One phrase permeates the Democrats’ case against former president Donald Trump at his impeachment trial: “The Big Lie.” It’s Democrats’ shorthand for Trump’s baseless and overwhelmingly debunked effort to call the results of the 2020 election into question — a set of claims that led his supporters to take drastic action in storming the U.S. Capitol. House impeachment managers used the phrase, which evokes Adolf Hitler, about two-dozen times.
Often left unsaid in their telling, though, is that the “Big Lie” wasn’t just about a stolen election; it was also about how it might be taken back.
Over and over again, Trump and his allies pushed far-flung, doomed and legally specious efforts to overturn the election they claimed had been stolen. They said GOP state legislatures could change the results, including by designating their own competing electors. They claimed judges hadn’t actually ruled on the merits of their claims, when in fact they had. They assured not only that the Supreme Court had the power to tell states how run their elections, but suggested that it would soon intervene. And toward the end, they advanced a desperate, last-ditch attempt to get Vice President Mike Pence to unilaterally throw the election to Trump.
None of it bore any resemblance to the legal realities of the situation, but all of it injected fuel and false hope into a movement that needed to be sustained as the certification process proceeded apace. Every predictable setback was met with assurances that this next thing was the golden ticket — the way in which the day could finally be won. Each time a plot was hatched, though, it was roundly rejected by experts, who were eventually proved right.
The first big claim was about what GOP state legislatures could do. Even before the election and as the result was still uncertain in the hours and days afterward, some floated the idea that the legislatures could unilaterally designate their own electors. By late November, Trump lawyer Rudolph W. Giuliani was telling Pennsylvania’s legislators that they should attempt to appoint pro-Trump electors, despite the results in their states. He did the same with Michigan in early December, telling lawmakers to “take back the power” to select electors. Trump too cited the idea that legislatures could assert themselves to right the supposed wrongs of the election.
But in those states, the law clearly stated that electors were to be awarded to the popular vote winner. “Assertions that Michigan legislators have authority different from what is expressly found in state law are inaccurate,” responded Michigan Senate Majority Leader Mike Shirkey (R). Fact checks and legal analysis repeatedly backed up Shirkey’s reading of the law.
When it became clear state legislatures weren’t going to do this and as the Trump team’s court losses mounted, attention turned to the possibility that the Supreme Court might overrule them all. “We’re waiting for the United States Supreme Court, of which the president has nominated three justices, to step in and do something,” one Trump campaign surrogate said. “And hopefully [Trump-appointed Justice] Amy Coney Barrett will come through and pick it up.” Trump called a dubious case spearheaded by Texas Attorney General Ken Paxton (R) — and joined in by most state GOP attorneys general — “the Big One.”
But then the Supreme Court unceremoniously dismissed the case without hearing it — along with another seeking a Supreme Court intervention in Pennsylvania. Trump and his allies claimed the court had punted on the issue. “Never even given our day in Court!” Trump proclaimed. They also cited Justices Samuel Alito and Clarence Thomas disagreeing in part with dismissing Paxton’s case outright.
As I wrote at the time, though, Alito and Thomas also stated that they wouldn’t have provided the relief sought (their objection was simply to the idea that the Supreme Court didn’t need to accept the case itself). What’s more, the claims made in his lawsuit had been dealt with repeatedly in lower courts. The same was true of Pennsylvania, where the state Supreme Court had upheld the changes to the election that the Trump-inspired lawsuit sought to call into question.
The final dose of false hope for Trump supporters came in the form of Pence. The Trump team argued that he could, as the man tasked with overseeing Congress accepting the results of the electoral college, unilaterally object to any given state. Again, though, legal scholars rejected this out of hand. So too did Pence, who fought a lawsuit arguing he had such power. As Congress was taking up the electoral college on Jan. 6, Pence reaffirmed that he had no intent to attempt this end-run on the Constitution — a situation which led some Capitol riots to chant, “Hang Mike Pence.” Even after the insurrection began and as Pence was evacuated, Trump tweeted attacking Pence for this decision.
In every legal defense, it’s important to keep things narrow — to tailor your arguments so things are relatively simple and easily understood.
But as senators consider the evidence against Trump at his impeachment trial, it’s worth noting this effort wasn’t just about repeated claims of a stolen election; it was about the options that were at-hand to supposedly reclaim it. Each one allowed Trump’s supporters to believe they had been railroaded by the system, and that the alleged conspiracy went deeper than just voter fraud.
Democrats didn’t spend much time on this in their case against Trump over the past two days, but it’s part-and-parcel with the idea that Trump was whipping his supporters into a frenzy. And, particularly in the case of Pence, it seems to have led to some of the ugliest scenes we witnessed on Jan. 6.