Fake electors case may be lengthy affair
Proving intent of Arizona officials will be key
A far-reaching indictment delivered by an Arizona grand jury last week names 18 GOP leaders and top aides to former President Donald Trump and exposes each to possible prison time if they are convicted.
The indictment alleges the slate of Republicans, sometimes known as fake electors, and the Trump aides engaged in a conspiracy aimed at “preventing the lawful transfer of the presidency of the United States, keeping President Donald J. Trump in office against the will of Arizona voters, and depriving Arizona voters of their right to vote and have their votes counted.”
But the felony charges announced on Wednesday by Democratic Arizona Attorney General Kris Mayes are the starting point of the criminal justice process. While some of the defendants are scheduled to make first court appearances on May 21, resolution could be years out. On Friday, Mayes’ office released a copy of the indictment confirming the names of five Trump lawyers and advisers charged. Their names were previously redacted because they had not been served notice of the charges against them. There are two others yet to be officially named in the document, but those individuals have been identified by The Arizona Republic and include former New York City Mayor Rudy Giuliani and former Trump chief of staff Mark Meadows.
In interviews with The Republic, lawyers not affiliated with the case broke down what Mayes’ deputies will have to prove to win convictions. Proving the intent of the electors will be key, they said.
What was the electors’ intent?
The 58-page indictment includes background information about Trump’s pressure campaign on GOP leaders in Arizona, the charges and an explainer of how the Electoral College works.
In four pages, prosecutors lay out seven lawsuits that challenged the result of the 2020 election, none of which were successful. Throughout the document, prosecutors cite the false electors’ own words – in text messages and social media posts – to make their case.
Mark Kokanovich, a former federal prosecutor and special counsel who works on government investigations, pointed to one text message exchange documented in the indictment. In that, former Trump campaign lawyer Kenneth Chesebro messaged Arizona attorney Jack Wilenchik about an appeal an election lawsuit. Former Arizona Republican Party Chairwoman Kelli Ward and another co-conspirator “are concerned it could appear treasonous for the AZ electors to vote on Monday if there is no pending court proceeding that might, eventually, lead to the electors being ratified as the legitimate ones,” Chesebro wrote.
Early indications of a defense
The indictment’s main allegation centers around the creation of a certificate signed by 11 Arizonans who claimed they were the “duly elected and qualified” electors for Trump, even though Trump didn’t win the election.
Lawyers for the defendants and, in some cases, email and social media posts in the indictment show the GOP electors’ potential defense. Turning Point USA executive Tyler Bowyer, for instance, wrote, “This just gives potential ground to not accept electors from states with competing electors” after signing the certificate.
Dennis Wilenchik, who represents certificate-signer Jim Lamon, said his client took advice from “lawyers from back East” that the certificate would be used contingent on the results of the 2020 election being changed. State Sen. Jake Hoffman, a Queen Creek Republican who is one of the 11, previously told a reporter in 2021 the electors “felt it appropriate to provide Congress and the Vice President with dueling opinions.”
Hoffman’s lawyer, Harmeet Dhillon of the Trump-aligned firm Dhillon Law Group, said in an interview on Arizona talk radio station KTAR last week that prosecutors would not be able to prove her client’s intent.
“There is no fraud because nobody was misled, no outcome was changed,” Dhillon said. “There is no forgery, which ... is a crime that requires specific intent to do something that is illegal, and there is literally not going to be any evidence that these prosecutors can produce ... that shows that my client, or any client, thought they were doing anything wrong. They were following the advice of a lawyer for President Trump.”
What are the alleged crimes?
Exactly what prosecutors will have to prove to win guilty verdicts is partially outlined in model instructions that lawyers give to jurors and are based on state law.
On the conspiracy count, the indictment alleges one or more of the defendants agreed to commit an underlying offense, which could include fraud, forgery, tampering with a public record, or others. Conspiracy requires proof that “the defendant knew that such conduct was a crime,” according to the model jury instructions.
There are also two counts of fraud. The first alleges someone “knowingly obtained any benefit by means of false or fraudulent pretenses, representations, promises or material omissions” related to the broad plan to keep Trump in power. The second is similar but includes conduct related to state or government agencies and applies to the creation of the false certificates. The fraud counts require the state to show the defendants obtained some benefit, according to the jury instructions.
Each defendant is also charged with six counts of forgery, a felony that occurs if someone “falsely makes, completes or alters a written instrument” or “offered or presented, whether accepted or not, a forged instrument or one that contained false information,” state law says. Prosecutors must prove that was done with “intent to defraud,” according to the law.
The counts relate to the electors sending copies of their phony certificate to the National Archives, Arizona Secretary of State, the chief judge of Arizona’s federal court and the president of the U.S. Senate. Two of the six counts are for sending second copies of the certificate to the Secretary of State’s Office and National Archives.
Under Arizona law, conspiracy is a class 2 felony. A conviction carries a presumptive sentence of five years in prison. That term can be reduced, lengthened or even converted to probation depending on various factors.