Support The Bulwark and subscribe today.
  Join Now

DOJ Is Investigating the Phony Electors

Their claim that “it was all just a backup plan” is unlikely to persuade prosecutors.
January 26, 2022
DOJ Is Investigating the Phony Electors
Protestors rally at the Michigan State Capitol before the state electoral college met to cast their votes on December 19, 2016 in Lansing, Michigan, United States. The electoral college met in the afternoon and voted unanimously for Trump. Electors from all 50 states cast votes today in their respective state capitols. (Photo by Sarah Rice/Getty Images)

The feds, we now know, are on the case: The Department of Justice is investigating the phony elector certificates submitted to Congress and the National Archives by Republican Trump supporters in five states that had been won by Joe Biden, not Donald Trump. “We’ve received those referrals,” Deputy Attorney General Lisa Monaco told CNN yesterday. “Our prosecutors are looking at those and I can’t say anything more on ongoing investigations.”

The claim that the phony electors were the “duly elected and qualified” electors from their respective states was blatantly false and almost certainly criminal under a wide range of state and federal laws. Given the obvious coordination between the five states, and the unmistakable evidence that the phony certificates were central to Trump’s plot to overturn the results of the 2020 election, following the facts as far as they go could bring criminal accountability not only to the pseudo-electors themselves, but also those higher in the chain of authority who induced, aided and abetted, or otherwise participated in the crime.

Right up to you-know-who.

Since the case against the phony electors and their enablers is straightforward and seemingly easy to prove—they signed their names to the phony documents and submitted them to Congress and the National Archives—any investigation is likely to focus heavily on anticipated defenses. Several of the culprits have already made it clear that they intend to pass off the signing and submission of the documents as offering a mere “alternative,” a kind of backup plan to have a slate of Trump electors lined up and ready to go in the event that Congress or the courts might invalidate the certification of the true Biden electors.

But that was never the plan.

The plan was to affirmatively use the phony certifications, not to file them away for a rainy day. The fake documents were to be the cause of rejecting the real documents, not the effect. The plan was set out in the clearest possible language in the infamous Eastman memo:

7 states have transmitted dual slates of electors to the President of the Senate.

At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment — is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe. . . . A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.

That’s not a contingency plan. That’s not something you stick in your back pocket in the unlikely event that a court might invalidate state election results.

That’s an action plan to use forged documents to overturn an election.

While it is possible—however unlikely—that some of the electors might be able to convince prosecutors that they were duped into believing that this was merely a backup plan, that will only strengthen the case against those higher in the chain who lied to them.

The scheme to use fake elector certifications to throw out Biden’s electors and replace them with phony Trump electors on January 6 was reportedly led by Rudy Giuliani and other Trump campaign officials. Here’s CNN again, from last week:

Trump campaign officials, led by Rudy Giuliani, oversaw efforts in December 2020 to put forward illegitimate electors from seven states that Trump lost, according to three sources with direct knowledge of the scheme.

The sources said members of former President Donald Trump’s campaign team were far more involved than previously known in the plan. . . . Giuliani and his allies coordinated the nuts-and-bolts of the process on a state-by-state level, the sources told CNN. One source said there were multiple planning calls between Trump campaign officials and GOP state operatives, and that Giuliani participated in at least one call. The source also said the Trump campaign lined up supporters to fill elector slots, secured meeting rooms in statehouses for the fake electors to meet on December 14, 2020, and circulated drafts of fake certificates that were ultimately sent to the National Archives.

Trump and some of his top advisers publicly encouraged the “alternate electors” scheme in Pennsylvania, Georgia, Michigan, Arizona, Wisconsin, Nevada and New Mexico. But behind the scenes, Giuliani and Trump campaign officials actively choreographed the process, the sources said.

Only those at the very bottom of the chain of command—the pseudo-electors themselves—might have some basis to assert a “it was just a backup” defense. Giuliani won’t. Eastman won’t.

Trump won’t.

Philip Rotner

Philip Rotner is a columnist whose articles appear in national publications and on his website, Philip is an attorney who has practiced for over 40 years, both in private practice and as the general counsel of a global professional services firm.  Philip’s views are his own, and do not reflect the views of any organization with which he has been associated.