REQUIEM FOR A SCANDAL. Nearly four years ago, on Jan. 18, 2022, this newsletter wrote about a frenzy that was sweeping the anti-Trump world. It had to do with a novel theory regarding the 2020 presidential election dispute. From the newsletter:
Here’s the short version: Trump supporters in a few states — Georgia, Arizona, Wisconsin, Pennsylvania, Nevada, Michigan, and New Mexico — were so brazen that in the days before Dec. 14, 2020, when the Electoral College voted to confirm [former President] Joe Biden’s victory, they actually forged documents falsely purporting to be Electoral College results for [President Donald] Trump and sent them to the appropriate authorities in Washington and in their home states. They then planned to use the forgeries to steal the election on Jan. 6, 2021. All the while, they hoped no one would notice.
It was a crazy theory, for a number of reasons discussed below. But the notion of so-called “fake electors” would not only consume Resistance World, but would spread among Democratic officials in the justice system and become a key part of the anti-Trump indictments of 2023 and 2024.
Now it has all fallen apart. With the recent withdrawal of the case originally brought by the disgraced prosecutor Fani Willis in Georgia, the theory that sparked so much excitement on the anti-Trump fringe is finally dead. What is remarkable is that the glaring flaws in the “fake electors” theory were obvious all along. It just took this long for the wheels of justice to turn.
After Willis was taken off her own case following the disgrace of her top deputy, Georgia officials faced a daunting question: Who wants to pick up this prosecution and run with it? It turned out nobody did, and the case eventually ended up in the hands of the non-partisan head of the Prosecuting Attorneys’ Council of Georgia, Peter Skandalakis. Last week, Skandalakis released a carefully argued 22-page memo supporting his decision to drop the Willis case altogether.
As far as the “fake electors” theory is concerned, the substance of Skandalakis’s discussion bore a striking resemblance to the newsletter from January 2022. That’s because the facts of the case have always been the facts of the case, before and after the anti-Trump activists got so excited.
First, Skandalakis explained that what the Resistance calls “fake electors” were, in fact, contingent electors. In this way, in early December 2020, the Trump campaign was litigating the results of the election in Georgia. But the date was approaching — Dec. 14 — on which the Electoral College would have to vote. Republicans were concerned that Biden’s electors would be chosen on that day while the lawsuits were still pending. If Trump eventually won the litigation, he would then have zero electors. So, acting on the advice of the campaign’s lawyers, the state Republican Party picked conditional Trump electors who could become real electors if and only if Trump won the lawsuit and was declared the winner of Georgia. They were contingent electors.
“Nothing in the evidence suggests that [the contingent electors] conspired to overturn the election,” Skandalakis wrote. “On the contrary, the record overwhelmingly demonstrates that the electors believed their actions were legally required to preserve Georgia’s electoral votes in the event President Donald J. Trump prevailed in the then-pending lawsuit in Fulton County challenging the election.” Skandalakis noted that the evidence also shows that “the electors convened the meeting pursuant to the advice of counsel.”
Also, the contingent electors did their work in public. Back when the scandal was raging, MS NOW’s Rachel Maddow called the “fake electors” story a “previously unknown, mysteriously coordinated effort to have Republicans in multiple states forge election documents after the last election and present themselves as fake electors to the Electoral College.” In fact, the contingent electors announced their meeting. They invited the press to cover it. They tweeted about what they did. There were several news accounts about it. And they hired a court reporter to make a transcript of the proceedings, which proved extremely valuable to Skandalakis as he reviewed what happened.
It is important to point out that all this was known at the time of the 2022 “fake electors” freakout. Even Maddow could have known it, had she looked.
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Now, you could say the contingent electors were acting on pure faith when they did what they did. Certainly, there appeared to be no chance of Trump winning the litigation and thus winning Georgia. Indeed, that did not happen. But that does not mean the contingent electors had ill intent. “It is not illegal to challenge election results,” Skandalakis concluded. “As a prosecutor, I am loath to use the criminal justice system to pursue law-abiding citizens who, in good conscience and upon the advice of counsel, were asked to perform certain tasks in connection with the litigation of an election challenge.”
Fani Willis knew all of this when she charged one of the contingent electors, then-Georgia Republican Party chairman David Shafer, with violating the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act; impersonating a public officer; two counts of forgery in the first degree; three counts of false Statements and Writings; and criminal attempt to commit filing false documents. Others faced the same charges. The “fake electors” prosecution was BS from the beginning. And now, at last, it is over.