On January 20th, 2017, Donald Trump was sworn in to the presidency. After the ceremony and speeches, American leaders left the inauguration, filing calmly out, and carried on with their evenings and weekends. That calm respect for Trump’s position would be representative of how political leaders acted throughout his presidency. They acted as if he had gotten into office fair and square. Few ever questioned how he got to that office, if his acts during the election were appropriate, or if he deserved our respect as a legitimate president.
He was not a legitimate president.
Summary of this article
- Trump broke the law in the 2016 campaign
- Trump-Putin interference flipped the 2016 election
- Stormy Daniels disclosure would have flipped the 2016 election
- Why don’t people say Trump is illegitimate?
- History of Republican presidential unpunished election crimes and dirty tricks
- We get to write history: just say it. Trump stole it. He’s illegitimate.
We know now clearly that Trump is illegitimate: if found guilty, he broke the law in the leadup to the election, to give himself an unfair advantage. For one, he broke the law1 with Michael Cohen, to cover up a scandal that would have affected the election. He paid hush money to Stormy Daniels. We knew that clearly back in 2018 too. Michael Cohen was indicted for that conspiracy, and Trump was named as complicit: he was an unindicted co-conspirator. Trump was not indicted because he was currently the president at the time. That is, he was in an office he had acquired by breaking the law, according to the indictment. Trump was not indicted but Cohen went to jail. Cohen was sentenced to prison in December 2018. Today, multiple media outlets are reporting that Trump was indicted on more than 30 counts related not just to breaking election law, but breaking fraud laws by the way he paid the hush money.
If Trump had not broken the law — in multiple ways! — to pay off Stormy Daniels, according to these reports, he would have lost the election. He would not have been president without this alleged lawbreaking.
Trump breaking election law was enough to make him illegitimate, but there was something else too
Beyond Trump conspiring with Cohen to break the law, as the Department of Justice alleged in 2018, there is a second major reason to believe Trump assumed the office illegitimately: If Trump had disclosed to the public his campaign’s contact with Putin affiliates he would also not have been president. Remember, the Trump campaign manager, while he was the campaign manager, gave campaign voter data to a Russian spy, someone spying for Putin. That Trump campaign manager, Paul Manafort, later also went to jail for Putin-related crimes. One of those crimes was conspiracy “against the United States” — an oddly-named crime, to be sure, but a crime that reflected Trump’s campaign manager helping a foreign power at America’s expense.
If it had been disclosed that the Trump campaign manager was working with a spy for Putin, the backlash would have been large. Trump would have then almost certainly lost the election.
I want to take a moment to expand on that. The 2016 election was decided by a few tens of thousands of votes in a few states. When an election is that close, many factors can affect the outcome. Many average voters had vague thoughts that Hillary Clinton was a bad person, influenced by the media coverage. But Her Emails — a scandal we now know was influenced by Putin via Russian hacking — changed minds and kept Hillary voters home.
In fact, an analysis by Kathleen Hall Jamieson, a serious and careful political scientist, confirms, with data, that without Putin, Trump would have lost the election.
Without Putin, Trump would have lost the election.
Moreover, if the public had fully known about the Trump-Putin affairs, to the extent that a backlash was triggered, Trump would have lost. Therefore, if Trump’s campaign had gone to the FBI when Putin affiliates approached them, it is likely that would have also gotten to the public, and in that case, Trump also would have very likely lost. If Americans knew before the election Putin’s spies had hacked Clinton emails and disclosed them publicly through intermediaries, Trump would have also very likely lost.
In the absence of these disclosures, we instead got word to the contrary from the New York Times right before the election, reassuring the public that Trump had no links to Russia. If it’s the case that the Trump-Putin help would have, if disclosed, influenced the election, then that New York Times article helped Trump get to the White House.
The Stormy Daniels case was much worse than other sex revelations
Set aside the Trump-Putin scenario for a moment and let’s return to Stormy Daniels. Some might say that it was not worse than the Access Hollywood tape. But that’s wrong. In Pennsylvania and Michigan and Wisconsin, suburban women were an important group of swing voters. The Stormy Daniels case involved Trump having sex with a porn star when his wife was home with their four-month old child. Trump dismissed “Grab them by the p*ssy” as “locker room talk.” But in the Stormy Daniels case, he cheated on his wife months after she gave birth to his child. He left his family at home while he went to a Lake Tahoe golf tournament.
A sex scandal where he cheated on his wife with a four-month old at home? That kind of thing moves votes. And Trump knew it: the evidence for that is the hush money payment itself, which he broke the law (allegedly) to make. In fact, Melania herself confirms how impactful this case was — she “remains angry” over the Stormy Daniels scandal.
These two factors — Trump breaking the law in a coverup according to the indictment, and Trump concealing his many links to Putin’s government — are independent. Each one, by itself, is sufficient reason for us to state that Trump stole the election. Each one is enough to make him illegitimate. He never belonged in the presidency: he stole that office.
It’s time for us to say Trump stole the 2016 election.
In what we say, we get to choose what history will record.
It’s a big problem that Donald Trump stole the election in 2016. But it was a chaotic year, the election and vote went by in a blur, we were all grappling with the hacked emails, and the outcome was surprising.
What is a bigger problem than a failure to fight back in fall 2016 is something else: something we we could control for years after the election, right up to today. That is that America has never publicly and loudly discussed Trump’s illegitimacy. Democratic leaders could have forced the issue into the public. Relentless discussion of Trump breaking the law with Cohen could have forced us to talk about Trump stealing the election. Relentless hearings in Congress about Trump and Putin could have forced us to talk about Trump stealing the election.
While we have not been talking about Trump’s illegitimacy, Republicans have done everything they can to shut down discussion of a stolen election. They did everything they could to shut down discussion of Michael Cohen and Trump’s conspiracy with him, and the ways Trump accepted help from Putin and kept those links secret. Of course they did. Republicans have a very strong interest in never saying that their president, who appointed so many officials and changed the government in so many negative ways, was illegitimate and stole his office.
Some people will say they haven’t called Trump illegitimate because they demand proof that Trump’s election law crimes would, with 100% probability, have changed the outcome of the election. Many of the people saying that will be Republicans, saying that in bad faith to protect their candidate and their party. But some of the people saying that will be comfortable centrists, people who think the status quo is OK, and are uncomfortable with rocking the boat. Those are the people whose opinions that we can change, and we need to change.
What is also hard to understand is why Democratic politicians and leaders did not say loudly that Trump was illegitimate.
Several theories have been put forth to explain why leading Democrats did not go on TV on a daily basis and say that Trump is an illegitimate president, or hold hearings about Trump and Putin. Some Democratic politicians are comfortable with the here and now, and don’t want to rock the boat. Many are conflict averse, which is an underrated explanation for why Democrats seem so passive. Conflict aversion is a personality trait, and it is particularly common in elite liberal lawyers, the kind that go to Harvard or Yale or Stanford, end up reading and writing a lot, and end up in congressional office. Another contributing reason is that many Democrats make too many decisions based on polling, and polling has said that pursuing Trump in this way would cause backlash. (That’s wrong: repetition of this idea could change those polls.)
For those who might say they are not one hundred percent sure if these disclosures could have changed the election outcome: Absolute proof is not the standard of proof that is needed. The simple fact is that this was an incredibly close election, and Donald Trump broke the law (according to the indictment!) to help his standing with voters.
In fact, we are far beyond the standard of proof required to say Trump stole the election. The ultimate judgment of history does not hinge on whether the crimes Trump is accused of had a 95% chance of overcharging the outcome or a 99.9% chance of changing the outcome. We are well in the range of certainty. What matters now is not math. What matters now — what affects how the history is written — is whether enough of us are willing to speak up and say that Trump stole the election.
Trump’s 2016 election theft is a consequence of our decisions to ignore criminal and unethical actions during past elections
In 1968 Nixon conspired with the South Vietnamese to extend the war, getting more Americans killed in return for a boost to his election campaign. LBJ called this “treason”. It was a violation of the law. Yet Nixon was never held to account for this.
A few years later came Watergate. That is a story of massive abuse of power by Nixon, but much of the scandal stemmed from his efforts to break the law to interfere with the 1972 election. In particular, the Watergate break-in itself was a break-in to the Democratic National Committee. It was an effort to place bugs — breaking the law! — to influence elections. Nixon was impeached for this but never prosecuted, and returned eventually to public life in the 1980s. The way we punished Nixon, in retrospect, was not enough to discourage later efforts to cheat to influence elections.
We know this because in 1980 the Reagan campaign also cheated. The campaign worked to inform the Iranian government that they should hold the hostages longer to help Reagan. That effort went to the top of Reagan’s campaign, and while we don’t have conclusive proof the candidate himself knew about it, it would be highly surprising if Reagan did not know about major efforts like this by his campaign manager — the head of his campaign.
No one suffered consequences for that 1980 action to keep American prisoners held longer for political advantage. No wonder Donald Trump felt that he could break the law2 around elections with impunity. As long as the count on one day put the electoral college into his column, he would be free and clear to be inaugurated in January and retain the office for four years without fearing prosecution. And that was borne out. In the end, Democrats didn’t impeach Trump for the election law criming. They barely mentioned it.
Trump’s government got a pass for conspiring to break the law.
We may yet hold him responsible criminally, but what’s more important now is how we judge his administration and what they did. Because even if Trump goes to jail for the rest of his life, the consequences of his election lawbreaking resonate today. He appointed three judges of the six-judge Supreme Court rightwing supermajority.
If we continue to try to look past Trump and look to the future, what we are doing is empowering future presidential campaigns, especially Republican campaigns, to cheat and lie, to engage in dirty tricks and ignore our laws. The ends justify the means in the current state of affairs. Campaigns, and parties, and donors are all incentivized to do anything possible to win the massive prize that is the presidency. That means there is enormous moral hazard now — future campaigns will show even less restraint.
If we care about having clean elections in the future, what we must do today is to say that Trump stole his election and that he was an illegitimate president.
Spread the word.
Throughout, when I refer to Trump breaking the law, I am referring to the federal indictment that charged Cohen with related crimes and named “Individual-1” as an alleged co-conspirator in the same crimes, as well as the reported indictments of Trump on 30 counts including business-related crimes. ↩