On December 14, 2020, Republican operatives in at least five states – each of which had already officially certified Joe Biden as the winner – forged and submitted to Congress and the National Archive fake electoral college certificates purporting to certify Donald Trump, not Biden, as the “duly elected” winner.
Although American Oversight blew the whistle on the fake elector scheme in March of 2021, it wasn’t until Rachel Maddow devoted a series of shows to it in January of 2022 that the scheme really captured public attention. Blame it on the firehose effect: when we were drowning in a tsunami of new information about Trump’s presidential misconduct day after day, isolating and focusing on a single piece of it was a bit like trying to drink from a firehose.
And the fake electors were hardly the worst of what Trump had visited on us. For sheer journalistic sex appeal, a scheme by a bunch of unknown, bumbling state functionaries to phony up some documents just can’t compete with a president siccing an armed mob on the Capitol.
But even if participation in the fake elector scheme wasn’t the worst or most shocking of Trump’s predations, it may be the one most likely to land him in jail.
The fake elector scandal has long looked like the straightest route to cracking open the entire 2020 election scheme, and to getting Donald Trump indicted and convicted of a crime (at least until the Mar-a-Lago stolen documents scandal was revealed, but that’s another story).
What the fake elector scheme may lack in sex appeal it makes up for in simplicity.
If Donald Trump was a knowing participant in the scheme (more on that later), his reasons for doing so would make absolutely no difference. Even if he really, truly believed the election was stolen, it would not be a defense to criminal charges for participating in a fraudulent scheme to submit forged documents as the official results of state presidential elections. To the contrary, his belief that he was stealing back a stolen election would be highly incriminating proof of his motive, not a defense.
Contrast that, for instance, with a potential charge that Trump tried to corruptly alter the result in Georgia in his infamous phone call to Georgia Secretary of State Brad Raffensperger. When Trump asked Raffensperger to “find” enough votes to flip the Georgia election, was he asking him to legitimately root out and disqualify votes that he honestly believed were fraudulent, or was he asking him to manufacture votes?
In the real world of courts, unanimous juries and proof beyond a reasonable doubt, showing that Trump was “only” asking Raffensperger to root out and disqualify illegally cast votes would be, if not a defense, then at least a complication. It would give Trump’s lawyers something to work with. And while I don’t think Trump gave a damn whether or not there actually were illegal votes in Georgia – Trump operates in a fact-free, amoral universe that makes it pointless, if not impossible to try to discern what he “really believed” – there’s enough in the transcript of the call to make that argument to a jury.
Same with a charge that Trump incited the January 6 insurrection. Trump has so far not been directly linked to the violence perpetrated in the Capitol attack. Yes, he sent an armed mob to the Capitol and told them to fight like hell to take back the country. But his defense team will argue that Trump was using permissible, albeit very strong political speech to exhort his followers to send a loud, angry message to Congress, not to physically attack it. And, again, there’s arguably enough weasel-wording in Trump’s January 6 speech to convince at least a single juror to give Trump the benefit of the doubt for burying the word “peacefully” in the middle of his otherwise incendiary speech.
It’s one thing to believe the obvious: that Trump was acting like a mob boss, sending coded signals that his gangland cronies fully understood. It’s another thing to prove it beyond a reasonable doubt to the satisfaction of every one of twelve randomly selected jurors. Again, it’s complicated. And prosecutors hate complicated.
Not so the fake elector scheme.
If it can be proved that Trump intentionally participated in the scheme to try to pass off forged documents as official state documents, and then use the phony documents to overturn an election, it wouldn’t make any difference why he did so. The act of participating in the scheme, in and of itself, regardless of his purported reasons for doing so, would still run afoul of all kinds of state and federal criminal laws.
The path to prosecuting Trump for the fake elector scheme – either as a stand-alone crime or as a crucial element of a larger conspiracy to overturn the results of a presidential election – became much clearer last week with the publication of the Jan 6 Select Committee Final Report.
Until the publication of the Report, there were arguably two open questions: (1) how high in the levels of Trump world did the scheme go; and (2) could at least some of the perpetrators assert a credible defense that they understood it was just a contingency plan to have electors in place in the event that the courts or state legislatures determined that Trump, not Biden, was the winner in one or more of the five states.
The Report answered both questions: (1) the scheme went all the way to the top, right up to Trump himself, and (2) while some of the lower-level participants in the scheme – most likely some of the state-level GOP operatives who actually signed the phony certificates – may have been duped into believing that that it was a contingency plan, the higher ups who created and executed the scheme knew better.
They knew it was an action plan.
In thinking about how far up the Trump World hierarchy the scheme went, start by forgetting about the fake electors themselves. Some of them may have innocently believed that they were merely part of a contingency plan, although the true plan was sufficiently transparent that some potential signers backed away right from the start. Some may have been too dumb to understand what they were getting themselves into, although “I was just following orders” hasn’t been much of a defense since at least World War II. And some may have been knowing participants in the fraudulent scheme, although that would also place them in the “too dumb” category.
But who cares?
Better to not indict them at all than to indict only them and let the real culprits off the hook. Better to leverage their self-protective instincts and get them to point the finger at the higher-ups who put them up to it.
Those higher ups, according to the Report, include the architects of the scheme (principally conservative attorney John Eastman and Kenneth Chesebro, an outside legal advisor to the Trump campaign), the senior Trump enablers who knowingly helped them execute the scheme (most notably Rudy Giuliani and Mark Meadows), and Donald Trump, who “oversaw it himself.” (Report, p. 341)
According to the report, by December 8 – less than three weeks after Chesebro first laid the groundwork for the scheme in a November 18 memo – “President Trump had decided to pursue the fake elector plan and was driving it.” By mid-December, Trump had enlisted the assistance of RNC Chairwoman Ronna McDaniel in the scheme, worked with Rudy Giuliani on its implementation, and been informed that litigation would be filed in four states “to create a pretext to claim that it was still possible for the fake electors to be authorized retroactively.” (Report, p. 346)
So it appears that the previously missing link – the link between the fake elector scheme and Trump himself – is no longer missing. Trump not only “participated” in the fake elector scheme, he orchestrated it.
With Trump’s knowing participation seemingly clear, the only remaining question appears to be whether the perpetrators can credibly soft-sell the scheme as merely a contingency plan, not an action plan to overturn an election.
The Report makes it plain that plan was never to collect the signatures, file them away, and only pull them out in the unlikely event that a court or state legislature reversed the results of one or more of the elections in the five states. The plan was to use the fake certificates affirmatively:
“[T]his effort was aimed directly at the President of the Senate (which, under the Constitution, is the Vice President) in his role at the joint session of Congress on January 6th. President Trump and his advisors wanted Vice President Pence to disregard real electoral college votes for former Vice President Biden, if favor of these fake competing electoral slates.” (Report, pp. 341-2)
According to the Report, public comments made by Rudy Giuliani and Stephen Miller on December 14 suggesting that the phony certificates were merely “contingent” were window dressing: “[T]hat pretense was dropped in short order.” In fact, Team Trump was actively plotting to execute a strategy, designed largely by Trump attorney John Eastman, to use the slates of fake electors as a pretext to prevent or delay certification of Biden’s election. (Report, pp. 355-6)
Nobody on the leadership team was mincing words: a December 13 memo from Chesebro to Rudy Giuliani suggested that on January 6, Vice President Pence could toss out Biden’s actual electoral votes for any state where Trump had fake electors “because there are two slates of votes.” (Report, pp. 344-345)
And nobody was waiting for a court order that they knew would never come.
If there were ever any doubt about that, of course, it is dispelled by the fact that the schemers not only planned to use the phony certificates affirmatively, they did use them affirmatively, albeit ineptly.
Ever incompetent to execute even the most clerical, ministerial tasks, Team Trump orchestrated not only a massive fraud, but a comedy of errors.
The phony certifications from Arizona, Georgia, Nevada, New Mexico and Pennsylvania failed to meet the requirements of federal law because they bore no state seal and no evidence that the required state officials had delivered them. The submissions from Georgia, New Mexico and Pennsylvania lacked the required approval of the governors of those states. Other fake Trump electors failed to follow state rules specifying where they were required to meet, but nevertheless certified that they had done so.
The comedy of errors morphed into outright farce with Team Trump’s frantic, buffoonish, last-minute efforts to get them to the church on time.
By early January, the phony certificates from Michigan and Wisconsin had not yet arrived in Washington, and Team Trump freaked out. They arranged to fly the certificates to Washington for hand delivery to the Vice President. Or, in the undying words of a Wisconsin Republican Party official, “Freaking Trump idiots want someone to fly original elector papers to the senate President [VP Mike Pence].”
Speaking of freaking Trump idiots, enter Wisconsin Senator Ron Johnson stage right. Johnson, implored by the Trump Campaign’s lead attorney in Wisconsin to assign a staffer “to get a document on Wisconsin electors to you [for] the VP immediately,” accommodated by putting not just some staffer, but his chief of staff on the job. That plan died a humiliating death when an aid to the Vice President brushed off Johnson’s request, bluntly telling his chief of staff “Do not give that to him [the Vice President].” (Report, p. 357)
Suffice it to say that none of this activity was triggered by a court or legislative order to the effect that Trump, not Biden, had won any of the five states. That never happened. Anywhere.
So the “it was just a contingency plan” defense is a non-starter.
All that’s left is for Special Counsel Jack Smith to examine whether the admissibility and strength of the evidence of Trump’s direct involvement in the fake elector scheme – either as a stand-alone crime or as part of a wider conspiracy – is sufficient to convince a jury of Trump’s guilt beyond a reasonable doubt.
The Report strongly suggests that it is.