The illegality of the plan was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. . . . Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed. With a plan this "BOLD," President Trump knowingly tried to subvert this fundamental principle. Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.[213]
As to 18 U.S.C. § 371, Judge Carter identified evidence demonstrating that both President Trump and John Eastman knew their electoral count plan was illegal, and knew it could not "survive judicial scrutiny" in any of its iterations:
Dr. Eastman himself repeatedly recognized that his plan had no legal support. . . . Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome driven plan that he knew was unsupported by the law.[214]
Finally, Judge Carter concluded:
Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory. The plan spurred violent attacks on the seat of our nation's government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.[215]
Judge Luttig reached similar conclusions during his live hearing testimony: "I have written, as you said, Chairman Thompson, that, today, almost two years after that fateful day in January 2021, that, still, Donald Trump and his allies and supporters are a clear and present danger to American democracy."[216]
During the hearing, Judge Luttig took issue with certain of Greg Jacob's characterizations of the 12th Amendment's text, explaining that the applicable text was not ambiguous in any way. The Committee agrees with Judge Luttig: the application of the Twelfth Amendment's text is plain in this context; it does not authorize Congress to second-guess State and Federal courts and refuse to count State electoral votes based on concerns about
