Steve Eder, David D. Kirkpatrick and Mike McIntire
Mon, October 3, 2022
Rep. Mike Johnson (R-La.) during a House Judiciary Committee hearing in Washington on June 10, 2021. (Stefani Reynolds/The New York Times)
Five days after the attack on the Capitol last year, House Republicans braced for a backlash.
Two-thirds of them — 139 in all — had been voting on Jan. 6, 2021, to dispute the Electoral College count that would seal Donald Trump’s defeat as rioters determined to keep the president in power stormed the chamber. Now lawmakers warned during a conference call that unless Republicans demanded accountability, voters would punish them for inflaming the mob.
“I want to know if we are going to look at how we got here, internally, within our own party and hold people responsible,” said Rep. Nancy Mace of South Carolina, according to a recording of the call.
When another member implored the party to unite behind a “clarifying message” that Trump had lost, Rep. Kevin McCarthy of California, the Republican leader, emphatically agreed: “We have to.”
More than 20 months later, the opposite has happened. The votes to reject the election results have become a badge of honor within the party, in some cases even a requirement for advancement, as doubts about the election have come to define what it means to be a Trump Republican.
The most far-reaching of Trump’s ploys to overturn his defeat, the objections to the Electoral College results by so many House Republicans did more than any lawsuit, speech or rally to engrave in party orthodoxy the myth of a stolen election. Their actions that day legitimized Trump’s refusal to concede, gave new life to his claims of conspiracy and fraud and lent institutional weight to doubts about the central ritual of American democracy.
Yet the riot engulfing the Capitol so overshadowed the debate inside that the scrutiny of that day has overlooked how Congress reached that historic vote. A reconstruction by The New York Times revealed more than simple rubber-stamp loyalty to a larger-than-life leader. Instead, the orchestration of the House objections was a story of shrewd salesmanship and calculated double-talk.
While most House Republicans had amplified Trump’s claims about the election in the aftermath of his loss, only the right flank of the caucus continued to loudly echo Trump’s fraud allegations in the days before Jan. 6, the Times found. More Republican lawmakers appeared to seek a way to placate Trump and his supporters without formally endorsing his extraordinary allegations. In formal statements justifying their votes, about three-quarters relied on the arguments of a low-profile Louisiana congressman, Rep. Mike Johnson, the most important architect of the Electoral College objections.
On the eve of the Jan. 6 votes, he presented colleagues with what he called a “third option.” He faulted the way some states had changed voting procedures during the pandemic, saying it was unconstitutional, without supporting the outlandish claims of Trump’s most vocal supporters. His Republican critics called it a Trojan horse that allowed lawmakers to vote with the president while hiding behind a more defensible case.
Even lawmakers who had been among the noisiest “stop the steal” firebrands took refuge in Johnson’s narrow and lawyerly claims, although his nuanced argument was lost on the mob storming the Capitol, and over time it was the vision of the rioters — that a Democratic conspiracy had defrauded America — that prevailed in many Republican circles.
That has made objecting politically profitable. Republican partisans have rewarded objectors with grassroots support, paths to higher office and campaign money. And almost all the objectors seeking reelection are now poised to return to Congress next year, when Republicans are expected to hold a majority in the House.
Objectors are set to fill the Republican leadership posts and head most of the committees. All eight Republicans in the House seeking higher office voted against the Electoral College tally, while a dozen Republican lawmakers who broke with Trump have either lost primaries or chosen to retire.
Playing to Trump loyalists, many across the party have made a slogan of “election integrity” — a “dog whistle” perpetuating the erroneous belief that Trump’s victory was stolen, as one dissenting Republican put it in a party meeting. More than a third of the objectors joined a new Election Integrity Caucus, which advocates stricter voter requirements and has featured speakers who supported Trump’s efforts to fight his loss.
All the Republicans who objected say they were following an example set by Democrats who objected to Electoral College results in 1968, 2000, 2004 and 2016. In each case, Republicans accused Democrats of damaging democracy and “thwarting the will of the people,” although only small numbers of Democrats joined those objections, which all came after the losing Democratic presidential candidates had conceded.
But several Republican lawmakers argued that the scale of their vote to object would do more to encourage legislators of either party to mimic the tactic — potentially upending the peaceful transfer of executive power if an aggrieved party controls Congress.
“It is a horrible precedent,” said Rep. Tom Rice, a five-term Republican representing conservative Myrtle Beach, South Carolina, who was the only objector to express any regrets and lost a primary this summer.
Some continue to recast their objections. Legislators in Democratic-leaning territory who once thundered about defending the republic now insist they meant only a legalistic protest against certain COVID-19 rule changes — like Rep. Lee Zeldin, the Republican candidate for governor in heavily Democratic New York, who railed in a Jan. 6 floor speech about his outrage over “confirmed, evidence-filled issues” in the 2020 vote.
But many have moved the other way, more fully embracing Trump’s claims than they did in the aftermath of the riot.
Rep. Markwayne Mullin of Oklahoma, a former mixed martial arts fighter, experienced the center of the maelstrom. He broke off the leg of a wooden stand as a weapon to help defend the floor of the House, then watched from a few feet away as a Capitol Police officer shot and killed one of the assailants.
Amid the wreckage of the violence, the congressman justified his objection by hewing closely to Johnson’s lawyerly nuance. But now, as the favored candidate for a Senate seat in Oklahoma, Mullin is more categorical.
Was Trump “cheated out of the election?” a moderator asked in a recent televised debate.
Mullin replied, “Absolutely.”
The House vote to formalize presidential election results is customarily ceremonial. But in 2021 Trump changed that, demanding that House Republicans reject the results from several states.
On the eve of the vote, Rep. Liz Cheney of Wyoming, then chairwoman of the House Republican Conference, called an unusual meeting in the congressional auditorium. Her goal was to convince her fellow Republicans that the Constitution gave Congress no role in deciding presidential elections, and in the days before the meeting, she also distributed a 21-page summary of court rulings that found no evidence of meaningful fraud.
Others, however, reminded colleagues that their constituents overwhelmingly believed Trump had won in a landslide. “Don’t anybody fool themselves into thinking you are going to be able to make a constitutional argument at your Lincoln Day dinners,” said Rep. Larry Bucshon of Indiana, according to the recording.
Johnson offered a third way: Object based on what he called “constitutional infirmity.”
The Constitution stipulates that state legislatures set election rules. Yet some state officials, without asking their legislatures, loosened restrictions on mail-in or early voting to deal with the pandemic. That was unconstitutional and grounds to reject the election results from those states, Johnson argued.
Many legal experts sympathetic to his argument say Congress does not have authority to rule on the constitutionality of a state’s election procedures, especially after voters have cast ballots. What’s more, the total number of ballots affected by pandemic rule changes would not have undone the results in Pennsylvania and other contested states.
Even so, in December 2020, the Texas attorney general filed a long-shot appeal citing an array of unproven claims of fraud and other irregularities and asking the U.S. Supreme Court to invalidate the Pennsylvania results on similar constitutional grounds.
Johnson drafted a supporting brief that focused on the constitutional argument. As chairman of the Republican Study Committee, a caucus that disseminates conservative policy research, he pushed its nearly 160 members to sign the brief.
The lawyer for the House Republican leadership told Johnson that his arguments were unconstitutional, according to three people involved in the conversations.
Nonetheless, Johnson filed the brief on Dec. 10 with 105 lawmakers as co-signers, and within a day he had added 20 more — including McCarthy.
“It was a fig-leaf intellectual argument,” said Rep. Peter Meijer, R-Mich., who voted to impeach the president and then lost a primary this summer.
“But that was what a lot of the objectors who were trying to make a plausible argument were hanging their hat on,” he added.
In the weeks before Jan. 6, most objectors had publicly sympathized with Trump’s allegations of conspiracy and fraud. Yet when it came time to stake out an official justification for their votes, about three-quarters relied on Johnson’s argument, including 35 who signed a statement that he had written and read aloud at the previous day’s meeting.
Mullin, who is running in Oklahoma for Senate, had called Biden “illegitimate,” posted more than a dozen messages on Twitter stoking stolen-election suspicions and, during a Fox News appearance, made spurious claims about impossibly large numbers of Democrats voting in Arizona and unreliable voting machines in Michigan.
During a telephone town hall meeting with 6,700 constituents on Jan. 4, he said Democratic control of Congress would make overturning the election results “highly unlikely” but insisted “this fight is worth fighting — that’s why we have decided we are going to contest the electoral votes.”
Yet by Jan. 6, Mullin complained only of pandemic-related rule changes.
Hours after his close-up view of the assault at the Capitol, Mullin threw his political weight behind the attackers’ cause by voting against the Electoral College results.
Small donors never abandoned the objectors’ cause.
Trump’s political committees raised more than a quarter-billion dollars in political donations on the pretext of contesting the election, and he has funneled $5,000 contributions to about 100 Republican congressional incumbents, most of them objectors.
In a sign of how central objectors have become to the right, they make up virtually all the incumbents backed this year by the advocacy group Club for Growth, a titan of conservative campaign money. The group has reported spending more than $17 million directly backing objectors and a similar sum attacking their opponents.
In Oklahoma, Mullin stood out from the pack of Republican Senate candidates by introducing a bill to officially expunge Trump’s second impeachment. It faulted the Democratic impeachment leaders for failing to note the “unusual voting patterns” and “voting anomalies of the 2020 presidential election,” or to understand why Republicans doubted that Trump had “not won reelection.” The resolution, co-sponsored by over 30 lawmakers, did not advance, but it curried favor with the former president. In July, Trump officially endorsed Mullin.
Mullin, who owns a ranch, spent a Saturday that same month campaigning among his fellow cattlemen at their annual conference in Norman, Oklahoma.
The campaign gave out fliers declaring that “no one in Congress has worked harder to SAVE AMERICA” and proclaiming Mullin “TRUMP-TOUGH.” At the top of a checklist of priorities was the party’s new refrain: “Secure our elections.”
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