At 11.30am on 14 December 2020, Greg Bluestein, a political reporter for the Atlanta Journal-Constitution, hurried into the Georgia state capitol at the start of what he knew would be a momentous day. He was one of a handful of reporters who were to witness the casting of electoral college votes which would officially hand Joe Biden victory in the critical battleground state – and with it the US presidency.
As Bluestein rushed up to the state senate chamber where the 16 Democratic electors were assembling ahead of the historic vote, he passed meeting room 216. He noticed a gaggle of people milling around its heavy wooden door, among them some of the 16 Republican electors chosen to represent Donald Trump should he have won the Georgia race.
The reporter was surprised. Trump had officially lost in Georgia by 11,779 votes, an outcome that had been confirmed by two recounts including a full hand tally of all ballots.
Only the electors of the winning candidate based on popular support were supposed to show up. Electors representing Trump, the loser, simply had no reason to be there.
“So I went over and peeked my head in and went, ‘What’s going on here, guys?’” Bluestein recalled. “A couple of people started flurrying, someone was shuffling papers, then a party functionary standing at the door said to me, ‘It’s an education meeting’ and basically slammed the door on me.”
Thus began one of the more bizarre days in Bluestein’s reporting life. He spent the next couple of hours scurrying up and down the marble steps of the capitol building, ping-ponging between the official casting of the electoral college votes for Biden on the third floor and the thoroughly unofficial casting of fake Trump votes in room 216.
“The Democratic vote had pomp and circumstance – it was a real, formal process. As each elector stood and voted you could feel the gravity and the emotion of the moment,” Bluestein said.
Scrambling down to room 216, by contrast, he found the setting devoid of any gravitas. “It was just willy-nilly.”
It is this gathering of what the Trump campaign called “alternate” electors – but which others have denounced as “fake”, “sham” and “phony” ones – which is now at the centre of the criminal investigation into the attempt to overturn the presidential election in Georgia. The probe is being led by Fani Willis, the district attorney in Fulton county which covers much of Atlanta.
She is expected to convene a grand jury this month with the power to issue indictments. Among the targets of possible charges is Trump himself, several in his inner circle including his former personal lawyer Rudy Giuliani and John Eastman, the conservative attorney credited as being the architect of the legal road map for subverting the 2020 election, and key members of the 16 fake electors who came together in room 216.
The federal investigation into the efforts to overturn the 2020 election led by special counsel Jack Smith is also ramping up its probe of the fake electors. CNN reported in June that at least two Republican fake electors have been forced to testify to a grand jury in Washington in return for limited immunity. And in Michigan, attorney general Dana Nessel recently announced multiple felony charges against the state’s 16 fake electors.
The Fulton county and federal investigations pose serious legal peril for Trump that adds to his criminal prosecution for allegedly mishandling classified documents at his Mar-a-Lago home, and the federal inquiry into his role in the violent storming of the US Capitol on 6 January 2021. A special grand jury in Georgia has already recommended indictments for several people, with the forewoman hinting strongly that they included the former president.
“You’re not going to be shocked. It’s not rocket science,” she said.
The story of how 16 men and women came together in an improvised attempt to reshape the course of US history – told here through interviews with participants, law experts and a review of evidence gathered by the House January 6 committee investigating the Capitol siege – is not only a live legal issue with potentially profound ramifications for Trump as he vies to return to the White House in 2024. It also provides insight into the febrile nature of American politics, where democratic norms can seemingly be shredded “willy-nilly”.
According to the House January 6 committee, the fake elector scheme was the brainchild of an outside legal advisor to the Trump campaign, Kenneth Chesebro. The committee’s final report points to the New York-based lawyer as being “central to the creation of the plan”.
On 18 November, two weeks after the presidential election, Chesebro wrote a secret memo which is seen as the first shot fired in the fake elector war. Taking the example of Wisconsin, he argued that by mobilizing his electors, Trump could buy himself time to challenge through the courts his defeat in key swing states.
Chesebro’s proposal was for Trump electors to turn up and vote in their respective states on 14 December – the date stipulated for the electoral college to convene only for winning candidates under America’s arcane presidential election system. The lawyer glossed over the inconvenient truth that Trump had lost in those states, rendering his electors redundant.
Chesebro conceded in his memo that it “may seem odd that electors pledged to Trump and [vice president Mike] Pence might meet and cast their votes on December 14 even if, at that juncture, the Trump-Pence ticket is behind in the vote count … However, a fair reading of the federal statutes suggests that this is a reasonable course of action.”
Specialists in constitutional law take a starkly different view. They point out that by then Trump’s legal team was struggling to find any credible evidence of fraud in the presidential election and were losing court challenges in abundance – out of at least 62 cases that Trump fought over the 2020 election, 61 were defeated.
Laurence Tribe, a constitutional law professor at Harvard, employed Chesebro as a research assistant some 20 years ago. He told the Guardian that his former aide was “smart enough to know full well that the scheme he helped cook up – a conspiracy for fake electors to gather and sign phony pro-Trump ballots on December 14 so as to buy Trump time – was anything but a ‘reasonable course of action’.”
Tribe added: “It was obviously and transparently illegal – indeed, it was manifestly criminal.”
The Guardian contacted Chesebro directly and through his lawyers, but received no response.
In a deposition with the January 6 committee in October 2022, Chesebro was asked to describe his role in the plan to have electors meet and cast electoral college votes for Trump in states he had lost. He declined to answer, pleading the fifth amendment.
Despite its shaky legal foundations, Chesebro’s theory quickly gained traction within Trump’s inner legal circle, earning the enthusiastic embrace of Eastman and Giuliani.
Within days they had devised a new strategy for what they called “litigation states”. Six states were identified – Georgia, Wisconsin, Arizona, Michigan, Nevada and Pennsylvania – as the focal points of the “alternate” elector master plan.
In all of them, Trump had lost the election, which meant that under electoral law his electors should have stood down.
In all of them, too, Trump lawyers had claimed widespread election fraud without producing evidence and were using that false claim to justify calling their electors into action. It just so happened that the total electoral college votes wielded by these six states (79 votes) came out four ahead of Biden’s actual margin of victory (75 votes).
In other words, the fake electors had the potential, if the plan could be pulled off, to overturn the election and keep Trump in the White House.
Georgia’s 16 Trump electors were nominated towards the beginning of 2020 by the executive committee of the Georgia Republican party. They were drawn from the usual suspects – senior apparatchiks, major donors, and local dignitaries.
The chairman of the state party at the time was David Shafer, who had a controversial four years at its helm. Under his tenure, the party has shifted sharply towards the extreme right. It also effectively handed control of the US Senate to Democrats by losing both senatorial elections in Georgia in 2021.
The group of 16 electors, with Shafer as chairman, began routinely enough. Individuals were flattered to be invited to take part in what is usually seen as a ceremonial electoral role.
John Isakson was one of the initial 16 who accepted the invitation. He told the January 6 committee in an interview that Shafer invited him to be a presidential elector.
Isakson agreed. His idea of the role was that if Trump won, “we went to Washington to cast our votes in the electoral college”.
As Isakson rightly conceived it, in the normal run of events the 16 Trump electors would effectively have ceased to exist on 7 December, the date that Biden’s victory was certified in Georgia. But then there was Chesebro’s “reasonable course of action” – the idea that they should gather to vote anyway to buy Trump time.
Days before the Democratic electors were scheduled to appear at the Georgia capitol to cast their ballots on behalf of the winner, the Republican electors began receiving calls asking them to come to the Capitol to cast their alternative ballots. The request came as a surprise to many.
Trump’s legal team tied it to a big lawsuit pending in the US supreme court in which Biden’s victory was being challenged in four battleground states including Georgia. It was claimed (without credible evidence) that voting irregularities had occurred.
The case was lodged on 8 December by the attorney general of Texas, Ken Paxton.
Electors were told that if that suit were to have any chance of success, a slate of “alternate” ballots had to be cast in the battleground states. Otherwise, Trump might win the court challenge, and thus the presidency, only to find himself stymied because key electoral college votes hadn’t been cast on the allotted day.
Shawn Still, a Georgia state senator who served as the secretary of the 16 Republican fake electors, used a sporting analogy to visualise the concept. He told the January 6 committee in a deposition: “When you have the Super Bowl you print T-shirts, both teams as being the winner, and you keep the T-shirts for the ones that were the winner, and you throw away the ones that weren’t, but you still have to have two sets of T-shirts for both sets of winners.”
Guardian interviews with participants in the fake elector plan and a review of January 6 committee documents show that the same official line kept being presented: the Republican electors would have to cast their votes in order to keep Trump’s hopes alive should a judge find in his favour. The votes would only be relevant if the president’s lawsuit went ahead.
The problem was that Trump’s lawsuit did not go ahead. On 11 December, the US supreme court brusquely threw out the Texas case.
The decision, issued three days before the electors were set to gather, was another pivotal point at which the plan could have been called off. In fact, the team of Trump campaign lawyers who had been given the job of running the “alternate” scheme assumed that it would indeed now be terminated.
Records compiled by the January 6 committee reveal that the supreme court’s dismissal of the lawsuit had a seismic impact inside the Trump campaign. Three of its key lawyers – general counsel Matt Morgan, his associate Josh Findlay, and deputy campaign manager Justin Clark – all immediately agreed that the “alternate” elector plan which they supervised up until then no longer had any merit.
“We’re done with this, just stop work on this exercise… There’s no other recourse here,” Morgan told Findlay by phone within minutes of the court’s decision being delivered.
The three lawyers thought that would be the end of it. They were wrong. Shortly after Morgan contacted Findlay to tell him to drop the fake elector scheme, he called a second time.
“Rudy wants to keep fighting this thing,” Morgan said, referring to Giuliani who was at that time leading the legal effort to overturn Biden’s victory. “So we’re going to have you pass it off to Ken.”
This was a bombshell exploding on top of a bombshell. Not only did Giuliani want to press on with the fake elector idea, but he wanted the three most senior campaign lawyers to step aside and hand the project over to Chesebro, the inventor of the plan.
Findlay was astounded. He told January 6 committee investigators that the impetus for this switch in strategy clearly came from Trump himself.
Trump “made it clear that Rudy was in charge of this and that Rudy was executing what he wanted. Rudy had been given power and this is what he wanted to do,” Findlay said.
In that moment the Trump campaign was riven in half. Findlay and his fellow senior attorneys, convinced that the fake elector plan was moribund, suddenly found themselves confronted by Trump, Giuliani and Chesebro who were itching to carry on.
“It led to a divide in the campaign,” Findlay said. “Everyone was shocked by the tactics. It felt like nothing was off the table to some people. [They] were going to do whatever they wanted to do.”
What Giuliani and Chesebro wanted to do was have the 16 fake electors turn up at the Georgia capitol on 14 December and proceed as though Trump had won. For that to proceed, it was critical that the 16 individuals knew nothing about the significance of the dismissal of the Texas lawsuit, the consequent collapse of the legal argument for “alternate” votes, and the rift within the campaign.
As investigators for the January 6 committee told Findlay during his questioning: “Based on our investigation, we have not yet seen any indication that the change in circumstances around the justification for, or reason why, the electors met was communicated to the electors themselves.”
A Georgia official who was close enough to the party leadership to be able to watch the fake elector saga unfold confirmed to the Guardian that many of the electors were kept in the dark. In his estimation, 12 or 13 of the 16 “had no idea what they were doing”.
For at least one of them, the paucity of information was not good enough. Isakson told the January 6 committee that shortly before the electoral college was due to convene, he received a phone call from a number he did not recognize.
The man said there was a gathering at the capitol for the electors and that all of them were invited. Isakson was unimpressed by how the man pitched the event.
“It came across to me like a political rally,” he told investigators. “I indicated that I couldn’t attend because of work.”
In the end, Isakson was one of four of the initial cohort of Republican electors who did not participate in casting fake votes on 14 December. The other three backed out for personal and other reasons that have not been fully disclosed, and all four were replaced.
Apart from keeping the electors in a state of ignorance, there was another order coming down from Trump’s top team: maintain secrecy. Two days before the electoral college gathered, Chesebro wrote to campaign operatives and said that Giuliani would “like to wait until all the electors have voted before putting out any statements or otherwise alerting anyone”.
The following day – just one day to go now – an email was sent by Robert Sinners, the Trump campaign’s state director for election day operations, to all Georgia fake electors. “Thank you for agreeing to serve as a Republican elector or alternate,” it began.
Sinners continued: “I must ask for your complete discretion in this process. Your duties are imperative to ensure the end result – a win in Georgia for President Trump – but will be hampered unless we have complete secrecy and discretion.”
In his deposition to January 6 investigators, Sinners attempted to downplay his email, saying its call for omertà among the fake electors was “innocuous”. He told investigators: “The secrecy element was simply get the people on the bus and make sure that they’re there.”
That was not the sense that Greg Bluestein, the Journal-Constitution reporter, picked up in the days leading to his surreal running up and down the marble stairs at the Georgia Capitol. He reached out to many prominent state Republicans and was repeatedly told nothing was up.
“I remember asking, ‘Hey, just in case, you guys aren’t planning anything right?’ Multiple people told me, ‘No, nope, we’re not gonna do anything.”
This only added to Bluestein’s bemusement when he saw the gaggle outside room 216, including several Republican electors. That’s when he realized that the Trump campaign was very much preparing to do something.
This is the way democracy ends, not with a bang but a whimper. After the electors had gathered in room 216, and the four replacements had been selected, the important business of the day was set to begin – casting false electoral college ballots.
But there was a technical glitch. That morning Sinners, the Trump campaign operative, had bought a new printer at Target to run off the certificates of votes for the electors to sign.
It took him 20 minutes to get the printer out of its box and install the driver software onto his laptop. As the secretary of the fake electors, Shawn Still, recounted to the January 6 committee: “He just fumbled through that, it just kind of became a bit of a snicker moment for everyone”.
Eventually, the printer was sorted. Shafer, as chairman of the electors, called the meeting to order and told the group, in his own words, that “there was an election contest pending and that we were taking these actions today to preserve President Trump’s remedies”. Then they sat around a U-shaped table and each solemnly signed six copies of the certificates.
History had been made. Even if it was fake history.
Copies of those signed documents were obtained by American Oversight, and there it is in black and white: “We, the undersigned, being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Georgia, do hereby … cast each of [our] ballots FOR DONALD J. TRUMP – 16 VOTES.”
The wording was striking. In Pennsylvania, the fake electors had written into their ballots the proviso that the votes would only count should there be “a final non-appealable court order or other proceeding prescribed by law” that gave Trump victory in that state.
In Georgia, there was no such caveat. The certificates read verbatim exactly as they would have done had Trump legitimately won.
These un-caveated certificates were marked to be sent to the “President of the Senate” – Pence in his role as presiding official over the upper chamber of Congress – and to the head of the National Archives. Some of the fake electors were puzzled by this – hadn’t it been agreed that their votes would only be sent to Washington were Trump to win his law case?
Shawn Still told the January 6 committee that he had raised precisely this point as the signed votes were being drawn together by Sinners in room 216. He thought of his Super Bowl T-shirt analogy, and wanted to know from Sinners what would happen to the votes should Trump fail in the courts.
“I remember specifically asking him what happens to them if there is not an overturn. And he said, ‘Well, that’s not up to me to decide, but I guess we’ll just set them aside and box them up somewhere, and that’ll be the end of it’.”
Unbeknownst to several of the Republican electors, Trump’s inner circle of lawyers led by Giuliani and Chesebro had no intention of setting aside the ballots should the legal strategy through the courts fail – as it already had. They now had their sights firmly set on Pence and the final certification of Biden’s victory by Congress on January 6.
On 8 December 2020, six days before the electors convened, Chesebro spoke to an Arizona lawyer who was involved in organising the “alternate” slate for Trump in that state. In an email obtained by the New York Times, the lawyer, Jack Wilenchik, made clear that he was fully aware that the plan was for “fake” votes, though he quickly corrected himself, changing the word to “alternative” and adding a smiley face.
Chesebro’s idea, Wilenchik wrote, was to have the electors send in their votes even though they had no legal standing. That way “members of Congress can fight about whether they should be counted on January 6th … Kind of wild/creative.”
Wild, certainly. Creative, maybe. Legal, unlikely. Tribe told the Guardian that mailing false certificates from Georgia and the other battleground states was a breach of both state and federal laws involving election fraud, interference with the electoral college, obstruction of official government proceedings, and subversion of the lawful transfer of presidential power.
Others have pointed out that sending the false certificates to the National Archives also opened up the possibility of indictments for forgery of a public record. Norm Eisen, a senior fellow at the Brookings Institution, described the Georgia ballots for Trump as being as “phony as a three-dollar bill”
At 12.51pm on 14 December 2020 Shafer, called the meeting in room 216 to a close. The deed had been done. In the end, 84 people from seven states including Georgia signed bogus electoral votes for Trump and sent them off to Washington as part of the billowing sequence of events that culminated violently on January 6.
In the days that followed, the reality sunk in for many people involved in the fake elector plan that they had become enmeshed in something much bigger than themselves. As Sinners put it to January 6 investigators: “It became clear to me afterwards that I don’t think Rudy Giuliani’s intent was ever about legal challenges. He was working with folks like John Eastman and wanted to put pressure on the Vice President to accept these slates of electors regardless … We were just kind of useful idiots or rubes at that point.”
Shafer, the chairman of the electors, stood down in June as head of the state Republican party. He faces legal peril from both the Fulton county and federal probes into the fake elector scheme.
His lawyer Holly Pierson disputed that there was any legal danger from what she called a “baseless, politically motivated prosecution.” She told the Guardian that Shafer was in no actual jeopardy because “everything he and the other presidential electors did was proper and lawful, in keeping with federal and state law, done on the specific advice of legal counsel, and fully protected by the US Constitution.”
Shafer’s lawyers set out his self-defense in an 11-page letter to Fani Willis, the Fulton county district attorney, in May. They said that he had received his own legal advice a week before the events at the state Capitol arguing that it was right for him and the other Republican electors to convene in order to preserve Trump’s remedies.
That advice specifically pointed to a local lawsuit, Trump v Raffensperger, that had been lodged on 4 December and was still pending. (The case languished in the courts until it was voluntarily dismissed a day after the storming of the US Capitol.)
Shafer and his 15 elector peers were all informed last year that they were targets of Willis’ criminal investigation. Since then, at least eight of them have agreed to immunity deals with prosecutors.
The fall-out of the elector plan has elicited a range of responses from the electors themselves. Isakson, who declined to come to the Capitol on 14 December and was replaced in the final fake elector lineup, only learned of what happened after the event.
In his interview with January 6 investigators more than a year later, he was shown one of the false ballots and asked whether he approved of its language that described the 16 as the “duly elected and qualified electors in Georgia”.
He replied: “Knowing everything that I know now, I would have had great concerns. The challenges have been exhausted, and this wouldn’t have been appropriate.”
Some of the electors who, unlike Isakson, did go ahead and sign certificates on 14 December have let it be known privately that they were upset by how things panned out. They had tried to do the right thing but ended up being tied in legal knots.
Sinners expressed even stronger sentiments. He told the January 6 committee that people had been put into a legally compromising position.
“I’m angry. I am angry because I think in a sense, you know, no one really cared if people were potentially putting themselves in jeopardy.”
Sinners was asked by investigators what he felt when he made the connection that his involvement in the fake elector scheme had been used by Trump and Giuliani to spearhead the pressure campaign against Pence leading to the violence on January 6.
“I was ashamed,” he replied. “I was ashamed.”
Source: US Politics - theguardian.com
