Since Joe Biden was declared the winner of the presidential election on Nov. 7, 2020, the far-right has been in a state of denial. Right-wing ideologues have pushed laughably false conspiracies about voter fraud and endorsed ludicrous theories about how the election might be overturned.
At Infowars, an online network which has promoted election conspiracies since before the election, Tom Pappert boosted the fraudulent “audit” of Maricopa County’s election results.
Pappert, who founded the hyperpartisan junk news website National File and hosts a show of the same name on Infowars, told viewers that the “audit” revealed “bombshell after bombshell.” (It hasn’t.) He also said he disagreed with Arizona Senate President Karen Fann on whether or not the 2020 election can be overturned.
Although Fann ordered the “audit” in the first place, she acknowledged in a leaked email to a constituent that “Biden won.”
“However, Senate President there in Arizona — Karen Fann — she has said — and to her credit this is not a new thing, she’s said this for some time — that this is not to look in the rearview mirror. This is not to fix 2020. This is to move forward into 2022 and into 2024,” Pappert said.
Pappert said he understood that she didn’t want to be viewed as a “wingnut.” However, he also asked whether we’re “really gonna give this guy, Joe … four years without openly, politically, and legally questioning whether or not he has the right to be president.”
Pointing vaguely to “everything we’re seeing in Arizona and Georgia,” Pappert said there is reason to question the results. He added that “If [state senator Doug] Mastriano conducts a real audit up there in Pennsylvania, well, then Joe Biden — to my recollection — no longer has the Electoral College necessary to be declared the winner.”
He then made the bold (and incorrect) assertion that “multiple constitutional lawyers say that you can absolutely decertify these states” and “declare the 2020 election null and void.” Pappert only named one lawyer who advanced this preposterous argument: John C. Eastman.
Eastman clerked for Supreme Court Justice Clarence Thomas and is the former dean of Chapman University School of Law.
You may also remember him as the Chairman of the Board for the National Organization for Marriage — the anti-gay group that was formed in order to pass California’s ill-fated same-sex marriage ban. Or as the crank who wrote an unhinged op-ed questioning Vice President Kamala Harris’ citizenship.
During an appearance on Steve Bannon’s War Room show, Eastman appeared to claim that the 2020 election could be overturned, pointing to wholly inapplicable examples, like the results of the 1960 presidential election in Hawaii. Kennedy won the state by a razor-thin margin after a recount and the results were certified on Jan. 6.
Nothing Eastman cited — including U.S.C. Title 3, Sec. 2 — would mean that a presidential election which was certified six months ago could be overturned.
Eastman also threw into the mix the “backdrop of common law” which stands for the proposition that “when you have a fraud, the actions taken pursuant to the fraud are unraveled after the discovery of the fraud.” At that point Pappert piped up to say that “Fraud vitiates everything.”
Pappert did not disclose the quote’s origin, instead claiming that it is “one of the statements being thrown around by constitutional lawyers who are trying to get the word spread and trying to get this out there.” He said it’s “basically the idea that if this office was gained through fraud” then the result can be overturned.
The line “fraud vitiates everything” has been spreading online in pro-Trump circles since November 2020. And those who use it clearly believe the words — which stem from an 1878 Supreme Court case called U.S. v. Throckmorton — represent a surefire way to put Trump back in the White House:
A graphic even began circulating which suggested that Throckmorton stood for the principle that “perpetrating fraud undermines the entire endeavor, the whole contract, the complete judgment, the final result … or the election outcome, etc.”
It goes on to say that “if it was only the Michigan vote was [sic] stolen by Team Biden, their victory would still have been nullified since ‘fraud vitiates every thing.'” And it concludes that “President Trump is, therefore, the victor of the 2020 POTUS election by default…by law…and according to the U.S. Constitution”:
This is not how it works, of course. It’s not how any of this works. For starters, this case has nothing to do with elections and makes no mention of election fraud. In reality Throckmorton only dealt with a land grant which the plaintiff alleged had been received through fraudulent means.
In that case, W. A. Richardson obtained a land grant for a tract of property in California from a Mexican official identified as Micheltorena. The validity of the grant had been confirmed by a federal territorial board in 1853, and a federal district court affirmed the commissioners’ decree in 1856.
Twenty years later a U.S. attorney — Walter Van Dyke — discovered the fraud and sought to have the confirmation set aside and declared null and void.
The phrase “fraud vitiates” appears three times in the opinion — but there is no language that could be used to justify throwing out election results. In the first instance it is stated that: “There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments.”
It goes on to say that:
There is also no question that many rights originally founded in fraud become—by lapse of time, by the difficulty of proving the fraud, and by the protection which the law throws around rights once established by formal judicial proceedings in tribunals established by law, according to the methods of the law—no longer open to inquiry in the usual and ordinary methods.
The second instance is a quote from a treatise on res judicata — that is, the principle that “a cause of action may not be relitigated once it has been judged on the merits”:
On the other hand, the doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed. Mr. Wells, in his very useful work on Res Adjudicata, says, sect. 499: ‘Fraud vitiates every thing, and a judgment equally with a contract; that is, a judgment obtained directly by fraud, and not merely a judgment founded on a fraudulent instrument; for, in general, the court will not go again into the merits of an action for the purpose of detecting and annulling the fraud.’
The third instance is a quote from an 1854 case from Massachusetts that dealt with a divorce decree obtained through fraud.
Secondly, the ruling in Throckmorton does not even stand for the principle that Trump supporters claim it does. In spite of the language about how “fraud vitiates everything,” the Supreme Court ultimately denied relief in the case, and the district court decision affirming the validity of the land deal was allowed to stand.
So, contrary to what Tom Pappert told Infowars viewers, Throckmorton isn’t the silver bullet Trumpists believe it to be.
Pappert also claimed that they “have a real opportunity … to stack the House of Representatives with people who truly owe their allegiance to the American people. Who truly owe their allegiance to America First.” He suggested replacing House Speaker Kevin McCarthy with white nationalist-supporting congressman Paul Gosar.
“And if we manage to do that,” Pappert said, “I have very little doubt that Paul Gosar would be willing to do what is necessary to vitiate this fraud. I don’t even know if that’s the correct use of the verbs.”