Storming of the US Capitol (Jan, 2021)

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      Only the Feds Can Disqualify Madison Cawthorn and Marjorie Taylor Greene

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      The events of Jan. 6, 2021, are casting a long shadow over the midterm elections. Voters in North Carolina are seeking to bar Representative Madison Cawthorn from running for re-election to his House seat, and those in Georgia are trying to do the same to Representative Marjorie Taylor Greene.These voters have filed complaints with state elections officials arguing that Section 3 of the 14th Amendment disqualifies members of Congress who engage in insurrection from appearing on the congressional ballot. (Challenges to other elected officials have also begun involving other candidates.)But these challenges face an intractable problem: Only the federal government — not the states — can disqualify insurrectionists from congressional ballots. States cannot unilaterally create procedures, unless authorized by federal statute, to keep accused insurrectionists off the congressional ballot.If these members of Congress engaged in insurrection, then the U.S. House of Representatives may exclude them, or federal prosecutors may charge them with the federal crime of insurrection. But in light of an important 1869 judicial decision, the cases against Mr. Cawthorn and Ms. Greene — which are currently mired in both state and federal proceedings — cannot remove the candidates from the congressional ballot.The 14th Amendment was ratified in 1868 in the wake of the Civil War. Section 3 disqualified many former Confederates from holding certain public offices if they had taken an oath to support the U.S. Constitution but subsequently, as Section 3 declares, “engaged in insurrection or rebellion.” Since 1868, the federal judiciary has had few occasions to interpret Section 3. As a result, the courts are largely in uncharted territory. Nevertheless, there is some important on-point precedent.An 1869 case concerning Hugh W. Sheffey is instructive for the Jan. 6 litigation and how courts might see things today. Mr. Sheffey took an oath to support the Constitution but later served as a member of the Confederate Virginia legislature, thereby actively supporting the Confederacy.After the war, he served as a state court judge. As Judge Sheffey, he presided over the trial and conviction of Caesar Griffin for shooting with an intent to kill. Later, Mr. Griffin challenged his conviction in federal court. He argued that Section 3 should have disqualified Mr. Sheffey from serving as judge. Griffin’s case, as it is known, was heard on appeal by the federal circuit court in Virginia. Salmon P. Chase, the chief justice of the United States and an appointee of President Abraham Lincoln, presided over the appeal. Chief Justice Chase ruled against Mr. Griffin, finding that Section 3 did not disqualify Judge Sheffey, despite the fact that he had taken an oath to support the U.S. Constitution and that it was “admitted,” as the case stated, that he later committed a Section 3 disqualifying offense.Chief Justice Chase reasoned “that legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment — and that “only” Congress can enact that legislation. Chief Justice Chase added that the exclusion of disqualified office holders “can only be provided for by Congress.” Congress must create the procedure that would determine if a defendant violated Section 3. Section 5 of the 14th Amendment emphasizes this principle: Congress, it states, “shall have the power to enforce, by appropriate legislation, the provisions of this article.”In short, Griffin’s case teaches that in legal terms, Section 3 is not self-executing — that is, Congress must establish, or at least authorize, the process that affords accused insurrectionists an opportunity to contest the allegations brought against them.Mr. Cawthorn and Ms. Greene deny that they engaged in insurrection and oppose any assertion that they violated the law, which would include Section 3 disqualifying offenses. Moreover, in the Cawthorn and Greene cases, the plaintiffs have not pointed to any federal legislation authorizing the states to police Section 3 by disqualifying accused insurrectionists from the congressional ballot. Without federal authorization, state elections boards and even state courts could very well be powerless to make determinations about congressional candidates and Section 3.There may be another way, based on an existing statute, to disqualify a candidate from congressional ballots: the Insurrection Act of 1862. This legislation, which predated the 14th Amendment, mirrors one of the disqualifying offenses established in Section 3.The modern Insurrection Act is virtually unchanged from the statute Lincoln signed in 1862. If the Justice Department indicts and succeeds in convicting Mr. Cawthorn, Ms. Greene or others of insurrection under that act, then on that basis, state elections boards and state courts may remove these candidates from the congressional ballot.Representative Madison Cawthorn of North Carolina.Stefani Reynolds for The New York TimesBut so far, the Justice Department has not charged any congressional candidates with inciting or engaging in an insurrection or with any other disqualifying offenses. Most of the Jan. 6 federal charges have been based on things like property crimes or for obstructing official proceedings or assaulting officers rather than insurrection.If the Justice Department does not secure a conviction of a Section 3 disqualifying offense before the state ballot is printed (the primary in North Carolina is scheduled for May 17 and the one in Georgia for May 24), then, generally, state boards of election and even state courts will be powerless to remove otherwise eligible congressional candidates from the ballot.Recently, some scholars and advocates have contested Chief Justice Chase’s opinion in Griffin’s case as precluding the state challenges against Mr. Cawthorn and Ms. Greene. In their view, even in the absence of a federal statute, state election officials who conclude that a person engaged in insurrection may proceed to remove that candidate from the congressional ballot. There is no Supreme Court precedent that squarely forecloses that position. Moreover, Chief Justice Chase’s decision was not rendered by the United States Supreme Court, and so it is not controlling precedent. On Monday, a federal court in Georgia allowed the state court disqualification proceeding to go forward against Representative Greene. The federal judge did so without citing or distinguishing Griffin’s case.Still, we think the chief justice’s opinion is persuasive; we expect state and federal courts, including the U.S. Supreme Court, will likely follow this historically entrenched position. Chief Justice Chase’s approach is the simplest path. If the courts find that Section 3 is not self-executing, there is no need for state election officials to decide far more politically charged questions about whether Mr. Cawthorn and Ms. Greene — and potentially, looking ahead to 2024, Donald Trump — engaged in insurrection.Congress has not authorized the states to enforce Section 3 by striking congressional candidates from the ballot. Thus, state courts and elections boards lack jurisdiction to exclude alleged insurrectionists from the congressional ballot. In such circumstances, state governments must let the people decide who will represent them in Congress.Josh Blackman is a law professor at South Texas College of Law Houston. S.B. Tillman is an associate professor at the Maynooth University School of Law and Criminology. They recently wrote a law review article about the application of Section 3 of the 14th Amendment to President Trump.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Fearing a Trump Repeat, Jan. 6 Panel Considers Changes to Insurrection Act

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      The 1807 law allows a president to deploy American troops inside the country to put down a rebellion. Lawmakers fear it could be abused by a future president trying to stoke one.WASHINGTON — In the days before the Jan. 6 attack on the Capitol, some of President Donald J. Trump’s most extreme allies and members of right-wing militia groups urged him to use his power as commander in chief to unleash the military to help keep him in office.Now, as the House committee investigating last year’s riot uncovers new evidence about the lengths to which Mr. Trump was willing to go to cling to power, some lawmakers on the panel have quietly begun discussions about rewriting the Insurrection Act, the 1807 law that gives presidents wide authority to deploy the military within the United States to respond to a rebellion.The discussions are preliminary, and debate over the act has been fraught in the aftermath of Mr. Trump’s presidency. Proponents envision a doomsday scenario in which a rogue future president might try to use the military to stoke — rather than put down — an insurrection, or to abuse protesters. But skeptics worry about depriving a president of the power to quickly deploy armed troops in the event of an uprising, as presidents did during the Civil War and the civil rights era.While Mr. Trump never invoked the law, he threatened to do so in 2020 to have the military crack down on crowds protesting the police killing of George Floyd. Stephen Miller, one of his top advisers, also proposed putting it into effect to turn back migrants at the southwestern border, an idea that was rejected by the defense secretary at the time, Mark T. Esper.And as Mr. Trump grasped for ways to overturn his defeat in the 2020 presidential election, some hard-right advisers encouraged him to declare martial law and deploy U.S. troops to seize voting machines. In the run-up to the Jan. 6 attack, members of right-wing militia groups also encouraged Mr. Trump to invoke the law, believing that he was on the brink of giving them approval to descend on Washington with weapons to fight on his behalf.“There are many of us who are of the view that the Insurrection Act, which the former president threatened to invoke multiple times throughout 2020, bears a review,” said Representative Zoe Lofgren, Democrat of California and a member of the Jan. 6 committee.While no evidence has emerged that Mr. Trump planned to invoke the act to stay in office, people close to him were pushing for him to do so. Michael T. Flynn, Mr. Trump’s first national security adviser, attended a meeting in the Oval Office on Dec. 18, 2020, in which participants discussed seizing voting machines, declaring a national emergency and invoking certain national security emergency powers. That meeting came after Mr. Flynn gave an interview to the right-wing television network Newsmax in which he talked about a purported precedent for deploying troops and declaring martial law to “rerun” the election.Some hard-right advisers to Mr. Trump encouraged him to declare martial law and deploy U.S. troops to seize voting machines after the 2020 election.Brittany Greeson for The New York TimesThe idea was also floated by Roger J. Stone Jr., the political operative and longtime confidant of Mr. Trump, who told the conspiracy theorist Alex Jones in an interview that Mr. Trump should consider invoking the Insurrection Act.In the weeks before the riot, the notion was prevalent among militia members and other hard-right supporters of Mr. Trump. It has surfaced repeatedly in evidence that federal prosectors and the House committee have obtained during their investigations into the Capitol attack.In December 2020, Stewart Rhodes, the leader of the Oath Keepers militia group, wrote an open letter to Mr. Trump in which he called on the president to “use the Insurrection Act to ‘stop the steal,’” begin seizing voting data and order a new election.“Clearly, an unlawful combination and conspiracy in multiple states (indeed, in every state) has acted to deprive the people of the fundamental right to vote for their representatives in a clear, fair election,” Mr. Rhodes wrote, adding, “You, and you alone, are fully authorized by the Insurrection Act to determine that such a situation exists and to use the U.S. military and militia to rectify that situation.”Stewart Rhodes, the leader of the Oath Keepers militia group, wrote an open letter to Mr. Trump in which he called on the president to “use the Insurrection Act to ‘stop the steal.’”Jim Urquhart/ReutersIn text messages and social media posts ahead of the Capitol riot, other Oath Keepers members also discussed the possibility of Mr. Trump invoking the Insurrection Act. Two of them, Jessica Watkins and Kelly Meggs, the head of the militia’s Florida chapter, have been charged in connection with the attack.And Mr. Rhodes sent armed men to a hotel in Virginia on Jan. 6 to await Mr. Trump’s order, which the militia leader said would nullify Washington gun restrictions and allow the group to take up arms and fight for the president.The House committee, which has interviewed more than 850 witnesses, is charged with writing an authoritative report about the events that led to the violence of Jan. 6 and coming up with legislative recommendations to try to protect American democracy from a repeat. Though their recommendations are likely to garner widespread attention, they are not guaranteed to become law.One such recommendation is almost certainly to be an overhaul of the Electoral Count Act, which Mr. Trump and his allies tried to use to overturn the 2020 election. In recent weeks, the panel has begun discussing whether to call for revisions to the Insurrection Act, which empowers the president to deploy troops to suppress “any insurrection, domestic violence, unlawful combination or conspiracy.”The changes under discussion could add a higher and more detailed threshold for a president to meet before he could deploy troops domestically, including requiring consultation with Congress.“Essentially, the former president threatened by tweet to send in the armed services to take over civilian governments, because he saw things that he didn’t like on TV,” Ms. Lofgren said, referring to Mr. Trump’s threats to invoke the Insurrection Act in response to racial justice protests. “That’s not really the history of the use of the act, and maybe more definition of terms might be in order.”The last time lawmakers turned their attention to a potential overhaul of the Insurrection Act was after Mr. Trump threatened in 2020 to invoke it to crush protests that spread across the country after a white police officer killed Mr. Floyd, an unarmed Black man, in Minnesota.“If a city or state refuses to take the actions necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them,” Mr. Trump said then. White House aides drafted a proclamation to invoke the Insurrection Act in case the president followed through with the threat.Capitol Riot’s Aftermath: Key DevelopmentsCard 1 of 3Debating a criminal referral. More

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      Effort to Remove Marjorie Taylor Greene From Ballot Can Proceed, Judge Says

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      The case that Ms. Greene unsuccessfully sought to have dismissed mirrors efforts against other Republicans centered on the Jan. 6, 2021, attack on the Capitol.A federal judge cleared the way on Monday for a group of Georgia voters to move forward with legal efforts seeking to disqualify Representative Marjorie Taylor Greene from running for re-election to Congress, citing her role in the Jan. 6, 2021, attack on the Capitol.The disqualification effort is based on a constitutional provision adopted after the Civil War that barred members of the Confederacy from holding office. It mirrors several other cases involving Republican members of Congress, whose roles leading up to and during the deadly riot have drawn intense criticism.The judge, Amy Totenberg, who was appointed to the U.S. District Court for the Northern District of Georgia by President Barack Obama, denied Ms. Greene’s request for a preliminary injunction and temporary restraining order in the high-profile legal feud.Ms. Greene, 47, who is known for her unflinching loyalty to former President Donald J. Trump and for her clashes with Democrats, has steadfastly denied that she aided and engaged in the attack on the Capitol.In the 73-page ruling, Judge Totenberg wrote that Ms. Greene had failed to meet the “burden of persuasion” in her request for injunctive relief, which she called an extraordinary and drastic remedy.“This case involves a whirlpool of colliding constitutional interests of public import,” Judge Totenberg wrote. “The novelty of the factual and historical posture of this case — especially when assessed in the context of a preliminary injunction motion reviewed on a fast track — has made resolution of the complex legal issues at stake here particularly demanding.”James Bopp Jr., a lawyer for Ms. Greene, said on Monday night that the ruling was flawed and minimized the adverse effect that the disqualification effort was having on Ms. Greene’s right to run for office.“This is fundamentally antidemocratic,” Mr. Bopp said, maintaining that Ms. Greene had “publicly and vigorously condemned the attack on the Capitol.”He called the effort to remove her from the ballot part of a well-funded nationwide effort to strip voters of their right to vote for candidates of their choice, with elections determined by “bureaucrats, judges, lawyers and clever legal arguments.”In her request for an injunction, Ms. Greene argued that it would be impossible to fully resolve the case before Georgia holds its primary elections on May 24. Absentee ballots will start to be mailed on April 25, Ms. Greene’s motion said.In the ruling, Judge Totenberg determined that Ms. Greene had failed to prove that there was a strong likelihood that she would prevail on the merits of her legal claims. A state administrative judge is scheduled to hear the case on Friday.The decision by Judge Totenberg stood in stark contrast with a recent ruling in a similar case involving Representative Madison Cawthorn in North Carolina. In blocking that disqualification effort, U.S. District Judge Richard E. Myers II, an appointee of Mr. Trump, ruled that the 14th Amendment of the Constitution narrowly applied to members of the Confederacy after the Civil War.Ms. Greene’s critics have said that she frequently referred to efforts to challenge the 2020 presidential election results as “our 1776 moment” in public comments that led up to the riot at the Capitol. They contend that the phrase was a code used to incite violence, and point to the third section of the 14th Amendment in their argument to drop her from the ballot.That section says that “no person shall” be a member of Congress or hold civil office if they had engaged in insurrection or rebellion after “having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State.”Capitol Riot’s Aftermath: Key DevelopmentsCard 1 of 3Debating a criminal referral. More

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      Trump Allies Are Still Feeding the False 2020 Election Narrative

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      Fifteen months after they tried and failed to overturn the 2020 election, the same group of lawyers and associates is continuing efforts to “decertify” the vote, feeding a false narrative.A group of President Donald J. Trump’s allies and associates spent months trying to overturn the 2020 election based on his lie that he was the true winner.Now, some of the same confidants who tried and failed to invalidate the results based on a set of bogus legal theories are pushing an even wilder sequel: that by “decertifying” the 2020 vote in key states, the outcome can still be reversed.In statehouses and courtrooms across the country, as well as on right-wing news outlets, allies of Mr. Trump — including the lawyer John Eastman — are pressing for states to pass resolutions rescinding Electoral College votes for President Biden and to bring lawsuits that seek to prove baseless claims of large-scale voter fraud. Some of those allies are casting their work as a precursor to reinstating the former president.The efforts have failed to change any statewide outcomes or uncover mass election fraud. Legal experts dismiss them as preposterous, noting that there is no plausible scenario under the Constitution for returning Mr. Trump to office.But just as Mr. Eastman’s original plan to use Congress’s final count of electoral votes on Jan. 6, 2021, to overturn the election was seen as far-fetched in the run-up to the deadly Capitol riot, the continued efforts are fueling a false narrative that has resonated with Mr. Trump’s supporters and stoked their grievances. They are keeping alive the same combustible stew of conspiracy theory and misinformation that threatens to undermine faith in democracy by nurturing the lie that the election was corrupt.The efforts have fed a cottage industry of podcasts and television appearances centered around not only false claims of widespread election fraud in 2020, but the notion that the results can still be altered after the fact — and Mr. Trump returned to power, an idea that he continues to push privately as he looks toward a probable re-election run in 2024.Democrats and some Republicans have raised deep concerns about the impact of the decertification efforts. They warn of unintended consequences, including the potential to incite violence of the sort that erupted on Jan. 6, when a mob of Mr. Trump’s supporters — convinced that he could still be declared the winner of the 2020 election — stormed the Capitol. Legal experts worry that the focus on decertifying the last election could pave the way for more aggressive — and earlier — legislative intervention the next time around.“At the moment, there is no other way to say it: This is the clearest and most present danger to our democracy,” said J. Michael Luttig, a leading conservative lawyer and former appeals court judge, for whom Mr. Eastman clerked and whom President George W. Bush considered as a nominee to be the chief justice of the United States. “Trump and his supporters in Congress and in the states are preparing now to lay the groundwork to overturn the election in 2024 were Trump, or his designee, to lose the vote for the presidency.”Most of Mr. Trump’s aides would like him to stop talking about 2020 — or, if he must, to focus on changes to voting laws across the country rather than his own fate. But like he did in 2020, when many officials declined to help him upend the election results, Mr. Trump has found a group of outside allies willing to take up an outlandish argument they know he wants to see made.The efforts have been led or loudly championed by Mike Lindell, the chief executive of MyPillow; Michael T. Flynn, Mr. Trump’s first national security adviser; Stephen K. Bannon, the former White House chief strategist; and Boris Epshteyn, an aide and associate of Mr. Trump’s.Another key player has been Mr. Eastman, the right-wing lawyer who persuaded Mr. Trump shortly after the election that Vice President Mike Pence could reject certified electoral votes for Mr. Biden when he presided over the congressional count and declare Mr. Trump the victor instead.Mr. Eastman wrote a memo and Mr. Epshteyn sent an email late last year to the main legislator pushing a decertification bill in Wisconsin, laying out a legal theory to justify the action. Mr. Eastman met last month with Robin Vos, the speaker of the State Assembly, and activists working across the country, a meeting that was reported earlier by The Milwaukee Journal Sentinel.Jefferson Davis, an activist from Wisconsin, said he had asked Mr. Eastman to join the meeting after hearing about his work on behalf of Mr. Trump following the election.“If it was good enough for the president of the United States,” Mr. Davis said in an interview, “then his expertise was good enough to meet with Speaker Vos in Wisconsin on election fraud and what do we do to fix it.”Mr. Vos has maintained that the Legislature has no pathway to decertification, in line with the guidance of its own lawyers.John Eastman, left, has made clear that he has no intention of dropping his fight to show that the election was stolen.Jim Bourg/Reuters“There is no mechanism in state or federal law for the Legislature to reverse certified votes cast by the Electoral College and counted by Congress,” the lawyers wrote, adding that impeachment was the only way to remove a sitting president other than in the case of incapacity.But Mr. Eastman has made clear that he has no intention of dropping his fight to prove that the election was stolen. The House committee investigating the Jan. 6 attack has said his legal efforts to invalidate the results most likely violated the law by trying to defraud the American people. A federal judge recently agreed, calling Mr. Eastman’s actions “a coup in search of a legal theory.”Legal experts say his continued efforts could increase his criminal exposure; but if Mr. Eastman were ever to be charged with fraud, he could also point to his recent work as evidence that he truly believed the election was stolen.“There are a lot of things still percolating,” Mr. Eastman said in an interview with The New York Times last fall. He claimed that states had illegally given people the ability to cast votes in ways that should have been forbidden, corrupting the results. And he pointed to a widely debunked video from State Farm Arena in Atlanta, which he claimed showed that tabulation ballots were run through counting machines multiple times during the election.Charles Burnham, Mr. Eastman’s lawyer, said in a statement that he “was recently invited to lend his expertise to legislators and citizens in Wisconsin confronting significant evidence of election fraud and illegality. He did so in his role as a constitutional scholar and not on behalf of any client.”The fringe legal theory that Mr. Eastman and Mr. Epshteyn are promoting — which has been widely dismissed — holds that state lawmakers have the power to choose how electors are selected, and they can change them long after the Electoral College has certified votes if they find fraud and illegality sufficiently altered the outcome. The theory has surfaced in multiple states, including several that are political battlegrounds.As in Wisconsin, state legislators in Arizona drafted resolutions calling for the decertification of the 2020 election. In Georgia, a lawsuit sought to decertify the victories of the Democratic senators Jon Ossoff and Raphael Warnock. And Robert Regan, a Republican favored to win a seat in the Michigan House, has said he wants to decertify the 2020 election either through a ballot petition or the courts.Mr. Bannon, Mr. Lindell and Mr. Epshteyn have repeatedly promoted decertification at the state level on Mr. Bannon’s podcast, “War Room,” since last summer, pushing it as a steady drumbeat and at times claiming that it could lead to Mr. Trump being put back into office. They have described the so-called audit movement that began in Arizona and spread to other states as part of a larger effort to decertify electoral votes.“We are on a full, full freight train to decertify,” Mr. Epshteyn said on the program in January. “That’s what we’re going to get. Everyone knows. Everyone knows this election was stolen.”Capitol Riot’s Aftermath: Key DevelopmentsCard 1 of 3Debating a criminal referral. More

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      Mike Lee’s Texts Show Encouragement, Then Alarm, Before Jan. 6

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      Senator Mike Lee and Representative Chip Roy, once backers of President Donald J. Trump’s claims of a stolen election, eventually urged his top aide to change course.WASHINGTON — For weeks in late 2020, Senator Mike Lee, Republican of Utah, cheered on President Donald J. Trump’s effort to fight his election defeat, privately offering up “a group of ready and loyal advocates who will go to bat for him.”In text messages to Mark Meadows, then the White House chief of staff, Mr. Lee encouraged the Trump campaign to embrace Sidney Powell, a pro-Trump lawyer whom the senator described as a “straight shooter,” and said the president should “hire the right legal team and set them loose immediately.”But when Ms. Powell put forth wild claims of foreign rigging of election machines at a widely derided news conference in November, Mr. Lee was chagrined and quietly began to question what Mr. Trump was up to.“I’m worried about the Powell press conference,” Mr. Lee wrote in another text message to Mr. Meadows. “The potential defamation liability for the president is significant here.”That message and several others from Mr. Lee, as well as a separate set of exchanges between Representative Chip Roy, Republican of Texas, and Mr. Meadows, trace an about-face by the two Republican lawmakers. The pair started out as enthusiastic supporters of Mr. Trump’s claims of a stolen election but gradually grew alarmed about his push to invalidate the results and ultimately opposed his bid to get Congress to overturn them on Jan. 6, 2021.The text messages, which are in the possession of the House committee investigating the Capitol riot, were obtained by CNN and authenticated by The New York Times.They provide a window into the eagerness of Republicans — even some who ended up voting on Jan. 6 to confirm Joseph R. Biden Jr.’s victory — to believe Mr. Trump’s false claims of widespread fraud and their willingness to go to great lengths, including attempts at exploiting the nation’s election laws, to keep him in power. They also illustrate how rapidly those efforts spiraled out of control, and they show a keen awareness on the part of at least some Republicans involved that the endeavor had become untenable to the point of being dangerous.The text messages were sent to and from Mr. Meadows, who turned them over to the House committee while he was cooperating with the panel. Mr. Meadows later refused to sit for an interview with the committee, and the House voted to recommend that the Justice Department prosecute him for criminal contempt of Congress.A lawyer for Mr. Meadows did not respond to a request for comment. A spokesman for the committee declined to comment.The text messages with Mr. Meadows show that Mr. Lee tried several times to offer advice and support for the effort to overturn the election, using multiple strategies.Mr. Lee suggested that Mr. Trump should “disassociate himself” from Ms. Powell’s false claims after her performance at the November news conference, but even after that, the senator vouched for the conservative lawyer John Eastman, who wrote a memo outlining plans for overturning the election that members of both parties have likened to a blueprint for a coup.Mr. Lee then endorsed a plan to have legislatures in “a very small handful of states” that Mr. Biden had won put forth pro-Trump electors, as part of a scheme proposed by Mr. Eastman to allow Vice President Mike Pence to reject Mr. Biden’s victory.But Mr. Lee backed off the effort after no state legislature convened to certify so-called alternate electors, and he began criticizing plans by Senators Ted Cruz of Texas and Josh Hawley of Missouri, both Republicans, to use Congress’s official count of electoral votes on Jan. 6 to challenge the election outcome.“I have grave concerns with the way my friend Ted is going about this effort,” Mr. Lee wrote to Mr. Meadows.Mr. Lee ultimately voted to confirm Mr. Biden’s victory. More than half of the Republicans in Congress — eight senators and 139 House members — voted to invalidate it, after a mob of Mr. Trump’s supporters, enraged by the lie of a stolen election, stormed the Capitol demanding that it be overturned.A spokesman for Mr. Lee confirmed the authenticity of the text messages and said they told “the same story Senator 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.”“They tell the story of a U.S. senator fulfilling his duty to Utah and the American people by following the Constitution,” the spokesman, Lee Lonsberry, said, citing the senator’s remarks after the deadly riot, which injured more than 150 police officers.“The President should call everyone off,” Representative Chip Roy wrote to Mark Meadows, the White House chief of staff, on Dec. 31, 2020. “It’s the only path.”Sarahbeth Maney/The New York TimesMr. Roy’s text messages with Mr. Meadows tell a similar tale of a lawmaker who appeared eager to fight alongside Mr. Trump but ultimately backed off when evidence of a stolen election did not appear.Capitol Riot’s Aftermath: Key DevelopmentsCard 1 of 3Debating a criminal referral. 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      Two Trump White House Lawyers Meet With Jan. 6 Investigators

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      Pat A. Cipollone, the former White House counsel, and Patrick F. Philbin, who was his deputy, met separately with the panel after the former president authorized them to do so.Two of former President Donald J. Trump’s top White House lawyers met on Wednesday with the House committee investigating the Capitol attack, after Mr. Trump authorized them to engage with the panel, according to a person familiar with the matter.Pat A. Cipollone, the former White House counsel, and Patrick F. Philbin, who was his deputy, met separately with the panel, two people familiar with the sessions said, speaking on the condition of anonymity because they were not authorized to disclose the meetings.It was not immediately clear how much information Mr. Cipollone and Mr. Philbin had provided to the committee or what they said, but they were present for key moments in the buildup to the storming of the Capitol on Jan. 6, 2021, including pivotal conversations and meetings in which Mr. Trump discussed using the powers of his office to try to overturn the election.Their cooperation, which was reported earlier by Politico, added to the more than two dozen White House officials who agreed to take the committee’s questions.The two were not under oath and their interviews were not transcribed, but the men could return for formal interviews or deposition later, one of the people said, describing it as a typical process as investigators determine who they want to question.The interviews came as the committee learned from the National Archives that lawmakers would receive additional documents from the Trump White House after President Biden declined to assert executive privilege over them.In a letter on Wednesday, David S. Ferriero, the national archivist, told Mr. Trump that he would turn over a new set of records to the committee within 15 days “unless prohibited by court order.” Mr. Trump wrote to the archives in February to say he asserted executive privilege over more than 1,000 documents in its possession.In recent days, the committee has questioned Mr. Trump’s elder daughter Ivanka Trump and her husband, Jared Kushner, both former White House advisers. In transcribed interviews, they provided testimony that lawmakers described as “helpful.”Mr. Trump told The Washington Post that he had offered his daughter and son-in-law “privilege,” but they declined it. Courts have rejected Mr. Trump’s claims of executive privilege, and the Biden White House has declined to invoke it for material and witnesses sought by the Jan. 6 inquiry, including for Ms. Trump and Mr. Kushner’s testimony.The panel has also heard from John McEntee, who served as Mr. Trump’s chief of presidential personnel; Anthony M. Ornato, the former White House chief of operations; and Eric Herschmann, a White House lawyer. Another top adviser, Stephen Miller, was slated to testify on Thursday, according to another person familiar with the matter, who also spoke on the condition of anonymity.Mr. Miller was subpoenaed late last year and had lengthy negotiations to appear.Mr. Cipollone, who defended Mr. Trump during his first impeachment trial, pushed back against some of the most extreme plans the president considered for overturning the election. He participated in meetings with Trump allies who were pressing for the military to seize voting machines and in which Attorney General William P. Barr offered his resignation after making clear that the Justice Department had found no widespread fraud in the 2020 election.Patrick F. Philbin, who was Mr. Cipollone’s deputy, also met with the House committee investigating the Capitol attack.Erin Schaff/The New York TimesMr. Cipollone also tried to persuade Mr. Trump to stop pursuing baseless claims of fraud. He balked at pursuing a plan proposed by Jeffrey Clark, a Justice Department lawyer, who had wanted to distribute official letters to multiple state legislatures falsely alerting them that the election might have been stolen and urging them to reconsider certified results.“That letter that this guy wants to send — that letter is a murder-suicide pact,” Mr. Cipollone told Mr. Trump, according to testimony the panel has received. “It’s going to damage everyone who touches it. And we should have nothing to do with that letter. I don’t ever want to see that letter again.”Mr. Philbin, who was a senior Justice Department lawyer under President George W. Bush, was also present for the meeting in which Mr. Barr offered his resignation.The Supreme Court has ordered the National Archives to turn over to the committee Mr. Philbin’s White House records, which include a memo about a potential lawsuit against several states that Mr. Biden won in the 2020 election. They also contain a series of emails from a state official regarding election-related issues and talking points on alleged election irregularities in a county in Michigan.And they include a plan pushed by Michael T. Flynn, Mr. Trump’s first national security adviser, and the lawyer Sidney Powell to declare that there was foreign influence in the election, with the goal of allowing Mr. Trump to use the powers of the Defense Department to seize voting machines and have the votes recounted. More

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      Jan. 6 Suspect Blames Trump for Spurring Him to Capitol Riot

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      Dustin Thompson, an unemployed exterminator from Ohio, was the first defendant tried in the Capitol attack to offer a Trump-made-me-do-it defense before a jury.WASHINGTON — Dustin Thompson’s trip down what he called “the rabbit hole” of election misinformation began eight months before a single vote was cast in 2020. It ended inside the United States Capitol on Jan. 6, 2021, where he was part of the mob of Trump supporters that stormed inside during Congress’s counting of electoral votes in the worst attack on the building since the War of 1812.An exterminator from Columbus, Ohio, Mr. Thompson, 38, was laid off in March 2020, at the start of the pandemic. Alone at home with his new wife, he began spending long days on the internet, steeping himself in conspiracy theories about the upcoming vote.As the election approached, he said, he fully believed that if Donald J. Trump ended up losing, it would only be because the voting had been rigged, as the president had been warning publicly for months. Even after Joseph R. Biden Jr. was declared the winner, Mr. Thompson could not accept that it was true.All of this, he told a jury at his criminal trial on Wednesday, led him to Washington on Jan. 6 for a Stop the Steal rally, where he and a friend listened to Mr. Trump give an incendiary speech near the White House.In an hour on the witness stand, Mr. Thompson blamed Mr. Trump for what eventually occurred, saying that he had been answering the president’s call to go to the Capitol and “fight like hell” when he joined the throng swarming into the building and made off with a bottle of bourbon and a coat rack.“If the president’s giving you almost an order to do something,” he said, “I felt obligated to do that.”Mr. Thompson’s story is not unusual. At several points during the Justice Department’s vast investigation of the Capitol attack, many people charged with crimes have sought to blame Mr. Trump in various ways for their actions, mostly at pretrial bail hearings or at sentencings after pleading guilty.But Mr. Thompson is the first defendant to attempt the argument at trial in front of a jury. In making his case, he offered a window into the toxic and relentless flood of conspiracy theories and lies, stoked by Mr. Trump, that helped give rise to the riot.The move comes with considerable risk, and its success or failure could determine not only Mr. Thompson’s fate, but that of other defendants accused of taking part in the violence of Jan. 6.Before the trial began, Mr. Thompson admitted to prosecutors that he had gone into the Capitol and stolen government property, agreeing in advance to nearly every element of the six charges he faces. His defense will rest almost entirely on the question of his state of mind during the riot.Mr. Thompson has claimed that he did not knowingly or corruptly break the law, but rather, as his lawyer said on Tuesday, was “so influenced — so used and abused” by Mr. Trump that he could not be held accountable for his behavior.The Trump-made-me-do-it defense has not fared well with judges. While it could work better on a jury, Mr. Thompson seemed to stumble on Wednesday during cross-examination, undercutting key elements of his argument.William Dreher, a prosecutor, got him to admit several times that Mr. Trump had not been at his side, offering him step-by-step instructions, when he walked into the Senate parliamentarian’s office and walked out with the whiskey and the coat rack. Mr. Thompson acknowledged that he was a married adult with a college degree who could make his own decisions.Mr. Thompson also conceded under questioning by Mr. Dreher that he had known it was unlawful to go into the Capitol on Jan. 6 while lawmakers were finalizing the results of the election. That appeared to contradict a central pillar of his own defense.While Mr. Thompson’s claims that he was under Mr. Trump’s spell do not carry any legal weight as evidence, they echo similar allegations the government has made in other cases connected to Jan. 6. In those cases, prosecutors have gone to great lengths to describe how rioters at the Capitol were motivated by Mr. Trump’s statements, including his speech at the Ellipse and a tweet he posted on Dec. 19, 2020 calling on his followers to attend a “wild” protest in Washington on Jan. 6.Capitol Riot’s Aftermath: New DevelopmentsCard 1 of 5Debating a criminal referral. More

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      In Call Before Jan. 6 Riot, a Plea to ‘Descend on the Capitol’

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      Days before Jan. 6, a onetime aide to Roger J. Stone Jr. told Trump backers to make lawmakers meeting to finalize the 2020 election results feel that “people are breathing down their necks.”One week before an angry mob stormed the Capitol, a communications expert named Jason Sullivan, a onetime aide to Roger J. Stone Jr., joined a conference call with a group of President Donald J. Trump’s supporters and made an urgent plea.After assuring his listeners that the 2020 election had been stolen, Mr. Sullivan told them that they had to go to Washington on Jan. 6, 2021 — the day that Congress was to meet to finalize the electoral count — and “descend on the Capitol,” according to a recording of the call obtained by The New York Times.While Mr. Sullivan claimed that he was “not inciting violence or any kind of riots,” he urged those on the call to make their presence felt at the Capitol in a way that would intimidate members of Congress, telling the group that they had to ensure that lawmakers inside the building “understand that people are breathing down their necks.”He also pledged that Mr. Trump was going to take action on his own; the president, he said, was going to impose a form of martial law on Jan. 6 and would not be leaving office.“Biden will never be in that White House,” Mr. Sullivan declared. “That’s my promise to each and every one of you.”Before Riot, Operative Urged Trump Supporters to ‘Descend on the Capitol’ on Jan. 6In a conference call days before the Jan. 6 attack, Jason Sullivan, a onetime aide to Roger J. Stone Jr., exhorted supporters of President Donald J. Trump to go to the Capitol that day and pressure lawmakers meeting to finalize the 2020 election results.The recording of the call, which took place on Dec. 30, 2020, emerged as the Justice Department has expanded its criminal investigation of the Capitol attack. It offers a glimpse of the planning that went on in the run-up to the storming of the Capitol and the mind-set of some of those who zeroed in on Jan. 6 as a kind of last stand for keeping Mr. Trump in office.It also reflects the complexities that federal prosecutors are likely to face as they begin the task of figuring out how much — or even whether — people involved in the political rallies that preceded the assault can be held accountable for the violence that erupted.After more than a year of focusing exclusively on rioters who took part in the storming of the Capitol, prosecutors have widened their gaze in recent weeks and have started to question whether those involved in encouraging protests — like the one that Mr. Sullivan was describing — can be held culpable for disrupting the work of Congress.Mr. Sullivan’s remarks during the call appeared to be an effort to motivate a group of people aggrieved by the election to take direct action against members of Congress on Jan. 6, presaging what Mr. Trump himself would say in a speech that day. While it remains unclear whether anyone on Mr. Sullivan’s call went on to join the mob that breached the Capitol, he seemed to be exhorting his listeners to apply unusual pressure on lawmakers just as they were overseeing the final count of Electoral College votes.In a statement provided by his lawyer, Mr. Sullivan played down the nature of the call, saying he had merely “shared some encouragement” with what he described as “people who all felt their votes had been disenfranchised in the 2020 elections.” Mr. Sullivan said he had been asked to participate in the call by a group of anti-vaccine activists — or what he called “health freedom advocate moms” — who were hosting “a small, permitted event” at the Capitol on Jan. 6.“I only promoted peaceful solutions where Americans could raise their voices and be heard as expressed in our First Amendment,” Mr. Sullivan said in the statement. “I in no way condone the violence of any protesters.”Still, in the recording of the call, Mr. Sullivan can be heard telling his listeners that the lawmakers inside the Capitol “need to feel pressure.”“If we make the people inside that building sweat and they understand that they may not be able to walk in the streets any longer if they do the wrong thing, then maybe they’ll do the right thing,” he said. “We have to put that pressure there.”As the Justice Department widens its inquiry, federal prosecutors are using a grand jury in Washington to gather information on political organizers, speakers and so-called V.I.P.s connected to a series of pro-Trump rallies after the 2020 election. One prominent planner of those rallies, Ali Alexander, received a subpoena from the grand jury and said last week that he intended to comply with its requests.In the run-up to Jan. 6, Mr. Alexander publicly discussed a pressure campaign against lawmakers that was meant to stop the final electoral count, saying he was working with Representative Mo Brooks of Alabama and Representatives Andy Biggs and Paul Gosar of Arizona, all Republicans.“We four schemed up of putting maximum pressure on Congress while they were voting,” Mr. Alexander said in a since-deleted video on Periscope. The plan, he said, was to “change the hearts and the minds of Republicans who were in that body, hearing our loud roar from outside.”It is unclear if the Justice Department is aware of Mr. Sullivan’s conference call; the department declined to comment. The House committee investigating the events of Jan. 6 was provided with a copy of the recording some months ago by the woman who made it, Staci Burk, a law student and Republican activist from Arizona.Shortly after the election, Ms. Burk became convinced that phony ballots had been flown in bulk into Phoenix Sky Harbor International Airport. She eventually submitted an anonymous affidavit concerning the ballots in an election fraud case filed in Federal District Court in Phoenix by the pro-Trump lawyer Sidney Powell.Capitol Riot’s Aftermath: New DevelopmentsCard 1 of 5Debating a criminal referral. More