Real reason 'fake electors' charged years later - to get Trump? Legal analysis

Eliyahu Tulshinski

August 8, 2023

Republicans in seven states acted as alternative electors to the electoral college in the 2020 presidential election in order to preserve the chance to represent their respective states in case unresolved litigation in those states would lead to a ruling that President Trump won their state. Such a “contingent” elector strategy had been utilized in a previous election without issue and the 2020 contingent electors followed legal advice on how to do so.

Why now?

Now, two-and-a-half years after their declarations, prosecutors in Michigan have charged all 16 electors from the state's alternative Republican slate with eight counts of fraud-related charges. And in Georgia, CNN reported that, “prosecutors say all 16 fake Trump electors are targets in criminal probe.” [Emphasis added].

Reporting or swaying?

Why is CNN promoting the prosecution of electors by labeling them “fake” when they openly acted as contingent electors pending litigation? Do prosecutors and the media have a bigger target in mind?

“Show me the man and I’ll show you the crime”

The Oxford Eagle presents the communist way of enforcing the law.

Lavrentiy Beria, the most ruthless and longest-serving secret police chief in Joseph Stalin’s reign of terror in Russia and Eastern Europe, bragged that he could prove criminal conduct on anyone, even the innocent.

“Show me the man and I’ll show you the crime” was Beria’s infamous boast. He served as deputy premier from 1941 until Stalin’s death in 1953, supervising the expansion of the gulags and other secret detention facilities for political prisoners … [Emphasis added].

The outlet goes on to contrast Beria's “justice” with that of the United States of America.

Beria targeted “the man” first, then proceeded to find or fabricate a crime. Beria’s modus operandi was to presume the man guilty, and fill in the blanks later.

By contrast, under the United States Constitution, there’s a presumption of innocence that emanates from the 5th, 6th, and 14th Amendments, as set forth in Coffin vs. U.S. (1895).

Such a distinction may no longer be valid.

Charges for fake votes

The 2020 presidential election saw allegations of widespread voting fraud, much of it seemingly caught on camera. And hundreds of thousands of potentially illegal votes were evidenced in Dinesh D’Souza’s “2000 Mules” documentary and by forensic experts as well as activists.

Each illegal vote, of, course cancels out the choice of a legal voter, thus disenfranchising them in violation of the Voting Rights Act. One might thus expect to see a slew of prosecutions for fraudulent signatures, addresses and registrations, manufactured ballots, ballots by illegal aliens and the deceased, multiple votes by individuals, payments for votes, and other infractions documented by investigators. They would be mistaken, as prosecutions have been rare.

But now, nearly three years after the election, new prosecutions are gearing up for allegedly fake votes. Not fake votes submitted during the election but, rather, votes submitted by “alternate electors” after the election, when officials were selected to represent each state as its electoral slate.

"It's OK when we do it"

The initial vote count after the 1960 U.S. presidential election showed Richard Nixon defeating John F. Kennedy by 141 votes in the State of Hawaii. Democrats did not concede the state though, as dozens of precincts had mismatches between the total votes cast and the combined total votes for the two candidates.

A recount was ordered but was far from complete by December 13th, the deadline for a slate of electors to be certified in accordance with the Electoral Count Act, so only the Republican slate was certified by the governor. Likewise, the December 19th deadline for those electors to cast their votes in the electoral college arrived while the recount, and related litigation, were still ongoing.

Nonetheless, an "unofficial" slate of Democrat electors met at the same place and time as the Republican slate and simultaneously cast their votes in order to preserve the chance to have their electoral college votes count should the recount and litigation go in their favor.

The end is irrelevant

As it turned out, Kennedy won the recount by 115 votes, the judged sided with him and Congress accepted the Democrat electors' votes while discarding the Republican ones at the urging of none other than Nixon himself who, as Dwight Eisenhower's vice-president, presided over the joint session of Congress in which the votes were tallied. This ending was irrelevant to the 1960 election, as Kennedy would have easily won without Hawaii's three votes, as well as to future elections, since the whole point of preserving the votes with an alternate slate of electors is to do so when the final outcome of a contested state's results is not known by the deadline for submitting electoral votes, regardless of whether the challenge is based on evidence of fraud or merely of miscounts.

Ignoring precedent

On the basis of the Hawaii precedent, which went unchallenged for decades, Republican electors listed themselves as alternate electors and voted for President Trump in seven states which Joe Biden was alleged to have won by small margins. Some, like Georgia Republican Party chairman David Shafer, obtained expert legal opinions approving of the legality of the process before submitting their votes, as Shafer's attorneys explained in a letter to the Georgia prosecutor who named him as a criminal investigation target:

[V]ery experienced and reputable attorneys provided explicit legal advice to Mr. Shafer and the other electors that, based on the existing law and the Hawaii precedent, their actions were entirely proper and lawful.

Under these circumstances, any criminal charge against Mr. Shafer would not only violate his fundamental First Amendment rights, but it would also be the type of disfavored “novel theory” of prosecution that directly violates his state and federal due process guarantees.

One such expert is law professor Todd Zywicki, who was quoted in the letter to the prosecutor.

[A] widely recognized scholar on Presidential transitions … Professor Zywicki furthermore explains that the casting of contingent electoral votes “is not only reasonable, proper and lawful, but the best approach available to enable the resolution of election contests while preserving the ability of a state to have its electoral votes counted by Congress should a (pending) judicial contest change the outcome of the election."

Unswayed, the day after Fulton County District Attorney Fani Willis received Shafer's attorneys' letter, a court filing by counsel for the DA backed the prosecution of each of the electors.

Each of the sixteen persons who signed the unofﬁcial Elector Certiﬁcate ultimately submitted to the National Archives received a similar target letter, alerting that person both that his testimony was required by the special purpose grand jury and that he was a target of the investigation … The grand jury’s interest in the creation and submission of the certiﬁcate is well within the appropriate scope of its investigation …

Misleading

Michigan's Attorney General released a statement that the felony charges against the alternate electors in their states resulted from “covert” actions by the electors.

These defendants are alleged to have met covertly in the basement of the Michigan Republican Party headquarters on December 14th, and signed their names to multiple certificates stating they were the "duly elected and qualified electors …

A Twitter user notes that this description of the defendants' behavior as “covert” in a “basement” is contradicted by the actions of the defendants themselves, as seen in an embedded video.

Regarding the indictment of the 16 GOP electors, the AG’s statement makes it sound like a secret plan in the dead of night. Here are those same “conspirators” showing up to the Michigan Senate the following morning, in broad daylight, with an attorney and news cameras in tow.

The Gateway Pundit describes the tweeted video as “showing pretty much everything the CNN ‘reporter’ said to bolster [Michigan] Democrat AG Dana Nessel’s case is either an outright lie or mostly false.”

Real Target

NPR reported on the close timing of developments in the investigation of the electors and that of President Trump himself.

The charges in Michigan came hours after Trump revealed that he received word that he's a target of a federal grand jury probe investigating his efforts to overturn the 2020 election.

The AP found the timing to be more than coincidental, while also using language designed to sway.

The role that fake slates of electors played in Donald Trump's desperate effort to cling to power after his defeat in the 2020 election is at the center of a four-count indictment released against the former president Tuesday. . . .

The 45-page indictment states that when Trump could not persuade state officials to illegally swing the election in his favor, he and his Republican allies began recruiting a slate of fake electors in seven battleground states — Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania and Wisconsin — to sign certificates falsely stating that he, not Democrat Joe Biden, had won their states. [Emphases added].

After acknowledging that a campaign attorney wrote a memo in November 2020 that “advocated for Trump supporters in Wisconsin to meet and cast their votes for him, in case the campaign's litigation in the state succeeded,” and noting that the alternative votes were never counted, AP nonetheless claimed that Trump had planned to have those votes counted regardless of the outcome of the litigation.

While those certificates were ultimately ignored by lawmakers, federal prosecutors say it was all part of "a corrupt plan to subvert the federal government function by stopping Biden electors' votes from being counted and certified." . . .

Giuliani, according to the indictment, "falsely assured" them that their certificate would only be used if Trump's litigation succeeded …

Ultimately, only the legitimate election certificates were counted, despite Trump's effort to create what prosecutors called a “fake controversy.” [Emphases added].

Unrestricted duplicity

Twitter user Kanekoa The Great noted the stunning reversal of the media's attitude toward attempts to influence the electoral college vote from when their preferred candidate was not the presumed winner, including a Washington Post headline, “The Constitution lets the electoral college choose the winner: they should choose Clinton.”

In 2016, Democrats, Hollywood celebrities, and corporate news outlets urged electors to vote against President-elect Donald Trump … The Washington Post … argued that Republican electors had the constitutional right and duty to switch their votes from Trump to Hillary Clinton. This sparked a movement supported by … several Hollywood celebrities. While they only convinced a few electors, it's important to recognize the double standard of justice in the treatment of Democrats and Republicans when objecting to elections. [Emphasis added].

“A few electors” even went ahead and changed their votes to Clinton, but none were targeted or charged by prosecutors, something in which Beria might take pride.

See our previous articles on selective law enforcement where we discuss, “Three Felonies A Day: How the Feds Target the Innocent” and much more: