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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.
For the record, I do find the entire January 6th debacle pretty disqualifying. I don't live in a swing state, so I guess my marginal vote doesn't really matter here, but I do find it a pretty solid reason to decide not to vote for Trump. I think he could have handled it better (without really personally buying into the theories of voter fraud swinging the outcome) if he had accepted the outcome, but channeled right-wing frustration with the trustworthiness of the system into an effort to root out voter fraud, with the aim to produce something disrupting the Biden administration like the entire Russiagate boondoggle dragged his own term. "I'll hand over power, but I'm going to make it my personal effort to make known to the American public how you cheated" is, I think, closer to the Overton window and could have been pulled off.
On the other hand (you asked for a steelman), January 6th is but an incremental escalation over the lawfare that surrounded the 2016 election. Unprecedented campaigns to cause faithless electors, and even attempts by Democrats still in good standing to reject the Electoral votes of the entire states of Montana, Wisconsin, Michigan, West Virginia, North Carolina, South Carolina, Georgia, Alabama, Mississippi, and Florida. For all the discussion of having Congress reject specific votes in 2021, motions to do so were made in 2017. Kudos to Biden himself for rejecting those like Pence did, but Jamie Raskin, Pramila Jayapal, Barbara Lee, the late Sheila Jackson Lee, Raul Grijalva, and Maxine Waters literally tried (and failed, although you could accuse them of trying half-heartedly) to overturn an election and nobody seems to care enough that they all have remained politicians in good standing afterwards. That this escalating debasement of federal elections was allowed without any real repercussions seems to raise legitimate questions about whether the concern about the sanctity of elections is truly about the elections themselves, or selectively imposed only when the oligarchs dislike their outcomes. See also implications that we should throw out actual ballot returns because Russian propagandists might have made a few messages that voters might have seen. Once you're convinced it's who, whom? (both sides very clearly do this), it's easy enough to dismiss pretty much any concerns as politically motivated.
It seems like it would have been a good time to run a very clean "return to normalcy" campaign, but Biden was just last night saying "lock him up" at a political rally, and hasn't exactly been the centrist I feel like he campaigned as, which sours me quite a bit on his chosen successor. I'm not going to say exactly how I'll vote, but I'm pretty openly disappointed with both sides here.
I am not entirely convinced the fake elector scheme was merely an incremental escalation, but I still find this argument more persuasive than most.
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