Felons or dupes? Treatment of Trump’s fake electors has varied wildly by state

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Eighty-four Republicans in seven states falsely claimed to be Donald Trump’s presidential electors in December 2020. Three and a half years later, dozens of them are facing criminal charges that could land them in prison for years.

Dozens of others have not been charged at all.

Even though the fake electors all participated in the same scheme, some have been charged as dangerous criminals while others have been treated as mere dupes. These disparities depend almost entirely on where they live.

In Arizona, Michigan and Nevada, every fake elector is facing felony charges except one, whose charges were dropped in a cooperation deal. Their counterparts in New Mexico, Pennsylvania and Wisconsin aren’t facing any charges. And in Georgia, three fake electors have been charged alongside Donald Trump, while others struck immunity deals.

Meanwhile, an architect of the scheme across all seven states, Wisconsin lawyer Kenneth Chesebro, has only received what some experts call a slap on the wrist after he reached a plea deal in Georgia, and he hasn’t been charged in any other state. The attorneys general in Georgia and Arizona are the only state prosecutors to charge any of the alleged organizers of the scheme. At the federal level, special counsel Jack Smith cited Trump’s involvement in the fake electors’ project in his Washington, D.C., case against him.

The wildly varying legal consequences for the fake electors have generated discomfort in some corners — especially since it appears many of the people Chesebro supervised may face much stiffer consequences than he will.

“In many instances, I actually think that the state-level electors themselves were the dupes in the fraud, rather than the fraudsters themselves,” said Ryan Goodman, a law professor at New York University who has closely tracked the issue. “It’s so unusual to have this situation whereby it’s as though Kenneth Chesebro, the principal, is flipping on the subordinates — rather than the normal prosecutorial strategy of going up the chain of command.”

It’s the direct result of America’s “unusual” election system, according to Derek Muller, a professor at the University of Notre Dame’s law school.

“The presidential elections are really run by the states,” he said. “They are really decentralized. So as a result, you can have parallel behavior across different states and yet it’s not really governed by federal law; it’s really governed, at its heart, by state law, with all of the vagaries that state law might offer.”

A lawyer for Chesebro, meanwhile, said some of the fake electors went further than he’d wanted them to — enthusiastically claiming to be the real electors when they in fact weren’t.

“You can say he’s the architect or the planner,” said Robert Langford, who represents Chesebro. “But he never intended that these people would purport to be the real electors. In Michigan, Nevada, and Arizona, that’s exactly what they did. And that was the line that was crossed that resulted in criminality. In talking with the prosecutors, that was it.”

Chesebro, however, wrote a Dec. 6, 2020 memo arguing that Trump could use the existence of false slates of electors to foment challenges to Congress’ certification of the results on Jan. 6, 2021 — even if the slates weren’t certified by legislators or backed by court rulings.

A seven-state scheme

In the weeks following the 2020 election, Trump — egged on by Chesebro and other fringe advisers — helped assemble slates of Republican activists in seven states won by Joe Biden. In the midst of calling local election officials to pressure them to reject certification of the election results, Trump also checked in with then-RNC Chairwoman Ronna McDaniel to enlist her help in the elector effort, and he connected her with attorney John Eastman, an architect of the strategy.

Under the Trump camp’s guidance, the would-be electors then prepared certificates claiming to be the states’ legitimate representatives in the Electoral College. In two states — New Mexico and Pennsylvania — the electors included conditional language stating that the validity of the certificates depended on court challenges.

Trump and his allies then pressured state lawmakers to endorse these fake slates in hopes of derailing the transfer of power to Biden — a desperate gambit that failed. And even after lawmakers refused to sign on, Trump allies promoted the “alternative” slates as a reason for then-Vice President Mike Pence to block Biden’s victory during the Jan. 6, 2021, session of Congress.

Investigators have since homed in on the elector strategy as a key piece of Trump’s effort to seize a second term he didn’t win. And the results have been mixed.

Michigan Attorney General Dana Nessel charged all 16 fake electors in her state, though she later dropped charges against one of them. It’s unclear when the rest will go to trial.

Nevada Attorney General Aaron Ford leveled charges against the six fake electors in his state, and a trial is scheduled for January 2025.

Neither Nessel nor Ford have charged any of the people who assembled the slates or crafted the strategy. But in Michigan, Nessel’s prosecution team recently revealed in court that they consider Trump himself to be an unindicted co-conspirator in the case. It’s unclear if that statement has any legal significance.

In Georgia, Fulton County District Attorney Fani Willis used her state’s general racketeering statute to charge Trump and more than a dozen of his national and state allies in a broad criminal conspiracy to overturn his defeat in the state. Only three of the state’s 16 fake electors were charged. Willis offered immunity to at least eight others in exchange for their cooperation. There’s no trial date yet.

Arizona forged a middle path last month, with Attorney General Kris Mayes charging all 11 false GOP electors, as well as seven of Trump’s national and state allies. But Mayes stopped short of charging Trump himself. Instead, her indictment named him as an unindicted co-conspirator in the scheme.

In Pennsylvania and New Mexico, Trump’s would-be electors insisted that the paperwork they signed included a caveat that said it would only become effective if a court ruled in their favor. That hedge shielded them from criminal charges.

Wisconsin stands alone in the process. In recent days, the state’s attorney general Josh Kaul gave a vague statement to USA Today saying he “believes that those who committed crimes in an effort to unlawfully subvert the outcome of an election should be held accountable.” But unlike Mayes in Arizona and Ford in Nevada, Kaul was attorney general in January 2021 — meaning he has had more than three years to decide whether to bring charges, and so far, he has not done so.

Lester Pines, a Wisconsin attorney who has worked for a host of liberal clients and causes, said no one in Madison’s close-knit legal community expects Kaul — a Democrat — to charge the fake electors with crimes.

“Why that is, none of us know,” Pines said. “He does not seem to be in the least bit motivated to do so, to the great disappointment of people who vote to elect attorneys general to enforce the law and to our Democrats.”

Kaul’s indecision is particularly notable because the longshot legal strategy behind the fake elector plot was hatched in Wisconsin, where Chesebro first drafted memos on it. Chesebro used his relationship with then-Trump campaign attorney Jim Troupis — another Badger Stater — to reach Trump’s national orbit and help lead the scheme.

Architect remains mostly unscathed

Most of the prosecutors who have investigated the aftermath of the 2020 election have taken a hands-off approach to Chesebro.

Smith, the special counsel helming the Justice Department’s probe, identified Chesebro as one of six unindicted co-conspirators in his indictment charging Trump with trying to steal the election and deprive Americans of the right to vote. Experts have told POLITICO they don’t expect Smith to bring charges against any of those co-conspirators — at least not anytime soon.

In Arizona, Chesebro also received unindicted co-conspirator status.

And in Georgia, he was indicted but negotiated a plea deal that won’t result in jail time.

Chesebro has reportedly cooperated with prosecutors in Arizona and Nevada, which is not unusual for criminal suspects seeking leniency. But according to Goodman, the NYU law professor, it’s quite odd for prosecutors to enlist apparent ringleaders in order to charge the people they supervised. Instead, prosecutors generally work with a criminal scheme’s foot soldiers to build cases against the people who organized it — in other words, they go easy on the small fish so they can bag the big ones.

That appears to be the strategy adopted in Georgia, with Willis using the cooperation of numerous fake electors to indict Trump and many of his top allies. But prosecutors in other states have not seemed to follow suit.

“How the prosecutors can justify using Kenneth Chesebro to go after the smaller fish is one of the lingering questions and, I think, concerns about how this has all proceeded,” Goodman said.

Chesebro’s attorney, Langford, told POLITICO that the fake electors face more political risk than his client because they went further than he wanted them to.

“A lot of behavior after Dec. 14, after they signed those ballots — especially in Nevada and Arizona, where they’re like, ‘We’re the real electors, those Democrats, they’re all fake, the election was stolen, and we’re the real ones!’ — that was not his plan,” Langford said.

The fake electors who have now been charged may face severe penalties. In Arizona, they could face more than 12 years in prison, according to defense attorney Omer Gurion, who doesn’t have any clients in the case. He added that first-time offenders in the state usually get probation.

But, he continued, the fake electors case is extremely unusual. “So I think it’s a bit of a crapshoot in predicting a sentence,” he said.

In Georgia, the three fake electors who were charged could face 20 years for their role in the alleged racketeering conspiracy, though sentences well below the maximum are most likely for defendants with no prior criminal record. They also face charges with maximum penalties of five, 10 and 15 years for signing the false documents. That’s left Georgia with the widest range of potential outcomes, from modest jail time to decades behind bars.

The Nevada defendants, meanwhile, could face five years in prison at the most. But, according to former Nevada U.S. Attorney Greg Brower, it’s most likely that a judge would sentence them to one year in prison but suspend that sentence and let them out on probation.

“There’s no victim in the traditional sense, there’s no restitution to be paid, it’s not a crime of violence,” he said.

In Michigan, according to defense lawyer Maurice Davis, the fake electors could face a maximum of 14 years of incarceration. Davis added that the judge handling the proceedings will have broad discretion to decide whether to hand down jail time or just probation. But he said he expects some incarceration.

“The conduct was pretty egregious,” he said. “It was a conspiracy to subvert an election in the highest form. I don’t think we’ve ever seen anything like this in the history of our democracy. Given the unique nature and the potential consequences had they been successful, I would be surprised if a judge did not give them some form of jail time.”