election coup

Could Trump’s Fake Electors Be Charged With a Crime?

Rudy Giuliani could find himself in hot water for his efforts to secure and coordinate fake electoral vote certifications. Photo: Spencer Platt/Getty Images

One of the weird subplots in Donald Trump’s attempted election-coup scheme in 2020 was the self-designation of fake presidential electors in seven states (Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin). These folks presented themselves to Congress as having been selected by voters, absent all the rampant fraud no one could ever demonstrate. None of them were certified by a governor or any other state official given the power to do so (in one act of buffoonery, the chairman of the Nevada Republican Party claimed to certify his state’s fake electors). Their self-certifications were hastily arranged — reportedly at the urging of Trump attorney Rudy Giuliani — to coincide with the casting of the actual electoral votes of real, state-certified electors on December 14, 2020.

Clumsy as it was, the fake elector gambit was a key component of the Trump plan to overturn the election results on January 6, 2021. Creating the illusion of competing slates of electors was supposed to give Vice-President Mike Pence (as subsequently laid out in the famous Eastman memo) an excuse to (a) recognize or count Trump–Pence electors as the “true” winners, (b) prematurely adjourn the joint session of Congress in order to “send the election back to the states” for resolution of conflicting claims, or (c) refuse to recognize any electors in the seven states, throwing the election into the U.S. House. Additionally, the Trump slates might become the basis for congressional challenges to Biden electors, as they did in two cases (Arizona and Pennsylvania).

None of this worked out for Team Trump; after much hesitation, Pence refused to play kingmaker on January 6, and some of the planned challenges to electors by congressional Republicans were abandoned after the Capitol was invaded by insurrectionists. But the outrageousness of the fake elector ploy attracted some subsequent attention. The actual certificates for the electors were among the materials sent by the National Archives to the House Select Committee on January 6 after the U.S. Supreme Court batted down Trump’s efforts to block the release of the information. Subsequently, the committee sent subpoenas to the chairs and secretaries of all seven fake electoral slates expressing interest in the “planning and coordination” of the whole scheme, which points toward a Team Trump culprit.

In the meantime, the attorneys general of Michigan and New Mexico did their own investigations of fake electors and referred the cases to the U.S. Department of Justice in light of possible violations of federal laws. And now, word is the Feds are looking seriously into that possibility. While DOJ won’t say much about where they might go, NBC News found some legal beagles willing to speculate:

Edward Foley, an election law expert at the Moritz College of Law at Ohio State University, said the government generally should not criminalize the act of sending a document to Congress, which he said is the kind of political expression protected by the First Amendment. But he said charges might be appropriate if it turns out there was a coordinated effort to send in the alternative slates.

Again, that would point to a Team Trump coordinator, possibly though not necessarily Giuliani. And the charge?

The filings could be important evidence if prosecutors are investigating charges of conspiracy to defraud the federal government, said Joyce Vance, a former U.S. attorney in Alabama. Federal law makes it a crime to obstruct the lawful functions of the U.S. government through fraud and deceit.

Perhaps this all represents a shot across the bow to give pause to anyone thinking about pulling the fake elector scam in the future. Or maybe either the Justice Department or the January 6 committee is going to hold the scammers responsible. But it’s not simply going to be forgotten as a dirty trick gone wrong.

Could Trump’s Fake Electors Be Charged With a Crime?