It’s Long Past Time to Prosecute Phony GOP Electors

While the story of phony electoral certificates submitted to Congress by Republican officials in five states as part of a failed attempt to overturn the results of the 2020 presidential election has caught on in a big way over the last week, it isn’t new. The phony certificates were submitted nearly a year ago and, as early as March 2, 2021, American Oversight published the documents themselves after obtaining them through the Freedom of Information Act.

Actually, there weren’t just five states in which, despite Biden having won there, Republican pseudo-electors submitted Electoral College certificates in support of Trump. There were seven. The Republicans in two of those states, however, hedged their bets. The New Mexico certificate was submitted “on the understanding that it might later be determined that we are the duly elected and qualified” electors (emphasis added). The Pennsylvania certificate was similarly qualified “on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors” (emphasis added).

The submissions from those two states deserve the benefit of the doubt. They can and should be read as contingent, belt-and-suspenders backup plans to make sure that Trump electors were identified in the event, however unlikely, that the courts reversed the election results in their states.

Not so the other five states. The phony Trump electors from each of the other five states—Arizona, Georgia, Michigan, Nevada and Wisconsin—certified that they were in fact the “duly elected and qualified Electors for President and Vice President of the United States of America” from their respective states.

Biden, not Trump, had won the elections in each of those states. In each of those states, Biden’s victory had been certified by the officials given clear statutory authority to do so. In Michigan, for instance, that authority resides with the governor: “the governor shall certify, under the seal of the state, to the United States secretary of state, the names and addresses of the electors of this state chosen as electors of president and vice-president of the United States.” In Arizona, the secretary of state is charged with that responsibility. And so on: The officials charged with determining the results of presidential elections in all five states had certified the election results showing that Biden, not Trump, had won their state’s electoral votes.

In short, the individuals who signed the documents certifying that they were the “duly elected and qualified” electors from their states were not. Their certificates were fraudulent, full stop. No doubt or ambiguity about it.

Podcast · January 17 2022 Josh Barro: Obsessing Over Democracy Won't Save It For the Democrats to win, they need to focus on what normal people think about — which is NOT Jan. 6 and the potential e...

The fraudulent scheme did not end with the signatures of the phony electors. Far from it. In each of the five states, the would-be electors transmitted the phony certificates to federal officials as their state’s “electoral votes for President and Vice President.” Again, false.

It is astonishing that more than a year after the certification of the 2020 presidential election, public attention has only now begun to focus intensely on these phony GOP state certifications. They are not just deplorable political acts of subversion. They are criminal acts. As laid out by Charlie Sykes over the weekend, the fake certificates are part of a much broader conspiracy by Donald Trump and others to corruptly obstruct, influence or impede the electoral vote count proceedings within the meaning of 18 U.S.C. § 1512(c)(2).

The signing and transmission of the phony certificates were also standalone crimes in and of themselves, committed in broad daylight and easily prosecuted.

State and federal law enforcement should have been all over this for almost a year now. Worse, even for those inclined to think “better late than never,” it’s still not clear that they are on it now.

Start with state law. As you can imagine, every state in the union has criminal laws prohibiting all forms of election fraud. For present purposes, one example will suffice: In Arizona, a person who knowingly forges or counterfeits returns of an election is guilty of a “class 3 felony,” the minimum penalty for which is two and a half years in prison.

But the real action here is—or should be—at the federal level. These phony certifications were not isolated, one-off events. They were highly coordinated. A single glance at the five phony certificates shows that they are nearly identical in format and text, right down to the fonts. The strong implication: Somebody somewhere was running this show.

The involvement of top Trump administration and campaign officials in this effort looks deep and wide. It’s the job of the January 6th House committee and (hopefully) the Department of Justice to put together all that information, and presumably journalists will continue to dig into it. But as of now, it sure looks like Mark Meadows, Trump’s chief of staff, was right in the middle of election-fraud effort. A text released last month by the January 6th Committee from an unnamed “lawmaker” (later identified by CNN as Trump’s former energy secretary, Rick Perry) to Meadows said:

HERE’s an AGRESSIVE STRATEGY: Why can t the states of GA NC PENN and other R controlled state houses declare this is BS (where conflicts and election not called that night) and just send their own electors to vote and have it go to the SCOTUS.

Sound familiar? Meadows seems to be up to his neck in this. Perhaps that’s why there’s speculation afoot that Meadows may end up asserting his Fifth Amendment rights to avoid testifying.

Assertions of Fifth Amendment rights aside, there’s plenty for anyone who coordinated or participated in this fraudulent scheme to worry about.

The biggest federal gun in the arsenal, seditious conspiracy, probably won’t work here. That statute uses the phrase “by force” four times. It was thus perfectly understandable that the Department of Justice recently charged seven members of the Oath Keepers who conspired to forcibly obstruct the peaceful transfer of power on January 6. It is theoretically possible that the phony elector scheme might one day be viewed as simply one piece in a larger conspiracy to storm the Capitol—get the phony certificates of electors and use them as a pretext to halt the process by force and intimidation—but right now that seems like a stretch. The phony certificate scheme, in and of itself, employed fraud and deceit, not force.

However, there is one federal criminal statute that appears to cover this situation specifically and squarely. Under 52 U.S.C. § 20511, it is a crime punishable by a fine or up to five years in prison—or both—if any person:

knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by . . . the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held. [Emphasis added.]

There is some debate in the academic community about whether the votes of presidential electors are “ballots” as that term is used in this statute. The reference to “ballots” may be intended to refer only to the popular vote, not the votes cast by the electors, the argument goes.

But the statute doesn’t say that. It just says “ballots.” The common understanding is that a ballot is simply the mechanism by which votes are cast. Moreover, the Constitution explicitly and repeatedly refers to the votes of presidential electors as “ballots.” Here’s the applicable language from the Twelfth Amendment:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President. [Emphasis added.]

Once the issue of whether presidential electors cast their votes by “ballots” is resolved—if there really is such an issue—the rest seems easy:

The phony electors’ ballots were clearly “materially false, fictitious, or fraudulent under the laws of the State in which the election is held.” As discussed above, Biden, not Trump, was the duly elected and qualified winner in each of the five states.

The fraudulent ballots were “cast.” They were fully executed and transmitted to the National Archives, Congress, and the federal judiciary, in imitation of the process set forth in 3 U.S.C. §§ 10 and 11 for the casting of legitimate ballots.

The phony electors clearly knew the ballots were false. The whole damn world knew that Biden, not Trump, had been certified as the winner in each of their respective states. That’s why this whole plot was hatched in the first place.

By casting electoral ballots that they knew were not for the duly elected and qualified winners in their states, the phony electors not only deprived the residents of their states of “a fair and impartially conducted election process,” they effectively sought to nullify the entire state election process.

These certificates weren’t just provisional, backup measures in case something changed. The Pennsylvania and New Mexico certificates showed how to make that clear in plain English. The phony certificates from the other five states purported to list the “duly elected and qualified” electors and were transmitted to the federal government as the state’s official electoral votes, some even on letterheads bearing the state seal.

Other federal criminal statutes also may be applicable.

The broadest federal statute that may apply is 18 U.S.C. § 371—“Conspiracy to commit offense or to defraud United States.” That statute says that if two or more persons conspire to defraud the United States or any agency thereof “in any manner or for any purpose,” and perform “any act” to effect the object of that conspiracy, each person shall be fined or imprisoned for not more than five years, or both. As Harvard professor Laurence Tribe noted in a Boston Globe op-ed last week, under the Supreme Court ruling in Tanner v. United States, Section 371 applies to “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” Conspiring to file fraudulent election returns in order to overturn a presidential election, and the actual transmittal of those fraudulent documents to the federal government, easily meets that standard.

It is also a crime under 18 U.S.C. § 1001, punishable by up to five years of imprisonment, to file any “false, fictitious, or fraudulent statement or representation” in any matter within the jurisdiction of the federal government, or to use a “false writing or document knowing the same to contain any materially false, fictitious, or fraudulent” information.

And specifically regarding elections, it is crime under 52 U.S.C. §10307 for any person “acting under color of law” to “willfully fail or refuse to tabulate, count, and report” the vote of any person qualified to vote. This would seem to apply to any state officials who, acting under color of law—that is, acting in some official capacity—were involved in transmitting the phony electoral certificates to the federal government. By purporting to certify the election of a person who was not duly elected, such officials would be willfully seeking to disenfranchise millions of individuals who were qualified to and did vote.

If federal prosecutors are already investigating these crimes, they have done a bang-up job of keeping it secret. It has been a year since the phony certificates came to light, and the criminal case to be made is not complicated.

While it may be understandable that the Department of Justice needs to conduct a sweeping, time-consuming investigation to fully comprehend the depth and breadth of the larger conspiracy to overturn the 2020 election, no complex investigation is needed to prosecute the specific, standalone crimes committed by those who signed and transmitted the fraudulent elector certificates. It’s not as if we don’t know the identity of the culprits—the signers of the fraudulent certificates are all identified on the face of the documents. The individuals who transmitted them to the federal government signed their names to the transmittal memoranda. It’s all right there, wrapped up in a nice, tidy package that can be cut and pasted straight into an indictment.

It’s as if the feds had perfect audio and video recordings of a heist, plus signed confessions.

Robust prosecution of these cases is vital. As I wrote earlier this month, between now and the 2024 election, the battle for democracy will be won or lost in the states. Nothing in either of the voting rights bills currently pending before Congress would inhibit partisan state officials, acting under color of law, from attempting to overturn popular elections in their states.