‘Fake’ elector plot raised concerns over legal peril, indictment shows

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Contingency plan, a crime or a ‘donkey show’? Doubts across seven states and within the Trump campaign.

By Amy Gardner, Patrick Marley,Yvonne Wingett Sanchez and Josh Dawsey

August 7, 2023

 

Six weeks after the 2020 election, senior campaign officials for Donald Trump called a group of loyal Pennsylvania Republicans to walk them through how they would convene two days later to cast the state electoral votes for the sitting president.

There was a problem: Joe Biden had already been declared the certified winner in Pennsylvania. So a number of the Republicans on the Dec. 12 conference call, who had volunteered to serve as Trump electors if he won the state, said they were uncomfortable portraying themselves as legitimate electors, according to a federal indictment filed against Trump last week accusing him of trying to overturn the 2020 election.

The campaign officials, led by lawyer Rudy Giuliani, told the electors they were meeting on a contingency basis only, the indictment says. After the call, campaign officials circulated language to add to the Pennsylvania elector certificates to be submitted to Washington asserting that the votes were intended to count only if Trump prevailed in litigation in the state. Campaign officials urged one another to keep this new language under wraps so that other states would not copy it.

“If it gets out we changed the language for PA it could snowball,” one campaign official wrote, according to the indictment. The allegation that campaign officials sought to prevent electors in other states from learning about the language used in Pennsylvania is a key new revelation in the four-count, 45-page federal indictment, which accuses Trump of a sprawling effort to “retain power” illegally with the help of six co-conspirators.

Trump’s defenders have long insisted that the elector scheme was legal because the slates met as mere placeholders, to be activated only if the campaign won in court. Prosecutors now charge that Trump, Giuliani and others intended all along to use the electors to falsely claim that the outcome of the election was in doubt, facilitating an effort to obstruct the certification of Biden’s victory in Congress on Jan. 6, 2021.

Legal experts said proving that Trump and his co-conspirators were lying when they said the electors were meeting just in case will be a central challenge of winning a conviction. Especially important may be the experience in Pennsylvania, where new interviews by The Washington Post reveal the extent of discomfort with the plan by Trump electors.

In five other states, Republicans did not hedge. Instead, they signed paperwork claiming to be electors for the president and casting their votes for Trump, even though he had lost their states. Electors in a seventh state, New Mexico, included contingency language similar to that in Pennsylvania. The Trump campaign then moved ahead with plans to use all the certificates to pressure Congress not to certify the electoral college count for Biden.

A spokesman for Trump did not respond to requests for comment for this report. The Trump campaign has denounced the indictment as “nothing more than the latest corrupt chapter” in a politically motivated “witch hunt” by the Biden administration.

Included in the evidence that special counsel Jack Smith offers is the fact that several of those campaign officials fretted internally about the legitimacy of the scheme. The indictment also cites a memo from Trump lawyer Kenneth Chesebro outlining a plan to falsely present the Trump elector slates as an alternative to Biden electors on Jan. 6.

The indictment describes how no election challenges remained in New Mexico on Dec. 14, 2020, but the campaign filed a new lawsuit at 11:54 a.m., six minutes before the noon deadline for the electors to vote, presumably to give the Trump electors a rationale for meeting. And it documents how officials wanted to keep the Pennsylvania contingency language under wraps.

On June 21, 2022, the Jan. 6 committee outlined a scheme it said was supported by then-President Donald Trump to overturn the 2020 election. (Video: Adriana Usero/The Washington Post)

What the indictment does not say is whether all the doubts it documented about the legality of the elector plan were conveyed to Trump or if Trump had ever acknowledged that possibility. It alleges that his false claims of election fraud were “integral to his criminal plans” to obstruct the certification. And it emphasizes his deep interest in the elector scheme, describing his demands for updates and for a public statement the day before the electors convened.

The Smith investigation into the electors does not appear to be over. In recent days, federal prosecutors have issued a new raft of subpoenas about the elector scheme in multiple states, according to people with knowledge of their activities who spoke on the condition of anonymity to discuss sensitive information.

So far, federal prosecutors have not named any electors as co-conspirators, though local prosecutors are investigating electors in at least four states and have charged all 16 of the Trump electors in Michigan with felonies.

Doubts about a ‘donkey show’

The federal indictment adds to a large body of evidence that the Trump electors scheme generated ample doubt not only in Pennsylvania but also inside the campaign and in the six other states where electors were being asked to convene.

Inside the campaign, former and current Trump advisers said, most of his original 2020 team was in the dark about what Giuliani and other lawyers new to the team were doing, and believed it was a “stupid” if not illegal plan that was simply meant to pacify an angry president, in the words of a former senior campaign official. Those who were involved in the scheme kept the strategy closely held, according to three former campaign officials.

According to the indictment, Trump eagerly followed the progress of the plan. The day before the electors were set to meet, he asked an adviser “what was going on” with the scheme, and he directed the adviser to “put out [a] statement on electors.” Documents released by the House select committee that investigated the Jan. 6, 2021, attack on the Capitol identify the aide as Jason Miller.

Internal text exchanges, meanwhile, show that no one wanted to sign such a statement. “How best [to] proceed tomorrow so we don’t look like a donkey show, particularly on the comms/media front?” Miller asked several other campaign officials in a group text. Deputy campaign manager Justin Clark wrote back, “Here’s the thing the way this has morphed it’s a crazy play so I don’t know who wants to put their name on it.”

Out in the states, similar doubts percolated. New Mexico electors included contingency language similar to the Pennsylvania language. It is not clear why the Trump campaign included New Mexico in the scheme, since Biden won the solidly Democratic state by more than 10 points. The other six states produced Biden’s narrowest winning margins.

Laura Cox, the chairwoman of the Michigan Republican Party at the time, unsuccessfully sought to ensure that the paperwork in that state was purely “ceremonial” because she was uncomfortable having people sign paperwork saying they were the state electors, she told House investigators. Cox described how some Michigan Republicans considered hiding Trump electors overnight in the state capitol to make sure they could gain access to the building when it came time to meet. She testified that she thought the idea was “insane and inappropriate” and helped make sure it did not happen.

In Wisconsin, the executive director of the state Republican Party alerted its chairman, Andrew Hitt, that Giuliani was telling states not to let the media know about plans for the Republican electors to meet. Hitt replied, “These guys are up to no good and it’s gonna fail miserably,” according to documents gathered by the House select committee.

Hitt later told the House select committee he felt comfortable about the Republican electors meeting since a challenge was pending in court. He had been assured repeatedly that the Wisconsin meeting was happening only to ensure that the Republican electoral votes for the state would be counted if Trump managed to win the lawsuit. He never thought of making revisions to the Wisconsin paperwork that would have made clear that the Republican votes were valid only with the approval of a court.

“I wish we would have put it in there,” he told the committee. The conversations appear to have been particularly fraught in Pennsylvania. According to emails published by the committee, a top attorney for Pennsylvania Republicans expressed deep reservations about the plan a day before the electors met.

Thomas W. King III, the general counsel for the state Republican Party, sent a Trump campaign official an email the day before the electors were set to meet saying he understood that the Trump electors in Pennsylvania had been told they would receive “indemnification by the campaign if someone gets sued or worse.”

They were also to receive “a legal opinion by a national firm and certified to be accurate by a Pa. lawyer,” King wrote. Instead, he wrote, they got a memo from Chesebro, one of six unnamed co-conspirators referred to in the indictment, in which even Chesebro described the plan in Pennsylvania as “dicey” because state law calls for the governor, who at the time was a Democrat, to approve any elector substitutions.

King made changes to the electors’ paperwork to make clear that the Republican electoral votes were valid only with the finding of a court order that could not be appealed. In an interview last week, King said he made those modifications after hearing concerns from electors. “No one ever offered indemnification,” he said. “Any document that any lawyer looks at needs to be accurate.”

One Pennsylvania Republican, who spoke on the condition of anonymity to discuss the sensitive matter, said a concern of the electors was “presenting yourself as fraudulent.” The person said several electors spoke to their personal attorneys about potential legal vulnerabilities. “They were all doing a little research on their own background about what they’d be getting themselves into and what they’d be opening themselves up to,” the Republican recalled.

Three days before the electors were to meet, Lawrence Tabas, the chairman of the Pennsylvania Republican Party, contacted Hitt, his counterpart in Wisconsin, to ask if the Republican electors in his state would be meeting. Hitt confirmed they would be. Hitt also told House investigators that Tabas said: “Well, I guess this is just all new to me. I’m not sure why we’re, what’s going on or why we’re doing this, and I’m getting all these calls from the Trump campaign.” Tabas and six others ultimately chose not to participate in the meeting, more defectors than in any other state.

When is a scheme a crime?

The indictment alleges that Trump and his co-conspirators “falsely” told Republican electors they were convening purely to protect the campaign’s legal recourse, but that their real purpose was to submit “fraudulent” elector slates for Congress to consider in lieu of Biden elector slates. For instance, the indictment notes, an Arizona lawyer who consulted with Chesebro a week before the Republican electors met wrote in an email that they planned on “sending in ‘fake’ electoral votes” that “aren’t legal under federal law.”

But the details also show the challenge prosecutors face in trying to prove that the elector scheme amounted to a crime, and they raise the question of who else besides Trump and the unnamed co-conspirators cited in the indictment might be implicated down the road. Edward Foley, a law professor at Ohio State University and the director of its election law program, said the caveat in the Pennsylvania elector slate could make it difficult to criminalize their activity.

“The conditionality, I think, has got to protect you from criminality because you are basically putting everybody on notice that you are not claiming to be an elector unless this condition becomes favorable to you, which it clearly did not,” said Foley, who has studied disputed national elections and the role of electors.

 

The House report includes these examples of real and fake electors certificates in Arizona. (Associated Press)

But the calculation is likely to be different for those who attempted to use those certificates to create uncertainty at the joint session of Congress on Jan. 6, 2021, said Derek Muller, a law professor at the University of Notre Dame whose research includes federal election administration and the electoral college. “Other actors taking that certificate with that contingent language to try to gin up a controversy for the vice president, or for Congress to consider, have even less of a leg to stand on,” Muller said.

Giuliani, who is described in the indictment as Co-Conspirator 1, issued a strong rebuke of the indictment in television interviews last week. “This indictment is an outrage,” Giuliani said on Newsmax. “Whether you agree or disagree, whether this is true or false, every single thing here he had every right to say as an American citizen. When the hell does the government get to tell you that you can’t object to an election?”

John Eastman, a Trump lawyer described as Co-Conspirator 2 in the indictment and accused of devising and attempting to implement the elector strategy, released a similar statement through his lawyer. The indictment “relies on a misleading presentation of the record to contrive criminal charges,” the statement said. It also accuses the Biden administration of targeting the president’s “leading political opponent” in the 2024 contest.

John Malcolm, a former federal prosecutor based in Atlanta who is now a constitutional scholar at the conservative Heritage Foundation, said the indictment appears to be attempting to criminalize the efforts of the Trump lawyers to advocate on his behalf. Lawyers make arguments all the time that prove to be wrong in court, but that does not make them criminal, he said.

And doing so could have a chilling effect on their jobs. “Putting forward plausible but ultimately unavailing legal arguments, that is what lawyers do and that is what they should do,” Malcolm said. “And they should do it on behalf of their clients even if their clients are not very popular.”

Election litigation was still pending in all but two of the states, Nevada and Michigan, which is sure to be a core defense not only in the federal case but also in an investigation in Fulton County in Georgia, where some alternate electors have been named as targets by local prosecutor Fani Willis.

Willis appears to be focused on those who planned and led the elector meeting in the state capitol in Atlanta. Defense attorneys for several of the electors indicated in a court filing in May that at least eight of the 16 Trump electors accepted immunity in the case. Among the details Willis appears to be examining are instructions electors received to keep the meeting secret and efforts by elector Shawn Still to initially bar the public.

State charges pending against the Trump electors in Michigan may be easier to prosecute given that there were no more outstanding court cases in the state on Dec. 14, 2020. The electors signed certificates that looked official and attempted to deliver them to the state capitol, but were barred from entering.

The certificates were sent on to Washington nonetheless, and last month Michigan Attorney General Dana Nessel (D) announced charges of forgery and other felonies against the 16 Trump electors in that state. New Mexico Attorney General Raúl Torrez (D) is also examining the elector meeting. In addition, Biden electors have sued Trump electors in Wisconsin and Michigan. The civil actions, if successful, could carry stiff penalties of tens or hundreds of thousands of dollars per person.

Republicans have bristled at the lawsuits, saying Democrats are trying to punish them for preserving their legal options. But at the time, some Republicans had suggested that the gambit would fail. Clark, the deputy campaign manager, summed up how the plan was likely to unfold in a text message to a colleague: “In AZ WI NV GA MI our slates of electors will also vote. PA probably won’t happen. They will be called invalid and out of order (and they’re probably right).”

https://www.washingtonpost.com/national-security/2023/08/07/fake-electors-trump-indictment/

Edited August 12, 2023 by homersapien