Was “Stop the Count” a Criminal Conspiracy? It Sure Seems Like It

An image from a supporters of Donald Trump protesting in Phoenix and Detroit the day after the 2020 Election, courtesy of The Recount/Twitter

On Election Night, November 3, 2020, I took note of something interesting. Most of my friends on social media were freaking out because the polls were closed and Biden was still trailing in places like Michigan, Wisconsin and Pennsylvania. They were despondent, and it seemed MAGA was already celebrating.

But I wasn’t worried. I’d already done the back-of-napkin math, and there was no way Biden was going to lose all those states. In fact, I believed he was very likely to win all of them. I wrote this down on Facebook, in a post that went viral because few folks were looking at the mail-in ballots as obsessively as I had:

In PA, only 670K absentee ballots have been counted. There were 2.5mil returned. The absentee ballots counted so far broke for Biden 71.7% and 21.3% for Trump. If this were to hold, among the 1.83mil ballots still uncounted, Biden would gain 922K votes. Biden currently trail[s] Trump by 700K votes.

This is far from over. It’s just beginning.

In the end, all three of those swing states, as well as Arizona and Nevada, broke for Biden. It was closer than anyone wanted, but I knew that we’d win in at least Michigan and Pennsylvania. (Side note: This wound up being the post, with a characteristic typo, that launched The Status Kuo, first on Facebook and then on Substack, as I realized there was a big information gap I could help fill due to the misleading drumbeat of the cable news media and the dangerous propaganda of the Trump campaign.)

It always bothered me that the press and so much of the public had fallen for what’s become known as the “red mirage.” For months Trump had warned his voters against using mail-in ballots, falsely claiming they were easily tampered with. As a result, his voters showed up mostly on Election Day while Democrats, still cautious about voting in person during a pandemic, utilized mail-in ballots in far, far greater numbers. 

That set up a situation where on Election Night it would appear that Trump was leading because his voters’ in-person ballots were counted first, but that lead would shrink rapidly once blue voters’ mail-in ballots started to be counted. 

Thus, the “red mirage.”

What wasn’t known at the time is that Trump had planned all along to take advantage of the red mirage and claim election victory prematurely, throwing the whole election into doubt while his campaign worked to stop the counting of those mail-in ballots. And when you think about it, that is actual election fraud: Putting out messaging you know is false in order to cause chaos, then planning to and actually claiming election victory while illegally trying to get the vote count to stop.

As Just Security discussed at length in a piece out yesterday, from which I am borrowing heavily for this analysis, this scenario ties in closely with the “surprise” charge listed in the target letter to Trump: a Section 241 violation for conspiracy against rights—in this case, the rights of voters to have their mail-in ballots counted. 

Earlier this month, I discussed how in modern U.S. history, Section 241 has been used successfully to bring charges for election fraud and vote tampering. I found the tie-in to the “Stop the Count” and the leveraging of the red mirage outlined by Just Security quite interesting.

So let’s take a closer look at what sure sounds like a conspiracy to deprive voters of their votes. It isn’t clear that Special Counsel Jack Smith is planning to move in this direction, but there certainly is strong reason to suspect he might. After all, there is good evidence now that the fraudulent scheme to claim the election was stolen began with a premeditated plan to discredit mail-in ballots, create the red mirage, and then falsely claim victory and sow electoral chaos that Trump could then exploit.

Steve Bannon and Roger Stone spilled the plan…on tape

As is so typical in Trumpworld, the criming was in plain sight and caught on audiotape. According to reporting last July by Mother Jones, which obtained a copy of a recording of a meeting led by Senior Trump advisor Steve Bannon,

On the evening of October 31, 2020, Steve Bannon told a group of associates that President Donald Trump had a plan to declare victory on election night—even if he was losing. Trump knew that the slow counting of Democratic-leaning mail-in ballots meant the returns would show early leads for him in key states. His “strategy” was to use this fact to assert that he had won, while claiming that the inevitable shifts in vote totals toward Joe Biden must be the result of fraud, Bannon explained.

That is of course precisely the red mirage I described above, and also exactly how things unfolded. 

Side note: The audio was recorded during a meeting between Bannon and a group of associates of his Chinese billionaire ally, Guo Wengui. Guo has since been arrested by federal authorities over a massive, $1 billion fraudulent scheme.

Not to be outdone, Trump ally and dirty political trickster Roger Stone also was caught on tape two days before the election saying this about the election:

I really do suspect it’ll still be up in the air. When that happens, the key thing to do is to claim victory. Possession is nine tenths of the law. “No, we won. Fuck you, Sorry. Over. We won. You’re wrong. Fuck you.”

The January 6 Committee played that video as part of its hearings. We have this on tape because there was a documentary film crew following Stone around and recording much of what he was saying and doing. They just can’t help themselves.

The conspiracy to stop the count

Prior to Election Night, Trump had been getting advice on how to declare victory no matter what. Judicial Watch’s Tom Fitton—the same brilliant, non-legal mind who told him he should fight the Justice Department over their efforts to regain classified documents Trump had taken with him to Mar-a-Lago—was key to this.

Fitton had drafted up a statement for Trump on October 31, which was sent to Trump along with the words “as you requested.” And wow, it’s pretty damning:

The voters have spoken. The ballots counted by the Election Day deadline show the American people have bestowed on me the great honor of reelection to President of the United States. Federal law establishes November 3 as Election Day – the deadline by which voters in states across the country must choose a president. Some partisans will try to overturn today’s lawful election results by shamelessly counting ballots that arrive after Election Day for days and weeks. This is lawless, invites massive voter fraud, undermines our democracy, and could dishonestly cancel the votes of tens of millions of Americans who ensured their votes would arrive to be counted on Election Day. I am prepared to go to court to make sure this election is not stolen and am directing the Justice Department to defend federal election law accordingly. We had an election today – and I won. Some believe Election Day deadlines don’t matter and would attack democracy through fraud and judicial activism. Counting ballots that arrive after Election Day is unfair and shows contempt for the will of the people. I will defend, to the full extent of the law, free and fair elections and our constitutional republic from any electoral coup. Thank you and God bless America.

Records show Fitton discussed this draft with Trump on Election Day. As Just Security noted, “Fitton reforwarded to President Trump the above draft statement. Fitton told the president’s executive assistant Molly Michael that Fitton ‘just talked to him about the draft.’ Note: there is reporting that Michael is now cooperating with Smith’s investigators.”

The Trump Campaign was aware, too

Trump’s own campaign staff were well aware of the red mirage. His campaign manager Bill Stepien affirmatively advised Trump of the likely phenomenon, and then-attorney general Bill Barr testified that the red mirage was predicted: “everyone understood for weeks that that was going to be what happened on election night.” 

The January 6 Committee’s final report, by the way, concurs with the notion that the whole thing was planned out: “President Trump’s decision to declare victory falsely on election night and, unlawfully, to call for the vote counting to stop, was not a spontaneous decision. It was premeditated.” 

Trump’s public calls to stop the count

On Election Night, and against the advice of all of his White House and campaign advisors (except Rudy Giuliani), Trump went before the cameras around 2:30 a.m. while votes were still being counted, and he claimed this:

We were getting ready to win this election. Frankly, we did win this election. So our goal now is to ensure the integrity, for the good of this nation. This is a very big moment. This is a major fraud on our nation. We want the law to be used in a proper manner, so we’ll be going to the U.S. Supreme Court. We want all voting to stop. We don’t want them to find any ballots at 4 o’clock in the morning and add them to the list, okay?

To drive the point home, he also tweeted out to his tens of millions of followers, these three messages:

9:12 AM: “STOP THE COUNT!”

At 10:09 AM: “ANY VOTE THAT CAME IN AFTER ELECTION DAY WILL NOT BE COUNTED!”

At 10:45 AM, retweeting: “STOP THE COUNT!”

Then all hell broke loose.

The fallout from calls to stop the count

We all remember the scenes: crowds of MAGA supporters angrily descending on vote count centers in big Democratic counties in the swing states like Maricopa County, Arizona and in Atlanta, Georgia. They had been whipped into a frenzy by the idea of fraudulent mail-in ballots still being counted and “vote dumps” arriving late on Election Night—even though these were the predictable result of large, Democratic strongholds tallying and submitting their returns. The signs and chants of the protestors were all about “stop the count.”

From there, the Trump campaign got to work on state level officials, urging them to throw out mail-in ballots, to stop the vote count in places like Maricopa County, and to “find” more ballots in Georgia or otherwise toss out perfectly valid ones—something Trump ally Sen. Lindsey Graham apparently suggested Georgia Secretary of State Brad Raffensperger ought to do. (Sen. Graham denies he ever asked for this, but whoops, there were two other witnesses on that call.)

Where does this leave us?

There is reason to believe Jack Smith is thinking along the above lines and is considering a broad civil rights charge based on false claims and efforts to stop the vote count. 

For example, Smith has been looking into a February 2020 meeting where Trump met with elections officials, including the Department of Homeland Security’s then-head of cyber security, Chris Krebs. Krebs conveyed to Trump at the time that U.S. elections were secure, and Trump actually praised all the work his own officials had done to make paper ballots and audits more secure. 

But just two months after that meeting, Trump did a 180. He began attacking the very election systems he had only weeks ago learned about and praised.

What happened to change his mind? This is still part of the puzzle, and Smith likely knows more than we do. What all of us remember is that between February and April 2020, the pandemic had begun, and it became clear that most Democrats would be electing to vote by mail. That is when the scheme to take advantage of the red mirage may have been hatched.

The Krebs connection

On November 12, 2020, nine days after the election, Krebs’s agency at the DHS released a statement calling the election “the most secure in American history.” This was based on the exact security programs Trump learned about and praised after the February 2020 briefing. 

Furious at the statement, Trump then fired Krebs. 

What Krebs told Trump about the security of our elections systems in that February 2020 meeting, and what Trump said and did in response at the time, is likely key to Trump’s knowledge and state of mind when he later began to spread false claims of election fraud. 

Per reporting by CNN, the Special Counsel’s office has interviewed Krebs in recent months, indicating that Jack Smith is indeed paying attention to the larger conspiracy surrounding and the planning of the Big Lie about a stolen election. It will be interesting to see whether the grand jury indicts Trump under Section 241 for conspiracy against voting rights as a direct result.