In their closing arguments Tuesday, New York prosecutors dabbled in the latter form of denial about the 2016 election. No, that’s not false equivalence. The linchpin of prosecutor Joshua Steinglass’s closing argument for convicting Donald Trump was that he conspired “to manipulate and defraud the voters” by suppressing damaging allegations of extramarital liaisons. That suppression “could very well be what got President Trump elected,” Steinglass said.
In other words, Trump might not have stolen the office outright, but he gained it illicitly by deceiving the electorate. This soft form of election denial that New York prosecutors teased might be more corrosive than its unhinged bamboo-ballot manifestations because it allows even intelligent and informed people — especially intelligent and informed people — to reject political outcomes they don’t like.
In many, if not most, political campaigns, Americans learn about facts that could have been relevant to their vote only after their vote is cast. Hillary Clinton’s 2016 campaign settled a claim in 2022 with the Federal Election Commission that it did not properly disclose expenses for opposition research that turned up false information about Trump’s Russia ties. If Trump is convicted in New York, prosecutors will have created a legal and political road map for partisans to attack the legitimacy of any election after the fact.
Prosecutors charged Trump with falsifying business records to cover up payment for a nondisclosure agreement to Stormy Daniels, but they claimed in opening statements that the case was about “election fraud.”
In his closing argument, Steinglass fleshed out what he meant: “Democracy gives the people the right to elect their leaders, but that rests on the fundamental premise that the voters have access to accurate information about the candidates.” When voters have inaccurate information — when candidates “pull the wool over their eyes,” as Steinglass put it — they have apparently been defrauded.
Voters had “the right to decide for themselves” what they thought of Daniels’s account of her Trump tryst, Steinglass said. If jurors agree, they could find that Trump had “intent to defraud,” which is one element of the charges.
Whether legally sound or not, the prosecutor’s theory reflects a dangerously warped view of democracy and what it can accomplish. America’s democratic political system relies on candidates for office having the right to say whatever they want about each other and the media having the right to report freely and fearlessly on candidates. That competitive process will generally yield good information to voters — and indeed, voters had a pretty good idea of who Trump was when they elected him. But it will never yield totally complete information, and an election is not fraudulent if material information surfaces after votes are cast.
It’s not an exaggeration to say that this view, if broadly accepted, would lead to democracy’s destruction because it would call the legitimacy of so many elections into question. Yet it’s at the core of the prosecution’s effort to convince jurors that Trump should be convicted on complicated charges forged by an unholy combination of misdemeanors and felonies and federal and state law.
Speaking of calling electoral legitimacy into question because of missing information, let’s say the jury convicts Trump and that voters go to the polls this November thinking he is a felon and deny him a second term — and that the conviction is tossed later on appeal. Steinglass said democracy is subverted when voters lack “accurate information about the candidates.” But in that (plausible) hypothetical, their information would be inaccurate in a major way: Trump would have been wrongfully convicted.
Would that mean the 2024 election was illegitimate? In my understanding of democracy, absolutely not. In the understanding New York’s prosecutors destructively promoted on Tuesday, perhaps. Election denial now begets more election denial down the line.
I’m not saying that fraud can’t be thrown around as a political epithet. Partisans can hold their opposition accountable politically for scheming for advantage or betraying constituencies. Nor am I saying politicians can’t be prosecuted for campaign-finance violations and the like (though these are usually handled as civil, rather than criminal, offenses for a reason).
The danger is when amorphous, inflammatory accusations of election theft are seen as grounds to prosecute an opponent or delegitimize outcomes. Claiming partisan falsehoods corrupted elections is always a convenient excuse for losers, but they have to accept outcomes anyway. If that takes some political make-believe — some looking the other way, some deference to the “sacred” judgment of voters — well, that’s the price of self-government.
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