“Two Frauds Don’t Make A Right”

Screen capture of Roger Stone courtesy of MSNBC

Back in December of 2020, when I first heard on the news about the GOP plan to have “alternate slates” of electors at the ready in the contested battleground states, I remember thinking, “Good luck with that.” 

I had understood their effort was to mirror what happened in 1960 in Hawaii, when the presidential vote in that state was very close and also hotly contested. While courts were sorting out the final results, the Democrats put together a contingent slate of electors so that the state’s electoral votes could be counted in time, assuming the pending court case went their way. It did, and those Democratic votes were transmitted by the governor counted by Congress on January 6.

I figured that was what the GOP was also doing: a “just in case” strategy, ready to go should the courts wind up throwing out the results in any of the swing states. I didn’t feel particularly worried at the time, or even that interested, because I knew that Trump would lose his court cases, and those alternate slates from the GOP electors would be useless.

I learned almost a year later that the “alternate slates” were not a contingency plan at all but were actually an integral part of the coup plan. I was not only taken aback, but thought “Wow, they’re screwed.” You see, they had submitted false documents to Congress, after all the court cases were done, in order to give Mike Pence a pretext to throw the election to Trump or send the count back to the states. That was a very different situation than Hawaii.

It was one thing, after all, to claim the election was fraudulent. But it was entirely another to perpetrate an independent fraud to try and undo it. 

Think of it this way: If you believe your bank has defrauded you, your recourse is to sue in court. It’s not to create a false statement of your account and try to convince a teller to give you money, even if you sincerely believe you are owed it. 

As Philip Rotner of The Bulwark stated so succinctly, “Two frauds don’t make a right.”

The fake elector scheme is back in the news in two big ways this week: 1) a video of political trickster Roger Stone emerged Wednesday night that shows him dictating the illegal plan out loud, and 2) there are now specific details about the fake elector scheme laid out in the Georgia indictment—the kind of detail absent from the federal indictment.

Let’s look more closely at these two pieces of the puzzle. They’re important because if the juries in D.C. and Georgia find the fake elector scheme to have been criminally fraudulent, as I believe they should and will based on the evidentiary record, then they will return guilty verdicts against everyone involved, including Donald Trump. And in Georgia, that further means a RICO violation with a strong likelihood of serious prison time.

Who framed Roger’s habit?

Roger Stone has a habit of saying the crimey part out loud. This staunch political ally of and consultant to Donald Trump loves to hear himself talk, and he apparently felt so invincible, especially coming off of a presidential pardon, that he had a film crew from Denmark follow him around, all the while capturing evidence frame by frame in real time.

Ari Melber of MSNBC broke the story last night and aired a clip from that documentary film. In the scene, Stone is dictating some kind of memo or communication to an underling while the cameras were rolling. It is November 5, 2020, just two days after the presidential election. And importantly, the race has not been called yet because they are still counting votes in the critical swing states. And it is close.

Stone proceeds to lay out a plan to urge state legislators to undo the will of the people and appoint slates of electors who support Trump, irrespective of how the popular vote goes in each state. His words are chilling:

Although state officials in all 50 states must ultimately certify the results of the voting in their state, the final decision as to who the state legislatures authorize to send to the electoral college is a decision made solely by the legislature.  

A legislative body may decide, on the basis of overwhelming evidence of fraud, to send electors to the electoral college who accurately reflect the President’s legitimate victory in their state, which was illegally denied to him through fraud.  

We must be prepared to lobby our Republican legislatures by personal contact and by demonstrating the overwhelming will of the people in each state that this may need to happen.

This was, in fact, the very playbook the Trump Campaign followed. We know that their “overwhelming evidence of fraud” was all B.S., that they knew it was B.S., and that it had been debunked by every actual expert in the Trump administration, including those from the Department of Homeland Security and the Justice Department. It was furthermore rejected by the very state officials they sought to convince, including GOP Speaker of the House Rusty Bowers in Arizona and Georgia Secretary of State Brad Raffensperger.

We also know that by the time the plotters utilized the fake electors, the courts had resoundingly rejected all of the Trump Campaign’s claims, that the actual electors had already met and awarded each swing state’s real electoral votes to Joe Biden, and that the governors from those states had certified those votes and sent them to Congress to be counted.

In short, as of January 6, 2021, there was no conceivable use or value to the fake electoral slates, other than as part of the illegal plot to overturn the election results—one that then vice president Pence ultimately refused to join.

It’s now clear from the timing of the video that Stone (and his co-conspirators) already had in place a plan to pressure state officials to override the will of the voters, based on bogus “overwhelming evidence of fraud” even before all the votes were counted and the race called. 

Taken at face value, his plan would mean that no election would ever actually be decided with finality by the voters, but rather by the “state legislators” whom others could “lobby” to undo the results. Notably, nowhere in Stone’s plan would the courts even play a role, because in his twisted view, the “final decision” as to which slate of electors to send is “a decision made solely by the legislature.”  

This is a version of the discredited “independent state legislature” theory that attempted to assign to state legislators, and to them alone, complete power over federal office elections in each state, without possibility of review by state courts. A majority of the Supreme Court, led by Chief Justice John Roberts, recently rejected this nonsensical reading of the Constitution in Moore v. Harper. “State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause,” Roberts wrote.

We now know that the plan to upend the elections in the swing states by convincing the state legislatures there to send Trump slates to D.C. instead of Biden ones originated far earlier than known. Thank you, Roger Stone for that. From there, the Georgia indictment takes up the story, and it is a doozy.

Key allegations in the Georgia indictment around the fake electors

In this section, I’m borrowing again from the work of Philip Rotner in The Bulwark. Of the 161 “overt acts” taken in furtherance of the conspiracy and the criminal goals of the Trump Campaign, Rotner counts 67 that are expressly related to the fake electors scheme. 

Rotner highlights a few of the key allegations in his piece that help make the point that this was not some mere legal contingency similar to what they saw in Hawaii in 1960, but rather was an integral part of the criminal conspiracy itself. 

For example, take a look at what Act 58 of the Georgia indictment says defendant Kenneth Chesebro (who is also unnamed co-conspirator #5 in the federal indictment) did:

On or about the 11th day of December 2020, KENNETH JOHN CHESEBRO sent an e-mail to Jim DeGraffenreid and stated that “the purpose of having the electoral votes sent in to Congress is to provide the opportunity to debate the election irregularities in Congress, and to keep alive the possibility that the votes could be flipped to Trump.”

In other words, the plan wasn’t to have the alternate slates at the ready in case the courts ruled their way. It was to provide an “opportunity” (i.e., pretext) to keep the debate going, when it was supposed to be long over, and to improperly “keep alive” the chance to flip the election to Trump.

So was Trump in on the scheme? Yup. According to Act 44, on December 8, 2020, Trump and Eastman

placed a telephone call to Republican National Committee Chairwoman Ronna McDaniel to request her assistance gathering certain individuals to meet and cast electoral votes….

The January 6 Committee also highlighted that call with McDaniel during the hearings last summer, but it’s worth reiterating in the context of this conspiracy because it ties Trump directly to it. McDaniel testified that Trump phoned her then turned the call over to Eastman, who explained that they needed the RNC’s help gathering the “contingent” electors, who would be necessary should the courts rule their way in the end.

But by that time, it was already clear that the co-conspirators viewed the pro-Trump “alternate” electors as part of a strategy to thwart the transfer of power altogether, and not simply as a backup plan for the courts should they rule Trump’s way. In a memo dated December 6, 2020 that Chesebro sent to a Trump attorney in Wisconsin named Jim Troupis, he stated,

I’ve mulled over how January might play out, and it seems feasible that the Trump campaign can prevent Biden from amassing 270 electoral votes on January 6, and force the Members of Congress, the media, and the American people to focus on the substantive evidence of illegal election and counting activities in the six contested states.

And Eastman and Trump continued to carry out the plan.

Act 94 of the Georgia indictment alleges that on December 23, 2020, Eastman sent a memo to Chesebro and others that “the fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough.” Again, the fake elector slates were about causing chaos and confusion, and would provide a pretext for Pence. They were never about alternate slates that the courts could adopt.

Act 95 alleges that on December 25th, Trump personally called GOP Speaker of the House in Arizona, Rusty Bowers, to solicit him to “unlawfully appoint presidential electors from Arizona.” Bowers refused. This shows Trump understood the plan and what had to happen.

Act 123 alleges that on January 4, 2021, Trump and Eastman met with Pence and his staff to argue that Pence could reject the electoral votes from certain states or delay the count, “for the purpose of allowing certain state legislatures to unlawfully appoint presidential electors” in favor of Trump. Eastman admitted during the meeting that both actions would violate the Electoral Count Act.

Act 124 alleges that on January 4, 2021, Chesebro circulated to Eastman something he had earlier run by Giuliani called the “President of the Senate” strategy—referring to Pence. In it, he “outlined multiple strategies for disrupting and delaying the joint session of Congress on January 6, 2021.” Note that this “disrupting and delaying” are the very definition of obstruction if done with corrupt intent.

In Act 129, the indictment alleges Eastman again met with Pence’s chief of staff and counsel “for the purpose of requesting” that Pence “reject the slates of presidential electors from Georgia and certain other states.”

In Acts 131 and 132, Trump tries twice more to pressure Pence to reject the slates of electors or return them to the state legislatures. Pence refuses.

A big problem for the defense

Of all the parts of the broad conspiracy hatched by the Trump Campaign to overturn the 2020 election, the fake electors bit will be the hardest in my view to shake off. To prove criminal liability, it won’t matter whether the defendants subjectively believed what they were trying to do was right, because they used illegal means to accomplish it.

It also has the benefit of being in writing. The plan is laid out pretty plainly, and the signatures on those fake certifications are crimes by themselves. This will be pretty easy for a jury to understand.

The legal “excuse” that defendants will attempt to mount—that these were just back-up plans in case the courts ruled their way—makes no sense once you realize that the court cases were done and over by January 6. The evidence shows that the plotters still tried to use the fake forms and get them in the hands of Mike Pence. The only reason the plan failed is that Pence wouldn’t go along with it, not for lack of attempts by the coup plotters.

Finally, returning to Roger Stone’s damning video, the fact that the plan was already in motion just two days after the election, and before the final votes were even counted, will look pretty terrible. I suppose it’s only fitting that in the video, you can see an upside down bumper sticker on Stone’s laptop.

It says, “What Would Nixon Do?”