Here Is Why Trump's 'Contingent' Electors Say They Did Nothing IllegalRepublicans who participated in the scheme say they relied on legal advice grounded in historical precedent.
JACOB SULLUM
7.20.2023
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.
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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.
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Source:
https://reason.com/2023/07/20/here-is-why-trumps-contingent-electors-say-they-did-nothing-illegal/
