Michigan Legal professional Common Dana Nessel this week announced legal expenses towards 16 Republicans who introduced themselves because the state’s electors after the 2020 presidential election. Brookings Establishment Senior Fellow Norman Eisen and New York College regulation professor Ryan Goodman responded with a New York Occasions essay headlined “Trump’s Conspirators Are Going through the Music, Lastly.” As Eisen and Goodman see it, the Michigan defendants participated in a legal conspiracy to overturn Joe Biden’s victory by posing because the state’s true electors.
The defendants, after all, don’t settle for that narrative. As they see it, their conduct was a legit means of preserving objections to a contested election, grounded in historic precedent and the recommendation they obtained from Donald Trump’s attorneys. The “contingent” Trump electors in Georgia, who’ve been knowledgeable that they’re targets of an identical investigation by Fulton County District Legal professional Fani Willis, make the identical primary argument. Press protection of those investigations, which routinely describes the targets as “faux” or “bogus” electors, tends to dismiss that argument out of hand. However it’s price a more in-depth look, as a result of it’s central to the query of whether or not prosecutors can show that would-be electors who adopted the Trump marketing campaign’s recommendation acted with legal intent.
One goal of the Fulton County investigation, which is anticipated to yield indictments subsequent month, is David Shafer, former chairman of the Georgia Republican Get together. On December 14, 2020, the deadline for Electoral Faculty votes, Shafer joined 15 different Republican nominees in signing certificates that recognized them as Georgia’s “duly elected and certified” electors, opposite to the outcomes that had been repeatedly confirmed by Georgia Secretary of State Brad Raffensperger and Gov. Brian Kemp (each Republicans who supported Trump’s reelection). Republican nominees for the Electoral Faculty did basically the identical factor in six different battleground states, together with Michigan.
On its face, this appears like a blatant rip-off, geared toward justifying congressional objections to Biden’s electors and delaying or blocking ratification of his victory. However in line with Shafer, he acted based mostly on what he believed to be sound authorized recommendation from Trump’s attorneys.
In a March 26 letter to Willis, Shafer’s attorneys cite a December 10, 2020, e-mail from Alex B. Kaufman, one of many attorneys who represented Trump and Shafer in a state lawsuit, Trump v. Raffensperger, difficult the end result of the presidential election in Georgia. The CC line contains 4 different Trump attorneys: Cleta Mitchell, Kurt Hilbert, Ray S. Smith III, and Chris Gardner.
“Primarily based upon the developments each in our state case in addition to within the Supreme Court docket,” Kaufman says, “I’m reconfirming the significance and our collective recommendation that our slate of delegates meet on December 14th (per the Federal Deadline) and solid their ballots in favor of President Trump and particularly per the Georgia Election Code. It’s important that our delegates act and vote within the actual method as if Governor Kemp has licensed the Presidential Contest in favor of President Trump. I imagine that that is nonetheless probably the most conservative plan of action to protect the most effective probability for Georgia to finally assist the President’s re election. As we mentioned within the 1960 Hawaii case, the convening of our electors and their casting of ballots in favor of President Trump within the particularly required type and method is important to be able to protect our state and social gathering’s say within the presidential contest.”
The “1960 Hawaii case” refers to a dispute over whether or not Richard Nixon or John F. Kennedy gained the state in that yr’s presidential election. Nixon initially was declared the winner by a razor-thin margin of 140 votes. Democrats challenged that consequence in courtroom, and a recount finally awarded Hawaii’s three electoral votes to Kennedy. Within the meantime, nonetheless, Electoral Faculty nominees from each events convened on December 19, 1960, the deadline that yr. Each teams signed certificates figuring out themselves as “duly and legally appointed and certified” members of the Electoral Faculty, and each units of certificates had been despatched to Washington, D.C.
On January 4, 1961, a state choose, Ronald Jamieson, retroactively validated the Democrats’ seemingly untimely certificates. In response to Jamieson’s ruling, it was essential that the electors had convened on December 19, despite the fact that their certificates contradicted the official outcomes on the time. Two days later, whereas overseeing the congressional tally of electoral votes as vice chairman, Nixon acknowledged that he had obtained three units of certificates from Hawaii: the dueling December 19 slates, plus a subsequent Democratic slate that Hawaii’s governor licensed after the recount. Nixon concluded that the third slate, comprised of the identical Democrats who had signed the December 19 certificates, “correctly and legally portrays the information with respect to the electors chosen by the individuals of Hawaii.”
In response to Kaufman et al., Shafer can be following that instance by presenting himself as a Georgia elector. In each circumstances, they argued, a pending authorized problem made the end result of the election unsure, and one of the best ways to take care of that uncertainty was by submitting a listing of “contingent” Republican electors who may very well be acknowledged by Congress ought to the problem succeed.
In the long run, Trump and Shafer voluntarily dropped their lawsuit, which alleged “vital systemic misconduct, fraud, and different irregularities,” the day after Congress ratified Biden’s victory. The lawsuit’s claims—which Raffensperger totally rebutted in a January 6 letter to a few Republican members of Congress who deliberate to lodge objections to Georgia’s electoral votes—subsequently had been by no means examined in courtroom. The timing of the case, which was filed on December 4, suggests it could have been little greater than a pretext for the “contingent” electors plan.
Shafer nonetheless argues that his reliance on Kaufman et al.’s authorized recommendation exhibits he lacked legal intent. His attorneys provide a number of items of proof to assist that protection.
The letter to Willis notes that “two attorneys who participated as contingent Republican presidential electors, Brad Carver and Daryl Moody,” confronted Georgia State Bar complaints because of this. The State Disciplinary Board “reviewed the conduct of the contingent Republican presidential electors” and dismissed the complaints as unsubstantiated. In Carver’s case, the board famous that he “relied upon representations” that “it was essential for the Republican nominees for Presidential Elector to fulfill and solid votes in order that their then-pending election problem wouldn’t be rendered moot.” The board subsequently “didn’t discover possible trigger to imagine that Mr. Carver acted with the intent to mislead.”
The “representations” on which Carver relied leaned closely on the Hawaii precedent, and so does the letter to Willis from Shafer’s attorneys. “Two of the three Democratic presidential electors who executed the Hawaii electoral paperwork,” they notice, “had been retired federal judges and famous constitutional students.” And much from rebuking them for misrepresenting their standing on December 19, “Decide Jamieson hailed them as heroes, describing their assembly as a critically vital step that preserved their capability for his or her presidential ballots to be counted after the Democrats prevailed of their election contest and the Governor licensed the Democratic contingent presidential electors as having been elected.”
Distinguished Democrats have echoed that judgment, depicting the Hawaii electors’ conduct as a mannequin for dealing with such conditions.
When the U.S. Supreme Court docket intervened in Florida’s recount after the 2000 presidential election, Justice John Paul Stevens famous the Hawaii instance in his dissent. “In 1960,” Stevens wrote, “Hawaii appointed two slates of electors and Congress selected to depend the one appointed on January 4, 1961, nicely after the Title 3 deadlines.” That precedent, he argued, confirmed that “nothing prevents the bulk, even when it correctly discovered an equal safety violation, from ordering aid acceptable to treatment that violation with out depriving Florida voters of their proper to have their votes counted.”
The day after the Court docket’s resolution in Bush v. Gore, Rep. Patsy Mink (D–Hawaii) criticized the ruling on related grounds, arguing that “the [Hawaii] precedent of 40 years in the past suggests the means for resolving the electoral dispute in Florida.” She mentioned “each slates of electors” might “meet on December 18 and ship their certificates to Congress,” after which Florida’s governor might ship Congress “a subsequent certificates of election” based mostly on the recount.
In an essay revealed every week and a half earlier than the 2020 presidential election, authorized scholar Michael L. Rosin and civil rights lawyer Jason Harrow equally argued that what occurred in Hawaii “ought to function a mannequin for an in depth election this yr or in any yr.” They agreed with Jamieson that the Democratic slate’s December 19 assembly was essential: “Thankfully, as a result of each slates of electors had voted on the right day, there was nonetheless an opportunity to inform Congress which slate was truly appointed by the voters.”
Just a few days earlier than the 2020 election, former CNN host Van Jones and Harvard regulation professor Larry Lessig likewise praised the answer that Hawaii reached in 1960. “Though Richard Nixon mentioned it shouldn’t be a precedent, what he did in 1960 needs to be the mannequin for this election in 2020,” they wrote. Concerning the Kennedy electors, Jones and Lessig famous that “the one means their votes might matter was in the event that they had been solid on the day that Congress had set.”
George Mason regulation professor Todd Zywicki, who gave congressional testimony in regards to the legal guidelines governing presidential elections and transitions within the midst of the Bush-Gore dispute and subsequently revealed a law review article on the topic, quotes these approving feedback in a declaration that Shafer’s attorneys introduced to Willis. Zywicki agrees that Kaufman et al.’s authorized recommendation to Shafer was sound:
It’s my knowledgeable opinion that the contingent Republican Presidential Electors in Georgia in 2020 acted in an inexpensive, correct, and lawful method. Furthermore, it’s my opinion, shared by a consensus of consultants who’ve thought-about the problem over the previous a number of many years, that the casting of contingent electoral votes shouldn’t be solely cheap, correct and lawful, however the most effective method obtainable to allow the decision of election contests whereas preserving the power of a state to have its electoral votes counted by Congress ought to a judicial contest change the end result of the election. In conclusion, it’s my opinion that the actions taken by the contingent Georgia Republican Presidential Electors had been lawful, cheap, correct, and essential, and any suggestion that they may very well be “legal” ignores authorized and historic precedent, the reasoned recommendation of authorized counsel obtained, and the plain language of the Structure, federal and Georgia regulation.
In line with what Trump adviser John Eastman said on the time, Shafer maintains that his function as a “contingent” elector was restricted to creating positive that an alternate slate can be obtainable ought to Trump’s lawsuit show profitable. “Media studies have instructed that sure excessive degree members of then President Trump’s authorized crew (John Eastman, Rudy Giuliani, et al.) might have developed subsequent plans to, amongst different issues, try to influence Vice President Pence to depend these contingent presidential electoral votes because the legitimate electoral votes even within the absence of any profitable judicial ruling in President Trump’s favor,” Shafer’s attorneys say. “Mr. Shafer was not concerned in and had no data of any such plans. In response to media studies, these plans weren’t even conceived till a number of weeks after the Republican electors had solid their contingent electoral votes on December 14, 2020.”
It’s nonetheless potential, after all, that Shafer acted in unhealthy religion, each in becoming a member of Trump’s lawsuit and in citing it to justify presenting himself as an elector. Perhaps he didn’t actually imagine Trump’s unsubstantiated claims about “systemic misconduct, fraud, and different irregularities” adequate to alter the end result of the election in Georgia. Perhaps he knowingly participated in a fraud geared toward reversing Biden’s victory, or at the least casting doubt on its legitimacy.
As with the potential federal charges towards Trump himself, the sincerity of defendants who embraced the stolen-election narrative is legally relevant, open to query, and troublesome to disprove. Did the “contingent” electors cynically manipulate the system by questioning the election outcomes based mostly on claims they knew to be false? Or did they pursue a treatment they thought was authorized based mostly on objections they seen as legitimate? Each interpretations are believable, which is able to current an issue for prosecutors with the burden of proving their case past an inexpensive doubt.
