Point #1: Evidence That Trump Knew He Had Lost the Election and Lied About Voter Fraud

Matt Gluck, Tia Sewell, Benjamin Wittes
Sunday, August 21, 2022, 9:00 AM

Published by The Lawfare Institute
in Cooperation With

♦ Return to Evidence Navigation Page
Take Me to Point #2 →


The committee did not present a great deal of evidence that Trump, in fact, knew or had any kind of subject understanding that he had lost the election and intentionally lied about it. There does not seem to be evidence, for example, that he ever confessed to anyone that he was aware that President Biden had defeated him or that he ever acknowledged that his claims of voter fraud were garbage. In other words, it’s still possible, as former Attorney General William Barr suggested in his interview presented during the June 13 hearing, that Trump had “become detached from reality” and had actually convinced himself of the nonsense he was peddling. 

The committee did, however, present a great deal of evidence—in the June 9, June 13, and June 23 hearings—that credible actors repeatedly informed Trump that he had lost and that he was torturing reality in his public statements. That is, that he had every opportunity to know the truth, whether he was emotionally capable of internalizing that truth or not. The committee presented evidence, in fact, that Trump received this information from a diverse array of actors: his own campaign operatives, his campaign lawyers, senior Justice Department officials, and federal judges. At a minimum, the committee was persuasive that Trump had every reason to know that he had lost and simply chose not to accede to that reality but to propagate a falsehood instead. 

This story begins before Election Day itself, in the committee’s presentation. “As early as April 2020, Mr. Trump claimed that the only way he could lose an election would be as a result of fraud,” Rep. Zoe Lofgren stated during the June 13 hearing, presenting public statements in which Trump explicitly made this claim and criticized the reliability of voting by mail. This fact presents perhaps the most powerful single piece of evidence that Trump’s claims of fraud after the election were a premeditated and preplanned response to defeat cooked up in the former president’s mind long before the election even happened. On April 8, 2020, for example, Trump alleged that fraud would occur with voting by mail, and a few months later, he claimed that “the only way we’re going to lose this election is if the election is rigged, remember that.”

Trump took other actions before Election Day that seemed designed to help his later fraud narrative. He actively discouraged mail-in voting, for example, despite the pleas of his campaign staff and senior Republicans. The committee revealed during the June 13 hearing that Trump’s campaign manager, Bill Stepien, was so concerned about the president’s discouragement of mail-in voting that he met with the president and Rep. Kevin McCarthy in the summer 2020 and the two “made our case” for why mail-in voting was not a bad thing for Trump’s campaign. Stepien argued that urging voters to vote only on Election Day would leave a lot to chance and that the Trump campaign, the Republican National Committee, and the Republican Party all had the advantage of grassroots workers on the ground who could make mail-in voting work for the president. “But the president’s mind was made up,” Stepien said.

This strategy made no sense from the point of view of actually winning votes. But it made all the sense in the world if the goal was to allow the president to cry foul in the event of a defeat. The more that Democrats voted by mail and Republicans voted in person, explained former Fox News politics editor Chris Stirewalt, the greater the so-called red mirage—the tendency of vote counting to first favor Republicans and then swing toward Democrats. Because in many states, in-person votes get counted first, the early vote count looks much more heavily Republican than the full vote count. Stirewalt testified that Fox News tried to explain this effect to its viewers on election night because “the Trump campaign and the president had made it clear that they were going to try to exploit this anomaly, and we knew [the effect] was going to be bigger, because the percentage of early votes was higher.”

Other witnesses commented on the effect as well. Barr, for example, testified that the president claimed there was “major fraud” on election night, before there was any evidence of anything of the kind, and that seemed to be based on the dynamic that many Democratic votes came in later. But Barr said that “everyone” knew this would be the case for weeks in advance. Stepien testified that he had personally informed the president prior to election night that many votes would be counted in the days after the election—and that while the early votes would favor Trump, the later ones might favor Biden. Yet Trump nonetheless went on television, after receiving this information from his advisers, stating, “We want all voting to stop. We don’t want them to find any ballots at four o’clock in the morning and add them to the list.”

The committee also presented evidence that Trump’s claim of victory on election night took place in the face of clear warnings from senior staff that he had not, in fact, prevailed. Trump campaign adviser Jason Miller said he was in the Oval Office when the campaign’s lead data expert told President Trump “in pretty blunt terms” that he was going to lose the election. Stepien stated that he advised the president that it was “too early to call the race” and that Trump should acknowledge this, state he was proud of his campaign, and say that they were in a good position.

But Miller and Stepien testified that Trump listened to attorney and former New York Mayor Rudy Giuliani, who was apparently drunk at the time, and claimed victory anyway. Miller stated that Giuliani wanted Trump to make a speech asserting he had won. Stepien stated that the president disagreed with his advice to be careful and said that he conveyed he was going to “go in a different direction.” And, of course, Trump insisted that evening publicly that “we did win this election” and stated that “we want all voting to stop.”

In the days immediately following the election, as the count firmed up, Trump’s campaign operatives again told the president that the numbers just were not there for him to pull out a victory. Stepien described the trajectory of the election as the votes were counted in the week after election night, saying that his view of the election was “very, very, very bleak” at that point—specifically, that Trump’s chances of success were pegged at “five, maybe ten percent.” He conveyed this view to the president, he testified. 

The campaign lawyers, at least the respectable ones, also told the president his claims of fraud had no merit. In one case, Stepien and aide Faith McPherson received an email from Trump attorney Alex Cannon—forwarded to White House Chief of Staff Mark Meadows, Trump attorney Justin Clark, and Jason Miller—showing the results from an investigation into Arizona voting records following claims that noncitizens had participated. The email, which showed that there was little to no evidence for this claim, was sent up the chain of leadership. Trump responded by marginalizing the lawyers who gave him the bad news. Stepien stated that the president was “growing increasingly unhappy” with his campaign team, and that at this point, he moved Justin Clark out and put Giuliani in to take the lead on the campaign. 

In the Office of White House Counsel, the story was the same. Derek Lyons, an associate counsel, said that a month and a half after the election, there was a meeting that concerned various allegations of fraud, during which the office “told the group, the president included, that none of the allegations had been substantiated to the point where they could be the basis for any litigation challenge to the election.”

And then there was the Justice Department. Barr testified that in three discussions with Trump (Nov. 23, Dec. 1, and Dec. 14), he informed the president that he “did not agree with the idea of saying the election was stolen and putting out this stuff, which I told the president was bullshit.” Barr testified that he “repeatedly told the president in no uncertain terms that I did not see evidence of fraud ... that would have affected the outcome of the election.” Barr also said that these claims were “crazy stuff” and that these arguments were “doing a great, grave disservice to the country.” 

Barr stated that he told Trump that the campaign had to raise its claims in state proceedings, because the Justice Department doesn’t take sides in elections and is not an extension of his personal or campaign legal team. He stated that he told the president that the department’s role is to investigate fraud, and that it would look at an allegation that is specific, is credible, and could have affected the outcome of the election. He said he told Trump that the department had been doing that, but the president’s claims were not meritorious and thus were not panning out. 

Former Acting Attorney General Jeffrey Rosen, meanwhile, stated that the president would come to him with allegations, and he would reply that the department already looked into the theories and debunked them. 

Former Acting Deputy Attorney General Richard Donoghue said he tried to “put it in very clear terms to the president,” detailing efforts and findings by the department and telling Trump that he was getting false information. Donoghue stated that he told Trump that his claims about a high rate of ballot error in Michigan were wrong. The actual rate was tiny, which Donoghue explained and which Trump accepted, but Trump then proceeded to just move on to other allegations. “And again, this gets back to the point that there were so many of these allegations that when you gave him a very direct answer on one of them, he wouldn’t fight us on it, but he would move to another allegation,” Donoghue recalled. 

Donoghue detailed several other allegations he individually debunked, only to have Trump then start talking about double voting, dead people voting, and claims that “Indians are getting paid to vote.” Donoghue said that he reiterated to Trump that the “information he is getting was false and/or just not supported by the evidence.”

The former U.S. attorney in Georgia, BJay Pak, testified that he was asked in early December by Barr to investigate a videotape Giuliani had shown by way of alleging that Fulton County ballots had been smuggled by suitcase into a counting area: “We found that the suitcase full of ballots … was actually an official lockbox where ballots were kept safe.” Giuliani had only played a clip. Pak said that the FBI interviewed the individuals shown in the video, that nothing irregular happened, and that Giuliani’s allegations were “false.”

In short, the committee is wholly persuasive that Trump was made aware of his defeat and of the meritlessness of his claims of fraud. Its presentation on Point #1 lacks only a smoking gun as to Trump’s subjective state of mind in making the claims he advanced. During the committee’s fifth hearing, Chairman Thompson asserted that “Trump knew he lost.” The evidence on this point largely consists of his having laid the groundwork for the claim before Election Day and the information available to him being so voluminous that any blindness on his part was necessarily willful.

♦ Return to Evidence Navigation Page
Take Me to Point #2 →

Matt Gluck is a research fellow at Lawfare. He holds a BA in government from Dartmouth College.
Tia Sewell is a former associate editor of Lawfare. She studied international relations and economics at Stanford University and is now a master’s student in international security at Sciences Po in Paris.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

Subscribe to Lawfare