WASHINGTON — Law enforcement officials, members of Congress and the House committee investigating the Jan. 6 attack on the Capitol are digging deeper into the role that fake slates of electors played in efforts by former President Donald Trump to cling to power after he lost the 2020 election.
In recent days, the state attorneys general in Michigan and New Mexico have asked the Justice Department to investigate fake slates of electors that falsely claimed that Trump, not Joe Biden, had won their states. Rep. Mark Pocan, D-Wis., wrote to Attorney General Merrick Garland on Friday demanding an investigation into the same issue in his state.
And this week, members of the House committee scrutinizing the Jan. 6 riot said that they, too, were examining the part that the bogus electoral slates played in Trump’s scheme to overturn the election.
“We want to look at the fraudulent activity that was contained in the preparation of these fake Electoral College certificates, and then we want to look to see to what extent this was part of a comprehensive plan to overthrow the 2020 election,” Rep. Jamie Raskin, D-Md., a member of the committee, told reporters on Capitol Hill.
“There’s no doubt that those people were engaged in a constitutional fraud on the public and on the democracy,” he added in a separate interview, referring to the bogus electors.
The false slates, put forth in seven contested swing states, appear to have been part of a strategy by Trump’s allies to disrupt the normal workings of the Electoral College. After election officials in those states sent official lists of electors who had voted for Biden to the Electoral College, the fake slates claimed that Trump had won.
“I’ve had people in my district ask me what’s being done with these folks,” said Pocan, who forwarded the names of the 10 fake pro-Trump electors from his state to Garland in his letter demanding an investigation. “Enough people kept bringing it up. If people think they can get away with some scam, they’ll try another and another.”
Attorney General Dana Nessel of Michigan said this week that she believed there was enough evidence to charge 16 Republicans in her state with submitting false certificates claiming Trump won her state’s electoral votes in 2020. She said she had handed over to federal prosecutors the results of a yearlong investigation into Republicans who signed documents in December 2020 falsely identifying themselves as Michigan’s electors. New Mexico’s attorney general, Hector Balderas Jr., referred similar allegations to federal law enforcement. And a local prosecutor in Wisconsin also recommended that state or federal prosecutors investigate fake electors in that state.
Rep. Bennie Thompson, D-Miss., chair of the committee, called the fake electors a “concern.” They could also play a role as the committee considers making criminal referrals to the Justice Department.
If investigators determine that the fake slates were meant to improperly influence the election, those who created them could in theory be charged with falsifying voting documents, mail fraud or even a conspiracy to defraud the United States.
Thompson’s committee this week received more than 700 pages of documents from the Trump White House related to various attempts to challenge the election, according to a National Archives log, including a draft of an executive order calling for extreme measures.
The draft executive order, which was obtained by Politico and called for the military to seize voting machines and deploy the National Guard, was the subject of heated debate inside the White House in December, as pro-Trump lawyer Sidney Powell and Trump’s former national security adviser Michael Flynn promoted wild conspiracies about voting machines. Others in the room, including White House counsel Pat Cipollone, repeatedly and aggressively pushed back on the ideas being proposed.
Raskin described the executive order as “right out of a dictator’s playbook in a banana republic.”
“Slightly cooler heads may have prevailed in the moment,” he said, “but we are in the process of trying to reconstruct the history of all these events.”
The flurry of interest around the actions of the fake electors comes after reports in The Washington Post, CNN and Politico revealed new details about the Trump campaign’s efforts to organize the slates. Ultimately, the efforts were rejected by Vice President Mike Pence.
Although he did not directly acknowledge the existence of alternate electors as he presided over Congress’ official count of electoral votes Jan. 6, Pence did amend the traditional script read by a vice president during such proceedings, adding language making clear that alternate slates of electors offered up by states were not considered legitimate.
As he ticked through the states, Pence said repeatedly that the result certified by the Electoral College, “the parliamentarian has advised me, is the only certificate of vote from that state that purports to be a return from the state, and that has annexed to it a certificate from an authority of the state purporting to appoint and ascertain electors.”
It is not clear who first proposed that Republican-led state legislatures in key states that Biden won could replace the electors chosen by the voters with a different slate. But John Eastman, a lawyer who would later present Trump with an elaborate plan for overturning the election, was one of the first to bring the idea up publicly when he addressed Georgia lawmakers by video Dec. 3, 2020, and advised them to “adopt a slate of electors yourself.”
At the time, the notion was roundly ridiculed by legal scholars who dismissed it as a futile attempt to subvert the will of the voters.
But a review of the steps taken by Trump’s allies to push the plan suggests that the effort was widespread and that it caught on among influential players, including those in conservative law and media circles and with White House aides.
At the heart of the plan was an effort to empower Trump’s allies in Congress to hand him the election. Under the Constitution, if the Electoral College deadlocks or if no candidate receives a majority of its votes, the House of Representatives decides the victor. Each state delegation casts a single vote in these so-called contingent elections. Under that scenario, Trump would almost certainly have won.
Central in the effort was a group called the Amistad Project, a wing of the Thomas More Society, a Chicago-based conservative legal organization. In the wake of the election, the Amistad Project worked closely with Rudy Giuliani and other members of Trump’s legal team to file lawsuits challenging the vote results in key swing states.
“We are excited to have the Amistad Project as a partner in the fight to ensure the integrity of our elections,” Giuliani told a Wisconsin political website at the time.
On Dec. 14, as the members of the Electoral College were set to meet and certify electors in all 50 states, Ian Northon, a lawyer for Amistad Project, tried to deliver a false slate of pro-Trump electors to the Michigan Legislature in Lansing, but was turned away by state troopers. That same day, the Amistad Project’s director, Phill Kline, fanned across right-wing media outlets promoting the fake elector plan.
On a podcast run by Steve Bannon, a former adviser to Trump, Kline declared that only state lawmakers had the power to decide who should be electors, “not governors or local election officials or even the Congress of the United States.”
Kline also appeared on One America News, a conservative television network, saying that if dueling slates of electors cast doubt on the results of the election, then the House of Representatives would get to decide who won — and that would lead to a victory for Trump.
Some of Trump’s own aides were pushing this same gambit. As the Electoral College gathered to vote, Stephen Miller, a top adviser to Trump at the time, announced on Fox News that state lawmakers in several “contested states” were sending “an alternate slate of electors” to Congress.
“This will ensure that all of our legal remedies will remain open,” Miller said.
Even after the Electoral College certified Biden’s victory, ignoring the fake slates, Kline and other allies of Trump did not give up the fight.
On Dec. 22, 2020, the Amistad Project filed a federal lawsuit claiming that the state lawmakers whose alternate slates were rejected had been “prohibited from fulfilling their constitutional responsibilities.”
The lawsuit — which was ultimately dismissed — sought a judicial order that would have essentially forced Pence to acknowledge the fake electors Jan. 6, 2021, when Congress met to issue the final count of the Electoral College results.
Kline could not be reached for comment, but he posted a message on Twitter on Tuesday condemning Nessel for what he called “trumped-up charges of ‘forgery’” with respect to the fake electors in Michigan.
“The timing of this attack — more than a year after the fact — shows that it’s purely political,” he wrote.