The Return of Trump’s Big Lie
He’s back to loudly
claiming—even in court—that the 2020 election was stolen from him. His lawyers
should be held accountable.
JAN 3, 2024
ON TUESDAY, DONALD TRUMP’S LAWYERS
filed his final brief in support of his attempt to
convince a federal appeals court that he is absolutely immune from prosecution
for actions that he took during his term in office, including any criminal
actions relating to the January 6th insurrection at the Capitol. The lies
packed into this brief should carry sanctions for the attorneys whose names
appear on the front page.
Before digging into the heap of
falsehoods, let’s get this out of the way: Trump’s “I-was-a-king” immunity
argument is utterly unconvincing. The Constitution says
nothing about presidential immunity (unlike immunity for members of Congress),
but the Supreme Court has reasonably held that presidents cannot be routinely
sued or prosecuted for good-faith decisions made in office, so it has erected a
balancing test to protect official presidential acts. In his opening brief filed on December 23, Trump argues
there are five categories of protected official activity in Special Counsel
Jack Smith’s case against him:
- his tweets
about the outcome of the 2020 election “contending that the election was
tainted by fraud and irregularities”;
- his
communications “with the Acting Attorney General and officials at the U.S.
Department of Justice about investigating election crimes and possibly
appointing a new Acting Attorney General”;
- his
communications “with state officials about the administration of the
federal election,” in which he “urged them to exercise their official
responsibilities in accordance with extensive information that the
election was tainted by fraud and irregularities”;
- his
communications “with the Vice President, in his legislative capacity as
President of the Senate,” and attempts “to communicate with other members
of Congress in order to urge them to exercise their official duties with
respect to the certification of the federal election according to
President Trump’s view of the national interest”; and
- the
organization by “other individuals” of “slates of alternate electors from
seven States to provide a justification for the Vice President to exercise
his official duties in the manner urged by President Trump.”
Translation: Trump’s view of the
Constitution and the law was the law, regardless of the truth.
Underlying all those activities is the
Big Lie—the set of falsehoods that Trump repeated about the 2020 presidential
election being stolen. The Big Lie was the factual foundation for everything
that followed. It was the subject of the dozens of lawsuits that Trump filed
and lost across the country in November and December 2020. It was because of
the Big Lie that people died on January 6th. And it is because of the Big Lie
that hundreds of Americans have been sentenced
for crimes committed on that day.
But Trump knew that what he calls
“fraud and irregularities” in the 2020 election did not exist. The
House January 6th Committee spelled this out in detail in its final report, explaining exactly how Trump “was
informed over and over again, by his senior appointees, campaign experts and
those who had served him for years, that his election fraud allegations were
nonsense.”
This is why Jack Smith’s indictment of
Trump alleges that the five categories listed above were all part of a criminal
scheme to obstruct the congressional counting of Electoral College votes and
thwart a lawful election. Thus, the argument circles back to whether actions
presidents take in furtherance of a crime against the United States, in theory,
are insulated from accountability for presidents.
SO IT IS STUNNING TO SEE that, three
years after January 6th, Trump and his lawyers are once again
spreading the Big Lie. The brief filed on Tuesday contains the names of seven
licensed attorneys from three law firms, including John Lauro and Todd Blanche,
who have been publicly outspoken in the criminal cases on Trump’s behalf. Responding
to Smith’s brief opposing Trump’s claims, his lawyers brazenly argue:
The government’s brief . . . omits the
vigorous disputes and questions about the actual outcome of the 2020
Presidential election—disputes that date back to November 2020, continue to
this day in our nation’s political discourse, and are based on
extensive information about widespread fraud and irregularities in the 2020
election. [Emphasis added.]
The latter bit is patently false, and
the lawyers move onto especially thin ice by citing as their source a Truth Social post that Donald Trump
coordinated to release the same day their brief was filed. Both the brief and
the Truth Social link to an anonymously authored PDF that rehashes
many of the falsehoods that have been repeatedly disproved over the last three
years.
This is sanctionable misconduct.
Recall that in August 2021, a federal court in Michigan
ordered monetary sanctions against Donald Trump’s “Kraken” lawyers for filing
four frivolous lawsuits challenging the results of the 2020 presidential
campaign. The judge concluded that the lawyers “deceiv[ed] a federal court and
the American people into believing that rights were infringed, without regard
to whether any laws or rights were in fact violated.” Rule
11 of the Federal Rules of Civil Procedure (not to mention
ethical rules binding attorney conduct) states that when attorneys file a paper
with a federal court, they are certifying “to the best of the person’s
knowledge, information, and belief, formed after an inquiry reasonable under
the circumstances,” that “the factual contentions have evidentiary support or,
if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery.” It is well
established that the Big Lie is a lie. The brief violates Rule 11.
Again, these falsehoods have been
painstakingly and repeatedly debunked. As far back as December 2020, Attorney
General Bill Bar announced that federal authorities uncovered
no evidence of fraud that might have affected the outcome of the election. In
the states of Ohio, Georgia, Nevada, Texas, and
Arizona, Republican secretaries of states and official audits concluded there
was no proof of widespread fraud. Fox News shelled out $787.5 million to Dominion Voting to settle
a defamation case arising from the network’s knowingly broadcasting of false
information about the 2020 election. The list goes on and on. For lawyers to
assert in a filing to the D.C. Circuit—which is considered the second most
powerful court in the land, behind the U.S. Supreme Court, because it hears the
lion’s share of cases involving the federal government and the Constitution—is
appalling.
It’s time for more lawyers—and not
just their disturbed client—to be held accountable by the rule of law for
continuing this damaging ruse.