Trump’s Fake-Elector Scheme: Crime or ‘Contingency Plan’?

Trump’s fake-elector plan was allegedly another one of Giuliani’s big ideas. Photo: Mandal Ngan/AFP via Getty Images

One of the key elements of Donald Trump’s scheme to overturn the results of the 2020 presidential election was the self-appointment of slates of Trump electors in seven states that had certified Joe Biden as the winner. It’s not that hard to figure out why Team Trump took this step (apparently at the urging of campaign lawyer Rudy Giuliani): No matter which strategy Trump used to reverse the election’s outcome — from court challenges to individual state results to an assault on the Capitol — he’d need electors pledged to him to fabricate a legitimate constitutional conquest of the White House. If, for example, Mike Pence had obeyed orders and claimed there was ambiguity about which electors to recognize on January 6, there would have to be actual Trump electors in place to create the phony ambiguity.

Federal prosecutors under Special Counsel Jack Smith have been trying to determine whether the fake-elector scheme was part of an overall criminal conspiracy by the former president and his agents. We will soon know what they concluded when the expected Trump indictment over the events of January 6 drops. Meanwhile, prosecutors in most of the states where false electors assembled have been investigating whether state laws were broken, not just by the Trump campaign but by the fake electors themselves. The first indictments landed in Michigan earlier this week, as the Associated Press reported:

Michigan’s attorney general filed felony charges Tuesday against 16 Republicans who acted as fake electors for then-President Donald Trump in 2020, accusing them of submitting false certificates that confirmed they were legitimate electors despite Joe Biden’s victory in the state.

Attorney General Dana Nessel, a Democrat, announced Tuesday that all 16 people would face eight criminal charges, including forgery and conspiracy to commit election forgery. The top charges carry a maximum penalty of 14 years in prison.

The group includes the head of the Republican National Committee’s chapter in Michigan, Kathy Berden, as well as the former co-chair of the Michigan Republican Party, Meshawn Maddock, and Shelby Township Clerk Stan Grot.

Tellingly, it does not appear that fake electors in New Mexico and Pennsylvania will face state charges because they were smart (or cautious) enough to sign statements making it clear they were only presenting themselves as electors as a contingency, in case Biden’s certification as the popular-vote winner was overturned by the courts or state election officials. Indeed, one of the original Trump electors in Michigan — then–GOP chairman Laura Cox — refused to participate in the fake-elector scheme because there was no such “contingency” statement. Why not? Well, presumably because the other electors wanted to be presented to Congress on January 6 as legitimate Michigan electors whether or not the courts or state elected officials make second thoughts legitimate. And that’s where the charges of “forgery” and “conspiracy to commit forgery” arose, as the fake electors flatly claimed to have been lawfully designated.

It doesn’t help the case of the Michigan fake electors that they falsely claimed they had met at the state capitol (where the actual Biden electors met as required by state law) and conducted themselves in incriminating secrecy.

Fake Trump electors in Arizona and Georgia exhibited much of the same sketchy behavior, as the Washington Post’s Amber Phillips explains:

In Georgia, Trump supporters met quietly in a conference room at the Capitol in Atlanta and were told by a Trump campaign staffer in an email: “Your duties are imperative to ensure the end result — a win in Georgia for President Trump — but will be hampered unless we have complete secrecy and discretion.” In Arizona, pro-Trump electors gathered at the state GOP headquarters and broadcast their meeting on social media, dubbing it “the signing.”

Unsurprisingly, prosecutors in both states are investigating fake electors. In Arizona, Democratic attorney general Kris Mayes is “ramping up a criminal investigation into alleged attempts by Republicans to overturn the 2020 presidential election results in the state by signing and transmitting paperwork falsely declaring Donald Trump the winner,” the Post reported last week. And, more famously, in Georgia, fake electors are a major part of the investigation conducted by Fulton County district attorney Fani Willis that is expected to produce indictments in August.

When all the investigations are complete, we’ll have a better idea of the extent to which the fake-elector scheme was a national conspiracy with willing dupes around the country or more of a grassroots scam with variable marks of criminality. But in any event, the risk of indictment and imprisonment may inhibit future would-be electors from playing make-believe with solemn constitutional obligations.