3 fake electors want Georgia election subversion charges against them to be moved to federal court

Lawyers for three Georgia Republicans, who falsely claimed that Donald Trump won the state and they were “duly elected and qualified” electors, are set to argue that their criminal charges should be moved from state to federal court

Kate Brumback
Wednesday 20 September 2023 05:12
Georgia Election Indictment
Georgia Election Indictment

Lawyers for three Georgia Republicans, who falsely claimed that Donald Trump won the state and they were “duly elected and qualified” electors, are set to argue Wednesday that criminal charges against them should be moved from state to federal court.

David Shafer, Shawn Still and Cathy Latham were among the 18 people indicted last month along with Trump on charges they participated in a wide-ranging scheme to keep the Republican president in power after his 2020 election loss to Democrat Joe Biden. All 19 defendants have pleaded not guilty.

U.S. District Judge Steve Jones is set to hear arguments Wednesday on why Shafer, Still and Latham believe the case against them should be tried in federal court rather than in Fulton County Superior Court. Jones already rejected a similar effort from Trump White House chief of staff Mark Meadows, who has appealed that ruling. He held a hearing Monday on a similar bid by former U.S. Justice Department official Jeffrey Clark and has yet to rule.

Shafer, Still and Latham have all indicated in court filings that they will not be present in court for the hearing.

If their cases are moved to federal court, a jury would be drawn from a broader and potentially less Democratic pool than in Fulton County alone. And any trial would not be photographed or televised, as cameras are not allowed inside federal courtrooms. But it would not open the door for Trump, if he’s elected again in 2024, or another president to issue pardons because any conviction would still happen under state law.

Part of the overarching illegal scheme, the indictment alleges, was the casting of false Electoral College votes at the Georgia Capitol on Dec. 14, 2020, and the transfer of documentation of those votes to the president of the U.S. Senate, the National Archives, the Georgia secretary of state and the chief judge of the federal court in Atlanta. Those documents were meant to “disrupt and delay” the joint session of Congress on Jan. 6, 2021, in order to “unlawfully change the outcome” of the election, the indictment says.

Prosecutors allege that Shafer, Still, Latham — and the other Georgia Republicans who participated in that plan — “falsely impersonated” electors. The related charges against them include impersonating a public officer, forgery, false statements and writings, and attempting to file false documents.

Republicans in six other battleground states that Trump lost also met and signed fake elector certificates. Michigan's attorney general in July brought criminal charges against the fake electors there.

Lawyers for the three contend that a legal challenge to the state's election results was pending and that lawyers told them it was necessary to have an alternate slate of Republican electors in case the challenge was successful.

They cite the example of the 1960 presidential election when Republican Richard Nixon was initially certified as the winner in Hawaii. Supporters of Democrat John F. Kennedy filed a legal challenge that was still pending on the day the state's presidential electors were to meet. That day, the certified electors for Nixon and uncertified elector nominees for Kennedy met at the state Capitol to cast votes for their candidates and sent them to Congress as required by the Electoral Count Act. Kennedy ultimately won the election challenge and was certified the winner, and Congress counted the votes of the Kennedy electors.

At the time of the actions alleged in the indictment, Shafer was the chair of the Georgia Republican Party, Latham was the chair of the Coffee County Republican Party and Still was the finance chair for the state Republican Party. Still was elected to the state Senate last year and represents a district in Atlanta’s suburbs.

Their lawyers say their clients were acting as contingent U.S. presidential electors and in that role were or were acting at the direction of federal officers. Their actions outlined in the indictment stem directly from that service, and they were performing duties laid out in the U.S. Constitution and the Electoral Count Act, their lawyers argue. As a result, they assert defenses under several different federal laws.

The prosecution team led by Fulton County District Attorney Fani Willis argues that they were not federal officers and were not acting at the direction of a federal official carrying out a federal function. Instead, they were impersonating genuine electors at the direction of Trump's campaign with the goal of illegally keeping him in power, they said.

They argued in court filings that “contingent electors” are not presidential electors — either the contingency is met and they become presidential electors or it is not met and the losing candidate's electors have no role. Even if the Trump campaign's legal challenge to the election results had been successful, they wrote, the only solution a court could impose is a new election, not a substitution by the Republican slate of electors.

In addition to the charges related to the fake elector plan, Shafer is also accused of lying to investigators for the Fulton County district attorney's office. Latham is accused of participating in a breach of election equipment in Coffee County by a computer forensics team hired by Trump allies.

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