2020.)
This “war room” was later moved to the Willard to be closer to the White House. And at the outset, it appears the purported goal was to review the 2020 election results and advise Trump on options to challenge undesirable outcomes. But the details of this report show that this election “command center” operated less like an above-board strategy team and more like a group of people pushing for an attempted coup – and the burning question is what will be done about it to prevent future presidents from trying to do the same.
Along with Giuliani and Kerik, one of the other reported players in the “command center” was Steve Bannon, who was at the time out on $5 million bail after being charged in August 2020 with defrauding donors of hundreds of thousands of dollars in contributions to his own “Build the Wall” campaign.
Bannon – who was pardoned by Trump in his final hours in office – recently refused to comply with a subpoena issued by the congressional committee investigating the January 6 attack on the Capitol, which resulted in the House last week voting to hold him in criminal contempt. The House action means Attorney General Merrick Garland will decide whether to prosecute Bannon. You get the sense it’s not just Trump but the people around him who also think they are above the law.
To be clear, there’s nothing illegal about having lawyers and others review election results to determine if there was fraud or other suspicious activity, and then to file lawsuits to challenge results. Indeed, Trump’s lawyers and allies robustly litigated the 2020 election, filing over 60 lawsuits and losing all but one minor one in Pennsylvania that that dealt with curing absentee ballots.
Overall, the pro-Trump lawyers had their day in court claiming a range of alleged election misconduct – including fraud – and they lost. Even Trump’s own Attorney General William Barr declared on December 1 that “we have not seen fraud on a scale that could have effected a different outcome in the election.”
But by the end of December, the Post reports, Trump’s team was still working tirelessly from the Willard to achieve that “different outcome.” This cabal strategized to pressure Vice President Mike Pence to baselessly stop the congressional certification of Biden’s win on January 6 and send the results back to the states for further investigation.
It’s not clear what that investigation would’ve been about, given that there was no credible evidence of election fraud – other than a delay tactic to somehow allow the House of Representative to choose Trump as president, as Bannon and others had been urging. (If no presidential candidate reached 270 Electoral votes, the House then selects the president with each state delegation receiving one vote. Since the GOP controlled 26 delegations, they theoretically could elect Trump despite his losing the 2020 election.)
Boris Epshteyn, a former Trump White House special assistant, told the Post that he believed that Pence had “the constitutional power to send the issue back to the states for 10 days to investigate the widespread fraud and report back well in advance of Inauguration Day, January 20th … our efforts were focused on conveying that message.”
When violence broke out at the Capitol, Epshteyn said, “In line with President Trump’s position and message, the Trump legal team immediately made it clear that any and all violence is not acceptable.”
Even more alarming was The Post’s reporting that on January 2, Trump – along with Giuliani and another conservative lawyer – spoke via conference call to some 300 GOP state legislators urging them to “decertify” the election results based on alleged fraud. Trump reportedly told them, “You are the real power.” To Trump, GOP state officials were the “power” behind our democracy, not the voters of America.
One of the GOP state legislators on that call, Michigan Sen. Ed McBroom, told the Post that he listened in to see if Trump would provide evidence of voter fraud that could change the results in his state. McBroom explained that he wasn’t presented with any such evidence; thus, he refused to call for the Michigan results to be decertified.
That lack of evidence didn’t stop dozens of other GOP state legislators who were on that call from writing to Pence and urging him to delay certification of Biden’s victory for 10 days to allow “our respective bodies to meet, investigate, and as a body vote on certification or decertification of the election.” They were doing what Trump demanded so that he could remain in power, even though our courts – including judges Trump appointed – all ruled against his demands to overturn the election. But Trump didn’t care about our laws nor what the courts decided; he was laser-focused on remaining in power at any cost.
This is what an attempted coup looks like. Coups are not just tanks rolling in the streets. It’s an illegal attempt to overturn the will of the people to retain political power. And if the organizers of the failed coup are not punished, what’s to stop them from attempting another in the future?
Consequently, the question that must be addressed by the Department of Justice is this: Do the Trump team’s actions rise to the level of a federal crime, such as a conspiracy to interfere in a federal election? At least one law professor believes so.
But no one who supports our democratic Republic can read about these actions behind the scenes to overturn the 2020 election and not believe it was dangerous and wrong. And if this somehow does not violate our current laws, Congress needs to act swiftly to enact laws to criminalize such conduct. If not, the next attempt to overturn valid election results may succeed.