Michigan Attorney General Dana Nessel this week announced criminal charges against 16 Republicans who presented themselves as the state's electors after the 2020 presidential election. Brookings Institution Senior Fellow Norman Eisen and New York University law professor Ryan Goodman responded with a New York Times essay headlined "Trump's Conspirators Are Facing the Music, Finally." As Eisen and Goodman see it, the Michigan defendants participated in a criminal conspiracy to overturn Joe Biden's victory by posing as the state's true electors.
The defendants, of course, do not accept that narrative. As they see it, their conduct was a legitimate way of preserving objections to a contested election, grounded in historical precedent and the advice they received from Donald Trump's lawyers. The "contingent" Trump electors in Georgia, who have been informed that they are targets of a similar investigation by Fulton County District Attorney Fani Willis, make the same basic argument. Press coverage of these investigations, which routinely describes the targets as "fake" or "bogus" electors, tends to dismiss that argument out of hand. But it is worth a closer look, because it is central to the question of whether prosecutors can prove that would-be electors who followed the Trump campaign's advice acted with criminal intent.
One target of the Fulton County investigation, which is expected to yield indictments next month, is David Shafer, former chairman of the Georgia Republican Party. On December 14, 2020, the deadline for Electoral College votes, Shafer joined 15 other Republican nominees in signing certificates that identified them as Georgia's "duly elected and qualified" electors, contrary to the results that had been repeatedly confirmed by Georgia Secretary of State Brad Raffensperger and Gov. Brian Kemp (both Republicans who supported Trump's reelection). Republican nominees for the Electoral College did essentially the same thing in six other battleground states, including Michigan.
On its face, this looks like a blatant scam, aimed at justifying congressional objections to Biden's electors and delaying or blocking ratification of his victory. But according to Shafer, he acted based on what he believed to be sound legal advice from Trump's lawyers.
In a March 26 letter to Willis, Shafer's attorneys cite a December 10, 2020, email from Alex B. Kaufman, one of the lawyers who represented Trump and Shafer in a state lawsuit, Trump v. Raffensperger, challenging the outcome of the presidential election in Georgia. The CC line includes four other Trump lawyers: Cleta Mitchell, Kurt Hilbert, Ray S. Smith III, and Chris Gardner.
"Based upon the developments both in our state case as well as in the Supreme Court," Kaufman says, "I am reconfirming the importance and our collective advice that our slate of delegates meet on December 14th (per the Federal Deadline) and cast their ballots in favor of President Trump and specifically per the Georgia Election Code. It is essential that our delegates act and vote in the exact manner as if Governor Kemp has certified the Presidential Contest in favor of President Trump. I believe that this is still the most conservative course of action to preserve the best chance for Georgia to ultimately support the President's re election. As we discussed in the 1960 Hawaii case, the convening of our electors and their casting of ballots in favor of President Trump in the specifically required form and manner is necessary in order to preserve our state and party's say in the presidential contest."
The "1960 Hawaii case" refers to a dispute over whether Richard Nixon or John F. Kennedy won the state in that year's presidential election. Nixon initially was declared the winner by a razor-thin margin of 140 votes. Democrats challenged that outcome in court, and a recount ultimately awarded Hawaii's three electoral votes to Kennedy. In the meantime, however, Electoral College nominees from both parties convened on December 19, 1960, the deadline that year. Both groups signed certificates identifying themselves as "duly and legally appointed and qualified" members of the Electoral College, and both sets of certificates were sent to Washington, D.C.
On January 4, 1961, a state judge, Ronald Jamieson, retroactively validated the Democrats' seemingly premature certificates. According to Jamieson's ruling, it was crucial that the electors had convened on December 19, even though their certificates contradicted the official results at the time. Two days later, while overseeing the congressional tally of electoral votes as vice president, Nixon acknowledged that he had received three sets of certificates from Hawaii: the dueling December 19 slates, plus a subsequent Democratic slate that Hawaii's governor certified after the recount. Nixon concluded that the third slate, comprised of the same Democrats who had signed the December 19 certificates, "properly and legally portrays the facts with respect to the electors chosen by the people of Hawaii."
According to Kaufman et al., Shafer would be following that example by presenting himself as a Georgia elector. In both cases, they argued, a pending legal challenge made the outcome of the election uncertain, and the best way to deal with that uncertainty was by submitting a list of "contingent" Republican electors who could be recognized by Congress should the challenge succeed.
Trump's lawsuit, which alleged "significant systemic misconduct, fraud, and other irregularities," was filed on December 4. "The Georgia Election Code requires lawsuits contesting elections to be heard within 20 days of being filed," Shafer's lawyers say. But the case "was never heard or adjudicated," they complain, because "it was not properly assigned to a judge and scheduled for a hearing until January 8, 2021—weeks after the 20 day statutory deadline and 2 days after Congress counted the electoral votes from the states and certified the result." The letter to Willis says Trump and Shafer dropped their lawsuit the day after that happened because it had been "mooted by the inexplicable inaction of the state courts."
Raffensperger, who thoroughly rebutted the lawsuit's claims in a January 6 letter to three Republican members of Congress who planned to lodge objections to Georgia's electoral votes, has a different take. Trump and Shafer "voluntarily dismissed their election contests," he said, "rather than submit their evidence to a court and to cross-examination." Although Shafer's lawyers say the lawsuit was "timely filed," its timing suggests it may have been little more than a pretext for the "contingent" electors plan.
Shafer nevertheless argues that his reliance on Kaufman et al.'s legal advice shows he lacked criminal intent. His lawyers offer several pieces of evidence to support that defense.
The letter to Willis notes that "two lawyers who participated as contingent Republican presidential electors, Brad Carver and Daryl Moody," faced Georgia State Bar complaints as a result. 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 noted that he "relied upon representations" that "it was necessary for the Republican nominees for Presidential Elector to meet and cast votes so that their then-pending election challenge would not be rendered moot." The board therefore "did not find probable cause to believe that Mr. Carver acted with the intent to mislead."
The "representations" on which Carver relied leaned heavily on the Hawaii precedent, and so does the letter to Willis from Shafer's lawyers. "Two of the three Democratic presidential electors who executed the Hawaii electoral documents," they note, "were retired federal judges and noted constitutional scholars." And far from rebuking them for misrepresenting their status on December 19, "Judge Jamieson hailed them as heroes, describing their meeting as a critically important step that preserved their ability for their presidential ballots to be counted after the Democrats prevailed in their election contest and the Governor certified the Democratic contingent presidential electors as having been elected."
Prominent Democrats have echoed that judgment, depicting the Hawaii electors' conduct as a model for handling such situations.
When the U.S. Supreme Court intervened in Florida's recount after the 2000 presidential election, Justice John Paul Stevens noted the Hawaii example in his dissent. "In 1960," Stevens wrote, "Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines." That precedent, he argued, showed that "nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted."
The day after the Court's decision in Bush v. Gore, Rep. Patsy Mink (D–Hawaii) criticized the ruling on similar grounds, arguing that "the [Hawaii] precedent of 40 years ago suggests the means for resolving the electoral dispute in Florida." She said "both slates of electors" could "meet on December 18 and send their certificates to Congress," after which Florida's governor could send Congress "a subsequent certificate of election" based on the recount.
In an essay published a week and a half before the 2020 presidential election, legal scholar Michael L. Rosin and civil rights lawyer Jason Harrow similarly argued that what happened in Hawaii "should serve as a model for a close election this year or in any year." They agreed with Jamieson that the Democratic slate's December 19 meeting was crucial: "Fortunately, because both slates of electors had voted on the proper day, there was still a chance to tell Congress which slate was actually appointed by the voters."
A few days before the 2020 election, former CNN host Van Jones and Harvard law professor Larry Lessig likewise praised the solution that Hawaii reached in 1960. "Even though Richard Nixon said it should not be a precedent, what he did in 1960 should be the model for this election in 2020," they wrote. Regarding the Kennedy electors, Jones and Lessig noted that "the only way their votes could matter was if they were cast on the day that Congress had set."
George Mason law professor Todd Zywicki, who gave congressional testimony about the laws governing presidential elections and transitions in the midst of the Bush-Gore dispute and subsequently published a law review article on the subject, quotes those approving comments in a declaration that Shafer's lawyers presented to Willis. Zywicki agrees that Kaufman et al.'s legal advice to Shafer was sound:
It is my expert opinion that the contingent Republican Presidential Electors in Georgia in 2020 acted in a reasonable, proper, and lawful manner. Moreover, it is my opinion, shared by a consensus of experts who have considered the issue over the past several decades, 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 judicial contest change the outcome of the election. In conclusion, it is my opinion that the actions taken by the contingent Georgia Republican Presidential Electors were lawful, reasonable, proper, and necessary, and any suggestion that they could be "criminal" ignores legal and historical precedent, the reasoned advice of legal counsel received, and the plain language of the Constitution, federal and Georgia law.
Consistent with what Trump adviser John Eastman said at the time, Shafer maintains that his role as a "contingent" elector was limited to making sure that an alternative slate would be available should Trump's lawsuit prove successful. "Media reports have suggested that certain high level members of then President Trump's legal team (John Eastman, Rudy Giuliani, et al.) may have developed subsequent plans to, among other things, attempt to persuade Vice President Pence to count these contingent presidential electoral votes as the valid electoral votes even in the absence of any successful judicial ruling in President Trump's favor," Shafer's lawyers say. "Mr. Shafer was not involved in and had no knowledge of any such plans. According to media reports, these plans were not even conceived until several weeks after the Republican electors had cast their contingent electoral votes on December 14, 2020."
It is still possible, of course, that Shafer acted in bad faith, both in joining Trump's lawsuit and in citing it to justify presenting himself as an elector. Maybe he did not really believe Trump's unsubstantiated claims about "systemic misconduct, fraud, and other irregularities" sufficient to change the outcome of the election in Georgia. Maybe he knowingly participated in a fraud aimed at reversing Biden's victory, or at least casting doubt on its legitimacy.
As with the potential federal charges against Trump himself, the sincerity of defendants who embraced the stolen-election narrative is legally relevant, open to question, and difficult to disprove. Did the "contingent" electors cynically manipulate the system by questioning the election results based on claims they knew to be false? Or did they pursue a remedy they thought was legal based on objections they viewed as valid? Both interpretations are plausible, which will present a problem for prosecutors with the burden of proving their case beyond a reasonable doubt.
[This post has been revised to include additional information about the voluntary dismissal of Trump v. Raffensperger.]