Donald Trump lies regularly and on a wide range of subjects—but not all his lies are the same. Politicians are given ample room for puffery when inflating their accomplishments, and even lies motivated by vanity, like Trump’s boasts about his Inaugural Day crowds, are relatively harmless in the broader scheme of things. But then there are lies that are profoundly consequential, that raise questions about this president’s faithful execution of his constitutional responsibilities. In that category belong any misrepresentations that Special Counsel Robert Mueller may show Trump to have made about a political alliance with the Russian government during the 2016 U.S> presidential campaign.
More recently, for reasons that it is important to fully appreciate, Trump has lied with growing audacity and specificity about ostensible corruption in the electoral process. This mendacity undermines the right to vote, in a manner inconsistent with the oath that he has taken to uphold and protect the Constitution. The predictable effect of these lies is to erode voter faith in the electoral process, discouraging participation and promoting suspicion and even rejection of the outcome of elections among members of the electorate taken in by these assertions. For anyone keeping a running tab of Trump’s behaviors that could merit careful consideration in an impeachment inquiry, these falsehoods would make it onto the list.
The history behind Trump’s play on the theme of voter fraud is long, beginning with his refusal as a candidate in 2016 to commit to accepting the results of the presidential election. He suggested that fraud could be rampant and would be the reason if he lost, and so he should not have to concede. After the election, he insisted that the margin of his defeat in the popular vote resulted from massive illegal voting for Hillary Clinton. He then established a commission co-chaired by Vice President Pence and Kansas Secretary of State Kris Kobach to study voter fraud, but after it failed to turn up evidence of illegal voting and was successfully sued by one of its own members for operating illegally, it was abruptly disbanded.
Now, in these recent statements, Trump shows that he will persist in making these claims. He is, in fact, escalating. He is not just repeating a generally stated, if still wholly irresponsible, concern with voting fraud. He is advising the public, in concrete, ostensibly fact-based detail, precisely how that fraud is taking place.
This president contends against all documented evidence that voter-impersonation fraud is widespread, andthat it is accomplished by voters who leave the polling place, return to their cars, and “put on a different hat, put on a different shirt, come in and vote again.” This statement, made in an interview with The Daily Caller, received a lot of attention. There was more. He added the additional claim that he lost New Hampshire in the general election because “thousands of people came up and voted from a very liberal part of Massachusetts.” He related how an aide supposedly told him: “You won New Hampshire easily except they have tremendous numbers of buses coming up.” Trump goes on: “They’re pouring up by the hundreds, buses of people getting out, voting.” The election should have been “recalled,” he concluded.
His statements are false. Trump’s move from a generalized allegation of fraud to these more specific lies is not just a case of tall tales growing ever taller. As president, he is well aware that his statements carry weight, and the more specific the claim, the more weight he can expect for them to carry. But it is not only the specificity of these lies that distinguishes them from routine political claims. It is their subject matter: the integrity of the electoral process. Trump’s message is that the public cannot have confidence that the system is registering an honest vote.
As the Supreme Court has repeatedly affirmed, the right to vote “is of the most fundamental significance under our constitutional structure.” The exercise of this right depends on confidence in the integrity of the process. In one case decided in 2006, the Court paid particular attention to the damage done to the right to vote by the fear of voter fraud. “Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised,” the Court affirmed. Then, in a later case involving Indiana’s interest in voter-ID requirements, the Court emphasized the “independent significance” of maintaining “public confidence in the integrity of the electoral process.”
Voters convinced that the electoral process is corrupt have been told that their votes will not, in effect, be counted, that fraudulent voting will have diluted the pool of ballots cast by eligible voters. Legal voters, discouraged, may turn away.
In taking an oath to preserve and protect the Constitution, the president has sworn to uphold the right to vote, among all the other constitutional rights enjoyed by citizens. It is an abrogation of this responsibility to make up stories intended to convince citizens of the corruption of the franchise and the meaninglessness of their voting rights.
It might be thought that voters will bring a healthy skepticism to the evaluation of any apparently self-interested claims. After all, Trump has been speaking on this subject as candidate and party leader, arguing that all the fraud is being committed against Republicans. It is also hardly uncommon in the heat of recounts for one party to accuse the other of chicanery.
But Trump is president—and he was not making a typical claim in generalized terms about one or more particular elections. He was asserting, as a matter of fact, systemic fraudulent practices that supposedly alter the outcome of national elections by millions of votes. He is saying that it happened not only this year, but in years past, and that he could delineate with specificity the way the fraud was conducted.
These lies violate the legitimate public expectation that, on a matter this serious, a president claiming to bring specific information to its attention will speak truthfully. Trump is deliberately whipping up the “fear that legitimate votes will be outweighed by fraudulent ones,” and to escape the impression that he is just indulging in partisan hyperbole, he has turned to fabricating details.
One could imagine we may see more of the same. Will the next lie assert knowledge of machines being programmed to record only one party’s votes? Or specific knowledge of partisans picking the opposing party’s votes out of the pile and tossing them into the trash? What if, in 2020, Trump targets a particular state or states and announces that, on reliable information from authorities, he must report that fraud is in progress? Or pledges that remedial law enforcement, including prosecution, will be immediately and energetically pursued? Such statements would predictably lead many voters to abandon lines or stay away from the polls altogether. What if Trump proclaims that he is moving to have the election “recalled”?
This kind of deceit cannot be minimized. It is far from the sort of deception that the philosopher Sissela Bok, in her masterwork Lying, included in her catalog of the political misrepresentations, evasions, and half-truths that may be all too routine but yet “are part and parcel of many everyday decisions in government.” This is qualitatively different: a direct and intentional assault on the right to vote that the president is constitutionally obligated to protect. It would seem to satisfy the influential constitutional scholar Charles Black’s well-known criteria for impeachable conduct: an “extremely serious” offense that serves to “subvert the political and governmental process” and is “plainly wrong … regardless of words on the statute books.” It could qualify as well under the formulation of the constitutional scholar Philip Bobbitt, who recently updated the handbook Black wrote on impeachment and who defines an impeachable offense as “a crime against perpetuation of the order and ethos of the State.”
The politics of demagoguery practiced by this president is defined by single-minded self-interest and a cynical willingness to resort to the means he deems necessary to achieve his end. Trump understands that a president’s words count. He knows he can lie to considerable political effect. He seems unable or, more probably, unwilling to reckon with the costs of the falsehoods he disseminates. His lies about the electoral process, which may proliferate in the coming election year, exact a high constitutional price. They subvert what the Court years ago termed “a fundamental political right, because preservative of all rights.”
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