Inside Ted Cruz’s last-ditch battle to keep Trump in power

The Texas senator’s effort alienated some allies and sparked questions about ties to John Eastman, a longtime friend and author of key legal memos in Trump’s efforts.

By Michael Kranish
3-28-2022 at 6:00 a.m. EDT

Sen. Ted Cruz was dining near the Capitol on the evening of Dec. 8, 2020, when he received an urgent call from President Donald Trump. A lawsuit had just been filed at the Supreme Court designed to overturn the election Trump had lost, and the president wanted help from the Texas Republican.

“Would you be willing to argue the case?” Trump asked Cruz, as the senator later recalled it.

“Sure, I’d be happy to” if the court granted a hearing, Cruz said he responded.

The call was just one step in a collaboration that for two months turned the once-bitter political enemies into close allies in the effort to keep Trump in the White House basedonthe president’s false claims about a stolen election. By Cruz’s own account, he was “leading the charge” to prevent the certification of Joe Biden as president.

The Attack: The Jan. 6 siege of the U.S. Capitol was neither a spontaneous act nor an isolated event.

An examination by The Washington Post of Cruz’s actions between Election Day and Jan. 6, 2021, shows just how deeply he was involved, working directly with Trump to concoct a plan that came closer than widely realized to keeping him in power. As Cruz went to extraordinary lengths to court Trump’s base and lay the groundwork for his own potential 2024 presidential bid, he also alienated close allies and longtime friends who accused him of abandoning his principles.

Now, Cruz’s efforts are of interest to the House committee investigating the Jan. 6 attack on the U.S. Capitol, in particular whether Cruz was in contact with Trump lawyerJohn Eastman, a conservative attorney who has been his friend for decades and who wrote key legal memos aimed at denying Biden’s victory.

As Eastman outlined a scenario in whichVice President Mike Pence could denycertifying Biden’s election, Cruz crafted a complementary plan in the Senate. He proposedobjecting to the results in six swing states and delayingaccepting the electoral college results on Jan. 6 in favor of a 10-day “audit” — thus potentiallyenabling GOP state legislatures to overturn the result. Ten other senators backed hisproposal, which Cruz continued to advocate on the day rioters attacked the Capitol.

The committee’s interest in Cruz is notable as investigators zero in on how closely Trump’s allies coordinated with members of Congress in the attempt to block or delay certifying Biden’s victory. If Cruz’s plan worked, it could have created enough chaos for Trump to remain in power.

“It was a very dangerous proposal, and, you know, could very easily have put us into territory where we got to the inauguration and there was not a president,” Rep. Liz Cheney (R-Wyo.), a Jan. 6 committee member, said earlier this year on the podcast “Honestly.” “And I think that Senator Cruz knew exactly what he was doing. I think that Senator Cruz is somebody who knows what the Constitution calls for, knows what his duties and obligations are, and was willing, frankly, to set that aside.”

The Jan. 6 committee’s investigators have recently focused on Eastman’s efforts to pressure Pence to declare Trump the winner, but there has been little public notice that Cruz and Eastman have known each other since they clerked together 27 years ago for then-U.S. Appeals Court Judge J. Michael Luttig. Cruz’s proposal ran on a parallel track to Eastman’s memos.

Luttig told The Post that he believesthat Cruz — who once said that Luttig was “like a father to me” — played a paramount role in the events leading to Jan. 6.

“Once Ted Cruz promised to object, January 6 was all but foreordained, because Cruz was the most influential figure in the Congress willing to force a vote on Trump’s claim that the election was stolen,” Luttig said in a statement to The Post. “He was also the most knowledgeable of the intricacies of both the Electoral Count Act and the Constitution, and the ways to exploit the two.”

Eastman, asked in an inquiry by a lawyer for the Jan. 6 committee whether he had “any communication with Senator Ted Cruz regarding efforts to change the outcome of the 2020 election,” declined to answer by invoking his Fifth Amendment right against self-incrimination. Eastman and his lawyer, Charles Burnham, declined a request for comment.(Thus far, the Jan. 6 committee has not subpoenaed Cruz, or asked for his voluntary cooperation, according to a source familiar with the matter who spoke on the condition of anonymity to discuss confidential matters. The committee has not announced the subpoena of any member of Congress as it deliberates how aggressively to pursue that line of inquiry.)

Cruz, after initially agreeing to an interview with The Post at his Senate office, canceled shortly before it was to begin and declined to speak to a reporter. The Post then submitted a lengthy set of written questions, only some of which were addressed directly by Cruz’s spokeswoman.

Asked whether Cruz had communicated in any way with Eastman about challenging the election, the senator’s spokeswoman, Maria Jeffrey Reynolds, did not respond directly.

“Sen. Cruz has been friends with John Eastman since they clerked together in 1995,” Jeffrey Reynolds said via email. “To the best of his recollection, he did not read the Eastman memo until months after January 6, when it was publicly reported.”

As for Cruz’s effort to fight the election results, the spokeswoman said: “He has repeatedly observed that, had Congress followed the path he urged and appointed an Election Commission to conduct an emergency 10-day audit and consider on the merits the evidence of voter fraud, the American people would today have much greater confidence and trust in the integrity of our elections and our democracy.”

As Cruz fought to keep Trump in the White House, he frequently noted that this was not the first time he had played a leading role in trying to turn a contested election in favor of the Republican presidential candidate. Indeed, he had laid the groundwork 20 years earlier.

A contested election

Shortly after the 2000 presidential contest between Republican George W. Bush and Democrat Al Gore, Cruz — then a 29-year-old graduate of Harvard Law School — received an urgent request: There was going to be a recount of the Florida vote and Bush’s campaign wanted his help.

Cruz rushed to Tallahassee and arrived that afternoon, and he said he believed that after a “quick, perfunctory legal proceeding,” Bush would be declared the winner. But there were serious questions about who had received the most votes in Florida. By Cruz’s account, he played a pivotal role, rewriting briefs and sleeping for “a total of seven hours” in his first six days in Florida. He wrote in his memoir that he and others on Bush’s team were convinced Gore “was trying to steal the presidency.”

Cruz wrote that he was “astonished” at Gore’s move to contest the outcome, recalling how Richard M. Nixon had lost to John F. Kennedy amid fraud allegations but had “resisted the urge to contest the results and divide the country indefinitely. I thought it was a rather petulant display by Vice President Gore.”

Five years after writing those words in his 2015 memoir, it would be Cruz leading the charge to challenge a presidential election in an effort that continues to divide the country.

An allegiance tested

Two days after the 2020 election, as absentee ballot counts in swing states piled up in Biden’s favor,Trump tweeted the falsehood that “I WON THIS ELECTION, BY A LOT!” Around the time he sent that tweet, the president talked with Cruz on the phone, the senator from Texas has said.

Trump’s call underscored their remarkable reconciliation. During the 2016 presidential campaign, Trump had called Cruz “the single biggest liar I have ever dealt with in my life” and attacked Cruz’s wife and father. Cruz called Trump an “arrogant buffoon,” and refused to endorse the nominee at the Republican National Convention, which got him booed off the stage.

But in September 2016, Cruz offered a quid pro quo: He would back Trump if the candidate agreed to select a Supreme Court justice from a Cruz-approved list. “The price of my endorsement was explicit,” Cruz later wrote in his book “One Vote Away.” Trump agreed, Cruz wrote. The nominee switched from calling Cruz “Lyin’ Ted” to “Beautiful Ted,” while the senator stood by Trump after The Post revealed the “Access Hollywood” tape in which Trump talked in vulgar terms about women. Cruz became a staunch ally during Trump’s presidency.

When Trump talked to Cruz two days after the 2020 election, the senator’s allegiance was tested anew. That night, to the shock of some of his aides, Cruz amplifiedTrump’s stolen-election claims on the Fox News show hosted by Sean Hannity, who moonlighted as one of Trump’s most influential advisers. He told Hannity’s millions of viewers that Democrats were “defying the law” because they didn’t want GOP observers to see ballot counting.

“They are setting the stage to potentially steal an election not just from the president but from the media,” Cruz said.(The allegation that Republican observers were kept from seeing the vote count was rebutted by those who ran the ballot operation and rejected by the Pennsylvania Supreme Court.)

In the weeks that followed, as Trump allies lost a string of election cases, Cruz began suggesting he could lead a more effective legal strategy. He talked about his success in helping Bush’s legal team and howhe had argued a total of nine cases before the Supreme Court, mostly as the Texas solicitor general. Two days later, he announced he had agreed to represent Pennsylvania Republicans in their effort to block certification of that state’s presidential results. The Supreme Court rejected that request, though, a near-fatal blow to efforts to overturn the election in the courts.

But the next day, Trump and Cruz focused on another avenue to put the matter before the Supreme Court: a case filed by Texas Attorney General Ken Paxton, who argued his state had standing to ask the court to throw out election results in Georgia, Pennsylvania, Michigan and Wisconsin.

When Trump called on Dec. 8 as Cruz dined out, the president asked whether he was surprised about the loss of the Pennsylvania case, Cruz later recalled on his podcast, “Verdict with Ted Cruz.” Cruz said he was unhappy but “not shocked” that the federal court did not take a case about state law: “That was a challenging hurdle.”

When Cruz agreed to Trump’s request to argue the Texascase, it shocked some who knew him best. One adviser said he called Cruz to express dismay, telling the senator it went against the principles on which he built his political brand.

“If you’re a conservative federalist, the idea that one state can tell another state how to run their elections is outrageous, but he somehow contorted in his mind that it would be okay for him to argue that case,” said the adviser, who spoke on the condition of anonymity to describe a private conversation.

Rep. Chip Roy (R-Tex.), who had served as Cruz’s chief of staff and was a former first assistant attorney general in Paxton’s office, tweeted that the case “represents a dangerous violation of federalism” that “will almost certainly fail.” He did not respond to a request for comment.

Cruz’s spokeswoman said that he agreed to Trump’s request because “he believed Texas deserved to have effective advocacy” but said that “he told President Trump at the time that he believed the Court was unlikely to take the Texas case.”

Cruz’s cooperation was seen as crucial by Trump’s allies. They believed his experience and standing as a senator brought credibility in comparison to the much-criticized work of Trump’s other attorneys, like former New York mayor Rudy Giuliani, who would later have his New York state license suspended for making “demonstrably false and misleading statements” about the election. (Giuliani could not be reached for comment.)

With Cruz’s commitment secured, Trump tweeted the next morning: “We will be INTERVENING in the Texas (plus many other states) case. This is the big one. Our Country needs a victory!”

But the Supreme Court rejected the case — the second straight decision in which it turned down Trump’s allies.

So Cruz focused on a congressional plan. At least one member of the U.S. House and Senate was needed to contest a state’s presidential results. Rep. Mo Brooks (R-Ala.) had announced his intent to do so, and he found his Senate partner on Dec. 30 when Sen. Josh Hawley (R-Mo.) volunteered.

That got Cruz’s attention because Hawley isviewed as a possiblecompetitor in the 2024 presidentialcontest they both might enter, especiallyif Trumpdoesn’t run. Cruz didn’t want to be outflanked on his right by Hawley, a Cruz adviser said.

Eastman and Cruz’s actions soon began to directly complement each other.

Eastman wrote in the first of his two memos about overturning the election that his plan relied on a senator delaying certification — and he specifically mentioned the possibility that Cruz could do it. A second version of that memo doesn’t mention Cruz, but the first line in the six-page document still argues that state legislatures have the power to choose electors — mirroring Cruz’s plan.

Cruz’s role in the Senate was crucial because it was not clear that any other senator would join Hawley, a freshman who had campaigned as an outsider without Washington relationships.

On Jan. 2, 2021, Cruz unveiled his plan for states to start an “emergency 10-day audit,”backed by 10 other senators. The idea was met with ridicule even from some of Trump’s most vociferous supporters. “Proposing a commission at this late date — which has zero chance of becoming reality — is not effectively fighting for President Trump,” Sen. Lindsey O. Graham (R-S.C.) said on Twitter. The conservative magazine National Review lambasted the idea in an article headlined: “The Folly of the Cruz Eleven.”

Cruz nonetheless pushed forward. Trump promptly tweeted his delight that the effort was “led by Sen. Ted Cruz.”

Eastman, meanwhile, met at the White House on Jan. 4 with Trump and Pence to discuss his plan. The next evening, Cruz appeared on Hannity’s show. Without noting that he had played a key role in spreading Trump’s false election claims on the same show two months earlier, Cruz told Hannity: “We have an obligation to the country. You know, you look at polling right now that shows that 39 percent of Americans believe the election was rigged. That’s heartbreaking.”

Losing his allies

The next morning, at 8:17 a.m. on Jan. 6, Trump tweeted his support for the proposal that had been put forward by Cruz, without mentioning his name. He called for Pence to send the matter back to the states, which was in line with the senator’s proposal for a 10-day audit.

“States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval,” Trump tweeted.

Cruz’s advisers were conflicted. Some supported making every effort to overturn the election, but a number of them directly urged him not to support Trump’s false claims. One adviser, who spoke on the condition of anonymity to discuss a confidential conversation, asked Cruz to certify Biden’s election by citing a Post report about Trump’s phone call urging Georgia’s secretary of state to find enough votes to declare him the winner.

An even stronger rebuff came from one of Cruz’s most important allies: Chad Sweet, the former chairman of his 2016 presidential campaign. Sweet had known Cruz since they worked together on Bush’s reelection campaign in 2004. They had talked and debated countless times over the prior 16 years.

Now, just before the events of Jan. 6, Sweet urgedthe senatornot to challenge the results. Sweet had helped create a nonpartisan group in 2020 called Citizens for a Strong Democracy, which focused on strengthening public confidence in election systems. So he was intimately familiar with how falsehoods were being used to try to overturn Biden’s win.

Sweet told Cruz “that if he proceeded to object to the Electoral count of the legitimate slates of delegates certified by the States, I could no longer support him,” Sweet later wrote on his LinkedIn page.

But Cruz rejected his friend’s advice.

Eastman, meanwhile, appeared at the Jan. 6 “Save America” rally at the Ellipse, where he in effect embraced the Cruz plan. “All we are demanding of Vice President Pence is this afternoon at one o’clock, he let the legislatures of the states look into this,” Eastman said.

Trump later took the same stage, saying falsely in his noon speech that he “won this election by a landslide” and told supporters, “We’re going to the Capitol.”

Cruz, who had been in his suite at the Russell Senate Office Building, walked via an underground tunnel to the Capitol, going to a joint session in the House and then to a debate in the Senate chamber. Pence had already said he didn’t have “unilateral authority” to reject electoral votes, but Cruz was pinning his hope on Pence sending the matter back to state legislatures. Cruz would become the first senator to object to the electoral college results, which were being tallied in alphabetical order. He joined with Rep. Paul A. Gosar (R-Ariz.) to challenge the Arizona vote.

That was in line with the plan that Peter Navarro, director of the White House Office of Trade and Manufacturing Policy, had helped promote called the Green Bay Sweep. Cruz “started the Green Bay Sweep beautifully,” Navarro later said in an interview with MSNBC.

Navarro did not respond to a request for comment.Cruz’s spokeswoman said that the senator “does not know Peter Navarro, has never had a conversation with him, and knew nothing about any plans he claims to have devised.”

In his Senate speech, Cruz stressed that he objected to “all six of the contested states” and urged approval of his audit plan. As he spoke, rioters were already storming the outer barricade west of the Capitol. He based his plan on a provision in the Constitution that says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”

While legislatures previously had determined electors based on the popular votes, legal scholars said it was notable that the Supreme Court, in the 2000 Bush v. Gore case in which Cruz participated, said that a state legislature “may, if it so choose, select the electors itself.”

Austin Sarat, a professor of law and politics at Amherst College, said Cruz’s plan had a deeper constitutional underpinningthan Eastman’s outline of a scenario in whichPence could overturn the election himself, although Sarat stressed he didn’t agree with it.

“I think that Cruz thing was much more dangerous because it has the kind of `constitutional plausibility’ that the Pence thing never had,” Sarat said. “Not because it was well-grounded, but one could make the argument the Constitution provides for it.”

In fact, there was no evidence of widespread fraud that would have changed the results in any of the six states that Cruz said he contested. Soon after Cruz finished speaking, rioters began breaking into the Capitol, and he went to a secure location.

Hours later, after the rioters were removed and the Senate returned to its session, Eastman emailed Pence’s lawyer, Greg Jacob, at 9:44 p.m., to plead for one last effort. Eastman suggested a “minor violation” of the law to enable a 10-day delay for legislatures to conduct an audit, according to a document released by the Jan. 6 committee — again mirroring Cruz’s plan.

Cruz’s effort to reject the Arizona results failed by a vote of 93-to-6. It seemed clear his path to overturn the election was over, and he huddled with his staff about whether to proceed with his plan to object to the Pennsylvania results.

For months, one of those staffers, communications director Lauren Bianchi, had promoted Cruz to the press as a smart and savvy constitutionalist. But now, in a telephone conference call with the senator and other aides, she pleaded with Cruz to stop. At that moment, she said in an interview with The Post, “I felt like he wanted to hear what I wanted to say.”

So she spoke up.

“My message to the senator, after reflecting on the day and seeing how the country was being torn apart, was: `We’re going to live tofight another day. There are concerns about election integrity. Let’s keep fighting but today is no longer the day to fight. You need to be a unifier.' ”

“Senator,” Bianchi said she told Cruz, “you need to be the adult in the room.”

As she hung up the phone, Bianchi said, “I felt very alone” and she wasn’t sure what Cruz would do.

He rejected her advice.

Cruz went to the floor and voted to object to the Pennsylvania results, an effort that failed by a vote of 92 to 7.

In the days that followed, some of those who had been closest to Cruz severed their ties to him.

Bianchi submitted her resignation.

Sweet wrote in his LinkedIn post that “Donald Trump and those who aided and abetted him in his relentless undermining of our Democracy — including Senators Josh Hawley and Ted Cruz — must be denounced.”

Carly Fiorina, who Cruz said he would have picked as his 2016 running mate, tweeted on Jan. 8, 2021, that “we must hold people to account,” not just those who stormed the Capitol, but also “those who actively enabled this clearly unacceptable behavior like Senators,” including Cruz.

Asked in an interview with Washington Post Live in May 2021 why she thought Cruz had spread unsubstantiated claims of election fraud, Fiorina said of Cruz and others who aided Trump, “My only explanation is they’re focused on short-term political gain, political expediency and clinging to power.”

The committee’s interest

The Jan. 6 committee has asked a number of people about the senator’s actions in the lead-up to the insurrection. Among the questions the committee may address is whether Cruz talked with Trump or the president’s lawyers and aides as the events unfolded on Jan. 6.

Luttig has been interviewed by the committee; he declined to say what, if anything, he said about Cruz.

Eastman is fighting efforts by the committee to obtain emails that contain the word “Cruz,” among other search terms. In a filing, Eastman’s lawyer wrote that the committee’s subpoena of such records represents an effort “to sift through several months of Dr. Eastman’s political and personal communications which may have no connection to January 6.”

U.S. District Judge David O. Carter on Monday ruled that Eastman had to turn over 101 documents to the Jan. 6 committee, but the decision did not say if that included any emails involving Cruz. The decision came in a ruling that said it is “more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct” the Jan. 6 counting of the electoral college vote.

While Cruz failed to overturn the election, his focus on the power of state legislatures to determine the results has foreshadowed efforts by Republicans across the country to influence the way votes are tallied.

To Luttig, Cruz’s actions underscore the need to overhaul the 1887 Electoral Count Act so that a single senator cannot play such an outsize role in potentially altering the results of a presidential election. Luttig also has proposed that the act be revised so that federal courts, not legislatures, are the final authority to resolve disputes over the selection of electors.

“Such is Republican politics of the moment, that presidential and congressional aspirants will purchase the former president’s blessing and approval at any price,” said Luttig, who was nominated to the bench by a Republican, President George H.W. Bush.

Cruz, meanwhile, is making all the moves of a likely 2024 presidential candidate appealing to the Trump base.

He went on Tucker Carlson’s Fox News show to apologize for calling Jan. 6 “a violent terrorist attack,” saying his “frankly dumb” language referred only to those who attacked police officers, not “peaceful protesters supporting Donald Trump.” He played up claims that the government was somehow involved in the attack on the Capitol, asking an FBI official at a Senate hearing, “How many FBI agents or confidential informants actively participated in the events of Jan. 6?”

Last month, he visited Trump at his Mar-a-Lago resort in Florida and tweeted a photo of the meeting. He rode shotgun in the lead vehicle in a trucker convoy protesting pandemic-related mandates in a March 10 event. He posed a series of confrontational questions to Supreme Court nominee Ketanji Brown Jackson regarding her views on anti-racism.

Asked recently by an online site called the Truth Gazette whether he is considering seeking the presidency again, he responded: “Absolutely, in a heartbeat.”

Michael Kranish is a national political investigative reporter. He co-authored The Post’s biography "Trump Revealed," as well as biographies of John F. Kerry and Mitt Romney. His latest book is "The World's Fastest Man: The Extraordinary Life of Cyclist Major Taylor." He previously was the deputy chief of the Boston Globe's Washington bureau.