ATLANTA – Three of the Georgia Republicans who signed a certificate falsely claiming that then-President Donald Trump won the state in 2020 were not fake electors, their lawyers argued Wednesday, but instead were a “contingent" slate in case the original election results were tossed out by a court.
U.S. District Judge Steve Jones heard arguments on why David Shafer, Shawn Still and Cathy Latham believe the case against them should be tried in federal court rather than in Fulton County Superior Court. They, along with Trump and 15 other people, have pleaded not guilty to charges accusing them of participating in a wide-ranging scheme to keep the Republican president in power after Democrat Joe Biden won Georgia.
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Lawyers for Shafer, Still and Latham argued their status as electors means they were acting as federal officials and were performing the duties required by federal law. The three defendants were not in court Wednesday.
“By federal law, these people were not fake, sham or impersonators,” said Craig Gillen, an attorney for Shafer. “They were contingent federal electors when they went and did their duty on Dec. 14, 2020.”
Prosecutors rejected that notion, alleging that Shafer, Still, Latham — and the other Georgia Republicans who participated in the plan — “falsely impersonated” electors. Related state charges against them include impersonating a public officer, forgery, false statements and writings, and attempting to file false documents.
“These private parties did not transform themselves into public actors by a criminal act,” prosecutor Anna Cross said.
Part of the overarching scheme, the indictment alleges, was the casting of false Electoral College votes by 16 Georgia Republicans and the transfer of documentation of those votes to the president of the U.S. Senate, the National Archives, the Georgia secretary of state and the chief judge of the federal court in Atlanta. Those documents were meant to “disrupt and delay” the joint session of Congress on Jan. 6, 2021, in order to “unlawfully change the outcome” of the election, the indictment says.
Republicans in six other battleground states that Trump lost also met and signed similar certificates. Michigan's attorney general in July brought criminal charges against the group there.
Lawyers for Shafer, Still and Latham argued in court that a challenge to the state's election results was pending at the time and that lawyers told the gathered Republicans that it was necessary to have an alternate slate of GOP electors in case the challenge was successful.
The lawyers asserted that that pending legal challenge meant the state had failed to meet the “safe harbor deadline,” which dictates that states can protect their electoral votes against challenges in Congress by completing certification of the results and any state court legal challenges by that date.
The failure to do so meant that both the Republican and Democratic elector slates were “contingent” and that it was up to Congress to determine which should be counted, the lawyers said.
Prosecutor Donald Wakeford argued that meeting the safe harbor deadline was “a super shield or protection” for a state and rejected the claim that the Republican slate of electors was equal to the Democratic slate that was certified by the governor.
“The distinction is not obliterated because the safe harbor deadline is not met,” he said.
Lawyers for Shafer, Still and Latham cited the example of the 1960 presidential election when Republican Richard Nixon was initially certified as the winner in Hawaii. Supporters of Democrat John F. Kennedy filed a legal challenge that was still pending on the day the state's presidential electors were to meet.
That day, the certified electors for Nixon and uncertified elector nominees for Kennedy met at the state Capitol to cast votes for their candidates and sent them to Congress as required by the Electoral Count Act. Kennedy ultimately won the challenge and was certified the winner, and Congress counted the votes of the Kennedy electors.
Cross argued that the Hawaii case was different “for a lot of reasons” and noted that the slate of electors that was chosen for Hawaii was the one that had most recently been certified by the state's governor. Georgia Gov. Brian Kemp, a Republican, certified the Democratic slate, not the GOP slate.
Even if the Trump campaign’s legal challenge to the election results had been successful, Cross argued, the only solution a court could impose would be a new election, not a substitution of the Republican slate. Holly Pierson, another attorney for Shafer, argued that the law does allow a judge to declare someone elected after hearing the allegations and evidence in an election challenge.
At the time of the actions alleged in the indictment, Shafer was the chair of the Georgia Republican Party, Latham was the chair of the Coffee County Republican Party and Still was the finance chair for the state Republican Party. Still was elected to the state Senate last year and represents a district in Atlanta’s suburbs.
The judge asked Cross whether performing a federal function makes someone a federal official. She said it does not. She also argued that the Republicans who signed the certificate were acting in their own personal interest and in the interest of Trump's losing campaign.
“They were fake electors. They were impersonating electors,” she said, adding that there was no evidence they believed Trump had actually won.
Asked by Judge Jones at what point they should have known Trump had lost, Cross said they should have known “at every point.”
Pierson contended that it was up to Congress: “We know who won when Congress tells us and not a moment before.”
Jones already rejected an effort by Trump White House chief of staff Mark Meadows to move his case to federal court. Meadows has appealed that ruling. Jones held a hearing Monday on a similar bid by former U.S. Justice Department official Jeffrey Clark and has yet to rule.
If any of the cases are moved to federal court, a jury would be drawn from a broader and potentially less Democratic pool than in Fulton County alone.
In addition to the charges related to the fake elector plan, Shafer is accused of lying to investigators for the Fulton County district attorney's office. Latham is accused of participating in a breach of election equipment in Coffee County by a computer forensics team hired by Trump allies.