An implausible, fraudulent, and unconstitutional legal scheme to reverse the 2020 election has become the most recent rallying cry of Donald Trump's allies, even as some of them have attracted federal scrutiny for their initial attempts to overturn the election.
The new scheme is a familiar one, revolving around the notion that state lawmakers hold the authority to decertify the election
choose alternate electors—even after certification of the Electoral College—if they find irregularities sufficient enough to have affected the outcome. But while the effort is conceivably aimed at overturning 2020, the real target is providing a framework that can be quickly implemented in case of a Republican loss in 2024.
“At the moment, there is no other way to say it: This is the clearest and most present danger to our democracy,” J. Michael Luttig, a leading conservative lawyer and former appeals court judge, told The New York Times. “Trump and his supporters in Congress and in the states are preparing now to lay the groundwork to overturn the election in 2024 were Trump, or his designee, to lose the vote for the presidency.”
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John Eastman, the fringe lawyer who convinced Donald Trump the election could be overturned, once clerked for Luttig and is now actively pushing state lawmakers in several swing states to act on the retroactive plan. At the same time, a federal judge last month declared Eastman's Jan. 6 scheme "a coup in search of a legal theory," said Trump "likely" committed crimes trying to overturn 2020, and ordered Eastman to turn over a tranche of emails to the select committee investigating Jan. 6. Eastman, however, is still withholding some 37,000 pages of coup plotting from the panel.
Despite his potential legal liabilities from 2020, Eastman is also central to the ongoing effort to keep his theory of the coup alive in the hearts and minds of Trump cultists and lawmakers across the country. The fellow hucksters hawking Eastman's fraudulent plan are also a familiar band: pillow guy Mike Lindell; disgraced former national security adviser and right-wing icon Mike Flynn; former White House aide who's also withholding information from the Jan. 6 panel, Steve Bannon; and former Trump aide Boris Epshteyn.
Eastman's latest handiwork is perhaps most evident in the battleground state of Wisconsin, where his fringe theory has taken hold and absolutely no one can disabuse Trump cultists of it.
Wisconsin Assembly GOP Speaker Robin Vos has been all but swallowed alive by Eastman's plot. Vos originally sought to appease Trumpers last year by launching an Arizona-style fraudit of 2020 with an estimated $680,000 price tag for taxpayers. But the sham audit only served to foster more conspiracy-fueled distrust among Trump supporters.
A couple months ago, Vos spent nearly an hour on a conservative radio show trying to deflect callers' claims that state lawmakers could decertify the 2020 election.
“It is impossible—it cannot happen,” Vos told listeners. “I don’t know how many times I can say that.”
The state legislature's attorneys have likewise affirmed, “There is no mechanism in state or federal law for the Legislature to reverse certified votes cast by the Electoral College and counted by Congress."
Still, "Toss Vos" has now become a rallying cry on the right. Vos was also held in contempt of court late last month for withholding documents related to the Assembly's supposed investigation of 2020 voter fraud.
Vos, who met last month with Eastman and decertify activists, is a classic lesson in appeasement of Trump's corruption: It quickly turns one dying rose into a thicket of thorns down the road.
But Wisconsin isn't alone. Similar schemes are being promoted in some form or another in Arizona, Georgia, and Michigan. The chances of any of them ever overturning the 2020 election are zero, but that's not the point. The point is keeping that frothy dream alive among Trumpers.
“We are on a full, full freight train to decertify,” Epshteyn told Bannon in January on his War Room podcast. “That’s what we’re going to get. Everyone knows. Everyone knows this election was stolen.”
The long-term consequences of that fringe-favorite fever dream will likely haunt U.S. elections for years, if not decades. The short-term electoral impact in a place like Wisconsin, however, remains to be seen. At least some reality-based voters who lean conservative could be turned off by a Republican Party divided against itself over yet another Trump-fueled controversy.