Arizona fake electors face legal jeopardy, experts say

The people who falsely claimed to be Arizona's 2020 electors might not be named in the federal indictment of Donald Trump, but they still face serious legal peril, as do the people from Trump's team who directed them, some experts say.

But the legal debate over the issue has experts taking both sides, perhaps signaling that if an Arizona case develops, it won't be a slam dunk.

GOP members in seven states where Joe Biden won the election, including Arizona, falsely signed documents in 2020 in an attempt to thwart the Electoral College. The federal indictment of Trump said this was part of a criminal conspiracy aimed at keeping him in office.

The Michigan electors were each charged with eight felonies and released on $1,000 bonds.

At least eight of the 16 fake electors in Georgia have been offered immunity.

Arizona Attorney General Kris Mayes' office has said Arizona's electors are under investigation. The office declined further comment Friday.

Joshua Stanton, counsel at Perry Law who is based in Washington, D.C., said that it’s not just the fake electors who face jeopardy, but those who might have misled those people before they signed the documents claiming to be the rightful electors.

“There is significant evidence that a lot of these false electors it seems across the country were aware that Trump had definitely lost, that his litigation attempts were bogus, and that this was really being used as part of an effort, an illegal effort, to overturn the election," said Stanton, who clerked at U.S. District Court for the Western District of Tennessee.

At a previous firm he represented recording artists, professional athletes, actors and business executives.

He said prosecuting the electors might depend on what they were told by people working with Trump to overturn the election, and whether they thought they were only to be used if the elections in those states were overturned by the courts for some reason. They in fact were used even though court challenges to overturn the state elections all failed.

“If the false electors, when they signed that form, honestly believed that (they would only be used if the GOP won in court), then it seems likely that they didn’t do anything wrong,” Stanton said. “It would be hard to actually prosecute them.”

None of the Arizona GOP representatives who signed false documents contacted by The Arizona Republic in recent months have agreed to talk on the record.

Stanton said it’s possible prosecutors already have evidence to show they knew the documents would be sent to Congress even if the courts didn't overturn the state elections. It appears the co-conspirators named in the indictment didn't plan to use the fake electors only as a contingency.

“Even if the false electors themselves maybe potentially avoid liability, there are a number of people at the higher levels that could face charges in Arizona,” Stanton said.

He said that based on what is known publicly so far, charges could still come from the federal or state level for those people.

The indictment seems to offer an out to the false electors by stating they were misled by people trying to help Trump overturn the election.

“It’s not necessarily the false electors who could end up getting indicted," Stanton said. "It’s the folks who maybe misled them."

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Stanton referenced emails from Arizona lawyer Jack Wilenchik, reported last year in The New York Times, including one in which Wilenchik referred to the electors as "fake."

“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,” Wilenchik wrote in a Dec. 8, 2020, email to Boris Epshteyn, a strategic adviser for the Trump campaign, according to the Times.

Wilenchik later wrote that “alternative” was a better term than “fake.”

Wilenchik also wrote the idea that it could launch an objection in Congress to certifying the vote for Biden, and acknowledged that the electors' votes should not count, according to another email reported by the Times.

“His idea is basically that all of us (GA, WI, AZ, PA, etc.) have our electors send in their votes (even though the votes aren’t legal under federal law — because they’re not signed by the Governor); so that members of Congress can fight about whether they should be counted on January 6th,” Wilenchik wrote in the email on Dec. 8, 2020, to Epshteyn and others, according to the Times.

Wilenchik told The Arizona Republic on Friday that in those emails he was only offering an opinion on the plan for Trump's campaign staff when asked, and he believed the actions were legal.

"I believed then and I believe now it is completely legal, as do a number of legal scholars," Wilenchik said. "There is no crime I can even conceive of here."

He referenced recent comments from legal scholar Alan Dershowitz supporting the idea that submitting alternate electors is the proper way to protest an election.

Dershowitz, a nationally recognized constitutional lawyer, recently said during a FOX News appearance that submitting the alternate electors was the proper way to address state elections where the rightful winner is undecided.

"The way you protest an election is to come up with an alternate slate of electors. That was done in 1960," Dershowitz said, referencing the race in Hawaii that year between Richard Nixon and John F. Kennedy.

Nixon was certified the winner by the state governor after prevailing by 140 votes that year, but a recount was underway the day electors met to cast votes. Electors for both candidates signed certificates and delivered them to Congress.

"And a court in Hawaii said that's the right way to do it," continued Dershowitz, who was recently among a team of lawyers sanctioned for filing a meritless lawsuit on behalf of Arizona gubernatorial candidate Kari Lake that sought to force counties to hand count ballots.

Wilenchik said Dershowitz's comments support the move as legitimate, and he called the prosecution in Michigan "bogus and political."

“What these people put on their certificates here in Arizona was just that we believe we are the duly elected electors. They didn’t say they were certified. They weren’t certified," Wilenchik continued. "That is what I was pointing out in the email. Certified means the governor and secretary of state were signing off on it.”

Wilenchik said he did not mislead any of the people who signed the documents or tell them the documents would only be submitted if courts overturned Arizona’s election.

Expert says state charges more likely than federal

Stefanie Lindquist, a professor of law and political sciences in the School of Global Politics and the Sandra Day O'Connor College of Law at ASU, said state charges are more likely than federal charges for the Arizona fake electors.

“It may be that the federal government has concluded this is best left to the state attorneys general to prosecute,” she said.

Lindquist clerked for the United States Court of Appeals for the Third Circuit in Philadelphia and practiced law at Latham and Watkins in Washington, D.C.

Even setting aside the possibility of charging the electors with a criminal conspiracy, Arizona has a statute that criminalizes creating a public record "knowing that it has been falsely made," that could apply to the document the electors sent to Congress, she said.

It doesn't help the Arizona fake electors that two states, Pennsylvania and New Mexico, offered conditional language in their documents stating they would only be valid if those state elections were overturned, while Arizona and the other states did not.

The federal indictment states that Trump’s allies wanted to prevent the other fake electors from using similar conditional language, which she said was improper on their part.

“What a cynical, fraudulent thing to do to these dupes in the state legislatures,” she said. “It’s not that these people shouldn’t have known better. I think they should have. There’s no doubt they were manipulated by the conspirators.”

It’s possible the Justice Department intentionally let the electors off the hook so that it might secure testimony from those people to help prosecute Trump or the co-conspirators, she said.

The states where fake electors submitted documents were Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania and Wisconsin.

The fake electors in Arizona were: Tyler Bowyer, an executive with Turning Point USA and a committeeman for the Republican National Committee; Nancy Cottle, who chaired the Arizona Trump electors; lawmaker Jake Hoffman; state senator Anthony Kern; Jim Lamon, a failed U.S. Senate candidate; Robert Montgomery of the Cochise County Republican Committee; Samuel Moorhead of the Gila County Republican Party; Loraine Pellegrino, the secretary of the Arizona Trump electors; Greg Safsten, former executive director of the Arizona Republican Party; Kelli Ward, the state GOP chair at the time; and Michael Ward, her husband and a GOP activist.

This article originally appeared on Arizona Republic: AZ GOP members face legal jeopardy in 2020 election case, experts say