The Return of Trump’s Big Lie
He’s back to loudly claiming—even in court—that the 2020 election was stolen from him. His lawyers should be held accountable.
ON TUESDAY, DONALD TRUMP’S LAWYERS filed his final brief in support of his attempt to convince a federal appeals court that he is absolutely immune from prosecution for actions that he took during his term in office, including any criminal actions relating to the January 6th insurrection at the Capitol. The lies packed into this brief should carry sanctions for the attorneys whose names appear on the front page.
Before digging into the heap of falsehoods, let’s get this out of the way: Trump’s “I-was-a-king” immunity argument is utterly unconvincing. The Constitution says nothing about presidential immunity (unlike immunity for members of Congress), but the Supreme Court has reasonably held that presidents cannot be routinely sued or prosecuted for good-faith decisions made in office, so it has erected a balancing test to protect official presidential acts. In his opening brief filed on December 23, Trump argues there are five categories of protected official activity in Special Counsel Jack Smith’s case against him:
his tweets about the outcome of the 2020 election “contending that the election was tainted by fraud and irregularities”;
his communications “with the Acting Attorney General and officials at the U.S. Department of Justice about investigating election crimes and possibly appointing a new Acting Attorney General”;
his communications “with state officials about the administration of the federal election,” in which he “urged them to exercise their official responsibilities in accordance with extensive information that the election was tainted by fraud and irregularities”;
his communications “with the Vice President, in his legislative capacity as President of the Senate,” and attempts “to communicate with other members of Congress in order to urge them to exercise their official duties with respect to the certification of the federal election according to President Trump’s view of the national interest”; and
the organization by “other individuals” of “slates of alternate electors from seven States to provide a justification for the Vice President to exercise his official duties in the manner urged by President Trump.”
Translation: Trump’s view of the Constitution and the law was the law, regardless of the truth.
Underlying all those activities is the Big Lie—the set of falsehoods that Trump repeated about the 2020 presidential election being stolen. The Big Lie was the factual foundation for everything that followed. It was the subject of the dozens of lawsuits that Trump filed and lost across the country in November and December 2020. It was because of the Big Lie that people died on January 6th. And it is because of the Big Lie that hundreds of Americans have been sentenced for crimes committed on that day.
But Trump knew that what he calls “fraud and irregularities” in the 2020 election did not exist. The House January 6th Committee spelled this out in detail in its final report, explaining exactly how Trump “was informed over and over again, by his senior appointees, campaign experts and those who had served him for years, that his election fraud allegations were nonsense.”
This is why Jack Smith’s indictment of Trump alleges that the five categories listed above were all part of a criminal scheme to obstruct the congressional counting of Electoral College votes and thwart a lawful election. Thus, the argument circles back to whether actions presidents take in furtherance of a crime against the United States, in theory, are insulated from accountability for presidents.
SO IT IS STUNNING TO SEE that, three years after January 6th, Trump and his lawyers are once again spreading the Big Lie. The brief filed on Tuesday contains the names of seven licensed attorneys from three law firms, including John Lauro and Todd Blanche, who have been publicly outspoken in the criminal cases on Trump’s behalf. Responding to Smith’s brief opposing Trump’s claims, his lawyers brazenly argue:
The government’s brief . . . omits the vigorous disputes and questions about the actual outcome of the 2020 Presidential election—disputes that date back to November 2020, continue to this day in our nation’s political discourse, and are based on extensive information about widespread fraud and irregularities in the 2020 election. [Emphasis added.]
The latter bit is patently false, and the lawyers move onto especially thin ice by citing as their source a Truth Social post that Donald Trump coordinated to release the same day their brief was filed. Both the brief and the Truth Social link to an anonymously authored PDF that rehashes many of the falsehoods that have been repeatedly disproved over the last three years.
This is sanctionable misconduct.
Recall that in August 2021, a federal court in Michigan ordered monetary sanctions against Donald Trump’s “Kraken” lawyers for filing four frivolous lawsuits challenging the results of the 2020 presidential campaign. The judge concluded that the lawyers “deceiv[ed] a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated.” Rule 11 of the Federal Rules of Civil Procedure (not to mention ethical rules binding attorney conduct) states that when attorneys file a paper with a federal court, they are certifying “to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” It is well established that the Big Lie is a lie. The brief violates Rule 11.
Again, these falsehoods have been painstakingly and repeatedly debunked. As far back as December 2020, Attorney General Bill Bar announced that federal authorities uncovered no evidence of fraud that might have affected the outcome of the election. In the states of Ohio, Georgia, Nevada, Texas, and Arizona, Republican secretaries of states and official audits concluded there was no proof of widespread fraud. Fox News shelled out $787.5 million to Dominion Voting to settle a defamation case arising from the network’s knowingly broadcasting of false information about the 2020 election. The list goes on and on. For lawyers to assert in a filing to the D.C. Circuit—which is considered the second most powerful court in the land, behind the U.S. Supreme Court, because it hears the lion’s share of cases involving the federal government and the Constitution—is appalling.
It’s time for more lawyers—and not just their disturbed client—to be held accountable by the rule of law for continuing this damaging ruse.
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