It’s crackpot conspiracy stuff, and it should be called out as such.
Elected Democrats and their public partisans have spent much of the past quarter century peddling stolen-election conspiracy theories and attacking the legitimacy of American election results. They’ve been doing this since long before Donald Trump entered politics, and I’ve been chronicling it since long before the 2020 election. (See, just for some of the many examples, here, here, here, here, and here.) They’re at it again. The clearest example comes from election lawyer Marc Elias — the go-to lawyer whom Democrats call when they want to claim that voting machines stole their elections. But if Elias is only saying it out loud more bluntly than others, he’s echoing a conspiratorial narrative that Alvin Bragg has injected into the American bloodstream, further poisoning public trust in our democracy.
Here is the claim made by Elias, and echoed by the likes of Laurence Tribe:
In 2016, Donald Trump seemed to pull an inside straight by narrowly winning Michigan, Pennsylvania and Wisconsin while losing the popular vote by three million. We now know, Trump committed 34 felonies to win that election. Without these crimes, he seems almost certain to have lost to Hillary Clinton. She would have been sworn in on Jan. 20, 2017. She would have filled two Supreme Court vacancies and enacted her legislative agenda.
Roe v. Wade would never have been overturned. The progress made under the Obama administration would have been continued. Following a global pandemic, millions might still be alive. As we reflect on the outcome of the New York trial, we should pause to acknowledge that history was tragically derailed by Trump’s felonious conduct.
Set aside the subsidiary insanity here (that “millions” died as a result of Trump pandemic policies). Let’s pretend that Elias intends this to be taken seriously. What’s wrong with this picture? Let us count the logical fallacies and other ways in which Elias misleads his readers as to the facts and the law.
First, the chronology. Donald Trump was convicted of 34 instances of making false business entries. The earliest of those entries was made on February 14, 2017 — after the election was decided and Trump was already president. It would require a time machine for those business entries to have decided the 2016 election.
Second, the documents. Who was deceived by the business entries? The prosecution never introduced evidence that they were seen by anyone other than Trump, Michael Cohen, and people who worked for Trump until a separate investigation of Cohen turned them up.
Third, the disconnect between the illegality and the election. The business entries did not disclose that a hush-money payment had been made to Stormy Daniels regarding her alleged sexual affair with Trump. Elias seems to be claiming that if only the Daniels affair had been made public, Trump would have lost the election. But the prosecution did not claim — nor could it — that the hush-money payment to Daniels was illegal. Bragg’s theory was, instead, that the payments violated federal campaign-finance laws in how they were structured and recorded. In other words, had Trump simply handed Daniels a stack of $130,000 in cash, and had he then recorded the payment in Federal Election Commission filings as “Nondisclosure Agreement,” that would have been perfectly legal and had exactly the same impact on the election. Elias, Bragg, and Tribe, being lawyers, undoubtedly know perfectly well that this is a completely bogus stolen-election theory.
Fourth, the disconnect between FEC reporting and the election. Anything done in October 2016 that had to be reported to the FEC would fall into a reporting period after the election was over. Thus, even if Trump had written HUSH MONEY PAYMENT TO PORN STAR I BANGED on his FEC filings, it was too late to matter to voters in the 2016 election.
Fifth, the Pecker disconnect. Bragg’s other theory of a campaign finance violation was that David Pecker, American Media, Inc., and the AMI-published National Enquirer conspired with Trump to cover up payments that AMI made (allegedly in violation of federal campaign-finance laws on the theory that this constituted an AMI contribution to Trump) to a different woman, Karen McDougal, who also claimed an affair with Trump. The problem with connecting this to the 34 counts of false business records is that none of them had anything to do with Pecker, AMI, or McDougal. They were all just recordings of the Daniels hush money. Had the court done its job, it would never have admitted any of the Pecker/AMI/McDougal stuff into evidence because it had no relevance whatsoever to whether the Daniels business entries were false or whom they were intended to deceive.
Sixth, the McDougal disconnect. Did the concealment of McDougal’s story result in Hillary Clinton’s losing the election? In fact, it was published before the election. On November 4, 2016 — four days before the election, less than a month after the Access Hollywood story broke, and a week after James Comey’s email-investigation bombshell — the Wall Street Journal reported not just the McDougal affair claim but also the Enquirer‘s role in covering it up. And it had zero impact.
This is even before we get to the asymmetry between Elias’s theory that even the slightest gust of wind could have changed things from Trump to Hillary, yet repeated examples of the Clinton campaign’s burying sex-scandal stories and misreporting opposition research as legal fees are not to be mentioned. In the real world, all manner of things are said and done in elections, especially presidential elections. Like the Russian effort to influence the 2016 election, all of this stuff is a very small set of drops in a very large bucket.
Elias is simply selling a nonsensical theory that doesn’t bear the slightest scrutiny. It’s crackpot conspiracy stuff, and it should be called out as such.