Members Only | March 11, 2022 | Reading Time: 3 minutes
Asking whether Trump believed the 2020 election was stolen is the wrong question entirely
Even if it had been stolen, fomenting insurrection is still illegal.
The perennial question of whether Donald Trump and John Eastman believed the 2020 election was stolen popped up again this week in a California federal courtroom. This question has been debated endlessly since the J6 insurrection. It’s the wrong question entirely.
The Post’s Greg Sargent argues that the question is a non-starter because there is overwhelming evidence that Trump knew, or should have known, that he lost fair and square. And, indeed there is.
Trump began telling his supporters to expect fraud months before the votes were even cast, let alone counted. After the vote, Trump was told by his campaign’s data analyst, his cybersecurity czar and his Attorney General that there was no outcome-changing fraud in the 2020 election. When Trump’s legal team sought to overturn the election in the courts based on fraud allegations, they were routed at every turn.
The proviso that Trump knew, or should have known, that the election was not stolen is also important. If the evidence is that strong, willful blindness is tantamount to guilty knowledge. You can’t refuse to accept reality and use your own self-delusion as a defense.
The proviso that Trump knew, or should have known, is also important.
If the evidence is that strong, willful blindness is tantamount to guilty knowledge. You can’t refuse to accept reality and use your own self-delusion as a defense.
Sargent’s critique is well-taken, but it doesn’t go far enough.
Focusing on whether Trump knew the election was stolen is completely irrelevant to his criminal culpability for the J6 insurrection.
Asking whether Trump believed the election was stolen is a dangerous distraction. Even if it had been stolen, it would still have been a crime to sic a mob on Congress to stop it. If the bank rips you off, that doesn’t make it legal to hold them up at gunpoint to get what’s yours.
The same is true of an election.
Coups are rarely called coups nowadays. Insurgents usually paint themselves as defenders of democracy who took extraordinary measures to prevent their opponents from stealing power.
We can’t afford to give credence to the idea that it’s OK to take the law into your own hands due to thinking an election was illegitimate.
In a healthy democracy, all sides agree to resolve their differences through legal channels. Al Gore fought all the way to the Supreme Court in 2000, but when the process didn’t go his way, he presided over the joint session of Congress to certify George W. Bush’s victory.
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Gore didn’t orchestrate a procedural coup based on a transparently ridiculous reading of the law as well as bad faith allegations of electoral fraud. He certainly didn’t call on his supporters to march down Pennsylvania Avenue and “take their country back” by force.
The issue of who believed what is still germane to Eastman’s civil case. It’s about the limits of attorney-client privilege, not guilt or innocence for J6. Sargent rightly suspects that we may see the argument reappear when it comes time to assess Trump’s criminal liability.
The Eastman suit is being watched closely. It was the first time that the J6 committee’s lawyers publicly outlined a theory of Trump’s crimes. However, the civil suit is only about whether emails between Trump and Eastman are covered by attorney-client privilege.
The J6 committee’s lawyers argued that under the so-called “crime fraud” exception, attorney-client privilege doesn’t apply to advice given on how to commit crimes. As the J6 lawyers noted, the lawyer doesn’t even have to know his client is using his advice to get away with a crime in order to void the privilege.
In this case, however, Eastman knew perfectly well.
The J6 lawyers pointed to an email in which Eastman acknowledged a part of his plan was a violation of the law. If Eastman knew he was breaking the law, his emails to Trump aren’t covered by attorney-client privilege and he must hand them over to the J6 committee.
He might be obligated to hand them over even if he didn’t know, but his own words show he knew perfectly well, which should make the judge’s decision easy.
Trump’s beliefs about whether the election was stolen are irrelevant to whether he tried to overturn the result by force.
We all saw Trump point a mob on the seat of our democracy. We watched for hours as he refused to call them off.
Nothing can justify that.
If the criterion is whether Trump believed the election was stolen, democracy is doomed because we’re saying the president doesn’t have to respect the outcome of an election he doesn’t agree with.
Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.
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