Last week, Michigan Attorney General Dana Nessel referred to federal prosecutors a criminal investigation into who was behind a Dec. 14, 2020, certificate falsely attesting that Donald Trump won Michigan’s electoral votes. The next day, New Mexico Attorney General Hector Balderas made a similar referral to federal prosecutors in his state. Those who had a hand in crafting and attempting to submit false certificates of electors may have committed multiple crimes, including forgery and fraud.
The actions of these state officials are important steps toward uncovering the scope and depth of the attempted plot to steal the election and keep former President Donald Trump in power.
Significantly, the Michigan and New Mexico schemes were not isolated episodes. Rather, they appear to have been part of an organized scheme run through seven states. Many of the certificates used the same words and font, as if coordinated and copied from a common template. By contrast, the genuine certificates vary greatly in form, language, and look.
Though increased media attention is now being paid to the forged certificates, they were uncovered in March 2021 by American Oversight, a nonpartisan government watchdog, through a Freedom of Information Act request directed to the National Archives. (One of the authors, Melanie Sloan, is an adviser to American Oversight.)
Five of these certificates—those from Arizona, Georgia, Michigan, Nevada, and Wisconsin—outright claimed to set forth those states’ “duly appointed electors.”
The certificates for Pennsylvania and New Mexico hedged by saying that if the courts determine that the election was invalid, then these would be the alternate electoral slates. Even that was false; state legislatures or governors had to validate the slates for them to have even a sheen of legitimacy.
The possible conspiracy to declare these forged documents authentic may have extended all the way into the executive branch. It was no secret that solicitations to create the alternate slates came from the Trump campaign. A public court filing challenging Wisconsin’s vote said so. So did a Dec. 14, 2020, Pennsylvania GOP press release. Significantly, that same day, top Trump White House aide Stephen Miller said on Fox: “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. This ensures that all of our legal remedies remain open.”
Two things are noteworthy: the White House’s fingerprints on the scheme, and Miller’s mention of “legal remedies,” telling us that the strategy likely came from a lawyer.
Shortly before the Dec. 14 announcements, lawyer John Eastman entered the Trump postelection world and reportedly became Trump’s “legal quarterback.” Eastman wrote two memos laying out electoral count scenarios for Jan. 6; Republican Illinois Rep. Adam Kinzinger said the first “outlines a coup.”
Both memos’ recipe for keeping Trump in power turned on there being two sets of slates in those seven states. The argument was that the Constitution made Vice President Mike Pence “the final arbiter” of which electoral votes to count, rather than the ceremonial opener of the electoral certification envelopes. Later, Eastman attempted to walk away from that argument, called “laughable” in some legal circles.
According to Eastman’s longer memo, there were only three ways by which Trump could remain president. Each involved Pence either discarding the Biden slate from the seven states or halting the counting because of the forged competing slates and allowing the seven state legislatures to convene to certify the phony Trump electors. Delay was “just another avenue to stop Biden from taking office.”
In other words, the existence of the phony alternate Trump elector certificates was pivotal to the Eastman/Trump bloodless coup strategy.
Pence stymied the effort by refusing to disregard the authentic Biden slates, in keeping with his constitutional responsibilities. That decision left the violent Jan. 6 siege of the Capitol as the last option for interrupting the transfer of power, with the mob screaming “Hang Mike Pence.”
If these fake certificates were submitted with an intent to help steal the election, those responsible may have violated laws prohibiting the falsification of voting documents or other government documents, mail fraud, or conspiring to defraud the United States, which the Supreme Court has found includes “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.”
The Department of Justice should take up the referrals of the state attorneys general posthaste. The select committee to investigate the Jan. 6 attack on the Capitol, which has already called some of the possible witnesses to the phony certificate scheme, seems to have the matter within its sights.
Crucial questions in the fraudulent electoral certificate cases include who was involved in creating and developing the template text and who led the scheme.
To former prosecutors, the most obvious entry point to investigating the plot is to question the fraudulent Republican “electors” whose names are on the certificates. They can almost surely point the way up the chain of command.
Another person surely worth questioning is Ian Northon, an attorney representing the conservative Thomas More Society’s Amistad Project, which unsuccessfully filed numerous legal challenges to the 2020 election results and which counts Trump legal adviser Jenna Ellis as special counsel. (Ellis was subpoenaed by the Jan. 6 committee on Tuesday.) Northon joined the Michigan Republican electors on Dec. 14 and asked police officers stationed outside the state Capitol to deliver a manila envelope carrying the electors’ votes, which he described as the official “certificate of ascertainment,” to the Senate majority leader.
Other promising witnesses include Pence’s aides, such as Marc Short and lawyer Greg Jacob.* They are likely to have been the ones who assisted the former vice president in altering the language of the “script” the last five vice presidents used before the electoral vote count took place. Pence added words stating that he could, per the parliamentarian, only count a slate whose documentation included “a certificate from an authority of that state purporting to appoint or ascertain electors.” Those words almost certainly reflected his awareness of the fake electoral count certificates that lacked authentication from state officials.
Nothing will happen on the potentially criminal side of these cases, though, unless someone in the Department of Justice acts. Swiftly and vigorously investigating the fraudulent electoral slate plot would be a vital step toward accountability for those atop the conspiracy to end 235 years of presidential power transitions under the rule of law.
Correction, Jan. 19, 2022: This piece originally misspelled Greg Jacob’s last name.