January 6th 'fake elector scheme' offers a clear 'path to prosecuting Trump': attorney

No one can accuse the January 6 Select Committee’s final report of not being comprehensive; the report, which National Public Radio (NPR) has published in its entirety on its website, is 845 pages long. One of the many things the Committee covers in the report is the fake electors plot of late 2020, which found MAGA Republicans in swing states circulating bogus Electoral College documents in an effort to give electoral votes that now-President Joe Biden legitimately won to Donald Trump.

In an article published by the conservative website The Bulwark the morning after Christmas 2022, attorney/columnist Philip Rotner examines what the January 6 Committee’s final report has to say about that plot and lays out some reasons why it makes a strong argument for criminally prosecuting Trump.

“On December 14, 2020,” Rotner explains, “Republican operatives in at least five states — each of which had already officially certified Joe Biden as the winner — forged and submitted to Congress and the National Archives fake Electoral College certificates purporting to certify Donald Trump, not Biden, as the ‘duly elected’ winner. The left-leaning watchdog group American Oversight first blew the whistle on the fake elector scheme in March 2021, but it wasn’t until Rachel Maddow devoted a series of shows to it in January 2022 that it really captured public attention.”

The attorney/columnist continues, “The fake electors were hardly the worst of what Trump visited on us. For sheer journalistic sex appeal, a scheme by a bunch of unknown, bumbling state functionaries to phony up some documents just can’t compete with a president siccing an armed mob on the Capitol. But the fake elector scandal, while not the most shocking of Trump’s predations, has long looked like the straightest route to cracking open the entire 2020 election scheme, and to getting Donald Trump indicted and convicted of a crime — at least until the Mar-a-Lago stolen documents scandal was revealed, but that’s another story.”

Rotner stresses that if Trump was a “knowing participant” in the “fake elector scheme,” that would be damning whether or not he honestly believed that the 2020 election was stolen from him.

“Even if he really, truly believed the election was stolen, it would not be a defense to criminal charges for participating in a fraudulent scheme to submit forged documents as the official results of state presidential elections,” Rotner argues. “To the contrary, his belief that he was stealing back a stolen election would be highly incriminating proof of his motive, not a defense…. If it can be proved that Trump intentionally participated in the scheme to try to pass off forged documents as official state documents, and then use the phony documents to overturn an election, it wouldn’t make any difference why he did so. The act of participating in the scheme, in and of itself, regardless of his purported reasons for doing so, would still run afoul of all kinds of state and federal criminal laws.”

Rotner continues, “The path to prosecuting Trump for the fake elector scheme — either as a standalone crime or as a crucial element of a larger conspiracy to overturn the results of a presidential election —became much clearer last week with the publication of the final report of the House January 6 Committee.”

The January 6 Committee’s final report, according to Rotner, shows that “the scheme went all the way to the top, right up to Trump himself” and that “while some of the lower-level participants in the scheme — most likely some of the state-level GOP operatives who actually signed the phony certificates — may have been duped into believing that that it was a contingency plan, the higher ups who created and executed the scheme knew better."

“According to the report, by December 8, 2020 — less than three weeks after (attorney Kenneth) Chesebro first laid the groundwork for the scheme in a November 18 memo — ‘President Trump had decided to pursue the fake elector plan and was driving it,’” Rotner notes. “By mid-December, Trump had enlisted the assistance of RNC Chairwoman Ronna McDaniel in the scheme, worked with Rudy Giuliani on its implementation, and been informed that litigation would be filed in four states ‘to create a pretext to claim that it was still possible for the fake electors to be authorized retroactively.’ So, it appears that the previously missing link — the link between the fake elector scheme and Trump himself — is no longer missing. Trump not only ‘participated’ in the fake elector scheme, he orchestrated it.”