This is now a legitimate, and urgent, question. It is related to “what is a crime?” The answer to both questions is, in a phrase a popular law professor taught all his students to say first “it depends”. The answer to both questions in the USA, after years of heartily advertised lies — smoking is perfectly safe, burning fossil fuels is perfectly good for the environment, Oxycodone has a magically low risk of addiction, being in a rage all the time is good for your health, never apologizing is a sign of strength — is that as a society we’ve come to accept many knowing lies as possibly true. After all, why would Exxon or Dick Cheney, or the philanthropic Sackler family, or autocratic multi-billionaire Charles Koch lie?
Boof Kavanaugh’s presumably adoring mother provided her hyper-ambitious only child a good framework for evaluating the truth or falsity of claims that come before a judge: “Use common sense, what smells OK, what smells funny, who stands to gain by the claim?” (Martha Kavanaugh is quoted as saying ““Use your common sense. What rings true. What rings false.” which is a slightly weaker vanilla formulation of what I recall Boof saying, I’ll give the former Montgomery County civil court judge the benefit of the doubt here) It’s a pretty good guide for spotting truth or lies, especially if you include “who stands to gain by the claim”. That seems to me the key consideration when listening to a statement that rings a little iffy.
If you go through a large sum of money, quickly and without any apparent cause, someone might conclude you have a gambling problem. It’s not an unreasonable theory to account for blowing through a pile of cash in an otherwise unexplainable manner. If you are pressed by a family member on the loss of the money, and that family member assumes you have a gambling problem, you will need to say something convincing. You press forward tentatively at first, explaining that you had many unforeseen expenses, such as blah, blah and blah, and had borrowed money you had to repay, which necessitated borrowing more money, which meant you spent more of your own money than you’d planned… if the family member seems amenable to these absurdist explanations you clinch the thing by looking her in the eyes and saying “I do not have a gambling problem.” To disprove the lie, you’d have to find the guy’s bookie, or betting slips, or credit card charges at a gambling parlor. Otherwise, who are you going to believe your wild hunch or my sincere explanation about why your wild hunch is completely wild?
We are now living in the Age of Justifiable Lying, you might say. Lying is seen by millions of our fellow Americans as a purely transactional act, part of the price of doing business, if you like. For the first time in American history a losing candidate (of one party) now routinely doesn’t accept the results, charging voter fraud as the cause of their defeat. Glenn Youngkin won a close governors race in Virginia by about 70,000 votes. His Democratic opponent, seeing the margin was insurmountable, conceded Youngkin’s victory. The same margin decided the race in New Jersey, but the Republican refused to concede for days, making noises about likely fraud, until he blinked and finally conceded defeat.
This refusal to bow to so-called reality, of course, comes directly from the man currently in charge of the Grand Old Party. Trumplethinskin  announced in the lead up to his reelection loss to Biden that the only way Biden could beat him would be by cheating. The subtext was that urban voters, in areas where coloreds and whites interact daily on a level perhaps not seen in rural areas, where the real American Volk live, are inherently corrupt, hate America and the good old days, are too “woke” to see how wrong they are about everything. So if you give “urban” votes the same weight as rural votes you will never have true democracy in this country and the place will go openly Communist and white people will be put on trial for things like innocently killing Black people because they have a reasonable and legitimate fear of them.
People like me keep pointing at the evidence that there has never been widespread voter fraud in this country. Partisans like the creepy Hans von Spakovsky have made a career of hunting down voter fraud, fancying themselves warriors for justice, modern day Simon Weisenthals. Spakovsky has found virtually no fraud, ever, and you can see his paltry findings in the database of voter fraud he has been compiling, going back decades. You can point at all the evidence you like, but if the lie has more appeal to you, confirms your worldview, then the so-called lack of evidence is just more evidence of fraud.
When evaluating a claim and deciding whether it is true, it often feels better, and is much easier, to go by your gut than by sifting through conflicting evidence and weighing both sides like some kind of scientist. This gut feeling of truth is the essence of the “confirmation bias” we tend to believe anything that confirms what we already believe. It does not negate the importance of facts and reasoned argument based on fact, of course, but at the same time it often clearly does. Try parsing that one.
Here is the recent statement of facts Judge Tanya Chutkan wrote to put her decision about the former president’s right to hide anything that could irreparably harm him (say by subjecting him to criminal liability for planning and inciting a violent attack to stop the certification of votes and overturn the election).
While not material to the outcome, some factual background on the events leading up to and including January 6, 2021, offers context for the legal dispute here. In the months preceding the 2020 presidential election, Plaintiff declared that the only way he could lose would be if the election were “rigged.” See, e.g., Donald J. Trump, Speech at Republican National Convention Nomination Vote at 22:08 (Aug. 24, 2020) in C-SPAN, https://www.c-span.org/video/?475000- 103/president-trump-speaks-2020-republican-national-convention-vote.
In the months after losing the election, he repeatedly claimed that the election was rigged, stolen, and fraudulent. For example, in a December 2 speech, he alleged “tremendous voter fraud and irregularities” resulting from a late-night “massive dump” of votes. See President Donald J. Trump, Statement on 2020 Election Results at 0:39, 7:26 (Dec. 2, 2020) in C-SPAN, https://www.cspan.org/video/?506975-1/president-trump-statement-2020-election-results. He also claimed that certain votes were “counted in foreign countries,” that “millions of votes were cast illegally in the swing states alone,” and that it was “statistically impossible” he lost. Id. at 12:00, 14:22, 19:00.
After losing the election, Plaintiff and his supporters filed a plethora of unsuccessful lawsuits seeking to overturn the results. See, e.g., Current Litigation, AMERICAN BAR ASSOCIATION: STANDING COMMITTEE ON ELECTION LAW, Apr. 30, 2021, https://www.americanbar.org/groups/public_interest/election_law/litigation/.
The United States Supreme Court also denied numerous emergency applications aimed at overturning the results. Id. In response, Plaintiff tweeted that the Court was “totally incompetent and weak on the massive Election Fraud that took place in the 2020 Presidential Election.” Donald J. Trump (@realDonaldTrump), TWITTER (Dec. 26, 2020, 1:51 PM), https://www.presidency.ucsb.edu /documents/tweets-december-26-2020.
He continued his claim that “We won the Presidential Election, by a lot,” and implored Republicans to “FIGHT FOR IT. Don’t let them take it away.” Id. (Dec. 18, 2020, 2:14 PM), https://www.presidency.ucsb.edu/documents/tweets-december-18- 2020. A Joint Session of Congress was scheduled to convene on January 6, 2021, to count the electoral votes of the 2020 presidential election and to officially announce the elected President, as required by the Twelfth Amendment to the U.S. Constitution and the Electoral Count Act.
In the days leading up to January 6, Plaintiff began promoting a protest rally to take place hours before the Joint Session convened. On December 19, 2020, he tweeted “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!” Donald J. Trump (@realDonaldTrump), TWITTER (December 19, 2020, 6:42am), https://www.presidency.ucsb.edu/documents/tweets-december-19-2020.
During a rally, he warned that “Democrats are trying to steal the White House . . . you can’t let that happen. You can’t let it happen,” and promised that “[w]e’re going to fight like hell, I’ll tell you right now.” See Donald J. Trump, Remarks at Georgia U.S. Senate Campaign Event at 8:40, 14:19 (Jan. 4, 2021) in Campaign 2020, C-SPAN, https://www.c-span.org/video/?507634-1/president-trumpcampaigns-republican-senate-candidates-georgia.
On January 6, Plaintiff spoke at the rally at the Ellipse, during which he repeated claims, rejected by numerous courts, that the election was “rigged” and “stolen”; urged then Vice President Pence, who was preparing to convene Congress to tally the electoral votes, “to do the right thing” by rejecting certain states’ electors and declining to certify the election for President Joseph R. Biden; and told protesters to “walk down to the Capitol” to “give them the kind of pride and boldness that they need to take back our country,” “we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,” and “you’ll never take back our country with weakness.” See Donald J. Trump, Rally on Electoral College Vote Certification at 3:33:04, 3:33:36, 3:37:20, 3:47:02, 3:47:22, 4:42:26, 4:41:27 (Jan. 6, 2021) in Campaign 2020, C-SPAN, https://www.c-span.org/video/?507744-1/rally-electoral-collegevote-certification.
Shortly thereafter, the crowds surged from the rally, marched along Constitution Avenue, and commenced their siege of the Capitol.source
The only way to refute this well-documented statement of fact is to angrily denounce this federal judge as a partisan fucking liar, an obvious BLM terrorist-sympathizer and Trump hater who was not even born in this country! That argument will fly with about 39% of the population, those who believe it’s “common sense” to administer Texas justice to a traitor like fucking Mike Pence.
Here’s Martha Kavanaugh, watching them attempt to crucify her innocent and totally nonpartisan son:
 tip of the yarmulke to Stephanie Miller