Trump allies continue legal drive to erase his loss, stoking election doubts
By Maggie Haberman, Alexandra Berzon and Michael S. Schmidt
A group of President Donald Trump’s allies and associates spent months trying to overturn the 2020 election based on his lie that he was the true winner.
Now, some of the same confidants who tried and failed to invalidate the results based on a set of bogus legal theories are pushing an even wilder sequel: that by “decertifying” the 2020 vote in key states, the outcome can still be reversed.
In statehouses and courtrooms across the country, as well as on right-wing news outlets, allies of Trump — including lawyer John Eastman — are pressing for states to pass resolutions rescinding Electoral College votes for President Joe Biden and to bring lawsuits that seek to prove baseless claims of large-scale voter fraud. Some of those allies are casting their work as a precursor to reinstating the former president.
The efforts have failed to change any statewide outcomes or uncover mass election fraud. Legal experts dismiss them as preposterous, noting that there is no plausible scenario under the Constitution for returning Trump to office.
But just as Eastman’s original plan to use Congress’ final count of electoral votes on Jan. 6, 2021, to overturn the election was seen as far-fetched in the run-up to the deadly Capitol riot, the continued efforts are fueling a false narrative that has resonated with Trump’s supporters and stoked their grievances. They are keeping alive the same combustible stew of conspiracy theory and misinformation that threatens to undermine faith in democracy by nurturing the lie that the election was corrupt.
The efforts have fed a cottage industry of podcasts and television appearances centered around not only false claims of widespread election fraud in 2020, but the notion that the results can still be altered after the fact — and Trump returned to power, an idea that he continues to push privately as he looks toward a probable reelection run in 2024.
Democrats and some Republicans have raised deep concerns about the impact of the decertification efforts. They warn of unintended consequences, including the potential to incite violence of the sort that erupted on Jan. 6, when a mob of Trump’s supporters — convinced that he could still be declared the winner of the 2020 election — stormed the Capitol. Legal experts worry that the focus on decertifying the last election could pave the way for more aggressive — and earlier — legislative intervention the next time around.
“At the moment, there is no other way to say it: This is the clearest and most present danger to our democracy,” said J. Michael Luttig, a leading conservative lawyer and former appeals court judge, for whom Eastman clerked and whom President George W. Bush considered as a nominee to be the chief justice of the United States. “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.”
Most of Trump’s aides would like him to stop talking about 2020 — or, if he must, to focus on changes to voting laws across the country rather than his own fate. But like he did in 2020 when many officials declined to help him upend the election results, Trump has found a group of outside allies willing to take up an outlandish argument they know he wants to see made.
The efforts have been led or loudly championed by Mike Lindell, the CEO of MyPillow; Michael Flynn, Trump’s first national security adviser; Steve Bannon, the former White House chief strategist; and Boris Epshteyn, an aide and associate of Trump’s.
Another key player has been Eastman, the right-wing lawyer who persuaded Trump shortly after the election that Vice President Mike Pence could reject certified electoral votes for Biden when he presided over the congressional count and declare Trump the victor instead.
Eastman wrote a memo and Epshteyn sent an email late last year to the main legislator pushing a decertification bill in Wisconsin, laying out a legal theory to justify the action. Eastman met last month with Robin Vos, the speaker of the state Assembly, and activists working across the country, a meeting that was reported earlier by The Milwaukee Journal Sentinel.
Jefferson Davis, an activist from Wisconsin, said he had asked Eastman to join the meeting after hearing about his work on behalf of Trump following the election.
“If it was good enough for the president of the United States,” Davis said in an interview, “then his expertise was good enough to meet with Speaker Vos in Wisconsin on election fraud and what do we do to fix it.”
Vos has maintained that the Legislature has no pathway to decertification, in line with the guidance of its own lawyers.
“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,” the lawyers wrote, adding that impeachment was the only way to remove a sitting president other than in the case of incapacity.
But Eastman has made clear that he has no intention of dropping his fight to prove that the election was stolen. The House committee investigating the Jan. 6 attack has said his legal efforts to invalidate the results most likely violated the law by trying to defraud the American people. A federal judge recently agreed, calling Eastman’s actions “a coup in search of a legal theory.”
Charles Burnham, Eastman’s lawyer, said in a statement that he “was recently invited to lend his expertise to legislators and citizens in Wisconsin confronting significant evidence of election fraud and illegality. He did so in his role as a constitutional scholar and not on behalf of any client.”
The fringe legal theory that Eastman and Epshteyn are promoting — which has been widely dismissed — holds that state lawmakers have the power to choose how electors are selected, and they can change them long after the Electoral College has certified votes if they find fraud and illegality sufficiently altered the outcome. The theory has surfaced in multiple states, including several that are political battlegrounds.
As in Wisconsin, state legislators in Arizona drafted resolutions calling for the decertification of the 2020 election. In Georgia, a lawsuit sought to decertify the victories of the Democratic Sens. Jon Ossoff and Raphael Warnock. And Robert Regan, a Republican favored to win a seat in the Michigan House, has said he wants to decertify the 2020 election either through a ballot petition or the courts.
Bannon, Lindell and Epshteyn have repeatedly promoted decertification at the state level on Bannon’s podcast, “War Room,” since last summer, pushing it as a steady drumbeat and at times claiming that it could lead to Trump being put back into office. They have described the so-called audit movement that began in Arizona and spread to other states as part of a larger effort to decertify electoral votes.
“We are on a full, full freight train to decertify,” Epshteyn said on the program in January. “That’s what we’re going to get. Everyone knows. Everyone knows this election was stolen.”
Last fall, 186 state legislators from 39 states joined a letter written by Wendy Rogers, a Republican state senator from Arizona who has appeared at events hosted by Lindell, calling on “each state to decertify its electors where it has been shown the elections were certified prematurely and inaccurately.”
All the efforts have either failed to progress or been rejected for lack of legal grounds in the absence of any evidence of widespread voter fraud that could have affected the 2020 election. And even as elected Republicans have almost uniformly embraced Trump’s claims that the vote was stolen, many have rejected the idea that states should decertify their results or argued that the effort was merely symbolic, noting that he could never be reinstated.
Still, Trump is now the front-runner in public opinion surveys of the possible Republican presidential field. While he has yet to declare his candidacy, he has privately told associates that he is planning to run again.
A spokesperson for Trump did not respond to an email seeking comment.
But even among Trump’s staunchest backers, there is a divide over the decertification efforts, with some calling them a waste of energy.
Mike Roman, a former Trump campaign official, pointed out at a recent event with conservative activists in Pennsylvania that the idea of Trump being reinstated as president was not realistic.
“We’re not going to overturn the election in 2020,” Roman told the attendees. “We’re just not.”