Of the prosecution of politicians and political prosecutions
The indictment of the Trump fake electors wasn't as narrowly tailored as it should have been. And the criminal case against the Cochise County supervisors shouldn't have been brought.
I believe that a coup was attempted to keep Donald Trump in power even though he lost the 2020 presidential election. And I believe that it is probable that criminal laws were broken in the execution of the coup attempt.
That said, we are at a very fragile moment in America’s ongoing experiment in self-governance. Trust in our institutions is at a low ebb and falling. This is universal, across the political spectrum.
On the populist right, there is wide-spread belief that the 2020 election was stolen from Trump. Much of this, such as voting machines programmed to switch votes, is without foundation. However, a sense that the 2020 presidential election wasn’t fair isn’t entirely without some foundation.
The FBI abused its power with an unfair, and unfairly prolonged, investigation into an allegation of collusion between Trump’s 2016 campaign and Russia that never had much substance to it. Courts changed the statutory rules governing the conduct of the 2020 election in some swing states, including Arizona.
Court contests and rulings are part of the electoral process. All politicians feel, often with merit, that they have been unfairly treated along the way in some fashion. There is nothing that justifiably questions or taints the legitimacy of Joe Biden’s election as president. There can be no give on that.
And the fragility of the moment, and the wide-spread belief in the populist right that the election was stolen from Trump, shouldn’t be a reason not to pursue possible criminal conduct in the attempted coup. However, it is a reason for prosecutors to take extra care that any charges are as narrowly tailored as possible. This is particularly true for Democratic prosecutors, whose actions are easily, and inevitably, dismissed in some quarters as being more about damaging political opponents than enforcing the law.
The indictment Arizona Attorney General Kris Mayes obtained from the grand jury, against the state’s fake Trump electors and those in the Trump orbit with whom they coordinated, isn’t as wild as the racketeering conspiracy alleged by the Georgia prosecutor. But it also wasn’t as narrowly tailored as the facts, the law, and the circumstances warranted.
There are two state statutes that make it a crime to create and submit a document falsely claiming it to be official. The fake electors did that. They submitted a document to state and federal officials claiming to be the official Arizona slate of electors to the Electoral College when they weren’t.
Their defense is that they didn’t really mean it. That the declaration was simply to preserve the option under the Electoral Count Act for the Trump electors to be counted in the event that later court decisions found that Trump had, indeed, won Arizona.
That’s not a completely implausible argument. The Electoral Count Act can be read to require that to preserve the option. However, it is undermined as a defense by the fact that the document itself didn’t say that. That’s in contrast to a couple of other states in which Trump electors took action but expressly stated that it was strictly to preserve the contingency.
In the end, the coup attempt didn’t use the Arizona fake electors document strictly to preserve the contingency. It, along with similar declarations from Trump electors in other swing states that Trump lost, was used as a basis to argue that Vice President Mike Pence could refuse to count the electors in those states for Biden, denying Biden an Electoral College majority.
Chances are that some among the fake Trump electors were told that it was just to preserve the contingency and believed it, and that some were aware of and party to its proposed broader use to prevent an Electoral College majority for Biden being declared even though the contingency never eventuated. Certainly those indicted from Trump’s orbit beyond the Arizona fake electors knew and furthered its proposed broader use.
An indictment alleging a conspiracy involving the violation of these two false filing statutes would be narrowly tailored to fit the facts, the law, and the circumstances. That, however, isn’t the indictment Mayes brought.
The actual indictment does mention these two false filing statutes in passing as part of a slew of statutes allegedly violated or implicated by the conspiracy. But the charges are for a conspiracy involving the more serious crimes of fraudulent schemes and forgery.
A lawyer could squint hard at the specific language in these statutes and concoct an argument that they cover the behavior of the false electors and their co-conspirators in the Trump orbit. But it is a more difficult case to prove than a violation of the false filing statutes, and one with a wider array of potential defenses. As a matter of law, it doesn’t fit the facts as neatly or tightly.
In the court of public opinion, it’s a much more difficult case to justify given the common language characteristics of “fraud” and “forgery”.
In common language, fraud and forgery are things done in secret hoping not to get caught. The fake electors propagated their document in public, seeking attention and publicity for it.
Based upon the narrative in the indictment, the alleged fraud is going to be attempting to deny Arizona voters their choice in the presidential race. There is language in the statute that a fraudulent scheme includes one “to deprive a person of the intangible right of honest service”. But there is a larger argument to be had about the applicability of the fraudulent schemes statute than the false filing ones. As there is with the forgery statute.
I don’t want to overstate my objection here. There is what lawyers call a colorable argument that the conspiracy violated the fraudulent schemes and forgery statutes. But, in these circumstances, I don’t think colorable is good enough, especially for a Democratic prosecutor. The false filing statutes have lower penalties. But a cleaner legal and public case that they were violated.
This is not the first election denialism case Mayes has brought. She has also obtained a grand jury indictment of two Cochise County supervisors. In that case, my objection is broader. I don’t think the case should have been brought at all.
Supervisors Peggy Judd and Tom Crosby initially declined to certify the 2022 election canvass for Cochise County. Their reasons for doing so were nonsense. But, at the time, it wasn’t completely outlandish to believe that supervisors have some space to exercise independent judgment in the certification process. After all, what’s the point of having the supervisors certify the canvass if not to represent their validation of the canvass’s accuracy?
A judge quickly rendered judgment that the role of the supervisors is purely ministerial, no independent judgment permitted. A meeting of the supervisors was held immediately thereafter, wherein Judd dutifully voted to certify the canvass. Crosby skipped the meeting.
Mayes has indicted the two supervisors for supposedly participating in a conspiracy to interfere with the secretary of state, at the time Katie Hobbs, finalizing the certification of statewide election results. Interference with the execution of the duties of an election official is a serious offense.
Once there was a court decision, Judd quickly complied. There was no meaningful delay in producing final statewide results. One election official in the performance of his or her duty delaying the completion of another election official in the performance of his or her duty isn’t the sort of “interference” contemplated by the statute’s serious felony sanction.
This does smack of a politically tainted prosecution. Hard to believe that Mayes would bring similar charges in similar circumstances against Democratic supervisors. A judge settled the law regarding the function being purely ministerial. For the 2022 election cycle, that should have been the end of it.
Democrats want to make support for democratic norms an issue in the 2024 election. Given that the person at the top of the GOP ticket attempted a coup to stay in office despite losing the 2020 election, it’s a fair issue.
But if Democrats want to use it not only to their political advantage, but also to nudge the country toward a more unified view about those democratic norms, they have an obligation to use the issue responsibly.
This obligation weighs even more heavily on Democratic prosecutors contemplating pursuing criminal complaints against Republicans for election-related offenses. Again, criminal violations shouldn’t be overlooked. But they shouldn’t be overcharged or artificially constructed.
Unlike the Georgia prosecutor, Mayes hasn’t gone overboard. But she is skating along the edge.
Reach Robb at robtrobb@gmail.com.