Alternate Electors: The Illusion and Pretense of Lawfulness to the Unlawful

This post uses photographs from the violence that occurred at the U.S. Capitol on January 6, 2021. Those images may be disturbing to some people.

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I have previously written on these pages refuting the idea that insufficiently clever political and legal maneuvers could have produced a Senate certification of a Trump victory in 2020. This trick was to have been called “The Pence Card” and it involved Mike Pence, then the President of the U.S. Senate, recognizing a series of “alternative electoral certificates” submitted by pro-Trump electors.

At the behest of someone (we’ll come back to that later,) about a hundred people met in, or near, the state capitols of their respective close-margin states and held some very self-serious ceremonies and produced some pretty pieces of paper. Then they submitted those pretty pieces of paper, in pretty envelopes, to the U.S. Senate, the National Archives, and a variety of other state officials. Exactly as they would have done had they actually been the lawfully-elected presidential electors of their states, which they were not.

The National Archives hold the originals of the “alternative electoral certificates” and their contents have been available for review for eleven months now by way of a FOIA request made by investigative journalists at American Oversight. For your convenience, I have copied this FOIA response and uploaded it to the Ordinary Times server in .pdf form, so you can review the “alternative electoral certificates” for yourself by clicking on this sentence in this post.

As I wrote back in December, Mike Pence was legally powerless to even consider those “alternative electoral certificates” because they were not certified through the ordinary processes of their respective states’ election laws. Had things gone as I thought they would on the day set by law for the final Electoral Count in Congress, there would have been some ceremonial wailing and gnashing of teeth by those Republicans interested in making histrionic spectacles of themselves for various political reasons. But that would have been it. Congress would have emerged from its electoral count session with the foreordained result peacefully, if unhappily, accepted by the losing party.

That’s what I predicted would happen. Looking back, I’m abashed by what I wrote then:

The only way Donald Trump stays on as President after noon on the 20th is by extra-legal, extra-Constitutional means. In other words, he has to instigate a coup. [¶] I say he doesn’t have the balls to try it.

I was wrong and I regret provoking fate the way I did. Trump did have the balls to try it. He gathered tens of thousands of supporters at the Capitol, pumped them up with emotional speeches full of lies and hyperbole, culminating with telling them to go “fight for your country” so that he could unlawfully and contra-democratically remain in office, and they actually engaged in quite a bit of violence while attempting to fulfill those instructions from “their” president.

They failed in their attempt to change the result of the electoral count, and succeeded only in disrupting it for several violent and scary hours. What if they’d actually got into the chambers in time to seize the persons of a minimum of eight Democratic members of the House and one Democratic member of the Senate? (And possibly Mike Pence too, who they stopped liking that day.) Do you think they’d have delivered stern warnings and let them go? After all, they brought a scaffold, which, even if you dismiss it as “just for show” is still a pretty clear death threat.

At minimum, the mob could have restrained those Members and let the others who they perceived as friendly to their cause return to session. And then, under physical pressure from a mob literally at their throats, and legally powerless to do anything but complete the electoral count, those Members could have decided at that point to accept the “alternative electoral certificates.”

Thus, at the likely cost of eight legislators’ lives and the elevation of mob violence over large-scale democracy, peace, the rule of law, and decency, Trump could have emerged victorious that day. America would have ceased to be a democratic republic as a practical matter.

Some dismiss as madness and hyperbole calling the events of January 6, 2021 an attempted “coup” or an “insurrection,” ¹ but what was going on was obviously and overtly an attempt to keep Trump in power, contrary to law, and through violence.

Gratefully, the attempt failed, but these were the stakes, and the mob came perilously close to winning on January 6, 2021.

Now, we see very few people today defending those who unlawfully entered the Capitol to disrupt the electoral count, or engaged in violence to assist with others doing so.

But the other piece of the puzzle falls back into place. Trump’s autogolpe needed to have some pretense of a lawful process resulting in his holding on to power. It would have been extraordinarily difficult to convince people that a Congress proclaiming Trump the winner did so in a plausibly lawful way otherwise. That’s what the “alternative electoral certificates” were intended to do – provide the illusion of lawfulness to the unlawful, undemocratic, and violence-tainted process. So, it is right and appropriate to look back on these documents now, and that’s why there are inquiries into who wrote them, who caused them to be written, and whether those documents were, in fact, unlawful attempts to disrupt our democracy.

That’s worthy of some prosecutorial examination, in my opinion.

After January 6, 2021, dismissing writing, signing, and submitting these certificates as “Constitutional cosplay…LARPing the law, a political pornography,” as I did, materially downplays the very real likelihood that it was part of something much more dangerous and consequential than people just venting unhappiness about the election.

The likeliest law that it appears to me these documents violate, or rather that their authors violated, is 18 U.S.C. § 1001(a), submission of false information to the government, which provides:

Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

What knowing and willfully false, material representation might we be talking about? That the signators on the documents were the lawful electors of the state. The preamble to most of the certificates reads: “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 [xxx], do hereby certify the following:” and the people who signed that document were not, in fact, the duty elected and qualified Electors.

What’s more, it’s difficult for me to believe that they could have sincerely believed they were the actual electors (although I’ve more thoughts on this point below). They knew Biden had been declared the winner of their states; everyone knew that. But they went ahead and wrote or endorsed these “alternative” certificates anyway. Perhaps, had Trump been declared the winner of their states, they would have been the electors (and it looks to me like some of the would-be Trump electors jumped ship before they signed off on the documents because there were a lot of “sub-in” certificates).

These fake Electoral College votes are (1) a matter within the legislative jurisdiction of the United States (since Congress counts the electoral votes); which (2) used a (2a) false writing or document (the fake certificates) (2b) knowing that it contains a materially false statement (purported electors signing a document identifying themselves as actual electors).

Whether or not it was done in furtherance of “domestic terrorism” as defined by 18 U.S.C. § 2331(5) is a matter I’ll leave aside, although I think January 6, 2021, at least comes pretty close to that definition. Either way, it’s a felony.

If I were the Assistant U.S. Attorney drafting the charging documents, I’d also include 18 U.S.C. § 371, conspiracy to defraud the government, which reads in applicable part:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to affect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

Just as a reminder, a “conspiracy” is an agreement between two or more persons to commit an illegal act (here, to defraud the United States – hold that thought on “defraud” for a moment) which is the subject of at least one overt act in furtherance of the illegal act. To “defraud” someone or something is to commit a fraud upon them, “fraud” being (1) the making of a statement (2) known to the speaker to be false (3) with the intent that the listener reasonably believes the statement to be true and (4) with the intent that the listener act in reliance upon the truth of that statement, (5) causing harm.

Do the “alternative electoral certificates” constitute “fraud”? They are (1) statements that the signators are valid Presidential electors, (2) which the signators knew to be false, because they knew their states were certifying Biden electors, (3) they appear to be intended to be accepted as true on their face, (4) were apparently part of a scheme to play the “Pence Card,” (5) which if successful would have resulted in a change in Congress’ electoral count and thus in the outcome of the Presidential election.

To get to conspiracy to defraud the United States, then, we need a submission to the government (which was done when they were sent to the national archives and the Senate), an agreement to jointly act (which was apparently done when all the electors signed them, but again, there’s more to this that we’ll get to), and an act in furtherance of the conspiracy (signing and submitting them; the conspiracy was actually completed). This looks like a plausible prima facie case here.

Shifting positions for a moment, let’s imagine what a defense attorney hired by one of the “alternative” electors would offer. I can think of two things for most of them, and a third for some.

First, maybe they sincerely believed they were doing something valid? There certainly was a whole lot of talk accusing the election of being “rigged” or “invalid” and some people, including some lawyers, making insistent and serious-toned claims that Trump really won because of reasons, and calling those reasons “plausible.” It doesn’t matter that the reasons turned out, at the end of the day, to be bullshit. What matters is that, at the time, they were plausible enough that a reasonable person could have believed them. After all, a lot of people, seemed to really, sincerely believe that something was fundamentally wrong with the election (although they were wrong). Public officials were touting those reasons. Therefore, one would argue, they lacked the intent to defraud because they sincerely believed they were acting in furtherance of law rather than in opposition to it.

How far that gets you depends on how plausible you think the Lin Woods and Rudy Giulianis and Sidney Powells of the world were, as of December 14, 2020, when these documents were signed. Personally, I don’t think they were ever credible, and indeed were always pretty close to risible, but that opinion may be tainted by my own partisan biases.

Secondly, a defense attorney might invoke the First Amendment. The gathering of “alternative” electors and even the submission of the purported votes was an act of political protest, an objection to the election of Joe Biden. Because no reasonable person could have accepted these as valid electoral certificates – precisely because they were not signed by the Governor or other designated statewide election official as required by the Electoral Count Act, the way that random dude Burt Likko argued in December of 2020 – a reasonable person receiving these documents would understand them to be a statement to the effect of “This is how we think the election SHOULD have come out.” And indeed, these documents were not submitted to Congress for consideration, demonstrating that the reasonable people who did receive them understood them to be expressions of political frustration and protest, not an intentional attempt to subvert the electoral process.

I must confess that when I started out writing that paragraph I thought it would be a pretty weak defense but by the time I finished it, I felt like there might be some weight there. But again, it almost certainly colors my perception that I always did think this entire exercise was just a charade and not to be taken seriously.

Third, some of the certificates, specifically the ones from New Mexico and Pennsylvania, contain hedging language, which acknowledges that a different slate of electors has been submitted. The purported New Mexico certificate’s preamble reads: “WE, THE UNDESIGNED, on the understanding that it might later be determined that we are the duly elected and qualified Electors…” and the purported Pennsylvania certificate’s reads “WE, THE UNDERSIGNED, on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors…” which means that they weren’t representing themselves to be Electors when they signed it. Rather they’re saying, “If we are later determined to be the actual Electors, this is how we vote.” So that’s maybe confusing, but not a false statement?

That, I think may be a winner of defense for the New Mexico and Pennsylvania signators.² But this would not be available to the signators representing themselves to actually be the duly elected and qualified Electors from Arizona, Georgia, Michigan, Nevada, and Wisconsin.

Now let’s go back to the prosecution’s perspective. In my opinion, a responsible prosecutor thinking about this case ought to go through a three-pronged analysis before filing criminal charges. She should 1) ask herself if there are facts which have a probability of being true that match up to every element of the charge; 2) then ask herself if there are facts which have a probability of being true that would prove up an affirmative defense to the charge; and 3) then, finally, ask herself how the public interest might be advanced, or possibly harmed, by the trial of the charge. It would be great to think that every prosecutor goes through that analysis every time they file charges, but I think we all know better than that. But let’s go through that exercise anyway.

As to the first prong of the “file or not” test, there are likely facts to prove both of the statutes I’ve cited, 18 U.S.C. §§ 371 and 1001(a) as to the signators of the purported certificates from Arizona, Georgia, Michigan, Nevada, and Wisconsin. But the weasel words used in the New Mexico and Pennsylvania certificates are probably enough to get to a “no false representation” conclusion for those signators.

As to the second prong, the tough point seems to be considering how credulous the average reasonable person is. Would the reasonable person have believed Trump’s Big Lie? If so, then the defense of “We didn’t really think we were doing anything wrong because we really thought we’d eventually be declared the valid electors” defense probably wins. A survey taken about a month before the signing of these certificates showed that 28% of Americans thought that the election had been “stolen” from Trump and that number didn’t drop very much as measured in another survey conducted in May of 2021. Those numbers are high enough that statistically, even with a six-person jury, at least one of the jurors is likely to have been among the 25-28% of Americans who had political sympathy with The Big Lie.

So now, if I’m a prosecutor, I think now I’ve got to wonder if I can get a unanimous jury to say, beyond a reasonable doubt, that these defendants knew full well they were lying to the government rather than being involved in something that, incorrectly but within the scope of reasonable belief, was thought to be somehow good and lawful. On the other hand, the conspiracy charge may be one where I only need to prove someone else’s intent, rather than the defendant’s, and so the defendant simply agreed to join a criminal conspiracy not knowing that they were going to be part of a criminal activity. Maybe this can be addressed during voir dire, but the Big Lie is going to be a lurking issue for some people.

Moving on to considering the public interest, we have a few things to worry about. First is maintaining both the reality, and the appearance, that the Justice Department is not participating in partisan politics. By definition, all of the defendants here are going to be Trump Republicans. This, I think, can be done. Republicans can certainly agree that the Capitol riot on January 6 was not a good thing even if they thought Trump actually won the election. And it ought to be obvious enough that if any old bunch of yahoos can call themselves “Electors” and try to loudly confuse the public and Congress about election results, that this is bad for democracy in America – even if the first group of yahoos to try it were Republicans. The next bunch of yahoos might be Democrats, after all. That doesn’t seem so hard a concept to get across.

As for partisanship by the Justice Department, certainly a prosecution now, started in 2022, cannot be seen as an attempt to interfere in the 2020 Presidential election; it also probably isn’t likely to be seen as an attempt to interfere in the 2024 Presidential election if it’s done now, in a way that is likely to result in resolution before the 2024 election cycle kicks into gear publicly.

Is the public interest served by prosecuting and potentially incarcerating these particular yahoos? I’d think so. If prosecution and conviction produce deterrence at all, this would certainly serve as a deterrent. Don’t try to screw around with elections; we live in a democracy, and you need to play by the rules and accept the results when you lose. And let the politically active public know that these are people who are willing to at least skirt the rules.

The countervailing consideration, though, is that we ought to allow as broad a latitude as possible for people to present their political beliefs and to exercise their legal rights. If it’s credible that these folks honestly thought they were doing something morally right and legally valid, then it’s a hard thing to say that their mistake deserves punishment. That could produce a world in which people doing legal, valid, and politically appropriate things are chilled from doing them lest some mistake made along the way result in a prosecution.

I think the balance of those favors prosecution, particularly because it is hard for me to believe that these folks really did have a good-faith belief that they were acting legally. At minimum, they had to have some understanding that they were doing something that all of the established figures in government and law before them, despite ample incentive, had never tried before.

Which gets to the last reason why prosecution might be important and useful to the public, and to a point I’ve danced around previously. Slates of “alternative” electors were put together and “alternative” signing ceremonies were held in at least seven states. People affiliated with and in the orbit of the Trump campaign, starting with Trump himself, were promoting doing something like this since before the election even took place. Someone masterminded it. Who? Sidney Powell? Rudy Giuliani? That remains unclear, and it would be very useful to know whose idea this was – not just who concocted the legally harebrained scheme, but who decided to actually try and recruited people to go ahead and do it. How far up did this go? Was it approved by Trump’s campaign staff? By Trump himself? This all remains very unclear right now.

At least one of the fake electors from Arizona appears to have got smart and now refuses to answer questions about the planning of the things that he did.

Did the people putting together the scheme to submit confusing, false “alternative” electors have anything to do with putting together the January 6, 2021, protest that came so near to violently changing the partisan composition of Congress and disrupting the flow of our democratic elections? Was there a coordination between January 6 and the fake electors who the January 6 rioters wanted to become not-fake electors?

That’s definitely in the public’s interest to know. Because that would be an overt attempt to overthrow the government, a much more serious crime. See 18 U.S.C. § 2384:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

If that’s actually what was going on, or even if it really wasn’t, we all need and deserve to know. At this point, I’m certainly not going to take Donald Trump’s word for it, and neither should you. Getting to the bottom of it is worth a prosecution of some people who very likely did know exactly what they were doing was neither sanctioned by law nor congruent with democracy, people whose consciences should have told them to get off the train they were on.

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1. As I learned on these pages earlier this very week, a very precise word to describe what then-President Trump attempted on January 6, 2021 is “autogolpe.”
2. There’s another document signed by the chair of the Pennsylvania group that does affirmatively represent the slate as the valid Electors, but if I were his lawyer I’d fall back on the preamble and say that he intended that language to be contingent on actually being the lawful Elector as indicated in the certificate itself.