Three "fake electors" argue their cases should move to federal court

Lawyers for three of former President Donald Trump's co-defendants in Fulton County, Georgia, told a federal judge Wednesday that their clients' cases should be considered in federal court, claiming they were tantamount to federal officials in their role as appointed electors for the Republican party.

David Shafer, Shawn Still and Cathy Latham all say their charges should be moved out of state court because they served a federal function as electors when they allegedly took actions to contest Georgia's 2020 election results. They have all pleaded not guilty.

The three Georgia politicians are accused of being so-called "fake" electors. They were among a group of 16 who submitted to the U.S. Senate and the National Archives a false certification attesting that Trump had won Georgia in the 2020 election. In their court filing seeking removal, they described themselves as "contingent" electors, "acting under officers of the United States."

If the court finds they acted as federal officials, the three could have their prosecutions moved out of the Fulton County Superior Court to the federal district court, where their attorneys argue they'd be entitled to certain immunity protections.

"Our clients did what federal law allows them to do," Holly Pierson, an attorney for Shafer, told the court.

Attorneys for the defendants criticized the frequent use of the terms "fake" or "sham" to describe their elector status, saying they had been appointed by the state's Republican party to stand by as contingent electors, in the event of a successful challenge of the Georgia election results.

Attorneys said their clients "did their duty" when they were called on by attorneys for the Trump campaign to gather and vote, in case the election was flipped in his favor, and maintained that the trio, along with the other electors, were told this was the procedure by lawyers for the Trump campaign.

Special Prosecutor Anna Cross pushed back on the defense attorneys'' arguments, telling the court that their position is "not grounded in facts or law." She disputed the defense's assertion that the defendants met the definition of "federal official," at one point calling it "nonsense," and noted that there was no evidence to suggest that they were acting on behalf of anyone. There was "not a federal official in the bunch," she said.

Judge Steve Jones interjected during Cross's argument with a question that is at the heart of the dispute: "Should the defendants be considered federal officials because they were performing a federal function?"

Cross argued no.

"They were fake electors," she said. "There was no tie here; that was a fantasy."

Even if Trump campaign lawyers had succeeded in challenging Georgia's presidential election results, Cross asserted that the remedy in the statute would have required a new election, not a simple replacement of the electors, despite the defense lawyers' claims that this was lawful protocol. Ultimately, the state argued that Shafer, Still and Latham were not federal officials and that they were not electors at all.

Cross said Shafer, Still and Latham were working to advance campaign goals, on the advice of Trump campaign attorneys. There's "no federal official role" for nominated electors for the losing candidate, Cross said.

Latham is a former chairwoman of the Coffee County, Georgia Republican Party, Still is now a state Senator, and Shafer was chairman of the Georgia Republican Party at the time. All three say Shafer was in communication with officials from the Trump administration who were involved in the effort to contest Trump's defeat. None of them were present in court for the hearing, which lasted about three hours.

The trio were among 19 people charged, including Trump, in Fulton County, Georgia, on Aug. 15. All defendants in the case have pleaded not guilty. They're accused of taking part in a "criminal enterprise" geared toward flipping the state after a majority of its voters chose Joe Biden to be president.

Shafer's attorney argued in a court filing that he "not only subjectively believed his actions were justified, but his belief was objectively reasonable." Latham's lawyer said she "was acting to assist Congress in its count and announcement of the electoral votes." Still's lawyer said he believed that "the contingent vote was necessary to preserve the right to lawfully contest the election."

The arguments became heated for a brief time when Craig Gillen, an attorney for Shafer, accused the district attorney's office of bringing the charges based on politics, commenting that supporting Trump means "tough luck — you are in the danger zone."

Cross called the accusation "borderline offensive."

This is the third time Jones has heard arguments on this issue from defendants in the Fulton County case seeking removal to federal court. Jones rejected a similar attempt by former White House chief of staff Mark Meadows, ruling on Sept. 8 that he had "not met even the 'quite low' threshold" to move his case.

Jones has yet to rule on the effort by another co-defendant, former Justice Department official Jeffrey Clark, whose hearing on the issue took place on Monday.

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