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What is the steel man for the Trump fake elector scheme being no big deal? To be clear, I'm not talking about a steel man of Trump's behavior as it relates to J6 itself (the tweets, the speech, the reaction to the crowd, etc.), I'm talking exclusively about the scheme where, according to the Democrat/J6 report/Jack Smith narrative, Trump conspired to overturn the election by trying to convince various states, and later Pence, to use a different slate of electors. Here is the basic narrative (largely rephrased from this comment along with the Jack Smith indictment):
There was no outcome-determinative fraud in the 2020 election (in the event someone replies with evidence there was, you would also need to prove that Trump knew it at the time to justify his actions)
Trump's advisers, advisers that were appointed by himself, repeatedly told him there was no outcome-determinative fraud after looking into it. Despite this, Trump still insisted there was outcome-determinative fraud. Trump still insisted even after he started losing court cases left and right about there being outcome-determinative fraud. Assuming 1 is true this means that Trump is either knowingly lying or willfully ignoring people he himself picked
Trump, despite knowing there wasn't outcome-determinative fraud (assuming 2), still tried to change the outcome of the election. First, he tried the courts where he knowingly lied about there being outcome-determinative fraud in court filings. When that failed he tried contacting various state legislatures and other state officials to ask them to certify his slate of electors. When that failed, his final option was to try to convince Pence to either use his slate of electors to win (a slate of electors not officially certified despite claiming to be certified), or to invalidate enough state's electors to make it so no one gets 270 electors, throwing the election to the house where Trump would then hopefully win given it becomes 1 state 1 vote there.
With that narrative, here are the Trump critiques that I want a steel man defense of:
Trump knowingly lied about there being outcome-determinative fraud in the 2020 election. This is wrong.
Trump tried to use this lie to change the results of the election. This is wrong.
Trump used this lie to get slates of electors to falsely certify they were the chosen electors of that state. This is wrong
Trump tried to convince various state legislatures that these were the lawfully chosen slate of electors and to decertify the Biden slate and certify his slate. This is wrong.
Trump tried to convince Pence to step outside of his constitutional authority to make him president. This is wrong
The strongest steel man that I can come up with involved the case of Hawaii in 1960
The New York Times summarizes the situation,
While this is the closest prior case of something similar, and thus no big deal, what Trump did is still different enough that it can be meaningfully distinguished:
Both Nixon and Kennedy had good reason to believe they won. Trump didn't.
Kennedy's first slate of electors, the ones that weren't certified, weren't the ones eventually counted. Only the ones certified by the state were counted. Trump's false electors were never certified, so asking Pence to certify them was completely unprecedented.
Nixon accepted that Hawaii had final say over what was and wasn't their slate of electors. Trump didn't and continually insisted his slate was correct.
Another argument that I don't think is strong, but nonetheless might be the strongest steel man:
This is not a strong argument because then it would've just been a constitutional coup and those are still wrong. The way many Latin American countries have constitutional coups is that they stack the court that allows them to reinterpret their constitution to give them more power or that allows them to violate term limits. This is still wrong despite technically being legal. The problem is the norm breaking, not the technical legality.
A big problem here is there simply wasn’t enough time to actually conduct a serious investigation. In order to actually investigate the election fraud claim that voting machines changed votes, you’d have to forensically audit dozens of machines in every state. To do so properly would take several weeks. The people claiming no fraud were saying so within days. Likewise for counting irregularities where it appeared that the counting was stopped and republicans shooed out of the room before the democrats pulled out hidden ballots to begin counting again without republicans watching. No one, to my knowledge, was put under oath and questioned, no investigation of the videos showing this kind of thing was done, we certainly never put anyone under oath to testify about the claims. And again with mail in ballots being dropped en mass. Nobody really investigated such claims, nobody bothered to look at the ballots in question, no officials were put under oath to answer questions.
None of that was investigated in the very short time between the reporting of the results and the claims by these officials. The best that could charitably be said is that they called the head of elections in the states, and the official in charge said “we didn’t see anything.” On no planet is asking the person who might have committed fraud if he did so anything like a real investigation. The officials stating there wasn’t fraud have no way of knowing this because no evidence was collected and no investigation was done. The cops investigated themselves and found nothing wrong. Nothing to see here. And questioning is is disinformation.
The lawsuits were never heard. And when they were dismissed, they were dismissed on standing. To say we know for certain he was lying is pretty uncharitable. He couldn’t have known whether there was fraud as no evidence was ever investigated properly. And while I don’t agree with either the false electors or the Pence thing, I’m just not sure what else could have been done. He thinks there’s fraud, there’s no investigation, and there’s simply no time to try. The options at that point are either the Hail Mary he did try or give up and pack up to leave and hope there’s an investigation that exonerates him in several years.
Repeating from another comment, not every lawsuit was dismissed purely on standing. And even for those dismissed purely on standing, many judges talked about the merits anyways. They probably did to expedite any appeals in case their standing portion got overruled.
This is an impossibly high standard to meet. You can say this after every election that has ever occurred. You do not need an investigation into every single machine say "there was probably no fraud here". What happens, as with every other event, is you have some initial prior for how likely an event is to occur, case A: an asteroid is going to fall on earth, case B: it will rain tomorrow. In case A, you have a very low prior. In case B, it is much higher. If someone at work tells you case A, you don't believe him. If that same person tells you case B, you do. The difference is the prior. In case A, you would google it, probably check twitter, probably also check government websites to make sure, and you probably also double and triple check you are on the actual government website and not a spoofed website. You'd do none of this for case B (well, you might google it later). Saying there is election fraud is obviously closer to case A than B, or at least that is where my personal priors are. That means that Trump would need to provide evidence there was fraud, meanwhile, all the other side has to do is debunk those claims. They do not need to prove each and every machine was free from fraud since the prior for there being fraud is so low.
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