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Transition obstruction and recent pressure to overturn Wisconsin results should be part of the record

There’s an aspect of Donald Trump’s post-election actions — thus far not mentioned publicly by the Jan. 6 Select Committee — that should not be overlooked as the country absorbs the wealth of evidence the committee has released thus far. That aspect of Trump’s post-election conduct suggests that his intent from the beginning was to overturn the results of the election. He and those working for him did much to obstruct President-Elect Biden’s transition team from Nov. 8, 2020, the day after the Associated Press called the election for Biden, to the day of Biden’s inauguration, Jan. 20, 2021.

This obstruction highlights one of the themes running through the evidence the Jan. 6 committee has compiled: Trump’s unrelenting narcissism, regardless the cost to the country and indeed, the Free World.

One example: For nearly a month, Trump refused to allow Biden to get the daily intelligence briefing. Even Republicans said at the time that it was wrong.

Michael Chertoff, former homeland security secretary under George W. Bush, explained in November 2020 that the risk was “our adversaries look at a transition period as a moment of potential weakness which they will exploit if possible.”

The obstruction began almost immediately after media outlets began to call the election for President Biden. Less than 36 hours later, Emily Murphy, Trump’s General Services Administration chief, refused to “ascertain” the election winner. That responsibility — as critical as it is obscure — would have triggered official access by the Biden transition team to government information, office space, and equipment.

As the Washington Post put it, the GSA director’s execution of the necessary paperwork “amounts to a formal declaration by the federal government, outside of the media, of the winner of the presidential race.”

Transition work “all but halted … inside the Pentagon and intelligence agencies,” according to The New York Times. As Max Stier, president and chief executive of the nonpartisan Partnership for Public Service, said at the time, “The transition process is fundamental to safely making sure the next team is ready to go on Day One.”

Two weeks after the election — on Nov. 17 — Politico reported a completely unprecedented absence of briefings being given “about coronavirus, troop drawdowns in Afghanistan and Iraq, or aggression by China and Iran.” Even during the prolonged 2000 Bush-Gore election contest, President Bill Clinton began immediately to give George W. Bush the same national security briefings to which then-Vice President Al Gore already had access.

The fact that Trump continued his disregard for our security — not to mention our 224-year history of peaceful transitions of power — is circumstantial evidence that should be considered cumulatively with the other evidence amassed by the select committee.

Trump continued his obstinacy all the way out the door. He “became the first president in recent history not to attend the swearing in of his successor.”

That refusal to put his physical presence behind the transfer of power was not merely poor manners; rather, it fits right in with the video outtakes of Trump’s Jan. 7 video that the select committee produced in its eighth hearing on July 21. In clips the country had not seen before, Trump refused to read the portion of the script his staff had prepared which said the election was over.

In fact, Trump apparently is still attempting to overturn the 2020 results. Wisconsin state assembly speaker Robin Vos reported that Trump called him two weeks ago and pressed him to have the legislature decertify Biden’s election.

“I explained it’s not allowed under the Constitution. He has a different opinion,” said Vos.

That call signals two things.

First, it’s a sign that Trump is getting more desperate to have the protection of the presidency from criminal charges, as he has reportedly admitted — and even before 2024. He has also taken a pummeling in the select committee hearings, and he knows it. What’s worse, the stars are rising for Republican politicians who hope to compete for the 2024 GOP nomination. 

Second, it reminds us that, as Dan Rather has written, the coup is continuing. Some 120 “election deniers” are currently running for state office in 2020. Others are likely to surface as Election Day approaches.

As they say, the sequel is always worse than the original. With more time to prepare the groundwork, battleground state legislatures controlled by Republicans are in position to declare the Republican nominee in their states the election winner regardless of the popular vote.

And dangerously, the Supreme Court has taken a case from North Carolina and may be poised to embrace a fringe-theory of constitutional law called the “independent state legislature doctrine.” Watch this space.

Citizens who seek to preserve their right to elect leaders of their choice will need to do whatever they can to elect state legislative candidates who vow to preserve democracy this November, as well as federal candidates. “It’s a republic,” Benjamin Franklin is said to have said, “if you can keep it.”

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.

Eugene R. Fidell is an adjunct professor of law at New York University and a senior research scholar at Yale Law School. He is of counsel at the Washington, D.C., law firm Feldesman Tucker Leifer Fidell LLP.

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