PHOENIX (CN) — A Maricopa County judge heard arguments Tuesday on more than half a dozen motions to dismiss criminal actions against Arizona Republicans and Trump allies who submitted false documentation certifying themselves as presidential electors in 2020.
The so-called “fake electors” say they submitted an alternate slate of presidential votes for Congress to consider in the event that the U.S. Supreme Court overturned the results of the 2020 presidential election, in which Joe Biden beat current President Donald Trump in Arizona by more than 10,000 votes.
But Democratic Attorney General Kris Mayes indicted the 11 Republican electors and seven others — including Trump attorneys Rudy Giuliani and John Eastman — on conspiracy, fraud and forgery charges, claiming in the indictment that the group intended to usurp the democratic process by pressuring Congress and then-Vice President Mike Pence to install Trump as the president.
In a Phoenix courtroom Tuesday morning, defense attorney Dennis Wilenchik said no fraud was committed because “nobody was fooled” by the alternate elector slate the defendants say they submitted as a contingency plan.
After Biden won the popular vote in Arizona, the secretary of state certified the 11 Democratic electors to vote for Biden in the electoral college. But on Dec. 14, 2020, the 11 Republican electors convened at the Republican Party headquarters in Phoenix to sign their own certificate to submit to Congress, falsely claiming on the document that they were the “duly elected” presidential electors. The document lacked a state seal and certification from the secretary of state.
“If it wasn’t a certified document then what’s the point of all this?” Wilenchik asked on behalf of former U.S. Senate candidate and Republican elector James Lamon. “Who was fooled?”
State prosecutor Nick Klingerman argued that no one need be fooled by a fraudulent act for it to be a crime. Given the context provided in the indictment — that Trump allies tried for months to pressure Congress into accepting the Republican votes regardless of certification — and given that nowhere on the documents was the word “contingent,” Kilingerman suggested that this argument would be better fit for trial than a motion to dismiss.
Stephen Binhak, a Miami-based defense attorney representing Republican elector and conservative activist Tyler Bowyer, argued on a separate motion to dismiss that federal law preempts state prosecution against presidential electors.
Binhak argued that the Electoral Count Act of 1887 allows for a state to submit two slates of electors in the case of unclear or disputed results, as Hawaii did in 1960 and four states did in the 1876 presidential election of Rutherford B. Hayes. If the state says doing so is illegal, Binhak argued, then it would be impossible to comply with both federal and state law.
“There is a way to comply with both,” Klingerman countered. “You just don’t commit fraud when you submit your slate of electors.”
Prosecutors argued that the 1960 and 1876 elections don’t apply here, as in those cases, states certified and approved of two slates of electors, whereas in this case, Republicans did so without the state’s blessing.
Much of the defendants’ arguments Tuesday concerned the First Amendment. Mark Williams of Cantor Law Group, representing Giuliani, argued that everything he is accused of doing in the indictment is protected by freedom of speech and the right to assemble and petition the government.
“The state is trying to manufacture a crime,” Williams told Maricopa County Judge Sam Myers.
Myers already found Monday that the defendants met their initial burden to win anti-SLAPP motions, which would dismiss the case if the judge agrees that the charges were brought with the intent to stifle the free exercise of the First Amendment. Having found that “at least some” of the actions in the indictment are protected by the First Amendment, Myers is now waiting on a response from the government in which they’ll have to prove that the charges are legitimate with the intent to punish a crime.
Defendants also asked the court to order the attorney general’s office to stop making public statements about the case or discussing it with new reporters, in fear that the state will taint the jury pool.
Myers said he’d rule on each motion as soon as possible and set another hearing on April 10 to argue more pending motions.