The Law School Dean Who Quietly Worked to Overturn the Election

In the past, Martin and his defenders have repeatedly invoked “confidentiality” to dodge questions while simultaneously claiming Trump and his campaign never retained Martin as an attorney. The Trump campaign also did not respond to questions about Martin’s role. 

Since Martin never represented Trump in court or signed any filings, his efforts were not subject to rules governing lawyers’ conduct in judicial proceedings. But retired justice Robert Orr, his former colleague on the North Carolina Supreme Court, thinks that given Martin’s prominence in the legal community, he should still account for what he did.

“I’m a big fan of candor,” Orr told The Intercept. “Considering what transpired on January 6, he has a responsibility as a law school dean and former chief justice to be more forthcoming.” 

From Jurist to Trumpist 

In January 2019, after 20 years on the North Carolina Supreme Court and four as its chief justice, Martin abruptly stepped down and took over as dean of Regent University Law School in Virginia, part of an evangelical Christian university founded by televangelist Pat Robertson. The move took some by surprise, particularly given the reputation Martin cultivated as a moderate, centrist Republican and longtime member of the elite American Law Institute. 

But Martin quickly took to his new role at a bastion of the conservative legal movement, where one of Trump’s attorneys, Jay Sekulow, was already on the faculty. Within weeks of starting at Regent, Martin appeared on Robertson’s television program twice to defend Trump against the Mueller investigation. 

Soon after the 2020 election, Martin joined a core group of attorneys workshopping legal theories to help Trump, according to testimony during Eastman’s disciplinary hearings in California. 

Martin reportedly came into Trump’s orbit via Mark Meadows, a fellow North Carolinian and the White House chief of staff, who was indicted in Arizona and Georgia after the 2020 election. The two go back at least to 2013, when Martin posted a selfie with Meadows to Facebook. (Meadows did not respond to The Intercept’s questions either.) 

Records from the January 6 committee and other sources show Martin had his fingers in multiple phases of the drive to keep Trump in power. One of his earliest contributions targeted state legislatures, which has not been previously reported.  

“This is huge and hugely important,” Eastman wrote in an email to Martin and other attorneys in a strategy thread about communicating with “the various State electors.” 

Martin had a particular influence on one Arizona state representative: Mark Finchem, who emerged as a leader among MAGA state legislators. 

Soon after Trump’s narrow loss in Arizona, records show Martin offered Finchem a theory: that the U.S. Constitution grants each state legislature “plenary,” or absolute, authority to choose presidential electors, no matter what else the state’s constitution or laws might say about the proper procedure to do so. 

This “plenary” theory, which cherry-picks from Supreme Court decisions dating back to the late 19th century, wove through various efforts by Martin and other attorneys aligned with Trump. It wound up becoming one of Finchem’s go-to arguments to deny the validity of the 2020 election results.

The strategy has largely been credited to Eastman, but Finchem attributed the “plenary” theory to Martin. 

An email obtained by The Intercept via public records request shows that communications between Finchem and Martin were underway by November 16, 2020. Finchem later told the January 6 committee that they were put in touch by another attorney advising Trump, Bill Olson. “This Mark Martin guy, he is a constitutional scholar,” Finchem recalled Olson telling him. “He’s worth listening to.”

Three days after emailing Martin, Finchem tweeted about his “plenary duty to act.” He argued that the Arizona Legislature could call itself into special session to investigate purported “fraud,” even without the governor or the supermajority vote required for such a session under Arizona law. 

By November 21, Finchem had written an entire memo about the plenary theory and its implications for his own power as a state legislator. He emailed it to Martin and the Trump campaign, along with two of his colleagues in the Arizona Legislature, according to January 6 committee records, and he credited Martin by name. 

“As articulated by retired North Carolina Supreme Court Chief Justice Mark Martin,” Finchem wrote in the memo, “the Constitution grants no role in directing the appointment of electors to the state’s executive or judicial branches. It is the plenary authority and obligation of the Legislature to do so. Since this authority and obligation is placed solely upon the Legislature by the highest law of the land, the Legislatures are not impeded by state statutes in fulfilling this duty.” 

In a version he later published online, Finchem attributes these as verbatim quotes to Martin. In his January 6 committee interview, he was somewhat evasive about their discussions. “I wouldn’t say that he helped me with the memo,” Finchem told the committee, adding that he had also reached out to Eastman and others as he wrote it. But his memo cites only Martin. 

Finchem would not answer The Intercept’s questions about Martin. “I don’t understand why you think it’s acceptable that I do your journalist research,” he said in an email. “If you have a question, reach out to Justice Mark Martin about the citation.” As with other issues, Martin didn’t respond when asked about Finchem. 

In the following weeks, Finchem tied virtually all of his efforts to his “plenary” authority. 

Unable to scrounge up enough votes for a special session, Finchem organized an unofficial “hearing” in a hotel ballroom in late November 2020, which he opened with a brief discussion of the plenary theory. 

In mid-December, he organized a faux “joint resolution” urging the vice president to accept an “alternate” slate of electors. This pseudo-resolution, which was printed on letterhead and signed by a smattering of GOP legislators, claimed that “the state legislature’s authority over the appointment of presidential electors is plenary.” 

But Finchem’s resolution was never actually voted on and adopted by a majority of the legislature, and the Arizona attorney general later characterized it as “fake.” But because of the plenary theory, these were all trivial technicalities to Finchem. 

“Once again, you go back to the question of plenary authority,” Finchem argued to the January 6 committee. “Does the body have to be in session for members to be recognized? And it was our belief that we don’t have to be.”

In the days before the insurrection, Finchem organized a letter asking Pence to “block the use of any Electors from Arizona.” The letter argued that legislators could “withdraw” their approval of these electors “under the same plenary power.” 

As late as February 2022, Finchem was invoking the plenary theory as grounds to “decertify” certain Arizona counties’ results from 2020. 

After the insurrection — during which he was photographed outside the Capitol building — Finchem faced considerable scrutiny, including ethics complaints and a lawsuit seeking to bar him from seeking office again, which were all ultimately dismissed. The Arizona attorney general’s office also gave Finchem a nod as “Unindicted Coconspirator 3” in the “fake electors” indictment, which named Eastman, Meadows, and more than a dozen other defendants in an ongoing case.  

Martin’s name is not among them, and he has never publicly accounted for feeding Finchem unhinged ideas about the “plenary” powers of state legislators.  

In 2023, the Supreme Court rejected an even milder variant of this notion, called the “independent state legislature” theory, by a 6-3 margin. Martin actually moderated a panel about the ruling for the American Bar Association’s election law committee, of which he is an emeritus member. 

Martin’s role in shaping and endorsing the “plenary” theory went entirely unmentioned during the ABA panel, as did his other efforts to help Trump. One panelist said he was unaware of Martin’s efforts after the 2020 election.

“Mark’s been very good about being friends in elite circles,” said Orr, his former state Supreme Court colleague. “It’s one of the main reasons I think he’s been able to dodge much inquiry.” 

Martin’s “Brainchild” 

Martin’s involvement didn’t stop with state legislators like Finchem. Operating under the same fringe version of the plenary theory, Martin was also deeply enmeshed in efforts to drag the post-election battle before the Supreme Court. 

In prior reporting about the Trump campaign’s Supreme Court machinations, Martin has often been cast as a relatively minor player. But one key lawyer, Kurt Olsen, testified that Martin was his entry point to the project of developing a lawsuit for Republican state attorneys to file directly to the Supreme Court. In an online radio interview, another attorney, Don Brown, called it Martin’s “brainchild.” And as he pitched the lawsuit to Republican state officials, records show Brown called the team behind it “Mark Martin’s group.” Other emails show Martin called one state attorney general himself, and he was part of discussions with the Trump campaign about the lawsuit. 

The Intercept’s review of records found that this group even asked White House speechwriters like Stephen Miller to help with punching up the language. And as Trump and his allies tried to engineer a Supreme Court case, they traded repeatedly on Martin’s name and reputation as a retired judge and law school dean. 

Their strategy was to fast track the case via the Supreme Court’s “original jurisdiction” over disputes between states, which means the case would not need to go through lower federal courts first. In early December 2020, Texas Attorney General Ken Paxton filed the suit, Texas v. Pennsylvania. 

The arguments had a familiar ring to them, grounded in the plenary theory. 

“The power to select electors is a plenary power of the State legislatures, and this remains so, without regard to state law,” Paxton’s brief argued. He alleged a range of “significant and unconstitutional irregularities” in Pennsylvania and three other states won by Joe Biden, and that these states had violated their respective legislatures’ plenary authority by, among other things, adjusting voting rules in light of the Covid-19 pandemic. 

The Supreme Court quickly declined to hear the case, which was, as one election law professor summarized, “Dangerous garbage, but garbage.” 

Martin had joined the effort weeks earlier, soon after the 2020 election, according to testimony from Eastman’s disciplinary hearings. By late November 2020, Martin was helping shop the “state v. state” idea around to Republican attorneys general in at least three states — including South Carolina, Louisiana, and Texas — according to materials from the January 6 committee and emails obtained through public records requests by American Oversight, Mount Holyoke College, and the New York Times.  

“Former CJ Martin called me last night to give me an update,” South Carolina Attorney General Alan Wilson wrote to Brown two days before Thanksgiving. Brown had emailed Wilson earlier to discuss his work with “former NC Chief Justice Mark Martin’s group.”  

“Glad CJ Martin called,” Brown replied, adding that he had “heard from one of the attorneys today working under CJ Martin” that “Texas is warming up to maybe jumping on board.” 

In a brief interview with The Intercept, Brown said Martin was “certainly one of the most brilliant legal minds I’ve ever known.” He did not respond to subsequent questions, nor did Wilson’s office.  

Martin was eager to brief Wilson, according to Brown’s emails, as was Mike Farris, who at the time was the president of the right-wing Alliance Defending Freedom. “Chief Justice Martin indicated that if it were possible, he and Mike would be pleased to have a phone conference,” Brown wrote. He promised that Martin’s group would send a “much-improved” analysis, including a study that Martin told Brown had been authorized “at the highest levels,” which Brown wrote that he took to mean it was commissioned by the White House.

“The CJ tells me it will be more difficult for the opposition to punch holes in the evidentiary conclusions,” Brown wrote. 

The group also tried to court Louisiana’s then-solicitor general and now-attorney general, Elizabeth Murrill. A few days before Thanksgiving, another right-wing attorney, Phillip Jauregui, emailed Murrill with an offer to brief her on the draft filings, which he attached. Martin was included in the back-and-forth. 

A spokesperson said Murrill never spoke to Martin directly. “I could not pick him out of a lineup,” Murrill said in an emailed statement. 

Martin also helped woo the Texas attorney general’s office to file the contrived lawsuit. As the group was doing so, they looped in both the Trump campaign and White House staff. Alex Cannon, a lawyer for the Trump campaign, told the January 6 committee that Martin was part of emails discussing “a Texas-only complaint” in late November 2020. Cannon also recalled having a phone call with Martin and another attorney, Kurt Olsen, about the lawsuit.  

On December 5, Olsen emailed the Trump campaign again, copying Martin, looking for evidence to “make the complaint more persuasive.” 

“This is a complaint to be sent to Texas tomorrow at noon, and it’s our last shot,” Olsen wrote to Cannon. Paxton’s office did not respond to The Intercept’s questions. 

The group asked Trump’s speechwriters to put the finishing touches on the briefs, according to testimony to the January 6 committee. Farris sent edited copies to Trump’s executive assistant on December 4, who passed them along to Miller and other speechwriters. Miller, who is not an attorney, told the January 6 committee his speechwriters were “asked to revise the preamble” of the complaint, which he did not find odd “in the least.” 

Three days later, Paxton filed a complaint to the Supreme Court on behalf of Texas. Many passages were identical to drafts circulated by Martin’s group to Louisiana and South Carolina officials, down to an arcane quote from John Adams and claims about “outcome-determinative” fraud. 

The briefs included an eye-popping and statistically ridiculous claim to the Supreme Court, which Olsen later testified that he wrote: that Biden’s probability of winning these four states was “less than one in a quadrillion.” The economist cited for this figure later disavowed the briefs, writing that his analysis did “not support what Paxton claimed about Trump winning.”

Paxton retained two of the attorneys who worked with Martin, Kurt Olsen and Larry Joseph, as “special counsel” for Texas, and they both attached their names to Supreme Court filings. Martin, however, never signed any of the briefs.

Paxton and one of his deputies are still fighting misconduct charges over the case, which the Texas bar’s disciplinary counsel alleged contained “dishonest” assertions about purported voter fraud as well as “misrepresentations and false statements.” Complaints were also filed against Olsen in July. 

Earlier this year, a California judge ruled Eastman tried to mislead the Supreme Court when he filed a brief on Trump’s behalf in the case, which endorsed certain false statements from the Texas briefs. (Olsen testified that Martin may have consulted on Eastman’s brief too.) Eastman has appealed the ruling, which recommended that he be disbarred.

But Martin — who, by Brown’s account, oversaw the broader effort — has faced only intermittent scrutiny by the press.

“The rule of law allows individuals and parties to contest election results in court if they believe the results were inconsistent with the law,” he told Inside Higher Ed in 2023. “This is how the rule of law works, and this is what I support. It is consistent with who I am, my life’s work, and the oath that I have taken to support the Constitution.”

Trump “Trusts Their View”

Even after the Supreme Court refused to take up the Texas complaint, Martin did not give up on the plenary theory. Records show he urged Trump to try another tack: order the federal Justice Department to file essentially the same lawsuit straight to the Supreme Court.

On Christmas Day, attorney Bill Olson, who had previously introduced Finchem and Martin, called Trump to discuss the strategy, according to a memo Olson sent to Trump. (Olson did not respond to The Intercept’s questions.)

“You told me you would then call Mark Martin, former Chief Justice of North Carolina, to discuss the concept further,” Olson wrote. “I know you called Mark Martin, and that he supported filing the case.”

Trump then brought the idea to the Justice Department. When DOJ leaders balked at the threadbare underlying theory, Trump and his aides leaned on Martin’s endorsement. 

In a December 27 call, Trump brought up Martin, former Acting Deputy Attorney General Rich Donoghue told the January 6 committee. “He’s a real ‘scholar.’ He knows about this stuff,” Donoghue recalled Trump saying, in testimony peppered with quotes from his handwritten notes. 

Two days later, on December 29, Donoghue and Jeff Rosen, the acting attorney general, met with Mark Meadows at the White House to discuss the proposal. Martin’s support for using DOJ to file the suit came up almost immediately, according to Donoghue’s notes, along with Eastman’s blessing.  

“Mark Martin and John Eastman, they were attorneys of some sort that had, according to the chief of staff, some views or insights about whether or not this original jurisdiction case could be brought at the Supreme Court,” Donoghue testified. 

Trump “trusts their view,” he jotted down in his notes.

Rosen recalled Meadows being more emphatic. 

“Well, Mark Martin and John Eastman, who are, you know, these great legal scholars, think it’s a great idea,” Rosen told the committee, paraphrasing Meadows. 

Trump’s assistant sent Rosen and Donoghue a draft filing to review. Kurt Olsen also sent a copy, which he said Trump had already reviewed and was “modeled after the Texas action.” 

The proposed draft, which now targeted six states instead of four, had striking resemblances to the document recently swatted away by the Supreme Court, down to the “one in a quadrillion” line and the full-throated reliance on the plenary theory. 

On top of the lack of credible evidence, Justice Department officials flagged an even more fundamental problem: The federal government had no viable grounds to file the lawsuit, and even weaker ones than Texas claimed. 

“We cannot ethically file a suit without a legal basis, and we are certain that if we did so, the Justices would promptly dismiss it,” advised a top DOJ lawyer, Steve Engel, in a memo later released by the January 6 committee.

“Anyone who thinks otherwise simply does not know the law, much less the Supreme Court,” Engel wrote. “This case is not even within its original jurisdiction.”

After a heated call with Olsen, Rosen and Donoghue explained to Trump why, despite Martin’s support, the Justice Department could not file this lawsuit that would benefit his campaign. 

“I wound up telling the President, ‘This doesn’t work. There’s multiple problems with it. And the Department of Justice is not going to be able to do it,’” Rosen testified. 

Pence and “The January 6 Strategy” 

As it became clear that courts were not a viable route, Martin joined Eastman and a cast of familiar characters in looking for ways to use the vice president to overturn the election. This final chapter of Martin’s involvement culminated in his call with Trump on the evening of January 6. 

“Martin advised President Trump that Vice President Pence possessed the constitutional authority to impede the electoral count,” the January 6 committee wrote in a footnote to its final report, citing reporting from the New York Times. Martin has repeatedly declined to address what he and Trump talked about as Pence was preparing to bring the Senate back into session. 

This one, which Joseph filed on behalf of Rep. Louie Gohmert, R-Texas, asked a federal court if Pence had to follow the law and count the electoral votes, or if the vice president was free to discard some. 

Eastman and Bill Olson, who were also on the thread, thought this lawsuit was a terrible idea. It “could completely tank the January 6 strategy,” Olson wrote. Eastman agreed there was a “very high” risk that courts would rule “that Pence has no authority to reject the Biden-certified ballots.” Martin did not share his own views of the lawsuit in the emails released by the January 6 committee.

The next week, Joseph went ahead and filed the suit anyway, which the court quickly dismissed for lack of standing. Disciplinary charges are currently pending against Joseph in Washington, D.C., over that lawsuit. 

In a subsequent “war gaming” memo for potential scenarios on January 6, Eastman emphasized that it was important for Pence to derail the vote count “without asking for permission” from a court or Congress. 

“The illegality of the plan was obvious,” a federal judge later wrote of Eastman’s role. 

Many Trump-aligned attorneys worked to pressure Pence, both in direct appeals to Pence and indirectly through state legislators like Finchem. During this period, Martin’s name also comes up in January 6 committee records. 

On January 2, Eastman and other Trump-aligned attorneys briefed more than 300 state legislators over Zoom, which Trump also joined. Eastman urged the legislators to “assert your plenary power” and demand that Pence delay the electoral vote count, according to an email from the call’s organizer. 

Martin may also have been part of that briefing, based on transcripts from multiple interviews with the January 6 committee. “I believe Mark Martin was on the call,” a committee investigator told White House aide Casey Hutchinson, who said she was unfamiliar with what happened during the Zoom meeting. Investigators told two more witnesses that Martin was on the briefing call, but neither witness confirmed that fact.

The call’s organizer, former Kansas Attorney General Phill Kline, who lost his law license in 2013 for misleading a grand jury and other misconduct, told The Intercept he could not recall if Martin joined Eastman on the call. 

On January 4 and 5, Trump and Eastman tried to convince Pence that he had authority over the outcome of the presidential election far beyond what’s spelled out in the Constitution and federal law. Pence’s attorney, Greg Jacob, who refuted such theories based on what the law actually says, told the January 6 committee that Martin was not part of these discussions. 

During at least one conversation with Pence leading up to January 6, Trump reportedly invoked Martin’s view that Pence could throw out electoral votes that were contested. The New York Times did not name its source for this claim. 

On January 6, after Trump attacked Pence by name in tweets and a furious speech on the Ellipse, the vice president publicly rejected the pressure campaign. Pence issued a public letter declaring that his role was “largely ceremonial” and limited to counting the electoral votes. Soon after, Trump supporters breached the Capitol with chants of “Hang Mike Pence!” and the Secret Service rushed Pence and his family to a secure location.

That evening, after tweeting a video telling his followers to leave the Capitol but still looking for ways to pressure Pence before the Senate reconvened, Trump told the White House switchboard to get Martin and Kurt Olsen on the phone. Records show Trump gave this order at some point before 6:27 p.m., when he left the Oval Office dining room to retire to the presidential residence on the second floor of the White House. 

The January 6 committee asked multiple witnesses what Trump and Martin discussed at 7:30 p.m. that evening, including Ivanka Trump, one of Trump’s aides, and a White House lawyer. None could say. 

Martin’s nine-minute call with Trump was sandwiched between Trump’s two discussions with Olsen, who spoke with the former president for a total of 21 minutes. Olsen, who fought his January 6 committee subpoena, did not answer The Intercept’s questions about what he and Trump spoke about that night.

And Martin still won’t say either. 

No Subpoena, No Foul? 

Unlike so many of the other attorneys who have been at least called to answer for their role seeking to keep Trump in power — including John Eastman, Rudy Giuliani, Kurt Olsen, Bill Olson, Ken Paxton, and Larry Joseph, to name just a few — Martin has faced only withering op-eds and a brief campaign against his selection to lead High Point University’s new law school, which the school shrugged off.

The final report of the January 6 committee, published in December 2022, barely mentions him. In fact, the committee never subpoenaed Martin or called him for an interview, unlike every other person Trump spoke with the evening of the insurrection. 

“How do you not follow up?” Orr wondered about the committee’s failure to talk to Martin. “On January 6, Trump was very selective in who he’s talking with. He’s the president.”

Martin and High Point University like to note this fact to deflect questions about Martin’s involvement. 

“As it relates to the events of Jan. 6,” High Point said in its recycled statement to The Intercept, “more than 1,000 people were interviewed as part of the thorough work of the House Select Committee, and Mark Martin was not one of them.” 

High Point had no response, however, to questions about how frequently Martin’s name came up in the committee’s investigation. The January 6 committee asked at least 17 witnesses about Martin, and they sought documents and information about him in subpoenas to key witnesses. 

Meadows, who defied his own subpoena and refused to testify, was told he would be deposed about the “theories and/or understandings” of both Martin and Eastman regarding the constitutional role of the vice president. The committee also mentioned Martin by name in subpoenas to Pennsylvania state Sen. Doug Mastriano, former national security adviser Mike Flynn, and Peter Navarro, Trump’s trade adviser who went to prison for four months for defying his subpoena.

Rep. Bennie Thompson, D-Miss., who chaired the January 6 committee, called it “disingenuous” for Martin to claim he is “absolved of anything” just because he never got a subpoena. 

“Regardless of how they would now like to distance themselves,” Thompson said in a statement, “all of these conspirators know their shame, and I look forward to the day when they are all held accountable.”