"Outcome-Determinative Fraud"

Why the talking head smokescreens don't matter

After the latest Trump indictment became public and I had a chance to review it, I posted the following on Facebook.

The most important phrase in the Trump Election Obstruction indictment is right there in paragraph 2: “election-determinative fraud”.

Any talk about “irregularities” or “novel processes due to Covid” or “what Trump truly believed” is a smoke screen. If there was not fraud sufficient to reverse the results, then the rest is bluster. No assertion of election-determinative fraud was ever offered with proof (just random claims and crazy affidavits). Trafficking in those spurious uncertainties was the point to the conspiracy.

Poll questions about whether Biden was “legitimately elected” tap into the noise that the conspiracy created without addressing the election-determinative question.

I know I’m naive and, while I didn’t think the world had seen my Facebook post, I did think that other people in media and politics would have read the indictment. Listening to the lawyers and pundits in the intervening four days shows that willful ignorance is alive and well in the pursuit of political strategy.¹

Almost immediately after the release of news of the indictment, the conversations about “freedom of speech” began. Trump, they argued, was simply expressing his view and certainly didn’t incite any crowds to riot. (I think they had their talking points prepared to rebut the incitement charge and it’s taken them days to move on from those prepared remarks.)

As these critics are no doubt aware, paragraph 3 of the indictment defends the former president’s right to make his claims publicly, even if they were false. This was even true in the early morning hours of November 4th when he said “Frankly, we did win this election.”

He had every right to make such a claim even if everyone knew that all votes were not counted by that point.² The dreaded “blue wave” was going to come as states that held off on counting mail-in ballots began their work.³

The indictment recognizes that the Trump campaign used the appropriate avenues to challenge election processes in court or to pursue state-authorized recounts. Some of the court challenges failed due to issues of standing or timeliness. The recounts documented that the initial machine counts had been accurate.⁴

Anyone who watched the campaign’s legal team (not the real one but the group left over by December⁵) was barraged with crazy claims about ballot stuffing, trucks from out of state bringing in ballots, double-counting, dead people voting, undocumented immigrants voting, and machines flipping ballots. These random claims came in through rumors and supposition, backed by affidavits that had no proof (and included the possibility of being arrested for perjury).

As I stated in the Facebook post above, some of these claims — like dead people voting or improper signatures on a mail-in ballot — might have occurred in small numbers. But there is no way that they were “outcome-determinative”.

Listen carefully to the talking heads and you’ll hear them fall back on claims that “there were irregularities” or “governors and courts changed the rules, not legislators”. They will point out that “the people” don’t have confidence in the election.

Philip Bump reported today on a poll showing that the majority of Americans believe that the indictment is politically motivated to weaken the front-runner for the Republican nomination. I don’t doubt the results given the smokescreens that have been thrown up since before the 2020 election even began.

The indictment lays out a case, which would have to be backed up at trial, that the president had reason to know that his frequent election claims were false. In several instances, Trump had been corrected on a false claim and then repeated that claim immediately thereafter.

So, knowing that the varied claims by the campaign, the politicians, and the talking heads were not outcome-determinative, the conspirators set out to create other pathways to swing the election.

This began with attempts to create alternative sets of electors in the contested states. Drawing upon the 1960 example of Hawaii, where a separate slate of electors was authorized by each party pending the outcome of a recount, they at first argued that electors were only authorized in case a recount or contestation turned out in Trump’s favor (Wisconsin and Pennsylvania). But that quickly shifted from a just-in-case approach to wanting duplicate electors to complicate the January 6th certification by Congress.⁶

Then there were the attempts to get states to change the outcome of the election. These happened after the “safe-harbor dates. This includes the call to the Georgia Secretary of State as well as outreach to other states’ leaders.

There was the attempt within the Department of Justice to elevate one of the co-conspirators who wanted to put out a (obviously false) letter that the DOJ had doubts about the legitimacy of certain states’ outcomes. This was in spite of the fact that senior DOJ leadership told him and the president that there was nothing to all of these claims.

Finally, there is the question of pressuring the vice-president to knowingly reject electors from specific states, either substituting the “fake” electors in their place or rejecting all electors from those states, throwing the election to the House of Representatives.

None of these post-election attempts ever demonstrated outcome-determinative fraud. If there was such evidence, then some of these strategies (like calling special sessions or having alternative electors) might be legit. But when, as co-conspirator 1 said, “we have theories but no facts”, there is nothing to support these efforts. Given that the efforts are alleged to have violated one or more federal laws, an indictment is not only defensible but downright required.

So ignore all the talk about “two-tiered systems of justice” or “free speech” or “weaponization against a political opponent”. It’s all a distraction.

The question is simple. Was there outcome-determinative fraud? If so, then the indictment is without merit (at least most of it). If not, this is a remarkably strong case.

Trump and his team have said that they are looking forward to re-litigating their claims about the 2020 election. I expect the judge will rule that this can only admissible if they show fraud to reverse the results in enough states to swing the electoral college outcome. They won’t be able to do that this time, either. Just keep asking yourself, is this outcome determinative? Everything else is fog-producing rhetoric.

1. I’ll certainly write on this soon, but I’m very much enjoying Russell Moore’s Losing Our Religion. I didn’t expect to agree with Moore as much as I have in reading the book but he has whole chapters exploring this allegiance to party over Christian witness.

2. As an aside, those arguing that all votes should be counted by the end of election day are fantasists. There are not enough election workers to do so and it’s unclear as to whether election day ends at 11:59 EST or in Hawaii (which would be 6:00 AM EST the next day).

3. The Trump campaign’s war on mail-in ballots helped create this blue wave as Republicans were more likely to vote in person.

4. No one ever explained how Hugo Chavez managed to infect the hand recount process.

5. Some of who appear as un-indicted co-consprators.

6. This is the part of the indictment that deals with January 6th. Everything else happened beforehand. Jen Psaki pointed out a few weeks ago that we needed to stop calling this “the January 6th investigation” because it was so much bigger than that one day.