On Dec. 14, 2020, the day of the electoral college vote, Republican electors convened in the capitals of five states that Joe Biden had won. They declared themselves “duly elected and qualified” and sent signed certificates to Washington purporting to affirm Donald Trump as the actual victor.
Understanding the origins of the rival slates has now become a focus of the House committee investigating the Jan. 6 insurrection, according to people familiar with the panel’s activities. Two Democratic attorneys general have asked federal prosecutors in recent days to investigate whether crimes were committed in assembling or submitting the Trump slates.
The Trump electors gathered in plain sight, assisted by campaign officials and Trump attorney Rudolph W. Giuliani, who said publicly that the rival slates were necessary and appropriate. Internally, Giuliani oversaw the effort, according to former campaign officials and party leaders who, like some others interviewed for this report, spoke on the condition of anonymity to discuss private conversations. One of the people familiar with the plan said Giuliani was assisted at times by an anchor from the right-wing network One America News.
The extent and particulars of the behind-the-scenes coordination — and the refusal by some Trump electors to go along with the plan — have not been previously reported. The campaign scrambled to help electors gain access to Capitol buildings, as is required in some states, and to distribute draft language for the certificates that would later be submitted to Congress, according to the former campaign officials and party leaders.
The campaign also worked to find replacements for the electors who were unable to participate, or unwilling. Among the unwilling were a state GOP chairman, a lawmaker who was one of the first in Congress to endorse Trump and a son of legendary Republican senator Johnny Isakson, The Washington Post found.
When the electoral college votes were cast, Trump’s allies claimed that sending rival slates to Washington echoed a move by Democrats in a close race in Hawaii six decades earlier. They said they were merely locking in electors to ensure they would be available if courts determined that Trump had won any of those states. Republican electors in two additional states, Pennsylvania and New Mexico, sent certificates, but those documents explicitly stated that they were to be considered only if the election results were upended.
In ways that were not publicly known until months later, however, the rival slates were leveraged as evidence in last-ditch efforts to give Vice President Mike Pence the ability to reject Biden’s victory when he presided over the electoral vote count in the U.S. Capitol on Jan. 6, 2021.
Before Election Day, presidential candidates or their parties nominate a slate of potential electors in each state where they appear on the ballot. After the popular vote is certified, the governor in each state is required under federal law to certify the winning candidate’s electors. The electors then meet in mid-December and send signed certificates recording their votes to, among other places, the national archivist and the president of the U.S. Senate. The votes are tallied on Jan. 6.
In a subpoena Tuesday to lawyer Jenna Ellis, who worked closely with Giuliani, the House committee wrote that she “prepared and circulated two memos purporting to analyze the constitutional authority for the Vice President to reject or delay counting electoral votes from states that had submitted alternate slates of electors.”
Michigan Attorney General Dana Nessel (D), who referred the matter to federal prosecutors, last week said that submitting the electoral certificates to historical archives and government officials turned what might have been a political event into a “an open-and-shut case of forgery of a public record.”
“This is not political theater. It’s not protected speech,” Nessel said in an interview. “It’s an attack on the very fabric of our system of government. And so it deserves to have federal prosecutorial and investigative scrutiny.”
A spokesman for the Michigan Republican Party, Gustavo Portela, accused Nessel of “playing political games.”
New Mexico Attorney General Hector Balderas said this week that he, too, had referred the matter to federal prosecutors, while his counterpart in Wisconsin — fellow Democrat Josh Kaul — said he believed the federal government should investigate any unlawful act that furthered “seditious conspiracy.”
Giuliani did not respond to messages from The Post seeking comment. A spokesman for Trump also did not respond.
Ellis declined to comment on her role in the Trump elector plan. She did not respond to a request for comment about the subpoena.
Trump campaign adviser Boris Epshteyn told The Post he took part in conference calls with the campaign’s legal team, including Giuliani, to discuss elector participation.
“This was in total congruence with the overall effort to send it back to the states,” Epshteyn said last week. “With the rampant fraud across the country, the interplay of the 12th Amendment and the Electoral Count Act made it important to have alternate slates of electors be available when a challenge to states’ slate of electors would be successful.”
Multiple courts, recounts and audits have found no evidence of widespread fraud in the 2020 presidential election.
Epshteyn was subpoenaed Tuesday by the House committee, as was Giuliani.
Talk of rival electors dated to the days immediately after the election, according to communications released last month by the House committee. Trump’s chief of staff, Mark Meadows, received text messages proposing a strategy in which Republican legislatures would appoint alternate slates of Trump electors. One text called the plan “highly controversial.”
“I love it,” Meadows responded, according to the committee, which did not release the names of the people who sent the messages. The committee said Meadows responded to a subsequent message about potentially appointing alternate electors by saying, “We have a team on it.”
In late December, Jeffrey Clark, a Justice Department official sympathetic to Trump, drafted a letter urging Georgia officials to call a special session of the legislature to reconsider Biden’s win. Though Gov. Brian Kemp (R) had certified Biden’s electors, Clark falsely implied that the Justice Department believed the Trump electors were valid rivals to those put forward by Georgia and other states for Biden. Clark’s bosses rejected the proposal to send such a letter, which surfaced publicly after Trump left office. Clark has said his communications were lawful.
Around the same time, Trump attorney John Eastman claimed in memos laying out options for Pence that the rival electoral slates allowed him to declare on Jan. 6 that no winner could be determined in those seven states.
Pence’s chief of staff, Marc Short, told The Post that Giuliani and his associates forwarded letters from individual state legislators objecting to Biden’s electors and arguing the Trump electors should be recognized instead. Short and Pence’s legal team reviewed the unsolicited letters but were not persuaded there was any legal basis to accept Trump electors who had not been certified by their states, Short said.
Robert F. Spindell Jr., a member of the Wisconsin Election Commission, said he and fellow Trump electors did what was right to preserve the president’s legal avenues should courts rule in his favor. Spindell said he viewed signing the certificate as a “ministerial act” and not as a stealth tactic.
“It was pretty straightforward. Show up, sign the stuff,” he said. “There was no attempt to be secretive about it.”
'Joe Biden won'
The Post attempted to interview the 15 Trump electors in those key states who were replaced ahead of the electoral vote. Several of them said they were recovering from covid-19 at the time or had other obligations. All the names are listed in documents the watchdog group American Oversight obtained through a public records request to the National Archives and Records Administration.
Among the electors who declined to participate was Pennsylvania GOP Chairman Lawrence Tabas, an election-law expert who had defended Trump in 2016 against a recount push by Green Party candidate Jill Stein.
“While Lawrence was originally selected to be an elector by the Trump campaign, he did not serve as an elector because Joe Biden won the election and it was Biden’s electors that were certified,” Vonne Andring, a senior adviser to the state party, said in a statement to The Post.
Andring also said that it was the presidential campaign that drove the process. The party, she said, “did not select electors, nor did it coordinate elector events and communications.”
In Georgia, John Isakson, an original Trump elector, told The Post that he bowed out because he did not want to attend what he had perceived as a “political rally.” Isakson has spent his career in real estate and has never served in public office or as a party official. His father, who was elected to the Senate three times, was hailed after his death in December as a bipartisan statesman, known for his friendship with the late John Lewis, the Democratic congressman and voting rights icon.
“It seemed like political gamesmanship, and that’s not something I would have participated in,” Isakson said in an interview last week. “We have a process for certifying the election. We have a process for challenging the election. The challenges failed, so I wouldn’t have participated in something that was going against all of that.”
By the time of the electoral college vote, efforts by Trump and his supporters to overturn the results had been rejected by at least 86 judges, including nine Supreme Court justices.
Former congressman Tom Marino of Pennsylvania, another original Trump elector, had been among the first members of Congress to back Trump’s presidential bid in 2016. But he, too, balked at casting an electoral vote for Trump in a state where Biden was the certified winner. Earlier in December, then-Attorney General William P. Barr said he had not seen widespread fraud that could have upended the election.
“I was disappointed in the election,” Marino said in an interview, “but as a former prosecutor, when the attorney general says he’s not finding anything here, that’s good enough for me.”
Marino, who retired in 2019, added: “I’m a constitutionalist and have always been a constitutionalist. … I believe in the rule of law and whatever the courts determined. I’m not going to jump on a bandwagon to say that I know better than the courts.”
When the electoral college voted, it was no secret that GOP electors were gathering in some states won by Biden. In most of the seven key states, Republican leaders issued news releases trumpeting the fact that their electors had cast votes. Arizona party officials posted a video of their electors’ signing ceremony on Twitter. The Pennsylvania GOP issued a news release explaining that it took part “at the request of the Trump campaign.”
“As we speak, today, an alternate slate of electors in the contested states is going to vote and we’re going to send those results up to Congress,” Trump aide Stephen Miller said on “Fox & Friends” that morning.
He claimed that doing so would keep open legal avenues to certify Trump as the victor. “If we win these cases in the courts, then we can direct that the alternate slate of electors can be certified,” Miller said.
Former chief White House strategist Stephen K. Bannon quizzed Giuliani that same day on his podcast, referring to the effort as “something Rudy and the team have worked on.” Bannon asked: “Why are you sending electors? … Why is the Trump campaign sending its own slate of electors to these state capitals?”
Giuliani said that based on his team’s legal research and “advice we‘ve gotten from a number of professors,” they decided to act “out of an excess of caution” to preserve the chance for the votes to be counted for Trump if any of the campaign’s remaining challenges succeeded.
Epshteyn, speaking on Bannon’s podcast that day, claimed that “President Trump is going to end up prevailing either through the legal front or the legislative front,” an apparent reference to the campaign’s efforts to press Republican legislatures in states such as Georgia and Arizona to claw back their states’ electoral votes for Biden and hand them instead to Trump.
Behind the scenes, in the days leading up to the electoral college vote, Giuliani participated in at least one conference call with campaign staffers and Republican activists that included detailed discussions about preparing the rival electoral slates, according to former campaign officials. Christina Bobb, an anchor on One America News, the far-right network that promoted Trump’s debunked allegations of a rigged election, was also on at least one call about preparing the rival slates, according to one of the former campaign officials.
Bobb, a lawyer, had started volunteering to help Trump’s personal attorneys in November, shortly after the president put Giuliani in charge of challenging the election results in court, Giuliani said over the summer in a deposition in a lawsuit brought by a former employee of a voting-machine company. Bobb has acknowledged that she assisted the campaign’s legal team at this time. She declined to comment on the elector strategy.
At one point, the leadership of the Republican National Committee was asked whether the party would help locate additional electors to replace Republicans who had declined to participate, according to a person familiar with the discussion. The RNC did not help in the effort to find new electors, the person said.
Republican officials in several of the seven states said at the time that they were adopting a strategy used by Democrats after the 1960 presidential election in Hawaii. That race, however, was much closer than any state was in 2020, and it was ultimately decided by a margin of fewer than 200 votes.
On Dec. 19, the day the electoral college voted that year, Republican nominee Richard M. Nixon had been declared the winner in Hawaii, pending a recount. GOP and Democratic electors met and voted, each declaring themselves the state’s “duly and legally appointed electors.”
Days later, after the recount concluded, a state court found that Nixon had lost to Democratic nominee John F. Kennedy. On Jan. 4, 1961, Hawaii’s governor sent a new certificate to Washington replacing the Republican electors with Democrats.
When Congress convened on Jan. 6, Nixon — then the vice president and thus the presiding officer — suggested that the Democratic electors’ votes from Hawaii be counted, putting an end to the controversy. At the time, Nixon said he did so “without the intent of establishing a precedent.”
Kennedy won the presidency easily, and Hawaii’s three electoral votes would not have changed the outcome in any case.
Edward Foley, an Ohio State University law professor who has studied disputed elections, said that Trump’s 2020 effort stands apart because, unlike the Democrats in Hawaii in 1960, he had no plausible basis for challenging Biden’s clear and legitimate win.
“You shouldn’t be going down this road in 2020 at all, because the predicate of it is the ‘big lie,’ ” Foley told The Post, making reference to Trump’s repeated claim that the election was stolen. “There was no responsible basis for any of these people in any of these states” to claim that they were the duly elected electors, he said.
Foley is among legal scholars who have advocated for changing the 1887 law that governs the counting of electoral college votes so there is no ambiguity about what Congress should do if confronted with dueling slates. Senate Minority Leader Mitch McConnell (R-Ky.) has signaled that he is open to the debate.
Tom Hamburger and Alice Crites contributed to this report.