The Fake Electors Scheme, Explained

The brazen plan to create false slates of electors pledged to former President Donald J. Trump in seven swing states that were actually won by Joseph R. Biden Jr. was arguably the longest-running and most expansive of the multiple efforts by Mr. Trump and his allies to overturn the results of the 2020 election.

It was also one of the most confusing, involving a sprawling cast of pro-Trump lawyers, state Republican officials and White House aides in an effort that began before some states had even finished counting their ballots. It culminated in the campaign to pressure Vice President Mike Pence to use the false slates to subvert congressional certification of the outcome on Jan. 6, 2021 — and in the violent attack on the Capitol that unfolded as he refused to do so.

The scheme had a vague historical precedent and was rooted, at least in theory, in a post-Reconstruction Era law designed to address how to handle disputed elections. But it was deemed illegal by Mr. Trump’s own White House Counsel’s Office. Even some of the lawyers who helped come up with the idea referred to it as fake and acknowledged that it was of dubious legality, according to a cache of email messages brought to light by The New York Times.

The fake electors tactic caught the attention of state law enforcement officials around the beginning of this year, and soon became a focus of the inquiry being conducted by the House select committee investigating the events of Jan. 6.

The plan has also figured prominently in an investigation that an Atlanta-area prosecutor is conducting into Mr. Trump’s alleged election meddling. And it is at the heart of the Justice Department’s own wide-ranging Jan. 6 inquiry.

Here is a look at the plan: where it came from; how it was meant to work; the various inquiries it has now become a part of; and the ways in which it could serve to implicate Mr. Trump in criminal activity.

Hawaii, 1960, Provided the Template

In one of the first legal memos laying out the details of the fake elector scheme, a pro-Trump lawyer named Kenneth Chesebro justified the plan by pointing to an odd episode in American history: a quarrel that took place in Hawaii during the 1960 presidential race between Senator John F. Kennedy and Vice President Richard M. Nixon.

The results of the vote count in Hawaii remained in dispute — by about 100 ballots — even as a crucial deadline for the Electoral College to meet and cast its votes drew near. A recount was underway but it did not appear as though it would be completed by the time the Electoral College was expected to convene, on Dec. 19, 1960.

(The winner of the popular vote in nearly all of the states is allocated all of that state’s electors, which are apportioned based on population. Maine and Nebraska are the exceptions; they allocate their electors based on the winners in congressional districts. To win the presidency, a candidate has to win a majority of the 538 total electoral votes.)

Despite the unfolding recount, Mr. Nixon claimed he had won the state, and the governor formally certified a slate of electors declaring him the victor. At the same time, Mr. Kennedy’s campaign, holding out hope that he would eventually prevail, drafted its own slate of electors, claiming that he had in fact won the race.

In his memo, Mr. Chesebro suggested that this unusual situation set a precedent not only for drafting and submitting two competing slates of electors to the Electoral College, but also for pushing back the latest possible time for settling the election results to Jan. 6 — the date set in the Constitution for a joint session of Congress to certify the final count of electors.

The competing slate conundrum in Hawaii was ultimately put to rest when Mr. Kennedy prevailed in the recount, and a new governor of Hawaii certified a freshly drafted slate of his electors.

Then, on Jan. 6, 1961, Mr. Nixon, overseeing the congressional certification session in his role as president of the Senate, received all three slates of electors — his own, the initial Kennedy slate and the certified Kennedy slate — but agreed that the last one should be formally accepted.

Trump’s Allies Supercharged the Plan

Even if the Kennedy campaign had lost in Hawaii, it would not have affected the ultimate outcome of the election. But the effort by Mr. Trump and his allies to create competing slates of electors in seven different states at once would have dramatically altered the results if it had been successful.

The Trump plan began with an effort to persuade Republican officials in the targeted states — Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin — to help draft, or to put their names on, documents that declared Mr. Trump to be the victor.

That effort was largely led by lawyers close to Mr. Trump, like Rudolph W. Giuliani and John Eastman, who sometimes communicated directly with local points of contact in the state, or by lawyers who worked in the states themselves and dealt with Mr. Giuliani, Mr. Eastman or with Mr. Trump’s campaign aides.

Their stated rationale was that Mr. Biden’s victories in those states would be overturned once they could establish their claims of widespread voting fraud and other irregularities, and that it was only prudent to have the “alternate” slates of electors in place for that eventuality.

But, as Mr. Trump had been told by his campaign aides and eventually even his attorney general, there were no legitimate claims of fraud sufficient to change the outcome of the race, and the seven states all certified Mr. Biden’s Electoral College victory on Dec. 14, 2020. Mr. Trump and his allies barreled ahead with the electors plan nonetheless, with an increasing focus on using the ceremonial congressional certification process on Jan. 6 to derail the transfer of power.

Ultimately, several dozen of Mr. Trump’s allies in the states signed false slates of electors, and most were unequivocal in their contention that Mr. Trump had won. But in Pennsylvania and New Mexico, local officials who drafted the documents included a caveat, saying that they should only be considered if Mr. Trump prevailed in the many lawsuits he and his allies had filed challenging the election, and was legally the winner.

Once the false pro-Trump slates had been created, Mr. Trump and his allies turned to the second part of the plan: strong-arming Mr. Pence into considering them during the joint session of Congress on Jan. 6. The point was to persuade Mr. Pence to say that the election was somehow flawed or in doubt.

“We would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted,” Jack Wilenchik, a pro-Trump lawyer based in Arizona, wrote in an email to his colleagues.

Any number of outcomes could have worked in Mr. Trump’s favor.

Most simply, Mr. Trump and his allies sought to convince Mr. Pence to count the pro-Trump slates, reject those saying Mr. Biden had won and thus unilaterally keep the former president in office.

Alternatively, the Trump team hoped that Mr. Pence might declare the election to be irreparably defective and, under the Electoral Count Act of 1887, let state delegations in the House of Representatives decide the election themselves, a process that would also have given Mr. Trump his victory.

In yet a third option, Mr. Trump and his allies thought Mr. Pence could choose to delay the certification of the electors count, providing the former president with more time to prove his claims of fraud or mount a last-ditch challenge in a Supreme Court case.

At Least 3 Investigations Involve the Fake Electors

In Georgia, the Fulton County district attorney, Fani T. Willis, has notified 16 people who identified themselves as the state’s pro-Trump electors that they are targets in an ongoing criminal investigation into efforts to overturn the election results in Georgia.

In Washington, the Justice Department’s inspector general obtained a warrant to search the home of a former department official, Jeffrey Clark, as part of its 18-month long investigation into attempts by Justice Department employees to undo the election.

Mr. Clark pressured the nation’s top prosecutors to send a letter to Georgia state officials falsely stating, among other things, that the legislature should create an alternative slate of electors that supported Mr. Trump.

The warrant indicated that Mr. Clark is being investigated for conspiracy to obstruct the certification of the presidential election, according to a person familiar with the matter. In a related action, the inspector general and the F.B.I. seized the phone of Mr. Eastman.

A federal grand jury this spring issued subpoenas to some pro-Trump electors and Republican officials requesting information about several lawyers closely allied with Mr. Trump and the electors scheme, including Mr. Giuliani, Mr. Eastman, Jenna Ellis, who worked with Mr. Giuliani, and Mr. Chesebro. The subpoenas also sought information about any employees of Mr. Trump or his campaign who knew about the plan.

Some pro-Trump elector slates were filed with the National Archives. It is a federal crime to knowingly submit false statements or documentation to a federal agency for an undue end.

Trump’s Ties Come Into View

While no prosecutor has criminally charged anyone for their participation in the scheme to submit false slates of electors to Congress, possible ties between Mr. Trump and the plan have come into view over the past few months.

In a lawsuit that Mr. Eastman filed hoping to keep scores of documents from reaching the House committee investigating Jan. 6, court filings established that he and Mr. Trump had worked together on several efforts to undo the election results, including the fake electors plan.

In a ruling against Mr. Eastman, Judge David O. Carter of the Central District of California said that Mr. Trump had facilitated two meetings “explicitly tied” to persuading Mr. Pence to either reject electors or delay the count. Judge Carter said that “the illegality of the plan was obvious.”

The Jan. 6 committee has also pinned the effort to assemble slates of electors in key battleground states squarely on the Trump campaign, saying that Mr. Trump’s allies “created phony certificates associated with these fake electors and then transmitted these certificates to Washington.”

Rusty Bowers, the Republican speaker of the Arizona House of Representatives, told the committee that he refused Mr. Trump’s directive to create a false slate of pro-Trump electors. “You are asking me to do something against my oath, and I will not break my oath,” he testified saying to Mr. Trump.

Last week, Mr. Pence’s two top White House aides testified before the federal grand jury investigating the electors scheme. The two aides — Marc Short, Mr. Pence’s chief of staff, and Greg Jacob, his counsel — were present in the Oval Office on Jan. 4, 2021, when Mr. Trump and Mr. Eastman tried unsuccessfully to convince Mr. Pence that he could invoke the competing elector slates to derail the congressional certification two days later.

As part of its criminal investigation, the Justice Department has begun asking witnesses in the case about Mr. Trump’s involvement.