Lawmakers worry 2020 will provide a blueprint for stealing a future election

Officials fear that unless Congress changes the 19th century law controlling presidential elections, a future election could be overturned. Legally.

Both a federal judge and the top Republican on the House committee investigating the Jan. 6 riot have now reached the same stark conclusion: There is evidence to suggest Donald Trump’s effort to overturn the 2020 election could be a crime.

Rep. Liz Cheney, R-Wyo., said last weekend that her panel had compiled enough facts to refer Trump to the Justice Department for criminal prosecution, while U.S. District Judge David Carter wrote last month that Trump and others undertook “a coup in search of a legal theory.”

Neither has the power to bring charges against the former president. That’s up to Attorney General Merrick Garland, whose focus to date has largely been on the people who stormed the Capitol in a violent effort to keep Trump in power. 

Trump denies any wrongdoing, and his allies contend that Cheney has lost credibility as any sort of fair broker. Pointing to Cheney’s persistent criticism of Trump, South Dakota Gov. Kristi Noem, a Republican, told NBC News: “I couldn’t see the point in it other than that she was angry and bitter.” 

But amid reports of a split within the House Jan. 6 panel over whether to make a direct case to Garland that he needs to target Trump, the members seem wholly unified when it comes to another point: There might well be another attempted coup in 2024, and Jan. 6 supplied the blueprint for pulling it off.

That fear is helping to shape the committee’s plans for hearings, slated to start next month. 

“Our focus is showing the country how close we came to losing our democracy, and why we’re not out of the woods,” Rep. Adam Schiff, D-Calif., a member of the House committee, told NBC News.

Members plan to hold public hearings that will lay out the evidence they’ve gathered and describe a multi-pronged effort to disenfranchise voters by handing the losing presidential candidate a second term. 

The committee’s main audience will be the general public; another is Garland. But to the extent that people watching from home are alarmed by what they learn, the hope is that it could pique Congress’ interest and give fresh incentive to rewrite the 19th- century law that controls the process used to tabulate presidential elections. After watching 2020 unfold, some elected officials and election experts fear the Electoral Count Act could be exploited in ways that might give Trump or someone else a victory in 2024, whether they win enough votes or not. No laws even need be broken. 

“A lot of what we saw in 2020 and the aftermath of the election was testing the waters to see where there are weaknesses in the system of laws that govern us,” Arizona’s Secretary of State, Katie Hobbs, a Democrat, told NBC News. If there is no “accountability and tightening up of these laws, we are at risk of these things happening again,” added Hobbs, who is now running for governor.

Fake electors

One focus of the Jan. 6 panel is alternate, or what critics call “fake,” electors, who surfaced in the last presidential election. Dozens of people from five swing states that President Joe Biden won signed documents purporting to be “duly elected and qualified” electors and declaring that Trump was the victor. (In two other states, New Mexico and Pennsylvania, the documents included caveats saying their legitimacy depended on whether Trump was ultimately found to be the winner).

The slates were sent to Washington, where Trump loyalists prepared to use them to his advantage. A memo written by John Eastman, an attorney who was advising Trump at the time, spelled out several scenarios in which Vice President Mike Pence, presiding over the count, could recognize the rival slates of pro-Trump electors, triggering a chain of events that ended with Trump winning. To Trump’s dismay, Pence didn’t go along. He wound up certifying Biden’s victory.

“The idea was to try to negate and nullify the Electoral College votes by getting the vice president to proclaim these new powers and then to exercise those powers by asserting that there was controversy and uncertainty at the state level and a disputed Electoral College situation,” Rep. Jamie Raskin, D.-Md., a member of the Jan. 6 committee, told NBC News. “There was not.”

Even stalwart Trump supporters in Congress were leery of relying on alternate electors whose candidate — Trump — didn’t actually win.

In a series of text messages published Friday by CNN, Sen. Mike Lee, R-Utah, wrote to White House chief of staff Mark Meadows three days before the insurrection: “I’d love to be proven wrong about my concerns. But I really think this could all backfire badly unless we have legislatures submitting (T)rump slates (based on a conclusion this was the proper result under states law).” The committee did not comment on the text messages. Lee Lonsberry, a spokesperson for Lee, said: “The text messages tell the same story Sen. Lee told from the floor of the Senate the day he voted to certify the election results of each and every state in the nation.”

Both the Jan. 6 committee and the Justice Department are examining how these slates of Trump electors came into being. On Thursday, the committee heard eight hours of testimony from Stephen Miller, a top Trump White House adviser, who talked publicly about the alternate electors in December on the day they were gathering.