Federal prosecutors have made high-profile moves in the past several weeks aimed at a specific aspect of Trump’s effort to subvert the results of the 2020 election.
It’s the alternate electors, the effort to have states that Biden won vote for Trump in the Electoral College by swearing in false delegates from each state. Now, DOJ is running a high-profile investigation of the effort, issuing subpoenas to GOP activists involved in the plot.
The scheme involved dozens of Trump-aligned activists, who signed and submitted certificates to the federal government purporting to be the real electors for their states.
The problem is that, in the seven states in which the Trump electors claimed to have been appointed, Trump did not win. Biden won, and the state legislatures convened to approve his win.
The fake electors were, however, intended to play a crucial role on Jan. 6: in one version of a Trumpworld plan, Congress was supposed to vote to certify the fake, pro-Trump electors, and not Biden’s.
But of the all the wild events that unfolded in the run-up to and on Jan. 6, why do prosecutors seem to be focused here? In part, former federal prosecutors and election law experts told TPM, it may be because the plan relied on a simple lie that could have run afoul of federal law: falsely stating that the pro-Trump electors had, in fact, been named by their states.
How it started
Slates of fake, pro-Trump electors voted in seven states that Biden won in 2020, purporting in most cases to be the real electors for the states.
Those votes came after the Trump campaign had lost dozens of lawsuits seeking to overturn the results of the election, and after the states had appointed pro-Biden electors to represent Biden’s win in the popular vote in those states.
The Jan. 6 Committee’s investigation has revealed that effort to be the product of attorneys working for the Trump campaign, including John Eastman and Kenneth Chesebro.
But it wasn’t until March 2021 when American Oversight, a non-profit, got ahold of copies of the fake electoral vote certificates themselves that the investigation appeared to begin moving ahead.
Certificates signed by actual electors typically vary widely between each state, but these fake certificates were conspicuously similar. Some legal commentators have taken this to suggest that they were copied from a shared template.
But they also differed in at least one key respect. Five of the states — Wisconsin, Nevada Georgia, Arizona, and Michigan — included language saying that the false electors were voting to create their states’ “duly appointed electors.”
But two other states — Pennsylvania and New Mexico — added language to saying that the electoral votes would only be counted as legitimate if the courts ruled that their election had been invalid.
Multiple state attorneys general began to examine the false elector slates in 2021. In January 2022, the attorneys general for Michigan and New Mexico referred their cases to the DOJ.
Later that month, Deputy Attorney General Lisa Monaco confirmed that the DOJ was investigating the matter in an interview with CNN, saying that prosecutors would “follow the facts and the law, wherever they lead, to address conduct of any kind and at any level that is part of an assault on our democracy.”
Why the electors?
Former federal prosecutors told TPM that the fake certificates could present the DOJ with easily prosecutable charges to bring.
“As long as you’ve got the fake piece of paper, it anchors two different crimes: a false statement, and a scheme to defraud the U.S.,” Harry Litman, a former U.S. Deputy Assistant Attorney General, told TPM.
The crime would involve both creating the fake document, and submitting it to the government — in this case, the National Archives.
David Becker, director of the Center for Election Innovation and Research, likened it to claiming to be a billionaire versus representing to a bank that you are, in fact, a billionaire in order to receive a loan.
“Everyone is entitled to a day of dress up,” Becker said, referring to the Trump electors’ decision to call themselves the state’s official electors. “It’s that they then presented themselves as duly certified electors to the National Archives where it becomes fraud.”
The electors themselves appear to have played a critical role in the Trump campaign’s planning for Jan. 6, per the House Jan. 6 Committee.
Trump campaign attorneys, documents show, helped coordinate the electors. In some cases, state GOP organizations said that the fake elector slates had been called “at the request of the Trump campaign.”
An alleged Microsoft Word template
Other evidence has emerged to suggest that the Trump campaign helped coordinate the false electors, too.
On Tuesday, a Fulton County, Georgia grand jury investigating the scheme said in a subpoena application that Kenneth Chesebro, a Trump campaign attorney in 2020, provided a “Microsoft Word template” for the state’s fake elector meeting. The Jan. 6 Committee recently showed footage from interviews with top Trump campaign officials in which they directed questions about the scheme to Chesebro and Giuliani.
Litman argued that if the electors were all coordinated by someone higher up in the Trump campaign, it could create a domino effect.
The individual electors, he said, may be on the hook for making a false statement, though the liability could go upwards.
“It’s tailor-made for cooperators,” he said.
It’s been more than 18 months since Jan. 6. The latest round of subpoenas to the fake electors — along with shocking public testimony released by the Jan. 6 Committee — has raised questions about the pace of the DOJ’s investigation, and about whether the fake elector probe could really be sufficient to encompass the scale of wrongdoing.
Randall Eliason, a former federal prosecutor, suggested to TPM that it didn’t have to.
“It seems like one of many different tentacles of the attempt to overturn the election,” he told TPM.