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The Fake Electors Scheme Could Be Trump’s Achilles Heel—Here Are Some Receipts

Donald Trump; graphic for House January 6 Committee final report
ALON SKUY/AFP via Getty Images; Congressional Record

Weighing in at 845 pages, the Final Report of the January 6 Committee is a hefty read. But it also flies by, like a good political thriller turned crime novel rather than a boring recitation of fact and policy.

It has colorful, unforgettable moments (my favorite is the November 7, 2020 press conference by Rudy Giuliani at Four Seasons Total Landscaping, which the authors dryly noted was “near a crematorium and down the street from a sex shop.”).

The Report has a vast cast of characters, including star witnesses like Cassidy Hutchinson, the former aide to Mark Meadows, and heroic election worker Ruby Freeman. And its findings proceed in a logical, straightforward, and devastating way, quite similar to how the hearings themselves unfolded.

But the Final Report also is a working document, one that its authors, which include Chief Investigative Counsel Timonthy J. Heaphy—a former federal prosecutor and U.S. Attorney for the Western District of Virginia—plainly intended as a roadmap for the Justice Department investigators.

The authors understood what elements of which crimes investigators would be seeking to match with the evidence, or at least the trail to further evidence, and the Report delivers that in spades.

The authors also understood a deeper question: What will Donald Trump’s likely defenses be and how can we best address them?

Today, we’ll look at two possible charges built around some of the same evidence and raising likely similar defenses:

  1. conspiracy to obstruct an official proceeding, and
  2. conspiracy to defraud the U.S.

We’ll do a quick legal drive-by analysis of what the evidence already shows and how it fits into these potential charges. And then we’ll look at what arguments Trump’s lawyers would almost certainly raise in his defense and why they aren’t likely to absolve him from guilt based on what we already know.

Let’s dive in.

Elements of a Conspiracy and the Challenge of Linking Trump

Both of these potential crimes raise the same basic question that forms the heart of any conspiracy charge: Did Donald Trump make an agreement with one or more other persons to do something illegal, and were any concrete steps taken in furtherance of the conspiracy?

For prosecutors to make their case, they would need to show that Trump was directly in on the planning of the obstruction of the electoral count and on the fraud perpetrated on the federal government, and that the conspiracy was then set into motion by at least one concrete act.

They don’t have to show that the plot ultimately succeeded, but they would have to tie Trump to the actual planning.

While on its surface it seems like a no-brainer, the law requires that prosecutors be able to prove his involvement beyond a reasonable doubt, which is the very highest bar of proof.

And Trump is notorious for making this part very hard for prosecutors by leaving no paper trail of his crimes, having loyalists lie and obstruct on his behalf, and throwing doubt into the mix by framing everything as a mere possibility rather than a directive.

This helps explain why investigators in Manhattan are having a tough time pinning tax fraud on him personally while his CFO Allen Weisselberg takes the fall for him.

Imagine if the top advisors around Trump during the post-election period, namely Mark Meadows, Rudy Giuliani, and John Eastman, closed ranks and protected him the way Weisselberg did in New York.

Imagine if they all refused to testify, or if they did, swore up and down that the scheme was their idea, and that Trump just listened and let them do their jobs. Imagine as well that there was not one single email or shred of paper from Trump himself showing otherwise.

How would prosecutors make their case? These are the concerns I had going into the hearings and reading the Final Report.

As one illustration of the many ways the Report and supporting evidence managed to assuage my concerns, let’s take a look at a key part of the conspiracy: the plot to deploy fake electors on January 6th.

The Fake Elector Conspiracy

When it first came out in December 2020 that in the swing states crucial to Joe Biden’s victory, groups of Republicans had organized to form “alternate slates” of electors, it didn’t feel like much of a story.

That was because few people really understood, at least back then, that this effort was part of a much larger plot to overturn the election results. It felt more like scattered groups of random, unhappy partisans lodging their protests in a symbolic, far-fetched, and frankly pathetic way.

What later became clear, however, was that these “alternate” slates actually served a deeply nefarious purpose: to provide a pretext for Vice President Mike Pence to unilaterally declare that there were competing slates of electors in key swing states and to disregard the actual votes of these states on January 6.

This move would hand Trump an electoral victory by declaring him the candidate with the most uncontested electoral votes, or otherwise send the matter “back to the states” whose legislatures were controlled by the Republicans and therefore purportedly friendly to the cause.

The submission of these fake electors slates to the National Archives and to Congress was a clear attempted fraud upon the government. The documents bore demonstrably false statements on their face, including sworn declarations by the signatories that they were the duly elected electors from their states when they held no such authority.

And, as discussed above, the fake elector slates were a cornerstone of the larger plot to illegally empower Mike Pence to overturn the election during the count itself.

It’s long been understood that lower level operatives within the Trump Campaign, such as attorney Kenneth Chesboro, cooked up the fake electors scheme, then coordinated them around the country, providing them with their marching orders and ensuring that they did everything they could to make the slates appear legal and legitimate, when in fact they were anything but that.

But the question remained: How involved were Trump and his top advisors in the scheme?

Trump’s and Meadows’ Fingerprints Are All Over The Fake Electors

Section 3.2 of the Final Report is entitled “President Trump and the Campaign adopt the Fake Elector Scheme.” Seeing that, I sat up. What evidence had the Committee turned up?

Here are a few choice morsels:

"On December 6th, White House Chief of Staff Mark Meadows forwarded a copy of Chesebro's November 18, 2020, memo to Trump Campaign Senior Advisor Jason Miller writing, 'Let’s have a discussion about this tomorrow.' Miller replied that he just engaged with reporters on the subject, to which Meadows wrote: 'If you are on it then never mind the meeting. We just need to have someone coordinating the electors for states'.” (Emphases added.)

That’s right, Mark Meadows, the former White House chief of staff for Trump, was the one insisting that there be coordination of the fake electors. That puts him squarely among the leaders of the plot.

The Report then noted:

"Later that week, Miller sent Meadows a spreadsheet that the Trump Campaign had compiled. It listed contact information for nearly all of the 79 GOP nominees to the electoral college on the November ballot for Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin."

If you think back to our definition of a conspiracy, there needs to be an illegal plan and then concrete steps taken in furtherance of it. The plotters made this second part easy: They create a damn spreadsheet.

Also that week, the Report noted:

"Meadows received a text message from a former State legislator in Louisiana recommending that the proposed 'Trump electors from AR [sic] MI GA PA WI NV all meet next Monday at their state capitols[,] (c]all themselves to order, elect officers, and cast their votes for the President… Then they certify their votes and transmit that certificate to Washington.' Meadows replied: 'We are'."

Thanks, Mark Meadows, for that confirmation.

And to put a human touch behind these transmittals, Cassidy Hutchinson once again stepped to the plate, saying of Meadows and the fake electors scheme that she “remember[ed] him frequently having calls, meetings, and outreach with individuals and this just being a prominent topic of discussion in our office."

When asked how many of his calls or meetings it came up in, she estimated "[d]ozens."

Okay, so Mark Meadows, check.

But what about his boss?

The Committee writes that by December 7 or 8, “President Trump had decided to pursue the fake elector plan and was driving it.” How do they know this?

For starters, they have testimony from Trump Campaign Associate General Counsel Joshua Findlay, a name that didn’t come up much before. Findlay’s boss, Matthew Morgan, tasked him with exploring the feasibility of assembling the fake electors slates in the swing states Trump had lost.

Here’s one body blow to Trump:

"Findlay told the Select Committee 'it was my understanding that the President made this decision...' As recounted by Findlay, Morgan conveyed that the client—President Trump—directed the campaign lawyers to 'look into electors in these potential litigation States[.']"

In short, there are other witnesses who will testify that Trump himself was no passive onlooker but actively directing the scheme.

And it’s not just Findlay. As we saw in the hearings, Trump himself made efforts with RNC chairwoman Ronna McDaniel, in the days before the fake electors met, to enlist her help making sure it happened.

Trump was the one who introduced McDaniel in the call to his attorney, John Eastman, who famously and rather helpfully later summarized the entire plot into a six point memo. Eastman explained “the importance of the RNC helping the campaign to gather these contingent electors in case any of the legal challenges that were ongoing changed the results in any of the States."

Then the confirmation came back from McDaniel:

“According to McDaniel, she called President Trump back soon after the call ended, letting him know that she agreed to his request and that some RNC staffers were already assisting.” (Emphases added).

In short, Trump may not have written anything down, but other witnesses are able to testify clearly as to his involvement including specific requests made by him.

The Fake Electors Have Receipts

During the hearings, we heard from the former Speaker of the Republican-controlled House in Arizona, Rusty Bowers. Bowers had testified about how Trump and Giuliani telephoned him personally to urge him to hold a hearing about election fraud, but that Giuliani had admitted that they had a lot of theories but no evidence to support them.

The Report further fleshed out Bowers’s experience with the Trump campaign. For example, it turns out Trump himself had called Bowers and invited him to a meeting of sympathetic GOP state legislative leaders at the White House to talk about the elector scheme.

The pressure campaign continued all the way up to January 6. According to the Final Report, Trump’s lawyer John Eastman “pressed Speaker Bowers to bring the Arizona House into session to certify Trump electors or decertify the Biden electors.”

But per the Report, Bowers “responded as he had previously responded to similar entreaties by Giuliani and President Trump: by explaining that doing so would require him to violate his oaths to the U.S. and Arizona Constitutions and that he “‘wasn’t going to take such an action'."

Undeterred, Eastman still pushed Speaker Bowers to “just do it and let the courts sort it through.”

Bowers wasn’t the only state official being lobbied directly by the ex-president to organize the elector slates. Another example surfaced in deposition transcripts of Nevada officials.

State party leader Michael McDonald and Republican National Committeeman Jim DeGraffenreid provided closed door testimony to the Committee back in February 2022, although their transcripts were only released last Wednesday.

Both men repeatedly pled the 5th and refused to provide information to Congressional investigators—something Jack Smith may want to follow up with by hauling them before the grand jury, perhaps with transactional immunity to compel their testimony.

But it was clear from the questioning that there are again damning receipts with Trump’s and others’ fingerprints all over them.

The trove of evidence retrieved by the Committee includes text messages, emails, and internal memos from the national GOP, as well as charts, templates for press releases, the phony certificates themselves, and talking points explaining the rationale for the electors.

The planning began as early as four days before the election, when GOP officials began discussing whether the Nevada secretary of state, Barbara Cegavske, would sign off on the alternate slate of electors.

As for Trump’s involvement, on November 4, 2020, the day after the election, McDonald actually held a conference call with Trump, his then-chief of staff Mark Meadows, attorney Rudy Giuliani, and the ex-president’s son, Eric Trump.

McDonald later wrote in a text message describing that call:

“They want full attack mode."
"We’re gonna have a war room meeting in about an hour.”

Given all this evidence, Trump’s primary line of defense that it was his lawyers and not him involved in the plot appears dead on arrival. It’s hard to see how he will be able to hide behind a shield of attorneys or claim he was just passively watching it all go down.

So what else could Trump argue? The Report anticipated and answered this, too.

Trump’s Defense That His Actions Were Justified Is Legally Irrelevant

It’s often useful to take the most charitable reading of a defendant’s actions and see if his defenses can hold any water.

In this case, Trump no doubt will argue that he sincerely believed that there was election fraud and that, in light of this, he was within his rights to undertake the organization of alternate electors.

After all, if you believe that there was massive fraud and a stolen election, a true patriot would do anything to stop the steal, right?

The Committee of course spends the first part of its Final Report debunking the Big Lie and how Trump actually did know that his claims of election fraud were false but repeated them often anyway.

But even if you were to assume that Trump actually believed his own lies, he will have a problem relying on this line of defense. That’s because of a simple principle: You can’t just take the law into your own hands.

This excerpt from the Report summed this up well:

"Even if it were true that President Trump genuinely believed the election was stolen, this is no defense. No President can ignore the courts and purposely violate the law no matter what supposed 'justification' he or she presents."

In other words, the answer to your strong issue with the election can’t be to create your own fraudulent slates of electors and stage a coup via your Vice President assuming powers he simply doesn’t have.

The only legal way forward was to file court challenges to the election—which the Trump Campaign did, by the way, losing over 60 times in state and federal courtrooms across the country.

Nor is it a defense to say that the alternate slates of electors were assembled and in place, in case the courts somehow ruled in Trump’s favor. By the time the real electors met on December 14, 2020, the court cases were almost completely over.

Even the Supreme Court had weighed in and smacked down the suits brought by the various Republican attorneys general.

Still, to keep up the pretense for why the fake electors were still needed, Trump and Giuliani had a plan:

"On the 13th, [Jason] Miller texted some of his colleagues to check in about the fake elector meetings scheduled for the following day. He let them know that Giuliani had told him 'POTUS was aware' that they would be filing litigation in four States just 'to keep the effort going'—which the Select Committee believes was to create a pretext to claim that it was still possible for the fake electors to be authorized retroactively. In subsequent litigation, a Federal district court found that President Trump 'filed certain lawsuits not to obtain legal relief, but to disrupt or delay the January 6th congressional proceedings through the courts'.”

The other Trump Campaign lawyers knew that the entire fake elector scheme was problematic and were urging Trump and Giuliani to drop it because there was simply no legal recourse left.

But they did not.

As the Report noted, according once again to the testimony of Findlay:

"While the campaign’s core legal team stepped back from the fake elector effort on December 11th, it nonetheless went forward because 'Rudy was in charge of [it]' and '[t]his is what he wanted to do,' according to Findlay. When Findlay was asked if this decision to let the effort proceed under Giuliani’s direction 'was coming from your client, the President,' Findlay responded: 'Yes, I believe so. I mean, he had made it clear that Rudy was in charge of this and that Rudy was executing what he wanted'.”

Of course, by the time these electoral slates were intended to be deployed on January 6, there was absolutely no legal case left anywhere that could support their use. The only basis for them was now a patently illegal one: to provide the pretext Mike Pence would have needed to declare the election for Trump or send the vote back to the states, creating electoral chaos.

In sum, the fact that Trump, Meadows and Giuliani organized, promoted, and continued to back a blatantly fake elector scheme, all the way up to January 6, makes them guilty of a conspiracy to obstruct and defraud the U.S., and they appear to be without any obvious defenses to this.

Meadows may well understand his own legal peril, and it would not surprise me if he was already cooperating with authorities to eventually testify against his co-conspirators.

Again, this whole discussion focuses on just one aspect of the broader conspiracy and provides but one example of the criminal exposure that Trump and his top aides and advisors face.

There are many others, which leads me to conclude that the Special Counsel will remain very busy following up on evidentiary trails and then will likely begin issuing indictments inside Trumpworld in the coming year.