On Dec. 14, 2020, at least 59 Republicans signed legal documents falsely claiming to be “duly” chosen electors for Donald Trump in the electoral college, despite Trump having lost their states in the 2020 election. And one key question the Jan. 6 committee will dive into when its public hearings begin Thursday is whether this was part of a criminal effort.
The story is at once central to what the committee has been investigating but has also developed somewhat belatedly around the periphery of its probe into the pro-Trump riots at the U.S. Capitol. That seems to be in part because of the complexity and lack of precedent for such a situation.
Timing aside, the issue of “fake electors” is still important — if not necessarily for the legal liability of the “fake electors,” then for the much-broader alleged conspiracy.
Let’s recap what we know about fake electors, along with what it means.
The basics: Republicans in seven states that Trump had lost to Joe Biden submitted alternate slates of electors. The seven states were Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin. The idea was to have the alternate slates in place to compete with the official slates certified by those states, so that Congress could accept them instead of the official slates. Without those alternate slates, any effort to overturn the election on Jan. 6, 2021, was even more doomed to failure.
The effort was billed by its participants as a contingency. Electors must sign certificates on Dec. 14 to be deemed valid, and Republicans behind the effort said they simply wanted them in place in case the election results were overturned by the courts. In a couple of states — New Mexico and Pennsylvania — this contingency was expressly written into the document. In the others, it wasn’t — a key fact to which we’ll come back.
From the standpoint of democracy, this is highly objectionable. There was absolutely no evidence on Dec. 14 to truly call the election results into question. And despite no evidence emerging come Jan. 6, these alternate slates of electors figured prominently in an extraordinary and increasingly desperate plot to overturn an American election. Those close to Trump tried to get Vice President Mike Pence to leverage the nonexistent uncertainty about the election to suggest that the official slates were invalid or suspect, at which point the alternate Trump slates could be selected.
Which brings us to the legal questions. The first is whether those who signed up to be fake electors broke the law. The second is whether their efforts, regardless of the electors’ legal liability, reinforced a broader conspiracy.
Let’s start with the first one.
The latest news: The Washington Post on Monday reported that a Trump campaign official instructed the fake electors that were gathering in Georgia to operate in “complete secrecy.” Robert Sinners told them to tell security guards at the Georgia Capitol — where they were legally required to meet — that they were there to meet with state senators.
“Please, at no point should you mention anything to do with Presidential Electors or speak to the media,” Sinners wrote in an email the day before, Dec. 13. He now says in a statement that he was operating at the direction of senior campaign officials and the chairman of the Georgia GOP, David Shafer.
Plenty of critics wagered after the report Monday that this reinforced that those involved were conscious that what they were doing was problematic or even illegal.
It’s too early to say that. It’s not the first time someone involved has emphasized secrecy. But there are alternate explanations, including security concerns — as one fake elector from Wisconsin cited to CNN — and that Georgia Capitol had restricted access at the time. Fake electors were denied access to New Mexico’s Roundhouse and to the state Capitol in Michigan, for instance. There’s also the fact that many involved in the process, in multiple states, including Georgia, actually promoted their efforts. Shafer himself invited cameras to document it and spoke publicly shortly afterward. (Shafer has denied saying he told others to emphasize secrecy.)
Even if they were proud of it, of course, the effort or some aspect of it could still be criminal. There’s a potentially compelling case to be made that at least some of these documents were fraudulent and could be charged as forgery or even election fraud. That stems from the fact that the electors in five of the states — accounting for the 59 electors mentioned at the top — falsely claimed that they were the “duly elected” electors on a legal document. (Michigan’s fake Trump electors also falsely claimed they had cast their votes in the state capitol.) Philip Rotner has argued in the Bulwark that those were clearly crimes.
Another 25 electors in New Mexico and Pennsylvania, by contrast, merely stated that they would be duly elected if it were determined legally that Trump won the popular vote in their state. One could certainly read those contingencies to suggest they worried about the legal ramifications of claiming “duly elected” status if they didn’t invoke them. There’s also the fact that several people who were invited to be fake electors declined to take part. (Perhaps they simply didn’t agree with the effort or think it had a chance of success, but it reinforces how far-fetched all of this was, at the least.)
Democrats have leaned into charging the fake electors criminally. Nevada Gov. Steve Sisolak’s (D) office has said “that is a crime, or ought to be a crime.” Michigan Attorney General Dana Nessel (D) has also said there were crimes, referring the matter to the Justice Department while reserving her own right to charge them. New Mexico Attorney General Hector Balderas (D) has also referred it to the feds, and local prosecutors in both Georgia and Wisconsin have scrutinized the matter.
A big hurdle, according to legal experts, would be in proving that those involved intended to claim they were the “duly elected” electors. That’s distinct from, say, filing a document that would turn out to be necessary if the courts were somehow to have ultimately overturned a given state’s election results.
Which brings us to the potentially larger significance of this.
It might be difficult to prove the intent of the fake electors themselves and to prosecute them. But what about those who guided the process and pushed for the alternate slates? Secrecy aside, The Post’s report late Monday adds to the record of Trump allies and aides such as Rudy Giuliani being involved in this process. And we know that some of the people around Trump regarded these slates of fake electors as having utility not just if the courts overturned the results, but even absent that — if Pence and Republicans in Congress were to attempt to do it themselves Jan. 6.
That’s a process that, in the estimation of Trump lawyer John Eastman, involved disregarding a federal law, the Electoral Count Act (which he viewed as unconstitutional). A federal judge ruled earlier this year that Eastman’s and Trump’s actions on this front were likely illegal. Eastman himself urged Georgia lawmakers, as early as Dec. 3, 2020, to “adopt a slate of electors yourself.” His first memo laying out the extraordinary plot would come in late December.
Getting to the bottom of how much these alternate slates of electors were coordinated by the Trump campaign, and what direction they were given and why, would seem to be the committee’s real goal here. Proving the fake electors themselves committed crimes could certainly further that effort — and several electors and others involved have cooperated with authorities looking into these matters — but it seems worthwhile to focus on the bigger picture when the Jan. 6 committee chews this over in the coming days and weeks.