That’s what the Michigan Attorney General called the actions of these fake electors who sent phony documents to the National Archives in December of 2021.
Recall Trump’s hack lawyer John Eastman sent out his “January 6th Scenario” in which he stated “7 states have transmitted dual slates of electors to the President of the Senate.” And they did!
The Republicans in two of those states hedged their bets. The New Mexico certificate was submitted “on the understanding that it might later be determined that we are the duly elected and qualified” electors (emphasis added). The Pennsylvania certificate was similarly qualified “on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors” (emphasis added).
The submissions from those two states deserve the benefit of the doubt. They can and should be read as contingent, belt-and-suspenders backup plans to make sure that Trump electors were identified in the event, however unlikely, that the courts reversed the election results in their states.
Not so the other five states. The phony Trump electors from each of the other five states—Arizona, Georgia, Michigan, Nevada and Wisconsin—certified that they were in fact the “duly elected and qualified Electors for President and Vice President of the United States of America” from their respective states.
This was a criminal act under 18 U.S.C. § 1512(c)(2) as part of abroad conspiracy by Donald Trump and others to corruptly obstruct, influence or impede the electoral vote count. But it’s also just straight up fraud. Every state has laws against electoral fraud. Arizona for instance has one which says that a person who knowingly forges or counterfeits returns of an election is guilty of a “class 3 felony,” the minimum penalty for which is two and a half years in prison. So there’s that.
According to this piece, from which I’ve gleaned much of this information, also notes anther federal statue this may fall under:
However, there is one federal criminal statute that appears to cover this situation specifically and squarely. Under 52 U.S.C. § 20511, it is a crime punishable by a fine or up to five years in prison—or both—if any person:
knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by . . . the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held. [Emphasis added.]
There is some debate in the academic community about whether the votes of presidential electors are “ballots” as that term is used in this statute. The reference to “ballots” may be intended to refer only to the popular vote, not the votes cast by the electors, the argument goes.
But the statute doesn’t say that. It just says “ballots.” The common understanding is that a ballot is simply the mechanism by which votes are cast. Moreover, the Constitution explicitly and repeatedly refers to the votes of presidential electors as “ballots.” Here’s the applicable language from the Twelfth Amendment:
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President. [Emphasis added.]
Once the issue of whether presidential electors cast their votes by “ballots” is resolved—if there really is such an issue—the rest seems easy:
The phony electors’ ballots were clearly “materially false, fictitious, or fraudulent under the laws of the State in which the election is held.” As discussed above, Biden, not Trump, was the duly elected and qualified winner in each of the five states.
The fraudulent ballots were “cast.” They were fully executed and transmitted to the National Archives, Congress, and the federal judiciary, in imitation of the process set forth in 3 U.S.C. §§ 10 and 11 for the casting of legitimate ballots.
The phony electors clearly knew the ballots were false. The whole damn world knew that Biden, not Trump, had been certified as the winner in each of their respective states. That’s why this whole plot was hatched in the first place.
By casting electoral ballots that they knew were not for the duly elected and qualified winners in their states, the phony electors not only deprived the residents of their states of “a fair and impartially conducted election process,” they effectively sought to nullify the entire state election process.
These certificates weren’t just provisional, backup measures in case something changed. The Pennsylvania and New Mexico certificates showed how to make that clear in plain English. The phony certificates from the other five states purported to list the “duly elected and qualified” electors and were transmitted to the federal government as the state’s official electoral votes, some even on letterheads bearing the state seal.
Other federal criminal statutes also may be applicable.
The broadest federal statute that may apply is 18 U.S.C. § 371—“Conspiracy to commit offense or to defraud United States.” That statute says that if two or more persons conspire to defraud the United States or any agency thereof “in any manner or for any purpose,” and perform “any act” to effect the object of that conspiracy, each person shall be fined or imprisoned for not more than five years, or both. As Harvard professor Laurence Tribe noted in a Boston Globe op-ed last week, under the Supreme Court ruling in Tanner v. United States, Section 371 applies to “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” Conspiring to file fraudulent election returns in order to overturn a presidential election, and the actual transmittal of those fraudulent documents to the federal government, easily meets that standard.
It is also a crime under 18 U.S.C. § 1001, punishable by up to five years of imprisonment, to file any “false, fictitious, or fraudulent statement or representation” in any matter within the jurisdiction of the federal government, or to use a “false writing or document knowing the same to contain any materially false, fictitious, or fraudulent” information.
And specifically regarding elections, it is crime under 52 U.S.C. §10307 for any person “acting under color of law” to “willfully fail or refuse to tabulate, count, and report” the vote of any person qualified to vote. This would seem to apply to any state officials who, acting under color of law—that is, acting in some official capacity—were involved in transmitting the phony electoral certificates to the federal government. By purporting to certify the election of a person who was not duly elected, such officials would be willfully seeking to disenfranchise millions of individuals who were qualified to and did vote.
There are people in jail for making a simple mistake and voting when they weren’t technically eligible. These people went way, way beyond that.
Will they pay a price? I would hope so. But so far, there hasn’t been a peep about this from any law enforcement, state or federal.