How Trump’s ‘Fake Electors’—Reportedly Ordered To Operate In ‘Complete Secrecy’—Could Be Punished - Forbes

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Topline

The Trump campaign directed Republicans in Georgia to operate in “complete secrecy” when they cast alternate electoral votes for former President Donald Trump in the 2020 election, according to emails first reported by the Washington Post, as the “fake electors” that cast ballots for Trump in seven states come under increasing legal scrutiny.

Key Facts

Republicans in Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania and Wisconsin—all states President Joe Biden won—met in December 2020 and passed “alternate” slates of electors claiming that Trump won their state, which were then sent to Congress and the National Archives.

The electors included state-level party officials, lawmakers and other Republican activists.

None of those slates of electors were used when Congress counted the presidential election results and formalized Biden’s win on January 6.

The Trump campaign and attorney Rudy Giuliani reportedly oversaw the effort and White House Chief of Staff Mark Meadows was involved in discussions about it, documents obtained by the House January 6 Committee show.

The Trump team didn’t keep the scheme a secret—Trump adviser Stephen Miller pushed it on Fox News even before it took place—but emails reported by the Post and CNN show that at least in Georgia, a Trump campaign official told the alternate electors that their efforts “will be hampered unless we have complete secrecy and discretion.”

Electors were instructed to not even tell security at the state capitols why they were there when they were casting their alternate ballots, and government ethics expert Norm Eisen told the Post the emphasis on secrecy suggests the Trump campaign may have known the scheme “could be problematic.”

What To Watch For

The Justice Department has confirmed it’s investigating the fake electors and whether they violated federal law, as has Fulton County DA Fani Willis, as part of a broader investigation into Trump’s attempts to overturn Georgia’s election. Both of those investigations could result in criminal charges. Wisconsin voters have also filed a civil lawsuit against that state’s electors, which could result in electors having to pay damages and issue a declaration stating their actions were unlawful. The House January 6 Committee has also issued subpoenas to the fake electors and is investigating their actions, and the scheme is expected to be part of the public hearings that the committee will start holding this week. Lawmakers can’t actually bring charges against anyone as part of the House inquiry, but they can turn over what they find to the DOJ and make a criminal referral for them to bring charges.

Chief Critic

David Sinners, the Trump campaign official who sent the email, told the Post in a statement he was told by senior campaign officials and David Shafer, chairman of the Georgia Republican Party—and one of the fake Trump electors—the demand for secrecy “was necessary in order to preserve the pending legal challenge.” Some of the GOP electors in Georgia and elsewhere have defended their actions, claiming they weren’t trying to unlawfully overturn the election results, but rather just “preserve” Trump’s win in case Biden’s victory was voided. “Had we not meet [sic] today and cast our votes, the President’s pending election contest would have been effectively mooted,” Shafer said on Twitter the day they met in December 2020. “Our action today preserves his rights under Georgia law.”

Surprising Fact

The fake electors in Pennsylvania and New Mexico are less likely to face legal ramifications than those in other states. Most states’ alternate electors filed certificates declaring they were the state’s “duly elected” electors—which they weren’t, since Biden was their state’s actual winner and not Trump. Pennsylvania and New Mexico’s certificates hedged by saying they’re an alternate slate of electors just in case Biden’s win in the states was invalidated, however, according to documents published by watchdog group American Oversight. That means that while most electors could potentially face consequences for forging government documents—since they claimed to be legitimate electors when they weren’t—the electors in those two states likely couldn’t be prosecuted, Pennsylvania Attorney General Josh Shapiro told CNN.

Key Background

The fake electors scheme was part of a broader effort by Trump and his allies to overturn the 2020 election results, which also included dozens of failed lawsuits and unsuccessful efforts to persuade Vice President Mike Pence not to approve the vote count when Congress met on January 6. Though the fake electors scheme was reported at the time it happened—and American Oversight published copies of the fake certificates in March 2021—the effort came under greater scrutiny in December, when the documents linking Meadows and the White House to the scheme were first reported.