‘Fake elector’ probes in 2020 swing states could spell more trouble for Trump

Former President Trump’s four criminal cases have dominated headlines since April, when he became the first president — current or former — to be indicted. But behind the scenes, a handful of state attorneys general are still investigating whether additional charges over efforts to keep him in power after losing the 2020 election could be brought.

At least four 2020 swing states’ prosecutorial arms are still probing the slates of so-called “fake electors” who attempted to falsely certify that Trump had won the presidential election that year. 

The swing states’ investigations could prove consequential to Trump and his allies, spelling even more legal trouble for the former president, especially as his federal and Georgia cases over his efforts to subvert the 2020 election results progress. 

The alternate electors scheme, spearheaded by Trump lawyer John Eastman and bolstered by other lawyers, relied on former Vice President Mike Pence to certify slates of Trump-supporting “fake” electors in battleground states instead of the true electoral votes cast for Biden.

On Jan. 6, 2021 — the day of the election certification — Pence declined to go along with the plan, writing in a letter that his “oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.” A pro-Trump mob stormed the Capitol later that day in protest of the election results and Pence’s refusal to overturn them.

Fake electors allegedly convened in Georgia, Arizona, Michigan, Pennsylvania, New Mexico, Nevada and Wisconsin, claiming without basis that they were “duly elected” electors from their states. 

In Georgia, three of the state’s 16 fake electors were charged alongside Trump and his allies in Fulton County District Attorney Fani Willis’ (D) sweeping racketeering case. Several other alternate electors are known to have accepted immunity deals.

Already, the three alternate electors — David Shafer, a former state GOP chair; Shawn Still, a current state senator; and Cathleen Latham, a local Republican official — have argued in court filings that they acted “at the direction of” Trump, showing early signs of fracturing among the 19 defendants charged in that case.

Another of Trump’s co-defendants in Georgia, Kenneth Chesebro, pleaded guilty last month to one count of conspiracy to file false documents. He is considered to be the person who helped mastermind the alternate electors plan.

Following his guilty plea, Chesebro’s counsel asked the court to modify his probation rules to allow for travel to Nevada, Arizona and Washington, D.C., for ongoing “investigations of the ‘election fraud’ cases.” 

“Mr. Chesebro needs to be able to travel to these jurisdictions in order to meet with counsel,” the filing read. 

Several defendants charged in Georgia — and under investigation in the federal election subversion case — were key players in the alternate electors schemes that played out across the country after Trump lost. Other states’ investigations may be bolstered by evidence revealed as those cases progress, whether in court filings, through guilty pleas or at trial.

Politico first confirmed last week that Nevada Attorney General Aaron Ford (D) is investigating the six Nevada activists who met and signed false paperwork saying they were the state’s true electors. The Hill requested comment from his office. 

Ford has said that Nevada’s statutes don’t “directly address” the alternate electors’ conduct, but indicated that doesn’t mean his office won’t prosecute. 

“It is not that I’ve said that I can do nothing,” Ford told Nevada’s 8 News Now in September.  What I have said, and I’ve been precise with my wording on purpose, is we don’t have statutes in this state that directly address the issue.”

Details from the months after Trump lost the 2020 election indicate that the former president and his closest allies could be implicated in the state’s investigation. 

On Nov. 4, 2020, a day after the election, Nevada GOP chairman Michael McDonald — one of the state’s six fake electors — joined a conference call with Trump, his son Eric Trump, then-chief-of-staff Mark Meadows and longtime Trump ally Rudy Giuliani, according to deposition transcripts released by the now-defunct House Jan. 6 committee. 

“They want full attack mode,” McDonald later wrote of the call in a text message. “We’re gonna have a war room meeting in about an hour.” 

Another Nevada fake elector, GOP committee member Jim DeGaffenreid, emailed Chesebro on Dec. 11, 2020 with the subject “URGENT-Trump-Pence campaign asked me to contact you to coordinate Dec. 14 voting by Nevada electors,” according to the Jan. 6 committee’s final report. 

Planning in Nevada to use an alternate slate of electors began as early as four days before the 2020 election, when DeGraffenreid told other state party officials in a text that former Nevada Secretary of State Barbara Cegavske (R) “might do a lot of things, but sending a slate of Republican electors without them being clearly the winners of the popular vote is not one of them.” 

The Arizona fake electors investigation, which a spokesperson for the state’s attorney general’s office confirmed is ongoing, could prove to be similarly contentious for Trump and his allies — particularly Giuliani, who led the effort to convince state officials to use the pro-Trump alternate electors.

In his June 2022 testimony before the House Jan. 6 committee, former Arizona House Speaker Rusty Bowers (R) said he repeatedly pushed the former New York mayor-turned-Trump-surrogate for proof of his 2020 election fraud claims. But Giuliani failed to produce any.

“My recollection, [Giuliani] said, ‘We’ve got lots of theories, we just don’t have the evidence,’” Bowers testified.

Jenna Ellis, who in Georgia recently pleaded guilty to a felony charge of aiding and abetting false statements and writings, was also at that meeting. 

Trump himself also appeared to play an active role in the Arizona efforts. As former Arizona Gov. Doug Ducey (R) signed the certification of the state’s 2020 election results, his phone played a ringtone for the song “Hail to the Chief,” which he immediately silenced. The governor later admitted that the call was from Trump, though he declined to provide any details of their chat other than that Trump did not ask him to withhold certification. 

Later, Trump tweeted that “Republicans will long remember” Ducey’s decision to certify the results and retweeted a post that the governor “betrayed the people of Arizona,” adding the commentary “TRUE!” 

In Michigan, 16 people already face charges for falsely stating they were the state’s “duly elected and qualified electors.”  A spokesperson for the state’s attorney general’s office told The Hill that its investigation is ongoing and the office “may assess additional charges as needed based on the evidence at hand.”

New Mexico’s attorney general’s office also told The Hill its investigation into the states’ alternate slate of pro-Trump electors is ongoing.

A spokesperson for Pennsylvania’s attorneys general’s office declined to comment over whether it is investigating the states’ fake electors scheme. However, Gov. Josh Shapiro (D) said when he was the state’s attorney general that the actions of Pennsylvania’s alternate electors were likely not criminal and that the state would not investigate them.

The Hill requested comment from Wisconsin’s attorney general’s office on the matter.