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Opinion A strange new defense of Trump’s coup effort is both wrong and dangerous

President Donald Trump addresses his supporters on Jan. 6, 2021. (Jacquelyn Martin/AP)
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Ever since Donald Trump’s supporters stormed the Capitol, we’ve heard endless variations of a particularly pernicious claim: Trump and many GOP voters really believed the election was stolen from him. This helps explain the ferocity of the Jan. 6 violence, we’ve been told, even if it doesn’t justify it.

This notion is both baseless and unintentionally exonerating. We don’t know what Trump and his voters actually believed. And casting this as rooted in delusion leaves no space for the possibility that Trump — and many of his supporters — are now fully on board with efforts to overturn election losses in the full knowledge that they are, in fact, procedurally legitimate.

But now this idea is being directly marshaled as a legal defense on behalf of Trump and at least one of his co-conspirators, lawyer John Eastman, the author of the now-infamous Trump coup memo.

So it’s time to bury this argument for good. It’s preposterously absurd based on widely available facts. And it’s also dangerous: If it succeeds politically, it could open the door to all kinds of further antidemocratic abuses.

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The claim that Trump really believed he won the 2020 election has surfaced in litigation between the House select committee examining Jan. 6 and Eastman. His memo argued that Trump’s vice president, Mike Pence, had the power to invalidate Joe Biden’s presidential electors in Congress to allow friendly states to send new ones, in effect offering a blueprint for Trump’s coup.

The committee has subpoenaed documents from Eastman to shed light on the coup attempt. But Eastman argues that they’re protected by attorney-client privilege. So the committee has invoked the “crime-fraud exception” saying those protections don’t apply if the documents were part of a crime.

To that end, the committee recently argued that Trump’s coup effort might indeed have been a crime, either obstruction of an official proceeding or conspiracy to defraud the United States. The committee demonstrated that Trump knew he’d lost, to show the effort was corrupt and potentially criminal.

That’s why this new argument — that Trump and Eastman believed the election was stolen — has sprung up. Eastman’s lawyer, Charles Burnham, employed it in district court Tuesday to argue that the crime-fraud exception should not apply, because they didn’t think they were involved in a crime.

As the New York Times summarizes:

[Burnham] argued that both Mr. Eastman and Mr. Trump genuinely believed the claims of a stolen election — despite being told repeatedly that such statements were false.
“Dr. Eastman and others absolutely believed that what they were doing was well-grounded in law and fact, and was necessary for what they believed was the best interest of the country,” Mr. Burnham said.

This is being employed in Eastman’s defense. But it will probably be used to defend Trump as well, if there is a Justice Department investigation into his conduct, as the Jan. 6 committee will likely recommend.

And there’s a very neat way to show that in Trump’s case, it’s baloney.

You might recall that as early as July 2020, Trump was already telegraphing his plan in advance to try to steal the election if he lost it. He essentially told reporters straight out that he’d use expected delays in counting mail-in votes to use an election-night lead to declare victory, and argue that belatedly counted votes were fraudulent.

Trump repeated another version of this just before the election. And he reportedly confided privately to advisers that he’d pronounce himself victor prematurely on election night to exactly that end. Which is precisely what Trump did end up doing.

This should badly undermine the notion that Trump “really believed” the election was stolen from him. To say this, you also must say Trump “really believed” in advance that no election loss could possibly be legitimate, that any loss must of necessity be inherently fraudulent.

If that’s what Trump “really believed,” it’s not exonerating at all. It means that under no circumstances — even after dozens of court battles confirmed the outcome, even after Trump’s own Justice Department officials reportedly told him he had lost, even after Republican audits and election officials confirmed the same — would he ever abandon this professed “belief.”

And that’s exactly what has happened.

But it’s worth underscoring that this argument isn’t just easily debunked. It’s also dangerous.

Note that Republicans like Sen. Josh Hawley of Missouri justified their effort to subvert the count of Biden’s electors with another version of this claim. Hawley insisted that in so doing, he was merely representing his voters’ true belief that the outcome was dubious or worse.

But of course, in doing this, Hawley was actually reinforcing the idea that the election’s outcome was suspect and potentially subject to nullification. The mere “belief” became the justification to continue feeding that belief. And on and on.

If Trump can get away with this defense politically, this hideously antidemocratic tactic — of merely claiming to believe an election was stolen to justify any and all efforts to overturn it — could become ever more attractive. If so, where does that end?