While polls of Republican voters still show strong support for former president Trump, some of the most powerful testimony against him during the January 6 Congressional hearings have been by members of his administration and party. In this episode we hear from Stanford Law Professor Michael W. McConnell, a former judge on the U. S. Court of Appeals for the Tenth Circuit nominated by President George W. Bush, about a new report he co-authored, Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election, which examined every count of every case of election irregularities brought by Trump’s team in six battleground states—and concluded that “Donald Trump and his supporters had their day in court and failed to produce substantive evidence to make their case.”
This episode originally aired on SiriusXM on July 30, 2022.
Rich Ford: From Stanford University and Sirius XM, this is Stanford Legal. I’m Rich Ford.
Joe Bankman: And I’m Joe Bankman.
Ford: Joe, today we’re talking with our colleague Michael McConnell about the events at the Capitol on January 6th and the claim that the election was stolen, and his new report that gives the conservative case that Trump lost the election and Joe Biden won.
Bankman: This is a report which Mike co-authored with a number of what I will call Republican luminaries, including former Senator Danforth, Ben Ginsberg, Thomas Griffith, and other esteemed jurists, Ted Olson, former solicitor general, Senator Gordon Smith, among others. This could be an important book, Rich, because this is a review of the Trump claims by leading lights in his own party.
Ford: The report goes through the claims in great detail, takes them seriously, and concludes that none of them have merit, and that, in fact, the election was as it was called, for Joe Biden. So we’re really looking forward to hearing what Michael has to say about how the report came about and the reception by people in the Republican Party.
Bankman: My guess is, for a lot of our listeners, the fact that the election fraud claims are themselves fraudulent isn’t particularly news. What would be news is how a report written by key long term Republican insiders is being heard in the Republican Party. Michael, welcome back to the show.
Michael McConnell: Thank you. It’s fun to be back.
Bankman: You’ve written and co-authored this important new book with a self-explanatory title, Lost, Not Stolen, a retrospective of the ’20 election. Can you give us some background on how it came to be and why you wrote it?
McConnell: Certainly. This is the product of a very informal group. There are three former federal judges. There are two former senators. There are two or three people who have been active either in Republican politics or as chiefs of staff for congressional leaders. We’ve all known each other. Some of these people I’ve known since the early 1980s. We all independently had become concerned that many of the false claims about the 2020 election were continuing to have purchase among, actually, millions of Americans, and especially members of the Republican Party. We wondered, “Why is this,” given a seeming lack of serious evidence. We thought it might be that no one had taken the claims of electoral misfeasance seriously and looked at them all one by one. Is there anything here? Looked at them with any kind of an objective sense.
This is a group of people with Republican Party associations. Now, some of us aren’t really political. I’m not a political person, but I have been nominated by Republican presidents to various positions. All of the members of this very informal group share that. We thought that, if we spoke to our fellow Republicans and conservatives and treated the claims seriously, and actually laid out the evidence and went through them one by one, this might make a difference.
Ford: It’s really interesting, Michael, that after January 6th, it seemed that these claims might not be taken all that seriously. Yet they continued to have a long life and ultimately still influenced a lot of people. Did that surprise you? Did that prompt some of you and the group’s thinking about how to present the report?
McConnell: Very much so. Right after January 6th, it looked as though almost everyone of any significance was coalescing behind the view that it was time to put an end to these claims, that they were doing harm to the country. For example, I just learned about memos sent by Secretary of Labor Eugene Scalia. This is Supreme Court Justice Nino Scalia’s son, who was Secretary of Labor, and coincidentally, a former student of mine from the University of Chicago. On January 7th, he wrote a formal request for a cabinet meeting. I’ll just read one sentence although the whole thing is really quite interesting. But one sentence, he says, “I believe it is important to know that while president, you will no longer publicly question the election results. After Wednesday, no one can deny that this is harmful.” This is coming from one of President Trump’s own cabinet officials, a person who carries enormous weight, partly because of his father, with the whole conservative community.
At the same time, members of Congress were coalescing. I mean, they had just undergone a rather frightening experience. Everyone was attributing this to Mister Trump’s own actions in stirring up the crowd. Now, they didn’t know all the details that we now know, but they knew enough. Senate Republican leader, Mitch McConnell, no relation to me, by the way, clearly blamed President Trump for this. But so also did Kevin McCarthy, the Republican leader in the House, and many other people of that sort. But then, in the ensuing weeks, and as things have gone on, rather than this gelling into a consensus, it seems as though many people have backed away from these conclusions, especially people who are elected officials in the Republican Party. I wonder how many of them have really been convinced. I doubt it. My guess is that they’re being bullied and that they face Republican primaries in which many voters are still convinced by the claims, and that it’s just easier for them to go along.
I think that this is turning out to be a mistake. You can see why the short-term political calculation for these officials would be, there’s really no advantage to me of taking on President Trump, his supporters. They’re probably unconvincable. Why raise a problem for myself? But I think it’s actually turning out to be a not even long term, but middle-term problem, because to the extent that Republican Party officials, and maybe even the party as a whole, come to be associated with entertaining claims of this sort, with so little or zero evidence, they are discrediting themselves.
I think it makes it much more difficult for the party at a time when politics ought to be looking up for the Republican Party. It makes it difficult for them to focus on the real problems that this country is facing, and to their alternative policy program, because when people don’t share the rules of the game, it’s hard to trust them with responsibility. Do you want to play Monopoly against some friends when you know that they aren’t going to follow the rules? Nobody wants to do that. Really, this is a new thing, I think, in American political history, that so many people from one side have taken a position like this. Now, I say so many. I don’t think it’s a majority, even within the Republican Party. But it certainly is a significant number.
Bankman: Michael, one of the things that you’re pointing out is that this might backfire against the Republican Party. I think another fear is that, in Republican dominated legislators in swing states, we could have a new election, where we are convinced that voting doesn’t work. The legislature just elects electors that don’t reflect the actual votes cast. I know that’s the kind of fear I think, on the Democratic side, because if it were just the demise of the Republican Party, my sense is some people on the Democratic side might be overjoyed. But this could also threaten the sanctity of the next election.
McConnell: Well, I think that is true. One of the things we ought to reassure ourselves, I think Americans as a nation can pat ourselves on the back that the institutional protections established in the Constitution and our laws actually worked so well this past time. In spite of what we now know about Mister Trump personally and some of his advocates putting pressure on individual state legislatures in Republican-dominated legislatures to take steps that would have chosen electors other than the ones voted for, not a single state legislature went down that path. You also look at the judiciary. The judiciary held. Some of the most important opinions rejecting these claims were written not just by Republican judges, but by Republican judges who were nominated by Donald Trump himself. That is something people should sit up and take notice about. The idea that these judges were just unfair, if you look at the actual cases, it’s just not well-founded.
You look at the federal government apparatus, the entire White House counsel. White House counsel are chosen by the president. They are his lawyers. I’m often critical of the White House counsel’s office for being excessively supportive of things that presidents do, both parties. But they held completely firm. So did the Department of Justice. Bill Barr, the attorney general, was criticized by many Democrats for actually undertaking a serious look for fraud. But then, having done that, he was able to speak with authority. When he said that there was no fraud of significant size to affect any of the state elections, that wasn’t him just talking through his hat. That was him talking on the basis of an actual investigation. He was backed up by his successor, by the deputies, by the office of legal counsel. To my knowledge, at least as I understand it, there was one lawyer at the Department of Justice who was playing ball with the Trump team on this. Other than that, it was a complete holding firm of people.
I should mention election officials like Raffensperger in Georgia, but others all over the country, whether they were Democrats or Republicans, doing their jobs and not being influenced by partisan considerations. Considering the intensity of the pressure here and the partisan pressures here, I think we ought to take a moment just to acknowledge the fact that the people making the decisions in 2020 did their jobs. We’re not being partisan. In a way, you just say, “Well, of course. This is the way it’s supposed to work.” But I still think this should be an occasion for national self-congratulations. But as you say, Joe, there are people running for some of these offices in some states who do not seem to have that kind of a commitment to a nonpartisan approach to vote counting. That could prove to create problems far worse in future elections than we faced in 2020.
Ford: Yes. The guardrails held this time. There were a lot of courageous people from both parties who made sure that they did. Yet we now still have roughly 30% of the country who believes this narrative that the election was stolen. How are you and the other authors of the report reaching out to those people, and how successful do you think you’ve been in convincing them of the truth?
McConnell: Well, we’re doing our best. 30% of the public tell pollsters this. I wonder. I mean, there are all kinds of polls on various issues. People believe all kinds of crazy things, or at least, they’re willing to tell pollsters they believe all kinds of crazy things. In my personal contacts with people active in Republican Party circles, I do not detect anywhere near that level of support. What I think we mostly see is cowardice and silence from people who need to be speaking out. Again, I think that’s a short term. That may be in their short-term interest, but I think it’s a long term miscalculation.
Now, what are we doing? First of all, we put a lot of effort into producing a report that I hope people will find persuasive. It was indeed presented on Fox News, which is an important place to present it, just today, and National Review. We have a summary of the report that has been published. A number of radio stations around the country have invited one or another member of this little group to talk about it. Who knows what the effect actually will be? My guess is that even if some people are persuaded, they will probably continue to take the easy way out and be quiet about it.
Bankman: Michael, I’d love for you to walk us through one section of the report, just to give our listeners some notion of a state, what the allegations were, and what you found, what the report’s like.
McConnell: We focused on six different states. We could talk about any of them. Arizona is a very interesting state to think about because of the fact that the state senate in Arizona is controlled by Republicans, many of whom were at least open to Mister Trump’s claims and wanted to investigate them. There was actually more post-election counting and recounting and reexamination in Arizona than probably any other place. In fact, one person who follows these things historically said that there has been no election in American history that’s been so thoroughly flyspecked as the presidential election in Arizona. A number of claims were brought. None of them succeeded.
But then Arizona, that was not the end of the matter. There have been manual recounts in the largest districts, and the Republican-dominated state senate hired a forensic examination team with the unlikely name of Cyber Ninjas. I don’t know how many people feel more confident in their professionalism knowing the name of the organization. In any event, the Cyber Ninjas were hired. Of course, everybody expected that the Cyber Ninjas would be out there finding fraudulent votes and so forth. They raised some systemic issues about election administration. Some of the complaints about election administration I think should be taken seriously. But no evidence that they actually produced any wrongful votes. In the very end, when the Cyber Ninjas folded up their tents and gave their final report, they found that there were actually more votes for President Biden than the official tallies had reported. I think, when you get that from this outfit that had been hired by the very people who wanted to find the results, we should believe the Cyber Ninjas. That ought to really put this to rest.
Now, they’re also in Arizona, where a number of charges having to do with the voting machines. This is leading to a big libel suit by the company that produces the voting machines because their business has understandably been hurt by claims that these machines were manipulated. Now, these ranged from claims that were plausible on their face, but disproven. When I say disproven, there were three different analyses of the voting machines by nonpartisan groups. They found that the voting machines operated as they were intended. It’s very important to note that the voting machines are not even connected to the internet, so the claims of hacking are literally impossible.
There were some claims that are not crazy on their face but turn out not to be true. Then there is the welter of fanciful conspiracy theories about Hugo Chávez and Venezuela and other people around the world somehow being able to pre-program the voting machines to cast their votes for Biden. It’s interesting, by the way, that whoever did this must not care about any Democrats other than Biden, because evidently, it was just Biden. The down votes in Arizona went Republican. I mean, a little bit more Republican. These voting machines, if they were loaded, were split ticket corrupters of the vote, which I don’t know about you, but that seems to me to be highly unlikely.
Ford: We’ll be back with more from Michael McConnell next on Stanford Legal, here on Sirius XM Business Radio, channel 132. Welcome back to Stanford Legal. We’re here talking with our colleague Michael McConnell, who’s the author, along with a distinguished group of jurists and judges, of a new report called Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election.
Bankman: Michael, I want to say something about the work you produced, which is for our readers, it’s quite readable. This isn’t an academic tone. It’s 75 pages. It’s well organized. With each state that you’re interested in, it starts off with an interesting description of, really, the dynamics, the demographics of this vote, as opposed to, say, the 2016 vote. So for our readers who are looking to take a look at it, you can easily download it from our site and peruse it yourself. But I want to change now our focus a little bit from the report to how it’s been received in Republican circles.
McConnell: Well, it’s very hard for anyone to know how many individual people have looked at this and what they think. I can report that there have been surprisingly few attempts to refute the report. When I say surprisingly few, that doesn’t mean zero. I mean, there have been several publications. I think probably the most detailed criticism was published by Mollie Hemingway, a reporter for whom I have a high regard. The Federalist is the name of the publication. It’s a respectable publication. But when you really get down to it, the criticisms of the report are not very substantial. What I would say is it’s really engaged in the project of goalpost shifting, because what we have looked at are the actual claims of fraud and illegality such that the election was called the wrong way. We did not make any claims that the American system doesn’t … that there aren’t some systematic problems. Certainly, COVID presented some challenges to electoral administration. Not all of those were good. I hope that they don’t all remain permanent.
I’ll just read a sentence from The Federalist. This is not, of course, Hamilton, Madison, and Jay, but the current publication criticizing our report. It says, “The problem is not mass voter fraud, but a privately funded, quote, ‘shadow campaign for Joe Biden’ within the formal structure of the election system.” Well, okay. But what President Trump claimed and his lawyers claimed was, in fact, mass voter fraud. That’s the charge that we have looked into. No doubt there are many ways in which well-funded campaigns manage to distort things. But voter fraud is what we were looking at. Even so, Trump, supportive of sources as this seems to admit, at this point, that did not exist, at least not at a level large enough to affect any elections.
Ford: Michael, what do you think can be done in order to both safeguard the integrity of our elections, but also to ensure that voters of all political stripes have faith in our elections, given where we are right now? I know you’re at work with a group that’s focused on the Electoral Count Act. That’s one thing. What do you think are some of the things that we ought to do?
McConnell: Some of this is just I hope that people at large wake up and become more serious about this. Charges of electoral fraud are serious. If true, they are really serious. Charges like that should not be made lightly. They need to be backed up by actual evidence. So what can be done? I do think that the Electoral Count Act reforms that have been introduced in the Senate is a very good step forward. They will make it much more difficult to have an event like January 6th. If this passes, it’s going to be clear that the vice president can’t change the results of the election. It’s going to be clear that you can’t challenge the official results from states with just one member of each House.
Another very important provision in the legislation prohibits state legislatures from changing the rules after Election Day. I mean, that would seem to be obvious, but apparently not. Now, in addition to that, I have to say, I think the Republican Party needs to do something about itself. I believe the party should be self-reforming. More leaders in the Republican Party need to actually step up and demand that this be confronted as a problem within the party. Democrats doing this won’t do any good. It has to be Republicans to do it. I would say exactly the same thing if we were looking at a problem arising from the Democrats.
But the Democrats also are contributing to the problem in a really nasty way. Apparently, Democratic groups are contributing to campaigns of some of the election denier candidates in Republican primaries, on the theory that they are going to be more difficult to defeat. Well, again, that may be short-term political smarts, but it’s not only a bad thing for the country, but it also makes you wonder, “Well, how serious are the Democrats about this problem if they want to magnify the problem for short-term electoral advantage?” It makes you wonder how serious they really are about it.
Finally, I wish that we had a more measured set of debates about various types of election administration. It is simply not true that every effort by a state legislature to make their systems less susceptible to the possibility of fraud is voter suppression. I think we ought to have a bipartisan commitment to reducing the dangers of election fraud to the tiniest number possible, but while still also having a commitment to making it as easy for people to vote as possible. Those two things are not actually inconsistent, but you have to be for both.
Bankman: We’ve been talking with our colleague, Michael McConnell, about a work he and others with longstanding ties in the Republican Party have authored, entitled Lost, Not Stolen: An Account of Voter Fraud Allegations in the 2020 Election. We’ll have the link to that important work on our site. We want to thank Michael for joining us here on Sirius XM Business Radio, channel 132.