The Trump electors, who are now ‘targets’ in the probe, insist they only wanted to be counted if Trump prevailed in court.
Gathering in a conference room just steps away from Georgia governor Brian Kemp’s office, 16 Republicans met at noon on December 14, 2020, to cast their electoral votes for Donald Trump.
Several counts of the state’s ballots all showed that Trump had lost the election in Georgia by more than 11,000 votes, but the Trump campaign and Georgia Republican Party Chairman David Shafer were still challenging the results in court.
The Republican meeting in the state capitol building, decorated in Christmas lights and large red bows, was recorded by local media. Shafer appeared on TV to explain what they were doing.
December 14 was the last day for electors to cast ballots in the 2020 contest. If the Republican electors hadn’t voted that day, and if Trump won in court and the Georgia results were reversed, it wasn’t clear that their votes could be recorded and counted later. “In order for the lawsuit to remain viable,” Shafer told a Fox affiliate, “we were required to hold this meeting.”
He further explained the rationale on Twitter that afternoon: “Had we not met today and cast our votes, the President’s pending election contest would have been effectively mooted.”
Had we not meet today and cast our votes, the President’s pending election contest would have been effectively mooted. Our action today preserves his rights under Georgia law.
— David Shafer (@DavidShafer) December 14, 2020
On Twitter, people responded, calling the move a “waste of time,” and “shameful.” Democratic senator Steve Henson, an elector for Joe Biden, called the Republican vote “symbolic.”
Atlanta-area district attorney Fani Willis, who launched a criminal investigation in early 2021 into possible election interference by Trump, initially classified the Republican electors as witnesses in her probe. But in late June, when lawyers for the electors began reaching out to investigators to schedule grand-jury appearances, they were informed the electors were no longer considered mere witnesses — they were now targets likely to be charged with a crime.
Lawyers who spoke with National Review, including lawyers involved with the Georgia case, are calling foul on the changed status of the electors. They claim the electors were acting on the advice of their legal counsel, and their actions were backed up with a historic precedent — Hawaii’s 1960 presidential election that swung from Richard Nixon to John F. Kennedy.
John Malcolm, vice president of the Heritage Foundation’s Institute for Constitutional Government, said that labeling the electors as targets is “reckless” and “shows horrifically poor judgement.” Lawyers directly involved with the case, including Holly Pierson, the lawyer for eleven of the electors, said it highlights that the investigation by Willis, a partisan Democrat, has always been driven by politics. “In my opinion, it hasn’t become that. It started as that and has only gotten worse,” Pierson told National Review.
Mainstream media outlets have regularly described the Republican electors as “fake electors,” a term that Pierson said is “not just biased — it is entirely inaccurate.” She argues that the whole point of the judicial challenge in Georgia was to determine which slate of electors should be considered valid, and “until that challenge was decided on the merits, both slates of presidential electors were contingent — contingent upon the outcome of the judicial challenge.”
Her clients’ intentions were clear from the beginning, she says, and the facts about their involvement haven’t changed. “It was done publicly,” Pierson said of the vote. “It was broadcast on the news, they made public statements, and it was all over social media as to what they did and exactly why they did it. There is no valid reason for the D.A. to have classified them as ‘witnesses’ in April 2022 and suddenly call them ‘targets’ in late June 2022.”
A Symbolic Vote or Election Fraud?
According to federal law, after a presidential election, electors for the winning candidate in each state are required to meet in their state capitals and cast their ballots on the first Monday after the second Wednesday in December: That was December 14 in 2020.
Georgia is one of seven states — along with Arizona, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin — that Trump lost in 2020, where Republicans nonetheless submitted alternate slates of electors on the grounds that legal challenges could change the official results. The electors signed certificates stating they were “duly elected and qualified” to represent their states, and they mailed the certificates to Congress and the National Archives, just as Biden’s electors had. The Republican slates in Pennsylvania and New Mexico specifically noted that the votes should be counted only if Trump won his legal challenges in those states.
After the January 6 protests at the U.S. Capitol, Democrats emboldened by the ongoing investigations into Trump’s role in it began shifting away from the idea that the alternate slates of Trump electors were “symbolic.” They started to call for the electors to be prosecuted for their role in a criminal conspiracy to overturn the presidential election.
Nevada governor Steve Sisolak said submitting alternate slates of electors “is a crime, or ought to be a crime,” according to the Washington Post. Michigan attorney general Dana Nessel told reporters, “This is a crime. This is election fraud,” according to Politico. California representative Pete Aguilar, a member of the January 6 Committee, said the submission of the alternate slates of electors was a “dangerous precedent.”
But in a legal motion, Pierson argued that federal and state laws protect the electors’ right to cast contingent ballots. The Electoral Count Act, she noted, specifically anticipates Congress receiving more than one slate of ballots from one state, and gives Congress “exclusive jurisdiction to adjudicate the validity of those slates.” Pierson has also argued that Willis lacks jurisdiction to prosecute electors “performing a federal election duty.”
Although it was clear even in mid December that Trump’s legal challenges were likely going nowhere, many of his supporters were still holding out hope that he would prevail in court.
Malcolm, with Heritage, said there’s no “roadmap” spelling out the exact process for electors to submit contingent ballots in a contested election. And he doesn’t believe that sending the ballots to Congress or the National Archives constitutes a crime. “If that is an attempt to obstruct the Georgia election, it is a pretty rudimentary and fruitless attempt,” he said.
And, he noted, “there is precedent for this.”
The Hawaii Precedent
In the 1960 contest between Nixon and Kennedy, the race in Hawaii was a nail-biter. While the initial vote tally indicated that Nixon had won the state, three Democratic electors for Kennedy met and cast their votes anyway while a court-ordered recount was under way. They, too, sent their ballots to Congress and the National Archives.
The recount later revealed that Kennedy had won Hawaii by just over 100 votes, and the Democratic slate was eventually certified by the governor to be officially counted — by Nixon, the vice president. In the contested 2000 race between George W. Bush and Al Gore, both then–Supreme Court Justice John Paul Stevens and then-Congresswoman Patsy Mink of Hawaii pointed to the 1960 Hawaii election to justify submitting two slates of electors for Florida.
“I don’t see how these people, the Republican alternate slate of electors, did anything different than what the Democrats did in Hawaii in 1960,” Malcolm said. “To put these people in fear of criminal prosecution for honoring their party and preserving President Trump’s options while his lawsuit goes forward is amazing to me.”
Malcolm said the Georgia electors are party activists — they include a teacher, a lawyer, a former city-council candidate, and some state party officials — not people who were likely to be deeply involved in the inner workings of Trump’s campaign apparatus.
“They were not in the West Wing on Election Night,” he said. “They were not partying every weekend at Mar-a-Lago. These were party activists who were asked to cast a vote so if President Trump’s legal challenge prevailed, he would have a slate of electors.”
Pierson said the Georgia electors were acting on the advice of legal counsel in the Fulton County election challenge. “Our clients were told about the 1960 Hawaii precedent for the provisional elector slates, and it is on point,” she said.
If higher-ups in the Trump campaign — people such as Rudy Giuliani and John Eastman — had been developing plans to convince then–Vice President Mike Pence to count the alternate slates of Trump electors without a judicial ruling, the Georgia GOP “elector nominees did not have and could not have had any knowledge of or involvement in that,” she said.
Operating Openly or in Complete Secrecy?
But critics have questioned why, if nothing nefarious was afoot, the Trump campaign directed electors to keep the whole process quiet.
In June, the Washington Post reported that the Trump electors were instructed in an email to operate in “complete secrecy” on the day of the vote. “I must ask for your complete discretion in this process,” Robert Sinners, the campaign’s election operations director for Georgia, wrote to the electors the day before the vote. He instructed them not to speak to the media and to be evasive with security about their presence in the capitol. “Your duties are imperative to ensure the end result — a win in Georgia for President Trump — but will be hampered unless we have complete secrecy and discretion,” he wrote, according to the Post.
To many critics, Sinners’s email “reinforced that those involved were conscious that what they were doing was problematic or even illegal,” according to a Post analysis.
But while the emphasis on secrecy could be viewed as an attempt by the Trump campaign to cover up known wrongdoing, the Post also noted that Trump electors in other states had expressed security concerns and been denied access to their state capitols.
In a text message to National Review, Sinners said that, in sending the email, he was merely following the direction of Shafer, who wanted to “avoid drawing attention” to the vote. But the vote ended up being held openly, and Shafer spoke to the media about it.
Pierson said she doesn’t know why Sinner sent that email, but she called it “irrelevant” because the suggestions for secrecy were never followed. “Even if the presidential electors had followed those instructions, which they didn’t, what would have been improper about it? I see no Georgia law that would have been violated,” she said.
‘What Are You Thinking?’
Pierson says that, starting in April, Willis’s office identified the Georgia electors as witnesses in their probe, and that the electors all agreed to voluntary interviews with her investigative team. Shafer was interviewed first, in late April, followed by another elector the next day. A third elector’s interview was canceled by Willis’s team, who said they would reschedule it, according to Pierson’s court filing.
Instead, on June 1, Willis’s team sent grand-jury subpoenas to all of her clients. Pierson’s team had concerns, and they asked that the investigative team either continue with the voluntary interviews, or else limit the number of electors testifying to the grand jury. Some electors had more information than others, and having them all testify would be inconvenient, time-consuming, and redundant. Willis’s team did not respond, according to the court filing.
On June 28 — a week after former Trump White House staffer Cassidy Hutchinson’s testimony seemed to tie the former president closer to the riot, and increased the desire by some to indict Trump’s alleged conspirators — Pierson’s team followed up with Willis’s investigators to discuss the logistics of the electors’ grand-jury appearances. It was then they were informed that the electors were no longer considered witnesses, but targets of the investigation.
“Only when it became clear that our clients were actually still going to come in and provide substantive testimony to the grand jury, even though their voluntary interviews had been inexplicably canceled and they had all been subpoenaed — only then did the D.A.’s office say, ‘Oh, by the way, now all of your clients are targets,’” Pierson said.
Pierson and her team are not the only ones who have accused Willis of using her Trump investigation to score partisan political points.
In mid July, state senator Burt Jones – the Republican nominee for lieutenant governor and one of the Trump electors – filed a motion calling for Willis to be disqualified from the case because Willis, in her role as D.A., had hosted a fundraiser for his opponent in June. Judge Robert McBurney called her decision to participate in the fundraiser a “What are you thinking?” moment with “horrific” optics. But instead of disqualifying Willis and her team from the case, McBurney disqualified her from prosecuting Jones specifically, writing, “The District Attorney does not have to be apolitical, but her investigations do.”
Pierson has argued that Willis and her team should be removed from the case because all of the electors, including Jones, are “inextricably intertwined.”
Lawyers for Kemp have also sparred with Willis and accused her of canceling a voluntary interview with the governor and issuing him a subpoena “for improper political purposes.” In a motion to quash the subpoena, Kemp’s lawyers wrote that Willis’s office “has engineered the governor’s interaction with the investigation to reach a crescendo in the middle of an election cycle.” Stacey Abrams, Kemp’s opponent in November, has used the investigation to attack Kemp.
Brian Kemp’s refusal to testify shows that he will do anything to win an election. Kemp wants credit for “standing up” to Trump, but refuses to testify against the former president and said he would welcome his endorsement. pic.twitter.com/UPt2sn73EU
— Stacey Abrams (@staceyabrams) August 19, 2022
In a testy email exchange with Kemp’s lawyer, Brian McEvoy, Willis declared, “This is NOT a politically motivated investigation,” and “you repeatedly referring to it as a politically motivated investigation, does not make it so.” McBurney ruled in late August that Kemp’s grand-jury testimony would be delayed until after the November election.
Malcolm, with Heritage, agreed that the investigation appears politically motivated.
“I think this is an attempt to tarnish the reputations of the leadership of the Republican Party in Georgia on the eve of a midterm election,” he said. “And it is designed to chill participation in political activity.”