DOJ Throws Weight Behind 2020 Conspiracy Theories

This is your TPM evening briefing.

Josh Kovensky

John Light

, and

Emine Yücel

Nov 10, 2025

WASHINGTON, DC - MAY 13: Interim U.S. attorney for the District of Columbia Ed Martin speaks during a press conference on May 13, 2025 in Washington, DC. (Photo by Craig Hudson For The Washington Post via Getty Images)

Here’s the thing: none of the fake elector arguments make sense if you understand that Trump lost the 2020 election.

It almost feels ridiculous to be litigating this more than five years after his defeat that year. But it’s necessary: this weekend, Trump pardoned the 2020 fake electors and several attorneys and campaign operatives who helped organize the scheme. The pardons are (mostly) symbolic, given that everyone on the list faced state prosecution for the plot. The president’s federal pardon power cannot reach them.

One revealing aspect of the pardons is the non-fake electors who made the list. Boris Epshteyn, who coordinated Trump’s defense in the criminal cases, is there. He’s strenuously denied having played a coordinating role in the fake electors plot; and, yet, there he is. Mark Meadows, Trump’s former chief of staff, received a preemptive pardon as well. Three attorneys who pleaded guilty to charges in the Georgia RICO prosecution — Ken Chesebro, Sidney Powell, and Jenna Ellis — also all appear on the list.

These are the higher-profile people who really concocted the plot, along with figures like John Eastman, Jim Troupis, and others. By January 6, the idea was to use the fake electoral certificates not so much to “preserve” the legal option for a Trump victory in the courts, as MAGA partisans (and now the DOJ’s pardon attorney) still argue, but to throw a wrench in the process: per memos I obtained, congressional Republicans were to feign confusion over whether the Biden electors or fake Trump electors from certain swing states were the real ones. That would delay the election certification and potentially buy enough time for some outside actor — Republican state legislatures, the Supreme Court, whoever — to step in and resolve the dispute for Trump.

In the plot, many of the fake electors themselves were conned in a way. Trump attorneys told them that they were merely preserving the legal option for the certificates to be used in the event that Trump prevailed in one of the dozens of failed lawsuits that he filed; instead, they were submitted to Congress as if Trump had won those states. It’s the difference between preparing a legal document in the event that you receive a loan and submitting that same document to a financial institution after having already been denied — one is contingency planning, the other is fraud.

All of this would only make a little bit of sense, though, if you continue to entertain the long-debunked conspiracy theories around the 2020 election. It’s the only way that there would have been any real reason for the electoral votes to be preserved, any cause for which it made sense to fight.

— Josh Kovensky

What’s Next With These Preemptive Pardons?

The question for me is whether these pardons will turn out to be something more than purely symbolic.

Here’s how that might go: a fake elector, prosecuted by state law enforcement, files a federal lawsuit asking to end their state prosecution by citing the pardon. The lawsuit would then cite Ed Martin’s claim, echoed by anti-voting rights activist Cleta Mitchell, that the selection and work of presidential electors are federal, and not state, functions.

Inconveniently for this theory, the Constitution empowers states to decide the “manner” in which electors are selected. But the idea would be to have a court sweep more of this function into federal control.

— Josh Kovensky

Obergefell Stays Intact, for Now

Remember Kim Davis?

She was the former Kentucky county clerk who caused a stir in summer 2015 by refusing to abide by the Supreme Court’s decision to issue marriage licenses to same-sex couples.

In case you were worried, she hasn’t broken her decade-long, uninterrupted losing streak. This morning, the Supreme Court declined to take up her challenge to overturn the Obergefell decision, which legalized same-sex marriage nationally.

— Josh Kovensky

Another Major Voting Rights Issue Reaches SCOTUS

The Supreme Court announced this morning that it would take up a case that touches on a perennial election dispute: Can states count mail-in ballots post-marked by Election Day but received by election officials after Election Day? The heart of the dispute is whether Election Day, in federal law, is meant to define the deadline by which voters must make their choice and mark it on a ballot, or the deadline by which election administrators must receive that ballot.

Republicans tend to push for ballots to be received by Election Day. But the partisan breakdown on these issues is not hard and fast. This case, Watson v. Republican National Committee, pits Mississippi, which has a grace period for ballots, against the RNC, which wants the state to do away with it. 30 states and Washington, D.C., have laws to count at least some ballots if they are received after Election Day, according to one recent analysis. That includes many states with Republican governance.

It’s also not entirely clear that requiring ballots to be in by Election Day would exclusively hurt Democrats; military voters and the elderly are among the constituencies that rely most heavily on mail-in voting. Still, the dispute over the issue is of a piece with Republicans’ war on vote-by-mail — a fight that has ramped up under Donald Trump — and on efforts to expand the franchise more generally.

The Supreme Court will decide this case during a term in which it also appears to be poised to further gut the Voting Rights Act. Both decisions could have significant impact on the 2026 midterms and 2028 general election.

— John Light

Trump Admin: Paying Snap Would Cause More Harm to Us Than Not Paying It Would to Hungry Americans

Last week, a federal judge ordered the Trump administration to pay the full SNAP benefits for November, after the Department of Agriculture failed to meet a previous deadline set by the judge to partially fund the program. The Justice Department almost immediately appealed the decision. That led to a flurry of appeals and orders that played out over the course of the weekend — showing, among other things, that the Trump administration was working overtime to not provide food to millions of Americans who rely on the program.

In a part of their appeal, the Trump Justice Department claimed that the judge’s order for the administration to make full November SNAP payments “threatens significant and irreparable harm to the government which outweighs any claimed injury to plaintiffs.” In other words, the administration said making SNAP payments would hurt the government more than not doing so would hurt the approximately 42 million low-income Americans who use the program, some of whom are growing desperate without the benefits.

On Monday, the appeals court refused to block an order for the government to pay SNAP in full. That led the Trump administration to, once again, turn to the Supreme Court to intervene.
In all reality, the legal back and forth will likely be moot soon now that eight Senate Democrats have voted with Republicans to start the process to end the ongoing government shutdown. But the sentiment behind the Trump administration’s objections to a federal judge’s order will be yet another example of the lengths to which this administration will go to assert its power.

— Emine Yücel