WASHINGTON — A few days before Christmas, President Donald Trump issued an ominous warning to the US Supreme Court: There would be “disruption” if the justices failed to take his side in a challenge to President-elect Joe Biden’s win in Pennsylvania.
“[I]f this matter is not timely resolved, not only Petitioner, but the Nation as а whole may suffer injury from the resulting confusion,” the president’s lawyers wrote in a Dec. 20 brief. “Indeed, the intense national and worldwide attention on the 2020 Presidential election only foreshadows the disruption that may well follow if the uncertainty and unfairness shrouding this election are allowed to persist.”
Two weeks later, Trump’s supporters made good on that warning, launching a violent assault on the US Capitol as lawmakers formally counted the electoral votes and prepared to certify Biden as the next president.
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In the two months since Election Day, Trump and his allies have used the courts to push the baseless conspiracy theories of widespread fraud and a rigged race that fueled Wednesday’s attack on the Capitol. They have recycled false and unsupported claims of illegal activity at the polls that state and federal judges rejected and framed their repeated court losses as more proof that the election was stolen from Trump.
“The U.S. Supreme Court has been totally incompetent and weak on the massive Election Fraud that took place in the 2020 Presidential Election,” Trump tweeted on Dec. 26. “We have absolute PROOF, but they don’t want to see it - No ‘standing’, they say. If we have corrupt elections, we have no country!”
Steve Vladeck, a constitutional law expert at the University of Texas School of Law, who had flagged the “disruption” section in Trump’s brief when it was filed last month, said in a phone interview with BuzzFeed News on Wednesday that the president hadn’t used that kind of language in a court brief before and that it represented he was “once again raising the temperature on the rhetoric surrounding the election.”
“It was basically telling the courts, ‘If you don't help us out, we're going to take matters into our own hands.’ And I'm afraid we saw the results of a lot of that today,” Vladeck said.
Judges had warned in recent weeks that what Trump and his allies were trying to do was antidemocratic and potentially dangerous. In a Dec. 7 opinion rejecting a challenge to Biden’s win in Michigan brought by conservative lawyer Sidney Powell, US District Judge Linda Parker wrote that the lawsuit “seems to be less about achieving the relief Plaintiffs seek — as much of that relief is beyond the power of this Court — and more about the impact of their allegations on People’s faith in the democratic process and their trust in our government.”
Parker added, “Plaintiffs ask this Court to ignore the orderly statutory scheme established to challenge elections and to ignore the will of millions of voters. This, the Court cannot, and will not, do.”
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Trump still has cases pending before the Supreme Court challenging Biden’s wins in Pennsylvania and Wisconsin, but the justices haven’t ruled yet on his requests to hear them before Biden is sworn in on Jan. 20. The justices previously rejected an effort by the Texas attorney general’s office — with support from Trump and 126 Republican members of the House — to sue Pennsylvania, Michigan, Georgia, and Wisconsin and challenge Biden’s wins in those states, as well as an election challenge brought by Pennsylvania Republicans that the state’s Supreme Court tossed out.
Trump’s Dec. 20 “disruption” warning wasn’t the first time he’d used a court filing to hint at future violence if the election challenges didn’t go his way. In a Dec. 9 brief supporting Texas’s failed attempt to sue four swing states, John Eastman, the president’s lawyer, wrote that the US was “deeply divided in ways that it arguably has not been seen since the election of 1860” — referring to the presidential election that Abraham Lincoln won, widely seen as setting the Civil War in motion.
Eastman, who is representing Trump in the Pennsylvania case before the Supreme Court, did not immediately return a request for comment.
Two different teams of lawyers representing the president in cases challenging Biden’s win in Wisconsin have used some of the same language as Eastman’s brief in the Pennsylvania case. In urging the justices to set an expedited schedule to consider cases that Trump had lost in state and federal courts, they repeated the line, “If this matter is not timely resolved, not only Petitioners, but the Nation as a whole, may suffer injury from the resulting confusion.”
But they didn’t include the “disruption” warning, instead writing that the public’s “concerns and doubts” about the election would be “enhanced” if the court didn’t act right away.
In the face of Wednesday’s violence, Trump dug in on his lies that the election was rigged even as he asked the rioters to go home.
"I know your pain," Trump said in a recorded video message. "We had an election that was stolen from us. It was a landslide election, and everyone knows it, especially the other side.”