The clearest sign yet Trump doesn’t care that his fraud claims are false

Donald Trump lost the presidential election in Georgia on Nov. 3, 2020 — but barely. The margin of his loss was narrower than any state except Arizona. The Associated Press didn’t call the state until more than a week later, after Joe Biden had already been identified as president-elect.

Trump, however, has never recognized his defeat. Instead, he has consistently pushed back against that reality, including — a federal judge made clear this week — by embracing claims about illegal voting that he knew to be false. Because for Trump, the issue was never whether the election was stolen, it was whether he could convince people it might have been.

U.S. District Judge David O. Carter was tasked with evaluating a legal fight between Trump’s former attorney (and election-result-denying co-conspirator) John Eastman and the chair of the House select committee investigating the Capitol riot. Eastman sought to prevent certain emails from being turned over to the committee by claiming they were protected by attorney-client privilege.

But communication related to the commission of a crime is not privileged, and Carter determined that there was evidence that several of the emails at issue were “sufficiently related to and in furtherance of a conspiracy to defraud the United States” — namely, to make knowingly false claims about fraud to get a federal court to block the Georgia results.

In the days after the election, Trump filed a state lawsuit against Georgia secretary of state Brad Raffensperger in Georgia’s Fulton County. In that complaint, Trump (through his attorneys) makes specific allegations of fraud, including that the state:

“allowed as many as 2,560 felons with an uncompleted sentence to register to vote and to cast their vote,”“allowed at least 2,423 individuals to vote who were not listed in the State’s records as having been registered to vote,” and“allowed as many as 10,315 or more individuals to vote who were deceased by the time of Election Day.”

Note that, even if true, none of this proves that Trump won. He lost Georgia by 11,779 votes, so Biden would have needed to have won 88 percent of the listed “illegal” votes for Trump to be the victor if those votes were tossed. Note, also, that the claims depend on assertions that come from a certified public accountant’s “statistical analysis” of the state vote, not actual evidence. It depended, for example, on matching first and last names and birth years of voters and felons — meaning that if there was both a John Smith born in 1970 who was a voter and a John Smith born the same year who is a felon who didn’t vote, the first John Smith is one of those 2,560 suspicious voters.

Trump’s legal team eventually decided to withdraw the suit against Raffensperger. Instead, it planned to file a federal lawsuit against him and Georgia Gov. Brian Kemp (R). As that suit was being prepared, the emails reviewed by Carter reveal, there was a debate over whether to include the figures above.

Eastman thought they shouldn’t. In one email, cited by Carter, he raised concerns about the “specific numbers in the paragraph dealing with felons, deceased, moved, etc.” In another, he was explicit about his concerns.

“Although the President signed a verification for [the original complaint] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate,” Eastman wrote. “For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.”

“Incorporation by reference” means that the federal filing (unlike the state one) wouldn’t explicitly cite the figures but, instead, cite them. Which is what ended up happening. The suit filed Dec. 31, 2020 — the day the above email was sent — makes similar claims about felons and dead people voting, including the original state complaint as evidence to that end.

“Georgia election officials allowed unqualified individuals to register and vote in violation of O.C.G.A. $ 21-2-216;” — a section of Georgia legal code — “allowed convicted felons still serving their sentence to vote in violation of O.C.G.A. $ 21-2-216(b); … and accepted votes cast by deceased individuals, in violation of O.C.G.A. $ 21-2-23 l(a)-(b) and (d).” The evidence for those claims was the attached “copy of Verified Petition and exhibits collectively attached,” including the analysis from the accountant.

But there was an important footnote — an effort, it seems, to accommodate Eastman’s concerns.

“The facts and figures set forth in the state court action’s Verified Petition was presented to Plaintiff through the affidavits and expert opinions/reports attached to the Verified Petition” without access to state election files, it notes. So “the facts and figures submitted by affidavits and experts reports/opinions in the lower court and incorporated herein by reference, have been relied upon by Plaintiff only to the extent that such information has been provided to Plaintiff. … Plaintiff has not sworn to any facts under oath for which he does not have personal knowledge or belief.”

This is the crux of Carter’s point: In that email from Eastman, it’s made clear that the legal team knew the figures weren’t defensible and, more importantly, that the plaintiff — Trump — knew they weren’t. The footnote tries to get around this by claiming that if the information is incorrect, it was incorrect without Trump’s knowledge. But that’s not what Eastman said. Hence: a potential effort in Carter’s eyes to defraud the courts.

Remember that this wasn’t occurring in a vacuum. It’s not as though Trump’s team was working behind the scenes and discovered that the CPA was wrong. The state — in the person of Ryan Germany, counsel to Raffensperger’s office — had already publicly debunked the claims made in the initial lawsuit, including at a hearing shortly before Christmas. So it’s not the case that Trump’s legal team was withholding their own discoveries. It’s that they were pretending that Trump was not aware of the public repudiation of his claims.

And that’s just the legal dishonesty. A few days after the lawsuit was filed, Trump called Raffensperger in an attempt to get him to reverse the already-certified results in the state. In that call, he rehashed the same claims about dead voters and unregistered voters casting ballots — with Germany on the line. In other words, Trump tried to convince Germany that his campaign’s numbers were right and the actual state numbers wrong. Though, as Eastman revealed privately, he’d been informed that the data was wrong.

There were, predictably, tweets aimed at putting pressure on Georgia officials from the outside.

“Why haven’t they deducted all of the dead people who ‘voted’, illegals who voted, non Georgia residents who voted, and tens of thousands of others who voted illegally, from the final vote tally?” Trump wrote on Jan. 2, 2021. “Just a small portion of these votes give US a big and conclusive win in Georgia.”

Gabe Sterling, the official in charge of elections, was visibly exasperated on the day after the call as he held a news conference again rebutting Trump’s false claims. In an effort to reinforce the validity of the election results in the state, Sterling presented a point-by-point rebuttal of what Trump was asserting — and that we now know he knew wasn’t true.

After all, Trump’s false claims about fraud were legally shaky but rhetorically useful. Sterling had previously held a news conference noting that false claims of fraud in the state were spurring increasing threats against him, his staff and other officials. Trump, indifferent, pressed forward anyway.

Three days later, he gave a speech in which he again cited the false numbers about fraud, the ones that had been debunked by the state more than once and that his own attorney appears to have privately revealed he knew to be false.

“Over 10,300 ballots in Georgia were cast by individuals whose names and dates of birth match Georgia residents who died in 2020 and prior to the election,” Trump said to the crowd. “More than 2,500 ballots were cast by individuals whose names and dates of birth match incarcerated felons in Georgia prison. People who are not allowed to vote. More than 4,500 illegal ballots were cast by individuals who do not appear on the state’s own voter rolls.”

All debunked. Trump didn’t care.

“They defrauded us out of a win in Georgia, and we’re not going to forget it,” Trump said at another point.

This was his speech at the Ellipse on Jan. 6, 2021.