Following advice or fraud? Elements of AZ fake electors case that will be crucial at trial

A far-reaching indictment delivered by an Arizona grand jury last week names 18 GOP leaders and top aides to former President Donald Trump and exposes each to possible prison time if they are convicted.

But the felony charges announced on Wednesday by Arizona Attorney General Kris Mayes, a Democrat who took office in Jan. 2023, are the starting point of the criminal justice process. While some of the defendants are scheduled to make first court appearances on May 21, resolution could be years out.

On Friday, Mayes' office released a copy of the indictment confirming the names of five Trump lawyers and advisers charged. Their names were previously redacted because they had not been served notice of the charges against them. There are two others yet to be officially named in the document, but those individuals have been identified by The Arizona Republic and include former New York City mayor Rudy Giuliani and former Trump chief of staff Mark Meadows.

In interviews with The Republic, lawyers not affiliated with the case broke down what Mayes' deputies will have to prove to win convictions. Proving the intent of the electors will be key, they said, with one foreshadowing a possible defense that could emerge to the nine-count indictment.

What was the electors' intent?

Mark Kokanovich, a former federal prosecutor and special counsel who works on government investigations, said Mayes' case was built on strong evidence.

"In any conspiracy and fraud in particular, mental state is going to be an element," said Kokanovich, who now practices law at the firm Ballard Spahr. That's where what is called a "speaking indictment" comes in.

Kokanovich said a speaking indictment goes beyond outlining the charges to include more information, which allows for greater understanding of the case. The 58-page indictment includes background information about Trump's pressure campaign on GOP leaders in Arizona, the charges and even has an explainer of how the Electoral College works.

In four pages, prosecutors lay out seven lawsuits that challenged the result of the 2020 election, none of which were successful. Throughout the document, prosecutors cite the false electors' own words — in text messages and social media posts — to make their case.

Kokanovich pointed to one text message exchange documented in the indictment. In that, former Trump campaign lawyer Kenneth Chesebro messaged Arizona attorney Jack Wilenchik about an appeal of one of the election lawsuits. Ward and another co-conspirator "are concerned it could appear treasonous for the AZ electors to vote on Monday if there is no pending court proceeding that might, eventually, lead to the electors being ratified as the legitimate ones," Chesebro wrote.

"When you've got Kelli Ward worrying about maybe having committed treason, that's pretty powerful evidence," Kokanovich said.

Early indications of a defense to the charges

The indictment's main allegation centers around the creation of a certificate signed by 11 Arizonans who claimed they were the "duly elected and qualified" electors for Trump, even though Trump didn't win the election.

Lawyers for the defendants and, in some cases, email and social media posts in the indictment show the GOP electors' potential defense. Turning Point USA executive Tyler Bowyer, for instance, wrote, "This just gives potential ground to not accept electors from states with competing electors" after signing the certificate.

Dennis Wilenchik, who represents certificate-signer Jim Lamon, said his client took advice from "lawyers from back East" that the certificate would be used contingent on the results of the 2020 election being changed. State Sen. Jake Hoffman, a Queen Creek Republican who is one of the 11, previously told a reporter in 2021 the electors "felt it appropriate to provide Congress and the Vice President with dueling opinions."

Hoffman's lawyer, Harmeet Dhillon of the Trump-aligned firm Dhillon Law Group, said in an interview on Arizona talk radio station KTAR last week that prosecutors would not be able to prove her client's intent.

"There is no fraud because nobody was misled, no outcome was changed," Dhillon said. "There is no forgery, which ... is a crime that requires specific intent to do something that is illegal, and there is literally not going to be any evidence that these prosecutors can produce to the court in a trial that shows that my client, or any client, thought they were doing anything wrong. They were following the advice of a lawyer for President Trump."

Veteran criminal defense attorney Adam Feldman said when defendants make the claim they took advice from attorneys and believed they were acting in good faith, the argument could be "pretty persuasive stuff" for a jury.

“That’s problematic for the prosecutor,” he said.

Mayes’ office will have a bigger challenge if they don’t possess something like an email showing a defendant knew the scheme was improper but did it anyway, Feldman said.

The indictment explains how Jack Wilenchik wrote that a lawsuit appeal was rushed to give "cover" for the 11 electors' signed certificate, but neither that nor the "treasonous" remark came from Ward herself. In another email mentioned in the document, Chesebro noted there was no longer any reason for concern since the appeal was being filed. Chesebro has been interviewed by Mayes' investigators and is an unindicted co-conspirator in the case.

One possible problem for the defendants, Feldman said, is that the public has heard for years from people who believe the 2020 election was “stolen” but who haven’t produced evidence. Jurors may be suspicious of the fact that defendants signed their names to the elector document without any reliance on credible evidence that the election results were wrong, he said.

What are the alleged crimes?

Exactly what prosecutors will have to prove to win guilty verdicts is partially outlined in model instructions that lawyers give to jurors. The instructions, which are subject to change through back-and-forth negotiations between a prosecutor and defense lawyer at trial, are available through the State Bar of Arizona and are based on state law.

On the conspiracy count, the indictment alleges one or more of the defendants agreed to commit an underlying offense, which could include fraud, forgery, tampering with a public record, or others. Conspiracy requires proof that "the defendant knew that such conduct was a crime," according to the model jury instructions.

There are also two counts of fraud. The first alleges someone "knowingly obtained any benefit by means of false or fraudulent pretenses, representations, promises or material omissions" related to the broad plan to keep Trump in power. The second is similar but includes conduct related to state or government agencies and applies to the creation of the false certificates. The fraud counts require the state to show the defendants obtained some benefit, according to the jury instructions.

Each defendant is also charged with six counts of forgery, a felony that occurs if someone "falsely makes, completes or alters a written instrument" or "offered or presented, whether accepted or not, a forged instrument or one thatcontained false information," state law says. Prosecutors must prove that was done with "intent to defraud," according to the law.

The counts relate to the electors sending copies of their phony certificate to the National Archives, the Arizona secretary of state, the chief judge of Arizona's federal court and the president of the U.S. Senate. Two of the six counts are for sending second copies of the certificate to the Secretary of State's Office and National Archives.

The potential prison penalties

Under Arizona law, conspiracy is a class 2 felony. A conviction carries a presumptive sentence of five years in prison. That term can be reduced, lengthened or even converted to probation depending on various factors such as prior criminal history or lack thereof.

That's notwithstanding any possible plea agreements defendants might make with Mayes' office, which could lessen their individual penalties.

The charges come 3 ½ years after Trump’s doubt-casting on election security gave rise to a plan in seven states to give Congress a path to delay certifying the election result. Testimony before the Congressional committee outlined evidence the plan was orchestrated by top Trump lawyers and advisers.

Their pressure campaign in the states targeted Arizona at a time when it was under Republican control. But the reception wasn’t entirely warm, and the Trump aides were rebuffed by several GOP officials who would not participate in the scheme.

Those who did, namely the 11 GOP party officials and leaders, are now named in the indictment.

"We are encouraged that now the court process is in motion where rules govern rather than the ever-changing whims of politicians," said Kurt Altman, who's serving as attorney for eight of the electors. "As I’ve said before, our clients look forward to their day in court.”

Reach reporter Stacey Barchenger at stacey.barchenger@arizonarepublic.com or 480-416-5669.

Reach reporter Ray Stern at rstern@arizonarepublic.com or 480-276-3237. Follow him on X @raystern.

This article originally appeared on Arizona Republic: Arizona fake electors: Which elements will be crucial at trial?