This Is Why Trump's 'Fake Electors' Say They Did Nothing Wrong

The media and Democrats call them “fake electors.” But perhaps a more accurate description of the men and women in Michigan, Georgia, and Arizona who presented themselves as genuine electors should actually be “contingent electors.” The Michigan contingent electors are already under indictment, and prosecutors in Georgia and Arizona are readying charges that will shortly be handed down.

Brookings Institution Senior Fellow Norman Eisen and New York University law professor Ryan Goodman wrote an essay in the New York Times titled, “Trump’s Conspirators Are Facing the Music, Finally.” They supposedly “participated in a criminal conspiracy to overturn Joe Biden’s victory by posing as the state’s true electors.,” according to Reason.com’s Jacob Sullum.

Is that what they did? The defendants claim that offering themselves as alternative electors was a way of preserving objections to a contested election. Besides, they say they were acting on the advice of Trump’s attorneys, who themselves were advising the Michigan electors based on precedent.

According to Sullum:

The “contingent” Trump electors in Georgia, who have been informed that they are targets of a similar investigation by Fulton County District Attorney Fani Willis, make the same basic argument. Press coverage of these investigations, which routinely describes the targets as “fake” or “bogus” electors, tends to dismiss that argument out of hand. But it is worth a closer look, because it is central to the question of whether prosecutors can prove that would-be electors who followed the Trump campaign’s advice acted with criminal intent.

“Criminal intent” is the key. Did the electors in all three states know they were breaking the law? Mens rea — the mental state of the defendants at the time the crime was committed — has to show a clear intent to commit an illegal act.

At least some defendants may have an excellent case that this wasn’t the case. David Shafer, former chairman of the Georgia Republican Party, says he was acting on the advice of Trump’s attorneys.

In a March 26 letter to Willis, Shafer’s attorneys cite a December 10, 2020, email from Alex B. Kaufman, one of the lawyers who represented Trump and Shafer in a state lawsuit, Trump v. Raffensperger, challenging the outcome of the presidential election in Georgia. The CC line includes four other Trump lawyers: Cleta Mitchell, Kurt Hilbert, Ray S. Smith III, and Chris Gardner.

“Based upon the developments both in our state case as well as in the Supreme Court,” Kaufman says, “I am reconfirming the importance and our collective advice that our slate of delegates meet on December 14th (per the Federal Deadline) and cast their ballots in favor of President Trump and specifically per the Georgia Election Code. It is essential that our delegates act and vote in the exact manner as if Governor Kemp has certified the Presidential Contest in favor of President Trump. I believe that this is still the most conservative course of action to preserve the best chance for Georgia to ultimately support the President’s re election. As we discussed in the 1960 Hawaii case, the convening of our electors and their casting of ballots in favor of President Trump in the specifically required form and manner is necessary in order to preserve our state and party’s say in the presidential contest.”

Shafer’s attorney’s mention of the 1960 Hawaii case is extremely relevant. Nixon was originally declared the winner of the state by just 140 votes. Democrats challenged that outcome in court, and a recount ultimately awarded Hawaii’s three electoral votes to Kennedy.

But both parties certified state electors.

In the meantime, however, Electoral College nominees from both parties convened on December 19, 1960, the deadline that year. Both groups signed certificates identifying themselves as “duly and legally appointed and qualified” members of the Electoral College, and both sets of certificates were sent to Washington, D.C.

I don’t recall any of those electors being charged in the case.

On January 4, 1961, a state judge, Ronald Jamieson, retroactively validated the Democrats’ seemingly premature certificates. According to Jamieson’s ruling, it was crucial that the electors had convened on December 19, even though their certificates contradicted the official results at the time. Two days later, while overseeing the congressional tally of electoral votes as vice president, Nixon acknowledged that he had received three sets of certificates from Hawaii: the dueling December 19 slates, plus a subsequent Democratic slate that Hawaii’s governor certified after the recount. Nixon concluded that the third slate, comprised of the same Democrats who had signed the December 19 certificates, “properly and legally portrays the facts with respect to the electors chosen by the people of Hawaii.”

It was a different era, to be sure. No one tried to criminalize the alternate slate of electors presented by the Democrats. No one accused either side of fraud. And no one made a big stink of the GOP challenge to Hawaii’s results. It was recognized as a completely legal, prudent way to maintain the integrity of the election.

There are other circumstances in the current cases that are different, including the probability that several of the contingent electors knew they were probably violating the law.

But the notion that the contingent electors were engaged in a “conspiracy” to “overturn the election” is daffy.