Trump’s many lies, the indictment says, were “integral to his criminal plans” to overturn the 2020 election. But if Trump “had a right” to lie about the election, by the indictment’s own admission, then which acts make him subject to prosecution? The charges are at their weakest for failing to clearly disentangle the two.
The strongest evidence in the indictment has to do with the transmission of fake electoral slates to Congress. It’s one thing to peddle conspiracy theories to influence the government — that’s part of the political process. But most people understand that actually submitting false documentation can, in some circumstances, be a criminal act.
Post reporting from June suggests that the fake electors were key to the Justice Department’s decision, after much hesitation, to begin criminally pursuing Trump and his advisers in earnest in 2022. Initially, the theory was reportedly narrow: not that the Trump team engaged in a conspiracy to overturn the 2020 election, but that sending fake electoral slates to Washington could constitute mail fraud.
If Trump is convicted, and if his conviction is upheld on appeal, the fake-electors plan will likely be the linchpin holding the case together. But if the fake electors turn out to fall in a legal gray zone, then most of what is left in the indictment is unseemly lobbying and political speech.
To recap: After the 2020 election, the Trump team assembled what it called “alternate” slates of electors in a handful of states it lost in the hope that courts or later Congress would reverse Trump’s defeat. They voted on Dec. 14, the same day as the real electoral college. To be valid, an electoral slate must be certified by a state executive official. No state executives certified the fictional Trump slates, and they were deemed invalid by the Senate parliamentarian.
Legal scholar (and Post contributing columnist) Edward B. Foley argued last year on the Just Security blog that “there are reasons to be wary of prosecuting any claimed electoral votes sent to Congress.” Describing the false slates of electors sent to Congress after the 1876 presidential contest between Samuel J. Tilden and Rutherford B. Hayes, Foley wrote: “Openly asserting that one is the duly appointed elector of state, even when that claim is utterly without merit — as it was in the case of the supposed South Carolina electors for Tilden, and as it would have been even more so with respect to any Vermont electoral votes purportedly cast for Tilden — is to make an argument about one’s status under the law. It is not an attempt to dupe recipients with counterfeit papers.”
One difference between 1876 and 2020, as Foley noted, is that Trump’s claims of having rightfully won the election were implausible, while Tilden’s were not. That could be an argument for criminalizing Trump’s elector scheme since the intent was more corrupt. On the other hand, the transparent frivolousness of the Trump team’s electoral claims made Congress less likely to actually accept them.
An analogy helps crystallize the fake-electors problem: If someone pretends to be a police officer and knocks on another person’s door to ask questions, a crime might have occurred. But if an 8-year-old dressed as a police officer and holding a bag of candy knocks on someone’s door on Halloween — well, that’s not a crime. Were Trump’s “electors” part of a fraud, or essentially playing dress-up in an act of fantasy?
Congress’s 2022 reform to the Electoral Count Act streamlines and professionalizes a process that was too vulnerable to political exploitation. It clarifies that the only slates of electors Congress may accept are those duly certified by a state’s governor; gives courts the final say on certification disputes; and explicitly limits the role of the vice president. The reform shuts the door on the idea that “alternate” electors can change an election outcome.
Trump’s lies led to mob violence on Jan. 6, 2021. But political lies, by themselves, are constitutionally protected. The close question centers on the character of the fake electors as an adjunct to Trump’s false claims.
The Justice Department will fight in court to show that this crossed the line into conspiracy. Whether that’s right will depend not just on Trump’s state of mind but on the nature of Congress’s role in receiving electoral votes: Is it a solemn and ceremonial occasion, like a judge reading a verdict, or can it be a forum for procedural mischief and wild petitions?
Congress has now legislated against the latter view, which was always constitutionally defective. That legislation also reduces the need for a prosecution of Trump to deter similar efforts in the future.
Meanwhile, the 2020 election prosecution of Trump might become the defining issue of the 2024 campaign. The Justice Department is asking the judge to police the former president’s public comments related to the case. If Trump is the Republican nominee, courts and prosecutors will be intertwined in the electoral process as never before.
The legal proceedings will render a judgment on Trump’s efforts to subvert the electoral count. But we might look back and decide that this prosecution was so consumed with vindicating the last election in the eyes of some Americans that it ended up poisoning the next one in the eyes of others.
