‘They cheat like hell’: The fallout from the attack on the Capitol

It was a memorable image: a shirtless, tattooed man wearing a headdress of fur and horns, face painted in red and white, storming into the Senate chamber in the Capitol building in Washington, DC. In one hand, a megaphone, in the other, a six-foot-long spear adorned with the American flag. This was the suddenly famous Jacob Chansley, one of the first rioters to force their way past overwhelmed police and into the seat of the US government on the afternoon of January 6, 2021, two months after Donald Trump had lost the 2020 presidential election and refused to concede defeat.

Chansley, also known as the QAnon Shaman, made his way to a dais where, just minutes before, vice president Mike Pence had been standing. Surrounded by rioters who included right-wing militia and white nationalist extremists, Chansley held what was later described as a conspiracy-laden prayer session. “Thank you for allowing the United States of America to be reborn,” he said. “Thank you for allowing us to get rid of the communists, the globalists and the traitors within our government.”

The bizarre, shocking and ultimately fatal events of January 6 were more than a riot. This was an insurrection: a violent, organised attempt to overthrow or disrupt the operations of the legislature. It was the first time the Capitol building had been stormed since British troops set it on fire using torches and gunpowder paste in 1814. And it was the first time that rebels had tried to subvert democracy at the behest of the sitting president himself.

Could it happen again after next month’s US presidential election? What, exactly, led to the storming of the Capitol in 2021? How is the groundwork being laid for new challenges to next month’s presidential election?

What might happen if Trump loses the November election?

Could Trump summon another mob to Washington if he loses? Anything is possible, though the Capitol is likely to be much better defended this time. Not only have the lessons of 2021 been learnt, the joint session of Congress that will formally declare the election result has been designated a “national special security event”, giving the Secret Service a much greater role to prepare for the kind of attack that occurred in 2021.

Where Trump is likely to make headway this time is through grinding legal challenges at every level, designed to tilt the balance of votes his way or, failing that, to put the election result in enough doubt that it will be settled by Congress or the Supreme Court.

“Trump’s plan in 2024 is to, essentially, begin the process of contesting election results from the ground up,” says Prudence Flowers, senior lecturer in US history at Flinders University. “There’s all this stuff going on even before the election to pave the way, I think, for a dispute.”

The Republican National Committee is already robustly contesting the validity of absentee votes, drop boxes (where you can post your vote without going to a polling booth) and the kinds of people who are eligible to vote. Right-wing groups have challenged the eligibility of more than 100,000 people in states includ­ing Ari­zona, Wiscon­sin, Geor­gia, North Car­o­lina, Michigan and Nevada since Novem­ber 2020, according to an investigation by the Financial Times. On election day itself, the Republican National Committee’s election litigation team has claimed it will deploy an army of 100,000 poll observers who could disrupt voting and the count.

No avenue is, apparently, too trivial. For example, the committee has been in and out of court to prevent students and employees from the University of North Carolina at Chapel Hill from showing their school-issued digital ID cards, on their phones, as proof of identity at the polls. In Michigan, the committee is arguing that postal votes should be deemed invalid unless they are accompanied by a written statement from election officials verifying the voter’s signature on the absentee ballot request form.

‘We’ve got to be careful because, remember, they cheat like hell.’

Donald Trump

Congressman Scott Perry and five other Republican members of Congress from Pennsylvania, meanwhile, have filed a lawsuit seeking to have ballots from the military and Americans living overseas set aside, arguing the system for verifying such ballots is insufficient. The case is one of about 100 filed this year by Republican allies of Trump, The New York Times reports. “They coincide with widespread claims by Mr Trump and others that the election will be rigged.”

In August, Trump told a crowd in Georgia: “We have to vote, and we have to make sure that we stop them from cheating because they cheat like dogs.” Later that month, he said: “Any time you have a mail-in ballot, there is going to be massive fraud.” And he told a rally in September: “We have a good lead, but we’ve got to be careful because, remember, they cheat like hell.”

Flowers suggests Trump’s goal, should he lose, could be to bring about a “contingent election” – a constitutional mechanism that hasn’t been called upon to elect a president since John Quincy Adams emerged victorious in 1825.

A quick civics recap. The so-called electoral college comprises representatives from each state and territory who formally elect the president in the aftermath of the popular vote. These electors gather in person and ceremonially vote for their party’s candidate; they will do so on December 17. Their votes will be drawn up on “certificates of ascertainment”, which will be physically sent to Washington to be ratified during a joint session of Congress, on January 6, 2025, concluding with the formal declaration of the president’s election. There are 538 of these college votes up for grabs; a majority of 270 is required to win the presidency. Most states operate on a winner-takes-all basis, which can make races tight. In 2000, the election hung on Florida, whose 25 electoral college votes eventually went to George W. Bush, making him president, after a controversial Supreme Court verdict.

What Trump may be planning, as he is accused of doing in the 2020 election, is to have Congress declare some electoral college votes invalid, based on accusations of fraud or electoral interference. If Congress somehow did decide not to accept some states’ electoral college votes, a situation could arise where neither candidate gets the 270 majority they need to win. In that – extremely unlikely – case, Congress will announce a contingent election, as directed by the 12th Amendment of 1804, in which the House of Representatives directly elects the president and the Senate elects the vice president.

Historically, this has only ever been used to separate a race in which several candidates have collected the votes of the electoral college, leaving no single candidate with an outright majority. However, the Congressional Research Service notes that the “extended political struggle” over the 2000 Florida election results “raised the possibility that its electoral votes might be challenged and excluded by Congress, an action that would have denied either candidate a majority of electoral votes, thus requiring a contingent election”.

‘Any loophole, any weakness they can find in the law anywhere, they will try to exploit it … Probably things we haven’t even heard of yet.’

David Smith, University of Sydney

Another of Trump’s strategies, suggests Zim Nwokora, associate professor of politics and policy at Deakin University, could be to contest the results all the way to the Supreme Court, where he might expect the majority-Republican-appointed judges to favour his case. Again, this was what eventually decided the result in Florida, when the court controversially stopped a manual recount of the vote. (That election famously centred on “hanging chads”, the tiny fragments of paper that remained attached when the ballot papers had been incorrectly punched through.) “I think that’s a worrying possibility, certainly. If it’s a close election then there’s a chance you could end up in the courts,” says Nwokora. “We could end up with multiple cases in the Supreme Court. The grounds for disputing election results can be multiple and varied.”

Ultimately, says David Smith, associate professor of American politics at the University of Sydney, “Any loophole, any weakness they can find in the law anywhere, they will try to exploit it. There’s no doubt about that. Probably things we haven’t even heard of yet.”

What can we learn from how Trump supporters contested the last election?

While courts have yet to rule on former president Trump’s culpability for the events leading up to the attack on the Capitol (more on that later), the riot was certainly just one of many attempts to contest the election result of November 3, 2020. These included a plethora of legal challenges to how votes were counted, multiple claims of fraud levelled at election officials, direct attempts to force election officials to change results and, when all else had failed, a plot to stop Congress certifying the vote and declaring Joe Biden the new president.

Trump’s close advisers, who included constitutional lawyers and former New York mayor Rudy Giuliani, filed dozens of lawsuits challenging the results in key states, made unsubstantiated claims that ballots had been scanned multiple times, that ballot boxes had been stuffed with mysterious extra votes, that people had voted more than once, that dead people had “voted”, and that the voting machines used in some states had been “hacked” by a foreign power.

Trump even personally phoned Georgia Secretary of State Brad Raffensperger to pressure him to overturn that state’s result, telling him,“I just want to find 11,780 votes”, according to the December 22, 2022 report of the House of Representatives select committee that subsequently investigated the events. “It was a stunning moment,” the committee observed. “The president of the United States was asking a state’s chief election officer to ‘find’ enough votes to declare him the winner of an election he lost.” (Raffensperger didn’t oblige.)

By January 2021, with legal challenges largely over and Biden’s win effectively cemented, the president was desperate enough to consider a truly hare-brained scheme. It started with Republican officials in key swing states being persuaded to create new, alternate or “fake” certificates that gave those states’ electoral college votes to Trump instead of Biden. “They were basically arguing that the popular vote was fraudulent in one way or another, and therefore the Biden electors from that state were illegitimate,” says John Hart, an emeritus professor of American politics at ANU.

‘In that confusion, things arise that might have enabled Donald Trump to stay in power.’

Zim Nwokora, Deakin University

Pence’s role in the plot would be to reject the real certificates during the January 6 joint session of Congress and recognise the fakes as valid instead. The goal, according to the select committee investigation, “was to create the conditions in which Congress could declare that the outcome of the election was in dispute”. “In that confusion,” says Zim Nwokora, “things arise that might have enabled Donald Trump to stay in power.”

Smith is of the view that Trump’s hope was to have the election eventually decided in the Supreme Court, as it was in the 2000 election, only now with three judges Trump had appointed while in the top job, creating a 6-3 conservative majority. “So the idea was, just contest, contest, contest, appeal, appeal, appeal, push it. Just get it to the Supreme Court. Then the Supreme Court will take care of us.”

In the end, says Hart, “It was a comedy of errors on the part of the Trump lawyers to think that they could get away with that kind of thing.” Yet, Trump certainly seemed to believe it was viable; indeed, it became an article of faith that Pence had the power to “stop the steal”. On the morning of January 5, Trump tweeted: “The vice president has the power to reject fraudulently chosen electors.”

Pence did not agree. “There’s a line there that he wasn’t prepared to cross, that many old-style Republicans weren’t prepared to cross,” says Nwokora. As the joint sitting approached, Trump became more and more agitated, phoning Pence, summoning him to meetings in the White House then tweeting exhortations for him to go along with the scheme. A White House staffer, Trump loyalist Mike Navarro, would later write: “On this cold, momentous day, I shiver as I think to myself, January 6 will be either Mike Pence’s finest hour or the traitorous ‘Et tu, Brute?’ end of both his and Donald Trump’s political careers.”

What triggered the riot?

We’ll likely never know how serious Trump was when he called on his followers to march on the Capitol to “take back” their country. “Big protest in D.C. on January 6th,” Trump had tweeted on December 19. “Be there, will be wild!” At least some of those who breached the Capitol seemed to believe they were following in the footsteps of the revolutionaries of the War of Independence and that they, too, were rescuing their government from conspiratorial forces. The United States was, after all, founded after an insurrection – the war against British colonists that gave rise to the Declaration of Independence in 1776.

“I would define insurrection, in the American context, quite broadly because there are so many instances where people have used violence and intimidation to affect the outcome of elections,” says Kathryn Schumaker, senior lecturer in American studies at the University of Sydney. “Most people have a pretty short historical memory. If you look at the 19th century, you can see a lot of these mass mobilisations of armed civilians trying to intimidate people, murdering people, ensuring that people don’t turn out on election day.”

In 1898, for example, in the town of Wilmington, North Carolina, a mob of white supremacists violently overthrew the local government to reinstate segregationist policies – the only successful coup d’etat in US history. Many such incidents were racially motivated, says Schumaker. “Especially in the 1870s and 1880s when there was a lot of violence around the South, the claim was that Black-elected officials were corrupt, that Black voters were corrupt.”

At midday on January 6, Trump told thousands of his supporters at the now-infamous “Stop the Steal” rally, in a park near the White House, he would “never concede” the election, again called on Mike Pence to overturn the results and urged the crowd to “walk down to the Capitol” to “cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them”.

Several right-wing paramilitary groups including the Oath Keepers, the Proud Boys and the Three Percenters (who erroneously believe that 3 per cent of American colonists successfully overthrew the British during the American Revolution) read Trump’s tweets and speeches as a call for violent action. One rioter had come to Washington with a handgun, a rifle, a shotgun, hundreds of rounds of ammunition, large-capacity ammunition-feeding devices, machetes, camouflage smoke devices, a bow and arrow, and the material needed to make 11 Molotov cocktails.

Just before the joint session was to begin, Pence released a statement: “It is my considered judgement that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.” On Twitter, Trump responded: “Mike Pence didn’t have the courage to do what should have been done to protect our country and our constitution, giving states a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

The reaction from the rioters was immediate, according to the select committee’s 800-page final report on the attack. “Once we found out Pence turned on us and that they had stolen the election, like officially, the crowd went crazy,” said one. “I mean, it became a mob.”

Nick Fuentes, leader of a white nationalist group called the Groypers, shouted through a megaphone to the crowd: “We just heard that Mike Pence is not going to reject any fraudulent elector votes! Mike Pence has betrayed the president and he has betrayed the people of the United States of America – and we will never ever forget!”

As the rioters chanted “Hang Mike Pence” and surged into the Capitol building, to stop the certification and apparently to find the vice president, the Speaker of the House, Nancy Pelosi and other prominent Democrats, Trump retired to the White House and watched it all unfold. “Trump’s mob came dangerously close to succeeding,” concluded the select committee. “President Trump sat in the dining room off the Oval Office watching the violent riot at the Capitol on television.” He finally called off the mob two hours after the attack had begun, telling them, “Go home. We love you. You’re very special.”

What was the fallout?

Sydney University’s David Smith argues that “even if they had seized the Capitol, there would have been a very swift military response which would have seized the Capitol back”. Yet, he says, “There’s tremendous potential for violence there. They potentially could have hurt or killed members of Congress, including the vice president. They could have created a crisis but there’s no way they could have actually overthrown the government.”

Four people died during the riot. Around 140 police officers were assaulted. More than 1069 rioters were subsequently charged with offences connected with assaulting, resisting, or impeding officers or employees, using a deadly or dangerous weapon or causing serious bodily injury to an officer.

Nancy Pelosi remained undetected by the rioters. But in October 2022, a Canadian far-right conspiracy theorist called David DePape broke into her home with the intention of holding her hostage, instead attacking her husband, Paul, with a hammer, fracturing his skull. He survived but endured a long recovery process.

‘There’s some evidence in Michigan that the people who were agreeing to be on the fake slate didn’t realise the legal consequences.’

David Smith, University of Sydney

Mike Pence was rushed to a secure location in an underground parking bay, where he stayed for four-and-a-half hours. When the Capitol was finally cleared of protesters, Pence resumed the joint session of Congress at 8pm. At 3.32am he finished counting the electoral votes necessary to give the Biden-Harris ticket a majority and declared Joe Biden victorious. Pence is not running on the Trump ticket this year; Trump instead chose J.D. Vance as his candidate for vice president.

In total, 84 “alternate” electors across seven states signed false electoral certificates. Many would be charged with offences such as forgery, conspiring to file a false document and falsely claiming they were “duly elected and qualified electors”. “I think there’s some evidence in Michigan that the people who were agreeing to be on the fake slate didn’t realise the legal consequences,” says David Smith.

Trump was indicted on charges related to election interference in the federal Supreme Court and, for events during the 2020 election, with what’s called “racketeering” in Georgia. Both cases are ongoing. He is also awaiting trial for allegedly mishandling classified documents (related to other events), and a sentencing decision in his New York hush money trial, relating to payments to the adult-film actress Stormy Daniels, is imminent. If he loses next month’s election, according to Politico, “Trump will face an avalanche of criminal proceedings that could last the rest of his life. If he wins, they are likely to go away.”

Trump’s argument, says Flinders University’s Prudence Flowers, “would be that he had made a speech at a rally and then people were swept up with enthusiasm about wanting to defend democracy. But that seems highly unlikely, unbelievable, given the level of co-ordination and the groups that were there.” The select committee report concluded that each of Trump’s actions before and during the events of January 6 “was taken in support of a multi-part conspiracy to overturn the lawful results of the 2020 presidential election”.

Rudy Giuliani lost a $220-million defamation case to two Georgia poll workers he was found to have defamed in 2020, whom he wrongly claimed had engaged in electoral fraud. In October, as part of their payout, he was ordered to hand over his Manhattan apartment, a Mercedes-Benz convertible, luxury watches and New York Yankees memorabilia.

Jacob Chansley, meanwhile, was sentenced to 41 months’ jail after pleading guilty to one count of obstructing an official proceeding. In prison, his condition deteriorated until a judge ordered that he be given an organic diet. His lawyer had argued Chansley needed it because of his “shamanic belief system and way of life” and that eating food that was not organic or had “unnatural chemicals” would cause him “systemic responses that are not simply discomforting, but debilitating and, notably, dehydrating”. Chansley was eventually released early and served the rest of his sentence living at his mother’s house. In August, he successfully applied to a court for the return of his spear and helmet.

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