On Dec. 14, 2020, Republicans in seven battleground states issued false Electoral College certificates declaring then-President Donald Trump and Vice President Mike Pence the winner of the presidential election in their respective states—despite Joe Biden having won the state. In each of the seven states (Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin), the groups filed their false certifications with the National Archives.
According to the January 6 Select Committee’s Vice Chair Liz Cheney (R-WY), these certificates played a central role in Trump’s alleged “seven-part plan” to overturn the 2020 election results:
5. President Trump’s legal team and other Trump associates instructed Republicans in multiple states to create false electoral slates and transmit those slates to Congress and the National Archives.
Representative Jamie Raskin (D-MD), a member of the January 6 Committee, described it as “an effort to create the illusion of contested state results” that would have given Pence “a pretext for unilateral rejection of electors.” On June 7, 2022, Judge David Carter of the Central District of California ordered details of the plan be released to the committee because the relevant documents described “a critical objective of the January 6 plan: to have contested states certify alternate slates of electors for President Trump.” The Justice Department has reportedly opened a multi-state criminal investigation concerning the alternate slate of electors scheme.
This backgrounder discusses the criminal legal framework that may apply to the scheme. It does not make any assessment of the legality or criminality of the scheme.
The contrast between the real and fake electoral certificates is obvious. Reproduced below are a copy of Arizona’s real electoral certificate in the 2020 presidential election, and below it, the fake certificate submitted on behalf of the alternate slate of electors (and obtained by American Oversight through a FOIA request).
The five fake certificates from Arizona, Georgia, Michigan, Nevada, and Wisconsin stated (falsely) that the signed electors were their state’s “duly elected and qualified” electors. The other two fake certificates from New Mexico and Pennsylvania caveated their claim to represent their state’s electoral vote, stating that the certificates were submitted in case the alternate electors were later recognized as duly elected electors.
Such caveats “might’ve spared them from a criminal investigation,” a local news report in Lancaster Online stated following Pennsylvania State Attorney General Josh Shapiro’s office’s decision not to conduct a criminal investigation. “Though their rhetoric and policy were intentionally misleading and purposefully damaging to our democracy, based on our initial review, our office does not believe this meets the legal standards for forgery,” the attorney general’s office said in a statement.
On Jan. 25, 2022, Deputy Attorney General Lisa Monaco confirmed to CNN that federal prosecutors were looking into the “fraudulent elector certifications.”
States such as New Mexico and Michigan submitted referrals to the Department of Justice; Monaco said, “We’ve received those referrals. Our prosecutors are looking at those and I can’t say anything more about ongoing investigations.”
Officials from some of the seven states have welcomed and supported the move, with New Mexico Attorney General Hector Balderas stating that he is “pleased the DOJ is looking into this matter, as these disturbing allegations require that federal authorities partner with state law enforcement agencies across the country to ensure integrity in the election process.”
Michigan Attorney General Dana Nessel provided federal prosecutors information from her year-long investigation into the matter. She has stated that she has sufficient evidence to charge 16 Republicans in her state with submitting the fake elector slate that falsely claimed they were official electors for the state.
The Justice Department has reportedly begun sending subpoenas and seeking interviews with at least 15 people around the country who were selected (before the election) to be Trump electors but who were replaced on the day of the electoral college vote or chose not to participate. The subpoenas explicitly seek information from individuals in Georgia about their communications with “any member, employee or agent of Donald J. Trump or any organization advocating in favor of the 2020 re-election of Donald J. Trump.”
The Justice Department has also reportedly requested information from witnesses on any involvement or communications they may have had with several lawyers such as former Trump attorney Rudy Guiliani, adviser Boris Epshteyn, Kenneth Chesebro, campaign lawyer Justin Clark, and lawyer John Eastman. (See also New York Times reporting.)
Patrick Gartland, who was slated to serve as one of Trump’s electors but dropped out, recalled FBI agents “just asked who talked to me. If anyone from the Trump campaign had been in touch with me. Did Guiliani talk to me? Did Trump talk to me?”
Based on the publicly available information so far, the following federal criminal charges may be implicated. Some of these offenses might apply to the principal planners of the scheme; some of the offenses might be applicable to individuals at the state level who signed and submitted the documents. Whether the law applies will also turn, in part, on questions of the requisite knowledge and intent of different actors. And whether some of the following laws apply will turn on definitions of “ballots” and “acting under color of law.” We bracket all of those questions for a separate analysis.
18 U.S.C. § 1512(c)(2) – Obstruction of congressional proceedings
• Whoever corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.
18 U.S.C. § 371 – Conspiracy to commit offense or to defraud United States
• If two or more persons conspire … to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
18 U.S.C. § 494 – Contractors’ bonds, bids, and public records
• Whoever falsely makes, alters, forges, or counterfeits any bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit, or other writing for the purpose of defrauding the United States; or …Whoever transmits to, or presents at any office or to any officer of the United States, any such false, forged, altered, or counterfeited writing, knowing the same to be false, forged, altered, or counterfeited —Shall be fined under this title or imprisoned not more than ten years, or both.
52 U.S.C. § 20511(2)(b)
• A person, including an election official, who in any election for Federal office—knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair impartially conducted election process, by the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held, shall be fined in accordance with title 18.
18 U.S.C. § 1001 – Statements or entries generally
• Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; …
shall be fined under this title.
Fulton County District Attorney Fani Willis’ office has also been investigating whether Trump and his associates committed any crimes in their attempt to overturn the presidential election. The investigation has included Georgia prosecutors interviewing several individuals who served as alternate electors. “Willis’ office appears to be trying to determine whether the pro-Trump electors in Georgia had any knowledge that their actions may have been a component of a broader and potentially illegal plot to pressure election officials and overturn,” CNN reported.
In May 2022, a special grand jury was appointed to hear evidence from the investigation, with both investigative and subpoena power. After its assessment, this jury will issue a report to Fulton Superior Court Judge Robert McBurney on the next steps of the investigation.
In addition to the potential federal and state criminal charges that might be implicated by the alternate electors scheme, there are ongoing civil actions..
Khary Penebaker et al v. Andrew Hitt et al
On May 17, 2022, Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection filed a lawsuit on behalf of two lawfully elected Wisconsin presidential electors and one Wisconsin voter against 12 individuals allegedly involved in the scheme to overturn the results of the presidential election.
The 12 individuals are composed of 10 Republican alternate electors, James R. Troupis and Kenneth Chesebro. The 10 alternate electors are: Andrew Hitt, Robert F. Spindell, Jr., Bill Feehan, Kelly Ruh, Carol Brunner, Edward Scott Grabins, Kathy Kiernan, Darryl Carlson, Pam Travis, and Mary Buestrin, all of whom were nominated on Oct. 6, 2020 by the Republican Party of Wisconsin as candidates for the office of presidential elector.
According to news reports quoted in the Penebaker complaint, under the leadership of Trump’s then personal attorney, Rudy Guiliani, Trump’s team “coordinated the nuts-and-bolts of the process on a state-by-state level,” which involved “multiple planning calls between Trump campaign officials and GOP state operatives.”
The complaint alleges that Chesebro sent multiple memos to Troupis, a lawyer for the Trump campaign in Wisconsin, proposing and outlining the steps of the elector scheme. In these memos, Chesebro argued that the slate of Republican elector candidates could “take the essential steps needed to validly cast and transmit their votes, so that the votes might be eligible to be counted if later recognized (by a court, the state legislature, or Congress) as the valid ones that actually count in the presidential election.” The complaint notes that the alternate electors had not been duly elected and therefore could not “validly cast and transmit their votes.” Nevertheless, the complaint alleges, the casting and transmission of the fraudulent electoral votes would enable
Trump and his allies [to] pressure Pence to count them on January 6, 2021, and to reject the votes of the duly elected presidential electors from each State…The schemers believed that, if Pence were to count the fraudulent electoral votes from each swing State, rather than the votes cast by the States’ duly elected presidential electors, Trump would win the Electoral College and be inaugurated.
The plaintiffs contend that these actions taken by the 10 alternate electors, Troupis, and Chesebro involve violations of the following federal statutes and, coupled with Wis. Stat. §§ 5.10, 7.75, 939.05, and 946.69, that they amount to a civil conspiracy. According to the complaint:
18 U.S.C. § 1512(c)(2) – Impeding Official Proceeding
18 U.S.C. § 371 – Defrauding the United States of a Government Department’s Lawful Function
• The 10 alternate electors allegedly violated these statutes “by purporting to cast Wisconsin’s electoral votes, knowing that they were not the duly elected presidential electors for the State of Wisconsin, and by intending that Congress count their purported votes rather than those cast by Wisconsin’s duly elected presidential electors.”
• Defendants Chesebro and Troupis allegedly violated the statute “by corruptly” attempting to “obstruct, influence, or impede an official proceeding, in violation of 18 U.S.C. §1512(c)(2)” and §371, “[b]y conspiring with, aiding, and abetting” the alternate electors.
18 U.S.C. § 494 – Knowingly Forging and Transmitting Public Record
• The 10 alternate electors allegedly “falsely made, forged, and counterfeited a public record or other writing for the purpose of defrauding the United States, and transmitted such writing” to an United States officer, by representing that the ‘Certificate of the Votes of the 2020 Electors from Wisconsin’ was an “official certificate reflecting the votes of Wisconsin’s duly elected presidential electors,” transmitting “that certificate to the President of the United States Senate, the Archivist of the United States, and the Chief Judge of the United States District Court of the Western District of Wisconsin” and “by intending the Congress count their purported votes rather than those cast by Wisconsin’s duly elected presidential electors,” according to the complaint.”
• Defendants Chesebro and Troupis were not mentioned in connection with this violation.
Eastman v. Thompson et al.
The issue of alternate slate of electors has arisen in ongoing litigation between John C. Eastman and the January 6 Committee, centering on the committee’s subpoena of Eastman and his refusal to turn over documents. Judge David O. Carter, of the Central District of California Southern Division, has assessed whether the crime fraud exception to attorney-client privilege applies. Initial rulings in the case indirectly suggest potential criminal liability for some of those involved. Judge Carter stated on June 7 (citing his own previous ruling) “that
from January 4-7, 2021, President Trump and Dr. Eastman likely committed obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c)(2), and conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, when they attempted to disrupt the Joint Session of Congress on January 6, 2021.”
In other words, Judge Carter holds in this civil case that President Trump and Eastman more likely than not engaged in a criminal conspiracy to overturn the election. In a June 7 order, Judge Carter stated, “Dr. Eastman and President Trump’s plan to disrupt the Joint Session was fully formed and actionable as early as December 7, 2020;” and “a critical objective of the January 6 plan: to have contested states certify alternate slates of electors for President Trump.”
The third public hearing of the January 6 Committee is expected to discuss the alternate slate of electors scheme, according to the Wall Street Journal.
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