Trump’s Legal Battle for the Election is a Mess
Despite some potential evidence of actual fraud, the president's legal team have kneecapped themselves at every turn.
Having spent far too much time in recent days sifting through claims of widespread voter fraud in the 2020 election, I watched the press conference with Rudy Giuliani and Sidney Powell Thursday with interest.
Here are several key takeaways, in no particular order:
1) The decision to use electronic voting in the United States was bound to lead to this kind of mess
At this point, the Trump administration has filed so many lawsuits, with so many affidavits, and has made such far-reaching claims of fraud, that it’s nearly impossible to sort through them to know what, if anything, has actually been proven. However, one thing they certainly have shown, beyond any reasonable doubt, is that electronic voting is a terrible idea.
Notice, I do not say that anybody has proven that any fraud actually took place using electronic voting machines in the 2020 election. They haven’t. Sidney Powell has presented many troubling questions about the vulnerabilities of electronic voting machines. As of yet, however, we have no hard evidence that anybody actually exploited those vulnerabilities (if they exist).
This is a distinction that many Trumpists are unfortunately failing to make. Casting broad doubts about the security of voting machines does not prove that the election was stolen. Such doubts, even if they turn out to be well-founded, will almost certainly be insufficient to convince any judge to invalidate a single vote, let alone overturn the entire election result.
However, what’s certain is that electronic voting is highly vulnerable to the kind of doubt and suspicion that Sidney Powell, et al, are casting on it. It was only a matter of time. For this reason alone, the states should never have touched electronic voting.
When a vote is cast on a piece of paper, you can see that paper, hold that paper, and store that paper; you can pull it out later, and match signatures, and recount it. But once a vote goes into a computer, and becomes a series of 1s and 0s, nobody—except for those who designed and control the software—knows or can physically see what became of that vote. Keeping copies of the physical ballots does nothing to assuage these concerns, since in most cases there will be no recount of those ballots. The computer’s processor and memory thus have the final say.
No amount of technical mumbo-jumbo or even actual security can ever eradicate the appearance of the untrustworthiness of electronic voting. Inevitably somebody will ask, “If clever people make fake videos featuring global leaders that are undetectable as frauds, then why couldn’t clever people also fake votes?” There’s no convincing riposte to that question.
In some cases, perception is reality. Electronic voting is one of those cases. The perception that a voting machine can change a vote (whether or not this is true) casts a pall of doubt on democracy itself. The country needs to get out of the electronic voting business, ASAP.
2) There is a lot of bad reporting in the media, but a lot of the blame rests on Trump, his legal team and the magnitude, complexity and implausibility of their claims
Trump’s lawyers spent a lot of time at the podium lecturing the media on their “fake” reporting on the fraud claims. No doubt, after four years of mainstream media malpractice, they have reason for making this claim.
However, the moralistic lecturing was myopic and counterproductive, simply because even honest journalists (if there are any left) have been left with their heads spinning by the quantity and magnitude of the claims the Trump administration is putting out there right now.
Any honest person approaching the fraud claims without a pre-determined position on their validity (something that is, unfortunately, all too rare) has inevitably been left feeling overwhelmed and confused. There’s just too much information. There are too many conflicting claims. There isn’t enough time to adjudicate each one of them properly. Not only is some degree of media skepticism to be expected, it’s actually the only responsible thing to do, given the complexity and magnitude of the fraud claims, and the stakes at play.
One of the central claims being made by Trump’s legal team is that there exists a vast national and global conspiracy involving a network of shadowy electronic voting companies, communist regimes, foreign dictators, vote routing, switching and deleting involving complex algorithms, and the complicity of numerous Democratic governors and election officials. The evidence proffered so far to support this claim is a single affidavit by an unnamed Venezuelan official, and a number of non-specific allegations of data anomalies on election night.
Should we—should the media—simply assent to these claims, based solely upon the heat of Sidney Powell’s rhetoric, and a single affidavit? How seriously should we even take them, given that the clock is ticking, and it is hard to imagine the Trump team actually proving these allegations by the safe harbor deadlines, whether they are true or not? How much effort should they expend chasing every new bone Sidney Powell and MAGA surrogates throw their way?
“Dianne Feinstein’s husband! George Soros! Scytl! German servers! Raids by U.S. military! Spain! Hugo Chavez! Nancy Pelosi’s chief of staff! Bill Gates! Cuba!” And so on and so forth.
It’s exhausting just trying to keep up. However you look at it, much of it is extraordinarily confusing and, frankly, prima facie unbelievable. Of course, truth is sometimes stranger than fiction. Powell could be right. But how likely is it that all her increasingly wild allegations should come together just as she has laid them out? And how surprised should we be that people outside the MAGA camp are skeptical?
3) The whole thing feels like intellectual blackmail
Rudy Giuliani complained that his team is preparing and presenting cases that would normally take months, if not years to prepare and argue in normal circumstances. The media should give them time to make their case, and wait for the evidence, he said.
But who’s fault is this? The Trump administration had four years to investigate Dominion, Smartmatic, and the dangers of electronic voting in general. They could have convened bipartisan committees to investigate voter fraud and the vulnerabilities of these voting machines.
In 2016, even after he won, Trump claimed that there were millions of fraudulent votes. If he really believed that, why didn’t he do something meaningful about it while he was in office? Posting about it on Twitter doesn’t count.
Sidney Powell has raised some good questions about electronic voting, if only that people will readily believe wild claims of fraud using it. These questions should be pursued, however, a few days ago, most of us had never even heard of Dominion, Smartmatic and Scytl, etc. Now we’re being told that we must simply believe Powell’s theory that these companies stole the election. Countless MAGA followers are posting that they are absolutely sure, without the slightest shadow of a doubt, that Dominion is behind the electoral theft. This feels mad.
“She’s a competent lawyer!” her supporters say. “She’s brilliant, she’s honest! She’s a patriot!” Maybe she is all of these things, but I’m not going to make a judgment about the outcome of a presidential election, or assent to a vast, complex, and highly implausible theory, based upon such thin gruel.
I need time. I need evidence. I need witnesses and counter-witnesses, examined and cross-examined. And being told by the MAGA crowd that I must assent to the theory, and to declare certainty that an election is invalid and that a coup has been perpetrated, without any of these, feels like intellectual blackmail.
The simple fact is, this process should not be happening under the gun like this. And that’s on Trump, not the media.
4) Trump’s legal team is making an amateur error in its approach to convincing the public
A thousand doubts does not constitute proof. Amateur debaters often fall into the trap of trying to win a debate by listing as many arguments as they can come up with. The mistake is in thinking that people are convinced by sheer quantities of evidence.
In reality, this almost always backfires. When you pound people over the head with argument after argument, they tend to become confused, bewildered, and, in the end, resentful. They resent not having the chance to really think through any one claim or argument in detail. Inevitably they begin to suspect that you’re just trying to pull a fast one on them. Usually, they’re right.
Trump and his legal team have fallen into this trap. At the press conference, they made repeated reference to the “hundreds” of sworn affidavits they have gathered, and the large number of their lawsuits. However, while hundreds of affidavits may be “evidence,” in the legal sense of the term, they do not amount to proof.
A journalist for The Blaze reviewed the affidavits filed in Michigan and noted that many of them do not actually contain allegations of fraud. Instead, they often have to do with circumstantial things, such as how GOP challengers felt they were being “treated” by election officials, or described “fraudulent” behavior that could plausibly be interpreted as election officials following normal procedures that GOP challengers simply failed to understand.
Maybe some of the affidavits obtained by Trump’s legal team contain slam-dunk proof of widespread fraud, but if they do, they are being lost in the noise.
Expert debaters know that the best way to win an argument is to select only the very best arguments, and to focus on those. If you go for quantity of evidence, inevitably you will include low quality evidence in your arguments. Your audience, which is not so much weighing each piece of evidence (an impossible task), as whether you are the sort of person who should be trusted, will often only remember your bad or weak arguments. The result is that they will write off everything else you say, as coming from a fundamentally unreliable source.
Trump and his surrogates have raised important questions about election integrity. Unfortunately, however, they have also repeated and promoted numerous false claims. Starting on election night, Trump began retweeting every claim of fraud that came across his Twitter feed, without any effort to fact check them. Many of them have subsequently been proven to be baseless.
It should come as no surprise that those who are not already on board the Trump Train are reacting to each new claim made by Trump with deep skepticism. The tragedy is that some of these claims may be valid. However, Trump’s carelessness with the truth has fatally undercut his ability to lead a productive inquiry into voter fraud.
5) The fraud ‘investigation’ is being conducted ass-backwards
Trump, his legal team, and MAGA supporters all began with the conviction that the election was stolen. Then, they went in search of the proof.
People are skeptical of the effort, because that’s the worst possible way to go about an investigation. The point of conducting an investigation is that you do not know the answer. You have a hypothesis or a suspicion, but not proof.
The Trump admin has, from the very beginning, claimed absolute certitude. Unfortunately, this isn’t just bad epistemology, it’s also insanely reckless, since, by definition, the very claim calls into doubt the very existence of democracy in America.
The word “coup” is being tossed around by MAGA followers carelessly. To say that’s a loaded word is an understatement. But Trump and his team have left themselves no escape route. Even if incontrovertible evidence shows up at some point that the election was not stolen, a significant portion of the MAGA crowd will always believe that it was. At this point, there is nothing that could convince them otherwise.
Clearly, having a large body of citizens who believe that their government is illegitimate comes with potentially catastrophic unforeseen consequences. Nobody in the Trump administration or MAGA crowd seems to be giving any thought to this. Damn the torpedoes.
Given that it’s Trump, we can expect him to throw out outrageous claims without making any real effort to determine if they’re really true. However, it is our responsibility to prioritize truth over political expediency. Whatever our political affiliations, our duty is to investigate with indifference to the outcome, rather than seeking ways to substantiate our personal preferences. When faced with a choice between truth and winning, choose truth, every time.
6) The U.S. electoral system is a mess
Rudy Giuliani has at least this much right. The evidence Giuliani and his team have collected of conflicting processes and procedures around the country, the reports of irregularities, the evidence of actual fraud, and the ongoing efforts of Democrats to push less secure voting methods, may not be sufficient to actually overturn the result. But it absolutely is sufficient to suggest that the whole system is a mess, and vulnerable to exploitation.
While I believe the odds of Trump’s fraud claims leading to the election being overturned are slim (although I am keeping an open mind on the question), we can at least hope that the whole sordid episode leads to some serious and much-needed bipartisan electoral reform, so that this does not happen again.
But in the end, that’s only going to happen if cooler heads prevail, and reckless rhetoric only leads the country down a dark road of further division and strife.