Faked Electoral Count Certifications Point to White House Coordination, Possible Criminal Violations

Image courtesy of MSNBC

Back in December of 2020, the Arizona Central reported that a group of GOP “electors” had met on December 14–the same day as the real Electoral College—and had “certified” their state’s votes for former president Trump and not Biden. The group claimed to represent the “sovereign citizens of the Great State of Arizona,” and its spokesperson claimed that she and others had held a day-long meeting with Trump legal advisor Rudy Giuliani before deciding to create the document.

According to Arizona Secretary of State Katie Hobbs, this faked certification was allegedly also created under the direction of the state GOP. Not only did the false “electors” allegedly meet to create this document, but they put it under the official seal of the state, had their signatures notarized, and sent the document to the National Archives and to Congress. Shortly thereafter, Secretary Hobbs sent a cease and desist letter to the group. “By affixing the state seal to documents containing false and misleading information about the results of Arizona's November 3, 2020 General Election, you undermine the confidence in our democratic institutions," her letter said. After that, no one thought much of the matter—until this week.

Enter the January 6 Committee. As part of its investigation into the state level activities of those trying to undo the election, the Committee unearthed an email from the National Archives to Arizona Secretary of State Hobbs indicating that the document had been received but rejected. An enterprising reporter at Politico named Nicholas Wu had the clever thought to make public records requests which, as he reported on Monday, showed that fake electors in Michigan had also sent certificates to Vice President Pence and the National Archives and that there was similar correspondence between the National Archives and state officials about those documents.

Since then, the story has moved quickly. As reported on Tuesday by MSNBC’s Rachel Maddow, groups in at least five crucial swing states—Arizona, Georgia, Michigan, Wisconsin, and Nevada—apparently sent in fake electoral college certifications to the National Archives as well as to Congress. They falsely attested that they were the real electors from these states, most likely in the hope that Mike Pence would fold under pressure and declare (again, falsely) that Congress had received two competing sets of electoral slates from each of these states, calling into question the legitimacy of the actual, certified votes.

It is a crime under 18 U.S.C. Section 595 for any federal, state or local government employee to use “official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President.” In addition, it is a crime under 18 U.S.C. Section 1001 to knowingly and willingly make “any materially false, fictitious or fraudulent representation” in “any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.” A violation is punishable up to five years, or eight if it involves domestic terrorism. Finally, it is also illegal and punishable with up to five years in prison under 18 U.S.C. Section 371 to conspire to commit an offense against or to defraud the United States.

Note that under these statutes, it doesn’t matter whether the fraud actually succeeded or the election was actually interfered with, it matters only that the attempt was made to interfere or defraud. So it would be no defense for the authors and signatories to say they were just playing at being electors and didn’t think they would be taken seriously by the authorities. And in any event, as I explain below, these “certifications” were taken quite seriously by top White House officials and even cited as grounds for an unprecedented move to decertify a state’s electoral count by one of Trump’s allies in the Department of Justice.

Before we get to that, here’s another really interesting and possibly explosive thing: the language and format of these false certifications were identical. The only logical explanation for five sets of fake yet identical “elector” documents, all being sent in from five different swing states, is some level of coordination among these groups. That leads to the conclusion that there must have been some agreement among them before these overt acts were taken in furtherance of that agreement. These are the basic legal elements of a conspiracy to defraud, and possibly a conspiracy to obstruct Congress through corrupt deceit.

So who might have been coordinating this? One very likely candidate, other than Giuliani who we know was at the day-long meeting in Phoenix, is former Trump chief of staff Mark Meadows. As the January 6 Committee’s contempt report laid out, Meadows was deeply involved at the state level with these “alternate” slates:

Mr. Meadows received text messages and emails regarding apparent efforts to encourage Republican legislators in certain States to send alternate slates of electors to Congress, a plan which one Member of Congress acknowledged was ‘‘highly controversial’’ and to which Mr. Meadows responded, ‘‘I love it.’’ Mr. Meadows responded to a similar message by saying ‘‘[w]e are’’ and another such message by saying ‘‘Yes. Have a team on it.’’

Was there in fact a team within or working with the White House to coordinate these faked certifications? Department of Justice official Jeffrey Clark, who was Trump’s lackey and pick as Acting Attorney General if Trump fired Jeffrey Rosen, seemed to confirm that on December 28, 2020. Clark’s brazen draft letter to the Georgia governor and legislature, which Acting AG Rosen overruled and was thankfully never sent, specifically supports this:

The Department believes that in Georgia and several other States, both a slate of electors supporting Joseph R. Biden, Jr. and a separate slate of electors supporting Donald J. Trump, gathered on that day at the proper location to cast their ballots, and that both sets of those ballots have been transmitted to Washington, D.C. to be opened by Vice President Pence. (Emphasis mine.)

It is fair to ask, why did the Department believe this? Did Clark and others help organize it? If so, at whose direction? And if not, who had informed Clark about the alternate slates and the sending of the ballots to Washington? Given John Eastman’s plan to have Vice President Pence simply overrule the electoral votes from swing states, the presence of so-called “competing” certifications would have been the kind of “legal” anchor the plotters needed to make their case.

It is one thing for a rogue, radical group in Arizona to claim they are the rightful electors and send a bogus certification to the Vice President. It is entirely another for the White House itself to knowingly oversee the drafting of false documents containing fictitious or fraudulent representations about electors and to coordinate their sending of those documents to the Vice President as part of an illegitimate effort to hang on to power.

It also defies belief that former president Trump himself was not fully aware of the strategy and had neither directed it nor signed off on it.