The Chaos Is The Point: Get Ready For Legal Hell After The Midterms

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When pestered with questions about how and why they would gather conservative activists, ask them to masquerade as the real electors in the 2020 election, waiting in the wings to be called forth, acolytes of the former President constantly return to one argument: They didn’t know that creating fake elector slates was wrong.

In December 2020, they were in a situation of pure legal chaos, they’ll explain. Any measure that they took to instill order — including creating slates of alternate, bogus, electors — was not only legal, but prudent.

Underlying the argument is the idea that the legal chaos in the aftermath of an election can justify virtually any measure, or any claim.

But it neatly sidesteps the fact that Trump’s allies sought to exploit every legal avenue, from the realistic to the frivolous to the entirely absurd, in order to create and then maximize that chaos.

That same approach is now beginning to rear its head for the 2022 midterms, as some of the same characters who tried — and failed — to subvert the 2020 presidential election sow chaos again, this time hoping for more favorable results.

An odd feature of this is it’s not clear to whose benefit the chaos will redound. Exhortations by conservative commentators and operatives to mistrust — and challenge — results that may ultimately favor Republicans lack a clear partisan point.

But they go towards creating a yawning void into which opportunists can pursue claims that, otherwise, appear ridiculous.

In 2020, laying the groundwork for this kind of chaos relied heavily on filing numerous lawsuits to keep the sense of controversy alive.

In June, TPM asked Kenneth Chesebro, an attorney who helped develop both the fake electors plot and the Trump 2020 lawsuits, a related question: what was the basis for claiming that there was cause to install pro-Trump electors?

Chesebro suggested to TPM that the lawsuits themselves created a veil of ambiguity which then required alternate electors to be at the ready. Chesebro referenced a dispute over Hawaii’s 1960 electoral votes, which saw two competing slates submit votes amid a recount over a razor-thin margin. That dispute — which did not determine the election result — was the result of a real, and not manufactured, controversy.

“At the time the electors had to cast ballots on Dec 14, 2020,” he said. “By definition, one cannot know the final result, one cannot know what would result in litigation three weeks later,” he said.

In 2020, of course, it was the Trump campaign — and Chesebro’s boss, John Eastman — that sought to create uncertainty by filing the lawsuits in the first place.

That was the strategic choice: creating chaos by contesting the results, thereby providing a basis to preemptively ready fake elector slates.

“You have to go based on how you cannot know the end result three weeks later,” Chesebro said in June.

How exactly that strategy will carry forward after the 2022 midterms remains unclear.

But Eastman, who, memos show, worked directly with Chesebro on contesting the 2020 results, is already prepping activists to work towards legal challenges to the election results.

According to audio obtained by investigative nonprofit Documented, Eastman told an Albuquerque summit of the right-wing Election Integrity Network on Oct. 19 that he planned to involve himself personally in efforts to challenge the results of the 2022 midterms.

“Document what you’ve seen, raise the challenge. And [note] which of the judges on that election board decline to accept your challenge. Get it all written down,” Eastman told the crowd.

In 2020, Trump was able to use an endless series of affidavits filed in lawsuits around the country to sow spurious claims of voter fraud. Eastman’s comments suggest an effort to prepare for similar litigation.

“That then becomes the basis for an affidavit in a court challenge after the fact,” Eastman continued.

It’s laying the groundwork to repeat the playbook that Chesebro and Eastman pioneered in 2020, accumulating legal challenges bolstered by conspiracy theorizing affidavits to apply pressure on state officials and subvert the election.

2020’s fake electors scheme is under federal criminal investigation, with prosecutors examining the role of the Trump campaign and White House in orchestrating the plot.

A California federal judge found last month that Eastman filed at least one Georgia lawsuit seeking to overturn the election results in bad faith, ruling that it was merely a way to keep unfounded accusations that the election was stolen alive in time for the January 6, 2021 Congressional certification of Biden’s win.

That time, it failed.

But as Marshall Yates, a former chief of staff to 2020 election subverter Rep. Mo Brooks (R-AL) and current Election Integrity Network Official, put it at the event: “We will not let what happened in 2020 ever happen again.”

The exhortation to mistrust the results — and to be prepared to challenge them — is already a mainstay of the right-wing media atmosphere.

Fox News host Tucker Carlson suggested to his viewers last week that a victory for the Democrats in Pennsylvania could only be illegitimate.

“They can even run mentally defective candidates who can barely speak, and not only expect them to win, but expect you to accept the outcome no matter how transparently absurd it is,” Carlson said.

“On Nov. 9 they’ll be telling you that John Fetterman got 81 million votes in Pennsylvania, and they’ll threaten to put you in jail if you don’t believe it,” he added. “Why wouldn’t they do that? It worked for Joe Biden.”

This isn’t just Carlson’s opportunism. It’s one example of the lingering consequences of the Trump campaign’s post-2020 election attempt to subvert the results, now being projected forward into 2022 and onwards.

Eastman, Carlson, and Trump himself are asking their followers to assume that results which go against the GOP are not credible. It creates a gaping void for opportunists to exploit, but it’s unclear what will fill it.

Or, as Trump purportedly told his cohorts in 2020, all that was needed was for the election to be declared as corrupt. After that, he and his allies could act.

“Just say the election was corrupt,” Richard Donoghue, a top DOJ official, recorded Trump as saying. “Leave the rest to me and the [Republican] Congressmen.”

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